Buddy Garcia, Chairman Larry R. Soward, Commissioner Bryan W. Shaw, Ph.D., Commissioner Mark R. Vickery, P.G., E-wecutiveDirector 

# TEXAS COMMISSION ON 

# ENVIRONMENTAL QUALITY Protectihg Texas byReducing and Preventing Pollution 

### March 19,2009 Docket No. 2007-1539-SIP Project No. 2007-016-SIP-NR

Docket No. 2006-0228-RUL ProjectNo. 2006-022-116-EN

Lawrence E. StarfieldActing Regional Administrator U.S. Environmental ProtectionAgency 

### - Region 6 1445Ross Avenue Dallas, Texas 75202-2733 Dear Mr. Starfield: On February 25, 2009, the Texas Commission on Environmental Quality (Commission) adopted a revision to the State Implementation Plan (SIP) to address visibility impairment due to regional haze in Class 

### I federal areas. In addition, on January 10, 2007, the Commission adopted rules to add new sections to Chapter 116, Control of Air Pollution by Permits for New Construction or Modification. These new rule sections add engineering and control requirements for Best Available Retrofit Technology (BART) on certain affected sources and are intended to fulfill a regional haze plan requirement under the Federal Clean Air Act and federal rules. The Commission adopted these SIP revisions to meet the requirement of Federal Clean Air Act section 169A that Texas submit a plan to make reasonable progress in reducing visibility impairment at Class 

### I federal areas, including Big Bend and GuadalupeNational Parks, resulting from anthropogenic air pollution. Enclosed are theproposed revisions to the SIP, adopted rules, public hearing certifications, a completerecord of the public hearings, and the accompanying orders. 

### I look forward to your expeditious approval of these SIP revisions. Sincerely,

Buddv ~arcia' 

### I

Enclosures

, , -/ cc: The Honorable Rick Perry, Governor of Texas 

# - Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. Vickery, P.G., Executive Director, Texas Commissionon Environmental Quality

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
[)11111~11 11, III\IIILI PI] LI IW, wi >I>LII h

### THE STATE OF TEXAS 

## 0 COUNTY OF TRAVIS 

## 0

This is to certify that the attached are true and correct copies of documents for a revision to the Texas State Implementation Plan, adopted on February 25,2009,pursuant to 40 Code of Federal Regulations (C.F.R.) 

## 0 51.104. I am the records administrator for the Air Quality Division of the Texas Commission on Environmental Quality (Commission).


# WUEJ 6 SusanaM. Hildebrand,P.E. 

### ' Director,Air Quality Division Texas Commission on Environmental QualityTexas Commission on Environmental Quality Public Hearing September 18,2006 Concerning Revisions to 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; Best Available Retrofit Technology (BART) Permitting Rule Project No. 2006-022-1 16-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin on September 18, 2006, to receive testimony regarding revisions to 30 Texas Administrative Code (TAC) Chapter 116,Control ofAir Pollutionby Permitsfor New Construction or Modification, and to the state implementation plan.

The comment periodwas originally scheduledto closeonSeptember25,2006, but was extendedto October 9,2006. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete record of the public hearing and isdivided into the followingfour sections:

0 

### Public Notification and Proposal

o 

### Written and Oral Testimony

o 

### ~viluation of Testimony

o 

### Staff Recommendations/Order

Additional copies of this hearing recordare maintained intheTCEQ central office at 121 00 Park 35 Circle, Austin, Texas 78753. For further information, pleasecontact Margaret Earnest at (512)239- 4581.

# PUBLIC NOTIFICATION AND PROPOSALPUBLIC NOTIFICATION

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

1. Publication of notice of public hearing in the following newspapers on the date listed: Alpine Avalanche; August 17, 2006 Amarillo Globe-News; August 15, 2006 Austin American-Statesman; August 15, 2006 El Paso Times; August 15,2006 Fort Worth Star-Telegram; August 15,2006 Houston Chronicle; August 15, 2006 Tyler Morning Telegraph; August 16, 2006

2. Publication of the proposed rules and the Notice of Public Hearing in the August 25, 2006, issue of the Texas Register (31 TexReg 6616 and 7026).

3. Publication of the Extension of Deadlinefor Comments in the September 29, 2006, issue of the Texas Register (31 TexReg 8263).

4. Correspondence forwarding the notice of public hearing to the following officials and agencies: Speaker of the House Lieutenant Governor Alamo Area Council of Governments Capital Area Planning Council City of Victoria Planning Department * Dallas Department of Environmental and Health Services Dallas Department of Aviation East Texas Council of GovernmentsEl Paso City-County Health and Environmental District El Paso Metropolitan Planning Organization Federal Highway Administration Fort Worth Environmental Management Department Galveston County Health District Houston Department of Health and Human Services Harris County Public Health and Environmental Services North Central Texas Council of Governments Houston-Galveston Area Council South East Texas Regional Planning Commission Texas Department of Transportation Texas Transportation Institute Arkansas Department of Pollution Control and Ecology Louisiana Department of Environmental Quality New Mexico Environmental Department Oklahoma Department of Environmental Quality 

### U. S. Environmental Protection AgencyExample of Newspaper Classified Ad Amarillo Globe-News,August 15,2006

NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON'ENVIRONMENTAkQUALIN ON PROPOSED-REVISIONSTO.3O;TAC CHAPTER 116-

(commission) will conduct o public hearingto receive testimony 'regordingproposed revisionsto 30 Texas Administrative Co.de.(T&C):.Chapte~ 11

6: Control of Air Pollution by Permits.ior NewYCon{

. struction or Modification;.an:d>t'pthe state>imple-, mentation .plan (SIP),-under-therrequirements of TexasHealth and Safety Code; 5382.017; Texas': Government Co.de,..papter.200.1' Subchopter B;i and 40'Code 6f3~ederal'-~egulotiU& 551.102 ofthe. Unite:d.State-s;.Environ'mental:.:Protect.i:on.:Ag,ency;.: (EPA) regulhi'ions~c~cerning99~,lP~sj', 

### ,,,:.:;:--i,;,;--..:). -,--ri

. .ih &.om.m&,'to ",;p.r~@os.@s~!fbw '§,g.,11:6.fiso;w;,! ..116,1510; 116.-I 5201;:I~l 6~~1~530!;and~-1,1.6;:1.540~injne~~

.. .. Subchapt&?~;'Best~Availqble~RetrofitTechnologyi

(~BRT),..to..imple~:entfe.decal: re.quiremants;'con~-: cerningtheus~oi BART at ceriain:sources..: .:' :.A_bl;bLic 

### hehr;;,b ,on:'ihiiip';o;p;~&i3.wii( d;-h;e'l'd:.i'$,: I-:Austin, Texas; on Septe-mberjl.8; 2006; ,a?.2!00 p:m:j

in8uilding.E; Room201S,ot.the.Texas,-Commission. r; 

## :, n-~n.v i a nme.ntail:,:~.u alit+:::.d.:o 

### mp16x:i~rj.~,d!t,~d::~t,: :1:2100! 'Paik..35:~Cicclel The. tieacing..wiIi:b.$~:strirc.~~ .'..tuie,j:for the:rec&iprdf -of~i::~r.vjritte<:comm~nts-b~~~ ;rinter.ested.persons. Registration will.begin:30.min?'.

utes' prior to: the.hearing. Individuals mnyjp'resenf'. :oral:staterrients whe~:cdlled<upon..in~.order-:oi:regis$, .,tratio.n. A-time.~limit::moy.,< be;estafilis,hed.at':fh'e; r~-'heari~g.to::assure-thatr~en~ugh~timine~is~o1lowed'~fd~ i'iexery interested~p.erisont.osp.eak~Th.ere:.will.:be:.nai

. open.discussion~during fhe:heoringi liowever;'.com'. :.mission stoff me-mbeywwill; be;.~dvailoble~to:.discuss, : the proposa~,~30,qin~~es;pr/or~to. the -hearing;,,,;,:;-,$

,... .'..P;rsd"s.~pi.~ririin.~.i~~~;ItiB~~~!t'~~E~;eebrin.s's;:M;.~D.'h'b"e ,.;s,p~,cial cor(lmunicoi.ion~~r~oiher(a~~~.mmodotib'n needs, should~contact i'6lci':Brow~~ffice of:L'egal .: Se.riices, ak.(:5,1'2)23.910348:R'equestsis~o:u.uld: be: made as for In aovance as poss.ble. Comments mav be submlttea to Lolo Brown MC 205. Texas ~edster Team. Offlce of.Leqal Services, Texas ~ornrn~sslon on ~nv~ronmental,~ual~ty, P 0 Box 13087, Aust~n, Texos 78711-3087 or faxed toc (512) 239-4808. Eiectron~c comments may be subrn~tt ed at hftp://1ru~vr1~5.fc~q.state.Lr.r~~/rrrlcs/ecor1rn~erlts. The comment oer~od closes Seatember 25 2006. All comments ihould reference Rule Project Number 2006-022-116-EN. The proposed rules moy be vrewed on the cornmlssron's Web srte ot II!~/J://IVIVII.~C~~ .srirrc.~~;.r~.~/~~n~~/rrrlcr/~~o~~osc~a~lo[~~.I~r~~~/. For further fn/orrnation or qdesilons concern ng th.s proposal, pleose contact Margaret ~arnesi, Air Quality Planning and lrnplementa

- !512!239:4581:.;.

. . .. ;. - ,-.. . , :., -.. ;

. -.

(S.~~l?~~l~llll, .. .. ... T&T~~F,:DJI ~-. . /Ill~~llS/

.... .

.9!.200Afield citation was entered regardi~ g Robest C. Manning, Docket No. 2006-0928-PWS-E on September 1 ,2006 assessing $21 0 in administrative penalties. 

# F

Austin, Texas 7871 1-3087. TRD-200605223 LaDonna Castaiiuela Chief Clerk
Filed: September 20, 2006 

# * *

\

# / Extension of Deadline fbr Comme~its (Cl~apter 116) V In the August 25,2006, issue of the Texas Register (31 TcxRcg 6616), the Texas Co~li~nission on Environmental Quality (commission) published proposed new ~~116.1500, 1 16.1510, 116.1520, I 16.1530, and 116.1540 of 30 TAC Chapter 116, Control ofAir Polllltion by Pennits for New Construction orModification, and corresponding revisio~ls for the state i~iiplementation plan (SIP).Thepreambleto the proposed rules stated that the comment period closed September 25, 2006. The commission has extended the deadline for receipt of written comments to October 9, 2006, for these proposed sections. Written co~n~nents may be subnlitted to Lola Brown, MC 205, Office of Legal Services, Texas Comnlission on Environmental Quality, P.O. Box 13087, Austin, Texas 7871 1-3087; or faxed to (512) 239-4808. Electronic colll~nentsnay be submitted at htp://lv1~~~~~5.tceq~~tate.tx.us/rr~les/ecom11~ei~ts/. All conlmcnts should rcference R~de Project Number 2006-022-116-EN. Thc conllnent period closes October 9. 2006. For further information, please contact Margaret Earnest, Air Quality Division, (512) 239-458 1. TRD-200605200 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: September 19,2006 INFORMATION SECTION

, 

# I

Notice of District Petition Notice mailed September 14: 2006 TCEQ Internal Control No. Tcxas limited liartnership, Woodhri nership, and TVMS Land Invcst~nc tioners), filed a petition for CI-eatirn District ot'Montgomely County wiLh ronmental Quality (TCEQ). The XVI, Section 59 oi'the Constitutio~ and 54 ofthe Texas Water Code; 31 Ler 293; and the procedural rules follo\ving: (I) the Petitioners are of the land to be included in the lien llolders including Robin G. Sta dent Executrix oitlie Estate of Jo Eastridge, Jr.; James Tulner McInt'lre; Wilson Wayne Icing. Jnclependcnt Icing, Deceased; J. Phillip Davis, Stautz; JP Morgan Chase Bank, N blc Lcad Annu~ty Trust on thc prol>crQ District; (3) thc 11ro11oscdDistrict To vicw the coml~lctc ~ssucd noticcs, ricw thc noticcs 011ourwcb site at ~~~ww.tccq.statc.~.uslco~iin~~ex~cIcc p~~b-~~oticc.I~t~nl or call tlic Officc of the Chief Clerk at (512) 239-330 to obtain a col~y of the complete notice. When searching the web s' e, type in the issued date range shown at the top of this document t obtain search results. 

# f

0720;006-D07; Northjiark 109, LTD., a Ige268, LTD, a Tcxaslimited partnl. Inc., a Texas corporation (Petiof' Wooclriclge Municipal Utility the Texas Commission on Envipetition was filed pul-suantto AI-ticle ofthe State oi'Texas; Chapters 49 Texas Administrative Code Chaljo:'the TCEQ. The petition states the

.he owners of a majority in value ~rroposed District; (2) there are ten lford, Individually and as IndepenIn P. Stanford, Jr., Deceased; Ray Jessie Randolph McIntyre, Jr.; :xecutor of the Will of Jessie Elise J..; Patsy D. Freeman; and Janet D.

A, and tlie Ann I<. Grace Charitato bc includcd in thc ~pl.oposcd will contain al~l~roximatcly 602.04 The TCEQ may grant a contested caze liearing request is filed within 30 da1.s of the notice. To request a contested following: (I)your name (or fora resentative), mailing address, dayti~re if any; (2) the nalile of the petitioner Number; (3) the statement "Ilwereq a brief description of how you wou way not common to the gcncral pu property rclati\rc to the proposed dir sub~nit your proposed adjustments to tested case hearing must be sub~nitt:d Chicf Clerk at the address provided

Notice of Public Hearing on P~.o)osal to Substitute Certain T1.allspo1-tatiouControl Measure Contained in the Dallas-Fort WorLh State I~nplementation Pla

# iliearing on a petition if a written after the newspaper publication Zase hearing, you must submittlie grmpor association, an official repphone numbel; and fax numbel; and the TCEQ Internal Control lest a contested case hearing"; (4) d be affected by the petition in a ~lic; and (5) the location of your trict's boundaries. You may also the pctition. Requests for a conin writing to tlic Office of the n the information section below.

LaDonna Castafiuela Chief Clerk Texas Commission on Environmenta Filed: September 20, 2006

The Texas Commission o11Envil-01 mental Quality (con~mission), in coortlination with the Nr)rtli Centra Texas Council of Govel-nments WCTCOG). serving as the Me1 ol~olilan Planning Organization (MPO) l'or the Dallas-FOI-1 Worth m Lroliolilan area (DFW),jIroposes 

# I

Quality

ADDITION Septenzber 29, 2006 31 

### TexReg 8263ss Plaza 1; DOCKET

and $334,8(~)(5)(B)(i), the registration self-cerexpired on January 3 1,

duct inventory control um substances used as to physically label all certification form; 30

,by failing to conduct odicprotection system STAFF ATTORNEY:

NUMBERS: 70774 and RN 103967469;LO on United States Highway 83 and 1.2 ~niles 1436, La Pryor, &vala

TRD-200604295 Mary R. Risner Director, Litigation Division Texas Commission on Environ 

## ' ental Quality Filed: August 15. 2006 

# T

Notice ofPublic Hearing onProposed Revisions to 30 TAC Chapter 116 and to the State Ilnplementation Plan The Texas Co~nmission on Environmental Quality (commission) win conduct a public hearing to receive testimony regardingproposed revisions to 30 Texas Administrative Code (TAC) Chapter 116, Control of Air Pollution by Permits for New Construction orModification, and to the state implementation plan (SIP), under the requirements of Texas I-Iealth and Safety Code, $382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations $51.102 of the United StatesEnvironmental Protection Agency (EPA) regulations concerning SIPS. The commission proposes new $5116.1500, 116.151 0, 1 16.1520, 116.1530, and 116.1540 in new Subchapter M, Best Available Retrofit Technology (BART), to implement federal requirements concerning the use of BART at certain sources. A public hearing on this proposal will be held in Austin, Texas, on September 18, 2006, at 2:00 p.m., in Building E, Room 201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussion during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. Persons planning to attend the hearing, who have special communication or other acco~nmodation needs, should contactLola Brown, Office ofLegal Services, at (5 12) 239-0348. Requests should be made as far in advance as possible. Comments may be submitted to Lola Brown, MC 205, Texas Register Team, Office of Legal Services,. Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 7871 1-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.zis/nrles/ecomments. The comment period closes September 25, 2006. All comments should reference Rule Project Number 2006-022-116-EN. The proposed rules may be viewed on the commission's Web site at http://~~~uitceq.state.tx.us/nav/rules/propose-adopt.htn~l. For further infor~nation or questions concerning this proposal, please contact Margaret Earnest, Air Quality Planning and Implementation Division, at (512) 239-4581. TRD-200604225 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: August 11,2006

Notice ofWater Quality ppplications Notice issued August 7, 20b6

31 TexReg 7026 Arigrrst 25, 2006 TexasRegisterSherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: eptember 24, 2006 For further information,please call: (512)305-7700 

# + 

# I

+ PART23. TEXAS COMMISSION CHAPTER 535. GENE L PROVISIONS SUBCHAPTERF. ED ATION, EXPERIENCE, EDUCATIONAL PROG MS, TIME PERIODS AND TYPE OF LICENS 

# f

22 TAC 8535.61 

# I

to S535.61 would clarify that t er would only apply to an applicant who has a current equivalent to the license being applied for.

Ms. DeHay also has determined that for eachyear ofthe first five years the section as proposedis ineffectthe public benefit anticipated as a result of enforcingt e section will be acceptance of national test resultsfrom others ates with comparable examinations andfacile implementation f on-line renewal requirements. There is no anticipated econo ic cost to persons who are required to comply with the propo 

# I

ed section.

The amendmentsare proposed nderTexas OccupationsCode, ~1101.151, which authorizesth Texas Real Estate Commission to make and enforce all rules a d regulations necessary for the performanceof its duties and t establish standards of conduct and ethics for its licensees in eeping with the purposed and intent of the Act to insure cornp iance with the provisions of the Act. 

# 1

The statute affected bythis prop sal isTexas OccupationsCode, Chapter 1101. No other statute, ode or article is affected bythe proposed amendments. $535.61. Examinations. (a) - (f) (NOchange.) 

# 1

(g) The commission may Jaivethe national portion of the examination of an applicant for a bro er or salesperson license if the ap

# 3 plicant maintains a license equivalept to the license being applied for I and has passed a comparable nation - fied by a nationally recognized real This agencyherebycertifiesthat by legal counseland foundto be ity to adopt. Filed with the Officeof the Secre ry of State on August 8,2006. TRD-200604078 Loretta R. DeHay General Counsel Texas Real Estate Commission Earliest possible dateof adoption: S pternber 24, 2006 For further information,please call: 512)465-3900 

# + + 

# I

+ TITLE 30. ENVIRONMENTAL QUALITY 

### PART 

### 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 1

### 16. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION SUBCHAPTER 

### M. BEST AVAILABLE RETROFIT TECHNOLOGY (BART) 30 TAC ~~116.1500,116.1510,116.1520,116.1530,116.1540 The Texas Commission on Environmental Quality (TCEQ or commission) proposes new §§116.1500, 116.1510, 116.1520, 116.1530, and 116.1540. The proposed new sections will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The Federal Clean Air Act (FCAA), §169A, Visibility Protection for Federal Class IAreas, and §I 69B, Visibility (42 UnitedStates Code (USC), S7491 and §7492), requirethe EPAto adopt regulations to address visibility impairment at federal Class I areas due to regional haze. Class I areas are federally designated parks and scenic areas of national importance. There are 156 Class Iareas in the United States, including national and international parks and wilderness areas. Regional haze is caused by the emissionof air pollutants from numerous sources located over a wide geographic area. The EPA promulgated regulations to address these statutory requirements in 40 Code of Federal Regulations (CFR) Part51, Subpart P, Protection of Visibility, on July 1, 1999 (64 FR 35763), and promulgated amendments to Subpart P and a new Appendix Y, Guidelines for BART Determinations Underthe Regional Haze Rule,to Part51onJuly 6,2005 (70 FR 391 56). The FCAA and implementing regulations require states to submit SIPSto addressvisibility impairmentcaused by regional haze and include guidelines for determining best available retrofittechnology (BART). As part of the SIP, states must identify BART-eligible sources. BART-eligiblesources belongto one of 26 named source categories, have the potential to emit 250 tons per year or more of a visibility-impairing pollutant (nitrogen oxides (NOx), sulfur dioxide (SO,), and particulate matter



### 31 

### TexReg 6616 August 25, 

### 2006 Texas Register(PM)), and were built or reconstructed between August 7, 1962, and August 7, 1977. These sources must be evaluated to determine whether they cause or contribute to visibility impairment at any Class I area. BART-eligible sources that cause or contribute to visibility impairment at any Class I area are subject to BART and owners or operators must conduct a technology evaluation to determine the appropriate level of BART controls. BART is to be determined on a case-by-case basis for each source based on the technology available, the costs of compliance, the energy and non-air quality environmental impacts of controls, any existing pollution control technology used by the source, the remaining useful life of the source, and the degree of visibility improvement that would result from the use of the technology. 'The proposed rules would revise Chapter 116 to ensure that owners or operators of sources that are subject to BART requirements perform a BART engineering evaluation to determine the appropriate level of BART, and subsequently implement any required BART controls. The proposed rules also provide mechanisms for BART-eligible sources to demonstrate that they do not significantly impact visibility in Class I areas and are therefore not subject to BART control requirements. The TCEQ is required to submit a Regional Haze SIP tothe EPA no later than December 17,2007. In order to develop this SIP in a timely manner, the TCEQ must receive the BART engineering analyses (or BART exemption modeling) from each BART-eligible source no later than April 30, 2007. A corresponding deadline is proposed in the rules. SECTION BY SECTION DISCUSSION §116.1500. Definitions. The commission proposes new §116.1500, which contains definitions relevant to the proposed rules. The terms defined include BART-eligible source and visibility-impairing air pollutant. The proposed definition of BART-eligible source is similar to the functional definition of this term under 40 CFR S51.301, Definitions, except that the proposed definition refers only to visibility-impairing pollutants, instead of all pollutants. The reference to visibility-impairing pollutants should minimize confusion as to what pollutants are relevantto BART applicability. Theterm "visibility-impairing air pollutant" is also defined and includes NOx, SO,, and PM, which arethe principal species emitted fromTexas sources that are believed to influence visibility. Notethat particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM,,) may be used as the indicator for PM when assessing BART eligibility. The commission has not proposed to include volatile organic compounds (VOCs) or ammonia as visibility-impairing air pollutants. The commission's initial research suggests that VOCs are not a significant contributor to visibility impairment at Class I areas that are impacted by Texas facilities. In addition, the commission has not proposedto include ammonia because existing background levels in Texas would make visibility improvements from ammonia source reductions only marginally effective, and the EPA has indicated that inclusion of ammonia as an evaluated BART pollutant is not expected. However, this determination is not final and the commission is interested in comments or data relating to the possible inclusion of VOCs andlor ammonia as visibility-impairing air pollutants. For terms not defined in this section, the definitions contained in 40 CFR 551.301 apply. ~116.1510. Applicability and Exemption Requirements. The commission proposes new $116.1510 to specify which facilities would be subject to the proposed rules and identify certain exemptions which may apply. The proposed rules only apply to BART-eligible sources as defined in §116.1500. Under proposed $116.1510(b),the owner or operatorof a BARTeligible source may electto use modelingto demonstrate that the source does not cause or contribute to visibility impairment at any Class I areas. If the owner or operator successfully demonstrates that the source does not cause or contribute to visibility impairment, the source would not be subjecttothe requirements of §116.1520, BestAvailable Retrofit Technology (BART) Analysis, and §I16.1 530, Best Available Retrofit Technology (BART) Control Implementation. Owners or operators who seek to claim this exemption must submit the exemption modelingtothe commission's Air Permits Division no laterthanApril 30,2007, under seal of a professional engineer licensed inthe State of Texas. BART exemption modeling and modeling conducted as part of the BART analysis must conform to a commission-approvedmodel and associated guidelines. The commission is considering the approval of California Puff Model (CALPUFF) modeling and the Central Regional Air Planning Association's CENRAP BART Modeling Guidelines. The commission is seeking comments on other appropriate modeling approaches for BART. Persons seeking guidance about the CENRAP BART Modeling Guidelines and other aspects of the BART modeling process should contact the commission's Air Permits Division. The commission is proposing a 0.5 deciview threshold for determining whether a source causes or contributes to visibility impairment. EPA guidance indicates that 0.5 deciview isthe upper limitthat statesshould use for determining whether a source contributes to visibility impairment. Factors that may influence the selection of this threshold are the number of emission sources affecting Class I areas and the magnitude of emissionsfrom the individual sources. As additional information is gathered about emissions from BART-eligible sources in Texas and how those emissions relate to visibility in Class I areas, it is possible that a lower threshold of visibility impairment may be necessary. A lower threshold could include the application of different visibilityimpairment thresholds for each individual Class I area. The commission invites comment on the proposed 0.5 deciview threshold, as well as any alternative strategy. The commission is proposing several exemptions under ~116.1510(c).These exemptions are based on examples that the EPA developed for 40 CFR Part 51, Appendix Y. There are two "model plant" exemptions proposed as ~116.1510(c)(l) and (2), respectively. The EPA concluded that sources meeting the stated criteria for emissions and distance from Class Iareas are unlikely to have a significant effect on visibility. The exemptions in ~116.1510(c)(l) and (2) are pollutant specific for NOxand SO,, such that the owner or operator of the source would still berequired to perform the BART engineering analysis and implement any applicable BART controls for other visibility-impairing pollutants (such as PM). The exemption proposed under ~116.1510(~)(3) is based on de minimis emission totals which EPA determined would be unlikely to contribute to regional haze. As is the case with the proposed exemptions in ~116.1510(c)(l) and (2), the exemption in ~116.1510(~)(3) is pollutant specific. For example, a source may beexempted for purposes of NO, or SO, while remaining subject to BART requirements for PM. A source claiming this exemption could also be exempted from BART requirementsfor PM,, while remaining subject to BART for other visibility-impairing air pollutants.



### PRO

### 'POSEDRULES August 25,2006 31 TexReg 661

### 7Ownersor operatorsclaiming exemption under$116.151O(c)are requiredto maintain recordsto demonstrate compliance with the exemptioncriteria, and shall make such records available to the commission or any local air pollution control agency with jurisdiction upon request. The commission is proposing ~116.1510(d) to provide that electric generating units (EGUs) that are participating in the Clean Air Interstate Rule (CAIR) cap and trade program may avoid a BART analysis and implementation of controls for NO, and SO,. The EPA has determined that CAlR provides greater reasonable progress than BART and has correspondingly allowedthe use of CAlR as an acceptable substitute for the application of BART controls. This subsection only addresses NO, and SO,, so BART-eligible EGUs would remain subject to BART requirementsfor PM. $1 16.1520. Best Available RetrofitTechnology(BART) Analysis. The commission proposes new §116.1520, which contains requirements for the BART engineering analysis. BART-eligible sources that are not exempted under ~116.1510(b) or (c) are required to develop a BART engineering analysis to determine BART for that source. The analysis shall be conducted accordingto the procedures established in40 CFR Part51, AppendixY, Guidelines for BART Determinations Under the Regional Haze Rule, Section IV, The Bart Determination: Analysis of BART Options. The BARTanalysis must include an evaluationof all technically feasible retrofittechnologies in accordance with the five factors stated in FCAA, §169A(g)(2)(42 USC, S7491). The factors to be considered in the BART analysis are: an analysis of the cost of compliance, the energy and non-air quality environmental impacts, the degree of visibility improvement in affected Class I areas resulting from the use of the control technology, the remaining useful life of the source, and any existing control technology presentat the source. Based on these statutory factors, the owner or operator must select and identify one of the emission control alternatives as the prospective BART control strategyfor the source. Proposed §116.1520(b) would requirethe owner or operator to specify short-term (hourly) and long-term (annual) emission limits associated with the selected BART controlstrategy. This information is necessary for the commission to develop the required Regional Haze SIP. Proposed §116.1520(c) would establish a deadline of April 30, 2007, for submission ofthe BART analysis. This deadline is necessary to provide the commission with sufficient time to review the BART analyses and compile BART emission reductions to develop the required Regional Haze SIP by the December 17, 2007, deadline. 51 16.1530. Best Available Retrofit Technology (BART) Control Implementation. The commission proposes new $116.1530, which contains requirements and deadlines associated with the implementation of any required BART controls. Proposed 3116.1530(a) establishes the deadline for any required BART controls to be implemented. Federal regulations specify that BART controls must be in place no later than five years after the EPA approves a state's Regional HazeSIP. Giventhat the commission is required to submitthe Regional HazeSIP to EPA by December 17,2007, and the EPA will requiresome time to reviewthe SIP, it is likely that the BART control deadlinewill occur during or afterthe year 2013. Many factors influencethe schedule of the development and approval of the Regional Haze SIP and it would be difficult to estimate a more precise deadline. Proposed §116.1530(a) also contains a requirementfor ownersor operatorsto establish procedures to ensure that BART-required control equipment is properly and continuously operated and maintained. Proposed §I1 6.1530(b) is intended to ensurethat ownersor operators subject to BART obtain any necessary authorization for new control equipment and establish enforceable mechanisms to ensure ongoing compliancewith BART. The proposed rule requires that each owner or operator of a BART-eligible source apply for a permit, permit amendment, permit alteration, applicable standard permit, or other enforceable mechanism to establish BARTemission limitations. If a BART-eligiblefacility satisfies BART requirements using existingcontrols, and there are no changes in quantity or character of emissions, then no permit action is requiredas long as the existing emissions have enforceable limits in a permit, standard permit, or other type of authorization. $1 16.1540. Exemption from BestAvailable Retrofit Technology (BART) Control Implementation. Proposed new §116.1540 provides a case-specific mechanism for BART-eligible sources to request an exemption from BART control requirements. In order to obtain exemption under this section, the owner or operator seeking exemption mustfirst obtain initial approval from the commission, then obtain final approval from the EPA. Although this exemption may be used to avoid the otherwise-required installationof BART controls, this exemptiondoes not negate the requirementto performthe BART analysis required under proposed§116.1520, orthe requirement to submit the analysis no later than April 30, 2007. FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT Nina Chamness, Analyst, Strategic Planning and Assessment Section, has determined that, for the first five-year period the proposed rules are in effect, no significantfiscal implications are anticipated for the agency. The agency will be required to review modelingand engineering analysesto verify that they meet federal guidelines and are technically correct. Staff anticipates that these reviews can be done with existing resources. Administration or enforcement of the proposed rules may have fiscal implications, some of which may be significant, for other units of state or localgovernmentsowningor operatingfacilitiesthat may require BARTto controlemissions. Fiscal implications would dependon the results of exemption modeling assessments and engineering analysis as well as the determination of whether controls would be required. The FCAA requires statesto submit SIPSto addressvisibility impairment caused by regional haze inthe 156 federally protected parks and wilderness areas. As part of their SIPS, states must identify the BART-eligible sources within their boundaries and provide guidelinesfor determining BARTto ensure certain older pollution sources use appropriate technology to control emissions that cause or contributeto impairedvisibility in designated national parks and landmarks. The EPA has named 26 general types of sources that could be affected by the proposed rules. These types of sources include chemical plants, fossil fuel-fired EGUs, refineries, portland cement plants, lime plants, large boilers, carbon black plants, certain types of smelters, kraft pulp mills, iron mills, steel mills, fiber glass processing plants, and charcoal productionfacilities. The proposed rules would apply to sources that have the potential to emit 250 tons or more per year of visibility-impairing air pollu

### 31 TexReg 6618 August 25,2006 Texas Registertants and were built or reconstructed between August 7, 1962, and August 7, 1977. The proposed rules define visibility-impairing air pollutants as NOx,SO,, and PM. Texas has BART-eligible sources scattered throughout the state. Local governments that own or operate facilities classified as BART-eligible sources may need to perform case-specific emissions modeling to claim exemptions from the proposed rules. Entities that are not eligible to meet any exemptions will be required to prepare and submit a BART engineering analysis. They may also be required to install BART emission controls at a later date, in the year 2013 or later, if it is determined that additional controls are needed. A recent survey conducted by the agency indicates that there may be as many as 127 BART-eligible sources in Texas. According to survey results, there are less than 15 BART-eligible sources in Texas that are owned or operated by local governments. Local governments subject to the proposed rules may be required to pay as much as $5,000 to $20,000 for exemp tion modeling. An engineering analysis, if required, may cost affected local governments as much as $10,000 to $40,000. The costs of the exemption modeling and BART engineering analysis would vary greatly depending on a number of factors, which include the complexity of the source, the size of a facility, and the proximity of the source to protected national parks and landmarks. Costs of implementing BART controls depend on the type of control required and are estimated by EPA to rangefrom a low of $1,000 to a high of $10,000 per ton of NOx,SO,, or PM controlled. PUBLIC BENEFITS AND COSTS Ms. Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be compliance with federal regulations and, over the long term, improved visibility, cleaner air, and a healthier and safer environment. A recent survey conducted by the agency indicates that there may be as many as 127 BART-eligible sources in Texas. There may be as many as 112 of these sources that are owned or operated by large businesses. Large businesses may pay as much as $5,000 to $20,000 for exemption modeling. An engineering analysis, if required, may cost large businesses as much as $10,000 to $40,000. The costs of the exemption modeling arid BART engineering analysis would vary greatly depending on a number of factors, which include the complexity of the source, the size of a facility, and the proximity of the source to protected national parks and landmarks. Costs of implementing BART controls depend on the type of control required and are estimated by the EPA to range from a low of $1,000 to a high of $1 0,000 perton of NO,, SO,, or PM controlled. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT No adverse fiscal implications are anticipated for small or micro-businesses. None of the potential BART-eligible sources in Texas are known to be owned or operated by a small or micro-business. Ifa small or micro-business does become subject to the proposed rules, it would incur the same costs as those incurred by local governments or large businesses. LOCAL EMPLOYMENT IMPACT STATEMENT The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect. DRAFT REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewed the proposed rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, 52001.0225,and determined that the proposed rulemaking meets the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" ineans a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed rulemaking does not, however, meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, 52001.0225(a). Texas Government Code, §2001.0225, applies only to a major environmental rule, the result of which isto: 1)exceed a standard set bvfederal law. unless the rule is specifically required by state law;

## i) exceedan exDress reauirement of state law, unless the rule is s~ecificallv required by' federal law; 3) exceed a requirement of a deleg;- tion agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This proposed rulemaking would require BART on certain sources of NO,, SO,, and PMthat cause or contribute to visibility impairment in any Class Iarea. The proposed new §§116.1500, 116.1510, 116.1520,116.1530, and 116.1540 would ensure that owners or operators of sources that are subject to BART requirements perform a BART engineering evaluation to determine the appropriate level of BART, and subsequently implement any required BART controls. 'The proposal incorporates by reference the EPA's Guidelinesfor BART Determinations Under the Regional Haze Rule (40 CFR Part 51, Appendix Y). The proposed rules also provide mechanisms for BART-eligible sources to demonstrate that they do not significantly impact visibility in Class I areas and are therefore not subject to BART control requirements. This strategy is intended to address visibility impairment at federally designated parks and scenic areas of national importance (Class I areas) and thus the intent of the proposed rules is protection and improvement of the aesthetic environment inthese areas. Furthermore, the commission finds that the revisions to Chapter 116 proposed in this rulemaking could adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Under the proposed new sections, BART-eligible sources are those sources that belongto one of 26 named source categories, have the potential to emit 250 tons per year or more of a visibility-impairing air pollutant (NOx, SO,, and PM), and were built or reconstructed between August 7, 1962,and August 7,1977. The commission has determined that approximately 127 sources may be BART eligible. Sources determined to be subject to BART through the engineering analysis of Appendix Y must install and operate BART controls for the source five years after the EPA approves the state's Regional Haze SIP. The commission anticipates that a fraction of these BART-eligible sources will actually be required to install BART controls, and it is not yet known what BART will be for each source. Some sources will model out of the requirement to determine and ultimately install BART; and EGUs may use CAlR as a substitute for BART. The exact cost



### PROPOSED RULES August 

### 25, 2006 31 TexReg 6619of the BART controls for each unit cannot be predicted, but significant costs to comply with the control requirements may be expected from at least some units,which could in turn adversely affect a sector of the economy. The EPA has estimated costs ranging from $1,000 to $10,000 per ton of NOx, SO,, or PM. Given the potential for significant costs, the commission has made the determinationthatthis rulemaking meets the definition of a "major environmental rule." Nevertheless,the proposednew sectionsto Chapter 116 are not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the proposed rules do not meet any of the four applicability requirements in subsection (a) of that section. Specifically, the BART requirements in Chapter 116were developedto be included inthe Regional Haze SIP that will be submitted to the EPA as required under FCAA, 42 USC, s7491 and s7492, and therefore meet a federal requirement. FCAA, 42 USC, s7491, requires each SIP to include a requirement that each BART-eligible source that is reasonably anticipated to cause or contributeto visibility impairment inany Class Iarea to procure, install, and operate BART controls. BART isto be determinedaccordingto thefivefactors listed ins7491(g)(2). FCAA, s7492 requires that any regulations promulgated by the EPA pursuant to s7491 require states to revise their SIPS under FCAA, 42 USC, $7410 to include a regional haze plan that includes BART for certain sources. The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intentof SB 633 was to requireagenciesto conduct a regulatory impactanalysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirementof state law, federal law, or a delegated federal program, or are adopted solely under the generalpowers of the agency. Withthe understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the billwill have significantfiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. The FCAA does not always requirespecific programs, methods, or reductions in order to meet emission standards or visibility goals and reasonable progressof those goals; thus, states must develop programs and strategiesto help ensure that those standards and goalsfor new and existing sources are met. The same is true for visibility protection. Because of the ongoing need to address nonattainment issues, and to meet the requirements of 42 USC, s7410,the commission routinely proposes and adopts SIP rules. As discussed earlier in this preamble, states must also revisetheir SIPS under s7410 to incorporate a planfor visibility protection, including requirements for BART. The legislature is presumedto understandthis federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rulethat exceeds federal law,then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumedto understandthe fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commissionbelievesthatthe intent of SB 633 was only to require the full regulatory impact analysisfor rules that are extraordinary in nature. While the SIP rules will have a broad impact, that impact is no greater than is necessaryor appropriate to meet the requirementsof the FCAA. For these reasons, rules adopted for inclusioninthe SIP fall under the exception in Texas Government Code, §2001.0225(a), becausethey are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but leftthis provision substantially unamended. It is presumed that "whenan agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemedto have accepted the agency's interpretation." CentralPower& Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf Humble Oil& Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor,24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity PortlandCement Div., 563 S.W.2d 916 (Tex. 1978). The commission's interpretationof the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. Inan attempt to limit the numberof rule challenges based uponAPA requirements,the legislatureclarified that state agencies are requiredto meet these sections of the APA against the standardof "substantial compliance." The legislaturespecifically identifiedTexas Government Code, s2001.0225, as falling under this standard. The commission has substantiallycomplied with the requirementsof Texas GovernmentCode, s2001.0225. The specific intent of the proposed rulemaking is to adopt BART rules and incorporate by reference the federal BART determination guidelines, with the objective to reduce visibility impairment in federal Class I areas. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the proposed rulemakingdoes not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirementof a delegationagreement. Finally,this rulemaking action was not developed solely under the general powers of the agency, but is authorized by specific sections of Texas Health and Safety Code (THSC), Chapter 382 (also known as the Texas CleanAir Act (TCAA)),and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble, includingTHSC, ss382.012, 382.017, and 382.051. Therefore, this rulemakingaction is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because although the proposed rulemaking meets the definition of a "major environmental rule," it does not meet any of the four applicability requirements. The commission invites public comment on the draft regulatory impact analysisdetermination duringthe publiccomment period. TAKINGS IMPACTASSESSMENT The commissionevaluated these proposed rulesand performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission'sassessment indicatesthat



### 31 

### TexReg 6620 August 25,2006 TexasRegisterTexas Government Code, Chapter 2007 does not apply to this proposed rulemaking because this is an action that is reasonably taken to fulfill anobligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4). Specifically, the new sections of Chapter 116 require that BART-eligible sources determine whether they are subject to BART controls. Those sources that are subject to BART must perform a BART engineering evaluation to determine the appropriate level of BART, and subsequently implement any required BART controls. FCAA, 42 USC, 57491, requires each state to submit a Regional Haze SIP to address visibility in federal Class 1areas. The FCAA further mandates thatthe SIP require each BART-eligible source that is reasonably anticipated to cause or contribute to visibility impairment in any Class 1 area to procure, install, and operate BART. BART is to be determined according to the five federally established factors, listed in42 USC, 57491(g)(2). 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 the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CVIP. As required by 5281.45(a)(3) and 31 TAC §505.11(b)(2), relatingto 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 actionfor consistency with the CMP goals and policies in accordance with the rulesofthe Coastal Coordination Council and determinedthat the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC 5501.12(1)). The proposed rules are intended to implement a federally required program to apply BART emission controls to certain sources of visibility-impairing air pollutants. The proposed changes would tend to reduce undesirable haze at federal Class I areas. Certain aspects of this rulemaking are intended to protect the environment or reduce risks to human health from environmental exposure. 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 inthe coastal areas (31TAC §501.14(q)). This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordancewith 31TAC §505.22(e),the commission affirms that this rulemaking action isconsistent with CMP goals and policies. The commission solicits comments on the consistencyofthe proposed rulemaking with the CMP during the public comment period. EFFECTON SITES SUBJECTTOTHE FEDERAL OPERATING PERMITS PROGRAM Owners and operators subject to the Federal Operating Permit Program must, consistent with the revision process in 30 TAC Chapter 122, Federal Operating Permits Program, revise their operating permitsto include the applicable BART control requirements or emission limits for each source. ANNOUNCEMENT OF HEARING A public hearing on this proposal will be held in Austin on September 18, 2006, at 2:00 p.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building E, Room 2015. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing.Persons who have special communication or other accommodation needswho are planningto attend the hearing should contact Lola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in advance as possible. SUBMITTAL OF COMMENTS Written comments may be submitted to Lola Brown, 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/rules/ecomments/. All comments should reference Rule Project Number 2006-022-116-EN. The comment period closes September 25, 2006. For further information, please contact Margaret Earnest, Air Quality Planning and Implementation Division, (512) 239-4581. STATUTORY AUTHORITYThese new sections are proposed under TWC, 55.103, concerning Rules, and 55.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state. The new sections are also proposed under THSC, 5382.002, concerning Policy and Purpose, which establishes the comm~ssion's purposeto safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and maintenance of adequate visibility; 9382.011, concerning General Powersand Duties, which authorizes the commissionto establish and control the level of quality to be maintained in the state's air; 5382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan for the control of the state's air; 5382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the TCAA; and $382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits to construct newfacilities or modify existing facilities that may emit air contaminants, or to operate a federal source, and to adopt rules as necessary to comply with changes in federal law or regulations applicableto permits issued under the TCAA. The proposed new sections implement TWC, $5.103 and 55.105; and THSC, ~~382.002,382.011,382.012, 382.017, and 382.051.

The following tenns, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise. For terms not defined in this section, the definitions contained in 40 Code of Federal Regulations (CFR) $51.301, as effective September 6,2005, are incorporated by reference. ('lJ Best available retrofit technolow (BART)-eligible source--Any of the following stationary sources of air pollutants, including any reconstructed source, that was not in operation prior to August 7, 1962, and was in existence on August 7, 1977, and has the



### PROPOSED RULES August25,2006 31 TexReg6621potential to emit 250 tons per year (including fugitive emissions, to the extent quantifiable)of any visibility-impairing air pollutant: fossil fuel-fired steam electric plants of more than 250 millionBritish thermal units (BTU)per hour heat input; @ coal-cleaning plants (thermal dryers); 

# a haft pulp mills; 

# a portland cement plants; primary zinc smelters; (FJ iron and steel mill plants; (GJ primary aluminum ore reduction plants; 

# a primary copper smelters; QJ municipal incinerators capable of charging more than 250 tons of refuse per day; (JJ hydrofluoric, sulflxic, and nitric acid plants; (KJ petroleum refineries; lime plants; phosphate rock processing plants; coke oven batteries; sulfurrecovery plants; carbon black plants (hmaceprocess); 

### 0 primary lead smelters; (RJ fuel conversion plants; @J sinteringplants; 

# a secondarymetal production facilities; 

# a chemical process plants; fossil fuel-fired boilers of more than 250 million BTUs per hour heat input; (W) petroleum storage and transfer facilities with capacity exceeding 300,000 barrels; 

# a taconite ore processing facilities; 

# a glass fiberprocessing plants; and 

# a charcoalproduction facilities. (2J Visibility-impairing air pollutant--Any of the following: nitrogen oxides, sulfur dioxide, or particulate matter. $1 16.151 0. Applicability and Exemption Requirements. @ Therequirements ofthis subchapter apply tobest available retrofit technoloq (BART)-eligible sourcesas defined in $116.1500 of this title (relating to Definitions). QJJ The owner or operator of a BART-eligible source may demonstrate, using a model and modeling guidelines approved by the commission,that the source does not cause or contribute to visibility impairment at a Class I area. A BART-eligible source that does not cause or contribute to visibility impairment at any Class I area is not subject to the requirements of $1 16.1520 or $ 116.1530 of this title (relatingto Best Available Retrofit Technology (BART) Analysis and Best Available Retrofit Technology (BART)Control Implementation). A source is considered to cause or contribute to visibility impairment if it causes a visibility impairment of .greaterthan 0.5 deciviews at any - Class I area. The modeling demonstration must be submitted under seal of a Texas licensed professional engineer andmust be receivedby the commission's Air Permits Division no later than April 30, 2007. @ The following BART-eligible sources are not subject to the requirements of 6116.1520 or $1 16.1530of this title for the indicatedpollutant(s). Ownersor operators claimingexemption under this subsection shall maintain records sufficientto demonstrate compliance withthe exemption criteria, andshallmake such records availableupon request of personnel from the commission or any local air pollution control agency havingjurisdiction. (lJ AnyBART-eligible source thathas the potential to emit less than 500 tons per year of combined nitrogen oxides (NO= sulfur dioxide (SO,) and that is located more than 50 kilometers from any Class I area is'not subiect to BART for NO. and SO, Any BART-eligible source thathas thepotentialto emit less than 1,000 tons per year of combined NO. and SO-andthat is located more than 100 kilometersfrom any Class I area isnot subjectto BART for NOxand SO,

matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM,) is not subject to BART for PM,, 

### - - BART-eligible electric aeneratingunitsparticipating in the Clean Air Interstate Rule Trading Program are not subject to the requirementsof (j116.1520 or 

### 6116.1530 of this title for NO"and SO, $116.1520. Best Available Retrofit Technolom (BART) Analysis. @ Except as provided under (j116.15 1 Oh), (c), or (d) of this title (relating to Applicability and Exemption Requirements),each best available retrofit technology (BART)-eligible source shall conduct an analysis of emissions control alternatives for all visibility-impairing pollutants. This analysis must include the identification of all available, technically feasibleretrofit technologies, and for each technologl~ identified,an analysis of the cost ofcompliance, the energyandnon-air quality environmentafimpacts,the degreeofvisibility improvementin affected ClassI areas resulting from the use ofthe control technology, theremaininguseful lifeofthe source, andany existingcontroltechnolQJJ As part ofthe BART analysis required in subsection (a) of &is section, the owner or operator shall include detailed information documentingthe projected hourly and annual emission limits for the selected BART control strategy. @ The owner or operator of each BART-eligible source shall submit a completedBART analysis to the commission's Air Permits Division under seal of a Texas licensed professional engineer. The completedBART analysis must be received by the commission's Air - Permits Division no later than April 30, 2007. .$116.1530. Best Available Retrofir Technolom (BART) Control Implementation. @ Each owner or operator of abest available retrofit technology (BART)-eligible source shall install and operate BART-required control equipmentno later than fiveyears after the United StatesEnvironmental ProtectionAgency has approved a Regional Haze StateImplementation Plan for the Stateof Texas. Each owner or operator shall



### 31 TexReg 6622 August 25, 2006 Texas Registermaintain the BART-required control equipment and establish procedures to ensure such equipment is properly and continuously operated a~~d maintained.
-0 any installation of BART-requiredcontrol equipment, each owner or operator of a BART-eligible source shall apply for apennit, permit amendment, permit alteration, applicable standard permit, or other enforceable mechanism under this chapterto establish emission limitations and cow the implementationof BART. ,$116.1540. Exenzption from Best Available Retrofit Technology (BART) Control Implementation. The owner or operator of any best available retrofit technology (BART)-eligible source may apply for an exemption from the requirement to install, operate, and maintain BART-required control equipment, pursuant to the provisions of 40 Code of Federal Regulations $51.303. Any exemption request under this section requires initial approval from the executive directorand final approval from the administrator of the United States Environmental Protection Agency @PA). Exemption requests submittedto the EPA mustbe accompanied by written concurrence from the executivedirector. This agency herebycertifies that the proposal has been reviewed by legal counsel andfound to be within the agency's legal authority to adopt. Filedwith the Officeof the Secretary of StateonAugust 11,2006. TRD-200604224 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: September 24, 2006 For furtherinformation, please call: (51 2) 239-5017 

### TITLE 37. 

### PUBLIC SA 

### ETY 

### AND CORRECTIONS 

# f
PART 

## 1. TEXAS DE ARTMENT OF PUBLIC SAFETY 

# P

CHAPTER 3

### 5. 

### SUBCHAPTER 37 TAC 835.52 

# I The Texas Department of Publi Safety proposes new s35.52 concerning Summary Action Folowing Convictions. Adoption of the new section is necessary in order to clarify the Board's authority to act summarily when

# 4

otified of a conviction.

economies.

cro-businesses. Written comments on the new se be submitted to CliffGrumbles, Manager, Regulatory Service-Private Sechapter. Texas Government Code, § nd Texas Occupations

ity to adopt. Filedwith the Office of the Secretarjof State on August 8.2006.



### SUBCHAPTERE. GENE L 

### ADMINISTRATION AND EXAMINATIOI S 

# t TRD-200604082 Thomas A. Davis, Jr. Director Texas Department of Public Safety Eariiest possible date of adoption: Sept rnber 24, 2006

37 TAC 535.76 

# I For further information,please call: (51 

# + +

(Editor $ note: The text of thefollowi g section proposed for repeal will not be published, The section ma be examined in the ofices of the TexasDepartment ofPublic Safety r in the Texas Register o#ce, Room 245, James Earl RudderBuildin , 1019 Brazos Street, Austin.) 

# t 1) 424-2135 

# +

The Texas Department of Public S fety proposes the repeal of s35.76, concerning Investigations b Security Department of Private Businesses. 

# I

Code).



### PROPOSED RULES August 25,2006 31 TexReg 6623Kathleen Hal-t~iett Mrhile, Clzai~nza12 I<. B. "Kalph" Matquez, Comnzissio~zer Larry R.Soward, Conn7zissioner Glenn Slianltle, Execuiioe DiwclolProtectiny Te.~(n I)LI Reducing unclPrevcnti~?y Pollution



### NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ON PROPOSED REVISIONS TO 30 

### TAC .CHAPTER 116 AND TO THE STATE IMPLEMENTATION PLAN
The Texas Corninissioil on Ei1viroilmental Quality (coilmission) will conduct a public hearing to receive testiinony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 116, Control of Air Pollutio~l by Permits for New Constructioil or Modification, and to the state iinpleinentatioil plan (SIP), under the requirements of Texas Health and Safety Code, $382.017; Texas Goveriuneilt Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations $51.102 of the United States Eilviroiuneiltal Protection Agency (EPA) regulations concerning SIPS. The coininission proposes new $5116.1500, 116.1510, 116.1520, 116.1530, and 116.1540 in new Subchapter 

### M, Best Available Retrofit Teclmology (BART), to iinpleinent federal requirements concerning the use of BART at certain sources. A public hearing on this proposal will be held in Austin, Texas, on September 18, 2006, at 2:00 p.m., in Building E, Room 201S, at the Texas Coininissioilon Envirollrnelltal Quality coinplex located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written coinmeilts by interested persons. Registration will begin 

### 30 ininutes prior to the hearing. Iildividuals inay present oral statelnents when called upon in order of registration. A time limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no open discussioll during the hearing; however, coininissioil staff ineinbers will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.
Persons planniilg to attend the hearing, who have special coinlnuilicatioil or other accoininodatio~l needs, should contact Lola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in advance as possible.
Coininents may be submitted to Lola Brown, MC 205, Texas Register Team, Office of Legal Services, Texas Co~ninissio~l on Eilviroil~ne~ltal Quality, P.O. Box 13087, Austin, Texas 7871 1-3087 or faxed to (512) 239-4808. Electronic coinlneilts inay be submitted at 

### Izttp://~~ww5.tceq.state.tx.us/rules/ecor~znze1zts. The coin~nent period closes Septenlber 25, 2006. All coininents should reference Rule Project Nulnber 2006- 022-116-EN. The proposed rules inay be viewed on the coininission's Web site at 

### /zttp://~vl.v~). tceq. state.tx. za/rzav/l-uleslyropose adopt.htnzl. For further information or questions conceriling this proposal, please contact Margaret ~arilesj, Air Quality Planning and Iinpleinentation Division, at (512) 239-458 1. 

