Buddy Garcia, Chairman 

Larry R. Soward, Commissioner 

Bryan W. Shaw, Ph.D., Commissioner 

Mark R. Vickery, P.G., E-wecutive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protectihg Texas by Reducing and Preventing Pollution 

March 19,2009 

Docket No. 2007-1539-SIP 

Project No. 2007-016-SIP-NR 

Docket No. 2006-0228-RUL 

Project No. 2006-022-116-EN 

Lawrence E. Starfield Acting Regional Administrator 

U.S. Environmental Protection Agency - Region 6 

1445 Ross 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 11 6, 

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 Guadalupe National Parks, resulting from anthropogenic air pollution. 

Enclosed are the proposed revisions to the SIP, adopted rules, public hearing certifications, a complete record 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 of Budget, Planning and Policy, Office of the Governor 

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on 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 Susana M. Hildebrand, P.E. 

' Director, Air Quality Division 

Texas Commission on Environmental Quality 
Texas 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 of Air Pollution by Permits for New Construction or Modification, and to 

the state implementation plan. 

The comment period was originally scheduled to close on September 25,2006, but was extended to 

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 is divided into the following four 

sections: 

0 Public Notification and Proposal 

o Written and Oral Testimony 

o ~viluation of Testimony 

o Staff Recommendations/Order 

Additional copies of this hearing record are maintained in the TCEQ central office at 121 00 Park 35 

Circle, Austin, Texas 78753. For further information, please contact Margaret Earnest at (512) 239- 

4581. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC 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 Deadline for Comments in the September 29, 2006, issue of the 

Texas Register (3 1 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 Governments 
El 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 Agency 
Example of Newspaper Classified Ad 

Amarillo Globe-News, August 15, 2006 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON'ENVIRONMENTAk QUALIN 

ON PROPOSED-REVISIONS TO.3O;TAC CHAPTER 11 6- 

(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 &.o m.m &,'to ",; p.r~@os.@s~!fbw '§,g.,11:6.fiso;w;,! 

..11 6,151 0; 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 

in 8uilding.E; Room 201 S, ot.the.Texas,-Commission. 

r; :, n-~n.v i a nme.ntail:,:~.u a lit+:::.d.:o mp 16x: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 2006-022-1 16-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!.200 
A field 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 (3 1 TcxRcg 6616), 

the Texas Co~li~nission on Environmental Quality (commission) published proposed new ~~116.1500, 1 16.151 0, 116.1520, I 16.1530, and 

116.1540 of 30 TAC Chapter 116, Control ofAir Polllltion by Pennits 

for New Construction or Modification, and corresponding revisio~ls for 

the state i~iiplementation plan (SIP). The preamble to 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, (5 12) 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 oi tlie 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 11ro11oscd District 

To vicw the coml~lctc ~ssucd noticcs, ricw thc noticcs 011 our wcb 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 f search results. 

0720;006-D07; Northjiark 109, LTD., a 

Ige 268, LTD, a Tcxas limited partnl. Inc., a Texas corporation (Petiof' Wooclriclge Municipal Utility 

the Texas Commission on Envipetition was filed pul-suant to AI-ticle 

of the 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 for a 

resentative), mailing address, dayti~re 

if any; (2) the nalile of the petitioner 

Number; (3) the statement "Ilwe req 

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-tatiou Control Measure Contained in the Dallas-Fort 

WorLh State I~nplementation Pla i 

liearing on a petition if a written 

after the newspaper publication 

Zase hearing, you must submit tlie 

grmp or 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 o11 Envil-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 I Lroliolilan area (DFW), jIroposes 

Quality 

ADDITION Septenzber 29, 2006 31 TexReg 8263 
ss 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 

odic protection 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 of Public Hearing on Proposed 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 regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 11 6, Control of 

Air Pollution by Permits for New Construction or Modification, 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 States Environmental Protection Agency (EPA) regulations 

concerning SIPS. 

The commission proposes new $51 16.1500, 116.151 0, 1 16.1520, 

1 16.1530, and 1 16.1540 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 contact Lola Brown, Office 

of Legal 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 of Water Quality ppplications 

Notice issued August 7, 20b6 

31 TexReg 7026 Arigrrst 25, 2006 Texas Register 
Sherry 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 

SUBCHAPTER F. 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 each year of the first five 

years the section as proposed is in effect the public benefit anticipated as a result of enforcing t e section will be acceptance of 

national test results from others ates with comparable examinations and facile 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 amendments are proposed nder Texas Occupations Code, 

~1101.151, which authorizes th Texas Real Estate Commission 

to make and enforce all rules a d regulations necessary for the 

performance of 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 by this prop sal is Texas Occupations Code, 

Chapter 1101. No other statute, ode or article is affected by the 

proposed amendments. 

$535.61. Examinations. 

(a) - (f) (NO change.) 1 

(g) The commission may Jaive the national portion of the examination of an applicant for a bro er or 3 salesperson license if the applicant maintains a license equivalept to the license being applied for I 

- and has passed a comparable nation 

fied by a nationally recognized real 

This agency hereby certifiesthat 

by legal counsel and found to be 

ity to adopt. 

Filed with the Office of the Secre ry of State on August 8,2006. 

TRD-200604078 

Loretta R. DeHay 

General Counsel 

Texas Real Estate Commission 

Earliest possible date of 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 I Areas, and §I 69B, 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 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 Part 51 on July 6,2005 

(70 FR 391 56). The FCAA and implementing regulations require 

states to submit SIPS to 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 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 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 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 relevant to BART applicability. The term "visibility-impairing air pollutant" is also defined and includes NOx, 

SO,, and PM, which are the principal species emitted from Texas 

sources that are believed to 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 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 proposed to 

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 $11 6.1 51 0 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 $116.1 510(b), the owner or operator of a BARTeligible source may elect to use modeling to 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 subject to the requirements 

of §116.1520, Best Available Retrofit Technology (BART) Analysis, and §I 16.1 530, 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 laterthan 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 a commission-approved 

model 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 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. 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 visibility 

impairment 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 I areas are 

unlikely to have a significant effect on visibility. The exemptions 

in ~116.1510(c)(l) and (2) are pollutant specific for NOx 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 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 

be exempted 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 requirements for PM,, while 

remaining subject to BART for other visibility-impairing air pollutants. 

PRO 'POSED RULES August 25,2006 31 TexReg 661 7 
Owners or operators claiming exemption under $11 6.1 51 O(c) are 

required to 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 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 allowed the 

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 requirements for PM. 

$1 16.1520. Best Available Retrofit Technology (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 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. 

Proposed §116.1520(b) would 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. 

Proposed §116.1520(c) would establish 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. 

51 16.1530. Best Available Retrofit Technology (BART) Control 

Implementation. 

The commission proposes new $11 6.1 530, which contains requirements and deadlines associated with the implementation 

of any required BART controls. Proposed 311 6.1 530(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 will require some time to review the SIP, it is likely 

that the BART control deadline will occur during or after the year 

201 3. 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. Proposed §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. 

Proposed §I1 6.1 530(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 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 BART emission limitations. If a BART-eligible facility satisfies BART requirements using existing controls, and there are 

no changes in quantity or character of emissions, then no permit 

action is required as long as the existing emissions have enforceable limits in a permit, standard permit, or other type of authorization. 

$1 16.1540. Exemption from Best Available 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 must first obtain initial approval from the commission, then obtain final approval from the EPA. Although this exemption may be used to 

avoid the otherwise-required installation of BART controls, this 

exemption does not negate the requirement to perform the BART 

analysis required under proposed §116.1520, or the 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 significant fiscal implications are 

anticipated for the agency. The agency will be required to 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. Administration or enforcement of the proposed rules may have fiscal 

implications, some of which may be significant, for other units of 

state or local governments owning or operating facilities that may 

require BART to control emissions. Fiscal implications would depend on the results of exemption modeling assessments and engineering analysis as well as the determination of whether controls would be required. 

The FCAA requires states to submit SIPS to address visibility impairment caused by regional haze in the 156 federally protected 

parks and wilderness areas. As part of their SIPS, states must 

identify the BART-eligible sources within their boundaries and 

provide guidelines for determining BART to ensure certain older 

pollution sources use appropriate technology to control emissions that cause or contribute to impaired visibility 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 production facilities. The 

proposed rules would apply to sources that have the potential 

to emit 250 tons or more per year of visibility-impairing air pollu31 TexReg 6618 August 25,2006 Texas Register 
tants 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 range from 

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 per ton 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. If a 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 IMPACT ANALYSIS 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 is to: 1) exceed a standard set bv federal law. 

unless the rule is specifically required by state law; i) exceed an 

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 PM that cause or contribute to visibility 

impairment in any Class I area. 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 Guidelines for 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 in these 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 

belong to 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 6619 
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, SO,, 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 proposed new sections to 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 

116 were developed to be included in the 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 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). 

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 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 

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, s7410, the commission routinely proposes and adopts 

SIP rules. As discussed earlier in this preamble, states must 

also revise their SIPS under s7410 to incorporate a plan for visibility protection, including requirements for BART. The legislature is presumed to understand this 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 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, §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 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 & Light Co. v. Sharp, 91 9 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 

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, 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 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 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, 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 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 analysis determination during the public comment period. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated these proposed rules and performed 

an assessment of whether Texas Government Code, Chapter 

2007 is applicable. The commission's assessment indicates that 

31 TexReg 6620 August 25,2006 Texas Register 
Texas Government Code, Chapter 2007 does not apply to this 

proposed 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. FCAA, 42 USC, 57491, 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, 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), relating to Actions and 

Rules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistent 

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

policies in accordance with the rules of the Coastal Coordination 

Council and determined that the action is consistent with the applicable CMP goals and policies. 

The CMP goal applicable to this rulemaking action is the goal 

to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 

TAC 5501.12(1)). 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 

in the coastal areas (31 TAC §501.14(q)). This rulemaking action 

complies with 40 CFR Part 51, Requirements for Preparation, 

Adoption, and Submittal of Implementation Plans. Therefore, in 

accordance with 31 TAC §505.22(e), the commission affirms that 

this rulemaking action is consistent with CMP goals and policies. 

The commission solicits comments on the consistency of the 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 permits to 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 needs who are planning to 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 AUTHORITY 

These 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 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; 

9382.011, 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; 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 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 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 TexReg6621 
potential 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 million British 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; 

sulfur recovery plants; 

carbon black plants (hmace process); 

0 primary lead smelters; 

(RJ fuel conversion plants; 

@J sintering plants; 

a secondary metal 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 fiber processing plants; and 

a charcoal production 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. 

@ The requirements of this subchapter apply to best available 

retrofit technoloq (BART)-eligible sources as defined in $1 16.1500 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 $ 11 6.1530 of this title 

(relating to 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 .greater 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's Air Permits Division no later than April 30, 2007. 

@ The following BART-eligible sources are not subject to 

the requirements of 61 16.1520 or $1 16.1530 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. 

(lJ Any BART-eligible source that has 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 that has the potential to emit 

less than 1,000 tons per year of combined NO. and SO-and that is located more than 100 kilometers from any Class I area is not subject to 

BART for NOx and 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 aenerating units participating in the 

Clean Air Interstate Rule Trading Program are not subject to the requirements of (j 1 16.1520 or 6 1 16.1530 of this title for NO" and SO, 

$11 6.1520. Best Available Retrofit Technolom (BART) Analysis. 

@ Except as provided under (j 11 6.15 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 feasible retrofit technologies, and for each technologl~ 

identified, an analysis of the cost of compliance, the energy and non-air 

quality environmentafimpacts, 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 technolQJJ As part of the BART analysis required in subsection (a) of 

&is section, the owner or operator shall include detailed information 

documenting the projected hourly and annual emission limits for the 

selected BART control strategy. 

@ 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's Air 

Permits Division no later than April 30, 2007. 

.$116.1530. Best Available Retrofir Technolom (BART) Control Implementation. 

@ 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 for the State of Texas. Each owner or operator shall 

31 TexReg 6622 August 25, 2006 Texas Register 
maintain 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-required control equipment, each owner or operator of a BART-eligible source shall apply 

for a pennit, permit amendment, permit alteration, applicable standard 

permit, or other enforceable mechanism under this chapter to establish 

emission limitations and cow the implementation of 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 director and final approval from the 

administrator of the United States Environmental Protection Agency 

@PA). Exemption requests submitted to the EPA must be accompanied 

by written concurrence from the executive director. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on August 11,2006. 

TRD-200604224 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: September 24, 2006 

For further information, please call: (51 2) 239-501 7 

TITLE 37. PUBLIC SA ETY AND CORRECTIONS f 

PART 1. TEXAS DE ARTMENT OF 

PUBLIC 

CHAPTER 

SAFETY 

3 5. 

P 

SUBCHAPTER 

37 TAC 835.52 I 

The Texas Department of Publi Safety proposes new s35.52 

concerning Summary Action Fol owing 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 Cliff 

Grumbles, Manager, Regulatory Service-Private Sechapter. 

Texas Government Code, § nd Texas Occupations 

ity to adopt. 

Filed with the Office of the Secretarj of State on August 8.2006. 

SUBCHAPTER E. GENE L ADMINISTRATION AND EXAMINATIOI t S 

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 Texas Department of Public Safety r in the Texas Register o#ce, 

Room 245, James Earl Rudder Buildin t , 1019 Brazos Street, Austin.) 

