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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 Commissionadopted amendments to §§35.801, 35.802, 35.804, 35.805, 35.807,and35.808 in 30TAC Chapter 35, Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of PermitConditions,_ Subchapter K, Air Orders; and corresponding revisions to the SIP. This rulemaking allows for the authorizationofemergencyorders to repairorreplaceroads, bridges, orotherinfrastructure improvements involving public works projects destroyed during acatastrophe. Additionally, the adopted rules will authorize an applicant to list loss ofa critical transportation thoroughfare as a reason why the constructionandemissions are essentiaL The rule amendments conformwithTexas Water Code, §5.515, as amended by House Bill2949, 79th Legislature, 2005, ensuringconsistency in the rules with the statute. Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearing, and the accompanying order. I look forward to your expeditious approval ofthese SIP revisions. Sincerely,

# ct,~AJW Chairman KHW/lb

cc: The Honorable Rick Perry, Governor ofTexas Mr. Zak Covar, Office ofBudget, Planning, and Policy, Office ofthe 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 OFTEXAS § 

### COUNTY OF TRAVIS §

This is to certify that the attached are true and correct copies ofdocuments 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 arecords administrator for the Texas CommissiononEnvironmental Quality.

Kevin McCalla Director, General Law Division Texas Commission on Environmental Quality

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### => "-) tO 0 Texas Commission on Environmental Quality Public Hearing April 4, 2006 Concerning Revisions to Chapter 35, Emergency and Temporary Orders and Permits; Temporary Suspension orAmendment of Permit Conditions Rule Project Number2005-070-035-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 implementationplan.

The rulemaking implements requirements ofHouse 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 ofa 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 ofTestimony
o Staff Recommendations (including Order and Texas Registerpublication)



### Additional copies ofthis 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 ofthe 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 ofthe proposed rules in the March 10, 2006, issue ofthe 

### Texas Register (31 TexReg 1599).

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

### Texas Register(31 TexReg 1802).

4. Correspondence forwarding the notice of public hearing to the following officials and agencies: Speaker ofthe House Lieutenant Governor Alamo Area Council ofGovernments Capital Area Planning Council City of Dallas Department of Environmental and Health Services City of Dallas Department ofAviation EastTexas Council ofGovernments El Paso City-County Health and Environmental District El Paso Metropolitan Planning Organization Federal HighwayAdministration

### FortWorth 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 ofGovernments South East Texas Regional Planning Commission Texas Department ofTransportation 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·BYTHE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ON PROPOSED REVISIONSTO 30 TAC CHAPTER 35AND 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 implementationplans (SIPs). The proposed rulemaking would implement re- quirements .of House Bill 2949, 79th Legislature, 2005. The proposed rulemaking would expandthe list of actions that can be authorized by·an emer- gency order to include the repair or replacement of roads, bridges.orother infrastructure improvements. Additionally,**~he** proposed

.rulemakmg would authonze anapplicant 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 torthe receipt ot oral or written com- ments by interested oer- sons. Registration will begin30 minutes priortothe 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 by5:00p.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. echips were skimmed from the surfaces ofthe impoundments and so d to plastic recyclers. The lead and lead sulfate sediments on the bo ms ofthe impoundments were sold to a lead smelter. In 1983, the Texas Department ofHe th (TDH) found concentrations oflead 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 ofthe Jacksonville site, base on the lead concentrations in soil. PCIthen 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 DementChiropracticFitness Center, which built an outdoor s imming pool and a volleyball courtjustnorth ofthe feed store. In March 1991, the Field Investigatio Team ofthe United States Environmental Protection Agency, Regi n 6, conducted a site screening investigationatthesiteto verifythee ctivenessoftheremoval action performedbyPCI. On-siteleadcone ationswerebetween 100-400 mglkg, except for two samples. One ample had a lead concentration of3,780 mglkg and the other had 43, 0 mglkg. InFebruary 2000, the analyticalresult from the soil samples collected byTCEQ showedthe leadconcentrati ns ranging from 3,100to 4,800 mglkg. Chips ofbattery casings were visible in the roadside ditch in front ofthe feed store. A Hazard R king System (HRS) evaluation was conductedby the TCEQ, and an score of6.09 was assigned to the site. At apublic 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 Superfundregistry in theDec mber5, 2003 issueofthe Texas Register(28 TexReg 11012) underT C, Chapter 361, SubchapterF. 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 ofthe feed store neara ditch (loc tion ofa former railroadtrack), showed concentrationsofberylliumab vethe PCLof0.004milligram per liter. Additionally, groundwater amples from two other wells installed atthe former unlined impou ments showed the presence of beryllium,but atconcentrationsbelow ePCL. Soil samplescollected at these former impoundment locatio s also showed the presence of beryllium. To prevent migration ofthe 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. TheTCEQplans t remove the lead-contaminated soil that is above PCLs from the two I cations north ofthe 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 disposedofatan approved off-s te facility. Theexcavated areas will be sampled to confirm the remov I ofcontamination and will be backfilled with clean soil. After the co pletion ofthe 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 ofthe completepublic recordfile maybe obtained during busi ess hours atthe 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 offile information is subject to payment ofa fee. Parkin for persons with disabilities is available on the east side ofBuilding ,convenientto an access ramp that is between Buildings D and E. Forfurtherinformation,pleasecontact r. SubhashC. 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-200601094 Stephanie Bergeron Perdue Acting Deputy Director, Of ce of Legal Texas Commission on Environmental Filed: February 28, 2006 

# • • • Notice ofPublic Hearing onProposed Revisions to 30 TAC Chapter35 andthe State ImplementationPlan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter35, Emergency andTemporary Orders and Permits; Temporary Suspension or Amendment ofPermit Conditions, under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102, ofthe United States Environmental ProtectionAgency (EPA) regulations concerningstate implementation plans (SIPs). TheproposedrulemakingwouldimplementrequirementsofHouseBill 2949, 79thLegislature, 2005. The proposedrulemakingwould expand the list ofactions that can be authorizedby an emergency order to includetherepairorreplacementofroads,bridges, orotherinfrastructure improvements. Additionally, the proposed rulemaking would authorize an applicant to list loss ofa critical transportation thoroughfare as areason 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 oforal or written comments by interested persons. Registration will begin 30 minutespriorto thehearing. Individuals maypresentoral statementswhen called upon in order ofregistration. There will be no open discussion duringthehearing; however, a staffmemberwillbeavailabletodiscuss 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 orotheraccommodationneeds, should contactLolaBrown, Office ofLegal Services at (512) 239-0348. Requests should be made as far in advance as possible. Comments maybe submitted to LolaBrown, MC 205, Texas Register Team, Office ofLegal 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 ProjectNumber2005- 070-035-LS. Commentsmustbereceivedby5:00p.m.,April 10, 2006. Copies ofthe 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 Envir ental Quality (TCEQ orcommission) staffis providing an opport nity for written public comment on the listedAgreed 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 ofthe proposed orders and the opportu ty to comment mustbepublished in the Texas Registerno later than e30th day before the date on which thepublic commentperiodcloses whichin this caseis AprillO,2006. Section7.075 alsorequires thatt commissionpromptly considerany written commentsreceived and atthe commissionmay withhold approval ofan AO if a comment iscloses facts or considerations that indicate the proposed AO is ina propriate, improper, inadequate, or inconsistent with the requiremen ofthe Code, the Texas Health and Safety Code (THSC), and/orthe exas Clean AirAct (theAct). Additional notice is notrequired ifch nges to an AO are made in response to written comments. A copy ofeach proposed AO is a ailable for public inspection at both the commission'scentraloffice, l a ted at 12100Park35 Circle,Building C, IstFloor, Austin, Texas 78 53, (512) 239-1 864and atthe applicableregional office listed as foll ws. Writtencomments about an AO shouldbe sent to the enforcemen coordinatordesignated for each AO at the commission's central offic at P. 0. Box 13087, Austin, Texas 78711-3087 and must be receive by5:00p.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 enforcementcoordinators are availabletodiscusstheAOs and/orthe comment procedure at the listed phone nu bers; however, §7.075 provides that comments on theAOs shouldbe bmitted to the commission in writing. (I) COMPANY: Anadarko Petro urn Corporation; DOCKETNUMBER: 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), byfailingto saisfythe conditionsofa standardpermit; 30TAC §106.352(1) and §II .110(a)(4) andTHSC, §382.085(b), by failing to satisfy the conditio ofa 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 ofAnahua DOCKET NUMBER: 2004-2124- PWS-E; IDENTIFIER: Public ater Supply Identification Number 0360001, RNI0!188761;**LOC~** TON: Anahuac, Chambers County, Texas; TYPE OFFACILITY: pub! cwatersupply; RULEVIOLATED: 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 ofraw 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 ofmonitorin 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, (210) 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: chemicalmanufacturing;RULE VI LA TED: 30TAC §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. dbaD vis QuickStop;DOCKETNUMBER: 2005-1462-PST-E; IDENTIF R: RNI01538692; LOCATION: North Richland Hills, Tarrant Cou y, Texas; TYPE OF FACILITY:



### INADDITION March 10, 2006 31 TexReg 1803A contractor asserting a claim t at the agency has breached a contract must file a notice ofclaim as fi lows.
(3) Copies ofthe ttennotice ofclaim and all otherdocumentsfiled with the chiefclerk ustbe servedontheexecutivedirector andthe deputy director ofOffic ofLe a! Services [GbS] no laterthan the day offiling. (4) The executive d ector shall file any appropriate counterclaim with the chiefclerk wi in 60 [9Q] days after the filing ofthe notice ofclaim and provide a c pytOthe contractor. Negotiation. (No change.)