### Isstled inAustirz, Texas, onAugust 9, 2006.

1'.0.l3trx 1::087 Austin, 'Tex;is 78711-:jOS7 512/2:lf:-1 OC)O Intel.net ;iddress: v~l~~\~~.tcey.state~tx.~~s

11111111 I l,i li i .I I, li 1,,111 1 11~11,* .,, I, ..; ill,

# WRITTEN AND ORAL TESTIMONYINDEX OF WRITTEN TESTIMONY

Reference Number W-1 W-2 W-3 W-4 W-5 Submitted by James D. Jones, Alcoa, Inc. N. N. Dharmarajan,American Electric Power (AEP) Rich Raiders, Arkema, Inc. Francisco Pinto, Ash Grove Texas, LP John W. Fainter, Jr., Association of Electric Companies of Texas, Inc. (AECT) Katherine M. Gardner, BP Products North America, Inc. RussellA. Wozniak, The Dow Chemical Company Patrick Lee, Vinson & Elkins, on behalf of El Paso Electric Company (EPE) Brandt Mannchen, Sierra Club, Houston Regional Group Roberto Gasparini, Ph.D. and Jack G. Coblenz, P.G., Source Environmental Sciences, Inc. Rodman C. Johnson, Brown McCarroll, on behalf of the Texas Chemical Council (TCC) Christopher D. Smith, Texas Lehigh Cement Company Deb Hastings, Texas Oil and Gas Association Shawn Glacken, TXU Power Bruce Polkowsky, United States Department of the Interior, National Park Service, Air Resources Division Thomas H. Diggs, United States Environmental Protection Agency

### Alcoa 

### ALCOA

October 3,2006 

### RECEIVED ,201 lsabella Street at 7'h Street Bridge Pittsburgh, PA 15212-5858 USA Tel: 1 412 553 4545 Fax: 1 4 12 553 4498



## OCT 09 

## 2006 REGBR'7IQNS D£VIlOPl

### ENT

### SEG'IION Ms. Lola Brown MC 205 i 

### Officeof Legal Services Texas Commission onEnvironmental Quality 

### P.O. Box 13087 Austin, Texas 7871 1-3087



## RE: Proposed Regulations for Best Available Retrofit Technology (BART) Subchapter

### M: Best Available Retrofit Technology (BART), $$116.1500,116.1510,116.1520, 116.1530,116.1540 Docket No. 2006-0228-RUL Rule ProjectNumber: 2006-022-116-EN Dear Ms. Brown: Alcoa Inc. ispleased to submit comments on the Texas Commission on Environmental Quality's (TCEQ) Proposed Best Available Retrofit Technology(BART) regulations,published on August 25, 2006 

### in the 

### TexasRegister. Enclosedplease find a copy ofAlcoa's comments on TCEQ's proposed regulations implementing requirements concerningbest available retrofit technology at existing stationary sourcesofcertaintypes, age and size that either cause or contribute to visibility impairment in 

### Class 1 areas [CAA 

### §169A(b)(2)(A)]. The enclosed comments were also submitted via electronic 

### mail at 

### http://www5. tceq-state. tx.

### us/rules/ecommentsL Ifyou have any questions about our comments onthisproposal, you may contactme at your convenienceby phone at (865)-977-3071 or by electronicmail at jimmy.jones@alcoa.com. Sincerely

James

### D. Jones Alcoa Inc. Senior Consultant GBS-EHS ServicesNorth America JDJljdj Enclosure

### COMMENTS Texas Rule Project Number: 2006-022-116-EN Texas Commission on Environmental Quality Proposal 

### 30 TAC Chapter 116, Subchapter

### M Best Available Retrofit Technology (BART) §§116.1500, 116.1510, 116.1520,116.1530,116.1540 

### Docket No. 2006-0228-RUL

The applicability statement presented in 

## 5 116.1510requires clarification because itrelies solely upon a cross reference to 

## 5 116.1500 which only definesthe broad stationary source categories that may or may not be BART-eligible. The reliance upon the often and inconsistentlyused term "source" to define.thecollectionof discrete emissioncreating entities (i.e. emission units) adds further confusion to the applicability statement. As 

### an example,the

### ReaionalHaze Renulations and Guidelines for Best Available Retrofit TechnolornBART)Determinations: Final ~ule' clarifiesthat only certain emissionunits within the primary aluminumorereduction stationary sourcecategory are ~AR~-eli~ible~ (i.e. those emission units regulated pursuant to Federal 

### NSPS and

### NESHAP regulations).The final regulation also establish that BARTrequirements areto applyto amuch narrower grouping of emissionunits at stationary sources,than what is typically consideredby otherregulatory programs. BARTis applicable only to a collectionof emission units that are: (1) part ofone or more of the Clean Air Act (CAA) 

## 5 169A(g)(7)categories, 

### (2) were in existence onAugust 7, 1977and began operationafter August 7, 1962,(3) 

### have a collective potential to emit that is greaterthan 250 tonsper year of any single visibilityimpairingpollutant, and 

### (4) are demonstrated to have 

### an impact onvisibility 

### in a designated Class 1 area. Broadening the applicability of BARTto emission unitsthat do not meet these tests is not authorizedby the enabling legislation. The distinctionbetween stationary source and emissionunit is not evident in the applicability portion ofthe regulationproposed by TCEQ. Section

## 5116.1510(a)requires revision and clarificationto ensure that the regulation clearly articulatesthat BARTrequirements are applicable onlyto the unique subset ofemissionunits (i.e. facilities) meeting the specified applicability criteria. It is recommended that the applicability criteria of 30 TAC 

## 5 116.1510be revised as follows: 

### F 1 16.1510.Apvlicabilitvand 

### ExemptionReauirements. (a) The requirements of

### this subchapterapply only to the collection of emission units located at one or more ofthe best availableretrofit technology (BARTeligible sources as defined in 51 16.1500ofthistitle (relatingto Definitions) that satisfy all ofthe following requirements:

70 FR39104 70 FR39159 "Primary aluminum ore reduction." We interpretthis categoryto includethose facilitiescoveredby 40 CFR 60.190,the new sourceperformance standard (NSPS) forprimary aluminum orereductionplants. This definitionis also consistent withthe definition at 40 CFR 63.840.Ms. Lola Brown Texas Rule Project No. 2006-022-116-EN October 3,2006 Page2of 11 

### (1) were in existence on August 7, 1977and began operation after August 7, 1962, (2) have a collectivepotential to emitthat is greater 

### than 250 tons per year of any single visibility impairing pollutant, and (3) are demonstratedto have an impact on visibility in a designated Class 1 area.



### DIFFERENTIATION BETWEEN

### BART-ELIGIBLE SOURCESAND SOURCESTHATARE 

### "SUBJECTTO-BART

. 

### Theterminology and requirementsofthe proposed regulation are inconsistent 

### with Appendix 

### Y to Subpart 5 1

# - Guidelines forBest Available Retrofit Technology (BART) Determinations;Final ~ule.~ The proposed TCEQ regulation doesnot distinguish between BART-eligible sources and sourcesthat are "Subject-to-BART. The TCEQ regulationtreatsboth classesof stationary sources as one, i.e. BART-eligible sources. The entireregulation needs to be amendedto clearly distinguishbetween these two classes of stationary sources, and to unquestionably establish thatthe regulatory requirementto render a BART determinationanalysis and implementationof control is only applicableto BART-eliible sources that are determinedto be subiectto BART.



### CLARIFICATION OF

### BART

### ANALYSIS REQUIREMENTS 

### Therequirement to conduct an analysisof emissions control alternatives for all visibilityimpairingpollutantsat §

### 116.1 520(a)requires revision. As proposed, an analysis is required by "BART-eligible" sources, as 

### opposedto sources determinedto be "Subject-to-BART", Minor wording changesin §116.1520(a)would clarify that only sourcesfoundto be subject-to-BART are required to perform BART analyses. It isrecommended that the fist sentencein 

## 8116.1520(a)be revised 

### as follows: 

### "(a)Except as provided under $1

### 16.151

### 0@), (c), or 

## (4 ofthis title (relating to Applicability and Exemption Requirements), each best available retrofittechnology (BART)-eligiblesource that is subiect-toBARTshall conduct an analysis ofemissions control alternatives for visibiliby-impairing pollutants determined to be causing or contributing to visibilityimpairment in a Class 1

### area. "



### CRITERIA FOR DETERMINING NON-APPLICABILITY TO 

### 30TAC 

### 4 11 

### 6.1500 et. sec. Alcoa supports the criterionof 0.5 deciview proposed by TCEQ in §

### 1 16.1510(b)

### as an 

### appropriate threshold for determining contributionto visibility impairment in a 

### Class 

### I area. We also support a deciviewvalue that is greaterthan 0.5 as 

### an appropriate threshold to be used when determining whether "BART-eligible" sources become "subject-to-BART." TCEQ's selection of a 

### value greaterthan 0.5 deciviewas

### the BART applicability threshold is appropriate forthe followingreasons:

3 70 FR 3916 1, "How toIdentzfi Sources "SubjecttoBART."Ms. Lola Brown TexasRuleProjectNo. 2006-022-116-EN October 3,2006 Page 3 of 11 

### (1) a number ofliterature citations indicatethat there's a 65-83% chance that the general population will not perceived a decreasethat is less 

### than 1 de~iview,~ and that a 1 deciviewchange isnot expectedtoproduce a perceptible change

### in haze. 5 

### (2) 0.5 is a value that is less 

### than what the human can perceive, therefore appropriate as a level representing an non-perceptiblecontributionto visibility impairment. (3) TheUnited StatesEnvironmentalProtectionAgency (EPA) has already justified the 0.5 deciviewvalue as itsrecommendedcontribution threshold when determining which sourcesbecome subjectto BART. (4) EPA's 0.5 deciview contributionthreshold has been subjectto both peer andpublic reviews and was found to represent a de minimis threshold that meets the intent ofvisibilityprotection, while avoiding a waste of company and agencyresources. (4) adoptionofthe already justified the 0.5 deciview value eliminates the need to invest time and scarce technical and financialresourceson regionalmodeling that would be needed tojustify any other de minimis contribution threshold.



### CRITERIA FOR CAUSINGVISIBILITY IMPAIRMENT IN A 

### CLASS 

### 1AREA 

### Alcoa 

### does not supportthe criterion of 0.5 deciview proposed by TCEQ in 

## 5 1 16.15 1 0(b) as an appropriatethreshold for determiningthat emissions from a single BART-eligible source are causingvisibility impairment

### in a Class

### I area. Alcoa isin agreementwith literaturecitationsindicatingthat the generalpopulation will not perceived a decrease 

### in visual range of less

### than 1deciview, and that a

### minimum deciview change of greaterthan 1.0 isrequisiteto demonstratethat a BART-eligible source is causing visibility impairmentin a Class 

### I area. The proposed regulation requires amendmentto clarify the difference between "contributingto" and "causing" visibilityimpairment in 

### Class 1 areas.



### MODEL PLANT EXCLUSION SHOULDALSO INCLUDE

### PARTICULATE MATTER CRITERIA The 

## 8 1 16.1510(c)"model plant" exclusionsfromthe requirements of 

## 5 116.1520 and 

## 5 116.1 530 shouldbe expandedto includethreshold levels forparticulate matter (PM). TCEQ should establish eithernumericalthresholdsbased upon TCEQ dispersion forecasts, or develop a comparative visibilityimpact assessmentmethodology for particulate matter.

4 Henry, Ronald C. "Estimating the Probability ofthePublic Perceiving aDecrease inAtmosphericHaze. " Journal ofthe Air & Waste ManagementAssociation. Volume 55, November 2005. p 1764.

Henry, Ronald C. "Just-NoticeableDlFerences inAtmosphericHaze. " Journal of the Air & Waste Management Association. Volume 52, October,2002. p 1238-1243.

Ibid.Ms. LolaBrown Texas RuleProjectNo. 2006-022-116-EN October3,2006 Page 4 of 11 

### Recent work done by the State of ~eor~ia~ assessed therelative light extinction from PM and made a comparison to the equivalent sulfateextinction attributableto the Model Plant criteria

### in EPA's Appendix 

### Y to Subpart 5

### 1

## - Guidelines forBest AvailableRetrofit Technology (BART) Determinations;

### Final Rule. 

### In pursuing this approach, Ga-EPD was able to establish a source specific criteria for PM that precluded costlyreviews and analysisfor BART applicability. It isrecommendedthat TCEQ adopt a quantitative approach for excluding sourcespecificparticulatematter from the BART assessmentrequirement.



### In paragraph one of $ 1 16.1500the Texas Commissionon Environmental Quality (TCEQ) proposes that terms not explicitIydefined in $ 116.1500 are 

### to have the meaning given them in 40 Code ofFederal Regulations (CFR) 851.301on an 

### effective date of September6,2005. The effective date ofthe current version of40 CFR $51.3 01 is July 1,1999. The date reference 

### in TCEQ's proposed BART regulation is inconsistent

### with the effectivedate ofcurrent definitions 

### in $51.301andproduces unnecessary confusion. A correctionto the effectivedate of $51.301 definitionsis requisite to ensure consistency betweenthe TCEQ regulations 

### and the undedying Federal regulationsbeing implemented through TexasRule ProjectNumber 2006-022-116-EN.

7 Broylan,Jim, Georgia DepartmentofNaturalResources. (Preliminary)BARTModel Plant Criteria withPM, VISTAS Joint Workgroup Meeting,Aupst29,2006. 8 Supplementto Comments. Copy ofAugust 29,2006 PresentationMaterials.

70FR 39163Ms. Lola Brown Texas Rule ProjectNo. 2006-022-1 16-EN October 3,2006 Page 5 of 12 

## Supplement 

## to Comments
(Preliminary)BART Model Plant Criteriawith PM, VISTAS Joint Workgroup Meeting, August 

### 29,2006 Prepared by JimBroylan, Georgia Department ofNatural Resources.Ms. Lola Brown Texas RuleProject No. 2006-022-1 16-EN October 3,2006 Page 6 of 11



# BART Model Plant Criteria with PM

Jim

## Boylan GeorgiaDepartment 

# ofNatural Resources
VISTASBART 

## Group August 29,2006


# Model Plant Criteria
E<500tons&d>50km E<1000tons&d>100km



## - E =

### potential emissions of 

### "SO2 or 

### NOx or 

### SO2 + 

### NOx"


# - d 

### is the distance to closest Class 

### I area 

## In the southeasternU.S., SO2 (sulfate) typically has larger impact 

## on light extinction 

## thanNOx (nitrate).



# - Conservative approach would be to assume 100% 

### SO2 emissions 

## What about adding

## PM to the model plant criteria?Ms. Lola Brown TexasRule Project No. 2006-022-1 16-EN October 3,2006 Page 7 of 11 

# Light Extinction

-f(rh) ranges from

### 2.3

# -4.7 

### with an 

### average value of 

### 3.2 in 

### the 

### VISTAS states


## - Average contributionsto b, 

### (Mm-l) Sulfate = 

### 3*fo*[S04] =

### 9.6*[S04]

- [SO,] assumed to be in

### form

### of (NH,),SO, Nitrate =

### 3*f@H)*[N03]=

### 9.6*[N03]

- [NO3]assumed tobe in

### form 

### of NH,N03 Elemental Carbon =

### lo* PC] Organic Carbon =

### 4*[ORG] Soils =

### l*[Soils] CoarseMass =

### O.6*[PMCJ

- 

### Conservative approach

### is to assumeall 

### PM is PM2.5 [PMC]=O



# SO2

# vs. 

# PM Emissions

SO2 

## does not impactIight extinction 

## Only a fractionof the SO2

## becomes SO4 

## PM How 

## much?



# - Function of SO2 

### to SO4 

### conversionrate



## - Function of distance downwind



## - Function of wind speed 

## 100% 

## of primary PM becomes PM

- Speciationof 

### PM will 

### impact light extinctionMs. Lola Brown TexasRule ProjectNo. 2006-022-1 16-EN October 3,2006 Page 8of 11 

# Conversion Factor

Calculatea "PM factor" to relate primary PM to secondary sulfatePM from SO2



# - e.g., 

## E =

## S02+NOx+lO*PM Lower SO2to SO4conversionresults in

## higher PMfactor



# - Higher

## PM factoris 

### more conservative 

## Conversion of 1 ton SO2 (MW=64) 

## will produce2.0625tons (NH,)$04 (MW=132)



# Example

Assume 

## all primary PM is sulfate and ignore dry deposition 100tons SO2with 5% 

## conversionrate

- 100

### tons 

## SO2* 5% 

### conversion

= 

### 5tons * 

## 2.0625

= 

## 10.3125tons SO4

## PM produced


# - 100

### tons 

## PM = 

### 100

### tons 

## PM 

## E = 

## SO2 + 

## NOx 

## + (100/10.3125)*PM

= 

## SO2 

# + NOx 

# + 9.7"PM

= 

## SO2 +NOx 

## + 10*PMMs.Lola Brown Texas Rule ProjectNo. 2006-022-1 16-EN October 3,2006 Page 9 of 11


# Mean SO, ConversionRate 

# in Power Plant Plume 

# by Season and Time.of 

# Day

5:OO 7:OO 9:OO 11:OO 1300 15:OO 17:OO 19:OO Time Midpoint 

## smR@M 

# Assumptions
Distance downwind =

## 50km (31miles)

- Model plant criteria distance SO2 

## to SO4 

## conversion rate = 

## 1.5% per hour

- Max. sulfate production is duringsummer


## - Lower conversion rate produces higher 

## PM

Factor 

## Wind speed = 

## 5 m/s (11.2mph)



# - Higher wind speeds produce higher 

## PMFactor


# - Max. sulfate production occurs 

### atlower 

### WS Likely < 

### 5m/s 

# - t = 

### 31 

### miles/ 11.2

### mph = 

### 2.77 

### hoursMs. LolaBrown Texas Rule ProjectNo. 2006-022-1 16-EN October3,2006 Page 10 of 11


# PM Factor

SO2conversion = 

## 1.5% 

## * 2.77 hours =

## 4.15%



## - 100tons SO2*4.15%conversion

=

### 4.15 tons 

## * 2.0625

= 

### 8.56 tons SO4PM produced


# - 100tons PM = 

### 100tons PM 

## E =

## SO2

## +NOx + (100/8.56)*PM

=

## SO2 

## +NOx + 11.7*PM

= 

## SO2 +

## NOx + 12*PM

- Assumes 

### all

### primary PM 

### is sulfate



# PM Speciation

Not allprimary PM 

## will be sulfate Scalecomponents of PM by ratio of species extinction coefficient to average sulfate extinction coefficient (9.6) 

## E = 

## SO2 + NOx + 

## 12*PM*[(%S04)*(9.6/9.6)+ (%N03)*(9.6/9.6)+(%EC)*(10/9.6)+ 

## (%OC)*(4/9.6)+(%Soils)*(l.O/9.6)] E = 

## SO2+NOx + 12*PM*[(%S04)+(%N03)+ 

## 1.04*(%EC)+0.42*(%OC)+O.1*(%Soils)lMs. Lola Brown TexasRule ProjectNo. 2006-022-1 16-EN October 3,2006 Page 11 of 11


# InternationalPaper 

# - Savannah
S02=0.0tons, 

## NOx=O.O tons, 

## PM=51.4tons Distance 

## to nearest Class

## I area = 

## 83.6

## km

- Need 

## E < 

### 500 tons to be exempt 

## Assume 100 % 

## primary PM

## is sulfate



## - E = 

### 12

### * 51.4 = 

### 616.8tons 

### (> 500

# +not exempt) PMSpeciation

## from SMOKEprofile 

## (AP-42)



# - S04=20.40%,N03=0.37%,EC=2.62%, 0C=35.69%, 

### Soils=40.91%



## - E = 

### 12

## * 51.4 

## * [(0.204)+ 

### (0.0037) 

### + 1.04*(0.00262) 

## + 0.42*(0.3569)

### + 0.1*(0.4091)] 

# -1 E = 

### 263.0 tons (< 

### 500 

## 3 

## EXEMPT!!\ 

# IOctober 3, 2006 COMMENTS from Alcoa Inc. Texas Rule Project Number: 2006-022-116-EN Best Available Retrofit Technology (BART) Docket No. 2006-0228-RUL

CLARIFICATION OF BART-ELIGIBLE FACILITIES The applicability statement presented in 5116.1510 requires clarification because it relies solely upon a cross reference to 5116.1500 which only defines the broad stationary source categories that may or may not be BART-eligible. The reliance upon the often,and inconsistently used term "source" to define the collection of discrete emission creating entities (i.e. emission units) adds further confusion to the applicability statement.

As an example, the Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations; Final Rule clarifies that only certain emission units within the primary aluminum ore reduction stationary source category are BART-eligible (i.e. those emission units regulated pursuant to Federal NSPS and NESHAP regulations). The final regulation also establish that BART requirements are to apply to a much narrower grouping of emission units at stationary sources, than what is typically considered by other regulatory programs. BART is applicable only to a collection of emission units that are: (1) part of one or more of the Clean Air Act (CAA) 5169A(g) (7) categories, (2) were in existence on August 7, 1977 and began operation after August 7, 1962, (3) have a collective potential to emit that is greater than 250 tons per year of any single visibility impairing pollutant, and (4) are demonstrated to have an impact on visibility in a designated Class 1 area. Broadening the applicability of BART to emission units that do not meet these tests is not authorized by the enabling legislation. The distinction between stationary source and emission unit is not evident in the applicability portion of the regulation proposed by TCEQ. Section 5116.1510(a) requires revision and clarification to ensure that the regulation clearly articulates that BART requirements are applicable only to the unique subset of emission units (i.e. facilities) meeting the specified applicability criteria.

It is recommended that the applicability criteria of 30 TAC 5116.1510 be revised as follows: 5116.1510. Applicability and Exemption Requirements. (a) The requirements of this subchapter apply only to the collection of emission units located at one or more of the best available retrofit technology (BART)-eligible sources as defined in 5116.1500 of this title (relating to Definitions) that satisfy all of the following requirements: (1) were in existence on August 7, 1977 and began operation after August 7, 1962, (2) have a collective potential to emit that is greater than 250 tons per year of any single visibility impairing pollutant, and

(3) are demonstrated to have an impact on visibility in a designated Class 1 area.DIFFERENTIATION BETWEEN BART-ELIGIBLE SOURCES AND SOURCES THAT ARE "SUBJECT-TO-BART The terminology and requirements of the proposed regulation are inconsistent with Appendix Y to Subpart 51 - Guidelines for Best Available Retrofit Technology (BART) Determinations; Final Rule. The proposed TCEQ regulation does not distinguish between BART-eligible sources and sources that are "Subject-to-BART. The TCEQ regulation treats both classes of stationary sources as one, i.e. BART-eligible sources. The entire regulation needs to be amended to clearly distinguish between these two classes of stationary sources, and to unquestionably establish that the regulatory requirement to render a BART determination analysis and implementation of control is only applicable to BART-eligible sources that are determined to be subject to BART.

CLARIFICATION OF BART ANALYSIS REQUIREMENTS
The requirement to conduct an analysis of emissions control alternatives for all visibility-impairing pollutants at §116.1520(a) requires revision. As proposed, an analysis is required by "BART-eligible" sources, as opposed to sources determined to be "Subject-to-BART". Minor wording changes in §116.1520(a) would clarify that only sources found to be subject-to-BART are required to perform BART analyses.
It is recommended that the first sentence in §116.1520(a) be revised as follows: "(a) Except as provided under ~116.1510(b),(c),or (d) of this title (relating to Applicability and Exemption Requirements), each best available retrofit technology (BART)-eligible source that is subject-to-BART shall conduct an analysis of emissions control alternatives for visibility-impairing pollutants determined to be causing or contributing to visibility impairment in a Class 1 area."

CRITERIA FOR DETERMINING NON-APPLICABILITY TO 30 TAC 5116.1500 et. sec. Alcoa supports the criterion of 0.5 deciview proposed by TCEQ in §116.1510(b) as an appropriate threshold for determining contribution to visibility impairment in a Class I area. We also support a deciview value that is greater than 0.5 as an appropriate threshold to be used when determining whether "BART-eligible" sources become "subject-to-BART." TCEQ's selection of a value greater than 0.5 deciview as the BART applicability threshold is appropriate for the following reasons:

(1) a number of literature citations indicate that there's a 65-83% chance that the general population will not perceived a decrease that is less than 1 deciview, and that a 1 deciview change is not expected to produce a perceptible change in haze.

(2) 0.5 is a value that is less than what the human can perceive, therefore appropriate as a level representing an non-perceptible contribution to visibility impairment.(3) The United States Environmental Protection Agency (EPA) has already justified the 0.5 deciview value as its recommended contribution threshold when determining which sources become subject to BART.

(4) EPA's 0.5 deciview contribution threshold has been subject to both peer and public reviews and was found to represent a de minimis threshold that meets the intent of visibility protection, while avoiding a waste of company and agency resources. (4) adoption of the already justified the 0.5 deciview value eliminates the need to invest time and scarce technical and financial resources on regional modeling that would be needed to justify any other de minimis contribution threshold.

CRITERIA FOR CAUSING VISIBILITY IMPAIRMENT IN A CLASS I AREA
Alcoa does not support the criterion of 0.5 deciview proposed by TCEQ in §116.1510(b) as an appropriate threshold for determining that emissions from a single BART-eligible source are causing visibility impairment in a Class I area. Alcoa is in agreement with literature citations indicating that the general population will not perceived a decrease in visual range of less than 1 deciview, and that a minimum deciview change of greater than 1.0 is requisite to demonstrate that a BART-eligible source is causing visibility impairment in a Class I area. The proposed regulation requires amendment to clarify the difference between "contributing to" and "causing" visibility impairment in Class 1 areas.

MODEL PLANT EXCLUSION SHOULD ALSO INCLUDE PARTICULATE MATTER CRITERIA
The s116.1510(c) "model plant" exclusions from the requirements of s116.1520 and s116.1530 should be expanded to include threshold levels for particulate matter (PM). TCEQ should establish either numerical thresholds based upon TCEQ dispersion forecasts, or develop a comparative visibility impact assessment methodology for particulate matter.

Recent work done by the State of Georgia assessed the relative light extinction from PM and made a comparison to the equivalent sulfate extinction attributable to the Model Plant criteria in EPA's Appendix Y to Subpart 51 

### - Guidelines for Best Available Retrofit Technology (BART) Determinations; Final Rule. In pursuing this approach, Ga-EPD was able to establish a source specific criteria for PM that precluded costly reviews and analysis for BART applicability.

It is recommended that TCEQ adopt a quantitative approach for excluding source-specific particulate matter from the BART assessment requirement.

EFFECTIVE DATE OF 40 CFR s51.301 DEFINITIONS

In paragraph one of $116.1500 the Texas Commission on Environmental Quality (TCEQ)proposes that terms not explicitly defined in s116.1500 are to have the meaning given them in 40 Code of Federal Regulations (CFR) s51.301 on aneffective date of September 6, 2005. The effective date of the current version of 40 CFR 551.301 is July 1, 1999. The date reference in TCEQ's proposed BART regulation is inconsistent with the effective date of current definitions in s51.301 and produces unnecessary confusion. A correction to the effective date of 551.301 definitions is requisite to ensure consistency between the TCEQ regulations and the underlying Federal regulations being implemented through Texas Rule Project Number 2006-022-116-EN.

Supplement to Comments

(Preliminary) BART Model Plant Criteria with PM, VISTAS Joint Workgroup Meeting, August 29, 2006 Prepared by Jim Broylan, Georgia Department of Natural Resources.

### Oct. 

### 9. 2006 4:OOPM AEP ES WEST

Sent

### Electronically

October

### 9,2006 

### Ms. Lola Brown 

### OfficeofLegal Services

. 

### Texas CommissiononEnvironmental Quality 

## (TCEQ) P.O.Box 

### 13087

### MG205 Austin, 

## TX 78711-3087 AMERICAN' ELaClRfC POWER



### Re: RuleProject

## NO+ 2006-022-116-EN Dear

### Ms. Brown:

. , 

### AmericanEl&c Power

### (AEP)has' electticgenerating

### units 

### in Texas,

### someof

### which are

. 

### BARTeligible.As 

### an aeotedentity, AEI?

### offersthese 

### commentsto the

### TCEQproposed Best Available

### RetrofitTechnology 

## (BART) implemen~on rules. 

### As a general comment,AEP 

### concurs

### with

### TCEQ's determination

### thatBART-eligibIe Electric

### Generating

## Units (EGUs) subjectto 

### the Federal 

### CAIR

### program do 

### not 

### need to 

### install, maintdn 

### snd operate

## BARTfor SO2 

### and

### Nor;per 

### 40CFR51.308(e)(4). Texas 

### is a

### signatoryto 

### the Clean

### Air

### InterstateRule (CAIR)program

### by 

### virtue of

. adopting 

### theEPA developed CARModel 

### Ruleby 

### reference(as 

### required by 

### the Texas 

### legislature).

. Importantly, one of

### the findings

### ofthe EPA CAR

### analysis

### was that

### the CAB2

### NOx and 

### SO2reductions would make 

### greater reasonable progress required 

### under

### the haze rule, 

## thansource specific

## BARTfor

## EGUs AEP would like

### to offw these specific comments

### tothe TCEQproposal: 

### Proposed 

### 8 116.1500 :

### Definitionofvisibilitvimpairing 

### airpollutants 

### Notwithstanding the fact CAIR=EGU 

### BART for SO2 

### and 

### NOx, 

### AEP concurs 

### thatit

### is appropriateforthe

### proposed definition

### of "visibility 

### impairing

### airpollutants" to 

### indude S02,NOx and

### particulate

### matter 

## (PM).

- 

### While

### the 

## TCEQ isproposing

### to excludeVOCs 

### and

### Ammonia $.om

### the proposed definition,

### AEP would 

### liketo 

### express concem aboutthe exclusion 

### ofreactiveVOCs. 

### Eventhough

## EGUs are

### insignificant sources

### ofreactiveVOCs, 

### the role 

### ofreactive

### VOCs in 

### secondaryparticulate

### formationand

### theresulting impact on visibiIityin CIass areas cannotbe 

### discounted, in 

### developingcontrol strategies.

### The

### TCEQ would be 

### advisedto 

### reexamine

### theproposed exclusion ofVOCs, especiallyreactiveVOCs



### AEP:

## Amn'ca'sEneqg Par$ner@

### Oct. 

### 9. 2006 4:OOPM AEP ES 

### WEST No, 

### 1036 Po 

## 3

Proposed 

### 4 116.1510Cb): CALPUFFModel use Since Texas 

### is a 

### CAlR 

### state, 

### CAIR=EGU 

### BART for 

### SO2 and NOXwould prevail and 

### modeling 

### for these air pollutants my

### not be 

### an issue for BART-eligible 

### Ems. Discounting 

### this above 

### fact, AEP would like to note for TCEQss information, the 

### limitations 

### and consequences 

### of CALPWF modeling 

### and the 

### concomitant use 

### ofresults from such exercises. Thus 

### a blanket approval of 

### CALPUFF use 

### in source specific exemption modeling should

### be examined

### with care. 

### CALPUFF isrecognized to 

### have serious limitations 

### in its chemistry

### treatment and 

### thus 

### in overstating secondary particulate 

### mtter production Its plume treatment 

### arid thus , 

### usefulness in 

### understanding visibility impads beyond a 

### distance of 

### 200 

### Krn is 

### also 

### considered very suspect. 

### Since interstate consultation 

### is Integral

### to 

### the 

### SIP process, the 

### TCEQ should be 

### mindful of 

### false attributionto Texas sources 

### fromremote Class 

### I areas in other 

### states, if

### the results 

### arebased solelyon 

## CALPLFF outputs. 

### In response 

### to TCEQ's request for comment 

### on other modeling approaches 

### for 

### BART, 

### AEP is aware of the 

### SCICHEM 

### air quality model 

### as 

### an alternative to 

### CALPUFF. SCICIBMis a stand-aloneplume dispersion and chemistry 

### model 

### that has 

### been used 

### in 

### somevisibility 

### studies. 

### Proposed 

### 8 116,1510(b): 

### 0.5 deciview threshold With 

### regard to 

## TCEQ's request for 

### comment on whether it should 

### lower impact thresholds, AEP does 

### not support 

### TCEQ's 

### statement "As additional 

### information 

### is 

### gathhered


# ..... it 

### is possible that 

### a lower threshold of 

### visibility impairment may be necessary", (lower 

### than the 0.5 

### deciview) for 

### determining whether 

### a source causes or contributes to 

### visibility 

### impairment, 

### Given that researchers (that 

### the TCEQ is familiar 

### with) have indicated that 

### higher 

### levels of 

### change (greater 

### than 

### 1 deciview) 

### would be 

### needed 

### for any 

### "perceptible" visibility 

### change,AEP 

### would 

### questionthe need

### to lower 

### the threshold to define 

### when a 

### BART-eligible source causes 

### or contributes to 

### visibility impairment. 

### Not withstandingthe limitations

### ofthe 

### existing0.5 deciviewthreshold,

### pushing the 

### limits 

### lower, could lead to 

### inconsistency 

### in standards 

### used 

### by states. 

### Thus, the inter state oonsultation process could 

### be a challenge and lead 

### to 

### endless SIP conflicts 

### with other states.
Proposed 

### 8 lS6.15101~):Modeling

### and engineering analysis 

### for

### BART

### for brbarv 

# PM AEP 

### would recommend

### thatthe 

### TCEQ dropthe

### requirementinthe

### proposed rule for EGUs 

### toperform source level 

### modeling to 

### assessthe 

### visibility impact and 

### subsequent engineering 

### analysis of

### primaryparticulate matter 

### fiom

### BART-eligiblesources

### on 

### Class 1areas. 

### We

### offerthe 

### folIovhgreasons

### Oct. 

### 9. 2006 4:OOPM AEP ES WEST No. 

### 1036 P, 

### 4

a) Ems have some ofthehighest efficiency(greater

### than 99 %

### plus)

### particulate control equipmenton solidfuel units 

### b) 

### A.s 

### an example, 

### an impact assessmentof oneofAEP's coal

### unit's particulate emissionsover a three-year analysis period, using the most conservative

### actual 

### maximum 24-hour averageemissions, revealed that visibility impactthresholds of 0.5 dV 

### change were

### never transgressed

### at

### any of 5 

### Class 1

### areas examined c) 

### These Class 1 areas ranged fi0rn.a 

### distance of 100

### Km

### to 600

## Km d) 

### Themodeled deciviewvisibility changefor 

### PMlO 

### and PM2.5 

### ranged from 

### 0.00 to 

### a m.axbnum

### of 0.03. 

## By way 

### ofreference,the

### threshold 

### forimpactis 

### 0.5 deciview, demonstratingthe insignificanceofthese particulate emissions

### on visibility e) 

## PMIO and

### PM2.5

### mass emissionsrelativeto the 

### BARTpresumptive level SO2 

### and

### NOx mass emissions,

### mged

### &om a low of3%

### to a

### high of 11%. 

### The 

### import of

### these mass emissions comparison

### is to demonstrate

### thatwhen the 

### higher quantities 

### of SO2

### and NOx level emissions 

### satisfied

### BART, 

### the insignificant levels of

### PM mass emissionsresultingfromthe 

### existing controls

### atEGUs 

### should satis@

### BART 

### f) The suggestedmodeling demonstration for 

### PM could 

### thus be deemedto be 

### awaste ofresources for EGUs 

### aswell 

### as the 

### TCEQ

Thankyou for

### takingthese 

### commentsinto considerationasyou 

### finalize

## theproposedrules, 

### Intheevent

### you

### need questions 

### answered, please contact

### me at

### 214-777-1373. 

## Trulyyours,

CC: 

### TCEQ

### BART FilesARKEMP INC PAGE 01



### October4,2006 Lola

### Brown 

### MC205 Texas Register

### Team, Office

### of Legal'Services 

### TexasCommissiononEnvimn'mentalQUaIjty 

### PO Box 

### 13087 Austin, 

### TX 78711-3087 Facsimilesubmittalto 5122394808 

### RE: Comment 

### concerningproposed rule project

### Best rtlvai&xble

### Rdrof;t Tcchnotogy 

### Rule 

### Project# 

### 2006-022-IX6EN 31

### Tex. 

### Reg. 6616 

### (August 25,2006) Dear

### MS. Rmwn: 

### Arkemo

### hc.(Arkema)hereby submits 

### commentsonthe Texas 

### Commission

### for

### Environmental Quality's ('TCEQ")

### proposedruleto 

### establishthe

### TCB(t best availableretrofittechnology 

### (BART)program. TCEQ's 

### proposal would directlyimprldone

### Arkmafacility

### inHouston, Texas. 

### Arkema

### submitsthc 

### following commmts 

### for coraiderationby 

### TCEQ. In general, Arkemasupports

### TCEQ's proposal.

### to comply

### with tbeITnited 

### States 

### EnvhnmmtdProtection Agency's (EPA) 

### BAKTprogram. However,

### kkemadelrcribes

### below a

### number ofspecificissues thnt 

### shouldbe 

### further clarified, 

### ormodified., by 

### TCEQ 

### fiom the

### finalregulationso 

### that the final 

### ruleisboth clear

### in its 

### intmt

### and also reasonable in.its 

### approachto regulate &ccted 

### industry.



### Proposed 3

### 0TAC 

### 116.1510(d) equates

### BART eligibility

### with compliance

### with EPA's CleanAir 

### Interstate Rule (CAIR) 

### cap-and-trade1 

### vrogram

# . Unda

### cap-and-trade, 

### individual.sources thatpartidpate

### inthe

### rulemay eithcrrduce 

### emissionsto meet a

### limit 

### or

### may purchasedlowances from

### others who 

### reduce 

### &.ssions tomeet 

### alh'x~j,t. Therc 

### is no mechmism 

### to ensurc

### that anindividual rnm11e.r 

### of

### acap-and-tradesystem

### that

### has a 

### significant

### impactona

### Class

### I areais 

### required ta reduce

### emissiow. .Whatcould 

### likely 

### b,appenis that a

### large sbwce 

### with a Class I, 

### area

### impactpu~c,hases 

### allowancesrather

### than reducing emissions,

### which shifts

### the

### burden,

### ofcr>mpliance with 

## BARTfrom the largest 

### sources, which often can 

### control emissions more 

### cost-effectively 

### than small.ersources, 

### to srndlersources. This

### loophole 

### could ~1.l.low 

### largcx 

### sources to 

### shift

### their BART colnpliance

### burdento smaller, 

### morc ekpensive to 

### control, sources, 

### suchas Arkema's 

### Houston facility.

### Arkema advocatesapplying 

### mission controls to meet 

### agency 

### visibi1j.ty
800Fitat Avenue Kingof Prussla, PA 19406 610 8786618 VO~E 

### - 610 07B 8608faX rih.niders@arkema.mmARKEMA INC PAGE 02



### Arkcma Inc. 

### RuleProject # 2006-022-1 

### 16-EN Page 2 

### and nttaim-nent goalsto the sources that 

### can 

### do 

### so 

## in the

### most cost-effective

### manner. 

### Using an 

### unrelated trading

### program to shift a 

### ,regulatory

### burdm to 

### smaller entjties 

### should pot be 

### allowed under this

### proposal. Arkema

### requeststhat 

### TCBQ ody

### allow 

### CAIR solnrces 

### activelyreducing 

### missions of 

### BART-related 

### pollu~~s to 

### claim tbat

### compli~cc! 

### with ~~~~'equatcs compliancewith 

### BART, ~urth&? 

### TCEQ shouldretain the 

### autl~vrity 

### to 

### ensure that CAXR 

### relatd 

### emission reducti,ons

### am of sufficient 

### magnitude

### to ensureElMCT 

### compliance,

## and that 

### ifthose CAR

### reductions fail 

### tomeet BART, theiTCEQ 

### should

### retain the 

### authority to 

### request 

### further cxnission

### reductions from CAIR

### sources also 

### subject to 

### BART. 

### TCEQ should ensure that CAIR faci1,ities

### thattmustinstall 

### BARF controlsthat

### reduce emissionsbeyond 

### CAIRrcqujranents 

### could

### markethcinmeinental 

### emissionsunder CAm.



### hkemasupports

### proposed 

### 30

## TAC 1

### 16.1510(c) 

### zxaptions ltoriting applicabilityto 

### the 

### BART

### analysis

### to be 

### i-cquired

### in proposcd 

### 30TAC 

### 116.1520. TCEQ

### correctlylimits the impact ofthe 

### pposed

### BARTregulations

### to those

### fa~il.ities 

### that are

### more likely to

### hove 

### a significantimpact 

### on ClassI area

### visibility, 

### whi1.r;not 

### burdmhg smallerfacilitieswith

### no identifiable impacton 

### ClassI area

### visibility. Arkma

### be1,ievesthat the 

### proposed ' 

### emissionddistancerelationships

### reflected

### in 1

### 16.1

### 510(c) arc 

### appropriate.

Proposed 

### 30 TAC 1

### 1 

### 6.15

### I.

### O(b) dlows 

### BART-eligiblc facilities to 

### show,

### using EPA

### approved (40 

### CFR 5

### 1. 

### AppendixW) 

### dispersion

### nr.odeling protocols an.dEPA 

### recommendedguidancc. 

### Arkelna 

### supportsTCEQ's proposed 

### approach to a1l.o~ 

### facilities that 

### can demonstrote 00

### impact 

### on

### Clms I area

### kaibility to

### opt 

### out of

### BART 

### controls. Howwcr, upon 

### agency 

### review, TCEQ 

### may cond:ude

### that the 

### rn,odeling

### may not 

### l~ave 

### been perfomed correctly, 

### and 

### that a 

### facility

### may actually

### become subject to

### the 

### BART analysis

### proposedin 30

## TAC 11.6.1520. 

## TCBQ tihouldmodify 

### theproposedregulations to 

### shicld

### fa~iJ.ities pursuing this 

### option from 

### comjpliance

### with proposcd 30 TAC 

### 116.1520 until 

### TCBQ approves

### themode1.ingdemonstraticn,

### or six 

### ~n.onths after

### TCEQrejects 

### any such 

### modeling

### dmonstration The six

### monthperiod will 

### provide a 

### facilityfacing rejection of

### theirmodding 

### demonstration adequ;~.te 

### time to prepare 

### thercquked 

### BART analysis, 

### and 

### will. ensurethat a 

### facilitycomplyih~ 

### with 1.

### I 6.15

### 10 doesrs

## 't 

### inad.vdmtly

. 

### fail to comply with, 1.16.1520

### because 

### ofparticipation in anotherpart of

### the

### rule,

Proposed 

### 30 TAC 116.1520(c) 

### reqluires 

### all BAR'r analyses 

### be completed by 

### April 30, 

### 2007. Since

### TCEQ 

### may

### n.otbe 

### ableto 

### fina1,izet:isproposed

### regulationpackage 

### before the 

### cnd of2006, TCEQ 

### should allow 

### at least lS(r 

### or 180 days 

### horn finalprolnulgation 

### of this

### proposal forRART-eligiblc 

### fadlitjes to prqtaic

### and submit

### requircd a.naIy,ses. SinccARKEMA INC PAGE 03



### Arkema Inc. 

### Rule Project # 

### 2006-022- 1

### 16-EN Page3 

### many 

### chemicalindustry BART

### facilities

### may changeovertime, BART facilities should be given 

### the 

### opportunity to

### updatc 

### theiranalyses 

### .~p to 

### twoyears before

### the proposed 

### implmentation

### scheduleproposed 

### in30 

### TAC 1,13O(a) 

### to reflect 

### changes

### inBART sources

### thatmay 

### occur 

### inthe 

### several years that may 

### pass between developmentofthe BART

### plan and 

### installation 

### ofany 

### required

### BART controls. Plcase contact

### mc at the

### phonenumber

### below with any gucstijons. 

### Thankyou for

### your consideration of 

### these 

### comments,

Rich 

### Raidws Environment

### andSistainableDevelopment

### Dq-ent

## 1 Oct 09 06 02:36p ASH GROVE TEXAS 

# !

. 

# ASHGROVE

# TEXLAS,LP

P.O. BOX 520 1,900 GIFCO ROAD MIDLOTHIAN, TEXAS 76065-0520 ADMlNlSTRATlVEOFFICES: 972/ 723-7200 FAX 972/ 723-7209 PLANTOFFICES: 972/ 723-2301 FAX 972/299-5127


### October 9,2006 

### Lola 

### Brown 

### Office of

### Legal 

### Services,.MC205

. 

### Texas Commission on EnvironmentalQuality 

### P.O.Box 13087 Austin, Texas 7871 1-3087 

### Fax: 

### 512.239.4808

. . 

### . . 

### Re: 

### Rule ProjectNumber 2006-022-11

## 6-EN Dear 

### Ms. Brown, 

### 1'am writing to 

### offer Ash.Grove ~eias, 

### L.P.'s ("Ash Grove's") comments on the 

### above

### lderenccd 

### rulemaking proposal which would 

### amend Chapter 

### 116 

### of TCEQ's rules to address visibility 

### impairment caused by 

### regional haze. Below, AshGmve suggests revisions

. 

### to the proposed rule. that 

### we believe 

### are necessary 

### for effective 

### and .efficient

### implementation 

### of Texas' 

### regional haze 

### SIP. Thank.you for 

### your careful consideration ofthese 

### comments. Comment 

### 1: 

### The def&tion of.'Best available retrofit technology (BART)-eligible 

### source" at

### proposed 30 T.A.C. 

## 5 11 6.1 

### 500 shouldbe 

### revised as follows: (I) 

### B& ~vaildle retrofit teclmulogy 

### (BART)-eligible source-.Any emissions units 

### that comprise 

### am, of 

### thefollowing 

### sralionary sources 

### of air

### pbllufanrs, including 

### any reconstructedsource, that w 

### no1 

### in 

### operation pridrtb ..lugus: 

### 7, 1962, 

### and w 

## were in

### exisrence on

### August 7, 1977, 

### and ks 

### collectivelv 

### have 

### thepotential 

### to 'emit 

### 250 tons

### per year. 

### (includingfugitive 

### emissions 

### to the extent qwnrifiab~ej 

# ofany visibilipimpairing air

### pollutant:



### This 

### amendment

### is needed 

### to clarify that 

### identification of BART-eligible 

### sources 

### is done 

### not 

### on a site-wide basis, 

### but on an 

### emissionsunit 

### basis, 

### as indicated 

### by the 

### four-step process 

### setOct 09 06 02336~ ASH GROVE TEXAS

. 

### . Lola Brown October 9,2006 Page 2 of 8 

### forth in 

### EPA2sguidelines at 40 

### C.F.R. Part 

### 51, Appendix 

### Y, Section.11, "How 

### to Identify BART-Eligible Sources:

### " Step 1: 

### Identify the emission units in 

### the

### BARTcategories,



### . Step 2: 

### Identifythe start-up

### dates ofthose 

### emission zmits, 

### and

.



### Step 3: 

### Comparethe 

### potential emissionstothe 

### 250 todyr 

### cutoff. Final Step: Identify the 

### ehssions units and 

### pollutants that constifuferlze BARTeligible 

### source. 

### In the preamble 

### to these guidelines, 

### EPA explained 

### that it did 

### not intend 

### for States 

### to find that 

### all emission 

### units at a 

### site are 

### subjectto the 

### requirements of 

### the 

### BARTpro\-isionsif only 

### one part 

### ofthe site

### was 

### built within the 1962-1977time 

### period.' 

### Furthemore, emissionunits that 

### are 

### located at a 

### BART-eligible source, but 

### that aie not in any 

### of the 

### 26 

### BART source 

### categories, should not be 

### considered 

### BART-eligible 

### units.' Thus, under EPA's suggested approach, 

### onlythose emission 

### units that 

### meet the 

### statutory 

### and regulatory criteria (i.e., within 

### one or more of the 

### BART categories, placed 

### into operation within the 1962-1977 time 

### window, and 

### collectively emitting 

### > 250 

### tpy of 

### a single visibility-impairing pollutant) would 

### constitute the 

### BART-eligible source and be 

### potentidly subjectto the 

### BART 

### requirement. 

### Although 

### TCEQ may have intended to adopt this 

### approach, the currently proposed rules do 

### not sufficient 

### explain how BART-eligible 

### sources 

### are ideritified. They only provide the following definition of 

### "BART-eligible source:" (1) 

### Best available 

### refrofl

### technology (BA.RT)-efip'bble source-Any 

### of the 

### following stationq~

### sources of air pollutants 

### including any 

### reconstructed source, thar was 

### nof 

### in 

### operafion prior to

### August 7, 1962. 

### and was 

### in exisfence

### onAugust 

### 7, 1977, and

### has thepotential 

### to emit 

### 250 runs

### per year 

### (including 

### fugitive emissions, to the 

### extend qtranfipable) of arty

### visibiliw-impairing air 

### pollutant: 

### (A) fossil fuel-firedsteam elechicplants 

### ofmore than 

### 250 

### million 

### British thermalmits 

## @TV per 

### hour heat input;



### For all other term,s,the 

### proposed 

### rule incorporates 

### the definitions contained 

### in 40 C.F.PL 

## 9 5 

### 1.301, 

### which define 

### "stationary source" and "building, structure,or 

### facility:' as follows: 

## ' 70 Fzd.Reg. 391 11 Quty 6,2005). 

# '70 Fed.Reg. 391 10 {Juty 6, 2005).Oct 09 06 02:37p ASH GROVE TEXAS

LolaBrown October 9,2006 Page3 of8


### Stationary 

### source 

### means any building, structure, facility, or installation which emits 

### ormay emit 

### any airpollutant. 

### BlciLding, 

### sfructwe, or 

### facility means all 

### of the pollutant-emittiag activities which belong to the same 

### industrial.grouping, are located on one or more contiguous or adjacentproperties, 

### and are under the. 

### control of the smeperson (or persons undir common control). Pollutantemitting activities musf be 

### considered m 

### part of the 

### same 

### industrial grouping they belong to 

### fhe same Major Group 

## 0.e..which have the 

### same 

### five-digit code) 

### as described in 

### the 

### Sf~ndaPdIndnstrial 

### ClassiJicationAhnual, 

### 1972 

### as amended 

### by the 1927 

### Supplement (U.S.

. 

### Government Printing 

### Ofice st&k numbers 

### 4101-0066 and 

### 003-005- 001

### 76-0respectively). 

### Accordingly,under 

### the literal meaning 

### of proposed 30 

### T.A.C. 

## 5 116.1500, all emission 

### units in the 

### same 

### industrial grouping 

### at 

### a plant 

### would be considered 

### the BART-eligible source, 

### regardless of their 

### individual 

### construction dates. 

### This approach 

### would render meaningless the applicability 

### criteria specifically identified

### by 

### stat~te,~ rule4 and ,pidance.' For example, without speciwgthat 

### the analysis focuses 

### on individual

### emission units, an 

### entireplant 

### built 

### in the 1940scould be subject to the 

### BARTprovisions if

### the owner added a new 

### unit 

### in 1975. The same would be 

### true for 

### an entirely 

### modem plant built 

### in 2006 at 

### a site where there happens

### to 

### exist an older 

### unit 

### in the same

### industrial codebuilt 

### in the early 1 

### 970s. In order to properly 

### implement the statutory 

### and regulatory criteria 

### for applicability of 

### the BART provisions, 

### proposed 30 

### TA-C.

## 5 116.1500 should be revised to incorporate the approach 

### for 

### identifying BARTeligible sources suggested by 

### EPA 

### in its 

### guidelines.
Comment 2: 

### The'definition of 

### 'tisibility-impairing 

### air pollutant" at 

### proposed 30 

### T.A.C. $ 

### 116.1500 should be revised 

### as 

### follows:

. 

