Bryan W. Shaw, Ph.D.. 

### Chairman BuddyGarcia, 

### Commissioner Carlos Rubinstein. 

### Commissioner Mark R. Vickery, P.G., 

### Executive Director 

# 10 JllL 20 Pt1 1.1: 

# '0
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas 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 r >-r: f'..') 

# _. c::> 1"1 c-:.;:) .' 

### S: 

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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 ofTexas 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 ofFederal 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 AgencyCLASSIFIED ADVERTISING INVOICE/STATEMENT



# $----==::---== 

# lZJ [II •. 015082126 TCEQ 015082126

01115110 DUE 15 DAYS $1,823.93 $1,823.93 

## I**~.** "v ! 

# I**~..A-H** I E HOUSTON CHRONICLE 

### HDUSTO"XJ. R[IN CL CREDIT SERVICE DEPARTMENT 

## chron.com 801 TEXAS AVENUE HOUSTON, TX 77002 Retum Service Requested



## '11111 11 10

## '/1 

## 111111,1111 11""'1""'11"1'11"111.111'1111.11111 TCEQ MC173 ATTN CHARLOTTE HORN PO BOX 13087 AUSTIN TX 78711-3087 Advertiser/Client Number. Advertiser/Client Name: Billed Account Number: Billing Date: Payment Terms: Current Net Amount: Total Amount Due: Amount Enclosed: Please call 713-362-7792_ to pay by credit card

Please make your checks Payable to HOUSTON CHRONICLE

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Please aetscn ana rerum abOve ponion wirh your peymen:

# HDUSTD~HRDNICLE chron.com CLASSIFIED ADVERTISING INVOICEISTATEMENT HOUSTON CHRONICLE P.O. BOX 80085 PRESCOTI'. AZ 86304-8085 TID #: 76-0556295**AdVIC~ient** BllledAcct Total Amount Due Advertiser/Client Name Number Number Billing Period sales Rep. TCEQ 015082126 015082126 01/15/10·01/15110 MEARES,A #0631 $1,823.93 Newspaper De8crlptlonlOther SAU Size GrollS Net Reference Number Comments end Charges Billed Una Amount Amount 01/15/10 INV:4S1594031 1245 LEGAL NOTICES 139X1C 1 $1,788.93

FAI AD#:241 09123 PUBLIC HEARING ON PROPOS 139L 12.87 SLS:631 BY:SANDY WONG BORDERS $35.00 P.O. # 2010-005-116 $1,823.93
HOME SHOPPING? CHECK THE WEEKEND CHRONICLE. SATURDAY FOCUSES ON NEW HOMES, COMMUNITIES AND DEVELOPMENTS AND SHOWCASES COMMUNITY AMENITIES, AND MORE. PLUS GREAT ARTICLES ON NEW HOME TRENDS, SUCH AS OuTDOOR KITCHENS, GAME ROOMS. AND PRACTICAL INFORMATION ON MORTGAGES. SUNDAY HOMES TARGETS RESALE HOMES, HIGH RISE LIVING, CONDOS, TOWN HOMES AND MORE. AND EVERY DAY, GO TO CHRON.COMIHOMES FOR HOME LISTINGS, PHOTO TOURS, INFORMATION ON THE HOME BUYING PROCESS, WAYS TO GET A FREE HOME VALUATION AND HOW TO FIND AN AGENT. TO ADVERTISE, CALL 713-224-6868 OR EMAIL.CLASSIFIEDS@CHRON.COM.**~_.** Unapplied Total Amount Current 30 days 60 days SO days 120 days Amount Due $1,823.93 $0.00 $0.00 $0.00 $0.00 $0.00 $1,823.93

### 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

PIJBUC HEARING ON PROPOSED R£VISlONS TO 30 lAC ctIAPl'E1R 116

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 tloId a 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 order of regis- tration. Open dlscus-. Slon will not be 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 3If you need more information about these permit applications or the permitting process, please call the TCEQ Office ofPublic 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) willconduct 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 of the 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 wastewaterat 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 ofpollutants 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 Usesand 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 of separate 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 ofan 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 reviewedby 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 theUnited 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 forprojects 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 byreference. 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 ofa 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 referencesare 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, TCEQensures 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 aPSD permit, this is proposed for addition because it complements the reinserted definition of BACTIn 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 569any 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 theapplication 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 requirementsregarding 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 §52.21 0), 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 controltechnology 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 firstfive 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 whenconducting 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 ASSESSMENTNo adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rule. The proposedrule 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 ANALYSISThe 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 withfederal 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 STATEMENTThe 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 "majorenvironmental rule" as defined in that statute. A "major environmental rule" is a rule the specific intent of which is to protect theenvironment 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 deficienciesin §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 partof 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 solelyunder 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 permittingprogram 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 ASSESSMENTThe 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 actiondoes 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 goalto 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 amendmentadds 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 NewRules 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 ruleis 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 Park35 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 571oral 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 contactCharlotte 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, MC205, 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 submittedvia the eComments system. All comments should reference RUle Project Number 2010-005-116-PR. The commentperiod 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 theTWC; 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 Healthand 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 Policyand 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; andTHSC, §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 emitair contaminants; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0515, concerning Application forPermit, 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 of Significant 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 of subsection (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 ofair 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 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 bythe 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 reviewedby 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 theregulatory 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 1,000,000or 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 firstfive 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, theneed 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 by 

### Reducing 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 ofan enforceable limitation are subject to prevention of significant 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 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.For 

### further 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 ofElectric 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
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### March 1, 2010 

## ----NO, 

## 7689-P, 

## 1---- 

# w-.

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### Jnlm W. P.mto;. 

### Jr.

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### 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 

### Dear Ms. Duron: AEPSWID'CO

CenterPomtBrIerlY

Entergy Texas

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 

## on their industry, 

## and to 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 of the reference to the 

### definition of "best available 

### control technology" 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

Member 

### Cnmpnnles A"f!P SWEPCO

Centl!tPointEntorgy

El Pasnmt'l:trlc Company

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 

## PSD programhas been SIP-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 Keith Courtney at**(512)370-281~~** 

## Sincerely,

2 

# W-l

S90535v.1467 1102/08/2010 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-2PR< )., 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 

# W-4

March 1,2010
Ms. Patricia Duron Texas Commission on Environmental Quality MC205 P.O. Box 13087 Austin, Texas 78711-3087
Re: Rule Project Number 201 0-005-116-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 indirectjobs 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 of sources 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 ofproduction processes or available methods, systems, andtechniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such 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. Ifyou 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) 

# W-4ABU DHABI 

# W-5 AUSllN BEI)ING DAllAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIYADH WASHINGTON Kathleen E. Weir TEL +1713.229.2108 FAX +1713.229.7908 kathleen. weirCbakerbotts.com TEL +1713.229.1234 FAX +1 713.229.1522 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 PROJECT 

# No. 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 of significant 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 of the 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 

# W-s

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 of the 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. HEAL 111 & SAFETY CODE § 382.05 I 8(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 TACBpermit**re~uirements** 

### meet the provisions of the 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 ofcertain 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. 

# W-s

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. 

# W-s

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 

# W-6


# MAR 0 1 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. Ifyou 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 ofcertain 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 ofprojects 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 

### § 1 I 

### 6. 160(c)(2)(C) to incorporate the requirements of40 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 of40 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 ofeach pollutant subject to regulation under this chapter emitted from or which results from any major 

# W-6

### 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 ofproduction 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. 

# W-6

### 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. 

# W-6SCHOOL OF LAW 

### THE UNIVERSITY OF 

### TEXAS ATAUSTIN
Environmental Clinic' 

### 727 East 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, TX 78711-3087 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; 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; 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 Behalf of: 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 2005-010-1 16-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 ofemission 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 ofeach 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 ofany 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 ofdetail," 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 ofalternatives, 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 if 

### it can be obtained through commercial channels or 

### is otherwise available within the common sense meaning ofthe 

## term." An available technology is applicable 

### if it can reasonably be installed and operated on the source type under consideration.l" Ifthe potentially available

9 In re: Desert. RockEnergy Co; at 19 quoting NSR Manual at B.l O. 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. 16

Id. 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 ofa 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 ofall 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 ofevaluation.,,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 ofpossible controls required pursuant 

### to the Clean Air Act's PSD program. Congress created BACT as a technology-forcing measure to compel the ''rapid adoption of improvements 

### 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 

### what 

### has 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 CleanAirAct-Amendments of 1977, S. Rep. No. 95-127,18 (1977). 34 Id. 3.5 TCEQ Guidance, 

### EvQluating BestAvailable Control Technology(BACT) inAir Permit

. Applications at 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 ofcompletion ofTCEQ' s technical review. EPA guidance is clear that relevant information regarding technology developments must be considered up to the date ofpermit 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, "BACfILAER CutoffDate 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 Knauf Fiber 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 ofall 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 

### draft PSD-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 ofother analyses and what other states are doing and what we've done previously to makejudgments. 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 

