Kathleen Hartnett White, Chairman

R, B . "Ralph" Marquez, Commissioner Larry R . Soward, Commissioner Glenn Shankle, ExecutiveDirector



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by ReducingandPreventing 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 May25, 2005, theTexas Commission onEnvirorunental Quality (Commission) adopted revisions to theState Implementation Plan (SIP) . The Commission adopted these amendments in 30Texas Administration Code Chapter 101, General Air Quality Rules; Chapter 116, Control of Air Pollution by Permits for NewConstruction .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 ofcontemporaneous 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, toupdate cross-references, andtobe consistent with otherCommissionrules 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 ly,

. 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 ama records administrator for the Texas Commission on Environmental Quality.

Kevin McCalla Records Administrator Texas Commission on Environmental Qualityi 

### pt'y -'"%'

Texas Commission on Environmental Quality

Public Hearing March 17, 2005 Concerning Revisions to 30TAC Chapter 101, General Air Quality Rules and 30 TACChapter 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 reviewnetting 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 ofthe 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

### PUBLICNOTIFICATION

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 (30TexReg 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 ofAviation 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 NewMexico Air Quality Bureau North Central Texas Council ofGovernments Oklahoma Department of Environmental Quality South East Texas Regional Planning Commission Texas Department ofTransportation Texas Transportation Institute United States Environmental Protection Agency Victoria Metropolitan Planning Organization

# EXAMPLE OF NEWSPAPERCLASSIFI EDAD AustinAmerican Statesman February 11, 2005

F1Z Friday, February 11 : Iiz,tn_u, . ., . ~ NOTICE OF PUBLICHEARINGBY THETEXASCOMMISSIONON ENVIRONMENTALQUALfrYON PROPOSEDREVISIONST030 TAC CHAPTERS 101 AND

116 AND TO THESTATE IMPLEMENTATIONPLAN The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony reg ardln g proposed revistons to 30 TAC

. Chapter 101, General AirQuality Rules ; 30 TACChapter 116, ControlofAir Pollution by Permits for NewConstruction 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 concerningSIPs

. The proposed ruiemakin g 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 reviewnetring triggers and pedods to be consistent with federal rules for areas classified under 'the eight-hourozonestandard. Apubllchearing 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 persons

. Registration will begin30minutespriortothe 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 enoughtime isallowed 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.andafterthehearing. Persons planning to attend the hearing who have special communication or other accommodation needs,should contactthe Office of Environmental Policy, Analysis,andAssessmentat (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 p

roposed rules can be obtained fromthe 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 bereceived by 5 :00p .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 February9, 2005

. .LaDonna Castanuela

Chief Clerk Texas Commission on Environmental Quality Filed: February 16, 2005 :~ Notice of Public Hearing on Proposed Revisions to 30TAC Chapters 101 and 116and the StateImplementation 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 NewConstruction 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 ofFederal Regulations §51 .102, of the United States Environmental Protection Agency regulations concerning SIPs. The proposed rulemaking would amend the definition ofnonattainment area in § 101 .1 to be consistentwith current federal classifications under the eight-hour ozone standard. The proposed amendments to §116.12 and §116.150 would change new source reviewnetting triggers and periods to be consistent with federal rules for areas classified under the eight-hour ozone standard. Apublic hearing on this proposal will be held in Austin on March 17, 2005, at 10

:00a.m . at the Texas Commission on Environmental Quality in Building F, Room2210, located at 12100 Park 35 Circle. The hearingwill be structured for the receipt oforal 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 ofregistration. Atime limit may be established at the hearing to assure that enough time is allowed for every interested person to speak. Therewill be noopen discussion during the hearing; however, commission staffmembers will be available todiscuss the proposal 30minutes before the hearing andwill answerquestions 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 ofEnvironmental 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, orBeecher 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 QualityApplic ' ions The following notices were issued~uring the period of February 9, 2005 through February 14, 2005. The followingrequire 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 WITHIN30DAYS OF THE DATE OF OF THIS NOTICE. ALTOFRIOBAPTIST ENCAMPMEN Permit No. 11683-001, which authorizes tic wastewaterat a volume nottoexceed gallons per day via irrigation of 2.0 acre willnot authorize a discharge ofpollutan facility and disposal site are located appr of Ranch Road 1120 fromits 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 dayvia evaporation. This p charge ofpollutants into waters in the St site are located on the east side ofFarm-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 toexceed 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 inTravis County, Texas. blish notice in the newspaper. public meetings, or requests tiedtothe Office ofthe Chief