### (2) Y',ibility-impa(ring air poUw'anf--4ny 

### of 

### the following: nirrogen oxides, sul@r dioxide, 

### or particdate matter. For the 

### purposes' of determinin~ whether -a

### source is 

### required to perform a 

### BART analvsis, 

### nzav be 

### used as 

### the indicator for

### particulate .mutter.

CM 

### 3 169A@). 40 C.F.R. $ 5I .30 1 (see defmition of "existing stationary facility"). 40 C.F.R. Part 51, AppendixY, SectionLI, "How to Identify BART-EligibleSources:"

# 1 Oct 09 06 02337~ ASH GROVE TEXAS

. . LolaBrown October 9,2006 Page 4 of 8 

### EP.4's guidelines, set 

### forth at 40 

### C.F.R. 

### Part 51, Appendix 

### Y, specifically

### provide that states 

### may use 

### PMla

### as anindicator 

### forparticdate 

### matter in 

### determining which 

### sources are 

### BARTeligible. 

### In fact, 

### under Section 

## XI. of the guidelines (Vow to Identify BART-Eligible Sources") 

### EPA specificallyrecommends that 

### states 

### not use 

### total suspended

### particulates as 

### an indicator for particulate matter. 

### And, elsewhere 

### in its proposed 

## BART rules, 

### TCEQ refers not to 

### "particulate matter," 

### but to 

### "PMl< (see proposed !j 

### 116.15IO(c)(3), stating, 

### "Any 

### BART-eligible source that has 

### the potential to emit 

### less than 

### 15 tons 

### per year of particulate 

### matter with 

### an aerodynamic diameter less than or 

### equal to 

### a nominal 10 micrometers 

### (PMlo) is not subject to 

### BART for 

### PMlo."). Therefore, the defmition of "visibility-impairing air poll~ztant" should

### be revised 

### as indicated.
Comment3: 

### Proposed 

### 30 

### T.A.C. 

### 8 116.1510 

### should be 

### amended .to include' he

### foIlowing additional exemptions: 

### Any BART-eligible source that 

### hasfhe potential to 

### emit less than 

### "X" tons 

### per year of 

### particulate matter with 

### an aerodynamic

### diameter 

### less than 

### or 

### equal to 

### a 

### nominal 

### I0 micrometers 

### (PMla) and lhar 

### is located more thm 

### 50

### kilometersfiorn

### any Class

### I area is not

### subject to BART for 

### PMro. Any 

### BART-eligible source 

### that has thopotential 

### ro emit 

### less than 

### "Y"tons 

### per 

### year of

### PMro and that 

### is located more 

### thm 100

### kilometers from 

### any Class

### 1area is 

### notsubject 

### to

### BART for 

### PMlo.
In these suggested exemptions, 

### "X" and 

## "Y"are some amounts 

### of 

### PMloemissions that 

### have a 

### negligible effect 

### on visibility at 

### distances greater 

### than 

### 50 and 100kilometers, respectively. This amendment 

### is needed 

### to provide distance-based 

### PMloexemptions comparable 

### to those proposed 

### for combined SOz 

### and 

### NO, emissions (500 and 1,000 tpy at >50 and 

### 100 

### km, respectively).
Both 

### congress6 and 

### EPA~ have made it clear 

### that States 

### should only 

### require 

### the application of 

### BART at 

### sources 

### reasonably anticipated'to cause 

### or contribute to impairment 

### ofvisibility 

# i
at a 

### Class 

### I area. "Visjbility 

### impairment? is defined by 

### EPA as a "humanly perceptible 

## I change 

### in visibility:" and

### by 

### TCEQ as an impad 

### greater

### than 0.5 deciviews.'

CAA 

### 8 169A(b) (42 U.S.C.A. 

### 5 7491). 

# '40 C.F.R. 

### 9 51.3 08(e). 40 C.F.R $51.302 (emphasis added). "reposed 30 T.A.C. 

### 5 116.15 10.

## I

. Oct 09 06 02337~ ASH GROVE TEXAS

Lola Brown October 9,2006 Page 5 of 8 

### Having categorically determined that emissions below 

### certain levels will not cause 

### an impact greater than 

### 0.5 deciviews at 

### certain 

### distances fiom 

### Class I areas, 

### TCEQ 

### has proposed to estabLsh 

### distance-based categorical exemptions for SO2 

### and NO,. This 

### approach is 

## ! appropriate, as 

### so many 

### sources in Texas are located 

### great distances from 

### the few 

### Class 

### I areas in 

### and 

### surrounding the state, 

### and one 

### need not perform individual modeling 

### to definitively conclude that, say, a 700 'tpy 

### source 

### in Corpus Christi 

### will not have 

### a 

### > 0.5 

### dzciview impact 

### in 

### Big Bend. Because it will save the regulated community and 

### Agency pzrsonnel significant amounts of time and 

### resources, and 

### because it is 

### perfectly consistent with Congress' and 

### EPA's vision 

### far implementation 

### of the 

### BART requirement, this 

### approach should be 

### followed 

### with respectto

### not 

### only NOxand 

### St&, but 

### also 

### PMlo.
Comment4: 

### Proposed 30 T.4.C.

## 5 116.1510@) 

### should be revised 

### as follo~m: @j 

### The owner or operator ofaBART-eligible source 

### may 

### demonstrare, using 

### a model 

### and' modeling 

### guidelines approved by 

### the twmmkim 

### executive director, rhar the source's emissions do 

### not cause 

### or contribute to visibility 

### impairment at 

### a Class

### ,I area. 

### A BART-eligi6le source rhat does !lorcause 

### or cu~~~ribute tovisibility inpafrmentat 

### any CIassI area 

### is 

### not subject to 

### the requirements of 

### $ 116.1520 

### or 

### $ 116.1530 

### of this title

- 

### (relaring to

### BestAvailable 

### Retrofit Technology (BART)

### Analysis 

### and 

### Best Available Retrofit TecknoIogy (BART) ControlImplementation). A 

### source is considered to cause 

### or conpibute to

### visibility impairment if

### it causes 

### a visibility 

### impairment of 

### greater than 0.5 

### decivie~i.*s at 

### any 

### CIass I 

### area. The modeling 

### demonsparion 

### must be submitted 

### under seal of 

### a Texas licensedprofessionul engineer and must be 

### received by the 

### commission 's 

### Air Permits DivisionFZO 

### later thanApril 30, 

### 2007. 

### Replacement of 

### the reference to "the commission" w-ith a reference to ''the executive

, 

### director" is 

### needed because it will be the executive 

### director's delegates, the 

### Agency's modeIing experts, not the 

### Commissioners themselves, who 

### will 

### be evaluating and approving 

### the model 

### and modeling guidelines used. 

### The suggested 

### revision upill maintain consistency 

### with 

### other parts of Section 

### 11 6 

### in which 'Vle executive director" is 

### used to 

### collectively 

### refer to the executive director and 

### his technical staff, and 

### "the commission" is 

### used 

### to refer to 

### the three-member commissionitself Comment 

### 5: Proposed 30 

### Ti.4.C. 

## 3 116.15

### 10(b) should be 

### further 

### revised as 

### follows: (bJ 

### The 

### owner or 

### operator ofa

### BART-eligible source may 

### demonstrate, using a 

### model and 

### modeling p~ujdeiines approved by rhe execuriveOct 09 06 02337~ ASH GROVE TEXAS

Lola Brown October 9,2006 Page 6 of 8 

### director, 

### that the source's 

### emissions of 

### a visibilitv-impairing pollutant does 

### not 

### cause 

### or contribute to visibility impairnzenf ar 

### a Class 

### I area. A 

### BART-eligible .source 

### that does not 

### cause or 

### conlrdbute 

### to visibility impairment at 

### my Class Imea 

### wirh respect to 

### onv visibilihcim~airing pol22rtanl 

### is not 

### subject fo 

### the requireinenisof$116,1520 or .$

### I1 6.1530

### of 

### chis 

### ride (relating

### to BestAvailable Rezrofir Technology @ARV Analysis and 

### Best Available 

### RetroJit Techrwlogy 

### (3ARTj,Control

### Implementation) '

- 

### fop.

### that aollzrtant. A 

### source's emissions 

### of a visibilitv-impairing oolluiun~ 

### are k 

### considered to cause or cowribute to. 

### visibility impairment 

## Vi2 - 

### tmmw they came 

### a visibility impairment ofgrealer than 

### 0.5 

### deciviews at 

### any Class 

### I 

### area. The modeling 

### demonstration must be 

### submitted 

### under seal of 

### a TexasEicensedprofessionul engineer 

### and 

### must be 

### received by 

### the commission 's

### Air Permits Division 

### no lafer

### thanApi730, 200% 

### These 

### revisions 

### are needed 

### to clarify that a BART-eligible source demonstrating that its emissions,ofa particular visibility-impairing 

### pollutant do not cause 

### or contributeto 

### visibility impairment at 

### a Class 

### I area 

### is not requiredtoperform a 

### BART analysisfor that pollutant. Proposed § 

### 116.1510(c)(l), (2) & 

### (3) provide 

### pollutant-specific exemptions from the 

### requirement to 

### perform 

### BART analyses based on the 

### 'degree 

### of emissions and the distance from Class 

### I areas (e.g., 

### sources located greater 

### than 50 

### km fiom a 

### Class I 

### source and with a 

### PTE of less 

### than 

### 500 tpy SO2 

### and 

### NO, are excluded from 

### BART for SOz 

### and 

### NO,, sources with a 

### PTE of less than 15 tpy 

### PMlo emissions 

### are excluded 

### from 

### BART for 

### PMro, etc.). 

### These exemptions are 

### based on a 

### pr.esumption (albeit 

### a valid one) that emissions 

### of a 

### parficuIar pollutant(s) will not cause or contribute to visibility impairment. 

### If a source 

### aff~matively 

### demonstrates, using modeling 

### approved by the 

### executive director, that its emissions 

### of a

### particular pollutant(s) 

### will riot cause 

### or contribute to visibility impairment,it should qualify 

### for 

### the same type of pollutant-specific exemptions provided at proposed 

## 5 I
I 

### ~ll6.l5lO(c)(l), (2) & 

### (3), 

### 1
This suggested revision would 

### have significantpractical 

### benefits, as'it would focus sources' 

# I and 

### the Agency's 

### attention on reducing 

### those emissions 

### that actually 

### do affect visibility 

### in Class 

### I areas. As confirmed by CM 

### modeling recently performed 

### by 

### TCEQ for all

### BART- 

# 1 eligible sources, for 

### many sources, 

### BART eligibility 

### is driven by 

### emissions of 

### just one 

# I visibility-impairingpollutant, and

### not the 

### others. Coosider, 

### for example, a source thathas the 

### potential to emit 

### 2,000 tpy SO2 

### and 1000 

### tpy of 

### NO% but only 

### 50 tpg 

### of PMlo. For this 

## I source, modeling might indicate that its SOz 

### emissions 

### and NO, emissions, by 

### themselves, result in a 

### > 0.5 

### deciview impact 

### at nearby 

### Class 

### I area, but 

### that its PMlo emissions 

### do 

### not. I 

### Because the source can 

### adequately demonstrate that 

### its 

### PMloemissions cannot "reasonably I 

## IOct 09 06 02:37p ASH GROVE TEXAS

Lola Brown October 9,2006 Page 7 of8 

### be anticipated

### to cause or contribute

### to any impairment

### ofvisibility in 

### any mandatory 

### Class I Federal 

### areg"]' performance of 

### a 

### BART analysis 

### for this 

### pollutant would be tvasteful and inapprop~iate. 

### Comment 

### 6: Proposed 

### 30 

### T.A.C. 

## 5 1

### 16.35 

### 1 

### O@) should be 

### further

### revised as follows:

J 

### (6) 

### The owner or operafor

### of 

### a BART-eligible source may 

### demonstrate, using a model 

### and modeling guidelines 

### approved by the 

### executive director, thus the 

### source 's 

### emissions of any 

### or all visibility-impairing pollutmis do 

### not cause or contribute to visibiliy impairment at 

### a Class 

### I area. A 

### BART-eligible source that does not cause or 

### contribute to 

### visibility impaimnt 

### at any 

### Class 

### I area with 

### respect to 

### any visibilityimpairing

### pollutant is not subject to 

### the requirements of 

### $ 116.1520 

### or § 

### 116.1530 

### of this 

### &Ie (relating to 

### Best Available Retro$t 

### Technology (BART)

### AnaZysis 

### and Best ~vailable Retrojit TechnoZogy (BART) Control Implementation) for that

### pollutant. 

### A source's emissions of 

### a visibilityimpairing pollutant are considered 

### tonof cause or contribute ro 

### visibiliq impairmenr iJ 

### as demonstrated 

### bv modelinnperformed bv the 

### executive director or nerfirmed 

### in accordance ~~ith the 

### atiide[inesapproved by 

### the executive 

### direcfor,they 

### cause 

### a vfsibility impairment 

### of

### &p&w 

### than 0.5 deciviews at av

### CZm

### I 

### area The modeling demonsbarion must be 

### submifted zmder 

### seal 

### of 

### a Texas licemedprofessional engineer and 

### must be 

### received by 

### the commission'sAir Permits 

### Division 

### no later thanApvzl 3

### 0, 200

### 7. 

### This revision 

### clarifies that 

### modelingperformed by a 

### sourcein 

### accordance with the guidelines approved by 

### the executive director, 

### or by 

### TCEQ itself, 

### is sufficient 

### to dernonstmte that 

### a source does 

### not cause or contributeto 

### visibility impairment at a Class 

### I area for the 

### purposes 

### of determining 

### whether a 

### BART 

### analysis xvill be required. 

### It is needed 

### to avoid potential disputes 

### about whether a 

### BART analysis 

### is required 

### for a particular 

### source when modeling performed in 

### accordance with the 

### specific 

### guidelines developed 

### by TCEQ for 

### this purpose 

### shows 

### a < 

### 0.5 deciview 

### impact, 

### and modeling 

### performed 

### by a 

### third party 

### using 

### protocols or techniques 

### not approved by 

### TCEQ for

### this purpose 

### shows a 

### > 0.5 

### deciview impact. 

### The ~evision is 

### aIso needed 

### to recognize the 

### CAMx modeling TCEQ 

### recently performed, 

### which 

### showed that 

### emissions of 

### specific visibility-impairing 

### pollutants fiom many 

### BART eligible 

### sources will 

### not 

### cause a 

### > 0.5 deciiiew 

### impact at any 

### Class 

### I area. 

### Because 

### TCEQ

lo 40 C.F.R. 

### 5 51.308(3); see

# aJso CAP^ 

### 9 169A@)(42 

### u..s.c.A. 6 7491).Oct 09 06 02338~

, ASH GROVE 

### EXA AS 9727237209

Lola Brown October 9,2006 Page 8 of 8 

### has 

### already determined 

### that those 

### emissions do 

### not 'kause 

### or. contribute" to 

### visibility

. 

### impairment, 

### further 

### modeling of 

### them by 

### individual sources 

### is unnecessary, and would constitute 

### a significant 

### ofwaste 

### ofboth 

### the sources' and 

### the Agency's 

### modeling 

### staffs time and 

### resources. Thank you 

### again 

### for your consideration 'of these 

### comments. We 

### would welcome the 

### opportunity 

### to discuss 

### them 

### with you 

### or your colleagues. 

### If you 

### have any questions, please 

### call 

### me at 

### (972) 723-723 1.

,

. . 

### Siricerely,



### EnvironmentalManager Ash Grove 

### Texas, L.P. 900 

### Gifco Road 

### Midla.thian,

### Texas 76065 Cc: 

### Eric Groten 

## -Vinson &

### Elkins 

### LLP

.

### 1 10/09/06 17:Ol FAX 512 404 3520 JENKENS & GILCHRIST I

ASSOCIATIONOF ELEiCTRlC COMPANIES C)F TEXAS,1NC

October

### 9,2006



### Ms.Lola

### Brown Office

### ofLegal Sdccs 

### Texas 

### ~ornmkion on EnvLtomental Qudity P.O. Box 

### 13087

### MC-205 Austin, 

### TX 7871

### 1-3087

Re: RuleProject

### No. 2006622-1 16-EN ' 

### Dear

### Ms.Brown: The Association 

### of 

### Electric Companies 

### of 

### Texas 

### ("AECT') appreciates 

### the opportunity 

### to submit these 

### comments to the proposed rules to 

### implement the 

### Best Available 

### Retrofit Technology 

### ("BART") requirementsunderthe 

### Regional Haze

### Program. AECT is a trade association 

### representing 

### electric companies 

### in 

### Texas. Orsanized in 

### 1978, N3CTprovides a 

### fonrm 

### formember 

### company representativesto 

### exchange 

### information 

### on thou

### indusrry, 

### andto communicatewith stateand 

### federalgovcmmenkl 

### officials. AECT's 

### wneral

### sunoortfnr 

### the~ronosod 

### BART rules AECT generally 

### supports the proposed 

### BART rulq

### however, 

### AECT has 

### comments on specificaspects ofthe

### proposed 

### rules, 

### which are setom 

### below. AECT's 

### comments on specific aspects

### of the pronosed 

### BART rules Proposed fi 116.1500 

### "Bestavailable retrofit

### technolorn 

### (BART)-eli~ibIc source'' 

### MCT suggests that 

### several ralisions be made 

### to thc 

### proposed 

### definition of %best availableretrwfittechnoIogy 

### (BART)-eligible source"- 

### The TCEQ 

### proposes to define 

### the term 

### "best available retrofit technology 

### (BART)- eligible source" to 

### apply only to "visibility-impairing air pollutants", instead 

### of to all air 

### pollutants. AECT concurs with rhe 

### TCEQ that domg so will 

### minimize confusion as to the 

### pollutants iha~ 

### aresubject to 

### BART rules. 

### Under the proposed 

### defmition of "best avaiIable retrofit technoIogy 

### 0-eligible source", zhe id-cation 

### ofBART-eligible sources would 

### be done 

### on a 

### sits-wide basis, rather

1005 Glngrcss. Suite fiDO. Auslin. 'I'~.sns IS701 a i'lllln~.: 1511) .J71-673 F;rs~311147L0760. \I-u.rr:rrtct.ncl 

# . irll'cl(ij'acrl.rlC.I AUSTM 44961 1v3 i402G-00001 I 

# I10/09/08 17:01 FAX 512 404 3520 

### - JErnNS & GILCHRIST



### Ms.LolaBrown September 14,2006 

### Page 3,


### illan on 

### an emissions 

### unit basis due to 

### the 

### inctusion 

### ~fthe term 

### "stationary source", 

### which according to the 

### proposed 

### nrles, would be 

### effectively defined as being the entire site.' That would be contrary

### to 

### EPA's 

### BART guidelines located at 40 

### CFR Part51 App~mdix Y, 

### Section 

### 11. 

### It would also 

### be contrary to 

### EPA 

### language 

### in the 

### preamble to Phe 

### sdoption 

### ofthose guidelines, 

### which specifies that 

### EPA did 

### not intend 

### for states to 

### find that 

### all emissions 

### units 

### ar a site 

### are ' subject to he 

### BARTrequirements 

### if(i) 

### some of 

### the 

### emissionsuitsat 

### thesite were 

### built outside 

### the 1962-1977time 

### period 

### (70 Fed.Reg. 39111 

### (July 6,2005)), 

### or (ii) some oftbe 

### emission 

### units at the 

### site are

### nd

### in any 

### of the 26 

### BART sowce oategories 

### (70Fed.Reg. 

### 391

### 10 (July 6,2005)). 

### Based 011 the 

### foregoing, 

### AECT suggests that the definition 

### of "bast 

### available 

### retrofit rebhulogy @ART)-eligiblesource"be revised as folIows: 

### (1) Best available retrofit 

### technology 

### (BART)-eligible source 

# - any 

### emissions units that 

### comwrise anv 

### of the 

### following 

### stationary sources 

### of



# . . .. MlW-haairing 

### airpollutants, including any 

### reconstructed source_

### that 

### were 

### -not in operation 

### prior to August 7, 1962, 

### and wqe 

### ww 

### in 

# - existence 

### on August 

### 7, 

### 1977, and collectivel~ 

### have 2tm 

### the potential 

### to emit 

### 250 

### tons per,

### year (including fugitive 

### emissions 

### to the extent 

### quantifiable) of any 

### visibility-impairingair

### pallutam.

~CVisibilitr-i~airi~ 

### ni ~olIu&nt", 

### AECT agrees 

### that the 

### proposed 

### definition of %visibility-impairing

### air pollutant" 

### should only include 

### nittogen 

### oxides ("NOS"), 

### sulfur dioxide 

### rS02'3, and 

### particulate matter 

## ("PM"). AECT 

### concurs with the 

### proposed 

### exclusion of vola~ile 

### organic compounds ("VOCsT and 

### ammonia 

### fiom the definition 

### of"visibility-impairingairpallwtS'

### AECT would, 

### however, 

### like to notethat the

### TCEQ shouldbc 

### cognizant

### ofrhe

### role 

### ofreactive

### VOCs 

### in secondary 

### organic

### PM 

### formation &at are 

### knownto 

### impactvisibility 

### in

### Class 1

### areas. h addition, AECT suggests that 

### the proposed defhition 

### of "visibility-impairing 

### air poIlutant': be revised to 

### state that for 

### purposes 

### of determining whether a BART 

### analysis is required to be performed foran 

### emissions unif 

### PMIo may be used as 

### an indicator

### for particulate 

### matter. 

### Such a 

### change is supported

### by EPA's BART guidelinesat 40 

### CFR Part 51 

### Appendix 

### Y, 

### wwch specificallyprovide that 

### states may 

### use 

### PMlops an 

### indicator 

### for particulate 

### matter 

### in BART eIigibiIjty 

### determinations. 

### Zn fW, 

### wider Section 

### I1 of the 

### guidelines, 

### EPA specfftcally recornmencls that states 

### not use 

### total suspended 

### particulates 

### as an 

### indicator 

### ofparticulate matter. 

## Thischangewould 

### also be 

### consistent

### withproposed 

### 8 116.151 0(c)(3), 

### which refers to 

### PMlo

### For the 

### foregoingreasons, 

### AECT suggests &at the 

### definition d'kiHbility-impairing air p01lu~~ be revised as 

### follows: 

# ' The proposed des would incorporate rhe definitionscontained in 40 CFR 

### 5 5131, includinp rhe definition of ''s~tion;vy sowce",10/09/06 17:Ol FAX 512 404 3520 

## - JENKENS & GILCHRIST



### -

MsLolaBhwn Scptemba 

### 14,2006 Page3 i
I I I (2) 

### Visibiliv-impairing 

### airpollutant

# - any 

### ofthe 

### following: nitrogen 

### oxides, sulfur 

### dioxides, or 

### particulate

### matter. For the 

### aumoses of 

### this subchapter. 

### PMln mav

### be used as an indicator

### for n~culate matter.



### Use ofthe 

### CUUFF model and 

### CENRAP BART modeling

### guideIine~ 

### The 

### TCEQ proposed 

### theuse of

### the CALPWFmodel 

### andthe ClENRAPBART modeling guidelines. AJ3f.T 

### believe 

### the 

### C.AT2UFF model 

### and CENRAP 

### BART modeling guidelines 

### have limitations. 

### The CALPUFF model is 

### recognized to have 

### limitations 

### in terms 

### of how 

### it addresses 

### chemical 

### reactions that 

### occur 

### in the 

### atmosphere (e.g, it 

### assumes that 

### the reactants 

### necessary 

### for chemical 

### reactions to occur 

### in the 

### atmosphere are 

### available in unlimited 

### qumtities), 

### and of its 

### abilityto accuratelypredictvisibility inlpacts

### beyond a

### distance ofZOO 

### lan. 

### AECT is concerned 

### that use of 

### the 

### CALPWFmodel could result in 

### false attribution to Texas sources 

### of

### regional.

### hazeimpacts 

### on 

### Class 

### I areas in 

### other states. 

### In light of the 

### limits 

### ofthe 

### CALPUFFmodel, and 

### in response to &e 

### TCEQ's 

### request for 

### comments on pos6ibIe 

### dternatives 

### to 

### the CALPUEF model, 

### AECT suggests that the 

### TCEQ consider as 

### an alternativeto 

### CALPWFthe 

### SCICHEM nir quality 

### model, 

### which 

### is a 

### stand-aIone

. 

### plume 

### dispersion

### and chemishy

### modelA3ECT 

### agrees, with certain 

### reservations,

### with 

### the 

### TCEQ7s proposal, 

### of a 0.5 decjview 

### rhreshold

### for determining 

### whether a

### source causes or 

### cmmbutes to visibility 

### impairmat. 

### AECT asserts that a 

### I~wer threshold is unsupportable and 

### should not be adopted 

### Researchhas sbom 

### that greater 

### than 1 

### deciview 

### is needed for a 

### visibility change to 

### be perceptible. As a 

### result, it would 

### make no sense to 

### lower the 

### threshold below 

### 0.5 deciviews. 

### In additiou, lowering the 

### threshold to 

### below 0.5 

### deciviews could 

### lead 

### to inconsistency between 

### states' Regional 

### Haze 

### SIPS, which could

### result 

### in significant 

### confficts

### between 

### the states. 

### Tbe "cause or coatribute 

### demonstration"should 

### be made 

### for each 

### visibilhr

### imnairing 

### air aollutmt &, currently

### wrinen, proposed 

## 6 1

### 16.151.O(b) refers to

### the 

### demonstration 

### that a "source" 

### will not 

### cause or contributeto the 

### visibility 

### impairment at 

### a 

### Class 

### I area 

### AECT believes 

### this 

### mbsecdon 

### needs to 

### be wised 

### such 

### that tlae 

### demonstration can 

### be 

### made for 

### each visibility

### impairing 

### air pdllutht, 

### rather than for the 

### source as a 

### whole. 

### Such 

### a change would make 

### proposed 

## 4 1

### 16.1

### 510(b) consistent 

### with proposed 

## 5 116.151

### O(c)(l)-@), 

### which 

### would provide pollutant-speczc exemptions 

### fiom 

### the requirement to perform 

### BART enalyses based 

### on the degree of emissions 

### and the distances 

### &om 

### Class I areas. 

### If a source can demonstrate usihg modeling approvd

### by the executive

### director thatits 

### missions ofaparticula-.\isibility-impairing1.0/09/06 17:02 FAX 512 404 3520

8- -. JENKENS 8: GILCHRIST

# lMs. Lola Brown September 14.2006 

### Page4

afr 

### pollutant will not cause 

### or conlribu~e n

### yisibility impairment 

### in a Class 

### I area, thar;

### pollutant sl~ould be 

### exempt

### &om the 

### requirements 

### specified 

### inproposed 

## 4 116.151O(b). Such a change 

### would 

### also 

### focus sources' 

### and the 

### TCEQ's 

### attention on 

### reducing the emissions 

### of visibility~impairing 

### air pollutmts thar actually 

### do affect visibility 

### in Class I 

### areas, As confied by CAMx modeling recently performed 

### by the 

### TCEQ on all sources, 

### for many such sources, 

### BART eligibility 

### is driven by 

### enlissions 

### of just one visibility-impairing 

### air pollutant. 

### It would be wast.efi1 

### and inappropriate to 

### require any other visibility-impairing air pollutant to 

### meet theBARTrequirements. 

### Use of 

### TCEO CAMx rnodelin~ 

### results. and clarification of ''cause or contributedern~nstration'~ 

### modeling 

### thatsources must

### me 

### AECT also believes that proposed § 

### 116.15 

### 10(b) 

### should be revised to 

### recognize &atthe ' CAMx 

### modeling the 

### TCEQ recently performed has already shown 

### that emissions 

### of specific visibility-Impairing air

### poIIutants 

### from

### many sources 

### will 

### not cause 

### a greater

### than 0.5 

### dcciview 

### impact 

### on any 

### Clws 

### I 

### area. Because the 

### TCEQ has 

### already made 

### that determination, 

### further modeling of 

### the 

### emissions 

### of such 

### visibility-impairing air 

### pollutants from 

### such SOUrCb.5 

### is unnecessary, 

### and would constitute a 

### significantwaste 

### ofboth the 

### sources' and the TCEQ's

### time and'resomces. 

### Moreover, 

### AECT believes that 

### proposed 

### 8 116.1510(b) should be 

### revised to 

### clarify that 

### anymodelingpdmed 

### by a sourceTo 

### demonstraterhat 

### oneor

### more of the visibility

### impairing 

### air pollutants 

### emitted from it 

### will 

### not cnuse a 

### visibility 

### impairment in a 

### Class I area 

## . must be done

### in 

### accordance with 

### guidelinesapproved

### by theexecutivedirector. Revlaccypent

### of "commissibh"

### with "executive director" 

### AECT suggests 

### that

### rhc 

### word "commissi~n" 

### in proposed I 1 6.1 5lo@) be 

### replaced with 

### the 

### term "executive 

### director". 

### Such revision

### is 

### needed 

### because

### it will be 

### tke executive director's st& 

### not the 

### TCEQ commissioners

### thernslvcs, who 

### will 

### evaluate and 

### approvethe 

### BARTmodel 

### andmodeIing 

### guidelines

### used- Suchrevision would 

### also be consistent

### with the rest 

### ofthe

### BART 

### ! rules, which use the 

### term ''executive 

### directornto 

### refer to the 

### executive director 

### and his staff: 

### and I 

### "commission" to refer tothe

### threecomissianers. 

# i

Based 

### on 

### the foregoing 

### discussion,

### AECT suggests that 

### 5 116.1510(b) 

### be revised to 

### read as 

### follows:

, (b) 

### The 

### owner 

### or operator 

### of a 

### BART-eligible 

### source may demonstrate 

### usin? a 

### model and 

### modeling guidelhes approved by 

### the e?iccufiv~ dkct~ f 

# . , and 

### that 

### the source's emissions 

### af.any 

### or all vl L

### -sib'lityimpairing 

### air 

### pollutan~ do= 

### not cause 

### or conbn"brrte to 

### visibility impbentat a 

### Class 

### I area. A 

### BART-eligible source 

### thar does not cause 

### or contribute to 

### visibility impairment at any 

### Class I area with 

### resuect to 

### anv visibilitv-im~airin~t air

### ~ollutmt 

### is 

### not subject to the

### requiremeno 

### of 

### Q 11 6.1520 

### or 

### 4 11

### 6.1

### 530 of this

# / 10/09/06 l7:OZ FAX 512 404 3520 

### - - JEWNS & GILCWIST

I



### Ms.LolaBrown September 14: 

### 2006 Page 5

title 

### (relating to 

### Best Available Retrofit Technolog 

### PART) analysis and 

### Best Available Retrofit Technology 

### (BART) canlrol 

### implementationfor 

### that nollutmt 

### A source2 emissionsof a

### visibilitv-im~airincu airpollutant weis considered

### to cause 

### or contribute to visibility 

### impairment 

### if as dmonstr;rted 

### by modeling perf6rmed 

### bv the executive director or ~erforrned bv a source

### in accordance 

### with the sidelines agproved by 

### the executive director. thw cause 

### W

### a visibility impaimlent 

### of less -than 0.5 deciviews 

### at 

### my Class 

### I am 49~ modeling 

### demonstrationperfondbv a 

### source 

### must be 

### submitted under t6e 

### seal of a 

### Texas licensed 

### Pmfessional Engineer and must 

### be received 

### by the 

### Commission's Air 

### Permits

### Divisionno 

### laterthan

### April 

### 30,2007.

Pronosed 

### F 116.151Dlc) 

### Both Congress 

### and 

### EPA have

### made it 

### clear 

### that states should 

### only require 

### the application 

### of

### BART at 

### any 

### source 

### whose emissions 

### of

### avisibility impahin2 

### airpollutant{s) 

### are reasonably anticipated to 

### cause or

### contributeto impairment of

### visibility at 

### a 

### Class 

## Iarea(which 

### the 

### TCEQis propohg to 

### mean 

### an impact greater 

### than 0.5 

### deciviews). 

### Based 

### on its detdation 

### that 

### emissions

### below 

### certain levels will not 

### cause 

### an impact ,greater ihan 

### 0.5 deciviewswhen 

### a source 

### is located at 

### greaterthan certain 

### distances 

### from Class 

### I areas, 

### the 

### TCEQ has 

### proposed distance

### based exemptions for SO2 and 

### NOx in 

### proposed § 

### 1 16.1510(c). 

### AECT concurs with those 

### proposed exemptions 

### because 

### such 

### sources will 

### not have a significant 

### impact 

### on visibility 

### in Class 

### Iareas. 

### AECT believes 

### that 

### for the same reasons, proposed 

## 5 116.1510(c) 

### sl~ould be revised, 

### as follows, tocontain 

### simiiardistance-based exemptions

### for,PMlo: i41 Anv BART-elieible 

### source

### that has 

### the 

### ~otential to 

### emit less than 

### torts 

### Der vem of articulate 

### matter with an 

### aeradvnamic 

### diameter 

### less than 

### ar equal to 

### a nominal 

### ten 

### micromet~IPM~ md 

### that 

### is 

### located more th+~ 50 

### kilometers 

### hm anv Class 

### I area isnot subiectto

### BART 

### for 

### PMlk 151 Anv BART-elim'ble source 

### that 

### has the potential to 

### emit 1ess.than tons 

### per 

### vear of 

### PMxmd that 

### is. located more than 100 

### kilometers 

### from anv 

### CInss 1 

## I*
In the 

### foregoing proposed new 

### provisions, the 

### bl& wiIl 

### nwd to 

### be filled 

### in with the 

### appropriate 

### annual rate 

### of PMlo 

### emissions that 

### will have 

### a negligible effecr 

### on visibility at 

### distances greaterthan 50

### kmad100

### km.respectively.

Proposed 

### 6 Il6.151Oid~

AUSTIN 149611~3 5402660D0110/00/06 17:02 FAX 512 404 3520 

# i

-, .. 

### - -- 

### .. -. JENlZENS & GILCWIST



### Ms.Lola

### Brown September 

### 14,2006 

### Page 

### 6

SCT 

### strongly concurs 

### with proposed 

### 8 116.151 0(d), which 

### would provide that elecbic generating 

### mirs that are participating in 

### the 

### Clem Air 

### Interstate Rule ("CAIR") 

### cap and 

### trade program 

### will not be 

### subject to

### BART analysis 

### or control requirementsfor 

### NOx

### and 

### SO,. That 

### provision 

### is supported by 

### EPA's determinatjm that CAIR 

### will 

### provide greater reasonable 

### progress tl~an 

### will 

### BART. AECT 

### requests that 

### proposed $ 

### 116.1510(d) be 

### revised to 

### also 

### apply to 

### PMw. It is unnecessary to 

### apply BART

### for PMlo emitted 

### fiom electtic 

### generating units that 

### comply with CAIR became 

### ERA has 

### determined that CAIR 

### is a 

### more effective 

### regulatory 

### mechanism than BART 

### for addressing visibility-impairing 

### particulates attributable to electric 

### generztingunits. 

### In developing CAIR, 

### EPA concluded that ~e 

### best way 

### to 

### adclress fine 

### particles attributable to 

### electric generating units, 

### which 

### impair visibiliv 

### by scattering and 

### absorbing 

### light (69 

### Fed, Reg. 4574 (hnunry 30,2004). 

### and 70Fed. Reg. 

### 39160 

### (July 6,2006)], is to ~ontrcll 

### emissions oftheir 

### chemical components. SO2 

### and NO,, 

### rather

### tllm other 

### components ofparticulate

### matter (69Fed. 

### Re$ 4582 (January 

### 30, 2004)). 

### Furthermore, EPA 

### llas 

### specifically concluded, 

### based on an 

### exlensive 

### study ofthe 

### issue, 

### that CAlR 

### achieves greater progress towards 

### improvingvisibility 

### at 

### Class 1 

### areasthan does

### BART. (40 

### CFR 

## 5 51303(e)(4)) 

## By Iimiting the 

### exclusion 

### in proposed 

## fi 116.1510(d) to 

### NO, and 

### SO?, the TCEQ may force 

### participating electric generating units 

### in Texas 

### to comply 

### with 

### CAIR ufzdalso 

### undertake 

### BART 

### analyses 

### for particulate matter. 

### This result 

### cannot be reconciIed 

### with EPA's determination that he 

### particles 

### artributable to eledl: 

### generafing units are best 

### regulated by reducing 

### SO?and 

### NO, emissions, 

### which 

### EPA bas already 

### determined 

### is best accomplished 

### by 

### CAIR,not 

### BART. Requiring electric 

### generating units 

### fiat me already 

### subject to the 

### most 

### effective 

### reyIaroq mechanism 

### for addressing fine 

### p~culates (CAIR) 

### to c~mply 

### wi& a 

### less effectheregulatory

### mechanism (WJIT)forthe same

### purpose is wasteful, 

### andnot 

### Iikely

### to result 

### in any appreciable 

### inzpr~vement 

### in visibiIity above 

### and beyond what 

### will be accomplished by 

## cm
Finally, even if 

### CAR

### was

### not 

### a

### more effective regulatory 

### machanimi for addressingfme 

### pdculates, it 

### wouId be 

### inappropriate 

### to 

### count a participating 

### electric 

### generating 

### unit's annual 

### SO;! and

### NO, emissions 

### in determiningwhether 

### the 

### eleelric 

### generatingmit 

### should be 

### required to 

### apply 

### BART fur PMio- 

### For example, consider 

### an doctric 

### generating 

### unit with 

### the folIowing 

### emissions:500 tpy 

### SO?:1500 tpy

### NO, and 

### 50 tpy 

### PMlc. Under 

### the 

### proposed rules, 

### such 

### some would be excused 

### eorn undertaking 

### any type 

### of 

### BART andysis 

### with respect to SO7 

### or NOx ' 

### (becausethey are 

### addressed 

### under CAIR). However, it 

### would 

### be 

### requiredto 

### undertake 

### a BART analysis for its relativelyinsignificant50 tpy o'f

### PMro emissions (because 

### its cumulativepotential
, 

### to emit 

### for all visibility-impairing 

### polluzants is greater 

### than 250 

### tpy). Wlile 

### this result may or 

### may not 

### be appropriate 

### from 

### a

### policy standpoinr 

### for a 

### non-electric generating 

### unit source with the 

### same emissions profile, it 

### is enrirely 

### inappropriate for aparticipating 

### eIeclric generatingunit. 

### Unlike the non-electric generating unit 

### source, an electric 

### generating 

### unit with this 

### missions10/08/06 17:03 FAX 512 404 3520 -.. JENRENS & GILCHRIST 

## --

Ms. Lola

### Browq 

### September 14,2006 

### Page 7 

### profile would not be required 

### to-undertakea 

### BART analysis for 

### its 

### S& and 

### NO, emissions, but would 

### be required 

### to 

### undertake 

### a BART anaiyris 

### for PMlo solelj~ because of 

### its 

### substantial $02 and

### NO, enf-ssions,which arebeing addressed not 

### by 

### BART, but 

### under

### CAR. Additional reasons proposed 

### 8 llS.ISIO(d) should be 

### reviscd to also apply to 

### PMro indude lhe 

### following. Coal-fired electric 

### generating units 

### Jready have 

### very 

### high efficiency 

### particulate matter

### control equipment, generaiIy greata

### thm 99% efficient. 

### In addition, modeling that 

### has been conducted 

### for cod-fmd electric 

### generating units 

### in other states bas predicted vidly 

### non-existent visibility impacts at 

### different 

### Class 

### I seas due to 

### the 

### PM emissions &om such 

### electric generating 

### units. Such 

### predicted 

### impacts, have been 

### we11 below 

### the 

### thre.sbold 

### of 0.5 

### dcciview, 

### ar~d in at 

### least 

### one situatioa 

### inthe

### range 

### of0-0.03deciviews, Based on the

### foregoing, 

### AECT suggests

### that 

### 5 11

### 6.151O(d) be 

### revised 

### as follows: (6) 

### BART-eligible 

### electric generating urizts participating in 

### the Clem 

### Air Interstate Rule trading program

### m not subject to

### the requirements 

### of

## 5 11 6.1520 

### or 

### 8 116.1530~fthistitle~~~. 

### Although

### AECT believes 

### such a

### revisionto 

### proposed 

## 4 11 6.151

### 0(d) 

### wouldbe best, 

### thefollowing revised

### language

### would 

### alsobe acceptableto 

### AECT: .(d) BART-elisble 

### elecuic geneiaring 

### units participating 

### in the Clean Air 

### Interstate

### Rule trading

### pmp.mare 

### not 

### subjectto 

### the 

### requirements 

### of 

## 5 116.1 520 

### or 

### $ 

### I 16.1 530 

### oftllistitle

### for NOs 

### and SCb. 

### and 

### shdI 

### not count

### their 

### emissions 

### of 

### NO, and 

### So, in determining: 

### whetherthe source

### is BART-elieible 

### for= AECT appreciaresthe opportunity

### to submit these 

### comments. 

### Ifyou have 

### any questions,

, please do not 

### hesitateto contact

### Keith 

### Courtney at (512) 499-3865.



### L/

John W-Fainter,

### Jr. AECTPresident 

### and CEO

### RECEIVED BP Products North America Inc. 

### =$ 

## 2

## 7 2006 2401 5'h Avenue South Post Office Box 401 Texas City. TX 77590 

### REGULATIONSDEVELD?W~T$.f~JI~N

, USA

.. 

### . Switchboard 409 945 1011



### ..:


### . . .: : - HSE Fax 409 945 1477 September 25, 2006 >...

. .F * \F' CERTIFIED MAIL# 7003 1010 0003 8830 3588 RETURN RECEIPT REQUESTED 

### Ms. Lola Bsown MC 205, Office of Legal Services Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 787l1-3087 '. 

### (512) 239-4808 

### (fax)
Re: Rule Project Number 2006-022-116-EN
Dear Ms. Brown:
BP has sources appearing on TCEQ's BART (BestAvailableRetrofit Technology) eligible source listing. (The sourcespotentially BART eligible are major stationary sources, including reconstructed sources,j?om one 

### of 26 identified categorieswhich have the potential to emit 250 tons per year or more of 

### any airpollutant, and which wereplaced into operation between August 7,1962 and August 7,1977.) BP understands that TCEQis performing additional modelingtofurther refine the BART eligible list. According to TCEQ, sourcesnot removedfrom the potential BART eligible listwill need to conduct a BART engineering analysis.
BP appreciates the opportunity to comment onthe proposed Chapter 116amendments 

### IllreIlu-ed~o-addresvlmolll~mp.airm-~-t-federal-~1-a~~I-ar'eilSdue-to~e-~on~-haze. We participated 

### inpreparation of commentsfor the Texas Oil and Gas Association (TXOGA), and we endorse the comments submitted by that organization. We enc,ourageTCEQ to considerthose commentsand revise the rule proposal accordingly. 

### If you have any questions, please contact Susan Moore, P.E. at 281366 5018.

Katherine M. 

### Gardner Environmental Manager J:\EHS\ADMIN\ElectronicHSE File Index\Environrnental\Texas City Site\Texas City Refinery\Ol-Administration 

### - Multimedia\lI-BP BART Commentsto TCEQ\BPBARTcomments.doc ENV.O1 .I 1.04 BPSH. .

### - 

### -. - .-. -- .. Union Carbide Cor oration A Subsidiary of The Dow Chemical &rnpany 

## -6 Seadrift Operations P.O. Box 186 Port Lavaca, Texas 77979 7 USA 

### October 3,2006 Ms. LolaBrown Office of Legal 

### Services (MC-205) Texas Commission on Environmental Quality P. 

### 0. Box 13087 Austin,Texas 787 11-3087 512 239 4808 (FAX) 

### Re: CommentsofTheDow Chemical 

### Company onthe 

### TCEQProposed~ule 

### for Best

### Available RetrofitTechnology 

### (BART) RuleProjectNumber2006-022-116-EN 

### Dear Ms. Brown: The

### Dow Chemical Company appreciatesthe opportunityto comment on theproposed changes to TCEQ Regulation 116 (30TAC 116). 

### Dow is the largestchemical company 

### in 

### Texas with manufacturing sites,business centers,

### and research and development facilitieslocated throughoutthe state. Dow 

### has anumber ofmanufacturing sitesin Texas and employs approximately 11

### percent ofthe chemical industry workforce statewide. Dow's Freeport facilityis the largest chernicd manufacturing complex

### inthe United States. This facility operates more than 70 production plants occupying more than 

### five thousand 

### acres. The facilitymanufactures and 

### supplies more than 

### 1,800 chemical intermediates andproducts and produces over 30billion poundsper 

### year ofproducts. Dow alsohas

### productionplants located 

### inTexas City and 

### Seadrift,Texasthatmaybe impactedby this proposed regulation. The attachmentto this 

### letter contains our comments. These comments were also faxed to TCEQ 

### on October 3,2006. TheTexas Chemical Council (TCC) will also submit com,entson this rule proposal; Dow supports those comments. Please contactme at (361) 553-2920 should you have questions regarding our comments.
Sincerely,

U 

### Russell A. Wozniak Regulatory Affairs Leader The

### Dow Chemical Company

### RAW/Attachment

cc: Steve Kilpatrick, 

### TX/AR 

### Reg. Affairs 

### Leader 

## -Operations Regulatory Management

## The Dow Chemical Company Comments

### on Proposed Changes to 

### 30 

## TAC 116 

## Rule Project Number 2006-022-116-EN

The commentsof the Dow Chemical Company 

### are organized by regulatory citation

### inthe 

### proposed rules. 

### The regulatory citationis providedfirst, followedby our comments.
Section 

### 116.1500(2) 

# -Dow supportsthe 

### definition ofVisibility-imppollutant. 

### Dow supportsthe proposed defmitionof visibility-impairingpollutant, which includes nitrogen oxides, sulfur dioxide, orparticulate matter. TCEQ

### has not proposed to include VOCs and ammoniain this definition: Dow agrees with theproposed definition. Section 

### 116.1510&) 

# -Dow stronelvsuggestsinclusion of

### additional simplescreening tools for evaluationof visibilitv

### impairment 

### at ClassI areas. 

### TCEQ

### is consideringthe approval of CALPUFFand 

### CENW BART Modeling Guidelines 

### as tools for

### BARTExemptionModeling, and 

### is seeking commentson other appropriatemodeling approachesfor

### BART. The distanceto the nearest Class 

### I areafrom ourfacilities exceeds700kilometers. 

### In our opinion,it 

### is extremely unlikely that emissionsof 

### NOx, SO2,

### orPMloarecreating visibility impairments of 0.5 deciviews or greater.
CUPUFF

### modehg setup and execution requiresprolonged time and extensive resources. Collection andpre-processing of the meteorological,terrain, andreceptor data from each appropriateClassI areasmay 

### take days and weeks. Per the 

### TCEQ estimations offiscalimpacts on each BART-eligible source (asprovided in the Interoffice 'MemorandumDocket No. 2006-0228-RUL), exemption modeling expenseswill range from $5,000 to $20,000for 

### a site. Dow considers theseestimates low; Site-specific modeling could be as much 

### as two to five times the costs suggestedby 

### TCEQ. More cost effectiveand easier-to-comalete 

### screeninp-tool-alternatives arerequested. Section 

### 116.1510Cb)

# -Dow sueeests 

### that the 

### final 

### rule confirm

### thatno additional 

### model in^is neededif 

### the resultsofthe screeninganalvsis show that

### no additional analyses are needed for

### PM or 

### SOXand NOx. TCEQ

### has provided the high-level 

### results of the 

### BART screening analysismodeling mns. A 

### tableispresented which defines whetherfurther analyses are needed for 

### PM (and 

### presumably PMlo) 

### and (SOX,and NOx). The

### relationshipbetween the results of the screeningmodeling runs and the proposed rule 

### is unclear. Dow suggeststhat if

### the screening analysis shows that no additional analysisis needed for 

### an air 

### contaminant, then the 

### ownerjoperatorbe 

### clearly excludedfrom the requirement to submit additional modeling under Section 116.1510(b).

### Page 2



### If the screeningmodeling output shows that additional analyses are required, Dow also suggeststhat

### the modelplant exemptions

### in Sections 11 6.1510(c)(l- 3) 

### remain available

### in lieu ofproviding exemption modeling or a BART 

### engineering analysis.
Section 116.151O(b)

# - BART

### ExemptionModeling

## -Dow recruests clarification that onlv 

### aminimal 

### number of Class

### I areas shouldbe evaluatedfor

### BART Exeinption Modeling;,

The

### proposed TCEQ rule does not specify how many Class

### I areas areto be considered for a site-specific exemptionmodeling. TCEQ's guidance documenttitled, "Best Available Retrofit TechnologyModeling Protocol to DetermineSources Subject to BART

### in the State of Texas", states that "Sources conductingthe source-specific subject-

, 

### to-BART screening analysis shouldinclude

### all Class 

### I areas that the 

### ENVIRON



### screening evaluation showed their 

### source group to have impacts greaterthan 0.5 dv 

### on visibility". Currently, the detailed results oftheENVJRON 

### screeningevaluationhave notbeen made available to the regulated community, soitis not possibleto determine how 

### many Class

### I areas need to be evduated in

### more detail.

Evaluation of muItiple Class

### I areas would be a burdensome activity for the regulated community. Per the TCEQestimations of theproposed rule fiscal impacts on BART

### eligible sources 

### (asprovided

### in the InterofficeMemorandum DocketNo. 2006-0228- 

### RUL), exemptionmodeling expenseswillrange from $5,000 to $20,000 for a site. Such 

### an estimate may not even cover 

### a CALPUFF 

### setup and execution cost for a single source 

## -Class

### I area combination. Modeling ofmultiple Class 

### I areas may significantly increase the cost and complexity of the modeling. Dow suggests that TCEQ shouldmake these results availabletothe regulated community

. 

