Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

E X T L :~_ ; . ) . . '. ' ' ' ~ I 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ~ ,) 

Protecting Texas by Reducing and Preventing Pollution 

•.;_,' 

July 17, 2006 

Richard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

Docket No. 2005-2069-RUL 

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On June 28, 2006, the Texas Commission on Environmental Quality (Commission) adopted revisions to 

the State Implementation Plan (SIP). 

The Commission adopted amendments to §§35.801, 35.802, 35.804, 35.805, 35.807, and 35.808 in 30 TAC 

Chapter 35, Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of 

Permit Conditions,_ Subchapter K, Air Orders; and corresponding revisions to the SIP. This rulemaking 

allows for the authorization of emergency orders to repair or replace roads, bridges, or other infrastructure 

improvements involving public works projects destroyed during a catastrophe. Additionally, the adopted 

rules will authorize an applicant to list loss of a critical transportation thoroughfare as a reason why the 

construction and emissions are essentiaL The rule amendments conform with Texas Water Code, §5.515, 

as amended by House Bill2949, 79th Legislature, 2005, ensuring consistency in the rules with the statute. 

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record of the 

public hearing, and the accompanying order. I look forward to your expeditious approval of these SIP 

revisions. 

Sincerely, 

ct,~AJW 

Chairman 

KHW/lb 

cc: The Honorable Rick Perry, Governor of Texas 

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

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

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

pnnted on recycled paper using soy-based ink 
TEXAS CoMMISSION ON ENVIRONMENTAL QuALITY 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

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

Texas State Implementation Plan, adopted on June 28, 2006, in accordance with 40 Code of Federal 

Regulations§ 51.104. I am a records administrator for the Texas Commission on Environmental Quality. 

Kevin McCalla 

Director, General Law Division 

Texas Commission on Environmental Quality 
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Texas Commission on 

Environmental Quality 

Public Hearing 

April 4, 2006 

Concerning Revisions to Chapter 35, Emergency and 

Temporary Orders and Permits; Temporary 

Suspension or Amendment of Permit Conditions 

Rule Project Number 2005-070-035-LS 
INTRODUCTION 

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

April 4, 2006 to receive testimony regarding revisions to 30 TAC Chapter 35, Emergency and 

Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions, 

Subchapter K, Air Orders, Sections 35.801, 35.802, 35.804, 35.805, 35.807, and 35.808 and a 

revision to the state implementation plan. 

The rulemaking implements requirements of House Bill 2949, 79th Legislature, 2005, Regular Session. 

The rulemaking amends Chapter 35 to add language authorizing emergency orders to include repair or 

replacement of roads, bridges, or other infrastructure improvements to the list of actions that can be 

authorized by an emergency order. Additionally, the rulemaking authorizes an applicant to list loss of a 

critical transportation thoroughfare as a reason why the construction and emissions are essential. 

The comment period closed on April 10, 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: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations (including Order and Texas Register publication) 

Additional copies of this hearing record are maintained in the commission's central office at 12100 Park 

35 Circle, Austin, Texas 78753. For further information, please contact Les Trobman, Air Permits 

Division, at (512) 239-6056. 
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 hearings in the following newspapers on the date listed: 

Austin American Statesman; March 1, 2006 

Fort Worth Star-Telegram; February 27, 2006 

Houston Chronicle; February 27, 2006 

2. Publication of the proposed rules in the March 10, 2006, issue of the Texas Register 

(31 TexReg 1599). 

3. Publication of the Notice of Public Hearing in the March 10, 2006, issue of the Texas 

Register(31 TexReg 1802). 

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 Dallas Department of Environmental and Health Services 

City of 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 

Harris County Pollution Control Department 

Houston Department of Health and Human Services 

Houston-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Victoria Metropolitan Planning Organization 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

Oklahoma Department of Environmental Quality 

United States Environmental Protection Agency 
Example of Newspaper Classified Ad 

Houston Chronicle, February 27, 2006 

NOTICE OF PUBLIC 

HEARING ·BY THE 

TEXAS COMMISSION ON 

ENVIRONMENTAL 

QUALITY ON PROPOSED 

REVISIONS TO 

30 TAC CHAPTER 35 AND 

TO THE STATE 

IMPLEMENTATION PlAN 

The Texas Commission on Environmental Quality (commission) wilr con- duct a public hearing to 

receive testimony re- garding proposed revisions to 30 TAC Chapter 

35, Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of 

Permit Conditions, under 

the requirements of 

Texas Health 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 state implementation plans (SIPs). 

The proposed rulemaking 

would implement re- quirements .of House Bill 

2949, 79th Legislature, 

2005. The proposed rulemaking would expand the 

list of actions that can be 

authorized by· an emer- gency order to include 

the repair or replacement of roads, bridges. or other 

infrastructure improvements. Additionally, ~he 

proposed . rulemakmg would authonze an applicant to list loss of a critical transportation thoroughfare as a reason why 

the construction and 

emissions· are essential. 

A public hearing on this 

proposal will be held in 

Austin on April 4. 2006, at 

10:00 a.m. in Building B. 

Room 2011,>., at the Texas 

Commission on Envrronmental Quality complex 

located at 12100 Park 35 

Cir:::le. The hearing will be 

structur-ed tor the receipt 

ot oral or written com- ments by interested oer- sons. Registration will begin 30 minutes prior to the 

hearing. Individuals may 

present oral statement5 

when called upon in order 

of registration. There will 

be no open discussion 

during tne hearing; however, a staff member will 

be available to discuss 

the proposal 30 minutes 

befcmo the hearrng and 

wili c_nsv ... .~e: questions DetorE: anC: after the hear- in~. 

Persons planning to attend the hearing who 

have special comrnurlrcation or other accommo- dation needs, should con- tact Lola Brown, Office_ of 

Legal Services at (5l2J 

239·0348. Requests 

should be made as far m advance as possible. Comments may be submitted to Lola Brown, MC 

205, Texas Register T~am, 

Office of Legal Servrces, 

Texas Commission on Environmental Quality, P.O. 

Box 13087, Austin, Texas 

78711-3087 or taxed to 

(512) 239-4808. All com- ments should reference 

Rule Project Number 

2005-070-035-LS. Comments must be rece1ved 

by 5:00p.m., Apri\10. 2006. 

Copies of the propqsed 

rules can be obtarned 

from the commission's 

Web site at http:/ 

/www.tceq.state.tx.us/ 

nav/rules/propose ac opt.htmi. For further information, please contact 

Les Trooman, Envrronlnental Law Division, at 

(512) 239-6056. 

Issued in Austin, Texas. on Febr~1ary 22, 2006. 
posal firm, and the lead plates were s d to a lead smelter. The battery 

cases were ground and washed in fou unlined surface impoundments 

to remove the lead and lead sulfate. e chips were skimmed from the 

surfaces of the impoundments and so d to plastic recyclers. The lead 

and lead sulfate sediments on the bo ms of the impoundments were 

sold to a lead smelter. 

In 1983, the Texas Department of He th (TDH) found concentrations 

of lead over 100,000 milligram per k logram (mglkg) in the soil and 

issued a compliance order requiring CI to remove all soil with lead 

concentrations greater than 1,000 m g. PCI removed contaminated 

soil from the Jacksonville location t the PCI Tecula location. The 

TDH conducted post-removal sampli g in 1984 and accepted clean 

closure of the Jacksonville site, base on the lead concentrations in 

soil. PCI then sold the site to Texas F Products, Inc. (TFPI). TFPI 

removed all remaining PolyCycle s ctures and built the "Lone Star 

Feed Store." In 1999, TFPI sold 1.86 a res to Dement Chiropractic Fitness Center, which built an outdoor s imming pool and a volleyball 

court just north of the feed store. 

In March 1991, the Field Investigatio Team of the United States Environmental Protection Agency, Regi n 6, conducted a site screening 

investigation at the site to verify thee ctiveness ofthe removal action 

performed by PCI. On-site lead cone ations were between 100- 400 

mglkg, except for two samples. One ample had a lead concentration 

of3,780 mglkg and the other had 43, 0 mglkg. 

In February 2000, the analytical result from the soil samples collected 

by TCEQ showed the lead concentrati ns ranging from 3,100 to 4,800 

mglkg. Chips of battery casings were visible in the roadside ditch in 

front of the feed store. A Hazard R king System (HRS) evaluation 

was conducted by the TCEQ, and an score of 6.09 was assigned 

to the site. At a public meeting condu ted on January 15, 2004, at the 

Jacksonville Public Library, TCEQ p posed to clean up the site to a 

commerciaVindustrial level; and the ite was proposed for listing to 

the state Superfund registry in the Dec mber 5, 2003 issue of the Texas 

Register (28 TexReg 11012) under T C, Chapter 361, Subchapter F. 

The TCEQ conducted a remedial i vestigation during which soil 

and groundwater samples were anal zed. Soil lead concentrations 

were found to be above the health- ased protective concentration 

level (PCL) at two locations north of e feed store and one location 

northeast of Dement Chiropractic Fi ess Center. Eleven monitor 

wells were installed to collect ground ater samples. A groundwater 

sample collected from the monitorin well (MW-3), located to the 

west of the feed store near a ditch (loc tion of a former railroad track), 

showed concentrations ofberyllium ab ve the PCL of0.004 milligram 

per liter. Additionally, groundwater amples from two other wells 

installed at the former unlined impou ments showed the presence of 

beryllium, but at concentrations below e PCL. Soil samples collected 

at these former impoundment locatio s also showed the presence of 

beryllium. 

To prevent migration of the contamin ts, especially the beryllium in 

groundwater, the TCEQ has determin d that a removal action is appropriate at the site. This removal acf n will achieve significant cost 

savings for the site. The TCEQ plans t remove the lead-contaminated 

soil that is above PCLs from the two I cations north of the feed store 

and the one location northeast ofDem nt Chiropractic Fitness Center. 

Additionally, the contaminated soils ounding monitor well MW-3 

will also be excavated and removed fr m the site. All excavated soil 

will be disposed of at an approved off-s te facility. The excavated areas 

will be sampled to confirm the remov I of contamination and will be 

backfilled with clean soil. After the co pletion of the removal action, 

all the monitor wells will be plugged a d abandoned. 

31 TexReg 1802 March 10, 2006 Texas Register 

A portion of the records for this site · s available for review during 

regular business hours at the Jackson ·ne Public Library, 502 South 

Jackson Street, Jacksonville, Texas. Th copies of the complete public 

record file may be obtained during busi ess hours at the commission's 

Records Management Center, Buildin E, First Floor, Records Customer Service, MC 199, 12100 Park 3 Circle, Austin, Texas 78753, 

(800) 633-9363 or (512) 239-2920. P otocopying of file information 

is subject to payment of a fee. Parkin for persons with disabilities is 

available on the east side of Building , convenient to an access ramp 

that is between Buildings D and E. 

For further information, please contact r. Subhash C. Pal, P.E., TCEQ 

Project Manager, Remediation Divisi n, at (512) 239-4513, or Mr. 

Bruce McAnally, TCEQ Community elations Coordinator at (512) 

239-2141. 

TRD-200601 094 

Stephanie Bergeron Perdue 

Acting Deputy Director, Of ce of Legal 

Texas Commission on Environmental 

Filed: February 28, 2006 

• • • 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 35 and the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 35, Emergency and Temporary Orders and 

Permits; Temporary Suspension or Amendment of Permit Conditions, 

under the requirements of Texas Health and Safety Code, §382.017; 

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code 

of Federal Regulations §51.1 02, of the United States Environmental 

Protection Agency (EPA) regulations concerning state implementation 

plans (SIPs). 

The proposed rulemaking would implement requirements of House Bill 

2949, 79th Legislature, 2005. The proposed rulemaking would expand 

the list of actions that can be authorized by an emergency order to include the repair or replacement of roads, bridges, or other infrastructure 

improvements. Additionally, the proposed rulemaking would authorize an applicant to list loss of a critical transportation thoroughfare as 

a reason why the construction and emissions are essential. 

A public hearing on this proposal will be held in Austin on April 4, 

2006, at 10:00 a.m. in Building B, Room 201A, 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. There will be no open discussion 

during the hearing; however, a staff member will be available to discuss 

the proposal 30 minutes before the hearing and will answer questions 

before and after the hearing. 

Persons planning to attend the hearing who have special communication or other accommodation needs, should contact Lola Brown, Office 

of Legal Services at (512) 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. 0. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 

239-4808. All comments should reference Rule Project Number 2005-

070-035-LS. Comments must be received by 5:00p.m., April 10, 2006. 

Copies of the proposed rules can be obtained from the commission's 

Web site at http://www.tceq.state.tx.us/navlrules/propose _adopt.htrnl. 
For further information, please contact Les Trobman, Environmental 

Law Division, at (512) 239-6056. 

TRD-200600973 

Stephanie Bergeron Perdue 

Acting Deputy Director, Of ce of Legal Services 

Texas Commission on Environmental Quality 

Filed: February 24, 2006 

• • 

Proposed Enforcement Orders 

• 

The Texas Commission on En vir ental Quality (TCEQ or commission) staff is providing an opport nity for written public comment on 

the listed Agreed Orders (AOs) i accordance with Texas Water Code 

(the Code), §7.075, which requir s that the commission may not approve these AOs unless the pub! c has been provided an opportunity 

to submit written comments. Sec ion 7.075 requires that notice of the 

proposed orders and the opportu ty to comment must be published in 

the Texas Register no later than e 30th day before the date on which 

the public comment period closes which in this case is AprillO, 2006. 

Section 7.075 also requires that t commission promptly consider any 

written comments received and at the commission may withhold approval of an AO if a comment iscloses facts or considerations that 

indicate the proposed AO is ina propriate, improper, inadequate, or 

inconsistent with the requiremen of the Code, the Texas Health and 

Safety Code (THSC), and/or the exas Clean Air Act (the Act). Additional notice is not required if ch nges to an AO are made in response 

to written comments. 

A copy of each proposed AO is a ailable for public inspection at both 

the commission's central office, l a ted at 12100 Park 35 Circle, Building C, I st Floor, Austin, Texas 78 53, (512) 239-1 864 and at the applicable regional office listed as foll ws. Written comments about an AO 

should be sent to the enforcemen coordinator designated for each AO 

at the commission's central offic at P. 0. Box 13087, Austin, Texas 

78711-3087 and must be receive by 5:00p.m. on April tO, 2006. 

Written comments may also be s nt by facsimile machine to the enforcement coordinator at (512) 2 9-2550. The commission enforcement coordinators are available to discuss the AOs and/or the comment 

procedure at the listed phone nu bers; however, §7.075 provides that 

comments on the AOs should be bmitted to the commission in writing. 

(I) COMPANY: Anadarko Petro urn Corporation; DOCKET NUMBER: 2005-1825-AIR-E; IDEN IFIER: Regulated Entity Reference 

Number (RN) RN104695093; L CATION: Douchette, Tyler County, 

Texas; TYPE OF FACILITY: oi and natural gas production station; 

RULE VIOLATED: 30 TAC §11 .110(a)(2) and THSC, §382.085(b) 

and §382.0518(a ), by failing to sa isfy the conditions of a standard permit; 30 TAC §106.352(1) and §II .110(a)(4) and THSC, §382.085(b), 

by failing to satisfy the conditio of a permit by rule for the station; 

30 TAC §106.512(1) and §116.110(a)(4) and THSC, §382.085(b), by 

failing to submit a timely Pl-7 rm for permit by rule registration 

after construction began at the st tion; 30 TAC § 111.201 and THSC, 

§382.085(b), by failing to preven unauthorized outdoor burning; and 

30 TAC §11l.lll(a)(4)(A)(i) an (ii) and THSC, §382.085(b), by 

failing to prevent visible emissio s; PENALTY: $6,400; ENFORCEMENT COORDINATOR: John arry, (409) 898-3838; REGIONAL 

OFFICE: 3870 Eastex Freeway, eaumont, Texas 77703-1892, (409) 

898-3838. 

(2) COMPANY: City of Anahua DOCKET NUMBER: 2004-2124-

PWS-E; IDENTIFIER: Public ater Supply Identification Number 

0360001, RNI0!188761; LOC~ TON: Anahuac, Chambers County, 

Texas; TYPE OF FACILITY: pub! c water supply; RULE VIOLATED: 

30 TAC §290.113(f)(4) and (5) an THSC, §341.0315(c), by exceeding the maximum contaminant lev I (MCL) for total trihalomethanes 

(TTHM) and haloacetic acids; PE ALTY: $508; ENFORCEMENT 

COORDINATOR: Edward Moder w, (512) 239-2680; REGIONAL 

OFFICE: 5425 Polk Avenue, Suit H, Houston, Texas 77023-1486, 

(713) 767-3500. 

(3) COMPANY: Azteca Millin , L.P.; DOCKET NUMBER: 

2003-1429-AIR-E; IDENTIFIER: ir Account Number HA0106T, 

RNI002!5086; LOCATION: Plain iew, Hale County, Texas; TYPE 

OF FACILITY: com flour millin ; RULE VIOLATED: 30 TAC 

§122.145(2)(C) and §122.146(2) d THSC, §382.085(b), by failing 

to submit the annual Title V Co liance Certification; PENALTY: 

$2,625; ENFORCEMENT COO INATOR: Cari-Michel LaCaille, 

(512) 239-1387; REGIONAL OFF CE: 4630 50th Street, Suite 600, 

Lubbock, Texas 79414-3520, (806) 796-7092. 

(4) COMPANY: Cardinal Meadow Improvement District; DOCKET 

NUMBER: 2005-1866-MWD-E; IDENTIFIER: RNI04416417; 

LOCATION: Beaumont, Jefferso County, Texas; TYPE OF FACILITY: sewage collection syste ; RULE VIOLATED: the Code, 

§26.12l(a), by failing to prevent n unauthorized discharge of raw 

sewage from the collection system 30 TAC §317.3(c)(2) and (e)(5), 

by failing to provide a firm pumpi g capacity and by failing to provide an operational audiovisual al at the lift station; PENALTY: 

$2,568; ENFORCEMENT COO INATOR: Merrilee Hupp, (512) 

239-4490; REGIONAL OFFICE: 870 Eastex Freeway, Beaumont, 

Texas 77703-1892, (409) 898-3838 

(5) COMPANY: May Carson dba Comudas Restaurant; DOCKET 

NUMBER: 2005-1347-PWS-E; I NTIFIER: RN101198265; LOCATION: Salt Flat, Hudspeth Cou 1ty, Texas; TYPE OF FACILITY: 

restaurant; RULE VIOLATED: 3; TAC §290.109(c)(2)(A)(i) and 

(ii) and THSC, §341.033(d), by fi iling to collect routine bacteriological samples and by failing to c llect repeat samples following a 

coliform-positive result; and 30 T C §290.122(c)(2)(B), by failing 

to post public notice of monitorin violations; PENALTY: $1,755; 

ENFORCEMENT COORDINATO : Audra Ruble, (361) 825-3100; 

REGIONAL OFFICE: 401 East Fr lin Avenue, Suite 560, El Paso, 

Texas 79901-1206, (915) 834-4949 

(6) COMPANY: Flat Fork Water Supply Corporation; DOCKET 

NUMBER: 2005-2045-PWS-E; I NTIFIER: RNl01441848; LOCATION: Center, Shelby County Texas; TYPE OF FACILITY: 

public water supply; RULE VIOL ED: 30 TAC §290.113(f)(4) and 

THSC, §341.0315(c), by exceeding e MCL for TTHM; PENALTY: 

$298; ENFORCEMENT COORD ATOR: Epifanio Villareal, (21 0) 

490-3096; REGIONAL OFFICE: 870 Eastex Freeway, Beaumont, 

Texas 77703-1892, (409) 898-3838. 

