BryanW. Shaw, Ph.D..Chairman

BuddyGarcia,Commissioner

Carlos Rubinstein. Commissioner

Mark R.Vickery, P.G., ExecutiveDirector 10 JllL 20 Pt1 1.1: '0

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

ProtectingTexas by Reducingand PreventingPollution

July 16, 2010

Docket No. 2009-1907-RUL

Alfredo Armendariz, Ph.D.

Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

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Dear Dr. Armendariz:

On June 2, 2010, the Texas Commission on Environmental Quality (Commission) adopted a revision to

the State Implementation Plan (SIP).

The Commission adopted an amendment to § 116.160 of 30 Texas Administrative Code Chapter 116,

Control of Air Pollution by Pennits for New Construction or Modification, and a corresponding revision

to the SIP. The amendment adds certain references to Federal definitions and requirements regarding

best available control technology (BACT) as it relates to Prevention of Significant Deterioration (PSD)

permitting, and the PSD review for projects that become major stationary sources or major

modifications solely because of a relaxation of an enforceable limitation on the source or modification's

capacity to emit a pollutant.

Enclosed are the proposed revision 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 this SIP

revision.

Sincerely,

Enclosures

P.O. Box13087 Austin, Texas 78711-3087 512-239-1000 Internet address:www.tceq.state.tx.us
cc: The Honorable Rick Perry, Governor of Texas

Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor

Mr. Mark R. Vickery, PoGo, Executive Director, Texas Commission on Environmental Quality
Docket No. 2009-1907-RUL

THE STATE OF TEXAS

COUNTY OF TRAVIS

This is to certify that the attached are true and correct copies of documents for revision to the

Texas State Implementation Plan, adopted on June 2, 2010, pursuant to 40 Code of Federal Regulations

§ 51.104. I am the records administrator for the Air Permits Division of the Texas Commission on

Environmental Quality (Commission).
Texas Commission on Environmental Quality

Public Hearing on February 22, 2010

concerning

30 TAC Chapter 116 and the State Implementation Plan

Rule Project No. 2010-005-116-PR

Best Available Control Technology (BACT) in

Prevention of Significant Deterioration (PSD) Permitting
INTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin

on February 22,2010, to receive testimony regarding revisions to 30 TAC Chapter 116, Control

ofAir Pollution by Permits for New Construction or Modification; and corresponding revisions to

the Texas state implementation plan (SIP).

This rulemaking adds references to 40 Code of Federal Regulations §52.21(b)(12), the federal

definition of BACT, §52.21(r)(4), the federal requirement that ensures sources or modifications

which become major as a result of the relaxation of an enforceable limitation are subject to PSD

requirements, are requirements of the PSD SIP, and §52.21(j), the federal requirement to use

control technology that is equivalent or more stringent than BACT, to 30 TAC Chapter 116.

The comment period closed on March 1,2010. All testimony and comments have been reviewed

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

and is divided into the following four sections:

• Public Notification and Proposal

• Written and Oral Testimony

• Evaluation ofTestimony

• StaffRecommendations

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park

35 Circle, Austin, Texas 78753. For further information, contact Blake Stewart at (512) 239-

6931.
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION

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

1. Publication ofthe notice ofpublic hearing in the following newspapers on the dates

listed:

Austin American-Statesman

Fort Worth Star-Telegram

Houston Chronicle

January 15,2010

January 15,2010

January 15,2010

2. Publication ofthe public hearing notice in the Texas Register on January 29,2010 (35

TexReg 688).

3. Publication ofthe proposed rules in the Texas Register on January 29, 2010 (35

TexReg40 569).

4. Correspondence forwarding the notice of public hearing to the following officials and

agencies:

Speaker ofthe House

Lieutenant Governor

City of E1 Paso

City ofVictoria Planning Department

Dallas Department of Health and Human Services

EI Paso City-County Health District

Federal Highway Administration
Fort Worth Public Health Department

Galveston County Health District

Houston Department of Health and Human Services

Harris County Pollution Control Department

North Central Texas Council of Governments

Houston-Galveston Area Council

South East Texas Regional Planning Commission

Texas Department ofTransportation

Texas Transportation Institute

Arkansas Department ofPollution Control and Ecology

Louisiana Department ofEnvironmental Quality

New Mexico Air Quality Bureau

Oklahoma Department ofEnvironmental Quality

u. S. Environmental Protection Agency
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chron.com 801 TEXAS AVENUE

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01/15/10 INV:4S1594031 1245 LEGAL NOTICES 139X1C 1 $1,788.93

FAI AD#:241 09123 PUBLIC HEARING ON PROPOS 139L 12.87

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HOME SHOPPING? CHECK THE WEEKEND CHRONICLE. SATURDAY FOCUSES ON NEW HOMES, COMMUNITIES AND DEVELOPMENTS AND

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24109123 TCEQ Jan 152010

AFFIDAVIT OF PUBLICATION

STATE OF TEXAS:

COUNTY OF HARRIS:

Page 1

Before me, the undersigned authority, a Notary Public in and for the State

of Texas, on the day personally appeared: GAIL CHASTUN, who after being duly

sworn, says that she 'is the ACCOUNTS RECEIVABLE LEAD at the HOUSTON

CHRONICLE; a daily newspaper published in Harris County, Texas, and that the

publication, of which the annexed herein, or attached to, is a true and correct

copy, was published to-wit:

TCEQ 24109123

RAN A LEGAL NOTICE

SIZE BEING: 1 X 139

product

hc

15082126

L

date

Jan 15 2010

class

1245.0

GAIL CHASTON

ACCOUNTS RECEIVABLE LEAD

Sworn and subscribed to before me, this the 15th Day of January A.D. 2010

and for the State of Texas
24109123 TCEQ Jan 15 2010

PIJBUCHEARING ON

PROPOSED R£VISlONS TO 30 lACctIAPl'E1R116 A'NO_TO

THE STATE alPI.OftJilTAllON PI.AliC

The Texas Commission on Environmental

Q\lallty (commission) will conduct a puolic hearing Ul receiY4! tes- timony reQa!ding pro· posed revIsions to 30

· Texas Administrative

Code <TAC) Chapter

116, COntrol of Air POllution by Permlts for

New COnstrueDon or ModifiCiltion. §U6.160; and to the state imple- mentation ptan (SIP).

under the require· ments of Texas Health

and safetY. Code.

§382.017: Texes Gov· ernment Code. Chapter

=~~~~P~er~ Regulations §51.102 of

the United Stll.1'eS Environmental Protection

Agency (EPA) reQula- tiORS concerning SIPS.

The propcsed rulemak·

ing would include ref· erences to 40 of FecIeral Regulations (CFR) §52.2l(oXU). the