### as soon 

### as practical. 

### In addition,provisions must beincluded in the rule or in 

### associated guidance that specify thenumber of modeling runs sufficient to exempt 

### a sourcefrom the BART Engineering Analysisrequirements.

Section 116.1510@)

# -The 

### submittal date of

### April 30,2007 shouldbe extended

### to allow adeaoate 

### timeforrermlated entities to conduct

### and submitmodeling to 

### show that 

### the source does 

### notcauseor contribute 

### to visibilitvim~airment. 

### Dow is concerned aboutthe shortdeadlinefor submittal of the "exemption modeling7', and suggests

### a modest extension

### of the submittal dateto July 31,2007. Thiswill 

### allow ample 

### timefor BART 

### eligiblesourcesto conductthe modeling analysis and 

### reportthe results to TCEQ. 

### Thistiming should also allow TCEQ ampletime to review this information and develop the requiredRegional Haze SIP

### by the December 17,2007 deadline.

### Page 3

Section 

### 116.1510fi)

# -Dow suggests

### that the provisionreauiring exemption modelingdemonstrations tobe submittedunderseal of 

### a 

### Texaslicensed professional engineerbe removed from 

### this section.


### Theproposed rule reads that 'The modeling demonstrationmust be submittedunder seal of 

### a Texas licensed professionalengineer." Texasprofessional engineer licensing procedures do not require extensive,in-depthknowledge of 

### CALPUFF0.r

### CENRAP BARTModeling Guidelines. 

### Air dispersionmodeling skills andunderstanding do not necessarily requirein-depth knowledge of engineeringprinciples necessary t

### complete

### a BART engineering analysis andlor

### BART controlimplementation. Many excellent companies involved in CALPUFFmodeling,which could be contractedforthis work, 

### are located outsidethe State

### of Texas and may not have a Texaslic~nsed professional engineer on their staff. Additionalcertificationofmodeling completedby 

### highly-trained

,

### professionalsby 

### aTexas licensedprofessionalengineeris 

### anunnecessary burden. The proposed certification requirement 

### in $1

### 16.1510@)

### is thereforeunjustified and shouldbe 

### deleted from the ruletext. Section 

### 116.1510(c)(l) and (c)(2) 

# -Dow suggests

### that 

### TCEO develop more 

### distance emission

### rate combinations to 

### allowBART-eligible sources 

### with emissions exceeding 

### 1,000tons peryear 

### ofcombined

### NOx and SO2 to

### be exemp't from BART enpineeringanalvses.


### Thereferenced citations provide only two distance-emissionrate combinations exemptingBART-eligible sources ofnitrogen oxides (NOx) and sulfur dioxide (Sa), 

### which are

### not de

### minimifi orelectric generating units, 

### from further BART 

### analysis. The largest distance consideredby TCEQforthe exemptions

### is 100 kilometers @er 

### 116.151 0 (c)(2))

### from the nearest Class 

### I aiea. Our BART-eligiblesources are located atleast700

### kilometersfrom thenearest Class 

### I, areas. Dow suggests thatTCEQ considercombiningSections 11 6.1510(c)(l) and (c)(2) and establishing a modelplant 

### approachper thefollowing equation: 

### "Any BART-eligible source satisfying the following condition:

where PTENo, -

### Potential-to-EmitforNitrogen Oxidestpy ; 

### PTEso;! 

## -Potential-to-Emitfor SulfurDioxide tpy ;

### and L 

### -Distance to the nearest Class 

### I area (kilometers) is not subjectto BART

### forNOx and SOz"

### Page 4 

### Alternatively, a singletablemay be developedforcombined Sections 1 16.1510(c)(l)and 

### (c)(2)toprovide exemption from further analyses forBART-eligible sources of NOx and SOz. We suggest that the table cover distances from 50kilometersto 1,000kilometersin 50-kilometer andlor 100-kilometerincrements and providing 

### an exemption fromfurther analysesfor largeBART-eligible sources.
Section 116.1510(~)(3) 

# -Dow suggests that TCEO develop

### some distance-emission rate combinations allowingBART-eligible sources of

### PMlo with emissions exceeding 15 tons per 

### Year to 

### be exempt

### fromfurther modeling

### or BART 

### eneineeriner analysis 

### reauirements.


### Theproposed regulation provide distance

## - emissionrate combinationsexemptionsfrom further BART analyses onlyforBART-eligible sources ofnitrogen oxides (NOx) 

### and sulfur dioxide (SOa), 

### but do not provide exemptionsfor sourcesof particulatematter with 

### an aerodynamic diameterless than or equalto a nominal 10micrometers (I'Mlo). 

### Our sources arelocated atleast700kilometers fromthenearest Class I

### areas. 

### Itis extremelyunlikely that certain BART-eligible sources of

### particulate emissions that are not De Minimis sourcesper $116.1510(c)(3)may create noticeable visibilityimpairments at distancesexceeding 100kilometersor more at anytransport conditions. Sections 116.1510(~)(1), (c)(2),and (c)(3) could be combined and 

### a singIetablemay be developed to provide exemptionfromfurtheranalyses for BART-eligible sourcesof 

### NOx, SOz, 

### and 

### PMlo. We suggest that thetable cover distancesfrom 50to 

### 1,000 kilometers to any Class 

### I areain 50-kilometerandfor100-kilometer increments. The de minimislevel for each pollutant may be easily incorporatedin the table. Section 116.1510(~)(3) 

# - Dow seeks 

### clarificationregarding.how 

### PMjonav

### be used as 

### an indicatorfor

### PM when assessinp

### BART 

### elipibilitv

### and the exemptionin Section 116.1510(~)(3). 

### Thepreamble associated with the

### proposed rule states: "Note thatparticulatematter with 

### an aerodynamic diameter less 

### thanor equalto a nominal 10micrometers'(PMlo) may be used as the 

### indicator for PM 

### when assessingBARTeligibility. We 

### are seekingkther clarification as to how the relationship between PM and PMloworks 

### in practice especially consideringthe 

### exemption provided 

### in Section 116.1510(c)(3). This exemption states

### that "Any BART-eligible sourcethat

### hasthepotential to emit less than 

### 15tons per year of particulatematter

### with an 

### aerodynamic diameterless than or equal to a nominal 10micrometers (PMlo)is not subject to BARTforPMlo." When evaluating the definitionof 

### aBART eligible source, 

### is it necessary to determine both the potentiti1 to emitfor PM and PMlo and 

### then compareboth to the 250 tpy criteria?

### Page 5

When evaluating the exemptionin 

### Section 116.1510(~)(3), 

### is itnecessary to determine both the potential to emitfor

### PM and 

### PMlo and then compareboth to the 15

### tpy deminimuslevel? For example,if 

### a 

### BART eligible source

### has the potentidl to emit26 

### tons per year of ParticulateMatter, but only 8

### tons per year of PMlo,it appears that the sourceisnot subject to BARTforPMlo. However,it

### isnot clear as to whether or notthe sourceis subjectto BARTforPM 

### in general. Section 116.1520(c)

# - The 

### submittal date ofA~ril30,2007 shouldbe extendedto allow adeauatetime for regulated entities to conduct and submitthe required 

### BART enpineering analyses. 

### Dow isconcerned about the short deadlinefor submittal of the "BART engineering analysis", and suggests amodest extension ofthe submittaldateto July 31,2b07. This 

### will allow ample time for BART eligible sources to conducttherequired BART engineering analyses and report the results to TCEQ. It is important 

### to note that this additional timing is 

### especiallycritical for larger plant sites where there can be multiple emission

### unitsthat constitute a BART eligible source, and that need to be analyzed individually. 

### In addition, modeling of the impacton visibilityimprovementat the Class 

### I 

### areas dueto proposed controlsis alsorequired 

### as apart 

### of this analysis, and the modeling exercise will

### also be time intensive. 

### This timing will still allow TCEQ ample timeto review the BART analyses

### and compile the BART emission reductionsto developtherequired Regional

### Haze 

### SIP by the December 17,2007deadhe. Section 116.1520(c)

# -Dow proposes that 

### TCEO provide flexibility regardingthe submittal 

### ofthe 

### BART analvsisunder

### seal 

### of a

### Texas licensed lorofessional 

### eneineer.
Dow proposes that TCEQrevise the proposed ruleto require submittal of theBART analysis under seal of a Licensedprofessional engineerif the BART engineering analysis 

### is doneby an independent consultant or 

### an independent engineering fm. 

### Similar

### to the NSR 

### permitting program, if 

### the BART engineering analysisisconductedby resources internalto the company that 

### arefamiliarwith 

### the equipment andprocesses involved, and the analysisfollows all 

### of the criteria outlined in

### proposed Section 1 1 

### 6.1520(a),Dow proposes that the BMTanalysisbeprovided directlyby the regulated entity, 

### and that submittalunder the seal of a P.E. 

### is notwarranted.10/09/2006 15:OO FAX


# Vinson

# &Elkins

Patrick~w pIee@velaw.com Te1512.542.8629 Fax 512236.3265



### October 9,2006 Lola Brown OfficeofLegal 

### Services,MC 205 Texas Commissionon Environmental Quality 

### P.O.Box 13087

. 

### Austin, ~exas 78711-3087 Fax: 

### 512.239.4808

. . 

### Re: Rule Project Number 2006-022-116-EN DearMs. Broyn, We are writing on behalf of El Paso Electric Company ("EPE") 

### to offer comments on the above-referenced 

### rulemakingproposal, which would amend Chapter 116 ofTCEQYs rules to 

### address visibility impairment caused by regional haze. EPE understands that TCEQ has 

### already determined using CAMx modeling that emissions from EPEYs facilities do not cause or contribute to visibility impairment at any Class 

### I area. Below, EPE suggests revisions to the proposed rules that would exclude from the 

### best available retrofit technology ("BART")



### . program its own and others' facilities already determined by TCEQ to not cause visfiility problems at Class 

### I areas, as well as several unrelated revisions EPE suggests for effective and efficient implementation of Texas' regional haze SIP. 

### Thank you for your careful

, 

### considerationofthese comments. Comment 

### 1: 

### The definition of "l3est availableretrofit t&hnology (BART)-eligible source" at proposed 30 T.A.C. $ 

### 116.1500shouldbe revised as follows: (I) Best available retrofd technology (BART)-eligible source-Ary emissions units that comprise an.v of thefollowing stationary sources of airpollutants, including any reconstructed source, that w

## were not in operation prior toAugust 7, 

### 1962, and w 

## were in existence onAugust 7, 

### 1977, and ke4 

### collectivelv have thepotential to emit 250 

### tonsper year (including figitive emissions to the extent quantifiable) of any visibilityimpairingair pollutant:

Vlnaon 8 Elkina* Attorneys st Law Austin Beijing Dallas Dubai 2801 Via Forhma, Suite 100. Austin. TX 78746-7568 Houston Lcndon Moscow NewYork Shanghai Tokyo Washington Te1512.542.8400 Fax 512542.8612 mmv.velew.com Austin 740089v.210/09/2006 15:OO FAX 

# -


# ve @I 003/012

Lola Brown October 8.2008 Page 2



### This amendment is needed to clarify that identificationof BART-eligible sources is done not on a site-wide basis, but on an 

### emissions unit basis, as indicatedby the four-step process set forth in 

### EPA's guidelines at 40 

### C.F.R. 

### Part 51, Appendix 

### Y, Section 11, "How to Identify ,BART-Eligible Sources:" Step 1: . 

### Identify the emission units in

### the BART categories, Step 2: 

### Identifythe start-updates ofthose emission units, 

### and Step 

### 3: 

### Compare thepotential emissionsto the 250 

### tonjyr cutoff. - 

### Final Step: Identify the emissions units 

### and pollutants that constitute the 

### BARTeligible source.


### In the preambIe to these guidelines, 

### EPA explained that it did not intend for States to find that 

### all emission units at 

### a site are subjectto the requirements ofthe 

### BART provisions if only onepart of the site was built within the 

### 1962-1977timeperiod.' Furthermore, emission

### units that are located at a BART-eligible source, but that are not in any of the 

### 26 BART source categories, should not be considered BART-eligible 

### units.2 Thus, under EPA's suggested approach, only those emission units that meet 

### the statutory and regulatory criteria(i.e.,

### within one or more of the 

### BART categories, placed into operation within the 

### 1962-1977 time window, and collectively 

### emitting >

### 250 tpy of 

### a single visibility-impairing pollutant) would constitutethe BART-eligible sourceandbepotentially subjectto the 

### BARTrequirement. Although TCEQ may have intended to adopt 

### this approach, the currentlyproposed ruIes do not sufficient explain how BART-eligible sources are identified. They only provide the following definitionof 'BART-eligible source:" (I) 

### Best available 

### retrofit technology @ART)-eligible source-Any of the following stationary sources of air pollutants including any reconstructed source, that was not in operationprior to August 

### 7, 1962, and was in exhtence onAugust 

### 7,1977, and has thepotential to emit 

### 250 tonsper year (includingErgitiveemissions, to the extent quantifiable) of any visibility-impairingair pollutant: 

# ' 70 Fed. Reg. 391 11 (July 6,2005).

70 Fed. Reg.39 110 (July 6,2005).

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### (A)fossil fitel-fired 

### steam electric plants ofmore than 250 

### million British thermal-units

### @TU)per hour heat input;

For 

### all other terms, the proposed rule incorporates the definitions contained in 40 C.F.R. 

## 5 51.301, which define "stationary source" and %uilding, structure, or facility" asfollows: 

### Stationary source means any building, structure, facility, or installation which emits or may emitany airpollutant. Building, sh.ucfure, or facility means all of the pollutant-emitting activities which beIong to the same industrial grouping, are locatid on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutantemitting activities must be considered as part of the same industrial grouping 

### if they belong to the same Major,Group (i.e., which have the same .two-digit code) as 

### described in the Standard Industrial Classification Manual, 1972 

### as amended by the 1977

### Supplement 

### (U.S. Government Printing Ofice stock numbers 4101-0066 

### and 003-005- 00176-0 

### respectively). Accordingly, under the literal meaning of proposed 30 T.A.C. 

## 5 116.1500, all emission units in the same industrial grouping at a plant would be considered the BART-eligible source, regardless of their individual construction dates. ..Thisapproach would render meaningless the applicability criteria specifically identified by s&te? rule4 and guidance.5 For example, without specifyingthat the analysis focuses on individual emission units, 

### an entireplant built 

### in the 1940scouldbe subjectto'the BARTprovisions if

### the owner added a new unit in 1975. The same would be true for 

### an entirely 

### modern plant built in 2006 at a site where there happens to exist an older unit inthe sameindustrial codd builtin the early 1970s. In ord&to properly implement the statutory and regulatory criteria for applicability of the BART provisions, proposed 30 T.A.C. 

## 5 116.1500 should be revised to incorporate the approach for identifyingBART-eligible sources suggestedby EPA hi

### its guidelines. 

# 'CAA 9: 1 69A(b). 40 C.F.R. 

### 9 51.301 (see definitionof "existingstationaryfacility'?. 

# '40 C.F.R. 

### Part 51, Appendix Y, Section 11, '%ow to IdentifyBART-Eligible Sources:''

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### Comment 2: 

### The definition of "visibility-impairing air pollutant" at proposed 

### 30' T.A.C. 

## 5 1.16.1500shouldbe revised 

### as follows: 

## . (2) Visibility-impairing air 

### pollutant-~ny 

### of thefollowing: nitrogen oxides, sulhr dioxide, or particulate matter. For the purposes of deteminiw whether a source is required to perform a BART anaZvsis,
* 

### PMIo may 

### be usedas the indicatorfirparticulate matter.


### EPA's guidelines, set forth at 40 C.F.R. 

### Part 51, 

### Appendix 

### Y, specificallyprovide that states may use PMloas 

### an indicator forparticulate matter in 

### determiningwhich sources'areBARTeligible. In fact, under Section 

### TI. of the guidelines ("How to Identify BART-Eligible Sources") EPA specifically recommends that statesnot 

### use total suspended particulates as an indicator for particulate matter. And, elsewhere 

### in its proposed BART rules, TCEQ refers not to "particulate matter," but to "PMld' (see 

### proposed 

## 8 116.1510(~)(3), stating, "Any BART-eligible source that has 

### the potential to emit less 

### than 15 tons per year ofparticulate matter with an 

### aerodynamic diameter less than or equal to 

### a nominal 10micrometers (PMlo) 

### is not subject to BART for PMlo."). Therefore, the definition of "visibility-impairing air pollutant" shouldberevised as 

### indicated.
Comment3: 

### Proposed 30T.A.C. § 

### 11 6.1510(d) shouldbe revised as follows: 

### (d) BART-eligible electricgenerating units participating in the CleanAir Interstate Rule Trading Program are not subject to the requirements of § 

### 116.1520or § 

### 116.1530ofthis


### This revision is needed to avoid the unnecessary application of BART for 

### PM'IO at electric generating 

### units ("EGUs") that comply with the Clean Air Interstate Rule ("CAIR"), which 

### has been determined by EPA to be a more effective regulatory mechanism for addressing visibility-impairing fine particles attributableto EGUs. 

### In developingCAIR, EPA concludedthat the best way to address

### fineparticles attributableto 

### EGUs, which impair visibility by scattering and absorbing light: is to control emissions of their chemical components, SO2 

### and 

### NOx,-not direct emissions of particulate matter.7 In

6 See e.g.,69Fed.Reg. 4574 (January30,2004), 70Fed. Reg. 39160 (July6,2006). 

# '69 Fed. Reg. 4582 (January30,ZOY).

Austin 740089v.210/09/2006 15:02 FAX 

# v&E Lola Brown October 9,2006 Page 5



### explaining its decision to not regulate direct emissions of carbonacwus substances (i.e., 

### organic compounds and soot), EPA explained, "the origins and effectiveness of alternative controls in reducing 'transported carbonaceous materials are particularly uncertain, and 

### our ability to identify and quantify appropriate measures is quite .~irnited."~ Furthermore, EPA 

### has specifically concluded (hiving undertaking extensive study of the issue) that CAlR achieves greater progress towards improving-visibility at Class 

### I areas 

### than does BART. Consequently, EPA has 

### determined that CAIR could be used by States as a BART substitute: and 

### has amended its BART rules to explicitly provide, 

# "[a] state that opts to

!

### participate in the Clean Air 

### Interstate Rule cap-and-trade program under part 96 

### AAA-EEE need notrequire affected BART-eligible EGUsto install, operate and maintain BART."'"


### In accordance with EPA's determination, TCEQ now proposes to exclude fiom BART those EGUs that are subject to CARbut only for SO2andNO,. But by limiting the exclusion to these two pollutants, TCEQ may force participating EGUs 

### in Texas to comply with CAIR and

### undertake BART analyses for particulate matter. This result cannot be reconciled with EPA's determination that fine particles attributable to EGUs 

### arebest regulated by reducing SO2and NO, emissions, which EPA 

### has already determined is best accomplished by CAIR, not BART. Requiring EGUs that are already subject to the most effective regulatory mechanism for addressingfine particulates (CAIR) to comply 

### with a decidedly less effective regulatory mechanism (BART) for the same purpose is wastefbl, and not likely to result in any appreciable improvement in visibility above and beyond what will be accomplished by CAIR. Finally, even if CAIR were not a more effective regulatory mechanism for addressing fine particulates, it would be inappropriate to count a participating EGU's annual SO2 and NO, emissions

### in determiningwhether the EGU shouldbe required to apply BART for PMlo. For example, consider a participating EGU with the following emissions profile: 500 tpy SO2, 

### 1500tpy NO, and 50 

### tpy PMlo. Under the rules as currently proposed, this source would be excused fiom undertaking any type of BART analysis 

### with respect to SO2 or NOx (because



### . they are addressed under CAIR). However, it would be required to undertake a BART ' 

### analysis for its relatively insigni'ficant 50 tpy ofPMlo emissions (becauseits cumulative PTE for all visibility-impairingpollutants is greater 

### than 250 tpy). While this result may or may not be appropriate fiom a policy standpoint for a non-EGU source with the same emissions

69 Fed.Reg.4583 (January30,2004). See e.g. 70 Fed.Reg. 39137 (July6,2005). 'O 40 C.F.R 

### 5 51.303(e)(4).

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### profile, it is entirely unsupportable for a participating EGU. Unlike the non-EGU source, an 

### EGU 

### with this emissions profile would

## not undertake 

### a BART analysis for its SO2and 

### NOx emissions, but would undertake a BART analysis for 

### PMlosolely 

### because of its substantial SO2 and 

### NO, emissions, which are being addressed not by BART, but under 

### an entirely different regulatory scheme. Although 

### EPE believes proposed 30 T.A.C. 

## 4 116.1510(d) is best revised as indicated earlier, this particular problem could be avoided with the following revision: (dl

# -

. . Electric generating units participating in the Clean Air Interstate 

### Rub TradingProgram are not subject to the requirements off 116.1520 orf 

### 116.1530 of this title for 

### NO, and S02, 

### and shall not count their emissionsofNO,and 

### SO? in determininawhether the source is BART-eliaibbforPM,". 

### Comment4: 

### Proposed 30 T.A.C. fj 

### 11 6.15 10 should be amended to include the following additionalexemptions: Any BART-eligible source that has the potential to emit less than 

### "Xtons per year of particulate matter 

### with'an aerodynamic diameter less than or equal to a nominal 10 micrometers (PMIo) and that is located more than 50

### kilometers from any Class1area is notsubject toBART for PMlo. Any BART-eligible source thathas thepotential to emit less than 

### "Y" tons per year of

### PMIoand that is located more than 100 kilometers$-om any Class

### I area is notsubject toBART for PMlo. ' 

### h these suggested exemptions, 'X" 

### and 

### 'T' are some amounts of

### PMloemissions that have 

### a negligible effect on 

### visibility at distances greaterthan 50 and 100 kilometers, respectively. This amendmentis needed to provide distance-based

### PMloexemptions comparable to those proposed for combined SO2 

### and NOx emissions (500 and 1,000 tpy 

### at 

### >SO and 100 

### lun, respectively). 

### Both ~ongress'' and 

### EPA'~ have made it clear that States should only require the application of BART at sourcesreasonably anticipated to cause or contribute to impairment of visibility 

# " CAA 5 169A(b) (42 U.S.C.A. 

### 9 7491). l2 40 C.FX 

### R. 51.308(e).

Austin 740089v.2

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Lola Brown October 9,2006 Page 7



### at a Class I 

### area. "Visibility impairment" is defined by EPA as a "humanly perceptible change in ~isibility,'''~andby TCEQ 

### as an impact greater

### than 0.5 deciviews." Having 

### categorically determinedthat emissions below certain lbvels will not cause 

### an impact

. . 

### greater than 0.5 deciviews at certain distances .from 

### Class 

### I areas, TCEQ 

### has proposed to . 

### establish distance-based categorical exemptions for SO;! 

### and NOx. 

### This approach is appropriate, as so many sources 

### in Texas are located great distances fiom the few Class 

### I areas 

### in and surrounding the state, apd one need not perform individual modeling to definitively conclude,that, say, 

### a 700.tpysource in Corpus Christi will not have a 

### 0.5 deciview impact in Big Bend. Because it will save the regulated community and Agency

, 

### personnel significant amounts of time and resources, and because it is perfectly consistent

, . 

### with Congress' and EPA's vision for implementation of the'

### BART requirement, this .approachshouldbe followed withrespect to not only

### NOxand 

# Sa, but also 

### PMlo.
Comment 

### 5: Proposed 

### 30 T.A.C. 

## 8 1

### 16.1510(b)should be revised as follows: (b) 

### The owner or operator ofa BART-eligible source may 

### demonstrate, using a 

### model and 

### modeling guidelines approved by the eem&sk 

### executive director, that the source $ 

### emissions do not cause or contribute to visibility impairment at a Class I area. A BART-eligible source that does not cause or contributeto visibility impairmentat any Class I area is not subject to the requirements ofJ 

### 116. 1520 or 

### J 116.1530 

### of this title (relating to Best Available Retroft Technology (BART) Analysis and Best Available Retrofit Technology(BARlJ Control Implementation). A source is considered to cause or contribute to visibility impairment 

### if it causes a visibility impairment ofgreater than 0.5 

### deciviews at any Class 

### I area. The modeling demonstration must be submitted under seal of a 

### Texas licensed professional engineer and must be received by the commission

### Is Air Permits Division no later thanApril 30, 2007. Replacement of the reference to "the commission" with a reference to "the executive director" is needed because it 

### will be the executive director's delegates, 

### the Agency's modeling experts, not the Commissioners themselves, who wiIl be evaluating and approving the model and modeIing guidelines used. The suggested revision will maintain consistency

l3 40C.F.R. 

### 5 51.302 (emphasis added). "Proposed 30 T.AC. 

### 5 116.1510.

Austin 740089v.210/09/2006 15: 03 FAX 

# v&E Lola Bmwn Oclober B. 2006 Page 8



### with other parts of Section 116 in which "the executivedirector" is used to collectivelyrefer to the executive director and his technical staff, 

### and "the commission" is used to 

### refer to the threemember commissionitself.
Comment 

### 6: 

### Proposed 30 

### T.A.C. 

## 5 116.15lo(%)shouldbe fiutherrevised as 

### follows:

. . (a) 

### The owner or operator ofa BART-eligible source may demonstrate, using a model and modeling guidelines approved by 

### the executive director, that the source 's 

### emissions ofa visibilitv-imuairina vollutant dm not cause or contribute to visibiliv impaiment at a Class

### I area. 

### A BART-eligible source that does not cause or contribute to visibiliiy impairment at any Class I 

### area with respect to anv visibilitv-im~airinz pollutant is notsubject to the requirementsof

### J II6.1520or f 

### 116.1530 of this title (relating to BestAvailable Retro$t Technology (BART)Analysis and Best Available Retroft Technology (BART) Controlhplementation) for thatpollutant. A source 's 

### emissions of a visibilitv-imwairin vollutant are is 

### considered to cause or contribute to visibility impairment if 13 

## - 

# - thm cause 

### a visibility impairmentofgreater than 

### 0.5 deciviews at any 

### Class

### I area. The modeling demonstration must be submitted under seal ofa 

### Texas licensedprofessionalengineer and must 

### be received by 

### the commission'sAir PermitsDivision no later thanApril 

### 30,2007. 

### These revisions are needed .to clarify that a BART-eligible source demonstrating that its emissions of a particular visibility-impairingpollutant do not cause or contributeto visibility impairment at a Class

### I areaisnot required to perform a 

### BART analysisforthat pollutant. Proposed 

## 5 116.151 O(c)(l), (2) & 

### (3) 

### provide pollutant-specific exemptions from the requirement to perform BART analyses based on the degree of emissions and 

### the distance 

### from Class 

### I areas (e.g.,

### sourceslocated greater

### than 50 

### km from a 

### Class 

### I source and with 

### a PTE of less 

### than 500 tpy SO2

### and NO, are excluded fiom BART for SO2 and 

### NO,, sources with a PTE of less 

### than 15 tpy 

### PMloemissions are excluded from BART for PMlo, etc.). These exemptions are based on a 

### presumption (albeit 

### a valid one) that emissions of a particular pollutant(s) will not cause or contribute to visibility impairment. If a 

### source affirmatively 

### demonstrates, using modeling approved by the executive director, that its emissions of 

### a particular pollutant(s) will not cause or contributeto visibilityimpairment, it should qualify for the same type of pollutant-specific exemptions provided at proposed 

## 8 1

### 16.151 

### O(c)(l), (2) & 

### (3).

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### This suggested revision would have significant practical benefits, as 

### it would focus sources'

. 

## . and 

### the Agency's attention, on reducing those emissions that actually do affect visibility 

### in' Class 

### I areas. As confirmedby CAMxmodelingrecentlyperforrned.byTCEQ for all 

### BARTeligible sources, for many sources, BART eligibility is driven by emissions of just one visibility-impairingpollutant, and not the others. Consider, for example, a sourcethat has the potential to emit 2,000 tpy SOz and' 1000 tpy of NO,, but only 

### 50 tpy of PMlo. For this source, modeling might indicate 

### that its SO;! emissions and NOx emissions, by themselves, result in a > 

### 0.5 deciviewimpact at nearby Class I 

### area, but that its 

### PMloemissions do not. Because the source can adequately demonstrate that its PMloemissi0.m cannot "reasonably be anticipatedto causeor contribute to any impairment ofvisibility in 

### any mandatory Class 

### I Federal area,"'5.perf~~ance ofa BART analysis for this pollutant would be wasteful and inappropriate. - .-- --- 

### For another example, consider 

### an EGU participating 

### in the CAR trading program. As explained above 

### in Comment 

### 3, 

### EPE believes that participating EGUs should be entirely excluded from the BART requirements. However, under the rules as currently proposed, partiiipating EGUs would be excluded for SO2 and 

### NOxonly, and would still be subject to the BART requirements for PMlo. EGUs with relatively minor (but still greater than 

### de minimis) PMloemissions that are distant from Class 

### I areas should be able to demonstrate through modeling that 

### their 'PMlo emissions do not "cause or contribute" to visibility impairment, and that, under 

## 8 116.1510(b), a BART analysis for 

### PMlo is therefore not needed. Any other construction of the proposed rules would require all participating EGUs to illogically model the combined emissions ofNO,, SO2and PMloto determine whether a 

### BART analysis should be performed for PMlo, the only pollutant for which the BART requirements apply.
Comment 7: 

### Proposed 30 T.A.C. § 

### 116.1510(b)shouldbe further revised as follows: 

### (b) The owner or operator of a 

### BART-eligible source may demonstrate, using a model and modeling guidelines approved by the executive director, that the source's emissions of any or all visibility-impairing pollutants do not cause or contribute to visibilityimpairment at a Class

### I area. A 

### BART-eligible source that does not cause or contribute to visibility impairment at any Class 

### I area with respect to any visibiliqIs 40 C.F.R.$ 51.308(3);see also CAA $ 169A(b) (42U.S.C.A. $ 7491).10/09/2006 15:04 FAX

Lola Brown October D, 2006 Page 10



### impairing pollutant is not subject to the requirements of

### $1 16.1520 or 

### J 116.153

### 0 of this titIe (relating to Best Available Retrofit Techno Iogy (BARDAnalysis and Best Available Retrofit Technology @ART) 

### Control Implementation) for thatpollutant. A source's emissions of a visibilityimpairingpollutant are considered to not cause or contribute to visibility impairment $ 

### as demonstrated bv modelinaperformed 

### bv the executive director orperformed in accordance with the aridelines apuroved by 

### the executive director, they cause 

### a visibility impairment of

### & than 

### 0.5 deciviews at any Class

### I area. The modeling demonstration must bi submitted under seal of a 

### Texas licensed professional engineer and must be received 

### by the commission'sAir Permits Division no later thanApril 

### 30,2007.



### . Thisrevision clari6esthat modeling performed by a sourcein 

### accordancewith the guidelines approved by the executive director, or by TCEQ itself, is sufficient to demonstrate that a 

### sourcedoes not cause or contributeto visibility impairment at a Class 

### I area for the purposes of determining whether a 

### BART analysis 

### will be required. It is needed to avoid potential disputes about whether a BART analysis is required for 

### a particular source when modeling performed 

### in accordance with the specific guidelines developed by TCEQ for this purpose shows 

### a 

### < 0.5 

### deciview impact, and modelingperformedby a third party using protocols or techniquesnot approvedbyTCEQfor thispurpose shows

### a >

### 0.5 deciview impact.
The 

### revision is also needed to recognize the CAMx modeling TCEQ recently performed, which showed that emissions of specific visibility-impairing pol1utants fiom many BART I 

### eligible sources will not cause a 

### >

### 0.5 

### deciview impact at any Class 

### I area Because TCEQ has already determined that those emissions do not "cause or contribute" to visibility I I 

### impairment, firther modeling of them by individual sources 

### is unnecessary, and would constitutea significantof waste of

### both the sources' and the Agency's modeling staffstime andresources. Thank 

### you again for your consideration of these 

### comments. We would welcome the opportunity to discuss them 

### with you or your colleagues. 

### If you have any questions, please 

### call me at 

### 5

### 12.542.8629.

Austin 740089v.2

# 1 10/09/2006 15:04 FAX

Lola Brown October9,PM)G Page 11

L/



### Patrick Lee

cc. 

### Mr. Luis

# to, ~l~aso 

### Electric 

### Co. 

### Ms.LauraUribarri, 

### El Paso Electric Co.

Austin 740089v.2I 

# SIERRA Houston Regional Group .p.,orBm921 

### HW. 

# CLUB ,f 

### http://texas.sierraclub.org/houston/ 

### 7lM952U09 FOUNDED 1892 ,- 

### September 8, 2006 Ms. Lola Brown Office of Legal Services MC 205 Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 7871 1-3087 Dear Lola, Enclosed are the corr~ments of the Houston Regional Gro1.1~ of the Sierra Club (HSC) regarding the Texas Commission on Environmental Quality's (TCEQ) proposal for a new 116.1500, 116.1510, 116.1520, 116.1530, and 116.1540 for Best Available Retrofit Technology (BART) eligible sources to partially address regional haze problems. 1) The HSC is concerned that TCEQ apparently is satisfied with the 57-year implementation timeframe that the U.S. Environmental Protection Agency (EPA) has set for complete visibility reductionsfor Big Bend and Guadalupe Mountains National Parks. Since these parks are insidethe State of Texas and are part of our natural heritage and the legacy that we pass on to our children it seems ironic at best that TCEQ is satisfied with a clean air implementation date that will occur so far in the future that we will be dead; our children will be elderly; and our grandchildrenwill be middle age. Where is Texas pride and our can-do spirit? Where is the "Don't mess with Texas" attitude? Why cannot I, before I die, view Big Bend National Park and Guadalupe Mountains National Parks and see the vast 80-120 mile vistas that are natural and once were common in these marvelous examples of Texas beauty and natural wonder? The HSC is positive that the installation of BART should not take 57 years to complete. The HSC urges the TCEQ to go beyond the "minimalist regulatory" policy that it is proposing and ensure that the scenic vistas of Big Bend and Guadalupe Mountains National Parks are restored no later than 2020 (14 years from now).

"When we 

### uy topick out an+g 

### by itself, we 

### findit hitched to everydung else in the universe." John uir
Prinred on 100% Kenafnee freepaper 

# Y

### 2) The explanation of the proposal found in the rules is incomplete. A statement is made that 127 sources may have to conduct the BART analysis. However, TCEQ does not provide a list of these sources, does not have a map where they are located geographically, and does not provide the amounts of nitrogen oxides, sulfur dioxide, and particulate matter that they emit. The HSC has been told by TCEQ staff that no one in Texas and the nation knows what level of BART control (percent control) will be required for these sources as a whole or individually. We were also told that no one knows what control equipment constitutes BART. The public cannot review the adequacy of these rules and how much they will reduce visibility obscuring pollutants when we do not know what BART is and what percent control is required to return clean air to Texas's national parks. TCEQ does not tell the public the amount of visibility obscuring pollutants, individually and in total that Texas sources emit and the expected reduction that will occur from these r~~les versus sources of emissions that are outside Texas, including those in other states and in Mexico. All of this information is important and should not just be in the Regional ~aze SIP that will be out in a year but should be described 

### in the rule proposal so the public has an overall understanding of how these rules w~ll work and reduce emissions. 

### 3) The HSC is puzzled by the sequence that TCEQ is following regarding this Regional Haze State Implementation Plan (SIP). The HSC is used to commer~ting on a SIP and the rules that implement the SIP at the same time, since both are released together. These BART rules are being released without an SIP so the public is not able to cross reference both documents and determine whether the rules accurately and adequately implementthe SIP. With BART the rules come before the SIP so this review, comment, and analysis cannot be done. The public needs both documents to review, comment on, and understand. The HSC understands that late in 2007 the Regional Haze SIP will be released I 

### and that 'the BART rules will be part of that package. However, by that time I 

### BART engineering evaluation, analysis, and modeling will be complete and the public will have lost an opportunity to compare the rules and SIP before implementation of BART analyses. This is a 

### case 

### of putting 

### the cart beforethe horse. 

# I 4) The HSC is concerned that TCEQ has eliminated volatile organic conipounds (VOCs) as visib~lity obscuring pollutants. We believe that the role VOCs play in the formation of ozone, other VOCs, and particulates demonstrates that they should be included on the list of visibility obscuring pollutants that will be reduced

### by implementation of BART. We urge TCEQ to list VOCs as Visibility impairing air pollutants under 116.1500(2). 5) 

### It is disturbing that in the July 21, 2006 Commission Approval for Proposed Rulemaking for BART (Docket No. 2006-0228-RUL), it states, "The rules would require some review of the 

### BART engineering analyses and exemption modeling claims. 

### These reviews will be conducted by the Air Permits Division with support from the Air Quality Planning and Implementation Division. 'The BART analyses and modeling will be subrnitted under the seal of a licensed professional engineer, so a detailed review of every submittal is not necessary. 

### The Air Permits Division anticipates that these reviews will be done on a spot check or targeted audit basis. No additional full-time equivalents are required. 

### There will be no significant changeto revenues." TCEQ then states in the rule proposal explanation, Fiscal Note: Cost to State and Local Government, "The agency will be requiredto review modeling and engineering analyses to verify that they meet federal guidelines and are technically correct. Staff anticipates that these reviews can be done with existing resources." 

### The HSC is outraged that TCEQ assl-lmesthat just because a BART analysis and modeling are subrnitted under the seal of a professional engineer that it does not haveto conduct a "detailed review" of every submittal. Engineers are human and make mistakes. The HSC has seen errors many times in TCEQ permits over the years. TCEQ must "Trust, but verify" each and every submittal in a detailed manner to ensure that all calculations are correct and all statements are backed-up by factual information. The professional engineer works for the company who wants the permit and hislher allegiance is to the person that pays hislher salary not to the public as is the case with TCEQ. The HSC was told by TCEQ staff that the reason that not all of these BART submittals would be fully reviewed was due to the lack of time and personnel to do this work. Therefore the statement above is misleading at best and should be changed. Texas's naturalheritage is at stake and nothing less then the best, detailed,.and complete analysis will do to.ensurethat our air and Big 

### Bend.and.

. . 

### Guadalupe National Parks a're protected. 6) 

### Under 116.1510(b), 

### the HSC was told by TCEQ staff that the 0.5 deciviews threshold was stringent. However, the problem isthat no one knows if this is true until BART is applied. TCEQ should ensure that it revisits the 0.5 deciview threshold after BART has been applied. 7) 

### Under 116.1510(c), 

### the "records sufficient to demonstrate compliance with the exemption criteria1'that are maintained by the ownerloperator should be made available to the public. The public has the right to see and obtain a copy of the

### documents that are the basis for an exemption that was granted by TCEQ.. This right of public access to these documents should be written into these rules. 

### 8) Under 116.1510(c)(l) and 

### (2), the distances 

### 31.05 and 

### 62.1 miles appear to be too close to Big Bend and Guadalupe Mountains National Parks to not have an influence, either individually or cumulatively, regarding visibility obscuring pollutants. The HSC recommends that greater distances be required before an exemption is allowed. 9) 

### Under 116.1510(~)(3) and 116.1520(b),

### TCEQ does not take into account the cumulative impacts that many exempted sources plus non-exempted sources 

### will have on visibility. There should be some type of c~~mulative effects analysis in these rules that ensures that exempted and area sources do not lead to delays in reducing visibility obscuring pollutants or cause a failure to meet visibility timeframes. 10) Under the Draft Final Modeling Protocol, Screening Analysis of Potentially BART-Eligible Sources in Texas, on pages 

### 1-6 and 4-1, 

### the HSC does not agree with U.S. EPA that complying with the Clean Air Interstate Rule

! 

### (CAIR) will necessarily result in'sufficient sulfur dioxide and nitrogen oxides reductions to meet the Regional Haze visibility requirements. 11) Under the Draft Final Modeling Protocol, Screening Analysis of Potentially BART-Eligi ble Sources 

### in Texas, pages 

### 1-7 and 

### 3-3, regarding VOC contributions to regional haze, it is our understanding that work conducted by the National Park Service found that air pollution from the Texas Gulf Coast, near Houston, was responsible for a portion of the visibility problem in Big Bend National Park. If this is the case then VOC reductions would seem appropriate since large amounts of VOC are emitted and travel with sulfur dioxide and nitrogen oxide emissions. 12) Under the Draft Final Modeling Protocol, Screening Analysis of Potentially BART-Eligible Sources in Texas, page 3-3, 

### the HSC does not support waiting until the eighth highest 24-hour visibility reading before deciding whether regional haze is at ul-racceptablelevels. 13) The HSC is also concerned about what will happen if the TCEQ Regional Haze SIP does not show sufficient visibility air pollutant reductions due to transboundary emissions from other states. There apparently is no guidance or direction from EPA about how attainment will be obtained in such cases. The HSC agrees that each state must reduce its share of visibility air pollutants for its own state's Regional Haze SIP. The.HSC also agrees that when one state affects the attainment of the Regional Haze SIP of a second state then the first state must reduce its visibility air pollutantsto assist in attainment of the Regional Haze SIP of the second state.

### The HSC appreciates this opportunity to comment. Thank you. A 

### Sincerely,


## --- Brandt Mannchen, Chair, 

### .AirQuality Committee Houston Regional Group'ofthe ~ielra Club 5431 Carew Houston, Texas 77096 713-664-5962

. 

### brandtshnfbt@iuno.comSOURCE ENVIRONMENThL:

~ 4100

### WIE R, SUlTZ 106 

# S OURCE- HOzT*S 77027 Gmsil: s0me@3pdq.net Phonc (713) 621-4474 ENVIRONMENTALSCIENCES,

### MC. 

### Fax (713) 6214588 

# * WATER 

# * WASTlECONSULTANTS
September21,2006 

### Lola Brown 

### MC 205 

### Offoe of

### Legal Services Texas

### CommissiononEnvironmental Quality P.O. 

### Box 13087 Austin, Texas 

### 7871

### 1-3087 Subjeot: 

### Comments 

### onProposed

### Rules 

### forBest

### Available

### RetrofitTechnology 

## (BART) Dear

### Ms. Brown: Sed 

### nnu regulations proposed 

### for inclusion 

## in Title 

### 30 Chapter 116 

### of 

## the Texas 

## Administrative Code (30

## TAC $116) 

### were presented 

### in the 

### Texas 

### Register

### pub1'Ishe.d

## on August 

### 25,2006. These 

### regulationsconccm t$e

### control 

### ofair

### polldon

## by permits for

### newconstruction or

### modification, specificallywith

### regard to

### BestAvailableRetmfit Technology (BART). 

### One of the 

### proposed 

### rquhments 

### concerns

### us, and therefore

### we arepvidingthe 

### followingcommmts. 

### As presented 

### inthe Texas 

### Register, 

### 30 

## TAC

# 5116.1 

### 510(b) 

### resds:
"The 

### owner or operator of 

### a BART~ligible source may 

### demonstrate, using a 

### model 

### and modelingguidelines

### approvedby the commission,

### that the 

### source does 

### not

### caw

### or contribute to 

### visibility impairment 

### in n 

### Class

### I area" 

### The regulation.

### continues,

### andthelastsentence 

### of 

### 30TAC 

### $1 

### 16.1 SlO(b) reads: 'The 

### modeling 

### demonstration

### must be 

### submitted under 

### seal of a 

### Texas 

### licensed professional engineer 

### and must 

### be received by the 

### commission's 

### Air Permits 

### ~Didsion-no-later-th~A~3~007~~'
Wehave two 

### suggestions regarding 

### this requirement. First, 

### we: believe 

### that 

## the term 

### "model"

, . 

### should 

### be clarified to 

### specify 

### "air 

### dispersion 

### model" to be 

### consistent 

### .with 

### other Texas 

### Commission

### onEnviro~xncntal Quality

### PEQ) rules, regulations, and 

### guidelines. Please see 

### 30 TAC 

## 9116.1 1 

### 1

### (a)(2)(J) for 

### an

### example. 

### The first 

### sentence of

### 30 

## TAC 41

### 16.1510(b) 

### would now read: 

### "The owneror operator ofa

### BART-eligible source 

### may demonstrate, 

### using 

### an air dispersion mdel 

### and air dispersion modeling 

### guidelines approved by the 

### commission, that

### the source does 

### not cause 

### or contribute 

### to visibility 

### impairment in a 

### Class 

### T area7'SOURCE ENVIRONMENTAL ... PAGE 03



### Second,we 

### are concerned

### about the 

### requirement

### forthe 

### modeling

### demomtrationto 

### be submitt& 

### under seal 

### of a 

### Texas 

### licensed professional engineer. 

### Modeling for air 

### quality 

### permits 

### is generally performed 

### by persons 

### with trainhg 

## in atmospheric 

### sciences 

### and/or meteorology, as 

### well as 

### engineering. 

### There are 

## no existing TCEQ des

### or regulations that 

### require sealing 

### of an air dispersionmodeling reportby 

### a

### Texas licensed, 

### professional engineer. 

### Further, modeling 

### demonstrations are reviewed

### by 

### the TCEQ Emissions 

### Banking and Modeling Team 

### (EBMT). 

### The validity 

### of 

### ary 

### modeling demowtmtion

### and the accuracy 

### of the 

### modehg 

### results 

### are assessed 

### by the 

### EBMT. The 

### placement of a 

### prerequisite qualification

## on those 

### who submit a 

### modeling 

### demonstration is 

### unnecessarily restrictive since 

### the: demonstration 

## wiU be 

### reviewed. 

### By virtue of thc technical revim 

### process, 

### all modeling 

### demonstrations 

### (or even 

### air 

### permit applicationsand 

### permitby rule 

### certifications for that

### matter) 

## are evaluated for validity. Though it can 

### be reasonably 

### expected that a Texas 

### licwed

### professional 

### engineer would be 

### qualified to 

### understand 

### and submit a

### modeling demonstration, 

### such 

### an expectation could also 

### be 

### made 

### for a degreed

### rneteorologi& However, a

### requirement to have a

### modeling

### demonstration 

### submitted by a 

### degreed 

### meteorologist 

### would also 

### be 

### unnecessarily restrictive. 

### Ultimately, the 

### modeling demonstration 

### is assessed 

### by the 

### EBMT, independent of 

### the qualifications 

### of the party who snbmitted 

### it. Whethcr the 

### submitting party 

### has a 

### high sohool 

### diploma, a 

### Bachelor's 

### Degree 

### in British Literature, 

### or a 

### Ph.D. 

### in Atmosphcxic Sciences, 

### applications are 

### all reviewed under 

### the same 

### guidelines with the 

### same 

### scrutiny. The 

### emphasis is

### on the 

### submission itself, not 

### on tile 

### qualifications 

### of the 

### submitting 

### party. Therefore, 

### we suggest 

### that the 

### requirement for a 

### qualification

### be removed so 

### thatthelast

### line of 

### 30TAC 

## 9116.15 lo@)

### reads: "The 

### modeling demonstration 

### must be 

### received by the 

### commission's

### Air Permits 

### Divisionno later

### thanApril 

### 30,2007." 

## We appreciateyour consibationof

### these comments, 

### andwe

### welcome the oppodty 

### to 

### discuss 

### themfbrhr. 

### Ifyou have 

### any 

### questions, please

### donot 

### hesitateto contact

### us 

### at 

### (713) 621-4474. 

### Sincerely,



## .. Source 

### Environmental Sciences, 

### Inc.

### Brown

# I McCarroli L.L.P. 111 Congress Avenue, Suirc 1400. Austin, Texas 78701-4043 512-472-5456 fax 512-479-1101 direct (512) 479-1125 ~ohnson@nailbmc.com 

### October 9,2006 

### VIA 

### ELECTRONIC MAIL AND

## HAND DELIVERY Ms. Lola Brown 

### Office of

### Legal 

### Services (MC-205) Texas Commissionon Environmental Quality 

### 12

### 100

## Park35 North Building

### A, 1 

### st Floor Room 

### 63 1 Austin, Texas 78753 

### Re: Texas Chemical Council Comments onthe 

### TCEQProposed Rule for Best Available Retrofit '1-ethnology 

### (BART) Rule Project

### Number 2006-022-

### 1

### 16-EN Dear Ms. Brown: Our client, the Texas Chemical 

### Council (TCC), appreciates the opportunity to comment on the proposed Chapter 

### 116 amendments intended to 

### address visibility impairment at 

### federal Class 

### I areas. TCC 

### has member companies 

### appearing on 

### TCEQYs BART (Best Available Retrofit Technology) eligible source listing. The sources 

### potentiallyBART 

### eligible are major stationary sources, including reconstructed sources, from one of 26 identified categories, which have the potential to emit 

### 250 tons per 

### year or more of 

### any visibility-impairing air pollutant, and 

### which were placed into 

### operation between August 7, 1962 

### and August 7, 

### 1977. TCC understands that TCEQhas conducted additional modeling to further

### refine the 

### BART eligible list. According 

### to TCEQ, sources that remain on the BART eligible list will have to 

### qualify for one of the model plant exemptions or conduct additional modeling or a 

### BART engineering analysis for 

### the impacted emission sources. 

### TCC offers the attached comments for consideration by 

### TCEQ, and in addition to the specific comments, TCC 

### also registers 

### its support for comments anticipated to be filed by 

### the Texas Oil and 

### Gas Association. Please contact Mr. Hector Rivero, President, Texas Chemical Council, at 

### (512) 646-6401 or 

### Mi. Russell Wozniak of Thc 

### Dow Chemical 

### Company at 

### (361) 

### 553-2920 ifyou 

### have any questions regarding these comments.

Attachment 3822709.1 10296.77208

Austin Dallas Houston

# - Longvicw El Paso

### Ms. 

### Lola 

### Brown October 9,2006 

### Page 2

cc: Margaret 

### Earnest, 

### TCEQ 

### Hector Rivera;

### TCC 

### ChristinaWisdom, 

### TCC RussellWozniak, The 

### Dow Chemical 

### Company

## Texas Chemical Council 

## Comments on 

### Proposed 

## Changes to 

## 30 

## TAC 116 Rule 

### ProjectNumber 2006-022-116-EN The comments of the Texas Chemical Council (TCC) 

### are organized by 

### regulatory citation in the proposed rules. Theregulatory citationis provided first, followed

### by our comments.
Section 116.1500(2) 

# -TCC 

### sup~orts the definition of "visibility-impairingpollutant.'' 

### TCC supports the proposed definition 

### of visibility impairing pollutant, which includes nitrogen oxides, sulfur dioxide,orparticulate matter. It 

### is inappropriate to include

### VOC and ammoniain the definition, until and unless TCEQ develops evidence of significant impacts on visibility from these air 

### contaminantsand subjects that 

### evidencetopeer review and 

### public notice and 

### comment.
Section 

### 116.1510(b\ 

# -TCC stronplv suggests inclusion 

### of additional simnle 

### screen in^ tools for evaluationofvisibilitv impairmentat Class 

### I areas. 

### TCEQ is consideringthe approval 

### of CALPUFF and 

### CENRAP BART Modeling Guidelines as 

### tools for 

### BART Exemption Modeling, and is seeking comments on other appropriate modeling approachesfor

### BART. The 

### distance to the 

### nearest 

### Class 

## X area from 

### many 

### of 

### our member company facilitiesexceeds 700 

### kilometers. In our opinion, it 

### is extremely unlikely that emissions of

### NOx, SOz, 

### or 

### PMroare creating visibility impairmentsof

### 0.5 deciviewsor greater. CALPUFF modeling setup 

### and 

### execution requires 

### prolonged time 

### and extensive resources. Collection and pre-processing of the meteorological, terrain, and receptor data from each appropriateClass 

### I area may take days or weeks. Per

### the TCEQ estimations of fiscal impacts on each BART-eligible source (as provided in the InterofficeMemorandum DocketNo. 2006-0228- RUL), exemption 

### modeling expenses will range 

### fiom $5,000 to $20,000 for a 

### site. 

### TCC considersthese estimates 

### Iow; Site-specific modeling could 

### be as much 

### as two to five times 

### the costs suggestedby TCEQ. More cost effectiveand easier-to-complete screeningtool alternatives are 

### requested.
Section 

### 116.1510CbS 

## -TCC su~gests 

### that the 

### frnal 

### rule confirm that 

### no 

### additionaI modeling is 

### needed if 

### the results of the 

### prescreening survey show 

### that no 

### additional analyses are 

### needed for

### PM or 

### SOXand 

### NOx. TCEQ has 

### provided the high-leveI results of the 

### prescreening modeling ms. A 

### table is presented which defines whether 

### further analyses are needed 

### for 

### PM (andpresumably PMlo)and 

### SOX,and NOx. 

### The relationship between the results ofthe prescreening modeling runs and 

### the proposed rule is 

### unclear. TCC suggests that 

### ifthe 

### prescreening analysis showsthat no additional analysis is 

### needed for an 

### air contaminant, then the 

### owner/operator be 

### clearly excluded 

### fiom the requirementto submit additionalmodelingunder Section 116.15lo@).

### Page 

### 2



### If the prescreening 

### modeIing output shows that additional analyses are required, 

### TCC also suggests that the model plant exemptions in Sections 

### 1

### 16.15lO(c)(l 

# -3) 

### remitin available in lieu ofproviding 

### exemption modeling or a 

### BART 

### engineeringandysis.
Section 116.1510Cb) 

## - BART 

### Exem~tion Modeling

# -TCC 

### requests clarification

### that only 

### a 

### ,minimalnumber 

### of Class

### I areas

### should 

### be evaluated

### forBARTExemption Modeling. The

### proposed TCEQ 

### rule does not specifyhow many 

### Class 

### I areas are 

### to be considered for a sitespecific exemption 

### modeling. TCEQ's guidance 

### document titled, 

### "Best Available Retrofit Technology ModeIing Protocol to Determine Sources Subject to BART in the State of Texas," states that "Sources conducting the source-specific subject-to-BART screening analysis should include all Class I 

### areas that the ENVIRON screening evaluation showed their 

### source group to have 

### impacts greater than 

### 0.5 

### dv on visibility." Currently,the detailed results of the 

### ENVIRON screening evaluation have not been made available 

### to the regulated community, 

### so 

### it is not possibleto determinehow many Class

### I areas need to be evaluatedin more detail. Evaluation of 

### multiple Class I 

### areas would be a burdensome activity for the regulated 

### community. 

### Per the 

### TCEQ estimations of the proposed rule fiscal impacts on BART-eligible sources 

### (as provided 

### in the Interoffice Memorandum Docket 

### No. 2006-0228-RUL), exemption modeling expenses will 

### range fiom $5,000 

### to $20,000 

### for 

### a site. Such an estimate

### may not even cover a 

### CALPUFF sctup 

### and cxccution cost for a singlc source 

# - Class I 

### area 

### combination. Modeling 

### of multiple Class 

### I areas may 

### significantly increase 

### the cost 

### and complexity of the modeling. TCC suggests 

### that TCEQ 

### should make these 

### results available to 

### the regulated community as 

### soon as practical and re-open pubIic comment upon releasing the information. Specifically, we note 

### TCEQ will hold 

### an additional public 

### meeting in November and request those comments be included as

### part of the official comment period. In addition, provisionsmust be 

### included in the rule or 

### in associated guidance that specify 

### the number of modeling runs 

### sufficient to 

### exempt a 

### sourcefrom the 

### BARTEngineering 

### Analysisrequirements. 

### Section 

### 116.1510(b) 

## - The submittal date 

### of April 

### 30, 2007 should be extended to allow adequate time for regulated entities to conduct 

### and 

### submit modeling 

### to show that the source does not 

### cause or

### contribute

### to visibility 

### impairment. TCC 

### is concerned about the short deadline for submittal of the "exemption modeling," 

### and suggests 

### a modest extension of the submittal 

### date to July 

### 31, 

### 2007. This 

### will allow ample time for BART-eligible sources to 

### canduct the 

### modeling analysis and 

### report the results to TCEQ. 

### This 

### timing should also allow TCEQ 

### ample time to review this information and 

### develop the 

### required Regional Haze 

### SIPby the December 17, 2007deadline.

### Page 

### 3

Section 116.1510(b) 

# - TCC suggests that the provision requiring exern~tion modeline; demonstrations to be submitted under seal of a 

### Texas licensed ~rofessional engineer be removed from this section. 

### The proposed rule reads that ''the modeling demonstration must be submitted under seal of a Texas licensed professional engineer." Texas professional engineer licensingprocedures 