(7) COMPANY: Georgia GulfChe icals & Vinyls, L.L.C.; DOCKET 

NUMBER: 2005-0766-AIR-E; ID NTIFIER: RNI00213958; LOCATION: Pasadena, Harris Coun , Texas; T.YPE OF FACILITY: 

chemical manufacturing; RULE VI LA TED: 30 TAC § 116.115( c) and 

§117.206(c)(3)(A), New Source R iew (NSR) Air Permit Number 

4825A, and THSC, §382.085(b), by failing to comply with emissions 

limits; 30 TAC §101.20(1) and §Il .115(c), 40 Code ofFederal Regulations Part 60, Appendix F, NS Air Permit Number 4825A, and 

THSC, §382.085(b), by failing to mply with the relative accuracy 

required of Emission Point Num ers 12 's continuous monitoring 

system; PENALTY: $5,656; EN RCEMENT COORDINATOR: 

. Terry Murphy, (512) 239-5025; GIONAL OFFICE: 5425 Polk 

Avenue, Suite H, Houston, Texas 7 23-1486, (713) 767-3500. 

(8) COMPANY: Jesamin, Inc. dba D vis Quick Stop; DOCKET NUMBER: 2005-1462-PST-E; IDENTIF R: RNI01538692; LOCATION: 

North Richland Hills, Tarrant Cou y, Texas; TYPE OF FACILITY: 

IN ADDITION March 10, 2006 31 TexReg 1803 
A contractor asserting a claim t at the agency has breached a contract 

must file a notice of claim as fi lows. 

(3) Copies of the tten notice of claim and all other documents filed with the chief clerk ust be served on the executive director 

and the deputy director ofOffic ofLe a! Services [GbS] no later than 

the day of filing. 

(4) The executive d ector shall file any appropriate counterclaim with the chief clerk wi in 60 [9Q] days after the filing of the 

notice of claim and provide a c py tOthe contractor. 

Negotiation. 

(No change.) 

(b)- (c) (No change.) 

(d) A contractor must s rve copies of the request for hearing 

on the executive director and e deputy director of Office of Legal 

Services [Gl.S] no later than th day of filing. 

(e) After a contractor es the request for hearing, the chief 

clerk shall refer the entire file o the claim and counterclaim to [the] 

SOAH for a contested case he 'ng under Texas Government Code, 

Chapter 200 I, as to the issues rai ed in the request for hearing. Referral 

of a request for hearing to SO H does not constitute waiver by the 

commission of statutory or re atory requirements for the notice of 

claim, the claim or the request fi r hearing. 

(f) - (g) (No change.) 

This agency hereby certifies t t the proposal has been reviewed 

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

Filed with the Office of the S cretary of State on February 24, 

2006. 

TRD-200600997 

Kevin McCalla 

Director, General Law Division 

Texas Commission on Environm tal Quality 

Earliest possible date of adoption April 9, 2006 

For further information, please ca 1: (512) 239-6087 

• • • 

CHAPTER 35. EMERGENCY AND 

TEMPORARY ORDERS AND PERMITS; 

TEMPORARY SUSPENSION OR AMENDMENT 

OF PERMIT CONDITIONS 

SUBCHAPTER K. AIR ORDERS 

30 TAC §§35.801, 35.802, 35.804, 35.805, 35.807, 35.808 

The Texas Commission on Environmental Quality (commission) 

proposes amendments to §§35.801, 35.802, 35.804, 35.805, 

35.807, and 35.808. 

The amended sections will be submitted to the United States 

Environmental Protection Agency as a revision to the state implementation plan. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

House Bill (HB) 2949, 79th Legislature, 2005, amended Texas 

Water Code (TWC), §5.515, to allow for authorization of emergency orders to repair or replace roads, bridges, or other infrastructure improvements involving public works projects destroyed during a catastrophe. The TWC previously only authorized emergency orders to allow repair of a facility or control 

equipment. Amended TWC, §5.515 adds language regarding 

the contents of the application for an emergency order. The required language in the application pertaining to the reason for allowing the construction and emissions was expanded to include 

preventing a "loss of a critical transportation thoroughfare." The 

purpose of this rulemaking is to reflect these changes in Subchapter K of this chapter. Because the statute is self-implementing, an emergency order could currently be issued for one of the 

previously described instances prior to the adoption of these proposed rules. 

The proposed rules would add language authorizing emergency 

orders to include repair or replacement of roads, bridges, or other 

infrastructure improvements to the list of actions that can be authorized by an emergency order. Additionally, the proposed rules 

would authorize an applicant to list loss of a critical transportation thoroughfare as a reason why the construction and emissions are essential. As a point of clarification, it is noted that the 

issuance of an emergency order, under the proposed rules, to a 

rock crusher or concrete batch plant that performs wet batching, 

dry batching, or central mixing will not be prohibited under TWC, 

§5.5145, or subject to penalty under TWC, §7.052(b), because 

the facility is considered to be operating under a temporary permit as provided in TWC, §5.501(a)(2)(A). 

SECTION BY SECTION DISCUSSION 

The commission proposes administrative changes throughout 

the rules to conform with Texas Register requirements and 

agency guidelines. 

The proposed amendment to §35.801, Emergency Orders Because of Catastrophe, adds roads, bridges, or other infrastructure to the list of repairs or replacements for which the commission may authorize immediate action. The commission also 

proposes to revise the definition of catastrophe by replacing the 

word "operator" with the word "applicant" and by adding the language'"or a road, bridge, or other infrastructure·." 

The proposed amendment to §35.802, Application of an Emergency Order, adds language, in paragraphs (1) and (5), allowing 

an applicant to state that the proposed construction and emissions are essential to prevent the loss of a critical transportation 

thoroughfare, and that the construction and emissions are necessary for the repair or replacement of roads, bridges, or other 

infrastructure to the list of possible statements in an application 

for an emergency order of why the construction and emissions 

are necessary. In describing the limitations on the proposed construction and emissions, the applicant may cite the public works 

project as the specific basis for the emergency authorization. 

PROPOSED RULES March 10, 2006 31 TexReg 1599 
The proposed amendment to §35.804, Issuance of Order, adds 

language, in paragraph (1), allowing the commission to issue 

an order under this subchapter if it is found that the proposed 

construction and emissions are essential to prevent the loss of a 

critical transportation thoroughfare, and that the construction and 

emissions are necessary for the repair or replacement of roads, 

bridges, or other infrastructure to the list of possible reasons that 

would allow the commission to issue an emergency order. Proposed new §35.804(5)(C), adds public works projects needed to 

rebuild or repair damaged roads, bridges, or other infrastructure 

destroyed during a catastrophe to the list of limitations of the proposed construction and emissions. 

The proposed amendment to §35.805, Contents of an Emergency Order, adds in paragraph (3), public works projects 

needed to rebuild or repair damaged roads, bridges, or other 

infrastructure destroyed during a catastrophe to the list of 

limitations of the proposed construction and emissions. 

The proposed amendment to §35.807, Affirmation of an Emergency Order, adds language, in paragraph (1 ), allowing the commission to affirm a proposed or issued order under this subchapter if the applicant shows that the proposed construction and 

emissions are essential to prevent the loss of a critical transportation thoroughfare, and that the construction and emissions 

are necessary for the repair or replacement of roads, bridges, or 

other infrastructure to the list of possible reasons that would allow the commission to issue an emergency order. Proposed new 

§35.807(5)(C) adds public works projects needed to rebuild or 

repair damaged roads, bridges, or other infrastructure destroyed 

during a catastrophe to the list of limitations of the proposed construction and emissions. 

The proposed amendment to §35.808, Modification of an Emergency Order, adds language, in paragraph (1 ), allowing the commission to modify a proposed or issued order under this subchapter if the applicant shows that the proposed construction 

and emissions are essential to prevent the loss of a critical transportation thoroughfare, and that the construction and emissions 

are necessary for the repair or replacement of roads, bridges, or 

other infrastructure. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Jeff Horvath, Analyst, Strategic Planning and Assessment Section, determined that for the first five-year period the proposed 

rules are in effect, no fiscal implications are anticipated for the 

agency or any other unit of state or local government. 

The proposed rules allow for the authorization of emergency orders to repair or replace roads, bridges, or other infrastructure 

improvements involving public works projects destroyed during 

a catastrophe. The rulemaking is consistent with HB 2949. The, 

TWC previously only authorized emergency orders to allow the 

repair of a facility or control equipment. The proposed rules 

would add language authorizing emergency orders for the repair or replacement of roads, bridges, or other infrastructure improvements. Additionally, the proposed rules would authorize an 

applicant to list loss of a critical thoroughfare as a reason why the 

proposed construction and emissions are essential. 

In general, the proposed rules are expected to affect rock crushers and concrete batch plants in that the proposed emergency 

order could authorize any air emissions or other activities necessary to repair or replace infrastructure in the event of a catastrophic event. No costs are anticipated for the agency to implement the proposed rules, and no fiscal implications are an31 TexReg 1600 March 10, 2006 Texas Register 

ticipated for other units of state or local government due to the 

enforcement or administration of the proposed rules. 

PUBLIC BENEFITS AND COSTS 

Mr. Horvath 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 state law, and the expedited rebuilding or repair of 

critical infrastructure in the event of a catastrophe. The proposed rules would authorize emergency orders that previously 

would not have been allowed under commission rules. Allowing another category of emergency orders would permit industry 

to respond more quickly to catastrophes that affect major infrastructure. The emergency order could authorize any air emissions or other activities from rock crushers and concrete batch 

plants to repair or replace any necessary infrastructure. Because the amended statute is self-implementing, an emergency 

order could currently be issued prior to the adoption of these 

proposed rules. No fiscal implications are anticipated for businesses or industry due to the implementation of the proposed 

rules. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micro-businesses that own or operate rock crushers or concrete 

batch plants. The proposed rules would authorize emergency 

orders that previously would not have been allowed under commission rules and are expected to permit industry to respond 

more quickly to catastrophes that affect major infrastructure. 

. LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission 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 analysis requirements of Texas Government Code, 

§2001.0225, and determined that the rulemaking is not subject 

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

environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from 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 commission has determined that the proposed rulemaking does not fall under the definition of a "major 

environmental rule" because none of the proposed rules mandate new requirements for the regulated community. Rather, 

the proposed rules are intended to reflect the statutory changes 

made to TWC, §5.515, by HB 2949. 

Furthermore, the proposed rulemaking does not meet any of the 

four applicability requirements listed in Texas Government Code, 

§2001.0225(a). Texas Government Code, §2001.0225(a), only 

applies to a major environmental rule, the result of which is to: 1) 

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

state law, unless the rule is specifically required by federal law; 

3) exceed a requirement of a delegation agreement or contract 

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

instead of under a specific state law. This rulemaking does not 

meet any of these four applicability requirements because this 

rulemaking: 1) does not exceed any standard set by federal law; 

2) does not exceed the requirements of state law under TWC, 

Chapter 5, Subchapter L; 3) does not exceed a requirement of 

a delegation agreement or contract between the state and an 

agency or representative of the federal governmentto implement 

any state and federal program; and 4) is not proposed solely under the general powers of the agency, but rather specifically under TWC, §5.515. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated these proposed rules and performed 

an assessment of whether these proposed rules constitute a takings under Texas Government Code, Chapter 2007. The specific purpose of the rules is to incorporate into commission rules 

the changes made to TWC, §5.515, by the Texas Legislature 

by adding language to authorize emergency orders in the event 

of a catastrophe to include the repair or replacement of roads, 

bridges, or other infrastructure. 

Promulgation and enforcement of the proposed amendments 

would constitute neither a statutory nor a constitutional taking 

of private real property. There are no burdens imposed on private real property under this rulemaking because the proposed 

amendments neither relate to, nor have any impact on, the use 

or enjoyment of private real property, and there would be no reduction in value of property as a result of this rulemaking. None 

of the proposed rules mandate any new requirements, but rather, 

provide for a specific type of authorization. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the proposed rulemaking and found 

that the proposal is a rule making identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11 (b)(2), relating 

to rules subject to the Coastal Management Program, and will, 

therefore, require that goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. 

The CMP goal applicable to the proposed rules is the goal to 

protect, preserve, restore, and enhance the diversity, quality, 

quantity, functions, and values of coastal natural resource areas. 

CMP policies applicable to the proposed rules include the administrative policies and the policies for specific activities related to 

the emission of air pollutants. Promulgation and enforcement of 

these proposed rules is consistent with the applicable CMP goals 

and policies because the proposed rules will establish clear and 

consistent requirements governing the issuance of emergency 

and temporary orders for the repair or replacement of roads, 

bridges, or other infrastructure when necessitated by a catastrophe, as authorized by TWC, Chapter 5, Subchapter L. Under the authority granted by statute, the commission may issue 

emergency or temporary orders to address unforeseen circumstances such as potential catastrophes. Promulgation and enforcement of these rules will not violate or exceed any standards 

identified in the applicable CMP goals and policies because they 

will allow the commission to take steps to mitigate emergency or 

potential emergency situations, which will result in environmental benefits for the entire state, including coastal areas. 

ANNOUNCEMENT OF HEARING 

The commission will hold a public hearing on this proposal in 

Austin on April4, 2006, at 10:00 a.m. in Building B, Room 201 A, 

at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral 

statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, a staff 

member will be available to discuss the proposal 30 minutes before the hearing and will answer questions before and after 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 

Comments may be submitted to Lola Brown, Texas Register 

Team, Office of Legal Services, MC 205, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, 

Texas 78711-3087, or faxed to (512) 239-4808. Copies of 

the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/ru/eslpropose_adopt.html. All comments should reference Rule Project 

Number 2005-070-035-LS. Comments must be received by 

5:00 p.m., April1 0, 2006. For further information, please contact 

Les Trobman, Environmental Law Division, (512) 239-6056. 

STATUTORY AUTHORITY 

These amendments are proposed under TWC, §5.102, which 

establishes the commission's general authority necessary to 

carry out its jurisdiction; §5.1 03, which establishes the commission's general authority to adopt rules to carry out its duties 

under the TWC and the other laws of the state; §5.105, which 

establishes the commission's authority to set policy by rule; 

and §5.515, which allows the commission to issue emergency 

orders for immediate action for the addition, replacement, or 

repair of facilities or control equipment, or the repair or replacement of roads, bridges, or other infrastructure, and authorizing 

associated emissions of air contaminants, whenever a catastrophe necessitates such construction and emissions otherwise 

precluded under the Texas Clean Air Act (TCAA). 

The proposed amendments implement changes made by the 

Texas Legislature to TWC, §5.515. 

§35.801. Emergency Orders Because of Catastrophe. 

The commission or executive director may issue emergency orders 

under Texas Water Code, §5.515, to authorize immediate action for 

the addition, replacement, or repair of facilities or control equipment, 

or the repair or replacement of roads, bridges, or other infrastructure, 

and authorizing associated emissions of air contaminants, whenever 

a catastrophe necessitates such construction and emissions otherwise 

precluded under the Texas Clean Air Act [+GAA J. For purposes of this 

section, a catastrophe is an unforeseen event including, but not limited 

to, an act of God, an act of war, severe weather conditions, explosions, 

fire, or other similar occurrences beyond the reasonable control of the 

applicant[~], which renders a facility or its functionally related 

appurtenances, or a road, bridge, or other infrastructure, inoperable. 

§35.802. Application for an Emergency Order. 

The owner or operator of a facility, as that term is defined in Texas 

Health and Safety Code, §382.003, desiring to obtain an order under 

this subchapter shall submit an application in accordance with §35.24 

PROPOSED RULES March 10,2006 31 TexReg 1601 
of this title (relating to Application for Emergency or Temporary Order). The application must contain the information required by that 

section and the following: 

( l) a statement that the proposed construction and emissions arc essential to prevent loss of life, serious injury, severe property damage, Joss of a critical transportation thoroughfare, or severe 

economic loss not attributable to the applicant's actions, and are necessary for the addition, replacement, or repair of facilities or control 

equipment, or repair or replacement of roads, bridges. or other infrastructure, necessitated by a catastrophe; 

(2) - (4) (No change.) 

(5) a statement that the proposed construction and emissions will occur only~ 

® on [ al] the property where the catastrophe occurred~ 

.@2 [BF] on other property owned by the owner or operator of the damaged facility, which produces the same intermediates, 

products, or by-products, provided [providing] that no more than a de 

minimus [ ae fllini.mts] increase will occur in the predicted concentration ofthe air contaminants at or beyond the property line at such other 

property; Q!: 

_(g for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a 

catastrophe; 

( 6) - ( 1 0) (No change.) 

§35.804. Issuance ojOrde1: 

The commission or executive director may issue an order under this 

subchapter if it is found that: 

( 1) the proposed construction and emissions are essential 

to prevent loss of life, serious injury, severe property damage, loss of 

a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, 

replacement, or repair offacilities or control equipment, or repair or replacement of roads. bridges, or other infrastructure, that is necessitated 

by a catastrophe; 

(2)- (4) (No change.) 

(5) the proposed construction or emissions will occur only: 

(A) on [at] property where the catastrophe occurred; 

(B) on [al] other property owned by the owner or operator of the damaged facility, which produces the same intennediates, 

products, or by-products, provided that [oo lang as tftere wilt be] no 

more than a de minim us [ ae mffi.Hflis] increase will occur in the predicted concentration of the air contaminants at or beyond the property 

line at such other property; .Q! 

_(g for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a 

catastrophe; 

( 6) - (7) (No change.) 

§35.805. Contents of an Emergency Order. 

In addition to the requirements of §35.26 of this title (relating to Contents of Emergency or Temporary Order). an emergency order issued 

under this subchapter shall contain at least the following: 

(l)-(2) (Nochange.) 

(3) authorization for action only; 

® on [at] the property where the catastrophe occurred~ 

31 TexReg 1602 March 10, 2006 Texas Register 

.@2 [er] on other property owned by the owner or operator of the damaged facility, which [ft!.se] produces the same intenncdiates, products, or by-products, provided !!_1_!!! [there w*l be] no more 

than a de minimus [de mi-ffirnis] increase will occur in the predicted 

concentration of the air contaminants at or beyond the property line at 

such other property; .Q! 

fQ for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a 

catastrophe; 

(4) (No change.) 

(5) a schedule for submission of a complete construction 

pcm1it application under provisions of Texas Clean Air Act [+C-AA], 

Chapter 382 [§382.0518]. 

§35.807. Affirmation of an Emergency Orde1: 

The commission shall affirm a proposed or issued order if the applicant 

shows at the hearing, by a preponderance of the evidence, that: 

( l) the proposed construction and emissions are essential 

to prevent loss of life, serious injury, severe property damage, loss of 

a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, 

replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or other infrastructure, that is necessitated 

by a catastrophe; 

[ef] 

(2)- (4) (No change.) 

(5) the proposed construction or emissions will occur only: 

(A) on [at] property where the catastrophe occurred; 

(B) on [at] other property owned by the owner or operator of the damaged facility, which produces the same intermediates, 

products, or by-products, provided that [oo !eng as there will be] no 

more than a de minimus [ae mffi.imi.s] increase will occur in the predicted concentration of the air contaminants at or beyond the property 

line at such other property; Q!: 

fQ for public works projects needed to rebuild or repair 

damaged roads, bridges, or other infrastructure destroyed during the 

catastrophe; 

( 6) - (7) (No change.) 

§35.808. Modification qf an Emergency Order. 

The commission shall modify a proposed or issued order if the hearing 

record shows that: 

(1) construction and emissions otherwise precluded under 

the Texas Clean Air Act [+GAA:] are essential to prevent loss of life, 

serious injury, severe property damage, loss of a critical transportation 

thoroughfare, or severe economic loss not attributable to the applicant's 

actions and are necessary for the addition, replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridg~ 

or other infrastructure, that is necessitated by a catastrophe; 

(2) - (3) (No change.) 