mderal definition of

best available control

~~~1~~\~2 federal requirement that ensures sources or modifieations which

become major as a re- sult of the relaxation of an enforceable Iimlta·

tlon are subject to pre-

· ventkln of significant deterioration reQUire- ments. and 4() CFR

§52.21(j). the federal

requirement to use

· control tectmology

thllt is eQUivaJent or more Stringent than

BACT_

The commission will

tloIda pubUc hearing on trus proPQSal In

AuStin on l'eoruary 22. 2010 at 1Q:OO a.m. in

Building Eo Room 2015. at the commlsSion's

central office located at 12100 Park 35 Circle.

The hearing is struc- tured for the receipt of

oral or written com- ments by interested

persons. IndivkNals

ma,ypresent oral state- ments when called

upon In orderof regis- tration. Open dlscus-.

Slon will notbe permit- ted during the heaf'irl9; howewr. commission

staff members win be

available to discuss the proposal 311 min- utes prior to the hearing.

Persons who have sPedal communication or other -accommodlltlon

needs who are .plan. ning 10 attend the hearingshouldc~act

Charlotte HQrn, otI'ice

of Legal Services at (512) 239-11779. ReQuests stIould.be made as far in advance as possible.

Written comments may be submitted to Patricia Dur>On. Me 205.

Office of L~ 'Services. Texas COrnmis-·

sian on environmental

QuaI!lY. P.O. Sox 13087. Austin. Texas 7-8711-

301fT. Or faxed to (512)

239-4808. Electronic

comments may be submitted at: http;// wwws.tceQ.state.tx.us

/roIesiecoinmem:s/.

Flle s!:z:e.•.~~l~~s

Page 2
24109123 TCEQ Jan 152010

www5.teeq.state.tx.U$

/ruleslecommentsl.

File size restrictions

may apply to comments being submitted

via the eComments

~h~~~'r~~r~~m~~f: Project Number 2010- OOS-US·PR. The com- ment period closes

March 1, 2010. Copies of the proposed rulemal<1ng can be obtained from the cornmission's Web site at

http;//www.tcell·state

.tx.us/nav/rulesl

propose~opthtml.

For further lnformatlon. please contact

Blake Stewart, Air Permits Division, at

(512) 239-6931.

Page 3
If you need more information about these permit applications or the

permitting process, please call the TCEQ Office of Public Assistance,

toll-free, at 1-800-687-4040. General information about the TCEQ can

be found at our web site at www.tceq.state.tx.us.

Si desea informacion en Espaftol, puede lIamar al 1-800-687-4040.

TRD-201000230

LaDonna Castariuela

Chief ClerK

Texas Commission on Environmental Quality

Filed: January 20, 2010

Public Hearing on Proposed Revisions to 30 TAC Chapter 116

and Revisions to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 116, Control ofAir Pollution by Permits for New Construction or Modification,

§116.160; and to the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government

Code, Chapter 200I, Subchapter B; and 40 Code of Federal Regulations §51.102 ofthe United States Environmental Protection Agency

(EPA) regulations concerning SIPs.

The proposed rulemaking would include references to 40 Code ofFederal Regulations (CFR) §52.21(b)(l2), the federal definition of best

SKY RANCHES, INC. has applied for a renewal ofTPDES Permit No.

WQOOl4318001 which authorizes the discharge of treated domestic

wastewater at a daily average flow not to exceed 49,500 gallons per

day. The facility is located on County Road 448 approximately I mile

south of the intersection of Farm-to-Market Road 1805 and County

Road 448 in Smith County, Texas 75790.

TEXAS DEPARTMENT OF TRANSPORTATION has applied for a

renewal of TCEQ Permit No. WQ0014619001, which authorizes the

disposal oftreated domestic wastewater at a daily average flow not to

exceed 8,288 gallons per day via subsurface low pressure application

absorption fields with a total area of 103,600 square feet on the public

access westbound site and the disposal oftreated domestic wastewater

at a daily average flow not to exceed 6,272 gallons per day via subsurface low pressure application on absorption fields with a total area

of 78,400 square feet on the public access eastbound site. This permit

will not authorize a discharge ofpollutants into waters in the State. The

wastewater treatment facility and disposal site are located at 1040I Interstate Highway 10 East (westbound), approximately 5,280 feet west

ofthe intersection ofInterstate Highway 10 and Farm-to-Market Road

II 04 and second domestic wastewater treatment facility and disposal

area are located along the south side (eastbound) ofInterstate Highway

10, approximately 5,280 feet west ofthe intersection ofInterstate Highway 10 and Farm-to-Market Road 1104 in Guadalupe County, Texas

78638.

TIMBERWOOD DEVELOPMENT COMPANY, L.P. has applied for

a renewal of TCEQ Permit No. WQ0014670001, which authorizes

the disposal of treated domestic wastewater at a daily average flow

not to exceed 18,000 gallons per day via non-public access subsurface

drip irrigation system with a minimum area of 180,000 square feet.

This permit will not authorize a discharge of pollutants into waters in

the State. The wastewater treatment facility and disposal site will be

located 820 feet southeast of the intersection of Harmony Hills and

Shady Acres and the disposal area is located 1,600 feet southeast of

the intersection of Harmony Hills and Shady Acres in Bexar County,

Texas 78260.

Public Hearing on Proposed Revisions to 30 TAC Chapter 307

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding: (I) proposed

revisions to 30 Texas Administrative Code Chapter 307, Texas Surface

Water Quality Standards, §§307.1 - 307.10; and (2) subsequent revisions to the Procedures to Implement the Texas Surface Water Quality

Standards (IPs), RG-194.

The proposed rulemaking would provide a periodic public review and

revision ofthe State's surface water quality standards, as provided for

in the Texas WaterCode, §26.023, and as required by the Federal Clean

Water Act, §303(c).

At the request of the commission, the preamble ofthis rule proposal

also specifically solicits comments on two figures located in the rule

text. On Figure: 30 TAC §307.IO(l), Appendix A, Site-specific Uses

and Criteria for Classified Segments, the commission solicits comments on setting the 24-hour average dissolved oxygen criteria at the

decimal fraction of 4.5 mgIL rather than at a whole number such as

4.0 mglL or 5.0 mglL. As part ofthe same figure, the commission also

solicits comments on the designation ofseparate aquatic life use designations for fish versus benthic communities. On Figure: 30 TAC

§307.1O(6), Appendix F, Site-specific Nutrient Criteria and Screening Levels for Selected Reservoirs, the commission solicits comments

on the proposed criteria and screening levels in comparison to other

• ••

available control technology (BACT), 40 CFR §52.21(r)(4), the federal requirement that ensures sources or modifications which become

major as a result ofthe relaxation of an enforceable limitation are subject to prevention ofsignificant deterioration requirements, and 40 CFR

§52.21G), the federal requirement to use control technology that is

equivalent or more stringent than BACT.

The commission will hold a public hearing on this proposal in Austin

on February 22, 2010 at 10:00 a.m. in Building E. Room 201S, at

the commission's central office located at 12100 Park 35 Circle. The

hearing is structured for the receipt oforal or written comments by interested persons. Individuals may present oral statements when called

upon in order of registration. Open discussion will not be permitted

during the hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation

needs who are planning to attend the hearing should contact Charlotte

Hom, Office ofLegal Services at (512) 239-0779. Requests should be

made as far in advance as possible.

Written comments may be submitted to Patricia Duron, MC 205,

Office of Legal Services, Texas Commission on Environmental

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

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

http://www5.tceq.state.tx.us/ru/es/ecomments! File size restrictions may apply to comments being submitted via the eComments

system. All comments should reference Rule Project Number

201O-005-1I6-PR. The comment period closes March 1,2010. Copies

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

Web site at http://www.tceq.state.tx.us/nav/ru/es/propose_adopt.hlm/.

For further information, please contact Blake Stewart, Air Permits

Division, at (512) 239-6931.

TRD-201000173

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: January 15, 2010

• • •

35 TexReg 688 January 29,2010 Texas Register
ill the owner of the system has been provided:

ill documentation which provides the RMP's narne,

Master Plumber license number, company narne and contact information;

{jjl a copy ofthe plans or drawings ofthe system, as

installed; and

[jjj1 instructions for the operation, maintenance and

care ofthe system, in accordance with the latest edition ofNFPA standard 13D and the material manufacturers' recommendations: and

lID. a warning sign is displayed and affixed adjacent to

the main shutoff valve, which, in 1/4 inch letters:

ill identifies the RMP as the installer and provides

the RMP's narne, Master Plumber license number, company narne and

contact information;

{jjl states, "WARNING: The water system for this

home is a multipurpose system which supplies water to fire sprinklers

that require certain flows and pressures to fight a fire. Devices that

restrict the flow or decrease the pressure or automatically shut off the

water to the fire sprinkler system, such as water softeners, filtration systems, and automatic shutoff valves, shall not be added to this system

without a review ofthe fire sprinkler system by a fire protection sprinkler specialist. DO NOT REMOVE TIllS SIGN": and

[jjj1 provides the Board's narne and telephone number at the bottom of the sign.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15,

2010.

TRD-201000165

Robert L. Maxwell

Executive Director

Texas State Board of Plumbing Examiners

Earliest possible date of adoption: February 28, 2010

For further information, please call: (512) 936-5224

• • •

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

SUBCHAPTER B. NEW SOURCE REVIEW

PERMITS

DIVISION 6. PREVENTION OF SIGNIFICANT

DETERIORATION REVIEW

30 TAC §1l6.160

The Texas Commission on Environmental Quality (commission,

agency, or TCEQ) proposes an amendment to §116.160.

The proposed amendment to §116.160 will be submitted to the

United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

On February 1, 2006, the TCEQ submitted an amendment to

30 Texas Administrative Code (TAC) §116.160 to the EPA as

a SIP revision to the Texas prevention of significant deterioration (PSD) SIP. This amendment included the inadvertent removal of certain references to federal definitions and requirements regarding best available control technology (BACT) as it

relates to PSD, and the permit review regarding PSD review for

projects that become major stationary sources or major modifications solely because of a relaxation of an enforceable limitation

on the source or modification's capacity to emit a pollutant. On

September 23, 2009, the EPA published notice of the proposed

disapproval ofthese revisions to the Texas PSD SIP (74 Federal

Register 48467, September 23, 2009). In addition to the sections noted previously, the EPA's September 23, 2009 notice included additional concerns regarding TCEQ's February 1, 2006

SIP submittal as well as a submittal of a SIP revision made by

the TCEQ on June 10, 2005. These issues will be addressed in

a subsequent rulemaking.

The EPA stated in the notice that the 2006 SIP revision submittal removed from 30 TAC §116.160(a) the incorporation by reference of the federal PSD definition of BACT as defined in 40

Code of Federal Regulations (CFR) §52.21(b)(12) and that the

currently approved PSD SIP requires that a state include this

definition of BACT as part of its SIP. The EPA also noted that

the 2006 submittal also removed the PSD SIP requirement at

40 CFR §52.21(r)(4) that had previously been incorporated by

reference. The currently approved PSD SIP mandates this requirement. This provision specifies that if a project becomes a

major stationary source or major modification solely because of

a relaxation of an enforceable limitation on the source or modification's capacity to emit a pollutant, then that source or modification is subject to PSD requirements. Although these references

are currently missing from 30 TAC §116.160, in its permitting actions, the TCEQ does not circumvent Federal New Source Review (FNSR) requirements and does not allow a control technology review to be conducted that results in a technology that is

less than BACT as defined in federal rule. Additionally, TCEQ

ensures that if a project becomes a major source through the relaxation of an enforceable limitation, PSD review is required.

The commission is also proposing to include the reference to

40 CFR §52.21U), which implements the definition of BACT Although this reference has not historically been included in the

commission's rule regarding the applicable requirements for a

PSD permit, this is proposed for addition because it complements the reinserted definition of BACT

In an effort to ensure that TCEQ regulatory requirements regarding the PSD permitting program meet the requirements of

the Federal Clean Air Act and are approvab/e into the SIP, the

commission is proposing the following amendment to eliminate

any deficiencies that would prevent approval. Because this

amendment would reinstate PSD permit program requirements

that were previously approved by EPA as part of the Texas SIP,

and because they incorporate by reference the federal rules,

this amendment is at least as stringent as the FNSR revised

base program. This amendment will not interfere with any

applicable requirement concerning attainment of the national

ambient air quality standards, reasonable further progress, or

PROPOSED RULES January 29, 2010 35 TexReg 569
any other applicable requirement under the Federal Clean Air

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

SECTION DISCUSSION

§116.160, Prevention of Significant Deterioration Requirements

The commission is proposing to amend §116.160(c)(1) by

adding a reference to the federal definition of BACT located in

40 CFR §52.21(b)(12). The application of BACT is an integral

part of air pollution control under the Federal Clean Air Act and

a primary consideration during review of sources subject to

FNSR by TCEQ staff. Although there is a definition of BACT in

30 TAC §116.10, the federal definition of BACT is necessary for

the PSD permitting program and therefore must be included in

the commission's rules for that program.

The commission is proposing to amend §116.160(c)(2) by

adding references to two federal requirements related to the

application of BACT to FNSR sources subject to PSD requirements. In addition to other references to federal regulations,

proposed §116.160(c)(2)(A) now includes a reference to 40

CFR §52.21U), which is the federal requirement to use control

technology that is equivalent to or more stringent than BACT.

Although the EPA did not address this requirement in its September 23, 2009 notice of disapproval, the inclusion provides

regulatory certainty that the federal definition of BACT applies

to those facilities subject to PSD. Additionally, the reference

to 40 CFR §52.21(k) previously in §116.160(c)(2)(B) has been

incorporated into proposed §116.160(c)(2)(A) and the section

has been renumbered accordingly. Proposed §116.160(c)(2)(C)

references 40 CFR §52.21(r)(4), which is the federal requirement ensuring that sources or modifications which become

major as a result of the relaxation of an enforceable limitation

are subject to PSD requirements. Inclusion of a reference to this

federal requirement will help ensure that the TCEQ's regulation

of these types of major stationary sources or modifications will

be as stringent as the federal program.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

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

rule is in effect, no significant fiscal implications are anticipated

for the agency. No fiscal implications are anticipated for other

state agencies or local govemments as a result of administration

or enforcement of the proposed rule. The proposed rule restores

certain references to federal definitions and requirements and

provides consistency with actual practices of the agency when

reviewing air permits.

The proposed rulemaking amends 30 TAC Chapter 116 to include several references to federal definitions and requirements

regarding FNSR and PSD that were inadvertently removed during a prior rulemaking. The references to 40 CFR §52.21(b)(12),

the federal definition of BACT, and 40 CFR §52.21(r)(4), the federal requirement that ensures sources or modifications which become major as a result of the relaxation of an enforceable limitation are subject to PSD requirements, are requirements of the

PSD SIP.The reference to 40 CFR §52.210), the federal requirement to use control technology that is equivalent or more stringentthan BACT, while not a requirement of the existing PSD SIP,

provides regulatory certainty that the federal definition of BACT

applies to those facilities subject to PSD.

The proposed rulemaking does not impose any new requirements and does not increase costs to any regulated entity.

35 TexReg 570 January 29,2010 Texas Register

Although, the agency inadvertently removed requirements of

the proposed rule in a prior rulemaking, it continued to require

all applicants to comply with BACT when conducting a control

technology review. The agency also ensured that PSD reviews were completed as required if a project became a major

source through the relaxation of an enforceable limitation. The

proposed rule does not change current agency application of

federal regulations; rather it provides clarification and ensures

consistency with federal PSD SIP requirements. There will not

be any fiscal impacts to state agencies and local governments

as a result of the proposed rule.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first

five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be consistency with the federal permitting process for NSR and PSD

and assurance that state regulation of major stationary sources

or modifications will be as stringent as the federal program. The

proposed rule will also remove any impediment to the inclusion

of agency rules into the PSD SIP.

The proposed rule will not have any fiscal impact on individuals or large businesses. Although, the agency inadvertently removed requirements of the proposed rule in a prior rulemaking,

it continued to require all applicants to comply with BACT when

conducting a control technology review. The agency also ensured that PSD reviews were completed as required if a project

became a major source through the relaxation of an enforceable

limitation. The proposed rule does not change current agency

application of federal regulations; rather it provides clarification

and ensures consistency with federal PSD SIP requirements.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rule. The proposed

rule does not change current agency application of federal regulations; rather it provides clarification and ensures consistency

with federal PSD SIP requirements.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulernakinq and determined that a small business regulatory flexibility analysis not

required because the proposed rule is required to comply with

federal regulations and does not adversely affect a small or micro-business in a material way for the first five years that the

proposed rule is in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a

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

proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking action in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the action is not subject to

§2001.0225 because it does not meet the definition of a "major

environmental rule" as defined in that statute. A "major environmental rule" is 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. Although the PSD permitting program is

specifically intended to protect the environment and reduce risks

to human health from environmental exposure to air pollutants,

the primary purpose of this rulemaking is to correct deficiencies

in §116.160 as identified by the EPA. Specifically, those corrections are to add certain references to federal definitions and requirements regarding BACT as it relates to PSD, and the review

regarding PSD review for projects that become major stationary

sources or major modifications solely because of a relaxation of

an enforceable limitation on the source or modification's capacity to emit a pollutant. Correction of these deficiencies is necessary to ensure that the rule can be a federally approved part

of the Texas SIP. The Texas SIP already includes the requirements of40 CFR §52.21(b)(12) and (r)(4), and although these requirements were omitted in the previous rulemaking, the TCEQ

continued to implement them. As discussed elsewhere in this

preamble, no fiscal implications are anticipated for other state

agencies, local governments, individuals, or for large, small, or

micro-businesses as a result of administration or enforcement of

the proposed rule. Therefore, this rule 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.

As defined in the Texas Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to: exceed a standard set by federal law, unless the rule is specifically

required by state law; exceed an express requirement of state

law, unless the rule is specifically required by federal law; 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 adopt a rule solely

under the general powers of the agency instead of under a specific state law. This rulemaking action does not meet any of these

four applicability requirements of a "major environmental rule."

Specifically, the proposed amendment to §116.160 was developed to correct deficiencies in the commission's PSD permitting

program to ensure SIP approval by EPA and thus meet a requirement of federal law. This proposed rulemaking action does not

exceed an express requirement of state law or a requirement of

a delegation agreement, and was not developed solely under the

general powers of the agency, but was specifically developed to

meet the requirements of the Federal Clean Air Act (FCAA), and

is authorized under Texas Health and Safety Code, §§382.011,

382.012,382.017,382.051,382.0513,382.0515, and 382.0518,

and FCAA, 42 USC, §§7401 et seq.

Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of

this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed rulemaking and performed an assessment of whether Texas Government Code,

Chapter 2007, is applicable. The proposed amendment to

§116.160 amends the requirements for PSD permits. The

primary purpose of the proposed rulemaking is to correct

deficiencies in §116.160 as identified by the EPA. Correction

of these deficiencies is necessary to ensure that the rule can

be approved by EPA as part of the Texas SIP. Promulgation

and enforcement of the proposed rulemaking will not burden

private real property. The proposed rule does 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. Consequently, this rulemaking action

does not meet the definition of a taking under Texas Government Code, §2007.002(5). Although the proposed rule does not

directly prevent a nuisance or prevent an immediate threat to

life or property, it does partially fulfill a federal mandate under 42

USC, §7410. Consequently, the exemption that applies to this

proposed rule is that of an action reasonably taken to fulfill an

obligation mandated by federal law. Therefore, this rulemaking

action will not constitute a taking 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,

§§33.201 et seq.), and commission rules in 30 TAC Chapter

281, SUbchapter B, concerning Consistency with Texas Coastal

Management Program. As required by §281.45(a)(3) and 31

TAC §505.11(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 §501.12(1), relating to Goals). The proposed amendment

adds references to federal regulations that the state has no authority to change. The CMP policy applicable to this rulemaking

action is the policy that commission rules comply with federal

regulations in 40 CFR to protect and enhance air quality in the

coastal areas (31 TAC §501.32). Therefore, in accordance with

31 TAC §505.22(e) (relating to Consistency Required for New

Rules and Rule Amendments SUbject to the Coastal Management Program) the commission affirms that this rulemaking action is consistent with CMP goals and policies.

Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address listed under the

SUBMITTAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 116 is an applicable requirement of 30 TAC Chapter

122, Federal Operating Permits Program. If the proposed rule

is adopted, owners or operators subject to the federal operating permit program must, consistent with the revision process in

Chapter 122, upon the effective date of the adopted rulemaking,

revise their operating permit to include the new Chapter 116 requirements. Additionally, sources subject to the adopted rules

may become subject to the federal operating permit program.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on February 22,2010 at 10:00 a.m. in Building E, Room

201S, at the commission's central office located at 12100 Park

35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present

PROPOSED RULES January 29,2010 35 TexReg 571
oral statements when called upon in order of registration. Open

discussion will not be permitted during the hearing; however,

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

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact

Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible.

SUBMITIAL OF COMMENTS

Written comments may be submitted to Patricia Duron, MC

205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,

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

submitted at: http://www5.tceq.state.tx.uslruleslecommentsl.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should reference RUle Project Number 2010-005-116-PR. The comment

period closes March 1, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site at

http://www.tceq.state.tx.uslnavlruleslpropose_adopt.html. For

further information, please contact Blake Stewart, Air Permits

Division, at (512) 239-6931.

STATUTORY AUTHORITY

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

§5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the

TWC; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.105, concerning General Policy,

that authorizes the commission by rule to establish and approve

all general policy of the commission; and under Texas Health

and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendments

are also proposed under THSC, §382.002, concerning Policy

and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection

of pubhc health, general welfare, and physical property; THSC,

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

THSC, §382.012, concerning State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. The

amendments are also proposed under THSC, §382.051, which

authorizes the commission to issue permits for construction of

new facilities or modifications to existing facilities that may emit

air contaminants; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce

permit conditions; THSC, §382.0515, concerning Application for

Permit, and THSC, §382.0518, which authorizes the commission to issue preconstruction permits. The amendment is also

proposed under Federal Clean Air Act (FCAA), 42 United States

Code (USC), §§7401 et seq., which require states to submit state

implementation plan revisions that specify the manner in which

the national ambient air quality standards will be achieved and

maintained within each air quality control region of the state.

The proposed amendment implements THSC, §§382.002,

382.011,382.012,382.017,382.051,382.0513,382.0515, and

382.0518, and FCAA, 42 USC, §§7401 et seq.

§116.160. Prevention ofSignificant Deterioration Requirements.

35 TexReg 572 January 29, 2010 Texas Register

(a) Each proposed new major source or major modification in

an attainment or unclassifiable area shall comply with the requirements

ofthis section. The owner or operator of a proposed new or modified

facility that will be a new major stationary source for the prevention

of significant deterioration air contaminant shall meet the additional

requirements ofsubsection (c)(l) - (4) ofthis section.

(b) The de minimis threshold test (netting) is required for all

modifications to existing major sources of federally regulated new

source review pollutants, unless the proposed emissions increases

associated with a project, without regard to decreases, are less than

major modification thresholds for the pollutant identified in 40 Code

of Federal Regulations (CFR) §52.21(b)(23).

(c) In applying the de minimis threshold test (netting), if the

net emissions increases are greater than the major modification levels

for the pollutant identified in 40 CFR ~52.21(b)(23), the following requirements apply.

(I) In addition to those definitions in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions) the following definitions from prevention

of significant deterioration of air quality regulations promulgated by

the United States Environmental Protection Agency (EPA) in 40 CFR

§52.21 and the definitions for protection ofvisibility and promulgated

in 40 CFR §5I.301 as amended July I, 1999, are incorporated by reference:

(A) 40 CFR §52.21(b)(l2) - (15) [§52.21(b)(13) -(Ht],

concerning best available control technology, baseline concentrations,

dates, and areas;

(B) 40 CFR §52.21(b)(19), concerning innovative control technology; and

(C) 40 CFR §52.21(b)(24) - (28), concerning federal

land manager, terrain, and Indian reservations/governing bodies.

(2) The following requirements from prevention ofsignificant deterioration of air quality regulations promulgated by the EPA in

40 CFR §52.21 are hereby incorporated by reference:

(A) 40 CFR §52.21(c) - (k) [§52.21(e) -@, concerning increments, ambient air ceilings, restrictions on area classifications,

exclusions from increment consumption, redesignation, stack heights,

[iHId] exemptions, control technology review, and source impact anal-

~;

.em [fGt] 40 CFR §52.21(m) - (P), concerning air

quality analysis, source information, additional impact analysis, and

sources impacting federal Class 1 areas; [iHId]

(Q 40 CFR §52.21(r)(4), concerning relaxation of an

enforceable limitation; and

(D) 40 CFR §52.21(v), concerning innovative technology.

(3) The term "facility" shall replace the words "emissions

unit" in the referenced sections of the CFR.

(4) The term "executive director" shall replace the word

"administrator" in the referenced sections ofthe CFR except in 40 CFR

§52.21(g) and (v).

(d) All estimates ofambient concentrationsrequired under this

subsection shall be based on the applicable air quality models and modeling procedures specified in the EPA Guideline on Air Quality Models,

as amended, or models and modeling procedures currently approved by
the EPA for use in the state program, and other specific provisions made

in the prevention ofsignificant deterioration state implementation plan.

Ifthe air quality impact model approved by the EPA or specified in the

guideline is inappropriate, the model may bemodified or another model

substituted on a case-by-case basis, or a generic basis for the state program, where appropriate. Such a change shall be subject to notice and

opportunity for public hearing and written approval ofthe administrator ofthe EPA.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 15,

2010.

TRD-201000172

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 28, 2010

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

CHAPTER 290. PUBLIC DRINKING WATER

SUBCHAPTER D. RULES AND

REGULATIONS FOR PUBLIC WATER

SYSTEMS

30 TAC §290.46

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes an amendment to §290.46.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

The purpose of the proposed amendment is to reflect changes to

the Texas Health and Safety Code (THSC), §341.0358(b), made

during the 81st Legislature, 2009, in House Bill (HB) 3661.

HB 3661 amends THSC, Chapter 341, Subchapter C, byamending §341.0358(b), Public Safety Standards. This bill requires the

regulatory authority for a public utility to adopt standards for installing fire hydrants adequate to protect public safety in residential areas in a municipality with a population of 1,000,000 or

more.

SECTION DISCUSSION

The commission proposes to amend §290.46(x), as required

by HB 3661, 81st Legislature, 2009, to include the requirement

that the regulatory authority for a public utility adopt standards

for installing fire hydrants adequate to protect public safety in

residential areas in a municipality with a population of 1,000,000

or more. These standards must, at a minimum, follow current American Water Works Association (AWt/IIA) standards

pertaining to fire hydrants and the requirements of 30 TAC

§290.44(e)(6), pertaining to the location of fire hydrants.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

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

is in effect, no significant fiscal implications are anticipated for

the agency or other units of state or local governments as a re-

• • •

suit of administration or enforcement of the proposed rule. Local

governments with a population of 1,000,000 or more and that

are the regulatory authority for a public utility will be required to

adopt standards for installing fire hydrants adequate to protect

public safety in residential areas.

The proposed rule implements the provisions of HB 3661, 81st

Legislature, by amending §290.46 to require that a regulatory

authority for a public utility adopt standards for installing fire hydrants that are adequate to protect public safety in residential

areas in a municipality with a population of 1,000,000 or more.

The proposed rule specifies the minimum standards that public

utilities must meet for the installation of fire hydrants.

Municipalities with populations of 1,000,000 or more will be required to pass ordinances to adopt standards that meet the minimum requirements of the proposed rule. At this time, this includes Houston, Dallas, and San Antonio. The proposed rule is

not expected to have significant fiscal implications for these municipalities since they are large and the passing of ordinances is

a normal part of their business activities.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first

five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be compliance with state law regarding fire fighting capability.

The proposed rule will affect investor-owned utilities in residential areas in a municipality with a population of 1,000,000 or

more. Individual customers served by these utilities may have to

pay more for service depending on whether improvements are

needed to meet the minimum requirements of the proposed rule.

There are seven investor-owned utilities that own or operate nine

public water systems within the city of Houston's city limits and

one investor-owned utility that owns or operates a public water

system within the city limits of the city of San Antonio. There is

no investor-owned utility within the city limits of the city of Dallas. Most investor-owned utilities are small businesses, and the

fiscal impact of the proposed rule will be covered in the SMALL

BUSINESS AND MICRO-BUSINESSASSESSMENTofthis preamble.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Adverse fiscal implications are anticipated for small or microbusinesses that own or operate investor-owned utilities as a result of the proposed rule. The impact to each investor-owned

utility will vary depending on the need to install fire hydrants, the

need to increase waterline size, and the need to increase capacity and storage. Fire hydrants are estimated to cost $1,550 each.

Waterlines with a six-inch diameter are estimated to cost $18.20

per linear foot, and a ground storage tank is estimated to cost

$1.50 per 1,000 gallon capacity. A small business that needs to

upgrade one mile of line and add a 50,000 gallon storage tank

may have to spend as much as $171,096 in order to comply with

the proposed rule. The eight investor-owned utilities that could

be impacted by the proposed rule may need to file rate increases

to recoup the cost of the improvements needed. This could increase the amounts charged to affected customers.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regUlatory flexibility analysis is

not required because the proposed rule is required to comply

with state law.

PROPOSED RULES January 29, 2010 35 TexReg 573
:..,.--_.." Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

MarkR. Vickery, P.G., Executive Director

..J.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas byReducing andPreventing Pollution

PUBLIC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTER 116

AND REVISIONS TO THE STATE IMPLEMENTATION PLAN

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive

testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 116, Control of

Air Pollution by Permits for New Construction or Modification, §1l6.160; and to the state implementation

plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code,

Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States

Environmental Protection Agency (EPA) regulations concerning SIPs.

The proposed rulemaking would include references to 40 Code ofFederal Regulations (CFR)

§52.21(b)(12), the federal definition ofbest available control technology (BACT), 40 CPR §52.21(r)(4),

the federal requirement that ensures sources or modifications which become major as a result ofthe

relaxation of an enforceable limitation are subject to prevention ofsignificant deterioration requirements,

and 40 CFR §52.21G), the federal requirement to use control technology that is equivalent or more

stringent than BACT..

The commission will hold a public hearing on this proposal in Austin on February 22, 2010 at 10:00 a.m.

in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The

hearing is structured for the receipt of oral or written comments by interested persons. Individuals may

present oral statements when called upon in order ofregistration. Open discussion will not be permitted

during the hearing; however, commission stafi'members will be available to discuss the proposal30

minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the

hearing should contact Charlotte.Horn, Office ofLegal Services at (512) 239-0779. Requests should be

. made as far in advance as possible.

Written comments may be submitted to Patricia Duron, MC 205, Office ofLegal Services, Texas .

Commission OnEnviromnental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512)

239-4808. Electronic comments may be submitted at: http://WYr•w5.tceq.state.tx.us/rules/ecomments/.

File size restrictions may apply to comments being submitted via the eComments system. All comments

should reference Rule Project Number 2010-005-116-PR. The comment period closes March 1,2010.

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

http://www.tceq.state.tx.us/navlruleslpropose_adopt.html.Forfurther information, please contact Blake

Stewart, Air Permits Division, at (512) 239-6931 ..

P.O. Box13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us

printed on recycled pap'" using lOY,based ink
WRITTEN AND 

ORAL TESTIMONY 
Reference Number

W-l

W-2

W-3

W-4

W-5

W-6

W-7

W-8

INDEX OF WRITTEN TESTIMONY

Submitted By

Association of Electric Companies ofTexas, Inc.

Hilliard Emission Controls, Inc.

Texas Association ofBusiness

Texas Chemical Council

Texas Industry Project

United States Environmental Protection Agency

University of Texas et al.

Zephyr Environmental Corporation
MAR, 1. 2010 4:29PM

---- ...AECT _.

ASSOctA'T1Qff O~ BU!C'tR1O

COMPANIES 0 .. TEXAS. INC

Vicki09wa!t

Chair

--_.-._" .. _-- -_.- ----- -- -- -

March 1, 2010

----NO, 7689-P, 1----

w-. -. _.. _.- --- --_._--------- _. - - ---- - -- - - -

Jnlm W.P.mto;.Jr.

Presi<lmt 6c CBO

PatriciaDuron

MC205

Office ofLegal Services

Texas Commission on EnviroJ1tl1ental QualitY --- - -

P.O, Box 13087

Austin, TX 78711-3087

Re: Proposed revisions to TCEQ's Prevention of Significant Deterioration

(PSD) Rules; Rule Project No. 2010-005-1l6-PR

DearMs. Duron:

AEPSWID'CO

CenterPomtBrIerlY

EntergyTexas

Lul!liMnt

NRGiexas

Oncor

Reliant Energy

'rxuEnergy

1005 ~esci Suite." 600

Austh" T"xll5 78701

Phone: (512) 474-0'725

Fax:(512) 474-9670 WWW....QC.tn.-t

~E't't.net

'The Association of Electric Companies of Texas (ABeT) appreciates the

opportunity to submit these comments the proposed revisions to TCEQrs Prevention

ofSignificant Deterioration (PSD) rules.

AEcr is an industry trade association representing electric companies in

Texas. Organized in 1978, ABCT provides a forum for member companies'

representatives to exchange information ontheir industry, andto communicate with

sta.te and federal governmental officials.

ABCT supports TCEQ'6 overall efforts to address EPA's request for

revisions to TCEQ's PSD rules to make them. more closely track the federal PSD

roles. Specifically, ABCT supports TCEQ's statement ill the preamble to the

proposed revised rules that the TCBQ'$ prior inadvertent deletion from the TCEQ

roles ofthe reference to the definition of "best available controltechnology" in 40

CFR Section 52.21(b)(12) did not result in TCBQ circumventing Federal New

Source Review requirements or allowing a BACT review to be "conducted that

resulted in a technology that is less than BACT" (as defined in 40 CPR Section

52.21(b)(12)). ABCT also supports TCEQ's statement in the preamble to the

proposed revised rules that in spite ofTCEQ'S inadvertent deletion from the TCEQ

rules of the "relaxation of enforceable limitation" provision in 40 eFR Section

52.21(r)(4), TCEQ has continued to ensure that "if a project becomes a major

source through the relaxation of enforceable limitation, PSD review is required",

ABCT requests that TCEQ include similar statements in the preamble to the final

revised rules.

In addition, based on the foregoing statements, ABCT requests that the

TCEQ include statements in the preamble to the final revised rules that state that:
MAR. 1,2010 4:29PM NO. 7689 P. 2

-----a..AECT

ASSOCIATION OP IiLI!CTRIC

COMPANIes 0 ..'T'EXAa. INC

Job1'l W.FAIn~, Jr. Presi~t.k CBO

Walton 1.. 8amn.m

Executivf VlCe Pluidftlt

MemberCnmpnnles

A"f!P SWEPCO

Centl!tPointEntorgy

ElPasnmt'l:trlcCompany

ElCt'lon Generalion

NRCTtxa8

XcelE.neqy

1005 C::~lngre'n, Su1~ 600

Austin, Texas 7&701

Phone: (512)474-6"'..5

Fax:(512) 474-9670

www-.aect.nl!t

fn(oOlaecLIIet

the rule revisions will not change how TCEQ will conduct BACT reviews for

current or future PSD permitapplications,

the TCBQ'S PSDprogramhas beenSIP-approved, and

• the rule revisions do not support an argument that any BACT review conducted

for any PSD permit that was iS$u~ before the role revisions become effective was

inadequate or invalid.

ABeT appreciates the opportunity to submit these comments. If you have

any questions, please contact KeithCourtney at (512)370-281~~

Sincerely,

2

W-l

S90535v.1467 11
02/08/2010 08:44 AM

First Name: Hank

Last Name: Hilliard

Company/Organization: Hilliard Emission Controls, Inc

E-mail Address: hank.hilliard@purgit.com

Street Address: 3100 Ed10e Street Ste 350

City: Houston

State: TX

Zip Code: 77027

Phone Number: 713-621-3132

Fax Number:

Rule: 2010-005-116-PR

Comments:

There should be an incentive for private companies to develop and market systems

and methods to reduce VOC, NOx, CO and C02 emissions normally released when

complying with TAC 30, 115.541 air emission rules. Currently contractors and

companies that make smaller contributions get no credit or no appreciable credit

for reducing emissions and reducing air pollution.

For instance, when a private service company reduces or eliminates greenhouse

gases they should be able to claim the credits for the emission reduction. At

this time they cannot claim the credits or even get tax exemptions for their

equipment.

There should be a sliding scale adjustment that favors these smaller reductions,

such as if the reduction is tons or more per year - no multiplier because

those are the large sources, but if the reductions are under tons per year -

then each ton has double the credit for C02. This will encourage small companies

to develop systems to reduce emissions.

And if the small companies can reduce VOC emissions then those credits should be

favored at 10 times the normal credit value because those are the emissions that

create smog and interfere with the quality of life.

VV-2
PR< )., BL'S/'\FSS • Pl<()Jl'\A~

W-3

March 1,2010

Patricia Duron

MC205

Office ofLegal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

Re: Proposed Amendments to 30 TAC Chapter 116 Relating to Prevention of

Significant Deterioration (PSD) Review; Rule Log 2010-005-116-PR

The Texas Association of Business (TAB) submits these comments in response to the public

notice by the Texas Commission on Environmental Quality of proposed revisions to 30 Texas

Administrative Code Section 116.160 as published in the Texas Register January 29, 2010 (35

Tex. Reg. 569). We understand the intent of TCEQ in proposing these changes is to revise the

rules for PSD review of air quality permits to more closely track the language and form of

federal requirements. TAB does not oppose these revisions based on our understanding that they

will clarify that current state requirements for review of Best Available Control Technology

(BACT) are at least as stringent as federal requirements and remove any uncertainty that may

exist as to whether these requirements are approvable under the State Implementation Plan (SIP).

The appropriate definition of BACT currently exists in Texas' air permitting rules and was

approved on July 22, 2004 by the Environmental Protection Agency (EPA). Subsequent

revisions to TCEQ rules in 2006 changed incorporated references to federal regulations, but did

not affect the substance or applicability of what is BACT. On the basis of that approved

definition, many PSD permits have been issued by TCEQ and its predecessors that are fully valid

and enforceable.

The preamble to the proposed rule contains language that affirms that the current rule does not

circumvent federal New Source Review (NSR) requirements and does not allow a BACT review

less stringent than such a review as defined in federal regulations. However, the preamble also

suggests that the rule amendment is being proposed to eliminate deficiencies that would prevent

SIP approval and reinstate PSD requirements that were previously approved by EPA. It is the

position ofTAB that no such deficiencies exist and that the definition ofBACT that is applicable

in Texas is at least as stringent as federal requirements. Further, we believe reinstating

incorporations by reference of federal regulations in no way changes the adequacy of current

state BACT review.

1209 Nueces· Austin, Texas 78701

512.477.6721 ·512.477.0836 fax· www.txbiz.org
Page 2

March 1,2010

Comments Re: Rule Log 2010-005-116-PR

Clarifying the applicability of the BACT requirements in Texas to the satisfaction of EPA and

other parties and removing any procedural uncertainty about this element of the state's air

permitting program and its satisfaction of all federal requirements is worthwhile. It is imperative,

however, that in attempting to satisfy these concerns, TCEQ leave no doubt as to the validity and

enforceability ofPSD permits issued under the 2006 revisions.

TAB requests that TCEQ, on adoption of the proposed revisions to Chapter 116, amend the

preamble to delete references to any presumed "deficiencies" relating to the state's current

BACT requirements as well as any suggestion that the reinstatement of PSD requirements by

incorporation is necessary for state requirements to be sufficiently stringent. With thes- changes

we fully support the efforts to clarify the PSD rules.

Your favorable consideration ofthese comments is appreciated.

Respectfully,

Stephen Minick

Vice President, Governmental Affairs
TEXAS CHEMICAL COUNCIL

1402 Nneces Street • Austin, Texas 78701-1586· (512) 646,,("1400 • Fax (:'1~) 646-6420

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March 1,2010

Ms. Patricia Duron

Texas Commission on Environmental Quality

MC205

P.O. Box 13087

Austin, Texas 78711-3087

Re: Rule Project Number 2010-005-116-PR (BACT in PSD Permitting)

Dear Ms. Duron:

The Texas Chemical Council (TCC) appreciates the opportunity to provide comments on the Texas

Commission on Environmental Quality's (TCEQ) proposed revisions to references regarding Best

Available Control Technology (BACT) in Prevention of Significant Deterioration (PSD) Permitting.

TCC is a statewide trade association representing over 70 chemical manufacturers with more than 200

Texas facilities. Our industry has invested more than $50 billion in physical assets in the state and pays

over $1 billion annually in state and local taxes. TCC's members provide approximately 70,000 direct

jobs and over 400,000 indirect jobs to Texans across the state. TCC member companies manufacture

products that improve the quality of life for all Americans. Chemicals are the state's largest export with

over $30 billion each year.

In the proposal, the Commission is amending 30 TAC §116.160(c)(1) by adding a reference to the federal

definition ofBACT located in 40 CFR §52.21(b)(12).1 TCC agrees that the application ofBACT is an

integral part of air pollution control under the Federal Clean Air Act (CAA) and is also a primary

consideration during review ofsources to federal New Source Review (NSR) by TCEQ staff.

'40 CFR §52.21(b)(12) - Best available control technology means an emissions limitation (including a visible emission standard) based on the maximum

degree of reduction for each pollutant subject to regulation under Act which would be emitted from any proposed major stationary source or major

modification which the Administrator, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is

achievable for such source or modification through application of production processes or available methods, systems, andtechniques, including fuel cleaning

or treatment or innovative fuel combustion techniques for control ofsuch pollutant. In no event shall application of best available control technology result in

emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR parts 60 and 61. If the Administrator

determines that technological or economic limitations on the application ofmeasurement methodology to a particular emissions unit would make the

imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to

satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction

achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent

results.
Additionally, the proposal amends 30 TAC §116.l60(c)(2) by including two federal requirementsi related

to the application ofBACT to federal NSR. These revisions are in response to the inadvertent removal of

certain references to federal definitions and requirements regarding BACT as it relates to PSD, and the

permit review regarding PSD review for projects that become major stationary sources or major

modifications solely because ofa relaxation ofan enforceable limitation on the source or modification's

capacity to emit a pollutant.

It should be noted that the appropriate BACT definition currently exists in Texas' rules, as demonstrated

by EPA's past approval of those rules. Texas has issued many PSD permits in reliance on EPA's

approval of its approach to BACT. It is important for TCEQ to continue to affirm the validity and

enforceability of these prior permits irrespective of the revisions designed to satisfy EPA's current

requests. TCC urges TCEQ to strengthen its affirmation of these facts in the preamble of the rule

proposal.

TCC feels that these revisions will create more regulatory certainty regarding BACT going forward.

While the Air Permits Division ofTCEQ currently conducts control technology reviews ofsources

subject to PSD that meet federal definitions and requirements, providing the references will offer more

clarity in the process. Thank you in advance for your consideration ofthese comments. If you have any

questions, please do not hesitate to contact me at (512) 646-6404 or mmcmullen@txchemcouncil.org.

Sincerely,

Mike McMullen

Director ofRegulatory Affairs

240 CFR §52.2I(c)-(k) & 40 CFR §52.2I(r)(4)

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BEI)ING

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WASHINGTON Kathleen E. Weir

TEL +1713.229.2108

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www.bakerbolts.com

ONE SHELL PlAZA

910 LOUISIANA

HOUSTON, IDAS

77002-4995

005580.0135

BY ELECTRONIC FILING

March 1,2010

BAKER BOlTS LLP.

Ms. Patricia Duron

Office ofLegal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

Re: Comments on proposed revisions to 30 Texas Administrative Code § 116.160,

Rule Project No. 2010-005-116-PR

Dear Patricia:

The Texas Industry Project ("TIP") appreciates the opportunity to provide

comments on Texas Commission on Environmental Quality'S proposed revisions to 30 Texas

Administrative Code Section 116.160. TIP is comprised of 62 companies in the chemical,

refining, oil and gas, electronics, forest products, terminal, electric utility, and transportation

industries with operations in Texas. TIP's comments are attached.

For further information, please do not hesitate to contact me.

~~~ Kathleen E. Weir

HOU02:1193361.1
TEXAS INDUSTRYPROJECT

COMMENTS ON TCEQ's PROPOSED PSD BACT RULE REVISIONS

MARCH 1,2010

RULE PROJECTNo. 2010-005-116-PR

The Texas Industry Project ("TIP") submits the following comments on the Texas

Commission on Environmental Quality's ("TCEQ's") proposed revisions to 30 Texas

Administrative Code Section 116.160. TIP is comprised of 62 companies in the chemical,

refining, oil and gas, electronics, forest products, terminal, electric utility, and transportation

industries with operations in Texas.1

W-s

I. Introduction

With these changes, TIP understands that TCEQ's objective is to make revisions

to the prevention ofsignificant deterioration ("PSD") new source review rules to satisfy requests

by Environmental Protection Agency ("EPA") to more closely track the federal language. TIP

supports these efforts. However, TIP believes that it is important to stress the SIP-approved

status ofthe Texas PSD rules as written. Of particular importance is the 1992 EPA approval of

the Texas program as equivalent to the relevant federal provisions. TIP asks that TCEQ continue

to affirm the SIP-approved status of its PSD rules, which supports valid and enforceable permits

issued in Texas. TIP recommends that TCEQ include language in the preamble to the final

revisions to clarify that permits it has issued under the 2006 revised rules are valid and

enforceable.

TIP members participating in these comments are: Albemarle Corporation, Arkema Inc., Ascend

Performance Materials LLC, BASF Corporation, BP, Celanese Chemicals, Ltd., CenterPoint Energy Houston

Electric, LLC, Chevron Corporation, Chevron Phillips Chemical Company LP, CITGO Petroleum Corporation,

ConocoPhillips, DCP Midstream, LLC, Degussa Engineered Carbons, LP, Delek Refining Ltd., Dixie Chemical

Company, Inc., Dow Chemical Company, The Dynegy Inc., Eagle Rock Energy, Eastman Chemical Company, E. I.

Du Pont de Nemours & Company, Entergy Texas, Enterprise Products Operating LLC, Exelon Power Texas,

ExxonMobil Chemical Company, Firestone Polymers, LLC, GB Biosciences Corporation, Halliburton Company,

Huntsman Corporation, INEOS NOVA LLC, Intercontinental Terminals Company, International Paper Company,

International Power, Kinder Morgan Liquids Terminals, LLC, LANXESS Corporation, LBC Houston, LP, Lyondell

Chemical Company, Marathon Petroleum Company LLC, MeadWestvaco Corporation, Merisol USA, L.L.c., NRG

Texas Power LLC, Occidental Chemical Corporation, Odfjell Terminals (Houston) LP, Oiltanking Holding USA,

Inc., Pasadena Refining System, Inc., PL Propylene, Praxair, Inc., Rohm and Haas Texas, Incorporated, Shell Oil

Company, Shintech, Inc., Sterling Chemicals, Inc., Stolthaven Houston Inc., Suez Energy North America, TARGA,

Temple-Inland Inc., Texas Instruments Incorporated, Texas Petrochemicals LP, Total Petrochemicals USA, Inc.,

Union Pacific Railroad Company, Valero Energy Corporation, Vopak Logistics North America, Inc., Western

Refining Co., L.P.

HOU02:1192670J
ll. The Existing Texas PSD Structure Is Federally-Approved

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Texas submitted to EPA a revision to 30 TAC I I6.160(a) and a new section

116.l60(c)(l) and (2) on February I, 2006, as a revision to the Texas PSD SIP. This SIP

revision reorganized the earlier SIP-approved rules.

