Kathleen Hartnett White, Chairman 

R, B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

Docket No. 2004-1877-RUL 

June 10, 2005 . 

Richard E. Greene, Regional Administrator 

U.S . Environrnental Protection Agency - Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mayor Greene : 

On May 25, 2005, the Texas Commission on Envirorunental Quality (Commission) adopted revisions to the State 

Implementation Plan (SIP) . 

The Commission adopted these amendments in 30 Texas Administration Code Chapter 101, General Air Quality 

Rules; Chapter 116, Control of Air Pollution by Permits for New Construction .or Modification; and 

corresponding revisions to the SIP . The adoption amends the definitions of nonattainment area .and volatile 

organic compound in Chapter 101, and amends the definitions of contemporaneous period, major modification, 

and net emissions increase and changes new source review netting triggers and periods for areas classified under 

the eight-hour ozone standard in Chapter 116. The amendments also make a variety of changes to correct 

typographical errors, to update cross-references, and to be consistent with other Commission rules and applicable 

drafting standards. 

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

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

Sincer l y, 

. 

Kajhleen Hartnett White 

Chairman 

KHW/lb 

/2e 

cc : The Honorable Rick Perry, Governor of Texas 

Mr. Zak Covar, Governor's Advisor, Department of Budget, Planning, and Policy, Office of the 

Governor 

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

o n n,.,. iznu7 w Ai,cti  Tpaac 7R711- :1()R7 0 512/239-100(l 0 Internet address : www.tcecr .state .tx .us 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

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

State Implementation Plan, adopted on May 25, 2005, in accordance with 40 Code of Federal Regulations 

§ 51 .104 . 1 am a records administrator for the Texas Commission on Environmental Quality. 

Kevin McCalla 

Records Administrator 

Texas Commission on Environmental Quality 
i pt'y -'" %' 

Texas Commission on Environmental Quality 

Public Hearing 

March 17, 2005 

Concerning Revisions to 

30 TAC Chapter 101, General Air Quality Rules 

and 30 TAC Chapter 116, Control of Air Pollution by 

Permits for New Construction or Modification 

Rule Project No. 2005-009-116-AI 

New Source Review for Eight-Hour Ozone Standard 
INTRODUCTION 

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

March 17, 2005 to receive testimony regarding revisions to 30 TAC Chapter 101, General Air Quality 

Rules, and 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or 

Modification; and corresponding revisions to the Texas state implementation plan (SIP) . 

The rulemaking amends the definition of nonattainment area in § 101 .1 to be consistent with current 

federal classifications under the eight-hour ozone standard. The amendments to § 116.12 and § 116.150 

change new source review netting triggers and periods to be consistent with federal rules for areas 

classified under the eight-hour ozone standard. 

The comment period closed on March 28, 2005 . All testimony and comments have been reviewed and 

seriously considered. This hearing record contains a complete record of the public hearing and is 

divided into the following four sections : 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations (includes order and Texas Register publication) 

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

Park 35 Circle, Austin, Texas 78753 . For further information, please contact Beecher Cameron at 

(512) 239-1495 . 
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION 

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

1 . Publication of the notice of public hearing in the following newspaper on the date listed: 

Austin American-Statesman : February 11, 2005 

Fort Worth Star-Telegram: February 14, 2005 

Houston Chronicle : February 12, 2005 

2. Publication in the Texas Register of the proposed rulemaking (30 TexReg 1009) and public hearing 

notice (30 TexReg 1184) on February 25, 2005 . 

3 . Correspondence forwarding the notice of public hearings to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Arkansas Department of Pollution Control and Ecology 

Capital Area Planning Council 

City of Dallas, Department of Aviation 

Dallas Environmental and Health Services 

East Texas Council of Governments 

El Paso City-County Health Environmental District 

El Paso Metropolitan Planning Organization 
Federal Highway Administration 

Fort Worth Environmental Management Department 

Galveston County Health District 

Harris County Pollution Control Department 

Houston Department of Health and Human Services 

Houston-Galveston Area Council 

Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

North Central Texas Council of Governments 

Oklahoma Department of Environmental Quality 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

United States Environmental Protection Agency 

Victoria Metropolitan Planning Organization 
EXAMPLE OF 

NEWSPAPER CLASSIFIED AD 

Austin American Statesman 

February 11, 2005 

F1Z Friday, February 11 : 

I iz,tn_u,. ., . ~ 

NOTICE OF PUBLIC HEARING BY 

THE TEXASCOMMISSION ON 

ENVIRONMENTAL QUALfrY ON 

PROPOSED REVISIONS T030 

TAC CHAPTERS 101 AND 116 

AND TO THE STATE 

IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) 

will conduct a public hearing to 

receive testimony regardlng 

proposed revistons to 30 TA C 

. Chapter 101, General Air Quality 

Rules; 30 TAC Chapter 116, Control of Air Pollution by Permits for 

New Construction or modification ; and the state implementation plan (SIP), under the requirements of Texas Health and 

Safety Code, §382.017; Texas . 

Government Code, Subchapter 8, 

Chapter 2001 ; and 40 Code of 

Federal Regulations §51.102, of 

the United States Environmental 

Protection Agency regulations 

concerning SIPs. 

The proposed ruiemaking would 

amend the definition of nonattainment area in §101 .1 to be 

consistent with current federal 

classifications under the eight-hour ozone standard, and 

would amend the ,definition of 

volatile organic compound In 

§101 .1 to be consistent with the 

federal definition of volatile organic compound in 40 Code of 

Federal Regulations §51.1o0(s). 

The proposed amendments to 

§716.12 and §116,150 would 

change new source review netring triggers and pedods to be 

consistent with federal rules for 

areas classified under 'the 

eight-hour ozone standard. 

A publlc hearing on this pmposel 

wtll be held m Austin on March 

17, 2005, at 10:00 a.m . at the Texas Commission on Environmental Quality in Building F, 

Room 2210, located at 12100 

Park 35 Circle. The hearing will 

be structured for the receipt of oral or written comments by interested pe rsons. Registration 

will begin 30 minutes prior to the 

hearing. Individuals may present 

oral statements when called 

upon in order of registration. A 

time limit may be established at 

the hearing to assure that 

enough time is allowed for every 

interested person to speak There 

will be no open discussion dur- ing the hearing; however, commission staff members will be 

available to discuss the proposal 

30 minutes before the hearing 

and will answer questions be- fore.and after the hearing. 

Persons planning to attend the 

hearing who have special communication or other accommodation needs, should contact the 

Office of Environmental Policy, Analysis, and Assessment at (512) 

239-4900. Requests should be 

made as far in advance as possible. 

Comments may be submitted to 

Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205 P, O. Box 13087, Austin, Texas 78711-3087, 

or by fax at (512) 239-4808. Cop- ies of the proposed rules can be 

obtained from the commission's 

website at 

http ://www .tnrcc.state.tx.us 

/o rd/rules/propado html 

Al comments shouPd reference 

Rule Project Number 

2005-009-116-AI. Comments . must be received by 5:00 p.m. on March 28, 2005 . For further information, please contact 

Michael game, Policy aAd Regulations Division at (512) 

239-5658, or Beecher Cameron, 

Air Permits Division at (512) 

239-1495 . 

Issued in Austin, Texas, on February 9, 2005. . 
LaDonna Castanuela 

Chief Clerk 

Texas Commission on Environmental Quality 

Filed: February 16, 2005 

:~ Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapters 101 and 116 and the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 101, General Air Quality Rules ; 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and the state implementation plan (SIP) ; under 

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

Government Code, Subchapter B, Chapter 2001 ; and 40 Code of Federal Regulations §51 .102, of the United States Environmental Protection Agency regulations concerning SIPs . 

The proposed rulemaking would amend the definition of nonattainment 

area in § 101 .1 to be consistent with current federal classifications under 

the eight-hour ozone standard . The proposed amendments to §116.12 

and §116 .150 would change new source review netting triggers and 

periods to be consistent with federal rules for areas classified under the 

eight-hour ozone standard . 

A public hearing on this proposal will be held in Austin on March 17, 

2005, at 10:00 a.m. at the Texas Commission on Environmental Quality in Building F, Room 2210, located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments 

by interested persons . Registration will begin 30 minutes prior to the 

hearing . Individuals may present oral statements when called upon in 

order of registration . A time limit may be established at the hearing to 

assure that enough time is allowed for every interested person to speak . 

There will be no open discussion during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes before the hearing and will answer questions before and after the hearing . 

Persons planning to attend the hearing who have special communica- tion or other accommodation needs, should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Re- quests should be made as far in advance as possible . 

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, 

Texas 78711-3087, or by fax at (512) 239-4808 . Copies of the proposed rules can be obtained from the commission's website at http://tivww.tnrcc .state.tx.us/oprd/rules/propadop.html. All comments should reference Rule Project Number 2005-009-116-AI. Comments 

must be received by 5:00 p.m . on March 28, 2005 . For further 

information, please contact Michael Bame, Policy and Regulations 

Division at (512) 239-5658, or Beecher Cameron, Air Pen-nits Division at (512) 239-1495 . 

TRD-200500623 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: February 11, 2005 

Notice of Water Quality Applic ' ions 

The following notices were issued~uring the period of February 9, 2005 through February 14, 2005. 

The following require the applicants to p 

The public comment period, requests fo 

for a contested case hearing maybe sub 

Clerk, Mail Code 105, P 0 Box 1308 

WITHIN 30 DAYS OF THE DATE OF 

OF THIS NOTICE. 

ALTO FRIO BAPTIST ENCAMPMEN 

Permit No. 11683-001, which authorizes 

tic wastewater at a volume not to exceed 

gallons per day via irrigation of 2 .0 acre 

will not authorize a discharge of pollutan 

facility and disposal site are located appr 

of Ranch Road 1120 from its north int 

83 and approximately 2 miles southeast 

County, Texas . 

ARANSAS COUNTY AIRPORT has 

mit No. 11280-001, which authorizes t 

tic wastewater at a volume not to exceed 

gallons per day via evaporation . This p 

charge of pollutants into waters in the St 

site are located on the east side of Farm-t 

approximately 3,000 feet north of the in 

Road 1781 and Copano Village Road in 

CITY OF AUSTIN, AUSTIN WATER 

newal of TPDES Permit No. 105430- 

charge of treated domestic wastewater 

to exceed 75,000,000 gallons per day. T 

Onion Creek and the Colorado River, a 

their confluence, approximately 2 mile 

Road 973 crossing of the Colorado Riv 

Highway 71 in Travis County, Texas. 

blish notice in the newspaper. 

public meetings, or requests 

tied to the Office of the Chief 

, Austin Texas 78711-3087, 

WSPAPER PUBLICATION 

has applied for a renewal of 

he disposal of treated domesdaily average flow of 20,000 

of pasture land . This permit 

s into waters in the State . The 

ximately 1 .5 miles southeast 

rsection with U.S . Highway 

f the City of Leakey in Real 

plied for a renewal of Pere disposal of treated domesdaily average flow of 3,600 

it will not authorize a diste. The facility and disposal 

-Market Road 1781 at a point 

ersection of Fann-to-Market 

ransas County, Texas. 

TILITY has applied for a rewhich authorizes the disan annual average flow not 

e facility is located between 

proximately 2 miles west of 

east of the Farm-to-Market 

r and 2 miles north of State 

BRAZORIA COUNTY FRESH WATE SUPPLY DISTRICT NO. 1 has applied for a renewal of TPDES Pe kit No. 11130-001, which authorizes the discharge of treated domestic wastewater at a daily average 

flow not to exceed 140,000 gallons per 

the east side of State Highway 36, appro 

of the intersection of Farm-to-Market R 

36, northeast of the City of Damon in Br 

CAPITOL AGGREGATES, LTD. whi 

Portland Cement Plant, a portland an 

turer, has applied for a major amend 

WQ0001510000 to authorize the disch 

runoff, vehicle/plant wash water, road 

storm water via Outfalls 001, 002, a 

suspended solids effluent limitations at 

removal of effluent limitations for tota 

and sulfate at Outfalls 001 and 002; rem 

chlorides and sulfate at Gutfall 003; and 

Outfall 003 . The current permit author 

wastewater and storm water on an inte 

via Outfall 001; plant and vehicle wash 

on an intermittent and flow variable bas 

water at a daily maximum flow not to e 

day via Outfall 003. The facility is lo 

Road, on the west side of Nacogdoc 

Bulverde Road and Nacogdoches Road 

Bexar County, Texas. 

y The facility is located on 

imately I,100 feet southeast 

ad 1462 and State Highway 

oria County, Texas . 

operates the San Antonio 

masonry cement manufacent to TPDES Permit No. 

rge of material storage pile 

ust suppression water, and 

003; an increase in total 

Outfalls 001, 002, and 003; 

dissolved solids, chlorides, 

val of effluent limitations for 

emoval of flow limitations at 

es the discharge of process 

ittent and flow variable basis 

own water and storm water 

via Outfall 002; and quarry 

ceed 10,000,000 gallons per 

ated at 11551 Nacogdoches 

es Road at the junction of 

in the City of San Antonio, 

CITY OF DILLEY has applied for a re 

10404-002, which authorizes the dischar 

water at a daily average flow not to exc 

ewal of TPDES Permit No. 

e of treated domestic wasteed 300,000 gallons per day. 

30 TexReg 1184 February 25, 2005 Texas Register 
has been granted primary accreditati 

authority . 

,¢25.6. Conditions Under Which th 

ical Data . 

The commission may accept analyt 

mental testing laboratory for any m 

diction relating to permits or other a 

enforcement actions, or corrective 

cording to this chapter if the laborat 

cal data provided by an environer under the commission's juristhorizations, compliance matters, 

tions, that is not accredited acry : 

adopt rules for the administrati n of the laboratory accreditation 

program ; and SB 934, 78th Le islature, 2003. 

The proposed amendment imp ements TWC, §5.127 . 

¢25.9. Standards for Environm tal Testing Lahoratory Accredita- tion . 

Accreditation must [shall] be bas on an environmental testing laboratory's conformance to National Environmental Laboratory Accredi- tation Conference standards: Charters 3 4 and 5 ado pted Jul 2002 

and Chapters 1 2 and 6 ado pted ne 2003 [appreved May 2001-] and the requirements of this chapter. 

This agency hereby certifies th the proposal has been reviewed by legal counsel and found to b~ within the agency's legal author- ity to adopt. 

(B) located in anothe 

cally inspected by that state [ 

er ether authorization, and the 

tien was issued by the eenurtissiea 

or 

(C) inspected at least 

director and is performing work: 

same site; or 

jii without com 

agency or a charitable organization. 

(2) is accredited under fi 

by the United States Environmental 

vide analytical data for decisions rel 

Drinking Water Act; 

This agency hereby certifies that t 

by legal counsel and found to be w 

ity to adopt. 

2005. 

TRD-200500627 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental 

Earliest possible date of adoption: M 

For further information, please call : (5 

SUBCHAPTER B . ENVI 

TESTING LABORATORY 

30 TAC §25.9 

STATUTORY AUTHORITY 

The amendment is proposed unde 

in TWC, §5.013, which establishe 

commission over other areas of re 

commission under the TWC and 

and §5.105, which authorize the 

policies necessary to carry out its 

der the TWC; §5.802 and §5.805 

state and accredited or periodithe data ¬er a pexnit, registratiert 

registratiex, of ether aatherfzathe eperater of the leberateFy] ; 

era] law, including certification 

rotection Agency [EPA] to proting to compliance with the Safe 

e proposal has been reviewed 

hin the agency's legal authorthe general authority granted 

the general jurisdiction of the 

ponsibility as assigned to the 

ther laws of the state ; §5.103 

mmission to adopt rules and 

esponsibilities and duties unwhich require the agency to 

Filed with the Office of the Seiretary of State on February 11, 

2005. 

TRD-200500628 

Stephanie Bergeron Perdue 

Director, Environmental Law Divisi n 

Texas Commission on Environmen I Quality 

Earliest possible date of adoption : arch 27, 2005 

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

CHAPTER 101 . GENERAL AIR QUALITY 

RULES 

SUBCHAPTER A. GENERAL RULES 

30 TAC §101.1 

The Texas Commission on Environmental Quality (commission) 

proposes an amendment to §101 .1 . 

If adopted, the amendment will be submitted to the United States 

Environmental Protection Agency (EPA) as a revision to the state 

implementation plan (SIP) . 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE 

After adoption of the Federal Clean Air Act (FCAA) Amendments 

of 1990, the EPA classified the designated four areas of Texas that failed to meet the one-hour national ambient air quality standard (NAAQS) for the air contaminant ozone. Each area was classified by the EPA based on the amount by which it exceeded 

the ozone NAAQS of 0.12 parts per million (ppm) based on a peak one-hour concentration of ozone. Eight counties in the 

Houston/Galveston/Brazoria (HGB) area (Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller) 

were classified as Severe and El Paso County was classified 

as Serious. Four counties in the Dallas/Fort Worth (DFW) area (Collin, Dallas, Denton, and Tarrant) were originally classified as Moderate and then reclassified to Serious . Three counties in the Beaumont/Port Arthur (BPA) area (Hardin, Jefferson, and Or- ange) were originally classified as Serious, then reclassified to Moderate, and reclassified again, in 2004, to Serious. 

Effective June 15, 2004, EPA designated and classified four areas in Texas as nonattainment for the eight-hour ozone standard (69 FR 23858). The HGB area was classified as Moderate and contains the same eight counties that were classified as Severe under the one- hour standard : Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller. The DFW 

PROPOSED RULES February 25, 2005 30 TexReg 1009 
area was also classified as Moderate and consists of the counties classified as Serious under the one-hour standard: Dallas, 

Tarrant, Denton, and Collin Counties, plus five additional counties : Ellis, Johnson, Kaufman, Parker, and Rockwall. The BPA 

area was classified as Marginal and consists of the three counties classified as Serious under the one- hour standard: Hardin, 

Jefferson, and Orange. The El Paso area consisting of El Paso 

County is now designated as attainment. In addition, the San 

Antonio area, consisting of Bexar, Coma[, and Guadalupe Counties, was also designated as nonattainment under the FCAA, Title I, Part D, Subpart 1 (42 United States Code (USC), §7402), 

but with a deferred effective date of September 30, 2005, due 

to its status as an early action compact (EAC) area. EPA noted 

in the eight-hour ozone designation and classification rulemaking that EAC areas will continue to remain eligible for deferred 

effective dates as long as they remain in compliance with their 

compact agreements . The classification of nonattainment areas 

was codified in 40 Code of Federal Regulations (CFR), and this 

amendment will update the commission rules to match the new 

federal classifications . . 

On November 29, 2004, EPA added five volatile organic compounds (VOC) to the list of compounds in 40 CFR §51 .100(s) 

that, for lack of reactivity, are excluded from the definition of 

VOC. The definition of VOC is based on compound reactivity 

and the compound's tendency to produce ozone. The compounds include 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane 

(known as HFE-7000) ; 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (known as HFE-7500, 

HFE-s702, T-7145, and L-15381) ; 1,1,1,2,3,3,3-heptafluoropropane (known as HFC 227ea) ; methyl formate; and t-butyl 

acetate (also known as tertiary butyl acetate, TBAC, or TBAc). 

EPA revised the definition of VOC to say that TBAC will not be a 

VOC for purposes of VOC emissions limitations or VOC content 

requirement, but will continue to be a VOC for purposes of all 

recordkeeping, emissions reporting, and inventory requirements 

that apply to a VOC. The commission is proposing to delete the 

list of compounds from the commission definition and to refer 

to the federal definition in 40 CFR §51 .100 as amended on 

November 29, 2004 (69 FR 69290 - 69304). 

SECTION DISCUSSION 

§109.1, Definitions 

The commission proposes to amend the definition of nonattainment area in paragraph (67) to reflect the classifications under 

the existing one-hour standard, and to add the classifications 

under the new eight-hour ozone standard. The classifications 

under the new standard are the Moderate classification for the 

HGB and DFW areas, including five additional counties, and the 

Marginal classification for the BPA area. The San Antonio area 

is designated as nonattainment under the FCAA, Title I, Part D, 

Subpart 1 (42 USC, §7402), but with a deferred effective date 

of September 30, 2005, due to its status as an EAC area . The 

El Paso area is in attainment for the eight-hour ozone standard 

and therefore is not listed under new subparagraph (F) . Existing 

subparagraph (F) is proposed to be relettered as subparagraph 

(G) . 

The commission also proposes to amend the definition of VOC 

in paragraph (111) by deleting the existing list of compounds and 

by referring to the federal definition in 40 CFR §51 .100(s), except 

paragraphs (2) - (4), as amended on November 29, 2004 (69 FR 

69290 - 69304) . The federal definition includes a special case 

for the compound t-butyl acetate, which will not be considered 

a VOC for emission limitation or content purposes but will be 

considered a VOC for emissions reporting and inventories and 

photochemical modeling . ' 

The commission proposes to make administrative changes for 

readability, conformity with the drafting standards in the Texas 

Legislative Council Drafting Manual, October 2002, and consistency with other commission rules. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Nina Chamness, Analyst, Strategic Planning and Grants Management Section, determined that for the first five-year period 

the proposed rule is in effect, no fiscal implications are anticipated for the agency or other units of state or local governments 

as a result of administration or enforcement of the proposed rule . 

The proposed rulemaking would change the definitions of nonattainment area and VOC, along with administrative changes for 

readability, conformity with drafting standards, and consistency. 

EPA's implementation of the eight-hour ozone standard on June 

15, 2004, designated El Paso County as an attainment area 

and designated the HGB nonattainment area as Moderate . The 

BPA nonattainment area is classified as Serious for the one-hour 

standards and as Marginal for the eight-hour standard . The 

DFW nonattainment area, which included Dallas, Tarrant, Denton, and Collin Counties, is classified as Serious under the onehour ozone standard . When implementing the eight-hour ozone 

standard, EPA added five counties (Ellis, Johnson, Kaufman, 

Parker, and Rockwall) to the DFW nonattainment area and designated the entire area as Moderate. EPA also designated a new 

area under the eight-hour standard, San Antonio, as nonattainment under the FCAA, Title I, Part D, Subpart 1 (42 USC, §7402), 

with a deferred effective date of September 30, 2005. The proposed rulemaking would amend the definition of nonattainment 

area to include EPA's new eight-hour classifications for the BPA, 

DFW, and HGB areas ; add the five newly designated counties to 

the DFW area; and add the San Antonio area. 

PUBLIC BENEFITS AND COSTS 

Ms. Chamness also determined that for each year of the first five 

years the proposed rule is in effect, the public benefit anticipated 

from the changes seen in the proposed rule would be compliance 

with federal standards. 

The proposed amendment results from EPA's nonattainment 

designations under the eight- hour ozone standard, and EPA's 

anticipated revocation of the one-hour standard . This amendment will not change the level of emission control in the counties 

that were classified as nonattainment under the one-hour 

standard. Adoption of the designations under the eight- hour 

standard does result in the addition of Ellis, Johnson, Kaufman, 

Parker, and Rockwall Counties to the four counties already 

in the DFW nonattainment area and the addition of the San 

Antonio area as nonattainment areas for ozone. Major sources 

located in the counties added to the DFW nonattainment area 

and the San Antonio area could have significant costs if required 

to upgrade their emission control equipment from best available 

control technology (BACT) to lowest achievable emission rate 

(LAER). The designation of the counties as nonattainment does 

not in itself mean that emission controls must be immediately 

upgraded or additional controls installed . Sources that undergo 

major modifications would be subject to LAER, but the commission does not have information indicating which, if any, sources 

are going to be affected . Because San Antonio is participating 

in the Early Action Compact Program, its designation may never 

become effective . The commission expects cost increases 

30 TexReg 1010 February 25, 2005 Texas Register 
to be mostly limited to large combustion sources because of 

the limited industrialization of the new nonattainment counties . 

The change to the federal definition for VOC removed five 

compounds from the list because they were minimally reactive 

toward the formation of ozone. These compounds will also be 

removed from the commission's definition of VOC, since the 

commission only regulates VOC based on its reactivity. The 

commission will now reference the EPA definition of VOC in its 

rules . 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micro-businesses . Small or micro-businesses are less likely to operate activities generating major sources of emissions. If small 

or micro-businesses do own or operate a major source of air contaminants, they will experience the same types of cost increases 

as those experienced by large businesses that are major sources 

of emissions . 

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required 

because the proposed rule does not adversely affect a local 

economy in a material way for the first five years that the proposed rule is in effect . 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of 

the regulatory impact analysis requirements of Texas Government Code, §2001 .0225, and determined that the proposed rulemaking does not meet the definition of a "major environmental 

rule." Furthermore, it does not meet any of the four applicability 

requirements listed in §2001 .0225(a) . A "major environmental 

rule" means a rule, the specific intent of which, is to protect the 

environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way 

the economy, a sector of the economy, productivity, competition, 

jobs, the environment, or the public health and safety of the state 

or a sector of the state . The proposed amendment revises the 

definition of nonattainment area to reflect the new classifications 

under the eight-hour standard forthe BPA, DFW, and HGB areas; 

adds the five newly designated counties in the DFW area; and 

adds the San Antonio area. The proposed amendment would 

also incorporate a change to the federal definition for VOC, which 

became effective November 29, 2004. The proposed amendment will not adversely affect, in a material way, the economy, a 

sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector 

of the state . 

In addition, Texas Government Code, §2001 .0225, only applies 

to a major environmental rule, the result of which is to : 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of 

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

3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a state and federal program ; or 

4) adopt a rule solely under the general powers of the agency 

instead of under a specific state law. The proposed amendment 

does not exceed a standard set by federal law or exceed an express requirement of state law. There is no contract or delegation agreement that covers the topic that is the subject of this 

rulemaking . Finally, this rulemaking was not developed solely 

under the general powers of the agency, but is authorized by 

specific sections of the Texas Health and Safety Code and Texas 

Water Code, which are cited in the STATUTORY AUTHORITY 

section of this preamble . Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government 

Code, §2001 .0225(b), because the proposed amendment does 

not meet any of the four applicability requirements . 

The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment 

period . 

TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the proposed amendment. The specific purpose of this rulemaking is 

to amend the definition of nonattainment area to reflect the new 

classifications for the BRA, DFW, and HGB areas; add the five 

newly designated counties in the DFW area ; and add the San 

Antonio area. The EPA has indicated that the one- hour standard will be revoked on June 15, 2005. The proposed amendment would also incorporate a change to the federal definition 

for VOC, which became effective November 29, 2004. Promulgation and enforcement of the proposed amendment would be 

neither a statutory nor a constitutional taking because it does not 

affect private real property. Specifically, the proposed amendment does not affect private property in a manner that restricts 

or limits an owner's right to the property that would otherwise 

exist in the absence of a governmental action . Therefore, the 

proposed amendment does not constitute a takings under Texas 

Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this ruiemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP As required by 

§281 .45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and 

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

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

policies in accordance with the rules of the Coastal Coordination 

Council, and determined that the action is consistent with the applicable CMP goals and policies . The CMP goal applicable to this 

rulemaking action is the goal to protect, preserve, and enhance 

the diversity, quality, quantity, functions, and values of coastal 

natural resource areas (31 TAC §501 .12(I)) . No new sources of 

air contaminants will be authorized and the proposed revisions 

will maintain the same level of emissions control as the existing 

rules. The CMP policy applicable to this rulemaking action is the 

policy that commission rules comply with federal regulations in 

40 CFR, to protect and enhance air quality in the coastal areas 

(31 TAC §501 .14(q)) . This rulemaking action complies with 40 

CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 

31 TAC §505.22(e), the commission affirms that this rulemaking 

action is consistent with CMP goals and policies . 

The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period . 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

PROPOSED RULES February 25, 2005 30 TexReg 1011 
Section 101 .1 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits. Upon the effective date of 

this rulemaking, owners or operators subject to the Federal Operating Permit Program will be required to certify compliance with 

amended §101 .1 . 

ANNOUNCEMENT OF HEARING 

The commission will hold a public hearing on this proposal in 

Austin on March 17, 2005, at 10:00 a.m. in Building F, Room 

2210, at the commission's central office located at 12100 Park 35 

Circle . The hearing is structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral 

statements when called upon in order of registration . Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 

30 minutes before the hearing and will answer questions before 

and after the hearing. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact the Office of Environmental Policy, 

Analysis, and Assessment at (512) 239-4900 . Requests should 

be made as far in advance as possible . 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, FO. Box 

13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808 . 

Comments must be received by 5:00 p.m., March 28, 2005, and 

should reference Rule Project Number 2005-009-116-AI. Copies 

of the proposed rule can be obtained from the commission's Web 

site at http :llwww.tnrcc.state .tx.usloprdlruleslpropadop .html. 

For further information, please contact Beecher Cameron, Air 

Permits Division, at (512) 239-1495 or Michael Bame, Policy 

and Regulations Division, at (512) 239-5658 . 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Water Code, §5.103, 

concerning Rules, and §5.105, concerning General Policy, which 

authorize the commission to adopt rules necessary to carry out 

its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of the Texas Clean Air Act. The amendment is also proposed under Texas Health and Safety Code, 

§382 .002, concerning Policy and Purpose, which establishes the 

commission purpose to safeguard the state air resources, consistent with the protection of public health, general welfare, and 

physical property ; §382.011, concerning General Powers and 

Duties, which authorizes the commission to control the quality of 

the state air ; §382.012, concerning State Air Control Plan, which 

authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state air ; and §382 .051, 

concerning Permitting Authority of Commission; Rules, which 

authorizes the commission to issue permits and adopt rules necessary for permits issued under Texas Health and Safety .Code, 

Chapter 382. 

The proposed amendment implements Texas Health and Safety 

Code, §§382.002, 382.011, 382.012, and 382.051 . 

j+101 .1 . Definitions. 

Unless specifically defined in the Texas Clean Air Act (TCAA) 

[-TC-1A] or in the rules of the commission, the terms used by the 

commission have the meanings commonly ascribed to them in the 

field of air pollution control . In addition to the terms _that [which] 

are defined by the TCAA, the following terms, when used in this 

chapter, [shall] have the following meanings, unless the context clearly 

indicates otherwise . 

(1) Account--For those sources required to be permitted 

under Chapter 122 of this title (relating to Federal Operating Permits), 

all sources that [which] are aggregated as a site . For all other sources, 

any combination of sources under common ownership or control and 

located on one or more contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, waterways, 

or similar divisions . 

(2) - (6) (No change.) 

(7) Carbon adsorber--An add-on control device _that 

[which] uses activated carbon to adsorb volatile organic compounds 

from a gas stream . 

(8) - (11) (No change.) 

(12) Commercial hazardous waste management facility--Any hazardous waste management facility that accepts hazardous 

waste or polychlorinated biphenyl compounds for a charge, except a 

captured facility that [which] disposes only waste generated on-site 

or a facility that accepts waste only from other facilities owned or 

effectively controlled by the same person . 

(13) - (14) (No change.) 

(15) Component--A piece of equipment, including, but not 

limited to, pumps, valves, compressors, and pressure relief valves, that 

[which] has the potential to leak volatile organic compounds . 

(16) - (21) (No change.) 

(22) De minimis impact--A change in ground level concentration of an air contaminant as a result of the operation of any new 

major stationary source or of the operation of any existing source that 

[which] has undergone a major modification, which does not exceed 

the following specified amounts . 

Figure : 30 TAC §101 .1(22) (No change.) 

(23) - (25) (No change.) 

(26) Emissions reduction credit--Any stationary source 

emissions reduction that [whiei~] has been banked in accordance 

with Chapter 101, Subchapter H, Division 1 of this title (relating to 

Emission Credit Banking and Trading). 

(27) Emissions reduction credit certificate--The certificate 

issued by the executive director that [-which] indicates the amount of 

qualified reduction available for use as offsets and the length of time 

the reduction is eligible for use . 

(28) Emissions unit--Any part of a stationary source that 

[which] emits, or would have the potential to emit, any pollutant subject 

to regulation under the Federal Clean Air Act [F424A] . 

(29) Exempt solvent--Those carbon compounds or mixtures of carbon compounds used as solvents that [whic-h] have been 

excluded from the definition of volatile organic compound . 

(30) External floating roof--A cover or roof in an open top 

tank that [which] rests upon or is floated upon the liquid being contained-and is equipped with a single or double seal to close the space 

between the roof edge and tank shell . A double seal consists of two 

complete and separate closure seals, one above the other, containing an 

enclosed space between them. 

(31) (No change.) 

30 TexReg 1012 February 25, 2005 Texas Register 
(32) Federally enforceable--All limitations and conditions 

_that [which] are enforceable by the United States Environmental Protection Agency [EPA] administrator, including those requirements developed under 40 Code of Federal Regulations (CFR) Parts 60 and 61 ; 

requirements within any applicable state implementation plan (SIP) ; 

and any permit requirements established under 40 CFR §52 .21 or under regulations approved under 40 CFR Part 51, Subpart 1, including 

operating permits issued under the approved program that is incorporated into the SIP and that expressly requires adherence to any permit 

issued under such program. 

(33) - (34) (No change .) 

(35) Fugitive emission--Any gaseous or particulate contaminant entering the atmosphere that [which] could not reasonably 

pass through a stack, chimney, vent, or other functionally equivalent 

opening designed to direct or control its flow. 

(36) - (42) (No change.) 

(43) High-volume low-pressure spray guns--Equipment 

used to apply coatings by means of a spray gun _that [which] operates 

between 0.1 and 10.0 pounds per square inch gauge air pressure . 

(44) Incinerator--An enclosed combustion apparatus and 

attachments that [w}tieh] is used in the process of burning wastes for 

the primary purpose of reducing its volume and weight by removing the 

combustibles of the waste and [which] is equipped with a flue for conducting products of combustion to the atmosphere . Any combustion 

device that [~vhieh] burns 10% or more of solid waste on a total British 

thermal unit (Btu) heat input basis averaged over any one-hour period 

_is [shall be] considered _to be an incinerator. A combustion device without instrumentation or methodology to determine hourly flow rates of 

solid waste and burning 1 .0% or more of solid waste on a total Btu heat 

input basis averaged annually is [shall] also [be] considered to be an 

incinerator. An open-trench type (with closed ends) combustion unit 

may be considered an incinerator when approved by the executive director. Devices burning untreated wood scraps, waste wood, or sludge 

from the treatment of wastewater from the process mills as a primary 

fuel for heat recovery are not included under this definition. Combustion devices permitted under this title as combustion devices other than 

incinerators will not be considered incinerators for application of any 

regulations within this title provided they are installed and operated in 

compliance with the condition of all applicable permits . 

(45) (No change .) 

(46) Industrial furnace--Cement kilns; [;] lime kilns; [;] aggregate kilns; [;] phosphate kilnsz [;] coke ovens; [;] blast furnaces; 

[;] smelting, melting, or refining furnaces, including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, 

roasters, or foundry furnaces; [;] titanium dioxide chloride process oxidation reactors ; [ ;] methane reforming furnaces ; [;] pulping recovery 

furnaces ; [;] combustion devices used in the recovery of sulfur values 

from spent sulfuric acid; [ ;] and other devices the commission may list . 

(47) (No change.) 

(48) Internal floating cover--A cover or floating roof in a 

fixed roof tank _that [which] rests upon or is floatc;d upon the liquid 

being contained, and is equipped with a closure seal or seals to close 

the space between the cover edge and tank shell . 

(49) - (51) (No change .) 

(52) Maintenance area--A geographic region of the state 

previously designated nonattainment under the Federal Clean Air Act 

FCAA [FCA~.] Amendments of 1990 and subsequently redesignated 

to attainment subject to the requirement to develop a maintenance plan 

under 42 United States Code, §7505a [FCk-A, § -la5f, as amended]. 

The following are the maintenance areas within the state : 

(A) - (B) (No change.) 

(53) Maintenance plan--A revision to the applicable state 

implementation plan, meeting the requirements of 42 United States 

Code, §7505a [FC-A4 ~'~-.-;5 ] . 

(54) (No change.) 

(55) Mechanical shoe seal-A metal sheet _that [vvliic-h] is 

held vertically against the storage tank wall by springs or weighted 

levers and is connected by braces to the floating roof. A flexible coated 

fabric (envelope) spans the annular space between the metal sheet and 

the floating roof. 