1) 424-21 35 

+ 

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 6623 
Kathleen Hal-t~iett Mrhile, Clzai~nza12 

I<. B. "Kalph" Matquez, Comnzissio~zer 

Larry R. Soward, Conn7zissioner 

Glenn Slianltle, Execuiioe DiwclolProtect iny Te.~(n I)LI Reducing uncl Prevcnti~?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 $51 16.1500, 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 Coininissioil on 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 (5 12) 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 onEilviroil~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 in Austirz, Texas, on August 9, 2006. 

1'.0. l3trx 1::087 Austin, 'Tex;is 7871 1-: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 TESTIMONY
INDEX 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. 

Russell A. 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 0 9 2006 

REGBR'7IQNS D£VIlOPl ENT S EG'IION 

Ms. Lola Brown 

MC 205 i 

Office of Legal Services 

Texas Commission on Environmental 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 Project Number: 2006-022-116-EN 

Dear Ms. Brown: 

Alcoa Inc. is pleased 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 Texas Register. Enclosed please find a copy of Alcoa's comments on TCEQ's proposed 

regulations implementing requirements concerning best available retrofit technology at existing 

stationary sources of certain types, 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 

If you have any questions about our comments on this proposal, you may contact me at your 

convenience by phone at (865)-977-3071 or by electronic mail at jimmy.jones@alcoa.com. 

Sincerely 

James D. Jones 

Alcoa Inc. 

Senior Consultant 

GBS-EHS Services North America 

JD Jlj dj 

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 1 16.15 10 requires clarification because it relies solely 

upon a cross reference to 5 11 6.1500 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 Reaional Haze Renulations and Guidelines for Best Available Retrofit 

Technolorn BART) Determinations: Final ~ule' clarifies that only certain emission units within 

the primary aluminum ore reduction stationary source category are ~AR~-eli~ible~ (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) 5 169A(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 5 1 16.15 10(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 5 1 16.15 10 be revised as follows: 

F 1 16.15 10. Apvlicabilitv and Exemption Reauirements. 

(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 (BARTeligible sources as defined in 51 16.1500 of this title (relating to Definitions) 

that satisfy all of the following requirements: 

70 FR 39104 

70 FR 39159 "Primary aluminum ore reduction." We interpret this category to include those facilities covered by 

40 CFR 60.190, the new source performance standard (NSPS) for primary aluminum ore reduction plants. This 

definition is also consistent with the definition at 40 CFR 63.840. 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page2of 11 

(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 "SUBJECTTO-BART . 

The terminology and requirements of the proposed regulation are inconsistent with 

Appendix Y to Subpart 5 1 - Guidelines for Best Available Retrofit Technology (BART) 

Determinations; Final ~ule.~ 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-eliible sources that are determined to be subiect to BART. 

CLARIFICATION OF BART ANALYSIS REQUIREMENTS 

The requirement to conduct an analysis of emissions control alternatives for all visibilityimpairing pollutants at § 1 16.1 520(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 fist sentence in 8 1 16.1520(a) be revised as follows: "(a) Except as 

provided under $1 16.151 0@), (c), or (4 of this title (relating to Applicability and Exemption 

Requirements), each best available retrofit technology (BART)-eligible source that is subiect-toBART shall conduct an analysis of emissions control alternatives for visibiliby-impairing 

pollutants determined to be causing or contributing to visibility impairment in a Class 1 area. " 

CRITERIA FOR DETERMINING NON-APPLICABILITY TO 30 TAC 4 1 1 6.1500 et. sec. 

Alcoa supports the criterion of 0.5 deciview proposed by TCEQ in § 1 16.15 10(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: 

3 70 FR 3 9 16 1, "How to Identzfi Sources "Subject to BART. " 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 3 of 11 

(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 

de~iview,~ and that a 1 deciview change is not expected to produce 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-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 1AREA 

Alcoa does not support the criterion of 0.5 deciview proposed by TCEQ in 

5 1 16.15 1 0(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 

agreementwith 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 8 1 16.15 10(c) "model plant" exclusions from the requirements of 5 1 1 6.1 520 and 

5 1 16.1 530 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. 

4 Henry, Ronald C. "Estimating the Probability of the Public Perceiving a Decrease in Atmospheric Haze. " Journal 

of the Air & Waste Management Association. Volume 55, November 2005. p 1764. 

Henry, Ronald C. "Just-Noticeable DlFerences in Atmospheric Haze. " Journal of the Air & Waste Management 

Association. Volume 52, October, 2002. p 1238-1243. 

Ibid. 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 4 of 11 

Recent work done by the State of ~eor~ia~ 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 5 1 - 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 sourcespecific particulate matter from the BART assessment requirement. 

In paragraph one of $ 1 16.1500 the Texas Commission on Environmental Quality (TCEQ) 

proposes that terms not explicitIy defined in $ 1 16.1500 are to have the meaning given them in 40 

Code of Federal Regulations (CFR) 851.301 on an effective date of September 6,2005. The 

effective date of the current version of 40 CFR $5 1.3 01 is July 1,1999. The date reference in 

TCEQ's proposed BART regulation is inconsistent with the effective date of current definitions 

in $51.301 and produces unnecessary confusion. A correction to the effective date of $51.301 

definitions is requisite to ensure consistency between the TCEQ regulations and the undedying 

Federal regulations being implemented through Texas Rule Project Number 2006-022-1 16-EN. 

7 Broylan, Jim, Georgia Department of Natural Resources. (Preliminary) BART Model Plant Criteria with PM, 

VISTAS Joint Workgroup Meeting, Aupst 29,2006. 8 Supplement to Comments. Copy of August 29,2006 Presentation Materials. 

70 FR 39163 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 5 of 12 

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. 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 6 of 11 

BART Model Plant 

Criteria with PM 

Jim Boylan 

Georgia Department of Natural Resources 

VISTAS BART 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 southeastern U.S., SO2 (sulfate) typically 

has larger impact on light extinction than NOx 

(nitrate). 

- Conservative approach would be to assume 100% 

SO2 emissions 

What about adding PM to the model plant 

criteria? 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 7 of 1 1 

Light Extinction 

- f(rh) ranges from 2.3 - 4.7 with an average value of 3.2 

in the VISTAS states 

- Average contributions to 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 to be in form of NH,N03 

Elemental Carbon = lo* PC] 

Organic Carbon = 4*[ORG] 

Soils = l*[Soils] 

Coarse Mass = O.6*[PMCJ 

- Conservative approach is to assume all PM is PM2.5 

[PMC]=O 

SO2 vs. PM Emissions 

SO2 does not impact Iight extinction 

Only a fraction of the SO2 becomes SO4 PM 

How much? 

- Function of SO2 to SO4 conversion rate 

- Function of distance downwind 

- Function of wind speed 

100 % of primary PM becomes PM 

- Speciation of PM will impact light extinction 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 8of 11 

Conversion Factor 

Calculate a "PM factor" to relate primary PM 

to secondary sulfate PM from SO2 

- e.g., E = S02+NOx+lO*PM 

Lower SO2 to SO4 conversion results in higher 

PM factor 

- Higher PM factor is more conservative 

Conversion of 1 ton SO2 (MW=64) will 

produce 2.0625 tons (NH,)$04 (MW=132) 

Example 

Assume all primary PM is sulfate and ignore 

dry deposition 

100 tons SO2 with 5 % conversion rate 

- 100 tons SO2 * 5% conversion 

= 5 tons * 2.0625 

= 10.3125 tons SO4 PM produced 

- 100 tons PM = 100 tons PM 

E = SO2 + NOx + (100/10.3125)*PM 

= SO2 + NOx + 9.7"PM 

= SO2 + NOx + 10*PM 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 9 of 11 

Mean SO, Conversion Rate 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 = 50 km (31 miles) 

- Model plant criteria distance 

SO2 to SO4 conversion rate = 1.5% per hour 

- Max. sulfate production is during summer 

- Lower conversion rate produces higher PM 

Factor 

Wind speed = 5 m/s (11.2 mph) 

- Higher wind speeds produce higher PM Factor 

- Max. sulfate production occurs at lower WS 

Likely < 5 m/s 

- t = 31 miles/ 11.2 mph = 2.77 hours 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 10 of 11 

PM Factor 

SO2 conversion = 1.5 % * 2.77 hours = 4.15 % 

- 100 tons SO2 * 4.15% conversion 

= 4.15 tons * 2.0625 

= 8.56 tons SO4 PM produced 

- 100 tons PM = 100 tons 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 all primary PM will be sulfate 

Scale components 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)l 
Ms. Lola Brown 

Texas Rule Project No. 2006-022-1 16-EN 

October 3,2006 

Page 11 of 11 

International Paper - Savannah 

S02=0.0 tons, NOx=O.O tons, PM=51.4 tons 

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 = 616.8 tons (> 500 + not exempt) 

PM Speciation from SMOKE profile (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!!\ I 
October 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 an 
effective 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 

Office of Legal Services . 

Texas Commission on Environmental Quality (TCEQ) 

P.O. Box 13087 MG205 

Austin, TX 7871 1-3087 

AM ERICAN' 

ELaClRfC 

POWER 

Re: Rule Project NO+ 2006-022-116-EN 

Dear Ms. Brown: . , 

American El&c Power (AEP) has' electtic generating units in Texas, some of which are . 

BART eligible. As an aeoted entity, AEI? offers these comments to the TCEQ proposed 

Best Available Retrofit Technology (BART) implemen~on rules. 

As a general comment, AEP concurs with TCEQ's determination that BART-eligibIe 

Electric Generating Units (EGUs) subject to the Federal CAIR program do not need to 

install, maintdn snd operate BART for SO2 and Nor; per 40CFR51.308(e)(4). 

Texas is a signatory to the Clean Air Interstate Rule (CAIR) program by virtue of . 

adopting the EPA developed CAR Model Rule by reference (as required by the Texas 

legislature). . 

Importantly, one of the findings of the EPA CAR analysis was that the CAB2 NOx and 

SO2 reductions would make greater reasonable progress required under the haze rule, 

than source specific BART for EGUs 

AEP would like to offw these specific comments to the TCEQ proposal: 

Proposed 8 116.1500 : Definition of visibilitv impairing air pollutants 

Notwithstanding the fact CAIR=EGU BART for SO2 and NOx, AEP concurs that it is 

appropriate for the proposed definition of "visibility impairing air pollutants" to indude 

S02, NOx and particulate matter (PM). 

- While the TCEQ is proposing to exclude VOCs and Ammonia $.om the proposed 

definition, AEP would like to express concem about the exclusion of reactive VOCs. 

Even though EGUs are insignificant sources of reactive VOCs, the role of reactive VOCs 

in secondary particulate formation and the resulting impact on visibiIity in CIass areas 

cannot be discounted, in developing control strategies. The TCEQ would be advised to 

reexamine the proposed exclusion of VOCs, especially reactive VOCs 

AEP: Amn'ca's Eneqg Par$ner@ 
Oct. 9. 2006 4:OOPM AEP ES WEST No, 1036 Po 3 

Proposed 4 116.1510Cb): CALPUFF Model use 

Since Texas is a CAlR state, CAIR=EGU BART for SO2 and NOX would 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 of results 

from such exercises. Thus a blanket approval of CALPUFF use in source specific 

exemption modeling should be examined with care. 

CALPUFF is recognized 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 attribution to Texas sources from remote Class I areas 

in other states, if the results are based solely on 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. 

SCICIBM is a stand-alone plume dispersion and chemistry model that has been used in 

some visibility 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 question the need to lower the 

threshold to define when a BART-eligible source causes or contributes to visibility 

impairment. 

Not withstanding the limitations of the existing 0.5 deciview threshold, 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 that the 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 fiom BART-eligible sources on Class 

1 areas. We offer the folIovhg reasons 
Oct. 9. 2006 4:OOPM AEP ES WEST No. 1036 P, 4 

a) Ems have some of the highest efficiency (greater than 99 % plus) particulate 

control equipment on solid fuel units 

b) A.s an example, an impact assessment of one of AEP's coal unit's particulate 

emissions over a three-year analysis period, using the most conservative actual 

maximum 24-hour average emissions, revealed that visibility impact thresholds 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) The modeled deciview visibility change for PMlO and PM2.5 ranged from 0.00 to 

a m.axbnum of 0.03. By way of reference, the threshold for impact is 0.5 

deciview, demonstrating the insignificance of these particulate emissions on 

visibility 

e) PMIO and PM2.5 mass emissions relative to the BART presumptive level SO2 

and NOx mass emissions, mged &om a low of 3% to a high of 11 %. The import 

of these mass emissions comparison is to demonstrate that when the higher 

quantities of SO2 and NOx level emissions satisfied BART, the insignificant 

levels of PM mass emissions resulting from the existing controls at EGUs should 

satis@ BART 

f) The suggested modeling demonstration for PM could thus be deemed to be awaste of resources for EGUs as well as the TCEQ 

Thank you for taking these comments into consideration as you finalize the proposed rules, 

In the event you need questions answered, please contact me at 214-777-1373. 

Truly yours, 

CC: TCEQ BART Files 
ARKEMP INC PAGE 01 

October 4,2006 

Lola Brown 

MC 205 

Texas Register Team, Office of Legal' Services 

Texas Commission on Envimn'mental QUaIjty 

PO Box 13087 

Austin, TX 7871 1-3087 

Facsimile submittal to 5 12 239 4808 

RE: Comment concerning proposed 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 comments on the Texas Commission for Environmental 

Quality's ('TCEQ") proposed rule to establish the TCB(t best available retrofit technology 

(BART) program. TCEQ's proposal would directly imprld one Arkma facility in Houston, 

Texas. Arkema submits thc following commmts for coraideration by TCEQ. In general, 

Arkema supports TCEQ's proposal. to comply with tbe ITnited States Envhnmmtd Protection 

Agency's (EPA) BAKT program. However, kkema delrcribes below a number of specific issues 

thnt should be further clarified, or modified., by TCEQ fiom the final regulation so that the final 

rule is both clear in its intmt and also reasonable in. its approach to regulate &ccted industry. 