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 February 24, 

2006. 

TRD-200600972 
Stephanie Bergeron Perdue 

Acting Deputy Director, Of ce of Legal Services 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: April 9, 2006 

For further information, please call: (512) 239-0348 

• 

CHAPTER 291. 

SUBCHAPTER J. 

• • 

UTI . ITY REGULATIONS 

E FORCEMENT, 

SUPERVISION, AND CEIVERSHIP 

30 TAC §291.146 

The Texas Commission on nvironmental Quality (commission 

or TCEQ) proposes new §2 1.146. 

BACKGROUND AND SUM ARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RU 

The 79th Legislature, 2005, assed House Bill (HB) 841, which 

relates to municipally owned tilities that provide nonsubmetered 

master metered utility servia to recreational vehicle parks. HB 

841 amended Texas Water ode (TWC), §13.087, by defining 

"nonsubmetered master met red utility service" and by requiring 

municipally owned utilities t determine rates charged to recreational parks in the same m nner as they do for other commercial businesses that serve tr nsient customers. 

This bill requires the commis ion to incorporate into the agency's 

rules the definition of "nons metered utility service" and to review complaints received by ecreational vehicle parks. This bill 

also gives the commission t authority to take enforcement action against a municipally ow ed utility that charges a higher rate 

to a recreational vehicle par than to a commercial customer. 

SECTION DISCUSSION 

The commission proposes o add new §291.146, Municipal 

Rates for Certain Recreati nal Vehicle Parks, to implement 

TWC, §13.087, as amend d by the 79th Legislature. This 

proposed new section deft es "nonsubmetered master metered utility service" as pot ble water service that is master 

metered but not submetere and wasterwater service that is 

based on master metered p table water service. The proposed 

new section gives the com ission enforcement authority over 

municipally owned utilities t at do not determine rates charged 

to recreational parks in the arne manner as they do for other 

commercial businesses that erve transient customers. 

FISCAL NOTE: COSTS T STATE AND LOCAL GOVERNMENT 

Walter Perry, Analyst, Strat~ic Planning and Assessment Section, determined that, forth first five-year period the proposed 

rule is in effect, no significa t fiscal implications are anticipated 

for the agency or other units of state or local government. 

The proposed rule impleme~ts HB 841, 79th Legislature, which 

requires all municipally owntd utilities that provide nonsubmetered master metered utility service to recreational vehicle parks 

to determine their rates for retreational vehicle parks in the same 

manner used for other com ercial businesses that serve transient customers. The rulem . king would grant jurisdiction to the 

agency to take enforcement ~ction against a municipally owned 

utility that charges a higher Irate to a recreational vehicle park 

than to similar commercial qustomers. The rulemaking defines 

nonsubmetered utility servide as potable water service that is 

master metered but not sub metered nd wastewater service that 

is based on master metered potable ater service. 

The rulemaking would not affect age cy revenues or costs. The 

agency would be required to revie complaints received from 

recreational vehicle parks and take y necessary enforcement 

action. Any additional costs for the a enoy to review complaints 

or take enforcement action would e absorbed using current 

agency resources. Other units of tate government are not 

expected to be affected by the pro osed rule as they do not 

own or operate municipal water utiliti s. Local governments that 

own their own municipal water utiliti would be prevented from 

charging recreational vehicle parks tes that are different from 

similar businesses. Of the estimate 1,920 cities in Texas, approximately 962 have a municipally wned utility. Any reduction 

in revenue for the utilities is not proj cted to be significant. Any 

reduction in revenue would be depen ent upon the level of water 

consumption and the current dispa ity between rates charged 

for the recreational vehicle parks d similar businesses that 

serve transient customers. It is unkn wn how many recreational 

vehicle parks are located in areas rviced by municipal water 

utilities. 

PUBLIC BENEFITS AND COSTS 

Mr. Perry also determined that for ea h year of the first five years 

the proposed new rule is in effect, t e public benefit anticipated 

from the changes seen in the prop sed rule will be billing rate 

protection for recreational vehicle rks serviced by municipal 

water utilities. The commission wo ld be granted enforcement 

authority to ensure that recreationa vehicle parks are billed at 

the same rates as similar business s that serve transient customers. 

The proposed rule implements HB 41, 79th Legislature, which 

requires all municipally owned uti lites that provide nonsubmetered master metered utility service o recreational vehicle parks 

to determine their rates for recreatio al vehicle parks in the same 

manner used for other commercial usinesses that serve transient customers. The rulemaking w uld grant jurisdiction to the 

agency to take enforcement action gainst a municipally owned 

utility that charges a higher rate to a recreational vehicle park 

than to similar commercial custom rs. The rulemaking defines 

nonsubmetered utility service as p table water service that is 

master metered but not submetered and wastewater service that 

is based on master metered potabl water service. 

The proposed rule is expected to r suit in cost savings for any 

recreational vehicle park serviced y a municipally owned water utility. Of the estimated 1,920 ci ies in Texas, approximately 

962 have a municipally owned utili y. It is unknown how many 

recreational vehicle parks are loca d in areas serviced by municipal water utilities. It is projecte that the rulemaking would 

protect the recreational vehicle par s from being charged rates 

that are higher than other similar b sinesses and could result in 

financial savings for the affected re reational vehicle parks. Any 

savings realized would be depende~t upon consumption and the 

current disparity between rates charjged for the recreational vehicle parks and similar businesses thcilt serve transient customers. 

SMALL BUSINESS AND MICRo-dusiNESS ASSESSMENT 

No adverse fiscal implications a~e anticipated for small or 

micro-businesses as a result of the proposed rulemaking. The 

proposed rulemaking would result in no additional costs for 

small and micro-businesses. Small and micro-businesses 

would experience the same potential cost savings as industry. 

It is believed that the majority of businesses that own and 

PROPOSED RULES March 10,2006 31 TexReg 1603 
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 

30 TAC CHAPTER 35 AND TO THE STATE IMPLEMENTATION PLAN 

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

testimony regarding proposed revisions to 30 TAC Chapter 35, Emergency and Temporary Orders and 

Permits; Temporary Suspension or Amendment of Permit Conditions, under the requirements of Texas 

Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code 

of Federal Regulations §51.1 02, of the United States Environmental Protection Agency (EPA) regulations 

concerning state implementation plans (SIPs). 

The proposed rulemaking would implement requirements of House Bi112949, 79th Legislature, 2005. The 

proposed rulemaking would expand the list of actions that can be authorized by an emergency order to 

include the repair or replacement of roads, bridges, or other infrastructure improvements. Additionally, 

the proposed rulemaking would authorize an applicant to list loss of a critical transportation thoroughfare 

as a reason why the construction and emissions are essential. 

A public hearing on this proposal will be held in Austin on April 4, 2006, at 10:00 a.m. in Building B, 

Room 201A, 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. There will be no open discussion during the hearing; however, a staff 

member will be available to discuss the proposal 30 minutes before the hearing and will answer questions 

before and after the hearing. 

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

should contact Lola Brown, Office of Legal Services, at (512) 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 78711-3087 or faxed to 

(512) 239-4808. All comments should reference Rule Project Number 2005-070-035-LS. Comments must 

be received by 5:00p.m., April 10, 2006. Copies of the proposed rules can be obtained from the 

commission's Web site at http://www.tceq.state.tx.us/navlrules/propose_adopt.html. For further 

information, please contact Les Trobman, Environmental Law Division, at (512) 239-6056. 

Issued in Austin, Texas, on February 22, 2006. 

P.O. Box 13087 • Austin, Texas 787ll-3087 • 512/239-1000 • Internet address: www.tceq.statc.tx.us 
WRITTEN AND 

ORAL TESTIMONY 
Reference Number 

W-1 

W-2 

INDEX OF WRITTEN TESTIMONY 

Submitted by 

North Central Texas Council of Governments 

United States Environmental Protection Agency 
~4;:'1p!2()06 16:55_F~X. 

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LINITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

Mrs. Lola Brown 

MC 295, 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

April 10, 2006 

Texas Register Team, Office of Legal Services, 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 78711-3087 

RE: "Emergency and Temporary Orders and Permits; Temporary 

Suspension or Amendment of Permit Conditions; Subch. K -

Air Orders" 

Dear Mrs. Brown: 

Thank you for allowing us to comment on TCEQ's proposed 

rule revision to 30 Texas Administrative Code, Ch. 35 -

''Emergency and Temporary Orders and Permits; Temporary 

suspension or Amendment of Permit Conditions; Subchapter K -

Ai:c o:r·de:r·:::;." We understand you later plan to submit the 

proposed rule as a revision to the SIP. 

As background, on August 31, 1993, the Governor of Texas 

submitted an Emergency Orders rule to EPA as a State 

Implementation Plan (SIP) submittal. Subsequently, on December 

10, 1998, the Governor submitted additional SIP revisions 

relating to Emergency Orders (EO's) to EPA as a SIP submittal. 

The latter recodified and revised the state's Emergency Order 

provisions into 30 TAC Chapter 35. 

T.n response to both submittals, EPA sent TCEQ two letters 

dated, August 3, 1999, and September 27, 2000, that identified 

concerns relating to the 1993 and 1998 rule submittals 

(Attached are the August 3, 1999, letter to Mr. Herbert W. 

Williams, Jr., Director, Policy and Regulations Division Texas 

Natural Resource Conservation Commission and letter to Mr. 

John Steib, Di~ector, Permits Division, Texas Natural Resource 

Conservation Commission, dated on September 27, 2000). On 

September 12, 2002, we published a Federal Register action 

where we stated that we were taking no ~ction on either the 

August 31, 1993 and December 10, 1998 SIP submittals relating 

to EO's because of those concerns. (See 67 FR 58697 and 

Internet Addre55 (URL)- http;!/www.epa.gov/Aarlh1 r6/ 

Recycled/Recyclable - Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer) 

1 
attached TSD to that action). We stated that we would act on 

the provisions of the EO rule in a separate action after the 

TCEQ resolved our outstunding concerns to our satisfaction. 

According to the 2006 proposal, House Bill 2949, 79th 

Legislature, 2005, amended the Texas Water Code (TWC) I Section 

5.515 "Emergency Order Because of Cat<J.strophe," to allow the 

Commission to i~sue Emergency Orders for immediate action for 

the addition, replacement or repair of control facilities or 

control equipment or the repair or replacement of bridges, 

roads, or other infrastructure improvements for public works 

projects. It also authorl~es a~sociated emissions of air 

contaminants, whenever a catastrophe necessitates such 

construction and emissions otherwise would be precluded under 

the Texas Clean Air Act. As we understand, the purpose of the 

state's rulernaking is to make cha11ges to 30 TAC Subcho.pter K -

Air Orders to implement these amendments made to the TWC. 

We read Texas' proposal. to include additions to the 1993 

and 1998 Emergency Orders rules. The 2006 proposal, for 

example,· includes language to allow the Commission to 

authorize an EO to an applicant who lists loss of critical 

transportation as reason why construction and air emissions 

are essential. It also allows an applicant to receive an EO to 

const:cuct, rebuild and repair roads, bridges, and make 

infrastructure improvements. This broadens the scope of the 

previous rules that only allowed for the addition, 

replacement, or repair of facilities or control equipment. 

The preamble to the state's proposal also states that an 

issuance of an EO to a rock crusher or concrete batch plant is 

not prohibited under TWC 5.145 (Emergency order Concerning 

operation of rock crusher or concrete batch plant w/o a 

permit) I or subject a source to penalty under 7.052(b) because 

that facility is considered to be operating under a temporary 

permit under 5.501(a) (2) (a) (Emergency·or Temporary Order or 

Permiti Temporary Suspension or Amendment of Permit 

Condition). Thus, we read Section 5.501 of the TWC to give the 

Commission general authority to issue temporary or emergency 

orders, and by such orders the commission may issue a 

temporary permit or temporarily suspend or amend a permit 

condition. 

As we stated ear.lier, EPA has provided comments to the 

Cornmcission on the 1993 and 1998 EO rules. However, it does not 

appear: that the TCEQ has addressed those concerns. Therefore, 

we would like to reincorporate our concerns raised in the 

above-referenced 1999 and 2000 letters and TSD and ask the 

state to address those to our satisfaction. 

2 
We also provide the following additional comments to the 

2006 proposal: 

It appears the state has discretion to issue emergency 

orders to construct and emit air emissions under Chapter 35 

P.mer.gency Orders. More specifically, we understand the rule to 

allow the Commission to authorize a temporary permit or 

suspension of permit requirements without them being required 

to be submitted to EPA as a SIP revision. This amounts to what 

we refer to as "d'i rect.or discretion." Such provisions 

essentially allow for a variance from SIP requirements, which 

is not pe:r:1nitted under section llO(i) of the Clean Air Act. 

Section lOO(i) requires that any such "director discretion" 

determinations be submitted to EPA for approval as individual 

SIP revisions. 

In addition, our principal focus in reviewing a possible 

SIP revision request would be whether the proposed revisions 

to the Texas SIP wm;l d be in compliance with Section 110 ( 1} of 

the Clean Air Act (CAA), which states: 

".b:ach revision to an implementation plan 

submitted by a State under this Act shall 

be adopted by such State after reasonable 

notice and public hearing. The 

Administrator shall not approve a revision 

of a plan if the revfsion would interfere 

with any applicable requirement concerning 

~ttainment and reasonable further progress 

(as defined in section 171), or any other 

applicable requirement of this Act." 

We read the proposed revisions to allow a source to 

potentially circumvent preconstruction requl.r;ement.s, p~rmi t 

review procedures and authorize associated air emis ons that 

would otherwise be precluded under state and federal 

requirements. As stated above, Section 110(1) of the CAA 

indicates that EPA cannot approve a SIP revision if the 

revision would interfere with any applicable requirement 

concerning attainment and reasonable further progress (RFP), 

or any other applicable requirement of the CAA. Therefore, a 

submittal requesting approval of SIP revisions must therefore 

demonstrate that the any proposed SIP revisions do not 

interfere with the attainment or maintenance of the NAAQS, 

violate the Prevention of S:i.gnificant Deterioration 

increments, or any other applicable requirements under the 

3 
CAA, or in C'lny way adversely affect t.he existing aJ.r quality 

in Texas. 

Lastly, EPA would like to point out to you that we do 

recognize that under certain extraordinary circumstances, such 

as a natu:r·al disaster, the Agency may exercise its enforcement 

discretion. EPA will examine these types of situations on 

case-by-case basis. 

We appreciate your attention to these matters. If you 

have any questions, please call Daren Page of my staff at(214) 

665-7222. 

Sincerely yours, 

Chief vi~ Air Permits Section 

Enclosures 

4 
August 3, 1999 

Mr. HerbcLt W. Williums, Jr. 

Director 

Policy and Regulations Division 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 

Austin, TX 78711-3087 

RE: New Source Review (NSR) Recodification: Emission 

Reduction Credits, Emergency Orders, Standard Exemptions 

Dear Mr. Williams: 

we ar.e cont.:i.nuing to review the recodification of your 

New Source Review Regulations in 30 Texas AdministraLlve Code 

(TAC) 

Chapter 116, which you submitted to us on August 31, 1993. We 

have identified concerns ~hat we need to resolve before we can 

proceed with action to propose approval. We have concerns as 

outlined below with the Emission Reduction Credits (ERC) in 

Sections 116.170, 116.174, and 116.175; Emergency Orders in 

Subchapter E of Chapter 116 and Subchapter. K of Chapter 35 

(original submitted August 31, 1993, and revisions submitted 

December:· 10, 1998); and Standard Exemptions in Subchapter C of 

Chapter 116. We would like to discuss these concerns with you 

and your staff in Austin when we meet on August 4, 1999. 

Emission Reduction Credits 

Texas submitted Sections 116.170, 116.174, and 116.175 on 

August 31, 1993. These Sections replace Sections 116.3(c), 

(d), and (e). On September 27, 1995 (60 Federal Register (FR) 

49781), the Environmental Protection Agency (EPA) approved the 

introductory paragraph of Section 116.3(c) and Sections 

116.3(c) (1) and (3), now recodified as Sections 116.170, and 

116.170(1) ~nd (3), respectively. The remaining provisions 

which include Sections 116.170(2), 116.174, and 117.1'"/S 

(formerly 116.3(c) (2), (d), and (e)) were never submitted to 

EPA prior. to the recodification_ 

In a separate action, EPA plans to approve Sections. 

116.170 (introductory paragraph), and 116.170(1) and (3), with 

the provisions for per.mit.ting major sources and major 

modifications in nonattainment areas. We are reviewing 

Sections 116.170(2), 116.174, and 117.175 and have identified 

concerns. See Enclosure 1. 
2 

We have compared Lhe proposed regulation to our guidance 

in the area set forth in the Emissions Trading Policy 

Statement, December 4, 1986 (51 FR 433814-43860); 40 Code of 

Federal Regulations (CFR) part 51, subpart U; and 40 CFR part 

51, appendix S (Emission Offset Interpretative Ruling) . The 

enclosed chart sets forth the criteria which we believe are 

necessary for approval. We have identified how we believe the 

submitted rules may be consistent with these requirements, but 

would like to confirm or disaffirm interpretation at our 

meeting. You will note that we have not entered our 

interpretation in the table as we do not want to bias the 

discussion. Additionally, there are some components of the 

guidance which we c~nnot locate in the submitted rules, which 

we would like to discuss with you. Those areas are indicated 

with question marks. 

Finally, our Air Planning Section has identified 

additional concerns and needs to understand how these are 

consistent with the Emission Trading Policy and the Texas 

Natural Resource Conservation Commission (TNRCC) banking 

regulations. These concerns are as follows: 

• 'l'NRCC banking guidance allows potential for creation of 

credits (for units meeting State Best Available Control 

~echnology) that are not surplus. 

• TNRCC banking guidance allows the potential use of a 

·baseline that is above the 1990 inventory and above 

inventories used in subsequent attainment demonstrations 

creating credits that are not surplus. 

• The TNRCC banking program has the potential to retain 

credits as certified after they have been excluded from 

attainment demonstration emission inventories. 

• The TNRCC banking program has the potential to retain 

credits as certified after they have been credi. ted as a 

reduction in a Reasonable Further Progress plan. 

In addition, 40 CFR 51.165(a) (3), and appendix S of 40 

CFR part 51 require that offsets be consistent with the plan 

for achieving reasonable further progress in a nonattainment 

area. It is not clear that Sections 116.170, 116.174, and 

116.175, satisfy this requirement. During the August 4, 1999 

meeting, we request a discussion on how Sections 116.170, 

116_174, and 116.175 satisfy the Federal requirements in 40 

CFR 51.165(a) (3), and appendix S of 40 CFR part 51. 
3 

We f.u~ther understand that Texas is in the process of 

revising its r~gulations pertaining to ssion reduction 

credits and related provisions in Section 101.29 which pertain 

to 

emissions trading und banking as well as its regulations 

relating to its reasonably available control technology for 

nitrogen oxides contained in Chapter 117. We understand that 

our Air Planning Section has concerns with these proposed 

revisions. Because Chapter 117 and Sections 101.29, 116.170, 

116.174, c:md 116.175 are related to and interact with each 

other, and because of the concerns in Enclosure 1, we can only 

grant approval of Sections 116.170, 11.6.1.74, and 116.175 after 

you adequately address our concern~. 

We would like to explore with you the options that are 

available to address our concerns with the ERCs. Possible 

options include (but not limited to) the following: 

• That you withdraw Sections 116.1'70(2), 116.174, and 

116.175 from your August 31, 1993, State Implementation 

Plan (SIP) submittal. 

• We take no action on Sections 116.170(2), 116.174, and 

116.175, when we act on the remainder of the 1993 

recodification. 