(56) Medical waste--Waste materials identified by the _Department of State Health Services [-Texas Department of Health] as 

"special waste from health care-related facilities" and those waste materials commingled and discarded with special waste from health care-related facilities . 

(57) - (63) (No change .) 

(64) National ambient air quality standard--Those standards established under 42 United States Code, §7409 [FCAA, §1-09], 

including standards for carbon monoxide, lead, nitrogen dioxide, 

ozone, inhalable particulate matter, and sulfur dioxide. 

(65) - (66) (No change.) 

(67) Nonattainment area--A defined region within the state 

that [which] is designated by the United States Environmental Protection Agency (EPA) [01A] as failing to meet the national ambient air 

quality standard for a pollutant for which a standard exists . The EPA 

designates [will designate] the area as nonattainment under the provisions of 42 United States Code, §7407(d) [F6AA; § 107(d)] . For the 

official list and boundaries of nonattainment areas, see 40 Code of Federal Regulations Part 81 and pertinent Federal Register (FR) notices . 

The following areas comprise the nonattainment areas within the state 

for all national ambient air quality standards (NAAQS). EPA has indicated that it will revoke the one-hour ozone standard in full, including the associated designations and classifications on June 15 2005 

which is one year following the effective date of the designations fo 

the eight-hour NAAQS of June 15, 2004. 

(A) - (D) (No change.) 

(E) Ozone one-hour . 

(i) Houston/Galveston/Brazoria one-hour [HoustonlGelvesien] ozone nonattainment area (56 FR 56694)--Classified 

as a Severe-17 ozone nonattainment area . Consists of Brazoria, 

Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and 

Waller Counties . 

(ii) El Paso one-hour ozone nonattainment area (56 

FR 56694)--Classified as a Serious ozone nonattainment area. Consists 

of El Paso County. 

(iii) Beaumont/Port Arthur one-hour ozone nonattainment area (69 FR 16483) [(61- FR 44496)] --Classified as a Serious 

[Moderate] ozone nonattainment area . Consists of Hardin, Jefferson, 

and Orange Counties . 

(iv) Dallas/Fort Worth one-hour ozone nonattainment area (63 FR 8128)--Classified as a Serious ozone nonattainment 

area. Consists of Collin, Dallas, Denton, and Tarrant Counties . 

(F) Ozone (eight-hour) . 

PROPOSED RULES February 25, 2005 30 Tea:Reg 1013 
(i) H_ou ston/GalvestonBrazoria eight-hour ozone 

n_onattainment area (69 FR 23936)--Classified as a Moderate ozone 

nonattainment area . Consists of Brazoria,_Chambers, Fort Bend, 

Galveston, _Harrisz Liberty, hitgom=_and Waller Counties. 

it Beaumont/Port Arthur eight-hour ozone nonatt_ainment area (69 FR 23936)--Classified as a Marginal ozone nonattainment area . Consists of Hardin Jefferson, and Orange Counties . 

iii Dallas/Fort Worth _eight-hour ozone nonattainm_ent area (69 FR 23936)--Classified as a Moderate ozone nonattainment area . Consists of Collin, Dallas, Denton, Ellis, Johnson, Kaufma_n Parker, Rockwall, and Tarrant Counties . 

iv San Antonio eight-hour ozone nonattainment 

area (69 FR 23936)--Classified under the Federal Clean Air Act, Title 

h Part Dz Subpart 1 (42 United States Code,- 7502 nonattainment 

deferred to September 30, 2005, or as extended by EPA. 

areas . 

[(F)] Sulfur dioxide . No designated nonattainment 

(68) - (69) (No change.) 

(70) Open-top vapor degreasing--A batch solvent cleaning 

process that is open to the air and _that [wlkieh] uses boiling solvent to 

create solvent vapor used to clean or dry metal parts through condensation of the hot solvent vapors on the colder metal parts . 

(71) Outdoor burning--Any fire or smoke-producing 

process that [wh-ie-h] is not conducted in a combustion unit . 

(72) (No change.) 

(73) Particulate matter emissions--All finely divided 

[-f neI-y-d-ivi-ded] solid or liquid material, other than uncombined water, 

emitted to the ambient air as measured by United States Environmental 

Protection Agency [BRA] Reference Method 5, as specified at 40 

Code of Federal Regulations (CFR) Part 60, Appendix A, modified to 

include particulate caught by an impinger train ; by an equivalent or 

alternative method, as specified at 40 CFR Part 51 ; or by a test method 

specified in an approved state implementation plan . 

(74) (No change .) 

(75) PM,,,--Particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers as measured by a 

reference method based on 40 Code of Federal Regulations (CFR) Part 

50, Appendix Jz and designated in accordance with 40 CFR Part 53, or 

by an equivalent method designated with that Part 53 . 

(76) PM,, emissions-- Finely divided [Finely-divided] solid 

or liquid material with an aerodynamic diameter less than or equal to 

a nominal ten micrometers emitted to the ambient air as measured by 

an applicable reference method, or an equivalent or alternative method 

specified in 40 Code of Federal Regulations Part 51, or by a test method 

specified in an approved state implementation plan . 

(77) - (78) (No change.) 

(79) Process weight per hour--"Process weight" is the total weight of all materials introduced or recirculated into any specific 

process that [which] may cause any discharge of air contaminants into 

the atmosphere. Solid fuels charged into the process will be considered 

as part of the process weight, but liquid and gaseous fuels and combustion air will not. The "process weight per hour" will be derived by 

dividing the total process weight by the number of hours in one complete operation from the beginning of any given process to the completion thereof, excluding any time during which the equipment used 

to conduct the process is idle . For continuous operation, the "process 

weight per hour" will be derived by dividing the total process weight 

for a 24-hour period by 24. 

(80) (No change .) 

(81) Reasonable further progress--Annual incremental reductions in emissions of the applicable air contaminant that [which] are 

sufficient to provide for attainment of the applicable national ambient 

air quality standard in the designated nonattainment areas by the date 

required in the state implementation plan. 

(82) - (83) (No change .) 

(84) Reportable quantity (RQ)--Is as follows: 

(A) for individual air contaminant compounds and 

specifically listed mixtures, either : 

(i) the lowest of the quantities : 

(I) - (II) (No-change .) 

(III) listed as follows : 

(-a-) (No change.) 

(-b-) butenes (any isomer, except 1,3-butadiene)--5,000 pounds, except in the Houston/Galveston/Brazoria (HGB) 

[HoustonJGalvester3 (Hr-A)1 and Beaumont/Port Arthur (BPA) ozone 

nonattainment areas as defined in paragraph (67)(E)(i) and (iii) of this 

section, where the RQ shall be 100 pounds; 

(-c-) ethylene--5,000 pounds, except in the 

HGB [FIGA] and BPA ozone nonattainment areas as defined in 

paragraph (67)(E)(i) and (iii) of this section, where the RQ shall be 

100 pounds; 

(-d-) - (-f-) (No change.) 

(-g-) propylene--5,000 pounds, except in the 

H_GB [HCA] and BPA ozone nonattainment areas as defined in paragraph (67)(E)(i) and (iii) of this section, where the RQ shall be 100 

pounds ; 

(-h-) - (-m-) (No change.) 

(-n-) acetaldehyde--1,000 pounds, except in 

the _HGB [I3C`,A] and BPA ozone nonattainment areas as defined in 

paragraph (67)(E)(i) and (iii) of this section, where the RQ shall be 

100 pounds; 

(-o-) toluene--1,000 pounds, except in the 

_HGB [HG-AI and BPA ozone nonattainment areas as defined in 

paragraph (67)(E)(i) and (iii) of this section, where the RQ shall be 

100 pounds; 

(-p-) - (-q-) (No change.) 

(ii) (No change .) 

(B) for mixtures of air contaminant compounds : 

(i) where the relative amount of individual air contaminant compounds is known through common process knowledge 

or prior engineering analysis or testing, any amount of an individual 

air contaminant compound that [which] equals or exceeds the amount 

specified in subparagraph (A) of this paragraph ; 

(ii) where the relative amount of individual air contaminant compounds in subparagraph (A)(i) of this paragraph is not 

known, any amount of the mixture _that [which] equals or exceeds the 

amount for any single air contaminant compound that is present in the 

mixture and listed in subparagraph (A)(i) of this paragraph ; 

(iii) - (iv) (No change .) 

(C) - (D) (No change.) 

(85) Rubbish--Nonputrescible solid waste, consisting of 

both combustible and noncombustible waste materials . Combustible 

rubbish includes paper, rags, cartons, wood, excelsior, furniture, 

30 TexReg 1014 Februa~y 25, 2005 Texas Register 
rubber, plastics, yard trimmings, leaves, and similar materials . 

Noncombustible rubbish includes glass, crockery, tin cans, aluminum 

cans, metal furniture, and like materials _that [wl}ieh] will not burn at 

ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 

degrees Fahrenheit) . 

(86) Scheduled maintenance, startup, or shutdown activity--For activities with unauthorized emissions _that [which] are expected to exceed a reportable quantity (RQ), a scheduled maintenance, 

startup, or shutdown activity is an activity for which the owner or operator of the facility provides timely prior notice and a final report as 

required by § 101 .211 of this title (relating to Scheduled Maintenance, 

Startup, and Shutdown Reporting and Recordkeeping Requirements) ; 

the notice or final report includes the information required in § 101 .211 

of this title ; and the actual unauthorized emissions from the activity 

do not exceed the emissions estimates submitted in the initial notification . For activities with unauthorized emissions that [w#tic-h] are not expected to, and do not, exceed an RQ, a 

scheduled-maintenance, startup, 

or shutdown activity is one that is recorded as required by § 101 .211 of 

this title. Expected excess opacity events as described in §101 .201(e) 

of this title (relating to Emissions Event Reporting and Recordkeeping 

Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those that provide prior notice (if required), and are 

recorded and reported as required by § 101 .211 of this title . 

(87) Site--For the purposes of Subchapter F of this chapter, 

means [ehall mean] all regulated units, facilities, equipment, structures, 

or sources at one street address or location that are owned or operated by 

the same person . Site includes any property identified in the permit or 

used in connection with the regulated activity at the same street address 

or location . 

(88) - (90) (No change .) 

(91) Sour crude--A crude oil _that [which] will emit a sour 

gas when in equilibrium at atmospheric pressure . 

(92) - (93) (No change .) 

(94) Special waste from health care-related [care related] 

facilities--A solid waste that [which] if improperly treated or handled, 

may serve to transmit infectious disease(s) and which is comprised of 

the following : animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps. 

(95) (No change.) 

(96) Standard metropolitan statistical area--An area consisting of a county or one or more contiguous counties _that [.which] 

is officially so designated by the United States Bureau of the Budget. 

(97) Submerged fill pipe--A fill pipe that extends from the 

top of a tank to have a maximum clearance of six inches (15 .2 centimeters) from the bottom or, when applied to a tank that [which] is loaded 

from the side, that has a discharge opening entirely submerged when 

the pipe used to withdraw liquid from the tank can no longer withdraw 

liquid in normal operation . 

(98) - (103) (No change.) 

(104) Unauthorized emissions--Emissions of any air contaminant except carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen that exceed [which exceeds] any air 

emission limitation in a permit, rule, or order of the commission or as 

authorized by Texas Clean Air Act [T-GAA], §382 .0518(g) . (105) - (109) (No change .) 

(110) Visible emissions--Particulate or gaseous matter _that 

[which] can be detected by the human eye. The radiant energy from an 

open flame is [shall] not [be] considered to be a visible emission under 

this definition . 

(111) Volatile organic compound-- As defined in 40 

Code of Federal Regulations $51 .100(s), except §51.100(s)(2) -

(4), as amended on November 29, 2004 (69 FR 69290 - 69304) . 

[-Adry compound of carbon OF MiKAlfe of carbon compound 

e-x-elading methane; ethane ; 14-,4-tfiehler-0ethane {methyl ehlerefernr} niet; ~~"" e c-hleride (diehleretnethane); perchlereet-hyleae 

(t$tr-aehlareethylene)-, triehler-afluerernethane (C-FE-14), diehleredifflueremethane (GFC--1-2)-, ehloredi-fluerenethane (1=1£FC-22} tri#l-uerernethane (IlFC--23)-, -1-,1;2-tFiehle-~ 

1 .v-~-~rifluereetha-ae (GFE-1-13) ; 

-1-,-2-diekleFe--~1, .,~-tetrauereethane (EFG-1-1~}-} eklerepent$fluereethane (GFC--1-13} -I4;l-tFi#1"uere-2-;2-diehlereethase (Tr-rr'~'~~.-C-1-'~') ; 

2-ehlere ' ,1,-a-,i-"~uereethane (IIC-FC-1-24), pentaflaereethane 

(WC-1,24y, -1;1;2,2 -tetFa¬luereethane EH1iC-1-34} -1;1;1~-tetra4luoreethane Ff-:z-C -134aT ,,1- .z-diehlere-4-Auereethane (Fl~'~'~-*410)-

-1-elrlere-~l-difl-xereethane (1-1GFG 1 42b), -l;l;l~itluet:eetltene 

(1°h'''=~-~3a;, ,-~3a ,,-~-~-d'~roet#ane (-uL'r' ,c''°

.

~ . 

- 

par-aelrleFeben- ---, 

setri#lueride (PCBTF); cyclic-, branched-, or linear completely 

rrtetktylated silexanes; acetone-, 3;3-diehler°-~ -~ , -

, 1,-' ,-pentafluereprepane (-'~~~'G'~neaT 1-,3-diehlere 1,1,-~ '',-m-pent$fluer-epr.opane (HGFC--223cb); 1,1 1

~

~ 3n n c c

~

c aeeaffuerepertt3#te {~'G 

43-1-, di#luerernethane E1-1"FC-32-)-, et-hy1fluer'tde (HFC--1-6-1); 

-1;1;1-,3-,33-he-x-afluereprepane (FIFC-236fa} ?3-pentuAtierepropane (-HF G24-Sea} 1,-1 ,2,-?-~? rT-^=..~4luereprepane (F1F-~~-'~4-~); 

-1;1;1-,2-,3-pent-aflueraprepane (-h1FG 243eb)r, 4-,~-1,3,3-penta#4ueFeprepane (HFC-24-Sfa-} i ,1,1,-nzri-hex-afluereprepane (HFC--2=36ea} 

-1;1,I,-,3-pexitafluerebutane EHFC--36-Stxfe-} eh-lorefluerernetharte 

(HC-FC-3-1-} 1-,2-diel}lere-l~-2-, (I-IEF~-1Q3a), 

-1-ehlere-l--fluereethane (1`I EFE-15"°fi 7~\ 1,1 , 1 ,292,3,3,4,4 ~^nfl#l3in ::e~-.-.~outane; .> ... . .1, 2-1`141 *>, . .1~1, 1 1~T ore -~- aerstne" Il e~-~ fi ~ 

tafltleFepr,e~~p~a~4~

11tule1 ~" 1`^° "" l1 223 z n n n ..^r1afltlerebtltaRe; 2-(-ethexyt2 oreM°v4i,~~1a .r1\ 1 _L-3-3 .~l, on}Qfl~eFe

Y

prepSne; methyl " 

ac~tate; carben monoxide-, carbon di `.`o°'° 'l"" ; earber~ie ac-id; ""metallic 

carbides or earbenates; ammonium earberrate, and penfflaereeat:ben 

compounds whis fall inte these classes:] 

alk-a-nes;j 

{( eyc-lic-, branched-, or linear-, completely fluorinated 

[{B) cyclic-, branched ; or linear-, complete4y fluorinated 

ethers with no un-saturatiens-;] 

[(E) eyeliE branched-, or linear, c-empletely fluorinated 

tertiary am-ines with no unsatur-atiens; and} 

[(D) strlfuw--eenta-iniag perlluerec-arbens w-ith no unsat 

urations and with sulfur bonds only to carbon and fluorine-.] 

(112) (No change .) 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on February 11, 

2005. 

TRD-200500624 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption : March 27, 2005 

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

PROPOSED RULES February 25, 2005 30 TexReg I015 
CHAPTER 116. CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

The Texas Commission on Environmental Quality (commission) 

proposes amendments to §116.12 and §116.150 . 

If adopted, these amendments will be submitted to the United 

States Environmental Protection Agency (EPA) as revisions to 

the state implementation plan (SIP) . 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED AMENDMENTS 

After adoption of the Federal Clean Air Act (FCAA) Amendments 

of 1990, the EPA classified the designated four areas of Texas 

that failed to meet the one-hour national ambient air quality standard (NAAQS) for the air contaminant ozone. Each area was 

classified by the EPA based on the amount by which it exceeded 

the ozone NAAQS of 0.12 parts per million (ppm) based on a 

peak one-hour concentration of ozone. Eight counties in the 

Houston/GalvestonlBrazoria (HGB) area (Brazoria, Chambers, 

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller) 

were classified as Severe and El Paso County was classified 

as Serious. Four counties in the Dallas/Fort Worth (DFW) area 

(Collin, Dallas, Denton, and Tarrant) were originally classified 

as Moderate and then reclassified to Serious . Three counties 

in the BeaumontlPort Arthur (BPA) area (Hardin, Jefferson, and 

Orange) were originally classified as Serious, then reclassified 

to Moderate, and reclassified again, in 2004, to Serious. The 

classification of an area has specific effects on sources of air 

contaminants within the area including what will be considered 

a major source of contaminants . In the case of ozone, the contaminants of concern are volatile organic compounds (VOC) and 

nitrogen oxides (NO,), referred to as ozone precursers . 

If a proposed project (modification of existing facilities or new 

construction) is determined to be a major modification, the 

project is subject to federal nonattainment new source review 

(NNSR) and specific levels of pollution control, which generally 

mean that the source will be required to meet the lowest achievable emission rate (LAER) and offset the emissions increase . 

To determine if a modification at a major source results in an 

emission increase that would make the project a major modification, the source owner performs a netting exercise if the project 

emission increase is greater than the netting trigger (five tons 

per year (tpy) under current commission rules) . Netting is an accounting procedure used to determine the amount of increase 

in emissions by a source over a specified period of time. Under 

the commission's existing rules, the netting period, defined as 

the contemporaneous period in 30 TAC §116.12(7), begins on 

the date of the emission increase and goes back to November 

15, 1992, for major sources that emit 250 tpy or more, and goes 

back five years for major sources emitting less than 250 tpy. All 

emission increases and decreases at a source over the specified 

time (netting period) are added or subtracted and, if the resulting 

figure is at or above the major modification threshold, the source 

becomes subject to NNSR. This major modification threshold is 

determined by an area's classification (Severe, Serious, Moderate) . The netting trigger and netting period are the principal 

subjects of this rulemaking action . 

The commission's current netting triggers and periods are different than the corresponding federal rules, but are considered 

equivalent by the EPA and are approved as part of the SIP. The 

federal rule, adopted after the FCAA Amendments of 1990 and 

classifications of the areas, required that any increase in emissions would trigger the netting exercise in areas classified as 

Serious or Severe. To reduce the number of netting exercises, 

the commission adopted a netting exercise that would not be required when the project resulted in a small increase of emissions 

resulting from such activities as valve changes or other minor 

maintenance or facility upgrades and proposed a five tpy trigger. 

The EPA agreed to the change provided that the netting period 

was extended to go back to November 15, 1992, for the larger 

major sources instead of the five-year netting period in the federal rule . 

On April 30, 2004, the EPA adopted the Phase I Implementation Rule (69 FR 23951), implementing a new eight-hour ozone 

NAAQS, effective June 15, 2004. On the same date, the EPA 

designated and classified areas that were not in attainment of 

the eight-hour standard (69 FR 23858). In the Phase I Implementation Rule, the EPA stated that it plans to issue a second 

final rule, Phase 2, which will address many of the planning and 

control obligations under FCAA, §172 and §182 that will apply for 

purposes of implementing the eight-hour ozone NAAQS. These 

rules include, among other things, new source review (NSR) . 

The EPA designated four areas of Texas as nonattainment for 

the eight-hour ozone standard, and classifications under the new 

standard are different from the classifications under the one-hour 

ozone standard . Specifically, HGB and DFW are classified as 

Moderate, BPA is classified as Marginal, and El Paso is in attainment of the eight-hour standard. In addition to the four counties in the DFW area classified under the one-hour standard, five 

additional counties (Ellis, Johnson, Kaufman, Parker, and Rockwall) were designated as Moderate nonattainment . The San Antonio area, consisting of Bexar, Comal, and Guadalupe Counties, 

was designated nonattainment under FCAA, Title I, Part D, Subpart 1 (42 United States Code (USC), §7502) with a deferred 

effective date, due to its participation in the Early Action Compact Program. In the Phase I Implementation Rule, the EPA 

also adopted a rule that provides that the EPA will revoke the 

one-hour standard in full, including designations and classifications, one year following the effective date of the designations for 

the eight-hour NAAQS. One year after the effective date of the 

designations for the eight-hour ozone standard is June 15, 2005. 

The new EPA rules make no changes to the netting procedure or 

thresholds . The new designations and classifications allow the 

commission an opportunity to limit the number of netting exercises by revising its rule . The commission is proposing to adopt 

the federal model concerning netting triggers and periods with 

the exception of the netting trigger in a Serious or Severe nonattainment area where the commission would retain its existing 

five tpy trigger. The commission would eliminate the netting period for larger major sources that requires netting going back to 

1992. This period is now too long to be useful and would not 

be justified for the sources in the five new nonattainment counties in the DFW area. Under the new eight-hour ozone standard, 

there are no areas currently classified as Serious or Severe. The 

proposed netting triggers for all eight-hour ozone nonattainment 

areas would be 40 tpy and all netting periods would be five years. 

Application of the eight-hour ozone standard for NNSR becomes 

effective June 15, 2005, and the commission is updating its rules 

to implement the necessary changes. On September 24, 2004, 

in response to a petition by Earthjustice and other environmental 

groups, the EPA granted a partial reconsideration of the Phase I 

Implementation Rule adopted April 30, 2004, allowing states to 

apply federal NNSR based on an eight-hour classification . The 

result of this reconsideration could be a return to the one-hour 

30 TexReg 1016 February 25, 2005 Texas Register 
ozone standard for application of federal NNSR. The result of the 

EPA reconsideration may not be known until after the commission adopts these amendments. Therefore, the commission is 

including contingency language in §116.150, New Major Source 

or Major Modification in Ozone Nonattainment Areas, and in the 

footnotes of the definition of major modification in §116.12 . This 

contingency language would go into effect if the EPA decided to 

require states to return to a one-hour standard for federal NNSR 

determination . 

NO, Netting and Mass Emission Cap and Trade 

Concurrent with the effective date of the new five-year contemporaneous period, the commission will allow the reductions required by the HGB NO mass emission cap and trade program 

(MECT) in 30 TAC Chapter 101, Subchapter H, to be creditable 

for netting purposes . This will apply only to NO, sources subject to MECT in HGB for netting exercises only and will not apply 

to NO. credits or offsets . This determination for sites subject to 

HGB IECT and NO. netting will not impact the MECT or the SIP 

because the MECT ap is ultimately the governing factor in the 

amount of NO. emitted . Furthermore, the moving five-year netting period will ensure that emission reduction strategies driven 

by MECT compliance that are used to "net out" emission increases from increases at a site will have to occur within the netting period . MECT allows for trading of a fixed number of emission allowances so the emission reductions are not binding on 

any specific unit or site but it ensures that area-wide emission reductions are made, regardless of changes at any particular site . 

SECTION BY SECTION DISCUSSION 

The commission proposes to make administrative changes for 

better readability, conformity with the drafting standards in the 

Texas Legislative Council Drafting Manual, October 2002, and 

consistency with other commission rules. 

The commission also proposes to make corrections to citations 

of federal and state law and to add USC references to citations 

of sections of the FCAA. 

§116.12, Nonattainment Review Definitions 

The commission proposes to amend the definition of contemporaneous period in paragraph (7) to require that netting be performed from the date of a modification going back a period of 60 

months for all netting exercises . This period is more representative of recent activity as compared to a period that goes back to 

1992. 

The commission proposes to add new footnotes 6 and 7 in the 

figure located in the definition of major modification in paragraph 

(11)(A) that would require sources in areas that were classified 

nonattainment for ozone under a one-hour ozone standard 

to return to the major source thresholds, major modification 

thresholds, and offset ratios for the one-hour standard for federal 

NNSR applicability if the EPA requires states to use the one-hour 

standard after reconsideration of the rule implementing the new 

eight-hour standard . 

Footnote 7 would require applications submitted for facilities that 

would be located in areas designated under FCAA, Title I, Part 

D, Subpart 1 (42 USC, §7502), be evaluated as if the area was 

classified as Marginal under FCAA, Title I, Part D, Subpart 2 

(42 USC, §7502) . The evaluation includes both the threshold for 

determining if there is a major modification as well as the ratio of 

offsets required along with any other applicable requirement that 

depends upon an area's nonattainment classification . Currently, 

only San Antonio is designated under Subpart 1 . 

The commission also proposes to delete subparagraphs (E) and 

(F) from the definition of net emissions increase in paragraph 

(13) . The subparagraphs contain references to a contemporaneous period going back to November 15, 1992. 

§916.150, New Major Source or Major Modification in Ozone 

Nonattainment Areas 

For ease of understanding, the commission proposes to reformat the lengthy existing subsection (a) into additional subsections and add new language to address the eight-hour netting 

procedures . 

The commission proposes to amend subsection (a) to apply major modification procedures to all NSR authorizations issued or 

claimed. In addition to aligning the date with the effective date of 

the new designations, the commission is proposing this addition 

because netting procedures apply to sources authorized under 

standard permit or permit by rule to demonstrate that modifications under those authorizations are not major. 

Proposed new subsection (b) contains language from existing 

subsection (a) and addresses the control requirements applicable to major sources or major modifications . The rule citation 

where the control requirements may be found is proposed to be 

changed to read "subsection (e)(1) - (4) of this section ." The commission also proposes to change the citation concerning the exception for NO, sources in El Paso County from subsection (b) to 

subsection (f) .A reference to a subsection (c) would be deleted 

as it is obsolete. 

The commission proposes new subsection (c), which would 

contain language from existing subsection (a) that would be 

amended to contain a new netting trigger of 40 tpy for areas 

classified as Marginal or Moderate ozone nonattainment. The 

commission would retain the five tpy netting trigger for areas 

classified as Serious or Severe. 

The commission proposes to add new subsection (d), which 

would contain contingency language that would go into effect 

if the EPA, after reconsideration of the eight-hour standard, 

requires states to use the area's one-hour standard classification for determining applicability of NNSR. The contingency 

language would require sources in areas that were classified 

nonattainment for ozone under a one-hour ozone standard 

to return to a netting trigger of five tpy, which is based on a 

one-hour ozone standard for the applicability of federal NNSR. 

Proposed new subsection (e) contains language from existing 

subsection (a) concerning emission standards and offsets for 

sources and modifications classified as major sources and modifications . 

Existing subsection (b), which exempts sources located in El 

Paso County from the requirements of this section concerning 

NO, emissions, is proposed to be relettered as subsection (f) . 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Nina Chamness, Analyst, Strategic Planning and Grants Management Section, determined that for the first five-year period 

the proposed amendments are in effect, no fiscal implications 

are anticipated as a result of administration or enforcement for 

units of state or local governments. State or local governments 

that own or operate major sources of air contaminants could realize a cost savings resulting from the reduction in the number 

of netting exercises . 

PROPOSED RULES Februaiy 25, 2005 30 TexReg 1017 
Currently, NNSR is implemented under EPA's one-hour ozone 

NAAQS. EPA's implementation of an eight-hour ozone NAAQS 

designated attainment areas under the eight-hour standard, 

added five new counties to the DFW ozone nonattainment area, 

and designated the San Antonio area as nonattainment with a 

deferred effective date. 

Major sources, including those operated by state or local government, located in the counties added to the DFW nonattainment 

area and the San Antonio area, could have significant costs if 

required to upgrade their emission control equipment from best 

available control technology (BACT) to LAER. The new designation of the counties as nonattainment does not in itself mean 

that emission controls must be immediately upgraded or additional controls installed . Also, because San Antonio is participating in the Early Action Compact Program, its designation may 

never become effective. Sources that undergo major modifications would be subject to LAER, but the commission does not 

have information indicating which, if any, sources are going to be 

affected . The commission expects cost increases to be mostly 

limited to large combustion sources because of the limited industrialization of the new nonattainment counties . 

The proposed rulemaking seeks to: 1) implement EPA netting 

triggers and periods for nonattainment areas classified as Moderate or Marginal to 40 tpy and five years; 2) retain the five tpy 

netting trigger for Serious or Severe nonattainment areas but 

reduce the netting period to five years; and 3) include contingency language for a possible return to a one-hour standard for 

NNSR determinations of new major source or major modification 

in nonattainment areas if EPA decides to reapply the one-hour 

standard at a later date after reconsidering implementation of the 

eight-hour standard. 

Under the proposed rules, state or local governments with major 

sources of air contaminants in nonattainment areas classified as 

Serious or Severe under the one-hour standard may see a decrease in costs because of the classification to Moderate and 

Marginal under the eight-hour standard . This new classification 

carries with it a new netting trigger for emissions associated with 

a new project or certain changes in operations . The higher netting trigger of 40 tpy for Moderate, Marginal, and FCAA, Title I, 

Part D, Subpart 1 areas will mean that fewer netting exercises 

will be required and will reduce the chance that an emission 

increase associated with these activities would trigger requirements to offset emissions because of new projects or operational changes . The commission is unable to estimate savings 

for individual sources because of the inability to anticipate which 

sources will be subject to future modification . However, if the 

EPA decides to require eight-hour nonattainment areas to continue NNSR under its one-hour designation, then no cost savings 

would be realized . 

PUBLIC BENEFITS AND COSTS 

Ms . Chamness also determined that for each year of the first five 

years the proposed amendments are in effect, the public benefit 

anticipated from the changes seen in the proposed rules will be 

implementation of current federal regulations for NAAQS. 

Under the proposed rules, businesses with major sources of 

air contaminants in nonattainment areas classified as Serious 

or Severe under the one-hour standard may see a decrease in 

costs because of the classification under the eight-hour standard 

of Moderate and Marginal . The higher netting trigger of 40 tpy 

for Moderate, Marginal, and FCAA, Title I, Part D, Subpart 1 areas will mean that fewer netting exercises will be required and 

will reduce the probability that an emission increase associated 

with these activities would trigger requirements to offset emissions because of new projects or operational changes. Sources 

in the El Paso area would realize a cost savings because it would 

no longer be subject to NNSR. The commission is unable to estimate savings for individual sources because of the inability to 

anticipate which sources will be subject to future modification . 

Major sources located in the counties added to the DFW nonattainment area and the San Antonio area could have significant 

costs if required to upgrade their emission control equipment 

from BACT to LAER. The designation of the counties as nonattainment does not in itself mean that emission controls must be 

immediately upgraded or additional controls installed . Because 

San Antonio is participating in the Early Action Compact Program, its designation may never become effective . Sources that 

undergo major modifications would be subject to LAER, but the 

commission does not have information indicating which, if any, 

sources are going to be affected . The commission expects cost 

increases to be mostly limited to large combustion sources because of the limited industrialization of the new nonattainment 

counties . 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or micro-businesses. Small or micro-businesses are less likely to operate major sources of air contaminants. Small or micro-businesses that do operate major sources will see the same reduction in probability that a source modification will trigger a major 

modification under federal NNSR, and they will experience the 

same types of costs savings or increases as those experienced 

by large businesses that generate major sources of contamination under the eight-hour ozone standard. Small businesses 

operating sources of air contaminants in the new DFW nonattainment counties that do undergo major modifications would be 

subject to the same NNSR requirements and potential expense 

as larger businesses. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required 

because the proposed amendments do not adversely affect a 

local economy in a material way for the first five years that the 

proposed amendments are in effect . 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light of 

the regulatory impact analysis requirements of Texas Government Code, §2001 .0225, and determined that the proposed rulemaking does not meet the definition of a "major environmental 

rule ." Furthermore, it does not meet any of the four applicability 

requirements listed in §2001 .0225(a) . A "major environmental 

rule" means a rule, the specific intent of which, is to protect the 

environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way 

the economy, a sector of the economy, productivity, competition, 

jobs, the environment, or the public health and safety of the state 

or a sector of the state . The proposed amendments revise the 

netting trigger and netting period for projects that are a major 

modification and are therefore subject to federal NNSR for air 

quality permitting and specific levels of pollution control . The 

proposed amendments also make applicable to the San Antonio area and the five additional counties in the DFW area NNSR 

requirements . Because San Antonio is an early action compact 

area, it has a deferred effective date of September 30, 2005, and 

30 TexReg 1018 February 25, 2005 Texas Register 
will continue to be deferred as it remains in compliance with the 

compact agreements. The amendments also make changes to 

the definition of contemporaneous period and net emissions increase as well as changes to the figure in the definition of major 

modification, and nonsubstantive organizational changes. The 

proposed amendments will not adversely affect, in a material 

way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of 

the state or a sector of the state . 

In addition, Texas Government Code, §2001 .0225, only applies 

to a major environmental rule, the result of which is to : 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of 

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

3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a state and federal program ; or 4) 

adopt a rule solely under the general powers of the agency instead of under a specific state law. The proposed amendments 

do not exceed a standard set by federal law or exceed an express requirement of state law. There is no contract or delegation agreement that covers the topic that is the subject of this 

rulemaking . Finally, this rulemaking was not developed solely 

under the general powers of the agency, but is authorized by 

specific sections of the Texas Health and Safety Code and Texas 

Water Code, which are cited in the STATUTORY AUTHORITY 

section of this preamble . Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government 

Code, §2001 .0225(b), because the proposed amendments do 

not meet any of the four applicability requirements . 

The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment 

period . 

TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the proposed amendments. The specific purpose of this rulemaking is 

to revise the netting trigger and netting period for projects that are 

a major modification and are therefore subject to federal NNSR 

for air quality permitting and specific levels of pollution control . 

The amendments implement NNSR requirements for the newly 

designated San Antonio area and the five additional counties 

in the DFW area. The amendments also make nonsubstantive 

organizational changes. Promulgation and enforcement of the 

proposed amendments would be neither a statutory nor a constitutional taking because they do not affect private real property. Specifically, the proposed amendments do not affect private property in a manner that restricts or limits an owner's right 

to the property that would otherwise exist in the absence of a 

governmental action . Therefore, the proposed amendments do 

not constitute a takings under Texas Government Code, Chapter 

2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP As required by 

§281 .45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and 

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

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

policies in accordance with the rules of the Coastal Coordination Council, and determined that the action is consistent with 

the applicable CMP goals and policies . The CMP goal applicable to this rulemaking action is the goal to protect, preserve, 

and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501 .12(I)) . No 

new sources of air contaminants will be authorized and the proposed revisions will maintain the same level of emissions control 

as the existing rules . The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal 

regulations in 40 Code of Federal Regulations, to protect and enhance air quality in the coastal areas (31 TAC §501 .14(q)) . This 

rulemaking action complies with 40 Code of Federal Regulations 

Part 51, Requirements for Preparation, Adoption, and Submittal 

of Implementation Plans. Therefore, in accordance with 31 TAC 

§505.22(e), the commission affirms that this rulemaking action 

is consistent with CMP goals and policies . 

The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period . 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Section 116.12 and §116.150 are applicable requirements under 

30 TAC Chapter 122, Federal Operating Permits Program . Upon 

the effective date of this rulemaking, owners or operators subject ' 

to the Federal Operating Permit Program that modify any NSR 

authorized sources at their sites will be subject to the amended 

requirements of §116.12 and §116.150 . 

ANNOUNCEMENT OF HEARING 

The commission will hold a public hearing on this proposal in 

Austin on March 17, 2005, at 10:00 a.m. in Building F, Room 

2210, at the commission's central office located at 12100 Park 35 

Circle. The hearing is structured for the receipt of oral or written 

comments by interested persons. Individuals may present oral 

statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 

30 minutes before the hearing and will answer questions before 

and after the hearing. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact the Office of Environmental Policy, 

Analysis, and Assessment at (512) 239-4900 . Requests should 

be made as far in advance as possible. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, PO. Box 

13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808 . 