(b)- (c) (No change.) (d) A contractor must s rve copies ofthe request for hearing on the executive director and e deputy director ofOffice ofLegal Services [Gl.S] no later thanth day offiling. (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, Chapter200I, astotheissuesrai edintherequestforhearing. Referral ofa request for hearing to SO H does not constitute waiver by the commission ofstatutory or re atory requirements for the notice of claim, the claim or the request fi r hearing. (f)

- (g) (No change.) Thisagency herebycertifiest tthe proposal has been reviewed by legal counsel andfoundto ewithin the agency's legal authority to adopt. Filed with the Office ofthe 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 ofadoption April 9, 2006 For further information, please ca 1: (512) 239-6087 

# • 

# • • CHAPTER 35. EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION ORAMENDMENT 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 ofthe application for an emergency order. The required language in the application pertainingtothe 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 ofthis chapter. Becausethe statute is self-implementing, an emergency order could currently be issued for one ofthe previouslydescribed instances priortothe adoption ofthese proposed rules. The proposed rules would add language authorizing emergency ordersto include repairorreplacementofroads, bridges, orother infrastructure improvements tothe list ofactionsthat 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 pointofclarification, it is noted that the issuance ofan emergency order, underthe proposed rules, to a rock crusherorconcrete batch plantthat performs wet batching, drybatching, orcentral mixing will not be prohibited underTWC, §5.5145, or subject to penalty underTWC, §7.052(b), because thefacility 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 ofcatastrophe 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 preventthe 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 describingthe limitations on the proposed construction and emissions, the applicant may cite the public works project as the specific basis for the emergency authorization.



### PROPOSEDRULES March 10, 2006 31 TexReg 1599The 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 ofa critical transportation thoroughfare, and thatthe construction and emissions are necessary for the repair or replacement of roads, bridges, orother infrastructureto the list of possible reasons that would allow the commission to issue an emergency order. Proposed new §35.804(5)(C), adds publicworks projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a catastrophe to the listoflimitations ofthe 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 ofthe 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 underthis 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 necessaryforthe repair or replacement of roads, bridges, or other infrastructure to the list of possible reasons that would allowthe commission to issue an emergencyorder. Proposed new §35.807(5)(C) adds public works projects needed to rebuild or repair damaged roads, bridges, orotherinfrastructure destroyed during a catastrophe tothe list of limitations ofthe proposed construction and emissions. The proposed amendmentto §35.808, Modification ofan 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 essentialto preventthe lossofa critical transportation thoroughfare, and that the construction and emissions are necessaryforthe repair or replacement ofroads, 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 acatastrophe. 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 applicantto list loss ofacritical 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 an

### 31 TexReg 1600 March 10, 2006 Texas Register ticipated for other units of state or local government due to the enforcement or administration ofthe 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 ofemergency orderswould 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 quicklyto 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 adverselyaffect 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 lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because itdoes not meetthe definition ofa "major environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent ofwhich, is to protect the environmentor 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, orthe public health and safety ofthe state or a sectorofthe state. The commission has determinedthatthe proposed rulemaking does not fall under the definition of a "major environmental rule" because none ofthe 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 ofthe 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 ofwhich 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; or4) 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 notexceed any standard set byfederal 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 agencyorrepresentative ofthe federal governmentto implement any state and federal program; and 4) is not proposed solely underthe general powers ofthe agency, but rather specifically under TWC, §5.515. TAKINGS IMPACT ASSESSMENT The commission evaluated these proposed rules and performed an assessment ofwhetherthese proposed rules constituteatakings 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 ofprivate real property, and there would be no reduction in value of property as a result ofthis rulemaking. None ofthe proposed rules mandateanynew requirements, butrather, provide for a specific type ofauthorization. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission reviewed the proposed rulemaking and found thatthe proposal is a rulemaking 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 duringthe 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 ofcoastal natural resource areas. CMP policies applicabletothe proposed rules includetheadministrative policies and the policies for specific activities related to the emission of air pollutants. Promulgation and enforcement of these proposed rules is consistentwiththe applicable CMPgoals 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 ortemporary orders to address unforeseen circumstances such as potential catastrophes. Promulgation and enforcement ofthese rules will notviolate 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 forthe 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 201A, 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 duringthe hearing; however, astaff memberwill 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 orotheraccommodation needswho are planning to attend the hearing should contact Lola Brown, Office ofLegal 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., April10, 2006. Forfurther 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; §5.103, 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; and §5.515, which allows the commission to issue emergency orders for immediate action for the addition, replacement, or repair offacilities 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 underthe Texas Clean AirAct (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 offacilities or control equipment, or the repair or replacement ofroads, bridges, or other infrastructure, and authorizing associated emissions of air contaminants, whenever a catastrophe necessitates such construction and emissions otherwise precluded underthe Texas Clean AirAct [+GAA 

### J. Forpurposesofthis section, a catastrophe is an unforeseen event including,butnot limited to, an act ofGod, an actofwar, severe weatherconditions, explosions, fire, or other similar occurrences beyond the reasonable control ofthe**applicant[~],** which renders a facility or its functionally related appurtenances, or a road, bridge, or other infrastructure, inoperable. §35.802. Applicationfor 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



### PROPOSEDRULES March 10,2006 31 TexReg 1601ofthis 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 oflife, serious injury, severe property damage, Joss ofa 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 ofroads, 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] thepropertywherethe catastrophe**occurred~** .@2 [BF] on other property owned by the owner or operatorofthe damaged facility, whichproduces the sameintermediates, products, or by-products, provided [providing] that no more than a de minimus [ 

### ae fllini.mts] increase will occur in the predicted concentration oftheaircontaminants at orbeyondtheproperty lineat such other property; Q!: _(g for public works projects needed to rebuild or repairdamagedroads, bridges, orother 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 ifit is found that: (1) the proposed construction and emissions are essential to prevent loss oflife, serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe economic loss not attributableto the applicant'sactions and are necessary for the addition, replacement, orrepairoffacilities orcontrol equipment, orrepairorreplacementofroads. bridges,orotherinfrastructure, that is necessitated by a catastrophe; (2)- (4) (No change.) (5) theproposed constructionoremissions will occur only: (A) on [at] property where the catastrophe occurred; (B) on [al] otherproperty ownedby the owner oroperator ofthe damaged facility, which produces the same intennediates, products, or by-products, provided that [oo lang as tftere wilt be] no more than a de minimus [ 

### ae mffi.Hflis] increase will occur in the predicted concentration ofthe air contaminants at orbeyondthe property line at such other property; .Q! _(g for public works projects needed to rebuild or repairdamaged roads, bridges, orother infrastructuredestroyedduringa catastrophe; (6)

- (7) (No change.) §35.805. Contents of an Emergency Order. In addition to the requirements of§35.26 ofthis title (relating to Contents ofEmergency or Temporary Order). an emergency order issued underthis subchapter shall contain at least the following: (l)-(2) (Nochange.) (3) authorization for action only; 

### ® on [at] thepropertywherethecatastrophe**occurred~**


### 31 TexReg 1602 March 10, 2006 Texas Register .@2 [er] on otherproperty owned bytheowneroroperator ofthe damaged facility, which [ft!.se] produces the same intenncdiates, products, or by-products, provided !!_1_!!! [therew*l be] no more than a de minimus [de mi-ffirnis] increase will occur in the predicted concentration ofthe air contaminants at orbeyond the property line at such other property; .Q! fQ for public works projects needed to rebuild or repairdamagedroads, bridges, orotherinfrastructuredestroyed during a catastrophe; (4) (No change.) (5) a schedule for submission ofa complete construction pcm1it application under provisions ofTexas Clean Air Act [+C-AA], Chapter 382 [§382.0518]. §35.807. Affirmation of an Emergency Orde1: Thecommissionshall affirm aproposedorissuedorderifthe applicant shows at thehearing, by a preponderance ofthe evidence, that: (l) the proposed construction and emissions are essential to prevent loss oflife, serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and arenecessaryfor the addition, replacement,orrepairoffacilitiesorcontrol equipment, orrepairorreplacementofroads, bridges, orother infrastructure, thatis necessitated by a catastrophe;

[ef] (2)- (4) (No change.) (5) theproposedconstruction oremissions will occuronly: (A) on [at] property where the catastrophe occurred; (B) on [at] otherproperty ownedby the owneroroperator ofthe 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 ofthe air contaminants at orbeyond theproperty line at such otherproperty; Q!: fQ forpublic works projectsneededtorebuild orrepair damaged roads, bridges, or other infrastructure destroyed during the catastrophe; (6)

- (7) (No change.) §35.808. Modification qf an Emergency Order. Thecommission shall modify aproposed orissued orderifthe hearing record shows that: (1) construction and emissions otherwise precluded under theTexas Clean Air Act [+GAA:] are essential to prevent loss oflife, serious injury, severeproperty damage, loss ofa critical transportation thoroughfare,orsevereeconomiclossnotattributableto theapplicant's actions and are necessaryfor the addition, replacement, orrepairoffacilitiesorcontrolequipment,orrepairorreplacement ofroads,**bridg~** orother infrastructure, that is necessitated by a catastrophe; (2)