, Austin Texas 78711-3087, WSPAPERPUBLICATION has applied for a renewal of he disposal oftreated domesdaily average flow

of20,000 ofpasture land. This permit s intowaters in the State. The ximately 1 .5 miles southeast rsection with U.S. Highway fthe City of Leakey in Real plied for a renewal of Pere disposal of treated domesdaily average flowof3,600 it will not authorize a diste. The facility and disposal -Market Road 1781 at a point ersection ofFann-to-Market ransas County, Texas. TILITY has applied for a rewhich authorizes the disan annual average flownot 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 FRESHWATE SUPPLY DISTRICT NO . 1 has applied for a renewal ofTPDES Pe kit No. 11130-001, which authorizes the discharge oftreated domestic wastewater at a daily average flow not to exceed 140,000 gallons per the east side ofState Highway 36, appro of the intersection of Farm-to-Market R 36, northeast ofthe City ofDamon 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 stormwater 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 maximumflownot 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,100feet 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 stormwater 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 flownot to exc ewal of TPDES Permit No. e oftreated domestic wasteed 300,000 gallons per day. 

### 30 TexReg 1184 February 25, 2005 Texas Registerhas been granted primary accreditati authority. ,¢25.6 . Conditions Under Whichth 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 ifthe laborat cal data provided by an environer under the commission'sjuristhorizations, 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 impements TWC, §5.127. ¢25 .9 . Standardsfor Environm tal Testing Lahoratory Accredita- tion. Accreditation must [shall] be bas on an environmental testing laboratory's conformance to National Environmental LaboratoryAccredi- tation Conference standards: Charters 3 4 and 5 adopted Jul 2002 and Chapters 1 2 and 6 adopted ne 2003 [appreved May2001-] and the requirements of this chapter. This agency hereby certifiesth theproposal hasbeen reviewed by legalcounselandfound to b~ within theagency's legalauthor- ity to adopt. (B) located in anothe cally inspectedby 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 herebycertifiesthatt by legalcounseland foundto bew ity to adopt. 2005. TRD-200500627 Stephanie Bergeron Perdue Director, Environmental LawDivision Texas Commission on Environmental Earliest possible date of adoption: M Forfurther information, please call : (5 

### SUBCHAPTER B. ENVI TESTING LABORATORY 30TAC§25

.9 STATUTORY AUTHORITY The amendment is proposed unde in TWC, §5.013, which establishe commission over other areas of re commission under the TWCand 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 apexnit,registratiert registratiex, of ether aatherfzathe eperater ofthe leberateFy] ;

era] law, including certification rotection Agency [EPA] to proting to compliance with the Safe

eproposal has been reviewed hinthe agency's legal authorthe general authority granted the generaljurisdiction 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 . GENERALAIRQUALITY RULES SUBCHAPTERA

. GENERAL RULES 30TAC §101.1 TheTexas Commission on Environmental Quality (commission) proposes an amendmentto §101 .1 . If adopted, the amendment will be submitted to the United States Environmental ProtectionAgency (EPA) as a revision to the state implementation plan (SIP) . BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FORTHE PROPOSED RULE After adoption ofthe Federal Clean AirAct (FCAA) Amendments of 1990, the EPA classified the designated four areas of Texas that failed to meetthe one-hour national ambient airquality standard (NAAQS) for the air contaminant ozone. Each area was classified by the EPAbased on the amount bywhich 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, EPAdesignated 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 