### than others.'.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 andjudicial and Environmental Appeals Board

.43 Application 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 documentedjustification 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. PSDPermit Nos.PSD-TX·II60, PAL26, 8IId HAP28, Matagmda CoUDty. Texas Deer Mr.Hyde:

Enclosedis the U.S. EnviromnenIaI. Protection Ageacy(FJ'A)

# mal'" oftbe.bcmlrd'etmeed pennlt actions. Weperformed this mWysis in lightoftbe lecaJt issuImI:c oftbe Texas Commiuion onFmiromnental Quality (TCEQ)Response to Comments (R.TC) JegIIIdilIg this IIIIttcr on October 2, 2009. and the upexlming "Hemingonthomerits".lICheduled to beginon Fabruary 10.2010. Ourcomments focus 011 aspects ofthe permitdOllS that lIppar to be inccmsistenl withtbe requiremeals of tbe fedezal Cleen AIr Act BIId tbe implemenIfDs regu1aIions, including lhc federally-lIJIPIOved Texas SIIItc Implemeotatioo PIao(SIP). lfthe i_ dcaI1ed in this letter

_ not

### 8JlPl'OPl'iatel nepondecJ to by 1'CBQ prior to flnal molulion oflbis penniUing lICtioo, EPA _y llllIIsider usiDg Clean Air Act 8IIIbori.tiIllI to object to the subsequeDt TItleV operatingpermitb this fiIcllity. or other remedies IIDlIer tbe 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 Multimedia PIarInins

and PermitliDg Dimon EDclosure 00: TCEQCommissioDOlll Mark Vickery. TCEQExecutive Dim:tDr SteveHagle, TCEQ

I ""'_

.. (UAL)• ......-.

_ 

# ___·_ _OI

__...**_,.,..-._~** 

# I
1 L AlrOwUtt 

### 1m

... ApInIa We COIIlInlIIltIll on thedraftpemIitb tbepropoeecl WhI1e Stallioll fiII:ility on**AprilI4.~.** Tn tbe ExcculiYC DI!ec:Ior's zespome to ccmmentI (R.TC), tbeTCEQ dII8plOd wflb. our IXl1IIIIleIItI thatphotocbaDicalmodelingb omae WIIS IIIlOlIed to dmoonslrate that lhc 

### JIlOIlOII&'d sOurce wouldClIUIIO or contributf: to violation of theNatioll81 Ambient AirQu81i1y S1mdards (NAAQS). TCEQ abo dilllplld withourlXlIIIIIIIcat thatthe-1IIIlIJ,als performod by the eppliClllll wu in diJect cODfIiGt withNOxeoatrol stntegles developedto ftJduce ozooe in tbe IIClIIby Housioa,

.. 

### Oalwatoa. Bnzula (HOB) lIOIHIlllIinmen

_ TCEQ indiCIIed iflll ewluatioD of 0_ ImpICII on a lIIlIHIIaiDm_uall ueeded, thatthe SlPpocas II bell suited for such III eva1uatioD. you 

### _a-. 40 CPR 

### f '1.165 -' '1.166 requinie pennitting IIIthoriIiesto cIcmoaIInIte !bat tbe

### JlIOPlIlIed 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¥c**that~** air quBIity. 

### mocIelina III1IIt be 00IIducted to clalrly ciemonatJate that lhc Jll'I!iect will not IJClI,lIdftIy iDip&ct ozone conceatratoDs at spocific monitDrI in tbe HOB-. TheTCEQ • stated in i13 RTC thatEPA bas DO pre&m:dmodel to detmmine imp.:1lI fiom a siDg\el101lICC; 110 requirement forphotochemical modeling; end110 requirement for lIpplicant to coDduct JqionBl_llIllI1y11a. OurPSD 

### rcauJatons at 40 CFR. § '1 Appondix W '.2.1 RCOIIIIDeIld modellforCYlllIIlding OZOIID iIIIJlBlD SpecIftcaIIi. cootroI.geucies with juri8dIctioi1 OWl'

__ with 0Z0IIIl probI

__ eIIOO1Il'lIJCld to UIIepbotoc:bemical grid models lIIICb 8lI ModeIa-31CommlDlity MuIti-scaIe Air QuIIity (CMAQ)mocIoIinI System to eveIuatIi tbe te1ationsbIp pIeClIIlIOr spcclcs endClZll& In our April 14.2009 COIIIIIllIIt JottIIr to TCBQ on tbecIrIft permitwe BIeo diecuslIed po1eDlillI1y

### wg a CAMX 1.-l_ysla, eJnci TCEQhu mWtiple episode dat8bases that 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 0ZIllD0 Impatts 011 a 

### -tJr- bali&. In aD cdfort to delaminodlattheptiipoIod iICIlRe will Dot

_ or contn"bule to en airpo1ludon in violationof

_ NAAQS IlaacIerd, we bave offend to 'WOI'k em a modcIlng protocol withTCEQ for this filcility. To dale, D8itber TCEQ northellJlPlicuthave electedto coasu1t withne on UIIeofa modding protDcollhat wouldesIimatc potential ozilrie impaclI&om thepopolICd IOQICOdapitll EPA'sdirect c:ommenl to TCEQ em tbillIIatIer. In addition, thoTCEQ RTCeJqlIeaed concern thattbe lICOJlO of1bomodo1iDg aDduaociated moiewrequired for mu1tlp1o epiIOdeIlDIl moaiwn (and poteatla1 control-nos for III)' IIIIIIIitms CIIIftIIdy allow tbe -1laDdaM) wouldbe coatly, tab up loa Y"8J' to 0IimpI

.. aDd atill DDtproYIde iIdimnation to cIeftniIift1y addraa EPA's -. aiDce the EPAcIoeeDllt baft en wtabIlsbed Bipificant Impact IeYeJ. (SIL) for ClZll& 0Ibri pomUt BpJl1fcanla and pmniaiDa IIIlIIoritlesin RetIion 6 

### (mcludina TCBQ) havewoibcl with neto ecmduct pbotocIIaDIcallIIOdBIing to demansIrate that a puJIOBllllJlll1lC would DiJt

_ 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~** 

### tconduclt lIIIdthe cost, wbc:n.COD1nc1or ha been 1IIeCl, is minimlII withIIIlIIIt

.. yses COIliDg leu Ihao the other criteri.poDubaII: JIIClCieIiq. TCEQ also 9IaII:d thlItEPAcIocs DOthave • requirement for pbolochamieal 

### modeIina orSIP IIIlainmeDt cIcmoostmiOD 

### IIIOdeIiDa ta:IIDiques AIr NSRpermitting for sources ofVOC orNOx witbiD 100end 200 Idlomctas, raIplldively**of~** pm:ursors oullide. DClIHIUlIiDmlII lIIQ. HO_,lbe TCEQha dew10ped multiple

_ SIPswbcreIOll[l:eS ofNOx, !haI_ at least I()()'200 km ouIlIide 1beDOD-8l1IIiDmeat areas, have been COIIIJoIIcd to yieldozone de=ases in the nOlHtbllmnmt

__ (DFW IDd HOBSIPsin 2000f200I, DFWSIP 2007). TCEQalsocommented tb8l winds wuuld DOt transport the JlIOpclIed source', emiasioua to the HOB non8lfaimnent 

### mea. but ODDIideriI:Pg the proximity of the lIOUnleto the HOBarea, we IIIC concemcd because prDVious rnocIeIiDg episodes have had multiple cia,. with winds flomthe1IItlSt thatcould tnmsport emissions towards the HOB noDllttainment lIIQ. We remain edremeIyoolKlllnJed &bout the TCBQ pidance rcfaaIced by 1beIIpJI\icaat in the Modeling Report !haI_ submiu.t IS 10

.. ",,'ment ofthll0E0!lIl impBcts &omthe !IllUIlle in its PSD permit applkatlOlL B88ed on 1beIeSIIIla oftbis gulclllllee. TCEQ IBId 1be applicant cIeIamined that theJlIOject is "ozone DCUtrI1." In thep8SI, TCEQ

_ relied upon!lip NOx redul:lions to decrease _levcla in ozone SIPs for theHOBend DFW

_ The cumut TCEQ IIpJlI'C*h for thiI permitreIica uponllCieDCll!hal_lhat 1be

__ to emit 

### vOCa at. sufficient lew! to cbemicaIly react withtbesource',NOx emissions to &eaer8lc 07.0De. We disajpee !hal VOC omiuionshaveto be c:o-cmitted Itthe 10_to CllUlIO impaccs on oumelove1s. 