Proposed 3 0 TAC 1 16.15 10(d) equates BART eligibility with compliance with EPA's 

Clean Air Interstate Rule (CAIR) cap-and-trade 1 vrogram . Unda cap-and-trade, 

individual. sources that partidpate in the rule may eithcr rduce emissions to meet a limit 

or may purchase dlowances from others who reduce &.ssions to meet a lh'x~j,t. Therc is 

no mechmism to ensurc that an individual rnm11e.r of a cap-and-trade system that has a 

significant impact on a Class I area is required ta reduce emissiow. .What could likely 

b,appen is that a large sbwce with a Class I, area impact pu~c,hases allowances rather than 

reducing emissions, which shifts the burden, of cr>mpliance with BART from the largest 

sources, which often can control emissions more cost-effectively than small.er sources, to 

srndler sources. This loophole could ~1.l.low largcx sources to shift their BART 

colnpliance burden to smaller, morc ekpensive to control, sources, such as Arkema's 

Houston facility. Arkema advocates applying mission controls to meet agency visibi1j.ty 

800 Fitat Avenue 

King of Prussla, PA 19406 

610 878 6618 VO~E - 610 07B 8608 faX 

rih.niders@arkema.mm 
ARKEMA INC PAGE 02 

Arkcma Inc. 

Rule Project # 2006-022-1 16-EN 

Page 2 

and nttaim-nent goals to 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 requests that TCBQ ody allow CAIR solnrces actively reducing missions of 

BART-related pollu~~s to claim tbat compli~cc! with ~~~~'equatcs compliance with 

BART, ~urth&? TCEQ should retain the autl~vrity to ensure that CAXR relatd emission 

reducti,ons am of sufficient magnitude to ensure ElMCT compliance, and that if those 

CAR reductions fail to meet BART, thei TCEQ should retain the authority to request 

further cxnission reductions from CAIR sources also subject to BART. TCEQ should 

ensure that CAIR faci1,ities thattmust install BARF controls that reduce emissions beyond 

CAIR rcqujranents could market hc inmeinental emissions under CAm. 

hkema supports proposed 30 TAC 1 16.15 1 0(c) zxaptions ltoriting applicability to the 

BART analysis to be i-cquired in proposcd 30 TAC 116.1520. TCEQ correctly limits the 

impact of the pposed BART regulations to those fa~il.ities that are more likely to hove a 

significant impact on Class I area visibility, whi1.r; not burdmhg smaller facilities with no 

identifiable impact on Class I area visibility. Arkma be1,ieves that the proposed ' 

emissionddistance relationships reflected in 1 16.1 5 10(c) arc appropriate. 

Proposed 30 TAC 1 1 6.15 I. O(b) dlows BART-eli giblc facilities to show, using EPAapproved (40 CFR 5 1. Appendix W) dispersion nr.odeling protocols an.d EPA 

recommendedguidancc. Arkelna supports TCEQ'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 proposed in 30 TAC 11.6.1520. TCBQ tihould modify the proposed regulations 

to shicld fa~iJ.ities pursuing this option from comjpliance with proposcd 30 TAC 116.1520 

until TCBQ approves the mode1.ing demonstraticn, or six ~n.onths after TCEQ rejects any 

such modeling dmonstration The six month period will provide a facility facing 

rejection of their modding demonstration adequ;~.te time to prepare the rcquked BART 

analysis, and will. ensure that a facility complyih~ with 1. I 6.15 10 doesrs ' t inad.vdmtly . 

fail to comply with, 1.16.1520 because of participation in another part of the rule, 

Proposed 30 TAC 1 16.1520(c) reqluires all BAR'r analyses be completed by April 30, 

2007. Since TCEQ may n.ot be able to fina1,ize t:is proposed regulation package before 

the cnd of 2006, TCEQ should allow at least lS(r or 180 days horn final prolnulgation of 

this proposal forRART-eligiblc fadlitjes to prqtaic and submit requircd a.naIy,ses. Sincc 
ARKEMA INC PAGE 03 

Arkema Inc. 

Rule Project # 2006-022- 1 16-EN 

Page 3 

many chemical industry BART facilities may change over time, BART facilities should 

be given the opportunity to updatc their analyses .~p to two years before the proposed 

implmentation schedule proposed in 30 TAC 1,13O(a) to reflect changes in BART 

sources that may occur in the several years that may pass between development of the 

BART plan and installation of any required BART controls. 

Plcase contact mc at the phone number below with any gucstijons. Thank you for your consideration of 

these comments, 

Rich Raidws 

Environment and Sistainable Development 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 

ADMlNlSTRATlVE OFFICES: 972 / 723-7200 FAX 972 / 723-7209 

PLANT OFFICES: 972 / 723-2301 FAX 972 / 299-51 27 

October 9,2006 

Lola Brown 

Office of Legal Services,.MC 205 . 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 7871 1-3087 

Fax: 512.23 9.4808 

. . . . 

Re: Rule Project Number 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 abovelderenccd 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 of these comments. 

Comment 1: The def&tion of. 'Best available retrofit technology (BART) -eligible source" 

at proposed 30 T.A.C. 5 1 1 6.1 500 should be revised as follows: 

(I) B& ~vaildle retrofit teclmulogy (BART)-eligible source-.Any 

emissions units that comprise am, of the following sralionary sources of 

air pbllufanrs, including any reconstructed source, that w no1 in 

operation pridrtb ..lugus: 7, 1962, and w were in exisrence on August 7, 

1977, and ks collectivelv have the potential to 'emit 250 tons per year. 

(including fugitive emissions to the extent qwnrifiab~ej of any 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 emissions unit basis, as indicated by the four-step process set 
Oct 09 06 02336~ ASH GROVE TEXAS 

. . Lola Brown 

October 9,2006 

Page 2 of 8 

forth in EPA2s 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: Identify the start-up dates of those emission zmits, and . 

Step 3: Compare the potential emissionsto the 250 todyr cutoff. 

Final Step: Identify the ehssions units and pollutants that constifufe rlze 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 subject to the requirements of the BART pro\-isions if only 

one part of the site was built within the 1962- 1977 time period.' Furthemore, emission units 

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, 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 

constitute the BART-eligible source and be potentidly subject to 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 no f in operafion prior to August 7, 1962. 

and was in exisfence on August 7, 1977, and has the potential to emit 250 

runs per year (including fugitive emissions, to the extend qtranfipable) of 

arty visibiliw-impairing air pollutant: 

(A) fossil fuel-fired steam elechic plants of more than 250 

million British thermal mits @TV per hour heat input; 

For all other term,s, the proposed rule incorporates the definitions contained in 40 C.F.PL 9 

5 1.3 01, 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 

Lola Brown 

October 9,2006 

Page 3 of 8 

Stationary source means any building, structure, facility, or installation 

which emits or may emit any air pollutant. 

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 sme person (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~ndaPd Indnstrial 

ClassiJication Ahnual, 1972 as amended by the 1927 Supplement (U.S. . 

Government Printing Ofice st&k numbers 4101-0066 and 003-005- 

001 76-0 respectively). 

Accordingly, under the literal meaning of proposed 30 T.A.C. 5 1 16.1500, 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 speciwg that the analysis focuses on individual emission units, an entire plant built 

in the 1940s could be subject to the BART provisions 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 code built 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. $ 5 I .30 1 (see defmition of "existing stationary facility"). 

40 C.F.R. Part 51, Appendix Y, Section LI, "How to Identify BART-Eligible Sources:" 
1 Oct 09 06 02337~ ASH GROVE TEXAS 

. . Lola Brown 

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 an indicator for particdate matter in determining which sources are BARTeligible. In fact, under Section XI. of the guidelines (Vow to Identify BART-Eligible 

Sources") EPA specifically recommends 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. 

Comment 3: Proposed 30 T.A.C. 8 1 16.1510 should be amended .to include' he foIlowing 

additional exemptions: 

Any BART-eligible source that has fhe 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 tho potential ro emit less than "Y" tons 

per year of PMro and that is located more thm 100 kilometers from any 

Class 1 area is not subject to BART for PMlo. 

In these suggested exemptions, "X" and "Y" are some amounts of PMlo emissions that have 

a negligible effect on visibility at distances greater than 50 and 100 kilometers, respectively. 

This amendment is needed to provide distance-based PMlo exemptions 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 of visibility 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. 5116.15 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 respect to not only NOx and St&, but also PMlo. 

Comment 4: Proposed 30 T.4.C. 5 116.1510@) should be revised as follo~m: 

@j The owner or operator ofa BART-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 !lor cause or cu~~~ribute to visibility inpafrment at any CIass I area is 

not subject to the requirements of $ 116.1520 or $ 116.1530 of this title 

- (relaring to Best Available Retrofit Technology (BART) Analysis and Best 

Available Retrofit TecknoIogy (BART) Control Implementation). 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 

licensed professionul engineer and must be received by the commission 's 

Air Permits Division FZO later than April 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 commission itself 

Comment 5: Proposed 30 Ti.4.C. 3 1 16.15 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 execurive 
Oct 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 requireinenis of$116,1520 or .$ I1 6.1530 of 

chis ride (relating to Best Available 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 Texas Eicensedprofessionul engineer and must be received by the 

commission 's Air Permits Division no lafer than Api730, 200% 

These revisions are needed to clarify that a BART-eligible source demonstrating that its 

emissions ,of a particular visibility-impairing pollutant do not cause or contribute to visibility 

impairment at a Class I area is not required to perform a BART analysis for 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 significant practical 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-impairing pollutant, and not the others. Coosider, for example, a source that has 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 PMlo emissions cannot "reasonably I 

I 
Oct 09 06 02:37p ASH GROVE TEXAS 

Lola Brown 

October 9,2006 

Page 7 of 8 

be anticipated to cause or contribute to any impairment of visibility 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 16.3 5 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 to nof cause or contribute ro visibiliq 

impairmenr iJ as demonstrated bv modelinn performed bv the executive 

director or nerfirmed in accordance ~~ith the atiide[ines approved 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 licemed professional engineer and must 

be received by the commission's Air Permits Division no later than Apvzl 

3 0, 200 7. 

This revision clarifies that modeling performed by a source in accordance with the guidelines 

approved by the executive director, or by TCEQ itself, is sufficient to dernonstmte that a 

source does not cause or contribute to 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 of waste of both 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, 

Environmental Manager 

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 

ASSOCIATION OF ELEiCTRlC 

COMPANIES C)F TEXAS, 1NC 

October 9,2006 

Ms. Lola Brown 

Office of Legal Sdccs 

Texas ~ornmkion on EnvLtomental Qudity 

P.O. Box 13087 MC-205 

Austin, TX 7871 1-3087 

Re: Rule Project 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") requirements under the Regional Haze Program. 

AECT is a trade association representing electric companies in Texas. Orsanized in 

1978, N3CT provides a fonrm for member company representatives to exchange information on 

thou indusrry, and to communicate with state and federal govcmmenkl officials. 

AECT's wneral sunoort fnr the ~ronosod BART rules 

AECT generally supports the proposed BART rulq however, AECT has comments on 

specific aspects of the proposed rules, which are set om below. 

AECT's comments on specific aspects of the pronosed BART rules 

Proposed fi 116.1500 

"Best available retrofit technolorn (BART)-eli~ibIc source'' 

MCT suggests that several ralisions be made to thc proposed definition of %best 

available retrwfit technoIogy (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~ are subject to BART rules. 

Under the proposed defmition of "best avaiIable retrofit technoIogy 0-eligible 

source", zhe id-cation of BART-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 

I 
10/09/08 17:01 FAX 512 404 3520 - JErnNS & GILCHRIST 

Ms. Lola Brown 

September 14,2006 

Page 3, 

illan on an emissions unit basis due to the inctusion ~f the 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 Part 51 App~mdix Y, Section 11. 

It would also be contrary to EPA language in the preamble to Phe sdoption of those guidelines, 

which specifies that EPA did not intend for states to find that all emissions units ar a site are ' 

subject to he BART requirements if (i) some of the emissions uits at the site were built outside 

the 1962-1977 time period (70 Fed.Reg. 391 11 (July 6,2005)), or (ii) some oftbe emission units 

at the site are nd in any of the 26 BART sowce oategories (70 Fed.Reg. 391 10 (July 6,2005)). 

Based 011 the foregoing, AECT suggests that the definition of "bast available retrofit 

rebhulogy @ART)-eligible source" 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 air pollutants, 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-impairing air pa llutam. 

~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-impairing air pallwtS' AECT would, however, like 

to note that the TCEQ should bc cognizant of rhe role of reactive VOCs in secondary organic PM 

formation &at are known to impact visibility 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 for an emissions unif PMIo may be used as an indicator for particulate 

matter. Such a change is supported by EPA's BART guidelines at 40 CFR Part 51 Appendix Y, 

wwch specifically provide that states may use PMlo ps 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 of particulate matter. 

This change would also be consistent with proposed 8 116.151 0(c)(3), which refers to PMloFor the foregoing reasons, AECT suggests &at the definition d'kiHbility-impairing air 

p01lu~~ be revised as follows: 

' The proposed des would incorporate rhe definitions contained 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 

Page 3 

i 

I 

I 

I (2) Visibiliv-impairing air pollutant - any of the 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 of the CUUFF model and CENRAP BART modeling guideIine~ 

The TCEQ proposed the use of the CALPWF model and the ClENRAP BART 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 ability to accurately predict visibility inlpacts beyond a distance of ZOO lan. 