### do not require extensive, in-depth 

### knowledge of 

### CALPUFF or 

### CENRAP 

### BART ModeImg Guidelines. Air dispersion modeling 

### skilIs and 

### understanding do 

### not necessarily require 

### in-depth knowledge of engineering principles necessary to complete a 

### BART engineering analysis andlor 

### BART control implementation. Many excellent companies invoIved in 

## CALPUFF modeling, which could be 

### contracted for this work, are located outside the State 

### of Texas and 

### may nor have a Texas licensed 

### professional engineer on their staff. If 

### the modeling is 

### completed by highly

### trained professionals then certification 

### by 

### a Texas licensed professional engineer is 

### an unnecessary burden. The proposed certification requirement in 

### 1

### 1 6.1510(b) is therefore unjustified and shouldbe deleted 

### fiomthe ruletext.
Section 

### 116.1510(c)Cl) and 

### (~112) 

## - TCC suggests 

### that TCEQ develop mare distance

### emission rate combinations to allow BART-eligibIe sources with emissions exceeding 1,000 tons 

### peryear ofcombined

### NOx and SOz

### to be exempt from 

## BART engineering

### analyses. The rcfcrcnccd citations provide only two 

### distance-emission rate combinations exempting BART-eligible sources of nitrogen oxides 

### ox) and 

### sulfur dioxide (S02), 

### which are not 

### de 

### minimis or electric generating units, from Mer

### BART analysis. The largest distance consideredby TCEQ forthe exemptionsis 100kilometers 

### (per 11 6.151 0 (c)(2)) 

### from the nearest Class 

### I area. 

### Sources 

### in 

### Houston-Galveston-Brazoria area 

### are located at least 

### 700 kilometers 

### fiomthe nearest Forest Service (Caney

### Creek)and 

### Fish and Wildlife Service (Breton

### National Wilderness) Class I 

### areas and 

### approxinlately 950 

### kilometers from 

### the nearest National 

### Park Service 

### (Big Bend) 

### Class I area. 

### TCC suggests that TCEQ consider combining Sections 116.151O(c)(l) and (c)(2) and establishing a model plant approachper the 

### following equation: "Any BART-eligible source satisfyingthe following condition: 

### PTENox 

## +PTEsoz 

### 5 10

## * L, where PTENox -

### Potential-to-Emit forNitrogen Oxides

### tpy ; 

### PTEsoz -

### Potential-to-Emit

### for Sulh Dioxide tpy ;

### and L -

### Distance to the nearest 

### Class

### I area (kilometers) is not 

### subject to 

### BART for

### NOx and SOz." 

### Alternatively, a single table may be developed for combined Sections 11 6.151O(c)(l) 

### and (c)(2) 

### to provide exemption 

### from Mer analyses for 

### BART-eligible 

### sources of NOx and 

### SO2. We

### Page 4


### suggest that the table cover distances from 

### 50 kilometers to 

### 800 

### kilometers in 

### 50-kilometer andlor 100-kilometer increments and 

### provide an exemption fiom further analyses for large BART-eligible sources.
Section 116.1510(c)Q) 

# - TCC suggests 

### that 

### TCEQ develop some distance-emission 

### rate combinationsalIowing 

### BART-eligible sources of

### PMlowith emissions 

### exceeding 15 

### tons per year to 

### be 

### exempt

### from further modeling or

### BART engineeringanalvsis requirements. 

### The proposed regulation 

### provides combined distance-emission rate exemptions from further 

### BART analyses only for BART-eligible sources of nitrogen oxides 

### (NOx)and sulfur dioxide 

### (SO2). The proposal does not provide exemptions for sources of particulate matter with an 

### aerodynamic diameter less than or equal to a nominal lOrnicrometers (PMIo). 

### Sources in Houston-Galveston-Brazoria area 

### are 

### located at least 700 

### kilometers from the nearest 

### Forest Service and 

### Fish and Wildlife Service Class 

### I areas and approximately 950 

### kilometers from the nearest National 

### Park Service CIass 

### I area. 

### It is extremely 

### unlikely that certain BART-eligible sources of particulate emissions that 

### are not deminimis sources per $1 

### 16.1510(c)(3) 

### may create noticeable visibility impairments at distances exceeding 100

### kilometers or more at 

### any transport 

### conditions. 

### Sections 116.15 10(c)(l), 

### (c)(2), and (c)(3) 

### could be combined and 

### a single table 

### may be developed to provide 

### exemption 

### from further analyses for BART-eligible sources 

### of

### NOx, SO2, 

### and 

### PMia. We suggest that the 

### table cover distances from less 

### than one kilometer to 800 kilometers to any Class

### I area in 50-kilometer and/or 100-kilometer increments. The de minimis level for eachpollutant may be 

### easily incorporatedinto the table. 

### In establishing any distance-emission rate exemption levels by 

### regulation, 

### TCC suggests that 

### TCEQ clearly expIainthat 

### the basis for these exefnptionsis their de minimis impact on visibility as demonstrated by modeling, in 

### order to distinguish these exemptions 

### Erom pure pollutant 

### emissionrate (tonper year) exemptions.
Section 116.15101~)13) 

## - TCC 

### seeks clarification regarding 

### how 

### PMlo may be used as 

### an 

### indicator 

### for PM when assessing 

### BART eligibilitv and 

### the exemption in Section 116.1510(~)(3). 

### The preamble associated with the proposed 

### rule states: 'Tote that particulate matter 

### with an 

### aerodynamic diameter less than 

### or equal to a 

### nominal 10

### micrometers 

### (PMlo)may be used as 

### the indicator for 

### PM when assessing 

### BART eligibility. We are 

### seeking further clarification 

### as to how the 

### relationship between 

### PM and 

### PMroworks in 

### practice especially considering the 

### exemption

### provided in Section 

### 116.15

### 10(c)(3). This exemption states 

### that "Any 

### BART-eligible source 

### that has the potential to emit less than 15 

### tons per year of particulate matter with an aerodynamic diameter less than or equal to a nominal 10

### micrometers 

### (PMlo)is 

### not subject to BART 

### for PMIo." 

### When evaluating the definition 

### of 

### a BART-eligible source, is it 

### necessary 

### to 

### determine both the 

### potential to emit for 

### PM and 

### PMloand then compareboth to the 250 tpy criteria?

### Page 5



### When evaluating the exemption 

### in Section 116.1510(~)(3), is it necessary to determine both the potential to 

### emit for 

### PM 

### and PMro and then compare both to the 

### 15 tpy de minimis level? For example, if a 

### BART-eligible source has the 

### potential to 

### emit 26 tons per year of Particulate Matter, 

### but only eight tons per year 

### ofPMlo,

### it appears

### thatthe sourceis not subjectto BART 

### for 

### PMlo. However, it is not clear as to 

### whether or not the source is subject to 

### BART for 

### PM in general.
Section 116.1520(c) 

# - The submittal date 

### of April 

### 30, 

### 2007 should be 

### extended to allow adequate time 

### for regulated entities to conduct 

### and submit thc rcquircd 

### BART cnainecring 

### analvses. TCC 

### is concerned about the short 

### deadline for submittal of 

### the "BART engineering analysis," and 

### suggests a 

### modest extension of the 

### submittal date 

### to July 31, 2007. 

### This will allow ample 

### time for BART-eligible sources to conduct the required 

### BART engineering analyses and report the results to 

### TCEQ. It 

### is important to note that this additional timing 

### is especially critical for larger plant sites where 

### there can 

### be multiple emission units that constitute 

### a BART-eligible source, and 

### that need to be 

### analyzed 

### individually. 

### In addition, modeling of the impact on visibility improvement at 

### the Class

### I areas due to proposed controls 

### is also required as a part 

### of 

### this analysis, 

### and the modeling exercisewill also be the intensive. This 

### timing will still allow TCEQ ample 

### time to 

### review thc 

### BART analysts 

### and 

### compilc the 

### BART emission reductions to develop the required Regional 

### Haze SIP by the December 17, 

### 2007 deadline.
Section 116.15201~1-

### TCC aroDoses 

### that 

### TCEO ~rovide flexibility regarding 

### the submittal ofthe BART analysis underseal ofa Texas licensed professionalengineer. 

### TCC proposes that 

### TCEQ revise the 

### proposed rule 

### to require submittal of 

### the 

### BART analysis under seal of 

### a licensed professional engineer 

### if the 

### BART engineering analysis is done by 

### an independent consultant or an 

### independent engineering 

### firm. Similar to 

### the NSR 

### permitting program, if the 

### BART engineering analysis is conducted by 

### resources internal 

### to the company that are familiar with 

### the equipment and 

### processes involved, and the analysis follows all ofthe criteria outlined in proposed Section 116.1520(a), TCC proposes that the 

### BART analysis be 

### provided directly by the regulated entity, 

### and that submittal 

### under the 

### seal of 

### a P.E. 

### is not warranted.

TCC has 

### reviewed the federal rules regarding the regional haze program and 

### has 

### found 

### no requirement for a once-in-always-in ("OIAI") 

### provision. Until the 

### exemption levels are 

### established by rde, TCC 

### member companies cannot 

### begin to develop or implement control strategies to 

### reduce emissions to exempt levels. TCC strongly supports that if TCEQ considers adopting any OIAI 

### policy or rule, 

### then it should apply only after the 

### first compliance date 

### for actual controls,as

### is the case under federal MACT standards 

### for existingfacilities.CHRISTOPHER SMITH DIRECTDIAL: (512)4696108 EMAIL: Chris.Srrdlh@lklew.com 

## THOMPSON & 

## KNIGHT LLP

ATTORNEYS AND COUNSELORS

1900 SAN JACINTO CENTER 88 SAN JACINTO BOULEVARD AUSTIN, TEXAS 78701-4238 (512) 468-6100 FAX (512) 488-6180

www.lklaw.com 

### September 18,2006 via electronic delivery 

### LolaBrown [MC-2051 Office ofLegal Services Texas Commission on Environmental Quality P.O. Box 13087 Austin,Texas 78711-3087 AUSTIN DALLAS FORT WORTH HOUSTON NEW YORK

ALGIERS LONDON MEXICO CITY MONTERREY PARIS RIO DE JANEIRO VIT~RIA



### Re: Rule ProjectNo. 2006-022-1 16-EN DearMs. Brown: We represent Texas 

### Lehigh Cement Company. This letterrequests that TCEQ extend the public comment period for the proposed Regional Haze Best Available Retrofit Technology (BART) rule from September 25, 2006, until October 

### 9, 2006. The requested extension is necessary 

### in order to allow entities that are potentially subject to the BART rule a meaningful opportunityto participate 

### in rxlemaking. TCEQ has identified a list ofentitiesthat maybe BART-eligible based on the results of a survey and on 

### air modeling conductedby the agency. The modeling data and methodology used by TCEQ in the preliminary BART eligibility determination are not currently available to the public. Without accessto suchmodelingdata and methodology, it is impossiblefor the members of the public to understand the process that TCEQ used 

### in reaching its initial determination related to BART eligibility. Further, because of the inherent complexity of air modeling, analysis of TCEQYs air modeling data will likely require a number of days, if not weeks, to complete. Thus, even ifthe 

### air modeling data were made available to the public today, there would be insufficient time to complete an analysis and provide the agency with feedbackbefore the expiration ofthe commentperiod on September25,2006. The Texas Administrative Procedure Act requires that persons be given a "reasonable opportunity" to participate in 

### agency rulemaking. 

### TEX. GOV'T CODE 

## 5 2001.029 (2006). Here, TCEQ has made a preliminary determination of which entities are, and are not, subject to the requirements of the BART rule. No "reasonable opportunity" to participate 

### in the BART rulemakingexists unless the public is afforded sufficient time to review and submitcomments on how TCEQ made its eligibilitydetermination for the rule. Extendingthe public commentperiod until October 9, 

### 2006, will provide the public with sufficient time to prepare and submit such comments.

### September 18,

### 2006 Page 2

Thank you for your considerationofthis request. Sincerely,

ChristopherD. 

### Smith

cc: Margaret 

### Earnest, TCEQ

### Air QualityPlanning and 

### Implementation Division (via 

### electronicdelively)

040410 000003 AUSTIN 230284.1TEXAS OIL & GAS ASS0

JmopbI. O'NCMI,lKMldlnnd Cl4AlWAN

Jim Slmfn, haatid VIOI.r'tllc;n)SNT FOR PiNAWCU

DavidW:WIlnrn Undo LkuTHwm mt.0

Dan hllrm F111e,hcp,It,, Dcvvlne THC 1.ownn GI II.II cot..

J~rncc R Mnnlnyc, Huustnn THC urnm<~;cu.ltmhsr CrnntA,BillinFlc)r Mldlnnd n4kl I'IWMlLN M51N 

# TEXAS OIL ~r 

# GAS 

# ASSOCIATJ,ON September25,2006



### Ms.Lola

### B~own - 

### MC 205, 

### Office of

### Lega.1Semices Texas 

### Commission

### on Environmental Quality 

### P.O. 

### Box 13087 

### Austin, Texas 

### 7871 1-3087 (5 12) 

### 239-4808

### (fax) Re: 

### Rule Project

### Number 2006-022-3.16-EN Dear

### Ms.Brown: Texas 

### Oil and 

### Gas Association 

### (TXOGA) Refining 

### Committee appreciates

### the opportunityto 

### cornmmt

### on the

### proposcd 

### Chapter 116 

### amcndmsntsiutended 

### to address visibility 

### impairment at 

### federal 

### Class 

### I areas 

### due 

### to.rogiona1 

### haze. 

### TxOGA is a 

### multi-purpose trade assooiation 

### representing all 

### segments of the 

### oil and gas 

### industry 

### operating 

### in Texas. 

### The membership of 

### TxOGA, approximately

### 2,000 strong,

### produces 

## in excess af 

### 92-percent of 

### Texas' 

### crude 

### oil and 

### mtural gas, 

### is responsiblefor 

### some 95 percent 

### ofthe 

### statc's 

### refining capacity, 

### and operates a 

### vast

### majority

### ofthc state's pipelkc

### mileage. TXOGA has 

### member 

### companies appearing 

### on TCEQ's BART (Best Available 

### Rere Techology)eligible source 

### listing. (The

### somces potontiaIly 

### BARTetigible are 

### major 

### stationary sources, iincIuding 

### reconsirucfedsowc~~, >on2 

### one of 

### 26 identiJid categories 

### whiclz have 

### thopotential lo 

### emit 250 tons

### per yeat or 

### more of any 

### air pollutant, and

### whichwere 

### placed inlo

### operationhetween

### Aapt7,

### 6962mdAue;ust 

### 7, 197z) 

### TXOGA wderstaads that 

### TCEQ is performing

### additional modeling 

### to 

### Wher refine t1l.e 

### BART 

### cligible list. 

### According to 

### TCEQ,sourccs 

### not removed fro111 tile 

### potential BARTeligible 

### list

### will need to conducl:a

### BART engineering ma1vsj.s. TXOGA offersthe 

### following commeilts on TCEQJs 

### proposed rule:


### 4166.2210fi), 

### BARTExe~nwtio?~ 

### Mode& Issue: 73.e 

### TCEQ is considering

### the approval 

### ofCal$?orriia 

### P@Model (CM,PUFF) and 

### the 

### CentralRegional 

### Air PlanningAssociation's 

### CENPARBARTModeli~zg Guidehes

### ec too1.s for

### BART Exemption Modclingand is seekiw commentson otl~sr appropriate modeling approaches for 

### BART.TEXAS OIL 8 GAS ASS0 PAGE 03/06



### TxOGA Comments

# - Rule ProjectNurnbcr 2006-022-1

### 16-EN September 25,2006 Pagetwo 

### Suggestion: TXOGA 

### strongly'suggests inclusion of additional simp1.esor~~ning tools 

### in the list of approved 

### methods for evaluation of 

### visibility impairments at CIass

### I areas. The

### distances to 

### the noarcst 

### CIass I area from Inany 

### BART-eligible sources

### may exceed.700 to 

### 800 kilometors. 

### It is ex*emely 

### udjkaly that; 

### NOx, SO2 

### or PMloemissions 

### may crcate visibiIity 

### impairments of

### 5% or more at such distances 

### at any 

### trmsport 

### conditions. For exnmplc, it

### will take over 20 hours 

### for 

### a.plume traveling 

### with 

### 20 

### miles per hour 

### winds (correspondingto Pasquill-GiPEord Stability Class4 

### [neutraI]) to reach th,c new~st 

### Class 

### I area for such 

### sou.rces. Itwould take over 70 hours for nplume 

### traveling 

### with 7 miles

### pcr hour 

### winds (corresponding

### b Pasquill-Giffoid StabilityClass

### G [lighly stable]at

### nighttime only) torench the nearestCJ.ass

### I area.

. 

### CALPUFF rnodol.ing

### setup 

### and execution 

### requires 

### proi~nged time 

### and'cxtensiveresources, Collection 

### and pre-processing of the meteorologjcal, terrain, 

### and receptor data from 

### each appropriate Clnss I amas

, may take 

### days and weeks. 

### Per the 

### TCF4 esiimatioi~s 

### offiscal impacts on 

### each BART-eligibla 

### source 

### (as proviclcd 

### in the 

### Infe~o6ce Memorandum Docket 

### No. 2006-0228-RUL), exemption modeling expenses 

### will, range 

### from $5,000 to 

### $20,000 for 

### a site. 7;XOGA considers these estimat~s 

### low; Site-specific 

### modeling could 

### be as much aslvo

### times the costs sugges1:ed 

### by 

### TCEQ. Cheaucr and ~asier-to-coinulete 

### screenine-tool-nhematives arereauested. 

### $116.151 0/cl 

### wc1f21. Distance 

### andEmissio~z 

### Rate Bxernntions 

### Issue: Thc 

### referenced 

### similarcitations provide

### only two distance-emissionrate combinations 

### cxc,mpthg

### BARTcli&iblesources of nitrogen oxidos @Ox) and sulfur diolrtds (SOz), which are not de 

### 'minimisor electric 

### generating units, from 

### further 

### BART malysis. 

### The 

### largest distance 

### considered 

### by 

### TCEQ for 

### the cxc.mptionsis 

### 100 kilornetws 

### @a- 116.'1510(c)(2)) 

### fromthe 

### n.emestClass

### J area. Sources 

### in I3ouston-Oalvsston 

### area are tocatcd at least 

### 700 kilornoters 

### %om tl~.le nearest Forest 

### Service (Caney 

### Creek) and 

### Fish and Wiidlife Service 

### (Breton National Wilderness) Class 1, awas and approximately 950 kilometers fromthe 

### nearestNational Park Service 

### (Big Bend) 

### CIass I area.

Cl emis~ions excoedins 

### 1.000 tons 

### wcr 

### vear of combincd 

### NOx and 

### SO, to be exempt 

### from BART endw%'ina annlvses. 

### Sections 11

### 6.1510(c)(l) and (c)(2) 

### may be combined 

### and the 

### exemption 

### may be

Awrlttcn 

### Tke: -
. "Any 

### BART-eligible soru-cc

### satiswingthefol1owing 

### condition: 

### PTE,, 

# +PTEsoa

### 5 I0 

# ' L,
PTEm 

# -Potential-to-Emit forNitrogen Oxidcs; 

### PTEsoz

# -Potential-to-Emit for 

### SulfurDioxide;and L

## -Distanceto tl~e nearest 

### Class

### I area 

### is not subject

### toBARTforNOXnnd 

### SG."TEXAS OIL & GAS ASS0 PAGE 04/06



### TxOGA Comments

# - Rule

### ProjectNumber 2006-022-1 16-EN September25,2006 

### Pagethree 

### Alternatively, o single 

### tablc 

### may be developed for combined Sections 116.1510(c)(l) 

### and (c)(2) to provide exemption.

### from fkther analyses for 

### EART-sllgible 

### sources ofNOx and 

# Sa.Wo suggestthat the table cover distanc~s Born 50 kilometers to 800 kilometers 

### in 50-kilometer and/or 100-kilometer incrementsi~ld 

### providing 

### an exemption from furthq analysesfor large

### BART-etigiblesources.



### Bsue: The 

### roforenoed citations provide 

### disbnos -

### emissionrate 

### combinations 

### cxcmptions fiom further 

### BART analyses only for BART-eligible soukccs of nitrogen oxides POx)and 

### sulfur dioxide (SO1)but do 

### not provide exemptionsfor sources of

### particulatematter with an 

### aerodynanlicdiameter less than 

### or 

### equal to 

### a nominal 10micromctcrs 

### (I'MIo). Sources in Houston-Galveston 

### area are located at 

### Icast 700 kilometers 

### from the neatest 

### Forest Service and Fish 

### and Wildlife 

### Service Class 

### X mas and approximately 950kilometers 

### from the nearest National 

### Park Service Class 

### I area. 

### It is extremely unlikety that 

### cdain 

### BART-~ligible sourcesof 

### particulate 

### emissions that are

### not De

### Minhis

### sources per $1

### 16.1510(~)(3) 

### may i create noticeable visibility impairments 

### at distances exceeding 

### 100kiIometms 

### or more at any transport condjihs. 

# I Suggestion: 

# I TTca 

### should develo reRU 

### lated coin muni 

### tv at 

### 1 e



### astsome distance-emission rate 

### cambinationsaIIawine

### BART-eligible sources 

### of 

### PMu with emissions 

### exceeding 15 tons ucr 

### war 

### being exempt fram BART 

### enninwsinp:analvsis reauiremeats. Sections 116.1510(c)(l), 

## (GO), and (c)(3) 

### may be 

### combined and 

### a single table 

### may be developedto 

### provide exemption from 

### furtheranalysesforBART-eligible sources

### ofNOx, SO2, 

### and

### PMlo. We suggestthatthe table cover distances 

### *om less 

### then 

### 1kilometer

### to 800 kilometers to any 

### Class

### Iarea in 50-kilometer and/or 1100-lcilometerinorcments. 

### Tl~e deminimis l~vel for each pollutant may

### be easily 

# I inoorpomted in the tablc. 

### &I

Id.lSlOh51, BART

### ExemtionModelinx 

### Issue: The proposed 

### TCEQ rule does not speci* 

### how many Class

### I areas areto bo consideredfor a site-specific exemption rnodejing. Some sources 

### in west central Texas may be 

### 1o~a1:ed~adeqYid~~tantto-up~o-fiv~ Clnss 1

### zuw. Sources in the 

### Gulf ConstRegion 

### may be located 700

# - 1000kilomdcrs krn the nearest 

### two Class 

### I areas and 1,500 

### kilometers or 

### more to any other 

### Class I area. 

### Lack of 

### clarification 

### on how 

### many potentially affected 

### Class I 

### areas are .lo be considered 

### may create 

### an interpretation 

### of the rule 

### leading to inc1,usionof at least five 

### Class I areas in each 

### BART exemption 

### modeling. 

### Per the 

### TCEQ sstirnations of

### the proposed rut6 

### fiscal impacts 

### on BART-eligible sources (as provided 

### in the Interoffice Memorandum Dookd 

### No. 2006-0228-RUL), excmptiou modetine; expenses 

### will range 

### fiom $5,000 

### to $20,000 

### for a site. 

### Such an estimate

### may not oven cover a 

### CALPUFF setup 

### and execution 

### cost for a single source

# -CtassT area combination. Modeling offive combinationsmay quintuplethe cost. Suggestion: Provisions should be included 

### in the ruIe.waci&ine the 

### number of rnodeIinn runs s.uficient to cxemot a sourco 

### fiomthe 

### BARTEn~incmina Analwjs reauiremcnts.TEXAS OIL & GAS ASS0

. . PAGE 05/06



### TxOGA Comments

# - Rule 

### Project Number2006-022-1 

### 16-FiN .September25,2006 

### Page 

### four 

## 1 In,specific, 

### TCEQ should 

### consider tlre following 

### discussion from pag~ 

### 305 

### of the fi~~nl 

### EPA 

### BART

"Oneimportant siemenfofthe 

### protocol is 

### in establishing 

### the 

### receptords that 

### will 

### be 

### used in tlre model. Tze

### receptors that

### you we

### should be Zocuted

### in rhe rzemest C1~~v.s 

### Zmawith

### suf/iccient densizy 

### to idazfir;tjl 

### the likely l)j,sibtNty efects 

### ofthe SO?U*C~.

### firother 

### ClassIareas in 'nelativsly clo,se

### p~~oximip to a 

### BART eligible source, 

### you 

### nq model 

### afew slrategr'c receptors to 

### derernzine whether effecb at

### those areas may 

### ba geater thm.

### at lfze 

### nearest Class 1

### area 

### For ( example,yo4might 

### chose t~locate 

### receptors a1

### fhe~e meas d 

### the 

### cZo,ses~poin~ tothe source, a:!

' the 

### highest 

### and ionrest ahvation in 

### the CZa$s

### J 

### urw, at 

### the IMPROVE.monitor, und af lh' 

### approximateapectedpluma 

### release height. YtIze

### highest mod& 

### efects are 

### observed at 

### the nearest Class

### I arca,

### you 

### mav chose not 

### to arrcdyze the 

### other 

### Clam 

### I areas mv-fw.th~r 

### us addifiond

### unalvse$~niadtf 

### be mwmrunied.

### "
Section 116.151 

### 00) and

### 116,1520(c) 

# -April 30, 

### 2007Modeling Submittal 

### Date Issue and Suggggtiola:
,to 

### condnct and submit model in^ to 

### showthat the source does 

### not cause 

### or 

### contribute to 

### visibiliiy jmaairment. 

### TXOQA 

### is odncerned about the 

### short deadline for 

### submittalofthe 

### "exemptionmodeling", 

### and suggests

### amodest ~xbnsion oftl~e 

### submittal 

### date to July 31,2007. 

### This will 

### alIow ampIetime 

### for 

## BART eligible souroes 

### to conduct thc 

### modeling analysis 

### and report tlie results to 

### TCEQ. This timing 

### shouId dso

### allow 

### TCEQ ample time to 

### review this 

### infomation aud develop tho 

### required 

### Regional Haze 

### SIPby the Deccmber 

### 17,2007

### deadline.

Issae: 

### The proposed 

### rule reads that "UI~ 

### modeling 

### demonstration 

### must be submitted 

### under seal 

### of 

### a Texas licensed professionaI engincer." 

### Texns professional engiueer 

### licensing procedures 

### do not requirc 

### cxlensive, 

### indopth knowlcdac 

### of C2f.LPUFF

### or CE~AX_R~addi~g-Ctzcideline$-~r-di~er-$ie~ modeling 

### skills and 

### nndmtandi~lg

### do not necessarily require 

### in-depth knowledge of engineering 

### principles 

### neccssasy to 

### complete 

### a BART 

### engineering 

### analysis and/or 

### BART c~ntx-01 

### implcmmtation. 

### .Manyexcellent 

### companiesinvolved in 

### CALPUFFmodeling,which couId be 

### contractedfor

### this

### work,are located 

### outside tbe 

### Sate of

### Tcxu 

### and may 

### nothave a Texas 

### licensed professional engineer on 

### their staff, 

### Additioml certification of 

### modeling 

### completed by highly-trained 

### professionals by n Texas 

### licensed professional 

### engincer 

### is an 

### unnmessary

### burden. The 

### proposed cerkifioationrequirementin $1 

### 16.1510(b) is 

### thewfore ul~jjustifl ed. I Suggestiron: 

### The 

### ~rovision rcuuirinz excmp-tion 

### mod-ding;demonstrations to 

### be submitted undor 

### seal of a 

### Texas licensed

### urofessional enaineer

### should be rcmoved 

### from 4 1.16. ISIOhJ 1TEXAS OIL & GAS ASS0 PAGE 06/06



### TxOGA

### Comments

# - RuleProjectNumber 

### 2006-022-1

### 16-EN September25,2006 Page five


### Thank you 

### again for affording Texas 

### Oil & Gas Associaiion the 

### opportunityto 

### comment on the proposed Chaptcr 

### I16 amendments. If you 

### have any questions 

### or need additional information, 

### please contact me

### by phone (512/478-663 

### 1 Ext. 1.4)

### or by 

### e-mail dhastinas@txoa~org. Sincerely,



### DebHastings 

### I 

### Vice President

### forhvironmentnl AffairsOctober 9, 2006
Ms. Lola Brown Office of Legal Services Texas Commission on Environmental Quality P.O. Box 13987, MC-205 Austin, Texas 78711-3087 Submitted Electronically

Re: Proposed BART Rule, Rule Project No. 2006-022-116-EN
Dear Ms. Brown:
TXU Power appreciates the opportunity to submit comments on' the proposed rules to implement the Best Available Retrofit Technology (BART) requirements under the Regional Haze Program. The principal business of TXU Power is the production of electric energy primarily in Texas. TXU Power owns or leases over 18,300 megawatts of generation capacity. We generate electricity from diversified fuel sources, including natural gas; lignite/coal and nuclear. TXU Power is also a member of the Association of Electric Companies of Texas (AECT), and supports their comments, submitted under separate cover.

In addition to the comments submitted by AECT, TXU Power recommends that TCEQ also authorize the option to use the photochemical grid model CAMx in the "cause and contribute" analysis identified in §116.1510(b). EPA guidance notes that one may use photochemical grid models. In some cases, it may be more accurate and appropriate to use this model. If you have any questions regarding these comments, please contact David Duncan at 214-812-8479.

Shawn Glacken Vice President, Environmental Policy

# United StatesDepartment of the Interior NATIONAL PARK SERVICE Air 

### Resources Division 

# w TAKE PRIDE. INAMERICA 

### PO. 

### Box 25287

IN REPLYREFERTO 

### Denver, CO 80225


### October 

### 5,2006 N3615 (2350) 

### ~ECEIVW 

## ~CT 

# 1

# 0

# pm Jtoufi~\o~ 

## ~[-~k@%1ffl SECT101
Ms. Lola Brown 

# ex;Register Team Office of Legal services,MC 

### 205 Texas CommissiononEnvironmental ~ualitjr P.O. Box 

### 13087 Austh, Texas 

### 78711-3087 Re: Rule ProjectNumber 

### 2006-022- 1

### 16-EN

Dear Ms. Brown: This rule revision is a good first step as Texas moves forward 

### with developing its RegionalHaze ImplementationPlan. We provide the following comments on the proposed revisions to 30 

### TAC Chapter 

### 116, Subchapter

### M, Best AvailableRetrofit Technology: 

### 1. The deciview threshold for inclusion of sources in a best available retrofit technology review is defined 

### in Section 

### 116.510 as a. impact greater than 

### 0.5 deciview. It is our understanding that the U.S. EPA guidance defmes the threshold as 

### 0.5 deciview or above. We request that the rule specify whether the threshold is the same 

### as EPA's guidance or if Texas will apply a different threshold. 

# I 2. 

### Why volatile organic compounds are excluded from the definition ofvisibility impairing pollutants 

### in Section 

### 116.1500(2) should be explained and supportedby 

### anytechnical analysesthe statehas conducted. 

### 3. The National Park Service supports continuing the inclusion of all sources of particulate matter 

### in the Best Available Retrofit Technology (BART) analyses.

### If you have any questions, please call either 

### Bruce Polkowsky at (303) 

### 987-6944 or Mike George at (5 12) 471-5722. 

### Sincerely,



### Bruce ~olkowsk~

. 

### Policy 

### Analyst09/22/2008 FRI 13:OB FAX . -

UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS,

### TX 75202-2733



### September22,2006



### Ms.Lola 

### Brown Texas 

### Register

### Team Office 

### of 

### Legal Services,

### MC 205 Texas 

### Commission on 

### Environmental 

### Quality P.O. Box 

### 13057

. 

### Austin,

### TX 7871 

### 1-3087 DeurMs. 

### Brown: We 

### arcpleased to

### provide

### comments on the proposed

### revisions to 

### 30TAC 

### Chapter 116, Subchdpter

### M, Best AvailableRctrofit

### Technology. We 

### view this 

### as 

### an importuntstep forward in the Texas's 

### Regional Haze StateImplementationPlan. 

### If you haw 

### any 

### questions 

### orconcerns,please 

### callmc at (214) 

### 665-3102

### orJoe Kordzi of my 

### staff at 

### (214)665-7186. Sincerely yours,

' 

### Thomas

### H.Diggs



### @Chief Air 

### PlanningSection



### cc: Ms. 

### MargaretEarnest State

### Implementation

### Plan Team 

### Texas 

### Commission on 

### Environmental QuaIity09/22/2006 FRI 13:09 FAX



### Comments on Proposed subchapter M, Best 

### Avnilublc Rctrofit Tcchnolngy 

### (BART) to 30

### TAC Chapter 116 911 

### 9/06 1. In 

### Section 116.1500(~)(3), 

## TX shouldmodify the language to 

### make it clear the 

### de 

### 'minimisexemptions 

### apply on 

### aplant-widebasis, as 

### described

### in 

### 70 

### FR 39117 and 

### 39161.. 

### 2. 

### InSection 116.1500(d), 

### TX 

### should modify the 

### language to make it 

### clearthae participation in 

### the CALR, 

### docs 

### not absolve 

### aBART-eligible 

### sourcefrompossibly being round 

### subject 

### to the 

### BART

### provisions of the 

### regional haze

### ruIe 

### forPM.


### 3. TTI 

### Section 116.1520(b),

### TXrequires the 

### owner/operatot co 

### provide detailed

### informalion documentingthe projected hourly and annual e~nission limils 

### Fur the 

### selectedBART 

### control strategy. 

### RG feel this 

### requirement, although important, couldbenefit from additional specificity, similar to that

### required under existingTXrule 1

### 16.12(1)

# - (3). 4. 

### TX my wish 

### to definc 

### "EART-required control equipmenl" as used 

### in Section 116.1530(a)

### and (b). 5, 

## In Section 116.1530(b), 

### TX discusses

### how 

### BARTrequjred controlequipmcnt

### must be housed within a 

### permit 

### or olhw enrurcementmechanism, As 

### written, the provision is 

### vagueaxrd would not be 

### approvable

### as a SIP

### revision. 

### TCEQ shouIdprovide further clarification md

### reference 

### any specific permitting

### rules and 

### procedures that 

### apply, 

### In addition,please clarify, 

### withrespect to modifying 

### emissionlimits, 

### how docs 

### 4 116.1530(b),provide

### forgrandfatheredfacilities 

### currenrly operating 

### under Title V 

### permits? Bccauscthe 

### BARTrequirements are 

### "applicable"requirements ofthe CAA, they must 

### be incIuded as 

### titleV permit 

### conditions 

### according to

### the procedures establishedin40 CFR 

### part 70 or 

### 40 

### CFR part 71. 

### Under 

### 70.7(f)(l)(i), Title V 

### permits 

### must be 

### reopened 

### and rcvised to 

### include new 

### applicablerequirementsif 

### the permit has three 

### or

### more 

### years 

### of lifo. 

### Thereopening

### must be 

### completed within 18

### months srfter 

### promulgationof the 

### new applicable

### requirement and the 

### reopening must follow the 

### sameprocedures (public 

### comment,~etc~-asap.ply-tainitiaLpe~t-issuance. 

### 6. In Section 

### 116.1500(2),TX 

### dcfines 

### a visibility-irnpahing air 

### poIlutant 

### as beinglimited to

. 

### nitrogen oxides, sulfur dioxide, 

### orparticulatematter. Regarding 

### this, the Agency's recent1y 

### ~eleafied 

### Q and A 

### makes 

### this statement: 

### "A State'sBART

### rulo shouldnot declare that

### VOCs or ammonia 

### arenor visibilityimpairing pollutants unless the 

### State'hasevidencethat VOCs 

### (or ammonia) from 

### its BARTeligible sources are 

### not significant contributorsto particle formation. Such 

### a declaration 

### mustbe 

### substantiated

### inthe 

### SIP documentation. This declaration may 

### be09/22/2008 FRI 13:lO FAX



### placed in the 

### SIP narrative,

### which will 

### be approvedinto the

### non-regulatory portion of the 

### SIP folIowing an 

### opportunityforpublic review 

### andcomment on the 

### State's conclusion. Furthermore, we

### rccommend that prior 

### to 

### SIP submittal that 

### collaborationbetween and among States andRPOs.and

### Federal 

### Land Managers 

### PMs)occur 

### such that the application of 

### exemptions or otherprincipIes used 

### by a StatefRPO 

### Is done with full knowlcdgc among the affectedStates/RPOs/FLMs." Consequently,

### TX shouldconsider

### whetheritis 

### prepared tomake 

### this declarationin its SIE'. 7. 

### TX 

### should change the languagein 

### 116.1500(2)to 

### make it clear that 

### a

## BART eligible facility includes

### the qualifierthat 

### it 

### has 

### the potential to emit

### at least 

### 250 tons per 

### year 

### of any visibility-impairing pollutant, summed

### acrossall 

### emission

### units at 

### the plant. 

### To that end, 

### the 

### rollowingIrmguugechange

### is suggested: cSBest 

### availableretrofit technology 

### (BART)-eligiblesource--Any 

### of the following stationary sources of air

### pollutnnts, including

### anyrcconstruc~ed

, 

### source, that was 

### not in

### operationprior to 

### August 7, 

### 1962, 

### and was 

### in existenceon August 

### 7, 1977,

### and has the potential to emit 250 

### tons or more per year 

### (including fugitiveemissions, 

### to the extent quantifiable), 

### summed across all 

### emission units, of 

### any visibility-impairing 

### uir pollutant:"
8. 

### TXhas requested specificcomment on the 

### use 

### of CALPLTFP

### or CENRAPmodeling guidelinesfor

### BART contributionmodeling, 

### as well 

### as othermodeling approaches

### that have yct to 

### bc determined. 

### We strongly urge the 

### state

### to work

### withEPA if using 

### alternativeapproaches to 

### ensure consistencyand approvabilitythroughout the 

### process. R6 recommends 

### that any 

### alternative approach modeling utilized 

### by owner/operatorbe 

### reviewed and 

### approvedby EPA,

### in 

### addition 

### to the

### commission, to 

### ensurethat the alternative

### modelingis equally stringent. 

### 9. 

## In 

## 5 1 

### 16.1530(a),

### TX

### requires 

### that each owner/opmtor maintain the 

### BART-required control equipment and 

### establish procedures 

### to ensurc

### such 

### equiprnenl

### isproperly and continuously operated and 

### maintained 

### As WI-itten, the estublishprocedures 

### provision appears 

### vague. 

## TX may 

### wish 

### to specify accepted

### proceduresS~-q.uirfeed~toL~~.ti.nnu~ 

### implementingtheircontrols.INDEX OF ORAL TESTIMONY September 18, 2006, 2:00 p.m. 

### -Texas Commission on Environmental Quality

Reference Number 0- 1 0-2 Submitted by 

### N.N. Dharmarajan,American Electric Power Chris ~mith,~hom~son & Kight L.L.P., representing Texas Lehigh Cement Company

## * * 

## * * * * * 

## * * * * 

## * * *

HEARING 'FOR PROPOSED REVISIONS TO 30 

### TAC CHAPTER 116 RULE PROJECT NO. 2006-022-116-EN

BEFORE THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

## * * * 

## * * * 

## * * * * 

## * * * *

BE IT REMEMBERED that the above-captioned
matter came on for hearing on the 18th day of September, 2006, beginning at 2:17 o'clock p.m., at the Texas Commission on Environmental Quality, Building E, Room 201, located at 12100 Park 

### 35 Circle, Austin, Travis County, Texas, and the following proceedings were reported by Lydia L. Edwards by machine shorthand, reduced to writing and set out as follows :



### LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868

### LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 

### 520-6868 APPEARANCES

LOLA BROWN, Texas Register Team, General 

### Law Division, MARGARET EARNEST, Air Quality Division DAVID HARPER, Air Quality Division MICHAEL WILHOIT, Air Permits Division TERRY SALEM, Environmental Law DivisionMS. BROWN: Good afternoon. I would like to welcome everyone to this public hearing being conducted by the Texas Commission on Environmental Quality. My name is Lola Brown. 

### I'm with the Texas Register Team of the General Law Division. I would also like to introduce Margaret Earnest of the Air Quality Division; David Harper also of the Air Qualitj Division; Michael Wilhoit, Air Permits,Division; and Terry Salem of the Environmental Law Division. We are here this morning to receive oral and written comments on proposed revisions to30 TAC Chapter 116, Control of Air Pollution by Permits for
New Construction or Modification, and new SubchapterM, Best Available Retrofit Technology (BART). If you intend to present oral testimony and haven't already signed in at the registration table, please do so now. If you are not familiar with the proppsed changes, copies of the proposal from the issue of the Register are available also on the registration table. We have copie-s of the hearing notice on the registration tabl'e so tha't if anyone.is planning to send in written comments you, can quickly find the information on where to fax or mail those in.' We will continue to accept written comments on this proposal through Monday, September 25th. TCEQ is

LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868

### considering an extension of the public comment period and'will send a listserv notice soon regarding our response to the request and will also publish notice in the Texas Register of the extension. This hearing is structured strictly for the receipt of oral or written comments. Open discussion during the hearing is not allowed. However, if anyone has any additional questions or comments regarding the proposal, there will be another opportunity after the hearing to have your questions answered.
We will now begin receiving testimony in the order in which you registered. Once 

### I call your
name, if you will please come up to the podium and
state your name and who you represent and then present
your testimony. Dharmarajan.
MR. DHARMARAJAN: Hi. My name is Dharmarajan, and I represent American Electric Power; and I would like to read this into the record. My
company has sources in Texas that meet the BART eligibility criteria as spelled out in the regional haze rules. Thus this rulemaking is of interest to
US.
AEP concurs with TCEQ's determination that BART-eligible EGUs subject to the federal CAIR

LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868program do not need to install, maintain and operate BART for SO2 and NOx per 40 CFR 51.308 (e)(4)

# . Texas 

### is a CAIR state by virtue of adopting the EPA-developed CAIR model rule by reference as required by the Texas Legislature. Importantly, one of the findings of the EPA CAIR analysis was that the CAIR
NOx and SO2 reductions would make greater reasonable
progress required under the haze rule than source-specific BART for EGUs. AEP would recommend that the TCEQ drop the requirement in the proposed rules for EGUs to perform source level modeling to assess the visibility impact and subsequent engineering analysis of primary particulate matter from BART-eligible sources. We offer the following reasons: EGUs have some of the highest efficiency, greater than 99-plus percent, particulate control equipment on solid fuel units. Another state agency performed an impact assessment of

one of AEP's coal units particulate emissions over a three-year analysis period. Using the most conservative actual maximum 24-hour average emissions, the visibility impact thresholds were never transgressed at any of the 5 Class 1 areas involved. These Class 1 areas ranged from a distance of 100 kilometers to 600.

LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868

### To put things in perspective, the modeled deciview visibility change for PMlO 

### and PM2.5 

### ranged from 0.00 

### to a maximum of 0.03. 

### By way of reference, the threshold for impact is 0.5 

### deciview, demonstrating the insignificance of these particulate emissions on visibility. PMlO 

### and PM2.5 

### mass emissions relative to the BART presumptive limit for SO2 and NOx mass ranged from a low of 3 

### percent to a high of 11 

### percent. The import of these emissions comparison is to demonstrate that if the higher quantities of SO2 

### and NOx CAIR level emissions satisfied BART the insignificant levels of PM 

### mass emissions resulting from the existing controls at EGUs should satisfy BART. Moreover, the suggested modeling demonstration for PM could be deemed to be a 

### waste of

resources for the TCEQ as well as the EGUs. The TCEQ is seeking comment on whether it should lower the -5

### deciview change threshold to define when a BART-eligible source causes or contributes to visibility improvement. Research suggests that even one deciview change is not perceptible, and by lowering the threshold to define when 

### a BART-eligible source causes or contributes to visibility impairment is an exercise in futility. Notwithstanding the limitations of the existing 0.5



### LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 

### 520-6868

### deciview threshold, adopting lower standards would
create inconsistency with other states and RPOs and lead to issues in the interstate/inter RPO consultation process. The TCEQ is seeking comment on whether VOCs should be included as visibility-impairing air pollutant. AEP is of the view that since organic PM is an important portion of PM the TCEQ should consider adding VOCs to the list of pollutants. AEP has concerns about the CALPUFF model performance given its chemistry limitations and usefulness beyond 200 kilometers. The interstate consultation process could turn out to be tenuous if the results are misused.
I appreciate this opportunity to share
comments and will supplement these preliminary thoughts with detailed written comments. Thank you. MS. BROWN: Thank you. Chris Smith.
MR. SMITH: Good afternoon. My name is Chris Smith, and I'm with Thompson & 

### Knight, representing Texas Lehigh Smith Company. And we submitted the request today requesting an extension of the comment period, and I'll just be very brief, just reiterating why we think this extension is necessary. The modeling data on which TCEQ is

LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868

### basing its preliminary determination of whether or not

a facility is or is not BART-eligible is not available

or it may be in the packet we just received today.
But we think that entities should have 

### a chance to look over that data and to formulate responses to that, and it's going to take at least a few weeks given the degree of complexity in modeling data to allow for that response time. Therefore, we think that the comment period should be pushed back two weeks so that entities can make that determination and provide the Commission with the feedback. Thank you. MS. BROWN: Thank you. Is there anyone else who would like to present testimony? (No audible response.)
MS. BROWN: We do appreciate your comments, and we thank you for coming. This hearing is now closed. (At this time, the proceedings were adjourned at 2:25 o'clock p.m., Monday, September 18, 2006.)

LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868STATE OF TEXAS ) COUNTY OF TRAVIS ) I,,LYDIA L. EDWARDS, certified shorthand reporter and ~'otary Public for Travis County, Texas, do hereby certify that the above-captioned matter came

on for hearing before the TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY as hereinafter set out.
I FURTHER CERTIFY that the procee'dings .of said hearing were reported by me by machine shorthand, accurately reduced to typewriting under my supervision and control, and, after being so reduced, were filed with the TEXAS COMMISSION ON 'ENVIRONMENTAL QUALITY.
GIVEN UNDER MY OFFICIAL hand of office at Austin, Texas, the 

### ----- ~76ay of September, 2006.

~;~/ti£ cation No. 2567 My Commission Expires 12/31/06 

# I
Certified Shorthand Reporter State of Texas ELITE COURT REPORTING SERVICES, LLC 8500 North Stemmons Freeway Suite 3015 Dallas, Texas 75247 (214) 520-6868 FIRM NO. 478 '

LYDIA EDWARDS ORR, CSR ELITE COURT REPORTING SERVICES, LLC (214) 520-6868

### Page 1 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY PUBLIC HEARING REGISTRATION

. . 

## Location: Austin Date: 

## September 18, 2006 

# 1 Concerning: 30 TAC Chapter 116 

## - Rule Project No. 2006-022-1 16-EN

Yes 

# @ NAME



### Yes 

# &

Yea 

# 6 REPRESENTING PRESENTING ORAL TESTIMONY? (CIRCLE ONE)

### Page 

### 2 

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY PUBLIC 

## HEARING REGISTRATION Location: 

### Austin Date: 

## September 18, 2006 

# 1 Concerning: 

## 30 TAC 

## Chapter I I6 

# - Rule Project No. 2006-022-1 16-EN

Yes 

# a NAME



## <:Ljq 

# L l%bl&:{

-1 

# 3 

# I E~PJS(C REPRESENTING



# ER6



# Abra 

# m~ PRESENTING ORAL TESTIMONY? (CIRCLE ONE)



### Yes 

# &

yes 

# &


# 1+".4k P~M hncr ~?pumtt-~~


# rn yes 

# @ 

# SNA6iJ 

# i\rjs[~L--r~~R Yes 

# &

LL*J Yes 

# @

# EVALUATION OF

TESTIMONY

# Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM

To: Coinmissioners Date: December 2 1, 2006 Thru: LaDonna Castaiiuela, Chief Clerk Glenn Shankle, Executive Director
From : David C. Schanbacher, P.E.. Chief Engineer 

# nc Chief Engineer's Office 'V Docket No.: 2006-0228-RUL Subject: Commission Approval for Rulemaking Adoption Chapter 116, Control of Air Pollution by Permits for New Construction or Modification Best Available Retrofit Technology (BART) Permitting Rule Project No. 2006-022- 116-EN

Reasoils for the rule package: The United States Environmental Protection Agency (EPA) is required by the Federal Clean Air Act (FCAA) to address visibility impairment (haze) at federal Class 

### I areas. Class I areas are designated parks and scenic areas of national importance, including sites in Texas such as Guadalupe Mountains National Park and 

### Big Bend National Park. The EPA promulgated regulations to address regional haze 

### in 40 Code of Federal Regulations (CFR) Part 51, Subpart P, Protection of Visibility, on July 1, 1999 (64 FR 35763), and promulgated amendments to Subpart P and a new Appendix 

### Y, Guidelines for BART Determinations Under the Regional Haze Rule, to Part 51 on July 6, 2005 (70 FR 39156). The FCAA and regional haze regulations require states to submit state implementation plans (SIPS)to address visibility impairment caused by regional haze, and require states to ensure that certain existing major sources are equipped with best available retrofit technology (BART). The rules are intended to satisfy the federal requirement to implement BART and to facilitate the preparation of the Texas Regional Haze SIP.
Under what authority are we adopting these changes? Texas Water Code, 55.103, Rules and 55.105, General Policy; and Texas Health and Safety Code, $382.002,Policy and Purpose; 5382.011, General Powers and Duties; $382.012, State Air Control Plan; $382.01 7, Rules; and 5382.05 

### 1,Permitting Authority of Commission; Rules.
Is this rulemaking required by federal rule or state statute? Which ones? Yes. Federal regulations under 40 CFR Part 51, Subpart 

### P require states to implement BART and develop 

### a Regional Haze SIP.
Are there any legal deadlines by which these rules must he proposed, adopted, or effective? States are required to subinit a regional haze SIP no later than December 17, 2007, and the BART rules are a necessary component of the Regional Haze SIP. The BART rule precedes the SIP by approximately ten months to allow sources and TCEQ staff time to review the results. Industrial source modeling and engineering analysis required for BART take time, as well as TCEQ staff review of each source's modeling and engineering analysis.
What issue(s) crr problem(s) are wretrying to solve? Regional haze causes diminished visibjlity at scenic parks and national landmarks. The rules are intended to ensure that certain large sourceslie: Docket No. 2006-0228-RUL
of visibility-impairing air pollutants are equipped with a specified miniin~im level of emission ccllltsol. WThy is it important 

### that we do this rule package? This rule package is necessary to satisfy federai regu.lations. 

### If the rules 'are not adopted, Texas could face federal sarlctions, such as the 

### loss of i'ecleral highway funding.

Scope of the rulemalring:
The rules would acid new Subchapter 

### M to Chapter 116 to ensure that owners or operators or sources that are subject to BART requirements perforin an engineering evaluatioil to determine the appropriate level of BART emission controls and subsequently implement any required HART controIs. The sources that would be affected by the rules are those that belong to one of 26 industry source categories, have the potential to elnit 250 tons per year or more of a visibilityimpairing pollutant (nitrogen oxides (NOx), sulfur dioxide (SOz), or particulate matter 

### (Phd)), ancl were built or reconstructed between August 7, 1962, and August 

### 7, 1977. The rules also provide a ~~lechanisin for sources to exclude themselves froin BART requireinenls if they demonstrate, by meeting exeinption criteria or through modeling, that they do not significantly impact visibility in Class 

### I areas. Clmanges 

### required by 

### federal rule: The rules are intended to satisfy federal requirements. States are required to subinit Regional Haze SIPSthat implement 

### BART under FCAA, $169A, Visibility Protection for Federal Class 

### I Areas, and 

### $169B, Visibility; and 40 CFR Part 51, Subpart 

### P.

. 

### Changes 

### required by state statute: N/A

n 

### SlafTreconmmeradationms 

### that are not e?:pressly 

### required by federal rule 

### or state statute: N/A Impact on the regulated casnman~mnity:

6 

### Who 

### will be affected? The sources that would be affected are those that belong to one of 26 named industry source categories, have the potential to elnit 250 tons per year or more of a visibility-impairing pollutant (NOx,SOz, or 

### PM), and were built or reconstructed between August 7, 1962, and August 7, 1977. Approxiinately 

### 67 sites have beell identified that could potentially be subject to the rules. 

### Does it create a group of affected 

### persons wimo were not affecteel previously? How? 'Yes. These new rules ~vould require a detailed engineering analysis and possible emission controls at existing sites. 

### W7iI1 there be a fiscal impact? 

### If so, 

### estimate. will be a fiscal impact. Some sources will use 

### site-specific modeling to qualify for exemption froin the rules; these exeillptioil modeling expenses are estiinated to range froin $5,000 to $20,000 for a site. Affected sources that do not qualify for exe~nption will have to develop a BART engineering analysis that is estimated to costCoillrnissioners Page 3 December 21, 2006
Re: Docket No. 2006-0228-RUL between $10,000 

## - $40:000. There will also be costs associated with the installation of BART control equipment. Control costs are expected to range from $1,000 to $10,000 per ton of 

### NO,. or SO? controlled. The overall costs of implementing BART depend on the outcome of the engineering anal~rsis at each individual source so the cuinulative costs of BART are not known. The statutory factors to be considered in the BART analysis are: an analysis of the cost of compliance, the energy and 11011-air quality eilviromneiltal impacts, the degree of visibility iillprovement resulting froin the use of the coiltrol technology. the re~naiiling useful life of the source, and ally existing control technology present at the source. 