Comments must be received by 5:00 p.m., March 28, 2005, and 

should reference Rule Project Number 2005-009-116-AI. Copies 

of the proposed rule can be obtained from the commission's Web 

site at http :llwww.tnrcc.state .tx.usloprdlruleslpropadop .html. 

For further information, please contact Beecher Cameron, Air 

Permits Division, at (512) 239-1495 or Michael Bame, Policy 

and Regulations Division, at (512) 239-5658 . 

SUBCHAPTER A. DEFINITIONS 

PROPOSED RULES February 25, 2005 30 TexReg 1019 
30 TAC §116.12 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Water Code, §5.103, 

concerning Rules, and §5.105, concerning General Policy, which 

authorize the commission to adopt rules necessary to carry out 

its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of the Texas Clean Air Act. The amendment is also proposed under Texas Health and Safety Code, 

§382.002, concerning Policy and Purpose, which establishes the 

commission purpose to safeguard the state air resources, consistent with the protection of public health, general welfare, and 

physical property; §382.011, concerning General Powers and 

Duties, which authorizes the commission to control the quality of 

the state air ; §382.012, concerning State Air Control Plan, which 

authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state air ; §382.051, 

concerning Permitting Authority of Commission; Rules, which 

authorizes the commission to issue permits and adopt rules necessary for permits issued under Texas Health and Safety Code, 

Chapter 382; and §382.0518, concerning Preconstruction Permit, which requires that a permit be obtained from the commission prior to new construction or modification of an existing facility. 

The proposed amendment implements Texas Health and Safety 

Code, §§382.002, 382.011, 382.012, 382.051, and 382.0518. 

,¢116.12 . Naazattainment Revieu,Definitions. 

Unless specifically defined in the Texas Clean Air Act (TCAA 

[TC-1,4] or in the rules of the commission, the terms used by the 

commission have the meanings commonly ascribed to them in the 

field of air pollution control . The terms in this section are applicable 

to permit review for major source construction and major source 

modification in nonattainment areas. In addition to the terms that 

[which] are defined by the TCAA, and in § 101 .1 of this title (relating 

to Definitions), the following words and terms, when used in §116.150 

and § 116 .151 of this title (relating to Nonattainment Review), [shall] 

have the following meanings, unless the context clearly indicates 

otherwise . 

(1) Actual emissions--Actual emissions as of a particular 

date _are [shall] equal to the average rate, in tons per year, at which the 

unit actually emitted the pollutant during a two-year period that [whieh] 

precedes the particular date and that [which] is representative of normal source operation . The executive director shall allow the use of a 

different time period upon a determination that it is more representative 

of normal source operation . Actual emissions shall be calculated using 

the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. 

The executive director may presume that the source-specific allowable 

emissions for the unit are equivalent to the actual emissions, e .g., when 

the allowable limit is reflective of actual emissions . For any emissions 

unit that [which] has notbegun normal operations on the particular date, 

actual ernissions shall equal the potential to emit of the unit on that date . 

(2) Allowable emissions--The emissions rate of a stationary source, calculated using the maximum rated capacity of the source 

(unless the source is subject to federally enforceable limits that [which] 

restrict the operating rate, or hours of operation, or both), and the most 

stringent of the following: 

(A) the applicable standards specified [set forth] in [-Title] 40 Code of Federal Regulations, Part 60 or 61 ; 

(B) - (C) (No change .) 

(3) Begin actual construction--In general, initiation of 

physical on-site construction activities on an emissions unit _that 

[which] are of a permanent nature . Such activities include, but are not 

limited to, installation of building supports and foundations, laying 

of underground pipework, and construction of permanent storage 

structures . With respect to a change in method of operation, this tem-1 

refers to those on-site activities other than preparatory activities that 

[whie#t] mark the initiation of the change . 

(4) Building, structure, facility, or installation--All of the 

pollutant-emitting activities that [which] belong to the same industrial 

grouping, are located in one or more contiguous or adjacent properties, and are under the control of the same person (or persons under 

common control) . Pollutant-emitting activities _are [shall be] considered to be [as] part of the same industrial grouping if they belong to the 

same "major group" (i .e., that [which] have the same two-digit code) 

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

amended by the 1977 supplement . 

(5) (No change.) 

(6) Construction--Any physical change or change in the 

method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that [which] would result in a change in actual emissions . 

(7) Contemporaneous period--[As follews:] 

[(A)] For major sources [with the potential to emit 250 

tons per year (tpy) or mere of a nonattainment pollutant-,] the period 

between: 

occurs;_ and 

the date that the increase from the particular change 

[N November-1-5-,+99~ and] 

[(ii-)] 60 months prior to the date that construction 

_on [the -inc-rease -from] the particular change commences [oc-ears] . 

{(B) For major sourees with the potential te en-at less 

than ~50 tpy of a nenatteinment pellutant; the period between-1 

[-i) the date five years before eonstruetton on the 

partieular ehange eommenees; and] 

{(ii) the date that the increase from the particular 

change occurs-1 

{(E) Notwithstanding subparagraphs W) and (B) ef this 

definition; for major sources of n-itregen &x-ides as a precursor to ozone 

in ozone rianattainment areas; the contemporaneous period shall begin 

no earlier than November 15 ; -1~9-2:] 

(8) De nxinimis [De mirrimis] threshold test (netting)--A 

method of determining if a proposed emission increase will trigger 

nonattainment review. The summation of the proposed increase _in tons 

per year with all other creditable source emission increases and decreases during the contemporaneous period is compared to the MAJOR MODIFICATION column of Table I located in the definition of 

major modification in this section [(in tons per year-)] for that specific 

nonattairunent area. If the major modification level is exceeded, then 

nonattainment review is required . 

(9) Lowest achievable emission rate--For any emitting 

facility, that rate of emissions of a contaminant that [which] does not 

exceed the amount allowable under applicable new source perfor-

_mance standards [New Souree Per¬ermanee Standards] promulgated 

by the United States Environmental Protect ion A g ency [EPA] under 

30 TexReg 1020 February 25, 2005 Texas Register 
42 United States Code, §7411 [the FC-AAA §1-14], and _that [whic-h] 

reflects the following : 

(A) the most stringent emission limitation _that [whie-h] 

is contained in the rules and regulations of any approved state implementation plan for a specific class or category of facility, unless the 

owner or operator of the proposed facility demonstrates that such limitations are not achievable ; or 

(B) the most stringent emission limitation _that [whieh] 

is achieved in practice by a specific class or category of facilities, 

whichever is more stringent. 

(10) Major facility/stationary source--Any facility/stationary source _that [whieh] emits, or has the potential to emit, the amount 

specified in the MAJOR SOURCE column of Table I of this section 

or more of any air contaminant (including volatile organic compounds 

(VOCs)) for which a national ambient air quality standard [National 

Arnbierrt Air Quality Standard (NAAQ8)] has been issued. Any physical change that would occur at a stationary source not qualifying as a 

major stationary source in Table I of this section, if the change would 

constitute a major stationary source by itself. A major stationary source 

that is major for VOCs or nitrogen oxides _is [shall be] considered _to be 

major for ozone . The fugitive emissions of a stationary source may 

[shall] not be included in determining for any of the purposes of this 

definition whether it is a major stationary source, unless the source belongs to one of the categories of stationary sources listed in 40 Code of 

Federal Regulations §51 .165(a)(1)(iv)(C) . 

(11) Major modification--Asfollows . 

(A) Any physical change in, or change in the method 

of operation of a facility/stationary source that causes a significant net 

emissions increase for any air contaminant for which a national ambient air quality standard [National zArnHieat Air Quality Standard] 

(NAAQS) has been issued . At a facility/stationary source that is not 

major prior to the increase, the increase by itself must equal or exceed 

that specified in the MAJOR SOURCE column of Table I of this section . At an existing major facility/stationary source, the increase must 

equal or exceed that specified in the MAJOR MODIFICATION column of Table I . 

Figure : 30 TAC § 116.12(11)(A) 

(B) A physical change or change in the method of operation may [shall] not include : 

(i) - (if) (No change.) 

(iii) use of an alternative fuel by reason of an order 

or rule of 42 United States Code, §7425 [the FCAA ~-1-~3] ; 

(iv) (No change.) 

(v) use of an alternative fuel or raw material by a stationary source that [whish] the source was capable of accommodating 

before December 21, 1976 (unless such change would be prohibited 

under any federally enforceable permit condition established after December 21, 1976) or the source is approved to use under any permit 

issued under regulations approved under this chapter ; 

(vi) an increase in the hours of operation or in the 

production rate (unless the change is prohibited under any federally enforceable permit condition that [whieh] was established after December 

21, 1976) ; or 

(vii) (No change.) 

(12) Necessary preconstruction approvals or permits--Those permits or approvals required under federal air quality 

control laws and regulations and those air quality control laws and 

regulations _that [wlrieh] are part of the applicable state implementation 

plan . 

(13) Net emissions increase--The amount by which the 

sum of the following exceeds zero : the total increase in actual 

emissions from a particular physical change or change in the method 

of operation at a stationary source, plus any sourcewide creditable 

contemporaneous emission increases, minus any sourcewide creditable 

contemporaneous emission decreases . 

(A) - (B) (No change .) 

(C) A decrease in actual emissions is creditable only to 

the extent that all of the following conditions are met: 

(i) - (ii) (No change.) 

(ifi) the reviewing authority has not relied on it in 

issuing a prevention of significant deterioration [Rreventien o¬Sigrti¬tc-ant Deterioration] or a nonattainment permit, or the state has not relied 

on the decrease to demonstrate [it in detrtenstr-a4fng] attainment or reasonable further progress ; and 

(iv) the decrease [it] has approximately the same 

qualitative significance for public health and welfare as that attributed 

to the increase from the particular change. 

(D) (No change.) 

f(E) At major sources with the potential to emit 239 tons 

per year or nnere of a nenatta-inFnent pollutant:-] 

{{e) i-rereases and deer-eases of such pollutant result 

ing ft-ern sutherizatiens er applieatiens reeeived befereNeve or -1-5-, 

-1992-, are ereditable to the e3aent diet the inereases or deer-eases eee 

withi the peried five years prier to the date etinstraetien en a partieuler change eertirttenees and nneet all ether ere-d~ efiteritr and] 

((ti) inereases end deer-eases ef such pellutant resulting -from aut-her-izations or applieatiens rec-eived on or after NevernbeF 

1-3; -1-992-, are creditable irtde¬Enitely to the extent that all ether ereditability eriteria are met-.] 

[(F) For all major sources of nitrogen ox-ides (4'70,) +n 

ozene nenattatrtrtient areas ; imereases and decreases of N9 are ereditable only if they resulted from authorizations or appliGat-ions ri.^° ""°a 

on or after Neverrrber -13; -1-992-] 

(14) Offset ratio--For the purpose of satisfying the 

emissions offset reduction requirements of 42 United States Code, 

§7503(a)(I)(A) [the FCA~ §4-73(a)(4)(A)], the emissions offset ratio 

is the ratio of total actual reductions of emissions to total allowable 

emissions increases of such pollutants . The minimum offset ratios 

are included in Table I [of this section] under the definition of major 

modification of this section . In order for a reduction to qualify as 

an offset, it must be certified as an emission credit under Chapter 

101, Subchapter H, Division 1 or 4 of this title (relating to Emission 

Credit Banking Or Trading; or Discrete Emission Credit Banking and 

Trading), except as provided for in § 116 .170(b) of this title (relating to 

Applicability of Emission Reductions as Offsets) . The reduction must 

not have been relied on in the issuance of a previous nonattainment or 

prevention of significant deterioration permit . 

(15) Potential to emit--The maximum capacity of a facility/stationary source to emit a pollutant under its physical and operational design. Any physical or enforceable operational limitation on the 

capacity of the facility/stationary source to emit a pollutant, including 

air pollution control equipment and restrictions on hours of operation or 

on the type or amount of material combusted, stored, or processed, may 

[shal-1] be treated as part of its design only if the limitation or the effect 

PROPOSED RULES Februaiy 25, 2005 30 TexReg 1021 
it would have on emissions is federally enforceable. Secondary emissions, as defined in 40 Code of Federal Regulations §51 .165(a)(1)(viii), 

do not count in determining the potential to emit for a stationary source . 

(16) Project net--The sum of the following: the total proposed increase in emissions resulting from a physical change or change 

in the method of operation at a stationary source, minus any sourcewide 

creditable actual emission decreases proposed at the source between the 

date of application for the modification and the date the resultant modification begins emitting. Increases and decreases must meet the creditability criteria listed under the definition of net emissions increase _in 

[paragraph (-1-3) of] this section. 

(17) Secondary emissions--Emissions _that [.which] would 

occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the source or 

modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same general area as the stationary 

source or modification _that [-which] -h] causes the secondary emissions . 

Secondary emissions include emissions from any off-site support facility that [-which] would not be constructed or increase its emissions, 

except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include 

any emissions that [which] come directly from a mobile source such as 

emissions from the tail pipe of a motor vehicle, from a train, or from a 

vessel . 

(18) Stationary source--Any building, structure, facility, or 

installation that [which] emits or may emit any air pollutant subject to 

regulation under 42 United States Code, '§§7401 et se [the FGAA]. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on February 11, 

2005. 

TRD-200500625 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption : March 27, 2005 

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

SUBCHAPTER B. NEW SOURCE REVIEW 

PERMITS 

DIVISION 5 . NONATTAINMENT REVIEW 

30 TAC §116.150 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Water Code, .§5 .103, 

concerning Rules, and §5.105, concerning General Policy, which 

authorize the commission to adopt rules necessary to carry out 

its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, 

which authorizes the commission to adopt rules consistent with 

the policy and purposes of the Texas Clean Air Act. The amendment is also proposed under Texas Health and Safety Code, 

§382.002, concerning Policy and Purpose, which establishes the 

commission purpose to safeguard the state air resources, consistent with the protection of public health, general welfare, and 

physical property ; §382.011, concerning General Powers and 

Duties, which authorizes the commission to control the quality of 

the state air ; §382.012, concerning State Air Control Plan, which 

authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state air ; §382.051, 

concerning Permitting Authority of Commission ; Rules, which 

authorizes the commission to issue permits and adopt rules necessary for permits issued under Texas Health and Safety Code, 

Chapter 382; and §382.0518, concerning Preconstruction Permit, which requires that a permit be obtained from the commission prior to new construction or modification of an existing facility. 

The proposed amendment implements Texas Health and Safety 

Code, §§382.002, 382.011, 382 .012, 382.051, 382.0518. 

fi'116.150. NewMajorSource orMajorModificationinOzone Nonattainment Areas. 

(a) This section applies to all new source review authorizations 

which are administratively complete after June 15, 2004, [administratively complete applications submitted en or after November -13 ; JsJ9-2] 

for new construction or modification of facilities located in any area 

designated as nonattainment for ozone in accordance with 4_2 United 

States Code (USC), §7407 [the J'~C-Al, §447] . 

(b) The owner or operator of a proposed new or modified facility that [which] will be a new major stationary source of volatile organic compound (VOC) emissions or nitrogen oxides (NO,) emissions, 

or the owner or operator of an existing major stationary source of VOC 

or NO emissions that will undergo a major modification with respect 

to VOC or NO,, shall meet the requirements of subsection_ e 1 -(4) 

of this section [paragraphs (-1) - (4) of this subseetton], except as provided in subsection (~f [subsections (b) and (c)] of this section. Table I 

of § 116 .12 of this title (relating to Nonattainment Review Definitions) 

specifies the various classifications of nonattainment along with the 

associated emission levels that [which] designate a major stationary 

source or major modification for those classifications . 

Uc Except as noted in subsection (~f [(b)] of this section regarding NO,, the de minimis [de trtinin3is] threshold test (netting) _is 

[shall be] required for all modifications to existing major sources of 

VOC or NO,, unless at least one of the following conditions are met: 

(1) the proposed emissions increases associated with a 

project, without regard to decreases, is less than five tons per year 

(tpy) of the individual nonattainment pollutant _in areas classified 

under Federal Clean Air Act (FCAA), Title I, Part D Subpart 2 (12 

USC, §7511) classified as Serious or Severe ; 

the proposed emissions increases a ssociated with 

_a r

p oject, without r_e ag rd to decreases =_is- less than 4_0 try of the 

individual nonattainment pollutant in areas classified under _FCAA, 

_Title I Part D, Subpart 1 4( 2 USC,. §7502) and for those under FCAA, 

_Title h Part D, Subpart 2 (42 USC §7511) elassified as Marginal or 

Moderate; or[ ; the] 

(3) _the project emissions increases coupled with project actual emissions decreases for the same pollutant, summed as the project 

net, are less than or equal to zero tpy_ [tens per year] . 

Ld) For the Houston/Galvestdn/Brazoria Dallas/Fort Worth, 

_and Beaumont/Port Arthur eight-hour ozone nonattainment areas, if 

the United States Environmental Protection Agency promulgates rules 

re q_uiring new source review permit applications in these areas _to be 

evaluated for nonattainment new _source review according to that area's 

one-hour standard classification except as noted in subsection (b) 

_of this section re 

r_equired _for al] modifications fo existing major sources of VOC or NO _in 

that area,unless at least one of the following conditions is met: 

30 TexReg 1022 February 25, 2005 Texas Register 
the proposed emissions increases associated with a 

project, without regard to decreases, is less than five tpy of the individual 

nonattainment pollutant ; or 

(2) the project emissions increases coupled with project 

actual emissions decreases for the same pollutant, summed as the project 

net, are less than or equal to zero tpy . 

In applying the deminimis [de niinimis] threshold test, if 

the net emissions increases, aggregated over the contemporaneous period, are greater than the major modification levels stated in Table I _in 

§ 1 16.12 of this title , then the following requirements apply. 

(1) The proposed facility shall comply with the lowest 

achievable emission rate (LAER) as defined in § 116 .12 of this title 

for the nonattainment pollutants for which the facility is a new major 

source or major modification except as provided in paragraph (3)(B) 

of this subsection and except for existing major stationary sources 

that have a potential to emit (PTE) of less than 100 tp,y [tons per 

yeffr] of the applicable nonattainment pollutant . For these sources, 

best available control technology [Best Available Control Teeltneleg3~] 

(BACT) can be substituted for LAER. LAER shall otherwise be 

applied to each new emission unit and to each existing emission unit 

at which the net emissions increase will occur as a result of a physical 

change or change in method of operation of the unit . 

(2) All major stationary sources owned or operated by the 

applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state must [sha-H] be in compliance or on a schedule for compliance with all applicable state and 

federal emission limitations and standards . 

(3) At the time the new or modified facility or facilities 

commence operation, the emissions increases from the new or modified facility or facilities _must [shall] be offset. The proposed facility 

shall use the offset ratio for the appropriate nonattainment classification as defined in § 116.12 of this title and shown in Table I of § 116 .12 

of this title . Internal offsets _that [whic-h] are generated at the source and 

_that [whieh] otherwise meet all creditability criteria can be applied as 

follows . 

(A) Major stationary sources with a PTE of less than 

100 1py [tons per yea-r] of an applicable nonattainment pollutant are not 

required to undergo nonattainmentnewsource review [Nonattaintnent 

New Seuree Review] under this section, if the project increases are 

offset with internal offsets at a ratio of at least 1 .3 to 1 . 

(B) Major stationary sources with a PTE of greater than 

or equal to 100 tpy [tons per year] of an applicable nonattainment pollutant can substitute BACT for LAER, if the project increases are offset 

with internal offsets at a ratio of at least 1 .3 to 1 . Internal offsets used 

in this manner can also be applied to satisfy the offset requirement . 

(4) In accordance with the FCAA, the permit application 

_must [shal-1] contain an analysis of alternative sites, sizes, production 

processes, and control techniques for the proposed source . The analysis _must [shall] demonstrate that the benefits of the proposed location 

and source configuration significantly outweigh the environmental and 

social costs of that location . 

(D [(b)] For sources located in the El Paso ozone nonattainment area as defined in § 101 .1 of this title (relating to Definitions) [{El 

Paso County)], the requirements of this section do not apply to NO= 

emissions. 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office of the Secretary of State on February 11, 

2005. 

TRD-200500626 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption : March 27, 2005 

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

TITLE 31 . NATVRAL RESOURCES AND 

CONSERVATION I 

PART 2. TEXA PARKS AND 

WILDLIFE DEPARTMENT 

CHAPTER 57 . FISAERIES 

The Texas Parks and Wild fe Department proposes the repeal 

of §57.383, concerning Pe mit Fee, amendments to §§57.111, 

57.113, 57.114, 57.117, 57 134, and 57.135, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic 

Plants ; §57.156, concern g Mussels and Clams; §57.500, 

concerning Marking of Veh cles; §57.921, concerning Scientific 

Areas; and §§57.930, 57. 2 and 57.934, concerning Aquatic 

Vegetation Management. e amendments are necessary as a 

result of the department's view process under the provisions 

of Government Code, §2 1 .039, which requires each state 

agency to perform a review f all regulations not less than every 

four years and to either re dopt, amend, or repeal each rule 

as necessary and appropriate. As a result of the review, the 

department has determine that rulemaking is necessary to 

correct outdated reference naming conventions, citations, and 

terminology, as well as to Make existing provision clearer and 

more user friendly. 

The proposed repeal of §571383, concerning Permit Fee, is necessary because a previou rulemaking consolidated all provisions that establish fees in hapter 53, concerning Finance . 

The proposed amendment o §57.111, concerning Definitions, 

amends the definition of p naeid shrimp family members by 

adding the genera Fenn ropenaeus, Marsupenaeus, and 

Melicertus ; and amends the definition of oyster family members 

by adding all species of Os eidae except Crassostrea virginica 

and Ostrea equestris, and removing Crassostrea gigas because 

of changing naming con v tions, and the addition of exotic 

species that are not curren ly being used in Texas mariculture 

but known to produce prob ems in other states . No impact is 

expected to Texas maricultu e from this change. Also, reference 

to the Texas Natural Reso rce Conservation Commission is 

being changed to reflect th current name of that agency, the 

Texas Commission on Envir nmental Quality. 

The proposed amendment §57.113, concerning Exceptions, 

clarifies that the rules are not intended to be applied to individually shucked oysters of ex tic species . The proposed amendment also would add water spinach the list of species that may 

be grown under permit . Wat r spinach (Ipomoea aquatica) was 

originally included on the list of harmful or potentially harmful 

species because of its rapid rowth rate and consequent potential for invasiveness . Howev r, the department recently became 

PROPOSED RULES February 25, 2005 30 TexReg 1023 
Figure: 30 TAC §116.12(11)(A) 

TABLE I 

MAJOR SOURCE/MAJOR MODIFICATION EMISSION THRESHOLDS 

POLLUTANT MAJOR SOURCE MAJOR OFFSET RATIO 

designation' tons/year MODIFICATION' minimum 

tons/year 

OZONE (VOC, NOX)s.6 

I marginaP 100 40 1.10 to 1 

II moderate 100 40 1.15 to 1 

III serious 50 25 1 .20 to 1 

IV severe 25 25 1 .30 to 1 

CO 

I moderate 100 100 1 .00 to 14 

II serious 50 50 1 .00 to 1° 

S02 100 40 1 .00 to 14 

PMio 

I moderate 100 15 1 .00 to 1° 

II serious 70 15 1 .00 to 1° 

No x3 100 40 1 .00 to 14 

Lead 100 0.6 1.00 to 1" 

' Texas nonattainment area designations are specified in 40 Code of Federal Regulations §81.344. 

Z The major modification threshold is applicable only to existing major sources and shall be evaluated 

after netting, unless the applicant chooses to apply nonattainment new source review (NNSR) directly 

to the project. Tbe appropriate netting triggers for existing major sources of NO. and VOC are 

specified in § 116.150 of this title (relating to New Major Source or Major Modification in Ozone 

Nonattainment Areas) and for other pollutants are equal to the major modification level listed in this 

table. 

3 VOC and NO, are precursors to ozone formation and should be quantified individually to determine 

whether a source is subject to NNSR under § 116.150 of this title. As specified in § 116.150 of this 

title, for El Paso County, the NNSR rules apply to sources of VOC, but not to sources of NO.. 

TABLES AND GRAPHICS Febr-uary 25, 2005 30 TexReg 1161 
° The offset ratio is specified to be greater than 1 .00 to 1 . 

VOC = volatile organic compounds 

NO,, = oxides of nitrogen 

NOz = nitrogen dioxide 

CO = carbon monoxide 

SOZ = sulfur dioxide 

PM,,, = particulate matter with an aerodynamic diameter less than or equal to ten microns 

5 Applies to the NAAQS for nitrogen dioxide (NO2). 

6 For the Houston/Galveston/Brazoria, Dallas/Fort Worth, and Beaumont/Port Arthur eight-hour ozone 

nonattainment areas, if the United States Environmental Protection Agency promulgates rules 

requiring new source review permit applications in these areas to be evaluated for NNSR according to 

that area's one-hour standard classification, each application will be evaluated according to . that area's 

one-hour standard classification. Evaluation includes both the threshold for determining if there is a 

major modification as well'as the ratio of offsets required along with any other applicable requirement 

that depends upon an area's nonattainment classification. 

' For areas designated as nonattainment for ozone under Federal Clean Air Act, Title 1, Part D, Subpart 

1 (42 United States Code, §7502), each application will be evaluated as if that area was designated as 

Marginal. Evaluation includes both the threshold for determining if there is a major modification as 

well as the ratio of offsets required along with any other applicable requirement that depends upon an 

area's nonattainment classification. 

30 TexReg 1162 Februaty 25, 2005 Texas Register 
Kathleen Hartnett White, Chairman 

R. B. "Ralph" Marquez, Commissioner 

Larry R. Soward, Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTERS 101 AND 116 

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 101, General Air Quality Rules; 30 TAC 

Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and the state 

implementation plan (SIP), under the requirements of Texas Health and Safety Code, §382.017 ; Texas 

Government Code, Subchapter B, Chapter 2001 ; and 40 Code of Federal Regulations §51 .102, of the 

United States Environmental Protection Agency regulations concerning SIPs. 

The proposed rulemaking would amend the definition of nonattainment area in §101 . 1 to be consistent withcurrent federal classifications under the eight-hour ozone standard, and would amend the definition of 

volatile organic compound in §101 .1 to be consistent with the federal definition of volatile organic 

compound in 40 Code of Federal Regulations §51 .100(s) . The proposed amendments to §116.12 and 

§ 116 .150 would change new source review netting triggers and periods to be consistent with federal rules 

for areas classified under the eight-hour ozone standard . 

A public hearing on this proposal will be held in Austin on March 17, 2005, at 10:00 a.m. at the Texas 

Commission on Environmental Quality in Building F, Room 2210, located at 12100 Park 35 Circle. The 

hearing will be structured for the receipt of oral or written comments by interested persons. Registration 

will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in 

order of registration . A time limit may be established at the hearing to assure that enough time is allowed 

for every interested person to speak. There will be no open discussion during the hearing; however, 

commission staff members will be available to discuss the proposal 30 minutes 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 the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests 

should be made as far in advance as possible . 

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, 

MC 205, P.O . Box 13087, Austin, Texas 78711-3087, or by fax at (512) 239-4808 . Copies of the 

proposed rules can be obtained from the commission's website at 

http: //www. tnrcc. state. tx. us/oprd/rules/propadop . html. All comments should reference Rule Project 

Number 2005-009-116-AI . Comments must be received by 5 :00 p.m. on March 28, 2005 . For further 

information, please contact Michael Bame, Policy and Regulations Division at (512) 239-5658, or Beecher 

Cameron, Air Permits Division at (512) 239-1495 . 

Issued in Austin, Texas, on February 9, 2005. 

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

pnnied on rececled paper using soy-h-cd inh 
WRITTEN AND 

ORAL TESTIMONY 
INDEX OF WRITTEN TESTIMONY 

Reference Number Submitted By 

W-1 

W-2 

W-3 

W-4 

W-5 

W-6 

Clark, Thomas, & Winters on behalf of Enbridge Gathering LP; 

Acacia Natural Gas Corporation, a subsidiary of Devon Energy 

Corporation; and Energy Transfer Company 

Rob Eisenhauer, P.E., PVI Industries, LLC 

Brandt Mannchen, Sierra Club, Houston Regional Group 

Jon Fisher, Texas Chemical Council 

Baker Botts L.L.P. on behalf of Texas Industry Project 

David Neleigh, United States Environme4tal Protection Agency 
MAR-28-2005 MON 04 :02 PM 0000 FAX N0, 0000 P. 02 

CLARIK, THOMAS cQZ WIN~1~1:RS 

A 1'RL1FhSE+'rAhAl . c7pR1-t)hArl'iC)N 

'1` 1'a ,l':1 ~11 C1\ I': Ia l :a "17Z1 " NIiC1U 1'n:.i~C t)1.'vlA"1: 1iUx lids 1"'A?C' C.5'1 :21 a 7"1 " 1 1LM 

Ai7y,'milv .'Th'Y,A63 7Ai7t17 

st.fo'l'V1CS..0 l1''n =>"P1;:1dLYt` . xn" rn Px.ranie 

n1lsmlrr. TlaXA.K 7a7c1 

March 28, 2005 

Via 7"clccom at 5l;1-x3 9-4808 

hola Brown 

I'" !IS Curr1rnissiun url Euvirwlurcillal Qurrlily 

()f(icc: ul:,i.?nviruiunc;nlrll Pulicy, Analysis and AsacsSiliurLl 

MC 205 . 

11 . 0. 11ox 13087 

Austin, '1'cxrls 78711-3087 

12E; Rule Project No. 2005-009-11G-AY 

Now So-uroo Review for Bight-Hour Ozone Standard 

Anicnd ing Chapters 101 and 116 

nr.ar Ms. 13rnwn : 

Those comments are filed on behalf of lrnbridge Gathering (North Texas) LP 

(°`l :libridne"). Acacia Natural Gas Corporation, a subsidiary of Devon Energy Corporation 

("Acacia"). and Energy Transfer Company ("finer2y 'Y"ransfcr") regarding the above-idonfiilied 

l)1'oposl3d rules. 

Enbridge, Acacia, and Energy Transfer became impacted by the rlites applicable to the 

DPW non-attainment area for the first time upon adoption of the cight-hour ozono standard and 

tltc desi,,nation of non-attAinment .~reas under that standard . 1'n other words, these companies did 

not own or operate any major facilities in the old four-county region designated non-atlainment 

under ilu: onc-hour ozone standard. They do, however, own or operate facilities in tlle greater 

ninc-county region designatcd non-attainmcnt under the cight-}tour standard, Those facilities are 

(ar the first time impacted by the rules adopted for the state implcmentation plan for that region, 

Generally, L:nbridgc, Acacia, and Lncrgy '1'ransfcr support these rules inatimttch as they 

redefine the non-attainnicnt areas under The eight-hour standard and establish tiew source review 

thresholds rbr major source review at The moderate level for the DFW area, PracticWly, tllis 

cliange wit[ modify 11ac trigger for netting calculations in the DrW area from 3 tpy to 40 tpy to 

tlului luilw i f lllc frzcilily Ilcuas tu ulldcrgu ilcw suurcc ruvicw . Siinilarly, l1>.c 2najor svuruc/ttl~yc~r 

modificiltieln tbrcsholds will incrceuse, The reason for these changes is that grcatca" ninc-county 

i)FW area is now designated moderate under thc eig}ht-hour ozone standard; previously the fourcounty PFW area was dcsignatcd scrious under the o3ao-hour standard, Thasc clttlngcs arc 

,justified and warranted given the lower severity of non compliartco with the aiglat hom standard 

tllall with the one-hour standard, 

14' : : :U17MAWltlA Wl~l:\L;'rW .AU51L.Lll Ltbl:61G(1S.1 
MAR-28-2005 MON 04 ;02 PM 0000 FAX N0, 0000 P, 03 

C'l, lti7v'1r, r p IT0VTAS ti'Tr W1NT 1C R Ea 

.A 1'ItllVP.W};I,fJ .I .\LCU1:1 " (.IXt .V1`IUN 

Lola Brown 

March 28, 2005 

Pagls 7 ' 

Tnrorhoralc;d into lliese rules arc footnoted provisions that provide that, should thc EPA 

(," (1I11j)1Gtc I~S ltvir;w of ~'.arthjlTstice's petition for revicw and determine ffiat the thresholds should 

1aot 1>c; r, Octuced to protect against backsliding of standards, then the TC.E,Q has provided that in 

this rule package that the thresholds will be cstablishcd at the levels previously applicable to this 

area, i3,i1hriclbye, Acacia, and Energy Transfer object to this automatic and region-wide clyaagc. 

TlaC$o ConlhanlCs believe that, should EPA review its standards Earthjustice's position and 

rcinstate the old thresholds, that the TCEQ should not automatically adopt those as the now 

tilr4`sllolcls rc:gion-wide, 711ese companies would urge the TCRQ to review FfA's dc" citiion and 

nt,ah,o an inclependent determination at that time of the applicability of t1YC old and 11m 

thrc<;bolds . In particular, these companies would urZ;c .the TCEQ to make ille older thresholds 

applicable to wily the original four-county DFW non-attainment area and to allow the thresllolds 

applicable to niodaratc regions to apply to tllc outlying five counties of t1le cuY-rent nine-county 

eq,ioty. There would be no backsliding of standards in the outlying flvc counties as hrcviously 

no rtiiurG'stringent statldards were ever applicable to this regiou, These rive counties wore not 

do51g117Ced non-aLtairltricnt until lha eight-bour staa.idard desigxlalioTls werC made. Accordingly, 

we would urge the TCEQ to review the applicability of the old standards aud only apply those 

standards to the portion of the current DrW that wero dosigiated non-attainincnt under the onc~-

11()lir standard . 

We ahproc`iate tile opportunity to file these comments. pleasc contact me if you have ar2 y 

qucstions. 

Very truly yours, 

Celina Romcro 

CRf c1i 
21 February 2005 

Lola Brown 

Office of Environmental Policy, Analysis, and Assessment 

MC 205 

P.O. Box 13087 

Austin, Texas 78711-3087 

Reference: Rule Project Number 2005-009-116-AI 

TBAc Exemption from the List of VOCs 

Dear Ms. Brown: 

On behalf of PVI Industries, LLC in Fort Worth, Texas, I would like to express our 

interest in the proposed rule which would include exempting tertiary butyl acetate 

(TBAc) as a VOC for emission limits. PVI is one potential end-user of product coating 

systems which could be reformulated using TBAc in place of other potentially ozoneforming solvents . While I wish that the exemption applied to emission inventories as 

well, exempting TBAc as a VOC at this time is a welcome first step. 

PVI has already performed extensive testing on TBAc reformulated coating systems in 

our specific application with very encouraging results. We found the TBAc systems to 

be more forgiving during the cure cycle, a property that could potentially reduce rework. 

Our testing also includes field units for the last two years which, to date, have shown no 

compromise in performance as a result of substituting TBAc for xylene and toluene in the 

solvent line-up. 

One of our edicts here at PVI is to lessen our impact on the environment through the 

research and implementation of new fabrication and processing methods, reduced VOC 

coating systems, and best available control technology (BACT) equipment. With that in 

mind, we look forward to the passage of the proposed rule exempting TBAc and 

implementing another process which further reduces our emissions. Thank you for your 

efforts in this important matter. 

Rob Eisenhauer, P.E. 

Sr. Manufacturing Engineer 

PVI Industries, LLC 

Fort Worth, Texas 
SIERRA 

CLUB 

FOUNDED 1892 

February 22, 2005 

RECEIVED 

FEB 2 5 2005 

Ms. Lola Brown OFFICE OF ENVIRONMENTAL 

Office of Environmental Policy, Analysis, and Assessment POLICY, ANALYSIS & ASSESSMENT 

MC 205 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

Dear Ms . Lola, 

Enclosed are the comments of the Houston Sierra Club (HSC) regarding the 

proposed changes to Texas Commission on Environmental Quality (TCEQ) 

rules, 30 TAC 101 .1, 116 .12, and 116 .150. 