AECT is concerned that use of the CALPWF model could result in false attribution to Texas 

sources of regional. haze impacts on Class I areas in other states. 

In light of the limits of the CALPUFF model, 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 alternative to CALPWF the 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 Research has 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 conff icts between the states. 

Tbe "cause or coatribute demonstration" should be made for each visibilhrimnairing air aollutmt 

&, currently wrinen, proposed 6 1 16.151.O(b) refers to the demonstration that a "source" 

will not cause or contribute to 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 visibilityimpairing air pdllutht, rather than for the source as a whole. Such a change would make 

proposed 4 1 16.1 51 0(b) consistent with proposed 5 1 1 6.1 51 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 that its missions of a particula-.\isibility-impairing 
1.0/09/06 17:02 FAX 512 404 3520 8- -. JENKENS 8: GILCHRIST lMs. Lola Brown 

September 14.2006 

Page 4 

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 in proposed 4 116.151 O(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 the BART requirements. 

Use of TCEO CAMx rnodelin~ results. and clarification of ''cause or 

contribute dern~nstration'~ modeling that sources must me 

AECT also believes that proposed § 116.15 10(b) should be revised to recognize &at the ' 

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 significant waste of both the sources' and the TCEQ's time 

and'resomces. Moreover, AECT believes that proposed 8 116.1510(b) should be revised to 

clarify that any modeling pdmed by a source To demonstrate rhat one or more of the visibilityimpairing air pollutants emitted from it will not cnuse a visibility impairment in a Class I area . must be done in accordance with guidelines approved by the executive director. 

Revlaccypent of "commissibh" with "executive director" 

AECT suggests that rhc word "commissi~n" in proposed I 1 6.1 5 lo@) 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 approve the BART model 

and modeIing guidelines used- Such revision would also be consistent with the rest of the BART ! 

rules, which use the term ''executive directorn to refer to the executive director and his staff: and I 

"commission" to refer to the three comissianers. 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 impbent at 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 6.1 520 or 4 11 6.1 530 of this 
/ 10/09/06 l7:OZ FAX 512 404 3520 - - JEWNS & GILCWIST 

I 

Ms. Lola Brown 

September 14: 2006 

Page 5 

title (relating to Best Available Retrofit Technolog PART) analysis and Best 

Available Retrofit Technology (BART) canlrol implementation for that nollutmt 

A source2 emissions of a visibilitv-im~airincu air pollutant 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 demonstration perfond bv a source must be submitted under t6e seal 

of a Texas licensed Pmfessional Engineer and must be received by the 

Commission's Air Permits Division no later than 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 a visibility impahin2 air pollutant{s) are reasonably 

anticipated to cause or contribute to impairment of visibility at a Class I area (which the TCEQ is 

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 deciviews when a source 

is located at greater than certain distances from Class I areas, the TCEQ has proposed distancebased 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 I areas. 

AECT believes that for the same reasons, proposed 5 116.1510(c) sl~ould be revised, as 

follows, to contain simiiar distance-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 is not subiect to BART for PMlk 

151 Anv BART-elim'ble source that has the potential to emit 1ess.than tons 

I* 

per vear of PMxmd that is. located more than 100 kilometers from anv CInss 1 

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 greater than 50 km ad 100 km. respectively. 

Proposed 6 Il6.151Oid~ 

AUSTIN 14961 1~3 5402660D01 
10/00/06 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 requirements for 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 generzting units. 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 70 Fed. Reg. 39160 (July 6,2006)], is to ~ontrcll emissions oftheir 

chemical components. SO2 and NO,, rather tllm other components of particulate matter (69 Fed. 

Re$ 4582 (January 30, 2004)). Furthermore, EPA llas specifically concluded, based on an 

exlensive study of the issue, that CAlR achieves greater progress towards improving visibility at 

Class 1 areas than 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 ufzd also 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 

effecthe regulatory mechanism (WJIT) for the same purpose is wasteful, and not 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 addressing fme 

pdculates, it wouId be inappropriate to count a participating electric generating unit's annual 

SO;! and NO, emissions in determining whether the eleelric generating mit 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 ' 

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

analysis for its relatively insignificant 50 tpy o'f PMro emissions (because its cumulative potential , 

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 a participating eIeclric generating unit. 

Unlike the non-electric generating unit source, an electric generating unit with this missions 
10/08/06 17:03 FAX 512 404 3520 -.. -- 

JENRENS & GILCHRIST 

Ms. Lola Browq 

September 14,2006 

Page 7 

profile would not be required to -undertake a 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 are being 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 in the range of 0-0.03 deciviews, 

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 revision to proposed 4 11 6.151 0(d) would be best, the following 

revised language would also be acceptable to AECT: 

.(d) BART-elisble elecuic geneiaring units participating in the Clean Air 

Interstate Rule trading pmp.m are not subject to the requirements of 5 1 16.1 520 

or $ I 16.1 530 of tllis title for NOs and SCb. and shdI not count their emissions of 

NO, and So, in determining: whether the source is BART-elieible for= 

AECT appreciares the opportunity to submit these comments. If you have any questions, , 

please do not hesitate to contact Keith Courtney at (512) 499-3865. 

L/ John W- Fainter, Jr. 

AECT President and CEO 
RECEIVED 

BP Products North America Inc. 

=$ 2 7 2006 2401 5'h Avenue South 

Post Office Box 401 

Texas City. TX 77590 

REGULATIONS DEVELD?W~T$.f~JI~N , USA 

.. . Switchboard 409 945 101 1 .. : 

. . .: : - 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 (Best Available Retrofit Technology) eligible 

source listing. (The sources potentially BART eligible are major stationary sources, including 

reconstructed sources, j?om one of 26 identified categories which have the potential to emit 250 

tons per year or more of any air pollutant, and which were placed into operation between August 

7,1962 and August 7,1977.) BP understands that TCEQ is performing additional 

modeling to further refine the BART eligible list. According to TCEQ, sources not 

removed from the potential BART eligible list will need to conduct a BART engineering 

analysis. 

BP appreciates the opportunity to comment on the proposed Chapter 116 amendments 

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

We participated in preparation of comments for the Texas Oil and Gas Association 

(TXOGA), and we endorse the comments submitted by that organization. We 

enc,ourage TCEQ to consider those comments and revise the rule proposal accordingly. 

If you have any questions, please contact Susan Moore, P.E. at 281 366 5018. 

Katherine M. Gardner 

Environmental Manager 

J:\EHS\ADMIN\Electronic HSE File Index\Environrnental\Texas City Site\Texas City Refinery\Ol- Administration - Multimedia\l I-BP 

BART Comments to 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. Lola Brown 

Office of Legal Services (MC-205) 

Texas Commission on Environmental Quality 

P. 0. Box 13087 

Austin, Texas 787 1 1-3087 

512 239 4808 (FAX) 

Re: Comments of The Dow Chemical Company on the TCEQ Proposed ~ule for 

Best Available Retrofit Technology (BART) 

Rule Project Number 2006-022-116-EN 

Dear Ms. Brown: 

The Dow Chemical Company appreciates the opportunity to comment on the proposed 

changes to TCEQ Regulation 116 (30 TAC 116). Dow is the largest chemical company 

in Texas with manufacturing sites, business centers, and research and development 

facilities located throughout the state. Dow has a number of manufacturing sites in Texas 

and employs approximately 11 percent of the chemical industry workforce statewide. 

Dow's Freeport facility is the largest chernicd manufacturing complex in the United 

States. This facility operates more than 70 production plants occupying more than five 

thousand acres. The facility manufactures and supplies more than 1,800 chemical 

intermediates and products and produces over 30 billion pounds per year of products. 

Dow also has production plants located in Texas City and Seadrift, Texas that may be 

impacted by this proposed regulation. 

The attachment to this letter contains our comments. These comments were also faxed to 

TCEQ on October 3,2006. The Texas Chemical Council (TCC) will also submit 

com,ents on this rule proposal; Dow supports those comments. 

Please contact me 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 comments of the Dow Chemical Company are organized by regulatory citation in the 

proposed rules. The regulatory citation is provided first, followed by our comments. 

Section 116.1500(2) - Dow supports the definition of Visibility-imp pollutant. 

Dow supports the proposed defmitionof visibility-impairing pollutant, which includes 

nitrogen oxides, sulfur dioxide, or particulate matter. TCEQ has not proposed to include 

VOCs and ammonia in this definition: Dow agrees with the proposed definition. 

Section 116.1510&) - Dow stronelv suggests inclusion of additional simple screening 

tools for evaluation of visibilitv impairment at Class I areas. 

TCEQ is considering the approval of CALPUFF and CENW BART Modeling 

Guidelines as tools for BART Exemption Modeling, and is seeking comments on other 

appropriate modeling approaches for BART. 

The distance to the nearest Class I area from our facilities exceeds 700 kilometers. In our 

opinion, it is extremely unlikely that emissions of NOx, SO2, or PMlo are creating 

visibility impairments of 0.5 deciviews or greater. 

CUPUFF modehg setup and execution requires prolonged time and extensive 

resources. Collection and pre-processing of the meteorological, terrain, and receptor data 

from each appropriate Class I areas may take days and weeks. Per the TCEQ estimations 

of fiscal impacts on each BART-eligible source (as provided in the Interoffice 

'Memorandum Docket No. 2006-0228-RUL), exemption modeling expenses will range 

from $5,000 to $20,000 for a site. Dow considers these estimates low; Site-specific 

modeling could be as much as two to five times the costs suggested by TCEQ. 

More cost effective and easier-to-comalete screeninp-tool-alternatives are requested. 

Section 116.1510Cb) - Dow sueeests that the final rule confirm that no additional 

model in^ is needed if the results of the screening analvsis show that no additional 

analyses are needed for PM or SOX and NOx. 

TCEQ has provided the high-level results of the BART screening analysis modeling mns. 

A table is presented which defines whether further analyses are needed for PM (and 

presumably PMlo) and (SOX, and NOx). The relationship between the results of the 

screening modeling runs and the proposed rule is unclear. Dow suggests that if the 

screening analysis shows that no additional analysis is needed for an air contaminant, 

then the ownerjoperator be clearly excluded from the requirement to submit additional 

modeling under Section 116.1510(b). 
Page 2 

If the screening modeling output shows that additional analyses are required, Dow also 

suggests that the model plant exemptions in Sections 11 6.1510(c)(l- 3) remain 

available in lieu of providing exemption modeling or a BART engineering analysis. 

Section 116.151O(b) - BART Exemption Modeling - Dow recruests clarification that 

onlv a minimal number of Class I areas should be evaluated for BART Exeinption 

Modeling;, 

The proposed TCEQ rule does not specify how many Class I areas are to be considered 

for a site-specific exemption modeling. TCEQ's guidance document titled, "Best 

Available Retrofit Technology Modeling 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 ENVJRON screening evaluation have 

not been made available to the regulated community, so it is not possible to 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 TCEQ estimations of the proposed rule fiscal impacts on BARTeligible sources (as provided in the Interoffice Memorandum Docket No. 2006-0228- 

RUL), exemption modeling expenses will range 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 of multiple Class I areas may significantly 

increase the cost and complexity of the modeling. 

Dow suggests that TCEQ should make these results available to the regulated community . as soon as practical. In addition, provisions must be included in the rule or in associated 

guidance that specify the number of modeling runs sufficient to exempt a source from the 

BART Engineering Analysis requirements. 

Section 116.1510@) - The submittal date of April 30,2007 should be extended to 

allow adeaoate time for rermlated entities to conduct and submit modeling to show 

that the source does not cause or contribute to visibilitv im~airment. 

Dow is concerned about the short deadline for submittal of the "exemption modeling7', 

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 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 SIP by the December 17,2007 

deadline. 
Page 3 

Section 116.1510fi) - Dow suggests that the provision reauiring exemption 

modeling demonstrations to be submitted under seal of a Texas licensed professional 

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 licensing 

procedures do not require extensive, in-depth knowledge of CALPUFF 0.r CENRAP 

BARTModeling Guidelines. Air dispersion modeling skills and understanding do not 

necessarily require in-depth knowledge of engineering principles necessary t complete a 

BART engineering analysis andlor BART control implementation. Many excellent 

companies involved in CALPUFF modeling, which could be contracted for this work, are 

located outside the State of Texas and may not have a Texas lic~nsed professional 

engineer on their staff. Additional certification of modeling completed by highly-trained 

, professionals by a Texas licensed professional engineer is an unnecessary burden. The 

proposed certification requirement in $1 16.1510@) is therefore unjustified and should be 

deleted from the rule text. 

Section 116.1510(c)(l) and (c)(2) - Dow suggests that TCEO develop more distance 

emission rate combinations to allow BART-eligible sources with emissions exceeding 

1,000 tons per year of combined NOx and SO2 to be exemp't from BART 

enpineering analvses. 

The referenced citations provide only two distance-emission rate combinations 

exempting BART-eligible sources of nitrogen oxides (NOx) and sulfur dioxide (Sa), 

which are not de minimifi or electric generating units, from further BART analysis. The 

largest distance considered by TCEQ for the exemptions is 100 kilometers @er 116.151 0 

(c)(2)) from the nearest Class I aiea. 

Our BART-eligible sources are located at least 700 kilometers from the nearest Class I, 

areas. 