### PROPOSEDRULES February 25, 2005 30 TexReg 1009area 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 Antonioarea, consisting of Bexar, Coma[, and Guadalupe Counties, was alsodesignated 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 EACareas 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) . EPArevised the definition of VOCto say that TBACwill not be a VOCfor purposes of VOCemissions limitations or VOCcontent requirement, but will continue to be a VOCfor 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) . SECTIONDISCUSSION §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 thefederal 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 VOCfor emission limitation or content purposes but will be considered a VOCfor 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 CouncilDrafting 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 forthe agency or other units ofstate or local governments as a resultof administration or enforcementof the proposed rule. Theproposed rulemaking would changethedefinitionsof 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. EPAalso designated a new area under the eight-hour standard, San Antonio, as nonattainment underthe 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 ANDCOSTS Ms. Chamness also determined that for eachyear of thefirst 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 Antonioarea 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 EarlyAction Compact Program, its designation may never become effective. The commission expects cost increases



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

the limited industrialization of the newnonattainment counties. The change to the federal definition for VOC removed five compounds fromthe list because they were minimally reactive toward the formation of ozone. These compounds will also be removed fromthe 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 ANDMICRO-BUSINESS ASSESSMENT No adverse fiscal implications are anticipated for small or micro-businesses

. Small or micro-businesses are less likely tooperate activities generating major sources of emissions. If small ormicro-businesses doown oroperate 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 statementis 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 IMPACTANALYSIS 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 fromenvironmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, orthe public health and safety of the state or a sector of the state. The proposed amendment revises the definition of nonattainment area to reflect the new classifications underthe eight-hour standard forthe BPA, DFW, and HGBareas; 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 lawor 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 oftheTexas 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 regulatoryimpact analysis determinationduringthe public comment period. TAKINGS IMPACTASSESSMENT 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. CONSISTENCYWITH THE COASTAL MANAGEMENT PROGRAM The commission determined that this ruiemaking action relates to an action or actions subject to theTexas Coastal Management Program(CMP) in accordancewith 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 CMPAs required by §281 .45(a)(3) and 31 TAC §505.11(b)(2), relating toActions 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 consistencywith the CMPgoals and policies in accordance with the rules ofthe Coastal Coordination Council, and determined thatthe action is consistent with the applicable CMP goals and policies. The CMPgoal applicable tothis 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 tothis 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 CFRPart 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 ofthe proposed rulemaking with the CMP during the public comment period. EFFECT ON SITES SUBJECT TOTHE FEDERAL OPERATING PERMITS PROGRAM 

### PROPOSEDRULES February 25, 2005 30 TexReg 1011Section 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 tocertify compliancewith 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, atthe commission's central office located at 12100Park 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 andwill 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. STATUTORYAUTHORITY 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 CleanAir Act. The amendment is also proposed under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishesthe 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 StateAir Control Plan, which authorizes the commission to prepare and develop a general, comprehensive planfor 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 (TCA A) [-TC-1A] or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to themin 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 122ofthis 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 froma 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 fromother facilities owned or effectively controlled by the same person.

(13) - (14) (Nochange.) (15) Component--Apiece of equipment, including, but not limited to, pumps, valves, compressors, and pressure reliefvalves, that [which] has the potential to leak volatile organic compounds.

(16) - (21) (No change.) (22) Deminimis impact--Achange in ground level concentration of an air contaminant as a result of the operation of any new major stationary source or ofthe operation of any existing source that [which] has undergone a major modification, which does not exceed the following specified amounts. Figure: 30TAC §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 oftime the reduction is eligible for use.

(28) Emissions unit--Any part of a stationary source that [which] emits, orwould have the potential toemit, anypollutant 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 fromthe definition of volatile organic compound.

(30) External floating roof--Acover 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 40Code ofFederal 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 toapply coatings by means of a spray gun_that [which] operates between 0

.1 and 10

.0pounds per square inch gauge air pressure. (44) Incinerator--An enclosed combustion apparatus and attachments that [w}tieh] is used in the process ofburning wastes for the primary purpose ofreducing its volume and weight byremoving the combustibles ofthewaste 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 solidwaste and burning 1 .0% ormore ofsolidwaste 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 fromthe treatment of wastewater fromthe 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; [;] titaniumdioxide chloride process oxidation reactors; [;] methane reforming furnaces; [;] pulping recovery furnaces; [;] combustion devices used in the recovery of sulfur values fromspent sulfuric acid; [;] and other devices the commission may list.