- (3) (No change.) This agencyhereby certifiesthatthe proposal has been reviewed by legalcounsel and foundto be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on February 24, 2006. TRD-200600972Stephanie 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 relatesto municipallyowned tilitiesthat provide nonsubmetered master metered utility servia to recreational vehicle parks. HB 841 amended Texas Water ode (TWC), §13.087, by defining "nonsubmetered mastermet red utilityservice" 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 intothe 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 authoritytotake enforcement action againsta municipally ow ed utilitythat chargesa 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 forthe agency orother 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 determinetheir ratesfor 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 mastermetered but notsubmetered nd wastewaterservicethat is based on master metered potable ater service. The rulemaking would not affect age cy revenues orcosts. The agency would be required to revie complaints received from recreational vehicle parks and take y necessary enforcement action. Any additional costs forthe 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 oroperate municipal water utiliti s. Local governmentsthat own theirown 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 uponthe level ofwater 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 determinedthatfor ea hyearofthe firstfive 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 utilites that provide nonsubmetered master metered utility service o recreational vehicle parks to determinetheir rates for recreatio al vehicle parks in thesame manner used for other commercial usinesses that serve transient customers. The rulemaking w uld grantjurisdiction to the agencytotake 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 wastewaterservicethat 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. Ofthe 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 higherthan other similar b sinesses and could result in financial savings forthe affected re reational vehicle parks. Any savings realized would be**depende~t** upon consumption and the current disparity between rates charjged forthe 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 1603Kathleen Hartnett White, Chairman R. B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner Glenn Shankle, ExecutiveDirector 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas byReducing andPreventingPollution



### NOTICE OF PUBLIC HEARING BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ON PROPOSED REVISIONS TO 30 TAC CHAPTER35 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 ofPermit Conditions, under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederalRegulations §51.102, ofthe United StatesEnvironmental ProtectionAgency (EPA) regulations concerning state implementation plans (SIPs). Theproposedrulemaking would implementrequirements ofHouse Bi112949, 79thLegislature, 2005. The proposed rulemaking would expand the list of actions that can be authorized by an emergency order to include the repair or replacement ofroads, bridges, or other infrastructure improvements. Additionally, the proposed rulemaking would authorize an applicantto listloss ofacritical 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, Room201A, attheTexasCommissiononEnvironmentalQualitycomplexlocatedat 12100Park35 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 calleduponinorderofregistration. Therewill be no opendiscussionduring the hearing; however, astaff memberwill 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 LolaBrown, Office ofLegal 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 ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should referenceRuleProjectNumber2005-070-035-LS. Commentsmust 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 inAustin, 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

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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'irect.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



### 3CAA, 

### 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,

# vi~ Chief 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 (definit.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:mnentsRegulaYes 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



# .. In attainment area in where 11. 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)
? ? 

## .. Baseline in nonatt.ainment 1.1

. area \.,rhich 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 baselinel1eets Guidance State Recy.lirernent**~P~.** CommentsRegulaYes 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 characterizir.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 visibilityMeets Guidance Yes No N/A StateRegulation

?

? 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~ology** based 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::sNeets 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 \.,rith**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 September27, 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 byRule (formerly PermitExemptions) DearMr. Steib: Thank you forextendingthe opportunity to meet with you andyour staffon August 15, 2000. Duringthe meeting, we discussedour approval ofrevisions to 30Texas Administrative Code Chapler 116 - Control ofAirPollution 

### by PermitsforNew Construction andModifications. This includes revisions submittedto the Environmental Protection Agency (EPA) on August 31, 1993 (1993 submittal) andJuly 22, 1998 (1998 submittal). Duringthis meeting, we discussed ourplan for approving theserevisions into the Texas State ImplementationPlan (SIP) and identified the areas where we continue to haveconcerns. We have reviewedtpe 1993 submittal and haveidentifiedthe provisions that we believe are approvable. BecauseTexasrevised and recodifiedits existing Chapter 116in 1993, we considerthe 1993 revisions to bethebase regulation upon which futurerevisions can be approved. The 1998 subminal includes the adoption ofprovisionstoimplement 112(g) ofthe Federal· Clean AirAct (Act)_ lt also includes changes throughout Chapter 116the Texas Natural Resource Conservation Commission (TNRCC) made underits regulatoryreform to simplify and clarifyits rules. The 1998 submittal also includes provjsions thatTNRCC adopteu after the 1993 submittal bul which are currently undergoingreview by

### EPA. Consequently, we cannot approve all provisions ofthe 1998 submittal until we complete ourreview. Accordingly, on August 15, 2000, we stated ourdesire to approvethe 1998 submittal to the extentthat it is equivalent tothe 1993 submittal.

### 2 

### Approvingportions ofthe 1998 submittal now ratherthan when we complete review of

# an revisions made after 1993 is desirable for the following reasons_ Approval oftheprovisions us they exist in the 1998 submittal will bling the federally approved SIP 

### for Chapler 116

### more closelyin line with the Chapter as itcurrently exists in the State'sprogram. Ourapproval ofthese revisions will also facilitate future revisions thatTexas may make to 

### Chapter 116, byenablingus to approve them 

### into the current organizational structure. This 

### approval also better serves the State, the public, and the regulated communitybyenablingthe 

### approved SIP

### to more closely match therules thatTexas currently implements. Consistent with ourdiscussions with you and your staffon August 15, 

### 2000, we will take no action on provisions of Chapter 116 which ure not equivalenttothe 1993 submittal. We will 

### aul

### nn these provisions of Chapter 116 in separateFederal Register actions afterwe complete ourreview oftheseprovisions to detennine whetherthey arc approvable. We have includedEnclosure 1whichidentifies theprovisions ofChapter 116 Lhat we plan to approve_ lf

### there are any changes to otlrplans, we will advise you of thesechanges.
We also discussed items ofconcern that wehaveidentifiedwith certain provisions ofthe 1993 and 1998 submittals. Weinitiallyidentifiedthese concernsin a letterdated August 3, 1999, to HerberlW.Williams, 

### Jr. anddiscussedthem with TNRCC'sRegulation Development andPermitting staffs on August 4, 1999. In August 1999, we identifiedthe following concerns:

• Emlssion Reduction Creditsin Sections 116.170, 116.174, and 116.175;

• Emergency Orders in SubchapterE ofChapter 116 

### and SubchapterK ofChapLer 35 (original submittedAugust31, 1993, and revisions submittedDecember 10, 1998); and

• StandardExemptions in SubchapterC ofChapter 116. The 1998 submittal also includes SubchapterC -HazardousAirPollutants: Regulations Governing ConstructedorReconstructedMajorSources (Federal Clean AirAct, section 112(g), 40 CodeofFederal Regulations (CFR) part 63). Theprogramforreviewing and permittingconstructed andreconstructedmajorsources ofhazardous airpollutants (HAP) isregulated undersection 112 

### oftheAct and under40 CFRpart 63, subpartB. Undertheseprovisions, States establish case-by-case determinations ofmaximum achievable control technologyfor new

### 3 

### and reconstmcted major sources ofHAPs. The process for these provisions is can·ied out separately from the SIP activities. Consequently, we arc taking no action on SubchapterC of Chapter 116, as submitted with the 1998 submittal. Theremainderofthis letterdiscusses ourconcerns with the above. Emission Reduction Credits Sections 116.170, 116.174, and 116.175 replace Sections 116.3(c), (d), and (e). OnJuly 17, 2000 (65 Federal Register (FR) 43986), we approved the introductoryparagraph ofSection 116.170 and Sections 116.170(1) and (3). Theremaining provisions (Sections 116.170(2), 116.174, and 117.175 (formerly 116.3(c)(2), (d), and (e))) were neversubmittedto EPApriorto the 1993 submittal. ln ourreview ofSections 116.170(2), 116.174, and 117.175, we have identified concerns. SecEnclosure 2. We have comparedthe proposed regulation tu ourguidance in the area setforih in the Emissions TradingPolicyStatement, December4, 19&6 (51 FR433814-43860); 40 Code ofFederal Regulations (CFR) part 51, subparlU; and40 CFRpart51, appendix S (Emission OffsetTnterpretative RuJing). The enclosed chart sets forth thecriteria which we believe are necessaryfor approval. We have idenlified how we believethe submittedrules may be consistentwith these requirements, hut would like to confirm or disaffirm yourinterpretation. Additionally, there are some components ofthe guidance which we cannot locate in the submittedrules. Those areas are indicated with question marks. We previouslyidentified concerns. We now haveresolvedthese issues to be consistentwith the EmissionTradingPolicy andTNRCC bankjng

### regulations.
In addition, 40CFR51.165(a)(3), and appendix 

### S of40 CFRpart 51 require that offsets be consistent with 

### the plan for achievingreasonable further progress in a nonattainment area. It

### is not clearthat Sections l16.170, 116.174, and 116.175, satisfythis requirement.
We further understandthat Texas is in the process ofrevising its 

### regulations pertaining to emissionreduction 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 fornitrogen oxides containedin Chapter 117. Wehaveresolved the eoncems with these proposedrevisions. BecauseChapter 117 and Sections 101.29, 116.170, 116.174. and 116.175 me related to and interact with each other, and because ofthe concems inEnclosure 1, we can only grant approval orSections 116.170, 116.174, and 116.175 afteryou adequately address our concerns. Consistentwith 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 ofChapter 116. Wewill take appropriate action on these Sections in a separateFRAction after you address the eonccms identified herein.
Webelieve**th~t**

### Texas andEPAcan administer and implement the provisions ofthe 1993 recodification without ourapproving Sections 116.170(2), 116.174, and 116.175. Texas has provisions elsewhere in Chapter 116 

### to require offsets which satlsfythe offsetprovisions ofsection 173(a)(l) ofthe Cl.ean Air

### Act. See Sections 116.12 (definition of**"m~jor**

### modification''- TableI and "offsetratio"), ll6.150(a)(3) and 116.151(3)). Furthermore, EPA has been able to administer and implement the existing SIP withotll theseprovisions. PermitExemptions
On December29, 1998, TNRCCrequested thatEPA delay action on Chapter 116, SubchapterC, Sections 116.211, 116.212, and 116.213 which relate to StandardExemptions. FollowingEPA'sresponse on January 20, 1999, and a conferencecall on March26, 1999, you provided a more detailed explanation on the reasons for yourrequest. On April 26, 1999, TNRCC requested that we delay action on SubchapterC because ofseveral bills which were before the legislature which, ifpassedintolaw, will affectthe new sourcepermitting structure of the Agency, includingexemptions. You requested that wedelay action on SubchapterC and retain Section 116.6 (approvedAugust 13, 1982, 47FR35193).
We understand thatthesebills were enactedinto law andthat you hnve now adoptedthe changes to yourformerpermitexemptions by convertingthemto permits byrole. The permits by rule are in Chapter 106. Werequestthatyou confirm ourunderstandingofthe status ofthepermitsby rule. We furtherrequest that you audress whetheryou plan to submit Chapter 

### 106, or any portions thereof, thereasons why you do notconsiderany portions you donot submitnecessaryforthe SIP, and when you anticipate submittal oftheseprovisions.