• Texas makes appropriate revisions to Sections 116.170(2), 

116.174, and 116.175, which address our concerns and 

formally submits the revised regulations to EPA for 

action. 

We believe that Texas and EPA can administer and 

implement the provisions of the 1993 recodification without 

our approving Sections 116.170(2), 116.174, and 116.175. 

Texas has provisions elsewhere in Chapt.er 116 to require 

offsets which satisfy the offset provisions of section 

173(a) (l) of the Clean Air Act. See Sections 116.12 

( defi ni t.ion of ''major modification" - Table I and "offset 

ratio"}, 116.1SO(a) (3) and 116.151(3)). Furthermore, EPA has 

been able to administer and implement the existing SIP without 

these provisions. 

Standard Exemptions 

On December 29, 1998, Texas requested that EPA delay 

action on Chapter 116, Subchapter C, Sections 116.211, 

116.212, and 116.213 which relate to Standard Exemptions. 

Following EPA's response on January 20, 1999, and a conference 

call on 

March 26, 1999, you provided a more detailed explanation on 

the rea:sons for your request. on April 26, 1999, you 

requested that we delay action on Subchapter c because of 

several bills which 
4 

were before the legislature which, if passed into law, will 

affect the new source permitting st_ruct.ure of the Agency, 

including exemptions. You requested that we delay action on 

Subchapt~r C and retain Section 116.6 (approved August 13, 

1982). 

We request an update on the bills that were before the 

Texas legisla.lu.re. This includes whether the bills were 

enacted into law. If they were not enacted into law, it may 

be appropriate for us to act on Subchapter C, as submitted in 

1993. If the bills are now state law, we request information 

concerning your plans and schedQle for adopting revisions to 

its regulations. 

Emergency Order.s 

After careful review, we believe that we m~y be able to 

approve these revisions to the SIP under the assumption that 

the review process to issue an P.mergency Order is the same as 

or equivalent to the regular permit review process. However, 

we need clarification of the following issues: 

• Please show where your rule gives the authority to 

require technical review of such air quality analysis 

(modeling); best available conlrol t~chnology; lowest 

achievable emission rate; Class I impacts; and impacts on 

soils, vegetation, and visibility. 

• What would happen if an emergency order was .i.ssue<.l e:md 

later was found that some State or Federal requirement 

was not met? Does the issuance of the order shield or 

protect. the source from enforcement action, or would 

section 35.23 not allow such a shield? 

• Section 116.410 provides that a facility may apply to the 

commission for an Emergency Order under the Texas water 

Code (TWC), Section 5.515, and Chapter 35 of this 30 TAC 

Lo authorize immediate action. Does a source need to 

make two applications or is the reference to TWC Code 

5.515 meant to show the author.ity of Chapter 35? Does 

TWC 5.515 need to be submitted and approved into the SIP? 

Please provide your interpretation of how these two 

relate. 

• Please tell us which parts of Chapter 35 you think need 

to be approved into the SIP for air purposes. We think 

parts of Subchapters A, B, C, and K at a minimum need to 

be approved. If you do not agree, and/or believe we 

should approve other provisions of Chapter 35, we should 

discuss this at the meeting. 
5 

• Where is the term "de minimis increase" defined for. all 

criteria pollutants? Is there an ambient de minimis 

threshold for ozone or for its precursors (volatile 

organic compounds and oxides of nitrogen)? Where is the 

term "national ambient air quality sta.ndctnl::;" defined? 

• While we believe that the concern stated in our letter 

dated August 3, 1998, relative to the relationship of 

Chapter 35 to General Rule 101.11 roay be satisfied, we 

have not yet been able to confirm that position with the 

Enforcement Division which originally raised the issue. 

We hope t.o have a clear answer by the time that we meet. 

We look forward to a productive meeting. If you have any 

questions, please call Stanley M. Spruiell of my staff at 

(214) 665-7212. 

Enclosure 

bee: Jole Luehrs 

6PD-R:x7250 

Sincerely yours, 

Original signed by 

Jole C. Luehrs 

Chief 

Air Permits Section 
ENCLOSURE 1 

EMISSION REDUCTION CREDITS APPROVABILITY CHECKLIST 

Based upon Emissions Trading Policy Statement, December 4, 1986 {51 FR 433814-43860) 

Heets Guiciance State Requ.:..re~ent 3PA Co:mnents 

RegulaYes No N/A tion 

A. CREATI.NG EMISSION REDUCTION CREDITS 

1. All reductions must be surp~:ts 

a. Not req~.:.ired by current 

regulations in SIP 

b. Not relied upon for SIP 

planning purposes 

c. Not usec.by source for any 

other regulatory purpose 

d. i. Baseline in attainment 

area mus;:: be lower of actual or 

allO\'i'able emissions 

.. 

11. In attainment area in where 

PSD baseli~e had been triggered, 

credit may be granted consistent PSD 

baseline concentration 

? 7 e. L Baseline in nonattainmen:: 

area v;:...th approved attainnent 

derr.onstration must be consistent W/ 

assumptions used to develop area's 

attaini:\ent demonstration {actual or 

allowable) 

? ? .. 

1.1 . Baseline in nonatt.ainment 

area \.,rhi ch needs, but lacks attainment 

dernor.stration, must produce air 

quality benefit as follows: 

a. Use lO'IIESt of actual, 

SIP-allo~·able, or RAC':'-allo•,;able as 

baseline 
l1eets Guidance State Recy.lirernen t ~P~. Comments 

RegulaYes No N/A tion 

? b. l•leet ambient eq· .. Iivalent 

test described in B-2 of this 

checklist 

c Produce suost~ntial net 

reduction in actual err.issions 

? ? 2. Alternatiye emissioE limits rn•.Jst 

be enforceable 

a. Either by SIP revision, EPA 

app~oved generic bubble, or new source 

preco~struction permit 

b. Bubble iP-cOr!forated in 

enforceable compliance instrument with 

recordkeeping based over averaging 

period over which the bubble operates 

3. All reductions must be pe~~~ent. 

Generally assured ny enforceable 

changes to permit or applicable 

regulations 

4. All reductions must be 

quantifiable, both in terms o::: 

est.:.mating amounts of reduction and in 

character izir.g reduction for fu::ure 

use. Hay use either emission factors, 

stack tests, monitored values, or 

other reasonable measurement 

practices. Generally use same method 

to quantify emission levels both 

before and after reduction. 

B. USING EMISSIOK P~DUCTION CREDITS 

? 7 1. Involve same pollutant 

? ? 2. Satisfy ambient tests which 

demonstrate that a:cea ;,zill meet NAAQS, 

PSD increment, and Class I protection, 

including visibility 
Meets Guidance 

Yes No N/A 

State 

Regulation 

? 

? 

Requirement 

3. Not increase enissions of 

hazardous or toxic air pollutant. 

Bubble may not be used to meet 

applicable requirenents of NESHAPS 

promulgated under §112 of the Act. 

4. Existing source credits cap~ot be 

used to meet applicable tecr~ologybased requirements for ne~11 sources. 

Bubble may not be used to meet 

applicable requirenents of NSPS 

promulgated under §111 of t~e Act, as 

•,;ell as technology based re~iremen:::s 

in permits issueu under title I, parts 

C and D of the i'l.ct {BACT anC. LAER) . 

5. States may approve bubbles in 

:primary nonattair.ment areas \.rhich 

require, but lack, approved attairunent 

demonstrations if trades meet 

req4irements designed :::o produce ne::: 

environmental berrefit and State 

provides assurances in section II.A.l 

of the ETPS. 

6. Sources need not be subject to 

binding compliance schedules based 

upo~ current SIP requirements as 

prerequisite for applying for bubble. 

However, if subject to binding SIPapproved co:nplian.ce schedule, such 

schedule remains fully enforceable 

until bubble affecting schedule is 

approved by EPA. 

7. States may extend certain 

compliance schedules in attainmen~ 

areas p=ovided EPA has approved 

extension provisions in generic rule. 

EPA C.omment::s 
Neets Guidance SL:ate 

r----.r---~-----1 RegulaYes No N/A tion 

? 

? ? 

? 

? 

? 

Requirement 

8. States may approve bubbles 

involvi~g open dust sources or 

particulate emissions based upon 

modeling and/or monitoring 

demonstrations, if so~rces agreed t~ 

post-approval monitoring to deternine 

that predicted air quality bene=its 

have been realized. 

9. Trades involving lead allm,•ed if 

assurances a~e made of noninterference \.,ri th 

attainment/mai~tenance of NA-~QS 

iC. Trades involving ERCs from mobile 

source measures allowed so long as 

reductions are demonstrated to be 

surplus, permanent, quantifiable, a~d 

enforceable. E-PA must be approved ~y 

case-by-case SIP revision. 

11. In':.erstate trades may be appro-..red 

if shown to meet a:l other 

requirements and meet the s~stantive 

requirements of the most stringent 

state. The EPA must be approved by 

case-by-case SIP revision. 

12. Bubbles must not impede 

enforcement. Bubbles cannot beco:ne •· 

shield against e~forcement actions for 

sources \.,rhich have failed to take 

necessary steps required co meet 

control obligations on time. 

EPA Comments 
Mr. John Steib 

Director 

Permits Division 

September 27, 2000 

Texas Natural Resource Conservation Commis~icm 

P.O. Box 13087 

Austin, TX 78711-3087 

RE: New Source Review Recndiricatinn: Emission Reduction Credits, Emergency Orders, Permits 

by Rule (formerly Permit Exemptions) 

Dear Mr. Steib: 

Thank you for extending the opportunity to meet with you and your staff on August 15, 2000. 

During the meeting, we discussed our approval of revisions to 30 Texas Administrative Code 

Chapler 116 - Control of Air Pollution by Permits for New Construction and Modifications. This 

includes revisions submitted to the Environmental Protection Agency (EPA) on 

August 31, 1993 (1993 submittal) and July 22, 1998 (1998 submittal). During this meeting, we 

discussed our plan for approving these revisions into the Texas State Implementation Plan (SIP) and 

identified the areas where we continue to have concerns. 

We have reviewed tpe 1993 submittal and have identified the provisions that we believe are 

approvable. Because Texas revised and recodified its existing Chapter 116 in 1993, we consider the 

1993 revisions to be the base regulation upon which future revisions can be approved. 

The 1998 subminal includes the adoption of provisions to implement 112(g) of the Federal· 

Clean Air Act (Act)_ lt also includes changes throughout Chapter 116 the Texas Natural Resource 

Conservation Commission (TNRCC) made under its regulatory reform to simplify and clarify its rules. 

The 1998 submittal also includes provjsions that TNRCC adopteu after the 1993 submittal bul which 

are currently undergoing review by EPA. Consequently, we cannot approve all provisions ofthe 1998 

submittal until we complete our review. Accordingly, on 

August 15, 2000, we stated our desire to approve the 1998 submittal to the extent that it is equivalent 

to the 1993 submittal. 
2 

Approving portions of the 1998 submittal now rather than when we complete review of an 

revisions made after 1993 is desirable for the following reasons_ Approval of the provisions us they 

exist in the 1998 submittal will bling the federally approved SIP for Chapler 116 more closely in line 

with the Chapter as it currently exists in the State's program. Our approval of these revisions will also 

facilitate future revisions that Texas may make to Chapter 116, by enabling us to approve them into the 

current organizational structure. This approval also better serves the State, the public, and the regulated 

community by enabling the approved SIP to more closely match the rules that Texas currently 

implements. 

Consistent with our discussions with you and your staff on August 15, 2000, we will take no 

action on provisions of 

Chapter 116 which ure not equivalent to the 1993 submittal. We will aul nn these provisions of 

Chapter 116 in separate Federal Register actions after we complete our review ofthese provisions to 

detennine whether they arc approvable. We have included Enclosure 1 which identifies the provisions 

of Chapter 116 Lhat we plan to approve_ lf there are any changes to otlr plans, we will advise you of 

these changes. 

We also discussed items of concern that we have identified with certain provisions of the 1993 

and 1998 submittals. We initially identified these concerns in a letter dated 

August 3, 1999, to Herberl W. Williams, Jr. and discussed them with TNRCC's Regulation 

Development and Permitting staffs on August 4, 1999. In August 1999, we identified the following 

concerns: 

• Emlssion Reduction Credits in Sections 116.170, 116.174, and 116.175; 

• Emergency Orders in Subchapter E of Chapter 116 and Subchapter K of ChapLer 35 (original 

submitted August 31, 1993, and revisions submitted December 10, 1998); and 

• Standard Exemptions in Subchapter C of Chapter 116. 

The 1998 submittal also includes Subchapter C -Hazardous Air Pollutants: Regulations 

Governing Constructed or Reconstructed Major Sources (Federal Clean Air Act, 

section 112(g), 40 Code of Federal Regulations (CFR) part 63). The program for reviewing and 

permitting constructed and reconstructed major sources of hazardous air pollutants (HAP) is regulated 

under section 112 ofthe Act and under 40 CFR part 63, subpart B. Under these provisions, States 

establish case-by-case determinations of maximum achievable control technology for new 
3 

and reconstmcted major sources of HAPs. The process for these provisions is can·ied out separately 

from the SIP activities. Consequently, we arc taking no action on Subchapter C of 

Chapter 116, as submitted with the 1998 submittal. 

The remainder of this letter discusses our concerns with the above. 

Emission Reduction Credits 

Sections 116.170, 116.174, and 116.175 replace 

Sections 116.3(c), (d), and (e). On July 17, 2000 (65 Federal Register (FR) 43986), we approved 

the introductory paragraph of Section 116.170 and Sections 116.170(1) and (3). The remaining 

provisions (Sections 116.170(2), 116.174, and 117.175 (formerly 116.3(c)(2), (d), and (e))) were 

never submitted to EPA prior to the 1993 submittal. 

ln our review of Sections 116.170(2), 116.174, and 117.175, we have identified concerns. 

Sec Enclosure 2. We have compared the proposed regulation tu our guidance in the area set forih in 

the Emissions Trading Policy Statement, December 4, 19&6 

(51 FR 433814-43860); 40 Code of Federal Regulations (CFR) 

part 51, subparl U; and 40 CFR part 51, appendix S (Emission Offset Tnterpretati ve RuJing). The 

enclosed chart sets forth the criteria which we believe are necessary for approval. We have idenlified 

how we believe the submitted rules may be consistent with these requirements, hut would like to 

confirm or disaffirm your interpretation. Additionally, there are some components of the guidance 

which we cannot locate in the submitted rules. Those areas are indicated with question marks. 

We previously identified concerns. We now have resolved these issues to be consistent with 

the Emission Trading Policy and TNRCC bankjng regulations. 

In addition, 40 CFR 51.165(a)(3), and appendix S of 40 CFR part 51 require that offsets be 

consistent with the plan for 

achieving reasonable further progress in a nonattainment area. It is not clear that Sections l16.170, 

116.174, and 116.175, satisfy this requirement. 

We further understand that Texas is in the process of revising its regulations pertaining to 

emission reduction credits and related provisions in Section 101.29 which pertain to 
4 

emissions trading and banking as well as its regulations relating to its reasonably available control 

technology for nitrogen oxides contained in Chapter 117. We have resolved the eoncems with these 

proposed revisions. Because Chapter 117 and 

Sections 101.29, 116.170, 116.174. and 116.175 me related to and interact with each other, and 

because of the concems in Enclosure 1, we can only grant approval or Sections 116.170, 116.174, and 

116.175 after you adequately address our concerns. 

Consistent with out· August 15, 2000, meeting, we plan to take no actim1 on Sections 

116.170(2), 116.174, and 116.175, when we act on the 1993 and 1998 submittals of Chapter 116. 

We will take appropriate action on these Sections in a separate FRAction after you address the 

eonccms identified herein. 

We believe th~t Texas and EPA can administer and implement the provisions of the 1993 

recodification without our approving Sections 116.170(2), 116.174, and 116.175. Texas has 

provisions elsewhere in Chapter 116 to require offsets which satlsfy the offset provisions of section 

173(a)(l) of the Cl.ean Air Act. See Sections 116.12 (definition of "m~jor modification''- Table I and 

"offset ratio"), ll6.150(a)(3) and 116.151(3)). Furthermore, EPA has been able to administer and 

implement the existing SIP withotll these provisions. 

Permit Exemptions 

On December 29, 1998, TNRCC requested that EPA delay action on Chapter 116, 

Subchapter C, Sections 116.211, 116.212, and 116.213 which relate to Standard Exemptions. 

Following EPA's response on January 20, 1999, and a conference call on 

March 26, 1999, you provided a more detailed explanation on the reasons for your request. On April 

26, 1999, TNRCC requested that we delay action on Subchapter C because of several bills which 

were before the legislature which, if passed into law, will affect the new source permitting structure of 

the Agency, including exemptions. You requested that we delay action on Subchapter C and retain 

Section 116.6 (approved August 13, 1982, 47 FR 35193). 

We understand that these bills were enacted into law and that you hnve now adopted the 

changes to your former permit exemptions by converting them to permits by role. The permits by 

rule are in Chapter 106. We request that you confirm our understanding of the status of the permits by 

rule. We further request that you audress whether you plan to submit Chapter 106, or any portions 

thereof, the reasons why you do not consider any portions you do not submit necessary for the SIP, 

and when you anticipate submittal ofthese provisions. 
5 

Consiste!lt with our August 15, 2000, meeting, we plan to take no action on Subchapter C of 

Chapter 116 (1993 submittal) when we act on the 1993 and 1998 submittals of Chapter 116. We will 

take appropriate action on these provisions after you addre~s the concerns identified herein. Prior to 

any future action on any Fumre submittnl of your regulations concerning permits by rule, we will retain 

Section 116.6 (approved 

August 13, 1982) in the Texas SIP. 

Emergency Orders 

After careful review, we believe that we may be able to approve these revisions to the SIP 

under the assumption .that the review process to issue an Emergency Order is the same as or equiv,llent 

to the regular permit review process. However, we need clarification of the following issues: 

• Please show where your 11.1le gives the authority to require technical review of such air quality 

analysis (modeling); best available control technology; lowest achievable emission rate; Class T 

·impacts; and impacts on soils, vegetation, and visibility. 

• What would happen if an emergency on.ler was issued and later was found that some Stale or 

Federal requirement was not met? Does the issuance of the order shield or protect the soul'ce 

from enforcement action, or would section 35.23 not allow such a shield? 

• Section 116.410 provides that a facility may apply to TNRCC for an Emergency Order under 

the Texas Water Code (TWC), Section 5.515, and Chapter 35 of this 30 TAC to authorize 

immediate action. Does a source need to make two applications or is the reference to TWC 

Code 5.515 meant to show the authority of Chapter 35? Does 1WC 5.515 need to be 

submitlcd and approved inlo lhe SIP? Please provide your inlerpretation of how these two 

relate. 

• Please tell us which parts of Chapter 35 you think need to be approved into the SIP for air 

purpose~. We think parts of Subchapters A, B, C, and Kat a minimum need to be 

approved. If you do not agree, and/or believe we should approve other provisions of Chapter 

35, we should discuss this at the meeting. 

• Where is the term "de minimis increase" defined for all criteria p<)llulants? 15 there an ambienl 

de minimis LhreshoJd for ozone or for its precursors (volatile organic compounds and oxides of 

nitrogen)? Where is the term "national ambient air quality standards" defined? 
6 

• While we believe that the concern stated in our letter dated August 3, 1998, relative to the 

relationship of Chapter 35 Lo General Rule l 01.11 may be satisfied, we have not yet been able 

Lo confinn Lhat position with the Enforcement Division which originally raised the issue. We 

hope to have a clear answer by the time that we meet. 

Consistent with our August 15, 2000, meeting, we plan tC> take no action on Subchapter E of 

Chapter 116, when we act on the 1993 and 1998 submittals of Chapter 116. We will take appropriate 

action on these provisions after you address the concems identified herein. 