Dow suggests that TCEQ consider combining Sections 11 6.1510(c)(l) and (c)(2) and 

establishing a model plant approach per the following equation: 

"Any BART-eligible source satisfying the following condition: 

where 

PTENo, - Potential-to-Emit for Nitrogen Oxides tpy ; 

PTEso;! - Potential-to-Emit for Sulfur Dioxide tpy ; and 

L -Distance to the nearest Class I area (kilometers) 

is not subject to BART for NOx and SOz" 
Page 4 

Alternatively, a single table may be developed for combined Sections 1 16.15 10(c)(l) and 

(c)(2) to provide exemption from further analyses for BART-eligible sources of NOx and 

SOz. We suggest that the table cover distances from 50 kilometers to 1,000 kilometers in 

50-kilometer andlor 100-kilometer increments and providing an exemption from further 

analyses for large BART-eligible sources. 

Section 116.1510(~)(3) - Dow suggests that TCEO develop some distance-emission 

rate combinations allowing BART-eligible sources of PMlo with emissions exceeding 

15 tons per Year to be exempt from further modeling or BART eneineeriner analysis 

reauirements. 

The proposed regulation provide distance - emission rate combinations exemptions from 

further BART analyses only for BART-eligible sources of nitrogen oxides (NOx) and 

sulfur dioxide (SOa), but do not provide exemptions for sources of particulate matter 

with an aerodynamic diameter less than or equal to a nominal 10 micrometers (I'Mlo). 

Our sources are located at least 700 kilometers from the nearest Class I areas. It is 

extremely unlikely that certain BART-eligible sources of particulate emissions that are 

not De Minimis sources per $1 16.15 10(c)(3) may create noticeable visibility impairments 

at distances exceeding 100 kilometers or more at any transport conditions. 

Sections 116.1510(~)(1), (c)(2), and (c)(3) could be combined and a singIe table may be 

developed to provide exemption from further analyses for BART-eligible sources of 

NOx, SOz, and PMlo. We suggest that the table cover distances from 50 to 1,000 

kilometers to any Class I area in 50-kilometer andfor 100-kilometer increments. The de 

minimis level for each pollutant may be easily incorporated in the table. 

Section 116.1510(~)(3) - Dow seeks clarification regarding. how PMjo nav be used as 

an indicator for PM when assessinp BART elipibilitv and the exemption in Section 

116.1510(~)(3). 

The preamble associated with the proposed rule states: "Note 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 kther 

clarification as to how the relationship between PM and PMlo works in practice 

especially considering the exemption provided in Section 116.1 510(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 PMlo." 

When evaluating the definition of a BART eligible source, is it necessary to determine 

both the potentiti1 to emit for PM and PMlo and then compare both 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 PMlo and then compare both to the 15 tpy 

deminimus level? For example, if a BART eligible source has the potentidl to emit 26 

tons per year of Particulate Matter, but only 8 tons per year of PMlo, it appears that the 

source is not subject to 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 A~ril30,2007 should be extended to 

allow adeauate time for regulated entities to conduct and submit the required 

BART enpineering analyses. 

Dow is concerned about the short deadline for submittal of the "BART engineering 

analysis", and suggests a modest extension of the submittal date to July 31,2b07. 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 exercise will also be time intensive. 

This timing will still allow TCEQ ample time to review the BART analyses and compile 

the BART emission reductions to develop the required Regional Haze SIP by the 

December 17,2007 deadhe. 

Section 116.1520(c) - Dow proposes that TCEO provide flexibility regarding the 

submittal of the BART analvsis under seal of a Texas licensed lorofessional eneineer. 

Dow 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 fm. 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 of the criteria outlined in proposed Section 1 1 6.1520(a), Dow 

proposes that the BMT analysis be provided directly by the regulated entity, and that 

submittal under the seal of a P.E. is not warranted. 
10/09/2006 15:OO FAX 

Vinson &Elkins 

Patrick ~w pIee@velaw.com 

Te1512.542.8629 Fax 512236.3265 

October 9,2006 

Lola Brown 

Office of Legal Services, MC 205 

Texas Commission on Environmental Quality 

P.O. Box 13087 . 

Austin, ~exas 7871 1-3087 

Fax: 512.239.4808 

. . 

Re: Rule Project Number 2006-022-1 16-EN 

Dear Ms. Broyn, 

We are writing on behalf of El Paso Electric Company ("EPE") to offer comments on the 

above-referenced rulemaking proposal, which would amend Chapter 116 of TCEQYs 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 , 

consideration of these comments. 

Comment 1: The definition of "l3est available retrofit t&hnology (BART)-eligible source" 

at proposed 30 T.A.C. $ 1 16.1500 should be revised as follows: 

(I) Best available retrofd technology (BART)-eligible source-Ary 

emissions units that comprise an.v of the following stationary sources of 

air pollutants, including any reconstructed source, that w were not in 

operation prior to August 7, 1962, and w were in existence on August 7, 

1977, and ke4 collectivelv have the potential to emit 250 tons per year 

(including figitive emissions to the extent quantifiable) of any visibilityimpairing air pollutant: 

Vlnaon 8 Elkina* Attorneys st Law Austin Beijing Dallas Dubai 2801 Via Forhma, Suite 100. Austin. TX 78746-7568 

Houston Lcndon Moscow New York Shanghai Tokyo Washington Te1512.542.8400 Fax 512542.8612 mmv.velew.com 

Austin 740089v.2 
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ve 

@I 003/012 

Lola Brown October 8.2008 Page 2 

This amendment is needed to clarify that identification of BART-eligible sources is done not 

on a site-wide basis, but on an emissions unit basis, as indicated by 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: Identify the start-up dates of those emission units, and 

Step 3: Compare the potential emissions to 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 subject to the requirements of the BART provisions if only 

one part of the site was built within the 1962-1977 time period.' 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 

constitute the BART-eligible source and be potentially subject to the BART requirement. 

Although TCEQ may have intended to adopt this approach, the currently proposed ruIes do 

not sufficient explain how BART-eligible sources are identified. They only provide the 

following definition of '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 operation prior to August 7, 1962, 

and was in exhtence on August 7, 1977, and has the potential to emit 250 

tons per year (includingErgitive emissions, to the extent quantifiable) of 

any visibility-impairing air 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 of more 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" as follows: 

Stationary source means any building, structure, facility, or installation 

which emits or may emit any 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- 

001 76-0 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. ..This approach would render meaningless 

the applicability criteria specifically identified by s&te? rule4 and guidance.5 For example, 

without specifying that the analysis focuses on individual emission units, an entire plant built 

in the 1940s could be subject to'the BART provisions 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 in the same industrial 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 

identifying BART-eligible sources suggested by EPA hi its guidelines. 

' CAA 9: 1 69A(b). 

40 C.F.R. 9 51.301 (see definition of "existing stationary facility'?. ' 40 C.F.R. Part 51, Appendix Y, Section 11, '%ow to Identify BART-Eligible Sources:'' 

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Comment 2: The definition of "visibility-impairing air pollutant" at proposed 30' T.A.C. 5 

1.16.1500 should be revised as follows: . 

(2) Visibility-impairing air pollutant-~ny of the following: 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 used as the indicator fir particulate matter. 

EPA's guidelines, set forth at 40 C.F.R. Part 51, Appendix Y, specifically provide that states 

may use PMlo as an indicator for particulate matter in determining which sources'are BARTeligible. In fact, under Section TI. of the guidelines ("How to Identify BART-Eligible 

Sources") EPA specifically recommends 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 "PMld' (see proposed 8 11 6.1510(~)(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 definition of "visibility-impairing air 

pollutant" should be revised as indicated. 

Comment 3: Proposed 30 T.A.C. § 11 6.15 10(d) should be revised as follows: 

(d) BART-eligible electric generating units participating in the Clean Air 

Interstate Rule Trading Program are not subject to the requirements of § 

116.1520 or § 116.1530 of this 

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 attributable to EGUs. 

In developing CAIR, EPA concluded that the best way to address fine particles attributable to 

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., 69 Fed. Reg. 4574 (January 30,2004), 70 Fed. Reg. 39160 (July 6,2006). ' 69 Fed. Reg. 4582 (January 30,ZOY). 

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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 not require affected BART-eligible EGUs to install, operate and maintain BART."'" 

In accordance with EPA's determination, TCEQ now proposes to exclude fiom BART those 

EGUs that are subject to CAR but only for SO2 and NO,. 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 are best regulated by reducing 

SO2 and 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 addressing fine 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 determining whether the EGU should be required to apply BART for PMlo. For 

example, consider a participating EGU with the following emissions profile: 500 tpy SO2, 

1500 tpy 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 of PMlo emissions (because its cumulative PTE 

for all visibility-impairing pollutants 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 (January 30,2004). 

See e.g. 70 Fed. Reg. 39137 (July 6,2005). 

'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 SO2 and NOx 

emissions, but would undertake a BART analysis for PMlo solely 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 1 16.15 10(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 Trading Program are not subject to the requirements 

off 116.1520 or f 116.1530 of this title for NO, and S02, and shall not 

count their emissions ofNO, and SO? in determinina whether the source is 

BART-eliaibb for PM,". 

Comment 4: Proposed 30 T.A.C. fj 11 6.15 10 should be amended to include the following 

additional exemptions: 

Any BART-eligible source that has the potential to emit less than "X tons 

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 Class 1 area is not subject to BART for PMlo. 

Any BART-eligible source that has the potential to emit less than "Y" tons 

per year of PMIo and that is located more than 100 kilometers $-om any 

Class I area is not subject to BART for PMlo. ' 

h these suggested exemptions, 'X" and 'T' are some amounts of PMlo emissions that have 

a negligible effect on visibility at distances greater than 50 and 100 kilometers, respectively. 

This amendment is needed to provide distance-based PMlo exemptions 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 sources reasonably 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). 

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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,'''~ and by TCEQ as an impact greater than 0.5 deciviews." 

Having categorically determined that 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.tpy source 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 

.approach should be followed with respect to not only NOx and 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 of a 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 contribute to visibility impairment at any Class I area is 

not subject to the requirements of J 116. 1520 or J 11 6.1530 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 of greater 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 than April 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 40 C.F.R. 5 51.302 (emphasis added). 

" Proposed 30 T.AC. 5 1 16.1510. 

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with other parts of Section 116 in which "the executive director" is used to collectively refer 

to the executive director and his technical staff, and "the commission" is used to refer to the 

threemember commission itself. 

Comment 6: Proposed 30 T.A.C. 5 1 16.15 lo(%) should be fiuther revised as follows: . . 

(a) 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 a 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 not subject to the requirements of J II6.1520 or f 116.1530 of 

this title (relating to Best Available Retro$t Technology (BART) Analysis 

and Best Available Retroft Technology (BART) Control hplementation) 

for that pollutant. 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 impairment of greater than 0.5 deciviews at 

any Class I area. The modeling demonstration must be submitted under 

seal of a Texas licensedprofessional engineer and must be received by the 

commission's Air Permits Division no later than April 30, 2007. 

These revisions are needed .to clarify that a BART-eligible source demonstrating that its 

emissions of a particular visibility-impairing pollutant do not cause or contribute to visibility 

impairment at a Class I area is not required to perform a BART analysis for that pollutant. 

Proposed 5 1 16.15 1 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., sources located 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 PMlo emissions 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 contribute to visibility impairment, it 

should qualify for the same type of pollutant-specific exemptions provided at proposed 8 

1 16.15 1 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 confirmed by CAMx modeling recently perforrned.by TCEQ for all BARTeligible sources, for many sources, BART eligibility is driven by emissions of just one 

visibility-impairing pollutant, and not the others. Consider, for example, a source that 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 deciview impact at nearby Class I area, but that its PMlo emissions do not. 

Because the source can adequately demonstrate that its PMlo emissi0.m cannot "reasonably 

be anticipated to cause or contribute to any impairment of visibility 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 NOx only, and would still be subject to 

the BART requirements for PMlo. EGUs with relatively minor (but still greater than de 

minimis) PMlo emissions 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 1 16.15 10(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 of NO,, SO2 and PMlo to 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. § 1 16.15 10(b) should be 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 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 with respect to any visibiliqIs 40 C.F.R. $ 51.308(3); see also CAA $ 169A(b) (42 U.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 

11 6.153 0 of this titIe (relating to Best Available Retrofit Techno Iogy 

(BARD Analysis and Best Available Retrofit Technology @ART) Control 

Implementation) for that pollutant. A source's emissions of a visibilityimpairing pollutant are considered to not cause or contribute to visibility 

impairment $ as demonstrated bv modelina performed bv the executive 

director or performed 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's Air Permits Division no later than April 

30,2007. . 

This revision clari6es that modeling performed by a source in accordance with the guidelines 

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

source does not cause or contribute to 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 modeling performed by a third party using protocols or 

techniques not approved by TCEQ for this purpose 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 

constitute a significant of waste of both 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 5 12.542.8629. 

Austin 740089v.2 
1 10/09/2006 15: 04 FAX 

Lola Brown October 9,PM)G Page 11 

L/ Patrick Lee 

cc. Mr. Luis to, ~l~aso Electric Co. 

Ms. Laura Uribarri, El Paso Electric Co. 

Austin 740089v.2 
I 

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 reductions for Big Bend and Guadalupe Mountains 

National Parks. Since these parks are inside the 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 

grandchildren will 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 to pick out an+g by itself, we find it hitched to everydung else in the universe." John uir 

Prinred on 100% Kenaf nee free paper 

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 implement the 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 before the 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 116.1 500(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 change to revenues." 