### 5 Consiste!lt with ourAugust 15, 2000, meeting, we plan to take no action on SubchapterC of Chapter 116 (1993 submittal) when we act onthe 1993 and 1998 submittals ofChapter 116. We will take appropriate action onthese provisions after you**addre~s** 

### the concerns identifiedherein. Prior to anyfuture action on any Fumre submittnl ofyourregulations concerningpermits by rule, we 

### will retain Section 116.6 (approved August 13, 1982) 

### in the Texas SIP. EmergencyOrders After careful review, we believe that we may be able to approvetheserevisions to

### the SIP underthe assumption.thatthe review process to issueanEmergency Orderis the same as orequiv,llent to theregularpermit review process. However, we needclarification ofthe following issues:

• Please show where your 11.1le gives the authorityto require technical review ofsuch airquality 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 andlater was found that someStaleor Federal requirement was notmet? Does the issuance ofthe order shieldorprotectthe soul'ce from enforcementaction, orwould section 35.23 not allow such a shield?

• Section 116.410providesthat a facility may applyto TNRCC for an Emergency Orderunder theTexas WaterCode (TWC), Section 5.515, and Chapter35 ofthis 30TAC to authorize immediate action. Does a sourceneed to make two applications oris the referencetoTWC Code 5.515 meantto show the authority ofChapter35? Does 1WC5.515 need to be submitlcd and approved inlo lhe SIP? Pleaseprovideyour inlerpretation ofhow these two relate.

• Please tell us whichparts ofChapter35 you thinkneedto be approvedintothe SIP for air**purpose~.** 

### We thinkparts ofSubchapters A, B, C, and Kat a minimumneedtobe approved. 

### Ifyou do not agree, and/orbelievewe should approve otherprovisions ofChapter 35, we should discuss this at the meeting.

• Whereistheterm 

### "de minimisincrease" defined for all criteriap<)llulants? 15 there an ambienl 

### de minimis LhreshoJd for ozone orforits precursors (volatile organic compounds andoxides of nitrogen)? Whereis theterm "national ambient air quality standards" defined?

### 6

• While we believe that the concern statedin our letter dated August 3, 1998, relativeto the relationship ofChapter35 Lo General Rule l01.11 may be satisfied, we have not yetbeen able Lo confinn Lhat position with the EnforcementDivision which originallyraised the issue. We hopeto have 

### a clearanswerbythe time that wemeet. Consistent with ourAugust 

### 15, 2000, meeting, we plan tC> takeno action on SubchapterE of Chapter 116, when we act on the 1993 and 1998 submittals ofChapter 116. We will take appropriate action on theseprovisions afteryou address the concems identified herein.
W c appreciate your allention to these matters. 

### Ifyou have anyquestions, pleasecall StanleyM. SpruieJI ofmy staffat (214) 

### 665-7212.

Enclosures
bee: JoleLuehrs 6PD-R:x7250 Sincerelyyours, 

### Original signed by 

### Jole C. Luehrs Chief AirPermits Section

### ENCLOSURE! PROVISIONS OF 30TAC

### THAT 'WE ARE APPROVINGINTO TEXAS' 

### SIP.

New SIP Cilation Fom1er SIP Citation Dale adopted Title Explanation by State 

### Chapter 101- GeneralRules Section lOl.l Same 08/16/93 Definitions Approved revised definition of"nonattainmentarea" and reinstaleddefinilion of''de minimisimpacl" Chapter 116- Conlrol ofAirPollution by Permits for Ne\'V Construction orModification. SubchapterA- 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 ComplianceHistory Defjnitions SubchapterB- 

### New SourceRevie\v Permits Division 1 - Pem1it Application



## -------------------------------------------------- -------------- ------------------------------- ------------------------------ Section 116.ll0 Sections 116.l(a)-(c), 06/L7/98 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 DjstanceLimitatjons and ll6.3(a)(l3)

### New SIP Citation FonnerSIP Ciration Dale adopted Tille Explanation by State



## ------------------------ -------------------------· 

# -------------- ------------------------------ ------------------------------ Section 116.1l4 Sections 116.3(f). 116.5, 06/t7/98 ApplicationReview 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) NOTlN SIP



## ------------------------ ------------------------- 

# -------------- ------------------------------ ------------------------------ Section 116.116 Section 116.5 06/17/98**~hanges** 

### to Facilities Subsections {b){3) and (d) NOTINSIP Division 2 -ComplianceHistory



## ------------------------ 

# ------------------------- -------------- ------------------------------ ------------------------------ 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 ofCornpllance History



## ------------------------ ------------------------- 

## -------------- ------------------------------ 

## ------------------------------ Section 116.123 Section 116.14(e) 06/17/98 EffectiveDates



## ------------------------**-------~---------------~-** 

## -------------- ------------------------------ 

## ------------------------------ Seclion 116.124 Section 116.14(f) 06/17/98 Public Notjce ofCompJiance History**-------~----------------** 

## ------------------------- 

# ------------- ------------------------------ ------------------------------ Section 116.125 Section 116.14(g) 06/17/98 Preservalion ofExistjng Rights andProcedures



## ------------------------- ------------------------- -------------- ------------------------------ ------------------------------ Section 116.126 Section 116.14(h) 06/17/98 Voidance ofPermit Applications Division 3 -PublicNotice

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

## ------------------------------ Subsection (c) NOT IN SIP

### I\ 

### ew SIP CiLa

### 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 noLexist 06/17/98 SignPostingRequirements Subsections (f) 

### and (g) 

### NOT IN SIP



## ------------------------- ------------------------- --------------- ------------------------------ ------------------------------ Section 116.134 Section l16.10(a)(5) 

### 06/17/98 Notification ofAffected Agencies



## ------------------------ ------------------------- --------------**-~----------------------------** 

## ------------------------------ Section 116.136 Section l16.10(b) 

### 08/16/93 Public CommentProcedures



## ------------------------ ------------------------- --------------**-------------~----------------** 

## ------------------------------ Section 116.137 Section ll6.10(c) 08/16/93 ='l"olificalion ofFinal Action by

### the Commission Division 4- PermilFees**~-----------------------** 

## -------------------------- -------------- ------------------------------ ------------------------------ 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) andchanges to Section in L998 submittal.



## ------------------------- ------------------------- -------------- ------------------------------- ------------------------------ Section 116.143 Section 116.11(c)-(f) 06/17/98 PaymenlofFees

### New SIP Citation Fom1erSIP Citation Date adopted T1tle Explanation 

### byState Division

### 5

- Nonattainment Review**--------------~---------** 

## -------------------------- -------------- ------------------------------**---------------------~--------** 

### Section 116.150 Section 116.150 02124/99 NewMajorSource or Major Previously approved. No Modification in Ozone changes in 1998 submittal. NonattainmenlArea 

### Today's actionapproves



## ------------------------ ------------------------- 

# ------------- ------------------------------ Section 116.151 Section 116.151 03/18/98 New MajorSource orMajor incorporation intoDivlsion 

### 5 Modification in Nonattainmenl Area Other than Ozone Division6 - Prevention ofSignificantDeterioration Review



## ------------------------ ------------------------- --------------**------------------------~----- -----------------~------------**  

### Section 116.160 Secrion 116.160 06/17/98 Prevention ofSignificant Previously approved. Deteriora1ionRequirements Today's action approves



## ------------------------ ------------------------- 

## --------------**----------------~-------------** 

### changesin 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 ofAir

### 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 ofSignificant incorporation into Division 6 Deterioration PermitsFee,s Division 7- EmissionReduction: Offsets Section 116.170 Seclion 116.170 06/17/98 Applicability ofReduction Previously approved. Credits Today's action approves changes in 1998 submittal. Subsection (2) NOTIN SIP

### ENCLOSURE2
EfviTSSION REDUCTION CREDITS APPROV.L\BILITY CHECKUST
Based uponEmissions TradingPolicy Stalement, December4, 1986 (51 FR 433814-43860)

Meets Guidance State Requirement EPA Comments Yes No N/A Regula-tion
A CREATINGEMISSION REDUCTIONCREDITS 1. All reductions mustbe surplus

a. NotJequired bycurrent regulations in SIP b. Notrelied uponfor SIP planning purposes
c. Notused bysource for any otherregui:Jcory purpose

d. i. Baselinein attainmentarea must be lowerof actu81 or allowableemissions H. In auainment areain wherePSD**ba~eline** h8d been triggered, creditmay be granted consistenl PSD baseline concentralion ? ? e. i. Baselinein nonaltainmentarea with approved auainmencdemonstralion mustbe coosistent w/ assumptions used to develop area's attainment demonstration (actual orallowabJe) ? ? 