W c appreciate your allention to these matters. If you have any questions, please call 

Stanley M. SpruieJI of my staff at 

(214) 665-7212. 

Enclosures 

bee: J ole Luehrs 

6PD-R:x7250 

Sincerely yours, 

Original signed by 

Jole C. Luehrs 

Chief 

Air Permits Section 
ENCLOSURE! 

PROVISIONS OF 30 TAC THAT 'WE ARE APPROVING INTO TEXAS' SIP. 

New SIP Cilation Fom1er SIP Citation Dale adopted Title Explanation 

by State 

Chapter 101- General Rules 

Section lOl.l Same 08/16/93 Definitions Approved revised definition 

of "nonattainment area" and 

reinstaled definilion of ''de 

minimis impacl" 

Chapter 116- Conlrol of Air Pollution by Permits for Ne\'V Construction or Modification. 

Subchapter A- Definitions 

------------------------ ------------------------- -------------- ----~------------------------- ------------------------------ Section Ll6.l0 Sections lOLl, 06/17/98 General Definitions Subsections (1)-(4), (S)(B), 

116.3(a)(l)(B), and (6), (8)-(to), and (14-) NOT 

116.14(a)(7) IN SIP ------------------------ ------------------------- --------------- ------------------------------ ------------------------------ Seclion 116.11 Section 116.l4(a)(J)(6) 06/17/98 Compliance History 

Defjnitions 

Subchapter B- New Source Revie\v Permits 

Division 1 - Pem1it Application -------------------------------------------------- -------------- ------------------------------- ------------------------------ Section 116.ll0 Sections 116.l(a)-(c), 06/L 7/98 Applicability Subsection (a)(2), (a)(3), and 

ll6.2, and 116.3(b) (c) NOT IN SIP 

------------------------- ------------------------- --------------- ---------------------~-------- ------------------------------ Section 116.1ll Section ll6.3(a) 06/17/98 General Application Subsection (2)(F) and (2)(K) 

NOT IJ\f SIP 

------------------------- ------------------------- -------------- ------------------------------ ------------------------------ Section 116.112 Sections 116.3(a)(l)(B) 06/17/98 Djstance Limitatjons 

and ll6.3(a)(l3) 
New SIP Citation Fonner SIP Ciration Dale adopted Tille Explanation 

by State 

------------------------ -------------------------· -------------- ------------------------------ ------------------------------ Section 116.1l4 Sections 116.3(f). 116.5, 06/t 7/98 Application Review schedule 

ll6.10(a)(l), and 

116.10(e) ------------------------ ------------------------- -------------- ------------------------------ -----------------------~------

Section 116.115 Se-ction 116.4 06/17/98 Special Provisions Subse\:tions (b), (c)(2)(A)(i), 

and (c)(2)(B)(ii)(l) NOT lN 

SIP 

------------------------ ------------------------- -------------- ------------------------------ ------------------------------ Section 116.116 Section 116.5 06/17/98 ~hanges to Facilities Subsections {b){3) and (d) 

NOT IN SIP 

Division 2 -Compliance History 

------------------------ ------------------------- -------------- ------------------------------ ------------------------------ Section 116.120 Seclion 116.14{b) 06/17/98 Applicability 

------------------------ ------------------------- -------------- ------------------------------ -----------~---------------~--

Section ll6.121 Section 116.14(c) 06/17/98 Ex.emp1ions 

------------------------ ------------------------- ------------- ------------------------------ ------------------------------ Section 116.122 Seclion 116.14(d) 06/17/98 Contents of Cornpllance 

History ------------------------ ------------------------- -------------- ------------------------------ ------------------------------ Section 116.123 Section 116.14(e) 06/17/98 Effective Dates ------------------------ -------~---------------~- -------------- ------------------------------ ------------------------------ Seclion 116.124 Section 116.14(f) 06/17/98 Public Notjce of CompJiance 

History 

-------~---------------- ------------------------- ------------- ------------------------------ ------------------------------ Section 116.125 Section 116 .14(g) 06/17/98 Preservalion of Existjng 

Rights and Procedures 

------------------------- ------------------------- -------------- ------------------------------ ------------------------------ Section 116.126 Section 116.14(h) 06/17/98 Voidance of Permit 

Applications 

Division 3 -Public Notice 

-~::~~~-;16~~;~--------l-~~~~~-;~6.~~(~)~;;----J-~~~~;~~;-----ll~~~~~~~~~~~----------------- ------------------------------

Subsection (c) NOT IN SIP 
I\ ew SIP Ci La lion Former SIP Cilation Dale adopted Title Explanation 

by State ------------------------ ------------------------- ------------- ------------------------------ ------------------------------ Section 116.131 Section 116.10(a)(l) and 06/17/98 Public Notification 

(2) Requirements ------------------------ ------------------------- ------------- ------------------------------ ------------------------------ Section 116.132 Section 116.10(a)(J) and 06/17/98 PubJic Norice Format Subsections (c) and (d) NOT 

(4) IN SIP ------------------------ ------------------------- -------------- ------------------------------- -------------------~----------

Section 116.133 Did noL exist 06/17/98 Sign Posting Requirements Subsections (f) and (g) NOT 

IN SIP ------------------------- ------------------------- --------------- ------------------------------ ------------------------------ Section 116.134 Section l16.10(a)(5) 06/17/98 Notification of Affected 

Agencies ------------------------ ------------------------- -------------- -~---------------------------- ------------------------------ Section 116.136 Section l16.10(b) 08/16/93 Public Comment Procedures ------------------------ ------------------------- -------------- -------------~---------------- ------------------------------ Section 116.137 Section ll6.10(c) 08/16/93 ='l"olificalion of Final Action 

by the Commission 

Division 4- Permil Fees ~----------------------- -------------------------- -------------- ------------------------------ ------------------------------ Section 116.140 Seclion 116.ll(a) and 06/17/98 AppJicabilily 

(e) 

r------------------------ ------------------------- -------------- ------------------------------ ------------------------------ Section 116.141 Section 116.ll(b) 06/17/98 Determinalion ofFees Subsections (a). (c)-(e) 

previously approved. Today's 

action approves Subsection 

(b) and changes to Section in 

L998 submittal. ------------------------- ------------------------- -------------- ------------------------------- ------------------------------ Section 116.143 Section 116.11(c)-(f) 06/17/98 Paymenl of Fees 
New SIP Citation Fom1er SIP Citation Date adopted T1tle Explanation 

by State 

Division 5 - Nonattainment Review --------------~--------- -------------------------- -------------- ------------------------------ ---------------------~--------

Section 116.150 Section 116.150 02124/99 New Major Source or Major Previously approved. No 

Modification in Ozone changes in 1998 submittal. 

Nonattainmenl Area Today's action approves 

------------------------ ------------------------- ------------- ------------------------------ Section 116.151 Section 116.151 03/18/98 New Major Source or Major incorporation into Divlsi on 5 

Modification in 

Nonattainmenl Area Other 

than Ozone 

Division 6 - Prevention of Significant Deterioration Review 

------------------------ ------------------------- -------------- ------------------------~----- -----------------~------------

Section 116.160 Secrion 116.160 06/17/98 Prevention of Significant Previously approved. 

Deteriora1ion Requirements Today's action approves 

------------------------ ------------------------- -------------- ----------------~------------- changes in 1998 submittal. 

Section 116.161 Section 116.161 06/17/98 Sources Located in a 

ALtainmenl Area with a 

Greater than de Minimis 

Impact ------------------------ ------------------------- --------------- --------------------~--------- ------------------------------ Section 116.162 Section 116.162 08/16/93 Evaluation of Air Quality Previous1y appro\led. No 

Impacts changes in 07/22/98 submittal. 

------------------------ -------------------------- --------------- ------------------------------ Today's action approves 

Section 116.163 Section 116.163 08/16/93 Prevention of Significant incorporation into Division 6 

Deterioration Permits Fee,s 

Division 7- Emission Reduction: Offsets 

Section 116.170 Seclion 116.170 06/17/98 Applicability of Reduction Previously approved. 

Credits Today' s action approves 

changes in 1998 submittal. 

Subsection (2) NOT IN SIP 
ENCLOSURE2 

EfviTSSION REDUCTION CREDITS APPROV.L\BILITY CHECKUST 

Based upon Emissions Trading Policy Stalement, December 4, 1986 (51 FR 433814-43860) 

Meets Guidance State Requirement EPA Comments 

Yes No N/A 

Regula-tion 

A CREATING EMISSION REDUCTION CREDITS 

1. All reductions must be surplus 

a. Not Jequired by current regulations in SIP 

b. Not relied upon for SIP planning purposes 

c. Not used by source for any other regui:Jcory 

purpose 

d. i. Baseline in attainment area must be lower of 

actu81 or allowable emissions 

H. In auainment area in where PSD ba~eline h8d 

been triggered, credit may be granted consistenl PSD 

baseline concentral ion 

? ? e. i. Baseline in nonaltainment area with approved 

auainmenc demonstralion must be coosistent w/ 

assumptions used to develop area's attainment 

demonstration (actual or allowabJe) 

? ? ii. Baseline in nonatta.inment area which needs, but 

lacks auainment demonstration, musl produce alr 

qualiry benefit as follows: 

a. Use lowest of actual, SIP-aHowable, or RACTallowable a~ baseline 

? b. Meet ambienl equi·valent lest described in B-2 

of this checklist 
Meels Guidance Stare Requirement EPA Comments 

Yes No N/A 

Regula-tion 

c Produce substantial net reduction in actual 

emissions 

? ? 2. Alternative emission limils must be enforceable 

a. Either by SIP revision, EPA approved generic 

bubble, or new wurce prec.onstruction permit 

b. Bubble incorporated in enforceable compliance 

instrumenl with recordkeeping based over averaging 

period over which the bubble operates 

'3. All reductions musl be permanent. Generally assured 

by enforceable changes ro permit or applicable 

regulations 

4. All reductions must be quantifiable, both in 1erms of 

estimating amounts of reduction and in charn.clerizing 

reduction for future use. May use eilher emission 

factors, stack tests, monilored values, or other reasonable 

measurement prac1ices. Generally use same method lo 

quantify emission levels both before and after reduction. 

B. USING EMISSION REDUCTION CREDITS 

"! ? !. Involve same pollutant 

? ? 2. Satisfy ambient tests which demonstrate that area will 

meet NAAQS, PSD increment, and Class I protection, 

including lt'isibility 

3. NoL increase emissions of hazardous or to:<ic air 

pollut..anl. :Bubble may not be used to meet applicable 

requirements ofNESHAPS promulgated under§ l J 2 of 

lheAct. 
Meets Guidance State Requirement EPA Comments 

Yes No NJA 

Regula-tion 

4. Exisring source credits canno1 be used to meet 

applicable technology-based requirements for new· 

source~. Bubble may not be used Lo meet applicable 

requirements of NSPS promulgaLed under §111 of the 

Act, as wdl as technology based requirements in permits 

issued under title I, parts C and D of the Act (BACT and 

LAER). 

5. States may approve bubbles in primary 

nonartainment areas which require, but lack, approved 

attainment demonsuations if trades meet requirement~ 

designed to produce net environmental benefit and Slate 

provides assurances in section II.A.l of the ETPS. 

? 6. Sources need not be subject to binding compli:mce 

schedules based upon current SIP requirements as 

prerequisite for applying for bubble. However. if subject 

to binding SIP-approved c_ompliance schedule, such 

schedule remains (ully enforceable until bu!Jble 

affecting schedule is approved by EPA. 

'! 1. States may extend certain compliance schedules in 

attainment areas provided EPA has apprmed extension 

provisions in generic rule. 

? 8. SLates may approve bubbles involving open dust 

sources or panicula.Le emissions based upon modeling 

and/or monitoring demonslralions, if sources agreed to 

post-approval monitoring to determine that predicted air 

qualily benefits have been realized. 

? ? 9. Trades jn\'olving lead allowed ;r assurances are made 

of non-interference wilh auainmenr/maintenance of 

NMQS 
Meets Guidance State Requirement EPA Comments 

Yes No N/A 

Regula-tion 

'! 10. Trades in\•olving ERCs (rom mobile source 

measures allowed so long as reductions are 

demonsLraLed lobe surplus, permanent, quantifiable, and 

enforceable. EPA musl be approved by case-by-case SIP 

revision. 

? 11. In1erstale lrades may be apprm·ed if shown 10 meet 

all other requirements and meet the substantive 

requirements oflhe most stringent State. The EPA musl 

be approved by case-b}•-case SIP revision. 

? 12. Bubbles mu sl not impede enforcement Bubbles 

c.annot become shield again~l enfon::ement actions for 

sources which have failed 10 l.ake necessary sleps 

required to meel conlrol obligations on lime. 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

No oral testimony was received pertaining to this proposal. 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM 

To: 

Thru: 

Commissioners 

LaDonna Castafiuela, Chief Clerk 

Glenn Shankle, Executive Director 

Date: June 9, 2006 

From: ~ Stephanie Bergeron Perdue, Deputy Director 

"k::, 'II , Office of Legal Services 

Docket No.: 2005-2069-RUL 

Subject: Commission Approval for Rulemaking Adoption 

Chapter 35, Emergency and Temporary Orders and Permits; 

Temporary Suspension or Amendment of Permit Conditions 

Rule Project No. 2005-070-035-LS 

Reasons for the rule package: 

House Bill2949, 79th Legislature, 2005, Regular Session, amended Texas Water Code (TWC), 

§5.515, to allow for authorization of emergency orders to repair or replace roads, bridges, or 

other infrastructure improvements involving public works projects destroyed during a catastrophe. 

Additionally, the adopted rules will authorize an applicant to list loss of a critical transportation 

thoroughfare as a reason why the construction and emissions are essential. The TWC previously 

only authorized emergency orders to allow repair of a facility or control equipment. Amended 

TWC, §5.515, also adds language regarding the contents of the application for an emergency 

order. These statutory changes need to be reflected in Chapter 35, Subchapter K to ensure 

consistency in the rules with the statute and to provide clear procedures for applications for the 

new types of applications. Because the statute is self-implementing, an emergency order could 

have been issued for one of the above-described instances prior to the adoption of the rules. 

• Under what authority are we adopting these changes? 

These amendments are adopted under TWC, §5.102, which establishes the commission's general 

authority necessary to carry out its jurisdiction; §5 .1 03, which establishes the commission's 

general authority to adopt rules to carry out its duties under the TWC and the other laws of the 

state; §5.105, which establishes the commission's authority to set policy by rule; §5.501, which 

establishes the commission's authority to issue emergency orders; §5.502, which sets forth 

requirements for emergency order applications; §5.504, which establishes the commission's 

authority to hold a hearing on the issuance of an emergency order; and §5.515, which allows the 

commission to issue emergency orders for immediate action for the addition, replacement, or 

repair of facilities or control equipment, or the repair or replacement of roads, bridges, or other 

infrastructure, and authorizing associated emissions of air contaminants, whenever a catastrophe 

necessitates such construction and emissions otherwise precluded under the Texas Clean Air Act 

(TCAA). In addition, these rules are adopted under Texas Health and Safety Code (THSC), 

§382.011, which gives the commission the authority to control the quality of the state's air; 
Commissioners 

Page 2 

June 9, 2006 

Re: Docket No. 2005-2069-RUL 

§382.012, which authorizes the commission to develop a state air control plan; §382.017, which 

authorizes the commission to adopt rules implementing the TCAA; §382.024 and §382.025, which 

establish the authority of the commission to issue air orders and what factors the commission must 

consider when issuing such orders; and §382.063, which authorizes the commission to issue 

emergency orders because of catastrophe. 

• Is this rulemaking required by federal rule or state statute? Which ones? 

The rulemaking is not required by federal rule or state statute. However, the adopted amendments 

would reflect the changes made to TWC, §5.515, made by the Texas Legislature during its 79th 

legislative session. 

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

House Bill 2949 does not specify a deadline by which the rules must be proposed, adopted, or 

effective. 

• What issue(s) or problem(s) are we trying to solve? 

This rulemaking would authorize emergency orders that previously would not have been allowed 

under commission rules. Allowing another category of emergency orders would permit industry 

to respond more quickly to catastrophes that affect major infrastructure. 

• Why is it important that we do this rule package? 

Statutory changes to TWC, §5.515, need to be reflected in Chapter 35, Subchapter K. 

• Other important background or historical information. 

None. 

Scope of the rulemaking: 

The adopted rules add language authorizing emergency orders to include repair or replacement of 

roads, bridges, or other infrastructure improvements in the list of actions that can be authorized 

by an emergency order. Additionally, the adopted rules authorize an applicant to list loss of a 

critical transportation thoroughfare as a reason why the construction and emissions are essential. 

These amendments reflect changes made to TWC, §5.515, made by House Bill2949. 

• Changes required by federal rule: 

None. 
Commissioners 

Page 3 

June 9, 2006 

Re: Docket No. 2005-2069-RUL 

• Changes required by state statute: 

The statute itself does not specifically require changes to the rules, but failure to reflect the 

changes made to TWC, §5.515, would cause inconsistency between the TWC and the commission 

rules. 

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

None. 

Impact on the regulated community: 

• Who will be affected? 

Primarily owners and operators of rock crushers and concrete batch plants. The rules would 

provide for a specific type of authorization and would not present any compliance issues. 

• Does it create a group of affected persons who were not affected previously? Bow? 

The rulemaking would allow owners and operators of rock crushers and concrete batch plants to 

respond more quickly to catastrophes that affect critical transportation thoroughfares by allowing 

the commission to issue emergency orders in such circumstances. 

• Will there be a fiscal impact? If so, e~te. 

No fiscal impact is anticipated. 

Impact on the public: 

• Who will be affected? 

The amendments would not affect a specific group. Allowing another category of emergency 

orders would permit industry to respond more quickly to catastrophes that affect roads, bridges, 

and other infrastructure improvements. This would generally benefit businesses and the general 

public by allowing commerce and travel to resume more quickly than would otherwise occur. 

• Does it create a group of affected persons who were not affected previously? How? 

No. 

• Will there be a fiscal impact? If so, estimate. 

No fiscal impact is anticipated. 
Commissioners 

Page 4 

June 9, 2006 

Re: Docket No. 2005-2069-RUL 

Impact on agency programs: 

The Air Permits Division will continue to process applications for emergency orders. The impact 

is expected to be minimal. 

Stakeholder meetings: 

• Have any stakeholder meetings been held? 

No. 

• With whom? 

N/A 

• What were the general sentiments? 

N/A 

• Were any changes made in response to stakeholder concerns? 

N/A 

Policy issues: 

• What policy issues are affected? 

None. 

• Are any policies that are not currently based on rule being made into a rule? 

No. 

• What are the consequences if this rulemaking is not approved to go forward? 

Inconsistency between the commission rules and the amended TWC, §5.515. 

• Are there alternatives? 

No. 

Potentially controversial matters: 

This rulemaking is anticipated to be noncontroversial. 
Commissioners 

Page 5 

June 9, 2006 

Re: Docket No. 2005-2069-RUL 

Key points in adoption rulemaking schedule: 

• Texas Register proposal publication date: March 10, 2006 

• Anticipated effective date: July 20, 2006 

• Six-month Texas Register filing deadline: September 11, 2006 

Public comment: 

• No oral comments were received. Written comments were submitted by North Central Texas 

Council of Governments (NCTCOG) and the United States Environmental Protection Agency 

(EPA). . 

• NCTCOG supported the amendments. 

• EPA raised certain concerns regarding the emergency order rules in general, and the proposed 

amendments specifically, within the context of the rule amendments being submitted to the EPA 

as a state implementation plan (SIP) revision. 