(47) (No change.) (48) Internal floating cover--A cover or floating roofin 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 1990and 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) (Nochange.) (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 tothe floating roof. Aflexible 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 fromhealth care-relatedfacilities" andthosewaste materials commingled and discardedwith special waste fromhealth 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--Adefined 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 ofnonattainment areas, see40Code ofFederal 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 oneyear following the effective date of the designations fo the eight-hour NAAQS ofJune 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 Pasoone-hour ozone nonattainment area (56 FR56694)--Classified as a Serious ozonenonattainment area. Consists of El Paso County

. (iii) Beaumont/Port Arthur one-hour ozone nonattainment area (69 FR 16483) [(61- FR44496)]--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, andTarrant Counties.

(F) Ozone (eight-hour) . 

### PROPOSEDRULES February 25, 2005 30 Tea:Reg 1013(i) H_ouston/GalvestonBrazoria eight-hour ozone

n_ onattainment area (69 FR 23936)--Classified as a Moderate ozone nonattainment area. Consists of Brazoria,

_Chambers, Fort Bend, Galveston,_HarriszLi berty, 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 ofH ardin 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, Kaufm a_n Parker, Rockwall, and Tarrant Counties.

iv San Antonio eight-hour ozone nonattainment area (69 FR23936)--Classified under the Federal CleanAir 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. Nodesignated nonattainment

(68) - (69) (No change.) (70) Open-topvapor degreasing--Abatch 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 ofthe 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) (Nochange.) (73) Particulate matter emissions--All finely divided [-fneI-y-d-ivi-ded] solid or liquid material, other than uncombinedwater, emitted to the ambient air as measuredby 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 CFRPart 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 ofFederal Regulations (CFR) Part 50, AppendixJz 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 in40Code ofFederal Regulations Part 51, or bya 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 ofair contaminants into the atmosphere. Solid fuels charged intothe process will be considered as part ofthe 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 fromthe 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 ofthe 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-) (Nochange.) (-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 RQshall 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 RQshall 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 RQshall be 100pounds; (-p-) - (-q-) (No change.)

(ii) (No change.) (B) for mixtures ofair 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) ofthis 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 Registerrubber, 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 toexceed a reportable quantity (RQ), a scheduled maintenance, startup, or shutdown activity is an activity for which the owner or operator ofthe facility provides timely prior notice and a final report as required by § 101 .211 ofthis 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 fromthe activity do not exceed the emissions estimates submitted in the initial notification. For activities with unauthorizedemissions that [w#tic-h] are not expected to, and donot, 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) ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements) resulting fromscheduled maintenance, startup, or shutdown activities are those that provide prior notice (ifrequired), and are recorded and reported as requiredby § 101 .211 ofthis title.

(87) Site--For the purposes ofSubchapter F ofthis chapter, means [ehallmean] all regulated units, facilities, equipment, structures, or sources at one street address or locationthat are owned or operatedby the same person. Site includes any property identified in the permit or used in connection with the regulatedactivity at the same streetaddress or location.

(88) - (90) (No change.) (91) Sour crude--A crude oil _that [which] will emit a sour gas when in equilibriumat atmospheric pressure.

(92) - (93) (No change.) (94) Special waste fromhealth care-related [care related] facilities--A solid waste that [which] ifimproperly 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 ofthe Budget.

(97) Submerged fill pipe--A fill pipe that extends fromthe top ofa tank to have a maximum clearance ofsix inches (15.2centimeters) from

the bottom

or, when applied to a tank that [which] is loaded fromthe side, that has a discharge opening entirely submerged when the pipe used towithdraw liquid from

the tank canno 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 ofthe 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] canbe detected by the humaneye. Theradiant energy from an open flame is [shall] not [be] considered to be a visible emissionunder 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} nie

t; "" ~~ e c-hleride (diehleretnethane) ; perchlereet-hyleae (t$tr-aehlareethylene)-, triehler-afluerernethane (C-FE-14), diehleredifflueremethane (GFC--1-2)-, ehloredi-fluerenethane (1=1£FC-22} tri#l-uerernethane (IlFC--23)-, -1-,1;2-tFiehle-~ 1 .v-~-~ri fluereetha-ae(GFE-1-13) ; -1-,-2-diekleFe--~1, .,~-tetrauereethane (EFG-1-1~}-} eklerepent$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 F

f-: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-diehl e

r°-~ -~ , , -1,-' ,- pentafluereprepane (-'~~~'G'~neaT 1-,3-diehlere1 ,1,-~ '',-m-pent$fluer-epr.opane (HG