1) The HSC understands that the TCEQ is adopting a definition of New Source 

Review that is required by U.S . Environmental Protection Agency's (EPA) new 

New Source Review regulations . However, the HSC opposes the 40 ton per 

year (TPY) netting trigger for the eight-hour ozone nonattainment area for 

classified Marginal or Moderate areas for 30 TAC 101 .1, 116 .12, and 116.150, 

instead of the present 5 TPY netting trigger . This 40 TPY netting trigger will 

allow greater health, mortality, welfare, safety, and environmental impacts to the 

nonattainment area. This definition of New Source Review is not protective of 

the public and the TCEQ should reject it . 

The HSC appreciates this opportunity to comment. Thank you. 

Sincerely, 

Brandt Mannchen 

Chair, Air Quality Committee 

Houston Sierra Club 

Lone Star Chapter 

5431 Carew 

Houston, Texas 77096 

713-664-5962 

"When we try to pick out anything by itself, we find it hitched to everything else in the universe ." Jolm Muir 

Printed on 100% Kenaf tree free paper 

houston Regional Group 

P. O. Box 3021 

Houston, Texas 77253-3021 

713-895-9309 

http://texas.sierraclub.org/houston/ 
TEXAS CHEMICAL COUNCIL he 

. 1402 Nueces Street " Austin, Texas 78701-1586 " (512) 646-6400 - Fax (512) 646-6420 

March 23, 2005 

Ms. Lola Brown 

Office of Environmental Policy, Analysis, and Assessment 

MC 205 

PO Box 13087 

Austin, Texas 78711-3087 

Rule Log Number 2005-009-116-AI 

Dear Ms. Brown: 

RECEIVED 

MAR 2 8 2005 

AIR QUALITY 

PLANNING 

Texas Chemical Council (TCC) members represent a major component of the 

manufacturing sector in Texas. The chemical industry results in the employment of more 

than 450,000 Texans with a total annual payroll of more than $15 billion. The chemical 

industry has invested more that $40 billion in Texas production facilities . The Texas 

chemical industry generates about 25% of the state's manufacturing value added and 

accounts for a similar percentage of manufacturing shipments. 

Texas Chemical Council appreciates the opportunity to comment on the proposed 

revisions to Chapter 101, the General Air Quality Rules, concerning TCEQ's plans to 

incorporate the November 29, 2004, EPA rule which added five volatile organic 

compounds (VOC) to the list of compounds in 40 CFR 51 .100 which are excluded from 

the definition of VOC. The definition of VOC is based on compound reactivity and the 

compound's tendency to produce ozone, and the compounds were excluded based on 

their lack of reactivity . TCC supports the exclusion of the listed compounds from the 

definition of VOC. 

In addition, TCC members request agency review of the definition of Reportable 

Quantity (RQ in light of these proposed changes. There is no state RQ for the 

Hydrochlorofluorocarbons (HCFCs), therefore, companies must resort to a 100 pound RQ 

threshold per 101 .1(84) (A) (ii) . Very few of these compounds have a federal RQ, with 

the exception of dichlorodifluoromethane and trichloromonofluoromethane, which are 

regulated at 5000 pounds. 

PRINTED ON RECYCLED PAPER 
Therefore, TCC suggests the following language be added in 101 .1(84)(A)(i)(r) to 

define the RQ for HCFCs as 5000 pounds: 

"(r) HCFCs, as defined under Section 602 of the Federal Clean Air Act - 5,000 pounds" 

Please contact Susan Moore at (281) 366-5018 or me at (512) 646-6404 for questions on 

these comments . 
BAKER BOTTS U.P PFCEiVED 

MAR 2 5 2005 

AIR QUALITY 

PLANNING 

P,ECEI VED 

March 24, 2005 

BY HAND DELIVERY 

MAR 2 81 200115, 

RiGUll,l-IOId} fivi-11111f"MICII"! SEUD"'i 

Ms. Lola Brown (MC 205) 

Office of Environmental Policy, Analysis and Assessment 

Texas Commission on Environmental Quality 

12100 Park 35 Circle, Building F 

Austin, TX 78753 

Re: Rule Project Number 2005-009-116-AI 

Dear Ms. Brown: 

1500 SAN JACINTO CENTER AUSTIN 

98 SAN JACINTO BLVD . BAKU 

AUSTIN, TEXAS DALLAS 

78701-4287 HOUSTON 

512.322 .2500 LONDON 

FAX 512.322 .2501 MOSCOW 

NEW YORK 

RIYADH 

WASHINGTON 

James P. Rizk 

512 .322.2648 

FAX 512 .322.8351 

jim .rizk@bakerbotts .com 

Baker Botts L.L.P., on behalf of the Texas Industry Project ("TIP"),' appreciates 

the opportunity to provide comments on the above-referenced rulemaking proposal regarding 

netting exercises under Chapter 116. While TIP generally supports TCEQ's proposal, we believe 

that two aspects of the rulemaking warrant comment and revision by the TCEQ. First, the 

preamble to the proposed rule provides: 

Concurrent with the effective date of the new five-year 

contemporaneous period, the commission will allow the reductions 

required by the HGB NOx mass emission cap and trade program 

(MECT) in 30 TAC Chapter 101, Subchapter H, to be creditable 

for netting purposes.2 

We believe that this statement incorrectly suggests that the amendments proposed 

in this rulemaking impact the ability to credit reductions under the NOx MECT program. 

Reductions under the NOx MECT program are creditable as a matter of law, irrespective of this 

rulemaking. As the preamble notes, MECT allows for trading of a fixed number of emission 

allowances so the emission reductions are not binding on any specific unit or site . Rather MECT 

ensures that area-wide emission reductions are made, regardless of changes at any particular site . 

Second, TCEQ has made two unnecessary word changes that make the proposed 

rules different from their federal analog. Specifically, proposed 30 TAC §§ 116.112(10) and 

(11)(B) change the word "shall not" to "may not." However, the Section 311 .016(5) of the Code 

Construction Act makes clear that the term "may not" is synonymous with "shall not."3 

' The Texas Industry Project is a group of approximately fifty companies with operations in Texas. TIP members 

include a variety of companies in the following sectors: electric utilities, petrochemicals, upstream operations, 

?etroleum refining, forest products and semiconductor manufacturing. 

30 Tex. Reg. 1017 (February 25, 2005). 

3 TEx. Gov'T CODE ANN. § 311 .016(5) (Vernon 2004). 

AUS01 :376626.1 
BAKER BOTTS UP 

Ms. Lola Brown 2 March 24, 2005 

Furthermore, the Federal analog to the proposed sections use the term "shall not" in both cases. 

Therefore, the proposed changes are both unnecessary and potentially confusing. We 

respectfully request that the TCEQ strike these proposed word changes. 

Please contact me if you have any questions about these comments or the position 

of the Texas Industry Project with regard to this rulemaking. We appreciate the opportunity to 

provide our views. 

Please call me at 512.322 .2648 if you have any questions. 

Sincerely, 

J 

For the Texas Industry Project 

4 See 40 C.F .R. § 51 .165(a)(1)(iv)(C) and (a)(1)(v)(C) . 

AUS01 :376626 .1 
,oEO srqTF 

9 

2 

4C PRO'~~ 

W 

02 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

RECEIVED 

March 25, 2005 

Ms. Lola Brown 

Office of Environmental Policy, Analysis, and Assessment 

MC 205 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, Texas 78711-3087 

APR 0 7 2005 

REGULATIONS DEVELOPMENT SECTION 

RE: Comments on proposed regulatory revisions to address New Source Reviewl for the 8-Hour 

Ozone Standard. Rule Pruject Number: 2005-009-116-AI. 

Dear Ms. Brown: 

Thank you for the opportunity to review the proposed changes to 30 TAC Chapters 101 and 

116. In this action, the Texas Commission on Environmental Quality (TCEQ proposes revisions to 

implement New Source Review for the 8-hour ozone standard. Based on our review of the proposed 

regulations, we have the following, comments. We believe that incorporation of these comments will 

clarify and strengthen these regulations. 

1 . Sections 116.12(7) - definition of "contemporaneous period" and 116.12(13) - definition of 

"net emissions increase ." Texas proposes to revise the contemporaneous period for major 

sources with a potential to emit greater than 250 tons per year. The proposal will change the 

beginning date of the contemporaneous from November 15, 1992 to the date five years before 

the proposed project begins construction and end when the proposed project begins operation. 

The proposed revisions are consistent with the requirements of 40 CFR CFR 

51.165(a)(1)(vi)(A) and section 182(c)(6) of the Clean Air. Act. EPA approved Texas' 

existing contemporaneous period definition in 2000 based, in part, on our conclusion that it 

would result in greater emission reductions that the contemporaneous period specified in our 

regulations. See 65 FR 2567-68 (January 18, 2000) and 65 FR 43986 (July 17, 2000) . We 

also approved Texas' five tpy netting trigger at Section 116.150(a) based, in part, on 

consideration of the State's contemporaneous period definition and on EPA's proposal dated 

July 23, 1996. The Chapter 116 revision preamble notes, "The EPA agreed to the change 

provided that the netting period was extended to go back to November 15, 1992, for the larger 

Internet Address (URL) - http ://www .epa .gov/earthl r6/ 

Recycled/Recyclable - Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer) 
major sources instead of the five-year netting period in the federal rule ." The State's revisions retain the 

five tpy netting trigger for Serious and Severe nonattainment areas . Please provide the State's rationale 

on whether the revision to the contemporaneous period definition will affect the State's strategy to 

attain and maintain the 8-hour ozone standard . Also, please provide the State's rationale for how the 5 

tpy netting trigger remains consistent with Section 182(c)(6) in light of EPA's July 23, 1996 proposed 

rule and the State's revision to the contemporaneous period definition. 

2. Please further clarify timing of applicability of PSD and NNSR requirements for previously 

designated and newly designated nonattainment areas prior to and following the effective dates 

of both the 8-hour ozone standard designations and withdrawal of the 1-hour ozone standard . 

For example, Texas' proposed rule at Section 116.150 (a), New Major Source or Major 

Modification in Ozone Nonattainment Areas states : 

This section applies to all new source review authorizations which are 

administratively complete after June 15, 2004, for new construction or 

modification of facilities located in any area designated as nonattainment 

for ozone in accordance with 42 United States Code (U.S .C.) § 7407 . 

Texas' existing rules at 116.111(a) state : 

(H) Nonattainment review. If the proposed facility is located in a 

Nonattainment area, it shall comply with all applicable requirements in 

this chapter concerning nonattainment review. 

(I) Prevention of Significant Deterioration (PSD) review . If the 

proposed facility is located in an attainment area, it shall comply with all 

applicable requirements in this chapter concerning PSD review . 

Please clarify that nonattainment NSR requirements apply to final permits issued after June 15, 

2004 in all areas designated as nonattainment of the 8-hour, as well as the 1-hour ozone 

standard (if the area is designated nonattainment for the 1-hour ozone standard). Please clarify 

that the date of permit issuance, not the date of administrative completeness, determines 

applicability of NSR requirements . See EPA's March 11, 1991 New Source Review (NSR) 

Program Transitional Guidance, John S. Seitz and the Phase I Implementation Rule (69 FR 

23858) which states : 

An area's designation at the time the final permit is issued determines which 

major New Source Review (NSR) requirements apply to the construction activity. 

Accordingly, if a source has received its PSD permit before the area is 

designated nonattainment, it may construct under the terms of that permit if it 

commences an ongoing program of construction within the required time period 
and completes the project within a reasonable time. However, if the area is 

designated nonattainment before the permit is issued (even if the reviewing 

authority deemed the PSD application complete), the PSD permit may not be 

issued . The source would be required to submit a new application to comply 

with the requirements of the applicable nonattainment major NSR program 

before receiving a final permit and beginning construction. 

3. Also, The TCEQ should clarify in the record that the requirements for the 1-hour ozone 

standard remain applicable until June 15, 2005. Final NSR permits issued to any major source 

which is located in an area that is nonattainment for the 1-hour ozone standard prior to June 

15, 2005, must be evaluated for applicability of nonattainment new source review under the 

currently approved requirements applicable for the 1-hour ozone classifications (including use 

of the currently approved contemporaneous period). 

4. Please clarify whether the State interprets its SIP to make nonattainment NSR requirements 

automatically applicable to areas that may be designated as nonattainment in the future. Texas' 

definition of nonattainment area at Section 101 .1 (67) and major modification (Table I) at 

Section 116.12(11) are generic. However, Section 101 .1 (67) also lists specific counties in 

each nonattainment area under both ozone NAAQS. Would Texas interpret its SIP to require 

areas which may be designated as nonattainment in the future be subject to federal regulations 

at 40 CFR Part 51, Appendix S until the SIP is revised to include the area, or would Texas' 

NSR requirements become automatically applicable upon the effective date of the designation? 

5. Page 4 of the Chapter 116 revision preamble includes the statement: "Application of the eighthour ozone standard for NNSR becomes effective June 15, 2005, and the commission is 

updating its rules to implement the necessary changes." Please clarify that the eight-hour ozone 

standard for NNSR became effective on June 15, 2004. 

6. Mass Emission Cap and Trade on Page 5 of the TCEQ's proposal preamble document. 

A. Participating in the MECT does not exempt a facility from NSR requirements . For 

reductions to be creditable for NSR netting, they must be consistent with all federal and 

state netting requirements . See 40 CFR 51.165(a)(1)(v)(a), 30 TAC 116.150. For 

example, Texas should clarify that any MECT reduction that is used for netting will only 

occur at the source at which the proposed increase will occur, consistent with 

40 CFR 51 .165(a)(1)(vi)(A). Texas should also clarify that any MECT reduction that 

is used for netting will be enforceable as a practical matter, consistent with 

40 CFR 51 .165(a)(1)(vi)(E)(2) . 

B. The proposed preamble language regarding use of reductions from the MECT for 

netting appears to conflict with the current MECT rule at 101 .352(d), which states that 
"Allowances cannot be used for netting requirements under 30 TAC Chapter 116, 

Subchapter B, Divisions 5 and 6 (relating to Nonattainment Review and Prevention of 

Significant Deterioration Review)." Please address this apparent conflict. In addition, 

please clarify whether reductions below a facility's MECT allowance level may generate 

excess allowances that can also be used for NSR netting. 

Thank you for the opportunity to provide comments. We look forward to seeing the final rule 

when submitted. If you have any questions, please call Mr. Stanley M. Spruiell of my staff at 

(214) 665-7212. 

Sincerely yours, 

Air Permits Section 

David Ne`leigh 

Chief 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

No oral testimony was received. 
a 

O 

. . 

A 

0 

O 

o 

O 

c. x 

"~ a~ ao 

a ~ C}~ 

W ~ L c'~J 

> 

p ~ ~ ~C 

~, 

U Cd 

O 

° a ~ 

,..

~D 

z 

., 0 

~ 

` 

J 

O v 

COD 

bU ~ o 

u 

U ~ ~ ~' ~ Jl ~ 

, 

l. -J 

H z ~ r 

r`' 

o 

" 

~ 

- 

y 

. 

.-~- 

't~ 

/~ 

pA 

"" " 

O .. . 

GC v ~ 

o 

- 

~ c 

U 

O 
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Qual 

INTEROFFICE MEMORANDUM 

To: Commissioners Date: May 6, 2005 

Thru: LaDonna Castanuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: Dan Eden, Deputy Director 

Office of Permitting, Remediation, and Registration 

Docket No. : 2004-1877-RUL 

Subject : Commission Approval for Rulemaking Adoption 

Chapter 101, General Air Quality Rules 

Chapter 116, Control of Air Pollution by Permits for New Construction or Modification 

New Source Review (NSR) for Eight-Hour Ozone Standard 

Rule Project No . 2005-009-116-AI 

Reasons for the rule package: 

" Under what authority are we adopting these changes? 

The amendments are adopted under Texas Water Code, §5 .103, concerning Rules, and §5 .105, 

concerning General Policy, which authorize the commission to adopt rules necessary to carry out 

its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, 

§382 .017, concerning Rules, which authorizes the commission to adopt rules consistent with the 

policy and purposes of the Texas Clean Air Act. The amendments are also adopted under Texas 

Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the 

commission purpose to safeguard the state air resources, consistent with the protection of public 

health, general welfare, and physical property; §382 .011, concerning General Powers and Duties, 

which authorizes the commission to control the quality of the state air; §382 .012, concerning State 

Air Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state air; and §382.051, concerning Permitting Authority 

of Commission; Rules, which authorizes the commission to issue permits and adopt rules necessary 

for permits issued under Texas Health and Safety Code, Chapter 382. 

" Is this rulemaking required by federal rule or state statute? Yes . Which ones? Federal 

adoption of eight-hour ozone standard and subsequent reclassification of nonattainment counties . 

" Are there any legal deadlines by which this must be proposed, adopted, or effective? Yes, 

adopt by June 15, 2005 . 

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

To make NSR rules consistent with the new federal standards for ozone and the recently revised 

federal definition for volatile organic compound (VOC) . 

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

To match NSR rules to the new federal standards for ozone nonattainment . 

" How does it improve the environment? All major sources in ozone nonattaimnent areas will see 

a reduction in the chance for federal nonattainment review and emission offsetting due to the 
Commissioners 

Page 2 

May 6, 2005 

Re: Docket No. 2004-1877-RUL 

higher netting trigger and netting threshold. Major sources in the newly designated counties in the 

Dallas-Fort Worth (DFW) area are now subject to the lowest achievable emission rate (LAER) . 

" Other important background or historical information . N/A 

What the rulemaking will do: 

" Project scope 

These rules amend agency rules concerning NSR to reflect federal requirements resulting from the 

change from a one-hour ozone standard to an eight-hour ozone standard . The Houston-GalvestonBrazoria and DFW ozone nonattainment areas are now classified as Moderate under the new eighthour standard. Their classifications under the one-hour standards are Severe and Serious, 

respectively . In addition to the four counties in the DFW area classified under the one-hour 

standard, five additional counties (Ellis, Johnson, Kaufman, Parker, and Rockwall) were 

designated as Moderate nonattainment for the eight-hour standard . The Beaumont-Port Arthur 

(BPA) area is classified as Marginal under the eight-hour standard and consists of the three 

counties classified as Serious under the one-hour standard: Hardin, Jefferson, and Orange. The 

El Paso area consisting of El Paso County is now designated as attainment under the eight-hour 

standard. The San Antonio area, consisting of Bexar, Comal, and Guadalupe Counties, was also 

designated as nonattainment under the Federal Clean Air Act, Title I, Part D, Subpart 1 (42 United 

States Code (USC), §7402), but with a deferred effective date of September 30, 2005, due to its 

status as an early action compact (EAC) area. The rules raise the netting trigger from five tons 

per year (tpy) to 40 tpy and restrict the netting period to five years . The netting trigger is that 

emission increase resulting from a source modification that would require an emission accounting 

of emission increases and decreases over a set period of time (netting period) to determine if a 

source has generated a net increase in emissions . 

The definition of nonattainment area in Chapter 101 is also amended to show the addition of five 

counties to the DFW nonattainment area and the San Antonio area and the removal of the El Paso 

area. This is essentially an administrative rulemaking as the counties have already been declared 

nonattainment under the eight-hour ozone standard by the United States Environmental Protection 

Agency (EPA) . The definition of volatile organic compound (VOC) in Chapter 101 is amended 

to refer to the recently changed federal definition, which removes nonreactive VOCs from state 

implementation plan emission restrictions . 

" Changes required by federal rule: Amendments to nonattainment area and volatile organic 

compounds definition. 

" Changes required by state statute : None. 

" Staff recommendations that differ from or fall outside of federal rule or state statute : None. 

Impact on the regulated community: 

" Who will be affected? 

Owners or operators of all major sources in the ozone nonattainment areas of the state . Owners 

or operators of major sources in Bexar, Comal, Ellis, Guadalupe, Johnson, Kaufman, Parker, and 

Rockwall Counties . 
Commissioners 

Page 3 

May 6, 2005 

Re: Docket No . 2004-1877-RUL 

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

Owners and operators of major sources in the five counties added to the DFW nonattainment area 

are now subject to federal NSR. Major sources in the San Antonio area may be impacted if the 

San Antonio area fails to meet any of the EAC commitments. 

Will there be a fiscal impact? Yes. If so, estimate. Except for the new nonattainment counties 

in the DFW area, which have never been subject to netting, these rules will result in a significant 

reduction in the number of netting exercises. The specific number of reductions is impossible to 

know. Major sources located in the counties added to the DFW nonattainment area could have 

significant costs if required to upgrade their emission control equipment from best available control 

technology to LAER. The designation of the counties as nonattainment does not in itself mean that 

emission controls must be immediately upgraded or additional controls installed . Sources that 

undergo major modifications will be subject to LAER, but the commission does not have 

information indicating which, if any, sources are going to be affected . 

Impact on the public : 

" Who will be affected? No effects on the public . 

" Does it create a group of affected persons who were not affected previously? No. How? N/A 

" Will there be a fiscal impact? No . If so, estimate . N/A 

Impact on agency programs: The Air Permits Division and the Environmental Planning and 

Implementation Division will be affected but no additional staff will be required . 

Stakeholder meetings: 

" Have any stakeholder meetings been held? Yes, on October 2, 2004 . 

" With whom? Primarily industrial representatives . Notices were sent to environmental groups as 

well, but none registered as attending. 

" What were the general sentiments? Support of 40 tpy netting trigger and five-year netting 

window . 

" Were any changes made in response to stakeholder concerns? No. 

The implications are: 

" What policy issues are affected? N/A 

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

" What are the consequences if this rulemaking is not approved to go forward? 

The rules must be adopted by June 2005 to meet the federal deadline . TCEQ rules would be 

inconsistent with federal rules allowing sources in nonattainment areas to escape nonattainment 

review, netting period for some netting exercises would go back to 2004, netting trigger would 

remain at five tpy . 

" Are there alternatives? No . 

Potentially controversial matters: Establishment of netting trigger at five tpy or 40 tpy and removal of 

the "pinned" netting window. 
Commissioners 

Page 4 

May 6, 2005 

Re : Docket No. 2004-1877-RUL 

Public conunent: Sierra Club, Houston Regional Group (HSC); Baker Botts L.L.P . on behalf of Texas 

Industry Project (TIP); United States Environmental Protection Agency (EPA); Clark, Thomas, & Winters 

on behalf of Enbridge Gathering LP, Acacia Natural Gas Corporation, a subsidiary of Devon Energy 

Corporation, and Energy Transfer Company (CTW) ; PVI Industries, LLC (PVI) ; and Texas Chemical 

Council (TCC) submitted comments on the proposed amendments to Chapter 116 . HSC opposed the 

proposal, while TIP, CTW, TCC, and EPA generally supported the proposal with comments. HSC stated 

that the change in netting triggers and netting periods would endanger public health . The staff replied that 

the triggers and netting period were consistent with an eight-hour ozone standard that is health based and 

that public health was not threatened. The other commenters generally supported the proposal with EPA 

asking for an explanation how a 40 tpy netting trigger and five-year netting period would allow attainment 

of the eight-hour standard. The staff responded that given that less than 20 nonattainment permits were 

issued in Texas prior to 2001, it is likely that including emission increases and decreases prior to that date 

in netting exercises will result in a lower net emissions increase at most sites . 

The five tpy netting trigger will only come into play if a nonattainment area should become subject to the 

requirements associated with a serious or severe nonattainment designation. It was accepted by EPA as 

equivalent to the federal standard provided that sources with a potential to emit greater than 250 tpy 

maintained a contemporaneous period back to 1992 to ensure that any small emission increases were 

included in the contemporaneous period . The staff was unable to identify any cases where nonattainment 

review would not have been required with a five-year contemporaneous period. Based on this experience, 

a five-year contemporaneous period with a five tpy netting trigger would be equivalent to the current rule 

for serious and severe nonattainment areas. 

In response to comments, the staff did change the term "may not" to "shall not" in §116.12(10) and 

(11)(B) . 

PVI supported the change in the VOC definition in Chapter 101 . 

Agency contacts : 

Beecher Cameron, Program Lead, 239-1495 

Janis Hudson, Staff Attorney, 239-0466 

Daniel Long, Staff Attorney, 239-5373 

Lola Brown, Texas Register Coordinator, 239-0348 

Attachments 
Commissioners 

Page 5 

May 6, 2005 

Re : Docket No. 2004-1877-RUL 

cc: Chief Clerk, 8 copies 

Executive Director's Office 

David Schanbacher, P.E. 

Brian Christian 

Derek Seal 

Ashley K. Wadick 

Brent Wade 

Office of General Counsel 

Beecher Cameron 

Lola Brown 

cc (without attachments) : 

Beecher Cameron, Program Lead 

Janis Hudson, Staff Attorney and Acting OLS Liaison 

Daniel Long, Staff Attorney 

Tara Capobianco, Program Liaison 

Keith Sheedy, P. E. , Technical Liaison 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts an amendment to §101 .1 

without change to the proposed text as published in the February 25, 2005, issue of the Texas Register 

(30 TexReg 1009), and will not be republished . 

The amendment will be submitted to the United States Environmental Protection Agency (EPA) as a 

revision to the state implementation plan (SIP) . 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE 

After adoption of the Federal Clean Air Act (FCAA) Amendments of 1990, the EPA classified the 

designated four areas of Texas that failed to meet the one-hour national ambient air quality standard 

(NAAQS) for the air contaminant ozone . Each area was classified by the EPA based on the amount by 

which it exceeded the ozone NAAQS of 0.12 parts per million (ppm) based on a peak one-hour 

concentration of ozone. Eight counties in the Houston-Galveston-Brazoria (HGB) area (Brazoria, 

Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller) were classified as Severe 

and El Paso County was classified as Serious . Four counties in the Dallas-Fort Worth (DFW) area 

(Collin, Dallas, Denton, and Tarrant) were originally classified as Moderate and then reclassified to 

Serious. Three counties in the Beaumont-Port Arthur (BPA) area (Hardin, Jefferson, and Orange) 

were originally classified as Serious, then reclassified to Moderate, and reclassified again, in 2004, to 

Serious. 
Effective June 15, 2004, EPA designated and classified four areas in Texas as nonattainment for the 

eight-hour ozone standard (69 FR 23858) . The HGB area was classified as Moderate and contains the 

same eight counties that were classified as Severe under the one-hour standard : Brazoria, Chambers, 

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller. The DFW area was also classified 

as Moderate and consists of the counties classified as Serious under the one-hour standard : Dallas, 

Tarrant, Denton, and Collin Counties, plus five additional counties : Ellis, Johnson, Kaufman, Parker, 

and Rockwall. The BPA area was classified as Marginal and consists of the three counties classified as 

Serious under the one-hour standard : Hardin, Jefferson, and Orange. The El Paso area consisting of 

El Paso County is now designated as attainment. In addition, the San Antonio area, consisting of 

Bexar, Comal, and Guadalupe Counties, was also designated as nonattainment under the FCAA, Title 

1, Part D, Subpart 1 (42 United States Code (USC), §7402), but with a deferred effective date of 

September 30, 2005, due to its status as an early action compact (EAC) area. EPA noted in the eighthour ozone designation and classification rulemaking that EAC areas will continue to remain eligible 

for deferred effective dates as long as they remain in compliance with their compact agreements. The 

classification of nonattainment areas was codified in 40 Code of Federal Regulations (CFR), and this 

amendment will update the commission rules to match the new federal classifications . 

On November 29, 2004, EPA added five volatile organic compounds (VOC) to the list of compounds 

in 40 CFR §51 .100(s) that, for lack of reactivity, are excluded from the definition of VOC. The 

definition of VOC is based on compound reactivity and the compound's tendency to produce ozone. 

The compounds include 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (known as HFE-7000) ; 3-

ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (known as HFE-7500, HFEs702, T-7145, and L-15381); 1,1,1,2,3,3,3-heptafluoropropane (known as HFC 227ea) ; methyl 
formate; and t-butyl acetate (also known as tertiary butyl acetate, TBAC, or TBAc). EPA revised the 

definition of VOC to say that TBAC will not be a VOC for purposes of VOC emissions limitations or 

VOC content requirement, but will continue to be a VOC for purposes of all recordkeeping, emissions 

reporting, and inventory requirements that apply to a VOC. The commission is deleting the list of 

compounds from the commission definition and referring to the federal definition in 40 CFR §51 .100, 

as amended on November 29, 2004 (69 FR 69290 - 69304) . 

Adopted changes to the 30 TAC Chapter 116 corresponding rulemaking are also published in this issue 

of the Texas Register. 

SECTION DISCUSSION 

§101.1, Definitions 

The commission amends the definition of nonattainment area in paragraph (67) to reflect the 

classifications under the existing one-hour standard and to add the classifications under the new eighthour ozone standard. The classific4tions under the new standard are the Moderate classification for the 

HGB and DFW areas, including five additional counties, and the Marginal classification for the BPA 

area . The San Antonio area is designated as nonattainment under the FCAA, Title I, Part D, Subpart 1 

(42 USC, §7402), but with a deferred effective date of September 30, 2005, due to its status as an 

EAC area. The El Paso area is in attainment for the eight-hour ozone standard and therefore is not 

listed under new subparagraph (F) . Previously existing subparagraph (F) is relettered as subparagraph 

(G) . 
The commission also amends the definition of VOC in paragraph (111) by deleting the existing list of 

compounds and by referring to the federal definition in 40 CFR §51 .100(s), except paragraphs (2) -

(4), as amended on November 29, 2004 (69 FR 69290 - 69304). The federal definition includes a 

special case for the compound t-butyl acetate, which will not be considered a VOC for emission 

limitation or content purposes but will be considered a VOC for emissions reporting and inventories 

and photochemical modeling . 

The commission also made administrative changes for readability, conformity with the drafting 

standards in the Texas Legislative Council Drafting Manual, November 2004, and consistency with 

other commission rules . 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory impact analysis 

requirements of Texas Government Code, §2001 .0225, and determined that the rulemaking does not 

meet the definition of a "major environmental rule ." Furthermore, it does not meet any of the four 

applicability requirements listed in Texas Government Code, §2001.0225(a) . A "major environmental 

rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human 

health from environmental exposure, and that may adversely affect in a material way the economy, a 

sector of the economy, productivity, competition, jobs, the environment, or the public health and safety 

of the state or a sector of the state. The amendment revises the definition of nonattainment area to 

reflect the new classifications under the eight-hour standard for the BPA, DFW, and HGB areas ; adds 

the five newly designated counties in the DFW area; and adds the San Antonio area. The amendment 

also incorporates a change to the federal definition for VOC, which became effective November 29, 
2004. The amendment will not adversely affect, in a material way, the economy, a sector of the 

economy, productivity, competition, jobs, the environment, or the public health and safety of the state 

or a sector of the state. 

In addition, Texas Government Code, §2001 .0225, only applies to a major environmental rule, the 

result of which is to : 1) exceed a standard set by federal law, unless the rule is specifically required by 

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

federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an 

agency or representative of the federal government to implement a state and federal program; or 4) 

adopt a rule solely under the general powers of the agency instead of under a specific state law. The 

amendment does not exceed a standard set by federal law or exceed an express requirement of state 

law . There is no contract or delegation agreement that covers the topic that is the subject of this 

rulemaking. Finally, this rulemaking was not developed solely under the general powers of the 

agency, but is authorized by specific sections of the Texas Health and Safety Code and Texas Water 

Code, which are cited in the STATUTORY AUTHORITY section of this preamble. Therefore, this 

rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, 

§2001 .0225(b), because the amendment does not meet any of the four applicability requirements . 

TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the adopted amendment. The specific purpose 

of this rulemaking is to amend the definition of nonattainment area to reflect the new classifications for 

the BPA, DFW, and HGB areas; add the five newly designated counties in the DFW area; and add the 

San Antonio area . The EPA has indicated that the one-hour standard will be revoked on June 15, 
2005 . The amendment also incorporates a change to the federal definition for VOC, which became 

effective November 29, 2004. Promulgation and enforcement of the amendment would be neither a 

statutory nor a constitutional taking because it does not affect private real property . Specifically, the 

amendment does not affect private property in a manner that restricts or limits an owner's right to the 

property that would otherwise exist in the absence of a governmental action. Therefore, the 

amendment does not constitute a takings under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking relates to an action or actions subject to the Texas 

Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as 

amended (Texas Natural Resources Code, §§33 .201 et seq .), and the commission rules in 30 TAC 

Chapter 281, Subchapter B, concerning Consistency with the CMP. As required by §281 .45(a)(3) and 

31 TAC §505 .11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, 

commission rules governing air pollutant emissions must be consistent with the applicable goals and 

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

policies in accordance with the rules of the Coastal Coordination Council, and determined that the 

action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this 

rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, 

functions, and values of coastal natural resource areas (31 TAC §501 .12(1)) . No new sources of air 

contaminants are authorized and the adopted revisions maintain the same level of emissions control as 

the previously existing rules. The CMP policy applicable to this rulemaking action is the policy that 

commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the 

coastal areas (31 TAC §501 .14(q)) . This rulemaking action complies with 40 CFR Part 51, 
Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in 

accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent 

with CMP goals and policies . 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Section 101 .1 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits. 

Upon the effective date of this rulemaking, owners or operators subject to the Federal Operating 

Permit Program will be required to certify compliance with amended § 101 .1 . 

PUBLIC COMMENT 

The commission conducted a public hearing on this proposal in Austin on March 17, 2005. Two 

comments were received during the public comment period, which closed on March 28, 2005 . PVI 

Industries, LLC supported the removal of tertiary butyl acetate from the list of reactive VOCs. 

Texas Chemical Council (TCC) also supported the removal of the compounds from the list of regulated 

VOCs. TCC also commented that the reportable quantity (RQ for hydrochloroflourocarbons (HCFC) 

should be set to 5,000 pounds, which is the federal RQ under FCAA, §602, for 

dichlorodiflouromethane and trichloromonoflouromethane . 

The suggested change to the RQ was not proposed or noticed for public comment and the 

commission has not made an evaluation of the request . No change has been made in response to 

TCC's comment requesting a change in the RQ for HCFC . 
EVALUATION OF TESTIMONY 

The Texas Commission on Environmental Quality (commission) adopts the amendments to § 116 .12 

and § 116.150 with changes to the proposed text as published in the February 25, 2005, issue of the 

Texas Register (30 TexReg 1016) . 

These amendments will be submitted to the United States Environmental Protection Agency (EPA) as 

revisions to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES 

After adoption of the Federal Clean Air Act (FCAA) Amendments of 1990, the EPA classified the 

designated four areas of Texas that failed to meet the one-hour national ambient air quality standard 

(NAAQS) for the air contaminant ozone . Each area was classified by the EPA based on the amount by 

which it exceeded the ozone NAAQS of 0.12 parts per million (ppm) based on a peak one-hour 

concentration of ozone. Eight counties in the Houston-Galveston-Brazoria (HGB) area (Brazoria, 

Chambers, Fort Bend, Galveston, Harris, Montgomery, and Waller) were classified as Severe and El 

Paso County was classified as Serious. Four counties in the Dallas-Fort Worth (DFW) area (Collin, 

Dallas, Denton, and Tarrant) were originally classified as Moderate and then reclassified to Serious . 

Three counties in the Beaumont-Port Arthur (BPA) area (Hardin, Jefferson, and Orange) were 

originally classified as Serious, then reclassified to Moderate, and reclassified again, in 2004, to 

Serious . The classification of an area has specific effects on sources of air contaminants within the 

area including what will be considered a major source of contaminants . In the case of ozone, the 
contaminants of concern are volatile organic compounds (VOC) and nitrogen oxides (NOX), referred to 

as ozone precursers. 

If a proposed project (modification of existing facilities or new construction) is determined to be a 

major modification, the project is subject to federal nonattainment new source review (NNSR) and 

specific levels of pollution control, which generally mean that the source will be required to meet the 

lowest achievable emission rate (LAER) and offset the emissions increase. 

To determine if a modification at a major source results in an emission increase that would make the 

project a major modification, the source owner performs a netting exercise if the project emission 

increase is greater than the netting trigger (five tons per year (tpy) under current commission rules) . 