• Drawing from certain language in the preamble, EPA expressed concern that the issuance 

of an emergency order amounts to the issuance of a permit without having to undergo 

permit review procedures or be subject to federal SIP submission requirements. 

• EPA also sought clarification concerning the statutory basis for the submission of 

emergency order applications and for conducting technical review activities on emergency 

order applications. 

• EPA questioned the regulatory ability to enforce upon an entity that was found to violate 

state or federal requirements after order issuance. 

• EPA also sought clarification on what portions of the emergency order rule provisions 

need to be submitted as a revision to the SIP. 

• EPA sought clarification on how de minimis thresholds are defmed within the emergency 

order program, with a particular interest on contaminants subject to national ambient air 

quality standards (NAAQS). 

• Finally, EPA commented that under certain extraordinary circumstances, the state may 

exercise enforcement discretion. 

Significant changes from proposal: 

Staff has determined that the amendments will not affect the review process of applications for emergency 

orders undertaken by the executive director. As set forth in 30 TAC §35.805 and other subsections, as 

well as within each issued emergency order, any construction authorized by an emergency order may not 

interfere with the attainment or maintenance of NAAQS or violate applicable portions of the control 

strategy. To that end, each application undergoes a technical review which evaluates best available control 

technology (BACT) and reviews potential impacts of human health and the environment by the use of air 

dispersion modeling and evaluation by the commission's Toxicology Section. The preamble makes clear 

that emergency orders are not permits, but rather are limited-term authorizations necessary to respond to 

certain catastrophic events. This point is critical in understanding that while emergency order applications 
Commissioners 

Page 6 

June 9, 2006 

Re: Docket No. 2005-2069-RUL 

do undergo a rigorous technical review, the orders are not permit authorizations. Rather, entities subject 

to an emergency order must move forward with applying for a permit within a specified time period. 

No changes were made to the rulemaking from proposal. 

Agency contacts: 

Les Trobman, Rule Project Manager, 239-6056, Environmental Law Division 

Lola Brown, Texas Register Coordinator, 239-0348 

Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Jason Skaggs 

Ashley K. Wadick 

Office of General Counsel 

Les Trobman 

Lola Brown 

cc (without attachments): 

Booker Harrison, Division Liaison 

Russ Kimble, OLS 
EVALUATION OF TESTIMONY 

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

§§35.801, 35.802, 35.804, 35.805, 35.807, and 35.808 without changes to the proposed text as 

published in the March 10, 2006, issue of the Texas Register (31 TexReg 1599) and these sections will 

not be republished. 

The amended sections will be submitted to the United States Environmental Protection Agency (EPA) 

as a revision to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

House Bill (HB) 2949, 79th Legislature, 2005, amended Texas Water Code (TWC), §5.515, to allow 

for authorization of emergency orders to repair or replace roads, bridges, or other infrastructure 

improvements involving public works projects destroyed during a catastrophe. The TWC previously 

only authorized emergency orders to allow repair of a facility or control equipment. Amended TWC, 

§5.515 adds language regarding the contents of the application for an emergency order. The required 

language in the application pertaining to the reason for allowing the construction and emissions was 

expanded to include preventing a "loss of a critical transportation thoroughfare." The purpose of this 

rulemaking is to reflect these changes in Subchapter K of this chapter. 

The adopted rules add language authorizing emergency orders to include repair or replacement of 

roads, bridges, or other infrastructure improvements to the list of actions that can be authorized by an 

emergency order. Additionally, the adopted rules authorize an applicant to list loss of a critical 

1 
transportation thoroughfare as a reason why the construction and emissions are essential. As a point of 

clarification, it is noted that the issuance of an emergency order, under the adopted rules, to a rock 

crusher or concrete batch plant that performs wet hatching, dry hatching, or central mixing will not be 

prohibited under TWC, §5.5145, or subject to penalty under TWC, §7.052(b), because the facility is 

considered to be operating under a temporary authorization as provided in TWC, §5.501(a)(2)(A). ·A 

facility which has been issued an emergency order has been provided a limited-term authorization and 

must submit an application for a permit or permit modification within 60 days of the order issuance, as 

described in 30 TAC §35.806. 

SECTION BY SECTION DISCUSSION 

The commission adopts administrative changes throughout the rules to conform with Texas Register 

requirements and agency guidelines. 

The adopted amendment to §35. 801, Emergency Orders Because of Catastrophe, adds roads, bridges, 

or other infrastructure to the list of repairs or replacements for which the commission may authorize 

immediate action. The commission also revises the definition of catastrophe by replacing the word 

"operator" with the word "applicant" and by adding the language "or a road, bridge, or other 

infrastructure. " 

The adopted amendment to §35.802, Application of an Emergency Order, adds language, in 

paragraphs (1) and (5), allowing an applicant to state that the proposed construction and emissions are 

essential to prevent the loss of a critical transportation thoroughfare, and that the construction and 

emissions are necessary for the repair or replacement of roads, bridges, or other infrastructure to the 

2 
list of possible statements in an application for an emergency order of why the construction and 

emissions are necessary. In describing the limitations on the proposed construction and emissions, the 

applicant may cite the public works project as the specific basis for the emergency authorization. 

The adopted amendment to §35.804, Issuance of Order, adds language to the list in paragraph (1) of 

possible reasons that would allow the commission to issue an emergency order, allowing the 

commission to issue an order under this subchapter if it is found that the proposed construction and 

emissions are essential to prevent the loss of a critical transportation thoroughfare, and that the 

construction and emissions are necessary for the repair or replacement of roads, bridges, or other 

infrastructure. New §35.804(5)(C), adds public works projects needed to rebuild or repair damaged 

roads, bridges, or other infrastructure destroyed during a catastrophe to the list of limitations of the 

proposed construction and emissions. 

The adopted amendment to §35.805, Contents of an Emergency Order, adds in paragraph (3), public 

works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed 

during a catastrophe to the list of limitations of the proposed construction and emissions. 

The adopted amendment to §35.807, Affirmation of an Emergency Order, adds language to the list in 

paragraph ( 1) of possible reasons that would allow the commission to issue an emergency order, 

allowing the commission to affirm a proposed or issued order under this subchapter if the applicant 

shows that the proposed construction and emissions are essential to prevent the loss of a critical 

transportation thoroughfare, and that the construction and emissions are necessary for the repair or 

replacement of roads, bridges, or other infrastructure. New §35.807(5)(C) adds public works projects 

3 
needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a 

catastrophe to the list of limitations of the proposed construction and emissions. 

The adopted amendment to §35.808, Modification of an Emergency Order, adds language, in 

paragraph ( 1), allowing the commission to modify a proposed or issued order under this subchapter if 

the applicant shows that the proposed construction and emissions are essential to prevent the loss of a 

critical transportation thoroughfare, and that the construction and emissions are necessary for the repair 

or replacement of roads, bridges, or other infrastructure. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to 

§2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that 

statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the 

environment or reduce risks to human health from 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 commission has determined that the 

adopted rulemaking does not fall under the defmition of a "major environmental rule" because it does 

not adversely affect any of the categories listed in §2001.0225, and the amendments do not mandate 

new requirements for the regulated community. Rather, the adopted rules are intended to reflect the 

statutory changes made to TWC, §5.515, by HB 2949, which provide authorization for specific types 

of facilities that may emit air contaminants in limited circumstances. Material adverse effects on the 

environment are not anticipated, and the impacts on the economy and productivity are expected to be 

4 
significant and positive insofar as recoveries from catastrophic events will be more quickly and 

efficiently realized. 

Furthermore, the adopted rulemaking does not meet any of the four applicability requirements listed in 

Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a), only applies to a 

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

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

is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a state and 

federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a 

specific state law. This rulemaking does not meet any of these four applicability requirements because 

this rulemaking: 1) does not exceed any standard set by federal law; 2) does not exceed the 

requirements of state law under TWC, Chapter 5, Subchapter L; 3) does not exceed a requirement of a 

delegation agreement or contract between the state and an agency or representative of the federal 

government to implement any state and federal program; and 4) is not proposed solely under the 

general powers of the agency, but rather specifically under TWC, §5.515. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated these adopted rules and performed an analysis of whether these rules 

constitute a takings under Texas Government Code, Chapter 2007. The specific purpose of the rules is 

to incorporate into commission rules the changes made to TWC, §5.515, by the Texas Legislature, by 

adding language to authorize emergency orders in the event of a catastrophe to include the repair or 

replacement of roads, bridges, or other infrastructure. 

5 
Promulgation and enforcement of the amendments would constitute neither a statutory nor a 

constitutional taking of private real property. There are no burdens imposed on private real property 

under this rulemaking because the amendments neither relate to, nor have any impact on, the use or 

enjoyment of private real property, and there would be no reduction in value of property as a result of 

this rulemaking. None of the adopted rules mandate any new requirements, but rather, provide for a 

specific type of authorization. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found that the rulemaking is one identified in 

the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to rules subject to 

the Coastal Management Program, and will, therefore, require that goals and policies of the Texas 

Coastal Management Program (CMP) be considered during the rulemaking process. 

The CMP goal applicable to the adopted rules is to protect, preserve, restore, and enhance the 

diversity, quality, quantity, functions, and values of coastal natural resource areas. CMP policies 

applicable to the adopted rules include the administrative policies and the policies for specific activities 

related to the emission of air pollutants. Promulgation and enforcement of these rules is consistent 

with the applicable CMP goals and policies because the rules will establish clear and consistent 

requirements governing the issuance of emergency and temporary orders for the repair or replacement 

of roads, bridges, or other infrastructure when necessitated by a catastrophe, as authorized by TWC, 

Chapter 5, Subchapter L. Under the authority granted by statute, the commission may issue 

emergency or temporary orders to address unforeseen circumstances such as potential catastrophes. 

Promulgation and enforcement of these rules will not violate or exceed any standards identified in the 

6 
applicable CMP goals and policies because they will allow the commission to take steps to mitigate 

emergency or potential emergency situations, which will result in environmental benefits for the entire 

state, including coastal areas. 

PUBLIC COMMENT 

A public hearing on the proposed rules was held in Austin on April4, 2006, at the Texas Commission 

on Environmental Quality but no oral comments were received. Written comments were submitted by 

the North Central Texas Council of Governments (NCTCOG) and the EPA. 

RESPONSE TO COMMENTS 

NCTCOG supported the amendments and commented that construction associated with emergency 

orders issued for the repair of infrastructure destroyed during a catastrophe may mitigate long-term 

emissions due to congestion which may result from an unresolved infrastructure failure. 

The commission appreciates the support and concurs in the rationale proffered by NCTCOG that 

identifies potential environmental benefits which may result through the use of the emergency 

order authorization tool. 

EPA commented that it interprets TWC, §5.501, to provide the commission with the general authority 

to issue temporary or emergency orders. The EPA further stated its understanding that through these 

orders, the commission may issue a temporary permit or temporarily suspend or amend a permit 

condition. 

7 
Section 5.501 does include authority to issue a temporary permit or temporarily suspend or 

amend a permit condition. However, the commission has never issued a temporary permit in lieu 

of a conventional authorization method for facilities with air emissions. The authority exercised 

through the Chapter 35 rules and this rulemaking is for issuance of emergency orders. 

Emergency orders are most accurately described as limited-term authorizations necessary to 

respond to certain catastrophic events. For example, in one instance, an emergency order was 

issued to install a larger boiler to replace two smaller boilers that were damaged in a catastrophic 

event until the two smaller boilers could be repaired. However, the larger boiler was not allowed 

to operate at a firing rate that would create emissions greater than the permitted limit for the two 

boilers, thus providing a limited-term authorization for the larger boiler, with no greater impact 

on the environment. The emergency order rules require that a facility which has been issued an 

emergency order submit an application for a permit or permit modification within 60 days of the 

order issuance. 

EPA expressed its understanding that the Chapter 35 emergency order rules enable the commission to 

authorize a temporary permit or suspension of permit requirements without necessitating the 

submission of any such action to the EPA as a revision to the SIP. EPA stated that such an 

arrangement, which it identified as "director discretion," would run afoul of the requirement for the 

submission of a SIP revision contained in Federal Clean Air Act, §110(1). 

The Chapter 35 emergency order rules, as amended through this adoption, do not contemplate 

the issuance or suspension of a permit or permit conditions. Rather, the rules authorize the 

issuance of a limited-term authorization necessary to respond to certain catastrophic events. 

8 
EPA expressed concern that the proposed amendments would allow a source to avoid preconstruction 

requirements and permit review procedures, while authorizing emissions in contravention of state and 

federal requirements. Specifically, EPA stated that any SIP revision submittal must demonstrate that 

the proposed revision would not interfere with the attainment or maintenance of the National Ambient 

Air Quality Standards (NAAQS), Prevention of Significant Deterioration (PSD) requirements, or 

negatively affect the existing air quality in Texas. 

The Chapter 35 emergency order rules, as amended through this adoption, contemplate and call 

for a comprehensive technical review. As set forth in 30 TAC §35.805, and other sections in 

Subchapter K, as well as within each issued emergency order, any construction authorized by an 

emergency order may not interfere with the attainment or maintenance of the NAAQS or violate 

applicable portions of the control strategy. To that end, the review of emergency order 

applications conducted by the commission consists of an evaluation of best available control 

technology (BACT) and a review of potential impacts of human health and the environment by 

the use of air dispersion modeling and evaluation by the commission's Toxicology Section. The 

review also includes input from the commission's applicable regional office and the commission's 

Air Permits Division, as appropriate. The review will ensure that the construction is subject to 

current and possibly more stringent requirements than were in existence for facilities that are 

being replaced. The technical review process is at least as comprehensive as the commission's 

review of permit applications. Therefore, these rules, as a revision to the SIP, do not interfere 

with attainment or maintenance of the NAAQS, violate PSD requirements, or negatively affect 

existing air quality in Texas. 

9 
Additionally, the emergency order rules require that a facility which has been issued an 

emergency order submit an application for a permit or permit modification within 60 days of the 

order issuance. As set forth in 30 TAC §35.806, the permit application will be considered 

without regard to the activity(ies) authorized under an emergency order. Since 1993, the 

commission has issued approximately 13 air emergency orders. The majority of these authorized 

replacement or repairs of damaged facilities and/or control equipment, while a few authorized 

new facilities and one authorized a different loading operation. In a number of cases, operation 

under the emergency order authority actually lasted less than the maximum 180-day term (one 

was operated for less than one week). Therefore, the impact to the environment was relatively 

minimal, and permit applications were not necessary for all of these authorizations. 

EPA commented that under certain extraordinary circumstances, such as natural disasters, the 

commission could exercise its enforcement discretion. EPA intends to review such circumstances on a 

case-by-case basis. 

Historically, the commission has not encountered unauthorized construction after natural 

disasters or other catastrophic events, and therefore there have been few opportunities, if any, to 

choose between exercising enforcement discretion and consideration of issuance of an emergency 

order. The rules in Subchapter K anticipate that an application for an emergency order be 

submitted prior to construction of the replacement facilities. If a facility was constructed without 

authorization, it would be operating without having undergone a BACT or health impacts review. 

However, when confronted with an application for a temporary authorization necessitated by the 

occurrence of a catastrophic event, the commission prefers to rely upon the emergency order 

10 
authorization tool in order to ensure that a comprehensive review is conducted, which is a caseby-case review that should meet EPA requirements. As noted earlier in this preamble, the 

commission has issued very few emergency orders; some were due to catastrophic events that 

were also natural disasters. 

EPA indicated that it may be able to approve the emergency order program, as submitted through 

previous SIP revisions, assuming that when considering the issuance of an emergency order, the state 

incorporates a review process which is equivalent to the process used in considering an application for 

a regular permit. 

As described earlier, the review of applications for emergency orders is at least as comprehensive 

as the commission's review of permit applications. Additionally, the emergency order rules 

require that a facility which has been issued an emergency order submit an application for a 

permit or permit modification within 60 days of the order issuance. As set forth in 30 TAC 

§35.806, the permit application will be considered without regard to the activity(ies) authorized 

under an emergency order. Therefore, a person who is granted an emergency order is on notice 

that there is no guarantee that the subsequent permit application will be granted and, if so, 

whether the construction and operating requirements will be the same. 

EPA requested clarification on what authority the TCEQ relies upon in requiring a technical review of 

emergency order applications which contains modeling, BACT, lowest achievable emission rate, Class 

I impacts, and impacts on soils, vegetation, and visibility. 

11 
As indicated earlier, the Chapter 35 emergency order rules, as amended through this adoption, 

contemplate and call for a comprehensive technical review. As set forth in 30 TAC §35.805, as 

well as within each issued emergency order, any construction authorized by an emergency order 

may not interfere with the attainment or maintenance of NAAQS or violate applicable portions of 

the control strategy. The commission interprets this directive to necessitate a comprehensive 

impacts review as described in previous responses to comments. This interpretation is grounded 

in Texas Health and Safety Code (THSC), §382.024. Such a review is also predicated upon the 

required showing that the activity authorized under an emergency order will not cause or 

contribute to air pollution, as set forth in TWC, §5.515(d). The applicant must also demonstrate 

that there will be no more than a de minimus increase in off-property air contaminant 

concentrations, per TWC, §5.515(c). To ensure that the emergency order will not violate 

applicable portions of the control strategy, the review will check for compliance with such 

applicable portions, for example, as permitting requirements, federal permitting applicability, 

new source performance standards (NSPS), national emissions standards for hazardous air 

pollutants (NESHAPS), and rules adopted for control of volatile organic compounds and nitrogen 

oxide emissions in nonattainment areas. Additionally, the TCEQ has in the past conducted and 

required applicants to conduct air dispersion modeling as appropriate to assure compliance. 

EPA inquired as to what would happen if an entity was found to be in violation of a state or federal 

requirement after an emergency order was issued. Specifically, EPA wondered whether the emergency 

order issuance would shield such an entity from enforcement action. 

12 
An emergency order issued under Chapter 35 would not shield an entity from an enforcement 

action brought for violating a state or federal requirement or the terms of the emergency order. 

Additionally, each emergency order issued by the executive director will be considered by the 

commission during an open public meeting and must be affrrmed, set aside, or modified, which 

provides the commission the opportunity to ensure compliance with such requirements. 

EPA commented that 30 TAC §116.410 allows a facility to apply for an emergency order under TWC, 

§5.515, while Chapter 35 of the Texas Administrative Code authorizes immediate action under an 

emergency order. EPA wondered whether a source may submit a single application for an emergency 

order or must submit two applications. 

The rules pertaining to emergency orders have been moved in their entirety to Chapter 35. 

There remains a reference to emergency orders in 30 TAC §116.1200, renumbered from 30 TAC 

§116.410, effective February 1, 2006, which directs the public to Chapter 35. Only one 

application is required. 

EPA sought the commission's interpretation on whether TWC, §5.515 must be submitted and approved 

into the SIP. 

The legal authority to adopt the emergency order rules adopted and submitted to EPA in 1998 

and these amendments is listed in the STATUTORY AUTHORITY sections of the rulemaking 

documents, and as such, is submitted to EPA for its review as part of this revision into the SIP. 

13 
EPA sought the commission's interpretation on what provisions of Chapter 35 need to be approved into 

the SIP for air purposes. 

Through this rulemaking, the commission is submitting amendments to Subchapter K of Chapter 

35. Subchapter K has previously been submitted as a revision to the SIP. Since this rulemaking 

is not opening Chapter 35, Subchapters A- C, nor were subsections in Subchapters A- C 

proposed for removal from consideration as a revision to the SIP, the commission cannot revise 

the SIP submission at adoption of these rules to concurrently designate applicable subsections 

within those subchapters. 