FC--223c

b); 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 (-HFG24-Sea} 1,-1 ,2,-?-~? rT-^= ..~4luereprepane (F1F-~~-'~4-~ ); -1;1;1-,2-,3-pent-aflueraprepane (-h1FG 243 eb)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-eh lere-l--fluereethane (1`I E FE-1 5 "°fi 7~\ 1,1 , 1 ,292,3,3,4,4 ~^nfl#l3in : :e~-.-.~o

utane; .> .. .. .1, 2-1`141 *>, . .1~1,1 1~T -~- aerstne" Il fi ~ ore e~-~ tafltleFepr,

e ~~ p ~ a ~4 ~11tule1 ~" 1`^° "" l1 223z n n n . .^r1afltlerebtltaRe ; 2-(-ethexyt2 oreM°v4i, .r1\ 1 ~~1a_L-3-3 l,

.~ on}Qfl~eFeY

prepSne ; methy

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

; ""metallic carbides or earbenates; ammoniumearberrate, and penfflaereeat:ben compoundswhis fall inte theseclasses:] 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 andwith 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 bewithin 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 Forfurther information, please call : (512) 239-0348



### PROPOSEDRULES 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 FORTHE PROPOSEDAMENDMENTS After adoption of the Federal CleanAirAct (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 EPAbased on the amount bywhich 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 arevolatile 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 meanthat the sourcewill 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, whichwill address many of the planning and control obligations under FCAA, §172 and §182that will apply for purposes of implementing the eight-hour ozone NAAQS. These rules include, among other things, newsource 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 SanAntonioarea, 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, oneyear following the effective date of the designations for the eight-hour NAAQS. One year after the effective date of the designations forthe eight-hour ozone standard is June 15, 2005. The new

EPA rules make no changes to the netting procedure or thresholds. The newdesignations and classifications allowthe 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 nowtoo long to be useful and would not bejustified for the sources in thefive new nonattainment counties in the DFW

area. Under the neweight-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 40tpy and all netting periods would befiveyears. Application ofthe 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 EPAgranted 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 Registerozone 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 EPAdecided to require states to return to a one-hour standard for federal NNSR determination. NO, Netting andMass 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 andwill 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 fromincreases 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 SECTIONDISCUSSION 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 correctionsto citations offederal and state law and to add USCreferences 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 ifthe EPArequires 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 ifthere is a major modification as well as the ratio of offsets required alongwith 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) fromthe 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 newlanguage to address the eight-hour netting procedures. Thecommission proposes to amend subsection (a) to apply major modification procedures to all NSR authorizations issued or claimed . Inaddition toaligning the datewith the effectivedate of the new designations, the commission is proposingthis addition because netting procedures applyto sources authorized under standard permit or permit by rule to demonstrate that modifications underthose authorizations are not major. Proposed new

subsection (b) contains language fromexisting 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 changedto read "subsection (e)(1) - (4) ofthis 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 newsubsection (c), which would contain language from existing subsection (a) that would be amended to contain a newnetting 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 newsubsection (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 sourcesand modifications classified as majorsourcesand modifications. Existing subsection (b), which exempts sources located in El Paso County fromthe 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 fromthe reduction in the number of netting exercises. 