### Impact on the public: 

### Who will be 

### affected? The public will benefit froin reduced emissions at BART facilities. The visibility in national parks and other Class 

### I areas will improve as the result of reduced haze and improved air quality. 

### Does it create a group of affected persons 

### wTho were not affected pre.cliously? 

### Howl? No.



# . %'illtilere 

### be 

### a fiscal impact? 

### If so, 

### estimate. There will be no measurable fiscal impact on the public. 

### Impact on agency progranls: The rules would require review of the BART engineering analyses and exemption inodeling claims. These reviews will be coilducted by the Air Perinits Division with support from 

### ths Air Quality Division. The BART analyses and ~nodeliilg will be subinitted under the seal of a licensed professional engineer, so a detailed review of every submittal is not expected to be necessary. All i-nodeling and engiileeriilg ailaljrsis submittals will be reviewed for general completeiless and to identify the magnitude of projected BAXT emission reductions. Soine submittals will b~ selected for detailed technical review based on a variety of risli-related factors, including but not limited to: quantity of visibility-i~llpaisi~~g pollutants; proximity to Class 

### I sites; cases where the source's prospective BART strategy results in little to 110 improvement in visibility; and cases where the source proposes 

### nc additional control. No additioi~al full-time equivalents are required. There will be 

### no significailt change to revenues. Public meetings:


### E-Iave aa2y staBeEloIder 

### meetings been held? An inforinational meeting was held on Marc11 

### 28, 2305, and another was held on November 

### 9, 2006, to ~nake the regulated coil~llunity aware of the upcoming BART rules. Neither of these meetings was a formal stakeholder lneeting. 

### A public hearing was held at TCEQ in Austin on Septe~nber 18: 2006.

With whom? The i~lforlnaiiollal meetings were targeted at owners and operators of facilities that werc identified as being potentially subject to BART requirements.

---- 

### what were the 

### generai sentiments? There was some apprehension and uncertainty associated with the i~nplelne~ltation of a new federal progra1~1 and concern about the short deadline for:;~~liniittal of the engineering analyses and exemption modeling. There 

### was CC)IIC~~II about the amount of modeling that could be required to evaluate the visibility changes associated with each 

### BART control scenario in the BART engineering analysis.

O \7\lcre

### any cliia~lges made 

### in response f

### o stakeholder 

### coamcerns? 

### No PrsUcy issues: 

### Wh;at 

### policy issues are afteted? Nonc.

O Are 

### anvy 

### policies 

### that 

### are not currenrtly based 

### cnu rule Pwi~rg 

### made 

### illto a 

### rr~le?No. 

### IVlaat are the consequences 

### if this 

### rnlemaliiug is 

### not approved 

### to go foimr~~lard?Possible i~nposition of federal sanctions, such as loss of federal highway funding.

P 

### Are there altermatives? No. Rulemaking is required to ivllplelne~lt BART 

### Potenrtialhy contrdbversiaE 

### matters: From the \/ie~vpoint of t1.1~ regulated cornmunit-)/,the BART rules ma)l be contro\iersial because th(-:y target sources that were constructed between August 

### 7: 1062, and August 7, 

### 1977, and so ~-\iould affect nlany 

### of the same sc)ul-cesthat \?!ere recently required to obtain existing fa.cility pern~its 

### under Chapter 1 16, Subchapter Permits for Grandfatl~erecl Facilities. Sonle BART-eligible sources located in the Dallas-Fort \Vo~-th and 

### Housl-01~-Gal\~esto13-Brazoria nonaI.tailzment areas may be suL?iecr to f~lture rulernaliing as part of tl~e eight-hour ozone 

### SIP revisions, 111addition, the rules conr.ain 

### a deadline of April 30, 2007, for affected sources to submit the 

### BART engineering ai-~alysis (or e,xemptionmodeling). TIiis s1m1-t time 

### fiame ha.s generated controversy among regulated eutif.ies. 

### Keg psinlts in adoption rulemaking schedde: 

### Texas Register proposal pealblication date: August 25, 2006

n 

### Anticipated effective date: February 1: 

### 2007

(1 

### Six-n~ onth ahxas 

### Register filing deadline: February 2.6, 

### 2007
Public comme~~t: public com~~lent period: August 25;2006 

### - Ocf-oher9, 2006

a EPA had several com~i~ents: 1) clarification 011 t:he dc 117irii~77.i,~. exe1~1l)tio11; 2) clarification that Clean A.il. [nte~.stnte, 1':ule does not cover PlVl Tor BART; 

### 3) clarification on BART procedu~.es so tllal. 

### SIP is appro\~a.ble; 4) additiollal specilicity in regards to projected I1or.11.ly ant1 annual eniissions limits; 5) clarification on definition of BART-required contl,ol equipment; 

### 6) quesi.ioned the exclusion of \ioliitiie organic 

### COII~~OUII(IS (iJC)C:s) and amnlonia; 7) clarification of: definitioli of BART-eligible source;, 8) close cousultation with El'k on alternative n~odeling; and 9) clarification on control maintenance after 

### BART i~istal led.

0 

### An industry commenter ~.ecluested a correction to the date referenced for the federal 

### BART rule.

n T;i\ie i11d~1st1-y col11111e11te1.s SLI])~OI-[.~~ the definition of visibility-impairing pol1,utants.Comnniissioners Page 5 December 2 1, 2006 Re: Docket No. 2006-0228-RUL National Parli Service (NPS) and Houston Sierra Club suggested additional pollutants be added to tlie definition of visibility-impairing pollutants. Several industl-y commenters requested clar~fication in the applicabilit)~section regal-ding sources considered "to cause or contl-ibute"to visibilit), impairment. * Six industry coln~nenterssuggested TCEQ develop additional screening tools from the state's extensive modeling to help exempt sources and reduce redundant inodeliilg by sources close to exemptiilg out.

a Foul. con~n~e~~ters req~~ested a due date extension for the BART modeling and engineering analysis.

a Sevel-a1comments were made regarding nlodeling of the impact of emissions on Class 

### 1 areas. Significant changes from proposal: Definition of BART-eligible sources alas changed in response to EPA and indusrry co~mnents. Changes included rephrasing to include emission units and emphasis on collective, not individual, potential to emit. The date of the federal BART rule was changed in $116.1500 to reflect the August 30: 

### 1999, effective date. No additional pollutants were added to the visibility impairing pollutant list for BART. A detailed analysis of reasons was provided in response to comments and in the Environ Report available at the TCEQ Web site. However, additional visibiliy-impairing pollutants may be added in the Regional Haze SIP. The language in $116.1530(b) was revised in response to a colnnlent by EPA. The language clarifies that every BART source must comply with the requirements of Subchapter 

### B (for New Source Review Permits) or Subchapter 

### F (for Standard Permits). These subchapters address requirements for permitted facilities to apply for perinit amendment, permit alteration, or standard permit, as applicable. The new language will also cover modifications to grandfathered facilities permitted under Chapter 116. Because Texas' Title V prograin rules (30 TAC Chapter 122), do not reference preconstruction perinits issued under Title 

### I of the FCAA, but instead 1-eference preconstruction perinits under 30 TAC Chapter 116, Title i7sources will be required to revise their operating pernlits after issuance of the modified permit required under 

### $1 16.1530(b). Title V sources wit11 BART-sub.ject sources authorized under a grandfathered pennit (existing facility or Voluntary Elnission Reduction Perinit (VERP)) must also revise their Title V permit to reflect the BART linlits added to their Chapter 116 authorization. Modeling prescreening and certification were. clarifi-d in response to industry comments. An additional subsectiol~ was added to 

# 5116.15 10: "Any EART-eligible source that has been screened out by the Texas Commissioi~ on Environmental Qualitry-conduct:d scl-eeningmodeling is not subject to the requirements of $116.1520 or $1 16.1530 of this title, for the specified pollutant(s), if the owner or operator has I-elviewed the modeling inputs for that source aiid tlie executive director I-eceiveswritten certification that the illputs are correct no later than Febl-uary 

### 28, 2007." T\/lode!in~ protocols and review were clarified in response to EPA and industr)' coments. The usage of "to cause" was delet~d fi.om the rule to clarify applicability in I-esponseto industl-y co1nnleilts. In respmse to comlnel?ts.,TCEQ staff developed a prescreening tool using the state's extensive modeling that will exempt 

### approximately 17 sources that had bee11 labeled 

### BART eli~ible. 

### 140 change was made to the rule.RI 

### In ~.cslx)~,lse 

### to co~iimen-ts, R list of C1a.s~ 

### I areas that sources ITIUS~ model was released to tile 

### TCEQ Wck~ site. No change war; made to the rule.

Ageincy 

### c.onatacts: Margaret Eal.nest, Rule Pro,jecf h/ianager, 230-4581 , Air Quality Di\)ision lo1111 Rlinter, Staff Attorney, 239-0663 Lola Brown, l'esas Rcgistcr Coosdinat:or,

### 239-0348

cc: Cliicf Clerk, 5 copies Executive Director's Office Greg Merrell David 

### C. Schanbacher, 

### P.E. Jason Skaggs Ashley 

### I<. Wadick Office of Gencrnl C:ounsel Michael \rillloit Margaret Earn~:st Lola Rro\vn



### cc (without attachinents): John Minter, Staff httorilej~ ICerry Howard, Program Office Liaison Hoolter Flarrison, 

### OLS Liaison Russ Kunl~le, OLSEVALUATION OF TESTIMONY

The Texas Commission on Environmental Quality (TCEQ or commission) adopts new §§I16.1 500, 1 16.151 0, 116.1 520, 116.1 530, and 1 16.1540. Sections 116.1 500, 1 16.151 0, and 116.1530 are adopted with changes to the proposed text as published in the August 25, 2006, issue of the Texas Register (31 TexReg 6616). Sections 116.1 520 and 1 16.1540 are adopted without changes and will not be republished.

The adopted new sections will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES The Federal Clean Air Act (FCAA), s169A; Visibility Protection for Federal Class I Areas, and §169B, Visibility (42 United States Code (USC), S7491 and §7492), require the EPA to adopt regulations to address visibility impairment at federal Class I areas due to regional haze. Class I areas are federally designated parks and scenic areas of national importance. There are 156 Class I areas in the United States, including national and international parks and wilderness areas. Regional haze is caused by the emission of air pollutants from numerous sources located over a wide geographic area. The EPA promulgated regulations to address these statutory requirements in 40 Code of Federal Regulations (CFR) Part 51, Subpart P, Protection of Visibility, on July I,1999 (64 FR 35763), and promulgated amendments to Subpart P and a new Appendix Y, Guidelines for BART Determinations Under the Regional Haze Rule, to Part 51 on July 6, 2005 (70 FR 391 56). The FCAA and implementing regulations require states to submit SIPSto address visibility impairment caused by regional haze and include guidelines for determining best available retrofit technology (BART). As part of the SIP, states must identify BART-eligible sources. BART-eligible sources belong to one of 26 named source categories,have the potential to errlit 250 tons per year (tpy) or more of a visibility-impairiog pollutant (nitrogen oxides (NO,), sulfur dioxide (SO2),and particulate matter (PM)), and were built or reconstructed between August 7, 1962, and August 7, 1977. These sources must be evaluated
to determine whether they contribute to visibility impairment at any Class 

### Iarea. BART-eligible sources that contribute to visib~lity impairment at any Class I area are subject to BART and

owners or operators must conduct a technology evaluationto determine the appropriate level of BART controls. BART is to be determined on a case-by-case basis for each source based on the technology available, the costs of compliance, the energy and non-air quality environmental impacts of controls, any existing pollution control technology used by the source, the remaining useful life of the source, and the degree of visibility improvementthat would result from the use of the technology.

The adopted rules revise Chapter 116to ensure that owners or operators of sources that are subject to BART requirements perform a BART engineering evaluation to determine the appropriate level of BART and subsequently implement any required BART controls. The adopted rules also provide mechanisms for BART-eligible sources to demonstrate that they do not significantly impact visibility in Class I areas and are therefore not subject to BART control requirements.

The TCEQ is required to submit a Regional Haze SIP to the EPA no later than December 17, 2007. In order to develop this SIP in a timely manner, the TCEQ must receive the BART engineering analyses (or BART exemption modeling) from each BART-eligible source no later than April 30, 2007. A corresponding deadline is adopted in the rules.SECTION 

### BY SECTION DISCUSSION 

### §I 16.1500.Definitions. The commission adopts new §I16.1500, which contains definitions relevant to the rules. The terms defined include BART-eligible source and visibility-impairing air pollutant. The definition of BART-eligible source is similar to the functional definition of this term under 40 CFR §51.301, Definitions, except that the definition refers only to visibility-impairing pollutants, instead of all pollutants. The definition of BART-eligible source has been revised in response to comments, to more clearly indicate that the BART-eligible source is based on an aggregation of emission units, and does not necessarily include all equipment at the plant site. The term "visibilityimpairing air pollutant" is also defined and includes NO,, SOp,and PM, which are the principal species emitted from Texas sources that influence visibility. Note that particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PMIO) may be used as the indicator for PM when assessing BART eligibility. The commission has not included volatile organic compounds (VOCs) or ammonia as visibility-impairing air pollutants. The commission's research has determined that VOCs are not a significant contributor to visibility impairment at Class I areas that are impacted by Texas facilities. In addition, the commission has not included ammonia because existing background levels in Texas would make visibility improvements from ammonia source reductions only marginally effective. For terms not defined in this section, the definitions contained in 40 CFR S51.301 apply. The effective date of the 40 CFR §51.301 incorporation has been revised to August 30, 1999, in responseto a comment.

## 5 1 16.151 0. Applicability and Exemption Requirements. The commission adopts new §I16.151 0 to specify which facilities will be subject to the adopted rules and identify certain exemptions which may apply. The rules only apply to BART-eligible

sources as defined in §I16.1500.

Under adopted §I16.1510(b),the owner or operator of a BART-eligible source may elect to use modeling to demonstrate that the source does not contribute to visibility impairment at any Class I areas. If the owner or operator successfully demonstrates that the source does not contribute to visibility impairment, the source would not be subject to the requirements of §I16.1 520, Best Available Retrofit Technology (BART) Analysis, and §I16.1 530, Best Available Retrofit Technology (BART) Control Implementation. Owners or operators who seek to claim this exemption must submit the exemption modeling to the commission's Air Permits Division no later than April 30, 2007, under seal of a professional engineer licensed in the State of Texas.

BART exemption modeling and modeling conducted as part of the BART analysis must conform
to an executive director-approved model and associated guidelines. The executive director has approved the use of the California Puff Model (CALPUFF) and the Central Regional Air Planning Association's (CEIVRAP) BART Modeling Guidelines, as well as the use of the Comprehensive Air Quality Model with extensions (CAMx) model. Modeling protocols for both CALPUFF and CAMx are available on the TCEQ Web site at:

ww. tceq. state. tx.us/implementation/air/sip/batVhaze. html.

Persons seeking guidance about the modeling guidelines and other aspects of the BART modeling process should contact the commission's Air Permits Division.The commission is adopting a 0.5 deciview threshold for determining whether a source contributes to visibility impairment. EPA guidance indicates that 0.5 deciview is the upper limit that states should use for determining whether a source contributes to visibility impairment. Factors that may influence the selection of this threshold are the number of emission sources affecting Class I areas and the magnitude of emissions from the individual sources. In response to comments, the commission has modified the proposed language of §I16.1 510(b) to refer only to sources that do not contribute to visibility impairment, because this correlates to the selected 0.5 deciview threshold. The commission expects Class I areas to have more than one source affecting visibility, so the 

### contributing tothreshold, not the 

### cause threshold, will be the controlling factor for BART determinations. As a result of comments, the commission has also modified the rule to clarify that the threshold for contributing to visibility impairment is a change in visibility that is greater than or equal to 0.5 deciview, instead of simply greater than 0.5 deciview.

The commission is adopting several exemptions under §I16.1510(c). These exemptions are based on examples that the EPA developed for 40 CFR Part 51, Appendix 

### Y. There are two "model plant" exemptions adopted as 3116.151 O(c)(l) and (2), respectively. The EPA concluded that sources meeting the stated criteria for emissions and distance from Class I

areas are unlikelyto have a significant effect on visibility. The exemptions in §I16.1 510(c)(l) and (2) are pollutant specific for NO, and SO2,such that the owner or operator of the source would still be required to perform the BART engineering analysis and implement any applicable BART controls for other visibility-impairing pollutants (such as PM).

The exemption adopted under §I16.151 0(c)(3) is based on de 

### minimis emission totals that EPA determined would be unlikely to contribute to regional haze. As is the case with the exemptions in §I16.1 510(c)(l) and (2),the exemption in §I16.1 510(c)(3) is pollutant specific. For example,a source may be exempted for purposes of NO, or SO2while remaining subject to BART requirements for PM. A source claiming this exemption could also be exempted from BART requirements for PM while remaining subject to BART for other visibility-impairing air pollutants. The 

### de 

### minimis exemption level in $116.1510(~)(3) is determined by the emissions of PMlo.

Owners or operators claiming exemption under $116.151 0(c) are requiredto maintain records to demonstrate compliance with the exemption criteria, and shall make such records available to the commission or any local air pollution control agency with jurisdiction upon request.

The commission is adopting $116.1510(d)to provide that electric generating units (EGUs) that are participating in the Clean Air Interstate Rule (CAIR) cap and trade program may avoid a BART analysis and implementation of controls for NOxand 

### SO2. The EPA has determined that CAlR provides greater reasonable progress than BART and has correspondingly allowed the

use of CAlR as an acceptable substitute for the application of BART controls. This subsection only addresses NOxand SOz,so BART-eligible EGUs would remain subject to BART requirements for PIVI.

In response to public comment, the commission has added $1 16.1 510(e),to clarify that owners

or operators of BART-eligible sources that were screened out by the TCEQ's contractorperformed screening modeling are not required to comply with the requirements for the BART analysis or BART controls for the screened pollutant(s). However, an owner or operator seeking to use this exemption must submit a certification to the TCEQ no later than February 28, 2007, that the modeling inputs used in the screening modeling were valid. Entities that were screened out by the TCEQ's modelingwill be notified by mail.

### §I 16.1520. BestAvailable Retrofit Technology (BART) Analysis. The commission adopts new §I16.1 520, which contains requirements for the BART engineering analysis. BART-eligible sources that are not exempted under §I16.1510 are required to develop a BART engineering analysis to determine BARTfor that source. The analysis shall be conducted according to the procedures established in 40 CFR Part 51, Appendix Y, Guidelines for BART Determinations Under the Regional Haze Rule, Section IV, The Bart Determination: Analysis of BART Options. The BART analysis must include an evaluation of all technically feasible retrofit technologies in accordance with the five factors stated in FCAA, §169A(g)(2) (42 USC, S7491). The factors to be considered in the BART analysis are: an analysis of the cost of compliance, the energy and non-air quality environmental impacts, the degree of visibility improvement in affected Class 

### I areas resulting from the use of the control technology, the remaining useful life of the source, and any existing control technology present at the source. Based on these statutory factors, the owner or operator must select and identify one of the emission control alternatives as the prospective BART control strategy for the source.

Adopted §I16.1520(b) will require the owner or operator to specify short-term (hourly) and longterm (annual) emission limits associated with the selected BART control strategy. This information is necessary for the commission to develop the required Regional Haze SIP.

Adopted 

### §I 16.1520(c) establishes a deadline of April 30, 2007, for submission of the BART analysis. This deadline is necessary to provide the commission with sufficient time to review the BART analyses and compile BART emission reductions to develop the required Regional Haze SIP by the December 17, 2007, deadline.

## 5 116.1530. Best Available Retrofit Technology (BART) Control Implementation. The commission adopts new §I16.1 530, which contains requirements and deadlines associated with the irnplementation of any required BART controls. Adopted §I16.1530(a) establishes the deadline for any required BART controls to be implemented. Federal regulations specify that BART controls must be in place no later than five years after the EPA approves a state's Regional Haze SIP. Given that the commission is required to submit the Regional Haze SIP to EPA by December 17, 2007, and the EPA w~ll require some time to review the SIP, it is likely that the BART control deadline will occur during or after the year 2013. Many factors influence the schedule of the development and approval of the Regional Haze SIP and it would be difficult
to estimate a more precise deadline. Adopted §I16.1530(a) also contains a requirement for

owners or operators to establish procedures to ensure that BART-required control equipment is properly and continuously operated and maintained.

Adopted 3116.1 530(b) is intended to ensure that owners or operators subject to BART obtain any necessary authorization for new control equipment and establish enforceable mechanisms
to ensure ongoing compliance with BART. The adopted rule requires that each owner or operator of a BART-eligible source comply with applicable portions of Subchapters B, F, and H of Chapter 116. The rule has been revised in response to comments from the U.S. EPA, to

more clearly identify applicable permitting requirements.



## 5I 16.1540. Exemption from Besf Available Retrofit Technology (BART) Control Implementation. Adopted new §I16.1 540 provides a case-specific mechanism for BART-eligible sources to request an exemption from BART control requirements. In order to obtain exemption under this section, the owner or operator seeking exemption must first obtain initial approval from the commission, then obtain final approval from the EPA. Although this exemption may be used toavoid the otherwise-required installation of BART controls, this exemption does not negate the requirement to perform the BART analysis required under adopted 3116.1520, or the requirement to submit the analysis no later than April 30, 2007.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the adopted rules in light of the regulatory impact analysis requirements of Texas Government Code, 32001.0225, and determined that the rulemaking
meets the definition of a major environmental rule as defined in that statute. A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted rulemaking does not, however, meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, 32001.0225(a). Texas Government Code, 32001.0225, applies only to a major enviror~mental rule, the result of which is to: 1) exceed a standard set by federal law, unlessthe rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

This rulemaking will require BART on certain sources of IVO,, SO2,and PMthat contribute to visibility impairment in any Class I area. The adopted new 33116.1500, 1 16.151 0, 116.1520, 1 16.1530,and 1 16.1540will ensure that owners or operators of sources that are subject to BART requirements perform a BART engineering evaluation to determine the appropriate level

### of BART and subsequently implement any required BART controls. -The rules incorporate by reference the EPA's Guidelines for BART Determinations Under the Regional Haze Rule (40 CFR Part 51, Appendix Y). The rules also provide mechanisms for BART-eligible sources to demonstrate that they do not significantly impact visibility in Class 

### I areas and are therefore not subject to BART control requirements. This strategy is intendedto address visibility impairment

' 

### at federally designated parks and scenic areas of national importance (Class I areas) and thus the intent of the adopted rules is protection and improvement of the aesthetic environment in these areas. Furthermore,the commission finds that the revisions to Chapter 116 in this rulemaking could adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Under the adopted new sections, BART-eligible sources are those sources that belong to one of 26 named source categories, have the potential to emit 250 tpy or more of a visibility-impairing air pollutant (NO,, SO2,and PM), and were built or reconstructed between August 7, 1962, and August 7, 1977. The commission has determined that approximately 127 sources may be BART eligible. Sources determined to be subject to BART through the engineering analysis of Appendix Y must install and operate BART controls for the source five years after the EPA approves the state's Regional Haze SIP. The commission anticipates that a fraction of these BART-eligible sources w~ll actually be required to install BART controls, and it is not yet known what BARTwill be for each source. Some sources will model out of the requirement to determine and ultimately install BART; and EGUs may use CAlR as a substitute for BART for NO, and SO2. The exact cost of the BART controls for each unit cannot be predicted, but significant costs to comply with the control requirements may be expected from at least some units, which could in turn adversely affect a sector of the economy. The EPA has estimated costs ranging from $1,000 to $10,000 per ton of NOx,SO2,or PM. Given the potential for significant costs, the commission has made the determination that this rulemaking meets the definition of a major environmental rule.Nevertheless, the adopted new sections to Chapter 116 are not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the adopted rules do not meet any of the four applicability requirements in subsection (a) of that section. Specifically, the BART requirements in Chapter 116 were developed to be included inthe Regional Haze SIP that will be submitted to the EPA as required under FCAA,42 USC, s7491 and s7492, and therefore meet afederal requirement. The Federal Clean Air Act (FCAA, 42 USC, s7491) requires each SIP to include a requirement that each BART-eligible source that is reasonably anticipated to contribute to visibility impairment in any Class I area to procure, install, and operate BART controls. BART is to be determined according to the five factors listed in s7491(g)(2). Section 7492 of the FCAA requires that any regulations promulgated by the EPA pursuant to s7491 require states to revise their SIPS under FCAA, 42 USC, s7410 to include a regional haze plan that includes BART for certain sources.

The requirement to provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application. The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.The FCAA does not always require specific programs, methods, or reductions in order to meet emission standards or visibility goats and reasonable progress of those goals; thus, states must develop programs and strategies to help ensure that those standards and goals for new and existing sources are met. The same is true for visibility protection. Because of the ongoing need to address nonattainment issues, and to meet the requirements of 42 USC, 57410, the commission routinely proposes and adopts SIP rules. As discussed earlier in this preamble,
states must also revise their SIPSunder 57410 to incorporate a plan for visibility protection, including requirements for BART. The legislature is presumed to understand this federal scheme. If each rule proposedfor inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis conterr~plated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules will have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, 52001.0225(a), because they are required by federal law.

The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Sincethat time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that 

### when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation. Central Power 8,Light Co. v. Sharp, 919 S. W.2d 485, 489 (Tex. App. Austin 1 995), writ denied with per curiam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co.,798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert,414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co.,9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied);and Coastal Indust. WaterAuth. v. TrinityPortland Cement Div., 563 S.W.2d 91 6 (Tex. 1978).

The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of substantial compliance. The legislature specifically identified Texas Government Code, §2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

The specific intent of the rulemaking is to adopt BART rules and incorporate by referencethe federal BART determination guidelines, with the objective to reduce visibility impairment in federal Class I areas. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely under the general powers of the agency, but is authorized by specific sections of Texas Health and Safety Code (THSC), Chapter 382 (also known as the Texas Clean Air Act (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC. §§382.012. 382.017. and 382.051. Therefore, this rulemaking action is not

### subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because although the rulemaking meets the definition of a major environmental rule, it does not meet any of the four applicability requirements.

TAKINGS IMPACT ASSESSMENT The commission evaluated the adopted rules and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to this rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4). Specifically, the new sections of Chapter 116 require that BART-eligible sources deterrr~ine whether they are subject to BART controls. Those sources that are subject to BART must perform a BART engineering evaluation to determine the appropriate level of BART, and subsequently implement any required BART controls. The Federal Clean Air Act (FCAA,42 USC, S7491) requires each state to submit a Regional Haze SIP to address visib~lity infederal Class 1 areas. The FCAA further mandates that the SIP require each BART-eligible source that is reasonably anticipated to cause or contribute to visibility impairment in any Class 1 area to procure, install, and operate BART. BART is to be determined according to the five federally established factors, listed in 42 USC, §7491(g)(2).

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 the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subjectto the Coastal Management Program, commission rules governing air pollutant err~issions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council and determined that the action is consistent with the applicable CMP goals and policies.

The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The adopted rules are intended to implement a federally required program to apply BART emission controls to certain sources of visibility-impairing air pollutants. The adopted changes would tend to reduce undesirable haze at federal Class I areas. Certain aspects of this rulemaking are intended to protect 'the environment or reduce risks to human health from environmental exposure. 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 §501.14(q)). This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation,Adoption, and Submittal of Implementation Plans. Therefore, in accordancewith 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM Owners and operators subject to the Federal Operating Permit Program must, consistent with the revision process in 30 TAC Chapter 122, Federal Operating Permits Program, revise their operating permits to include the applicable BART control requirements or emission limits for each source.PUBLIC COMMENT A public hearing was held on the proposed rules on September 18, 2006, in Austin, Texas. The comment period was originally scheduled to end on September 25, 2006, but was extended at the request of commenters, and closed on October 9, 2006. The commission received comments from American Electric Power (AEP), Alcoa Inc. (Alcoa), Arkema Inc. (Arkema), Ash Grove Texas, L.P. (Ash Grove), Association of Electric Corr~panies of Texas (AECT), BP Products North America Inc. (BP), Dow Chemical Company (Dow), El Paso Electric Company (EPE), Sierra Club-Houston Regional Group (Houston Sierra Club), Source Environmental Sciences, Inc.,Texas Cherr~ical Council (TCC), Texas Lehigh Cement Company, Texas Oil and Gas Association (TXOGA), TXU Power (TXU), National Park Service (NPS) a division of the United States Department of Interior, and the United States Environmental Protection Agency, Region 6 (EPA). IVo individuals provided comments.

BP supported comments submitted by TXOGA. TXU supported comments submitted by AECT.

RESPONSE TO COlblMENTS 

### FEDERAL APPROVABILITY EPA commented that the 

### de minimis exemptions in proposed 5116.1 510(c)(3) should be modified to clarify that these exemptions apply on a plant-wide basis, as described in 70 FR 39117 and 39161.

The de minimis exemptions are evaluated based on the total potential emissions from the BART-eligible source as a whole, which includes the total emissions from all the emission units that meet the BART-eligibility criteria. Therefore, these exemptions already incorporate a plant-wide approach. Therefore, the commission did not change the rule in response to this comment.EPA suggested that in §I16.1500(d),Texas should modify the language to make it clear that participation in the CAlR does not absolve a BART-eligible source from possibly being found subject to the BART provisions of the regional haze rule for PM.

The rule has not been revised in responseto this comment. The commission is aware that CAlR controls only NO, and SO2,and not direct PM. Therefore, CAlR will not cover PM for BART.

EPA commented that in 5116.1 520(b), the proposed rule requires the owner or operator to provide detailed information documenting the projected hourly and annual emission limits for the selected BART control strategy. EPA stated that this requirement, although important, could benefit from additional specificity, similar to that required under existing §I16.1 2(1) 

### - (3).

The proposed requirement to document the projected hourly and annual emission limits is sufficiently straightforward, and it is not clear which aspects of 

### §116.12(1) 

# - (3) would be applicable. No changes were made in response to this comment.

EPA commented that the commission may wish to define BART-required control equipment as used in §I16.1530(a) and (b).

The term BART-requiredcontrol equipment simply means the control equipment installed to satisfy the BART rules. Because the meaning is sufficiently straightforward,

an explicit definition is not necessary.

EPA stated that in §I16.1530(b),the TCEQ rule discusses how BART-required control equipment must be housed within a permit or other enforcement mechanism. As written, theprovision is vague and would not be approvable as a SIP revision. EPA recommended TCEQ provide further clarification and reference any specific permitting rules and procedures that apply. In addition, EPA sought clarification, with respect to modifying emission limits, how §I16.1530(b) provides for grandfathered facilities currently operating under Title 

### V permits. Because the BART requirements are applicable requirements of the FCAA, EPA states that they must be included as Title 

### V permit conditions according to the procedures established in 40 CFR Part 70 or 40 CFR Part 71. Under §70.7(f)(l)(i),Title 

### V permits must be reopened and revised to include new applicable requirements if the permit has three or more years of life. The reopening must be completed within 18 months after promulgation of the new applicable requirement and the reopening must follow the same procedures (public comment, etc.) as apply to initial permit issuance.

The commission has revised the language in $116.1530(b) in response to this comment. The language clarifies that every BART source must comply with the requirements of Subchapter 

### B (for New Source Review Permits) or Subchapter F (for Standard Permits). These subchapters address requirements for permitted facilities to apply for permit amendment, permit alteration, or standard permit, as applicable. The new language will also cover modifications to grandfathered facilities permitted under Chapter 11 6. Because Texas' Title V program rules (30 TAC Chapter 122),do not reference preconstruction permits issued under Title Iof the FCAA, but instead reference preconstruction permits under Chapter 116, Title V sources will be requiredto revise their operating permits after issuance of the modified permit required under §I 16.1530(b). Title V sources with BART-subject sources authorized under a grandfathered permit (existing facility or Voluntary Emission Reduction Permit (VERP)) must also revise their Title V permit to reflect the BART limits added to their Chapter 116 authorization.EPA questioned the exclusion of VOCs and ammonia in the definition of visibility-impairing pollutant.

The commission understands the commenter's concerns that VOCs and ammonia are not included on the list of BART pollutants. The TCEQ has modeled the visibility impairment impact of VOC emissions from all potentially BART-eligible sources inTexas for Class 

### I areas in Texas and surrounding states. The collective impact of all these

sources was below the de 

### minimis impact threshold of 0.5 deciview. Therefore, the collective impact of all individual sources and all groupings of sources from among the potentially BART-eligible sources inTexas is below the de 

### minimis threshold. For this
reason, the commission concludes that it is appropriate notto list VOCs as a visibilityimpairing pollutant for potentially BART-eligible sources inTexas. The rules have not

, been revised in responsetothese comments.

The commission has considered ammonia emissions and has concluded that it would be inappropriate to add ammonia tothe list of visibility-impairing pollutants inthe BART rule. Industrialammonia emissions are less than 

### 1%of the total ammonia emissions in Texas, and BART source emissions are only a part of industrial ammonia emissions. Therefore, it is inappropriate to list ammonia from BART sources in Texas as a visibilityimpairing pollutant. The Regional Haze SIP will look at visibility-impairing pollutants again and determine if more pollutants should be considered. Inthe SIP, the uniform rate of progress may require further controls. 'The rule has not been revised in responseto these comments.

EPA suggested various revisions to the definition of a BART-eligible source to clarify that BART applies on an emission unit basis and not a source-wide or site-wide basis.

### The commission concursthat the definition of BART-eligible source should be rephrased to clarify that BART applicability is determined on an emission unit basis, consistent with EPA 

### guidance, and not on a source-wide or site-wide basis. The commission has modified the definition accordingly.

EPA strongly urged TCEQ to work with EPA if using alternative approaches to ensure consistency and approvability throughout the process. EPA recommended that any alternative modeling approach used by ownerloperator be approved by EPA, in addition to the commission,
to ensure that the alternative modeling is equally stringent.



### The commission concurs and will be submitting all BART modeling protocols and analyses to EPA for its review.

EPA commented that in 

### §I 16.1 530(a), the proposed rule requires that each owner or operator maintain the BART-required control equipment and establish procedures to ensure such equipment is properly and continuously operated and maintained. As written, the requirement
to establish procedures appears vague. EPA commented that TCEQ may wish to specify accepted procedures required to continue implementing their controls.



### Specific procedures to ensure that BART-required control equipment is properly and continuously operated and maintainedwill be addressed inthe facility's permit. Itwould be difficult to specify those procedures inthe BART rule given the broad range of unit types and control equipment that are potentially subject to BART. No change to the rule

was made in response to this comment.GENERAL COMMENTS 

### The Houston Sierra Club commented that the proposal explanation was incomplete and requested the list of 

### 127 sources, a map of source locations, and the amounts of NO,, SO2,and PM 

### that each source emits. The Houston Sierra Club was concerned that the rule is unclear as to the level of BART control from each individual source or the percentage of control from all BART sources. The' Houston Sierra Club commented that it is not clear how interstate consultation will apportion visibility reduction and what constitutes BART and BART control equipment.

The commission does not agree that the proposed rule explanation is incomplete. The primary purpose of the rule is to create a process for certain sources within the state to determine whether they are subject to the requirementsto determine and install BART. Subsequent to this rulemaking, the commission will propose a Regional Haze 

### SIP that will incorporate information on BART at those sources determined to be subject to this rule. When developing a rule, the commission attempts to describe the number of entities that will be affected by the rule and characterize the overall costs and benefits of the rule. There is no requirement for the commission to provide detailed information about each individual source that may be affected by a proposed rule. However, the requested information is now available inthe BART resources and guidance documents posted on the TCEQ Web site at: www.tceq.state.tx.us/implementation/air/sip/ba~haze.html. The CAMx Modeling Guidance contains a map showing the proximity of BART-eligiblesites to Class Iareas. The Texas Modeling Data file contains the NO, SOz,and PM emission rates that were used inthe screening modeling.

### BART is determined on a case-by-case basis, taking into account a combination of factors. There is no defined percentage of control or specific control equipment type associated with BART. The commission cannot project the amount of reductions from BART at this time as no sources have submitted the BART engineering analyses yet; the engineering analyses are due April 30, 2007. The Regional Haze SIP will contain more detailed information about sources that are subject to BART including estimates of pollutant reductions associated with BART.

Houston Sierra Club commented that the installation of BART should not take 57 years to complete. Houston Sierra Club urges the TCEQ to go beyond regulatory policy that proposes the goal of natural background in 2064 and, instead, consider the goal of 2020.



### The commission appreciates the concern of the Houston Sierra Clubthat visibility goals

are set at 2064, butthis 2064 goal is for regional haze not BART. BART controls are scheduled to be in place five years after the EPA approves the Regional Haze SIP or approximately 2013. In2018, BART controls and other regional haze controls will be reassessed. Under the SIP, the state will reevaluate the rate of progress towards natural visibility every five years until 2064. Ifthe state is not meeting the uniform rate of progress, more controls may be proposed. EPA estimated how long itwould take to reach natural conditions based on the rate of visibility improvement being achieved from existing programs. Page 35731 of the 1999 Regional Haze Rule states: EPAJs analyses show that the reductions from CAA andother programs willresult 

### in a rate of improvementestimated at approximately 3 

### deciviews over the periodfrom the mid1990's to about 2005. The EPA calculatedthat ifthis rate ofimprovement couldbesustained, these areas would reach the nationalgoal 

### in 60 years. No change was made in response to this comment.TCC commented that it reviewed federal rules regarding regional haze and found no requirement for a once-in-always-in (OIAI) provision. TCC is concerned that until the exemption levels are established by rule, member companies cannot begin to develop or implement control strategies to reduce emissions to exemption levels. TCC suggests that any OlAl provision adopted by the commission apply only after the first compliance date for actual controls, similar
to the federal Maximum Achievable Control Technology (MACT) standards.

The commission has made no changes in response to this comment. The determination that a BART-eligible source is subject to BART, as well as BART engineering analysis, must be made by April 30, 2007, in order for these controls to be reflected in the state's Regional Haze SIP due in December2007, as required under FCAA, $169A and 40 CFR $51.308. Once a determination is made that a source is subject to BART controls, but prior to installation of the controls or emission limits, $116.1540 provides that the source may apply for an exemption from the executive director and final approval from EPA. It is unnecessaryfor sources towait until adoption of this rule to implement controls or other enforceable limits in order to fall below the BART-eligibility thresholds. Sources have the option to revise their Title 

### I (preconstruction) permits to provide synthetic minor limits. However, in response to questions from states and regional planning organizations on SIP requirements (Additional Regional Haze Questions, August 3, 2006), EPA has stated that the modifications must be completed before the state goes to public hearing on the SIP.

DEFINITION OF BART-ELIGIBLE Alcoa commented that the rule should provide differentiation between BART-eligible sources and sources that are subject to BART. The terms and requirements of the proposed rule are inconsistent with Appendix 

### Y to Part 51-Guidelines for BART Determinations; Final Rule (EPA).Alcoa also commented that TCEQ treats both classes of sources as one; both are BART-eligible

sources.



### Although the proposed rule does notexplicitly differentiate between sources that are BART-eligible and sources that are subject to BART, on a functional level the rule is consistent with Part 51 

### and the associated guideline. A source that is subject to BART is simply a BART-eligible source that emits any air pollutantthat may reasonably be anticipated to contribute to any impairment of visibility in any mandatory Class I

### federal

area. The rule allows a source to demonstrate that it does not contribute to visibility impairment (and are therefore not subject to BART), and those sources are not required to implement BART. No changes to the rulewere made in response to this comment.

Alcoa stated that the effective date of 40 CFR 951.301 definitions cited in the rule is incorrect. In the first paragraph of 9116.1 500, TCEQ proposes that terms not explicitly defined in the rule are to have the meaning given them in 40 CFR 951.301 as effective September 6, 2005. The effective date of the current version is July 1, 1999. The date reference in TCEQ's BART rule is inconsistent with the effective date of current definitions in 40 CFR 951.301 and produces unnecessary confusion.



### The commission agrees that the most current revision to 40 

### CFR 551.301 

### was published

on July 

### I, 1999, 

### and became effective on August 30,1999. 

### The commission has made a change to 5116.1500 

### to reflect the August 30, 1999, 

### effective date.

AECT, Alcoa, Ash Grove, and El Paso Electric suggested various revisionsto the definition of a BART-eligible source to clarifythat BART applies on an emission unit basis, and not a sourcewide or site-wide basis.The commission concurs that the definition of BART-eligible source should be rephrased
to clarify that BART applicability is determined on an emission unit basis, consistent with EPA guidance, and not on a source-wide or site-wide basis. The commission has modified the definition accordingly.



### DEFINITION OF VISIBILITY-IMPAIRING POLLUTANT ACET, Ash Grove, TXU, Dow, and TCC all agreed that the 

### §116.1500 definition of visibilityimpairing pollutants should include only NO,, SO2,and PM.

'The commission appreciates the support of the §116.1500(b) list of BART pollutants as proposed.

The Houston Sierra Club and NPS questioned the exclusion of VOCs and ammonia inthe definition of visibility-impairing pollutant. AEP suggested that the TCEQ reexamine the proposed exclusion of VOCs, especially reactive VOCs, from the definition since the role of VOCs in producing secondary organic aerosols cannot be discounted in developing control strategies.

The commission disagrees with the suggestions to add VOCs to the list of BART pollutants. 'The TCEQ has modeled the visibility-impairment impact of VOC emissions from all potentially BART-eligible sources inTexas for Class Iareas inTexas and surrounding states. The collective impact of all these sources was below the de 

### minimis impact threshold of 0.5 deciview. Therefore, the collective impact of all individual

sources and all groupings of sources from among the potentially BART-eligible sources inTexas is below the de 

### minimis threshold. For this reason, the commission concludes that it is appropriate not to list VOCs as a visibility-impairing pollutant for potentiallyBART-eligible sources in Texas. The rules have not been revised in response to these
comments.

The commission has considered ammonia emissions and has concluded that itwould be inappropriate to add ammonia to the list of visibility-impairing pollutants in the BART rule. Industrial ammonia emissions are less than 1 % of the total ammonia emissions in Texas, and BART source emissions are only a part of industrial ammonia emissions. 'Therefore, it is inappropriate to list ammonia from BART sources inTexas as a visibilityimpairing pollutant. The Regional Haze SIP will look at visibility-impairing pollutants again and determine if more pollutants should be considered. In the SIP, the uniform rate of progress may require further controls. The rule has not been revised in response to these comments.

0.5 DEClVlEW THRESHOLD AECT, AEP, Alcoa, and TXU all provided comments opposing a threshold lower than the 

### 0.5 deciview proposed in the rule. AECT, 

### TXU, and AEP expressed concern that a lower threshold could lead to inconsistencies and conflicts between states. In addition, AEP and Alcoa concurred that a lower threshold would be unwarranted on ,the basis that a change of 0.5 deciview is significantly below the well-established threshold of perceptibility given 

### by a change

, of I 

### .0deciviews or greater. Alcoa argued that using a threshold lower than the proposed 

### 0.5 deciview would require additional modeling resources for itsjustification.

The commission will not lower the 0.5 deciview threshold. 'The TCEQ has received no evidence that a lower threshold is appropriate inTexas. By using only a single threshold, the TCEQ does not intend to imply that the threshold for causingvisibility impairment isthe same as for contributing to. Since TCEQ expects all Class Iareas havemore,thanone source impacting visibility, any source that causes visibility-impairment (such as, using for example, based on the EPA's threshold of a humanly perceptible visibility impact of I .0 deciview or greater) also contributes to the same. So the contributes to threshold isthe one relevant to this rule. To clarify the rule, theTCEQ will

remove the term causes inthis context, so that the 0.5 deciview value will be applicable only as a contribution threshold. The commission isfollowing EPA guidance, Part 51, Appendix 

### Y, Section III.A.1, and has made no changes in

### 9116.1520 and 

### 9116.1530 in response tothe comments.

In addition, Alcoa expressed concern that the proposed rule does not provide a clear distinction between 

### contributing to and 

### causing visibility impairment in Class I areas. In particular, Alcoa does not support using 0.5 deciview as an appropriate threshold for determining that emissions from a single BART source are causing visibility impairment in a Class I area.

By using only a single threshold, the commission does not intendto imply that the threshold for causingvisibility impairment isthe same as for contributingto. Since the commission expects all Class 

### Iareas have more than one source impacting visibility, only the threshold for contributing to visibility impairmentwill be examined for the BART determination. To clarify the rule, the commissionwill remove the term causes inthis context, sothat the 0.5 deciview value will be applicable only as a contribution threshold.

The Houston Sierra Club expressed the desire that TCEQ revisit the 0.5 deciview threshold after BART has been applied, citing concern that 0.5 deciview threshold may not be stringent enough.The commission has made no changes in response to this comment. Since a determination ofwhich BART-eligible sources will be subject to BART engineering analysis must be determined prior to submittal of the Regional Haze SIP to EPA (December 17, 2007), there is no opportunity to revisit the threshold after it has been applied. However, the state must periodically reassess the reasonable progress goals contained inthe SIP for each Class 

### Iarea. This analysis may indicate that additional emission reductions at BART and other non-BART sources are necessary to make reasonable progress toward the goal of natural visibility conditions.

NPS expressed concern that proposed §I16.1510(b) uses a threshold of 

### greater than 0.5 

### deciviews while the EPA uses a threshold of at 

### or more. NPS suggests that the rule should specify whether the threshold will be the same as EPA language or if Texas will apply a different threshold.

The commission agrees with this comment. For consistency with EPA guidance, the commission has changed the wording inthe rule accordingly.



### SCREENING TOOLS Dow and TCC commented that CALPUFF modeling can be time consuming and resource intensive and that TCEQ's cost estimatesfor modeling are low.

The commission acknowledges that the range of costs for exemption modelingwill vary depending on a number of factors, including the complexity of the source, the size of the facility, and the proximity of the source to Class Iareas and the number of Class Iareas to be modeled. No changes to the rule have been made.Alcoa, AECT, AEP, Ash Grove, El Paso Electric, and TXU have recommended that modelplant exemptions from the requirements of §I16.1520 and §I16.1530 be expanded to include distance and emissions threshold levelsfor PM. BP, Dow, TXOGA, and TCC suggested that the TCEQ include additional screeningtools for evaluating visibility requirements.

The commission agrees that additional tools may be needed. Section 116.1510(b) allows for the use of additional modeling screening tools that have been developed or approved by the executive director. Screeningtools developed based on the CAMx screening modeling have been included inthe modeling guidance documents posted on the BART Web site at: 

### www.tceq.state.tK.us/implementation/air/sip/bart~haze.html.The screening tools include Texas-specific model plants for PMlo, NOx,and SOz. No changes to the rule have been made.

USE OF COMMISSION VS EXECUTIVE DIRECTOR AECT, TXU, Ash Grove, and El Paso Electric recommend that in §I16.1 510(b), the word commission be replaced with executive director. The revision is needed because it will be the executive director's staff, not the commissioners, who will evaluate the modeling. Such revision would be consistent with the rest of the BART rules, which use the term executive directorto refer to the executive director and his staff, and commission to refer to the three commissioners.

The commission agrees with this suggestion and has changed commissionto executive director. The commission notesthat this is consistent with references to the executive director in other parts of the rule.EXTENSION OF SUBMITTAL DATE FOR MODELING AND ENGINEERING ANALYSIS BP, Dow, TCC, and TXOGA commented that the TCEQ should extend the April 

### 30, 2007, deadline for submittal of exemption modeling and the engineering analysis to allow adequate time for regulated entities to conduct and submit modeling that shows that the source does not

cause or contribute to visibility impairment. Dow and TCC suggested extending the deadline to July 

### 31, 2007, to allow ample time for TCEQ to review this information and develop the required Regional Haze SIP by the December 17, 2007, deadline. Arkema suggested the deadline be effective 150 to 180 days after BART rule promulgation.

The commission understands the commenters' concerns, however, due to the short time line, the rule has not been changed in response to comments. The Regional Haze SIP is anticipated to go to the commission for proposal inthe summer of 2007 to meet the adoption date of December and to meet EPA's deadline of December 17, 2007. Itwill take months for TCEQ to review modeling and engineering analysis submittals for general completeness and to identify the magnitude of projected BART emission reductions. Therefore, the April 30, 2007, due date cannot change because of the Regional Haze SIP time line.

MODELING The Houston Sierra Club commented that it does not support waiting until the eighth highest 24- hour visibility reading before deciding whether regional haze is at unacceptable levels as it is stated in the Draft Final Modeling Protocol: Screening Analysis of Potentially BART-Eligible Sources in Texas on page 

### 3-3.

The commission has made no changes in response to these comments. EPA notes in the final BART rule published inthe Federal

### Register on July 6, 2005, that ifthe 98thpercentile, or the eighth highest daily value, from the modeling is less than the contribution threshold of 0.5 deciview then it may be concluded that the source does not contribute to visibility impairment and is notsubject to BART.

AECT and AEP commented that the use of CALPUFF could result in false attribution to Texas

sources of regional haze impacts on Class I areas in other states. AECT and AEP suggested that the air quality model SCICHEM be considered as an alternative to CALPLIFF. SCICHEM is

a stand alone plume dispersion and chemistry model that has been used in some visibility studies.

The commission has made no changes in response tothese comments. Currently, CALPLIFF isthe only EPA-approved modelfor use inestimating single source pollutant concentrations resulting from the long-range transport of primary pollutants. CALPUFF and CAMx are the two models the executive director has determined are appropriate to

use in modeling source emission impacts on Class Iareas for the purposes ofthe BART rule.

AEP commented that approval of CALPUFF in source-specific exemptior~ modeling should be examined with care given the limitations and consequences of CALPUFF modeling. AEP commented that CALPUFF is recognizedto have serious limitations in its chemistry treatment and may overstate secondary particulate matter production. AEP commented that the plume treatment in CALPUFF beyond 200 kilometers is uncertain.

The commission appreciates the comment and acknowledges that CALPUFF has limitations, but has made no changes in response tothese comments. The usefulness of CALPUFF for characterizing transport beyond 200 

# - 300 kilometers, as well as thelimitations of the chemistry treatment inCALPUFF are well known and documented in the EPA document, Interagency Workgroup onAir Quality Modeling(IWAQM) Phase 2 Summary Report andRecommendationsfor ModelingLongRange Transport Impacts (December 

### 1998). EPA notes inthe final BART rule, published inthe FederalRegisteron July 

### 6, 2005, that CALPUFF can be used for purposes, such as visibility assessments addressed inthe final rule, to account for the chemical transformation of SO2and NO,. The commission will allow the use of the photochemical grid model, CAMx, for evaluating visibility impacts at Class Iareas located beyond 300 kilometers from a

source.



### MODELING-OTHER Source Environmental Sciences, Inc. commented that the first sentence of $1 16.1510(b) be revised to the following in order to be consistent with other TCEQ rules, regulations, and guidelines, The owner or operator of a BART-eligible source may demonstrate, using an air dispersion model and air dispersion modeling guidelines approved by the commission, that the

source does not cause or contribute to visibility impairment in a Class I area.

The commission has made no changes in responsetothis comment. Since the commission will allow the use of the photochemical grid model CAMx for evaluating visibility impacts at Class Iareas located beyond 300 kilometers from a source, including the additional wording of air dispersion infront of modeland modelingguidelines would not be an appropriate characterization for numerical grid models, such as CAMx.



### TXU has recommended that TCEQ authorize the use of the photocherr~ical grid model CAMx under $116.1510(b). TXU also cites EPA guidance which notes that the use of photochemicalgrid models is acceptable and, in some cases, may be more accurate and appropriate to use this model.

The commission agrees with the commenter. CAMx is an approved model for exemption modeling under 

### 5116.1 51O(b).

MODELING OF CLASS I AREAS Dow and TCC commented that ENVIRON's final report for the screening evaluation was not available to determine how many Class I areas need to be evaluated for source-specific exemption modeling. TCC suggested that the public comment period be re-opened upon the release of the results of the ENVIRON screening evaluation. TCC suggested that this topic be included in the informational.meeting beirrg held by the TCEQ on November 

### 9, 2006.

The commission has made no changes in response to these comments. The final report of the ENVIRON screening evaluation is available at the Regional Haze Web site: 

### www.tceq.state.tx.us/implementation/air/sip/bart/haze.html. Future addendums to the final reportwill be made available as soon as they are ready.

BP, Dow, TCC, and TXOGA commented that the number of Class I areas to be considered for source-specific exemption modeling is not specified in the proposed rule. BP, Dow, TCC, and TXOGA commented that if multiple Class I areas must be considered, it may increase the cost of modeling significantly. Dow commented that the TCEQ estimates for exemption expenses are low and may not even cover a CALPUFF setup and execution cost for a single source-Class I area combination. BP, .Dew, TCC, and TXOGA requested that the final rule specify the number of modeling runs necessary to exempt a source from the BART Engineering Analysis requirements.