EPA questioned where the term "de minimis increase" as used in the current Chapter 35 emergency 

order provisions is defined for all criteria pollutants. Further, EPA asks if there is an ambient de 

minimis threshold for ozone or ozone precursors and where the term "national ambient air quality 

standards" is defined. 

In determining de minimus amounts for purposes of reviewing emergency order applications, the 

commission refers to the definition of "de minimis impact" in 30 TAC §101.1(25) as a guideline 

for assessing truly de minimus amounts of air contaminants. A "de minimis impact" is defmed as 

"A change in ground level concentration of an air contaminant as a result of the operation of any 

new major stationary source or of the operation of any existing source that has undergone a 

major modification that does not exceed the following specified amounts." The referenced 

specified amounts are set forth in an attached chart. The chart provides various amounts by 

14 
NAAQS averaging times, for carbon monoxide, nitrogen dioxide, sulfur dioxide, and particulate 

matter greater than 10 microns (PMuJ, ranging from 1 to 25 micrograms per cubic meter. 

While there is no ambient de minimus threshold for ozone or ozone precursors per se, the 

commission reviews each emergency order application and identifies whether there are any 

predicted adverse off-property concentrations of either criteria or non-criteria pollutants 

regardless if there is any increase in emissions. The defmition of National Ambient Air Quality 

Standards is defmed in 30 TAC §101.1(68). 

15 
STAFF 

RECOMMENDATIONS 
SUBCHAPTER K: AIR ORDERS 

§§35.801, 35.802, 35.804, 35.805, 35.807, 35.808 

STATUTORY AUTHORITY 

These amendments are adopted under TW C, §5 .102, which establishes the commission's general 

authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general 

authority to adopt rules to carry out its duties under the TWC and the other laws of the state; §5.105, 

which establishes the commission's authority to set policy by rule; §5.501, which establishes the 

commission's authority to issue emergency orders; §5.502, which sets forth requirements for 

emergency order applications; §5.504, which establishes the commission's authority to hold a hearing 

on the issuance of an emergency order; and §5.515, which allows the commission to issue emergency 

orders for immediate action for the addition, replacement, or repair of facilities or control equipment, 

or the repair or replacement of roads, bridges, or other infrastructure, and authorizing associated 

emissions of air contaminants, whenever a catastrophe necessitates such construction and emissions 

otherwise precluded under the Texas Clean Air Act (TCAA). In addition, these rules are adopted 

under THSC, §382.011, which gives the commission the authority to control the quality of the state's 

air; §382.012, which authorizes the commission to develop a state air control plan; §382.017, which 

authorizes the commission to adopt rules implementing the TCAA; §382.024 and §382.025, which 

establish the authority of the commission to issue air orders and what factors the commission must 

consider when issuing such orders; and §382.063, which authorizes the commission to issue 

emergency orders because of catastrophe. 

1 
The adopted amendments implement TWC, §§5.501, 5.502, 5.504, and 5.515, and THSC, §§382.011, 

382.012, 382.024, 382.025 and 382.063. 

§35.801. Emergency Orders Because of Catastrophe. 

The commission or executive director may issue emergency orders under Texas Water Code, 

§5 .515, to authorize immediate action for the addition, replacement, or repair of facilities or control 

equipment, or the repair or replacement of roads, bridges, or other infrastructure, and authorizing 

associated emissions of air contaminants, whenever a catastrophe necessitates such construction and 

emissions otherwise precluded under the Texas Clean Air Act. For purposes of this section, a 

catastrophe is an unforeseen event including, but not limited to, an act of God, an act of war, severe 

weather conditions, explosions, fire, or other similar occurrences beyond the reasonable control of the 

applicant, which renders a facility or its functionally related appurtenances, or a road, bridge, or other 

infrastructure, inoperable. 

§35.802. Application for an Emergency Order. 

The owner or operator of a facility, as that term is defined in Texas Health and Safety Code, 

§382.003, desiring to obtain an order under this subchapter shall submit an application in accordance 

with §35.24 of this title (relating to Application for Emergency or Temporary Order). The application 

must contain the information required by that section and the following: 

2 
(1) a statement that the proposed construction and emissions are essential to prevent 

loss of life, serious injury, severe property damage, loss of a critical transportation thoroughfare, or 

severe economic loss not attributable to the applicant's actions, and are necessary for the addition, 

replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or 

other infrastructure, necessitated by a catastrophe; 

(2) a description of the catastrophe; 

(3) a statement that there are no practicable alternatives to the proposed construction 

and emissions; 

(4) a statement that the emissions will not cause or contribute to a condition of air 

pollution; 

(5) a statement that the proposed construction and emissions will occur only: 

(A) on the property where the catastrophe occurred; 

(B) on other property owned by the owner or operator of the damaged facility, 

which produces the same intermediates, products, or by-products, provided that no more than a de 

minimus increase will occur in the predicted concentration of the air contaminants at or beyond the 

property line at such other property; or 

3 
(C) for public works projects needed to rebuild or repair damaged roads, 

bridges, or other infrastructure destroyed during a catastrophe; 

( 6) a description of the proposed construction and the type and quantity of air 

contaminants to be emitted; 

(7) an estimate of the dates on which the proposed construction and emissions will 

begin and end; 

(8) an estimate of the date on which the facility will begin operation; 

(9) a statement that any construction or modification will not interfere with the 

attainment or maintenance of national ambient air quality standards or violate applicable portions of the 

control strategy; and 

(10) any other information or item the executive director may require to support or 

explain the need for, or to expedite the issuance of, an emergency order; including information 

regarding the applicability of and compliance with any federal requirements for new or modified 

sources. 

4 
§35.804. Issuance of Order. 

The commission or executive director may issue an order under this subchapter if it is found 

that: 

(1) the proposed construction and emissions are essential to prevent loss of life, 

serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe 

economic loss not attributable to the applicant's actions and are necessary for the addition, 

replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or 

other infrastructure, that is necessitated by a catastrophe; 

(2) there are no practicable alternatives to the proposed construction and emissions; 

(3) the emissions will not cause or contribute to a condition of air pollution; 

( 4) any construction or modification will not interfere with the attainment or 

maintenance of national ambient air quality standards or violate applicable portions of the control 

strategy; 

(5) the proposed construction or emissions will occur only: 

(A) on property where the catastrophe occurred; 

5 
(B) on other property owned by the owner or operator of the damaged facility, 

which produces the same intermediates, products, or by-products, provided that no more than a de 

minimus increase will occur in the predicted concentration of the air contaminants at or beyond the 

property line at such other property; or 

(C) for public works projects needed to rebuild or repair damaged roads, 

bridges, or other infrastructure destroyed during a catastrophe; 

( 6) the time limits in the order for the beginning and completion of the proposed 

construction and emissions are reasonable; and 

(7) the schedule in the order for submission of a complete permit application is 

reasonable. 

§35.805. Contents of an Emergency Order. 

In addition to the requirements of §35.26 of this title (relating to Contents of Emergency or 

Temporary Order), an emergency order issued under this subchapter shall contain at least the 

following: 

( 1) a description of the emergency construction and emissions to be authorized; 

6 
(2) reasonable time limits for the beginning and the completion of the proposed 

construction and emissions; 

(3) authorization for action only: 

(A) on the property where the catastrophe occurred; 

(B) on other property owned by the owner or operator of the damaged facility, 

which produces the same intermediates, products, or by-products, provided that no more than a de 

minimus increase will occur in the predicted concentration of the air contaminants at or beyond the 

property line at such other property; or 

(C) for public works projects needed to rebuild or repair damaged roads, 

bridges, or other infrastructure destroyed during a catastrophe; 

(4) the requirement that any construction or modification will not interfere with the 

attainment or maintenance of national ambient air quality standards or violate applicable portions of the 

control strategy; and 

(5) a schedule for submission of a complete construction permit application under 

provisions of Texas Clean Air Act, Chapter 382. 

7 
§35 .807. Affll'lllation of an Emergency Order. 

The commission shall affirm a proposed or issued order if the applicant shows at the hearing, 

by a preponderance of the evidence, that: 

(1) the proposed construction and emissions are essential to prevent loss of life, 

serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe 

economic loss not attributable to the applicant's actions and are necessary for the addition, 

replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or 

other infrastructure, that is necessitated by a catastrophe; 

(2) there are no practicable alternatives to the proposed construction and emissions; 

(3) the emissions will not cause or contribute to a condition of air pollution; 

(4) any construction or modification will not interfere with the attainment or 

maintenance of national ambient air quality standards or violate applicable portions of the control 

strategy; and 

(5) the proposed construction or emissions will occur only: 

(A) on property where the catastrophe occurred; 

8 
(B) on other property owned by the owner or operator of the damaged facility, 

which produces the same intermediates, products, or by-products, provided that no more than a de 

minimus increase will occur in the predicted concentration of the air contaminants at or beyond the 

property line at such other property; or 

(C) for public works projects needed to rebuild or repair damaged roads, 

bridges, or other infrastructure destroyed during the catastrophe; 

( 6) the time limits in the order for the beginning and completion of the proposed 

construction and emissions are reasonable; and 

(7) the schedule in the order for submission of a complete permit application is 

reasonable. 

§35.808. Modification of an Emergency Order. 

The commission shall modify a proposed or issued order if the hearing record shows that: 

(1) construction and emissions otherwise precluded under the Texas Clean Air Act are 

essential to prevent loss of life, serious injury, severe property damage, loss of a critical transportation 

thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for 

the addition, replacement, or repair of facilities or control equipment, or repair or replacement of 

roads, bridges, or other infrastructure, that is necessitated by a catastrophe; 

9 
(2) there is no practicable alternative to such construction and emissions; and 

(3) modification of certain terms of the proposed or issued order is necessary to make 

the order, construction, and/or emissions meet the requirements stated in §35.807 of this title (relating 

to Affirmation of an Emergency Order). 

10 
TEXAS CoMMISSION ON ENVIRONMENTAL QuALITY 

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ORDER ADOPTING AMENDED RULES AND ·.· .... ·· . 

REVISIONS TO THE STATE IMPLEMENT A tr6N°PLAN, 

Docket No. 2005-2069-RUL 

On June 28, 2006, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended §§35.801, 35.802, 35.804, 35.805, 35.807, and 35.808. The 

Cormnission adopts these amendments in 30 Tex. Admin. Code Chapter 35, Emergency and Temporary 

Orders and Permits; Temporary Suspension or Amendment of Permit Conditions, Subchapter K, Air 

Orders; and corresponding revisions to the state implementation plan (SIP). The adopted rules allow the 

authorization of emergency orders to repair or replace roads, bridges, or other infrastructure improvements 

involving public works projects destroyed during a catastrophe. Additionally, the adopted rules authorize 

an applicant to list loss of a critical transportation thoroughfare as a reason why the construction and 

emissions are essential. Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 

(Vernon 2001), the Commission has the authority to control the quality of the state's air and to issue orders 

consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & 

Safety Code. The proposed rules were published for comment in the March 10, 2006, issue of the Texas 

Register (31 TexReg 1599). 

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§ 51.102 and after proper 

notice, the Commission conducted a public hearing to consider the amendments and revisions the SIP. 

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date of the 

hearing. A public hearing was held in Austin on April4, 2006. 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The 

public was invited to submit data, views, and recommendations on the proposed amended rules and SIP 

revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled 

hearing, copies of the proposed amended rules and SIP revision were available for public inspection at the 

Commission's central office and on the Commission's Web sife. 

Data, views, and recommendations of interested persons regarding the proposed amended rules and 

SIP revisions were submitted to the Commission during the comment period, and were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The 

Commission finds that the analysis of testimony includes the names of all interested groups or associations 

offering comment on the proposed amended rules and the SIP revisions and their position concerning the 

same. 
IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions to 

the SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes 

staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 

requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are 

incorporated by reference in this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted rules and revisions 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. §§ 7410- 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Tex. Gov't Code, § 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 portion shall not affect the validity of the remaining portions. 

Date issued: JUt a 5 2oos TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

2 
The amendment is adopted uncller the general authority granted 

in TWC, §5.013, which establis es the general jurisdiction of the 

commission over other areas o responsibility as assigned to the 

commission under the TWC an other laws of the state; §5.1 03 

and §5.1 05, which authorize th commission to adopt rules and 

policies necessary to carry out ts responsibilities and duties under the TWC; and §5.802 and 5.805, which require the agency 

to adopt rules for the administr tion of the laboratory accreditation program. 

The adopted amendment imp ements TWC, §§5.013, 5.1 03, 

5.1 05, 5.802, and 5.805. 

This agency hereby certifies tha the adoption has been reviewed 

by legal counsel and found to b, a valid exercise of the agency's 

legal authority. 1 

Filed with the Office of the Sec1etary of State on June 29, 2006. 

TRD-200603519 I 

Robert Martinez I 

Acting Director, Environmental La\1( Division 

Texas Commission on Environmenltal Quality 

Effective date: July 19, 2006 I 

Proposal publication date: March ~4. 2006 

For further information, please ca11J (512) 239-5017 

I • • • 

CHAPTER 35. EMERGENCY AND 

TEMPORARY ORDERS AND PERMITS; 

TEMPORARY SUSPENSION OR AMENDMENT 

OF PERMIT CONDITIONS 

SUBCHAPTER K. AIR ORDERS 

30 TAC §§35.801, 35.802, 35.804, 35.805, 35.807, 35.808 

The Texas Commission on Environmental Quality (commission 

or TCEQ) adopts amendments to §§35.801, 35.802, 35.804, 

35.805, 35.807, and 35.808 without changes to the proposed 

text as published in the March 10, 2006, issue of the Texas Register (31 TexReg 1599) and these sections will not be republished. 

The amended sections will be submitted to the United States 

Environmental Protection Agency (EPA) as a revision to the state 

implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULES 

House Bill (HB) 2949, 79th Legislature, 2005, amended Texas 

Water Code (TWC), §5.515, to allow for authorization of emergency orders to repair or replace roads, bridges, or other infrastructure improvements involving public works projects destroyed during a catastrophe. The TWC previously only authorized emergency orders to allow repair of a facility or control 

equipment. Amended TWC, §5.515 adds language regarding 

the contents of the application for an emergency order. The required language in the application pertaining to the reason for allowing the construction and emissions was expanded to include 

preventing a "loss of a critical transportation thoroughfare." The 

purpose of this rulemaking is to reflect these changes in Subchapter K of this chapter. 

The adopted rules add language authorizing emergency orders 

to include repair or replacement of roads, bridges, or other in31 TexReg 5642 July 14, 2006 Texas Register 

frastructure improvements to the list of actions that can be authorized by an emergency order. Additionally, the adopted rules 

authorize an applicant to list loss of a critical transportation thoroughfare as a reason why the construction and emissions are essential. As a point of clarification, it is noted that the issuance of 

an emergency order, under the adopted rules, to a rock crusher 

or concrete batch plant that performs wet batching, dry batching, or central mixing will not be prohibited under TWC, §5.5145, 

or subject to penalty under TWC, §7 .052(b ), because the facility 

is considered to be operating under a temporary authorization 

as provided in TWC, §5.501(a)(2)(A). A facility which has been 

issued an emergency order has been provided a limited-term authorization and must submit an application for a permit or permit 

modification within 60 days of the order issuance, as described 

in 30 TAG §35.806. 

SECTION BY SECTION DISCUSSION 

The commission adopts administrative changes throughout the 

rules to conform with Texas Register requirements and agency 

guidelines. 

The adopted amendment to §35.801, Emergency Orders Because of Catastrophe, adds roads, bridges, or other infrastructure to the list of repairs or replacements for which the commission may authorize immediate action. The commission also revises the definition of catastrophe by replacing the word "operator" with the word "applicant" and by adding the language "or a 

road, bridge, or other infrastructure." 

The adopted amendment to §35.802, Application of an Emergency Order, adds language, in paragraphs (1) and (5), allowing 

an applicant to state that the proposed construction and emissions are essential to prevent the loss of a critical transportation 

thoroughfare, and that the construction and emissions are necessary for the repair or replacement of roads, bridges, or other 

infrastructure to the list of possible statements in an application 

for an emergency order of why the construction and emissions 

are necessary. In describing the limitations on the proposed construction and emissions, the applicant may cite the public works 

project as the specific basis for the emergency authorization. 

The adopted amendment to §35.804, Issuance of Order, adds 

language to the list in paragraph (1) of possible reasons that 

would allow the commission to issue an emergency order, allowing the commission to issue an order under this subchapter 

if it is found that the proposed construction and emissions are 

essential to prevent the loss of a critical transportation thoroughfare, and that the construction and emissions are necessary for 

the repair or replacement of roads, bridges, or other infrastructure. New §35.804(5)(C), adds public works projects needed to 

rebuild or repair damaged roads, bridges, or other infrastructure 

destroyed during a catastrophe to the list of limitations of the proposed construction and emissions. 

The adopted amendment to §35.805, Contents of an Emergency 

Order, adds in paragraph (3), public works projects needed to 

rebuild or repair damaged roads, bridges, or other infrastructure 

destroyed during a catastrophe to the list of limitations of the 

proposed construction and emissions. 

The adopted amendment to §35.807, Affirmation of an Emergency Order, adds language to the list in paragraph (1) of 

possible reasons that would allow the commission to issue an 

emergency order, allowing the commission to affirm a proposed 

or issued order under this subchapter if the applicant shows 

that the proposed construction and emissions are essential to 

prevent the loss of a critical transportation thoroughfare, and 
that the construction and emissions are necessary for the repair 

or replacement of roads, bridges, or other infrastructure. New 

§35.807(5)(C) adds public works projects needed to rebuild or 

repair damaged roads, bridges, or other infrastructure destroyed 

during a catastrophe to the list of limitations of the proposed 

construction and emissions. 

The adopted amendment to §35.808, Modification of an Emergency Order, adds language, in paragraph (1 ), allowing the commission to modify a proposed or issued order under this subchapter if the applicant shows that the proposed construction 

and emissions are essential to prevent the loss of a critical transportation thoroughfare, and that the construction and emissions 

are necessary for the repair one placement of roads, bridges, or 

other infrastructure. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the 

regulatory analysis requirements of Texas Government Code, 

§2001.0225, and determined that the rulemaking is not subject 

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

environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from 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 commission has determined that the 

adopted rulemaking does not fall under the definition of a "major 

environmental rule" because it does not adversely affect any of 

the categories listed in §2001.0225, and the amendments do no~ 

mandate new requirements for the regulated community. Rather, 

the adopted rules are intended to reflect the statutory changes 

made to TWC, §5.515, by HB 2949, which provide authorization 

for specific types of facilities that may emit air contaminants in 

limited circumstances. Material adverse effects on the environment are not anticipated, and the impacts on the economy and 

productivity are expected to be significant and positive insofar 

as recoveries from catastrophic events will be more quickly and 

efficiently realized. 

Furthermore, the adopted rule making does not meet any of the 

four applicability requirements listed in Texas Government Code, 

§2001.0225(a). Texas Government Code, §2001.0225(a), only 

applies to a major environmental rule, the result of which is to: 1) 

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

state law, unless the rule is specifically required by federal law; 

3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a state and federal program; or 

4) adopt a rule solely under the general powers of the agency 

instead of under a specific state law. This rulemaking does not 

meet any of these four applicability requirements because this 

rulemaking: 1) does not exceed any standard set by federal law; 

2) does not exceed the requirements of state law under TWC, 

Chapter 5, Subchapter L; 3) does not exceed a requirement of 

a delegation agreement or contract between the state and an 

agency or representative of the federal government to implement 

any state and federal program; and 4) is not proposed solely under the general powers of the agency, but rather specifically under TWC, §5.515. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated these adopted rules and performed 

an analysis of whether these rules constitute a takings under 

Texas Government Code, Chapter 2007. The specific purpose 

of the rules is to incorporate into commission rules the changes 

made to TWC, §5.515, by the Texas Legislature, by adding language to authorize emergency orders in the event of a catastrophe to include the repair or replacement of roads, bridges, or 

other infrastructure. 