Prior to the 2006 revisions, EPA approved Texas's PSD structure, including

Texas's approach to BACT. The current SIP-approved rule was adopted by the State on October

10, 200 I, and EPA approved this recodified SIP rule citation on July 22, 2004.2

A. EPA Approved Texas's Approach to BACT

Since 1972, Texas has correctly imposed a control technology review on

applications for an air quality permit.' Section 382.0518(b)(l) of the Texas Clean Air Act

("TCAA") requires that "the proposed facility for which a permit, permit amendment, or a

special permit is sought will use at least the best available control technology, considering the

technical practicability and economic reasonableness of reducing or eliminating the emissions

from the facility.t" This requirement is echoed in Section 116.III(a)(2)(C) of TCEQ's rules,

which requires that "the proposed facility utilize BACT, with consideration given to the technical

practicability and economic reasonableness of reducing or eliminating the emissions from the

facility." 5

The term BACT has been defined by TCEQ in strict accordance with the statutory

BACT requirement in the TCAA. Specifically, 30 TAC § 116.10(3) defines BACT as "BACT

with consideration given to the technical practicability and the economic reasonableness of

reducing or eliminating emissions from the facility." The TCEQ has stated that this definition

shall apply to all uses ofthe term "BACT" in Chapter 116 of its rules, unless the context clearly

indicates otherwise."

Prior to the currently proposed revisions, the Texas regulations have continuously

carved out 40 CFR 52.210), concerning control technology review, which is the federal BACT

requirement, from the Texas PSD regulations. This is true from 1992 when EPA first granted

authority to Texas to administer PSD permitting. As part of the 1992 approval, EPA explained

why the federal control technology review requirement of Section 52.210) could be properly

excluded by Texas under the federal Clean Air Act. EPA explained:

This provision of the Federal PSD regulations has been excluded

from the TACB Regulation VI because the TACB claims that the

Texas Clean Air Act and the existing State regulations have

provisions for application of BACT as stringent as the Federal

requirements in reviewing the permit applications. The EPA

review of the Texas Clean Air Act and Regulation VI (Sections

6

69 Fed. Reg. 43,752 (July 22, 2004).

See TACB, Regulation VI § I(B)(2) (July 5, 1972).

TEX. HEAL111& SAFETY CODE § 382.05 I8(b)(1).

30 TAC § 116.1 I 1(a)(2)(C).

30 TAC § 116.10.

HOU02: 1192670.3 2
116.3(a)(3) through 116.3(a)(5)) have indeed revealed that existing

TACB permit re~uirements meet the provisions ofthe Federal PSD

regulations . . . .

EPA then stated in the final rule approving the Texas PSD program that the

federal control technology review requirement, which requires BACT for PSD applications, was

"not necessary for approval ofthe Texas Program.t"

B. The 2006 Revisions Are Consistent with Earlier Requirements

The preamble to the 2006 revisions to §116.160, in which the incorporations by

reference of 40 CFR 52.21 were changed, demonstrate a consistency with the approach taken by

the State in the preceding years. The preamble explains the incorporation by reference of certain

sections of 40 CFR 52.21 and further states, "[0]ther definitions used for the PSD program or

visibility in Class I areas program are currently in [TCEQ's] rules.,,9

The appropriate BACT definition, therefore, currently exists in Texas's rules, as

demonstrated by EPA's past approval of those rules. Texas has issued many PSD permits in

reliance on EPA's approval of its approach to BACT. It is important for TCEQ to continue to

affirm the validity and enforceability of these prior permits irrespective of the revisions designed

to satisfy EPA's current requests.

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III. Preamble Change

Portions of TCEQ's preamble to the proposed revisions to Section 116.160 are

potentially contradictory, and therefore should be amended. In one paragraph, TCEQ states:

Although these references are currently missing from 30 TAC §116.160,

in its permitting actions, the TCEQ does not circumvent Federal New

Source Review (FNSR) requirements and does not allow a control

technology review to be conducted that results in a technology that is less

than BACT as defined in federal rule. Additionally, TCEQ ensures that if

a project becomes a major source through the relaxation of an enforceable

limitation, PSD review is required.l"

TIP agrees with this statement. The preamble, however goes on to say two paragraphs later:

In an effort to ensure that TCEQ regulatory requirements regarding the

PSD permitting program meet the requirements of the Federal Clean Air

Act and are approvable into the SIP, the commission is proposing the

following amendment to eliminate any deficiencies that would prevent

approval. Because this amendment would reinstate PSD permit program

requirements that were previously approved by EPA as part of the Texas

10

54 Fed. Reg. 52,824-25 (Dec. 22, 1989) (emphasis added).

57 Fed. Reg. 28,093-94 (June 24,1992).

31 Tex. Reg. 519 (Jan. 27, 2006).

35 Tex. Reg. 569 (Jan. 29, 2010).

HOU021192670.3 3
SIP, and because they incorporate by reference the federal rules, this

amendment is at least as stringent as the FNSR revised base program. 11

TIP objects to the implication that there are deficiencies in the PSD program, or that there is a

need for reinstatement of PSD program requirements. As noted above, EPA approved Texas's

PSD structure, including Texas's approach to BACT. Consequently, the implication that there is

a "deficiency" in the rules as currently existing, or that essential PSD terms need to be

"reinstated," is problematic for the regulated community.

TIP recommends that TCEQ clarify in the preamble to the final revisions,

removing the reference to "deficiencies." TIP also recommends a clear articulation in the

preamble to the SIP-approved status of the existing rules, and a reaffirmation that air quality

permits issued under the 2006 revisions are valid and federally enforceable. TIP further

recommends that TCEQ outline EPA's history of approval of Texas's PSD structure and its

approach to BACT. Such a summary will provide greater clarity ofthe federally-approved status

of Texas's PSD structure and approach to BACT.

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IV. Conclusion

TIP supports TCEQ's efforts to satisfy EPA's requests with respect to rule

revisions needed to achieve full approval of all Texas air quality permitting programs. However,

it is important that TCEQ reinforce the existing SIP-approved nature ofthe current PSD structure

and underscore the enforceability of existing PSD permits. TCEQ should clearly state in its

preamble to the adopted rule revisions this fact and remove any implication to the contrary.

***

II Id. (emphasis added).

HOU02:1192670.3 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 6

1445 ROSS AVENUE. SUITE 1200

DALLAS. TX 75202-2733

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MAR 01 2010

Ms. Patricia Duron

Office of Legal Services (MC 205)

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

RE: EPA Comments on Rule Project Number 201o-005-116-PR

Ms. Duron:

Thank you for providing us the opportunity to review and comment on the

proposed revisions to the Texas Administrative Code (TAC) Title 30, Chapter 116.160.

In general, we are supportive ofthis proposed rulemaking, but we would like to provide

the enclosed comments for your consideration.

Please note that our comments do not constitute final determinations concerning

approvability ofthe revisions to the Texas SIP. We are providing these comments to

assist TCEQ in the development ofthe regulations and to outline our expectations should

these rules be approved into the State Implementation Plan (SIP). We look forward to

working with the TCEQ as you move forward in responding to these comments and

finalizing the revisions to the Texas SIP. If you have any questions, please call

JeffRobinson ofmy staffat (214) 665-6435.

Carl E. Edlund, P.E.

Director

Multimedia Planning & Permitting

Enclosure

cc: Mr. Richard Hyde, TCEQ

Mr. Steve Hagle, TCEQ

Ms. Stephanie Bergeron Perdue, TCEQ

RecyciedIRllCyclabie • Printoo wilh Vepetable ON&sed Inks 00 '00'% Recycled Paper (40% PoS\consulller)
2

Enclosure

TCEQ Proposed Revision to 30 TAC 116.160 to Incorporate the Definition of BACT

and Provisions for Permit Review Regarding PSD Review for Projects that Become

Major Stationary Sources or Major Modifications Solely Because of a Relaxation of

an Enforceable Limitation on the Source's or Modification's Capacity to Emit a

Pollutant

Rule Project No. 2010-o0S-116-PR

Background.

On February 1,2006, the TCEQ submitted amendments to 30 TAC 116.160 to EPA as a

SIP revision to Texas PSD SIP. These amendments included removal of certain

references to federal definitions and requirements regarding "best available control

technology" or "BACT" as it relates to PSD, and the permit review regarding PSD

review of projects that become major stationary sources or major modifications because

ofa relaxation ofan enforceable limitation on the source's or modification's capacity to

emit a pollutant. On September 23,2009, EPA proposed disapproval ofthese revisions

to the Texas SIP. See 74 FR 48467,48472, September 23,2009. TCEQ has proposed

amendments to 30 TAC 116.160 to eliminate these deficiencies.

EPA Comments on the Proposed Changes.

TCEQ proposes to revise §116.160(c)(l)(A) to add a reference to 40 CFR 52.21(b)(l2)-

definition of "best available control technology." The reinstatement ofthis definition

appears to satisfy the concerns at 74 FR 48472 concerning the removal ofBACT from

the currently approved PSD SIP.

TCEQ further proposes to revise §1I6.160(c)(2)(C) to incorporate the requirements of 40

CFR 52.21(r)(4) which relate to the PSD review ofprojects that become major stationary

sources or major modifications because of a relaxation of an enforceable limitation on the

source's or modification's capacity to emit a pollutant. The reinstatement ofthis

requirement appears to satisfy the concerns at 74 FR 48472 concerning the removal of 40

CFR 52.21(r)(4) from the currently approved PSD SIP.

TCEQ further proposes to revise §116.l60(c)(2)(A) to cross-reference 40 CFR 52.210),

which implements the definition ofBACT. Although TCEQ has not historically included

this reference in its PSD rule, the proposed addition is proposed because it complements

the reinserted definition ofBACT. The addition ofthe 40 CFR 52.21(j) requirements

appears to satisfy the concerns of a clear distinction between Minor NSR SIP BACT and

PSD SIP BACT.

EPA Related Observations on TCEQ's Three Tier BACT Analysis Guidance

:\temorandum.

As you know, best available control technology is defined in the Federal Clean Air Act as

"an emission limitation based on the maximum degree ofreduction of each pollutant

subject to regulation under this chapter emitted from or which results from any major

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3

emitting facility, which the permitting authority, on a case-by-case basis, taking into

account energy, environmental, and economic impacts and other costs, determines is

achievable for such facility through application of production processes and available

methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or

innovative fuel combustion techniques for control of each such pollutant."

Consequently, it is essential that the Texas PSD SIP, all applicable TCEQ guidance and

forms, and most importantly, implementation ofthe Texas PSD SIP, on a permit-bypermit basis, demonstrate that each emissions limitation established as PSD BACT

reflects the maximum degree ofreduction, unless a rigorous site-specific analysis of

energy, environmental, and economic impacts justifies a less stringent emissions

limitation.

After the 1992 approval ofthe Texas PSD SIP (with TCEQ's BACT guidance

memorandum), TCEQ issued its 200l-revised Three Tier BACT Analysis guidance

memorandum. This guidance appears to have dropped the core criteria, in particular

ensuring that the pennit writers know to review the most stringent control technology

(and associated emission limitation) and provide a detailed rationale ifit were not

selected.

It is our understanding that TCEQ staffhas been instructed to conduct a thorough

analysis ofBACT, including the most stringent available control technology. However,

we have ongoing concerns because TCEQ has not yet revised the Three Tier BACT

analysis guidance to ensure its clarity. Also, the State committed in its PSD SIP revision

submittal (that was approved in 1992) to implement BACT related decisions given

through EPA Administrator orders responding to Title V operating pennit petitions, the

EPA Environmental Appeals Board (EAB), and Federal courts. We are concerned that

the State may not be following through with this Texas PSD SIP commitment. Potential

examples include BACT analysis based on cleaner fuels, Integrated Gasification

Combined Cycle consideration, and BACT for PM2.5 emissions.

First, we request that the TCEQ revise its BACT guidance memorandum and take it

through the SIP regulatory process for adoption and submittal to EPA for approval as a

SIP revision to the Texas PSD SIP. We believe the appropriate time for such rulemaking

is when TCEQ is proposing the NSR and NSR Reform regulatory changes. The TCEQ

then would submit the revised BACT guidance demonstrating how case-specific BACT

analyses will be implemented in Texas when your revised NSR and NSR Reform rules

are submitted to EPA fOT revision ofthe State Implementation Plan.

Further, to ensure transparency ofTCEQ's evaluation and implementation of the PSD

BACT requirements, TCEQ's BACT analysis for each PSD permit application must

detail how TCEQ arrived at its BACT decision and be included in the Preliminary

Determination Summary document prepared by TCEQ permit writers. This Preliminary

Determination Summary must accompany the draft PSD permit sent to public notice.

This should include the technical and economic analyses prepared to support TCEQ's

BACT determination.

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4

In conclusion, we expect the TCEQ to fully implement any SIP approved BACT

requirements in accordance will all Federal regulations, guidance, and policy, including

any EPA Administrator orders responding to Title V operating permit petitions, EPA

Environmental Appeals Board (EAB) decisions, and Federal court decisions.

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SCHOOL OF LAW

THE UNIVERSITY OF TEXAS ATAUSTIN

Environmental Clinic' 727East DeanKeeton Street·Austin. Texas 78705

Phone: (512) 232-2454· Fax: (512) 232-2311

March 1,2010

Ms. Patricia Duron

MC205

Office of Legal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, TX78711-3087

Re: Rule Project No. 2010-005-116-PR, Best Available Control Technology

Dear Ms. Duron:

Please find attached comments on Rule Project No. 2010-005-116-PR, filed on

behalf of Citizens for Environmental Justice; TexasEnvironmental Justice Advocacy

Services [t.e.j.a.s.]: Public Citizen's Texas Office; Environmental Integrity Project; KIDS

for Clean Air, Sustainable Energy and Economic Development (SEED) Coalition; Citizens

Opposed to Power Plants (COPPs) for Clean Air; Multi-County Coalition; Robertson

County: Our Land, Our Lives; Texans Protecting Our Water, Environment and Resources

(TPOWER); Environmental Defense Fund; and Sierra Club Lone Star Chapter.

Thank you for your assistance. If you have any questions regarding these

comments, please contact Kelly Haragan at (512) 232-2654.

Sincerely,
Comment on Proposed Rules Regarding Control of Air Pollution by Permits

for New Construction or Modification

Rule Log No. 2010-005-116-PR

March 1,2010

Submitted on Behalfof:

Citizens for Environmental Justice

Texas Environmental Justice Advocacy Services (t.e.j.a.s.)

Public Citizen's Texas Office

Environmental Integrity Project

KIDS for Clean Air

Sustainable Energy and Economic Development (SEED) Coalition

Citizens Opposed to Power Plants (COPPs) for Clean Air

Multi-County Coalition

Robertson County: Our Land, Our Lives

Texans Protecting Our Water, Environment and Resources (TPOWER)

Environmental Defense Fund

Sierra Club Lone Star Chapter

I. Introduction

Best Available Control Technology ("BACT") constitutes a central

requirement ofthe Clean Air Act. 1 As long as TCEQ's interpretation ofBACT is

consistent with EPA guidance and federal decisions, the proposal to reincorporate

a reference to the federal BACT definition should strengthen the Texas program

and bring Texas' BACT process in line with federal requirements. We remain

concerned, however, that Texas' current use ofits "three-tier" BACT guidance/

results in BACT analyses that are less rigorous than required by the Clean Air

Act, that fail to consider viable control options, and that fail to document the

1 "Comments on Proposed Revision to Adopt New Source Review (NSR) Refonn Rules Project

Number 2005-010-116-PR" from David Neleigh, EPA Region 6, ChiefAir Permits Section, to

Joyce Spencer, TCEQ, Office ofLegal Services (Oct. 28, 2005).

2 texas Commission on Environmental Quality, Evaluating Best Available Control Technology

(BACT) in Air Permit Applications. t,2 (April 2001) RG-383.

1
rationale for the rejection of emission levels achieved by superior control

alternatives. As a result, Texas facilities have sometimes not been required to

install the best available control technology and, as a result, have unnecessarily

and illegally degraded air quality. We, therefore, ask that TCEQ clarify in its rule

adoption order that its three-tier guidance is not applicable to federal PSD BACT

determinations and that federal guidance, court decisions, and Environmental

Appeals Board decisions defining BACT are applicable in Texas.

II. BACT Requirements under the Clean Air Act

The Clean Air Act defines BACT as:

[A]n emission limitation based on the maximum degree of

reduction of each pollutant subject to regulation under this chapter

emitted from or which results from any major emitting facility,

which the permitting authority, on a case-by-case basis, taking into

account energy, environmental, and economic impacts and other

costs, determines is achievable for such facility through application

ofproduction processes and available methods, systems, and

techniques .... In no event shall application of'best available

control technology' result in emissions of any pollutants which will

exceed the emissions allowed by any applicable standard

established pursuant to section 7411 or 7412 ofthis title [emission

standards for new and existing stationary sources].'

EPA's regulatory definition ofBACT is nearly identical to the statutory

definition,"

EPA BACT guidance highlights five essential steps in a BACT

determination:

Step 1: Identify all.control technologies ... Step 2: Eliminate

technically infeasible options. A demonstration oftechnical

infeasibility should be clearly documented .... Step 3: Rank

remaining control technologies by control effectiveness Step 4:

Evaluate most effective controls.and document results iftop

342 USC §7479(3).

440 CFR §52.21(b)(12).

2
option is not selected as BACT, evaluate next most effective

option control. Step 5: Select BACT.s

'This approach is known as a "top-down" analysis. The Environmental Appeals

Board has repeatedly held that while a state BACT analysis need not exactly

follow the ''top-down approach," it must include consideration ofthe same factors

in the same level of detail,"

BACT determinations "are one ofthe most critical elements in the PSD

permitting process and thus 'should be well documented in the record, and any

decision to eliminate a control option should be adequately explained and

[ustified"? The Environmental Appeals Board recently stated:

Not merely an option gathering exercise with casually considered

choices, the NSR Manual or any BACT analysis calls for a

searching review ofindustry practices and control options, a

careful ranking of alternatives, and a final choice able to stand as

first and best. Ifreviewing authorities let slip their rigorous look at

"all" appropriate technologies, ifthe target ever eases from the

"maximum degree ofreduction" available to something less or

more convenient, the result may be somewhat protective, may be

superior to some pollution control elsewhere, but it will not be

BACT.s

Ofparticular importance is step one ofthe top-down approach, in which

the applicant and permitting authority identify "all control options with potential

S Environmental Protection Agency, New Source Review Workshop Manual, B.I-B.9 (October

1990). .

6 See, In re: General Motors, Inc., 2002 EPA App. LEXIS 2 (March 6, 2002); PSD Appeal No.

01-30, p. 9 (..... a strict application ofthe methodology described in the NSR manual is not

mandatory. Nevertheless, in evaluating the rationality and defensibility ofBACT determinations

by permitting authorities, the Board has required an analysis that reflects a level of detail in the

BACI' analysis comparable to the methodology in the NSR Manual.") 7 . In re: Desert Rock Energy c«. 2009 WL 3126170 (Sept. 24, 2009); PSD Appeal Nos; 08-03,

08-04,08-05,08-06, p. 18.

BIn reo Northern Michigan University Ripley Heating Plant, 2009 EPA App. LEXIS 5,8 (Feb. 18,

2(09);PSD Appeal No. 08-02. .

3
application to the source and pollutant under evaluation,"? "[A]ll control options"

includes: (l) inherently lower emitting processes and/or practices; (2) add-on

controls; and (3) combinations ofthe two. 10 The applicant and permitting

authority should consider potentially applicable control techniques from all three

categories. I I "The control alternatives should include not only existing controls

for-the source category in question, but also (through technology transfer) controls

applied to similar source categories and gas streams, and innovative control

technologies.t''" The BACT determination should also consider "[t]echnologies

employed outside the United States.,,13

In step two, "technically infeasible" options are eliminated from those

considered potentially available at step one." This step involves first determining

for each technology whether it is "demonstrated," which means that it has been

installed and operated successfully elsewhere on a similar facility. Ifnot

demonstrated, an option is still ''technically feasible" ifit is both available and

applicable. IS A technology is available ifit can be obtained through commercial

channels or is otherwise available within the common sense meaning ofthe

term." An available technology is applicable ifit can reasonably be installed and

operated on the source type under consideration.l" Ifthe potentially available

9 In re: Desert.Rock Energy Co; at 19 quoting NSR Manual at B.lO.

10Id

II Id

12.jd at 20 quoting NSR Manual at B.5.

13 ld quot.ingNSR Manual at B.5.

14 Id

15 In re: Prairie State Generating Co, 12 E.A.D. 176 (EAB 2005); PSD Appeal No.. 05-05 • slip

OJ). at p. 17.

16Id.

17Id

4
technology has been demonstrated or is both available and applicable, it remains a

potential option. Ifthe technology is not demonstrated and is either not available

and/or not applicable, it is removed from further analysis. 18

In step three, the permitting authority ranks and lists the remaining control

technologies in order ofcontrol effectiveness with the most effective control

technology for the pollutant in question at the top. 19

In step four, the permitting authority considers environmental, energy, and

economic impacts and determines whether the top control technology is

appropriate.i? The cost effectiveness ofthe alternative technologies is considered

in this step.21 A primary purpose ofthis step is to provide a clear justification as

to why those technologies considered inappropriate by the permitting authority

should not be selected as BACT.22

In step five, the permitting authority selects the most effective control

technology remaining.P BACT is then set as an emission limit at a level that is

appropriate for the selected control technology."

ITI. Texas' BACT Determination Process

Rather than implementing EPA's top-down approach, the TCEQ has

issued a three-tier guidance that its employees are to follow in determining

18 Id

19 In re: Desert Rock Energy Co.• at 20.

20 id

21 Id

22 Id

23 Id

24 Id

5
BACT, as it is currently defined.25 The stated purpose ofTCEQ's three-tier

guidance is to "provide instruction and guidance for preparing and evaluating"

BACT submissions to TCEQ in air permit applicarions.f "Written primarily for

permit reviewers," TCEQ's three-tier guidance "establishes the process for

determining the scope ofthe BACT review and defines the process by which the

reviewer determines acceptability of a BACT proposal.,,27

Tier I in Texas guidance "involves a comparison ofthe applicant's BACT

proposal to emission reduction performance levels accepted as BACT in recent

permit reviews.',28 Tier II "involves consideration ofcontrols that have been

accepted as BACT in recent permits for similar air emission streams in a different

process or industry.',29 Tier III is a "detailed technical and quantitative economic

analysis of all emission reduction options available for the process under

review."3o Tier III is essentially the same as EPA's top-down process for

determining BACT, but TCEQ rarely gets to tier three. TCEQ states that its

BACT determination "begins at the first tier and continues sequentially through

subsequenttiers only ifnecessery.?" According to TCEQ. "Tier III evaluation is

rarely necessary," and that "[o]rdinarily, it is in the best interest ofboth the

applicant and [TCEQ] to avoid the third tier of evaluation.,,32

25 TCEQ Guidance. Evaluating Best Available Control Technology (BACT) in Air Permit

Applications. 26·Id. at 1.

27 Id

28 Jd at 3.

29 Id

30 Id

31 1d

32 Id at 4.

6
IV. Texas' BACT Determination Process is

Inconsistent with the Clean Air Act

TCEQ's three-tier guidance impermissibly narrows the necessary analysis

of possible controls required pursuant to the Clean Air Act's PSD program.

Congress created BACT as a technology-forcing measure to compel the ''rapid

adoption ofimprovements in technology as new sources are built.,,33 Congress

considered BACT as "[p]ossibly [the] most important" ofthe 1977 Act's many

technology-forcing measures." By making the first, and only necessary, step of

the three-tier guidance a review oftechnologies that have been previously

accepted as BACT, Texas' guidance fails to achieve the technology-forcing goal

ofBACT. Texas' reliance on emission limits accepted in other permits

perpetuates whathas gone before; emission limits will not keep up with

technological advancement.

TCEQ Guidance states that conducting only the first step ofthe threetiered guidance is appropriate "ifno new technical developments have been made

that indicate additional reductions are economically or technically reasonable.'.3S

In practice, TCEQ has interpreted this as requiring only a look at known

technologies, often only those technologies identified in EPA's

RACTIBACTILAER Clearinghouse, and not the wide-ranging technologies being

developed and implemented all over the country and outside the United States.

For example, in issuing a draft air permit for the Aspen Power biomass-fired

power plant in Lufkin, the TCEQ Executive Director found a BACT analysis

33 Senate Report on CleanAir Act-Amendments of1977, S. Rep. No. 95-127,18 (1977).

34 Id.

3.5 TCEQ Guidance, EvQluating Best Available ControlTechnology(BACT) inAir Permit

. Applicationsat 3.

7

W-7
acceptable despite the fact that it did not even consider technologies that were

already in place at virtually identical facilities in other parts ofthe country

because these facilities were not listed in the RBLC database. This turns the

BACT analysis into a backwards-looking review and establishes emission limits

based on last available control technology.

This problem is exacerbated when applicants in a contested case hearing

argue that BACT is determined as ofthe date of completion ofTCEQ's technical

review. EPA guidance is clear that relevant information regarding technology

developments must be considered up to the date of permit issuancer" Similarly,

Texas law requires that TCEQ permitting decisions following a contested case be

based on the record, which includes all evidence submitted at a contested case

hearing."

The EPA Environmental Appeals Board has repeatedly held that the

failure to consider all potentially applicable controlalternatives in a BACT

analysis is clear error. 38 Even state administrative law judges have raised serious >

concerns about the state's implementation ofBACT pursuant to the three-tier

guidance:

"Although the ALJs somewhat agree that the EPA's top-down BACT

approach may be better designed to be technology-forcing, the ALJs also

conclude that the TCEQ's tiered methodology is the proper method for

analyzing BACT in this case. Although there may be legitimate concerns

with whether the TCEQ's three tier BACT methodology actually ensures

36 EPA Memorandum. "BACfILAER Detennination Cut-offDate" (Jan. 11, -1990); EPA

.Memorandum, "BACfILAERCutoffDate Policy and Recent PSD Appeal Decision;' (Sept. 20,

1992).

37 Texas Government Code §§ 2001.060, 2001.141.

38 In reo Prairie State Generating Co., 2006 EPA App. tEXIS 38 (Aug. 24, 2006); In re Hibbing

Taconite Co., 2 EA.D.838, 842-43 (Adm'r 1989); Inre KnaufFiber Glass, GmbH, 8 E.A.D. 121,

140-41 (EAB 1999).

8

W-7
the technology-forcing purposes behind the BACT requirement, the

methodology has been approved by the Commission in prior cases.

Specifically, this same methodology has been used by the TCEQ in

evaluating BACT at least since 2001, when the guidance document was

issued.,,39

EPA has also indicated its disapproval ofTCEQ BACT determinations

that fail to document the feasibility analysis of all potential control options.t" In

comment letters sent to TCEQ, EPA criticized TCEQ's evaluation ofPSD permits

for seven new coal-fired power plants and requested "the State's rationale for the

BACT determinations, including an analysis ofthe technical and economic

.feasibility of available control technologies.,.41 In a recent letter regarding the

BACT analysis for the proposed White Stallion Energy Center near Bay City,

EPA noted, "when a potential pollution control strategy is not considered in a

BACT analysis, the record should provide a reasoned basis to show why that

option is not available in a particular instance.'.42 TCEQ has routinely made

-BACT determinations without this required step. For example, in the Aspen

Power contested case hearing, the TCEQ permit engineer testified that the TCEQ

process did not require him to document an infeasibility determination for

39 Proposal for Decision, NRG Texas Power LLC for State Air Quality Permit 79188, PSD Air

Quality Pennit PSD-TX-I072, and MACT HAP-I 4 Permit, June 23, 2009, Page 24.