### AJthouah TCEQ indicIred this umIyJisis DOtbaled 011the Sc:heID Poinl Soun:o Screening Tables fordetermining ozooe IDIbicnt Impacts, the approech lad ildl!rptetldioD does DDtclearlyd.emoostnde tbatthe IOWlle wiD DDt

__Iy impact control stndegiescIl'IveIoped ttl reduce

_ in lbe HOB -. TCEQ and 1IIe applicants should tJtilim. technically appropriate modeling tedmique lIIIdIbonldworkwith lIII 

### em IICCOrdI8:e with PSD 1eguiali0llll1Dd Appendix W) to determine wbetber • poteIIIiaI Impact &omthis 6ciIity woaId CllUlIOor COIIfribute to • potential violaliouoflbe ozone NAAQS IIIlmdards or ImpICtI onDelIIby IIllIl-8llIIinm areas. TCEQbq DOtpRlvided111• demoostmtion tb8lthis fiIciIity wiD DOt nepdvely Impact ozone lewis in

### MstasonJa County ortho HOB non-attainmeat area. Ifsuch modeliDg bq been preparedby 1beapplicant or TCEQ, we**~uest** tbItit be made available to 111 end lbe public forreview. Do P!aptJrickAu

.... i1itt Llgdt (pAL) Since EPA_DOt 

### approv= TCEQ's PALprovisiOllll into theSIPendproposed disapprovaJ of IlUCh JlIOvislOllll on Septanber 23,2009,(74 FR48474), lOy PALpermitissued by TCEQ ttl. new major slBtIoaary source may be oo.nsidered • DOD-SIP-appvved permit by EPA. We identified in our Fedcnl Registao notice1hat PAL permilll can oaIy be Iaued ttl**~m&jor** Slationsry lIlIUllleS,whiI:h pndudes applicaba1ity ora PALto • new 

### m¥tt staliOlllll}' -..:e, 81 required lDIder 40 CFR §§ 51.165(1)(1)(i) and51.166(wXI )(i). W"dbout It least 2 yearsof opending history, • potcDtiallOlllCO lib While SIaI1ion E.-gy CenIer

_ DOt esIabIished lICtIIII1 emissions to facilil8le devaopmmt of. PAL. 

## I I 

# L

j. required lIDder 40 CJ1R 

### It 51.16S(1)(1)(i) lmdSl.I66(wXI)(i). WIthout at leut2 yeIIII 

## or 0JIllIatin& history, • poIeDtiaI_1ib WhiteStallion 

### llnaBY CeaIer

_ DOt lL!ItIIbIisbed lICtulII emislions ttllilcilitlde deve10pmeDt of• PAL. 

### m '

....... M.UVlPM)t5 We leYiewed theTCEQ's ResponseNo.4 ia the RTC filed 011October 2, 

### 2009, reganliDaPMu. Ho_, we haw CllIIl:eIIII regardina TCEQ's relianlle011 die PMIO sunogsIe polk:)'. It is DOW IIClC8IIlII)' to provide • demonstra1ion ttl supporttho useofPM1o as a IlJIItl8l* for PMu. Tho applicant sbouId IlIbmit• R:Yised app1ication or demon8lnItion 

### addressina PM.z.s emlssiOllS. Sa. 111,.,**LouImU~** Go8 ClIIdEl.ctrie, Pelition No. IV -200B-3 (OrderonPetition). Tho lldditlonsl information should eithersdcbea PMuemissions dim:tIy or show bow oompliancewiththe PSD requiIaneDtI fur PMIO wiD

_ a 8D acleqllll/B 

### sw:msate forlIIeIlting the PSD for

### PMa.s in 1hisspecificpermit, aftIIr 

### consIderIDa 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 IIIIlborities IDd pamit appIiCllllls lID eslabIish m appmprilde PMu modelingprotocoL H1be Ipp&aat cboosa to model for PMz., Impacts dIIectly, please-.tact UlIto develop a 1Ddhodo1ol)'!haI will ensuretbIIt 10 appropriate ualysisis perfonned. IV. I

....... GuUlgdop e-biped CydetlGCCl CwIdent!tIl !be TCEQ incIicatcd In its RTC OIl pege 29 of61 in 1beEl=uIive Dlreclor's Response to CommenIs tb8l neither the sppIicsnl DIll' TCEQ eYa11J&1ed lOY other electricalpleI8lioD medJocIs IlICh as IOCC orpulverized COllI (PC) boOen. TCEQ Indi.c8led that inclusion of lace in the BestAVlliJabIe CoIdIoI TecImo1ogy (BACl) lMI1U111ion WOU1d RqUire mbsbadislredesign oftho applicant's 

### JlIOIIOlIIld facility. Lab::c in the same rcapoose, TCEQ indicates ibatit doesDOt require a mrlewoflOCC 81 pill ofthe BACTJeView for electricgeaeI8lingmIitlI (BOUs). In It le88t one federalpermitting action, lace was COIIIidencIID 

### av&n.blci option in 1be BACTIDIIysisfor • filcWty proposed to pendll e1cclridtyfrom. COlli. 

### see PniriC Slale Oener8ling Compeny (Dllnois). Pmt1Ier,In. dccisioD, the EPAEiIvironmenlaI Appesls BoaRl (BAD) -.led tho permitbeCIDsc it did DOt ClCIIdaiD 10 aiIequIlejustificalion for cxclading IOCC &om 1beMCf 

### 1DIi,m fur. C08I firedJIC"i'IrBGU. See DeIert Rock Jbqy Campsay, LLC,PSD Appell Nos.**~3** elll. SUp. Op. It 76-77(BAD Sqlt. 25, 2009). This BADdecision _tbllowed in theTiiIe V Older for 1bepetitionliD1beAmerican. Electric Power Service Corporation, Solltbwestem Public ServiCe Company Jolin W. Turk order respondin; to a T'ttle V petition (petition Number VI-200B-I), where the EPA AdmlDistnltorfoun4 that the Artanus Department ofEnvirollJDelllll1 Quality (ADEQ) failedto provide an _equatejustificationttllUpport IIlI COIlClusion In the PSD BACT analysisthat IOCCteclmologyshould be eliminatedflom coDSldendion 011 the grnllllds that it would "redefine" Che propoeed soun:e. To meet the eppliCllbIe lepJ criteria UDder the PSD program. a BAcr ID81ysIIl for each po1lutlmt IIllI8t coukIer "lIppIicatioD of production processesor anilable methOds, systems. end techniqoes

... for control ofsncb poDulllllt." See40 C.F.R. 

### II S1.166(b)(12) lIIId 4OC.F.R.§ S221(bXI2). Therefore,



### '-J 

# I· 

# I 

# I

r 

# I· I' i 

# I

I,s. ! 

### t: when a potcntial pollution cootrol strategy is not considered in a BACT 8D8lyais, the IeCOrd shouldprovide a reasoned basis to show why that option is DOt available in a particular iutance. We recognize tbatTCEQhas madea good &Ilheffortto lIddn:SIlhk '- COIISi3lenI withpriorBPAdelenninaDons, 80_, in Iigbtof tileBAH's

__ conclU8loDs,

- strouR!y RClOlDmend that TCEQ and the permit applicantspceiftcallyaddress 8JI)' IOCC technologylXInsideratious as a put of theirBACT 8D8lysls and provide a reascmed explsDation consistentwith the BAB's positionto supportany clecision to eliminate such an option or to exclude It altogether from a BACT IIIa1ysls for this proposed8ODl'Ce. y. BACI' LhII1P Bated DR C1FP lueb It is UDclClll' if the TCEQ or the applicantconsideredMclean fuels" in its BACT analysis. Commeat 27 in the rellpolllle to comments indieateB that 1XI1D1DClntell ststed that the applicantand TCBQfailed to comider alternative fuels to redlll:e emissiom such as using only PowderRiver Buin (pRB) coal.. TCEQ BtatOd in its respo_lbat the "applicant proposes the facility to accomplishItsobjective based uponits business deeislom. Th08ll decisions includethe appliClUlt'. choice of fuel.. The appli<:eDt deligned the plant Dllna its choice of fuels and TCBQ reviewtld the applilllltion as it wullUbmiuecL TCBQ does IKlt spceifythe type of fuel to usein a fOlliIfuel electric: generationplantbecause the cost of fuel is a primarybuaiDeu decisionl:ODSidera1ion thatis up to the applicantto detelmiDe." We bellew the TCEQ Ihould analyzetheJlOSlII'bility of c1eaaer fue1s 88. alternative priowy fuel SllIIICe In the RTe. Atlhk time, TCEQdoes DDtiDcIude a tmaaIly approved defiaitioa of BACT In ils State rules, The CIeaaAir Act includesthe tenn 

### "0_ fuels" in tbe definition of BACTafierthetenn "fuelcleaning." 42 U.S.C.§ 7479(1) •Thus,wheaapotentla1polluliou controllllDtqyis not eva1uated In dellilla a BACT1IIlI1ysis, theneord shou1d puvlde a relIlIOIIed b8sis to show whythatoption is DDtMavailabIe" in a pBrticuIar instlIaIle. BPA has rccogaized that"awi1able" optioos for a partil:u18r facilitydonot neeessariIy bave to iDcIade optioosthatwould fuadsmentaIly "ndefine" the IOIIR1C propollOcl by 1he permit appIicaat. See,**8.lJ~** In 10: Desert Rock &ergy 

### c:omp.y, LLC, PSDAppell No. 08-43 ct at, s1ip

op.at**5~** (EAB,September 24, 20(9).**H~,** EPAiateIpretB tbe Act to require a jllSliftcaliOll, baaedon llII ansJ.,silI of tile underlying admiaistrati'WIl'llCOId for ada permit, to support a conclU8ion that en optioo IsIIIJt MlMIiIable" ina gIWID case 1m the grounds tbat it would fimdBmcotally "redefiDe the SllIIIal •M Desert Rock, slip op. at 63-72, 76. Baaed on lhe record hIlre, it does notIppc:III' thatTCEQbas provideda l'tlISOIIed expIllII8IIoD 