Netting is an accounting procedure used to determine the amount of increase in emissions by a source 

over a specified period of time . All emission increases and decreases at a source over the specified 

time (netting period) are added or subtracted and, if the resulting figure is at or above the major 

modification threshold, the source becomes subject to NNSR. This major modification threshold is 

determined by an area's classification (Severe, Serious, Moderate) . The netting trigger and netting 

period are the principal subjects of this adoption. 

On April 30, 2004, the EPA adopted the Phase 1 Implementation Rule (69 FR 23951), implementing a 

new eight-hour ozone NAAQS, effective June 15, 2004 . On the same date, the EPA designated and 

classified areas that were not in attainment of the eight-hour standard (69 FR 23858). In the Phase 1 

Implementation Rule, the EPA stated that it plans to issue a second final rule, Phase 2, which will 

address many of the planning and control obligations under FCAA, §172 and §182 that will apply for 
purposes of implementing the eight-hour ozone NAAQS. These rules will include, among other 

things, new source review (NSR) . The EPA designated four areas of Texas as nonattainment for the 

eight-hour ozone standard, and classifications under the new standard are different from the 

classifications under the one-hour ozone standard . Specifically, HGB and DFW are classified as 

Moderate, BPA is classified as Marginal, and El Paso is in attainment of the eight-hour standard. In 

addition to the four counties in the DFW area classified under the one-hour standard, five additional 

counties (Ellis, Johnson, Kaufman, Parker, and Rockwall) were designated as Moderate nonattainment . 

The San Antonio area, consisting of Bexar, Comal, and Guadalupe Counties, was designated 

nonattainment under FCAA, Title I, Part D, Subpart 1 (42 United States Code (USC), §7502) with a 

deferred effective date, due to its participation in the Early Action Compact Program. In the Phase 1 

Implementation Rule, the EPA also adopted a rule that provides that the EPA will revoke the one-hour 

standard in full, including designations and classifications, one year following the effective date of the 

designations for the eight-hour NAAQS . One year after the effective date of the designations for the 

eight-hour ozone standard is June 15, 2005. 

The new EPA Phase 1 Implementation Rules make no changes to the netting procedure or thresholds. 

The commission is adopting the federal model concerning netting triggers and periods with the 

exception of the netting trigger in a Serious or Severe nonattainment area where the commission is 

retaining its existing five tpy trigger . The commission eliminated the netting period for larger major 

sources that required netting going back to 1992. This period is now too long to be useful and could 

not be justified for the sources in the five new nonattainment counties in the DFW area. Under the 

new eight-hour ozone standard, there are no areas currently classified as Serious or Severe. The 
proposed netting triggers for all eight-hour ozone nonattainment areas is now 40 tpy and all netting 

periods are five years . 

Application of the eight-hour ozone standard for NNSR became effective June 15, 2004, and the 

commission is updating its rules to implement the necessary changes. On September 24, 2004, in 

response to a petition by EarthJustice and other environmental groups, the EPA granted a partial 

reconsideration of the Phase 1 Implementation Rule adopted April 30, 2004, allowing states to apply 

federal NNSR based on an eight-hour classification . The result of this reconsideration could be a 

return to the one-hour ozone standard for application of federal NNSR . Therefore, the commission is 

including contingency language in §116 .150, New Major Source or Major Modification in Ozone 

Nonattainment Areas, and in the table footnotes in the figure located in the definition of major 

modification in § 116.12. This contingency language will go into effect if the EPA decides to require 

states to return to a one-hour standard for federal NNSR determination . 

Adopted changes to the 30 TAC Chapter 101 corresponding rulemaking are also published in this issue 

of the Texas Register. 

NO, Netting and Mass Emission Cap and Trade 

The new five-year contemporaneous period for all sources will allow sources to ignore whether the 

HGB NO,{ mass emission cap and trade program (MECT) in Chapter 101, Subchapter H, is driving the 

reduction when determining whether an emission reduction made at a plant site at a facility subject to 

the MECT is creditable for netting purposes . This will apply only to NO,, sources subject to the 

MECT in HGB for netting exercises only and will not apply to NO,. credits or offsets . This 
determination for sites subject to HGB MECT and NO,, netting will not affect the MECT or the SIP 

because the MECT cap is ultimately the governing factor in the amount of NO,, emitted. Furthermore, 

the moving five-year netting period will ensure that emission reduction strategies driven by MECT 

compliance at a plant site that are used to "net out" emission increases from increases at the site will 

have to occur within the same time frame (five years) as the increases. The MECT allows for trading 

of a fixed number of emission allowances so the emission reductions are not binding on any specific 

unit or site but it ensures that area-wide emission reductions are made, regardless of changes at any 

particular site . 

SECTION BY SECTION DISCUSSION 

The commission made administrative changes for better readability, conformity with the drafting 

standards in the Texas Legislative Council Drafting Manual, November 2004, and consistency with 

other commission rules . The commission also made corrections to citations of federal and state law 

and added USC references to citations of sections of the FCAA. 

§I16.12, Nonattainment Review Definitions 

The commission amended the definition of contemporaneous period in paragraph (7) to require that 

netting be performed from the date of a modification going back a period of 60 months for all netting 

exercises . This period is more representative of recent activity as compared to a period that goes back 

to 1992 and is consistent with the EPA period . 

The commission added new footnotes 6 and 7 to the table in the figure located in the definition of 

major modification in paragraph (11)(A) that require sources in areas that were classified 
nonattainment for ozone under a one-hour ozone standard to return to the major source thresholds, 

major modification thresholds, and offset ratios for the one-hour standard for federal NNSR 

applicability if the EPA requires states to use the one-hour standard after reconsideration of its rule 

implementing the new eight-hour standard. 

Footnote 7 also requires applications submitted for facilities that would be located in areas designated 

under FCAA, Title I, Part D, Subpart 1 (42 USC, §7502), be evaluated as if the area was classified as 

Marginal under FCAA, Title 1, Part D, Subpart 2 (42 USC, §7502). The evaluation includes both the 

threshold for determining if there is a major modification as well as the ratio of offsets required along 

with any other applicable requirement that depends upon an area's nonattairunent classification . 

Currently, only San Antonio is designated under Subpart 1 . This is necessary due to the Phase 1 

Implementation Rule that apply to areas designated under Subparts 1 or 2 . 

The commission deleted subparagraphs (E) and (F) from the definition of net emissions increase in 

paragraph (13) . The subparagraphs contained references to a contemporaneous period going back to 

November 15, 1992. 

§116.150, New Major Source or Major Modification in Ozone Nonattainment Areas 

For ease of understanding, the commission reformatted the previously existing subsection (a) into 

additional subsections and added new language to address the eight-hour netting procedures. 

The commission adopts the reformatted subsection (a) to apply major modification procedures to all 

NSR authorizations issued or claimed. In addition to aligning the date with the effective date of the 
new designations, the commission is adopting this addition because netting procedures apply to sources 

authorized under standard permit or permit by rule to demonstrate that modifications under those 

authorizations are not major. 

New subsection (b) contains language addressing the control requirements applicable to major sources 

or major modifications . The rule citation where the control requirements are found now reads 

"subsection (e)(1) - (4) of this section ." The commission changed the citation concerning the exception 

for NO,, sources in El Paso County from subsection (b) to subsection (f) . The commission also 

changed a reference to subsection (c) because it was obsolete. The phrase "located in the definition of 

major modification" was added from proposal for better clarification . 

The commission adopts new subsection (c), which contains a new netting trigger of 40 tpy for areas 

classified as Marginal or Moderate ozone nonattainment . The commission retains the five tpy netting 

trigger for areas classified as Serious or Severe. 

The commission adopts new subsection (d), which contains contingency language that will go into 

effect if the EPA, after reconsideration of the eight-hour standard, requires states to use the area's onehour standard classification for determining applicability of NNSR. The contingency language will 

require sources in areas that were classified nonattainment for ozone under a one-hour ozone standard 

to return to a netting trigger of five tpy, which is based on a one-hour ozone standard for the 

applicability of federal NNSR. The commission added this language because EPA agreed to reconsider 

the eight-hour designations in reaction to lawsuits filed by EarthJustice and other environmental 

organizations . 
New subsection (e) contains language from previously existing subsection (a) concerning emission 

standards and offsets for sources and modifications classified as major sources and modifications . The 

phrase "located in the definition of major modification" was added from proposal for better 

clarification . 

New subsection (f) exempts sources located in El Paso County from the requirements of this section 

concerning NO,, emissions and contains identical language from previously designated subsection (b) . 

The commission also made administrative changes for readability, conformity with drafting standards 

in the Texas Legislative Council Drafting Manual, November 2004, and consistency with other 

commission rules . 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the regulatory impact analysis 

requirements of Texas Government Code, §2001 .0225, and determined that the rulemaking does not 

meet the definition of a "major environmental rule ." Furthermore, it does not meet any of the four 

applicability requirements listed in Texas Government Code, §2001 .0225(a) . A "major environmental 

rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human 

health from environmental exposure, and that may adversely affect in a material way the economy, a 

sector of the economy, productivity, competition, jobs, the environment, or the public health and safety 

of the state or a sector of the state . The adopted amendments revise the netting trigger and netting 

period for projects that are a major modification and are therefore subject to federal NNSR for air 

quality permitting and specific levels of pollution control . The amendments also make NNSR 
requirements applicable to the San Antonio area and the five additional counties in the DFW area. 

Because San Antonio is an early action compact area, it has a deferred effective date of September 30, 

2005, and will continue to be deferred as it remains in compliance with the compact agreements. The 

amendments also make changes to the definition of contemporaneous period and net emissions increase 

as well as changes to the figure in the definition of major modification, and nonsubstantive 

organizational changes . The adopted amendments will not adversely affect, in a material way, the 

economy, a sector of the economy, productivity, competition, jobs, the environment, or the public 

health and safety of the state or a sector of the state. 

In addition, Texas Government Code, §2001 .0225, only applies to a major environmental rule, the 

result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by 

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

federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an 

agency or representative of the federal government to implement a state and federal program; or 4) 

adopt a rule solely under the general powers of the agency instead of under a specific state law. The 

adopted amendments do not exceed a standard set by federal law or exceed an express requirement of 

state law. There is no contract or delegation agreement that covers the topic that is the subject of this 

rulemaking . Finally, this rulemaking was not developed solely under the general powers of the 

agency, but is authorized by specific sections of the Texas Health and Safety Code (THSC) and Texas 

Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble . 

Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government 

Code, §2001 .0225(b), because the amendments do not meet any of the four applicability requirements . 
TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the adopted amendments . The specific 

purpose of this rulemaking is to revise the netting trigger and netting period for projects that are a 

major modification and are therefore subject to federal NNSR for air quality permitting and specific 

levels of pollution control . The amendments implement NNSR requirements for the newly designated 

San Antonio area and the five additional counties in the DFW area. The amendments also make 

nonsubstantive organizational changes . Promulgation and enforcement of the adopted amendments 

would be neither a statutory nor a constitutional taking because they do not affect private real property . 

Specifically, the adopted amendments do not affect private property in a manner that restricts or limits 

an owner's right to the property that would otherwise exist in the absence of a governmental action. 

Therefore, the amendments do not constitute a takings under Texas Government Code, Chapter 2007 . 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates to an action or actions subject to the 

Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, 

as amended (Texas Natural Resources Code, §§33 .201 et seq.), and the commission rules in 30 TAC 

Chapter 281, Subchapter B, concerning Consistency with the CMP . As required by §281 .45(a)(3) and 

31 TAC §505 .11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, 

commission rules governing air pollutant emissions must be consistent with the applicable goals and 

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

policies in accordance with the rules of the Coastal Coordination Council, and determined that the 

action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this 

rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, 

10 
functions, and values of coastal natural resource areas (31 TAC §501 .12(1)). No new sources of air 

contaminants are authorized and the adopted revisions maintain the same level of emissions control as 

the previously existing rules. The CMP policy applicable to this rulemaking action is the policy that 

commission rules comply with federal regulations in 40 Code of Federal Regulations (CFR), to protect 

and enhance air quality in the coastal areas (31 TAC §501 .14(q)) . This rulemaking action complies 

with 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. 

Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action 

is consistent with CMP goals and policies. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Sections 116 .12 and 116.150 are applicable requirements under 30 TAC Chapter 122, Federal 

Operating Permits Program. Upon the effective date of this rulemaking, owners or operators subject to 

the Federal Operating Permit Program that modify any NSR authorized sources at their sites are 

subject to the amended requirements of § 116.12 and § 116.150. 

PUBLIC COMMENT 

The commission conducted a public hearing in Austin on March 17, 2005 . Four comments were 

received during the public comment period, which closed on March 28, 2005 . Comments were 

received from: Sierra Club, Houston Regional Group (HSC) ; Baker Botts L.L.P. on behalf of Texas 

Industry Project (TIP); EPA ; and Clark, Thomas, and Winters on behalf of Enbridge Gathering LP, 

Acacia Natural Gas Corporation, a subsidiary of Devon Energy Corporation, and Energy Transfer 

Company (CTW). HSC opposed the proposal, while TIP, CTW, and EPA generally supported the 

proposal with comments. 

11 
TIP commented that the commission proposed two unnecessary word changes in § 116.112(10) and 

(11)(B) where the term "shall not" was changed to "may not." TIP stated that Texas Government 

Code, §311 .016(5) makes clear that the terms are synonymous and commented that the term should not 

be changed to eliminate potential confusion . 

The commission reviewed the use of the terms "shall not" and "may not" and their use according 

to the Texas Legislative Council Drafting Manual and will leave the term "shall not" unchanged. 

HSC stated that the 40 tpy netting trigger will allow greater health, mortality, safety, and 

environmental effects in the nonattainment area and suggested that the commission reject the standard . 

The commission acknowledges that a 40 tpy netting trigger will allow more projects to be 

authorized without a netting analysis, but the commission disagrees that this will result in adverse 

health effects . Like the one-hour ozone standard, the eight-hour standard is health based, and 

the 40 tpy trigger is based on the eight-hour standard. The 40 tpy trigger has been the netting 

trigger for Moderate areas since the FCAA amendments of 1990. The commission has not 

changed the rule in response to this comment. 

TIP commented on a paragraph in the preamble concerning the ability to credit reductions under the 

HGB NO,, MECT, which states that "the commission will allow the reductions required by the HGB 

NO,, mass emission cap and trade program (MECT) in 30 TAC Chapter 101, Subchapter H, to be 

creditable for netting purposes ." TIP expressed the belief that this statement incorrectly suggests that 

the proposals in Chapter 116 affect the ability to credit reductions under the MECT. 

12 
The rule does not affect the ability of a site to generate excess allowances under the MECT by 

reducing emissions. The statement identified by the commenter clarifies that reductions made 

under the MECT to comply with a site's allocation will be considered surplus for netting 

purposes. 

CTW commented that the commission should make an independent determination of a return to a onehour ozone standard should EPA make that decision . CTW stated that the commission should apply 

the one-hour standard only to the four counties originally in the DFW nonattainment area. 

Texas would be unable to make an independent determination since the designation and 

classification of areas is based on a national air standard and is determined at the federal level. 

The commission has not changed the rule in response to this comment. 

EPA requested that the commission provide rationale for how a five-year contemporaneous period will 

affect the strategy to attain and maintain an eight-hour ozone standard and whether a five tpy netting 

trigger combined with that period will provide sufficient reductions. 

A five-year contemporaneous period is the same as required for Moderate and Marginal areas 

under federal rules and is more consistent with the baseline used in SIP modeling demonstrations. 

The tagged netting window for sources with emissions greater than 250 tpy required that 

emissions increases and decreases made well before the SIP baseline year be considered in 

whether a project would be subject to nonattainment review. Given that fewer than 20 

nonattainment permits were issued in Texas prior to 2001, it is likely that including emission 

13 
increases and decreases prior to that date in netting exercises would result in a lower net 

emissions increase at most sites. 

The five tpy netting trigger will only come into play if a nonattainment area should become 

subject to the requirements associated with a Serious or Severe nonattainment designation. It 

was accepted by EPA as equivalent to the federal standard provided that sources with a potential 

to emit greater than 250 tpy maintained a contemporaneous period back to 1992 to ensure that 

any small emission increases were included in the contemporaneous period. The federal 

applicability analysis (netting) associated with the issued nonattainment permits in Texas was 

reviewed prior to these rules being proposed to determine if including this additional period 

would have resulted in any of those projects being subject to nonattainment review. The 

commission was unable to identify any cases where nonattainment review would not have been 

required with a five-year contemporaneous period. Based on this experience, a five-year 

contemporaneous period with a five tpy netting trigger would be equivalent to the commission's 

current rules for Serious and Severe nonattainment areas. 

The commission established cap and trade programs in the HGB nonattainment area for NO,, and 

highly reactive volatile organic compounds, as defined in 30 TAC §115.10. These programs will 

ensure that emissions in that area will be consistent with what is necessary for the SIP, regardless 

of what construction or modifications take place under NSR. Finally, the commission will ensure 

that the SIP demonstration has the appropriate growth factor. 
EPA requested that the commission clarify whether it interprets its SIP to make nonattainment NSR 

requirements applicable to areas that may be designated nonattainment in the future. EPA requested 

clarification of the timing of applicability of prevention of significant deterioration and NNSR 

requirements for previously designated and newly designated nonattainment areas prior to the effective 

dates of both the eight-hour ozone designations and withdrawal of the one-hour ozone standard . 

Specifically, EPA requested clarification that NNSR requirements apply to final permits issued after 

June 15, 2004, in areas designated as nonattainment of the eight-hour as well as the one-hour ozone 

standard and that the date of permit issuance, not administrative completeness, determines applicability 

of NSR requirements. EPA asked whether the commission will interpret its SIP to require areas that 

may be designated as nonattainment in the future be subject to federal regulations at 40 CFR Part 51, 

Appendix S until the SIP is revised to include the area or will the NSR requirements become 

automatically applicable upon the effective date of the designation . 

The commission has historically interpreted its SIP approved rules to use the administratively 

complete date to determine which rules apply to a particular permit. Permit applications that 

were administratively complete before this rulemaking adoption are processed under those rules, 

which are part of Texas' approved SIP. Adopted §116.150(a) continues the commission's policy 

to apply the rules based on when permit applications are administratively complete, and 

specifically provides that the rule applies to all NSR authorizations that are administratively 

complete after June 15, 2004. EPA rules do not provide a clear answer on when a new 

designation applies to pending permit applications. EPA has addressed areas in transition 

through 40 CFR Part 51, Appendix S, and policy memos, but EPA acknowledges that areas that 
have a SIP approved program in place for newly designated areas are not subject to Appendix S. 

Therefore, the commission will continue to follow the rules in its SIP. 

EPA also requested that the commission clarify that requirements for the one-hour standard remain 

applicable until June 15, 2005, and that NSR applications are reviewed for one-hour applicability . 

The commission will apply the requirements for compliance with the one-hour standard for 

permits that were administratively complete on or before June 15, 2004, and will not require a 

separate review under the eight-hour ozone standard for those permits . The commission agrees 

that the requirements for the one-hour standard remain applicable until June 15, 2005. 

EPA commented that the commission's definition of nonattainment area in §101 .1(67) and §116.12(11) 

are generic, but that §101 .1(67) also lists specific counties in each nonattainment area under both ozone 

NAAQS . 

The federal citations ~re included in the definition of nonattainment area in §101 .1(67), and as 

referenced in the definition of major modification in §116.12(11), Table I, Footnote 1. In a 

concurrent rulemaking, the commission is updating the definition of nonattainment area in 

§101 .1(67) . 

EPA also noted that the preamble refers to an effective date of the eight-hour standard of June 15, 

2005, and requested a correction to June 15, 2004 . 
The commission has corrected the effective date of the eight-hour standard. 

EPA requested that the commission clarify that any reduction under the MECT will only occur at the 

source at which the proposed increase will occur. EPA also requested clarification of an apparent 

conflict of the preamble statement, which states that reductions under the MECT can be used for 

netting purposes with §101 .352(d), which states that allowances cannot be used for netting 

requirements under Chapter 116. 

Reductions occurring under the MECT that may simultaneously be used for netting must occur 

at the same site where the proposed emissions increase will occur. The preamble statement 

prohibiting allowances from being used for netting requirements addresses the ability for a site 

with a proposed emissions increase to purchase excess allowances from another site to use in 

netting. The preamble has been revised to clarify that emission reductions shown in netting must 

occur at the same NNSR source. Emission reductions used in netting must occur at that source 

and cannot be transferred to a different source for use in netting. Emission reductions used to 

generate and sold as emission reduction credits are not creditable for netting. 
STAFF 

RECOMMENDATIONS 
SUBCHAPTER A: GENERAL RULES 

§101.1 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Water Code, §5 .103, concerning Rules, and §5 .105, 

concerning General Policy, which authorize the commission to adopt rules necessary to carry out its 

powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, 

concerning Rules, which authorizes the commission to adopt rules consistent with the policy and 

purposes of the Texas Clean Air Act. The amendment is also adopted under Texas Health and Safety 

Code, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to 

safeguard the state air resources, consistent with the protection of public health, general welfare, and 

physical property; §382 .011, concerning General Powers and Duties, which authorizes the commission 

to control the quality of the state air ; §382.012, concerning State Air Control Plan, which authorizes 

the commission to prepare and develop a general, comprehensive plan for the control of the state air; 

and §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the 

commission to issue permits and adopt rules necessary for permits issued under Texas Health and 

Safety Code, Chapter 382 . 

The adopted amendment implements Texas Health and Safety Code, §§382 .002, 382 .011, 382 .012, 

and 382 .051 . 
§101 .1 . Definitions . 

Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the 

commission, the terms used by the commission have the meanings commonly ascribed to them in the 

field of air pollution control . In addition to the terms that are defined by the TCAA, the following 

terms, when used in this chapter, have the following meanings, unless the context clearly indicates 

otherwise. 

(1) Account - For those sources required to be permitted under Chapter 122 of this 

title (relating to Federal Operating Permits), all sources that are aggregated as a site . For all other 

sources, any combination of sources under common ownership or control and located on one or more 

contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, 

waterways, or similar divisions . 

(2) Acid gas flare - A flare used exclusively for the incineration of hydrogen sulfide 

and other acidic gases derived from natural gas sweetening processes . 

(3) Ambient air - That portion of the atmosphere, external to buildings, to which the 

general public has access . 

(4) Background - Background concentration, the level of air contaminants that cannot 

be reduced by controlling emissions from man-made sources. It is determined by measuring levels in 

non-urban areas . 
(5) Capture system - All equipment (including, but not limited to, hoods, ducts, fans, 

booths, ovens, dryers, etc .) that contains, collects, and transports an air pollutant to a control device . 

(6) Captured facility - A manufacturing or production facility that generates an 

industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared 

basis in an integrated waste management unit owned, operated by, and located within a contiguous 

manufacturing complex. 

(7) Carbon adsorber - An add-on control device that uses activated carbon to adsorb 

volatile organic compounds from a gas stream. 

(8) Carbon adsorption system - A carbon adsorber with an inlet and outlet for 

exhaust gases and a system to regenerate the saturated adsorbent . 

(9) Coating - A material applied onto or impregnated into a substrate for protective, 

decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, 

sealants, adhesives, thinners, diluents, inks, maskants, and temporary protective coatings. 

(10) Cold solvent cleaning - A batch process that uses liquid solvent to remove soils 

from the surfaces of metal parts or to dry the parts by spraying, brushing, flushing, and/or immersion 

while maintaining the solvent below its boiling point. Wipe cleaning (hand cleaning) is not included in 

this definition. 
(11) Combustion unit - Any boiler plant, furnace, incinerator, flare, engine, or other 

device or system used to oxidize solid, liquid, or gaseous fuels, but excluding motors and engines used 

in propelling land, water, and air vehicles. 

(12) Commercial hazardous waste management facility - Any hazardous waste 

management facility that accepts hazardous waste or polychlorinated biphenyl compounds for a charge, 

except a captured facility that disposes only waste generated on-site or a facility that accepts waste only 

from other facilities owned or effectively controlled by the same person. 

(13) Commercial incinerator - An incinerator used to dispose of waste material from 

retail and wholesale trade establishments . 

(14) Commercial medical waste incinerator - A facility that accepts for incineration 

medical waste generated outside the property boundaries of the facility . 

(15) Component - A piece of equipment, including, but not limited to, pumps, valves, 

compressors, and pressure relief valves, that has the potential to leak volatile organic compounds . 

(16) Condensate - Liquids that result from the cooling and/or pressure changes of 

produced natural gas. Once these liquids are processed at gas plants or refineries or in any other 

manner, they are no longer considered condensates . 
(17) Construction-demolition waste - Waste resulting from construction or 

demolition projects. 

(18) Control system or control device - Any part, chemical, machine, equipment, 

contrivance, or combination of same, used to destroy, eliminate, reduce, or control the emission of air 

contaminants to the atmosphere . 

(19) Conveyorized degreasing - A solvent cleaning process that uses an automated 

parts handling system, typically a conveyor, to automatically provide a continuous supply of metal 

parts to be cleaned or dried using either cold solvent or vaporized solvent . A conveyorized degreasing 

process is fully enclosed except for the conveyor inlet and exit portals . 

(20) Criteria pollutant or standard - Any pollutant for which there is a national 

ambient air quality standard established under 40 Code of Federal Regulations Part 50. 

(21) Custody transfer - The transfer of produced crude oil and/or condensate, after 

processing and/or treating in the producing operations, from storage tanks or automatic transfer 

facilities to pipelines or any other forms of transportation. 

(22) De minimis impact - A change in ground level concentration of an air 

contaminant as a result of the operation of any new major stationary source or of the operation of any 

existing source that has undergone a major modification, which does not exceed the following specified 

amounts. 
AIR CONTAMINANT ANNUAL 24-HOUR 8-HOUR 3-HOUR 1-HOUR 

Inhalable Particulate Matter (PM,o) 1 .0 ~Lg/m3 5 [tglm3 

Sulfar Dioxide 1 .0 [ig/m3 5 [tg/m3 25 pg/m3 

Nitrogen Dioxide 1 .0 [Lg/m3 

Carbon Monoxide 0.5 mg/m3 2 mg/m3 

(23) Domestic wastes - The garbage and rubbish normally resulting from the functions 

of life within a residence. 

(24) Emissions banking - A system for recording emissions reduction credits so they 

may be used or transferred for future use . 

(25) Emissions event - Any upset event or unscheduled maintenance, startup, or 

shutdown activity that results in unauthorized emissions from an emissions point. 

(26) Emissions reduction credit - Any stationary source emissions reduction that has 

been banked in accordance with Chapter 101, Subchapter H, Division 1 of this title (relating to 

Emission Credit Banking and Trading) . 

(27) Emissions reduction credit certificate - The certificate issued by the executive 

director that indicates the amount of qualified reduction available for use as offsets and the length of 

time the reduction is eligible for use. 
(28) Emissions unit - Any part of a stationary source that emits, or would have the 

potential to emit, any pollutant subject to regulation under the Federal Clean Air Act. 

(29) Exempt solvent - Those carbon compounds or mixtures of carbon compounds 

used as solvents that have been excluded from the definition of volatile organic compound. 

(30) External floating roof - A cover or roof in an open top tank that rests upon or is 

floated upon the liquid being contained and is equipped with a single or double seal to close the space 

between the roof edge and tank shell . A double seal consists of two complete and separate closure 

seals, one above the other, containing an enclosed space between them. 

(31) Federal motor vehicle regulation - Control of Air Pollution from Motor 

Vehicles and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85 . 

(32) Federally enforceable - All limitations and conditions that are enforceable by the 

United States Environmental Protection Agency administrator, including those requirements developed 

under 40 Code of Federal Regulations (CFR) Parts 60 and 61 ; requirements within any applicable state 

implementation plan (SIP) ; and any permit requirements established under 40 CFR §52.21 or under 

regulations approved under 40 CFR Part 51, Subpart 1, including operating permits issued under the 

approved program that is incorporated into the SIP and that expressly requires adherence to any permit 

issued under such program. 
(33) Flare - An open combustion unit (i .e ., lacking an enclosed combustion chamber) 

whose combustion air is provided by uncontrolled ambient air around the flame, and which is used as a 

control device . A flare may be equipped with a radiant heat shield (with or without a refractory 

lining), but is not equipped with a flame air control damping system to control the air/fuel mixture. In 

addition, a flare may also use auxiliary fuel. The combustion flame may be elevated or at ground 

level. A vapor combustor, as defined in this section, is not considered a flare . 

(34) Fuel oil - Any oil meeting the American Society for Testing and Materials 

(ASTM) specifications for fuel oil in ASTM D396-01, Standard Specifications for Fuel Oils, revised 

2001 . This includes fuel oil grades l, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light), 4, 5 (Light), 5 

(Heavy), and 6. 

(35) Fugitive emission - Any gaseous or particulate contaminant entering the 

atmosphere that could not reasonably pass through a stack, chimney, vent, or other functionally 

equivalent opening designed to direct or control its flow . 

(36) Garbage - Solid waste consisting of putrescible animal and vegetable waste 

materials resulting from the handling, preparation, cooking, and consumption of food, including waste 

materials from markets, storage facilities, and handling and sale of produce and other food products . 

(37) Gasoline - Any petroleum distillate having a Reid vapor pressure of four pounds 

per square inch (27 .6 kilopascals) or greater, which is produced for use as a motor fuel, and is 

commonly called gasoline . 
(38) Hazardous waste management facility - All contiguous land, including 

structures, appurtenances, and other improvements on the land, used for processing, storing, or 

disposing of hazardous waste. The term includes a publicly or privately owned hazardous waste 

management facility consisting of processing, storage, or disposal operational hazardous waste 

management units such as one or more landfills, surface impoundments, waste piles, incinerators, 

boilers, and industrial furnaces, including cement kilns, injection wells, salt dome waste containment 

caverns, land treatment facilities, or a combination of units . 

(39) Hazardous waste management unit - A landfill, surface impoundment, waste 

pile, boiler, industrial furnace, incinerator, cement kiln, injection well, container, drum, salt dome 

waste containment cavern, or land treatment unit, or any other structure, vessel, appurtenance, or other 

improvement on land used to manage hazardous waste. 

(40) Hazardous wastes - Any solid waste identified or listed as a hazardous waste by 

the administrator of the EPA under the federal Solid Waste Disposal Act, as amended by RCRA, 42 

United States Code, §§6901 et seq., as amended. 

(41) Heatset (used in offset lithographic printing) - Any operation where heat is 

required to evaporate ink oil from the printing ink. Hot air dryers are used to deliver the heat. 

(42) High-bake coatings - Coatings designed to cure at temperatures above 194 

degrees Fahrenheit. 
(43) High-volume low-pressure spray guns - Equipment used to apply coatings by 

means of a spray gun that operates between 0.1 and 10.0 pounds per square inch gauge air pressure . 

(44) Incinerator - An enclosed combustion apparatus and attachments that is used in 

the process of burning wastes for the primary purpose of reducing its volume and weight by removing 

the combustibles of the waste and is equipped with a flue for conducting products of combustion to the 

atmosphere . Any combustion device that burns 10% or more of solid waste on a total British thermal 

unit (Btu) heat input basis averaged over any one-hour period is considered to be an incinerator . A 

combustion device without instrumentation or methodology to determine hourly flow rates of solid 

waste and burning 1 .0% or more of solid waste on a total Btu heat input basis averaged annually is also 

considered to be an incinerator . An open-trench type (with closed ends) combustion unit may be 

considered an incinerator when approved by the executive director . Devices burning untreated wood 

scraps, waste wood, or sludge from the treatment of wastewater from the process mills as a primary 

fuel for heat recovery are not included under this definition. Combustion devices permitted under this 

title as combustion devices other than incinerators will not be considered incinerators for application of 

any regulations within this title provided they are installed and operated in compliance with the 

condition of all applicable permits. 

(45) Industrial boiler - A boiler located on the site of a facility engaged in a 

manufacturing process where substances are transformed into new products, including the component 

parts of products, by mechanical or chemical processes . 
(46) Industrial furnace - Cement kilns ; lime kilns; aggregate kilns; phosphate kilns ; 

coke ovens; blast furnaces; smelting, melting, or refining furnaces, including pyrometallurgical devices 

such as cupolas, reverberator furnaces, sintering machines, roasters, or foundry furnaces ; titanium 

dioxide chloride process oxidation reactors ; methane reforming furnaces; pulping recovery furnaces ; 

combustion devices used in the recovery of sulfur values from spent sulfuric acid; and other devices 

the commission may list . 

(47) Industrial solid waste - Solid waste resulting from, or incidental to, any process 

of industry or manufacturing, or mining or agricultural operations, classified as follows. 

(A) Class 1 industrial solid waste or Class 1 waste is any industrial solid waste 

designated as Class 1 by the executive director as any industrial solid waste or mixture of industrial 

solid wastes that because of its concentration or physical or chemical characteristics is toxic, corrosive, 

flammable, a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, or 

other means, and may pose a substantial present or potential danger to human health or the 

environment when improperly processed, stored, transported, or otherwise managed, including 

hazardous industrial waste, as defmed in §335 .1 and §335 .505 of this title (relating to Definitions and 

Class 1 Waste Determination) . 

(B) Class 2 industrial solid waste is any individual solid waste or combination 

of industrial solid wastes that cannot be described as Class 1 or Class 3, as defined in §335.506 of this 

title (relating to Class 2 Waste Determination) . 
(C) Class 3 industrial solid waste is any inert and essentially insoluble 

industrial solid waste, including materials such as rock, brick, glass, dirt, and certain plastics and 

rubber, etc ., that are not readily decomposable as defined in §335.507 of this title (relating to Class 3 

Waste Determination) . 

(48) Internal floating cover - A cover or floating roof in a fixed roof tank that rests 

upon or is floated upon the liquid being contained, and is equipped with a closure seal or seals to close 

the space between the cover edge and tank shell. 

(49) Leak - A volatile organic compound concentration greater than 10,000 parts per 

million by volume or the amount specified by applicable rule, whichever is lower ; or the dripping or 

exuding of process fluid based on sight, smell, or sound . 

(50) Liquid fuel - A liquid combustible mixture, not derived from hazardous waste, 

with a heating value of at least 5,000 British thermal units per pound. 

(51) Liquid-mounted seal - A primary seal mounted in continuous contact with the 

liquid between the tank wall and the floating roof around the circumference of the tank. 

(52) Maintenance area - A geographic region of the state previously designated 

nonattainment under the Federal Clean Air Act (FCAA) Amendments of 1990 and subsequently 

redesignated to attainment subject to the requirement to develop a maintenance plan under 42 United 

States Code, §7505a. The following are the maintenance areas within the state: 
(A) Victoria Ozone Maintenance Area (60 FR 12453) - Victoria County ; and 

(B) Collin County Lead Maintenance Area (64 FR 55421 - 55425) - Portion of 

Collin County. Eastside : Starting at the intersection of South Fifth Street and the fence line 

approximately 1,000 feet south of the Exide property line going north to the intersection of South Fifth 

Street and Eubanks Street ; Northside : Proceeding west on Eubanks to the Burlington Railroad tracks; 

Westside: Along the Burlington Railroad tracks to the fence line approximately 1,000 feet south of the 

Exide property line; Southside : Fence line approximately 1,000 feet south of the Exide property line. 

(53) Maintenance plan - A revision to the applicable state implementation plan, 

meeting the requirements of 42 United States Code, §7505a. 

(54) Marine vessel - Any watercraft used, or capable of being used, as a means of 

transportation on water, and that is constructed or adapted to carry, or that carries, oil, gasoline, or 

other volatile organic liquid in bulk as a cargo or cargo residue . 

(55) Mechanical shoe seal - A metal sheet that is held vertically against the storage 

tank wall by springs or weighted levers and is connected by braces to the floating roof. A flexible 

coated fabric (envelope) spans the annular space between the metal sheet and the floating roof. 

(56) Medical waste - Waste materials identified by the Department of State Health 

Services as "special waste from health care-related facilities" and those waste materials commingled 

and discarded with special waste from health care-related facilities . 