Promulgation and enforcementofthe amendments would constitute neither a statutory nor a constitutional taking of private real 

property. There are no burdens imposed on private real property 

under this rulemaking because the amendments neither relate 

to, nor have any impact on, the use or enjoyment of private real 

property, and there would be no reduction in value of property as 

a result of this rulemaking. None of the adopted rules mandate 

any new requirements, but rather, provide for a specific type of 

authorization. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found 

that the rulemaking is one identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating 

to rules subject to the Coastal Management Program, and will, 

therefore, require that goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. 

. The CMP goal applicable to the adopted rules is to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. CMP policies applicable to the adopted rules include the administrative 

policies and the policies for specific activities related to the emission of air pollutants. Promulgation and enforcement of these 

rules is consistent with the applicable CMP goals and policies because the rules will establish clear and consistent requirements 

governing the issuance of emergency and temporary orders for 

the repair or replacement of roads, bridges, or other infrastructure when necessitated by a catastrophe, as authorized by TWC, 

Chapter 5, Subchapter L. Under the authority granted by statute, 

the commission may issue emergency or temporary orders to address unforeseen circumstances such as potential catastrophes. 

Promulgation and enforcement of these rules will not violate or 

exceed any standards identified in the applicable CMP goals and 

policies because they will allow the commission to take steps 

to mitigate emergency or potential emergency situations, which 

will result in environmental benefits for the entire state, including 

coastal areas. 

PUBLIC COMMENT 

A public hearing on the proposed rules was held in Austin on 

April4, 2006, at the Texas Commission on Environmental Quality 

but no oral comments were received. Written comments were 

submitted by the North Central Texas Council of Governments 

(NCTCOG) and the EPA. 

RESPONSE TO COMMENTS 

NCTCOG supported the amendments and commented that construction associated with emergency orders issued for the repair 

of infrastructure destroyed during a catastrophe may mitigate 

long-term emissions due to congestion which may result from 

an unresolved infrastructure failure. 

The commission appreciates the support and concurs in the rationale proffered by NCTCOG that identifies potential environADOPTED RULES July 14, 2006 31 TexReg 5643 
mental benefits which may result through the use of the emergency order authorization tool. 

EPA commented that it interprets TWC, §5.501, to provide the 

commission with the general authority to issue temporary or 

emergency orders. The EPA further stated its understanding 

that through these orders, the commission may issue a temporary permit or temporarily suspend or amend a permit condition. 

Section 5.501 does include authority to issue a temporary permit 

or temporarily suspend or amend a permit condition. However, 

the commission has never issued a temporary permit in lieu of 

a conventional authorization method for facilities with air emissions. The authority exercised through the Chapter 35 rules and 

this rulemaking is for issuance of emergency orders. Emergency 

orders are most accurately described as limited-term authorizations necessary to respond to certain catastrophic events. For 

example, in one instance, an emergency order was issued to install a larger boiler to replace two smaller boilers that were damaged in a catastrophic event until the two smaller boilers could 

be repaired. However, the larger boiler was not allowed to operate at a firing rate that would create emissions greater than the 

permitted limit for the two boilers, thus providing a limited-term 

authorization for the larger boiler, with no greater impact on the 

environment. The emergency order rules require that a facility 

which has been issued an emergency order submit an application for a permit or permit modification within 60 days of the order 

issuance. 

EPA expressed its understanding that the Chapter 35 emergency order rules enable the commission to authorize a 

temporary permit or suspension of permit requirements without 

necessitating the submission of any such action to the EPA as 

a revision to the SIP. EPA stated that such an arrangement, 

which it identified as "director discretion," would run afoul of the 

requirement for the submission of a SIP revision contained in 

Federal Clean Air Act, § 11 0(1). 

The Chapter 35 emergency order rules, as amended through 

this adoption, do not contemplate the issuance or suspension 

of a permit or permit conditions. Rather, the rules authorize the 

issuance of a limited-term authorization necessary to respond to 

certain catastrophic events. 

EPA expressed concern that the proposed amendments would 

allow a source to avoid preconstruction requirements and permit 

review procedures, while authorizing emissions in contravention 

of state and federal requirements. Specifically, EPA stated that 

any SIP revision submittal must demonstrate that the proposed 

revision would not interfere with the attainment or maintenance 

of the National Ambient Air Quality Standards (NAAQS), Prevention of Significant Deterioration (PSD) requirements, or negatively affect the existing air quality in Texas. 

The Chapter 35 emergency order rules, as amended through 

this adoption, contemplate and call for a comprehensive technical review. As set forth in 30 TAC §35.805, and other sections 

in Subchapter K, as well as within each issued emergency order, any construction authorized by an emergency order may 

not interfere with the attainment or maintenance of the NAAQS 

or violate applicable portions of the control strategy. To that end, 

the review of emergency order applications conducted by the 

commission consists of an evaluation of best available control 

technology (BACT) and a review of potential impacts of human 

health and the environment by the use of air dispersion modeling and evaluation by the commission's Toxicology Section. The 

review also includes input from the commission's applicable re31 TexReg 5644 July 14, 2006 Texas Register 

gional office and the commission's Air Permits Division, asappropriate. The review will ensure that the construction is subject 

to current and possibly more stringent requirements than were in 

existence for facilities that are being replaced. The technical review process is at least as comprehensive as the commission's 

review of permit applications. Therefore, these rules, as a revision to the SIP, do not interfere with attainment or maintenance 

of the NAAQS, violate PSD requirements, or negatively affect 

existing air quality in Texas. 

Additionally, the emergency order rules require that a facility 

which has been issued an emergency order submit an application for a permit or permit modification within 60 days of the order 

issuance. As set forth in 30 TAC §35.806, the permit application 

will be considered without regard to the activity(ies) authorized 

under an emergency order. Since 1993, the commission has issued approximately 13 air emergency orders. The majority of 

these authorized replacement or repairs of damaged facilities 

and/or control equipment, while a few authorized new facilities 

and one authorized a different loading operation. In a number of 

cases, operation under the emergency order authority actually 

lasted less than the maximum 180-day term (one was operated 

for less than one week). Therefore, the impact to the environment was relatively minimal, and permit applications were not 

necessary for all of these authorizations. 

EPA commented that under certain extraordinary circumstances, 

such as natural disasters, the commission could exercise its enforcement discretion. EPA intends to review such circumstances 

on a case-by-case basis. 

Historically, the commission has not encountered unauthorized construction after natural disasters or other catastrophic 

events, and therefore there have been few opportunities, if 

any, to choose between exercising enforcement discretion and 

consideration of issuance of an emergency order. The rules in 

Subchapter K anticipate that an application for an emergency 

order be submitted prior to construction of the replacement 

facilities. If a facility was constructed without authorization, it 

would be operating without having undergone a BACT or health 

impacts review. However, when confronted with an application 

for a temporary authorization necessitated by the occurrence 

of a catastrophic event, the commission prefers to rely upon 

the emergency order authorization tool in order to ensure that 

a comprehensive review is conducted, which is a case-by-case 

review that should meet EPA requirements. As noted earlier in 

this preamble, the commission has issued very few emergency 

orders; some were due to catastrophic events that were also 

natural disasters. 

EPA indicated that it may be able to approve the emergency order program, as submitted through previous SIP revisions, assuming that when considering the issuance of an emergency order, the state incorporates a review process which is equivalent 

to the process used in considering an application for a regular 

permit. 

As described earlier, the review of applications for emergency 

orders is at least as comprehensive as the commission's review 

of permit applications. Additionally, the emergency order rules 

require that a facility which has been issued an emergency order 

submit an application for a permit or permit modification within 

60 days of the order issuance. As set forth in 30 TAC §35.806, 

the permit application will be considered without regard to the 

activity(ies) authorized under an emergency order. Therefore, 

a person who is granted an emergency order is on notice that 

there is no guarantee that the subsequent permit application will 
be granted and, if so, whether the construction and operating 

requirements will be the same. 

EPA requested clarification on what authority the TCEQ relies 

upon in requiring a technical review of emergency order applications which contains modeling, BACT, lowest achievable emission rate, Class I impacts, and impacts on soils, vegetation, and 

visibility. 

As indicated earlier, the Chapter 35 emergency order rules, as 

amended through this adoption, contemplate and call for a comprehensive technical review. As set forth in 30 TAC §35.805, 

as well as within each issued emergency order, any construction authorized by an emergency order may not interfere with 

the attainment or maintenance of NAAQS or violate applicable 

portions of the control strategy. The commission interprets this 

directive to necessitate a comprehensive impacts review as described in previous responses to comments. This interpretation 

is grounded in Texas Health and Safety Code (THSC), §382.024. 

Such a review is also predicated upon the required showing that 

the activity authorized under an emergency order will not cause 

or contribute to air pollution, as set forth in TWC, §5.515(d). The 

applicant must also demonstrate that there will be no more than 

a de minimus increase in off-property air contaminant concentrations, per TWC, §5.515(c). To ensure that the emergency order will not violate applicable portions of the control strategy, the 

review will check for compliance with such applicable portions, 

for example, as permitting requirements, federal permitting applicability, new source performance standards (NSPS), national 

emissions standards for hazardous air pollutants (NESHAPS), 

and rules adopted for control of volatile organic compounds and 

nitrogen oxide emissions in nonattainment areas. Additionally, 

the TCEQ has in the past conducted and required applicants to 

conduct air dispersion modeling as appropriate to assure compliance. 

EPA inquired as to what would happen if an entity was found to 

be in violation of a state or federal requirement after an emergency order was issued. Specifically, EPA wondered whether 

the emergency order issuance would shield such an entity from 

enforcement action. 

An emergency order issued under Chapter 35 would not shield 

an entity from an enforcement action brought for violating a state 

or federal requirement or the terms of the emergency order. Additionally, each emergency order issued by the executive director will be considered by the commission during an open public 

meeting and must be affirmed, set aside, or modified, which provides the commission the opportunity to ensure compliance with 

such requirements. 

EPA commented that 30 TAC §116.41 0 allows a facility to apply 

for an emergency order under TWC, §5.515, while Chapter 35 

of the Texas Administrative Code authorizes immediate action 

under an emergency order. EPA wondered whether a source 

may submit a single application for an emergency order or must 

submit two applications. 

The rules pertaining to emergency orders have been moved in 

their entirety to Chapter 35. There remains a reference to emergency orders in 30 TAC § 116.1200, renumbered from 30 TAC 

§116.41 0, effective February 1, 2006, which directs the public to 

Chapter 35. Only one application is required. 

EPA sought the commission's interpretation on whether TWC, 

§5.515 must be submitted and approved into the SIP. 

The legal authority to adopt the emergency order rules adopted 

and submitted to EPA in 1998 and these amendments is listed in 

the STATUTORY AUTHORITY sections of the rulemaking documents, and as such, is submitted to EPA for its review as part 

of this revision into the SIP. 

EPA sought the commission's interpretation on what provisions 

of Chapter 35 need to be approved into the SIP for air purposes. 

Through this rulemaking, the commission is submitting amendments to Subchapter K of Chapter 35. Subchapter K has previously been submitted as a revision to the SIP. Since this rulemaking is not opening Chapter 35, Subchapters A- C, nor were 

subsections in Subchapters A - C proposed for removal from 

consideration as a revision to the SIP, the commission cannot 

revise the SIP submission at adoption of these rules to concurrently designate applicable subsections within those subchapters. 

EPA questioned where the term "de minimis increase" as used 

in the current Chapter 35 emergency order provisions is defined 

for all criteria pollutants. Further, EPA asks if there is an ambient 

de minimis threshold for ozone or ozone precursors and where 

the term "national ambient air quality standards" is defined. 

In determining de minimus amounts for purposes of reviewing 

emergency order applications, the commission refers to the definition of "de minimis impact" in 30 TAC §101.1 (25) as a guideline 

for assessing truly de minimus amounts of air contaminants. A 

"de minimis impact" is defined as "A change in ground level concentration of an air contaminant as a result of the operation of 

any new major stationary source or of the operation of any existing source that has undergone a major modification that does not 

exceed the following specified amounts." The referenced specified amounts are set forth in an attached chart. The chart provides various amounts by NAAQS averaging times, for carbon 

monoxide, nitrogen dioxide, sulfur dioxide, and particulate matter greater than 10 microns (PM,.). ranging from 1 to 25 micrograms per cubic meter. 

While there is no ambient de minimus threshold for ozone or 

ozone precursors per se, the commission reviews each emergency order application and identifies whether there are any predicted adverse off-property concentrations of either criteria or 

non-criteria pollutants regardless if there is any increase in emissions. The definition of National Ambient Air Quality Standards 

is defined in 30 TAC §101.1(68). 

STATUTORY AUTHORITY 

These amendments are adopted under TWC, §5.1 02, which establishes the commission's general authority necessary to carry 

out its jurisdiction; §5.103, which establishes the commission's 

general authority to adopt rules to carry out its duties under the 

TWC and the other laws of the state; §5.1 05, which establishes 

the commission's authority to set policy by rule; §5.501, which 

establishes the commission's authority to issue emergency orders; §5.502, which sets forth requirements for emergency order 

applications; §5.504, which establishes the commission's authority to hold a hearing on the issuance of an emergency order; 

and §5.515, which allows the commission to issue emergency 

orders for immediate action for the addition, replacement, or repair of facilities or control equipment, or the repair or replacement of roads, bridges, or other infrastructure, and authorizing 

associated emissions of air contaminants, whenever a catastrophe necessitates such construction and emissions otherwise 

precluded under the Texas Clean Air Act (TCAA). In addition, 

these rules are adopted under THSC, §382.011, which gives the 

ADOPTED RULES July 14, 2006 31 TexReg 5645 
commission the authority to control the quality of the state's air; 

§382.012, which authorizes the commission to develop a state 

air control plan; §382.017, which authorizes the commission to 

adopt rules implementing the TCAA; §382.024 and §382.025, 

which establish the authority of the commission to issue air orders and what factors the commission must consider when issuing such orders; and §382.063, which authorizes the commission to issue emergency orders because of catastrophe. 

The adopted amendments implement TWC, §§5.501, 5.502, 

5.504, and 5.515, and THSC, §§382.011, 382.012, 382.024, 

382.025 and 382.063. 

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 June 30, 2006. 

TRD-200603529 

Robert Martinez 

Acting Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: July 20, 2006 

Proposal publication date: March 10, 2006 

For further information, please call: (512) 239-0348 

• • • 

CHAPTER 39. PUBLIC: NOTICE 

The Texas Commission on Ehvironmental Quality (TCEQ or 

commission) adopts amendments to §§39.501, 39.503, and 

39.651 wfth changes to the te as published in the March 24, 

2006, issue of the Texas Regi er (31 TexReg 2403). 

BACKGROUND AND SUMM RY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULES 

House Bill (HB) 1609, 79th Le islature, 2005, amended Texas 

Health and Safety Code, §§36 .0666, 361.0791, and 361.082, 

by making the applicant's publi meeting and the TCEQ's public 

meeting on new hazardous ~ste management facilities and 

new municipal solid waste rna agement facilities discretionary, 

rather than mandatory. In ord r to implement this change, the 

commission adopts amendmJnts to §§39.501, 39.503, and 

39.651 to reflect the change i statutory language from "shall 

hold a public meeting" to "may hold a public meeting." 

SECTION BY SECTION DISC SSION 

Administrative and grammatic I changes are adopted throughout the sections to bring the e isting rule language into agreement with Texas Register requi ements, agency guidelines, and 

guidance provided in the Texas egis/ative Council Drafting Manual, November 2004. 

The adopted amendments to§ 9.501(e), Application for Municipal Solid Waste Permit, distin uish between applications filed 

before September 1, 2005, th effective date of HB 1609, and 

applications filed on or after S ptember 1, 2005. The mandatory public meeting requireme ts in paragraph (1) for applications filed before September 1, 2005, are left in place, changing 

the subject from the "applican " to the "application" to conform 

to the language in Section 6 o HB 1609. New paragraph (2) is 

adopted for discretionary publ meetings for applications filed 

on or after September 1, 2005, nd removes the 45-day requirement for the applicant's public eeting. New paragraph (2)(A)(i) 

also specifies that the agency' public meeting will be held un31 TexReg 5646 July 14, 2006 Texas Register 

der 30 TAC §55.154 that, in turn, requires the executive director 

or the Office of Public Assistance to hbld a public meeting if the 

executive director determines that thare is a substantial or significant degree of public interest in an ~pplication or if a member 

of the legislature who represents the beneral area in which the 

facility is located or proposed to be lodlted requests that a public 

meeting be held. At the direction of the commission, guidance 

on the executive director's discretion 1n determining substantial 

public interest in an application has b en added by repeating a 

portion of Texas Water Code (TWC), 5.554 in new clause (ii). 

New paragraph (3) defines "substanti I public interest" in terms 

of a local governmental entity with ju isdiction over the location 

at which the facility is proposed to b located by formal resolution of the entity's governing body; a c unci I of governments with 

jurisdiction over the location at which the facility is proposed to 

be located by formal request of eithe the council's solid waste 

advisory committee, executive com ittee, or governing board; 

a homeowners' or property owners' ssociation formally organized or chartered and having at lea t ten members located in 

the general area in which the facility s proposed to be located; 

or a group of ten or more local resi ents, property owners, or 

businesses located in the general a ea in which the facility is 

proposed to be located. Existing para raphs (2)- (4) are renumbered as paragraphs (4)- (6), and ref rences back to paragraph 

(1)(A) in renumbered paragraphs (4) and (6) are made to refer 

back to paragraph (1 )(A) or (2)(A) hile the reference back to 

paragraph (1 )(B) in renumbered par graph (5) is made to refer 

back to paragraph (1 )(B) or (2)(B). 

The adopted amendments to §39.5 3(e)(1 ), Application for Industrial or Hazardous Waste Facility ermit, distinguish between 

applications filed before September 1 2005, the effective date of 

HB 1609, and applications filed on o after September 1, 2005, 

changing the subject from the "appli nt• to the "application" to 

conform to the language in Section of HB 1609. New paragraph ( 1 )(A) retains the mandatory ublic meeting for applications filed before September 1, 2005, hile new paragraph ( 1 )(B) 

makes the public meeting discretion ry for applications filed on 

or after September 1, 2005. New pa agraph (1 )(B)(i) also specifies that the agency's public meetin will be held under 30 TAC 

§55.154 that, in turn, requires the e ecutive director or the Office of Public Assistance to hold a pu lie meeting if the executive 

director determines that there is a s bstantial or significant degree of public interest in an applic tion or if a member of the 

legislature who represents the gene al area in which the facility 

is located or proposed to be located equests that a public meeting be held. At the direction of the c mmission, guidance on the 

executive director's discretion in de ermining substantial public 

interest in an application has been a ded by repeating a portion 

of TWC, §5.554 in new clause (ii). 

The adopted amendments to §39.5 3(e)(2) distinguish between 

applications filed before September , 2005, the effective date of 

HB 1609, and applications filed on r after September 1, 2005, 

changing the subject from the "appl cant" to the "application" to 

conform to the language in Section 6 of HB 1609 and including 

Class 3 modifications with major a endments. New paragraph 

(2)(A) retains the mandatory public eeting for applications filed 

before September 1, 2005, if a pers n affected files a requestfor 

a public meeting with the chief cler concerning the application 

before the deadline to file public c mment or hearing requests. 

New paragraph (2)(B) makes the p lie meeting discretionary for 

applications filed on or after Septe ber 1, 2005, and removes 

the affected person requirement d leted from the statute in HB 

1609. New paragraph (2)(B)(i) als specifies that the agency's