### cIemoastnIIiDa why 1he option ofosina PRB c:oals is not "available" forthisfacility. Webelieve TCEQmustclearlyprovidea ratioaale for why 

### utiliziDa fuelsother thaD IIIiaois coal arJIlIor peUOlemncob, or blendsfromeach oftbc proposed ideDtifted fuels COIIIlilIIleI "redefiDiDa tbc 1IIIIIIce", Further, the mtioaaIll sbou1d stateifthin III't 

### --no.**OD~** or llIIllrgy impaclll fromtheusc ofPRB COI1s (or IllMIl' lIII11Ur pe1rOIeum cob)tbat MIah epiDst Itsselec:tion 88 BACT.. WeackDowledge that Ststes with SIP-epproved PSD JlIOlJIIIDS have indepeadeot dIsc:reIioa andare DOt lICCCSIUiIy requiredto follow all EPAplIicira ex iaterpnltations. See,e.g..57 Fed. Reg. 28093, 28095(JlDle 24, 1992) • JIcnmcr, 8IateI tbIItfaIue PSDpermits IIIIder SIP-approved reau1lt1lD11l1re required to lXInduct a BACTllIlalysis dI8l ill 

# I I I i 

## I 

# I. reasoned IIIId &ithful to the itatutory framework. SeeAiaSka Deptof Euvtl Coasllrvation v. EPA, S40

### ua. 461,484-91 (2004). On the question ofwbether In optionmay be excluded because ItredeIbW:s 1he propotIlld so-.1he BADbas deve10ped an analytical ftameworltdl8l EPAUBeII to _1bIa '- in its 0WJl pllIIIIitIiDs cIa:ialoos. See,

### e.a.. Pmirie State, slip op. lit 26-37; Desert Rock, slip op. 1Il59- 65. SiDIle the BAD bas erticuIated a foundation for its lIpPIOIICh tbat

.... upIIeIdby oneU.s. Courtof Appeals,-llIODIiy recommend dI8l SIP-lIJliirowd Ststes followtho liamewmt utlcuIated by 1he BAD. We lire DDt 

### CODl:Iudlaa that 1he"paeot pcnnit 1imits do DOt repraeat BACT· OIIIy that tbepr-m pamit IllCOId does DOtappear to puvide a suIDcieul nlIicaile to demoosIrate 1he adelpcy oftbe BACTddmn!lIlIIjoosforthis 

### faciIit¥. In additiaD, _ire not cxpresslag a policy preference foruti1ization of a pIltic:ular coal

### tYPe. excoal tiom a putiI:.ul.- ooa1 bain. BP A supports the developmad and uSe of a broad I1IDF of fuels8Dd tecbaDlogkis lII:ItlIIS the energy sector including those thatwilleasb11l the IDIIBioable lIIIl ofcoal. Oar primIry coacern is the adequacy ofTCEQ's IeIpoIIBO andrationale for excladiaa PRB ex1hepoaibi1ity of utiJiziagIowa:sulfurc:oa1 exlowersulfurpetroleum cob • .tbeI oplioas.

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# ~- JeffRobiDson Chief Air Permi.ta Section Office ofthe Chief Clerk TexasCommission on Enviromneilta1 Quality (MC-IOS) P.O.Box .\3087 Aostin,TX 78711-3087 RE: Preveotion ofSigoificmtDeterioration (PSD)DraftPennit Big BrownSteemElectric StaIioD Unit3, PSD-TX-I06S. FIee8tone CoUllty, Texas To Whom It May Ccmcem: We have nvift'ed thedraftPSDpermit forthe Big Browo SteIDl ElectrlcSlatiOll, located in Freestone CODDty, Texas. We received 11m our officeon October 27, 2006. Thodraft permitwas evaluated to ensurecolllistellcy with theTexasPSD Stale Jmplemeolation PIm (SIP) 8lIdFederal C1e8r Air Actrequiremeots. Our\lOIIIIIH!IIU on thepermitareeoc1osed. Ourcomments**iden1i~** a numberofareas ofconcern thatwen:queet that)OU IIlkkess priorto Issuance ofthe ftnaI permit The l!I8jor il!lUos includethe State's BestMailable Control Teclmology detenoination, air qua6tyimpact 1IIB1yses, pre-COIlSlruclion data applicability and mooitoring, aodpotal1ial CI_X areaimpacts. We lOok forwlll'l1 to workingwith theTex8B Commission on llD.vironmell1a1 Qualityto resolvelheissueS identified in oUr commeDlIlIIId to eDllUO that 1he draft pennit is conalsleDt withthe**~III** ofthoTexasPSD SIP; Pl_ c:ontal:t me at (214)66S-7250, or StepbJmie KordzioCmy staffat(214)**66S~7S20,** if)'Du haveques!i0Dl. Thank)OU for)'OUl' cooperation. ! 

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# ·Bzl**~(J** uNnEOSTA1E8**E~AL** PROftCT1ON AGENCY

. . REOIDN8 144511OS8 AVENUE. SUm: 1l1OO i:w.1.As, TX 75202-2733 

## NOV 2 

## 1 2()()6 

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# I 

# I. i ENCLOSURE BestAyaj1ab1e Control Teobaology 

### CommeD!s CBACD 1. TheBACT anaIyais in the State Preliminary DeterminatIon Summary shouldcontain a detailed admiDistndive record docwnentlngappropriate BACf de1erminations for the emissionsoCNOx, S02, Voc, PMIO. md CO. In particular, thel!:is no comparison of the JlI'OI'I*'d controlunits with other types of controllechnology for EGU. in recentPSD permitsissuednationwide (with the exceptioo of a comparison of wet end dry fluegas desuIfurizatIon for S02 con1rol). The BACT evaluation p1'llCleIS involves reviewing not onlytheBP A'. BA CfILAERClearinghouse, butalso FederallStateILocal NSRpermits acrosstbe CODDtry. Pleue providetheState'slldionatefor the BACTdetenninaliOllI, including an analysis oftbe teehn1ca1ll11d economic fessibility ofavailablecontrol tecImologios. 2. In partienlar. BPA recommends that TCEQconsider. permit currentlyproposed by EPA Region 9111ld a permit recently issuedbyNevadaand reviewed by EPA's Environmental Appeals Board. The DesertR,ock, (PeIllJit No.NSR4-1-3,AZP 04-0I) In northwestem NewMexico,EPARegion 9 is proposingto establish a NOx limitof 0.06 lblMMBtu utilizing SIDIOID Basin sub-bituminous coal in 2006. The Desert Rockpermit

. appIiCldl.on specifically states In its BACT analysis forNOx, on page 4-9, Section 4.2.1.5. that "No adverse costs, energy. or environmental Impacts havebeenidentified thatwould preveIIltheproposedproject tiom con1lnoously achieWIg 0.06 JbIMMBtves a 24-bour BVenIF.-Thepermit for NewmontNevada Eoergy, (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. The BACT emissionrate for lead identified byTXU In its RACTIBACTILAER Clearinghouse Resultsfor Cities PublicServices is 8.4x 

## urIbJMMBto(annual nerage). The leadBACTemissioo ndepmposedbyTXU Is 1.2x IO-5lbIMMBtu. The TCEQshould discuss in illlBACT Evaluation whythe emission rate for City Public Service was notutilizedin the proposedTXUpermit action basedon 1cclInical and economic feasibility. S1Irtap. SlmtdnWP and MJriptI!ll!!!!S!! Emjssions and Ma!fguctjous Encl_

cc: Mr. BnltHeodricbon TexasCommission 011 Eovinmmenlal Quality Mr. SteveHaa:Je TexasCommission on EoviromDentaI Quality 

### """'""'_fURL)_

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....... ,•• P.-.r

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# ....................., 4. EPArecommeDd. that !CEQ followEPApolicy furadcbessing periods of slBrtup. lIhutdown, ormaiDtenance emissiOllS (MSS EmlsslOllS inTexes). EPA's longheldpolicy Is that BACT emission lImi1ati.ons apply at all times. BACf limitsmay not bewaived duringperiods of JbIrtUp, shutdown and maintenllllCe. 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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## '1

# Attachment 2 W-7To WhomIt MayConcern: RB: Prevention of SIBIlifiC8llt De!erioration (PSD)DNftPermit MartinLakeSteamElectric Statioa Unit 4, PSD-TX-107I, RIIIk Ccunty, Tex.s

JeffRobineon Chief AIr Pcnnite Section

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# I ENCLOSURE BestAvailab!e Cop!rol Tr&'m'ogy Cgrzgnsnp/BACD I. The BACTlIDI1ysis in the State Pzelimiaary 

## De!aminatioo S1IIIIDl8I'Y should contain • detailedadm1nlstratiw. JeCOrd documentiDa llPJlfVPrlate BACTdctamiaatiOIlI forthe emissions ofNOll,S02, 

### vee, PMIO, and CO. In pBrticulll,th_ is DO eomperison of the proposed controlunits with other lypllS of control teclmology forEOUsin recent PSD permitsiunecJ aationwidc (withthe exception of a COIDplIIison ofwet 8IIddryfluegas desulfinizatiOll for S02 control). The BACTevaluation processinvolves reviewing not only the EPA', BACTILAER CloariDgbouse, botI1so FedertilStatelLocal NSRpermi" IICl'OSI the country. Pleasepravidothe State's rationale fortho BACT determinations, Includingan maIysie oftho teclmical and economic feasibility oflMIilable control technologies. 2. In partlcu1Il, EPArecommends thatTCBQ consider a pennit culTOlltly proposed byEPA Region9 anda permit_dy Issued by Nevada and m'iewed byEPA's Environments!