### sources were excluded for only certain pollutants. Ifa source was screened out of BART for one or all pollutants by TCEQYs screening modeling, then that source is not required to conduct additional modeling or BART analysis for that pollutant(s). However, sources using the CAMx model must include all the pollutants intheir modeled emission inventories and visibility impact assessments. The Interagency Monitoring of Protective Visual Environments (IMPROVE) equation requires that concentrations of all pollutants (exempted or not) be included inthe IMPROVE equation.

In addition, the source must review the information used as the basis for the screening modeling (emission rates, stack parameters,etc.) and certify that it 

### is correct. The commission has revised the rules to more clearly explain the requirements for sources that were screened out inthe TCEQ modeling. The exemptions in $116.151O(c)(l)

# - (3) remain available, independently of whether or not a source was screened out by the TCEQ screening modeling.

BART EXEMPTION SHIELD Arkema commented that TCEQ should finalize the BART modeling exemption. Arkema supported TCEQ's proposed approach to allow facilities that can demonstrate no impact on Class I areas to opt out of BART controls. After more review, TCEQ may conclude that the modeling was not performed correctly and that a facility may actually become subject to BART. Arkema commented that TCEQ should modify the proposed rule to shield sources pursuing this option from compliance with the rule until TCEQ approves the modeling demonstration or six months after TCEQ rejects any such modeling demonstration. The six-month period will provide

a source facing rejection of their modeling demonstration adequate time to prepare the required BART analysis and will ensure that a source complying with §I16.1510 does not inadvertently fail to comply with §116.1520 because of participation in another part of the rule.The commission appreciates the support for the 5116.1510(b) exemption process. However, the commission does not concur that a shield for sources who submit modeling under this exemption is appropriate or necessary. In addition, such a shield or extension would tend to further delay the submission of the BART analyses. In order to develop the Regional Haze SIP, the commission needs information about BART applicability and BART controls no later than April 30, 2007.



### MODELING-OTHER AECT, Ash Grove, El Paso Electric, and TXU suggested revisions to §I16.1 510(b) to clarify that

a BART-eligible source demonstrating that its emissions of a particular visibility-impairing pollutant do not contribute to visibility impairment at a Class I area is not required to perform BART analysis for that pollutant.

The commenters suggested changing the rule to make the modeling exemption under 

## 5116.1510(b)function on a pollutant-by-pollutant basis. The commission does not agree that the 5116.1510(b) exemption should be applied on a pollutant-specific basis. Any

owner or operator of a source seeking to claim this exemption must model all visibilityimpairing pollutants cumulatively, even in cases where the TCEQ-conducted screening modeling (or model plant exemptions) indicate that one pollutant type would not contribute to visibility impairment.

AECT, Ash Grove, El Paso Electric, and TXU suggested that §I16.151 0(b) reflect that the demonstration of no impairment can be met through the CAMx modeling recently performed by TCEQ. El Paso suggested a similar revision to 

### §I 16.1510(b) to clarify that modeling performed by a source in accordance with the guidelines approved by the TCEQ is sufficient to demonstrate that a source does not contribute to visibility impairment at a Class I area for thepurpose of determining whether a BART analysis will be required. The commenters expressed that changes to this subsection are necessary to avoid potential disputes where a particular source models out of BART (i.e., less than 0.5 deciviews) in accordance with an approved protocol and guidelines and a third-party uses an unapproved protocol to show an impact above 0.5 deciviews.



### The commission agrees with the commenters that changes are necessary to this subsection and has therefore made changes to the rule. States must submit their Regional Haze SIPS, including the BART component, by December 17, 2007. Given this relatively short time frame and the potentially large number of BART-eligible sources in Texas, the executive director conducted screen modeling, based on emissions and unit construction data obtained from those sources, to obtain a better idea of how many BART-eligible sources would then be required to implement BART controls. A primary purpose of this modeling exercise was to project the level of agency resources that would be necessary to review the source-specific exemption modeling, engineering analyses, and control determinations intime to meet the SIP submittal deadline. The commission has changedthe rule to allow BART-eligiblesources that submitted data to the agency to use the modeling performed by the executive director to demonstrate no visibility impairment for one or more visibility-impairing pollutants. The commission has added new §I16.1510(e) to reflect that in order to use the executive director's modeling for this demonstration, a source must certify that the emissions and location information provided to the executive director in the survey and used in the modeling analysis is correct.PROFESSIONAL ENGINEER REQUIREMENT Dow and TCC requested that TCEQ provide flexibility regarding the submittal of the BART analysis under seal of a Texas licensed professional engineer (P.E.). TCC proposed that the requirement for submittal under seal of a P.E. apply only if the analysis is done by an independent consultant or engineering firm and not if prepared by resources internal to the company owning the source.



### The intended purpose of the P.E. seal requirement for the engineering analysis isto

ensure that the submittals meet a high standard of quality and completeness. This indicates that the burden of proof is on the applicant to ensure that applicable guidance and protocols were followed. 

### A P.E. seal should. reduce the amount of agency resources expended to deal with incomplete or defective submittals and enable the commission to focus resources more efficiently. 'This rationale for requiring each BART engineering analysis to be submitted under P.E. seal does not depend onwhether the analysis was prepared internally by the owner or operator of the source or using external resources. The commission has not changed the rule in response tothis comment.

BP, Dow, TCC, and TXOGA commented that Texas P.E. licensing requirements do not require in-depth knowledge of CALPUFF or CENRAP BART modeling guidelines, and air modeling skills do not necessarily require P.E. knowledge. Dow commented that out-of-state contractors may not have a Texas-licensed P.E. on staff. Source Environmental commented that no existing TCEQ rules or regulations require the sealing of an air dispersion modeling report with

a P.E.seal, and the proposed requirement is unnecessarily restrictive.



### The commission acknowledges that Texas P.E. licensing requirements do not specifically require direct knowledge or experience relating to the CALPLIFF or CENRAP

### modeling. However, a reviewiqg P.E. should still be able to ensure that modelingstaff

are following applicable guidelines and protocols. The P.E. seal requirementwill tend to reduce the amount of agency resources expended to dealwith incomplete or defective submittals and enable the commission tofocus resources moreefficiently. The P.E. must certify that all of the emission and stack parameter data are accurate, and the modeling protocols were followed.

Houston Sierra Club commentedthat TCEQ should not assume thatjust because the BART analyses and modeling are submitted under the seal of a P.E. that TCEQ does not have to conduct a detailed review of 

### every submittal. Houston Sierra Club suggested that TCEQ must trust, but verify 

### each and every submittal in a detailed manner.

The commission acknowledges that the P.E. seal requirement does not guarantee that every modeling report or BART engineering analysiswill be acceptable, although the commission expects that this requirement will result inan overall higher quality level for these submittals. All modelingand engineering analysis submittals will be reviewed for general completeness andto identify the magnitude of projected BART emission reductions. Submittals will be selected for detailed technical review based on a variety of factors, including, but not limitedto: quantity ofvisibility-impairing pollutants; proximity to Class I

### sites; caseswhere the source's prospective BART strategy results in littleto no improvement invisibility; or cases where the source proposes noadditional control. The reviews will be performed with existing commission resources. No changes tothe rulewere made in response tothis comment.PARTICULATE MATTER AEP has commented that coal fired EGUs have some of the highest efficiency on particulate
matter. It recommended that TCEQ drop the requirement in the proposed rule for EGUs to perform source level modeling to assess the visibility impact and subsequent engineering analysis of primary particulate matter from BART eligible sources.



### The commission will not allow sources to eliminate source level modeling for EGUs based on controls in place. Many other source categories also have controls in place. The commissionwill keep the modeling requirement for all potentially BART-eligible

sources to either assess the potentialvisibility using protocols outlined by the TCEQ or continue directly with an engineering analysis. Ifa source models itsvisibility impacts below the threshold of 0.5 deciview, nofurther analysis will be required. Additionally, as described inthe EPA BART rule, the analysis of control options step allows the source to take into consideration any controls in use at a particular unit. Other considerations includethe assessment of available retrofit control options, costs of compliance with control, remaining useful life of the facility, and energy and non-air quality environmental impacts of control options. No changes to the rulewere made in responsetothis
comment.

Ash Grove, Dow, El Paso Electric, and TCC noted that the preamble to the proposal stated that PMlo may be used as the indicator for PM when assessing BART-eligibility. TCC seeks clarification regarding how PMlo can be used as an indicator for PM when assessing BART eligibility considering the exemption in §I16.1 510(c)(3). This exemption states that any BARTeligible source that has a potential to emit (PTE) of less than 15 tpy of PMlo is not subject to BARTfor PIVllo. TCC asked, when evaluating the definition of a BART-eligible source, whetherit is necessary to determine both the potential to emit for PM and PMlo and then compare both to the 250 tpy criteria.

The commission notes that Appendix 

### Y to CFR, Part 51, the federal BART guidelines incorporated by reference inthis rule, provides that a source may use PIVlio as an indicator for PM when comparing it to the 250 tpy cutoff for BART eligibility. Section 116.1510 contains pollutant-specific exemptions to BART control analysis and implementation requirements. Section 11 6.1 510(c)(3)reflects the commission's decision
to include inthe rule the de minimis levels established by EPA under CFR, Part 51, Appendix 

### Y. EPA specifically established the 15 tpy level for PMlo.



### PUBLIC RECORDS Houston Sierra Club commented that the public should have access to the records that an owner or operator must maintain under §I16.1 510(c), to demonstrate compliance with applicable exemption criteria. Houston Sierra Club commented that the public has the right to see and obtain a copy of the documents that are the basis for the exemption that was granted by TCEQ. This right of public access to these documents should bewritten into the rules.

No changes are made in responseto this comment. Section 116.1510(c) provides three ways for smaller sources to be exempted from BART requirements due to their relatively low emission rates. The broadest exemption is the de minimis exemption in $116.1510(c)(3). Hundreds of sources may meet this de minimis exemption. Since hundreds of sources may meet this exemption, it is not practical for the commission to collect and retain information on these de minimis sources. The other exemptions, in $116.1510(c)(l)and (2), are based on permit limits and distance informationthat is already on file at the commission and availablefor public review.

4 1MODELlNG DlSTANCES The Houston Sierra Club commented that in the rule, the distances 31.05 and 62.1 miles appear to be too close to Big Bend and Guadalupeto not have an influence. Houston Sierra Club recommends that greater distances be required before the exemption is allowed.

The commission disagrees with the commenter. The distances that the commenter is referring to are based on the model plants that the EPA developed for 40 CFR Part 51, Appendix 

### Y. There are two model plant exemptions adopted as ~116.1510(c)(l) and 

### (2), respectively. The EPA concluded that sources meeting the stated criteria for emissions and distance from Class 

### Iareas are unlikely to have a significant effect onvisibility. The commission agrees with EPA's assertion. The exemptions in$116.1510(c)(l)and 

### (2) are pollutant specific for NO, and SOz,such that the owner or operator of the source would still be required to perform the BART engineering analysis and implement any applicable BART controls for other visibility-impairing pollutants (such as PM). No changes have been madeto the rule.

CAlR EQUALS BART AECT and TXU strongly concur with proposed 31 16.151 0(d),which would provide that EGUs that are participating in the CAlR cap and trade program will not be subject to BART analysis or control requirements for NOxand S02.

The commission thanks the commenters for their support.

AECT,' El Paso Electric, and TXU commented that the proposed rule be revised to exclude PMID from the consideration of BART-eligibilityfor EGUs participating in the CAlR trading program.The rule has not been revised in responsetothese comments. CAlR controls only NO, and SO2, and not direct PM. Therefore, CAlR will not cover PM for BART. EPA has stated that BART applies to individual sources for PM ifthe PM emissions are above de 

### minimis levels (i.e., PTE of 15tpy) and the impact from the BART-eligible units at the source
causes or contributes tovisibility impairment. PM that isassociatedwith determining BART-eligibility are direct emissions of PM, notthe precursors, therefore they must be considered in determining BART eligibility for all potential BART sources, including EGUs.

The Houston Sierra Club commented that under the TCEQ's Draft Final Modeling Protocol, Screening Analysis of Potentially BART-Eligible Sources in Texas on pages 1-6 and 

### 4-1, the Houston Sierra Club does not agree with EPA that complying with CAlR will necessarily result in sufficient SOnand NO, reductions to meet the regional haze visibility requirements.

'The rule has not been revised in responsetothis comment. The commission has taken the option of using EPA's guidance that allows states to utilize the CAIR cap and trade programs as a meansto satisfy BART for affected EGUs. The TCEQ has determined that CAlR will satisfy the BART requirements for NO, and SO2emissions for EGUs participating inthe CAlR program. However, EPA requires that each state set reasonable progress goals as provided by the Regional Haze Rule and cannot assume that CAlR will satisfy all of its visibility related obligations.

Arkema also commented that CAIR should not equate to BART for EGUs. Their concern regarding CAlR is that individual sources that participate may either reduce emissions to meet a

' limit or purchase allowances to comply with the CAlR rule, and there is not a mechanism to ensure that an individual member of a cap and trade system that has a significant impact on aClass I area is required to reduce emissions. The purchase of CAlR allowances could allow EGUs to shift their BART compliance burden to smaller, more expensive to control, sources, such as Arkema's Houston facility. Arkema advocates applying emission controls to meet agency visibility and attainment goals to the sources that can do so in the most cost-effective manner, however using an unrelated trading program to shift a regulatory burden to smaller entities should not be allowed under this proposal.

The rules have not been revised in response to this comment. The commission has taken the option of using EPA's guidance that allows states to utilizethe CAlR cap and trade programs as a means to satisfy BART for affected EGUs. CAlR controls NO, and SO2and notdirect PM. However, CAlR will not cover PM for BART, and EGUs that meet the individual source PM emissions and are above de minimis levels (i.e., PTE of 

### 15tpy) will be required to do a BART-eligible analysis on their units to determine if the source

causes or contributes to visibility impairment of Class 

### Iareas. In addition to BART, the EPA requires that each state set reasonable progress goals as provided by the Regional Haze Rule and cannot assume that CAlR will satisfy all of its visibility related obligations.



### CUMULATIVE IMPACT Houston Sierra Clubs does not understand how the TCEQ will account for the cumulative impacts that many exempted sources plus non-exempted sources will have on visibility. There should be some type of cumulative effects analysis in the rules that ensures that exempted and

area sources do not lead to delays in reducing visibility obscuring pollutants or cause a failure to meet visibility time frames.

The commission understands the commenter's concern. 'The BART rule does not require

a cumulative analysis, but a cumulative analysis is requiredfor the Regional Haze SIP, ofwhich BART is just a piece. The CENRAP modeling for regional haze will take into account the reductions and includes all the point, area, and mobile sources inthe United States and parts of Canada and Mexico. CAMx and CMAQ will be the modeling platforms used to look at the cumulative effect of BART reductions.

BART ANALYSIS CLARIFICATION 

### NPS supports continuing the inclusion of all sources of particulate matter in the BART analyses.

The commission agrees to include all BART sources in PM modeling that meet the EPA criteria. EGUs and non-EGUswere included in the PM modeling. No change has been made to the rule.

Alcoa commented that the requirement to conduct an analysis of emissions control alternatives for all visibility impairing pollutants at 

### 5116.1 520(a) should be revised. Alcoa commented that

as proposed, an analysis is required by BART-eligible sources, as opposed to sources determined to be subject to BART. Alcoa recommended the proposed language be revised to state: (a) Except as provided under section 116.1510(b), (c), or (d) of this title (relating to Applicability and Exemption Requirements), each BART-eligible source that is subject to BART shall conduct an analysis of emissions control alternatives for visibility-impairing pollutants determined to be causing or contributing to visibility impairment in a Class I area.

The change recommended by Alcoa is not necessary because sources that are not subject to BART are already covered by the reference to 5116.1 51O(b). Section 116.1510(b) isthe mechanism by which sources demonstratethat they are not subject to BART. No changes were made in response to this comment.Arkema commented that TCEQ should finalize proposed minimum emission thresholds. The commenter supports exemptions limiting applicability to the BART analysis to be required in the proposal. The commenter agrees that TCEQ limit the impact of the proposed BART regulations to those facilities that are more likely to have significant impact on Class I area visibility, while not burdening smaller facilities with no identifiable impact on visibility. The commenter expressed that the proposed emissionsldistance (QID) relationships are appropriate.

The commission appreciates the support of the commenter. 

### CAMx screening modeling by TCEQ has exempted many of the smaller sources. Model plants have been developed for exempting more sources. Even though there is no de 

### minimis size on individual units, a source can group its smaller emission units into a pseudo-source for CALPUFF. No changes were made in response to the comment.



### BART CONTROL IMPLEMENTATION No comments were made concerning 

### §I 16.1540.

MISCELLANEOUS Houston Sierra Club is concerned that the Regional Haze SIP does not show sufficient visibility air pollutant reductions due to transboundary emissions from other states. There apparently is no guidance or direction from EPA about how attainment will be obtained in such cases. Houston Sierra Club agrees that each state must reduce its share of visibility air pollutants for its own state's Regional Haze SIP. Houston Sierra Club agrees that when one state affects the attainment of the Regional Haze SIP of a second state then the first state must reduce its visibility air pollutants to assist in attainment of the Regional Haze SIP of the second state.The issues the commenter raises deal with the Regional Haze SIP rather than the BART rule. No changes were made tothe rule.



### Lehigh Cement asked for an extension of the comment period to October 9, 2006.

The commission agreed. Itextended the comment period from September 25, 2006, to October 9, 2006. A notice inthe Texas Register and an e-mail tothe entire BART list

serve announced this change.



### Houston Sierra Club does not understand why the BART rule was not released with the SIP, since both are usually released together. The public was not able to cross-reference both documents and determine whether the rules adequately implement the SIP. The public needs both documentsto review, comment on, and understand. Houston Sierra Club understands that late in 2007

### the Regional Haze SIP will be released and the BART is part of that package. However, by that time the engineering analysis and modeling will be complete and the public will have lost an opportunity to compare the rules and SIP before implementation of BART analyses.

The reason for adopting the BART rule before proposing the Regional Haze SIP isthat BART analyses will be part of the SIP. The companies required to carry out BART analyses need time to prepare the analyses. EPA is requiring BART information inthe SIP. InTexas, the SIP requires the BART rule promulgation to collect the appropriate industry informationfor the SIP package. The public will have a chance to view the BART information during the SIP proposal period and make comments. No changes will be made to the rule.

# STAFF RECOMMENDATIONSSUBCHAPTER M: BEST AVAILABLE RETROFIT TECHNOLOGY (BART) ~~116.1500, 116.1510, 116.1520, 116.1530, 116.1540

STATUTORY AUTHORITY These new sections are adopted under Texas Water Code (TWC), s5.103, concerning Rules, and s5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state. The new sections are also adopted under Texas Health and Safety Code (THSC), s382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and maintenance of adequate visibility; s382.011, concerning General Powers and Duties, which authorizes the commission to establish and control the level of quality to be maintained in the state's air; s382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan for the control of the state's air; s382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act (TCAA); and s382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits to construct new facilities or modify existing facilities that may emit air contaminants, or to operate a federal
source, and to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the TCAA.

The adopted new sections implement TWC, s5.103 and s5.105; and THSC, ss382.002, 382.011, 382.012, 382.01 

### 7, and 382.051.5116.1500. Definitions.

The following terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise. For terms not defined in this section, the definitions contained in 40 Code of Federal Regulations (CFR) s51.301, as effective August 30, 1999, are incorporated by reference.



### (1) Best available retrofittechnology (BART)-eligible source--Any emissions units that comprise any of the following stationary sources of air pollutants, including any reconstructed source, that were not in operation prior to August 7, 1962, and were in existence

on August 

### 7, 1977, and collectively have the potential to emit 250 tons per year (including fugitive emissions, to the extent quantifiable) of any visibility-impairing air pollutant:

(A) fossil fuel-fired steam electric plants of more than 250 million British thermal units (BTU) per hour heat input;

(B) coal-cleaning plants (thermal dryers);

(C) kraft pulp mills;

(D) portland cement plants;

(E) primary zinc smelters;

(F) iron and steel mill plants;(G) primary aluminum ore reduction plants;



### (H) primary copper smelters;

(I) municipal incinerators capable of charging more than 250 tons of refuse per day;



### (J) hydrofluoric, sulfuric, and nitric acid plants;



### (K) petroleum refineries;



### (L) lime plants;



### (M) phosphate rock processing plants;



### (N) coke oven batteries;

(0)sulfur recovery plants;



### (P) carbon black plants (furnace process);

(Q) primary lead smelters;

(R) fuel conversion plants;

(S) sintering plants;(T) secondary metal production facilities;

(U) chemical process plants;



### (V) fossil fuel-fired boilers of more than 250 million BTUs per hour heat input;



### (W) petroleum storage and transfer facilities with capacity exceeding 300,000 barrels;



### (X) taconite ore processing facilities;



### (Y) glass fiber processing plants; and



### (Z) charcoal production facilities.

(2) Visibility-impairing air pollutant--Any of the following: nitrogen oxides, sulfur dioxide, or particulate matter.

$1

### 16.1510. Applicability and Exemption Requirements.

(a) The requirements of this subchapter apply to best available retrofit technology (BART)-eligible sources as defined in 5116.1500of this title (relatingto Definitions).

(b) The owner or operator of 

### a BART-eligible source may demonstrate, using 

### a model and modeling guidelines approved by the executive director, that the source does not contributeto visibility impairment at a Class I area. A BART-eligible source that does not contribute to visibility impairment at any Class I area is not subject to the requirements of 5116.1520or 5116.1530 of this title (relating to BestAvailable Retrofit Technology (BART) Analysis and Best Available Retrofit Technology (BART) Control Implementation). A source is considered to not contribute to visibility impairment if, as demonstrated by modeling performed by the executive director or performed in accordance with the guidelines approved by the executive director, it causes a visibility impairment of less than 0.5 deciviews at all Class I areas. 'The modeling demonstration must be submitted under seal of a Texas licensed professional engineer and must be received by the cornmission's Air Permits Division no later than April 30, 2007.

(c) The following BART-eligible sources are not subject to the requirements of 5116.1 520 or 5116.1 530 of this title for the indicated pollutant(s). Owners or operators claiming exemption under this subsection shall maintain records sufficient to demonstrate compliance with the exemption criteria, and shall make such records available upon request of personnel from the commission or any local air pollution control agency having jurisdiction.

(1) Any BART-eligible source that has the potential to emit less than 500 tons per year of combined nitrogen oxides (NOx)and sulfur dioxide (SO2)and that is located more than 50 kilometers from any Class I area is not subject to BART for NOxand SO2.

(2) Any BART-eligible source that has the potential to emit less than 1,000 tons per year of combined NO, and S02and that is located more than 100 kilometers from any Class I area is not subject to BART for NOxand SO,.

(3) Any BART-eligible source that has the potential to emit less than 40 tons per year of NO, or 40 tons per year of SO2is not subject to BART for NOxor SO,, respectively. AnyBART-eligible source that has the potential to emit less than 15tons per year of particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PMlo) is not subject to BART for PMI0.

(d) BART-eligible electric generating units participating in the Clean Air Interstate Rule Trading Program are not subject to the requirements of §I16.1520 or §I16.1530 of this title for NO, and SO2.

(e) Any BART-eligible source that has been screened out by the Texas Commission on Environmental Quality-conducted screening modeling is not subject to the requirements of §I16.1520 or §I16.1530 of this title, for the specified pollutant(s), if the owner or operator has reviewed the modeling inputs for that source and the executive director receives written certification that the inputs are correct no later than February 28, 2007.



### §116.1520. 

### Best Available Retrofit Technology (BART) Analysis.

(a) Except as provided under §I16.1510(b), (c), or (d) of this title (relating to Applicability and Exemption Requirements), each best available retrofit technology (BART)- eligible Source shall conduct an analysis of emissions control alternatives for all visibilityimpairing pollutants. This analysis must include the identification of all available, technically feasible retrofit technologies, and for each technology identified, an analysis of the cost of compliance, the energy and non-air quality environmental impacts, the degree of visibility improvement in affected Class I areas resulting from the use of the control technology, the remaining useful life of the source, and any existing control technology present at the source. Based on this analysis, the owner or operator shall identify an emission control strategy as the prospective BART control strategy for the source. The determination of BART must be madeaccording to 40 Code of Federal Regulations Part 51, Appendix Y, as effective September 

### 6, 2005.

(b) As part of the BART analysis required in subsection (a) of this section, the owner or operator shall include detailed information documenting the projected hourly and annual emission limits for the selected BART control strategy.

(c) The owner or operator of each BART-eligible source shall submit a completed BART analysis to the commission's Air Permits Division under seal of a Texas licensed professional engineer. The completed BART analysis must be received by the commission'sAir Permits Division no later than April 30, 2007.



### 9116.1530. Best Available Retrofit Technology (BART) Control Implementation.

(a) Each owner or operator of a best available retrofit technology (BART)-eligible source shall install and operate BART-required control equipment no later than five years after the Ur~ited States Environmental Protection Agency has approved a Regional Haze State Implementation Plan for the State of Texas. Each owner or operator shall maintain the BARTrequired control equipment and establish procedures to ensure such equipment is properly and continuously operated and maintained.

(b) Prior to any installation of BART-required control equipment, each owner or operator of a BART-eligible source shall comply with the requirements under Subchapter B of this chapter (relating to New Source Review Permits), Subchapter F of this chapter (relating to Standard Permits) or Subchapter H of this chapter (relating to Permits for GrandfatheredFacilities) as applicable to authorize the construction or modification and to establish emission limitations of BART.



### 3116.1540. Exemptionfrom BestAvailable Retrofit Technology (BART) Control Implementation.

The owner or operator of any best available retrofit technology (BART)-eligible source may apply for an exemption from the requirement to install, operate, and maintain BARTrequired control equipment, pursuantto the provisions of 40 Code of Federal Regulations 351.303. Any exemption request under this section requires initial approval from the executive director and final approval from the administrator of the United States Environmental Protection Agency (EPA). Exemption requests submitted to the EPA must be accompanied by written concurrence from the executive director.

# TEXAS COMMISSION ON 

# ENVIRONMENTAL Q~~ynt~ COU,~~ 

### *I; r~q~i! 3 1herebyixrt& thz7 &ISEa 'Inscndcorrectcopyofe TexasCMsmissisnw EnwmnmntalQualitydoaunerrC, which isfiledn ?he permanentrecordsoftheCommigkn



### ORDER ADOPTING NEW RULES AND iadonna 

### & WCbk 

### REVISION TO THE STATE IMPLEMENTATIO onE~Qu8uly



### Docket No. 2006-0228-RUL
On January 10, 2007, the Texas Commission on Environmental Quality (Conmission), during a public meeting, considered adoption of new 

## $5 116.1500, 116.1510, 116.1520, 116.1530 and 116.1540. The Commission a.dopts these new sections in Chapter 116, Control of Air Pollution by Permits for New Construction or Modification, Subchapter 

### M: Best Available Retrofit Technology (BART); and corresponding revision the state implementation plan (SIP). The rules would add new Subchapter M to Chapter 116 to ensure that owners or operators of sources that are subject to BART requirements perform an engineering evaluation to determine the appropriate level of BART emission controls and subsequently implement any required BART controls. The sources that would be affected by the rules are those that belong to one of 26 industry source categories, have the potential to emit 250 tons per year or more of a visibility-impairing pollutant (nitrogen oxides (NOX),sulfur dioxide (Sol), or particulate matter (PM)), and were built or reconstructed between August 7, 1962, and August 7, 1977. The rules also provide a mechanism for sources to exclude themselves from BART requirements if they demonstrate, by meeting exemption criteria or through modeling, that they do not significantly impact visibility in Class I areas. Under Tex. Health & 

### Safety Code Ann. 

## $5 382.011, 382.012, and 382.023 (Vernon 2001), the Colnmission 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 rules were published for comment in the August 25, 2006 issue of the 

### Texas Register (31TexReg 66 16). Pursuant to Tex. Health & 

### Safety Code Ann. $ 

### 382.017 (Vernon 2001), Tex. Gov't Code Chapter 2001 (Vernon 2000 & 

### Vernon Supp. 2005), and 40 Code of Federal Regulations 

## 3 51.102 and after proper notice, the Colnmission conducted a public hearing to consider the new sections and revision the SIP. Proper notice included prolninent adveitisement in the areas affected at least 30 days prior to the date of the hearing. A public hearing was held in Austin, Texas on September 18,2006. The Coln~nissioll 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 pl-oposed new rules and SIP revision, either orally or in writing, at the hearing or during the colnlnent period. Prior to the scheduled hearing, copies of the proposed new rules and SIP revision were available for public inspectioll at the Commission's central office and on the Commission's Web site. Data, views, and reco~n~nendatiolls of interested persons regarding the proposed new rules and SIP revision were submitted to the Colmnission during the coln~nent period, and were considered by the Colninission as reflected in the analysis of testi~nonyincorporated by reference to this Order. The Coirunissioil finds that the analysis of testimony includes the names of all interested groups or associations offering coimneilt on the proposed new rules and the SIP revision and their position conceriliilg the same.a 23 ' 

### IT IS THEREFORE ORDERED 

### BY THE COMMISSION that the new rules and revision to the

, u, 

### SIP incoborated by reference to this Order are hereby adopted. The Coinmission further authorizes staff to make any non-substantive revisioils to the rules necessary to comply with 

### TexasRegister requirements. The adopkd rules and the preamble to the adopted rules 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 Comnission, the Chairman should transmit a copy of this Order, together with the adopted rules 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, 

### 110,codified at 42 U.S. Code Ann. 

### $5 7410 

## - 7671q, as amended.

I 

### This Order coilstitutes tlie Order of the Coinlnission required by the Administrative Procedure Act, Tex. Gov't Code, 

### 5 2001.033 (Vernon 2000 & 

### Vernon Supp. 2005). 

### If any portion of this Order is for any reason held to be invalid by a court of competentjurisdiction, the invalidity of any portioil shall not affect the validity of the remaining portions.

Date issued: 

# JAN 1 9 

# 2007 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY(i) relating to new d$~gsand antibiotic drugs; and (ii) subject to reporting and inspection under replatioiis issued under $505(i) or 6) of the Federal Act; or (F) data relatingto othe drugs tliat, in the case of a new 

## 1 drug, would be subject to reporting or mspection under regulations issued under $5056)of the Federal ~ct.j I (4) An inspecti011~~nder paragraph (2) of this subsection shall be started and completed with reasonable promptness. I (b) Receipt for samples. An a~ithorized agent orhealth authority who makes an inspection of a place bfbusiness, including a factory or warehouse, and obtains a sample during or on co~npletion of the inspection and before leaving the 

## plat/: of business, shall give to the owner, operator, or the owner's or operator's agent a receipt describing the sample. 

### 1 i (c) Access to records. 

# 1 (1) A person who is requ&ed to maintain records referenced in these sections or under the T as Food, Drug, and Cosmetic 

# G Act, Health and Safety Code, Chapter 43 1 (Act) or Chapter V of the i Federal Food, Drug, and Cosmetic AcQ(Federa1 Act) or a person who is in cliage or custody of those record! shall, at the request of an authorized agent or health authority, pen11 t the authorized agent or health 

### t authority at all reasonable times acces to and to copy and verify the records. 

# 1

other person receiving a prescription dn~g received in shall, at the request of an authorized agent, pennit the at all reasonable times to have access to and to copy (A) the movement in dolnlnerce of any prescription drug; 

# 1 I (B) the holding of any :prescriptio~l drug after movement in commerce; and 

# I (C) the qnantity, shippe and consignee ofally prescription drug. 

# I

Applicable Laws and Regulations). (e) Adulterated or misbranded brescriplion dr~~g. Ifthe departcensure). (f) Order to cease distribution.

# I order requil-inga perI (A) a wholesale distrib~!torhas: I (i) violated these sections or the Act: or or death; and(B) other procedurek would resi~lt in unreasonable delay. 

# I (2) An order under this,s~~bsection must provide theperson subject to the order with an opport \nity for an informal hearing 011the actions required by tlie order to be eld not later than the 10thday afler tlie date of issuance of the order.

# t

This agency hereby certifies th9\ the adoption hasbeen reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. 

# I I Filed with the Office of the Secretary of State on January 12, 1 2007. TRD-200700113 Cathy Campbell General Counsel
Effective date: February 1,2007



### 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 M. BEST AVAILABLE RETROFIT TECHNOLOGY (BART) 30 TAC $$116.1500,116.1510,116.1520, 116.1530, 116.1540 The Texas Commission on Environmental Quality (TCEQ or commission) adopts new $9116.1500, 116.1 510, 116:1520, 116.1530, and 116.1540. Sections 116.1500, 116.1510, and 116.1530 are adopted with changes to the proposed text as published in the August 25, 2006, issue of the Texas Register (31 TexReg 6616). Sections 116.1520 and 116.1540 are adopted without changes and will not be republished. The adopted new sections will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES The Federal Clean Air Act (FCAA), §169A, Visibility Protection for Federal Class IAreas, and §169B,Visibility (42 United States Code (USC), s7491 and §7492), require the EPA to adopt regulations to address visibility impairment at federal Class I areas



### 32 TexReg 318 Jalzuu~y 26, 2007 TexasRegisterdue to regional haze. Class I areas are federally designated parks and scenic areas of national importance. There are 156 Class I areas in the United States, including national and international parks and wilderness areas. Regional haze is caused by the emission of air pollutants from numerous sources located over a wide geographic area. The EPA promulgated regulations to address these statutory requirements in 40 Code of Federal Regulations (CFR) Part 51, Subpart P, Protection of Visibility, on July I,1999 (64 FR 35763), and promulgated amendments to Subpart P and a newAppendix Y, Guidelines for BART Determinations Underthe Regional Haze Rule,to Part 51on July 6,2005 (70 FR 39156). The FCAA and implementing regulations require states to submit SIPSto address visibility impairment caused by regional haze and include guidelines for determining best available retrofit technology (BART). As part of the SIP, states must identify BART-eligible sources. BART-eligible sources belong to one of 26 named source categories, have the potential to emit 250 tons per year (tpy) or more of a visibility-impairing pollutant (nitrogen oxides (NOx), sulfur dioxide (SO,), and particulate matter (PM)), and were built or reconstructed between August 7, 1962, and August 7, 1977. These sources must be evaluated to determine whether they contribute to visibility impairment at any Class I area. BART-eligible sources that contribute to visibility impairment at any Class I area are subject to BART and owners or operators must conduct a technology evaluation to determine the appropriate level of BART controls. BART is to be determined on a case-by-case basis for each source based on the technology available, the costs of compliance, the energy and non-air quality environmental impacts of controls, any existing pollution control technology used by the source, the remaining useful life of the source, and the degree of visibility improvement that would result from the use of the technology. The adopted rules revise Chapter 116 to ensure that owners or operators of sources that are subject to BART requirements perform a BART engineering evaluation to determine the appropriate level of BART and subsequently implement any required BART controls. The adopted rules also provide mechanisms for BART-eligible sources to demonstrate that they do not significantly impact visibility in Class I areas and are therefore not subject to BART control requirements. The TCEQ is requiredto submit a Regional Haze SIP to the EPA no later than December 17,2007. In order to develop this SIP in a timely manner, the TCEQ must receive the BART engineering analyses (or BART exemption modeling) from each BART-eligible source no later than April 30, 2007. A corresponding deadline is adopted in the rules. SECTION BY SECTION DISCUSSION §116.1500. Definitions. The commission adopts new §116.1500, which contains definitions relevant to the rules. The terms defined include BART-eligible source and visibility-impairing air pollutant. The definition of BART-eligible source is similar to the functional definition of this term under 40 CFR $51.301, Definitions, except that the definition refers only to visibility-impairing pollutants, instead of all pollutants. The definition of BART-eligible source has been revised in response to comments, to more clearly indicate that the BART-eligible source is based on an aggregation of emission units, and does not necessarily include all equipment at the plant site. The term'"visibility-impairing air pollutant" is also defined and includes NO", SO,, and PM, which are the principal species emitted fromTexas sources that influence visibility. Note that particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM,,) may be used as the indicator for PM when assessing BART eligibility. The commission has not included volatile organic compounds (VOCs) or ammonia as visibility-impairing air pollutants. 'The commission's research has determined that VOCs are not a significant contributor to visibility impairment at Class I areas that are impacted by Texas facilities. In addition, the commission has not included ammonia because existing background levels in Texas would make visibility improvements from ammonia source reductions only marginally effective. For terms not defined in this section, the definitions contained in 40 CFR §51.301 apply. The effective date of the 40 CFR 551.301 incorporation has been revised to August 30, 1999, in response to a comment. §I76.1510. Applicability and Exemption Requirements. The conlmission adopts new ~116.1510to specify which facilities will be subject to the adopted rules and identify certain exemptions which may apply. The rules only applyto BART-eligible sources as defined in ~116.1500. Under adopted ~116.1510(b), the owner or operator of a BARTeligible source may elect to use modeling to demonstrate that the source does not contribute to visibility impairment at any Class I areas. If the owner or operator successfully demonstrates that the source does not contribute to visibility impairment, the source would not be subject to the requirements of §116.1520, Best Available Retrofit Technology (BART) Analysis, and §116.1530, BestAvailable Retrofit Technology (BART) Control Implementation. Owners or operatorswho seek to claim this exemption must submit the exemption modeling to the commission's Air Permits Division no later than April 30, 2007, under seal of a professional engineer licensed in the State of Texas. BART exemption modeling and modeling conducted as part of the BART analysis must conform to an executive director-approved model and associated guidelines. The executive director has approved the use of the California Puff Model (CALPUFF) and the Central Regional Air Planning Association's (CENRAP) BART Modeling Guidelines, as well as the use of the Comprehensive Air Quality Model with extensions (CAMx) model. Modeling protocols for both CALPUFF and CAMx are available on the TCEQ Web site at: www.tcea.state.tx.us/imolementation/air/sip/bah/haze. html. Persons seeking guidance about the modeling guidelines and other aspects of the BART modeling process should contact the commission's Air Permits Division. The comlnission is adopting a 0.5 deciview threshold for determining whether a source contributes to visibility impairment. EPA guidance indicates that 0.5 deciview is the upper limit that states should use for determining whether a source contributes to visibility impairment. Factors that may influence the selection of this threshold are the number of emission sources affecting Class I areas and the magnitude of emissions from the individual sources. In response to comments, the commission has modified the proposed language of ~116.1510(b) to refer only to sources that do not contribute to visibility impairment, because this correlates to the selected 0.5 deciview threshold. The commission expects Class I areas to have more than one source affectingvisibility, so the contributing to threshold, not the cause threshold, will be the controlling factor for BART determinations. As a result of comments, the commission has also modified the rule to clarify that the threshold for contributing to visibility impairment is a change in visibility that is greater than or equal to 0.5 deciview, instead of simply greater than 0.5 deciview.



### ADOPTED RULES Jarzzaurj~ 26, 2007 32 

### TexXeg 319The commission is adopting several exemptions under §I16.1510(c). These exemptions are based on examples that the EPA developed for 40 CFR Part 51, Appendix Y. There are two "model plant" exemptions adopted as §I16.1510(c)(l) and (2), respectively. The EPA concluded that sources meeting the stated criteria for emissions and distance from Class I areas are unlikely to have a significant effect on visibility. The exemptions in $116.1510(c)(l) and (2) are pollutant specific for NO, and SO,, such that the owner or operator of the source would still be required to perform the BART engineering analysis and implement any applicable BART controls for other visibility-impairing pollutants (such as PM). The exemption adopted under ~116.1510(c)(3) is based on de minimis emission totals that EPA determined would be unlikely to contribute to regional haze. As is the casewith the exemptions in $116.1510(c)(l) and (2), the exemption in $116.1510(c)(3) is pollutant specific. For example, a source may be exempted for purposes of NOxor SO, while remaining subject to BARTrequirements for PM. A source claiming this exemption could also be exempted from BART requirements for PM while remaining subject to BART for other visibility-impairing air pollutants. The de minirnis exemption level in $116.1510(~)(3) is determined by the emissions of PM,,. Owners or operators claiming exemption under $116.1510(c) are required to maintain recordsto demonstrate compliance with the exemption criteria, and shall make such records available to the commission or any local air pollution control agency with jurisdiction upon request. The commission is adopting $116.1510(d) to provide that electric generating units (EGUs) that are participating in the Clean Air Interstate Rule (CAIR) cap and trade program may avoid a BART analysis and implementation of controls for NO, and SO,. The EPA has determined that CAlR provides greater reasonable progress than BART and has correspondingly allowed the use of CAlR as an acceptable substitute for the application of BART controls. This subsection only addresses NOxand SO,, so BART-eligible EGUs would remain subject to BART requirements for PM. In response to public comment, the commission has added $116.151 0(e), to clarify that owners or operators of BART-eligible sources that were screened out by the TCEQ's contractor-performed screening modeling are not required to comply with the requirements for the BART analysis or BART controls for the screened pollutant(s). However, an owner or operator seeking to use this exemption must submit a certification to the TCEQ no later than February 28, 2007, that the modeling inputs used in the screening modeling were valid. Entities that were screened out by the TCEQ's modelingwill be notified by mail. $116.1520. BestAvailable Retrofit Technology (BART) Analysis. The commission adopts new $116.1520, which contains requirements for the BART engineering analysis. BART-eligible sources that are not exempted under $116.1510 are required to develop a BART engineering analysis to determine BARTfor that source. The analysis shall be conducted according to the procedures established in 40 CFR Part 51, Appendix Y, Guidelines for BART Determinations Under the Regional Haze Rule, Section IV, The Bart Determination: Analysis of BART Options. The BART analysis must include an evaluation of all technically feasible retrofit technologies in accordance with the five factors stated in FCAA, $169A(g)(2) (42 USC, $7491). The factors to be considered in the BART analysis are: an analysis of the cost of compliance, the energy and non-air quality environmental impacts, the degree of visibility improvement in affected Class I areas resulting from the use of the control technology, the remaining useful life of the source, and any existing control technology present at the source. Based on these statutory factors, the owner or operator must select and identify one of the emission control alternatives as the prospective BART control strategy for the source. Adopted $11 6.1520(b)will require the owner or operator to specify short-term (hourly)and long-term (annual) emission limits associated with the selected BART control strategy. This information is necessary for the commission to develop the required Regional Haze SIP. Adopted $116.1520(c) establishes a deadline of April 30, 2007, for submission of the BART analysis. This deadline is necessary to providethe commission with sufficient time to review the BART analyses and compile BART emission reductions to develop the required Regional Haze SIP by the December 17, 2007, deadline. $116.1530. Best Available Retrofit Technology (BART) Control Implementation. The commission adopts new$116.1530, which contains requirements and deadlines associated with the implementation of any required BART controls. Adopted $116.1530(a) establishes the deadline for any required BART controls to be implemented. Federal regulations specify that BART controls must be in place no later than five years after the EPA approves astate's Regional Haze SIP. Given that the commission is required to submit the Regional Haze SIP to EPA by December 17,2007, and the EPA will require some time to review the SIP, it is likely that the BART control deadline will occur during or after the year 2013. Many factors influence the schedule ofthe development and approval of the Regional Haze SIP and it would be difficult to estimate a more precise deadline. Adopted $116.1530(a) also contains a requirement for owners or operators to establish procedures to ensure that BART-required control equipment is properly and continuously operated and maintained. Adopted $116.1530(b) is intended to ensure that owners or operators subject to BART obtain any necessary authorization for new control equipment and establish enforceable mechanisms to ensure ongoing compliance with BART. The adopted rule requires that each owner or operator of a BART-eligible source comply with applicable portions of Subchapters B, F, and M of Chapter 116. The rule has been revised in response to comments from the U.S. EPA, to more clearly identify applicable permitting requirements. $11 6.1540. Exemption from Best Available Retrofit Technology (BART) Control Implementation. Adopted new$116.1 540 provides a case-specific mechanism for BART-eligiblesources to request an exemptionfrom BART control requirements. In order to obtain exemption under this section, the owner or operator seeking exemption must first obtain initial approval from the commission, then obtain final approval from the EPA. Although this exemption may be usedto avoidthe otherwise-required installation of BART controls,this exemption does not negate the requirement to perform the BART analysis required under adopted $116.1520, or the requirement to submit the analysis no later than April 30, 2007. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

32 

### TexReg 320 Juiznuiy 26, 2007 

### TexasRegisterThe commission reviewed tlie adopted rules in light of the regulatory impact analysis requirementsof Texas Government Code, $2001.0225, and determined that the rulemaking meets the definition of a major environmental rule as defined in that statute. A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, andthat may adversely affect ina materialway the economy, a sector of the economy, productivity, competition,jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted rulkmaking does not, however, meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule,which are listed in Texas Government Code, $2001.0225(a). Texas Government Code, $2001.0225, applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking will require BART on certain sources of NOr, SO,, and PMthat contribute to visibility impairment in any Class I area. The adopted new §$116.1500, 116.1510, 116.1520, 116.1530, and 116.1540 will ensure that owners or operators of sources that are subject to BART requirements pelform a BART engineering evaluation to determine the appropriate level of BART and subsequently implement any required BART controls. The rules incorporate by reference the EPA's Guidelines for BART Determinations Under the Regional Haze Rule (40 CFR Part 51, Appendix Y). The rules also provide mechanisms for BART-eligible sources to demonstrate that they do not significantly impact visibility in Class I areas and are therefore not subject to BARTcontrol requirements. This strategy is intended to address visibility impairment at federally designated parks and scenic areasof national importance (Class I areas) and thus the intent of the adopted rules is protection and improvement of the aesthetic environment in these areas. Furthermore, the commission finds that the revisions to Chapter 116 in this rulemalting could adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Under the adopted new sections, BART-eligible sources are those sources that belong to oneof 26 named source categories, have the potential to emit 250 tpy or more of a visibility-impairing air pollutant (NOx, SO,, and PM), and were built or reconstructed between August 7, 1962, and August 7, 1977. The commission has determined that approximately 127 sources may be BART eligible. Sources determined to be subject to BART through the engineering analysis of Appendix Y must install and operate BART controls for the source five years after the EPA approves the state's Regional Haze SIP. The commission anticipates that a fraction of these BART-eligible sources will actually be required to install BART controls, and it is not yet ktiown what BART will be for each source. Some sources will model out of the requirement to determine and ultimately install BART; and EGUs may use CAlR as a substitute for BART for NOx and SO,. The exact cost of the BART controls for each unit cannot be predicted, but significant costs to comply with the control requirements may be expected from at least some units, which could in turn adversely affect a sector of the economy. The EPA has estimated costs ranging from $1,000 to $10,000 per ton of NOz,SO,, or PM. Given the potential for significant costs, the commission has made the determination that this ruleniaking meets the definition of a major environmental rule. Nevertheless, the adopted new sections to Chapter 116 are not subject to the regulatory analysis provisions of Texas Government Code, $2001.0225(b), because the adopted rules do not meet any of the four applicability requirements in subsection (a) of that section. Specifically, the BART requirements in Chapter 116 were developed to be included in the Regional Haze SIP that will be submitted to the EPA as required under FCAA, 42 USC, $7491 and $7492, and therefore meet a federal requirement. The Federal Clean Air Act (FCAA, 42 USC, $7491) requires each SIP to include a requirement that each BART-eligible source that is reasonably anticipated to contributeto visibility impairment in any Class I area to procure, install, and operate BART controls. BART is to be determined according to tlie five factors listed in$7491(g)(2). Section 7492 of the FCAA requires that any regulations promulgated by the EPA pursuantto s7491 require states to revise their SIPS under FCAA, 42 USC, $7410 to include a regional haze plan that includes BART for certain sources. The requirementto provide a fiscal analysis of proposed regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Leg~slature, 1997. The intent of SB 633 was to require agenciesto conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded basedon an assessment of rules adopted by the agency in the past, it is not anticipated that the billwill havesignificant fiscalimplicatio~is for the agency due to its limited applicatio~i. The commission also noted that the number of rules that would require assessment under the provisions of the b~ll was not large. This conclusion was based, In part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless the rulewas a major env~ronmental rule that exceeds a federal law. The FCAA does not always require specific programs, methods, or reductions in order to meet emission standards or visibility goals and reasonable progress of those goals; thus, states must develop programs and strategies to help ensure that those standards and goals for new and existing sources are met. The same is true for visibility protection. Because of the ongoing need to address nonattainment issues, and to meet the requirements of 42 USC, $7410, the commission routinely proposes and adopts SIP rules. As discussed earlier in this preamble, states must also revise their SIPS under $7410 to incorporate a plan for visibility protection, including requirements for BART. The legislature is presumedto understandthis federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIPrules will have a broad impact, that impact is no greater than is necessary or appropriate to meetthe requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are required by federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that when an agency interpretationis ineffect at the time the legislature amends the laws without making substantial change inthe statute, the legislature is deemed to have acceptedthe agency's interpretation. Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ); Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 91 6 (Tex. 1978). The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based uponAPA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of substantial compliance. The legislature specifically identified Texas Government Code, s2001.0225, as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, s2001.0225. The specific intent of the rulemaking is to adopt BART rules and incorporate by reference the federal BART determination guidelines, with the objectiveto reducevisibility impairment infederal Class I areas. There is no contract or delegation agreement that covers the topic that is the subject of this action. Therefore, the adopted rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, or exceed a requirement of a delegation agreement. Finally, this rulemaking action was not developed solely underthe general powers of the agency, but is authorized by specific sections ofTexas Health and Safety Code (THSC), Chapter 382 (also knownas the Texas Clean Air Act (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, ss382.012, 382.017, and 382.051. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because although the rulemaking meets the definition of a major environmental rule, it does not meet any of the four applicability requirements. TAKINGS IMPACT ASSESSMENT The commission evaluated the adopted rules and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to this rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4). Specifically, the new sections of Chapter 116 require that BART-eligible sources determine whether they are subject to BART controls. Those sources that are subject to BART must perform a BART engineering evaluation to determine the appropriate level of BART, and subsequently implement any required BART controls. The Federal Clean Air Act (FCAA, 42 USC, s7491) requires each state to submit a Regional Haze SIP to address visibility in federal Class 1 areas. The FCAA further mandates that the SIP require each BART-eligible source that is reasonably anticipated to cause or contribute to visibility impairment in any Class 1 area to procure, install, and operate BART. BART is to be determined according to the five federally established factors, listed in 42 USC, s7491(g)(2). CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined that this rulemaking action relates to an action or actions subject tothe Texas Coastal Management Program (CMP) inaccordance with the Coastal CoordinationAct of 1991, as amended (Texas Natural Resources Code, ss33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B,concerning Consistency with the CMP. 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 reviewedthis action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council and determined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The adopted rules are intended to implement a federally required programto apply BART emission controls to certain sources of visibility-impairing air pollutants. The adopted changes would tend to reduce undesirable haze at federal Class 1 areas. Certain aspects of this rulemaking are intended to protect the environment or reduce risks to human health from environmental exposure. 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 (31TAC §501.14(q)). This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31TAC §505.22(e),the commission affirmsthat this rulemaking action is consistent with CMP goals and policies. EFFECTON SITES SCIB.IECT TOTHE FEDERAL OPERATING PERMITS PROGRAM Owners and operators subject to the Federal Operating Permit Program must, consistent with the revision process in 30 TAC Chapter 122, Federal Operating Permits Program, revise their operating permitsto include the applicable BART control requirements or emission limits for each source. PUBLIC COMMENT A public hearing was held on the proposed rules on September 18, 2006, in Austin, Texas. The comment period was originally scheduled to end on September 25, 2006, but was extended at the request of commenters, and closed on October 9, 2006. The commission received comments from American Electric Power (AEP), Alcoa Inc. (Alcoa), Arkema Inc. (Arkema), Ash Grove Texas, L.P. (Ash Grove), Association of Electric Companies of Texas (AECT), BP Products North America Inc. (BP), Dow Chemical Company (Dow), El Paso Electric Company (EPE), Sierra Club-Houston Regional Group (Houston Sierra Club),Source Environmental Sciences, Inc., Texas Chemical Council (TCC), Texas Lehigh Cement Company, Texas Oil and Gas Association (TXOGA),TXU Power (TXU), National Park Service (NPS)a divisionof the United States Department of Interior, and the United States Environmental Protection Agency, Region 6 (EPA). No individuals provided comments, BP supported comments submitted by TXOGA. TXU supported comments submitted by AECT. RESPOIUSE TO COMMENTS FEDERAL APPROVABILITY EPA commented that the de minimis exemptions in proposed ~116.151O(c)(3) should be modified to clarify that these exemptions apply on a plant-wide basis, as described in 70 FR 39117 and 39161. The de minimis exemptions are evaluated based on the total potential emissions from the BART-eligible source as a whole, which includes the total emissions from all the emission units that meet the BART-eligibility criteria. Therefore, these exemptions already incorporate a plant-wide approach. Therefore, the commission did not change the rule in response to this comment. EPA suggested that in §116.1500(d), Texas should modify the language to make it clear that participation in the CAlR does not absolve a BART-eligible source from possibly being found subject to the BART provisions of the regional haze rule for PM. The rule has not been revised in responseto this comment. The commission is aware that CAlR controls only NOr and SO,, and not direct PM. Therefore, CAlR will not cover PM for BART. EPA commented that in §116.1520(b), the proposed rule requires the owner or operator to provide detailed information documenting the projected hourly and annual emission limits for the selected BART control strategy. EPA stated that this requirement, although important, could benefit from additional specificity, similar to that required under existing §116.12(1) 