TCEQ then states in the rule proposal explanation, Fiscal Note: Cost to State 

and Local Government, "The agency will be required to 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-lmes that just because a BART analysis 

and modeling are subrnitted under the seal of a professional engineer that it does 

not have to 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.ensure that 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 is that 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-racceptable levels. 

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 pollutants to 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, .Air Quality Committee 

Houston Regional Group'of the ~ielra Club 

5431 Carew 

Houston, Texas 77096 

71 3-664-5962 . 

brandtshnfbt@iuno.com 
SOURCE ENVIRONMENThL: ~ 

4100 WIE R, SUlTZ 106 S OURCE- HOzT*S 77027 

Gmsil: s0me@3pdq.net 

Phonc (713) 621-4474 

ENVIRONMENTAL SCIENCES, MC. Fax (713) 6214588 

* WATER * WASTlECONSULTANTS 

September 21,2006 

Lola Brown 

MC 205 

Offoe of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 787 1 1-3087 

Subjeot: Comments on Proposed Rules for Best Available Retrofit Technology (BART) 

Dear Ms. Brown: 

Sed nnu regulations proposed for inclusion in Title 30 Chapter 116 of the Texas 

Administrative Code (30 TAC $1 16) were presented in the Texas Register pub1'Ishe.d on August 

25,2006. These regulations conccm t$e control of air polldon by permits for new construction 

or modification, specifically with regard to Best Available Retmfit Technology (BART). One of 

the proposed rquhments concerns us, and therefore we are pviding the following commmts. 

As presented in the Texas Register, 30 TAC 5 1 16.1 51 0(b) resds: 

"The owner or operator of a BART~ligible source may demonstrate, using a 

model and modeling guidelines approved by the commission, that the source does 

not caw or contribute to visibility impairment in n Class I area" 

The regulation. continues, and the last sentence of 30 TAC $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~~' 

We have 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 on Enviro~xncntal Quality PEQ) rules, regulations, and guidelines. Please see 30 

TAC 91 16.1 1 1 (a)(2)(J) for an example. The first sentence of 30 TAC 41 16.1510(b) would now 

read: 

"The owner or operator of a 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 for the modeling demomtration to 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 dispersion modeling report by 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 

applications and permit by 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 that the last line of 30 TAC 9 1 16.15 lo@) reads: 

"The modeling demonstration must be received by the commission's Air Permits 

Division no later than April 30,2007." 

We appreciate your consibation of these comments, and we welcome the oppodty to discuss 

them fbrhr. If you have any questions, please do not hesitate to contact us at (713) 621-4474. 

Sincerely, 

. . 

Source Environmental Sciences, Inc. 
Brown I McCarroli 

L.L.P. 

11 1 Congress Avenue, Suirc 1400. Austin, Texas 78701-4043 

512-472-5456 fax 512-479-1101 

direct (512) 479-1 125 ~ohnson@nailbmc.com 

October 9,2006 

VIA ELECTRONIC MAIL AND HAND DELIVERY 

Ms. Lola Brown 

Office of Legal Services (MC-205) 

Texas Commission on Environmental Quality 

12 100 Park 3 5 North 

Building A, 1 st Floor Room 63 1 

Austin, Texas 78753 

Re: Texas Chemical Council 

Comments on the TCEQ Proposed 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 1 16 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 potentially BART 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 

TCEQ has 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 if you 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 

Christina Wisdom, TCC 

Russell Wozniak, The Dow Chemical Company 
Texas Chemical Council 

Comments on Proposed Changes to 30 TAC 116 

Rule Project Number 2006-022-116-EN 

The comments of the Texas Chemical Council (TCC) are organized by regulatory citation in the 

proposed rules. The regulatory citation is provided first, followed by our comments. 

Section 116.1500(2) - TCC sup~orts the definition of "visibility-impairing pollutant.'' 

TCC supports the proposed definition of visibility impairing pollutant, which includes nitrogen 

oxides, sulfur dioxide, or particulate matter. It is inappropriate to include VOC and ammonia in 

the definition, until and unless TCEQ develops evidence of significant impacts on visibility from 

these air contaminants and subjects that evidence to peer review and public notice and comment. 

Section 116.1510(b\ - TCC stronplv suggests inclusion of additional simnle screen in^ tools 

for evaluation of visibilitv impairment at Class I areas. 

TCEQ is considering the approval of CALPUFF and CENRAP BART Modeling Guidelines as 

tools for BART Exemption Modeling, and is seeking comments on other appropriate modeling 

approaches for BART. 

The distance to the nearest Class X area from many of our member company facilities exceeds 

700 kilometers. In our opinion, it is extremely unlikely that emissions of NOx, SOz, or PMro are 

creating visibility impairments of 0.5 deciviews or 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 

appropriate Class I area may take days or weeks. Per the TCEQ estimations of fiscal impacts on 

each BART-eligible source (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. TCC 

considers these estimates Iow; Site-specific modeling could be as much as two to five times the 

costs suggested by TCEQ. More cost effective and easier-to-complete screening tool 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 SOX and 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 (and presumably PMlo) and 

SOX, and NOx. The relationship between the results of the prescreening modeling runs and the 

proposed rule is unclear. TCC suggests that if the prescreening analysis shows that no additional 

analysis is needed for an air contaminant, then the owner/operator be clearly excluded fiom the 

requirement to submit additional modeling under Section 1 16.15 lo@). 
Page 2 

If the prescreening modeIing output shows that additional analyses are required, TCC also 

suggests that the model plant exemptions in Sections 1 16.15 lO(c)(l - 3) remitin available in lieu 

of providing exemption modeling or a BART engineering andysis. 

Section 116.1510Cb) - BART Exem~tion Modeling - TCC requests clarification that only a 

,minimal number of Class I areas should be evaluated for BART Exemption Modeling. 

The proposed TCEQ rule does not specify how 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 

possible to determine how many Class I areas need to be evaluated in 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, provisions must be included in the 

rule or in associated guidance that specify the number of modeling runs sufficient to exempt a 

source from the BART Engineering Analysis requirements. 

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 SIP by the December 17, 2007 deadline. 
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 licensing procedures 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 highlytrained professionals then certification by a Texas licensed professional engineer is an 

unnecessary burden. The proposed certification requirement in 1 1 6.151 0(b) is therefore 

unjustified and should be deleted fiom the rule text. 

Section 116.1510(c)Cl) and (~112) - TCC suggests that TCEQ develop mare distanceemission rate combinations to allow BART-eligibIe sources with emissions exceeding 1,000 

tons per year of combined 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 

considered by TCEQ for the exemptions is 100 kilometers (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 fiom the 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 1 16.1 51 O(c)(l) and (c)(2) and 

establishing a model plant approach per the following equation: 

"Any BART-eligible source satisfying the following condition: 

PTENox + PTEsoz 5 10 * L, 

where 

PTENox - Potential-to-Emit for Nitrogen 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 6.151 O(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 

combinations alIowing BART-eligible sources of PMlo with emissions exceeding 15 tons per 

year to be exempt from further modeling or BART engineering analvsis 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 de minimis sources per $1 16.15 1 0(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 each pollutant may be easily incorporated into the table. 

In establishing any distance-emission rate exemption levels by regulation, TCC suggests that 

TCEQ clearly expIain that the basis for these exefnptions is their de minimis impact on visibility 

as demonstrated by modeling, in order to distinguish these exemptions Erom pure pollutant 

emission rate (ton per 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 PMro works in practice especially considering the 

exemption provided in Section 1 16.15 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 PMlo and then compare both 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 of PMlo, it appears that the source is not subject to 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 exercise will 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 

of the BART analysis under seal of a Texas licensed professional engineer. 

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 of the 

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 existing facilities. 
CHRISTOPHER SMITH 

DIRECT DIAL: (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 (51 2) 488-6180 

www.lklaw.com 

September 18,2006 

via electronic delivery 

Lola Brown [MC-2051 

Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 7871 1-3087 

AUSTIN 

DALLAS 

FORT WORTH 

HOUSTON 

NEW YORK 

ALGIERS 

LONDON 

MEXICO CITY 

MONTERREY 

PARIS 

RIO DE JANEIRO 

VIT~RIA 

Re: Rule Project No. 2006-022-1 16-EN 

Dear Ms. Brown: 

We represent Texas Lehigh Cement Company. This letter requests 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 

opportunity to participate in rxlemaking. 

TCEQ has identified a list of entities that may be BART-eligible based on the results of a 

survey and on air modeling conducted by the agency. The modeling data and methodology used 

by TCEQ in the preliminary BART eligibility determination are not currently available to the 

public. Without access to such modeling data and methodology, it is impossible for 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 if the air modeling data were made available to the public today, there 

would be insufficient time to complete an analysis and provide the agency with feedback before 

the expiration of the comment period on September 25,2006. 

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 

rulemaking exists unless the public is afforded sufficient time to review and submit comments on 

how TCEQ made its eligibility determination for the rule. Extending the public comment period 

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 consideration of this request. 

Sincerely, 

Christopher D. Smith 

cc: Margaret Earnest, TCEQ Air Quality Planning and Implementation Division (via 

electronic delively) 

040410 000003 AUSTIN 230284.1 
TEXAS OIL & GAS ASS0 

Jmopb I. O'NCMI, lK Mldlnnd 

Cl4AlWAN 

Jim Slmfn, haatid 

VIOI.r'tllc;n)SNT FOR PiNAWCU 

David W: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 

Crnnt A, BillinFlc)r Mldlnnd 

n4kl I'IWMlLN M51N 

TEXAS OIL ~r GAS ASSOCIATJ,ON 

September 25,2006 

Ms. Lola B~own - 

MC 205, Office of Lega.1 Semices 

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 

opportunity to cornmmt on the proposcd Chapter 116 amcndmsnts iutended 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 

responsible for some 95 percent of the statc's refining capacity, and operates a 

vast majority of thc 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 reconsirucfed sowc~~, >on2 one of 26 identiJid 

categories whiclz have tho potential lo emit 250 tons per yeat or more of any air 

pollutant, and which were placed inlo operation hetween Aapt 7, 6962 mdAue;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 BART eligible list will need to conducl: a BART engineering ma1vsj.s. 

TXOGA offers the following commeilts on TCEQJs proposed rule: 

41 66.2210fi), BART Exe~nwtio?~ Mode& 

Issue: 

73.e TCEQ is considering the approval of Cal$?orriia P@Model (CM,PUFF) and the 

Central Regional Air Planning Association's CENPAR BARTModeli~zg Guidehes ec 

too1.s for BART Exemption Modcling and is seekiw comments on otl~sr appropriate 

modeling approaches for BART. 
TEXAS OIL 8 GAS ASS0 PAGE 03/06 

TxOGA Comments - Rule Project Nurnbcr 2006-022-1 16-EN 

September 25,2006 

Page two 

Suggestion: 

TXOGA strongly' suggests inclusion of additional simp1.e sor~~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 PMlo emissions 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 

(corresponding to Pasquill-GiPEord Stability Class 4 [neutraI]) to reach th,c new~st Class I area for such 

sou.rces. It would take over 70 hours for n plume traveling with 7 miles pcr hour winds (corresponding b 

Pasquill-Giffoid Stability Class G [lighly stable] at night time only) to rench the nearest CJ.ass I area. . 

CALPUFF rnodol.ing setup and execution requires proi~nged time and'cxtensive resources, 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 of fiscal 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 as lvo times the costs sugges1:ed by TCEQ. Cheaucr and ~asier-to-coinulete 

screenine-tool-nhematives are reauested. 

$1 16.151 0/cl wc1f21. Distance and Emissio~z Rate Bxernntions 

Issue: 

Thc referenced similar citations provide only two distance-emission rate combinations cxc,mpthg BARTcli&ible sources of nitrogen oxidos @Ox) and sulfur diolrtds (SOz), which are not de 'minimis or electric 

generating units, from further BART malysis. The largest distance considered by TCEQ for the 

cxc.mptions is 100 kilornetws @a- 116.'1510 (c)(2)) from the n.emest Class 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 from the nearest National 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 

Aendw%'ina annlvses. Sections 11 6.1510(c)(l) and (c)(2) may be combined and the exemption may be 

wrlttcn Tke: - . 

"Any BART-eligible soru-cc satiswing the fol1owing condition: 

PTE,, + PTEsoa 5 I0 ' L, 

PTEm - Potential-to-Emit for Nitrogen Oxidcs; 

PTEsoz - Potential-to-Emit for Sulfur Dioxide; and 

L - Distance to tl~e nearest Class I area 

is not subject to BART for NOX nnd SG." 
TEXAS OIL & GAS ASS0 PAGE 04/06 

TxOGA Comments - Rule Project Number 2006-022-1 1 6-EN 

September 25,2006 

Page three 

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 of NOx and Sa. Wo suggest that 

the table cover distanc~s Born 50 kilometers to 800 kilometers in 50-kilometer and/or 100-kilometer 

increments i~ld providing an exemption from furthq analyses for large BART-etigible sources. 

Bsue: 

The roforenoed citations provide disbnos - emission rate combinations cxcmptions fiom further BART 

analyses only for BART-eligible soukccs of nitrogen oxides POx) and sulfur dioxide (SO1) but do not 

provide exemptions for sources of particulate matter with an aerodynanlic diameter less than or equal to a 

nominal 10 micromctcrs (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 

950 kilometers from the nearest National Park Service Class I area. It is extremely unlikety that cdain 

BART-~ligible sources of particulate emissions that are not De Minhis sources per $1 1 6.1510(~)(3) may 

i create noticeable visibility impairments at distances exceeding 100 kiIometms or more at any transport 

condjihs. 