### ii. Baselinein nonatta.inmentareawhich needs, but lacks auainment demonstration, musl produce alr qualirybenefit as follows:

a. Use lowestofactual, SIP-aHowable, orRACTallowable**a~** baseline ? b. Meetambienlequi·valentlestdescribed in B-2 ofthis checklistMeels Guidance Stare Requirement EPAComments 

### Yes No N/A Regula-tion



### c Producesubstantial netreductionin actual emissions ? ? 2. Alternative emission limils mustbe enforceable

a. Eitherby SIP revision, EPAapproved generic bubble, ornew wurceprec.onstructionpermit

b. Bubble incorporated in enforceablecompliance instrumenl with recordkeeping based over averaging period overwhich the bubbleoperates '3. All reductions musl bepermanent. Generally assured byenforceablechanges ro permit or applicable regulations 4. All reductions must bequantifiable, both in 1erms of estimating amounts ofreduction and incharn.clerizing reduction for futureuse. May use eilheremission factors, stack tests, monilored values, or otherreasonable measurementprac1ices. Generally use same method lo quantify emissionlevels both before and afterreduction. B. USINGEMISSIONREDUCTIONCREDITS "! ? !. Involve same pollutant ? ? 2. Satisfy ambient tests which demonstrate thatarea will meet NAAQS, PSD increment, and Class Iprotection, includinglt'isibility 3. NoLincreaseemissions ofhazardous orto:<ic air pollut..anl. :Bubble may not be used to meet applicable requirements ofNESHAPSpromulgated under§lJ2of lheAct.Meets Guidance State Requirement EPAComments Yes No NJA Regula-tion
4. Exisring sourcecreditscanno1 be used to meet applicable technology-based requirements for new·**source~.** Bubble may notbe used Lo meetapplicable requirements ofNSPS promulgaLedunder §111 ofthe Act, as wdlas technology based requirements in permits issued under title I, parts CandDofthe Act (BACT and LAER). 5. States 

### may approve bubbles in primary nonartainment areas which require, butlack, approved attainment demonsuations iftrades meet**requirement~** designed to produce netenvironmental benefit and Slate provides assurances in sectionII.A.l ofthe ETPS. ? 6. Sources need not be subjectto bindingcompli:mce schedules based upon current SIPrequirements as prerequisite for applying for bubble. However. ifsubject to binding SIP-approvedc_ompliance schedule, such schedule remains 

### (ullyenforceableuntil bu!Jble affecting schedule is approvedbyEPA. '! 1. Statesmayextend certain compliance schedules in attainment areas providedEPA has apprmed extension provisionsin generic rule. ? 8. SLates mayapprove bubbles involving opendust sources orpanicula.Leemissions based upon modeling and/or monitoring demonslralions, ifsources agreed to post-approval monitoring todeterminethat predictedair qualilybenefits havebeen realized. ? ? 9. Tradesjn\'olvinglead allowed 

### ;rassurances are made ofnon-interference wilh auainmenr/maintenance of NMQSMeets Guidance State Requirement EPAComments Yes No N/A Regula-tion
'! 10. Trades in\•olvingERCs (rom mobile source measures allowed so long as reductions are demonsLraLed lobesurplus, permanent, quantifiable, and enforceable. EPA musl be approved bycase-by-case SIP revision. ? 11. In1erstale lrades maybe apprm·ed ifshown 10 meet all other requirements and meet the substantive requirements oflhemoststringent State. TheEPA musl beapproved bycase-b}•-caseSIPrevision. ? 12. Bubbles muslnotimpede enforcement Bubbles c.annotbecome shield**again~l** enfon::ementactionsfor sources which havefailed 10 l.ake necessary sleps required to meelconlrol obligations on lime.

## INDEX OF ORAL TESTIMONY

Reference Number Submitted by



### No oraltestimony was received pertainingto this proposal.

# EVALUATION OF TESTIMONY

# Texas Commission on Environmental Quality INTEROFFICEMEMORANDUM



### To: 

### Thru: Commissioners LaDonna Castafiuela, ChiefClerk Glenn Shankle, Executive Director Date: June 9, 2006

From:

### ~ Stephanie Bergeron Perdue, Deputy Director 

# "k::, 'II , Office ofLegal Services
Docket No.: 2005-2069-RUL Subject: CommissionApproval for Rulemaking Adoption Chapter 35, Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment ofPermit 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 ofemergency orders to repair or replace roads, bridges, or otherinfrastructureimprovementsinvolvingpublicworksprojectsdestroyedduringacatastrophe. Additionally, the adopted rules will authorize an applicant to list loss ofa critical transportation thoroughfare as a reason why the construction and emissions are essential. TheTWCpreviously only authorized emergency orders to allow repair ofa 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 ofapplications. Because the statute is self-implementing, an emergency order could have been issued for one ofthe above-described instances priorto the adoption ofthe rules.

• Under what authority arewe adoptingthese changes? These amendments are adopted underTWC, §5.102, which establishes the commission'sgeneral 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 ofthe 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 ofan emergency order; and §5.515, which allows the commission to issue emergency orders for immediate action for the addition, replacement, or repair offacilities or control equipment, or the repair or replacement ofroads, bridges, or other infrastructure, and authorizing associated emissions ofair contaminants, whenever a catastrophe necessitates such construction and emissions otherwise precludedunder 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 authorizesthe commissionto adoptrulesimplementingtheTCAA; §382.024and §382.025, which establishthe authority ofthe commissionto issue airorders and whatfactors thecommissionmust consider when issuing such orders; and §382.063, which authorizes the commission to issue emergency orders because ofcatastrophe.



### • Is this rulemaking required by federal rule or state statute? Which ones? The rulemaking is notrequiredby federal ruleorstate 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 thereany legal deadlinesby which these rulesmustbeproposed, adopted, oreffective?
House 

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



### • Whatissue(s) or problem(s) arewe trying to solve? Thisrulemaking would authorize emergency orders thatpreviously would nothave been allowed undercommissionrules. Allowing another category ofemergency orders would permit industry to respond more quickly to catastrophes that affect major infrastructure.



### • Why is itimportantthatwe do this rule package? Statutory changes to TWC, §5.515, need to be reflected in Chapter 35, Subchapter K.



### • Other importantbackground or historicalinformation.
None. 

### Scope oftherulemaking: Theadopted rules add language authorizing emergency ordersto include repair orreplacementof roads, bridges, or other infrastructure improvements in the list ofactions 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 constructionand 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 requiredby state statute: The statute itself does not specifically require changes to the rules, but failure to reflect the changesmade to TWC, §5.515, would cause inconsistencybetweenthe TWC andthe commission rules.



### • Staffrecommendations that are not expressly required by federal rule or state statute: None. 

### Impacton the regulated community:

• Whowill be affected? Primarily owners and operators of rock crushers and concrete batch plants. The rules would provide for a specific type ofauthorization and would notpresent any compliance issues.



### • Does itcreate a group ofaffected persons who were notaffected previously? Bow? The rulemaking would allow owners and operators ofrock crushers and concrete batch plants to respondmore quickly to catastrophes that affect critical transportation thoroughfares by allowing the commission to issue emergency orders in such circumstances.



### • Will therebe a fiscal impact? If

### so,**e~te.** 

### No fiscal impact is anticipated. 

### Impacton the public:

• Who will be affected? The amendments would not affect a specific group. Allowing another category of emergency orders would permitindustry to respond more quickly to catastrophes that affect roads, bridges, and other infrastructure improvements. This would generally benefitbusinesses and the general public by allowing commerce and travel to resume more quickly than would otherwise occur.



### • Does it create a group ofaffected 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 Divisionwill continue to process applications for emergency orders. The impact is expected to be minimal. 

### Stakeholdermeetings:

• Have any stakeholder meetings been held?
No.



### • With whom? 

## N/A

• Whatwere the general sentiments? 

## N/A

• Were any changes made in response to stakeholder concerns? 

## N/A Policy issues:

• Whatpolicy issues are affected?
None.