. Appeals Board. The Desert Roek, (pennitNo. NSR4-1-3,AD 04-01)in northwestern

NewMexico, BPARegion 9 is proposing to esteblish a NOxlimitof 0.06 IbIMMBtu utilizing SenJuan Bain lilli-bituminous collin 2006. The Desert Rockpennit lIpJ)lication epecificaDy etateIIlnits BACTlIII81)'1is forNOll, on pege 4-9, Section 42.1.S. that ''No adverse costll, energy,.or euvlronmenlll1 impects have beenidentified tIiat would JlR'WIIt tho proposed projectfromcontinuously acbieving 0.06 IblMMBtu as a 24-hour awrage." ThePmllit forNewmont Nevada Energy, (Pmnit No. AP4911-1349) located in eouthem Nevada,became efl'eellve J1IIle 4, 2005, with a O.067lb1MMBtu omission nile for NOllutIHzing Powder River BaIn sub-bituminous coal. Bothofthese emission rates are 24-hour roUlng avenses. TheTCEQshouldevaluate whether TXUcouldachieve either ofthese BACTemissions IlmJts. 3. The BACTemission rateforleadidcDtified byTXUIn its RACTIBAcTlLAER CleuinghoUllll Results for CitiesPublicServices is 8.4 x Itr Ibo'MMBtu (1IIIIIll81 average). TheleadBACTemission rateproposedbyTXUis 1.2x Hr'lblMMBtu. The TCEQ should dIecuse In its BACT EVII1uation why theemission rate for CityPublic Servicewas D01 utilizedin theproposedTXUpennit actionbasedon toclmical and economic feasibility. Startup. Shutdowp aDd Main!m!!l!!l!! Bmiujons andMalfunctjons. , . I !



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## ! NOV 

## 27 

## 2006 UNITED STATD INVIRONIIEHTAlI'flOlECTION AGENCY REGIONS 1445ROSS "VENUE, SUITE 1200 llAUAS, TX 7&2OM733

Officeoflhe Chief Clerk Teus CommiIIion on Environmentlll Quality (Me-lOS) P.O. Box 13087 AUIlin, TX 78711-3087

Wohiavereviewed the draftPSDpermit for the Martinlike Steam Electric Stltioo, locatedin Ruslc County, Texas. Wereceived it in ourofficeon October 18, 2006. Thedraft pennitwaseveluated to eIISIR consillleucy with theTexas PSDState Implementation Plan(SIP) andFederalClearAir Actrequirements. Our COIIIII1f:IllI on the permit

_ enclOled. Our eoDunmts identify aDUiliber of areasofconcem tb8t we mpIIt thatyoulIddJeu priorto iaswmce of the

### ilnst permit Themajor illlUOl include the Slate', BeetA YBilable Conlrol Technology determination, air qullity impact malysee, pre-conetruction datalIpJ)licability mI mllllitoring, endpotaJtialClass I II'elI impecta. Welookforward to working with thoTex

.. Commission onEnYiromnenta1 QulIlity to re.solve the issuesidentified in ourcommeute 8Ild to ensurethatthe draft pmnit is coDSilllent withthercquirementaoflbeTexu PSOSIP. PI_conI8Cl mo at (214)665-7250, or Stephanie Konlzi ofmystafht (214)66S-7S20,**if)'Oubave~.** Thlllk youfbryour cooperation.

# t~'l

Enclosure
ee: Mr. Erik HODdric1csim Teus ComJirlesion on Bnvlromneutal Quality Mr. SteveHagle TCJ[u Commiaeion on BnviroJmlllDta1 Quality 4. EPAm:ommends that !CEQ foUow EPApolicyfor addressing periods of starIIIp, shutdown, or maintalanccemissions (MSSEmissions in Texu). EPA's longheldpolicy is thatBACTemissionlimitations applyat all times. BACT Ilmita maynot be waived duringperiodsof startup, shutdown end 1IIlIintenanoe. He_, wherethepermitting IIIIthority has made 8Il on-the-rmnd detorminatiOll thatcomplilmce wilh BACTomission limitations Is ildalsible during starIIIp, shutdown and1DIIintmumce, tho permitting 

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# ·"'-8"· UNITED STATES ENVIRONMENTAL**P~cnON** AGENCY REGION. 1445 ROSS AvENue.SlATE 1200 DALI.AS, TX 152li2·2733



# . NOV 272006 ENCLOSURE

Startup, Shutdown and 

### Ma!Dtenance Emi9sions and Ma!1imcIions Belt Ayaj1able Cojdlol Tec:Jmology Co!lll1M!Jlb CBACD 

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# I· I· Of1ice oftheChief Clerk TexasCommiiIlion on FnWomnenta1 Qul]ity(Me-IOS) P.O.Box 13087 Austin, TX 78711-3087 RB: Prevention of Siguificant Deterioration (PSD)Draft Peunit Morgan CreekSteam Elec;trie Sllltion Unit7, PSD-TX-I066, MitchenCounty, T_ To Whom It May Concern: We have mriewedthe draftPSDpermitforthe Morgm Creek SleIDn Blec;tric Station, lOcated in Mitchell County, 

### Teua. We it 

### iii OlD' officeon October 7:1, 2006. Thedraft pmmit W88 evallIlIled to CIIIItII'e COIIIistJeney Wtih ihe Texas PSD StateJmp1emllntation Plan (SIP) andFede!8I Clear AirAd.J1lCInirementI. Ourcomments on the pennit III'CI enclosed.. Ourcomments identifyanumber ofareas of eoneem thatwe reqnest thatyou adcIrea priorto issuance ofdle final permit The majorisBuea include the State'l BestAV8I1Bble Control Teclmology determination, air quality impactlIII8ly&el, ambient airquality monitoring, lIIId potential CIIISI area impacts. Welookforwardto working withthe TexasCommisBion on EnviromnentaI Quality to n!IOlve the illlllll8 identified in ourcomments andto'eoI'IIfe thatthe draftpermit ill eonBilltent with the requirements ofOteTexu PSD siP. P1C111eCOllW:tme at (214)66S-7250,or Steplumie KoJdzi ofmyBtsft'at(214)665-7520, ifyouhan: questions. Thank youfor}'01ll'eoopcntIon.

# ~;t~ IeffRobinIOD Chief AirPermitsSeetion BucIOlure
ee: Mr. Erik HeudrieboD T_ Comminionon EnviroDmenta1 Quality Mr. Steve Hagle Texu Commission on BDvironmartaI Quality

-_nIUIIL/'

..... __gov ....,......,....,.._,;..**~CII_IIIIIO** ..**....,...""""~_--.,** i' 

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# I I ,. i I i 3.

4. TheBACT IIIlI1ysiI in ihe State PreliminBry 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 the proposed eonttolunits with other typesofeontrol technology forHOUI in reeeatPSD permits inued nationwide (with the exception ofa COIIIJllIrison ofwet and cityflue gas cIesu1fiJrimion for S02 control). TheBACT eVllualion process involves rvviewingnot only the EPA 'I BACTILAER CICllringhouac, butalso FederalJSlIItelLocal NSR permits across the country. Pleue provide the State's ratiouaIe for the BACTdetermlnstlons, includingan analysis of the tedml.ca1 andeconomic l'eas\bility of aVlilabl, control technologies. In part!cuIBr, EPA recommends thatTCEQ CODI1der a permitCllrmltly plOpOlled by EPA Region9 anda permitn:ccntIy inued byNewda and rmcwed by EPA's Environmental AppealsBoard. TheDcsert Rock, (permitNo.NSR4-I-3, AZP04-01) In northwestern NewMexico, EPA**~eaion** 9 ispropOsing to establish a NOll limitof 0.061b/MMBtu utilizing Sin Iuan Basin sub-bitumiDous eoaIln2006. The Desert Rockpermit application spceifica1ly at8teI in its BACT1IIlIlysI, forNOlI, on page4-9, Seet10n 4.2.1.5. thlIt "No advene costs,energy, or environmental impects havebeenIdentified thatwould prevent the prupoaed project from COIl1iDuousIy achieving 0.06 1bIMMBtu IS a 24-hour -p." Thepermit forNewDIlIIIt NCVlda Energy, (permit No. AP4911-1349) located in southem NeYlcla, became effective Itme4, 2005,with a 0.0671br'MMBtu emission rate f'orNOx utilizing Powder RiverBasinS1Ib-bItumInous coal. Both ofthesecmissiou rates In 24-hour lOllingaverages. TheTCEQsbould eYIIluale whether TXUcouldachieve eitherof these BACTcmfssionsllmlts. TheBACTemission rate for leadidentified by TXUin its RACTIBACTILAER CIcaringhOWlO Results for Cities Public8eMces i' 8.4x**I~** Ib.lMMBtu (annual IVCIBF). The lead BACT emissionratepnlpOSCCi byTXUis 1.2x**I~** 1b/MMBtu. The TCEQ should dJscuss in its BACTEVllualiOll wilytheemission ratefor CityPublic Secviee wasnot utilizedin the proposedTXUpermitactiOll basec1 on technical and economic feasibility.