I Suggestion: I TTca should develo 

re RU lated coin mun i tv at 1 e astsome distance-emission rate cambinations aIIawine 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 

developed to provide exemption from further analyses for BART-eligible sources of NOx, SO2, and PMlo. 

We suggest that the table cover distances *om less then 1 kilometer to 800 kilometers to any Class I area 

in 50-kilometer and/or 1100-lcilometer inorcments. Tl~e de minimis l~vel for each pollutant may be easily 

I inoorpomted in the tablc. 

&I Id. lSlOh51, BART Exemtion Modelinx 

Issue: 

The proposed TCEQ rule does not speci* how many Class I areas are to bo considered for 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 Const Region may be located 700 - 1000 kilomdcrs 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,usion of 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 - Ctass T area combination. Modeling of five combinations may quintuple the cost. 

Suggestion: 

Provisions should be included in the ruIe.waci&ine the number of rnodeIinn runs s.uficient to cxemot a 

sourco fiom the BART En~incmina Analwjs reauiremcnts. 
TEXAS OIL & GAS ASS0 

. . 

PAGE 05/06 

TxOGA Comments - Rule Project Number 2006-022-1 16-FiN 

.September 25,2006 

Page four 

1 In, specific, TCEQ should consider tlre following discussion from pag~ 305 of the fi~~nl EPA BART 

"One important siemenf ofthe 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 Zma with suf/iccient 

densizy to idazfir;tjl the likely l)j,sibtNty efects of the SO?U*C~. fir other Class Iareas in 'nelativsly 

clo,se p~~oximip toa BART eligible source, you nq model a few slrategr'c receptors to 

derernzine whether effecb at those areas may ba geater thm. at lfze nearest Class 1 area For ( 

example, yo4 might chose t~ locate receptors a1 fhe~e meas d the cZo,ses~poin~ to the source, a:! 

' the highest and ionrest ahvation in the CZa$s J urw, at the IMPROVE. monitor, und af lh ' 

approximate apectedpluma 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, 2007 Modeling Submittal Date 

Issue and Suggggtiola: 

,to condnct and submit model in^ to show that the source does not cause or contribute to visibiliiy 

jmaairment. TXOQA is odncerned about the short deadline for submittal of the "exemption modeling", 

and suggests a modest ~xbnsion of tl~e submittal date to July 31,2007. This will alIow ampIe time 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 

SIP by 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. 

.Many excellent companies involved in CALPUFF modeling, which couId be contracted for this work, are 

located outside tbe Sate of Tcxu and may not have 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 cerkifioation requirement in $1 16.1 5 1 0(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. IS I OhJ 1 
TEXAS OIL & GAS ASS0 PAGE 06/06 

TxOGA Comments - Rule Project Number 2006-022-1 16-EN 

September 25,2006 

Page five 

Thank you again for affording Texas Oil & Gas Associaiion the opportunity to 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, 

Deb Hastings I 

Vice President for hvironmentnl Affairs 
October 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 States Department of the Interior 

NATIONAL PARK SERVICE 

Air Resources Division 

w 

TAKE PRIDE. 

INAM ERICA 

PO. Box 25287 

IN REPLY REFERTO 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 Commission on Environmental ~ualitjr 

P.O. Box 13087 

Austh, Texas 78711-3087 

Re: Rule Project Number 2006-022- 1 16-EN 

Dear Ms. Brown: 

This rule revision is a good first step as Texas moves forward with developing its 

Regional Haze Implementation Plan. 

We provide the following comments on the proposed revisions to 30 TAC Chapter 116, 

Subchapter M, Best Available Retrofit 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 of visibility 

impairing pollutants in Section 116.1500(2) should be explained and 

supported by any technical analyses the state has 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 Analyst 
09/22/2008 FRI 13:OB FAX . - 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

September 22,2006 

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 

Deur Ms. Brown: 

We arc pleased to provide comments on the proposed revisions to 30 TAC Chapter 116, 

Subchdpter M, Best Available Rctrofit Technology. We view this as an importunt step forward 

in the Texas's Regional Haze State Implementation Plan. 

If you haw any questions or concerns, please call mc at (214) 665-3102 or Joe Kordzi of 

my staff at (214) 665-7186. 

Sincerely yours, 

' Thomas H. Diggs 

@Chief 

Air Planning Section 

cc: Ms. Margaret Earnest 

State Implementation Plan Team 

Texas Commission on Environmental QuaIity 
09/22/2006 FRI 13:09 FAX 

Comments on Proposed subchapter M, Best Avnilublc Rctrofit Tcchnolngy (BART) 

to 30 TAC Chapter 116 

91 1 9/06 

1. In Section 116.1500(~)(3), TX should modify the language to make it clear the de 

'minimis exemptions apply on a plant-wide basis, as described in 70 FR 39117 and 39161.. 

2. In Section 116.1500(d), TX should modify the language to make it clear thae participation 

in the CALR, docs not absolve a BART-eligible source from possibly being round subject 

to the BART provisions of the regional haze ruIe for PM. 

3. TTI Section 116.1520(b), TX requires the owner/operatot co provide detailed informalion 

documenting the projected hourly and annual e~nission limils Fur the selected BART 

control strategy. RG feel this requirement, although important, could benefit from 

additional specificity, similar to that required under existing TX rule 1 16.12(1) - (3). 

4. TX my wish to definc "E ART-required control equipmenl" as used in Section 

116.1530(a) and (b). 

5, In Section 116.1530(b), TX discusses how BART requjred control equipmcnt must be 

housed within a permit or olhw enrurcement mechanism, As written, the provision is 

vague axrd would not be approvable as a SIP revision. TCEQ shouId provide further 

clarification md reference any specific permitting rules and procedures that apply, In 

addition, please clarify, with respect to modifying emission limits, how docs 

4 116.1530(b), provide for grandfathered facilities currenrly operating under Title V 

permits? 

Bccausc the BART requirements are "applicable" requirements of the CAA, they must be 

incIuded 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 

rcvised to include new applicable requirements if the permit has three or more years of 

lifo. The reopening must be completed within 18 months srfter promulgation of the new 

applicable requirement and the reopening must follow the same procedures (public 

comment ,~etc~-asap.ply-tainitiaLpe~t-issuance. 

6. In Section 116.1500(2), TX dcfines a visibility-irnpahing air poIlutant as being limited to 

. nitrogen oxides, sulfur dioxide, or particulate matter. Regarding this, the Agency's 

recent1 y ~eleafied Q and A makes this statement: 

"A State's BART rulo should not declare that VOCs or ammonia are nor visibilityimpairing pollutants unless the State'has evidence that VOCs (or ammonia) from its 

BARTeligible sources are not significant contributors to particle formation. Such a 

declaration must be substantiated in the SIP documentation. This declaration may be 
09/22/2008 FRI 13:lO FAX 

placed in the SIP narrative, which will be approved into the non-regulatory portion of the 

SIP folIowing an opportunity for public review and comment on the State's conclusion. 

Furthermore, we rccommend that prior to SIP submittal that collaboration between and 

among States and RPOs.and Federal Land Managers PMs) occur such that the 

application of exemptions or other principIes used by a StatefRPO Is done with full 

knowlcdgc among the affected States/RPOs/FLMs." 

Consequently, TX should consider whether it is prepared to make this declaration in its 

SIE'. 

7. TX should change the language in 116.1500(2) to make it clear that a BART eligible 

facility includes the qualifier that it has the potential to emit at least 250 tons per year of 

any visibility-impairing pollutant, summed across all emission units at the plant. To that 

end, the rollowing Irmguuge change is suggested: 

cSBest available retrofit technology (BART)-eligible source--Any of the 

following stationary sources of air pollutnnts, including any rcconstruc~ed , 

source, that was not in operation prior to August 7, 1962, and was in 

existence on August 7, 1977, and has the potential to emit 250 tons or more 

per year (including fugitive emissions, to the extent quantifiable), summed 

across all emission units, of any visibility-impairing uir pollutant:" 

8. TX has requested specific comment on the use of CALPLTFP or CENRAP modeling 

guidelines for BART contribution modeling, as well as other modeling approaches that 

have yct to bc determined. We strongly urge the state to work with EPA if using 

alternative approaches to ensure consistency and approvability throughout the process. 

R6 recommends that any alternative approach modeling utilized by owner/operator be 

reviewed and approved by EPA, in addition to the commission, to ensure that the 

alternative modeling is equally stringent. 

9. In 5 1 16.1530(a), TX requires that each owner/opmtor maintain the B ART-required 

control equipment and establish procedures to ensurc such equiprnenl is properly and 

continuously operated and maintained As WI-itten, the estublishprocedures provision 

appears vague. TX may wish to specify accepted proceduresS~-q.uirfeed~toL~~.t

implementing their controls. 
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 Division 
MS. 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) 520-6868 
program 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) 520-6868 
STATE 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 @ 

SNA6 iJ 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- 1 16-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; 5382.01 1, 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 wre trying to solve? Regional haze causes diminished visibjlity 

at scenic parks and national landmarks. The rules are intended to ensure that certain large sources 
lie: 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 

SIPS that 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 SlafT reconmmeradationms 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 si te-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 cost 
Coillrnissioners 

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. 

. %'ill tilere 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-ces that \?!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, 111 addition, the rules 

conr.ain a deadline of April 30, 2007, for affected sources to submit the BART engineering ai-~alysis 

(or e,xemption modeling). 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-oher 9, 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~nenters suggested 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-a1 comments 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 i7 sources 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 5 116.15 10: "Any EART-eligible source that has been screened 

out by the Texas Commissioi~ on Environmental Qualitry-conduct:d scl-eening modeling is not subject 

to the requirements of $11 6.1520 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-eceives written 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-esponse to 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~ Iareas 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, OLS 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts new 

§§I 16.1 500, 1 16.151 0, 1 16.1 520, 1 16.1 530, and 1 16.1540. Sections 1 16.1 500, 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 661 6). 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 SIPS to 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 I area. 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 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 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 §I 16.1500, 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 response to a comment. 
5 1 16.151 0. Applicability and Exemption Requirements. 

The commission adopts new §I 16.151 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 §I 16.1500. 

Under adopted §I 16.1510(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 §I 16.1 520, Best 

Available Retrofit Technology (BART) Analysis, and §I 16.1 530, 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 §I 16.1 51 0(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 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. 

The commission is adopting several exemptions under §I 16.1 510(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 31 16.151 O(c)(l) and (2), respectively. The EPA 

concluded that sources meeting the stated criteria for emissions and distance from Class I 

areas are unlikely to have a significant effect on visibility. The exemptions in §I 16.1 510(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 §I 16.151 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 §I 16.1 510(c)(l) and (2), the exemption in §I 16.1 51 0(c)(3) is pollutant specific. For example, 
a source may be exempted for purposes of NO, or SO2 while 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 $1 16.1510(~)(3) is determined by the emissions of PMlo. 

Owners or operators claiming exemption under $1 16.151 0(c) are required to 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 $1 16.1510(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 NOx and 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 NOx and 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 modeling will be notified by mail. 
§I 16.1520. Best Available Retrofit Technology (BART) Analysis. 

The commission adopts new §I 16.1 520, which contains requirements for the BART engineering 

analysis. BART-eligible sources that are not exempted under §I 16.1510 are required to 

develop a BART engineering analysis to determine BART for 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 §I 16.1520(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 1 16.1530. Best Available Retrofit Technology (BART) Control Implementation. 

The commission adopts new §I 16.1 530, which contains requirements and deadlines associated 

with the irnplementation of any required BART controls. Adopted §I 16.1530(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 201 3. 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 §I 16.1530(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 31 16.1 530(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. 

5 I 16.1540. Exemption from Besf Available Retrofit Technology (BART) Control 

Implementation. 

Adopted new §I 16.1 540 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 to 
avoid 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, 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 IVO,, SO2, and PM that contribute to 

visibility impairment in any Class I area. The adopted new 331 16.1500, 1 16.151 0, 1 16.1520, 

1 16.1530, and 1 16.1540 will 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 intended to 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 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 

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 $1 0,000 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 in the 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. 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 SIPS under 57410 to incorporate a plan for visibility protection, 

including requirements for BART. The legislature is presumed to understand this 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 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. Since that 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, 91 9 S. W.2d 485, 489 (Tex. App. Austin 1 995), 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 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 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 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 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, 

§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 Subject 
to 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 accordance with 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 51 16.1 510(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 §I 16.1500(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 response to 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 51 16.1 520(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 §I 16.1 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 §I 16.1530(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 §I 16.1530(b), the TCEQ rule discusses how BART-required control 

equipment must be housed within a permit or other 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 

§I 16.1530(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 I of the FCAA, but instead reference 

preconstruction permits under Chapter 116, Title V sources will be required to revise 

their operating permits after issuance of the modified permit required under 

§I 16.1 530(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 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 visibilityimpairing 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 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. 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 BART-eligible 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 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 maintained will be addressed in the facility's permit. It would 

be difficult to specify those procedures in the 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 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/ba~haze.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 NO, SOz, 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 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 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 201 3. In 201 8, 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. 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 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 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 if this rate of improvement could be sustained, 

these areas would reach the national goal 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 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 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 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 to 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 rule were 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 91 16.1 500, 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 51 16.1500 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 source to clarify that 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 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. '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 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 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. 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 .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 in Texas. By using only a single 

threshold, the TCEQ does not intend to imply that the threshold for causing visibility 

impairment is the same as for contributing to. Since TCEQ expects all Class I areas have 
more,than one 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 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 III.A.1, and has made no changes in 91 16.1 520 and 91 16.1 530 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 necessary to make 

reasonable progress toward the goal of natural visibility conditions. 