### • Are any policies that are not currently based on rule being made into a rule?
No.



### • What are the consequences ifthis 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 contextofthe rule amendments being submitted to the EPA as a state implementationplan (SIP) revision. • Drawing from certainlanguageinthe preamble, EPAexpressedconcernthatthe issuance of an emergency order amounts to the issuance of a permit without having to undergo permit review procedures or be subjectto federal SIP submission requirements. • EPA also sought clarification concerning the statutory basis for the submission of emergencyorderapplications andforconducting technicalreviewactivities onemergency order applications. • EPA questioned the regulatory ability to enforce upon anentity that was found to violate state or federal requirements after order issuance. • EPA also sought clarification on what portions ofthe emergency order rule provisions need to be submitted as a revision to the SIP. • EPA soughtclarification on how

### de minimis thresholds are defmed within the emergency orderprogram, 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: Staffhas determined thatthe amendments will notaffectthe reviewprocess ofapplications for emergency orders undertaken by the executive director. As set forth in 

### 30 TAC 

### §35.805 and other subsections, as well as withineach issued emergency order, any construction authorized by an emergency ordermay not interfere with the attainment or maintenance of NAAQS or violate applicable portions of the control strategy. Tothatend, each applicationundergoes atechnical review whichevaluatesbestavailable control technology (BACT) and reviews potential impacts ofhuman health and the environmentby the use ofair dispersion modeling and evaluationby 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 certaincatastrophicevents. Thispointis critical inunderstanding thatwhile emergency order applications

### Commissioners Page 6 June 9, 2006 Re: Docket No. 2005-2069-RUL

do undergo a rigorous technical review, the orders are notpermit authorizations. Rather, entities subject to an emergency order must move forward with applying for apermit 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: ChiefClerk, 5 copies Executive Director's Office David C. Schanbacher, P.E. Jason Skaggs Ashley K. Wadick Office ofGeneral Counsel Les Trobman Lola Brown

cc (without attachments): Booker Harrison, DivisionLiaison Russ Kimble, OLS

### EVALUATION OFTESTIMONY

The Texas Commission onEnvironmental 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 ofthe 

### 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 THEFACTUAL BASIS FOR THEADOPTED RULES House Bill (HB) 2949, 79th Legislature, 2005, amended Texas Water Code (TWC), §5.515, to allow for authorization ofemergency 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 ofa facility or control equipment. Amended TWC, §5.515 adds language regarding the contents ofthe 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 ofa critical transportation thoroughfare." The purpose ofthis rulemaking is to reflect these changes in Subchapter K ofthis chapter.

The adopted rules add language authorizing emergency orders to include repair or replacement of roads, bridges, or other infrastructure improvements to the list ofactions that canbe authorized by an emergency order. Additionally, the adopted rules authorize an applicant to list loss ofa 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 ofanemergency order, under the adopted rules, to a rock crusher or concrete batchplant 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 beenprovided a limited-term authorization and
must submit an application for a permit orpermitmodification within 60 days ofthe 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 ofCatastrophe, adds roads, bridges,

or other infrastructure to the list ofrepairs or replacements for which the commission may authorize immediate action. The commission also revises the definition ofcatastrophe 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 ofan 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 ofa critical transportation thoroughfare, and that the construction and emissions are necessary for the repair or replacement ofroads, bridges, or other infrastructure to the



### 2

### list ofpossible statements in an application for an emergency order ofwhy 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 ofOrder, 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 ifit is found that the proposed construction and emissions are essential to preventthe loss ofa critical transportation thoroughfare, and that the construction and emissions are necessary for the repair or replacement ofroads, 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 oflimitations ofthe proposed construction and emissions.

The adopted amendment to §35.805, Contents ofan Emergency Order, adds inparagraph (3), public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a catastrophe to the list oflimitations ofthe proposed construction and emissions.

The adopted amendment to §35.807, Affirmation ofan Emergency Order, adds language to the list in paragraph (1) ofpossible reasons that would allow the commission to issue an emergency order, allowing the commission to affirm a proposed or issued order under this subchapter ifthe applicant shows that the proposed construction and emissions are essential to prevent the loss ofa critical transportation thoroughfare, and that the construction and emissions are necessary for the repair or replacement ofroads, 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 oflimitations ofthe proposed construction and emissions.

The adopted amendment to §35.808, Modification ofan 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 ofa critical transportation thoroughfare, and that the construction and emissions are necessary for the repair

or replacement ofroads, bridges, orother infrastructure.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the adopted rulemaking in light ofthe 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 ofa "major environmental rule" as defined in that
statute. A "major environmental rule" means a rule, the specific intent ofwhich, is to protect the environment orreduce risks to human health from exposure and that may adversely affect in a material
way, the economy, a sector ofthe economy, productivity, competition,jobs, the environment, or the public health and safety ofthe state or a sector ofthe state. The commission has determined that the adopted rulemaking does not fall under the defmition ofa "major environmental rule" because it does
not adversely affect any ofthe 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 offacilities 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 ofthe 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 ofwhich is to: 1) 

### exceed a standard setby federal law, unless the rule is specifically required by state law; 2) exceed an express requirement ofstate law, unless the rule is specifically required by federal law; 3) exceed a requirement ofa delegation agreement or contract betweenthe state and an agency or representative ofthe federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers ofthe agency instead ofunder a specific state law. This rulemaking does not meet any ofthese four applicability requirements because this rulemaking: 1) 

### does not exceed any standard set by federal law; 2) does not exceed the requirements ofstate law under TWC, Chapter 5, Subchapter L; 3) does not exceed a requirement ofa delegation agreement or contract between the state and an agency or representative ofthe federal government to implement any state and federal program; and 4) is not proposed solely under the general powers ofthe agency, but rather specifically under TWC, §5.515.

TAKINGS IMPACT ASSESSMENT The commission evaluated these adopted rules and performed an analysis ofwhether these rules constitute a takings under Texas Government Code, Chapter 2007. The specific purpose ofthe 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 ofa catastrophe to include the repair or replacement ofroads, bridges, or other infrastructure.



### 5

### Promulgation and enforcement ofthe amendments would constitute neither a statutory nor a constitutional taking ofprivate real property. There are no burdens imposed onprivate real property under this rulemaking because the amendments neither relate to, nor have any impact on, the use or enjoyment ofprivate real property, and there would be no reduction in value ofproperty as a result of this rulemaking. None ofthe adopted rules mandate any new requirements, but rather, provide for a specific type ofauthorization.

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 ofthe 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 ofcoastal natural resource areas. CMP policies applicable to the adopted rules include the administrative policies and the policies for specific activities related to the emission ofair pollutants. Promulgation and enforcement ofthese rules is consistent with the applicable CMP goals and policies because the rules will establish clear and consistent requirements governing the issuance ofemergency and temporary orders for the repair or replacement ofroads, bridges, orother infrastructure when necessitated by a catastrophe, as authorized by TWC, Chapter 5, 

### Subchapter 

### L. Under the authority grantedby statute, the commission may issue
emergency ortemporary orders to address unforeseen circumstances such as potential catastrophes. Promulgation and enforcement ofthese 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 orpotential emergency situations, which will result in environmental benefits for the entire state, including coastal areas.

PUBLIC COMMENT Apublic hearing on the proposed rules was held in Austin on April4, 2006, at the Texas Commission

on Environmental Quality butno oral comments were received. Written comments were submitted by the North Central Texas Council ofGovernments (NCTCOG) and the EPA.

RESPONSE TO COMMENTS NCTCOG supported the amendments and commented that construction associated with emergency orders issued for the repair ofinfrastructure 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 ofthe 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 ortemporarily suspend or amend a permit condition.



### 7

### Section 5.501 does include authority to issue a temporary permitortemporarily suspend or amend a permitcondition. However, thecommission has never issued a temporary permit in lieu ofa conventional authorization method for facilities with air emissions. The authority exercised through the Chapter35 rules and this rulemaking is for issuance ofemergency orders. Emergency orders are most accurately described as limited-term authorizations necessaryto respondto certain catastrophic events. For example, in one instance, an emergency orderwas issuedto install a larger boiler to replace two smaller boilers thatwere damaged in a catastrophic
event untilthetwo smaller boilerscouldbe repaired. However, the larger boiler was not allowed
to operate at a firing ratethat would create emissions greaterthanthe permittedlimit for the two boilers, thus providing a limited-term authorization for the larger boiler, with no greater impact

on the environment. The emergency orderrules require that a facility which has been issued an emergency order submit an application for a permit or permitmodification within 60 days ofthe orderissuance.

EPA expressed its understanding that the Chapter 35 emergency order rules enable the commission to authorize a temporary permit or suspension ofpermit requirements without necessitating the submission ofany 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 ofthe requirement for the submission ofa SIP revision contained in 

### Federal CleanAir Act, §110(1).



### The Chapter35 emergency orderrules, as amendedthroughthis adoption, do not contemplate the issuance or suspension ofa permit or permitconditions. Rather, the rules authorize the issuance ofa limited-term authorization necessary to respond to certaincatastrophicevents.

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 ofstate and federal requirements. Specifically, EPA stated that any SIP revision submittal must demonstrate that the proposed revision would not interfere with the attainment ormaintenance ofthe National Ambient Air Quality Standards (NAAQS), Prevention ofSignificant Deterioration (PSD) requirements, or negatively affect the existing air quality in Texas.



### The Chapter35 emergency orderrules, as amended through this adoption, contemplate andcall for a comprehensive technical review. As set forth in 30 TAC §35.805, andother sections in Subchapter K, as well as within eachissued emergency order, any construction authorized by an emergency ordermay not interfere with the attainment ormaintenance ofthe NAAQS or violate applicable portions ofthe control strategy. To thatend, the review ofemergency order applications conducted by the commission consists ofanevaluation ofbest available control technology (BACT) anda review ofpotential impacts ofhumanhealth andthe environment by the use ofair dispersion modeling and evaluation by the commission's Toxicology Section. The review also includes input from the commission's applicable regional office andthe commission's Air Permits Division, as appropriate. The review will ensurethat the construction is subjectto
current andpossibly more stringent requirementsthanwere inexistence for facilities that are being replaced. The technical review process is atleast as comprehensive as the commission's review ofpermit applications. Therefore, these rules, as a revision tothe SIP, do not interfere with attainmentormaintenance ofthe NAAQS, violate PSD requirements, ornegatively affect existing air quality in Texas.