40 EPA's November 27, 2006 comments on draftPSD-TX-I065 (Big Brown Steam Electric

Station Unit 3), draft PSD-TX-I071 (Martin Lake Steam Electric Station Unit 4), draft PSD-TX1066 (Morgan Creek Steam Electric Station Unit 7), draft PSD-TX-I068 (Valley Steam Electric

Station Unit 4), draft PSD-TX-I070 (Lake Creek Steam Electric Station Unit 3), draft PSD-TX1069 (Monticello Steam Electric Station Unit 4), draft PSD-TX-I067 (Tradinghouse Steam

Electric Station Units 3 and 4). (Attachment I). Similar questions regarding the adequacy ofthe

record ofthe BACT analysis were included in EPA's comments on PSD-TX-I138 (Las Brisas),

PSD-TX-I072 (NRG Texas Power, Limestone Electric Generating Station), PSD-TX-1160 (White

Stallion Energy Center).

41 Id

42 Letter "Re: White Stallion Energy Center, PSD Pennit NOs. PSD-TX-1160, PAL26, and HAP

28, Matagorda County, Texas" from Carl Edlund, EPA Region 6, Director Multimedia Planning

and Permitting Division to Richard Hyde, TCEQ Deputy Director Office ofPermitting and

Registration (Feb. 10,2010). (Attachment 2).

W-7
superior control options in place at similar facilities. He stated:

I do not agree with that, and I'll tell you why. We use our engineering

judgment and knowledge of other analyses and what other states are doing

and what we've done previously to make judgments. Ifwe believe

something is economically infeasible, then we will not require somebody

to reprove it ifwe already believe that it is.

The engineer went on to state. "[w]e don't actually have any standards or

guidelines for what we do and don't document. ... So. it's kind of- some

engineers may docwnent more thanothers.'.43 A federal BACT analysis clearly

requires analysis and docwnentation demonstrating that all possible control

alternatives have been considered. and that superior control options have only

been rejected to the extent they are infeasible. TCEQ's three-tier process. as

applied. clearly fails to satisfy these requirements.

To the extent that TCEQ incorporates a reference to the federal BACT

definition in its rules. but does not change its implementation ofBACT to be

consistent with EPA guidance and federal judicial and administrative

interpretations, Texas' PSD program will continue to be deficient.

v. Conclusion

Commenters support the reincorporation ofthe federal definition ofBACT

into Texas' PSD permitting rules. Texas must implement a PSD program that is

consistent with federal requirements. While TCEQ need not exactly follow EPA's

top-down BACT methodology in implementing BACT, the state must conduct

BACT analysis that meet minimum federal requirements. including those

explained through EPA guidance and judicial and Environmental Appeals Board

.43Application ofAspen Power, L.L.C. for a Generating Plant Proposed Permit No. PSD-TX-I089;

SOAH Docket No. 582-09-0636, Transcript Volume 5, p. 688, lines 1-9 (May 8, 2009).

(Attachment 3).

10

W-7
decisions. These minimum requirements include a searching look for all potential

control options and a documented justification for the infeasibility determination

as to any rejected potential control options that would achieve greater emission

reductions than the control selected as BACT. TCEQ's implementation ofits

three-tier guidance has demonstrated that-the guidance does not result in an

adequate BACT analysis. In addition to reincorporating the federal definition of

BACT, we therefore ask TCEQ to expressly state in its rule adoption order that

the agency's three-tier guidance is not relevant-to federal BACT determinations

and that federal guidance should be followed in conducting such determinations.

11

W-7
Attachment 1

W-7
·"....ft~ UNITED STATE8ENVIIONMENTAL PROTECTION AaI!NCY

REGIONS

1445ROSS AVENUE, SUITE 1200

DAIJAS,rx 75202-1l7SS

Wl 1 0 . ENCLOSURE

I·

Mr.RichardHyde,P.R.

DeputyDirector

Office ofPamitting end Rcgjs1retion

Texas Commission on

BDvironmeoIaI Quality

P.O. Box 13087

AusIin, TX 78711·3087

Re: WhiteStallion EDergy CeDIer. PSDPermitNos.PSD-TX·II60, PAL26,8IIdHAP28,

Matagmda CoUDty.Texas

DeerMr.Hyde:

Enclosedis theU.S.EnviromnenIaI. Protection Ageacy(FJ'A)mal'" oftbe.bcmlrd'etmeed pennlt actions. Weperformed this mWysis in lightoftbe lecaJt issuImI:c oftbe

Texas CommiuiononFmiromnental Quality(TCEQ)Response to Comments(R.TC)JegIIIdilIg

this IIIIttcr onOctober 2, 2009. and the upexlming "Hemingonthomerits".lICheduled to beginon

Fabruary 10.2010. Ourcomments focus 011 aspects ofthepermitdOllS thatlIpparto be

inccmsistenl withtberequiremeals oftbe fedezal Cleen AIr Act BIId tbe implemenIfDs

regu1aIions, including lhc federally-lIJIPIOved TexasSIIItc Implemeotatioo PIao(SIP).

lfthe i_dcaI1ed inthisletter_ not8JlPl'OPl'iatel nepondecJto by 1'CBQ prior to

flnal molulion oflbis penniUing lICtioo, EPA_y llllIIsider usiDg Clean Air Act 8IIIbori.tiIllI to

object to thesubsequeDt TItleV operatingpermitb thisfiIcllity. or otherremedies IIDlIertbe

stalIIto. Pleue conllUlt me at (214)665-7200. or JeIfRobimJonofmyltllffat(214) 665-643'.if

yousbould have anyquestiom c:onceming thismatter.

CarlE.F.dluDd, P.E.

DiRlctor

MultimediaPIarInins

andPermitliDg Dimon

EDclosure

00: TCEQCommissioDOlll

MarkVickery. TCEQExecutive Dim:tDr

SteveHagle, TCEQ

___·_I ""'_ _OI.. (UAL)• __......-. ... _,.,..-._~ _

I

1

L AlrOwUtt 1m...ApInIa

WeCOIIlInlIIltIllon thedraftpemIitb tbepropoeecl WhI1e StalliollfiII:ility on AprilI4.~. Tn

tbeExcculiYC DI!ec:Ior's zespome to ccmmentI (R.TC), tbeTCEQdII8plOdwflb. ourIXl1IIIIleIItI

thatphotocbaDicalmodelingb omae WIIS IIIlOlIed to dmoonslrate that lhc JIlOIlOII&'d sOurce

wouldClIUIIO or contributf: to violation oftheNatioll81 Ambient AirQu81i1y S1mdards(NAAQS).

TCEQ abo dilllplld withourlXlIIIIIIIcat thatthe-1IIIlIJ,alsperformodby the eppliClllll wu

in diJect cODfIiGt withNOxeoatrolstntegles developedto ftJduce ozooe intbe IIClIIby Housioa, ..

Oalwatoa.Bnzula (HOB) lIOIHIlllIinmen _ TCEQ indiCIIed iflll ewluatioD of0_

ImpICII on a lIIlIHIIaiDm_uall ueeded,thatthe SlPpocasIIbellsuited for

such III eva1uatioD. you _a-. 40 CPR f '1.165 -''1.166 requinie pennitting

IIIthoriIiesto cIcmoaIInIte !battbeJlIOPlIlIed 80IIIllC w1UDDt CllIiIIlor coaIi1.....to ~o1atioo ofthe

OZOIID NAAQS per40 CFR. 52.21(1:). Howeva:. siDcc·this&ciliQ' iJ pIlJpll8ed immedillldy

0lIllIicIe tbe HOBnon-attainmeat-.we to beIie¥cthat~ air quBIity.

mocIelina III1IIt be 00IIducted to clalrly ciemonatJate thatlhc Jll'I!iect will not IJClI,lIdftIy iDip&ct

ozoneconceatratoDs at spocific monitDrI in tbeHOB-.

TheTCEQ• statedin i13 RTCthatEPA bas DO pre&m:dmodel to detmmine imp.:1lI fiom a siDg\el101lICC; 110requirementforphotochemical modeling;end110 requirement for lIpplicant to

coDductJqionBl_llIllI1y11a. OurPSD rcauJatons at 40 CFR. § '1 Appondix W '.2.1

RCOIIIIDeIld modellforCYlllIIlding OZOIID iIIIJlBlD SpecIftcaIIi. cootroI.geucies with

juri8dIctioi1 OWl'__with0Z0IIIlprobI__eIIOO1Il'lIJCld to UIIepbotoc:bemical gridmodels

lIIICb 8lI ModeIa-31CommlDlityMuIti-scaIe Air QuIIity (CMAQ)mocIoIinI System to eveIuatIi tbe

te1ationsbIp pIeClIIlIOrspcclcsendClZll& In our April 14.2009 COIIIIIllIIt JottIIrto

TCBQ ontbecIrIft permitwe BIeo diecuslIed po1eDlillI1ywga CAMX1.-l_ysla, eJnci

TCEQhumWtipleepisode dat8basesthat eva1uale 0Z0De IeYeIs in tile HOUItDD &rea. Appeadlx

W'.2.1 abo mlOlIIIDeIIds thatpmnitdng auIborities comuItwithEPA011estimating tbe impBcbI

of incIividual _ to cIelermine themoatsuitablo IlpIll'Cl8Ch lOr eetiiDatlac 0ZIllD0Impatts011a

-tJr-bali&. In aD cdfort to delaminodlattheptiipoIod iICIlRe will Dot _ or

contn"bule to en airpo1ludon in violationof_ NAAQSIlaacIerd,webaveoffend to 'WOI'k em

a modcIlngprotocol withTCEQfor thisfilcility. Todale,D8itberTCEQnorthellJlPlicuthave

electedto coasu1t withneon UIIeofa modding protDcollhat wouldesIimatc potential ozilrie

impaclI&om thepopolICd IOQICOdapitll EPA'sdirect c:ommenltoTCEQem tbillIIatIer.

In addition, thoTCEQ RTCeJqlIeaed concern thattbe lICOJlO of1bomodo1iDg aDduaociated

moiewrequired for mu1tlp1o epiIOdeIlDIl moaiwn (and poteatla1 control-nos forIII)'

IIIIIIIitms CIIIftIIdy allow tbe -1laDdaM) wouldbe coatly, tab up loaY"8J'to 0IimpI..aDd

atill DDtproYIde iIdimnation to cIeftniIift1y addraaEPA's-.aiDce the EPAcIoeeDllt

baft en wtabIlsbed Bipificant Impact IeYeJ. (SIL) for ClZll& 0IbripomUtBpJl1fcanla and

pmniaiDa IIIlIIoritlesin RetIion 6 (mcludina TCBQ)havewoibclwithneto ecmduct

pbotocIIaDIcallIIOdBIing to demansIrate that apuJIOBllllJlll1lCwouldDiJt _ or c:ontribuIe to

a vio1atioo ofthe omne NAAQS. n-pI'lJjclca havetypically 0IIIytabma ""IIlOIIIhs to

'-J

I

I

I

I

I

j

j..

i

i·

!

r·

l

l~

t
conduclt lIIIdthecost, wbc:n.COD1nc1or ha been 1IIeCl, isminimlII withIIIlIIIt ..ysesCOIliDg leu Ihao the othercriteri.poDubaII: JIIClCieIiq.

TCEQalso 9IaII:d thlItEPAcIocs DOthave • requirement for pbolochamieal modeIina orSIP

IIIlainmeDt cIcmoostmiOD IIIOdeIiDa ta:IIDiques AIrNSRpermitting for sources ofVOC

orNOx witbiD 100end 200Idlomctas, raIplldivelyof~pm:ursors oullide. DClIHIUlIiDmlII

lIIQ. HO_,lbeTCEQha dew10ped multiple_ SIPswbcreIOll[l:eS ofNOx,!haI_

at leastI()()'200 km ouIlIide1beDOD-8l1IIiDmeat areas, havebeen COIIIJoIIcd to yieldozone

de=ases inthe nOlHtbllmnmt __ (DFWIDd HOBSIPsin2000f200I, DFWSIP2007).

TCEQalsocommented tb8lwinds wuuldDOttransport the JlIOpclIed source', emiasioua to the

HOB non8lfaimnentmea. butODDIideriI:Pg the proximityofthe lIOUnleto the HOBarea, we IIIC

concemcd because prDVious rnocIeIiDg episodes have hadmultiple cia,. with windsflomthe1IItlSt

thatcouldtnmsport emissions towardsthe HOB noDllttainment lIIQ.

We remain edremeIyoolKlllnJed &bout the TCBQ pidance rcfaaIcedby 1beIIpJI\icaat in the

Modeling Report!haI_submiu.t IS 10 ..",,'ment ofthll0E0!lIl impBcts &omthe

!IllUIlle in its PSDpermitapplkatlOlL B88ed on1beIeSIIIla oftbisgulclllllee. TCEQ IBId 1be

applicant cIeIamined that theJlIOject is "ozone DCUtrI1." In thep8SI, TCEQ _ relied upon!lip

NOxredul:lionsto decrease _levcla in ozone SIPsfortheHOBend DFW_ The

cumut TCEQIIpJlI'C*hfor thiI permitreIica uponllCieDCll!hal_lhat1be__to

emitvOCa at.sufficient lew! to cbemicaIlyreactwithtbesource',NOx emissions to &eaer8lc

07.0De. Wedisajpee !halVOComiuionshaveto be c:o-cmitted Itthe10_to CllUlIOimpaccs on

oumelove1s. AJthouah TCEQ indicIred this umIyJisisDOtbaled011the Sc:heID PoinlSoun:o

Screening Tables fordeterminingozooe IDIbicnt Impacts, the approech lad ildl!rptetldioD does DDtclearlyd.emoostnde tbatthe IOWlle wiD DDt__Iy impact control stndegiescIl'IveIoped ttl

reduce _ inlbe HOB -. TCEQ and1IIe applicants should tJtilim.

technically appropriate modeling tedmique lIIIdIbonldworkwithlIII em IICCOrdI8:e withPSD

1eguiali0llll1Dd Appendix W) to determine wbetber • poteIIIiaI Impact &omthis 6ciIity woaId

CllUlIOorCOIIfribute to • potential violaliouoflbe ozone NAAQS IIIlmdards orImpICtI onDelIIby

IIllIl-8llIIinmareas. TCEQbq DOtpRlvided111• demoostmtion tb8lthisfiIciIity wiDDOt

nepdvely Impactozone lewisinMstasonJa County orthoHOB non-attainmeat area. Ifsuch

modeliDg bq been preparedby1beapplicant or TCEQ,we~uest tbItit be made available to 111

end lbe public forreview.

Do P!aptJrickAu....i1itt Llgdt (pAL)

SinceEPA_DOt approv= TCEQ'sPALprovisiOllll intotheSIPendproposed disapprovaJ of

IlUCh JlIOvislOllll onSeptanber 23,2009,(74FR48474), lOyPALpermitissued by TCEQ ttl.

newmajorslBtIoaary source may be oo.nsidered • DOD-SIP-appvved permitby EPA. We

identified in ourFedcnl Registaonotice1hatPAL permilll canoaIy be Iaued ttl ~m&jor

Slationsry lIlIUllleS,whiI:h pndudes applicaba1ity oraPALto • newm¥tt staliOlllll}' -..:e, 81

required lDIder 40 CFR§§ 51.165(1)(1)(i) and51.166(wXI)(i). W"dbout Itleast 2 yearsof

opending history, • potcDtiallOlllCO lib WhileSIaI1ion E.-gy CenIer_ DOtesIabIished lICtIIII1

emissionsto facilil8le devaopmmt of.PAL.

I

I

L

j.

requiredlIDder 40CJ1R It 51.16S(1)(1)(i)lmdSl.I66(wXI)(i). WIthout at leut2 yeIIII or

0JIllIatin& history, • poIeDtiaI_1ib WhiteStallionllnaBYCeaIer _ DOt lL!ItIIbIisbed lICtulII

emislionsttllilcilitlde deve10pmeDt of• PAL.

m ' .......M.UVlPM)t5

We leYiewed theTCEQ's ResponseNo.4 ia theRTC filed011October 2, 2009, reganliDaPMu.

Ho_, we haw CllIIl:eIIIIregardinaTCEQ's relianlle011 die PMIO sunogsIe polk:)'. It is DOW

IIClC8IIlII)' to provide • demonstra1ion ttl supporttho useofPM1o asa IlJIItl8l* for PMu. Tho

applicantsbouId IlIbmit• R:Yised app1ication or demon8lnItionaddressina PM.z.s emlssiOllS. Sa.

111,., LouImU~ Go8 ClIIdEl.ctrie, PelitionNo. IV-200B-3 (OrderonPetition). Tholldditlonsl

information shouldeithersdcbea PMuemissionsdim:tIy or show bow oompliancewiththe

PSD requiIaneDtI fur PMIO wiD_ a 8D acleqllll/Bsw:msate forlIIeIltingthePSD

forPMa.s in 1hisspecificpermit,aftIIrconsIderIDa IDd fIIJ'j remBinins

technicaldIftic:uIlics wi1h conduedna 10 aDa1ysis ofPM.u directly. Thepermit ieConIliniBt

rdIec:t. cIemonslIalion to support 1beuse ofPMlo 81 a 8IJRlI8lde for PMu We have WOIbd·

with other permitting IIIIlboritiesIDdpamitappIiCllllls lID eslabIish m appmprilde PMu

modelingprotocoL H1beIpp&aat cboosa to model forPMz., Impacts dIIectly, please-.tact

UlIto develop a 1Ddhodo1ol)'!haI willensuretbIIt 10appropriate ualysisis perfonned.

IV. I.......GuUlgdop e-biped CydetlGCClCwIdent!tIl

!be TCEQ incIicatcd In its RTC OIl pege 29 of61 in 1beEl=uIive Dlreclor's Response to

CommenIstb8l neitherthe sppIicsnl DIll' TCEQ eYa11J&1ed lOY other electricalpleI8lioD

medJocIs IlIChasIOCC orpulverized COllI (PC) boOen. TCEQ Indi.c8led that inclusion of lace

inthe BestAVlliJabIe CoIdIoI TecImo1ogy (BACl) lMI1U111ion WOU1d RqUire mbsbadislredesign

oftho applicant'sJlIOIIOlIIld facility. Lab::c inthe samercapoose, TCEQ indicatesibatit doesDOt

require a mrlewoflOCC81 pill ofthe BACTJeView for electricgeaeI8lingmIitlI (BOUs).

InItle88t one federalpermitting action, lacewas COIIIidencIID av&n.blci option in1be

BACTIDIIysisfor • filcWty proposed to pendll e1cclridtyfrom. COlli. see PniriCSlale

Oener8ling Compeny (Dllnois). Pmt1Ier,In. dccisioD, theEPAEiIvironmenlaI Appesls

BoaRl (BAD)-.ledthopermitbeCIDsc it did DOt ClCIIdaiD 10 aiIequIlejustificalion for

cxcladingIOCC&om1beMCf1DIi,mfur. C08I firedJIC"i'IrBGU. SeeDeIert Rock Jbqy

Campsay, LLC,PSDAppell Nos.~3 elll. SUp. Op. It76-77(BAD Sqlt. 25, 2009). This

BADdecision _tbllowed in theTiiIe V Olderfor1bepetitionliD1beAmerican. Electric

Power Service Corporation,Solltbwestem Public ServiCe Company Jolin W. Turk order

respondin; to a T'ttle V petition (petitionNumberVI-200B-I), where the EPA

AdmlDistnltorfoun4that the Artanus DepartmentofEnvirollJDelllll1 Quality (ADEQ)

failedto provide an _equate justificationttllUpport IIlI COIlClusion In the PSD BACT

analysisthat IOCCteclmologyshould be eliminatedflom coDSldendion 011 the grnllllds

thatitwould "redefine" Che propoeed soun:e. To meet the eppliCllbIe lepJ criteria UDder

the PSDprogram. a BAcrID81ysIIl for each po1lutlmt IIllI8t coukIer "lIppIicatioD of

production processesor anilable methOds,systems. end techniqoes ...for control ofsncb

poDulllllt." See40C.F.R.II S1.166(b)(12) lIIId 4OC.F.R.§ S221(bXI2). Therefore,

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when a potcntial pollution cootrolstrategy is not consideredin a BACT 8D8lyais, the

IeCOrd shouldprovide a reasoned basisto show why that optionis DOt available in a

particular iutance. We recognize tbatTCEQhas madea good&Ilheffortto lIddn:SIlhk'- COIISi3lenI withpriorBPAdelenninaDons, 80_, in IigbtoftileBAH's__conclU8loDs,

- strouR!y RClOlDmend that TCEQand the permit applicantspceiftcallyaddress 8JI)' IOCC

technologylXInsideratious as a put of theirBACT8D8lysls and provide a reascmed

explsDation consistentwith theBAB's positionto supportany clecision to eliminate such an

option or to excludeIt altogetherfrom a BACTIIIa1ysls forthis proposed8ODl'Ce.

y. BACI' LhII1P Bated DR C1FP lueb

It is UDclClll' if the TCEQorthe applicantconsideredMclean fuels" in its BACT analysis.

Commeat27in the rellpolllle to commentsindieateB that 1XI1D1DClntell ststed that the

applicantand TCBQfailed to comider alternative fuelsto redlll:e emissiom such as using

only PowderRiverBuin (pRB) coal.. TCEQ BtatOd in itsrespo_lbat the"applicant

proposesthe facility to accomplishItsobjective based uponits business deeislom. Th08ll

decisionsincludethe appliClUlt'. choice of fuel.. The appli<:eDt deligned the plantDllna its

choice of fuelsand TCBQreviewtld theapplilllltion as it wullUbmiuecL TCBQ does IKlt

spceifythe type of fuel to usein afOlliIfuel electric: generationplantbecause the cost of

fuel is a primarybuaiDeu decisionl:ODSidera1ion thatis upto the applicantto detelmiDe."

We bellew the TCEQ Ihould analyzetheJlOSlII'bility of c1eaaer fue1s 88.alternative priowy

fuelSllIIICe Inthe RTe. Atlhk time,TCEQdoes DDtiDcIude a tmaaIly approved defiaitioa of

BACTIn ilsState rules, The CIeaaAir Act includesthe tenn "0_fuels" in tbe definitionof

BACTafierthetenn "fuelcleaning." 42 U.S.C.§ 7479(1) •Thus,wheaapotentla1polluliou

controllllDtqyis not eva1uated Indellilla aBACT1IIlI1ysis, theneord shou1dpuvlde a

relIlIOIIed b8sisto showwhythatoption is DDtMavailabIe" in a pBrticuIarinstlIaIle. BPAhas

rccogaizedthat"awi1able" optioos fora partil:u18r facilitydonotneeessariIy bave to iDcIade

optioosthatwould fuadsmentaIly "ndefine" the IOIIR1C propollOcl by1hepermitappIicaat. See,

8.lJ~ In10: Desert Rock&ergy c:omp.y, LLC, PSDAppell No. 08-43 ct at,s1ipop.at 5~

(EAB,September24,20(9). H~, EPAiateIpretB tbeAct to requirea jllSliftcaliOll, baaedon llII ansJ.,silI oftileunderlying admiaistrati'WIl'llCOId for ada permit,to

support a conclU8ion that en optiooIsIIIJt MlMIiIable" ina gIWID case1m thegrounds tbatit would

fimdBmcotally "redefiDe the SllIIIal •M Desert Rock, slipop. at 63-72, 76. Baaed onlhe record

hIlre, it does notIppc:III' thatTCEQbasprovideda l'tlISOIIed expIllII8IIoD cIemoastnIIiDa why1he

optionofosina PRB c:oals is not "available" forthisfacility.

WebelieveTCEQmustclearlyprovidea ratioaaleforwhyutiliziDa fuelsotherthaD IIIiaoiscoal

arJIlIor peUOlemncob, or blendsfromeach oftbc proposed ideDtifted fuelsCOIIIlilIIleI

"redefiDiDa tbc1IIIIIIce", Further, themtioaaIll sbou1d stateifthin III't--no.OD~

orllIIllrgy impaclll fromtheusc ofPRB COI1s (orIllMIl' lIII11Ur pe1rOIeum cob)tbatMIahepiDst

Itsselec:tion 88 BACT.. WeackDowledge thatStstes withSIP-epprovedPSDJlIOlJIIIDShave

indepeadeot dIsc:reIioa andare DOtlICCCSIUiIy requiredto followall EPAplIicira ex

iaterpnltations. See,e.g..57Fed.Reg.28093, 28095(JlDle 24, 1992)•JIcnmcr, 8IateI tbIItfaIue

PSDpermitsIIIIder SIP-approvedreau1lt1lD11l1re required tolXInduct a BACTllIlalysis dI8l ill

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reasoned IIIId &ithful to theitatutory framework. SeeAiaSka Deptof Euvtl Coasllrvation v.

EPA,S40ua. 461,484-91 (2004).

On the questionofwbetherIn optionmay be excludedbecause ItredeIbW:s 1hepropotIlld

so-.1heBADbasdeve10ped ananalytical ftameworltdl8l EPAUBeII to _1bIa'-in its

0WJlpllIIIIitIiDs cIa:ialoos. See,e.a.. PmirieState, slip op. lit 26-37; Desert Rock, slip op.1Il59-

65. SiDIle theBAD bas erticuIated a foundation for its lIpPIOIICh tbat .... upIIeIdby oneU.s.

Courtof Appeals,-llIODIiy recommend dI8lSIP-lIJliirowd Ststes followtho liamewmt

utlcuIated by1heBAD. Welire DDtCODl:Iudlaa that1he"paeot pcnnit1imits do DOtrepraeat

BACT· OIIIy that tbepr-mpamitIllCOId doesDOtappearto puvide a suIDcieulnlIicaileto

demoosIrate 1headelpcy oftbeBACTddmn!lIlIIjoosforthisfaciIit¥. In additiaD,_irenot

cxpresslag a policy preference foruti1izationof a pIltic:ular coaltYPe. excoal tiom aputiI:.ul.-

ooa1 bain. BPA supportsthedevelopmad and uSe of a broad I1IDF offuels8Dd tecbaDlogkis

lII:ItlIIS the energysector includingthose thatwilleasb11l theIDIIBioable lIIIl ofcoal. Oar primIry

coacern is theadequacyofTCEQ'sIeIpoIIBO andrationalefor excladiaa PRBex1hepoaibi1ity

of utiJiziagIowa:sulfurc:oa1 exlowersulfurpetroleum cob • .tbeI oplioas.

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~-JeffRobiDson

Chief

Air Permi.ta Section

Office oftheChiefClerk

TexasCommission on

Enviromneilta1 Quality(MC-IOS)

P.O.Box.\3087

Aostin,TX 78711-3087

RE: Preveotion ofSigoificmtDeterioration (PSD)DraftPennit

BigBrownSteemElectric StaIioD Unit3,PSD-TX-I06S. FIee8tone CoUllty, Texas

ToWhom It MayCcmcem:

Wehave nvift'ed thedraftPSDpermitfortheBigBrowo SteIDl ElectrlcSlatiOll,

located in Freestone CODDty, Texas. We received 11m our officeon October27,2006. Thodraft

permitwasevaluated to ensurecolllistellcywiththeTexasPSDStale Jmplemeolation PIm (SIP)

8lIdFederal C1e8rAir Actrequiremeots. Our\lOIIIIIH!IIU on thepermitareeoc1osed.

Ourcomments iden1i~ a numberofareas of concern thatwen:queet that)OU IIlkkess

priorto Issuance ofthe ftnaI permit Thel!I8joril!lUos includetheState'sBestMailable Control

Teclmology detenoination, air qua6tyimpact 1IIB1yses, pre-COIlSlruclion data applicability and

mooitoring, aodpotal1ial CI_X areaimpacts.