13 
(57) Metropolitan Planning Organization - That organization designated as being 

responsible, together with the state, for conducting the continuing, cooperative, and comprehensive 

planning process under 23 United States Code (USC), § 134 and 49 USC, § 1607. 

(58) Mobile emissions reduction credit - The credit obtained from an enforceable, 

permanent, quantifiable, and surplus (to other federal and state regulations) emissions reduction 

generated by a mobile source as set forth in Chapter 114, Subchapter E or F of this title (relating to 

Low Emission Vehicle Fleet Requirements and Vehicle Retirement and Mobile Emission Reduction 

Credits), and which has been banked in accordance with Subchapter H, Division 1 of this chapter. 

(59) Motor vehicle - A self-propelled vehicle designed for transporting persons or 

property on a street or highway. 

(60) Motor vehicle fuel dispensing facility - Any site where gasoline is dispensed to 

motor vehicle fuel tanks from stationary storage tanks. 

(61) Municipal solid waste - Solid waste resulting from, or incidental to, municipal, 

community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, 

street cleanings, dead animals, abandoned automobiles, and all other solid waste except industrial solid 

waste . 

(62) Municipal solid waste facility - All contiguous land, structures, other 

appurtenances, and improvements on the land used for processing, storing, or disposing of solid waste. 

14 
A facility may be publicly or privately owned and may consist of several processing, storage, or 

disposal operational units, e.g ., one or more landfills, surface impoundments, or combinations of 

them. 

(63) Municipal solid waste landfill - A discrete area of land or an excavation that 

receives household waste and that is not a land application unit, surface impoundment, injection well, 

or waste pile, as those terms are defined under 40 Code of Federal Regulations §257.2. A municipal 

solid waste landfill (MSWLF) unit also may receive other types of RCRA Subtitle D wastes, such as 

commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generator waste, 

and industrial solid waste. Such a landfill may be publicly or privately owned. An MSWLF unit may 

be a new MSWLF unit, an existing MSWLF unit, or a lateral expansion . 

(64) National ambient air quality standard - Those standards established under 42 

United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, ozone, 

inhalable particulate matter, and sulfur dioxide. 

(65) Net ground-level concentration - The concentration of an air contaminant as 

measured at or beyond the property boundary minus the representative concentration flowing onto a 

property as measured at any point. Where there is no expected influence of the air contaminant 

flowing onto a property from other sources, the net ground level concentration may be determined by a 

measurement at or beyond the property boundary . 
(66) New source - Any stationary source, the construction or modification of which 

was commenced after March 5, 1972. 

(67) Nonattainment area - A defined region within the state that is designated by the 

United States Environmental Protection Agency (EPA) as failing to meet the national ambient air 

quality standard for a pollutant for which a standard exists . The EPA designates the area as 

nonattainment under the provisions of 42 United States Code, §7407(d). For the official list and 

boundaries of nonattainment areas, see 40 Code of Federal Regulations Part 81 and pertinent Federal 

Register (FR) notices . The following areas comprise the nonattainment areas within the state for all 

national ambient air quality standards (NAAQS) . EPA has indicated that it will revoke the one-hour 

ozone standard in full, including the associated designations and classifications, on June 15, 2005, 

which is one year following the effective date of the designations for the eight-hour NAAQS of June 

15, 2004 . 

(A) Carbon monoxide (CO) . El Paso CO nonattainment area (56 FR 

56694)--Classified as a Moderate CO nonattainment area with a design value less than or equal to 12 .7 

parts per million . Portion of El Paso County. Portion of the city limits of El Paso: That portion of 

the City of El Paso bounded on the north by Highway 10 from Porfirio Diaz Street to Raynolds Street, 

Raynolds Street from Highway 10 to the Southern Pacific Railroad lines, the Southern Pacific Railroad 

lines from Raynolds Street to Highway 62, Highway 62 from the Southern Pacific Railroad lines to 

Highway 20, and Highway 20 from Highway 62 to Polo Inn Road. Bounded on the east by Polo Inn 

Road from Highway 20 to the Texas-Mexico border. Bounded on the south by the Texas-Mexico 
border from Polo Inn Road to Porfirio Diaz Street . Bounded on the west by Porfirio Diaz Street from 

the Texas-Mexico border to Highway 10 . 

(B) Inhalable particulate matter (PM,o) . El Paso PM,o nonattainment area (56 

FR 56694) - Classified as a Moderate PM,o nonattainment area. Portion of El Paso County which 

comprises the El Paso city limit boundaries as they existed on November 15, 1990. 

(C) Lead. No designated nonattaimnent areas. 

(D) Nitrogen dioxide. No designated nonattainment areas. 

(E) Ozone (one-hour) . 

(i) Houston/Galveston/Brazoria one-hour ozone nonattainment area 

(56 FR 56694) - Classified as a Severe-17 ozone nonattainment area. Consists of Brazoria, Chambers, 

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties . 

(ii) El Paso one-hour ozone nonattainment area (56 FR 56694) -

Classified as a Serious ozone nonattainment area. Consists of El Paso County. 

(iii) Beaumont/Port Arthur one-hour ozone nonattaimnent area (69 FR 

16483 - Classified as a Serious ozone nonattainment area. Consists of Hardin, Jefferson, and Orange 

Counties . 

17 
(iv) Dallas/Fort Worth one-hour ozone nonattainment area (63 FR 

8128) - Classified as a Serious ozone nonattainment area. Consists of Collin, Dallas, Denton, and 

Tarrant Counties . 

(F) Ozone (eight-hour) . 

(i) Houston/Galveston/Brazoria eight-hour ozone nonattainment area 

(69 FR 23936) - Classified as a Moderate ozone nonattairunent area. Consists of Brazoria, Chambers, 

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties. 

(ii) Beaumont/Port Arthur eight-hour ozone nonattainment area (69 FR 

23936) - Classified as a Marginal ozone nonattainment area. Consists of Hardin, Jefferson, and 

Orange Counties. 

(iii) Dallas/Fort Worth eight-hour ozone nonattainment area (69 FR 

23936) - Classified as a Moderate ozone nonattainment area. Consists of Collin, Dallas, Denton, Ellis, 

Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties. 

(iv) San Antonio eight-hour ozone nonattaimnent area (69 FR 23936) -

Classified under the Federal Clean Air Act, Title I, Part D, Subpart 1 (42 United States Code, §7502), 

nonattainment deferred to September 30, 2005, or as extended by EPA . 

(G) Sulfur dioxide. No designated nonattainment areas . 

18 
(68) Non-reportable emissions event - Any emissions event that is not a reportable 

emissions event as defined in this section . 

(69) Opacity - The degree to which an emission of air contaminants obstructs the 

transmission of light expressed as the percentage of light obstructed as measured by an optical 

instrument or trained observer. 

(70) Open-top vapor degreasing - A batch solvent cleaning process that is open to the 

air and that uses boiling solvent to create solvent vapor used to clean or dry metal parts through 

condensation of the hot solvent vapors on the colder metal parts . 

(71) Outdoor burning - Any fire or smoke-producing process that is not conducted in 

a combustion unit. 

(72) Particulate matter - Any material, except uncombined water, that exists as a 

solid or liquid in the atmosphere or in a gas stream at standard conditions. 

(73) Particulate matter emissions - All finely divided solid or liquid material, other 

than uncombined water, emitted to the ambient air as measured by United States Environmental 

Protection Agency Reference Method 5, as specified at 40 Code of Federal Regulations (CFR) Part 60, 

Appendix A, modified to include particulate caught by an impinger train; by an equivalent or 

alternative method, as specified at 40 CFR Part 51; or by a test method specified in an approved state 

implementation plan. 

19 
(74) Petroleum refinery - Any facility engaged in producing gasoline, kerosene, 

distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of crude oil, or 

through the redistillation, cracking, extraction, reforming, or other processing of unfinished petroleum 

derivatives . 

(75) PMio - Particulate matter with an aerodynamic diameter less than or equal to a 

nominal ten micrometers as measured by a reference method based on 40 Code of Federal Regulations 

(CFR) Part 50, Appendix J, and designated in accordance with 40 CFR Part 53, or by an equivalent 

method designated with that Part 53 . 

(76) PMIO emissions - Finely divided solid or liquid material with an aerodynamic 

diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an 

applicable reference method, or an equivalent or alternative method specified in 40 Code of Federal 

Regulations Part 51, or by a test method specified in an approved state implementation plan. 

(77) Polychlorinated biphenyl compound - A compound subject to 40 Code of 

Federal Regulations Part 761 . 

(78) Process or processes - Any action, operation, or treatment embracing chemical, 

commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, 

roasters, and equipment used in connection therewith, and all other methods or forms of manufacturing 

or processing that may emit smoke, particulate matter, gaseous matter, or visible emissions . 
(79) Process weight per hour - "Process weight" is the total weight of all materials 

introduced or recirculated into any specific process that may cause any discharge of air contaminants 

into the atmosphere. Solid fuels charged into the process will be considered as part of the process 

weight, but liquid and gaseous fuels and combustion air will not. The "process weight per hour" will 

be derived by dividing the total process weight by the number of hours in one complete operation from 

the beginning of any given process to the completion thereof, excluding any time during which the 

equipment used to conduct the process is idle . For continuous operation, the "process weight per 

hour" will be derived by dividing the total process weight for a 24-hour period by 24. 

(80) Property - All land under common control or ownership coupled with all 

improvements on such land, and all fixed or movable objects on such land, or any vessel on the waters 

of this state . 

(81) Reasonable further progress - Annual incremental reductions in emissions of the 

applicable air contaminant that are sufficient to provide for attainment of the applicable national 

ambient air quality standard in the designated nonattainment areas by the date required in the state 

implementation plan. 

(82) Remote reservoir cold solvent cleaning - Any cold solvent cleaning operation in 

which liquid solvent is pumped to a sink-like work area that drains solvent back into an enclosed 

container while parts are being cleaned, allowing no solvent to pool in the work area. 
(83) Reportable emissions event - Any emissions event which, in any 24-hour period, 

results in an unauthorized emission equal to or in excess of the reportable quantity as defined in this 

section. 

(84) Reportable quantity (RQ - Is as follows: 

(A) for individual air contaminant compounds and specifically listed mixtures, 

either : 

(i) the lowest of the quantities : 

(I) listed in 40 Code of Federal Regulations (CFR) §302, 

Table 302.4, the column "final RQ" ; 

(11) listed in 40 CFR §355, Appendix A, the column 

"Reportable Quantity" ; or 

(III) listed as follows: 

(-a-) butanes (any isomer) - 5,000 pounds ; 

(-b-) butenes (any isomer, except 1,3-butadiene) -

5,000 pounds, except in the Houston/Galveston/Brazoria (HGB) and Beaumont/Port Arthur (BPA) 

22 
ozone nonattainment areas as defined in paragraph (67)(E)(i) and (iii) of this section, where the RQ 

shall be 100 pounds; 

(-c-) ethylene - 5,000 pounds, except in the HGB and 

BPA ozone nonattaimnent areas as defined in paragraph (67)(E)(i) and (iii) of this section, where the 

RQ shall be 100 pounds ; 

(-d-) carbon monoxide - 5,000 pounds; 

(-e-) pentanes (any isomer) - 5,000 pounds ; 

(-f-) propane - 5,000 pounds; 

(-g-) propylene - 5,000 pounds, except in the HGB 

and BPA ozone nonattainment areas as defined in paragraph (67)(E)(i) and(iii) of this section, where 

the RQ shall be 100 pounds; 

(-h-) ethanol - 5,000 pounds; 

(-i-) isopropyl alcohol - 5,000 pounds ; 

(-j-) mineral spirits - 5,000 pounds; 
(-k-) hexanes (any isomer) - 5,000 pounds ; 

(-1-) octanes (any isomer) - 5,000 pounds; 

(-m-) decanes (any isomer) - 5,000 pounds ; 

(-n-) acetaldehyde - 1,000 pounds, except in the HGB 

and BPA ozone nonattainment areas as defined in paragraph (67)(E)(i) and (iii) of this section, where 

the RQ shall be 100 pounds; 

(-o-) toluene - 1,000 pounds, except in the HGB and 

BPA ozone nonattainment areas as defined in paragraph (67)(E)(i) and (E)(iii) of this section, where 

the RQ shall be 100 pounds; 

(-p-) nitrogen oxide - 100 pounds, which shall be used 

instead of the RQ provided in 40 CFR §302, Table 302 .4, the column "final RQ" ; or 

(-q-) nitrogen dioxide - 100 pounds, which shall be 

used instead of the RQ listed in 40 CFR §302, Table 302.4, the column "final RQ" or listed in 40 CFR 

§355, Appendix A, the column "Reportable Quantity" ; 

(ii) if not listed in clause (i) of this subparagraph, 100 pounds; 
(B) for mixtures of air contaminant compounds: 

(i) where the relative amount of individual air contaminant compounds 

is known through common process knowledge or prior engineering analysis or testing, any amount of 

an individual air contaminant compound that equals or exceeds the amount specified in subparagraph 

(A) of this paragraph; 

(ii) where the relative amount of individual air contaminant compounds 

in subparagraph (A)(i) of this paragraph is not known, any amount of the mixture that equals or 

exceeds the amount for any single air contaminant compound that is present in the mixture and listed in 

subparagraph (A)(i) of this paragraph; 

(iii) where each of the individual air contaminant compounds listed in 

subparagraph (A)(i) of this paragraph are known to be less than 0.02% by weight of the mixture, and 

each of the other individual air contaminant compounds covered by subparagraph (A)(ii) of this 

paragraph are known to be less than 2 .0% by weight of the mixture, any total amount of the mixture of 

air contaminant compounds greater than or equal to 5,000 pounds; or 

(iv) where natural gas excluding methane and ethane, or air emissions 

from crude oil are known to be in an amount greater than or equal to 5,000 pounds or associated 

hydrogen sulfide and mercaptans in a total amount greater than 100 pounds, whichever occurs first ; 
(C) for opacity from boilers and combustion turbines fueled by natural gas, 

coal, lignite, wood, or fuel oil containing hazardous air pollutants at a concentration of less than 0.02 % 

by weight, opacity that is equal to or exceeds 15 additional percentage points above the applicable 

limit, averaged over a six-minute period. Opacity is the only RQ applicable to boilers and combustion 

turbines described in this paragraph; and 

(D) for facilities where air contaminant compounds are measured directly by a 

continuous emission monitoring system providing updated readings at a minimum 15-minute interval an 

amount, approved by the executive director based on any relevant conditions and a screening model, 

that would be reported prior to ground level concentrations reaching at any distance beyond the closest 

facility property line : 

(i) less than one-half of any applicable ambient air standards; and 

(ii) less than two times the concentration of applicable air emission 

limitations . 

(85) Rubbish - Nonputrescible solid waste, consisting of both combustible and 

noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, 

furniture, rubber, plastics, yard trimmings, leaves, and similar materials . Noncombustible rubbish 

includes glass, crockery, tin cans, aluminum cans, metal furniture, and like materials that will not burn 

at ordinary incinerator temperatures (1,600 degrees Fahrenheit to f,800 degrees Fahrenheit) . 

26 
(86) Scheduled maintenance, startup, or shutdown activity - For activities with 

unauthorized emissions that are expected to exceed a reportable quantity (RQ), a scheduled 

maintenance, startup, or shutdown activity is an activity for which the owner or operator of the facility 

provides timely prior notice and a final report as required by §101 .211 of this title (relating to 

Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the 

notice or final report includes the information required in §101.211 of this title ; and the actual 

unauthorized emissions from the activity do not exceed the emissions estimates submitted in the initial 

notification. For activities with unauthorized emissions that are not expected to, and do not, exceed an 

RQ, a scheduled maintenance, startup, or shutdown activity is one that is recorded as required by 

§101 .211 of this title . Expected excess opacity events as described in §101 .201(e) of this title (relating 

to Emissions Event Reporting and Recordkeeping Requirements) resulting from scheduled 

maintenance, startup, or shutdown activities are those that provide prior notice (if required), and are 

recorded and reported as required by §101 .211 of this title . 

(87) Site - For the purposes of Subchapter F of this chapter, means all regulated units, 

facilities, equipment, structures, or sources at one street address or location that are owned or operated 

by the same person. Site includes any property identified in the permit or used in connection with the 

regulated activity at the same street address or location. 

(88) Sludge - Any solid or semi-solid, or liquid waste generated from a municipal, 

commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive of the 

treated effluent from a wastewater treatment plant; or air pollution control equipment. 
(89) Smoke - Small gas-born particles resulting from incomplete combustion 

consisting predominately of carbon and other combustible material and present in sufficient quantity to 

be visible . 

(90) Solid waste - Garbage, rubbish, refuse, sludge from a waste water treatment 

plant, water supply treatment plant, or air pollution control equipment, and other discarded material, 

including solid, liquid, semisolid, or containerized gaseous material resulting from industrial, 

municipal, commercial, mining, and agricultural operations and from community and institutional 

activities . The term does not include : 

(A) solid or dissolved material in domestic sewage, or solid or dissolved 

material in irrigation return flows, or industrial discharges subject to regulation by permit issued under 

the Texas Water Code, Chapter 26; 

(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials 

used to fill land, if the object of the fill is to make the land suitable for the construction of surface 

improvements ; or 

(C) waste materials that result from activities associated with the exploration, 

development, or production of oil or gas, or geothermal resources, and other substance or material 

regulated by the Railroad Commission of Texas under the Natural Resources Code, §91 .101, unless 

the waste, substance, or material results from activities associated with gasoline plants, natural gas 

liquids processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste 

28 
as defined by the administrator of the EPA under the federal Solid Waste Disposal Act, as amended by 

RCRA, as amended (42 United States Code, §§6901 et seq.) . 

(91) Sour crude - A crude oil that will emit a sour gas when in equilibrium at 

atmospheric pressure . 

(92) Sour gas - Any natural gas containing more than 1 .5 grains of hydrogen sulfide 

per 100 cubic feet, or more than 30 grains of total sulfur per 100 cubic feet. 

(93) Source - A point of origin of air contaminants, whether privately or publicly 

owned or operated. Upon request of a source owner, the executive director shall determine whether 

multiple processes emitting air contaminants from a single point of emission will be treated as a single 

source or as multiple sources. 

(94) Special waste from health care-related facilities - A solid waste that if 

improperly treated or handled, may serve to transmit infectious disease(s) and which is comprised of 

the following: animal waste, bulk blood and blood products, microbiological waste, pathological 

waste, and sharps . 

(95) Standard conditions - A condition at a temperature of 68 degrees Fahrenheit (20 

degrees Centigrade) and a pressure of 14 .7 pounds per square inch absolute (101 .3 kiloPascals) . 

Pollutant concentrations from an incinerator will be corrected to a condition of 50 % excess air if the 

incinerator is operating at greater than 50% excess air. 

29 
(96) Standard metropolitan statistical area - An area consisting of a county or one 

or more contiguous counties that is officially so designated by the United States Bureau of the Budget. 

(97) Submerged fill pipe - A fill pipe that extends from the top of a tank to have a 

maximum clearance of six inches (15 .2 centimeters) from the bottom or, when applied to a tank that is 

loaded from the side, that has a discharge opening entirely submerged when the pipe used to withdraw 

liquid from the tank can no longer withdraw liquid in normal operation. 

(98) Sulfur compounds - All inorganic or organic chemicals having an atom or atoms 

of sulfur in their chemical structure . 

(99) Sulfuric acid mist/sulfuric acid - Emissions of sulfuric acid mist and sulfuric 

acid are considered to be the same air contaminant calculated as H2SO4 and shall include sulfuric acid 

liquid mist, sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8 in 40 Code of 

Federal Regulations Part 60, Appendix A . 

(100) Sweet crude oil and gas - Those crude petroleum hydrocarbons that are not 

"sour" as defined in this section . 

(101) Total suspended particulate - Particulate matter as measured by the method 

described in 40 Code of Federal Regulations Part 50, Appendix B. 
(102) Transfer efficiency - The amount of coating solids deposited onto the surface or 

a part of product divided by the total amount of coating solids delivered to the coating application 

system. 

(103) True vapor pressure - The absolute aggregate partial vapor pressure, measured 

in pounds per square inch absolute, of all volatile organic compounds at the temperature of storage, 

handling, or processing. 

(104) Unauthorized emissions - Emissions of any air contaminant except carbon 

dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen that exceed any air 

emission limitation in a permit, rule, or order of the commission or as authorized by Texas Clean Air 

Act, §382.0518(g) . 

(105) Upset event - An unplanned or unanticipated occurrence or excursion of a 

process or operation that results in unauthorized emissions . 

(106) Utility boiler - A boiler used to produce electric power, steam, or heated or 

cooled air, or other gases or fluids for sale. 

(107) Vapor combustor - A partially enclosed combustion device used to destroy 

volatile organic compounds by smokeless combustion without extracting energy in the form of process 

heat or steam. The combustion flame may be partially visible, but at no time does the device operate 

with an uncontrolled flame . Auxiliary fuel and/or a flame air control damping system, which can 

31 
operate at all times to control the air/fuel mixture to the combustor's flame zone, may be required to 

ensure smokeless combustion during operation. 

(108) Vapor-mounted seal - A primary seal mounted so there is an annular space 

underneath the seal. The annular vapor space is bounded by the bottom of the primary seal, the tank 

wall, the liquid surface, and the floating roof or cover. 

(109) Vent - Any duct, stack, chimney, flue, conduit, or other device used to conduct 

air contaminants into the atmosphere. 

(110) Visible emissions - Particulate or gaseous matter that can be detected by the 

human eye . The radiant energy from an open flame is not considered to be a visible emission under 

this definition. 

(111) Volatile organic compound - As defined in 40 Code of Federal Regulations 

§51 .100(s), except §51 .100(s)(2) - (4), as amended on November 29, 2004 (69 FR 69290 - 69304). 

(112) Volatile organic compound (VOC) water separator - Any tank, box, sump, or 

other container in which any VOC, floating on or contained in water entering such tank, box, sump, or 

other container, is physically separated and removed from such water prior to outfall, drainage, or 

recovery of such water. 
SUBCHAPTER A: DEFINITIONS 

§116.12 > 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §5.103, concerning Rules, and §5 .105, concerning General 

Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties 

under the TWC ; and under THSC, §382 .017, concerning Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendment is 

also adopted under THSC, §382 .002, concerning Policy and Purpose, which establishes the 

commission's purpose to safeguard the state air resources, consistent with the protection of public 

health, general welfare, and physical property; §382.011, concerning General Powers and Duties, 

which authorizes the commission to control the quality of the state air; §382.012, concerning State Air 

Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan 

for the control of the state air; §382.051, concerning Permitting Authority of Commission; Rules, 

which authorizes the commission to issue permits and adopt rules necessary for permits issued under 

THSC, Chapter 382; and §382.0518, concerning Preconstruction Permit, which requires that a permit 

be obtained from the commission prior to new construction or modification of an existing facility . 

The adopted amendment implements THSC, §§382.002, 382.011, 382 .012, 382 .051, and 382.0518 . 
§116.12 . Nonattainment Review Definitions . 

Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the 

commission, the terms used by the commission have the meanings commonly ascribed to them in the 

field of air pollution control . The terms in this section are applicable to permit review for major 

source construction and major source modification in nonattainment areas. In addition to the terms that 

are defined by the TCAA, and in § 101 .1 of this title (relating to Definitions), the following words and 

terms, when used in §116.150 and §116.151 of this title (relating to Nonattainment Review), have the 

following meanings, unless the context clearly indicates otherwise . 

(1) Actual emissions - Actual emissions as of a particular date are equal to the 

average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period 

that precedes the particular date and that is representative of normal source operation. The executive 

director shall allow the use of a different time period upon a determination that it is more representative 

of normal source operation. Actual emissions shall be calculated using the unit's actual operating 

hours, production rates, and types of materials processed, stored, or combusted during the selected 

time period. The executive director may presume that the source-specific allowable emissions for the 

unit are equivalent to the actual emissions, e.g ., when the allowable limit is reflective of actual 

emissions. For any emissions unit that has not begun normal operations on the particular date, actual 

emissions shall equal the potential to emit of the unit on that date . 
(2) Allowable emissions - The emissions rate of a stationary source, calculated using 

the maximum rated capacity of the source (unless the source is subject to federally enforceable limits 

that restrict the operating rate, or hours of operation, or both), and the most stringent of the following: 

(A) the applicable standards specified in 40 Code of Federal Regulations, Part 

60 or 61 ; 

(B) the applicable state implementation plan emissions limitation including 

those with a future compliance date; or 

(C) the emissions rate specified as a federally enforceable permit condition 

including those with a future compliance date . 

(3) Begin actual construction - In general, initiation of physical on-site construction 

activities on an emissions unit that are of a permanent nature. Such activities include, but are not 

limited to, installation of building supports and foundations, laying of underground pipework, and 

construction of permanent storage structures. With respect to a change in method of operation, this 

term refers to those on-site activities other than preparatory activities that mark the initiation of the 

change . 

(4) Building, structure, facility, or installation - All of the pollutant-emitting 

activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent 

properties, and are under the control of the same person (or persons under common control) . 
Pollutant-emitting activities are considered to be part of the same industrial grouping if they belong to 

the same "major group" (i .e., that have the same two-digit code) as described in the Standard 

Industrial Classification Manual, 1972, as amended by the 1977 supplement. 

(5) Commence - As applied to construction of a major stationary source or major 

modification, means that the owner or operator has all necessary preconstruction approvals or permits 

and either has : 

(A) begun, or caused to begin, a continuous program of actual on-site 

construction of the source, to be completed within a reasonable time; or 

(B) entered into binding agreements or contractual obligations, which cannot 

be canceled or modified without substantial loss to the owner or operator, to undertake a program of 

actual construction of the source to be completed within a reasonable time . 

(6) Construction - Any physical change or change in the method of operation 

(including fabrication, erection, installation, demolition, or modification of an emissions unit) that 

would result in a change in actual emissions . 

(7) Contemporaneous period - For major sources the period between: 

(A) the date that the increase from the particular change occurs ; and 
(B) 60 months prior to the date that construction on the particular change 

commences. 

(8) De minimis threshold test (netting) - A method of determining if a proposed 

emission increase will trigger nonattainment review . The summation of the proposed increase in tons 

per year with all other creditable source emission increases and decreases during the contemporaneous 

period is compared to the MAJOR MODIFICATION column of Table I located in the definition of 

major modification in this section for that specific nonattainment area. If the major modification level 

is exceeded, then nonattainment review is required . 

(9) Lowest achievable emission rate - For any emitting facility, that rate of emissions 

of a contaminant that does not exceed the amount allowable under applicable new source performance 

standards promulgated by the United States Environmental Protection Agency under 42 United States 

Code, §7411, and that reflects the following : 

(A) the most stringent emission limitation that is contained in the rules and 

regulations of any approved state implementation plan for a specific class or category of facility, unless 

the owner or operator of the proposed facility demonstrates that such limitations are not achievable; or 

(B) the most stringent emission limitation that is achieved in practice by a 

specific class or category of facilities, whichever is more stringent . 
(10) Major facility/stationary source - Any facility/stationary source that emits, or 

has the potential to emit, the amount specified in the MAJOR SOURCE column of Table I located in 

the definition of major modification in this section or more of any air contaminant (including volatile 

organic compounds (VOCs)) for which a national ambient air quality standard has been issued . Any 

physical change that would occur at a stationary source not qualifying as a major stationary source in 

Table I of this section, if the change would constitute a major stationary source by itself. A major 

stationary source that is major for VOCs or nitrogen oxides is considered to be major for ozone . The 

fugitive emissions of a stationary source shall not be included in determining for any of the purposes of 

this definition whether it is a major stationary source, unless the source belongs to one of the categories 

of stationary sources listed in 40 Code of Federal Regulations §51 .165(a)(1)(iv)(C) . 

(11) Major modification - As follows . 

(A) Any physical change in, or change in the method of operation of a 

facility/stationary source that causes a significant net emissions increase for any air contaminant for 

which a national ambient air quality standard (NAAQS) has been issued. At a facility/stationary source 

that is not major prior to the increase, the increase by itself must equal or exceed that specified in the 

MAJOR SOURCE column of Table I of this section . At an existing major facility/stationary source, 

the increase must equal or exceed that specified in the MAJOR MODIFICATION column of Table 1. 
TABLE I 

MAJOR SOURCE/MAJOR MODIFICATION EMISSION THRESHOLDS 

POLLUTANT MAJOR SOURCE MAJOR OFFSET RATIO 

designation' tons/year MODIFICATION' minimum 

tons/year 

OZONE (VOC, NOx)3.6 

I marginal' 100 40 1 .10 to 1 

11 moderate 100 40 1.15 to 1 

III serious 50 25 1.20 to 1 

IV severe 25 25 1 .30 to 1 

CO 

I moderate 100 100 1 .00 to 14 

II serious 50 50 1 .00 to 14 

S02 100 40 1 .00 to 14 

PM,o 

I moderate 100 15 1 .00 to 14 

11 serious 70 15 1 .00 to 14 

NOX5 100 40 1 .00 to 14 

Lead 100 0.6 1 .00 to 14 

' Texas nonattainment area designations are specified in 40 Code of Federal Regulations §81 .344 . 

2 The major modification threshold is applicable only to existing major sources and shall be evaluated 

after netting, unless the applicant chooses to apply nonattainment new source review (NNSR) directly 

to the project . The appropriate netting triggers for existing major sources of NO,, and VOC are 

specified in §116.150 of this title (relating to New Major Source or Major Modification in Ozone 

Nonattainment Areas) and for other pollutants are equal to the major modification level listed in this 

table . 

3 VOC and NO,, are precursors to ozone formation and should be quantified individually to determine 

whether a source is subject to NNSR under §116 .150 of this title . As specified in §116.150 of this 

title, for El Paso County, the NNSR rules apply to sources of VOC, but not to sources of NO, 

4 The offset ratio is specified to be greater than 1 .00 to l . 

VOC = volatile organic compounds 
NO, = oxides of nitrogen 

N02 = nitrogen dioxide 

CO = carbon monoxide 

SOZ = sulfur dioxide 

PM,o = particulate matter with an aerodynamic diameter less than or equal to ten microns 

5 Applies to the NAAQS for nitrogen dioxide (NOZ) . 

6 For the Houston-Galveston-Brazoria, Dallas-Fort Worth, and Beaumont-Port Arthur eight-hour ozone 

nonattainment areas, if the United States Environmental Protection Agency promulgates rules requiring 

new source review permit applications in these areas to be evaluated for NNSR according to that area's 

one-hour standard classification, each application will be evaluated according to that area's one-hour 

standard classification. Evaluation includes both the threshold for determining if there is a major 

modification as well as the ratio of offsets required along with any other applicable requirement that 

depends upon an area's nonattainment classification . 

' For areas designated as nonattainment for ozone under Federal Clean Air Act, Title 1, Part D, 

Subpart 1 (42 United States Code, §7502), each application will be evaluated as if that area was 

designated as Marginal . Evaluation includes both the threshold for determining if there is a major 

modification as well as the ratio of offsets required along with any other applicable requirement that 

depends upon an area's nonattainment classification. 

(B) A physical change or change in the method of operation shall not include : 

(i) routine maintenance, repair, and replacement; 

(ii) use of an alternative fuel or raw material by reason of an order 

under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any 

superseding legislation) or by reason of a natural gas curtailment plan under the Federal Power Act; 
(iii) use of an alternative fuel by reason of an order or rule of 42 

United States Code, §7425 ; 

(iv) use of an alternative fuel at a steam generating unit to the extent 

that the fuel is generated from municipal solid waste; 

(v) use of an alternative fuel or raw material by a stationary source 

that the source was capable of accommodating before December 21, 1976 (unless such change would 

be prohibited under any federally enforceable permit condition established after December 21, 1976) or 

the source is approved to use under any permit issued under regulations approved under this chapter; 

(vi) an increase in the hours of operation or in the production rate 

(unless the change is prohibited under any federally enforceable permit condition that was established 

after December 21, 1976); or 

(vii) any change in ownership at a stationary source . 

(12) Necessary preconstruction approvals or permits - Those permits or approvals 

required under federal air quality control laws and regulations and those air quality control laws and 

regulations that are part of the applicable state implementation plan. 

(13) Net emissions increase - The amount by which the sum of the following exceeds 

zero: the total increase in actual emissions from a particular physical change or change in the method 
of operation at a stationary source, plus any sourcewide creditable contemporaneous emission 

increases, minus any sourcewide creditable contemporaneous emission decreases . 

(A) An increase or decrease in actual emissions is creditable only if both of the 

following conditions are met: 

(i) it occurs during the contemporaneous period; and 

(ii) the executive director has not relied on it in issuing a 

nonattainment permit for the source (under regulations approved during which the permit is in effect) 

when the increase in actual emissions from the particular change occurs . 

(B) An increase in actual emissions is creditable only to the extent that the new 

level of actual emissions exceeds the old level. 

(C) A decrease in actual emissions is creditable only to the extent that all of 

the following conditions are met: 

(i) the old level of actual emissions or the old level of allowable 

emissions, whichever is lower, exceeds the new level of actual emissions ; 

(ii) it is federally enforceable at and after the time that actual 

construction on the particular change begins; 

10 
(iii) the reviewing authority has not relied on it in issuing a prevention 

of significant deterioration or a nonattainment permit, or the state has not relied on the decrease to 

demonstrate attainment or reasonable further progress ; and 

(iv) the decrease has approximately the same qualitative significance 

for public health and welfare as that attributed to the increase from the particular change . 

(D) An increase that results from a physical change at a source occurs when 

the emissions unit on which construction occurred becomes operational and begins to emit a particular 

pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable 

shakedown period, not to exceed 180 days. 

(14) Offset ratio - For the purpose of satisfying the emissions offset reduction 

requirements of 42 United States Code, §7503(a)(1)(A), the emissions offset ratio is the ratio of total 

actual reductions of emissions to total allowable emissions increases of such pollutants. The minimum 

offset ratios are included in Table I under the definition of major modification of this section . In order 

for a reduction to qualify as an offset, it must be certified as an emission credit under Chapter 101, 

Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking or Trading ; or Discrete 

Emission Credit Banking and Trading), except as provided for in §116 .170(b) of this title (relating to 

Applicability of Emission Reductions as Offsets) . The reduction must not have been relied on in the 

issuance of a previous nonattainment or prevention of significant deterioration permit . 
(15) Potential to emit - The maximum capacity of a facility/stationary source to emit 

a pollutant under its physical and operational design. Any physical or enforceable operational 

limitation on the capacity of the facility/stationary source to emit a pollutant, including air pollution 

control equipment and restrictions on hours of operation or on the type or amount of material 

combusted, stored, or processed, may be treated as part of its design only if the limitation or the effect 

it would have on emissions is federally enforceable . Secondary emissions, as defined in 40 Code of 

Federal Regulations §51 .165(a)(1)(viii), do not count in determining the potential to emit for a 

stationary source. 

(16) Project net - The sum of the following: the total proposed increase in emissions 

resulting from a physical change or change in the method of operation at a stationary source, minus 

any sourcewide creditable actual emission decreases proposed at the source between the date of 

application for the modification and the date the resultant modification begins emitting. Increases and 

decreases must meet the creditability criteria listed under the definition of net emissions increase in this 

section . 

(17) Secondary emissions - Emissions that would occur as a result of the construction 

or operation of a major stationary source or major modification, but do not come from the source or 

modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the 

same general area as the stationary source or modification that causes the secondary emissions . 

Secondary emissions include emissions from any off-site support facility that would not be constructed 

or increase its emissions, except as a result of the construction or operation of the major stationary 

source or major modification . Secondary emissions do not include any emissions that come directly 

12 
from a mobile source such as emissions from the tail pipe of a motor vehicle, from a train, or from a 

vessel. 