9

### Additionally, the emergency orderrules require that a facility which has been issued an emergency order submit an application for a permitor permit modification within 60 days ofthe orderissuance. As set forth in 30 TAC §35.806, the permit application will 

### be considered withoutregardto the activity(ies) authorized under anemergency order. Since 1993, the commission has issued approximately 13 airemergency orders. The majority ofthese authorized replacement orrepairs ofdamaged facilities and/or control equipment, while a few authorized

new facilities and one authorized a different loading operation. Ina number ofcases, operation under the emergency order authority actually lastedless thanthe maximum 180-day term (one

was operated for less than one week). Therefore, the impact to the environment was relatively minimal, and permitapplications were not necessary for all ofthese 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 encounteredunauthorized construction after natural disasters or other catastrophic events, and therefore there have been few opportunities, if

### any, to choose between exercising enforcement discretion andconsideration ofissuance ofanemergency order. The rules in Subchapter K anticipate that an application for an emergency orderbe submitted priorto construction ofthe replacement facilities. If

### a facility was constructed without authorization, it would be operating without having undergone a BACT orhealth impacts review. However, when confrontedwith an application for a temporary authorization necessitated bythe

occurrence ofa catastrophicevent, the commission prefers to rely uponthe emergency order



### 10

### authorizationtool in orderto 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 orderprogram, as submitted through previous SIP revisions, assuming that when considering the issuance ofan 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 ofapplications for emergency ordersis at least as comprehensive

as the commission'sreview ofpermit applications. Additionally, the emergency orderrules require thata facility which has been issued an emergency order submit anapplication for a permit or permit modification within 60 days ofthe orderissuance. As set forth in 30 TAC §35.806, the permit application will be considered withoutregardtothe activity(ies) authorized under anemergency order. Therefore, a person who is grantedanemergency orderis onnotice that there is no guarantee thatthe subsequent permit application will be granted and, if

### so, whether the construction andoperatingrequirements 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 orderrules, 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 anemergency order
may notinterfere with the attainment ormaintenance ofNAAQS or violate applicable portions of thecontrol strategy. The commission interpretsthis 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 thatthe activity authorized under an emergency order will 

### not cause or contributeto air pollution, as set forth in TWC, §5.515(d). The applicant must also demonstrate thattherewill be no more than a de minimus 

### increasein off-property aircontaminant concentrations, per TWC, §5.515(c). To ensurethat the emergency orderwill

### not violate applicable portions ofthecontrol strategy, thereview will check for compliance with such applicable portions, for example, as permittingrequirements, federal permitting applicability,

new sourceperformance standards (NSPS), national emissions standards for hazardous air pollutants (NESHAPS), andrules adopted for control ofvolatile organic compounds andnitrogen oxide emissions in nonattainment areas. Additionally, theTCEQ has in the pastconducted and required applicants to conduct air 

### dispersion modeling as appropriateto assure compliance.

EPA inquired as to what would happen ifan entity was found to be in violation ofa 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 orthe terms ofthe emergency order. Additionally, each emergency order issued by the executive director will be consideredby the commission during an open public meeting and must be affrrmed, set aside, ormodified, 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 orderunder TWC, §5.515, while Chapter 35 ofthe Texas Administrative Code authorizes immediate action under an emergency order. EPA wondered whether a source may submit a single application for an emergency order ormust submit two applications.



### The rules pertaining to emergency orders have been moved intheir entiretyto 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 mustbe submitted and approved into the SIP.



### The legal authority to adopt theemergency orderrules adopted and submittedto EPA in 1998 andthese amendments is listed inthe STATUTORY AUTHORITY sections oftherulemaking documents, andas such, is submittedto EPA for its review as part ofthis revision into the SIP.

13

### EPA sought the commission's interpretation on what provisions ofChapter 35 need to be approved into the SIP for air purposes.



### Through this rulemaking, the commission is submittingamendments to Subchapter K ofChapter 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 proposedfor removal from consideration as a revision tothe SIP, the commission cannotrevise the SIP submission at adoption ofthese 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 ifthere is an ambient

### de minimis threshold for ozone orozone precursors and where the term "national ambient air quality standards" is defined.



### Indetermining de minimus 

### amounts for purposes ofreviewing emergency order applications, the commission refersto the definition of "de minimis 

### impact" in30 TAC §101.1(25) as a guideline for assessing truly de minimus 

### amounts ofair contaminants. A "de minimis 

### impact" is defmed as "Achangeinground level concentration ofanaircontaminant as a result ofthe operation ofany

new major stationary source or ofthe operation ofany existing source that has undergone a major modification that does not exceed the following specified amounts." The referenced specified amounts are set forth in anattachedchart. The chart provides various amountsby



### 14

### NAAQS averagingtimes, for carbonmonoxide, nitrogen dioxide, sulfur dioxide, and particulate
matter greaterthan 10 microns (PMuJ, ranging from 1to 25 micrograms per cubic meter.

While there is no ambientde minimus threshold for ozone or ozone precursorsperse, the commission reviews each emergency order application andidentifies whether there are any predicted adverse off-property concentrations ofeither criteria or non-criteria pollutants regardless if

### there is 

### any increase in emissions. The defmition ofNational 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 TWC, §5.102, which establishes the commission's general authority necessary to carry out itsjurisdiction; §5.103, which establishes the commission's general authority to adopt rules to carry out its duties under the TWC and the other laws ofthe 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 ofan emergency order; and §5.515, which allows the commission to issue emergency orders for immediate action for the addition, replacement, or repair offacilities or control equipment,

orthe repair or replacement ofroads, bridges, or other infrastructure, and authorizing associated emissions ofair 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 ofthe 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 ofthe 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 ofcatastrophe.



### 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 ofCatastrophe.

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 offacilities or control equipment, or the repair or replacement ofroads, bridges, or other infrastructure, and authorizing associated emissions ofair contaminants, whenever a catastrophe necessitates such construction and emissions otherwise precluded under the Texas CleanAir Act. For purposes ofthis section, a catastrophe is an unforeseen event including, but not limited to, an act ofGod, an act ofwar, severe weather conditions, explosions, fire, or other similar occurrences beyond the reasonable control ofthe 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 ofa 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 ofthis 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 oflife, serious injury, severe property damage, loss ofa 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 ofroads, bridges, or other infrastructure, necessitated by a catastrophe;

(2) a description ofthe 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 ofair pollution;

(5) a statementthat 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 ofthe 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 ofthe air contaminants at or beyond the property line at such other property; or



### 3

### (C) 

### for public works projects needed to rebuild orrepair damaged roads, bridges, orother infrastructure destroyed during a catastrophe;

(6) a description ofthe proposed construction and the type and quantity ofair contaminants to be emitted;

(7) an estimate ofthe dates on which the proposed construction and emissions will begin and end;

(8) an estimate ofthe date on which the facility will begin operation;

(9) a statement that any construction or modification will not interfere with the attainment or maintenance ofnational ambient air quality standards orviolate applicable portions ofthe control strategy; and

(10) any other information or item the executive director may require to support or explain the need for, orto expedite the issuance of, an emergency order; including information regarding the applicability ofand compliance with any federal requirements for new or modified

sources.

4

### §35.804. Issuance ofOrder.

The commission or executive director may issue an order under this subchapter ifit is found that:

(1) the proposed construction and emissions are essential to prevent loss oflife, serious injury, severe property damage, loss ofa 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 ofroads, 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 orcontribute to a condition ofair pollution;

( 4) any construction or modification will not interfere with the attainment or maintenance ofnational ambient air quality standards or violate applicable portions ofthe control strategy;

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

(A) onproperty where the catastrophe occurred;



### 5

### (B) on otherproperty owned by the owner or operator ofthe 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 ofthe 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 ofthe proposed construction and emissions are reasonable; and

(7) the schedule in the order for submission ofa complete permit application is reasonable.



### §35.805. Contents ofan Emergency Order.

In addition to the requirements of §35.26 ofthis title (relating to Contents ofEmergency or Temporary Order), an emergency order issued under this subchapter shall contain at least the following:

(1) a description ofthe emergency construction and emissions to be authorized;



### 6

### (2) reasonable time limits for the beginning and the completion ofthe proposed construction and emissions;

(3) authorization for action only:

(A) on the property where the catastrophe occurred;

(B) on otherproperty owned by the owner or operator ofthe 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 ofthe air contaminants at orbeyond 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 ormaintenance ofnational ambient air quality standards or violate applicable portions ofthe control strategy; and

(5) a schedule for submission ofa complete constructionpermit application under provisions ofTexas Clean Air Act, Chapter 382.



### 7

### §35

### .807. Affll'lllation ofan Emergency Order.

The commission shall affirm a proposed or issued order ifthe applicant shows at the hearing, by a preponderance ofthe evidence, that:

(1) the proposed construction and emissions are essential to prevent loss oflife, serious injury, severe property damage, loss ofa 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 ofroads, 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 orcontribute to 

### a condition ofair pollution;

(4) any construction ormodification will not interfere with the attainment or maintenance ofnational ambient air quality standards or violate applicable portions ofthe control strategy; and

(5) the proposed construction oremissions will occur only:

(A) on property where the catastrophe occurred;



### 8

### (B) on other property owned by the owner oroperator ofthe 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 ofthe air contaminants at orbeyond the property line at such other property; or

(C) 

### for public works projects needed to rebuild orrepair damaged roads, bridges, or other infrastructure destroyed during the catastrophe;

(6) the time limits in the order for the beginning and completion ofthe proposed construction and emissions are reasonable; and

(7) the schedule in the order for submission ofa complete permit application is reasonable.