We lOok forwlll'l1 to workingwiththeTex8B Commission on llD.vironmell1a1 Qualityto

resolvelheissueS identified in oUrcommeDlIlIIId to eDllUO that1he draftpennit is conalsleDt

withthe~III ofthoTexasPSDSIP; Pl_c:ontal:tme at (214)66S-7250, or

StepbJmie KordzioCmystaff at(214) 66S~7S20, if)'Duhaveques!i0Dl. Thank)OU for)'OUl'

cooperation.

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~(J uNnEOSTA1E8E~ALPROftCT1ONAGENCY . . REOIDN8

144511OS8 AVENUE. SUm: 1l1OO

i:w.1.As, TX75202-2733

NOV 212()()6

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ENCLOSURE

BestAyaj1ab1e Control TeobaologyCommeD!s CBACD

1. TheBACT anaIyaisin theStatePreliminary DeterminatIon Summary shouldcontain a

detailed admiDistndive record docwnentlngappropriate BACf de1erminations forthe

emissionsoCNOx, S02, Voc, PMIO.md CO. In particular, thel!:is no comparison of

the JlI'OI'I*'d controlunitswith othertypesof controllechnology for EGU. in recentPSD

permitsissuednationwide (withthe exceptioo of a comparison of wet end dry fluegas

desuIfurizatIon for S02 con1rol). TheBACTevaluation p1'llCleIS involves reviewing not

onlytheBPA'. BACfILAERClearinghouse, butalsoFederallStateILocal NSRpermits

acrosstbe CODDtry. Pleue providetheState'slldionatefortheBACTdetenninaliOllI,

including ananalysis oftbe teehn1ca1ll11d economic fessibility of availablecontrol

tecImologios.

2. In partienlar. BPA recommends thatTCEQconsider. permit currentlyproposed byEPA

Region 9111ld a permitrecently issuedbyNevadaandreviewed byEPA's Environmental

Appeals Board. The DesertR,ock, (PeIllJitNo.NSR4-1-3,AZP 04-0I) In northwestem

NewMexico,EPARegion 9 isproposingto establish a NOxlimitof 0.06 lblMMBtu

utilizing SIDIOID Basin sub-bituminous coal in2006. The DesertRockpermit

. appIiCldl.on specifically statesInitsBACTanalysis forNOx,onpage 4-9, Section 4.2.1.5.

that"Noadverse costs,energy.or environmental Impacts havebeenidentified thatwould

preveIIltheproposedprojecttiom con1lnoously achieWIg 0.06 JbIMMBtves a 24-bour

BVenIF.-Thepermitfor NewmontNevadaEoergy, (pmnitNo. AP4911-1349) located in

soutbemNevada, becameeffectne lune 4, 2OOS, with. 0.061 JhlMMBtoemissioo rate

forNOx utilizingPowderRiverBasin IlIb-bituminous coal. Bo1h oftbcse emissfoo rates

8nl24-bourrollingaverages. The TCEQ shouldevaJ1IlIle whetherTXU couldadlieve

eitberoftbese BACTemIssi01lS limits.

TheBACTemissionrate for lead identified byTXUInitsRACTIBACTILAER

Clearinghouse Resultsfor CitiesPublicServices is 8.4xurIbJMMBto(annual

nerage). The leadBACTemissioondepmposedbyTXU Is 1.2x IO-5lbIMMBtu. The

TCEQshoulddiscuss in illlBACTEvaluation whytheemission rate for CityPublic

Service wasnotutilizedin the proposedTXUpermit action basedon 1cclInical and

economic feasibility.

S1Irtap.SlmtdnWP andMJriptI!ll!!!!S!! Emjssions and Ma!fguctjous

Encl_

cc: Mr.BnltHeodricbon

TexasCommission 011Eovinmmenlal Quality

Mr.SteveHaa:Je

TexasCommission onEoviromDentaI Quality

"""'""'_fURL)_ ...._.-.11"" " IJ , dlR.......,••P.-.r...v.-...OI-....on~,.,.......................,

4. EPArecommeDd. that!CEQ followEPApolicy furadcbessing periodsof slBrtup.

lIhutdown, ormaiDtenance emissiOllS (MSS EmlsslOllS inTexes). EPA's longheldpolicy

IsthatBACTemission lImi1ati.ons applyat alltimes. BACf limitsmay notbewaived

duringperiods of JbIrtUp, shutdown andmaintenllllCe. HoWCYCr, wherethe pennitting

authority hasmadean on-the-record de1ermination thatcompliance with BACf emission

limitationsis in1euible dining startup, shutdownand mainleD8DCC, the permitting

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Attachment 2

W-7
To WhomIt MayConcern:

RB: Prevention of SIBIlifiC8llt De!erioration (PSD)DNftPermit

MartinLakeSteamElectric StatioaUnit 4, PSD-TX-107I, RIIIk Ccunty, Tex.s

JeffRobineon

Chief

AIr Pcnnite Section

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BestAvailab!e Cop!rol Tr&'m'ogy Cgrzgnsnp/BACD

I. TheBACTlIDI1ysis intheState PzelimiaaryDe!aminatioo S1IIIIDl8I'Y should contain •

detailedadm1nlstratiw. JeCOrd documentiDa llPJlfVPrlate BACTdctamiaatiOIlI forthe

emissions ofNOll,S02, vee, PMIO, andCO. InpBrticulll,th_ isDO eomperison of

theproposed controlunits withother lypllS of control teclmology forEOUsin recent PSD

permitsiunecJ aationwidc (withtheexception of aCOIDplIIison ofwet 8IIddryfluegas

desulfinizatiOll forS02 control). TheBACTevaluation processinvolves reviewing not

only the EPA', BACTILAER CloariDgbouse, botI1so FedertilStatelLocal NSRpermi"

IICl'OSI thecountry. Pleasepravidothe State'srationale forthoBACTdeterminations,

IncludinganmaIysie oftho teclmical and economic feasibility oflMIilable control

technologies.

2. In partlcu1Il, EPArecommends thatTCBQ consider a pennitculTOlltly proposed byEPA

Region9 anda permit_dyIssued byNevada and m'iewed byEPA's Environments!

. Appeals Board. TheDesert Roek, (pennitNo. NSR4-1-3,AD 04-01)in northwestern

NewMexico, BPARegion 9 is proposing to esteblish a NOxlimitof 0.06 IbIMMBtu

utilizing SenJuanBain lilli-bituminous collin 2006. TheDesert Rockpennit

lIpJ)lication epecificaDy etateIIlnitsBACTlIII81)'1is forNOll, on pege 4-9, Section 42.1.S.

that''No adverse costll, energy,.or euvlronmenlll1 impects havebeenidentifiedtIiat would

JlR'WIIt tho proposed projectfromcontinuously acbieving 0.06IblMMBtu as a 24-hour

awrage." ThePmllit forNewmont NevadaEnergy, (Pmnit No.AP4911-1349) located in

eouthemNevada,becameefl'eellve J1IIle 4, 2005,witha O.067lb1MMBtu omission nile

for NOllutIHzing Powder RiverBaIn sub-bituminous coal. Bothofthese emission rates

are 24-hourroUlng avenses. TheTCEQshouldevaluate whether TXUcouldachieve

either ofthese BACTemissions IlmJts.

3. TheBACTemissionrateforleadidcDtified byTXUInitsRACTIBAcTlLAER

CleuinghoUllllResultsforCitiesPublicServices is 8.4x ItrIbo'MMBtu (1IIIIIll81

average). TheleadBACTemission rateproposedbyTXUis 1.2x Hr'lblMMBtu. The

TCEQshould dIecuse Inits BACTEVII1uation why theemission rate for CityPublic

Servicewas D01 utilizedin theproposedTXUpennitactionbasedon toclmical and

economic feasibility.

Startup. Shutdowp aDd Main!m!!l!!l!! Bmiujons andMalfunctjons.

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UNITED STATD INVIRONIIEHTAlI'flOlECTIONAGENCY REGIONS

1445ROSS "VENUE, SUITE 1200

llAUAS, TX 7&2OM733

Officeoflhe ChiefClerk

Teus CommiIIion on

Environmentlll Quality(Me-lOS)

P.O.Box 13087

AUIlin, TX 78711-3087

Wohiavereviewed thedraftPSDpermit fortheMartinlike SteamElectric Stltioo,

locatedinRuslc County, Texas. Wereceived it in ourofficeonOctober 18,2006. Thedraft

pennitwaseveluated to eIISIR consillleucywith theTexas PSDState Implementation Plan(SIP)

andFederalClearAir Actrequirements. Our COIIIII1f:IllI on thepermit_ enclOled.

OureoDunmts identify aDUiliber of areasof concemtb8twe mpIIt thatyoulIddJeu

priorto iaswmce of theilnst permit ThemajorilllUOl includethe Slate', BeetAYBilable Conlrol

Technology determination, airqullityimpact malysee, pre-conetruction datalIpJ)licabilitymI

mllllitoring, endpotaJtialClass I II'elI impecta.

Welookforward to working withthoTex..Commission onEnYiromnenta1 QulIlity to

re.solve the issuesidentified in ourcommeute 8Ild to ensurethatthedraftpmnit is coDSilllent

withthercquirementaoflbeTexu PSOSIP. PI_conI8Cl mo at(214)665-7250, or

Stephanie Konlzi ofmystafht (214)66S-7S20, if)'Oubave~. Thlllk youfbryour

cooperation.

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Enclosure

ee: Mr.Erik HODdric1csim

Teus ComJirlesion onBnvlromneutal Quality

Mr.SteveHagle

TCJ[u Commiaeion onBnviroJmlllDta1 Quality

4. EPAm:ommends that!CEQ foUow EPApolicyfor addressing periods ofstarIIIp,

shutdown, or maintalanccemissions (MSSEmissions inTexu). EPA's longheldpolicy

isthatBACTemissionlimitations applyat all times. BACTIlmita maynotbewaived

duringperiodsofstartup,shutdown end1IIlIintenanoe. He_, wherethepermitting

IIIIthorityhas made8Ilon-the-rmnd detorminatiOll thatcomplilmce wilh BACTomission

limitationsIsildalsible duringstarIIIp, shutdown and1DIIintmumce, thopermitting --(\I..I.1._.....goor

,.iDI) .......,.....Is.Pd'Md...w..-..OI........,.,..,....,......8'tl~

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·"'-8"· UNITED STATES ENVIRONMENTAL P~cnON AGENCY

REGION.

1445ROSS AvENue.SlATE 1200

DALI.AS, TX 152li2·2733

.NOV 272006 ENCLOSURE

Startup, Shutdownand Ma!Dtenance Emi9sions and Ma!1imcIions

Belt Ayaj1able CojdlolTec:Jmology Co!lll1M!Jlb CBACD

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Of1ice oftheChiefClerk

TexasCommiiIlion on

FnWomnenta1 Qul]ity(Me-IOS)

P.O.Box 13087

Austin, TX 78711-3087

RB: Prevention of SiguificantDeterioration (PSD)Draft Peunit

Morgan CreekSteamElec;trie SllltionUnit7,PSD-TX-I066, MitchenCounty, T_

To Whom It MayConcern:

Wehave mriewedthe draftPSDpermitfortheMorgmCreek SleIDn Blec;tric Station,

lOcated inMitchell County, Teua. We it iiiOlD'officeon October7:1, 2006. Thedraft

pmmit W88 evallIlIled to CIIIItII'e COIIIistJeney Wtih iheTexas PSD StateJmp1emllntation Plan(SIP)

andFede!8I ClearAirAd.J1lCInirementI. Ourcomments on thepennit III'CI enclosed..

Ourcomments identifyanumber ofareas of eoneem thatwe reqnest thatyou adcIrea

priorto issuance ofdle final permit ThemajorisBuea includetheState'l BestAV8I1Bble Control

Teclmology determination, air qualityimpactlIII8ly&el, ambient airqualitymonitoring, lIIId

potential CIIISI area impacts.

Welookforwardto workingwiththeTexasCommisBion onEnviromnentaI Quality to

n!IOlve the illlllll8 identified in ourcomments andto'eoI'IIfe thatthe draftpermit ill eonBilltent

with the requirements ofOteTexu PSDsiP. P1C111eCOllW:tme at(214)66S-7250,or Steplumie

KoJdzi ofmyBtsft'at(214)665-7520, ifyouhan: questions. Thankyoufor}'01ll'eoopcntIon.

~;t~ IeffRobinIOD

Chief

AirPermitsSeetion

BucIOlure

ee: Mr.Erik HeudrieboD

T_Comminionon EnviroDmenta1 Quality

Mr.SteveHagle

Texu Commission on BDvironmartaI Quality

-_nIUIIL/' .....__gov

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4.

TheBACTIIIlI1ysiI in ihe StatePreliminBry Delmnination Summllly shouldcontain a

delldled adminillrlltive mxmJ doeumcntiDg appropriate BACTdeterminations f'or the

emiAioIl5 ofNOx, S02, Voc, PMt0, andCO. In puticular, iherei' no COIl1pIIriIon of

theproposed eonttolunits with other typesof eontrol technology forHOUIinreeeatPSD

permitsinued nationwide (with the exception ofa COIIIJllIrison ofwet and cityfluegas

cIesu1fiJrimion for S02 control). TheBACTeVllualion processinvolves rvviewingnot

only the EPA'IBACTILAER CICllringhouac, butalsoFederalJSlIItelLocal NSRpermits

acrossthe country. Pleue provide the State's ratiouaIe for the BACTdetermlnstlons,

includingan analysisofthe tedml.ca1 andeconomic l'eas\bility of aVlilabl, control

technologies.

In part!cuIBr, EPArecommends thatTCEQCODI1der apermitCllrmltly plOpOlled by EPA

Region9 anda permitn:ccntIy inued byNewda andrmcwed by EPA's Environmental

AppealsBoard. TheDcsert Rock,(permitNo.NSR4-I-3, AZP04-01)Innorthwestern

NewMexico, EPA~eaion 9 ispropOsing to establish a NOll limitof 0.061b/MMBtu

utilizing Sin IuanBasin sub-bitumiDous eoaIln2006. TheDesert Rockpermit

application spceifica1ly at8teIin itsBACT1IIlIlysI, forNOlI, on page4-9, Seet10n 4.2.1.5.

thlIt "Noadvene costs,energy, or environmental impects havebeenIdentified thatwould

prevent theprupoaed project fromCOIl1iDuousIy achieving 0.061bIMMBtu IS a24-hour

-p." ThepermitforNewDIlIIIt NCVlda Energy, (permitNo.AP4911-1349) located in

southem NeYlcla, became effective Itme4, 2005,witha 0.0671br'MMBtu emission rate

f'orNOx utilizingPowderRiverBasinS1Ib-bItumInous coal. Both ofthesecmissiourates

In24-hourlOllingaverages. TheTCEQsbould eYIIluale whether TXUcouldachieve

eitherof these BACTcmfssionsllmlts.

TheBACTemission rateforleadidentified byTXUin itsRACTIBACTILAER

CIcaringhOWlO Results forCitiesPublic8eMcesi' 8.4x I~ Ib.lMMBtu (annual

IVCIBF). The lead BACTemissionratepnlpOSCCi byTXUis 1.2x I~ 1b/MMBtu. The

TCEQshoulddJscuss in its BACTEVllualiOll wilytheemission ratefor CityPublic

Secviee wasnot utilizedinthe proposedTXUpermitactiOll basec1 on technicaland

economic feasibility.

EPAreeommcnd' thatTCEQfollowEPApolleyforaddressing period, ofslartUp,

sbutdown, or maintemmcc emissions(MSSEmissIons inTexas), EPA', longheldpolicy

Is thatBACTcmissiOll limiilItiOllS applyat all times. BACTUmits may not be waived

duringperiodsofstartup,shutdown andmainteDanec. However, w1tere the permitting

authority hasmadein on-the-m:ord determination that compliance with BACTemission

Ilndtalionsllinfeasible during startup, 'hutdownand maintenance, thepcnnittIng

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·~\ ~J UNITED ITATEB ENYlRONMENTAL PfKJTECTION AGENCY

.REGION'

loW1 ROSS AVENUE, SUITE 1200

DALlAS,TX 1Bl!02-2733

NOV 272006

ENCLOSURE

BestAvailableControl Tt'&1mlogy Comments tBACD

3. The BACTemissionrate for leadidentified byTXUin Its RACTIBACTILAER

Clcarinabousc Resultsfor CitiesPublicServicesis 8.4 II: 10-4 JblMMBtu (annual

averqe). The leadBACTemilllion rateproposedbyTXUIs 1.2x 10" 1bIMMBtu. The

TCEQshoulddiscussin ill BACTBvaiuation wily the emissionrate forCItY Public

ServiceWIll DOt utili=!in the proposed TXUpcrmit8Clion hued on tecbnicl1 BIId

economicfeuibility. .

StlIrtlIp. Shutdown andMlIil'l!!m!m!j!!EmjsslonslIIll! Ma!functjons

2. In particular,EPArecommends thatTCEQconsidera permitcurrentlyproposedby EP

Region9 and a permitrecently islUed byNevada8IldrevI~ by EPA's Enviromnentll

AppeIIls Board. The Desert RocIc, (permitNo.NSR 4-1-3,AZP04-0I) iu northwestern

New Mexico. EPARegion 91sproposing10establishaNOx limitof O.06lb1MMBtu

utilizing Sill JuanBasinsub-bituminous coaJ In2006. TheDesert Rockpermit

application'specificl1\y stmsin itsBACTIIIIlI\ysIs for NOx,on page4-9, Section4.2.1.5.

that"No adversecosts, enelIY, or environmental impactshavebeen identified thatwould

preventthe proposedprojectfromcontinuously IChieving 0.061b1MMBta as a 24-hour

average." The pmoit for NOWIIIOIIl NlMIdlI Energy, (permit No.AP4911·1349) loca1ed in

southernNevada, bec8me effectiveJune4, 200S,with a 0.067 lb'MMBtuemissionrate

forNOxutili2lng PowderRiverBasinlIIb-bituminous C08l. Bothof theseemissionrates

an:24-homrollingaverages. The TCEQshouldewluate whetherTXUcouldachieve

eitherofthelc BACTeminionslimits.

Office oftheChiefClellc

Tex:uCommissionon

EnvitomnCntal Qua1ity (MC-IOS)

P.O.Box 13087

AIIIIin,TX 78711·3087

U: Prevention of SilDificant Deterioration (PSD)Dra1t Permits

Valley steamB1ectric S1ation Unit4, PSD-TX·I068, FGIIIin County, Tnu

To Whom ItMayColicem:

Wehavereviewed thedraftPSDpermitfor theVBI1ey Starn Electric Station, 10cated in

FIIIIIin COUIIty, TexIS. Wereceived it in our officeon0c10ba: 27, 2006. The draftpermit was

evl1ua1ed to ensureconsi8leDCy withtheTexQ PSD SlateImplementation P1B11 (SIP)and Federal

ClearAirActIIlCI.uiremen1s. Ourcomments on thepermit areencloaed.

Ourcommentsidentifyanumberof area of c:oncem thatwe requestthatyoulIIldrsI

priorto iulwJ.ceof thefina1 pcmrlt. The majorilBSlJCI includetheSt&le'sBestAvailableControl

Technology detenninatiOll,air qualitY impllCt BIII1)'101, prHOIIIlnIction dlllaappHcabilitY IDe!

monitoring, and po1enlil1 C1aIs I IIi'ea impacts.

Welookforward to woritlDg withtheTexu Commission onBnvinmmental QuIlitYto

I'll8Olve thoi_idelltlfied inourcommentlllld to eII8UIe thatthedrift pennitisCOD8istmt

. with the requirements ofthoTexu P$DSIP. Pleuecoll1lCt meat(214) 665-7250. orStephaDie

Kordzi ofmy ataffa1 (214)665-7520, ifyo1ihave questiODl.. Thank you for)'ll1lrc:ooperation.

~,Jeff RobiDlon

Chief

Air PermitsSection

Enclosure

co: Mr.ErikHcndrickBon

Texu Commission onEnvironmental QualitY

Mr.'Steve Hegle

TexasCommission on Enviromnental Quality

--(IIFIl).....- ... ...........,............._ .......OI~NIII.,~ ~,.......,

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4.

The BACTBIII1yais in the StatePreliminaly Detennina1ion Summary shouldcontaina

delIJi.Ied administrative record docwnenting appropriateBACTdetemlilllltions for the

emissions ofNOx, S02, Voc, PMIO,lIId CO. In par1icular, thereIs no comparilOll of

the proposed coDtroI UllitswithothertYPes of controltechnology forEoosin recent PSD

permitsissued na1ionwide (withtileex:ception ofa comparilOD of wet anddryfluegu

desuJ1\Jrlzldlon for S02 control). The BACTovaluation processinvolvesreviewing not

only1beEPA's BACTILAER ClearIngho1l8e, butI1soFedera1lStateiLocal NSRpermits

ae:ross theCOUIItry. PI_prOvide theState'sratlonIle forthe BACTdeterminations,

includingIIIl11l111yais of tileteclmicl1 andeconomicfeasibilitY of availablecontrol

technologies.

EPAJeCOI1lIJICnds thatTCEQroUow EPApolleyfor addressing periodsofstarlup,

shutdown,or main1mance emissions(MSSEmissionsInTex:as). EPA's longheld policy

is thatBACTemission limi1ations applyat 111 times. BACTlimitsIIIIIy notbewaived

duringperiodsof1lIrtup, shutdown 8Dd mainle!llllce. However, wherethe pcnnittlng

authoritY bu JIIIlde an on-the-record determination that compliance with BACTemIll1ion

limitationsis infeuihle duringstartup, shutdown andmainteDance,thepermitting

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Jeft'RDbinlon

C1ief

Air PmmiIB Section

~;~

Officeof theChiefClerk

TllDSCommission on .

Euvironmontal Quality(MC-I05)

P.t>. Box13087

Ausdit, TX 78711-3087

RE: Prevention of Significllllt Deterioration (PSD)DraftPennit

labcreekSteamElectricStation uiJit 3,PSD-TX-I070,McLemtIll County, Texas

To WhomIt May Conoem:

Wehaverevlewedthe cItIft PSDpermitfor theLake CreekSteamElectric S1alion,

located inMcLennan CoIIJIty, Texll. We=cived itin our officeonOc1ober 19,'-006. The

draftpermit_ evalullllld to CIII8UI!l conli8tenl:y withtheTexu PSDStateImplemea1alion Plan

(SIP)ID.lI Fedaral ClearAir Actrequimnen1l. Ourcomments on thepermitareaJClosed.

OurcoimnentsidentitYanumb« ofareas of concern tIiatwerequestfhIt you8dclm8

priortoi_oftiletlnaI permit ThemajorillUeil include theState',BestAvailable Control

Tecbaology determination, airqualityimpact analyeea, pre-conatruction data appUcabiHty mel

monitorin&·and potential C1Isa I area impIcta.

WelookforwIrd to working with theTn.CommiIIion onBnvimmnental Quality to

raolve the illUesidentified in OlD'COlIIIIleDlB andto ensuretIiatthedraftpermiti, conais1ent

withthe~tIoftbe Texu PSDSIP. Pleasecontact me at (214)665-7250, or

StephmieKordzi ofmyatatTat (214)66S-7S20, ifyouhavequestiOlll. Thank)'OU fur your

coopention:

1. TheBACf lllII1ysis in theSIIIte PIeliminary ))etennination SlIIJIIIIIIl)' sbould COII1IIin a

iIeIaIled administrative recorddocumeutingapproprim BACf detenniDatiolllfurthe

emiJslQIIS ofNOx, 902, Vo<::, PMIO,IIldCO. Inputicullll',thereis DO comparison of

theJlIOPOIlld coirtrol unitswithothertypes of control teelmology furEGUs inrecentPSD

permitsisIIued natiOllwicle (withtheexception of a comparison of IIIld dJyfluegas

desu1furization forS02 control). The BACf evaluation process involvesreviewiDg not

ouIytheEPA', BACTILAERC1earinghouse, but II1so FedmllStateILocaINSRpennits

IICIOSS thecountry. Pleaseprovide theState', raticmale fortheBACTdetenninations,

including an8DIlysia oftheteclmiClliIlld econ<II!Iic feasibility or available control

technologies.

2. In partlcular, ~A recommends thatTCBQ consider a pennit cunentlyproposedby EPA

Rqpoo 9andaPermit recently issuedbyNevada and revieMd byEPA's EnviromnenlB1

Appeals Board. TheDesertRock, (pennit No.NSR4-1-3,AZP()4.() I) in nortJr;vmem

NewMexico, EPARegion 9 is proposing to establish a NOlllimitof 0.061b1MMBtu

utiJizina; SanJuanBalinsub-bituminous coal in2006. TheDesert Rodepermit

application fpeCifiCllily IIlstes in itsBACTanalysis forNOx,on Jl8IlCi 4-9, Section 4.2.15.

tIIIIt"Noadverse costa, energy, or enviromneolal impIcta havebeen identified thatwould

preveot theproposed projectfromcontinuously achieving 0.06lb/MMBtu as a 24-hour

average." The permitforNewmontNBVadaEnqy, (pmnit No.AP4911-1349) located in

8OU1hem Nevada, *'me e1fective June 4, 200.5, witha0.067 IhiMMBtu emission rate

fur NOxtJtilizing PowderRiverBasinsub-bilUlninous coal. Bothoftheseemission ntes

are24-hourrollingaverages, The TCEQsbould evaluate whetherTXUcouldachieve

eitheroftheseBACTemissions limits.

ENCLOSURE

BestAyallab!e ContmJ TecImolQIY Comments <BACD

3. TheBACTemissionrateforleadidentified by TXUinits RACTIBACTILAER.

ClearinghOU!e ResultsforCitiesPubllcServicesis 8.4x 1 lbIMMB1D (annual

1IYlmI&"). The lead BACf emissionrateproposedbyTXU i, 1.2x ur'IblMMBtu. The

TCEQ shoulddiscuss in its BACTBwIoaIion why theemissionrile forCityPublic

.ServiceVIlISnot utilizedin the proposedTXUpermitactionbased on teebniClli and

economic f'eaSJDility.

S1artup. Shutdown and ¥PI.......,...,.. Bmlplnnt apdMaIflmc!lonJ

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. NOV 272006 1.

UMTED stAlB EHVIRONMI!NTAl PRC71'I!CTION AGENCY

REGION,

,..... ROSS AVENUE, SUITE '200 @ DAl.LAS, TX 7520M7S3

Bnclosun>

00: Mr.ErikHendricbon

Tnes CoIlllIlilisiOll onEnvironmental Quality

Mr. Stew HqJe .

Tex. CommiIlliOll onBnviromnaJlal Quality

1__(UlllJo hIp-.- ...

....,. »'tI Wlltv....-OI

..