(18) Stationary source - Any building, structure, facility, or installation that emits or 

may emit any air pollutant subject to regulation under 42 United States Code, §§7401 et seq. 
SUBCHAPTER B: NEW SOURCE REVIEW PERMITS 

DIVISION 5: NONATTAINMENT REVIEW 

§116.150 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §5.103, concerning Rules, and §5 .105, concerning General 

Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties 

under the TWC; and under THSC, §382.017, concerning Rules, which authorizes the commission to 

adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendment is 

also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the 

commission's purpose to safeguard the state air resources, consistent with the protection of public 

health, general welfare, and physical property; §382.011, concerning General Powers and Duties, 

which authorizes the commission to control the quality of the state air; §382 .012, concerning State Air 

Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan 

for the control of the state air; §382.051, concerning Permitting Authority of Commission; Rules, 

which authorizes the commission to issue permits and adopt rules necessary for permits issued under 

THSC, Chapter 382; and §382 .0518, concerning Preconstruction Permit, which requires that a permit 

be obtained from the commission prior to new construction or modification of an existing facility . 

The adopted amendment implements THSC, §§382 .002, 382.011, 382.012, 382.051, 382 .0518 . 
§116.150. New Major Source or Major Modification in Ozone Nonattainment Areas. 

(a) This section applies to all new source review authorizations that are administratively 

complete after June 15, 2004, for new construction or modification of facilities located in any area 

designated as nonattainment for ozone in accordance with 42 United States Code (USC), §7407. 

(b) The owner or operator of a proposed new or modified facility that will be a new major 

stationary source of volatile organic compound (VOC) emissions or nitrogen oxides (NOX) emissions, 

or the owner or operator of an existing major stationary source of VOC or NOX emissions that will 

undergo a major modification with respect to VOC or NO, shall meet the requirements of subsection 

(e)(1) - (4) of this section, except as provided in subsection (f) of this section . Table I located in the 

definition of major modifications in §116 .12 of this title (relating to Nonattainment Review Definitions) 

specifies the various classifications of nonattainment along with the associated emission levels that 

designate a major stationary source or major modification for those classifications . 

(c) Except as noted in subsection (f) of this section regarding NO, the de minimis threshold 

test (netting) is required for all modifications to existing major sources of VOC or NO, unless at least 

one of the following conditions are met: 

(1) the proposed emissions increases associated with a project, without regard to 

decreases, is less than five tons per year (tpy) of the individual nonattainment pollutant in areas 

classified under Federal Clean Air Act (FCAA), Title I, Part D, Subpart 2 (42 USC, §7511) classified 

as Serious or Severe; 

15 
(2) the proposed emissions increases associated with a project, without regard to 

decreases, is less than 40 tpy of the individual nonattainment pollutant in areas classified under FCAA, 

Title I, Part D, Subpart 1 (42 USC, §7502) and for those under FCAA, Title 1, Part D, Subpart 2 (42 

USC, §7511) classified as Marginal or Moderate ; or 

(3) the project emissions increases coupled with project actual emissions decreases for 

the same pollutant, summed as the project net, are less than or equal to zero tpy . 

(d) For the Houston-Galveston-Brazoria, Dallas-Fort Worth, and Beaumont-Port Arthur eighthour ozone nonattainment areas, if the United States Environmental Protection Agency promulgates 

rules requiring new source review permit applications in these areas to be evaluated for nonattainment 

new source review according to that area's one-hour standard classification, except as noted in 

subsection (b) of this section regarding NO, the de minimis threshold test (netting) is required for all 

modifications to existing major sources of VOC or NO), in that area, unless at least one of the following 

conditions is met: 

(1) the proposed emissions increases associated with a project, without regard to 

decreases, is less than five tpy of the individual nonattainment pollutant ; or 

(2) the project emissions increases coupled with project actual emissions decreases for 

the same pollutant, summed as the project net, are less than or equal to zero tpy. 
(e) In applying the de minimis threshold test, if the net emissions increases, aggregated over 

the contemporaneous period, are greater than the major modification levels stated in Table I located in 

the definition of major modification in §116.12 of this title, then the following requirements apply. 

(1) The proposed facility shall comply with the lowest achievable emission rate 

(LAER) as defined in § 116.12 of this title for the nonattainment pollutants for which the facility is a 

new major source or major modification except as provided in paragraph (3)(B) of this subsection and 

except for existing major stationary sources that have a potential to emit (PTE) of less than 100 tpy of 

the applicable nonattainment pollutant. For these sources, best available control technology (BACT) 

can be substituted for LAER. LAER shall otherwise be applied to each new emission unit and to each 

existing emission unit at which the net emissions increase will occur as a result of a physical change or 

change in method of operation of the unit. 

(2) All major stationary sources owned or operated by the applicant (or by any person 

controlling, controlled by, or under common control with the applicant) in the state must be in 

compliance or on a schedule for compliance with all applicable state and federal emission limitations 

and standards . 

(3) At the time the new or modified facility or facilities commence operation, the 

emissions increases from the new or modified facility or facilities must be offset . The proposed facility 

shall use the offset ratio for the appropriate nonattainment classification as defined in § 116 .12 of this 

title and shown in Table I of §116.12 of this title . Internal offsets that are generated at the source and 

that otherwise meet all creditability criteria can be applied as follows . 

17 
(A) Major stationary sources with a PTE of less than 100 tpy of an applicable 

nonattainment pollutant are not required to undergo nonattainment new source review under this 

section, if the project increases are offset with internal offsets at a ratio of at least 1 .3 to 1 . 

(B) Major stationary sources with a PTE of greater than or equal to 100 tpy of 

an applicable nonattainment pollutant can substitute BACT for LAER, if the project increases are offset 

with internal offsets at a ratio of at least 1 .3 to 1 . Internal offsets used in this manner can also be 

applied to satisfy the offset requirement . 

(4) In accordance with the FCAA, the permit application must contain an analysis of 

alternative sites, sizes, production processes, and control techniques for the proposed source . The 

analysis must demonstrate that the benefits of the proposed location and source configuration 

significantly outweigh the environmental and social costs of that location. 

(f) For sources located in the El Paso ozone nonattainment area as defined in § 101 .1 of this 

title (relating to Definitions), the requirements of this section do not apply to NO, emissions. 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

tauaia" document, 

vvhic,h i :~ filed Mrrr, ;; :::t ructiras of the Commission, 

~.`'IY~i71tt1d6'r fn'.' s°F~al Gi oS'i1c8 on 

JUN o ~ 20d~ 

6Dnlla Q8tto 

;- ii Za37i7r`sls3bfi on -Enviroromn'tal Quality 

ORDER ADOPTING AMENDED RULES AND 

REVISIONS TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2004-1877-RUL 

On May 25, 2005, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended §§ 101.1, 116.12, and 116.150 . The Commission adopts these 

amendments in Title 30, Tex. Admin. Code, Chapter 101, General Air Quality Rules; Chapter 116, Control 

of Air Pollution by Permits for New Construction or Modification; and corresponding revisions to the state 

implementation plan (SIP) . The adoption amends the definitions of nonattainment area and volatile organic 

compound in Chapter 101, and amends the definitions of contemporaneous period, major modification, and 

net emissions increase and changes new source review netting triggers and periods for areas classified under 

the eight-hour ozone standard in Chapter 116. The amendments also make a variety of changes to correct 

typographical errors, to update cross-references, and to be consistent with other Commission rules and 

applicable drafting standards. Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 

(Vernon 2001), the Commission has the authority to control the quality of the state's air and to issue orders 

consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & 

Safety Code. The proposed rules were published for comment in the February 25, 2005, issue of the Texas 

Register (30 TexReg 1009 and 1016). 

Pursuant to Tex. Health & Safety Code Ann. § 382 .017 (Vernon 2001), Tex. Gov't Code Chapter 

2001 (Vernon 2000 & Vernon Supp . 2004) and 40 Code of Federal Regulations § 51 .102 and after proper 

notice, the Commission conducted a public hearing to consider the amendments and revisions to the SIP. 

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date of 

the hearing . A public hearing was held in Austin on March 17, 2005 : 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies . The 

public was invited to submit data, views, and recommendations on the proposed amended rules and SIP 

revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled 

hearing, copies of the proposed amended rules and SIP revisions were available for public inspection at the 

Commission's central office and on the Commission's Web site . 

Data, views, and recommendations of interested persons regarding the proposed amended 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 Conunission further authorizes 

staff to make any non-substantive revisions to the rules necessary to comply with Texas Register 

requirements . The adopted rules and the preambles to the adopted rules and the revisions to the SIP are 

incorporated by reference in this Order as if set forth at length verbatim in this Order . 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, 

to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean 

Air Act, § 110, codified at 42 U.S . Code Ann. §§ 7410 - 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Government Code, § 2001 .033 . 

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, 

the invalidity of any portion shall not affect the validity of the remaining portions . 

Date issued : MAY 3 1 2005 TEXAS COMMISSION ON 

- ENVIRONMENTAL QUALITY 

athleen Hartnett White, Chairman 
Texas Structural Pest Co~trol Board with the authority to license 

and regulate the structur I pest control industry. 

This agency hereby certi es that the adoption has been reviewed 

by legal counsel and foud to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of th Secretary of State on May 24, 2005. 

TRD-200502098 

Dale Burnett 

Executive Director 

Texas Structural Pest Contr Board 

Effective date : June 13, 200 

Proposal publication date : A ril 22, 2005 

For further information, pleas call : (512) 305-8270 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1 . TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 101 . GENERAL AIR QUALITY 

RULES 

SUBCHAPTER A. GENERAL RULES 

30 TAC §101.1 

The Texas Commission on Environmental Quality (commission) 

adopts an amendment to §101 .1 without change to the proposed 

text as published in the February 25, 2005, issue of the Texas 

Register (30 TexReg 1009), and will not be republished. 

The amendment will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP) . 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULE 

After adoption of the Federal Clean Air Act (FCAA) Amendments 

of 1990, the EPA classified the designated four areas of Texas 

that failed to meet the one-hour national ambient air quality standard (NAAQS) for the air contaminant ozone. Each area was 

classified by the EPA based on the amount by which it exceeded 

the ozone NAAQS of 0.12 parts per million (ppm) based on a 

peak one-hour concentration of ozone. Eight counties in the 

Houston-Galveston-Brazoria (HGB) area (Brazoria, Chambers, 

Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller) 

were classified as Severe and El Paso County was classified 

as Serious. Four counties in the Dallas-Fort Worth (DFW) area 

(Collin, Dallas, Denton, and Tarrant) were originally classified as 

Moderate and then reclassified to Serious. Three counties in 

the Beaumont-Port Arthur (BPA) area (Hardin, Jefferson, and 

Orange) were originally classified as Serious, then reclassified 

to Moderate, and reclassified again, in 2004, to Serious. 

Effective June 15, 2004, EPA designated and classified four areas in Texas as nonattainment for the eight-hour ozone standard 

(69 FR 23858). The HGB area was classified as Moderate and 

contains the same eight counties that were classified as Severe 

under the one- hour standard : Brazoria, Chambers, Fort Bend, 

Galveston, Harris, Liberty, Montgomery, and Waller. The DFW 

area was also classified as Moderate and consists of the counties classified as Serious under the one-hour standard : Dallas, 

Tarrant, Denton, and Collin Counties, plus five additional counties : Ellis, Johnson, Kaufman, Parker, and Rockwall . The BPA 

area was classified as Marginal and consists of the three counties classified as Serious under the one- hour standard : Hardin, 

Jefferson, and Orange. The El Paso area consisting of El Paso 

County is now designated as attainment . In addition, the San 

Antonio area, consisting of Bexar, Comal, and Guadalupe Counties, was also designated as nonattainment under the FCAA, Title I, Part D, Subpart 1 (42 United States Code (USC), §7402), 

but with a deferred effective date of September 30, 2005, due 

to its status as an early action compact (EAC) area . EPA noted 

in the eight-hour ozone designation and classification rulemaking that EAC areas will continue to remain eligible for deferred 

effective dates as long as they remain in compliance with their 

compact agreements. The classification of nonattainment areas 

was codified in 40 Code of Federal Regulations (CFR), and this 

amendment will update the commission rules to match the new 

federal classifications. 

On November 29, 2004, EPA added five volatile organic compounds (VOC) to the list of compounds in 40 CFR §51 .100(s) 

that, for lack of reactivity, are excluded from the definition of 

VOC. The definition of VOC is based on compound reactivity 

and the compound's tendency to produce ozone. The compounds include 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane 

(known as HFE-7000); 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (known as HFE-7500, 

HFE-s702, T-7145, and L-15381) ; 1,1,1,2,3,3,3-heptafluoropropane (known as HFC 227ea); methyl formate; and t-butyl 

acetate (also known as tertiary butyl acetate, TBAC, or TBAc). 

EPA revised the definition of VOC to say that TBAC will not be a 

VOC for purposes of VOC emissions limitations or VOC content 

requirement, but will continue to be a VOC for purposes of all 

recordkeeping, emissions reporting, and inventory requirements 

that apply to a VOC. The commission is deleting the list of 

compounds from the commission definition and referring to the 

federal definition in 40 CFR §51 .100, as amended on November 

29, 2004 (69 FR 69290 - 69304) . 

Adopted changes to the 30 TAC Chapter 116 corresponding rulemaking are also published in this issue of the Texas Register. 

SECTION DISCUSSION 

§101.1, Definitions 

The commission amends the definition of nonattainment area in 

paragraph (67) to reflect the classifications under the existing 

one-hour standard and to add the classifications under the new 

eight-hour ozone standard . The classifications under the new 

standard are the Moderate classification for the HGB and DFW 

areas, including five additional counties, and the Marginal classification for the BPA area. The San Antonio area is designated 

as nonattainment under the FCAA, Title I, Part D, Subpart 1 (42 

USC, §7402), but with a deferred effective date of September 30, 

2005, due to its status as an EAC area. The El Paso area is in 

attainment for the eight-hour ozone standard and therefore is not 

listed under new subparagraph (F) . Previously existing subparagraph (F) is relettered as subparagraph (G) . 

The commission also amends the definition of VOC in paragraph 

(111) by deleting the existing list of compounds and by referring 

to the federal definition in 40 CFR §51 .100(s), except paragraphs 

(2) - (4), as amended on November 29, 2004 (69 FR 69290 -

69304). The federal definition includes a special case for the 

compound t-butyl acetate, which will not be considered a VOC for 

emission limitation or content purposes but will be considered a 

30 TexReg 3408 June 10, 2005 Texas Register 
VOC for emissions reporting and inventories and photochemical 

modeling . 

The commission also made administrative changes for readability, conformity with the drafting standards in the Texas Legislative 

Council Drafting Manual, November 2004, and consistency with 

other commission rules. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the 

regulatory impact analysis requirements of Texas Government 

Code, §2001 .0225, and determined that the rulemaking does 

not meet the definition of a "major environmental rule ." Furthermore, it does not meet any of the four applicability requirements 

listed in Texas Government Code, §2001 .0225(a) . A "major environmental rule" means a rule, the specific intent of which, is to 

protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material 

way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of 

the state or a sector of the state. The amendment revises the 

definition of nonattainment area to reflect the new classifications 

under the eight-hour standard for the BPA, DFW, and HGB areas; 

adds the five newly designated counties in the DFW area ; and 

adds the San Antonio area . The amendment also incorporates a 

change to the federal definition for VOC, which became effective 

November 29, 2004. The amendment will not adversely affect, 

in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health 

and safety of the state or a sector of the state. 

In addition, Texas Government Code, §2001 .0225, only applies 

to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of 

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

3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a state and federal program; or 4) 

adopt a rule solely under the general powers of the agency instead of under a specific state law. The amendment does not exceed a standard set by federal law or exceed an express requirement of state law. There is no contract or delegation agreement 

that covers the topic that is the subject of this rulemaking . Finally, 

this rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections of the 

Texas Health and Safety Code and Texas Water Code, which 

are cited in the STATUTORY AUTHORITY section of this preamble. Therefore, this rulemaking is not subject to the regulatory 

analysis provisions of Texas Government Code, §2001 .0225(b), 

because the amendment does not meet any of the four applicability requirements . 

TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the 

adopted amendment. The specific purpose of this rulemaking 

is to amend the definition of nonattainment area to reflect the 

new classifications for the BPA, DFW, and HGB areas ; add the 

five newly designated counties in the DFW area ; and add the San 

Antonio area. The EPA has indicated that the one- hour standard 

will be revoked on June 15, 2005. The amendment also incorporates a change to the federal definition for VOC, which became 

effective November 29, 2004. Promulgation and enforcement of 

the amendment would be neither a statutory nor a constitutional 

taking because it does not affect private real property. Specifically, the amendment does not affect private property in a manner that restricts or limits an owner's right to the property that 

would otherwise exist in the absence of a governmental action . 

Therefore, the amendment does not constitute a takings under 

Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking relates to an 

action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 

1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP As required by 

§281 .45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and 

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

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

policies in accordance with the rules of the Coastal Coordination 

Council, and determined that the action is consistent with the applicable CMP goals and policies . The CMP goal applicable to this 

rulemaking action is the goal to protect, preserve, and enhance 

the diversity, quality, quantity, functions, and values of coastal 

natural resource areas (31 TAC §501 .12(I)) . No new sources of 

air contaminants are authorized and the adopted revisions maintain the same level of emissions control as the previously existing 

rules. The CMP policy applicable to this rulemaking action is the 

policy that commission rules comply with federal regulations in 

40 CFR, to protect and enhance air quality in the coastal areas 

(31 TAC §501 .14(q)). This rulemaking action complies with 40 

CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 

31 TAC §505.22(e), the commission affirms that this rulemaking 

action is consistent with CMP goals and policies . 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Section 101 .1 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits. Upon the effective date of 

this rulemaking, owners or operators subject to the Federal Operating Permit Program will be required to certify compliance with 

amended §101 .1 . 

PUBLIC COMMENT 

The commission conducted a public hearing on this proposal in 

Austin on March 17, 2005. Two comments were received during 

the public comment period, which closed on March 28, 2005. 

PVI Industries, LLC supported the removal of tertiary butyl acetate from the list of reactive VOCs. 

Texas Chemical Council (TCC) also supported the removal of 

the compounds from the list of regulated VOCs. TCC also commented that the reportable quantity (RQ) for hydrochloroflourocarbons (HCFC) should be set to 5,000 pounds, which is the 

federal RQ under FCAA, §602, for dichlorodiflouromethane and 

trichloromonoflouromethane . 

The suggested change to the RQ was not proposed or noticed for 

public comment and the commission has not made an evaluation 

of the request. No change has been made in response to TCC's 

comment requesting a change in the RQ for HCFC. 

STATUTORY AUTHORITY 

ADOPTED RULES June 10, 2005 30 TexReg 3409 
The amendment is adopted under Texas Water Code, §5.103, 

concerning Rules, and §5.105, concerning General Policy, 

which authorize the commission to adopt rules necessary to 

carry out its powers and duties under the Texas Water Code; 

and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the Texas Clean Air 

Act. The amendment is also adopted under Texas Health and 

Safety Code, §382.002, concerning Policy and Purpose, which 

establishes the commission's purpose to safeguard the state 

air resources, consistent with the protection of public health, 

general welfare, and physical property; §382.011, concerning 

General Powers and Duties, which authorizes the commission 

to control the quality of the state air ; §382.012, concerning State 

Air Control Plan, which authorizes the commission to prepare 

and develop a general, comprehensive plan for the control of 

the state air ; and §382.051, concerning Permitting Authority of 

Commission ; Rules, which authorizes the commission to issue 

permits and adopt rules necessary for permits issued under 

Texas Health and Safety Code, Chapter 382. 

The adopted amendment implements Texas Health and Safety 

Code, §§382.002, 382.011, 382.012, and 382.051 . 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on May 26, 2005. 

TRD-200502133 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date : June 15, 2005 

Proposal publication date : February 25, 2005 

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

CHAPTER 113 . ST 

PERFORMANCE FO 

POLLUTANTS AND 

FACILITIES AND PO 

SUBCHAPTER C. N 

STANDARDS FOR H 

POLLUTANTS FOR S 

(FCAA, § 112, 40 CFR 

30 TAC §§113.100, 113.105, 

113.130, 113.140, 113.170, 1 

113.220, 113.230, 113.240, 1 

113.290, 113.300, 113.320, 1 

113.360, 113.380, 113.390, 1 

113.430, 113.440, 113.460, 1 

113.530, 113.600, 113.610, 1 

113.660, 113.670, 113.690, 1 

113.730, 113.750, 113.770, 1 

113.890, 113.920, 113.940, 11' 

113.1000, 113.1010, 113.1060 

113.1110, 113.1120, 113.1140 

30 TexReg 3410 June 10, 2005 Texas Register 

DARDS OF 

HAZARDOUS AIR 

OR DESIGNATED 

LUTANTS 

TIONAL EMISSION 

ZARDOUS AIR 

URCE CATEGORIES 

RT 63) 

113.106, 113.110, 113.120, 

3.180, 113.190, 113.200, 

3.250, 113.260, 113.280, 

3.330, 113.340, 113.350, 

3.400, 113.410, 113.420, 

3.470, 113.480, 113.490, 

3.620, 113.640, 113.650, 

3.700, 113.710, 113.720, 

.790, 113.810, 113.880, 

.960, 113.980, 113.990, 

113.1080, 113.1090, 113.1100, 

113.1150, 113.1160, 113.1170, 

113.1180, 113.1190, 1 

113.1250, 113.1270, 1 

The Texas Commissio 

adopts the amendm 

113.130, 113.140, 1 

113.220, 113.230, 1 

113.290, 113.300, 1 

113.360, 113.380, 1 

113.430, 113.440, 1 

113.530, 113.600, 1 

113.660, 113.670, 1 

113.730, 113.750, 113. 

new §§113.105, 113.10 

113.960, 113.980, 113 

113.1080, 113.1090, 11 

113.1150, 113.1160, 11 

113.1210, 113.1220, 11 

and 113.1290 without ch 

in the December 31, 

TexReg 12080), and wil 

BACKGROUND AND 

FOR THE ADOPTED 

The amendments to Ch 

the United States Envir 

made to the National E 

Pollutants (NESHAP) fo 

of Federal Regulations 

ogy-based standards c 

achievable control tech 

the new sections incorp 

and two general MACT 

viously incorporated int 

these national standards 

pollutants under the Fe 

codified in 42 United Sta 

Under federal law, affect 

the MACT standards reg 

the EPA is the agency res 

standards are promulgat 

viewed for compatibility wi 

policies . The commission 

113 through formal rulem 

standard or amendment i 

formal delegation from the 

E, which implements 42 

commission will be respo 

the MACT requirements . 

The commission incorpor 

made to the 40 CFR Part 

federal MACT standards p 

mission rules by updating 

Federal Register (FR) citati 

The standards, along with th 

tions and original incorpora 

table. 

3.1200, 113.1210, 113.1220, 113.1230, 

3.1280, 113 .1290 

on Environmental Quality (commission) 

ts to §§113.100, 113.110, 113 .120, 

3.170, 113.180, 113.190, 113.200, 

3.240, 113.250, 113.260, 113.280, 

3.320, 113.330, 113.340, 113.350, 

3.390, 113.400, 113.410, 113.420, 

3.460, 113.470, 113.480, 113.490, 

3.610, 113.620, 113.640, 113.650, 

3.690, 113.700, 113.710, 113.720, 

70, 113.790, and 113.810, and adopts 

, 113.880, 113.890, 113.920, 113.940, 

990, 113.1000, 113.1010, 113.1060, 

.1100, 113.1110, 113.1120, 113.1140, 

.1170, 113.1180, 113.1190, 113.1200, 

.1230, 113.1250, 113.1270, 113.1280, 

nges to the proposed text as published 

004, issue of the Texas Register (29 

not be republished. 

UMMARY OF THE FACTUAL BASIS 

LES 

pter 113 incorporate amendments that 

mental Protection Agency (EPA) has 

ission Standards for Hazardous Air 

Source Categories, under 40 Code 

(CFR) Part 63. These are technolmmonly referred to as the maximum 

logy (MACT) standards. In addition, 

rate by reference 29 MACT standards 

equirements that have not been preChapter 113. The EPA is developing 

to regulate emissions of hazardous air 

eral Clean Air Act (FCAA), §112, as 

s Code (USC), §7412. 

industries are required to implement 

rdless of whether the commission or 

onsible for implementation . As MACT 

or amended by the EPA, they are reh current commission regulations and 

then incorporates them into Chapter 

king procedures . After each MACT 

adopted, the commission will seek 

EPA under 40 CFR Part 63, Subpart 

C, §7412(1). Upon delegation, the 

sible for administering and enforcing 

tes amendments that the EPA has 

3 General Provisions and 49 of the 

viously incorporated into the come federal promulgation dates and 

ns stated in the commission rules. 

ir corresponding Chapter 113 secon date, are listed in the following 

The commission also incorp 

29 recent federal MACT st 

Chapter 113. In addition, 

reference, without change, g 

§1120), as implemented by the EPA under 40 CFR §§63.50 - 

ates by reference, without change, 

ndards not currently included in 

the commission incorporates by 

!neral provisions related to FCAA, 
of the federal governme 

gram; or 4) adopt a rule 

agency instead of under 

does not meet any of the 

dards in this adoption a 

which will be incorpora 

exceed any standard set 

express requirement of s 

MACT standards manda 

to that statute. The ado 

of a delegation agreeme 

eral government. The a 

under the general powe 

der the Texas Clean Air 

and Safety Code, §382. 

to establish the level of 

air; §382.012, which aut 

develop a general, com 

the state's air; §382.01 

prescribe reasonable re 

ing the emissions of air 

rizes the commission t 

and purposes of the TC 

commission to adopt rul 

in federal law and regul 

The commission compl ted a takings impact analysis for the 

adopted rulemaking aion under Texas Government Code, 

§2007.043 . The spec fic purpose of this rulemaking is to 

and enforcement of MACT standards 

making will not create any additional 

operty. Under federal law, the affected 

to implement these MACT standards 

e commission or EPA is the agency 

tation of the standards. 

facilitate implementatio 

by the state. This rul 

burden on private real p 

industries will be requir 

regardless of whether t 

responsible for impleme 

The commission review 

adoption is subject to the 

(CMP) in accordance wit 

Natural Resources Code, 

be consistent with all ap 

commission prepared a c 

in accordance with Coa 

Rules, 31 TAC §505.22 a 

with the applicable CMP 

applicable to the rules i 

enhance the diversity, qu 

of coastal natural resourc 

to the rules is Emission 

consistent because they 

federal MACT standards t 

processes. The MACT st 

control of air emissions tha 

PUBLIC COMMENT 

A public hearing on this pro 

31, 2005, but no oral comm 

ment period ended at 5:00 

comments were submitted. 

STATUTORY AUTHORITY 

to implement a state and federal proolely under the general powers of the 

a specific state law. This rulemaking 

equirements because the MACT stanfederal technology-based standards 

by reference, and therefore, will not 

y federal law. This adoption is not an 

ate law, but was developed by EPA as 

d by the FCAA and the amendments 

ed rules do not exceed a requirement 

t or a contract between state and fedopted rules were not developed solely 

s of the agency, but are adopted unct (TCAA), as codified in Texas Health 

11, which authorizes the commission 

uality to be maintained in the state's 

orizes the commission to prepare and 

ehensive plan for the proper control of 

which authorizes the commission to 

uirements for measuring and monitorontaminants ; §382.017, which authoadopt rules consistent with the policy 

; and §382.051, which authorizes the 

s as necessary to comply with changes 

tions applicable to air permits. 

HE COASTAL MANAGEMENT PROthe rulemaking and found that the 

Texas Coastal Management Program 

the Coastal Coordination Act, Texas 

§§33.201 et seq., and therefore must 

licable CMP goals and policies . The 

nsistency determination for the rules 

al Coordination Act Implementation 

d found the rulemaking is consistent 

goals and policies. The CMP goal 

to protect, preserve, restore, and 

lity, quantity, functions, and values 

areas. The CMP policy applicable 

f Air Pollutants . These rules are 

only incorporate by reference the 

at pertain to certain industries and 

ndards provide the highest level of 

is achievable . 

osal was held in Austin on January 

nts were received. The public comm. on January 31, 2005. No written 

30 TexReg 3422 June 10, 2005 Texas Register 

The new and amend 

Code (TWC), §5.10 

general powers to c 

which authorizes the 

to carry out the power 

TWC and other laws 

the commission by rul 

icy of the commission 

adopted under Texas 

which authorizes the 

the policy and purpo 

lishes the commissio 

sources, consistent w th the protection of public health, general 

welfare, and physical Property; §382.011, which authorizes the 

commission to establsh the level of quality to be maintained 

to control the quality of the state's air; 

rizes the commission to prepare and deehensive plan for the control of the state's 

thorizes the commission to prescribe reafor measuring and monitoring the emisnts; and §382.051, which authorizes the 

les as necessary to comply with changes 

ations applicable to permits issued under 

in the state's air and 

§382.012, which auth 

velop a general, comp 

air; §382.016, which a 

sonable requirement 

sions of air contamin 

commission to adopt 

in federal law or regu 

the TCAA. 

The adopted new 

Health and Safety 

382.016, 382.017, a 

This agency hereby c 

by legal counsel and 

legal authority. 

Filed with the Office 

TRD-200502140 

Stephanie Bergeron Pe 

Director, Environmental 

Texas Commission on E 

Effective date : June 15, 

Proposal publication dat 

For further information, 

" 

d sections are adopted under Texas Water 

which provides the commission with the 

y out its duties under the TWC; §5.103, 

ommission to adopt any rules necessary 

and the duties under the provisions of the 

f this state; and §5.105, which authorizes 

to establish and approve all general polThe amended and new sections are also 

ealth and Safety Code, TCAA, §382.017, 

ommission to adopt rules consistent with 

es of the TCAA; §382.002, which estab-

's purpose to safeguard the state's air red amended sections implement Texas 

Code, §§382.002, 382.011, 382 .012, 

382.051 . 

rtifies that the adoption has been reviewed 

und to be a valid exercise of the agency's 

f the Secretary of State on May 26, 2005. 

ue 

aw Division 

vironmental Quality 

005 

: December 31, 2004 

ease call : (512) 239-6087 

CHAPTER 116 . CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

The Texas Commission on Environmental Quality (commission) 

adopts the amendments to §116.12 and §116.150 with changes 

to the proposed text as published in the February 25, 2005, issue 

of the Texas Register (30 TexReg 1016). 

These amendments will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state 

implementation plan (SIP) . 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULES 

After adoption of the Federal Clean Air Act (FCAA) Amendments 

of 1990, the EPA classified the designated four areas of Texas 

that failed to meet the one-hour national ambient air quality standard (NAAQS) for the air contaminant ozone. Each area was 

classified by the EPA based on the amount by which it exceeded 

the ozone NAAQS of 0.12 parts per million (ppm) based on a 
peak one-hour concentration of ozone. Eight counties in the 

Houston-Galveston-Brazoria (HGB) area (Brazoria, Chambers, 

Fort Bend, Galveston, Harris, Montgomery, and Waller) were 

classified as Severe and El Paso County was classified as Serious. Four counties in the Dallas- Fort Worth (DFW) area (Collin, 

Dallas, Denton, and Tarrant) were originally classified as Moderate and then reclassified to Serious. Three counties in the 

Beaumont-Port Arthur (BPA) area (Hardin, Jefferson, and Orange) were originally classified as Serious, then reclassified to 

Moderate, and reclassified again, in 2004, to Serious. The classification of an area has specific effects on sources of air contaminants within the area including what will be considered a major 

source of contaminants . In the case of ozone, the contaminants 

of concern are volatile organic compounds (VOC) and nitrogen 

oxides (NO,), referred to as ozone precursers . 

If a proposed project (modification of existing facilities or new 

construction) is determined to be a major modification, the 

project is subject to federal nonattainment new source review 

(NNSR) and specific levels of pollution control, which generally 

mean that the source will be required to meet the lowest achievable emission rate (LAER) and offset the emissions increase . 

To determine if a modification at a major source results in an 

emission increase that would make the project a major modification, the source owner performs a netting exercise if the project 

emission increase is greater than the netting trigger (five tons 

per year (tpy) under current commission rules) . Netting is an accounting procedure used to determine the amount of increase in 

emissions by a source over a specified period of time . All emission increases and decreases at a source over the specified time 

(netting period) are added or subtracted and, if the resulting figure is at or above the major modification threshold, the source 

becomes subject to NNSR. This major modification threshold is 

determined by an area's classification (Severe, Serious, Moderate) . The netting trigger and netting period are the principal 

subjects of this adoption . 

On April 30, 2004, the EPA adopted the Phase 1 Implementation Rule (69 FR 23951), implementing a new eight-hour ozone 

NAAQS, effective June 15, 2004. On the same date, the EPA 

designated and classified areas that were not in attainment of 

the eight-hour standard (69 FR 23858). In the Phase 1 Implementation Rule, the EPA stated that it plans to issue a second 

final rule, Phase 2, which will address many of the planning and 

control obligations under FCAA, §172 and §182 that will apply for 

purposes of implementing the eight-hour ozone NAAQS. These 

rules will include, among other things, new source review (NSR). 

The EPA designated four areas of Texas as nonattainment for 

the eight-hour ozone standard, and classifications under the new 

standard are different from the classifications underthe one-hour 

ozone standard. Specifically, HGB and DFW are classified as 

Moderate, BPA is classified as Marginal, and El Paso is in attainment of the eight-hour standard . In addition to the four counties in the DFW area classified under the one-hour standard, five 

additional counties (Ellis, Johnson, Kaufman, Parker, and Rockwall) were designated as Moderate nonattainment . The San Antonio area, consisting of Bexar, Comal, and Guadalupe Counties, 

was designated nonattainment under FCAA, Title I, Part D, Subpart 1 (42 United States Code (USC), §7502) with a deferred 

effective date, due to its participation in the Early Action Compact Program. In the Phase 1 Implementation Rule, the EPA 

also adopted a rule that provides that the EPA will revoke the 

one-hour standard in full, including designations and classifications, one year following the effective date of the designations for 

the eight-hour NAAQS. One year after the effective date of the 

designations for the eight-hour ozone standard is June 15, 2005. 

The new EPA Phase 1 Implementation Rules make no changes 

to the netting procedure or thresholds. The commission is adopting the federal model concerning netting triggers and periods 

with the exception of the netting trigger in a Serious or Severe 

nonattainment area where the commission is retaining its existing five tpy trigger. The commission eliminated the netting period 

for larger major sources that required netting going back to 1992. 

This period is now too long to be useful and could not be justified for the sources in the five new nonattainment counties in the 

DFW area . Under the new eight-hour ozone standard, there are 

no areas currently classified as Serious or Severe. The proposed 

netting triggers for all eight- hour ozone nonattainment areas is 

now 40 tpy and all netting periods are five years. 

Application of the eight-hour ozone standard for NNSR became 

effective June 15, 2004, and the commission is updating its rules 

to implement the necessary changes. On September 24, 2004, 

in response to a petition by EarthJustice and other environmental 

groups, the EPA granted a partial reconsideration of the Phase 1 

Implementation Rule adopted April 30, 2004, allowing states to 

apply federal NNSR based on an eight-hour classification . The 

result of this reconsideration could be a return to the one-hour 

ozone standard for application of federal NNSR. Therefore, the 

commission is including contingency language in §116.150, New 

Major Source or Major Modification in Ozone Nonattainment Areas, and in the table footnotes in the figure located in the definition of major modification in §116.12. This contingency language 

will go into effect if the EPA decides to require states to return to 

a one-hour standard for federal NNSR determination. 

Adopted changes to the 30 TAC Chapter 101 corresponding rulemaking are also published in this issue of the Texas Register. 

NO, Netting and Mass Emission Cap and Trade 

The new five-year contemporaneous period for all sources will 

allow sources to ignore whether the HGB NO mass emission 

cap and trade program (MECT) in Chapter 101, Subchapter H, 

is driving the reduction when determining whether an emission 

reduction made at a plant site at a facility subject to the MECT 

is creditable for netting purposes. This will apply only to NO, 

sources subject to the MECT in HGB for netting exercises only 

and will not apply to NO, credits or offsets . This determination 

for sites subject to HGB MECT and NO. netting will not affect 

the MECT or the SIP because the MECT cap is ultimately the 

governing factor in the amount of NO, emitted. Furthermore, the 

moving five-year netting period will esure that emission reduction strategies driven by MECT compliance at a plant site that 

are used to "net out" emission increases from increases at the 

site will have to occur within the same time frame (five years) as 

the increases. The MECT allows for trading of a fixed number of 

emission allowances so the emission reductions are not binding 

on any specific unit or site but it ensures that area-wide emission reductions are made, regardless of changes at any particular site . 