### §35.808. Modification ofan Emergency Order.

The commission shall modify a proposed or issued order ifthe hearing record shows that:

(1) construction and emissions otherwise precluded under the Texas Clean Air Act are essential to prevent loss oflife, serious injury, severe property damage, loss ofa critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement, or repair offacilities orcontrol 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 ofcertain terms ofthe proposed or issued order is necessary to make the order, construction, and/or emissions meet the requirements stated in 

### §35.807 ofthis title (relating
to Affirmation ofan Emergency Order).



### 10

## TEXAS CoMMISSION ON ENVIRONMENTAL QuALITY

,,,--**'-.-·~;** ':;.**~.'** c:

..**-\·~**...: \.·;;.-. -._y**6-:;LA-1;1!-~rt :_:~::-mr.** **;::.~;.nr·**

\:<" ·:.. ,' 

### 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 ofemergency 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 ofthe 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 ofthe 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 ofthe 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 ofthis 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 ofthe Commission required by the Administrative Procedure Act, Tex. Gov't Code, § 

### 2001.033 (Vernon 2000 & 

### Vernon Supp. 2005). If

### any portion ofthis Order is for any reason held to be invalid by a court ofcompetentjurisdiction, the invalidity ofany portion shall not affect the validity ofthe remaining portions.

Date issued: 

# JUt 

# a 5

# 2oos TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

2The amendment is adopted uncllerthe general authority granted in TWC, §5.013, which establis es the generaljurisdiction ofthe commission overotherareas o responsibility as assigned tothe commission under the TWC an other laws ofthe state; §5.1 03 and §5.105, which authorize th commission to adopt rules and policies necessaryto carry out ts responsibilities and duties underthe TWC; and §5.802 and 5.805, which require the agency to adopt rules for the administr tion ofthe laboratory accreditation program. The adopted amendment impements TWC, §§5.013, 5.103, 5.105, 5.802, and 5.805. Thisagency herebycertifiestha the adoption has been reviewed by legal counsel and found to b, avalid exercise ofthe agency's legal authority. 1 Filed with the Office ofthe Sec1etary ofState 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 ORAMENDMENT 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 ofthe 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 tothestate 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 ofthe 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 ofa critical transportation thoroughfare." The purpose of this rulemaking is to reflect these changes in Subchapter K ofthis chapter. The adopted rules add language authorizing emergency orders to include repair or replacement of roads, bridges, or other in

### 31 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 applicantto list loss ofa critical transportation thoroughfareasa reason whythe construction and emissionsare essential. As a point ofclarification, it is noted thatthe issuance of an emergency order, underthe adopted rules, to a rock crusher or concrete batch plant that performs wet batching, dry batching, orcentral mixing will not be prohibited underTWC, §5.5145, or subjectto penalty underTWC, §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 emergencyorderhas been provided a limited-term authorization and must submit an application for a permit or permit modification within 60 days ofthe 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 ofcatastrophe 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 preventthe loss ofa 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 limitationsonthe proposed construction and emissions, the applicant may cite the publicworks 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 ofa critical transportation thoroughfare, and that the construction and emissions are necessaryfor 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 catastrophetothe list of limitations ofthe proposed construction and emissions. Theadopted amendmentto §35.805, Contents ofan 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, andthatthe construction and emissions are necessaryfor 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, orother 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 EmergencyOrder, 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 essentialto preventthe loss ofa criticaltransportation thoroughfare, and thatthe construction and emissions are necessaryforthe repair oneplacement ofroads, bridges, or other infrastructure. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the adopted rulemaking in light ofthe regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because itdoes notmeetthedefinition ofa "major environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent ofwhich, is to protectthe environmentor 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 ofthe state or a sector ofthe state. The commission has determined that the adopted rulemaking does not fall underthe 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 requirementsforthe regulated community. Rather, the adopted rules are intended to reflect the statutory changes madeto TWC, §5.515, by HB 2949, which provide authorization for specific types offacilities 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 rulemaking does not meet any ofthe fourapplicability requirements listed inTexas GovernmentCode, §2001.0225(a). Texas Government Code, §2001.0225(a), only appliesto a majorenvironmental rule, the result ofwhich is to: 1) exceed a standard set byfederal 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 notexceed any standard set byfederal 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 agencyorrepresentative ofthefederal governmentto implement any state and federal program; and 4) is not proposed solely underthe general powers ofthe agency, but rather specifically underTWC, §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 ofthe rules is to incorporate into commission rules the changes made toTWC, §5.515, bythe 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 enforcementoftheamendmentswould 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 orenjoymentof private real property, andthere would be no reduction in value of property as a result ofthis rulemaking. None ofthe 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 policiesfor specificactivities related to the emission of air pollutants. Promulgation and enforcement of these rules is consistentwiththe applicable CMP goalsand 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 infrastructurewhen necessitated bya catastrophe, as authorized byTWC, Chapter5, SubchapterL. Underthe authority granted by statute, thecommission mayissueemergencyortemporaryordersto address unforeseen circumstancessuch as potential catastrophes. Promulgation and enforcement ofthese rules will not violate or exceedanystandards 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 forthe entire state, including coastal areas. PUBLIC COMMENT A public hearing on the proposed rules was held in Austin on April4, 2006, attheTexas Commission on EnvironmentalQuality 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 supportedthe amendments and commented that construction associated with emergency orders issuedfor 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 environ

### ADOPTEDRULES July 14, 2006 31 TexReg 5643mental 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 ortemporarily suspend or amend a permit condition. Section 5.501 does include authorityto issue atemporary 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 Chapter35 rules and this rulemaking is for issuanceofemergencyorders. Emergency orders are most accurately described as limited-term authorizations necessary to respond to certain catastrophic events. For example, in one instance, an emergency orderwas 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 boilerwas not allowed to operate at a firing rate that would create emissions greaterthan 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 fora permitor permit modificationwithin 60 days ofthe 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 ofthe 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 ofa limited-term authorization necessaryto respond to certain catastrophic events. EPA expressed concern that the proposed amendments would allowa sourcetoavoid 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 ofSignificant 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 ofthe 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 bythe commission's Toxicology Section. The review also includes input from the commission's applicable re

### 31 TexReg 5644 July 

### 14, 2006 Texas Register gional office and the commission's Air Permits Division, asappropriate. The review will ensure thatthe construction is subject to current and possibly more stringent requirementsthan were in existence forfacilities 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 fora permitor permit modificationwithin 60 days oftheorder issuance. As setforth 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 lessthan the maximum 180-dayterm (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 commentedthat undercertain extraordinarycircumstances, such as natural disasters, the commission could exercise its enforcementdiscretion. EPA intendsto 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 consideringthe issuance ofan 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 requirethatafacilitywhich has been issued an emergency order submit an application for a permit or permit modification within 60 days ofthe 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 guaranteethatthe subsequent permit application willbe 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 atechnical review ofemergency 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 fora 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 ofthe 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 orderwill not cause or contribute to air pollution, as setforth 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 thatthe emergency orderwill not violate applicable portions ofthe 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 ofvolatile 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 ifan 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 entityfrom an enforcementaction broughtforviolating a state orfederal requirement or the terms ofthe 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 providesthe 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 entiretyto 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 directsthe publicto 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 ofthe rulemaking documents, and as such, is submitted to EPA for its review as part ofthis revision into the SIP. EPA sought the commission's interpretation on what provisions ofChapter 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, SubchaptersA- C, norwere 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 ofthese rules to concurrently designate applicable subsections within those subchapters. EPA questioned where the term "de minimis increase" as used in the current Chapter35 emergency order provisions is defined forall criteria pollutants. Further, EPA asks ifthere is an ambient de minimisthreshold for ozone or ozone precursors and where theterm "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 minimisimpact" in 30TAC §101.1 (25) asa guideline for assessing truly de minimus amounts of air contaminants. A "de minimis impact" is defined as "Achange in ground level concentration of an air contaminant as a result ofthe operation of any new major stationary source orofthe operation ofany existing sourcethat has undergone a major modificationthatdoes 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 perse, the commission reviews each emergencyorderapplication and identifieswhetherthere are any predicted adverse off-property concentrations of either criteria or non-criteria pollutants regardless ifthere 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 underTWC, §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 underthe TWC and the other laws ofthe 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 setsforth requirementsforemergencyorder applications; §5.504, which establishes the commission's authorityto hold a hearing on the issuance of an emergency order; and §5.515, which allows the commission to issue emergency orders for immediate action forthe 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 underTHSC, §382.011, which gives the



### ADOPTEDRULES July 

### 14, 2006 31 TexReg 5645commission the authority to control the quality ofthe 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 ofthe 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. Thisagencyherebycertifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary ofState 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 ofthe 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 inthe Texas egis/ative CouncilDraftingManual, 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 removesthe 45-day requirementforthe applicant's public eeting. New paragraph (2)(A)(i) also specifies that the agency' public meeting will be held un

### 31 TexReg 5646 July 14, 2006 Texas Register der 30 TAC §55.154 that, in turn, requires the executive director orthe Office of Public Assistance to hbld a public meeting ifthe executive director determines that thare is a substantial or significant degree ofpublic interest in an**~pplication** or ifa member of the legislature who represents the beneral area in which the facility is located or proposed to be lodlted requests thata 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 ofTexas 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 ofthe entity's governing body; a c unciIofgovernmentswith 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 applicationsfiled before September 1 2005, the effective dateof 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 applicationsfiled before September 1, 2005, hile newparagraph ( 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 PublicAssistanceto hold a pu lie meeting ifthe 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 equeststhat a public meeting be held. At the direction ofthe 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 amendmentsto §39.5 3(e)(2) distinguish between applicationsfiled 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 forapplicationsfiled before September 1, 2005, ifa 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) makesthe p lie meeting discretionaryfor 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