4. EPArecommends thatTCEQfollowEPApolicyforaddressing periods ofstartup,

shutdown, ormaintenance emiaiQIIS(MSS Emissions InTexas). EPA'slongheldpolicy

is thatBACT emission limitations applyat alltimes. BACTlimitsmay notbewaived

durina periodsofstartup, shutdown andmeintenance. Hcnwver, wherethepermitting

authoritybasmadean on-tbo-record delmnination thatcompliance withBACT emission

limitationsisinfeasible during startup,shutdown andmaintenance,thepcmnitting

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-.....:J
BnclolllI'e

1__(UAlIo ".,_._

_01 -.,.._. Cl__• ...--__-"-

cc: Mr. ErikHendriebon

Texu Commission onBnviromnentll Quality

Mr. Stml Hagle

TexasCommIssion 011 Bnvironmemal Quality

SinClRlyyoun,

~'fh~~ JetrRobillson

CbIeC

Air Pmnlts Section

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EPArecommeads thatTCEQfollowEPApolicyfor addmsing periods ofstartup.

sbutdowu,or mainlmJance emissions(MSS Emissionsin Texas). EPA's long heldpolicy

is that BACTemlssion limitations applyat all times. BACTlimits maynotbewai..m

duringperiodsof startup,sbutdownlllld maintenance. Hawner, where thepermitting

authoritybas made811 on-the-record delermination thatcompliance withBACTemi88ion

limitationsisinfcuible dllring 8l8rtup, shutdown andmaintenance, thepermitting

ENCLOSURE

BenAyaiI!!ble COJIllOl TecJmoloav Comments lBACD

1. TheBACTana\yBi8 In!be SlatePreliminary Determination SIIIIIIDlIIY shooldcon1ain a

deIailed admiDiatrative record documenting appropriate BACTdderminations forthe

emissionsofNOlc,S02, Voc, PMlO,IIIId CO. ID par!lcullll', there isno compari8Oll of

theJll'OPCl'ed COIllIOI uiIits with othe:r types of oonttollllchnology forEGVein recentPSD

pennita 188lIed DIIlionwide (withtheexceptionof a comparison of IIIId dry fluegas

desulfurization for 802 eontroI). TheBACTevaluation proceuinvolvesreviewing not

onlytheBPA's BACTILAER Clearinghouse, but also FedersllStatelLocal NSRpermits

acrosstile coun1ry. PlesllO providetheS1IIte'srationale forthe-BACT determinations,

incIlIdin8 an IIIIB1ysis of theteclmical BDd economic feasibility ofRYlilable conttol

teclmologles.

2. In puticular, EPArecomrneudsthat TCEQconsiderapennit cUImltly proposedbyEPA

Region91J1d a permitrecently Issued byNevada andreviewed byEPA'sEnvironmental

Appeals BOIII'd. TheDesert Rock,(permitNo.NSR4-I·3, AD 04-01)Innorthweslllm

New Mexico,EPARegion9 is proposing to estIbIisha NOlc limitof O.06lbIMMBtu

utilizingSanJuanBaaiD sub-bitmnillOUS coal in 2006. The Desert Roc:k permit

applicationspecifically statesin its BACTmalysisforNOx,on page 4-9, Section4.2.1.5.

that "No lldverse costs,energy, or envlronmenllll impacts havebeen identifiedthatwould

preYeDt the proposed projectftorn continuously achieving O.06lblMMBtu as a 24-hour

average."The pem!itforNewmont NevadaEnergy, (permitNo.AP4911-1349)loca1ed in

southern Nevada,bec8me etree1ive Jone 4, 2005,wftba0.067lblMMBtuemissionrate

forNOlcutilizingPowder RiverBasinSUb-bitumlIlOUS coal. Bothof these emissionrates

Ire 24-OOlD' rolling averaaes. TheTCEQshouldevaluate whether TXUcouldachieve

eitherof theseBACTemissiOlllllimits.

3. TheBACT1lIIIi88lon ratefor leadidentified byTXUiniti RACfIBACTILAER

ClearinghouseResultsforCitiesPublicServicesIs 8.4x I~ lbIMMBtu (lIIlI\uaJ

average). The leadBACTemission rateproposed byTXUis 1.2x 10'sIbIMMBtu. The

TCBQshoaIddiscuss in Its BACf Ewuation whythe emission J1IIlIl for CityPublic

Servicewasnotutilizedinthe proposed TXl:Jpermitaclionbasedontechnicaland

economicfealbiUty.

8tartup. Shutdown mdMwintm"""" Emisajons!!!!l Malfunc!ionJ

4.

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NOV 21 2008

tnI1ED STATES ENYIAONfIWNTAL PRUTEQ\Otl AGENCY

Fll!GlONI

1445ROSS AVEMIE. SUITE ll!OO

DALLAS. TX 15IONT33

Officeof1heChiefClerk. Teus Commission on· .

Enviromncnt8l Quality(MC-I05)

P.O.Box 13087

AUItin, TX 78711-3087

RE: Prevention of SlgnlfiClll1t De1erloration (PSD)DraftPermit

Monticello SltImI E1ectrK: StationUnit4,PSD-TX-I069, TItulI County. Texas

ToWhom It MayCoocem:

We havereviewed 1hedraftPsD permitCor theMonticeBo Steam BleclricStation,

locstedinTIlUI County, TOlW. WeIecelvcd ItIn ourofticeonOctober 18,2006. Thedraft

permitwBs enJuated to IlIIswe COIlBi8fCDCYwiththeT_PSDSlate Implemcmtstion Plan(SIP)

IIIdFedenI1 CleerAir Actrcquimnen1a. OorcommentII on thepermit 1118 enclosed.

Our commenta Idenlify a numberof _II of CODCaII !batwerequeit that youaddress

priorto Issuance ofthelinaIpermit. The lIIII,jfXissuesineludetheState', BestAVRl1able Control

Tecbnology determlnation, airqualityimpactanalyses, data applicability IIld

monitoiins. andpotc:ntial Clau I IIRlR impacts.

We lookforward to worlciDa withtheTexu Commill8ion onBnvIromnental Qualityto

!e8Olve thelaDesIdentified inourcommenl8 IIIdto euame!hatthe draftpermitI, COII8iateut

with the requircmenll oftheTeXII PSDSIP. PleasecontaetlllOat (214)665-7250, or

StephanieKordzi of my8tIlJat (214)665-7520, Ifyouhavequestiona. Thank)'Oll for)'OUl

coopcralion.

@

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Ieff'Robinson

Chief

AirPermitsSection

RB: Prevmtion of SignitiCllllt Deterioration (PSD)Draft Permit

1'nKIinghoUlle Steam Blectric Station Unib 3111d 4, PSD-TX·I067, MclennanCounty,

Tex..

Ofticeofthe ChiefClak

'i'_ CommisBion on

Environmlllltal Qnality(MC-I05)

P.O.Box 13087

AIlItin,TX 78711-3087

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3. ThoBACTemissionratefor'-Iidentified byTXUin itsitACTIBACTIlAER

Clearinghouse ROlIUIts forCiliesPublic Servicesil 8.4x IatIblMMBtu (annual

average). The leadBACTemis9lon rateproposed byTXUis 1.2x I<r' IlrIMMBtu. The

TCEQ should discuss in itsBACT Emuation whythe emission rateforCity Public

Service WIS notutillD:d inthe proposed TXUpermitaction blIsed ontechnicallJ1!I

economic fealbility.

BestAyailable {'mdml Technology Comments CBAeD

ENCLOSURE

1. ThoBACTlIIa1ysis In theStatePrelimiriary Delamination 8mnmary should contain a

detailed administrative record documenting appropriateBACTdetmninations forthe

emiliiOllS ofNOx, 802, Voc, PMI0, aod CO. In partic:uJar, thereIsno comparison of

the proposedcontrol unib withothertypesof control technology forEOUsinrecentPSD

permitsinuecinatiDDWide (withthe exception ora COIIIJllIrison ofwet and dryfluegus

desul1iuization for S02 con1J1ll). The BACT evaluation processInvolves reviewing not

only theEPA'sBACTILAER C1earina1Jouse, butalso FederalIStateILocal NSRpermits

lCl'Oas thecountry. Please provide theState'lllItiOlll!e for theBACT detmnlnatiOlll,

includinglID analysis of the technical andeconomic feaibility of IMilablecontrol

tcelmologies.

2. In p8Iticular. EPAJeCOmmends thatTCEQconsidera permlt cunentJy proposed byEPA

Region9 IDe! apermitrecently Issued byNevadaandreviewed byEPA'IEnvironmental

AppealsBoard. The DesertRock. (pennitNo. NSR4·1·3, AD 04-01)in northwestern

NewMexico, EPARegion 9 isproposing to establisha NOxlimitof O.06lb1MMBtu

utilizingSan JusnBasinlU~bituminoUl coalin2006. TheDesert Rockpermit

lIppliClllion specifically statesin itsBACT analysis forNOx.on p&ge 4.9.Section 4.2.l.S.

tbIII "No adveIlle coltS, eneJIY, or environmental impactshavebeenidentified thatwould

preven1 the proposedprojectfromcon1inuolllly achievingO.06lb1MMBtu lIBa24-h01D'

average."Thopermit fur NewmontNevadaEnergy,(permitNo. AP4911-1349)located in

IOUthem Nevada,bec8me effective June4, 2005,witha 0.0671bIMMBtu emission rate

forNOllutilizing PowderRiverBasinlIIIb-bItumInous coal. Bothofth_ emission I'IIteS

lml24-l101lrrolling averages. TheTCEQshould eYI1uate whetherTXUcouldachieve

eitheroftbese BACT emIl1iOlll HmIts.

StIrtup, SlmtdqvmmdMm.,.BmiMions andMt1faJnetkg

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NOV 7 tuw

UNITED STAllS ENVlIlONlENTAL PAOTEC11ON AGENCY .F11!01ON.

1441ROSSAVENUE, SUm: 1200

DAI.lAS, TX 75l!OM733

ToWhom It MaY Com:em:

Wehave reviewedthe draftPSDpermit for thoTradingbollNSteamBlllClric SI8ti.OII,

located inMcLenna1t County, Texas. We receiwdit in our officeon Oelober19,2006. The

draftpermit_ evi1uafed to lIIISIIJ'II coneiltmcywith theTllXas PSOSteteImplementation PIIIl

(SIP) IIldFedcra1 ClearAirActrequ!rementl. Ourcommcnb on thepennit lmlenclosed.

OurcommenteidentitY aIIIlnIbeT of areal of concern thatwen>quest that)lOU Idcbss

priorto illllllllllCe of the ftnaIpennit. The majorissuesincludethe Stall\'1 BestAvailableControl

TecbnolotlYdetermination, air qualityimpactao~ pre-construction cIaIa appHcability aod

monitoring, andpotentialC18l11 I aresimpacb.

We look forwmdto wotkingwith TCEQ to resolve the issues idantified in ourcomments

IIId to eDIIUnlthat the draftpermitil consistentwiththe oftileTexasPSDSIP.

PI_contactme III (214)665-72S0, or StephmieKordziofmy smffat(214) 665-7520,if)'OU

havequeationa. 'I1umk youfor)'OUr coopera1ion.

;c.....,.

-.'~

Enclosure

00: Mr.ErikHendricksoil

Tex.Commillion on Enviromnenla1 Quality

Mr.Steve Hagle

TexasCommission ()D Environmental Qua1ity

4. EPArecommends that TCEQ tblJowEPApolicy fOr addressing periodsofllartUp,

shU1down, ormaimcmoonmillllkms(MSSEmissiODS in Texas). EPA'slongheldpolicy

IstIIldBACTemissionlimitationslIpply at all times. BACTIimi1B maynotbewaiwd

duringperiods ofIIIIrtllp, shutdown and maiDteDance. Ho\YeYel', wherethepemtitting

authority1uIs made m on-the-record determination thatcolDJlliance withBACT emission

limilationsls1nfeaSJ'ble duringIlarlup, lhutdown andmaintenance, the permitting

_-.. (URL) .- _

Rees.....d ....JltlMldwlb-......OI AIqdIcI .,.,........

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Attachment 3

W-7
/

.. W-7

VOLUME 5 SOAH: 582-09-0636 TCEQ: 2008-1145-AIR 05-08-2009

686 68B

Ri'ih.t. We do, ye!l.

And • collPlo of othor thinqs.

s lIP,.....

Your Honor, MY I

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lSI projects tbat ..y have been P4aai.tted bot MV. not yet

20 been bUilt?

T Ji 11•

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JODG& 1WlOS: Ye'.

(Exhibit &D se, 16 ...rked)

(BY MS. BROIIIIlNGl IIJ:. "_9he., I boY. bonded

Yea, I alll tamiliar with this docUIMlnt.

Can you tell UI what this document Is1

It is • final rul...kln9. It'. in tbe

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14 you. docu ..nt. Do you lecovniz.. this dOcuMnt?

10 &pI)l'o.ch the witn•••?

11

12

13

15

16

11.

18 Federal ae9iater frca June 24th, 1992. It'. the tillal

19 rul.....1t1nv on approval and pramul,ation of the

20 bIplementation plan of the state of tex•• of the

21 pEe.entlon of alqnlficant nt.rior.tion.

F J\ • I

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And wben you look at ezl.t1Dg permits .1 part

If the...i ••ion limit& are considerably 10"'1'

-- how do you conllder pemits that may -- or

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21 A

11

18

23 and accurate copy of this dOCUflent?

22 than what perm1tJ - tor plaata that we know ara

23 operatinv, then we look at it very closely. It the

24 pttE'1l1t is ...)'be 101lelr than typical, b~t not that

25 lover, then. we sort of ••au.. tbat tbat'•• -- _cae

22

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25

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ADd eeee this .~.r to be • true, cc:aplet.

It·. does appear to be ee,

ADd would this document ba ac.etblng that you

681 689

1 ilnprovelMn.t in technol09Y and sometimes ..ybe • -.nlque 1 "oDld nODU.lly rely on in the COUI•• of revieviD9

2 situation. 2 something -- peElnit8 at TCEQ a. backqE'Ound .... t.rl.1?

12 I vou.ld lite to acllll1t this a. &0-11.

10 as, in addition to our v"idance docu.e,Dt tut ve bave.

4 o"t the vreate,t significance of tbis i, EPA responds

S to several cOIIIIlents in the preamble to this ,

lIS. BROWNING: Your Honor, at this t.ime

I would. This docUlHnt bas -- I "ould point

Okay.

they discuss the Tier 3 pl'oce•••

Okay.

So we do rely oa this dOCWIWnt to help quide

A

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6

7

8

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11

=. bother• 4 •

1 situation would be if tMy're trY1nv to meet - rather

8 than BACT they're trying to ...t "hat we call, LAta,

9 L-A-E:-R. and lay if yo,,' re in a nonattainment area for

10 oz.one, tben you would have to _et a IIl.lch lower level

11 of I\itroven oaides tban you would in a regalar 'so

12 per."it because of the -- that· a an o:r.one precur.or.

14 applicant could have jUlt aqreed to that. The

15 applicant Ny be: puttinv on llnul"a11y effective

16 control devices that are more expenlit.te either for

17 their - jUlt their own puxposes 01 they could be

18 tryil\g to qet eredits. Many ,tatel bave credits for

l' lower ellis. ion rates.

20 Q Okay. Ho:; Xl. "qiiG., Ii Jdb 46 c: 5o;a,

21") L t j a ilia SliMier'S i.CAlIiO iii ;8!r

22-=riy,a£ci: de " g £ ••• i sl. t"

23 saId JOE haw !ieutJ'I!Lt?

24 A A1rOb8lblY voula have docUlHnted it inUfhe

17 Nx. Valdivia a,ked you abogt the P50 proeJra.

18 requirecaents.

21 requirements in TeJl:as? Can you tell us -- I'm sorry.

22 Is that que.tio., overly broad?

JDD<;& \IAHOS: ADy objection?

It will be .dmitted.

(i:ah1bit &D Mo. 16 odDitted)

(BY MS. BRONRIW;I Now, MI. HUVbe"

lIb.at can you tell us aboat the 'so pr09rUD

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KENNEDY REPORTING SERVICE, INC.

512.474.2233
W-8 ----------------------------'

consulting

March 1, 2010

Ms. Patricia Duron

Texas Commission on Environmental Quality

Office of Legal Services, MC 205

P.O. Box 13087

Austin, Texas 78711-3087

+ training + data

Re: Rule Project Number 2010-005-116-PR

Prevention of Significant Deterioration (PSD) Requirements

Dear Ms. Duron:

On behalf of several clients, I am submitting some brief comments concerning the proposed

changes to 30 TAC Chapter §116.160. These comments relate to the re-adoption, by

reference, of the 40 CFR 52.21 (b)(12) definition of BACT and the new adoption, by reference, of

40 CFR 52.21 U) related to control technology review.

We understand that the proposed changes to §116.160 are solely for the purpose of restoring

definitions that were previously inadvertently deleted or not originally included. It is also our

understanding that the adoption of these definitions into §116.160 will in no way be interpreted

as changing the PSD permit review procedure or requirements as they have historically been

implemented in Texas under the EPA approved PSD program. We request that TCEQ confirm

this understanding in their response to comments.

Specifically, BACT reviews have historically been performed and accepted by EPA using the

Texas Three Tier BACT Review procedure. In the fiscal note section of its rule proposal, the

TCEQ states that "The proposed rulemaking does not impose any new requirements and does

not increase costs to any requlated entity." Based on this information and previous EPA

program approvals (e.g., June 24, 199257 FR 28093), we understand that the Three Tier BACT

review process will continue to satisfy the PSD BACT review requirements under the revised

§116.160. We request that TCEQ confirm this understanding in their response to comments.

We appreciate the opportunity to provide these comments.

Sincerely,

ZEPHYR ENVIRONMENTAL CORPORATION

1\) tiLKaren N.T. Ols~, P.E.

Principal v

2600 Via Fortuna, Suite 450 • Austin, Texas 78746 • PH 512.329.5544 • FAX 512.329.8253

www.ZephyrEnv.com + www.HazMatAcademy.com
0-1

INDEX OF ORALTESTIMONY

Public Hearing

February 22,2010, in Austin

Cyrus Reed, representing the Lone Star Chapter ofthe Sierra Club
(

BEFORE THE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

)

Public Revisions to 30 TAC )

Chapter 116 concerning Best )

Available Control Technology )

in Prevention of Significant )

Deterioration Permitting )

(TCEQ Rule Project No. )

2010-005-116-PR) )

Room 201S, Building E

TCEQ Complex

12100 Park 35 Circle

Austin, Texas

Monday,

February 22, 2010

The above-entitled matter came on for

hearing, pursuant to notice, at 10:00 a.m.

BEFORE: PATRICIA DURON

General Law Division, TCEQ

ALSO PRESENT:

BLAKE STEWART, Air Permits Division

ON THE RECORD REPOI?TING

(512) 450-0342 OR/GrNAL
(

SPEAKER

Cyrus Reed

I N D E X

ON THE RECORD REPORTING

(512) 450-0342
1

2

PRO C E E DIN G S

MS. DURON: Good morning. I would like to

3

3 welcome you to the public hearing being conducted by the

4 Texas Commission on Environmental Quality. My name is

5 Patricia Duron, and I am with the General Law Division.

6 I'd also like to introduce Blake Stewart from our Air

7 Permits Division.

8 We are here this morning to receive oral and/or

9 written comments on proposed revisions to 30 TAC Chapter

10 116 concerning Best Available Control Technology in

11 Prevention of Significant Deterioration Permitting, TCEQ

12 Rule Project No. 2010-00S-116-PR.

l4 haven't already signed in at our registration table,

(

13 If you intend to present oral testimony and

15 please do that now. If you are not familiar with the

16 proposed changes, copies of the proposal from the issue of

17 the Texas Register are available.

18 We also have copies of the hearing notice so

19 that if anyone is planning to submit written comments you

20 can quickly find the information on where to fax or mail

21 those in, or submit via eComments.

22 We will continue to accept written comments on

23 this proposal until Monday, March 1, 2010.

24 This hearing is structured strictly for the

25 receipt of oral or written comments. Open discussion

ON THE RECORD REPORTING

(512) 450-0342
1 during the hearing is not allowed; however, if anyone has

2 any additional comments or questions regarding the

3 proposal, there will be another opportunity after the

4 hearing to have your questions answered.

5 We will now begin receiving testimony in the

6 order in which you registered.

7 Cyrus?

8 MR. REED: Cyrus Reed, representing Lone Star

9 Chapter of the Sierra Club. I'm here to support the

10 proposal to adopt the reference, the federal government

11 definition of BACT, and we will be submitting written

12 comments along with some other folks before the deadline.

14 the adoption of the federal definition of BACT is actually

(

13 Well, what I wanted to say is we don't think

15 enough to fix the problems we see with the permitting

16 problem involving the issue of Best Available Control

l7 Technology. In our view the federal definition of BACT i

18 kind of a technology-forcing definition that makes you

19 look at all the available technology out there as you do

20 new permits. And we continue to have concerns with the

21 three-tiered process that TCEQ uses in terms of their

22 guidance on BACT.

23 And so what we'd like to see is for either TCEQ

24 to follow EPA guidelines on how they look at BACT, which

25 they're not required to do, but they are required to have

ON THE RECORD REPORTING

(512) 450-0342
1 a procedure that is at least as stringent as the EPA

5

2 Guidance. So our preference would be either follow the

3 EPA Guidance on how you determine BACT and what process

4 you use, or put together some sort of a BACT workgroup

5 after the approval of this rule with the permit engineers,

6 with industrial representatives, with environmental

7 representatives, and look at developing presumptive BACT

B for specific sources as well as your backup.

9 So we support, you know, following the federal

10 definition of BACT, but we'd like TCEQ to go further

11 because we think, even with adoption of the federal BACT,

12 we're still not meeting the letter of the law in terms of

14 And those are my comments, and we will be

( 13 clean air.

15 submitting written comments to those effects.

16

17

18

MS. DURON: Thank you, Cyrus.

MR. REED: Thanks.

MS. DURON: Is there anyone else who would like

19 to present testimony at this time?

20 (No response.)

21 MS. DURON: No? Once again, the Commission

22 will continue to accept written comments on proposed

23 revisions to 30 TAC Chapter 116 concerning Best Available

24 Control Technology in Prevention of Significant

25 Deterioration Permitting, TCEQ Rule Project No. 2010-005-

ON THE RECORD REPORTING

(512) 450-0342
1 116-PR until Monday, March 1, 2010. If there are no

2 further comments, this hearing is now closed.

3 MS. DURON: We do appreciate your comments, an

(

( )

'--/

4 I thank you for coming.

5 (Whereupon, at 10:10 a.m., this hearing was

6 concluded. )

ON THE RECORD REPORTING

(512) 450-0342
made by electronic recording by Penny Bynum before the

numbers 1 through 7, inclusive, are the true, accurate,

and complete transcript prepared from the verbal recording

1

t:

2

3

4

5

6

7

8

9

IN RE:

LOCATION:

DATE:

7

C E R T I F I CAT E

TCEQ Rule Project No. 2010-00S-116-PR

Austin, Texas

February 22, 2010

I do hereby certify that the foregoing pages,

Texas Commission on Environmental Quality.

(

(Transcriber)

02/24/2010

(Date)

On the Record Reporting

3307 Northland, Suite 315

Austin, Texas 78731

ON THE RECORD REPORTING

(512) 450-0342
Texas Commission on Environmental Quality

Public Hearing Registration

Date: Feb. 22, 2010

Time: 10:00 AM

Rule Project No.: 2010-005-116-LS

Short Title: Best Available Control Technology in Prevention of Significant Deterioration Permitting

Location: TCEQ Complex, 12100 Park 35 Circle, Building E, Room 201S, Austin, Texas

Concerning: Proposed revisions to 30 TAC Chapters 116

- I -

Name and Phone No. or E-mail Address

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EVALUATION OF 

TESTIMONY 
lNTEROFFlCE MEMORANDUM

Texas Commission on Environmental Quality

To:

Thru:

From:

Commissioners

LaDonna Castanuela, ChiefClerk

Mark R. Vickery, P.G., Executive Director

Richard A. Hyde P.E., Deputy Director

Office ofPermitting and Registration

Date: May 14, 2010

Docket No.: 2009-1907-RUL

Subject: Commission Approval for Rulemaking Adoption

Chapter 116, Control ofAir Pollution by Permits for New Construction or Modification

Best Available Control Technology (BACT) in Prevention of Significant Deterioration

.(PSD) Permitting

Rule Project No. 2010-005-1l6-PR

Background and reason(s) for the rulemaking:

On February 1,2006, the TCEQ submitted amendments to 30 Texas Administrative Code (TAC) §116.l60

to the United States Environmental Protection Agency (EPA) as a state implementation plan (SIP) revision to

the Texas prevention of significant deterioration (PSD) SIP. These amendments included the inadvertent

removal of certain references to federal definitions and requirements regarding best available control

technology (BACT) as it relates to PSD, and the permit review regarding PSD review for projects that

become major stationary sources or major modifications solely because of a relaxation of an enforceable

limitation on the source or modification's capacity to emit a pollutant. On September 23, 2009, the EPA

published notice of the proposed disapproval of these revisions to the Texas PSD SIP (74 Federal Register

48467, September 23, 2009). In an effort to ensure that TCEQ regulatory requirements regarding PSD meet

the requirements of the Federal Clean Air Act and are approvable into the SIP, the Air Permits Division

(APD) has developed amendments to Chapter 116 to eliminate any deficiencies that would prevent approval.

Scope ofthe rulemaking:

A) Summary of what the rulemaking will do: This rulemaking will add references to 40 Code of Federal

Regulations (CFR) Part 51 and Part 52 to 30 TAC Chapter 116.

B) Scope required by federal regulations or state statutes: The references to 40 CFR §52.2l(b)(12), the

federal definition of BACT, and 40 CFR §52.21(r)(4), the federal requirement that ensures sources or

modifications which become major as a result of the relaxation of an enforceable limitation are subject to

PSD requirements, are requirements ofthe PSD SIP.

C) Additional staff recommendations that are not required by federal rule or state statute: The

reference to 40 CFR §52.2lG), the federal requirement to use control technology that is equivalent or more

stringent than BACT, while not a requirement ofthe current PSD SIP, provides regulatory certainty that the

federal definition ofBACT applies to those facilities subject to PSD.

Statutory authority:

Statutory authority includes Texas Water Code, §§5.l02, General Powers, 5.103, Rules, and 5.105, General

Policy; and Texas Health and Safety Code, §§382.017, Rules, 382.002, Policy and Purpose, 382.011, General
Commissioners

Page 2

May 14,2010

Re: Docket No. 2009-1907-RUL

Powers and Duties, 382.012, State Air Control Plan, 382.051, Permitting Authority of the Commission;

Rules, 382.0513, Permit Conditions, 382.0515, Application for Permit, and 382.0518, Preconstruction

Permit. The amendments are also proposed under Federal Clean Air Act, 42 United States Code, §§7401, et

seq., which requires states to submit state implementation plan revisions that specify the manner in which the

national ambient air quality standards will beachieved and maintained within each air quality control region

ofthe state. '.

Effect on the:

A) Regulated community: This rulemaking will have no effect on the regulated community. Although

these references are currently missing from 30 TAC § 116.160, in its permitting actions for sources subject to

PSD, the APD conducts a control technology review that meets BACT as defined in federal rule.

Additionally, the APD currently ensures that ifa project becomes a major source through the relaxation of an

enforceable limitation, PSD review is required.

B) Public: There will be no effect on the public since the APD is currently conducting reviews of sources

subject to PSD that meet federal definitions and requirements.

C) Agency programs: There will be no effect on agency programs since the APD is currently conducting

reviews ofsources subject to PSD that meet federal definitions and requirements.

Stakeholder meetings: No stakeholder meetings have been held. However, background documents related

to this rulemaking have been posted on TCEQ's external website. Also, standard notice of this action, an

opportunity for public comment, and public hearing were provided.

Public comment:

Industry was concerned that current TCEQ BACT analysis would remain the same and that previously issued

permits were valid and enforceable. Environmentalists expressed concerns that TCEQ's three-tiered BACT

review is not sufficiently stringent to meet EPA guidance. The EPA commented that the revisions to

§116.160 appear to satisfy their concerns regarding the sufficiency ofstate regulations for PSD permitting

and requested TCEQ revise its BACT guidance document and submit it to EPA asa SIP revision.