SECTION BY SECTION DISCUSSION 

The commission made administrative changes for better readability, conformity with the drafting standards in the Texas Legislative Council Drafting Manual, November 2004, and consistency with other commission rules. The commission also made 

corrections to citations of federal and state law and added USC 

references to citations of sections of the FCAA. 

ADOPTED RULES June 10, 2005 30 TexReg 3423 
§116.12, Nonattainment Review Definitions 

The commission amended the definition of contemporaneous 

period in paragraph (7) to require that netting be performed from 

the date of a modification going back a period of 60 months for all 

netting exercises. This period is more representative of recent 

activity as compared to a period that goes back to 1992 and is 

consistent with the EPA period . 

The commission added new footnotes 6 and 7 to the table in the 

figure located in the definition of major modification in paragraph 

(11)(A) that require sources in areas that were classified nonattainment for ozone under a one-hour ozone standard to return to 

the major source thresholds, major modification thresholds, and 

offset ratios for the one-hour standard for federal NNSR applicability if the EPA requires states to use the one-hour standard 

after reconsideration of its rule implementing the new eight-hour 

standard . 

Footnote 7 also requires applications submitted for facilities that 

would be located in areas designated under FCAA, Title I, Part 

D, Subpart 1 (42 USC, §7502), be evaluated as if the area was 

classified as Marginal under FCAA, Title I, Part D, Subpart 2 (42 

USC, §7502). The evaluation includes both the threshold for determining if there is a major modification as well as the ratio of 

offsets required along with any other applicable requirement that 

depends upon an area's nonattainment classification . Currently, 

only San Antonio is designated under Subpart 1 . This is necessary due to the Phase 1 Implementation Rule that apply to areas 

designated under Subparts 1 or 2. 

The commission deleted subparagraphs (E) and (F) from the definition of net emissions increase in paragraph (13) . The subparagraphs contained references to a contemporaneous period going 

back to November 15, 1992. 

§116.150, New Major Source or Major Modification in Ozone 

Nonattainment Areas 

For ease of understanding, the commission reformatted the previously existing subsection (a) into additional subsections and 

added new language to address the eight-hour netting procedures. 

The commission adopts the reformatted subsection (a) to apply 

major modification procedures to all NSR authorizations issued 

or claimed . In addition to aligning the date with the effective date 

of the new designations, the commission is adopting this addition 

because netting procedures apply to sources authorized under 

standard permit or permit by rule to demonstrate that modifications under those authorizations are not major. 

New subsection (b) contains language addressing the control 

requirements applicable to major sources or major modifications. 

The rule citation where the control requirements are found now 

reads "subsection (e)(1) - (4) of this section." The commission 

changed the citation concerning the exception for NO sources 

in El Paso County from subsection (b) to subsection X (f) . The 

commission also changed a reference to subsection (c) because 

it was obsolete . The phrase "located in the definition of major 

modification" was added from proposal for better clarification. 

The commission adopts new subsection (c), which contains a 

new netting trigger of 40 tpy for areas classified as Marginal or 

Moderate ozone nonattainment . The commission retains the five 

tpy netting trigger for areas classified as Serious or Severe. 

The commission adopts new subsection (d), which contains contingency language that will go into effect if the EPA, after reconsideration of the eight-hour standard, requires states to use the 

area's one-hour standard classification for determining applicability of NNSR. The contingency language will require sources 

in areas that were classified nonattainment for ozone under a 

one-hour ozone standard to return to a netting trigger of five tpy, 

which is based on a one-hour ozone standard for the applicability 

of federal NNSR. The commission added this language because 

EPA agreed to reconsider the eight-hour designations in reaction 

to lawsuits filed by EarthJustice and other environmental organizations. 

New subsection (e) contains language from previously existing 

subsection (a) concerning emission standards and offsets for 

sources and modifications classified as major sources and modifications . The phrase "located in the definition of major modification" was added from proposal for better clarification. 

New subsection (f) exempts sources located in El Paso County 

from the requirements of this section concerning NO, emissions 

and contains identical language from previously designated subsection (b). 

The commission also made administrative changes for readability, conformity with drafting standards in the Texas Legislative 

Council Drafting Manual, November 2004, and consistency with 

other commission rules. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking in light of the 

regulatory impact analysis requirements of Texas Government 

Code, §2001 .0225, and determined that the rulemaking does not 

meet the definition of a "major environmental rule ." Furthermore, 

it does not meet any of the four applicability requirements listed in 

Texas Government Code, §2001 .0225(a) . A "major environmental rule" means a rule, the specific intent of which, is to protect 

the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way 

the economy, a sector of the economy, productivity, competition, 

jobs, the environment, or the public health and safety of the state 

or a sector of the state. The adopted amendments revise the netting trigger and netting period for projects that are a major modification and are therefore subject to federal NNSR for air quality 

permitting and specific levels of pollution control. The amendments also make NNSR requirements applicable to the San Antonio area and the five additional counties in the DFW area . Because San Antonio is an early action compact area, it has a deferred effective date of September 30, 2005, and will continue to 

be deferred as it remains in compliance with the compact agreements. The amendments also make changes to the definition of 

contemporaneous period and net emissions increase as well as 

changes to the figure in the definition of major modification, and 

nonsubstantive organizational changes. The adopted amendments will not adversely affect, in a material way, the economy, 

a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector 

of the state. 

In addition, Texas Government Code, §2001 .0225, only applies 

to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of 

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

3) exceed a requirement of a delegation agreement or contract 
between the state and an agency or representative of the federal government to implement a state and federal program; or 4) 

adopt a rule solely under the general powers of the agency instead of under a specific state law. The adopted amendments do 

not exceed a standard set by federal law or exceed an express requirement of state law. There is no contract or delegation agreement that covers the topic that is the subject of this rulemaking . 

Finally, this rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections 

of the Texas Health and Safety Code (THSC) and Texas Water 

Code (TWC), which are cited in the STATUTORY AUTHORITY 

section of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions of Texas Government 

Code, §2001 .0225(b), because the amendments do not meet 

any of the four applicability requirements . 

TAKINGS IMPACT ASSESSMENT 

The commission completed a takings impact analysis for the 

adopted amendments . The specific purpose of this rulemaking is to revise the netting trigger and netting period for projects 

that are a major modification and are therefore subject to federal 

NNSR for air quality permitting and specific levels of pollution 

control. The amendments implement NNSR requirements for 

the newly designated San Antonio area and the five additional 

counties in the DFW area . The amendments also make nonsubstantive organizational changes. Promulgation and enforcement 

of the adopted amendments would be neither a statutory nor a 

constitutional taking because they do not affect private real property. Specifically, the adopted amendments do not affect private 

property in a manner that restricts or limits an owner's right to 

the property that would otherwise exist in the absence of a governmental action . Therefore, the amendments do not constitute 

a takings under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission determined that this rulemaking action relates 

to an action or actions subject to the Texas Coastal Management 

Program (CMP) in accordance with the Coastal Coordination Act 

of 1991, as amended (Texas Natural Resources Code, §§33.201 

et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP As required by 

§281 .45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and 

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

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

policies in accordance with the rules of the Coastal Coordination 

Council, and determined that the action is consistent with the applicable CMP goals and policies . The CMP goal applicable to this 

rulemaking action is the goal to protect, preserve, and enhance 

the diversity, quality, quantity, functions, and values of coastal 

natural resource areas (31 TAC §501 .12(I)) . No new sources of 

air contaminants are authorized and the adopted revisions maintain the same level of emissions control as the previously existing 

rules . The CMP policy applicable to this rulemaking action is the 

policy that commission rules comply with federal regulations in 

40 Code of Federal Regulations (CFR), to protect and enhance 

air quality in the coastal areas (31 TAC §501 .14(q)) . This rulemaking action complies with 40 CFR Part 51, Requirements for 

Preparation, Adoption, and Submittal of Implementation Plans. 

Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP 

goals and policies . 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Sections 116.12 and 116.150 are applicable requirements under 

30 TAC Chapter 122, Federal Operating Permits Program. Upon 

the effective date of this rulemaking, owners or operators subject 

to the Federal Operating Permit Program that modify any NSR 

authorized sources at their sites are subject to the amended requirements of §116.12 and §116.150 . 

PUBLIC COMMENT 

The commission conducted a public hearing in Austin on March 

17, 2005. Four comments were received during the public comment period, which closed on March 28, 2005. Comments were 

received from : Sierra Club, Houston Regional Group (HSC); 

Baker Botts L.L.P on behalf of Texas Industry Project (TIP); EPA; 

and Clark, Thomas, and Winters on behalf of Enbridge Gathering LP, Acacia Natural Gas Corporation, a subsidiary of Devon 

Energy Corporation, and Energy Transfer Company (CTW). HSC 

opposed the proposal, while TIP, CTW, and EPA generally supported the proposal with comments. 

TIP commented that the commission proposed two unnecessary 

word changes in §116.112(10) and (11)(B) where the term "shall 

not" was changed to "may not." TIP stated that Texas Government Code, §311 .016(5) makes clear that the terms are synonymous and commented that the term should not be changed to 

eliminate potential confusion. 

The commission reviewed the use of the terms "shall not" and 

"may not" and their use according to the Texas Legislative Council Drafting Manual and will leave the term "shall not" unchanged. 

HSC stated that the 40 tpy netting trigger will allow greater health, 

mortality, safety, and environmental effects in the nonattainment 

area and suggested that the commission reject the standard . 

The commission acknowledges that a 40 tpy netting trigger will 

allow more projects to be authorized without a netting analysis, but the commission disagrees that this will result in adverse 

health effects. Like the one-hour ozone standard, the eight-hour 

standard is health based, and the 40 tpy trigger is based on the 

eight- hour standard . The 40 tpy trigger has been the netting trigger for Moderate areas since the FCAA amendments of 1990. 

The commission has not changed the rule in response to this 

comment. 

TIP commented on a paragraph in the preamble concerning the 

ability to credit reductions under the HGB NO, MECT, which 

states that "the commission will allow the redutions required 

by the HGB NO. mass emission cap and trade program (MECT) 

in 30 TAC Chpter 101, Subchapter H, to be creditable for 

netting purposes." TIP expressed the belief that this statement 

incorrectly suggests that the proposals in Chapter 116 affect the 

ability to credit reductions under the MECT 

The rule does not affect the ability of a site to generate excess 

allowances under the MECT by reducing emissions. The statement identified by the commenter clarifies that reductions made 

under the MECT to comply with a site's allocation will be considered surplus for netting purposes. 

CTW commented that the commission should make an independent determination of a return to a one-hour ozone standard 

should EPA make that decision . CTW stated that the commission should apply the one-hour standard only to the four counties 

originally in the DFW nonattainment area. 

ADOPTED RULES June 10, 2005 30 TexReg 3425 
Texas would be unable to make an independent determination 

since the designation and classification of areas is based on a 

national air standard and is determined at the federal level. The 

commission has not changed the rule in response to this comment. 

EPA requested that the commission provide rationale for how 

a five-year contemporaneous period will affect the strategy to 

attain and maintain an eight-hour ozone standard and whether 

a five tpy netting trigger combined with that period will provide 

sufficient reductions. 

A five-year contemporaneous period is the same as required for 

Moderate and Marginal areas under federal rules and is more 

consistent with the baseline used in SIP modeling demonstrations. The tagged netting window for sources with emissions 

greater than 250 tpy required that emissions increases and decreases made well before the SIP baseline year be considered 

in whether a project would be subject to nonattainment review. 

Given that fewer than 20 nonattainment permits were issued in 

Texas prior to 2001, it is likely that including emission increases 

and decreases prior to that date in netting exercises would result 

in a lower net emissions increase at most sites. 

The five tpy netting trigger will only come into play if a nonattainment area should become subject to the requirements associated with a Serious or Severe nonattainment designation. 

It was accepted by EPA as equivalent to the federal standard 

provided that sources with a potential to emit greater than 250 

tpy maintained a contemporaneous period back to 1992 to ensure that any small emission increases were included in the contemporaneous period . The federal applicability analysis (netting) 

associated with the issued nonattainment permits in Texas was 

reviewed prior to these rules being proposed to determine if including this additional period would have resulted in any of those 

projects being subject to nonattainment review. The commission 

was unable to identify any cases where nonattainment review 

would not have been required with a five-year contemporaneous 

period . Based on this experience, a five-year contemporaneous period with a five tpy netting trigger would be equivalent to 

the commission's current rules for Serious and Severe nonattainment areas. 

The commission established cap and trade programs in the HGB 

nonattainment area for NO, and highly reactive volatile organic 

compounds, as defined in 30 TAC §115.10. These programs 

will ensure that emissions in that area will be consistent with 

what is necessary for the SIP, regardless of what construction or 

modifications take place under NSR. Finally, the commission will 

ensure that the SIP demonstration has the appropriate growth 

factor. 

EPA requested that the commission clarify whether it interprets 

its SIP to make nonattainment NSR requirements applicable to 

areas that may be designated nonattainment in the future . EPA 

requested clarification of the timing of applicability of prevention of significant deterioration and NNSR requirements for previously designated and newly designated nonattainment areas 

prior to the effective dates of both the eight-hour ozone designations and withdrawal of the one-hour ozone standard . Specifically, EPA requested clarification that NNSR requirements apply to final permits issued after June 15, 2004, in areas designated as nonattainment of the eight-hour as well as the one-hour 

ozone standard and that the date of permit issuance, not administrative completeness, determines applicability of NSR requirements. EPA asked whether the commission will interpret its SIP 

to require areas that may be designated as nonattainment in the 

future be subject to federal regulations at 40 CFR Part 51, Appendix S until the SIP is revised to include the area or will the 

NSR requirements become automatically applicable upon the effective date of the designation. 

The commission has historically interpreted its SIP approved 

rules to use the administratively complete date to determine 

which rules apply to a particular permit . Permit applications that 

were administratively complete before this rulemaking adoption 

are processed under those rules, which are part of Texas' 

approved SIP Adopted §116.150(a) continues the commission's 

policy to apply the rules based on when permit applications 

are administratively complete, and specifically provides that the 

rule applies to all NSR authorizations that are administratively 

complete after June 15, 2004. EPA rules do not provide a clear 

answer on when a new designation applies to pending permit 

applications . EPA has addressed areas in transition through 

40 CFR Part 51, Appendix S, and policy memos, but EPA 

acknowledges that areas that have a SIP approved program in 

place for newly designated areas are not subject to Appendix 

S. Therefore, the commission will continue to follow the rules in 

its SIP 

EPA also requested that the commission clarify that requirements for the one-hour standard remain applicable until June 

15, 2005, and that NSR applications are reviewed for one-hour 

applicability. 

The commission will apply the requirements for compliance with 

the one-hour standard for permits that were administratively 

complete on or before June 15, 2004, and will not require a 

separate review under the eight-hour ozone standard for those 

permits. The commission agrees that the requirements for the 

one-hour standard remain applicable until June 15, 2005. 

EPA commented that the commission's definition of nonattainment area in §101 .1(67) and §116.12(11) are generic, but that 

§101 .1(67) also lists specific counties in each nonattainment 

area under both ozone NAAQS. 

The federal citations are included in the definition of nonattainment area in §101 .1(67), and as referenced in the definition of 

major modification in §116.12(11), Table I, Footnote 1 . In a concurrent rulemaking, the commission is updating the definition of 

nonattainment area in §101 .1(67) . 

EPA also noted that the preamble refers to an effective date of 

the eight-hour standard of June 15, 2005, and requested a correction to June 15, 2004. 

The commission has corrected the effective date of the eighthour standard . 

EPA requested that the commission clarify that any reduction underthe MECT will only occur at the source at which the proposed 

increase will occur. EPA also requested clarification of an apparent conflict of the preamble statement, which states that reductions under the MECT can be used for netting purposes with 

§101 .352(d), which states that allowances cannot be used for 

netting requirements under Chapter 116. 

Reductions occurring under the MECT that may simultaneously 

be used for netting must occur at the same site where the proposed emissions increase will occur. The preamble statement 

prohibiting allowances from being used for netting requirements 

addresses the ability for a site with a proposed emissions increase to purchase excess allowances from another site to use 

in netting . The preamble has been revised to clarify that emission reductions shown in netting must occur at the same NNSR 

30 TexReg 3426 June 10, 2005 Texas Register 
source . Emission reductions used in netting must occur at that 

source and cannot be transferred to a different source for use in 

netting. Emission reductions used to generate and sold as emission reduction credits are not creditable for netting. 

SUBCHAPTER A. DEFINITIONS 

30TAC§116.12 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §5.103, concerning 

Rules, and §5.105, concerning General Policy, which authorize 

the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; and under THSC, §382.017, 

concerning Rules, which authorizes the commission to adopt 

rules consistent with the policy and purposes of the Texas 

Clean Air Act. The amendment is also adopted under THSC, 

§382.002, concerning Policy and Purpose, which establishes 

the commission's purpose to safeguard the state air resources, 

consistent with the protection of public health, general welfare, 

and physical property ; §382.011, concerning General Powers 

and Duties, which authorizes the commission to control the 

quality of the state air; §382.012, concerning State Air Control 

Plan, which authorizes the commission to prepare and develop 

a general, comprehensive plan for the control of the state air; 

§382.051, concerning Permitting Authority of Commission; 

Rules, which authorizes the commission to issue permits and 

adopt rules necessary for permits issued under THSC, Chapter 

382; and §382.0518, concerning Preconstruction Permit, which 

requires that a permit be obtained from the commission prior to 

new construction or modification of an existing facility. 

The adopted amendment implements THSC, §§382.002, 

382.011, 382.012, 382.051, and 382.0518. 

§116.12. Nonattainment Review Definitions . 

Unless specifically defined in the Texas Clean Air Act (TCAA) or in 

the rules of the commission, the terms used by the commission have 

the meanings commonly ascribed to them in the field of air pollution 

control . The terms in this section are applicable to permit review for 

major source construction and major source modification in nonattainment areas. In addition to the terms that are defined by the TCAA, and 

in § 101 .1 of this title (relating to Definitions), the following words and 

terms, when used in §116.150 and §116.151 of this title (relating to 

Nonattainment Review), have the following meanings, unless the context clearly indicates otherwise . 

(1) Actual emissions--Actual emissions as of a particular 

date are equal to the average rate, in tons per year, at which the unit 

actually emitted the pollutant during a two-year period that precedes 

the particular date and that is representative of normal source operation . 

The executive director shall allow the use of a different time period 

upon a determination that it is more representative of normal source 

operation . Actual emissions shall be calculated using the unit's actual 

operating hours, production rates, and types of materials processed, 

stored, or combusted during the selected time period. The executive 

director may presume that the source-specific allowable emissions for 

the unit are equivalent to the actual emissions, e.g ., when the allowable 

limit is reflective of actual emissions . For any emissions unit that has 

not begun normal operations on the particular date, actual emissions 

shall equal the potential to emit of the unit on that date. 

(2) Allowable emissions--The emissions rate of a stationary source, calculated using the maximum rated capacity of the source 

(unless the source is subject to federally enforceable limits that restrict 

the operating rate, or hours of operation, or both), and the most stringent of the following : 

(A) the applicable standards specified in 40 Code of 

Federal Regulations, Part 60 or 61 ; 

(B) the applicable state implementation plan emissions 

limitation including those with a future compliance date ; or 

(C) the emissions rate specified as a federally enforceable permit condition including those with a future compliance date. 

(3) Begin actual construction--In general, initiation of 

physical on-site construction activities on an emissions unit that are 

of a permanent nature. Such activities include, but are not limited to, 

installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures . 

With respect to a change in method of operation, this term refers to 

those on-site activities other than preparatory activities that mark the 

initiation of the change. 

(4) Building, structure, facility, or installation--All of the 

pollutant-emitting activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and 

are under the control of the same person (or persons under common 

control) . Pollutant-emitting activities are considered to be part of the 

same industrial grouping if they belong to the same "major group" (i .e ., 

that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement. 

(5) Commence--As applied to construction of a major stationary source or major modification, means that the owner or operator 

has all necessary preconstruction approvals or permits and either has: 

(A) begun, or caused to begin, a continuous program 

of actual on-site construction of the source, to be completed within a 

reasonable time ; or 

(B) entered into binding agreements or contractual 

obligations, which cannot be canceled or modified without substantial 

loss to the owner or operator, to undertake a program of actual 

construction of the source to be completed within a reasonable time. 

(6) Construction--Any physical change or change in the 

method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a 

change in actual emissions. 

(7) Contemporaneous period--For major sources the period between: 

occurs ; and 

(A) the date that the increase from the particular change 

(B) 60 months prior to the date that construction on the 

particular change commences. 

(8) De minimis threshold test (netting)--A method of determining if a proposed emission increase will trigger nonattainment 

review. The summation of the proposed increase in tons per year with 

all other creditable source emission increases and decreases during the 

contemporaneous period is compared to the MAJOR MODIFICATION 

column of Table I located in the definition of major modification in this 

section for that specific nonattainment area . If the major modification 

level is exceeded, then nonattainment review is required . 

(9) Lowest achievable emission rate--For any emitting facility, that rate of emissions of a contaminant that does not exceed the 

amount allowable under applicable new source performance standards 

promulgated by the United States Environmental Protection Agency 

under 42 United States Code, §7411, and that reflects the following: 

ADOPTED RULES June 10, 2005 30 TexReg 3427 
(A) the most stringent emission limitation that is contained in the rules and regulations of any approved state implementation plan for a specific class or category of facility, unless the owner or 

operator of the proposed facility demonstrates that such limitations are 

not achievable ; or 

(B) the most stringent emission limitation that is 

achieved in practice by a specific class or category of facilities, 

whichever is more stringent . 

(10) Major facility/stationary source--Any facility/stationary source that emits, or has the potential to emit, the amount specified 

in the MAJOR SOURCE column of Table I located in the definition 

of major modification in this section or more of any air contaminant 

(including volatile organic compounds (VOCs)) for which a national 

ambient air quality standard has been issued . Any physical change that 

would occur at a stationary source not qualifying as a major stationary source in Table I of this section, if the change would constitute a 

major stationary source by itself. A major stationary source that is major for VOCs or nitrogen oxides is considered to be major for ozone. 

The fugitive emissions of a stationary source shall not be included in 

determining for any of the purposes of this definition whether it is a 

major stationary source, unless the source belongs to one of the categories of stationary sources listed in 40 Code of Federal Regulations 

§51 .165(a)(1)(iv)(C). 

(11) Major modification--As follows . 

(A) Any physical change in, or change in the method 

of operation of a facility/stationary source that causes a significant net 

emissions increase for any air contaminant for which a national ambient 

air quality standard (NAAQS) has been issued . At a facility/stationary 

source that is not major prior to the increase, the increase by itself must 

equal or exceed that specified in the MAJOR SOURCE column of Table I of this section. At an existing major facility/stationary source, the 

increase must equal or exceed that specified in the MAJOR MODIFICATION column of Table I . 

Figure : 30 TAC §116.12(11)(A) 

(B) A physical change or change in the method of operation shall not include : 

(i) routine maintenance, repair, and replacement; 

(ii) use of an alternative fuel or raw material by reason of an order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by 

reason of a natural gas curtailment plan under the Federal Power Act; 

(ili) use of an alternative fuel by reason of an order 

or rule of 42 United States Code, §7425; 

(iv) use of an altemative fuel at a steam generating 

unit to the extent that the fuel is generated from municipal solid waste ; 

(v) use of an alternative fuel or raw material by a 

stationary source that the source was capable of accommodating before 

December 21, 1976 (unless such change would be prohibited under any 

federally enforceable permit condition established after December 21, 

1976) or the source is approved to use under any permit issued under 

regulations approved under this chapter; 

(vi) an increase in the hours of operation or in the 

production rate (unless the change is prohibited under any federally 

enforceable permit condition that was established after December 21, 

1976); or 

(vii) any change in ownership at a stationary source . 

(12) Necessary preconstruction approvals or permits--Those permits or approvals required under federal air quality 

control laws and regulations and those air quality control laws and 

regulations that are part of the applicable state implementation plan. 

(13) Net emissions increase--The amount by which the 

sum of the following exceeds zero : the total increase in actual emissions from a particular physical change or change in the method of operation at a stationary source, plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases . 

(A) An increase or decrease in actual emissions is creditable only if both of the following conditions are met: 

and 

(i) it occurs during the contemporaneous period ; 

(ii) the executive director has not relied on it in issuing a nonattainment permit for the source (under regulations approved 

during which the permit is in effect) when the increase in actual emissions from the particular change occurs . 

(B) An increase in actual emissions is creditable only 

to the extent that the new level of actual emissions exceeds the old level. 

(C) A decrease in actual emissions is creditable only to 

the extent that all of the following conditions are met: 

(i) the old level of actual emissions or the old level 

of allowable emissions, whichever is lower, exceeds the new level of 

actual emissions ; 

(ii) it is federally enforceable at and after the time 

that actual construction on the particular change begins ; 

(iii) the reviewing authority has not relied on it in 

issuing a prevention of significant deterioration or a nonattainment permit, or the state has not relied on the decrease to demonstrate attainment 

or reasonable further progress; and 

(iv) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the 

increase from the particular change. 

(D) An increase that results from a physical change at a 

source occurs when the emissions unit on which construction occurred 

becomes operational and begins to emit a particular pollutant. Any 

replacement unit that requires shakedown becomes operational only 

after a reasonable shakedown period, not to exceed 180 days. 

(14) Offset ratio--For the purpose of satisfying the 

emissions offset reduction requirements of 42 United States Code, 

§7503(a)(1)(A), the emissions offset ratio is the ratio of total actual 

reductions of emissions to total allowable emissions increases of such 

pollutants . The minimum offset ratios are included in Table I under 

the definition of major modification of this section. In order for a 

reduction to qualify as an offset, it must be certified as an emission 

credit under Chapter 101, Subchapter H, Division 1 or 4 of this title 

(relating to Emission Credit Banking or Trading ; or Discrete Emission 

Credit Banking and Trading), except as provided for in § 116.170(b) 

of this title (relating to Applicability of Emission Reductions as 

Offsets). The reduction must not have been relied on in the issuance 

of a previous nonattainment or prevention of significant deterioration 

permit. 

(15) Potential to emit--The maximum capacity of a facility/stationary source to emit a pollutant under its physical and operational design . Any physical or enforceable operational limitation on the 

capacity of the facility/stationary source to emit a pollutant, including 

air pollution control equipment and restrictions on hours of operation 

or on the type or amount of material combusted, stored, or processed, 

may be treated as part of its design only if the limitation or the effect 

30 TexReg 3428 June 10, 2005 Texas Register 
it would have on emissions is federally enforceable . Secondary emissions, as defined in 40 Code of Federal Regulations §51.165(a)(1)(viii), 

do not count in determining the potential to emit for a stationary source . 

(16) Project net--The sum of the following : the total proposed increase in emissions resulting from a physical change or change 

in the method of operation at a stationary source, minus any sourcewide 

creditable actual emission decreases proposed at the source between 

the date of application for the modification and the date the resultant 

modification begins emitting . Increases and decreases must meet the 

creditability criteria listed under the definition of net emissions increase 

in this section. 

(17) Secondary emissions--Emissions that would occur as 

a result of the construction or operation of a major stationary source 

or major modification, but do not come from the source or modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same general area as the stationary source or 

modification that causes the secondary emissions . Secondary emissions include emissions from any off-site support facility that would 

not be constructed or increase its emissions, except as a result of the 

construction or operation of the major stationary source or major modification . Secondary emissions do not include any emissions that come 

directly from a mobile source such as emissions from the tail pipe of a 

motor vehicle, from a train, or from a vessel . 

(18) Stationary source--Any building, structure, facility, or 

installation that emits or may emit any air pollutant subject to regulation 

under 42 United States Code, §§7401 et seq. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on May 26, 2005. 

TRD-200502134 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date : June 15, 2005 

Proposal publication date : February 25, 2005 

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

SUBCHAPTER B. NEW SOURCE REVIEW 

PERMITS 

DIVISION 5 . NONATTAINMENT REVIEW 

30 TAC §116.150 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §5.103, concerning 

Rules, and §5.105, concerning General Policy, which authorize 

the commission to adopt rules necessary to carry out its 

powers and duties under the TWC; and under THSC, §382.017, 

concerning Rules, which authorizes the commission to adopt 

rules consistent with the policy and purposes of the Texas 

Clean Air Act. The amendment is also adopted under THSC, 

§382.002, concerning Policy and Purpose, which establishes 

the commission's purpose to safeguard the state air resources, 

consistent with the protection of public health, general welfare, 

and physical property ; §382.011, concerning General Powers 

and Duties, which authorizes the commission to control the 

quality of the state air ; §382.012, concerning State Air Control 

Plan, which authorizes the commission to prepare and develop 

a general, comprehensive plan for the control of the state air; 

§382 .051, concerning Permitting Authority of Commission; 

Rules, which authorizes the commission to issue permits and 

adopt rules necessary for permits issued under THSC, Chapter 

382 ; and §382.0518, concerning Preconstruction Permit, which 

requires that a permit be obtained from the commission prior to 

new construction or modification of an existing facility. 

The adopted amendment implements THSC, §§382.002, 

382.011, 382.012, 382.051, 382.0518. 

,;;116.150. NewMajor Source orMajorModification inOzone Nonattainment Areas. 

(a) This section applies to all new source review authorizations that are administratively complete after June 15, 2004, for new 

construction or modification of facilities located in any area designated 

as nonattainment for ozone in accordance with 42 United States Code 

(USC), §7407. 

(b) The owner or operator of a proposed new or modified facility that will be a new major stationary source of volatile organic 

compound (VOC) emissions or nitrogen oxides (NO) emissions, or 

the owner or operator of an existing major stationary source of VOC or 

NO emissions that will undergo a major modification with respect to 

VOC or NO., shall meet the requirements of subsection (e)(1) - (4) of 

this section, except as provided in subsection (f) of this section. Table 

I located in the definition of major modifications in § 116.12 of this title (relating to Nonattainment Review Definitions) specifies the various 

classifications of nonattainment along with the associated emission levels that designate a major stationary source or major modification for 

those classifications . 

(c) Except as noted in subsection (f) of this section regarding 

NO,, the de minimis threshold test (netting) is required for all modifications to existing major sources of VOC or NO,, unless at least one of 

the following conditions are met: 

(1) the proposed emissions increases associated with a 

project, without regard to decreases, is less than five tons per year 

(tpy) of the individual nonattainment pollutant in areas classified 

under Federal Clean Air Act (FCAA), Title I, Part D, Subpart 2 (42 

USC §7511) classified as Serious or Severe; 

(2) the proposed emissions increases associated with 

a project, without regard to decreases, is less than 40 tpy of the 

individual nonattainment pollutant in areas classified under FCAA, 

Title 1, Part D, Subpart 1 (42 USC §7502) and for those under FCAA, 

Title I, Part D, Subpart 2 (42 USC §7511) classified as Marginal or 

Moderate; or 

(3) the project emissions increases coupled with project 

actual emissions decreases for the same pollutant, summed as the 

project net, are less than or equal to zero tpy. 

(d) For the Houston-Galveston-Brazoria, Dallas-Fort Worth, 

and Beaumont-Port Arthur eight- hour ozone nonattainment areas, if 

the United States Environmental Protection Agency promulgates rules 

requiring new source review permit applications in these areas to be 

evaluated for nonattainment new source review according to that area's 

one-hour standard classification, except as noted in subsection (b) of 

this section regarding NO., the de minimis threshold test (netting) is 

required for all modifications to existing major sources of VOC or NO, 

in that area, unless at least one of the following conditions is met: 

(1) the proposed emissions increases associated with 

a project, without regard to decreases, is less than five tpy of the 

individual nonattainment pollutant; or 

ADOPTED RULES June 10, 2005 30 TexReg 3429 
(2) the project emissions increases coupled with project 

actual emissions decreases for the same pollutant, summed as the 

project net, are less than or equal to zero tpy. 

(e) In applying the de minimis threshold test, if the net 

emissions increases, aggregated over the contemporaneous period, are 

greater than the major modification levels stated in Table I located in 

the definition of major modification in §116.12 of this title, then the 

following requirements apply. 

(1) The proposed facility shall comply with the lowest 

achievable emission rate (LAER) as defined in §116.12 of this title 

for the nonattainment pollutants for which the facility is a new 

major source or major modification except as provided in paragraph 

(3)(B) of this subsection and except for existing major stationary 

sources that have a potential to emit (PTE) of less than 100 tpy of the 

applicable nonattainment pollutant . For these sources, best available 

control technology (BACT) can be substituted for LAER. LAER shall 

otherwise be applied to each new emission unit and to each existing 

emission unit at which the net emissions increase will occur as a result 

of a physical change or change in method of operation of the unit. 

(2) All major stationary sources owned or operated by the 

applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state must be in compliance or 

on a schedule for compliance with all applicable state and federal emission limitations and standards . 

(3) At the time the new or modified facility or facilities 

commence operation, the emissions increases from the new or modified 

facility or facilities must be offset. The proposed facility shall use the 

offset ratio for the appropriate nonattainment classification as defined 

in § 116.12 of this title and shown in Table I of § 116.12 of this title . 

Internal offsets that are generated at the source and that otherwise meet 

all creditability criteria can be applied as follows . 

(A) Major stationary sources with a PTE of less than 

100 tpy of an applicable nonattainment pollutant are not required to undergo nonattainment new source review under this section, if the project 

increases are offset with internal offsets at a ratio of at least 1 .3 to 1 . 

(B) Major stationary sources with a PTE of greater than 

or equal to 100 tpy of an applicable nonattainment pollutant can substitute BACT for LAER, if the project increases are offset with internal 

offsets at a ratio of at least 1 .3 to 1 . Internal offsets used in this manner 

can also be applied to satisfy the offset requirement . 

(4) In accordance with the FCAA, the permit application 

must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source . The analysis 

must demonstrate that the benefits of the proposed location and source 

configuration significantly outweigh the environmental and social costs 

of that location . 

(f) For sources located in the El Paso ozone nonattainment 

area as defined in § 101 .1 of this title (relating to Definitions), the requirements of this section do not apply to NO, emissions. 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on May 26, 2005. 

TRD-200502135 

Stephanie Bergeron Perdue 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date : June 15, 2005 

Proposal publication date : February 25, 2005 

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

TITLE 37. PUBLIC SA 

TIONS 

PART 1 . TEXAS DE 

PUBLIC SAFETY 

CHAPTER 4. COMMER 

REGULATIONS AND EN 

PROCEDURES 

SUBCHAPTER C. COM 

REGISTRATION AND 

ENFORCEMENT 

37 TAC §4.36 

The Texas Department of Public 

§4.36, concerning Commercial 

spection Program, without chan 

lished in the March 18, 2005, i 

TexReg 1593). 

Amendments to the section are 

inaccuracy listed in subsection 

The amendments are adopted 

Code, §411 .004(3), which autho 

sion to adopt rules considered 

department's work; and Texas 

which authorizes the department 

enforce the compulsory inspecti 

This agency hereby certifies that 

by legal counsel and found to be 

legal authority. 

IAL VEHICLE 

ORCEMENT 

afety adopts amendments to 

otor Vehicle Compulsory Ins to the proposed text as pubsue of the Texas Register (30 

ursuant to Texas Government 

izes the Public Safety Commisecessary for carrying out the 

ansportation Code, §548.002, 

o adopt rules to administer and 

n of vehicles . 

e adoption has been reviewed 

valid exercise of the agency's 

ary of State on May 24, 2005. 

TRD-200502077 

Thomas A. Davis, Jr. 

Director 

Texas Department of Public Safety 

Effective date : June 13, 2005 

Proposal publication date : March 18 

For further information, please call : ( 

CHAPTER 21 . EQUIP 

STANDARDS 

37 TAC §Zi.i 

" 

30 TexReg 3430 June 10, 2005 Texas Register