EPAreeommcnd' thatTCEQfollowEPApolleyforaddressing period, of slartUp, sbutdown, or maintemmcc emissions(MSSEmissIons in Texas), EPA', longheldpolicy Is thatBACTcmissiOll limiilItiOllS applyat all times. BACTUmits may not be waived during periodsofstartup, shutdown andmainteDanec. However, w1tere the permitting authority hasmade in on-the-m:ord determination that compliance with BACT emission Ilndtalionsllinfeasible during startup, 'hutdownand maintenance, the pcnnittIng

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# ~J UNITED ITATEB ENYlRONMENTAL PfKJTECTION AGENCY .REGION' loW1 ROSS AVENUE, SUITE 1200 DALlAS, TX 1Bl!02-2733 

## NOV 272006 ENCLOSURE BestAvailable Control Tt'&1mlogy Comments 

### tBACD

3. The BACTemissionrate for leadidentified by TXU in Its RACTIBACTILAER Clcarinabousc Results for CitiesPublicServicesis 8.4 II: 10-4 JblMMBtu (annual averqe). The lead BACTemilllion rateproposedby TXU Is 1.2x 10" 1bIMMBtu. The TCEQshould discuss in ill BACTBvaiuation wily the emissionrate forCItY Public ServiceWIll DOt utili=! in the proposed TXUpcrmit8Clion hued on tecbnicl1 BIId economicfeuibility.

. StlIrtlIp. 

### Shutdown and MlIil'l!!m!m!j!! Emjsslons lIIll! Ma!functjons 2. In particular,EPArecommends thatTCEQconsidera permitcurrentlyproposedby EP Region9 and a permit recently islUed by Nevada8Ild**revI~** by EPA's Enviromnentll AppeIIls Board. The Desert RocIc, (permitNo.NSR 4-1-3,AZP04-0I) iu northwestern New Mexico. EPA Region 91s proposing 10 establisha NOx limitof O.06lb1MMBtu utilizing Sill JuanBasinsub-bituminous coaJ In2006. The Desert Rock permit application'specificl1\y stms in its BACTIIIIlI\ysIs for NOx,on page 4-9, Section4.2.1.5. that"No adversecosts, enelIY, or environmental impactshave been identified that would preventthe proposedproject fromcontinuously IChieving 0.061b1MMBta as a 24-hour average." The pmoit for NOWIIIOIIl NlMIdlI Energy, (permit No. AP4911·1349) loca1ed in southernNevada, bec8me effective June4, 200S, with a 0.067 lb'MMBtuemissionrate forNOx utili2lng Powder River Basin lIIb-bituminous C08l. Both of these emissionrates an: 24-homrolling averages. The TCEQshouldewluate whetherTXUcould achieve either ofthelc BACTeminions limits

. Office oftheChiefClellc Tex:u Commission on EnvitomnCntal Qua1ity (MC-I OS) P.O.Box 13087 AIIIIin, TX 78711·3087 U: Prevention of SilDificant Deterioration (PSD) Dra1t Permits Valley steam B1ectric S1ation Unit4, PSD- TX·I

### 068, FGIIIin County, Tnu To Whom It May Colicem: Wehavereviewed the draftPSDpermit for the VBI1ey Starn Electric Station, 10cated in FIIIIIin COUIIty, TexIS. Wereceived it in our office on0c10ba: 27, 2006. The draft permit was evl1ua1ed to ensureconsi8leDCy withthe TexQ PSD SlateImplementation P1B11 (SIP) and Federal Clear Air Act IIlCI.uiremen1s. Ourcomments on the permit areencloaed.

Ourcommentsidentifyanumber of area of c:oncem thatwe requestthat youlIIldrsI priorto iulwJ.ceof the fina1 pcmrlt. The majorilBSlJCI includetheSt&le's BestAvailableControl Technology detenninatiOll,air qualitY impllCt BIII1)'101, prHOIIIlnIction dlllaappHcabilitY IDe! monitoring, and po1enlil1 C1aIs I IIi'ea impacts. Welookforward to woritlDg with theTexu Commission onBnvinmmental QuIlitY to I'll8Olve tho i_ idelltlfied in our commentlllld to eII8UIe thatthedrift pennit is COD8istmt

. 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. Erik HcndrickBon Texu Commission on Environmental QualitY Mr. 'Steve Hegle TexasCommission on Enviromnental Quality 

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4. The BACTBIII1yais in the StatePreliminaly Detennina1ion Summary shouldcontaina delIJi.Ied administrative record docwnenting appropriate BACTdetemlilllltions for the emissions ofNOx, S02, Voc, PMIO,lIId CO. In par1icular, thereIs no comparilOll of the proposed coDtroI Ullits withother

### tYPes of controltechnology for Eoos in recent PSD permits issued na1ionwide (withtileex:ception ofa comparilOD of wet and dry fluegu desuJ1\Jrlzldlon for S02 control). The BACTovaluation process involvesreviewing not only1beEPA's BACTILAER ClearIngho1l8e, but I1soFedera1lStateiLocal NSRpermits ae:ross theCOUIItry. PI_ prOvide theState'sratlonIle forthe BACTdeterminations, including IIIl11l111yais of tileteclmicl1 andeconomicfeasibilitY of availablecontrol technologies.

EPA JeCOI1lIJICnds thatTCEQroUow EPApolleyfor addressing periodsof starlup, shutdown,or main1mance emissions (MSSEmissionsInTex:as). EPA's longheld policy is thatBACT emission limi1ations applyat 111 times. BACTlimits IIIIIy not bewaived duringperiods of 1lIrtup, shutdown 8Dd mainle!llllce. However, wherethe pcnnittlng authoritY bu JIIIlde an on-the-record determination that compliance with BACTemIll1ion limitations is infeuihle duringstartup, shutdown and mainteDance,thepermitting

I 

### '-lJeft'RDbinlon C1ief Air PmmiIB Section

# ~;~ Officeof theChief Clerk TllDSCommission on .

Euvironmontal Quality(MC-I05) P.t>. Box 13087 Ausdit, TX 78711-3087 RE: Prevention of Significllllt Deterioration (PSD)DraftPennit lab creekSteamElectricStation uiJit 3,PSD-TX-I070, McLemtIll County, Texas To Whom It May Conoem: Wehaverevlewedthe cItIft PSDpermitfor the Lake CreekSteam Electric S1alion, located in McLennan CoIIJIty, Texll. We =cived it in our officeon Oc1ober 19, '-006. The draftpermit

_ evalullllld to CIII8UI!l conli8tenl:y with theTexu PSDStateImplemea1alion Plan (SIP) ID.lI Fedaral Clear Air Actrequimnen1l. Ourcomments on thepermitareaJClosed. Ourcoimnents identitY anumb« ofareas ofconcern tIiat werequestfhIt you8dclm8 prior to i_oftiletlnaI permit Themajor illUeil include the State', BestAvailable Control Tecbaology determination, airquality impact analyeea, pre-conatruction data appUcabiHty mel monitorin& ·and potential C1Isa I area impIcta. We look forwIrd to working with theTn. CommiIIion onBnvimmnental Quality to raolve the illUes identified in OlD' COlIIIIleDlB and to ensuretIiatthedraft permit i, conais1ent withthe**~tI** oftbe Texu PSDSIP. Please contact me at (214)665-7250, or StephmieKordzi ofmy atatT at (214)66S-7S20, ifyouhavequestiOlll. Thank)'OU fur your coopention: 1. The BACf lllII1ysis in the SIIIte PIeliminary ))etennination SlIIJIIIIIIl)' sbould COII1IIin a iIeIaIled administrative recorddocumeutingapproprim BACf detenniDatiolll furthe emiJslQIIS ofNOx, 902, Vo<::, PMI O,IIld CO. In puticullll',thereis DO comparison of the 

### JlIOPOIlld coirtrol unitswithothertypes ofcontrol teelmology fur EGUs in recent PSD permits isIIued natiOllwicle (withtheexception of a comparison of IIIld dJy fluegas desu1furization for S02 control). The BACf evaluation process involves reviewiDg not ouIy the EPA', BACTILAER C1earinghouse, but II1so FedmllStateILocaI NSRpennits IICIOSS thecountry. Pleaseprovide theState', raticmale fortheBACTdetenninations, including an 8DIlysia ofthe teclmiClliIlld econ<II!Iic feasibility 