Significant changes from proposal:

There have been no significant changes to the rule language since proposal.

Potential controversial concerns and legislative interest remaining after proposal and poblic comment:

The references to the federal regulations included in this rulemaking are reflective ofthe current APD policy

regarding PSD. There should be no controversial concerns. There is no known legislative interest at this

time.

Does this rulemaking affect any current policies or require development of new policies? This

rulemaking will not affect any current policies nor require development of any new policies. The APD is

currently conducting reviews ofsources subject to PSD that meet federal definitions and requirements.

What are the consequences if this rulemaking does not go forward? If this rulemaking does not go

forward, federal delegation ofPSD permitting to the TCEQ may be jeopardized.

Are there alternatives to rulemaking? Decline to address EPA disapproval notices and wait for further

EPA action.
Commissioners

Page 3

May 14,2010

Re: Docket No. 2009-1907-RUL

Key points in adoption rulemaking schedule:

Texas Register proposal publication date: January 29, 2010

Anticipated Texas Register adoption publication date: June 18,2010

Anticipated effective date: June 24, 2010

Six-month Texas Register filing deadline: June 29, 2010

Agency contacts:

Blake Stewart, Rule Project Manager, 239-6931, Air Permits Division

Janis Hudson, StaffAttorney, 239-0466

Patricia Duron, Texas Register Coordinator, 239-6087

cc: ChiefClerk, 2 copies

Executive Director's Office

.Susana M. Hildebrand, P.E.

Kevin Patteson

Curtis Seaton

Daniel Womack

Office of General Counsel

Blake Stewart

Patricia Duron
The Texas Commission on Environmental Quality (commission or TCEQ) adopts the amendment

to §116.160 without changes to the proposed text as published in the January 29, 2010, issue of

the Texas Register (35 TexReg 569) and will not be republished.

The amendment to §116.160 will be submitted to the United States Environmental Protection

Agency (EPA) as a revision to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE

On February 1,2006, the TCEQ submitted an amendment to §116.160, to the EPA as a SIP

revision to the Texas prevention ofsignificant deterioration (PSD) SIP. This amendment included

the inadvertent removal of certain references to federal definitions and requirements regarding

best available control technology (BACT) as it relates to PSD, and the permit review regarding

PSD review for projects that become major stationary sources or major modifications solely

because of a relaxation ofan enforceable limitation on the source or modification's capacity to

emit a pollutant. On September 23,2009, the EPA published notice ofthe proposed disapproval

ofthese revisions to the Texas PSD SIP (74 Federal Register 48467, September 23,2009). In

addition to the section previously noted, the EPA's September 23,2009, notice included

additional concerns regarding TCEQ's February 1, 2006, SIP submittal as well as a submittal of a

SIP revision made by the TCEQ on June 10,2005. These issues will be addressed in a subsequent

rulemaking.

The EPA stated in the notice that the 2006 SIP revision submittal removed from §116.160(a) the

incorporation by reference ofthe federal PSD definition ofBACT as defined in 40 Code of

Federal Regulations (CFR) §52.21(b)(l2) and that the currently approved PSD SIP requires that a

state include this definition ofBACT as part ofits SIP. The EPA also noted that the 2006

submittal also removed the PSD SIP requirement at 40 CFR §52.21 (r)(4) that had previously been
incorporated by reference. The currently approved PSD SIP mandates this requirement. This

provision specifies that if a project becomes a major stationary source or major modification

solely because of a relaxation of an enforceable limitation on the source or modification's

capacity to emit a pollutant, then that source or modification is subject to PSD requirements.

Although these references are currently missing from §116.160, in its permitting actions, the

TCEQ does not circumvent Federal New Source Review (FNSR) requirements and does not

allow a control technology review to be conducted that results in a technology that is less

stringent than BACT as defined in federal rule. Additionally, TCEQ ensures that if a project

becomes a major source through the relaxation of an enforceable limitation, PSD review is

required.

The commission is also including the reference to 40 CFR §52.21 G),which implements the

defmition ofBACT. Although this reference has not historically been included in the

commission's rule regarding the applicable requirements for a PSD permit, it is being included

because it complements the reinserted definition ofBACT.

In an effort to ensure that the commission's rule regarding the PSD permitting program meets the

requirements ofthe Federal Clean Air Act (FCAA) and are approvable into the SIP, the

commission is adopting the following amendments to eliminate any EPA-identified deficiencies

that would prevent approval. Because this amendment would reinstate PSD permit program

requirements that were previously approved by EPA as part ofthe Texas SIP and because they

incorporate by reference the federal rules, this amendment is at least as stringent as the FNSR

revised base program. This amendment will not interfere with any applicable requirement

concerning attainment ofthe national ambient air quality standards, reasonable further progress,

2
or any other applicable requirement under the FCAA, 42 United States Code (USC), §§740l et

seq.

SECTION DISCUSSION

§116.160, Prevention ofSignificant Deterioration Requirements

The commission is amending §116.160(c)( 1) by adding a reference to the federal definition of

BACT located in 40 CFR §52.21(bXI2). The application ofBACT is an integral part of air

pollution control under the FCAA and a primary consideration during review ofsources subject

to FNSR by TCEQ staff. Although there is a definition ofBACT in §116.10, the federal

definition ofBACT is necessary for the PSD permitting program, and therefore, must be included

in the commission's rules for that program.

The commission is amending §116.160(c)(2) by adding references to two federal requirements

related to the application ofBACT to FNSR sources subject to PSD requirements. In addition to

other references to federal regulations, §116.160(c)(2)(A) now includes a reference to 40 CFR

§52.21 m, which is the federal requirement to use control technology that is equivalent to or more

stringent than BACT. Although the EPA did not address this requirement in its September 23,

2009, notice ofdisapproval, the inclusion provides regulatory certainty that the federal definition

ofBACT applies to those facilities subject to PSD. Additionally, the reference to 40 CFR

§52.21(k) previously in §116.160(c)(2)(B) has been incorporated into §116.160(c)(2)(A) and the

section has been renumbered accordingly. Adopted §116.160(c)(2)(C) references 40 CFR

§52.21 (r)(4), which is the federal requirement ensuring that sources or modifications which

become major as a result ofthe relaxation of an enforceable limitation are subject to PSD

requirements. Inclusion of a reference to this federal requirement will help ensure that the

TCEQ's regulation ofthese types of major stationary sources or modifications will be as stringent

as the federal program.

3
FINAL REGULATORY IMPACT ANALYSIS DETERMINAnON

The commission reviewed the rulemaking action in light ofthe regulatory analysis requirements

ofTexas Government Code, §200 1.0225, and determined that the action is not subject to

§200 1.0225 because it does not meet the definition of a "major environmental rule" as defined in

that statute. A "major environmental rule" is 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 ofthe economy, productivity,

competition, jobs, the environment, or the public health and safety ofthe state or a sector ofthe

state. Although the PSD permitting program is specifically intended to protect the environment

and reduce risks to human health from environmental exposure to air pollutants, the primary

purpose ofthis rulemaking is to correct deficiencies in §116.160 as identified by the EPA.

Specifically, those corrections are to add certain references to federal definitions and

requirements regarding BACT as it relates to PSD, and the review regarding PSD review for

projects that become major stationary sources or major modifications solely because of a

relaxation of an enforceable limitation on the source or modification's capacity to emit a

pollutant. This rule amendment is necessary to ensure that the rule can be a federally approved

part ofthe Texas SIP. The Texas SIP already includes the requirements of 40 CFR §52.21(b)(12)

and (r)(4), and although these requirements were omitted in the previous rulemaking, the TCEQ

continued to implement them. As discussed in the proposal ofthis rulemaking, no fiscal

implications are anticipated for other state agencies, local governments, individuals, or for large,

small or micro-businesses as a result of administration or enforcement ofthe rule. Therefore, this

rulemaking will not adversely affect in a material way the economy, a sector ofthe economy,

productivity, competition, jobs, the environment, or the public health and safety ofthe state or a

sector ofthe state.

4
As defined in the Texas Government Code, §200 1.0225 only applies to a major environmental

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

required by state law; exceed an express requirement ofstate law, unless the rule is specifically

required by federal law; exceed a requirement ofa delegation agreement or contract between the

state and an agency or representative ofthe federal government to implement a state and federal

program; or adopt a rule solely under the general powers ofthe agency instead of under a specific

state law. This rulemaking action does not meet any ofthese four applicability requirements of a

"major environmental rule." Specifically, the amendment to §I 16.160 was developed to correct

EPA-identified deficiencies in commission's PSD permitting program to ensure SIP approval by

EPA and thus meet a requirement offederal law. This rulemaking action does not exceed an

express requirement ofstate law or a requirement of a delegation agreement, and was not

developed solely under the general powers ofthe agency, but was specifically developed to meet

the requirements ofthe FCAA, and is authorized under Texas Health and Safety Code (THSC),

§§382.01 1,382.012,382.017,382.051,382.0513,382.0515 and 382.0518, and FCAA, 42 USC,

§§7401 et seq.

The commission invited comments on the draft regulatory impact analysis determination, but

none were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the rulemaking and performed an assessment ofwhether Texas

Government Code, Chapter 2007, is applicable. The amendment to §I 16.I60 amends the

requirements for PSD permits. The primary purpose ofthe rulemaking is to correct deficiencies in

§116.I60 as identified by the EPA to ensure that the rule can be approved by EPA as part ofthe

Texas SIP. Promulgation and enforcement ofthe rulemaking will not burden private real

property. The rule does not affect private property in a manner that restricts or limits an owner's

5
right to the property that would otherwise exist in the absence of a governmental action.

Consequently, this rulemaking action does not meet the definition of a taking under Texas

Government Code, §2007.002(5). Although the rule does not directly prevent a nuisance or

prevent an immediate threat to life or property, it does partially fulfill a federal mandate under 42

USC, §7410. Consequently, the exemption that applies to this rule is that of an action reasonably

taken to fulfill an obligation mandated by federal law. Therefore, this rulemaking action will not

constitute a taking 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, §§33.201 et seq.), and commission rules in

30 TAC Chapter 281, Subchapter B, concerning Consistency with Texas Coastal Management

Program. As required by §281.45(a)(3) and 31 TAC §505.l1(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 ofthe CMP. The commission reviewed

this action for consistency with the CMP goals and policies in accordance with the rules ofthe

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

§501.12(1), relating to Goals). The amendment adds references to federal regulations that the state

has no authority to change. The CMP policy applicable to this rulemaking action is the policy that

commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality

in the coastal areas (31 TAC §501.32). Therefore, in accordance with 31 TAC §505.22(e)

6
(relating to Consistency Required for New Rules and Rule Amendments Subject to the Coastal

Management Program) the commission affirms that this rulemaking action is consistent with

CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal management

program during the public comment period. No comments were received regarding the CMP.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Chapter 116 is an applicable requirement of30 TAC Chapter 122, Federal Operating Permits

Program. Owners or operators subject to the federal operating permit program must, consistent

with the revision process in Chapter 122, upon the effective date ofthe adopted rulemaking,

revise their operating permit to include the new Chapter 116 requirements. Additionally, sources

subject to the adopted rules may become subject to the federal operating permit program.

PUBLIC COMMENT

The commission held a public hearing on February 22, 20 IO. The comment period closed on

March 1,2010.

The commission received comments from the Association of Electric Companies ofTexas, Inc.

(AECT), Hilliard Emission Controls (HEC), Sierra Club Lone Star Chapter as a single entity

(SC), Texas Association ofBusiness (TAB), Texas Chemical Council (TCC), Texas Industry

Project (TIP), the EPA, and Zephyr Environmental Corporation (ZEC). In addition, the

commission received a comment letter from the University ofTexas School ofLaw

Environmental Clinic on behalf ofCitizens for Environmental Justice, Texas Environmental

Justice Advocacy Services, Public Citizen's Texas Office, Environmental Integrity Project; KIDS

for Clean Air, Sustainable energy and Economic Development (SEED) Coalition, Citizens

Opposed to Power Plants (COPPs) for Clean Air, Multi-County Coalition, Robertson County:

7
Our Land, Our Lives, Texans Protecting Our Water, Environment and Resources (TPOWER),

Environmental Defense Fund, and Sierra Club Lone Star Chapter (Environmental Groups). All

commenters supported parts ofthe proposed changes while opposing others and all suggested

changes or additions to the rule or preamble language.

RESPONSE TO COMMENTS

HEC suggested that there should be incentives, such as emission reduction credits with sliding

scale value, for companies to develop and market systems and methods to reduce volatile organic

compounds (VOC), nitrogen oxides (NOx), carbon monoxide (CO), and carbon monoxide (C02)

air emissions when complying with 30 TAC §115.541.

The commission made no changes in response to this comment. Section 115.541 concerns

specific requirements for certain VOC emissions from degassing or cleaning ofstationary,

marine and transport vessels in the BeaumontIPort Arthur, DallaslFort Worth, EI Paso,

and HoustonlGalvestonlBrazoria areas.

TCEQ establishes environmental performance standards for pollution control equipment

that are reasonably available, and does not mandate the use of any particular technology

except in limited situations. The Texas Clean Air Act (TCAA), in rusc, §382.017(t),

prohibits the TCEQ from mandating or forbidding the use of a particular technology except

in specific situations required by the TCAA or to meet federal requirements. The control

requirements of 30 TAC, Chapter 115, Subchapter F, Division 3 do not meet any ofthe

exceptions provided for in THSC, §382.017(t) and a specific control technology is not

mandated by a federal requirement in this situation. The TCEQ must consider the

availability of pollution control technology when establishing environmental regulatory

requirements.

8
The purpose ofthis rulemaking is to ensure that the commission's rule regarding the PSD

permitting program meets the requirements ofthe FCAA and are approvable into the SIP.

Section 116.160 includes the requirements for PSD permitting of all NSR regulated

pollutants. The control requirements (BACT) are determined on a case-by-case basis. The

BACT determination under §116.160, as well as the rule itself, is an independent

requirement from §115.541. Therefore, the comment is beyond the scope ofthis rulemaking.

AECT, SC, TAB, TIP, and Environmental Groups commented favorably on TCEQ's effort to

more closely align state requirements regarding PSD with federal regulations.

The commission appreciates this support.

TAB and TIP objected to language regarding any deficiencies in TCEQ's PSD program and the

need to incorporate federal regulation by reference in order for state requirements to be

sufficiently stringent.

Although the commission acknowledges the need to add the references to this rule, the

absence of those sections was characterized as deficiencies in Texas's major NSR permitting

program by EPA in its proposed disapproval notice. Although these references were

missing from §116.160, in its permitting actions, the TCEQ did not and does not circumvent

FNSR requirements and does not allow a control technology review to be conducted that

results in a technology that is less stringent than BACT as defined in federal rule.

Additionally, TCEQ ensures that if a project becomes a major source through the

relaxation of an enforceable limitation, PSD review is required. No changes were made in

response to this comment.

9
TAB, TCC, and TIP stated that the current definition ofBACT in state rules is sufficient.

The commission is not making changes in response to this comment. The definition of

BACT in §1l6.10 has a broad application, which is to all NSR permitting actions under the

TCAA. In the NSR permitting process, the first determination is whether

federal requirements are triggered. Ifso, then the BACT requirements of 40 CFR

§52.21(b)(12) are applied. The commission's BACT process is then applied for any other air

contaminants and any other facilities not subject to federal permitting requirements,

§1l6.10(3) is not approved as part ofthe Texas SIP; in another rulemaking, the commission

has proposed a revision to the definition, which would be relocated to §1l6.10(1).

Consequently, the reference to the federal version ofBACT is necessary. TCEQ's 2006

submittal of revisions the PSD SIP inadvertently removed the reference to the federal

definition ofBACT in 40 CFR §52.21(b)(12) that had previously been in §1l6.160(a). This

reference to federal BACT was included to ensure that the commission's rules meet FCAA

requirements for the Texas PSD SIP.

AECT and ZEC suggested language in the adoption preamble stating that the rule revisions would

not change how TCEQ conducts BACT reviews for current or future PSD permit applications.

AECT requested the preamble state that these rule revisions do not support an argument that any

BACT review conducted for any PSD permit that was issued before the rule revisions become

effective was inadequate or invalid.

The preamble states that although references to FNSR are currently missing from §1l6.160,

in its permitting actions, the TCEQ does not circumvent FNSR requirements and does not

allow a control technology review to be conducted that results in a technology that is less

10
stringent than BACT as defined in federal rule. The commission agrees that these rule

revisions do not support an argument that any BACT review conducted for any PSD permit

that was issued before the rule revisions become effective was inadequate or invalid.

AECT, TAB, TCC, and TIP stated that TCEQ's PSD program is SIP approved and all previously

issued PSD permits are valid and enforceable and requested the inclusion ofthis language in the

adoption preamble.

EPA approved Texas's PSD permitting program, and TCEQ expects EPA will approve tbe

amendments in this rulemaking as a revision to tbe Texas' SIP. The commission's position is

that all PSD permits issued by the commission and its predecessor agency are valid and

enforceable.

Environmental Groups and SC expressed concern that TCEQ's three-tiered BACT review is not

sufficiently stringent to meet EPA guidance. Environmental Groups requested that the TCEQ

state in the adoption order that, "three-tier guidance is not relevant to federal BACT

determinations and that federal guidance should be followed in conducting such determinations."

ZEC also requested that the TCEQ state in the response to comments that three-tier BACT will

continue to meet PSD BACT review requirements.

In conducting a BACT review, TCEQ uses a three-tiered approach. In Tier I, there is a

comparison of tbe proposed BACT limits to BACT limits accepted in recent permit reviews

for tbe same type of process. However, tbis would not be applied if there are new technical

developments that have been made indicating tbat additional reductions are economically

reasonable or technically feasible. Tier ITconsists of application of BACT from a different

production process to tbe proposed process on the basis that the air emissions streams of

11
these processes share physical characteristics. Tier ill consists of evaluation ofBACT from

the standpoint oftechnical feasibility and economic reasonableness.

In addition, there are some special considerations for PSD BACT review in Texas, based on

commitments that Texas made to the EPA to obtain a SIP-approved PSD program. The

Texas Air Control Board (TACB), the predecessor agency to the TCEQ, agreed to require

the applicant to consider the lowest emission limits in the EPA's Reasonably Available

Control Technology (RACT)/BACTI Lowest Achievable Emission Rate (LAER)

Clearinghouse (RBLC), and review several other obsolete EPA information sources, to

identify the most recent developments in BACT. The EPA also expressed an expectation

that the permit application review include an independent review ofthe applicant's

analysis, ifthe applicant does not propose the lowest emission limit identified in the RBLC

or other information source. A record of the BACT methodology issue is available in the

EPA's proposed approval ofthe Texas PSD program published in the December 22, 1989,

issue ofthe Federal Register (54 FedReg 52823-52826) and in the final approval published in

the June 24,1992, issue ofthe Federal Register (57 FedReg 28093-28098). The TCEQ has

used its permit workshops to identify the need to evaluate the RBLC in the PSD BACT

review and Air Permits Division staff are aware ofthe need to evaluate the RBLC in the

course of PSD review.

Furthermore, the TCEQ also uses the EPA's Draft October 1990 New Source Review

Workshop Manual Prevention of Significant Deterioration and Nonattainment Area

Permitting. It provides a source of reference for understanding EPA's PSD permitting

process. While almost 20 years old, it remains the primary EPA guidance in PSD permitting

used by both the EPA and the states.

12
The EPA top down approach requires the applicant to look at all ofthe technologies that

can reduce emissions from the proposed source and rank them starting with the most

stringent, and to use the most stringent limit or technology that is technically practical and

economically reasonable.

As noted in the December 22, 1989 and June 24, 1992 Federal Register notices, PSD-SIP

approved states are free to follow their own course, as long as the state's actions are

consistent with the letter and spirit ofthe SIP. EPA has concurred that TCEQ's three-tiered

BACT evaluation is equivalent to EPA's top down evaluation considering a review ofthe

RBLC and the review ofsimilar permits across the country. Therefore, TCEQ's BACT

evaluation and determination process is consistent with the federal BACT requirements in

40 CFR §52.21(b)(12) and (j).

EPA requested TCEQ revise its BACT guidance document and submit it to EPA as a SIP revision

to the Texas PSD SIP. SC commented that it prefers the TCEQ follow EPA guidance for BACT

determination or that TCEQ assemble a workgroup after the adoption ofthese rules that would

include permit engineers, and representatives of industry and environmental groups to develop a

presumptive BACT for specific sources.

The TCEQ's Air Permits Division is currently engaged in development ofthe Air Pollution

Control guidance document which will replace all previous agency pollution control

guidance documents, including the October 30, 2000 Texas Natural Resource Conservation

Commission Best Available Control Technology and the Best Available Control Technology

(BACT) Tier III Cost Analysis guidance documents. The draft document will be published

and the commission will request comments on the document prior to its adoption. The

commission is reviewing the EPA request to submit tbis as a revision to tbe SIP.

13
EPA requested that TCEQ permit writers submit an explanation oftheir BACT analysis for each

PSD permit application and include it in the Preliminary Determination Summary document.

TCEQ permit writers prepare an explanation oftheir BACT analysis for eacb PSD permit

application and include it in the Preliminary Determination Summary document.

EPA commented that the revisions to §116.160 appear to satisfy its concerns regarding the

sufficiency ofthe commission's rules for PSD permitting.

Tbe commission appreciates tbis support.

14
SUBCHAPTER B: NEW SOURCE REVIEW PERMITS

DIVISION 6: PREVENTION OF SIGNIFICANT DETERIORATION REVIEW

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §5.l 02, concerning General Powers,

that provides the commission with the general powers to carry out its duties under the TWC;

TWC, §5.l03, concerning Rules, that authorizes the commission to adopt rules necessary to carry

out its powers and duties under the TWC; TWC, §5.l05, concerning General Policy, that

authorizes the commission by rule to establish and approve all general policy ofthe commission;

and under Texas Health and Safety Code (THSC), §382.0l7, concerning Rules, that authorizes

the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air

Act. The amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, that

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

protection of public health, general welfare, and physical property; THSC, §382.0ll, concerning

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

and THSC, §382.0l2, concerning State Air Control Plan, that authorizes the commission to

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

amendments is also adopted under THSC, §382.051, which authorizes the commission to issue

permits for construction of new facilities or modifications to existing facilities that may emit air

contaminants; THSC, §382.0513, concerning Permit Conditions, which authorizes the

commission to establish and enforce permit conditions; THSC, §382.05l5, concerning

Application for Permit, and THSC, §382.05l8, which authorizes the commission to issue

preconstruction permits. The amendment is also adopted under Federal Clean Air Act (FCAA),

42 United States Code (USC), §§740l, et seq., which requires states to submit state

implementation plan revisions that specify the manner in which the national ambient air quality

standards will be achieved and maintained within each air quality control region ofthe state.

15
The amendment implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.0513,

382.0515 and 382.0518, and FCAA, 42 USC, §§7401 et seq.

16
STAFF 

RECOMMENDATIONS
SUBCHAPTER B: NEW SOURCE REVIEW PERMITS

DIVISION 6: PREVENTION OF SIGNIFICANT DETERIORATION REVIEW

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, that

provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103,

concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and

duties under the TWC; TWC, §5.105, concerning General Policy, that authorizes the commission by rule

to establish and approve all general policy ofthe commission; and under Texas Health and Safety Code

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

policy and purposes ofthe Texas Clean Air Act. The amendment is also adopted under THSC, §382.002,

concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air

resources, consistent with the protection of public health, general welfare, and physical property; THSC,

§382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of

the state's air; and THSC, §382.012, concerning State Air Control Plan, that authorizes the commission to

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

amendments is also adopted under THSC, §382.051, which authorizes the commission to issue permits

for construction of new facilities or modifications to existing facilities that may emit air contaminants;

THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and

enforce permit conditions; THSC, §382.0515, concerning Application for Permit, and THSC, §382.0518,

which authorizes the commission to issue preconstruction permits. The amendment is also adopted under

Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to

submit state implementation plan revisions that specify the manner in which the national ambient air

quality standards will be achieved and maintained within each air quality control region ofthe state.
The amendment implements THSC, §§382.002, 382.011,382.012,382.017,382.051,382.0513,382.0515

and 382.0518, and FCAA, 42 USC, §§7401 et seq.

§116.160. Prevention of Significant Deterioration Requirements.

(a) Each proposed new major source or major modification in an attainment or unc1assifiable area

shall comply with the requirements ofthis section. The owner or operator of a proposed new or modified

facility that will be a new major stationary source for the prevention ofsignificant deterioration air

contaminant shall meet the additional requirements ofsubsection (c)( 1) - (4) ofthis section.

(b) The de minimis threshold test (netting) is required for all modifications to existing major

sources offederally regulated new source review pollutants, unless the proposed emissions increases

associated with a project, without regard to decreases, are less than major modification thresholds for the

pollutant identified in 40 Code ofFederal Regulations (CFR) §52.21(b)(23).

(c) In applying the de minimis threshold test (netting), ifthe net emissions increases are greater

than the major modification levels for the pollutant identified in 40 CFR 52.21(b)(23), the following

requirements apply.

(1) In addition to those definitions in §116.12 ofthis title (relating to Nonattainment and

Prevention of Significant Deterioration Review Definitions) the following definitions from prevention of

significant deterioration of air quality regulations promulgated by the United States Environmental

Protection Agency (EPA) in 40 CFR §52.21 and the definitions for protection of visibility and

promulgated in 40 CFR §51.30 I as amended July 1, 1999, are incorporated by reference:

2
(A) 40 CFR §52.2l(b)(12) - (15), concerning best available control technology,

baseline concentrations, dates, and areas;

(B) 40 CFR §52.2l(b)(19), concerning innovative control technology; and

(C) 40 CFR §52.2l(b)(24) - (28), concerning federal land manager, terrain, and

Indian reservations/governing bodies.

(2) The following requirements from prevention ofsignificant deterioration of air quality

regulations promulgated by the EPA in 40 CFR §52.21 are hereby incorporated by reference:

(A) 40 CFR §52.2l(c) - (k), concerning increments, ambient air ceilings,

restrictions on area classifications, exclusions from increment consumption, redesignation, stack heights,

exemptions, control technology review, and source impact analysis;

(B) 40 CFR §52.2l(m) - (p), concerning air quality analysis, source information,

additional impact analysis, and sources impacting federal Class I areas;

(C) 40 CFR §52.2l(r)(4), concerning relaxation of an enforceable limitation; and

(D) 40 CFR §52.2l(v), concerning innovative technology.

3
(3) The term "facility" shall replace the words "emissions unit" in the referenced sections

ofthe CFR.

(4) The term "executive director" shall replace the word "administrator" in the referenced

sections ofthe CFR except in 40 CFR §52.2I(g) and (v).

(d) All estimates of ambient concentrations required under this subsection shall be based on the

applicable air quality models and modeling procedures specified in the EPA Guideline on Air Quality

Models, as amended, or models and modeling procedures currently approved by the EPA for use in the

state program, and other specific provisions made in the prevention ofsignificant deterioration state

implementation plan. Ifthe air quality impact model approved by the EPA or specified in the guideline is

inappropriate, the model may be modified or another model substituted on a case-by-case basis, or a

generic basis for the state program, where appropriate. Such a change shall be subject to notice and

opportunity for public hearing and written approval ofthe administrator ofthe EPA.