NPS expressed concern that proposed §I 16.1510(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 I areas 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 §I 16.1520 and §I 16.1530 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.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 §I 16.1 510(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 commission to executive 

director. The commission notes that 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 in the summer of 2007 to meet the 

adoption date of December and to 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 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 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 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 to these comments. Currently, 

CALPLIFF 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 exemptior~ 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 in 

the EPA document, Interagency Workgroup on Air Quality Modeling (IWAQM) Phase 2 

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 SO2 and NO,. 

The commission will allow the use of the photochemical grid model, CAMx, for 

evaluating visibility impacts at Class I areas located beyond 300 kilometers from a 

source. 

MODELING-OTHER 

Source Environmental Sciences, Inc. commented that the first sentence of $1 16.151 0(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 response to this comment. Since the 

commission will allow the use of the photochemical grid model CAMx for evaluating 

visibility impacts at Class I areas located beyond 300 kilometers from a source, including 

the additional wording of air dispersion in front of model and 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 photocherr~ical grid model CAMx 

under $1 16.1510(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 51 16.1 51 O(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 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 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. If a 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 in their 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 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 

commission has revised the rules to more clearly explain the requirements for sources 

that were screened out in the TCEQ modeling. The exemptions in $1 16.1 51 O(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 §I 16.1510 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 51 16.1 51 0(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 §I 16.1 51 0(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 

51 16.1 51 0(b) function on a pollutant-by-pollutant basis. The commission does not agree 

that the 51 16.1510(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 §I 16.151 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 16.151 0(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 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 

visibility impairment for one or more visibility-impairing pollutants. The commission has 

added new §I 16.1 51 0(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 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 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 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 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 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 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 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 be selected for detailed technical review based on a variety 

of factors, including, but not limited to: quantity of visibility-impairing pollutants; 

proximity to Class I sites; cases where the source's prospective BART strategy results in 

little to 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 

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 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 of 0.5 deciview, no further analysis will 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 

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 §I 16.1 51 0(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 

BART for PIVllo. 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 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 in this 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 in the 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 §I 16.1 51 0(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 exempted from BART requirements due to their relatively 

low emission rates. The broadest exemption is the de minimis exemption in 

$1 16.151 0(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 

$1 16.1510(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. 

4 1 
MODELlNG 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 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 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 I areas are unlikely to have a significant effect on visibility. The 

commission agrees with EPA's assertion. The exemptions in $1 16.1510(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 made to 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 NOx and 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-eligibility for EGUs participating in the CAlR trading program. 
The rule has not been revised in response to these 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 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 and 4-1, the 

Houston Sierra Club does not agree with EPA that complying with CAlR will necessarily result in 

sufficient SOn 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 CAIR 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 NO, and SO2 emissions for EGUs 

participating in the 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 a 
Class 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 utilize the CAlR cap and 

trade programs as a means to satisfy BART for affected EGUs. CAlR controls NO, and 

SO2 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 required to do a BART-eligible analysis on their units to determine if the source 

causes or contributes to visibility impairment of Class I areas. 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 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 51 16.1 520(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 51 16.1 51 O(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 §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 to the rule. 

Lehigh Cement asked for an extension of the comment period to 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 promulgation to collect the appropriate 

industry information for 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

RECOMMENDATIONS
SUBCHAPTER 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, 

382.01 1, 382.01 2, 382.01 7, and 382.051. 
51 16.1 500. 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 retrofit technology (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 16.1 510. Applicability and Exemption Requirements. 

(a) The requirements of this subchapter apply to best available retrofit technology 

(BART)-eligible sources as defined in 51 16.1500 of this title (relating to 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 contribute 
to 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 51 16.1520 or 

51 16.1530 of this title (relating to Best Available 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 

51 16.1 520 or 51 16.1 530 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 NOx and 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 NOx and 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 SO2 is not subject to BART for NOx or SO,, respectively. 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 PMI0. 

(d) BART-eligible electric generating units participating in the Clean Air Interstate Rule 

Trading Program are not subject to the requirements of §I 16.1520 or §I 16.1530 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 

§I 16.1520 or §I 16.1530 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 §I 16.1510(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 made 
according 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's Air Permits 

Division no later than April 30, 2007. 

91 16.1530. 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 Grandfathered 
Facilities) as applicable to authorize the construction or modification and to establish emission 

limitations of BART. 

31 16.1540. Exemption 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 BARTrequired control equipment, pursuant to 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 

1 hereby ixrt& thz7 &IS E a 'Ins cnd correct copy of e 

Texas CMsmissisn w Enwmnmntal Quality doaunerrC, 

which is filed n ?he permanent records of the Commigkn 

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. $5 382.01 1, 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 (3 1 TexReg 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 ofinterested 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~nony incorporated 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 Texas Register 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 competent jurisdiction, 

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$~gs and antibiotic drugs; and 

(ii) subject to reporting and inspection under replatioiis issued under $505(i) or 6) of the Federal Act; or 

(F) data relating to 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 or health 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 G as Food, Drug, and Cosmetic 

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 of ally prescription drug. I 

Applicable Laws and Regulations). 

(e) Adulterated or misbranded brescriplion dr~~g. If the departcensure). 

(f) Order to cease distribution. I 

order requil-ing a perI (A) a wholesale distrib~!tor has: 

I 

(i) violated these sections or the Act: or 

or death; and 

(B) other procedurek would resi~lt in unreasonable delay. 

(2) An order under this,s~~bsection I must provide the person 

subject to the order with an opport \nity for an informal hearing 011 the 

actions required by tlie order to be eld not later than the 10th day afler 

tlie date of issuance of the order. t 

This agency hereby certifies th9\ the adoption has been 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 $91 16.1 500, 11 6.1 510, 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 116.1 520 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 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 

32 TexReg 318 Jalzuu~y 26, 2007 Texas Register 
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 SIPS to 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 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 

§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 from Texas 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. 

§I7 6.1510. Applicability and Exemption Requirements. 

The conlmission adopts new ~116.1510 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 ~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, 

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 (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 

affecting visibility, 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 319 
The commission is adopting several exemptions under 

§I 16.1 510(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 §I 16.1 510(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 case with the exemptions 

in $116.1510(c)(l) and (2), the exemption in $116.1 510(c)(3) is 

pollutant specific. For example, a source may be exempted for 

purposes of NOxor SO, while 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 

minirnis exemption level in $116.1510(~)(3) is determined by the 

emissions of PM,,. 

Owners or operators claiming exemption under $1 16.1510(c) are 

required to 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 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 NOx and SO,, 

so BART-eligible EGUs would remain subject to BART requirements for PM. 

In response to public comment, the commission has added 

$1 16.151 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 modeling will be notified by mail. 

$1 16.1520. Best Available 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 BART for 

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 6.1 520(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 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. 

$116.1530. Best Available Retrofit Technology (BART) Control 

Implementation. 

The commission adopts new $1 16.1 530, 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 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 

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 of the 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-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 to avoid the 

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 Texas Register 
The commission reviewed tlie adopted rules in light of the regulatory impact analysis requirements of 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, 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 

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 PM that 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 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 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 be long to one of 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 contribute to 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 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 Leg~slature, 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 implicatio~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 rule was 

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 presumed to understand this 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 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, §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 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 & 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 61 7 (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 

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, 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 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, 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 to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

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 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 

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 (31 TAC §501.14(q)). This rulemaking action 

complies with 40 CFR Part 51, Requirements for Preparation, 

Adoption, and Submittal of Implementation Plans. Therefore, in 

accordance with 31 TAC §505.22(e), the commission affirms that 

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 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 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 division of 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 response to 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 sources will be required to revise 

their 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 Title V permit to reflect the BART limits added to their 

Chapter 11 6 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 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 requirement to 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 permitor other 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 $1 16.1530(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(r)(l)(i), Title V permits must be reopened and 

revised to include new applicable requirements if the permit has 

sions 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 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 addiADOPTED RULES Juizuary 26, 2007 32 TexReg 323 
tion 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 in the facility's permit. It would be difficult to specify those procedures in the 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 NOz, SO,, 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 orthe 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 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 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 

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 reevaluate the rate of progress towards natural visibility 

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 of visibility 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 if this rate of improvement 

could be sustained, these areas would reach the national goal 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 todevelop 

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 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 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 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 TexReg 324 .Juiz~~ury 26, 2007 Texas Register 
to 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 rule were 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 

$1 16.1500 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 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. 

DEFINITION OF VISIBILITY-IMPAIRING POLLUTANT 

ACET, Ash Grove, TXU, Dow, and TCC all agreed that the 

§I 16.1 500 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. The TCEQ has modeled the visibilityimpairment impact of VOC emissions from all potentially BARTeligible 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 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 below the 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 in Texas. By ~lsing only a single threshold, the TCEQ does 

not intend to imply that the threshold for causing visibility impairment is the same as for contributing to. Since TCEQ expects 

all Class I areas have more than one source impactinq visibilitv. 

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 TexReg 325 
necessary 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 I areas 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 DlREC TOR 

AECT, TXU, Ash Grove, and El Paso Electric recommend that in 

§I 16.15 10(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 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 forTCEQ 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 in the summer of 2007 to 

meet the adoption date of December and to 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 in the EPA document, Interagency 

Workgroup on Air Quality Modeling (IWAQM) Phase 2 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 vis32 TexReg 326 Ju12ziaqr 26, 200 7 Texas Xegister. 
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 §I 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, usir~g an air dispersion model and air dispersion 

modeling guidelines approved by the commission, that the 

source does not cause or contribute to visibility irnpahnent in a 

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 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 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 needed for an air contaminant, then the owner/operator be clearly excluded from the requirement to submit additional 

modeling under §I1 6.1 51 0(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 

need for 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 51 16.1 510(c)(l) - (3) remain available, independently of whether or not a source was screened out by the 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 adequate time to prepare the required BART 

cific exemption modeling are listed in TCEQ draft modeling docu- analysis and will ensure that a source complying with 3116.1 510 

ments, Screening Analysis of Pofentially BART-Eligible Sources does not inadvertently fail to comply with §116.1520 because of 

in Texas and Best Available Retrofit Technoloqv (BART) Model- participation in another part of the rule. 

ing ~rotocol to Determine Sources Subject ~OBART in the Sfate The appreciates the support for the B1,6,1510(b) of Texas. The range of costs for exemption modeling will 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 under this exempADOPTED X ULES Ju~znuiy 26, 2007 32 TcxXcg 327 
tion 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 6.1 510(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 §116.1510(b) function on a pollutant-by-pollutant basis. The commission does not agree that the 

§I 16.1 510(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 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 

~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 I area 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~bility impairment 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 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 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 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 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 acknowledges that Texas P.E. licensing requirements do not specifically require direct knowledge or 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 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 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 be selected for detailed technical review based on 

a variety of factors, including, but not limited to: quantity of visibility-impairing pollutants; proximity to Class I sites; cases where 

the source's prospective BART strategy results in little to 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.tuury 26, 2007 Texus Register 
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 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 of 0.5 deciview, no further 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 BART for 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 51 0 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 §I 16.1 51 O(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 

11 6.151 0(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(~)(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 on the model plants 

that the EPA developed for 40 CFR Part 51, Appendix Y. There 

are two model plant exemptions adopted as §I 16.1 51 O(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 

agrees with EPA's assertion. The exemptions in ~116.1510(c)(l) 

and (2) are pollutant specific for NOx 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). No changes have been made to the rule. 

CAIR EQUALS BART 

AECT and TXU strongly concur with proposed 511 6.1510(d), 

which would provide that EGUs that are participating in the CAIR 

cap and trade program will not be subject to BART analysis or 

control requirements for NOx and 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 PM for 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 and 4-1, 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 mechanism to 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 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 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 required to do a BART-eligible analysis on their units to determine if the source causes or contributes to visibility impairment 

of Class I areas. 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 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 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 ~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 period to 

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 promulgation to 

collect the appropriate industry information for the SIP package. 

The ~ublic will have a chance to view the BART information dur32 TexReg 330 Janzla~y 26, 2007 Texas Register 
ing 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 are also adopted 

under Texas Health and Safety Code (THSC), 5382.002, concerning Policy and Purpose, which establishes the commission'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 or modify 

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 following temis, wlicn used in this subchapter, have the following 

inea~iings unless the context clearly indicates otherwise. For terms not 

defined in this section, the definitions contailled 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~y sources 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-cleaniog plants (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 

ll1a11 250 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 ore processing 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~subcli~~l~ter :~pply to bcst available 

retrofit technology (BART)-eligible sources as defined in $1 16.1500 of 

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 16,1530 of tliis title for the indicated polluta~it(s). Owners or operators claiming exemption under tliis 

subsection shall maintain records sufficient to demonstrate compliance 

with theexemption criteria, mid shall ~iiakc such recortls a\iaiIable u11on 

rcquest of l~ersonnel from [he commission or any local air poll~ltion 

control agency having jurisdiclion. 

(1) Ally BART-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 (lie potential 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 331 
located more than 100 kiiolneters from any Class I area is not s~ibject 

to BART for NOx and SO1. 

(3) Any BART-eligible source that has the potential to emit 

less than 40 tons per year of NOx or 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 $11 6.1520 or 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~al Ilnplen7eritntio17. 

(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 for the State of Texas. 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), Subchapter F 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 and found 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: (51 2) 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 81 Q3). 

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 

harmful fish, shellfish, or aquatic plants. 

This agency hereby certifies thjt the 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 on January 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, 200 7 Texas Register