### or available control technologies. 2. In partlcular,**~A** recommends thatTCBQ consider a pennit cunently proposedby EPA Rqpoo 9 anda

### Permit recently issuedbyNevada and revieMd by EPA's EnviromnenlB1 Appeals Board. The Desert Rock, (pennit No.NSR4-1-3,AZP ()4.() I) in nortJr;vmem NewMexico, EPA Region 9 is proposing to establish a NOlllimit of 0.061b1MMBtu utiJizina; San JuanBalinsub-bituminous coal in 2006. The Desert Rodepermit application fpeCifiCllily IIlstes in its BACT analysis forNOx,on Jl8IlCi 4-9, Section 4.2.15. tIIIIt"No adverse costa, energy, or enviromneolal impIcta have been identified thatwould preveot theproposed projectfromcontinuously achieving 0.06lb/MMBtu as a 24-hour average." The permitfor Newmont NBVada Enqy, (pmnit No. AP4911-1349) located in 8OU1hem Nevada, *'me e1fective June 4, 200.5, witha 0.067 IhiMMBtu emission rate fur NOxtJtilizing Powder RiverBasinsub-bilUlninous coal. Bothoftheseemission ntes are24-hour rollingaverages, The TCEQsbould evaluate whether TXUcouldachieve eitheroftheseBACTemissions limits. ENCLOSURE BestAyallab!e ContmJ TecImolQIY Comments <BACD

3. TheBACTemissionrate forleadidentified by TXUin its RACTIBACTILAER. ClearinghOU!e Resultsfor CitiesPubllcServices is 8.4x 1 lbIMMB1D (annual 1IYlmI&"). The lead BACf emission rateproposedby TXU i, 1.2x 

## ur'IblMMBtu. The TCEQ shoulddiscuss in its BACT BwIoaIion why the emissionrile for CityPublic

. ServiceVIlISnot utilized in the proposedTXUpermitactionbased on teebniClli and economic f'eaSJDility. S1artup. Shutdown and ¥PI.......,...,.. Bmlplnnt apdMaIflmc!lonJ j- ". 

### ,

, !

. i i 1. 

# . NOV 272006 UMTED stAlB EHVIRONMI!NTAl PRC71'I!CTION AGENCY REGION,

, ..... ROSS AVENUE, SUITE '200 DAl.LAS, TX 7520M7S3 

# @

Bnclosun> 00: Mr.ErikHendricbon Tnes CoIlllIlilisiOll on Environmental Quality Mr. Stew HqJe

. Tex. CommiIlliOll on BnviromnaJlal Quality

1

__ (UlllJo hIp-.-

... ....,. »' tI Wlltv....-OI .. 4. EPArecommends that TCEQfollowEPApolicyforaddressing periods ofstartup, shutdown, or maintenance emiaiQIIS(MSS Emissions InTexas). EPA's longheldpolicy is that BACT emission limitations applyat all times. BACTlimitsmay not be waived durina periodsof startup, shutdown and meintenance. Hcnwver, wherethepermitting authoritybas made an on-tbo-record delmnination thatcompliance with BACT emission limitations is infeasible during startup,shutdown andmaintenance,thepcmnitting i

# I I

-.....:JBnclolllI'e

1

__ (UAlIo ".,_._ _01 -.,.._. Cl

__ • ...--

__ -"- cc: Mr. Erik Hendriebon Texu Commission on Bnviromnentll Quality Mr. Stml Hagle TexasCommIssion 011 Bnvironmemal Quality SinClRly youn,

# ~'fh~~ JetrRobillson CbIeC Air Pmnlts Section 

# I

r 

### I: !

EPA recommeads thatTCEQfollowEPApolicyfor addmsing periods of startup. sbutdowu,or mainlmJance emissions (MSS Emissions in Texas). EPA's long heldpolicy is that BACT emlssion limitations applyat all times. BACTlimits maynot be 

### wai..m duringperiodsof startup, sbutdownlllld maintenance. Hawner, where the permitting authoritybas made811 on-the-record delermination thatcompliance withBACTemi88ion limitationsis infcuible dllring 8l8rtup, shutdown andmaintenance, the permitting ENCLOSURE 

### Ben AyaiI!!ble COJIllOl TecJmoloav Comments lBACD 1. The BACTana\yBi8 In !be SlatePreliminary Determination SIIIIIIDlIIY shoold con1ain a deIailed admiDiatrative record documenting appropriate BACTdderminations for the emissionsofNOlc,S02, Voc, PMlO,IIIId CO. ID par!lcullll', there is no compari8Oll of the

### Jll'OPCl'ed COIllIOI uiIits with othe:r types of oonttollllchnology forEGVein recentPSD pennita 188lIed DIIlionwide (withthe exceptionof a comparison of IIIId dry fluegas desulfurization for 802 eontroI). The BACTevaluation proceuinvolves reviewing not onlythe BP A's BACTILAER Clearinghouse, but also FedersllStatelLocal NSRpermits acrosstile coun1ry. PlesllO provide the S1IIte's rationale forthe-BACT determinations, 

### incIlIdin8 an IIIIB1ysis of theteclmical BDd economic feasibility ofRYlilable conttol teclmologles. 2. In puticular, EPArecomrneuds that TCEQconsiderapennit cUImltly proposedbyEPA Region91J1d a permit recently Issued by Nevada andreviewed byEPA's Environmental Appeals BOIII'd. The Desert Rock, (permitNo.NSR4-I·3, AD 04-01)In northweslllm New Mexico,EPARegion9 is proposing to estIbIisha NOlc limitof O.06lbIMMBtu utilizingSanJuanBaaiD sub-bitmnillOUS coal in 2006. The Desert Roc:k permit applicationspecifically states in its BACTmalysis forNOx, on page 4-9, Section4.2.1.5. that "No lldverse costs, energy, or envlronmenllll impacts havebeen identifiedthatwould preYeDt the proposed project ftorn continuously achieving O.06lblMMBtu as a 24-hour average."The pem!it for Newmont NevadaEnergy, (permitNo. AP4911-1349)loca1ed in southern Nevada,bec8me etree1ive Jone 4, 2005,wftba 0.067lblMMBtu emissionrate forNOlcutilizingPowder River BasinSUb-bitumlIlOUS coal. Bothof these emissionrates Ire 24-OOlD' rolling 

### averaaes. The TCEQ shouldevaluate whether TXUcouldachieve eitherof theseBACTemissiOlllllimits. 3. The BACT 1lIIIi88lon ratefor leadidentified by TXUin iti RACfIBACTILAER Clearinghouse Resultsfor CitiesPublicServicesIs 8.4 x**I~** lbIMMBtu (lIIlI\uaJ average). The leadBACTemission rate proposed byTXUis 1.2x 10's IbIMMBtu. The TCBQshoaIddiscuss in Its BACf Ewuation whythe emission J1IIlIl for CityPublic Servicewasnot utilizedin the proposed TXl:Jpermitaclionbasedontechnicaland economicfealbiUty. 8tartup. Shutdown md

### Mwintm"""" Emisajons!!!!l 

### Malfunc!ionJ 4. 

# i

.

i Ii ! I 

# I· I ;. 

# I I' I



# I: ! 

# I i I 

## 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 To Whom It MayCoocem: We havereviewed 1he draftPsD permitCor the MonticeBo Steam BleclricStation, locstedinTIlUI County, TOlW. We Iecelvcd It In ouroftice on October 18,2006. Thedraft permit wBs enJuated to IlIIswe COIlBi8fCDCY with theT_ PSDSlate Implemcmtstion Plan(SIP) IIIdFedenI1 CleerAir Actrcquimnen1a. OorcommentII on thepermit 1118 enclosed. Our commenta Idenlify a number of _II of CODCaII !batwe requeit that you address priorto Issuance ofthe linaIpermit. The lIIII,jfX issuesineludethe State', BestAVRl1able Control Tecbnology determlnation, airquality impactanalyses, data applicability IIld 

### monitoiins. andpotc:ntial Clau I IIRlR impacts. We lookforward to 

### worlciDa with the Texu Commill8ion on BnvIromnental Quality to !e8Olve the laDes Identified inour commenl8 IIIdto euame !hatthe draft permitI, COII8iateut with the requircmenll oftheTeXII PSDSIP. Please contaetlllOat (214)665-7250, or StephanieKordzi of my 8tIlJ at (214) 665-7520, Ifyouhave questiona. Thank)'Oll for)'OUl coopcralion. 