4
TEXAS COMMISSION ON ENVIRONMENTAI.e~~S Ihereby certify Ina: tOl:;i;j a true and corrllCtCXlPfCllfI

Texas Commission onEnvironmental QuIIty~

which isfiled inthepermanentrecordsof..canlllllllan.

Givenu myha and~-jUNon14 2010

La .Clst8nUeIa.Chiltf.c•. ...•

Texas Commission on Envil'Ol'llllMbil QuaIitV

ORDER ADOPTING AMENDED RULE AND

REVISION TO THE STATE IMPLEMENTATION PLAN

Docket No. 2009-1907-RllL

On June 2, 2010, the Texas Commission on Environmental Quality (Commission), during a

public meeting, considered adoption of amended § ]] 6.160 of 30 Texas Administrative Code Chapter

] 16, Control of Air Pollution by Permits for New Construction or Modification, and corresponding

revision to the state implementation plan (SIP). The amendment adds certain references to Federal

definitions and requirements regarding best available control technology (BACT) as it relates to

Prevention of Significant Deterioration (PSD), and the review regarding PSD review for projects that

become major stationary sources or major modifications solely because of a relaxation of an enforceable

limitation on the source or modification's capacity to emit a pollutant. Under Tex. Health & Safety

Code Ann. §§ 382.0]],382.0]2, and 382.023 (Vernon 200]), the Commission has the authority to

control the quality of the state's air and to issue orders consistent with the policies and purposes of the

Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed rule was published

for comment in the January 29, 2010 issue ofthe Texas Register (35 TexReg 569).

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code

Chapter 200] (Vernon 2008), and 40 Code of Federal Regulations § 51.102, and after proper notice, the

Commission conducted a public hearing to consider the amended rule and revision to the SIP. Proper

notice included prominent advertisement in the areas affected at least 30 days prior to the date of the

hearing. A public hearing was held in Austin, Texas on February 22,2010.

The Commission circulated hearing notices of its intended action to the public, including

interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control

agencies. The public was invited to submit data, views, and recommendations on the proposed amended

rule and SIP revision, either orally or in writing, at the hearing or during the comment period. Prior to

the scheduled hearing, copies of the proposed amended rule and SIP revision were available for public

inspection at the Commission's central office and on the Commission's Web site.

Data, views, and recommendations of interested persons regarding the proposed amended rule

and SIP revision were submitted to the Commission during the comment period, and were considered by

the Commission as reflected in the analysis of testimony incorporated by reference to this Order. The

Commission finds that the analysis of testimony includes the names of all interested groups or

associations offering comment on the proposed amended rule and the SIP revision and their position

concerning the same.

IT IS THEREFORE ORDERED BY THE COMMISSJON that the amended rule and revision to

the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes

staff to make any non-substantive revision to the rule necessary to comply witb Texas Register

requirements. The adopted rule and the preamble to the adopted rule and the revision to the SIP are

incorporated by reference in this Order as if set forth at length verbatim in this Order.
IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission. the

Chairman should transmit a copy of this Order, together with the adopted rule and revision to the SIP. to

the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal

Clean Air Act, codified at 42 U.S. Code Ann. §§ 7401 - 7671q, as amended.

This Order constitutes the Order of the Commission required by the Administrative Procedure

Act Tex. Gov't Code, § 2001.033 (Vernon 2008).

If any portion of this Order is for any reason held to be invalid by a court of competent

jurisdiction, the invalidity of any portion shall not affect the validity ofthe remaining portions.

Issued date: JUN 14 2010

TEXAS COMMISSION ON

E1--.TVIRONMENTAL QUALITY
SUBCHAPTER C. PLANT-WIDE

APPLICABILITY LIMITS

DIVISION 1. PLANT-WIDE APPLICABILITY

LIMITS

30 TAC §116.194

STATUTORY AUTHORITY

The amendment is adopted under Texas water Code (TWC),

§5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under

the Texas water Code; TWC, §5.103, concerning Rules,

which authorizes the commission to adopt rules necessary to

carry out its powers and duties under the Texas Water Code;

TWC, §5.105, concerning General Policy, which authorizes

the commission by rule to establish and approve all general

policy of the commission; and under Texas Health and Safety

Code (THSC), §382.017, concerning Rules, which authorizes

(C) the application is for any amendment, modification,

or renewal application that would not result in an increase in allowable

emissions and would not result in the emission of an air contaminant

not previously emitted; and

(D) the applicant has satisfied all public notification requirements of Chapter 39 of this title.

(2) Notification to commenters. Persons submitting written comments under Chapter 39 ofthis title shall be sent the executive

director's final action and given an explanation ofthe opportunity to

file a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) at the same time that the applicant

is notified. If the number of interested persons who have requested

notification makes it impracticable for the commission to notify those

persons by mail, the commission shall notify those persons by publication using the method prescribed by §382.031(a) ofthe Texas Health

and Safety Code.

(3) Time limits. The executive director shall send notification offinal action within:

(A) one year after receipt of a complete prevention of

significant deterioration or nonattainment permit application, or a complete permit application for an action under Subchapter C ofthis chapter (relating to Plant-Wide Applicability Limits);

(B) 180 days ofreceipt ofa completed permit or permit

renewal application; or

(C) 150 days ofreceipt of a permit amendment or special permit amendment application.

This agency hereby certifies thatthe adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on June 4, 2010.

TRD-201003126

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 24, 2010

Proposal publication date: January 15, 2010

For further information, please call: (512) 239-6087

SUBCHAPTER B. NEW SOURCE REVIEW

PERMITS

DIVISION 6. PREVENTION OF SIGNIFICANT

DETERIORATION REVIEW

30 TAC §116.160

the commission to adopt rules consistent with the policy and

purposes of the Texas Clean Air Act. 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; THSC,

§382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's

air; and THSC, §382.D12, concerning State Air Control Plan,

which authorizes the commission to prepare and develop a

general, comprehensive plan for the proper control of the state's

air; THSC, §382.0291, concerning Public Hearing Procedures,

which prescribes certain deadlines; THSC, §382.040, concerning Documents; Public Property, which provides that all

inrormatlon, documents, and data collected by the commission

in perfonning its duties are state property; THSC, §382.051,

concerning Pennitting Authority of Commission; Rules, which

authorizes the commission to issue pennits for construction of

new facilities or modifications to existing facilities that may emit

air contaminants; THSC, §382.0512, concerning Modification

of Existing Facility, which prescribes how the commission will

evaluate modifications of existing facilities; THSC, §382.0515,

concerning Application for Pennit, which specifies pennit application requirements; THSC, §382.0518, which authorizes the

commission to issue preconstruction permits: THSC, §382.055,

which establishes the commission's authority to review and renew preconstruction pennits; and THSC, §382.056, conceming

Notice of Intent to Obtain Pennit or Pennit Review; Hearing,

which requires an applicant for a pennit issued under §382.0518

to publish notice of intent to obtain a pennit. The amendment

is also adopted under Federal Clean Air Act (FCM), 42 United

States Code (USC), §§7401, et seq., which requires states

to submit state implementation plan revisions that specify the

manner in which the national ambient air quality standard will be

achieved and maintained within each air quality control region

of the state.

The adopted amendment implements THSC, §§382.002,

382.011, 382.012, 382.017, 382.0291, 382.040, 382.051,

382.0512, 382.0515, 382.0518, 382.055, and 382.056, and

FCM, 42 USC, §§7401 et seq.

This agency hereby certifies thatthe adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on June 4,2010.

TRD-201003127

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 24, 2010

Proposal publication date: January 15, 2010

For further information, please call: (512) 239-6087

• • •

•••

35 TexReg 5344 June 18, 2010 Texas Register
The Texas Commission on Environmental Quality (commission

or TCEQ) adopts the amendment to §116.160 without changes

to the proposed text as published in the January 29, 2010, issue

of the Texas Register (35 TexReg 569) and will not be republished.

The amendment to §116.160 will be submitted to the United

States Environmental Protection Agency (EPA) as a revision to

the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULE

On February 1, 2006, the TCEQ submitted an amendment to

§116.160, to the EPA as a SIP revision to the Texas prevention

of significant deterioration (PSD) SIP. This amendment included

the inadvertent removal of certain references to federal definitions and requirements regarding best available control technology (BACT) as it relates to PSD, and the permit review regarding

PSD review for projects that become major stationary sources

or major modifications solely because of a relaxation of an enforceable limitation on the source or modification's capacity to

emit a pollutant. On September 23, 2009, the EPApublished notice of the proposed disapproval of these revisions to the Texas

PSD SIP (74 Federal Register 48467, September 23, 2009). In

addition to the section previously noted, the EPA's September

23, 2009, notice included additional concerns regarding TCEQ's

February 1, 2006, SIP submittal as well as a submittal of a SIP

revision made by the TCEQ on June 10, 2005. These issues will

be addressed in a subsequent rulernakinq.

The EPA stated in the notice that the 2006 SIP revision submittal removed from §116.160(a) the incorporation by reference

of the federal PSD definition of BACT as defined in 40 Code

of Federal RegUlations (CFR) §52.21(b)(12) and that the currently approved PSD SIP requires that a state include this definition of BACT as part of its SIP. The EPA also noted that the

2006 submittal also removed the PSD SIP requirement at 40

CFR §52.21(r)(4) that had previously been incorporated by reference. The currently approved PSD SIP mandates this requirement. This provision specifies that if a project becomes a major

stationary source or major modification solely because of a relaxation of an enforceable limitation on the source or modification's capacity to emit a pollutant, then that source or modification is subject to PSD requirements. Although these references

are currently missing from §116.160, in its permitting actions, the

TCEQ does not circumvent Federal New Source Review (FNSR)

requirements and does not allow a control technology review to

be conducted that results in a technology that is less stringent

than BACT as defined in federal rule. Additionally, TCEQ ensures that if a project becomes a major source through the relaxation of an enforceable limitation, PSD review is required.

The commission is also inclUding the reference to 40 CFR

§52.210), which implements the definition of BACT. Although

this reference has not historically been included in the commission's rule regarding the applicable requirements for a

PSD permit, it is being included because it complements the

reinserted definition of BACT.

In an effort to ensure that the commission's rule regarding the

PSD permitting program meets the requirements of the Federal Clean Air Act (FCAA) and are approvable into the SIP, the

commission is adopting the following amendments to eliminate

any EPA-identified deficiencies that would prevent approval. Because this amendment would reinstate PSD permit program requirements that were previously approved by EPA as part of

the Texas SIP and because they incorporate by reference the

federal rules, this amendment is at least as stringent as the

FNSR revised base program. This amendment will not interfere

with any applicable requirement conceming attainment of the national ambient air quality standards, reasonable further progress,

or any other applicable requirement under the FCAA, 42 United

States Code (USC), §§7401 et seq.

SECTION DISCUSSION

§116.160, Prevention of Significant Deterioration Requirements

The commission is amending §116.160{c)(1) by adding a reference to the federal definition of BACT located in 40 CFR

§52.21(b)(12). The application of BACT is an integral part of air

pollution control under the FCAA and a primary consideration

during review of sources SUbject to FNSR by TCEQ staff.

Although there is a definition of BACT in §116.10, the federal

definition of BACT is necessary for the PSD permitting program,

and therefore, must be included in the commission's rules for

that program.

The commission is amending §116.160(c)(2) by adding references to two federal requirements related to the application of

BACT to FNSR sources subject to PSD requirements. In addition to other references to federal regUlations, §116.160(c)(2)(A)

now includes a reference to 40 CFR §52.210), which is the federal requirement to use control technology that is equivalent to

or more stringent than BACT. Although the EPA did not address

this requirement in its September 23, 2009, notice of disapproval, the inclusion provides regulatory certainty that the federal

definition of BACT applies to those facilities subject to PSD.

Additionally, the reference to 40 CFR §52.21(k) previously in

§116.160(c)(2)(B) has been incorporated into §116.160(c)(2)(A)

and the section has been relettered accordingly. Adopted

§116.160(c)(2)(C) references 40 CFR §52.21(r)(4), which is

the federal requirement ensuring that sources or modifications

which become major as a result of the relaxation of an enforceable limitation are SUbjectto PSD requirements. lncluslcn of a

reference to this federal requirement will help ensure that the

TCEQ's regulation of these types of major stationary sources or

modifications will be as stringent as the federal program.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking action in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that the action is not subject to

§2001.0225 because it does not meet the definition of a "major

environmental rule" as defined in that statute. A "major environmental rule" is 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. Although the PSD permitting program is

specifically intended to protect the environment and reduce risks

to human health from environmental exposure to air pollutants,

the primary purpose of this rulemaking is to correct deficiencies

in §116.160 as identified by the EPA. Specifically, those corrections are to add certain references to federal definitions and requirements regarding BACT as it relates to PSD, and the review

regarding PSD review for projects that become major stationary

sources or major modifications solely because of a relaxation of

an enforceable limitation on the source or modification's capacity to emit a pollutant. This rule amendment is necessary to ensure that the rule can be a federally approved part of the Texas

ADOPTED RULES June 18,2010 35 TexReg 5345
SIP.The Texas SIP already includes the requirements of 40 CFR

§52.21(b)(12) and (r)(4), and although these requirements were

omitted in the previous rulemaking, the TCEQ continued to implement them. As discussed in the proposal of this rulemaking,

no fiscal implications are anticipated for other state agencies,

local governments, individuals, or for large, small or micro-businesses as a result of administration or enforcement of the rule.

Therefore, this rulemaking 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.

As defined in the Texas Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to: exceed a standard set by federal law, unless the rule is specifically

required by state law; exceed an express requirement of state

law, unless the rule is specifically required by federal law; 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 adopt

a rule solely under the general powers of the agency instead

of under a specific state law. This rulemaking action does not

meet any of these four applicability requirements of a "major environmental rule." Specifically, the amendment to §116.160 was

developed to correct EPA-identified deficiencies in commission's

PSD permitting program to ensure SIP approval by EPA and thus

meet a requirement of federal law. This rulemaking action does

not exceed an express requirement of state law or a requirement of a delegation agreement, and was not developed solely

under the general powers of the agency, but was specifically developed to meet the requirements of the FCAA, and is authorized under Texas Health and Safety Code (THSC), §§382.011,

382.012,382.017,382.051,382.0513,382.0515 and 382.0518,

and FCAA, 42 USC, §§7401 et seq.

The commission invited comments on the draft regulatory impact

analysis determination, but none were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the rulemaking and performed an assessment of whether Texas Government Code, Chapter 2007,

is applicable. The amendment to §116.160 amends the requirements for PSD permits. The primary purpose of the rulemaking

is to correct deficiencies in §116.160 as identified by the EPA

to ensure that the rule can be approved by EPA as part of the

Texas SIP. Promulgation and enforcement of the rulemaking will

not burden private real property. The rule does 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. Consequently, this rulemaking action does not

meet the definition of a taking under Texas Government Code,

§2007.002(5). Although the rule does not directly prevent a nuisance or prevent an immediate threat to life or property, it does

partially fulfill a federal mandate under 42 USC, §7410. Consequently, the exemption that applies to this rule is that of an action

reasonably taken to fulfill an obligation mandated by federal law.

Therefore, this rulemaking action will not constitute a taking 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,

35 TexReg 5346 June 18, 2010 Texas Register

§§33.201 et seq.), and commission rules in 30 TAC Chapter

281, Subchapter B, concerning Consistency with Texas Coastal

Management Program. As required by §281.45(a)(3) and 31

TAC §505.11(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 §501.12(1), relating to Goals). The amendment adds references to federal regulations that the state has no authority

to change. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the

coastal areas (31 TAC §501.32). Therefore, in accordance with

31 TAC §505.22(e) (relating to Consistency Required for New

Rules and Rule Amendments SUbject to the Coastal Management Program) the commission affirms that this rulemaking action is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal management program during the public

comment period. No comments were received regarding the

CMP.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 116 is an applicable requirement of 30 TAC Chapter

122, Federal Operating Permits Program. Owners or operators

subject to the federal operating permit program must, consistent

with the revision process in Chapter 122, upon the effective date

of the adopted rulemaking, revise their operating permit to include the new Chapter 116 requirements. Additionally, sources

subject to the adopted rules may become subject to the federal

operating permit program.

PUBLIC COMMENT

The commission held a public hearing on February 22, 2010.

The comment period closed on March 1, 2010.

The commission received comments from the Association of

Electric Companies of Texas, Inc. (AECT), Hilliard Emission

Controls (HEC), Sierra Club Lone Star Chapter as a single entity

(SC), Texas Association of Business (TAB), Texas Chemical

Council (TCC), Texas Industry Project (TIP), the EPA, and

Zephyr Environmental Corporation (ZEC). In addition, the commission received a comment letter from the University of Texas

School of Law Environmental Clinic on behalf of Citizens for

Environmental Justice, Texas Environmental Justice Advocacy

Services, Public Citizen's Texas Office, Environmental Integrity

Project; KIDS for Clean Air, Sustainable energy and Economic

Development (SEED) Coalition, Citizens Opposed to Power

Plants (COPPs) for Clean Air, Multi-County Coalition, Robertson

County: Our Land, Our Lives, Texans Protecting Our Water,

Environment and Resources (TPOWER), Environmental Defense Fund, and Sierra Club Lone Star Chapter (Environmental

Groups). All commenters supported parts of the proposed

changes While opposing others and all suggested changes or

additions to the rule or preamble language.
RESPONSE TO COMMENTS

HEC suggested that there should be incentives, such as emission reduction credits with sliding scale value, for companies to

develop and market systems and methods to reduce volatile organic compounds (VOC), nitrogen oxides (NO.), carbon monoxide (CO), and carbon monoxide (CO,) air emissions when complying with 30 TAC §115.541.

The commission made no changes in response to this comment. Section 115.541 concerns specific requirements for certain VOC emissions from degassing or cleaning of stationary,

marine and transport vessels in the Beaumont/Port Arthur, Dallas/Fort Worth, EI Paso, and Houston/Galveston/Brazoria areas.

TCEQ establishes environmental performance standards for

pollution control equipment that are reasonably available, and

does not mandate the use of any particular technology except

in limited situations. The Texas Clean Air Act (TCM), in THSC,

§382.o17(f), prohibits the TCEQ from mandating or forbidding

the use of a particular technology except in specific situations

required by the TCM or to meet federal requirements. The

control requirements of 30 TAC, Chapter 115, Subchapter F,

Division 3 do not meet any of the exceptions provided for in

THSC, §382.o17(f) and a specific control technology is not

mandated by a federal requirement in this situation. The TCEQ

must consider the availability of pollution control technology

when establishing environmental regUlatory requirements.

The purpose of this rulemaking is to ensure that the commission's rule regarding the PSD permitting program meets the requirements of the FCM and are approvable into the SIP. Section 116.160 includes the requirements for PSD permitting of all

NSR regUlated pollutants. The control requirements (BACT) are

determined on a case-by-case basis. The BACT determination

under §116.16o, as well as the rule itself, is an independent requirement from §115.541. Therefore, the comment is beyond

the scope of this rulemaking.

AECT, SC, TAB, TIP, and Environmental Groups commented

favorably on TCEQ's effort to more closely align state requirements regarding PSD with federal regulations.

The commission appreciates this support.

TAB and TIP objected to language regarding any deficiencies in

TCEQ's PSD program and the need to incorporate federal regulation by reference in order for state requirements to be sufficiently stringent.

Although the commission acknowledges the need to add the references to this rule, the absence of those sections was characterized as deficiencies in Texas's major NSR permitting program

by EPA in its proposed disapproval notice. Although these references were missing from §116.16o, in its permitting actions, the

TCEQ did not and does not circumvent FNSR requirements and

does not allow a control technology review to be conducted that

results in a technology that is less stringent than BACT as defined in federal rule. Additionally, TCEQ ensures that if a project

becomes a major source through the relaxation of an enforceable limitation, PSD review is required. No changes were made

in response to this comment.

TAB, TCC, and TIP stated that the current definition of BACT in

state rules is sufficient.

The commission is not making changes in response to this comment. The definition of BACT in §116.10 has a broad application, which is to all NSR permitting actions under the TCM. In

the NSR permitting process, the first determination is whether

federal requirements are triggered. If so, then the BACT requirements of 40 CFR §52.21(b)(12) are applied. The commission's

BACT process is then applied for any other air contaminants

and any other facilities not subject to federal permitting requirements, §116.10(3) is not approved as part of the Texas SIP; in

another rulemaking, the commission has proposed a revision to

the definition, which would be relocated to §116.1o(1). Consequently, the reference to the federal version of BACT is necessary. TCEQ's 2006 submittal of revisions the PSD SIP inadvertently removed the reference to the federal definition of BACT in

40 CFR §52.21(b)(12) that had previously been in §116.16o(a).

This reference to federal BACT was included to ensure that the

commission's rules meet FCM requirements for the Texas PSD

SIP.

AECT and ZEC suggested language in the adoption preamble

stating that the rule revisions would not change how TCEQ conducts BACT reviews for current or future PSD permit applications. AECT requested the preamble state that these rule revisions do not support an argument that any BACT review conducted for any PSD permit that was issued before the rule revisions become effective was inadequate or invalid.

The preamble states that although references to FNSR are currently missing from §116.16o, in its permitting actions, the TCEQ

does not circumvent FNSR requirements and does not allow a

control technology review to be conducted that results in a technology that is less stringent than BACT as defined in federal rule.

The commission agrees that these rule revisions do not support

an argument that any BACT review conducted for any PSD permit that was issued before the rule revisions become effective

was inadequate or invalid.

AECT, TAB, TCC, and TIP stated that TCEQ's PSD program is

SIP approved and all previously issued PSD permits are valid

and enforceable and requested the inclusion of this language in

the adoption preamble.

EPA approved Texas's PSD permitting program, and TCEQ expects EPA will approve the amendments in this rulemaking as

a revision to the Texas' SIP. The commission's position is that

all PSD permits issued by the commission and its predecessor

agency are valid and enforceable.

Environmental Groups and SC expressed concern that TCEQ's

three-tiered BACT review is not sufficiently stringent to meet EPA

guidance. Environmental Groups requestedthatthe TCEQ state

in the adoption order that, "three-tier guidance is not relevant to

federal BACT determinations and that federal guidance should

be followed in conducting such determinations." ZEC also requested that the TCEQ state in the response to comments that

three-tier BACT will continue to meet PSD BACT review requirements.

In conducting a BACT review, TCEQ uses a three-tiered approach. In Tier I, there is a comparison of the proposed BACT

limits to BACT limits accepted in recent permit reviews for the

same type of process. However, this would not be applied if

there are new technical developments that have been made indicating that additional reductions are economically reasonable or

technically feasible. Tier II consists of application of BACT from

a different production process to the proposed process on the

basis that the air emissions streams of these processes share

physical characteristics. Tier III consists of evaluation of BACT

from the standpoint oftechnical feasibility and economic reasonableness.

ADOPTED RULES June 18,2010 35 TexReg 5347
In addition, there are some special considerations for PSD

BACT review in Texas, based on commitments that Texas made

to the EPA to obtain a SIP-approved PSD program. The Texas

Air Control Board (TACB), the predecessor agency to the TCEQ,

agreed to require the applicant to consider the lowest emission

limits in the EPA's Reasonably Available Control Technology

(RACT)/BACT/ Lowest Achievable Emission Rate (LAER)

Clearinghouse (RBLC), and review several other obsolete EPA

information sources, to identify the most recent developments

in BACT. The EPA also expressed an expectation that the

permit application review include an independent review of the

applicant's analysis, if the applicant does not propose the lowest

emission limit identified in the RBLC or other information source.

A record of the BACT methodology issue is available in the

EPA's proposed approval of the Texas PSD program published

in the December 22, 1989, issue of the Federal Register (54

FedReg 52823-52826) and in the final approval published in

the June 24, 1992, issue of the Federal Register (57 FedReg

28093-28098). The TCEQ has used its permit workshops to

identify the need to evaluate the RBLC in the PSD BACT review

and Air Permits Division staff are aware of the need to evaluate

the RBLC in the course of PSD review.

Furthermore, the TCEQ also uses the EPA'sDraft October 1990

New Source Review Workshop Manual Prevention of Significant

Deterioration and Nonattainment Area Permitting. It provides

a source of reference for understanding EPA's PSD permitting

process. While almost 20 years old, it remains the primary EPA

guidance in PSD permitting used by both the EPA and the states.

The EPA top down approach requires the applicant to look at all

of the technologies that can reduce emissions from the proposed

source and rank them starting with the most stringent, and to use

the most stringent limit or technology that is technically practical

and economically reasonable.

As noted in the December 22, 1989 and June 24, 1992 Federal Register notices, PSD-SIP approved states are free to follow their own course, as long as the state's actions are consistent with the letter and spirit of the SIP. EPA has concurred that

TCEQ's three-tiered BACT evaluation is equivalent to EPA's top

down evaluation considering a review of the RBLC and the review of similar permits across the country. Therefore, TCEQ's

BACT evaluation and determination process is consistent with

the federal BACT requirements in 40 CFR §52.21(b)(12) and G).

EPA requested TCEQ revise its BACT guidance document and

submit it to EPA as a SIP revision to the Texas PSD SIP. SC

commented that it prefers the TCEQ follow EPA guidance for

BACT determination or that TCEQ assemble a workgroup after

the adoption of these rules that would include permit engineers,

and representatives of industry and environmental groups to develop a presumptive BACT for specific sources.

The TCEQ's Air Permits Division is currently engaged in development of the Air Pollution Control guidance document which

will replace all previous agency pollution control guidance documents, including the October 30, 2000 Texas Natural Resource

Conservation Commission Best Available Control Technology

and the Best Available Control Technology (BACT) Tier 1/1 Cost

Analysis guidance documents. The draft document will be published and the commission will request comments on the document prior to its adoption. The commission is reviewing the EPA

request to SUbmitthis as a revision to the SIP.

35 TexReg 5348 June 18, 2010 Texas Register

EPA requested that TCEQ permit writers submit an explanation

of their BACT analysis for each PSD permit application and include it in the Preliminary Determination Summary document.

TCEQ permit writers prepare an explanation of their BACT analysis for each PSD permit application and include it in the Preliminary Determination Summary document.

EPA commented that the revisions to §116.160 appear to satisfy

its concerns regarding the sufficiency of the commission's rules

for PSD permitting.

The commission appreciates this support.

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (lWC),

§5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the

lWC; lWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and

duties under the lWC; lWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas

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

that authorizes the commission to adopt rules consistent with

the policy and purposes of the Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policy

and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection

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

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

THSC, §382.012, concerning State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. The amendments is also adopted under THSC, §382.051, which authorizes

the commission to issue permits for construction of new facilities

or modifications to existing facilities that may emit air contaminants; THSC, §382.0513, concerning Permit Conditions, which

authorizes the commission to establish and enforce permit conditions; THSC, §382.0515, concerning Application for Permit,

and THSC, §382.0518, which authorizes the commission to issue preconstruction permits. The amendment is also adopted

under Federal Clean Air Act (FCAA), 42 United States Code

(USC), §§7401, et seq., which requires states to submit state

implementation plan revisions that specify the manner in which

the national ambient air quality standards will be achieved and

maintained within each air quality control region of the state.

The amendment implements THSC, §§382.002, 382.011,

382.012,382.017,382.051,382.0513,382.0515 and 382.0518,

and FCAA, 42 USC, §§7401 et seq.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office ofthe Secretary of State on June 4,2010.

TRD-201003113

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 24, 2010

Proposal publication date: January 29,2010

For further information, please call: (512) 239-6087