### - (3). three or more years of life. The reopening must be completed within 18 months after promulgation of the new applicable requirement and the reopening must follow the same procedures (public comment, etc.) as apply to initial permit issuance. The commission has revised the language in §116.1530(b) in response to this comment. The language clarifies that every BART source must comply with the requirements of Subchapter B (for New Source Review Permits)or Subchapter F (for Standard Permits). These subchapters address requirements for permitted facilities to apply for permit amendment, permit alteration, or standard permit, as applicable. The new language will also cover modifications to grandfathered facilities permitted under Chapter 116. Because Texas' Title V program rules (30 TAC Chapter 122),do not reference preconstruction permits issued under Title I of the FCAA, but instead reference preconstruction permits under Chapter 116, Title V sourceswill be required to revisetheir operating permits after issuance of the modified permit required under §116.1530(b). Title V sources with BART-subject sources authorized under a grandfathered permit (existing facility or Voluntary Emission Reduction Permit (VERP)) must also revise their TitleV permit to reflect the BART limits added to their Chapter 116 authorization. EPA questioned the exclusion of VOCs and ammonia inthe definition of visibility-impairing pollutant. The commission understands the commenter's concerns that VOCs and ammonia are not included on the list of BART pollutants. The TCEQ has modeled the visibility impairment impact of VOC emissions from all potentially BART-eligible sources in Texas for Class I areas in Texas and surrounding states. The collective impact of all these sources was below the de minimis impact threshold of 0.5 deciview. Therefore, the collective impact of all individual sources and all groupings of sources from among the potentially BART-eligible sources in Texas is below the de minimis threshold. For this reason, the commission concludes that it is appropriate not to list VOCs as a visibility-impairing pollutant for potentially BART-eligible sources in Texas. The rules have not been revised in response to these comments. The proposed requirementto document the projected hourly and The commission has considered emissions and has annual emission limits is sufficiently straightforward, and it is not concluded that it would be to add ammonia to the clear which aspects of §116.12(1) 

### - (3) would be applicable. No list of visibility.,impairing pol,utants in the BART rule. lndustriai changes were made in response to this comment. ammonia emissions are less than 1%of the total ammonia emisEPA commented that the commission may wish to define BARTrequired control equipment as used in §116.1530(a) and (b). The term BART-required control equipment simply means the control equipment installed to satisfy the BART rules. Because the meaning is sufficiently straightforward, an explicit definition is not necessary. EPA stated that in §116.1530(b), the TCEQ rule discusses how BART-required control equipment must be housed within a permitorother enforcement mechanism. As written, the provision is vague and would not be approvable as a SIP revision. EPA recommended TCEQ provide further clarification and reference any specific permitting rules and procedures that apply. In addition, EPA sought clarification, with respect to modifying emission limits, how $116.1530(b) provides for grandfathered facilities currently operating under Title V permits. Because the BART requirements are applicable requirements of the FCAA, EPAstates that they must be included as Title V permit conditions according to the procedures established in 40 CFR Part 70 or 40 CFR Part 71. Under §70.7(r)(l)(i), Title V permits must be reopened and revised to include new applicable requirements if the permit has sions inTexas, and BART source emissions are only a part of industrial ammonia emissions. Therefore, it is inappropriate to list ammonia from BART sources in Texas as a visibility-impairing pollutant. The Regional Haze SIP will look at visibility-impairing pollutants again and determine if more pollutants should be considered. In the SIP, the uniform rate of progress may require further controls. The rule has not been revised in response to these comments. EPA suggested various revisions to the definition of a BARTeligible source to clarify that BART applies on an emission unit basis and not a source-wide or site-wide basis. The commission concurs that the definition of BART-eligible source should be rephrased to clarify that BART applicability is determined on an emission unit basis, consistent with EPA guidance, and not on a source-wide or site-wide basis. The commission has modified the definition accordingly. EPA strongly urged TCEQ to work with EPA if using alternative approaches to ensure consistency and approvability throughout the process. EPA recommended that any alternative modeling approach used by ownerioperator be approved by EPA, in addi

### ADOPTED 

### RULES Juizuary 

### 26, 2007 32 TexReg323tion to the commission, to ensure that the alternative modeling is equally stringent. The commission concurs and will be submitting all BART modeling protocols and analyses to EPA for its review. EPA commented that in §116.1530(a), the proposed rule requires that each owner or operator maintain the BART-required control equipment and establish procedures to ensure such equipment is properly and continuously operated and maintained. As written, the requirement to establish procedures appears vague. EPA commented that TCEQ may wish to specify accepted procedures required to continue implementing their controls. Specific procedures to ensure that BART-required control equipment is properly and continuously operated and maintained w~ll be addressed inthe facility's permit. It would be difficult to specify those procedures inthe BART rule given the broad range of unit types and control equipment that are potentially subject to BART. No change to the rule was made in response to this comment. GENERAL COMMENTS The Houston Sierra Club commented that the proposal explanation was incomplete and requested the list of 127sources, a map of source locations, and the amounts of NOz,SO,, and PMthat each source emits. The Houston Sierra Clubwas concerned that the rule is unclear as tothe level of BART control from each individual source orthe percentageofcontrolfrom all BART sources. The Houston Sierra Club commented that it is not clear how interstate consultation will apportion visibility reduction and what constitutes BART and BART control equipment. The commission does not agree that the proposed rule explanation is incomplete. The primary purpose of the rule is to create a process for certain sources within the state to determine whether they are subject to the requirements to determine and install BART. Subsequent to this rulemaking, the commission will propose a Regional Haze SIP that will incorporate information on BART at those sources determined to be subject to this rule. When developing a rule, the commission attempts to describe the number of entities that will be affected by the rule and characterize the overall costs and benefits of the rule. There is no requirement for the commission to provide detailed information about each individual source that may be affected by a proposed rule. However, the requested information is now available in the BART resources and guidance documents posted on the TCEQ Web site at: www.tceq.state.tx.us/implementation/air/sip/baNhaze.html. The CAMx Modeling Guidance contains a map showing the proximity of BART-eligible sites to Class I areas. The Texas Modeling Data file contains the NOx, SO,, and PM emission rates that were used in the screening modeling. BART is determined on a case-by-case basis, taking into account a combination of factors. There is no defined percentage of control or specific control equipment type associated with BART. The commission cannot project the amount of reductions from BART at this time as no sources have submitted the BART engineering analyses yet; the engineering analyses are dueApril 30, 2007. The Regional Haze SIP will contain more detailed information about sources that are subject to BART including estimates of pollutant reductions associated with BART. Houston Sierra Club commented that the installation of BART should nottake 57years to complete. Houston Sierra Club urges the TCEQ to go beyond regulatory policy that proposes the goal of natural background in 2064 and, instead, consider the goal of 2020. The commission appreciates the concern of the Houston Sierra Club that visibility goals are set at 2064, but this 2064 goal is for regional haze not BART. BART controls are scheduled to be in place five years after the EPA approves the Regional Haze SIP or approximately 2013. In 2018, BART controls and other regional haze controls will be reassessed. Under the SIP, the state will reevaluatethe rateof progress towards naturalvisibility every five years until 2064. If the state is not meeting the uniform rate of progress, more controls may be proposed. EPA estimated how long it would take to reach natural conditions based on the rate ofvisibility improvement being achieved from existing programs. Page 35731 of the 1999 Regional Haze Rule states: EPA's analyses show that the reductions from CAA and other programs will result in a rate of improvement estimated at approximately 3 deciviews over the period from the mid 1990's to about 2005. The EPA calculated that ifthis rate of improvement couldbesustained, these areas would reach the nationalgoal in 60 years. No change was made in response to this comment. TCC commented that it reviewed federal rules regarding regional haze and found no requirement for a once-in-always-in (OIAI) provision. TCC is concerned that until the exemption levels are established by rule, member companies cannot begintodevelop or implement control strategies to reduce emissions to exemption levels. TCC suggests that any OlAl provision adopted by the commission apply only after the first compliance date for actual controls, similar to the federal Maximum Achievable Control Technology (MACT) standards. The commission has made no changes in response to this comment. The determination that a BART-eligible source is subject to BART, as well as BARTengineering analysis, must be made by April 30, 2007, inorder for these controls to be reflected inthe state's Regional Haze SIP due in December 2007, as required under FCAA, §169A and 40 CFR $51.308. Once a determination is made that a source is subject to BART controls, but prior to installation of the controls or emission limits, §116.1540 provides that the source may apply for an exemption from the executive director and final approval from EPA. It is unnecessary for sources to wait until adoption of this ruleto implement controls or other enforceable limits inorder to fall below the BART-eligibility thresholds. Sources have the option to revise their Title I (preconstruction) permits to provide synthetic minor limits. However, in response to questions from states and regional planning organizations on SIP requirements (Additional Regional Haze Questions, August 3, 2006), EPA has stated that the modifications must be completed before the state goes to public hearing on the SIP. DEFINITION OF BART-ELIGIBLE Alcoa commented that the rule should provide differentiation between BART-eligible sources and sources that are subject to BART. The terms and requirements of the proposed rule are inconsistent with Appendix Y to Part 51-Guidelines for BART Determinations; Final Rule (EPA).Alcoa also commented that TCEQ treats both classes of sources as one; both are BART-eligible sources. Although the proposed rule does not explicitly differentiate between sources that are BART-eligible and sources that are subject to BART, on a functional level the rule is consistent with Part 51 and the associated guideline. A source that is subject

32 

### TexReg324 .Juiz~~ury 

### 26, 2007 

### TexasRegisterto BART is simply a BART-eligible source that emits any air pollutant that may reasonably be anticipated to contribute to any impairment of visibility in any mandatory Class I federal area. The rule allows a source to demonstrate that it does not contribute to visibility impairment (and are therefore not subject to BART), and those sources are not required to implement BART. No changes to the rulewere made in response to this comment. Alcoa stated that the effective date of 40 CFR $51.301 definitions cited in the rule is incorrect. In the first paragraph of $116.1500, TCEQ proposes that terms not explicitly defined in the rule are to have the meaning given them in 40 CFR $51.301 as effective September 6, 2005. The effective date of the current version is July 1, 1999. The date reference in TCEQ's BART rule is inconsistent with the effective date of current definitions in 40 CFR §51.301 and produces unnecessary confusion. The commission agrees that the most current revision to 40 CFR $51.301 was published on July 1, 1999, and became effective on August 30, 1999. The commission has made a change to $116.1500 to reflect the August 30, 1999, effective date. AECT, Alcoa,Ash Grove, and El Paso Electric suggested various revisions to the definition of a BART-eligible sourceto clarify that BART applies on an emission unit basis, and not a source-wide or site-wide basis. The commission concurs that the definition of BART-eligible source should be rephrased to clarify that BART applicability is determined on an emission unit basis, consistent with EPA guidance, and not on a source-wide or site-wide basis. The commission has modified the definition accordingly. DEFINITION OF VISIBILITY-IMPAIRING POLLUTANT ACET, Ash Grove, TXU, Dow, and TCC all agreed that the §I16.1 500 definition of visibility-impairing pollutants should include only NOx,SO,, and PM. The commission appreciates the support of the §116.1500(b) list of BART pollutants as proposed. The Houston Sierra Club and NPS questioned the exclusion of VOCs and ammonia in the definition of visibility-impairing pollutant. AEP suggested that the TCEQ reexamine the proposed exclusion of VOCs, especially reactive VOCs, from the definition since the role of VOCs in producing secondary organic aerosols cannot be discounted in developing control strategies. The commission disagrees with the suggestions to add VOCs to the list of BART pollutants. TheTCEQ has modeledthe visibilityimpairment impact of VOC emissions from all potentially BARTeligible sources in Texasfor Class I areas in Texas and surrounding states. The collective impact of all these sources was below the de minimis impact threshold of 0.5 deciview. Therefore, the collective impact of all individual sources and all groupings of sources from among the potentially BART-eligible sources in Texas is below the de minimis threshold. For this reason, the commission concludesthat it is appropriate not to listVOCs as a visibility-impairing pollutant for potentially BART-eligible sources in Texas. The rules have not been revised in response to these comments. The commission has considered ammonia emissions and has concluded that it would be inappropriate to add ammonia to the list of visibility-impairing pollutants in the BART rule. Industrial ammonia emissions are less than 1% of the total ammonia emissions in Texas, and BART source enlissions are only a part of industrial ammonia emissions. Therefore, it is inappropriate to list ammonia from BART sources in Texas as a visibility-impairing pollutant. The Regional Haze SIP will look at visibilityimpairing pollutants again and determine if more pollutants should be considered. In the SIP, the uniform rate of progress may require further controls. The rule has not been revised in response to these comments. 0.5 DEClVlEW THRESHOLD AECT, AEP, Alcoa, and TXU all provided comments opposing a threshold lower than the 0.5 deciview proposed in the rule. AECT, TXU, and AEP expressed concern that a lower threshold could lead to inconsistencies and conflicts between states. In addition, AEP and Alcoa concurred that a lower threshold would be unwarranted on the basis that a change of 0.5 deciview is significantly belowthe well-established threshold of perceptibility given by a change of 1.0 deciviews or greater. Alcoa argued that using a threshold lower than the proposed 0 5 deciview would require additional modeling resources for its justification. The commission will not lower the 0.5 deciview threshold. The TCEQ has received no evidence that a lower threshold is appropriate inTexas. By ~lsing only a single threshold, theTCEQ does not intend to imply that the threshold for causingvisibility impairment is the same as for contributing to. Since TCEQ expects all Class I areas have more than one source impactinqvisibilitv. any source that causes visibility-impairment (such as,using for example, based on the EPA's threshold of a humanly perceptible visibility inipact of 1.0 deciview or greater) also contributes to the same. So the contributes to threshold is the one relevant to this rule. To clarify the rule, the TCEQ will remove the term causes in this context, so that the 0.5 deciview value will be applicable only as a contribution threshold. The commission is following EPA-guidance, Part 51. Appendix Y, Section lll.A.1, and has made no changes in $116.1520 and §116.1530 in response to the comments. In addition, Alcoa expressed concern that the proposed rule does not provide a clear distinction between contributing to and causing visibility impairment in Class I areas. In particular, Alcoa does not support using 0.5 deciview as an appropriate threshold for determining that emissions from a single BART source are causing visibility impairment in a Class I area. By using only a single threshold, the commission does not intend to imply that the threshold for causing visibility impairment is the same as for contributing to. Since the commission expects all Class I areas have more than one source impacting visibility, only the threshold for contributing to visibility impairment will be examined for the BART determination. To clarify the rule, the commission will remove the term causes in this context, so that the 0.5 deciview value will be applicable only as a contribution threshold. The Houston Sierra Club expressed the desire that TCEQ revisit the 0.5 deciview threshold after BART has been applied, citing concern that 0.5 deciview threshold may not be stringent enough. The commission has made no changes in response to this comment. Since a determination of which BART-eligible sources will be subject to BART engineering analysis must be determined prior to submittal of the Regional Haze SIP to EPA (December 17, 2007), there is no opportunity to revisit the threshold after it has been applied. However, the state must periodically reassess the reasonable progress goals contained in the SIP for each Class I area. This analysis may indicate that additional emission reductions at BART and other non-BART sources are



### ADOPTED 

### RULES January 

### 26, 2007 32 TexReg325necessary to make reasonable progress toward the goal of natural visibility conditions. NPS expressed concern that proposed ~116.1510(b) uses a threshold of greater than 0.5 deciviews while the EPA uses a threshold of at or more. NPS suggests that the rule should specify whether the threshold will be the same as EPA language or if Texas will apply a different threshold. The commission agrees with this comment. For consistency with EPA guidance, the commission has changed the wording in the rule accordingly. SCREENING TOOLS .Dow and TCC commented that CALPUFF modeling can be time consuming and resource intensive and that TCEQ's cost estimates for modeling are low. The commission acknowledges that the range of costs for exemption modeling will vary depending on a number of factors, including the complexity of the source, the size of the facility, and the proximity of the source to Class Iareas and the number of Class I areas to be modeled. No changes to the rule have been made. Alcoa, AECT, AEP, Ash Grove, El Paso Electric, and TXU have recommended that model plant exemptions from the requirements of §116.1520 and §116.1530 be expanded to include distance and emissions threshold levels for PM. BP, Dow, TXOGA, and TCC suggested that the TCEQ include additional screening tools for evaluating visibility requirements. The commission agrees that additional tools may be needed. Section 116.1510(b) allows for the use of additional modeling screening tools that have been developed or approved by the executive director. Screening tools developed based on the CAMx screening modeling have been included in the modeling guidance documents posted on the BART Web site at: www.tceq.state.tx.us/implementation/air/sip/bartlhaze. html. The screening tools include Texas-specific model plants for PM,,, NO,, and SO,. No changes to the rule have been made. USE OF COMMISSION VS EXECUTIVE DlRECTOR AECT, TXU, Ash Grove, and El Paso Electric recommendthat in §I 16.1510(b), the word commission be replaced with executive director. The revision is needed because it will be the executive director's staff, not the commissioners, who will evaluate the modeling. Such revision would be consistent with the rest of the BART rules,which use the term executive directorto refer to the executive director and his staff, and commission to refer to the three commissioners. The commission agrees with this suggestion and has changed commission to executive director. The commission notes that this is consistent with references to the executive directorin other parts of the rule.

. EXTENSION OFSUBMITTAL DATEFORMODELING AND ENGINEERING ANALYSIS BP, Dow, TCC, and TXOGA commented that the TCEQ should extend the April 30, 2007, deadline for submittal of exemption modeling and the engineering analysis to allow adequate time for regulated entitiesto conduct and submit modelingthat shows that the source does not cause or contribute to visibility impairment. Dow and TCC suggested extending the deadline to July 31,2007,to allow ample time forTCEQto review this information and develop the required Regional Haze SIP by the December 17,2007, deadline. Arkema suggested the deadline be effective 150 to 180 days after BART rule promulgation. The commission understands the commenters' concerns, however, due to the short time line, the rule has not been changed in responseto comments. The Regional Haze SIP is anticipated to go to the commission for proposal in the summer of 2007 to meetthe adoption date of December andto meet EPA's deadline of December 17, 2007. It will take months for TCEQ to review modeling and engineering analysis submittals for general completeness and to identify the magnitude of projected BARTemission reductions. Therefore, the April 30, 2007, due date cannot change because of the Regional Haze SIP time line. MODELING The Houston Sierra Club commented that it does not support waiting until the eighth highest 24-hour visibility reading before deciding whether regional haze is at unacceptable levels as it is stated in the Draft Final Modeling Protocol: Screening Analysis of Potentially BART-Eligible Sources in Texas on page 3-3. The commission has made no changes in response to these comments. EPA notes in the final BART rule published in the Federal Register on July 6. 2005, that if the 98th percentile, or the eighth highest daily value, from the modeling is less than the contribution threshold of 0.5 deciview then it may be concluded that the source does not contribute to visibility impairment and is not subject to BART. AECT and AEP commented that the use of CALPUFF could result in false attribution to Texas sources of regional haze impacts on Class I areas in other states. AECT and AEP suggested that the air quality model SCICHEM be considered as an alternative to CALPUFF. SCICHEM is a stand alone plume dispersion and chemistry model that has been used in some visibility studies. The commission has made no changes in response to these comments. Currently, CALPUFF is the only EPA-approved model for use in estimating single source pollutant concentrations resulting from the long-range transport of primary pollutants. CALPUFF and CAMx are the two models the executive director has determined are appropriate to use in modeling source emission impacts on Class I areas for the purposes of the BART rule. AEP commented that approval of CALPUFF in source-specific exemption modeling should be examined with care given the limitations and consequences of CALPUFF modeling. AEP commented that CALPUFF is recognized to have serious limitations in its chemistry treatment and may overstate secondary particulate matter production. AEP commented that the plume treatment in CALPUFF beyond 200 kilometers is uncertain. The commission appreciates the comment and acknowledges that CALPUFF has limitations, but has made no changes in response to these comments. The usefulness of CALPUFF for characterizing transport beyond 200 - 300 kilometers, as well as the limitations of the chemistry treatment in CALPUFF are well known and documented inthe EPA document, Interagency Workgroup onAir Quality Modeling(IWAQM) Phase2 Summary Report and Recommendations for Modeling Long Range Transport Impacts (December 1998). EPA notes in the final BART rule, published in the Federal Register on July 6, 2005, that CALPUFF can be used for purposes, such as visibility assessments addressed in the final rule, to account for the chemical transformation of SO, and NO,. The commission will allow the use of the photochemical grid model, CAMx, for evaluating vis

### 32 TexReg 

### 326 Ju12ziaqr 

### 26, 2007 TexasXegister.ibility impacts at Class I areas located beyond 300 kilometers from a source. MODELING-OTHER Source Environmental Sciences, Inc. commented that the first sentence of §I16.1510(b) be revised to the following in order to be consistent with other TCEQ rules, regulations, and guidelines, The owner or operator of a BART-eligible source may demonstrate, usir~g an air dispersion model andair dispersion modeling guidelines approved by the commission, that the source does not cause or contribute to visibility irnpahnent ina Class I area. The comniission has made no changes in response to this comment. Since the commission will allow the use of the photochemical grid model CAMx for evaluating visibiiity impacts at Class 1 areas located beyond 300 kilometers from a source, including the additional wording of airdispersion in front of modeland modeling guidelines would not be an appropriate characterization for numerical grid models, such as CAMx. TXU has recommended that TCEQ authorize the use of the photochemical grid model CAMx under ~116.1510(b). TXU also cites EPA guidance which notes that the use of photochemical grid models is acceptable and, in some cases, may be more accurate and appropriate to use this model. The commission agrees with the commenter. CAMx is an approved model for exemption modeling under ~116.1510(b). MODELING OFCLASS I AREAS Dow and TCC commented that ENVIRON's final report for the screening evaluation was not available to determine how many Class I areas need to be evaluated for source-specific exemption modeling. TCC suggested that the public comment period be re-opened upon the release of the results of the ENVIRON screening evaluation. TCC suggested that this topic be included In the informational meeting being held by the TCEQ on November 9, 2006. The commission has made no changes in response to these comments. The final report of the ENVIRON screening evaluation is available at the Regional Haze Web site: www.tceq.state.tx. us/in~plernentation/air/sip/bartlhaze.hfmI. Future addendums to the final report will be made available as soon as they are ready. BP. Dow, TCC, and TXOGA commented that the number of Class I areas to be considered for source-specific exemption modeling is not specified in the proposed rule. BP, Dow, TCC, and TXOGA commented that if multiple Class I areas must be considered, it may increase the cost of modeling significantly, Dow commented that the TCEQ estimates for exemption expenses are low and may not even cover a CALPUFF set~p and execution cost for a single sourceClass I area comb~nation. BP, Dow, TCC, and TXOGA requested that the final rule specify the number of modeling runs necessary to exempt a source from the BART Engineering Analysis requirements. source, the size of the facility, and the proximity of the source to Class I areas. The number of modeling runs necessary to exempt a source from the BART Engineering Analysis requirements will vary source-by-source, and specifying a single number woirld limit sources on how they conduct their modeling. MODELING CERTIFICATION AECT, Dow, TCC, and TXU requested clarification of the relationship between the screening modeling and the requirement for additional analyses. AECT, Ash Grove, Dow, and TXU suggested that the final rule confirm that no additional modeling is needed if the res~~lts of the screening analysis show that no additional analyses are needed for NOx, SOx, or PM. Dow and TCC suggested that if the screening analys~s shows that no additional analysis is neededfor an air contaminant, then the owner/operator be clearly excluded from the requirement to submit additional modeling under §I1 6.1 510(b). Dow suggested that the model plant exemptions in ~116.151O(c)(l) 

### - (3) remain available in lieu of providing exemption modeling or a BART engineering analysis, if additional analyses are required. The commission concurs that the rule should provide greater clarity concerning the TCEQ-conducted screening modeling, the needfor additional analyses, and the applicability of the rule, and has revised the rules accordingly. The TCEQ's screening modeling excluded some sources from BART requirements for all pollutants; other sources were exclirded for only certain pollutants. If a source was screened out of BART for one or all pollutants by TCEQ's screening modeling, then that source is not required to conduct additional modeling or BART analysis for that pollutant(~). However, sources using the CAMx model must include alt the pollutants in their modeled emission inventories and vis- ~bility impact assessments. The Interagency Mon~toring of Protective Visual Environments (IMPROVE) equation requires that concentrations of ail pollutants (exempted or not) be included in the IMPROVE equation. In addition, the source must review the information used as the basis for the screening modeling (emission rates, stack parameters, etc.) and certify that it is correct. The conimiss~on has revised the rules to more clearly explain the requirements for sources that were screened out in the TCEQ modeling. The exemptions in 5116.1 510(c)(l) 

### - (3) remain available, independently of whether or not a source was screened out bythe TCEQ screening modeling. BART EXEMPTION SHIELD Arltema commented that TCEQ should finalize the BART modeling exemption. Arkema supported TCEQ's proposed approach to allow facilities that can demonstrate no impact on Class I areas to opt out of BART controls. After more review, TCEQ may conclude that the modeling was not performed correctly and that a facility may actually become subject to BART. Arkema commented that TCEQ should modify the proposed rule to shield sources pursuing this option from compliance with the rule untll TCEQ approves the modeling demonstration or six months after TCEQ reiects anv such modelincl demonstration. The sixThe commission has made no changes in response to these month period will pro;ide a source facing rejection of their modcomments. The Class I areas to be considered for source-spe- eling demonstration adequatetime to prepare the required BART cific exemption modeling are listed inTCEQ draft modeling docu- analysis and will ensure that a source complyingwith 3116.1510 ments, Screening Analysis ofPofentially BART-Eligible Sources does not inadvertently fail to comply with §116.1520 because of in Texas and BestAvailable Retrofit Technoloqv (BART) Model- participation in another part of the rule. ing ~rotocol to Determine Sources Subject ~OBART inthe Sfate The appreciates the support for the B1,6,1510(b) of Texas. The range of costs for exemption modelingwill vary de- exemption process However, the comnlission does not concur pending on a number of factors, including the complexity of the that a shield for sources who submit modeling underthis exemp

### ADOPTED X 

### ULES Ju~znuiy 26, 2007 32 

### TcxXcg 327tion is appropriate or necessary. In addition, such a shield or extensioh would tend to further delay the submission of the BART analyses. In order to develop the Regional Haze SIP, the commission needs information about BART applicability and BART controls no later than April 30, 2007. MODELING-OTHER AECT, Ash Grove, El Paso Electric, and TXU suggested revisions to §I1 6.1510(b) to clarify that a BART-eligible source demonstrating that its emissions of a particular visibility-impairing pollutant do not contribute to visibility impairment at a Class I area is not required to perform BART analysis for that pollutant. The commenters suggested changing the rule to make the modeling exemption under §116.1510(b) function on a pollutant-by-pollutant basis. The commission does not agree that the §I16.1510(b) exemption should be applied on a pollutant-specific basis. Any owner or operator of a source seeking to claim this exemption must model all visibility-impairing pollutants cumulatively, even in caseswhere the TCEQ-conducted screening modeling (or model plant exemptions) indicatethat one pollutant type would not contribute to visibility impairment. AECT, Ash Grove, El Paso Electric, and TXU suggested that ~116.1510(b) reflect that the demonstration of no impairment can be met through the CAMx modeling recently performed by TCEQ. El Paso suggested a similar revision to ~116.1510(b) to clarify that modeling performed by a source in accordance with the guidelines approved by the TCEQ is sufficient to demonstrate that a source does not contribute to visibility impairment at a Class Iarea for the purpose of determining whether a BART analysis will be required. The commenters expressed that changes to this subsection are necessary to avoid potential disputes where a particular source models out of BART (i.e., less than 0.5 deciviews) in accordance with an approved protocol and guidelines and a third-party uses an unapproved protocol to show an impact above 0.5 deciviews. The commission agrees with the commenters that changes are necessary to this subsection and has therefore made changes to the rule. States must submit their Regional Haze SIPS, including the BART component, by December 17, 2007. Given this relatively short time frame and the potentially large number of BART-eligible sources in Texas, the executive director conducted screen modeling, based on emissions and unit construction data obtained from those sources, to obtain a better idea of how many BART-eligible sources would then be required to implement BART controls. A primary purpose of this modeling exercise was to project the level of agency resources that would be necessary to review the source-specific exemption modeling, engineering analyses, and control determinations in time to meet the SIP submittal deadline. The commission has changed the rule to allow BART-eligible sources that submitted data to the agency to use the modeling performed by the executive director to demonstrate no vis~bilityimpairment for one or more visibility-impairing pollutants. The commission has added new ~116.1510(e) to reflect that in order to use the executive director's modeling for this demonstration, a source must certify that the emissions and location information providedto the executive director in the survey and used in the modeling analysis is correct. PROFESSIONAL ENGINEER REQUIREMENT Dow and TCC requested that TCEQ provide flexibility regarding the submittal of the BART analysis under seal of a Texas licensed professional engineer (P.E.). TCC proposed that the requirement for submittal under seat of a P.E. apply only if the analysis is done by an independent consultant or engineering firm and not if prepared by resources internal to the company owning the source. The intended purpose of the P.E. seal requirement for the engineering analysis is to ensure that the submittals meet a high standard of quality and completeness. This indicates that the burden of proof is on the applicant to ensure that applicable guidance and protocolswere followed. A P.E. seal should reducethe amount of agency resources expended to deal with incomplete or defective submittals and enable the commission to focus resources more efficiently. This rationale for requiring each BART engineering analysis to be submitted under P.E. seal does not depend on whether the analysis was prepared internally by the owner or operator of the source or using external resources. The commission has not changed the rule in response to this comment. BP, Dow, TCC, and TXOGA commented that Texas P.E. licensing requirements do not require in-depth knowledge of CALPUFF or CENRAP BART modeling guidelines, and air modeling skills do not necessarily require P.E. knowledge. Dow commented that out-of-state contractors may not have a Texas-licensed P.E. on staff. Source Environmental commented that no existing TCEQ rules or regulations require the sealing of an air dispersion modeling report with a P.E. seal, and the proposed requirement is unnecessarily restrictive. The commission acknowledgesthat Texas P.E. licensing requirements do not specifically require direct knowledgeor experience relating to the CALPUFF or CENRAP modeling. However, a reviewing P.E. should still be able to ensure that modeling staff are following applicable guidelines and protocols. The P.E. seal requirement will tend to reduce the amount of agency resources expended to deal with incomplete or defective submittals and enable the commission to focus resources more efficiently. The P.E. must certify that all of the emission and stack parameter data are accurate, and the modeling protocols were followed. Houston Sierra Club commented that TCEQ should not assume that just because the BART analyses and modeling are submitted under the seal of a P.E. that TCEQ does not have to conduct a detailed review of every submittal. Houston Sierra Club suggestedthat TCEQ must trust, but verify each and every submittal in a detailed manner. The commission acknowledges that the P.E. seal requirement does not guarantee that every modeling report or BART engineering analysis will be acceptable, although the commission expects that this requirement will result in an overall higher quality level for these submittals. All modeling and engineering analysis submittals will be reviewed for general completeness and to identify the magnitude of projected BART emission reductions. Submittals will beselected for detailedtechnical review basedon a variety of factors, including, but not limited to: quantity of visibility-impairing pollutants; proximity to Class Isites; caseswhere the source's prospective BART strategy results in littleto no improvement in visibility; or cases where the source proposes no additional control. The reviews will be performed with existing commission resources. No changes to the rule were made in response to this comment. PARTICULATE MATTER AEP has commented that coal fired EGUs have some of the highest efficiency on particulate matter. It recommended that TCEQ drop the requirement in the proposed rule for EGUs to

32 TexReg 328 Jrzr.tuury26, 2007 Texus Registerperform source level modeling to assess the visibility impact and subsequent engineering analysis of primary particulate matter from BART eligible sources. The commission will not allow sources to eliminate source level modeling for EGUs based on controls in place. Many other source categories also have controls in place. The commission will keep the modeling requirement for all potentially BART-eligible sources to either assess the potential visibility using protocols outlined by the TCEQ or continue directly with an engineering analysis. If a source models its visibility impacts below the threshold of0.5 deciview, nofurther analysiswill be required. Additionally, as described in the EPA BART rule, the analysis of control options step allows the source to take into consideration any controls in use at a particular unit. Other considerations include the assessment of available retrofit control options, costs of compliance with control, remaining useful life of the facility, and energy and non-air quality environmental impacts of control options. No changes to the rule were made in response to this comment. Ash Grove, Dow, El Paso Electric, and TCC noted that the preamble to the proposal stated that PM, may be used as the indicator for PM when assessing BART-eligibility, TCC seeks clarification regarding how PM,, can be used as an indicator for PM when assessing BART eligibility considering the exemption in ~116.1510(~)(3). This exemption states that any BART-eligible source that has a potential to emit (PTE) of less than 15 tpy of PM,, is not subject to BARTfor PM,,. TCC asked, when evaluating the definition of a BART-eligible source, whether it is necessary to determine both the potential to emit for PM and PM,, and then compare both to the 250 tpy criteria. The commission notes that Appendix Y to CFR, Part 51, the federal BART guidelines incorporated by reference in this rule, provides that a source may use PM,, as an indicator for PM when comparing it to the 250 tpy cutoff for BART eligibility. Section 116.1 510 contains pollutant-specific exemptions to BART control analysis and implementation requirements. Section 116.1510(~)(3) reflects the commission's decision to include in the rule the de minimis levels established by EPA under CFR, Part 51, Appendix Y. EPA specifically established the 15 tpy level for PM,,. PUBLIC RECORDS Houston Sierra Club commented that the public should have access to the records that an owner or operator must maintain under §I16.1 51O(c), to demonstrate compliance with applicable exemption criteria. Houston Sierra Club commented that the public has the right to see and obtain a copy of the documents that are the basis for the exemption that was granted by TCEQ. This right of public access to these documents should be written into the rules. No changes are made in response to this comment. Section 116.1510(c) provides three ways for smaller sources to be exemptedfrom BART requirements due to their relatively low emission rates. The broadest exemption is the de minimis exemption in ~116.1510(~)(3). Huridreds of sources may meet this de minimis exemption. Since hundreds of sources may meet this exemption, it is not practical for the commission to collect and retain information on these de minimis sources. The other exemptions, In ~116.1510(c)(l) and (2), are based on permit limits and distance information that is already on file at the commission and available for public review. MODELING DISTANCES The Houston Sierra Club commented that in the rule, the distances 31.05 and 62.1 miles appear to be too close to Big Bend and Guadalupe to not have an influence. Houston Sierra Club recommends that greater distances be required before the exemption is allowed. The commission disagrees with the cornmenter. The distances that the comnienter is referring to are based onthe model plants that the EPA developed for 40 CFR Part 51, Appendix Y. There aretwo model plant exemptions adopted as §I16.1 51O(c)(l)and (2), respectively. The EPA concluded that sources meeting the stated criteria for emissions and distance from Class I areas are unlikely to have a significant effect on visibility. The commission agreeswith EPA's assertion. The exemptions in ~116.1510(c)(l) and (2) are pollutant specific for NOxand SO,, such that the owner or operator of the source would still be required to perform the BART engineering analysis and implement any applicable BART controls for other visibility-impairing pollutants (such as PM). No changes have been made to the rule. CAIR EQUALS BART AECT and TXU strongly concur with proposed 5116.1510(d), which would provide that EGUs that are participating inthe CAIR cap and trade program will not be subject to BART analysis or control requirements for NOxand SO,. The commission thanks the commenters for their suppol?. AECT, El Paso Electric, and TXU commented that the proposed rule be revised to exclude PM,, from the consideration of BARTeligibility for EGUs participating in the CAlR trading program. The rule has not been revised in response to these comments. CAIR controls only NO, and SO,, and not direct PM. Therefore, CAIR will not cover PMfor BART. EPA has stated that BART applies to individual sources for PM if the PM emissions are above de minimis levels (i.e., PTE of 15 tpy) and the impact from the BART-eligible units at the source causes or contributes to visibility impairment. PM that IS associated with determining BART-eligibility are direct emissions of PM, not the precursors, therefore they must be considered in determining BART eligibility for all potential BART sources, including EGUs. The Houston Sierra Club commented that under the TCEQ's Draft Final Modeling Protocol, Screening Analysis of Potentially BART-Eligible Sources in Texas on pages 1-6 and4-1, the tlouston Sierra Club does not agree with EPA that complying with CAlR will necessarily result in sufficient SO, and NO, reductions to meet the regional haze visibility requirements. The rule has not been revised in response to this comment. The commission has taken the option of using EPA's guidance that allows states to utilize the CAlR cap and trade programs as a means to satisfy BART for affected EGUs. The TCEQ has determined that CAlR will satisfy the BART requirements for NOx and SO, emissions for EGUs participating in the CAlR program. tlowever, EPA requires that each state set reasonable progress goals as provided by the Regional Haze Rule and cannot assume that CAlR will satisfy all of its visibility related obligations. Arkema also commented that CAlR should not equate to BART for EGUs. Their concern regarding CAlR is that individual sources that participate may either reduce emissions to nieet a limit or purchase allowances to comply with the CAlR rule, and there is not a mechanismto ensure that an individual member of a cap and trade system that has a significant impact on a Class I area is required to reduce emissions. The purchase of CAlR allowances could allow EGUs to shift their BART complianceburden to smaller, more expensive to control, sources, such as Arkema's Houston facility. Arkema advocates applying emission controls to meet agency visibility and attainment goals to the sources that can do so in the most cost-effective manner, however using an unrelated trading programto shift a regulatory burden to smaller entities should not be allowed under this proposal. The rules have not been revised in response to this comment. The commission has taken the option of using EPA's guidance that allows states to utilize the CAIR cap and trade programs as a means to satisfy BART for affected EGUs. CAlR controls NO* and SO, and not direct PM. However, CAlR will not cover PM for BART, and EGUs that meet the individual source PM emissions and are above de minimis levels (i.e., PTE of 15 tpy) will be requiredto do a BART-eligible analysis ontheir units to determine if the source causes or contributes to visibility impairment of Class Iareas. In addition to BART,the EPA requires that each state set reasonable progressgoals as provided bythe Regional Haze Rule and cannot assume that CAlR will satisfy all of itsvisibility related obligations. CUMULATIVE IMPACT Houston Sierra Clubs does not understand how the TCEQ will accountfor the cumulative impactsthat many exempted sources plus non-exempted sources will have on visibility. There should be some type of cumulative effects analysis in the rules that ensures that exempted and area sources do not lead to delays in reducing visibility obscuring pollutants or cause a failure to meet visibility time frames. The commission understands the commenter's concern. The BART rule does not require a cumulative analysis, but a cumulative analysis is required for the Regional Haze SIP, of which BART is just a piece. The CENRAP modeling for regional haze will take into account the reductions and includes all the point, area, and mobile sources in the United States and parts of Canada and Mexico. CAMx and CMAQ will be the modeling platforms used to look at the cumulative effect of BART reductions. BART ANALYSIS CLARIFICATION NPS supports continuing the inclusion of all sources of particulate matter in the BART analyses. The commission agrees to include all BART sources in PM modeling that meet the EPA criteria. EGUs and non-EGUs were included in the PM modeling. No change has been made to the rule. Alcoa commented that the requirement to conduct an analysis of emissions control alternatives for all visibility impairing pollutants at §116.1520(a) should be revised. Alcoa commented that as proposed, an analysis is required by BART-eligible sources, as opposed to sources determined to be subject to BART. Alcoa recommended the proposed language be revised to state: (a) Except as provided under section 116.1510(b), (c), or (d) of this title (relating toApplicability and Exemption Requirements), each BART-eligible source that is subject to BART shall conduct an analysis of emissions control alternatives for visibility-impairing pollutants determined to be causing or contributing to visibility impairment in a Class I area. The change recommended by Alcoa is not necessary because sources that are not subject to BART are already covered by the reference to ~116.1510(b). Section 116.1510(b) is the mechanism by which sources demonstrate that they are not subject to BART. No changes were made in response to this comment. Arkema commented that TCEQ should finalize proposed minimum emission thresholds. The commenter supports exemptions limiting applicability to the BART analysis to be required in the proposal. The commenter agrees that TCEQ limit the impact of the proposed BART regulations to those facilities that are more likely to have significant impact on Class I area visibility, while not burdening smaller facilities with no identifiable impact on visibility. The commenter expressed that the proposed emissionsldistance (QID) relationships are appropriate. The commission appreciates the support of the commenter. CAMx screening modeling by TCEQ has exempted many'of the smaller sources. Model plants have been developed for exempting more sources. Even though there is no de minimis size on individual units, a source can group its smaller emission units into a pseudo-source for CALPUFF. No changes were made in response to the comment. BART CONTROL IMPLEMENTATION No comments were made concerning §116.1540. MISCELLANEOUS Houston Sierra Club is concerned that the Regional Haze SIP does not show sufficient visibility air pollutant reductions due to transboundary emissions from other states. There apparently is no guidance or direction from EPA about how attainment will be obtained in such cases. Houston Sierra Club agrees that each state must reduce its share of visibility air pollutants for its own state's Regional Haze SIP. Houston Sierra Club agrees that when one state affects the attainment of the Regional Haze SIP of a second state then the first state must reduce its visibility air pollutants to assist in attainment of the Regional Haze SIP of the second state. The issues the commenter raises deal with the Regional Haze SIP rather than the BART rule. No changes were made to the rule. Lehigh Cement asked for an extension of the comment periodto October 9, 2006. The commission agreed. It extended the comment period from September 25, 2006, to October 9, 2006. A notice in the Texas Register and an e-mail to the entire BART list serve announced this change. Houston Sierra Club does not understand why the BART rule was not released with the SIP, since both are usually released together. The public was not able to cross-reference both documents and determine whether the rules adequately implement the SIP. The public needs both documents to review, comment on, and understand. Houston Sierra Club understands that late in 2007 the Regional Haze SIP will be released and the BART is part of that package. However, by that time the engineering analysis and modeling will be complete and the public will have lost an opportunity to compare the rules and SIP before implementation of BART analyses. The reason for adopting the BART rule before proposing the Regional Haze SIP is that BART analyses will be part of the SIP. The companies required to carry out BART analyses need time to prepare the analyses. EPA is requiring BART information in the SIP. In Texas, the SIP requires the BART rule promulgationto collect the appropriate industry information for the SIP package. The ~ublic will have a chance to view the BART information dur32 TexReg330 Janzla~y 26, 2007 TexasRegistering the SIP proposal period and make comments. No changes will be made to the rule. STATUTORY AUTHORITY These new sections are adopted under Texas Water Code (TWC), 55.103, concerning Rules, and s5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state. The new sections arealso adopted under Texas Health and Safety Code (THSC), 5382.002, concerning Policy andPurpose,which establishes thecommission's purpose to safeguard tlie state's air resources, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and maintenance of adequate visibility; §382.011, concerning General Powers and Duties, which authorizes the commission to establish and control the level of quality to be maintained in the state's air; s382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan for the control of the state's air; 3382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act (TCAA); and $382.051, concerning Permitting Authority of Commission; Rules, which authorizes the comnlission to issue permits to construct new facilities ormodify existing fac~lities that may emit air contaminants, or to operate a federal source, and to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the TCAA. The adopted new sections implement TWC, s5.103 and 55.105;a n d T H S C ,55382.002, 382.011,382.012,382.017,and 382.051.

Tlie followingtemis,wlicn used in this subchapter, have the following inea~iings unless the context clearly indicates otherwise. For terms not defined in this section, the definitionscontailled in 40 Code of Federal Regulations (CFR) $5 1.301, as effective August 30, 1999, are incorporaled by reference. (1) Best available retrofit tcclinology (BART)-eligible source--Any emissions units that comprise any of the following stationa~ysources of air pollutants, including any reconstructed source, tliat were not in operation prior to August 7, 1962, and were in existence on August 7, 1977, and collccti\~cly have the pote~itial to emit 250 tons per year (i~nclucling fugitive emissions, to the extent cpantifiable)of any visibility-inipailing air pollutant: (A) fossil fuel-fired steam electric plants of more than 250 million British thermal units (BTU)pel. hour heat input; (B) coal-cleaniogplants (thermal dryers); (C) kraft pulp mills; (D) portland cement plants; (E) primary zinc smelters; (F) iron ant1 steel mill plants; (G) primary alurninu~n~ ore reduction plants; (H) primary copper smellers; (I) ~nunicipal incinerators capable of charging more ll1a11250 tons of refilse per day; (J) hydrofluoric, sulfuric, and nitric acid plants; (K) pctrolcu~n refineries; (L) lime plants; (M) pliospliatc rock processing plants; (N) coke ovcin batteries; (0) s111fur recovc1.y pla~its; (P) carbon black plants (fl~rnace process); (Q) primary lead smelters; (R) fucl conversion pla~~ls;

, (S) sintcri~ig pla~nts; (T) seconclary mclal produclion fiicilitics; (U) clicmical ~proccss plants; (V) fossil f~~el-fired boilcrs of Inore than 250 million BTUs per hour lieat input; (W)petroleum storage and transfer racilities a~ith ca- pacity exceeding 300,000 barrels; (X) taconite oreprocessing facilities; (Y) glass fiber processing plants; and (Z) charcoal production facilitics. (2) \risibility-impa~ri~ig air pollutant--Any of tlic following: nitrogen oxidcs, sulfur tlioxide, or ~particuiate mattcr.
(a) Tlie rcqlurements ofth~s ubcli~~l~ter :~pply tobcst available retrofit technology (BART)-eligible sources as defined in $1 16.1500of this title (relating to Definitio~is). (b) The owner or operator of a BART-eligible source may demonstrate, usilig a model and modeling guidelines approved by tlie executive director, tliat the source does not contribute to visibility impaii~iient at a Class I area. A BART-eligible source that does not contribute to visibility impairment at any class I area is not subject to the requirements of $1 16.1520 or ~116.1530 of this title (I-claling to Best Avnilable Retrofit Technology (BART) Analysis and Best A~ailable Retrofit Technology (BART) Control Implementation). A source is considercd to not contribute to visibility impairment if, as demonstrated by ~iiodeli~ig performed by the executive director or llerror~n~ed in accordance with tlie guidelines approved by hie executive director, it causes a visibility impaimlent of less than 0.5 deciviews at all Class I areas. Tlie modeling demonstration must be. submitted under seal of a Texas lieensetl professional engineer and ~iiust be received by tlie com~nissiou's Air Pennits Division no later than April 30, 2007. (c) The following BART-eligible sources are not subject to tlie requirements of $116.1 520 or $1 16,1530of tliis title for the indicated polluta~it(s). Owners oroperators claiming exemption under tliis subsection shall maintain records sufficient to demonstrate compliance with theexemption criteria,mid shall ~iiakc such recortls a\iaiIableu11on rcquest of l~ersonnel from [he commission or any local air poll~ltion control agency havingjurisdiclion. (1) AllyBART-cligiblcsourcc that has thc potential to clnit less than 500 tons pcr year of combined nitrogcn oxides (NO-)and sulf~lr dioxide (SO,) and that is locatcd Inore than 50 kilo~ncters fioiii any Class I area is no1 subject to BART for NO.and SO?. (2) Any BART-eligible 5ource that has (liepotential to c~ilit less than 1,000 tons pa' year of combined NO> and SO, and that is



### ADOPTED RULES Ja~zuarj) 26, 2007 32 

### TcxReg 331located more than 100 kiiolneters from any Class I area is not s~ibject to BART for NOxand SO1. (3) Any BART-eligible source that has the potential to emit less than 40 tons per year of NOxor 40 tons per year of SO?is not subject to BART for NO. or SO!. respectively. Any BART-eligible source that has the potential to elnit less than 15 tons per year of particulate matter with an aerodynamic diameter less than or eq~ial to a ~lomi~lal 10 micrometers (PM,,)is not subject to BART for PM,,. (d) BART-eligible electric generating n nits participating in the Clean Air Interstate Rule Trading Program are not subject to the requirements of $ 116.1520 or 5 1 16.1530 of this title for NOA and SO,. (e) Any BART-eligible source that has been screened out by the Texas Commission on Environmental Quality-conducted screening modeling is not s~ibject to the requirements of $116.1520or 

### 9 116.1530 of this t~tle, for the specified pollutant(s), if the owner or operator has reviewed the nodel ling inputs for that source and the executive director receives written certification that the inputs are correct no later than February 28, 2007. S7116.1530. Best Ai~niluble Ret1'0f;t Tech~iolog~l (BART) Coiit~alIlnplen7eritntio17. (a) Each owner or operator of a best available retrofit technology (BART)-eligible source shall install and operate BART-required control equipment no later than five years after the United States Environmental Protection Agency has approved a Regional Haze State Implementation Plan forthe State ofTexas. Each owner or operator shall maintain the BART-required control equipment and establish procedures to ensure such equipment is properly and continuously operated and maintained. (b) Prior to any installation of BART-required control equipment, each owner or operator of a BART-eligible source shall comply with the requirements under Subchapter B of this chapter (relating to New Source Review Pe~mits), SubchapterF of this chapter (relating to Standard Pelmits) or Subchapter H of this chapter (relating to Permits for Grandfathered Facilities) as applicable to authorize the construction or modification and to establish einission limitations of BART. This agency hereby certifies that the adoption has been reviewed by legal counsel andfound to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 12, 2007. TRD-200700106 Robert Martinez D~rector, Environmental Law Division Texas Commission on Env~ronmental Quality Effective date: February 1,2007 Proposal publication date: August 25, 2006 For further information: please call: (512) 239-0348


### TITLE 31. 

### NATURAL RESOURCES AND CONSERVATION 

### PART 2. 

### TEXAS PARKS AND 

### WILDLIFE 

# DEPARTMENT I 31 TAC 557.125 I I The Texas Parks and Wildlife bornmission adopts an arnendment to 357.125, concerning yarrnful and Potentially Harmful Fish, Shellfish, and Aquatic Pl?nts, without change to the proposed text as published in the September 29, 2006, issue of the Texas Register (31 TexReg 81Q3). Triploid grass carp are an effec Ive method of aquatic plant con- 

# i trol, but by statute can only be; used under a permit issued by the department (Texas Parks abd Wildlife Code, 566.007). Under current rules, there is a $l?fee for a triploid grass carp pep mit and an additional fee of 

### $4 per fish. The current rule also provides for the waiver of the !$I5 fee if the fish are released, in public water. The amendmentiwaives the $2 per fish stocking fee for triploid grass carp stocked in public waters. The intent of the department is to facilitate;increased efforts to control noxious vegetation in the public freshwater of the state by waiving the stocking fee as well as the application fee. The amendment also clarifies that the departme$ issues permits for the stocking of triploid grass carp in public a? well as private waters. The rule will function by eliminajing the $2 per fish fee for triploid grass carp released in public yaters, and by clearly stating that grass carp may be stocked in public waters. 'The department received no comments opposing adoption of the proposed rule. I 

### i 'The department received one komment supporting adoption of the proposed rule. 

# I The amendment is adopted {nder Parks and Wildlife Code, 311.027, which authorizes the yornmission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the Parks and Wildlife Code, and 366.007, dhich requires the commission to promulgate rules governing th4 release of harmful or potentially harmfulfish, shellfish, or aquatic plants. This agency hereby certifies thjtthe adoption has been reviewed by legal counsel and found to Te a valid exercise of the agency's legal authority. 

### t 

### I Filed with the Office of the Secretary of State onJanuary 9,2007. t TRD-200700041 Ann Bright General Counsel Texas Parks and Wildlife ~e~artmknt Effective date: January 29, 2007 

### 1 Proposal publication date: septeAber 29, 2006 For further information, please call: (512)383-4775 I 

### TITLE 34. 

### PUBLIC FINANCE 

### PART I. 

### COMPTR~LLER OF PUBLIC ACCOUNTS CHAPTER 3 

### TAX A4MINISTRATION SUBCHAPTER 

### V. FRPNCHISE TAX

32 

### TexReg 332 

### Jcc~zua~y 26, 2007 

### Texas Register