# @

I 

### '-JIeff'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

i \



## ,.

# I I 3. ThoBACT emissionratefor '-I identified byTXUin its itACTIBACTIlAER Clearinghouse ROlIUIts for CiliesPublic Servicesil 8.4x I

### atIblMMBtu (annual average). The leadBACTemis9lon rateproposed byTXUis 1.2x I

### <r' IlrIMMBtu. The TCEQ should discuss in its BACT Emuation whythe emission ratefor City Public Service WIS notutillD:d in the proposed TXUpermit action blIsed on

### technicallJ1!I economic fealbility. BestAyailable {'mdml Technology Comments CBAeD ENCLOSURE

1. ThoBACTlIIa1ysis In the StatePrelimiriary 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 forEOUsin recentPSD permits inuecinatiDDWide (with the exception ora 

### COIIIJllIrison ofwet and dry fluegus desul1iuization for S02 con1J1ll). The BACT evaluation processInvolves reviewing not only the EPA's BACTILAER C1earina1Jouse, butalso FederalIStateILocal NSR permits lCl'Oas the country. Please provide theState'lllItiOlll!e for the BACT detmnlnatiOlll, including lID analysis of the technical andeconomic feaibility of IMilable control tcelmologies. 2. In p8Iticular. EPAJeCOmmends that TCEQconsidera permlt cunentJy proposed by EPA Region9 IDe! apermit recently Issued byNevadaandreviewed by EPA 'I Environmental AppealsBoard. The Desert Rock. (pennitNo. NSR4·1·3, AD 04-01)in northwestern NewMexico, EPARegion 9 is proposing to establisha NOxlimitof O.06lb1MMBtu utilizing San JusnBasin**lU~bituminoUl** coalin2006. The Desert Rockpermit lIppliClllion specifically states in itsBACT analysis forNOx.on p&ge 4.9. Section 4.2.l.S. tbIII "No adveIlle coltS, eneJIY, or environmental impacts have beenidentified thatwould preven1 the proposedproject from con1inuolllly achievingO.06lb1MMBtu lIBa24-h01D' average."Thopermit fur Newmont NevadaEnergy,(permit No. AP4911-1349)located in IOUthem Nevada, bec8me effective June4, 2005, with a 0.067 1bIMMBtu emission rate for NOll utilizing PowderRiverBasin lIIIb-bItumInous coal. Bothofth_ emission I'IIteS lml24-l101lr rolling averages. The TCEQshould eYI1uate whether TXUcouldachieve eitheroftbese BACT emIl1iOlll HmIts.

StIrtup, Slmtdqvm

### md Mm.,. BmiMions and Mt1faJnetkg I

# I I

I! . 

# I I, ;

### ! 

# I

" 

## NOV 7 

# tuw UNITED STAllS ENVlIlONlENTAL PAOTEC11ON AGENCY

. F11!01ON. 1441 ROSSAVENUE, SUm: 1200 DAI.lAS, TX 75l!OM733

ToWhom It MaY Com:em: We have reviewedthe draft PSDpermit for tho TradingbollN Steam BlllClric SI8ti.OII, located in McLenna1t County, Texas. We receiwd it in our officeon Oelober19, 2006. The draftpermit

_ evi1uafed to lIIISIIJ'II coneiltmcy with the TllXas PSO SteteImplementation PIIIl (SIP) IIldFedcra1 Clear AirActrequ!rementl. Ourcommcnb on thepennit lmlenclosed. Ourcommente identitY aIIIlnIbeT of areal of concern thatwe n>quest that)lOU Idcbss priorto illllllllllCe of the ftnaIpennit. The majorissues include the Stall\'1 BestAvailable Control TecbnolotlY determination, air qualityimpact**ao~** 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 draft permit il consistent withthe oftileTexasPSDSIP. PI_ contactme III (214) 665-72S0, or StephmieKordziofmy smffat(214) 665-7520,if)'OU have

### queationa. '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 tblJow EPA policy fOr addressing periods ofllartUp, shU1down, ormaimcmoonmillllkms (MSS EmissiODS in Texas). EPA's longheldpolicy Is tIIld BACTemissionlimitations lIpply at all times. BACT Iimi1B may notbewaiwd duringperiods of IIIIrtllp, shutdown and maiDteDance. Ho\YeYel', wherethe pemtitting authority1uIs made m on-the-record determination that colDJlliance with BACT emission limilationsls 1nfeaSJ'ble duringIlarlup, lhutdown andmaintenance, the permitting

_- .. (URL) .-

_ Rees ..... d
....JltlMldwlb-......OI AIqdIcI .,., ........



### '-l

# 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 

### .It 7 

### ",uscrn

...y If 

### ann "

7 , l"'ry

t Z '$ I • 

### rsnW 

# un put

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### 7n

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### <_pm



### exn, " 111* ' Fl oent

. Uh-buh. 'tp A

... - '$ , •• ; .) 8 

### Wi U Ihaxttpe=s $ 9 lIS. BROIIIlIMG: 5 1 P,t

• opie d '? 

### IUlio.

! 

### zr if. 

### CiIdM. p I 

### t ill [ 

### )51 

# • 2 A 1 their7 A 8 9 n 2 3 0 4 

### Sa
5 j J 

### $

16 ot your rev1 • .,.?

lSI projects tbat

.. y have been P4aai.tted bot MV. not yet 20 been bUilt? 

## T Ji 1 1 •

# ~3C;- 14 •• H 0 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 Q

Q A

A 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 

# lun._:: E Ji 

### T

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 A o

A 21 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

H 25 o

A Q 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 thi s ,

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

Q Q A

A 6 7 8 9

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

That is a broad question. Let me back up tbe.,. Tbe doCWQ8nt that I' ve Q Q

A

A o 23 24 19 20 13 14 15 16 And tbere could be other reason.. 'l'he 13

25; deuu._._! p l_lief; aicitEiNEibli**g~y.** 25 handed you, wb.'t does tbi. doe:ument. do? 

### 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 ORAL TESTIMONY 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 

### 2

### 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 4



### 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 is 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 6

2 

## further comments, this hearing is now closed.
3 

## MS. DURON: We do appreciate your comments, and



# (

( ) '--/ 

## 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 

### (Please Print)



## ....**~h** 

## W",,\..te..n..,**~"b~**

## d~",lJ~+r-~n:.l-jU)tl<~\~-h.~~
1\ 

### Representing


## T<-J:-. Presenting Oral Testimony? 

### (Circle One)

Yes 

# ®**~~ J~l'l\~~** 

- \Cll(e.t.,l-t

## ,~IJO)**~'\.VJ.** ('1:) W'\

# rctc&~tr'\ 

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# C':) 

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# T~~r,**S~ g~~T~**  Yes 

# @

# EVALUATION OF TESTIMONYlNTEROFFlCE 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 of

### Air 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 of the rulemaking: A) Summary of what the rulemaking will do: This rulemaking will add references to 40 Code ofFederal 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 of the 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 ofan 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 of sources 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 as 

### a 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 of sources 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 bejeopardized. 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: Chief Clerk, 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 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 ofa 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 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(bXI2). The application of BACT is an integral part ofair 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 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 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 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 ofa 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 ofan 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 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 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 of state 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 ofunder 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 of state law or a requirement ofa 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 ofa 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 ofElectric Companies ofTexas, 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 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 (NO x), 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 of stationary, 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 ofany 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 of30 TAC, Chapter 115, Subchapter F, Division 3 do not meet any of the 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 ofpollution 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 of BACT 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. If 

### so, then the BACT requirements of40 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 IT consists 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 ofevaluation 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 ofPSD 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 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 (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 of

### their 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 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 ofpublic 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 of the 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 ofpublic 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 ofnew 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 ofa 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 of subsection (c)( 1) - (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 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 ofair 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 of significant deterioration ofair 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 of significant 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 I hereby certify 

### Ina: tOl:; i;j a 

### true and corrllCtCXlPfCllfI Texas Commission on Environmental**QuIIty~** which isfiled inthepermanent records of
.. 

### 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 of the EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed amended rule and SIP revision, either orally or in 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 of the 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 of the 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) of the 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 of receipt 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 andPurpose, 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-20 1003127 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 RegisterThe 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 includedthe 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 sourcesor major modifications solely because of a relaxation of an enforceable limitation on the source or modification's capacity toemit 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 Codeof 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 40CFR §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 majorstationary 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 stringentthan 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. Althoughthis 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 thePSD 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 eliminateany 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 interferewith 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 RequirementsThe 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 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 0), which is the federal requirement to use control technology that is equivalent to or more stringent than BACT. Although the EPA did not addressthis 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 modificationswhich 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 "majorenvironmental 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 deficienciesin §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 ofan 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 5345SIP.The Texas SIP already includes the requirements of 40 CFR §52.21(b)(12) and (r)(4), and although these requirements wereomitted 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 materialway the economy, a sector of the economy, productivity, competition, jobs, the environment, or the pUblic health and safety of the state or a sector of the state.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 statelaw, 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 notmeet 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 doesnot exceed an express requirement of state law or a requirement of a delegation agreement, and was not developed solelyunder 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 tothe 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 doespartially 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 relatesto an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code,


### 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 goalto 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 authorityto 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 NewRules 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 dateof 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, andZephyr 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 COMMENTSHEC 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 commentedfavorably 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 programby 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 whetherfederal 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 contaminantsand 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 tothe 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 preamblestating 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 acontrol 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 supportan 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 ifthere 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 5347In 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 explanationof 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 withthe policy and purposes of the Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policyand 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; andTHSC, §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, whichauthorizes 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