### PROPOSEDRULES Februaiy 25, 2005 30 TexReg 1017Currently, 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 frombest available control technology (BACT) to LAER. The newdesignation 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 EarlyAction 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 NNSRdeterminations 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 associatedwith 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 newprojects or operational changes. The commission is unable to estimate savings for individual sources because ofthe inability to anticipatewhich 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 nocost savings would be realized. PUBLIC BENEFITS ANDCOSTS Ms . Chamness also determined that for each year of thefirst five years the proposed amendments are in effect, the public benefit anticipated fromthe 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 newprojects or operational changes. Sources in the El Pasoarea would realize a cost savings because it would no longer be subject to NNSR. The commission is unable toestimate savings for individual sources because of the inability to anticipatewhich sources will be subject tofuture modification. Major sources located in the counties added to the DFWnonattainment area and the San Antonio area could have significant costs if required to upgrade their emission control equipment fromBACT 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 becomeeffective. 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 BUSINESSANDMICRO-BUSINESSASSESSMENT 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 newDFWnonattainment 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 fromenvironmental 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 NNSRfor 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 Registerwill 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 lawor 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 regardingthe draft regulatory impact analysis determinationduring 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 forprojects 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 toan 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 30TAC 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 consistencywith 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 CMPpolicy applicable tothis rulemaking action is the policy that commission rules comply with federal regulations in 40 Code ofFederal 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. Thecommission solicits comments ontheconsistencyofthe proposed rulemaking with the CMPduring the public comment period. EFFECT ONSITES SUBJECTTOTHE FEDERAL OPERATING PERMITS PROGRAM Section 116.12and §116.150are applicable requirements under 30TACChapter 122, Federal Operating Permits Program . Upon the effective date ofthis rulemaking, owners or operators subject ' to the Federal Operating Permit Programthat 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 ofthe 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 PROPOSEDRULES February 25, 2005 30 TexReg 101930 TAC§116.12

STATUTORYAUTHORITY 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 CleanAir 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 StateAir 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 fromthe commission prior to newconstruction 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 themin 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 ofthis 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 peryear, at which the unit actually emitted the pollutant during atwo-yearperiod that [whieh] precedes the particular date and that [which] is representative of normal source operation. The executive director shall allowthe use of a differenttime periodupon a determination that it is more representative ofnormal 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 equivalenttothe actual emissions, e.g., when the allowable limit is reflective ofactual emissions. For any emissions unit that [which] has notbegun normal operations on theparticular date, actual ernissions shall equal the potential toemitoftheunit on that date.

(2) Allowable emissions--The emissions rate of a stationary source, calculated using the maximum rated capacity ofthe 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 ofthe 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 ofthe 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 ofan 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 ~50tpy 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 fromthe particular change occurs-1

{(E) Notwithstandingsubparagraphs W) and(B)efthis definition; for major sources ofn-itregen &x-ides as a precursor toozone in ozone rianattainment areas; the contemporaneous period shall begin noearlier 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 theproposed 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 ofTable 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 reviewis 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 newsource perfor- _m ance standards [NewSouree Per¬ ermanee Standards] promulgated by the United States Environmental Protect ion A e g ncy [EPA] under



### 30 TexReg 1020 February 25, 2005 Texas Register42 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 ormore ofany 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 constituteamajor stationarysource by itself . Amajor 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 definitionwhether it is a major stationary source, unless the source belongs to one ofthecategories ofstationary sources listed in 40Code of Federal Regulations §51 .165(a)(1)(iv)(C) .

(11) Major modification--Asfollows. (A) Any physical change in, or change in the method ofoperation 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 itselfmust equal or exceed that specified in the MAJOR SOURCE column ofTable 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 ofoperation may [shall] not include:

(i) - (if) (No change.) (iii) use of an alternative fuel by reason ofan order or rule of42 United States Code, §7425 [the FCAA~-1-~3] ;

(iv) (No change.) (v) use ofan alternative fuel or raw material bya 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 productionrate (unless the change is prohibited under any federally enforceablepermit condition that [whieh] was established afterDecember 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 ofthe 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 froma 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) Adecrease 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, orthe 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 fromthe particular change.

(D) (No change.) f(E) At major sourceswith the potentialtoemit 239tons per year or nnere ofa nenatta-inFnent pollutant:-]

{{e) i-rereases and deer-eases ofsuch pollutant result ing ft-ern sutherizatiens erapplieatiens reeeived befereNeve or -1-5-, -1992-, are ereditable to the e3aentdiet 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 efsuch pellutantresulting -fromaut-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 ofN9 are ereditable only iftheyresulted 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 minimumoffset ratios are included in Table I [ofthis 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) ofthis title (relating to Applicability ofEmission 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 maximumcapacity of a facility/stationary source to emit a pollutant under its physical and operational design. Any physical or enforceable operational limitationon the capacity of the facility/stationary source to emit a pollutant, including air pollution control equipment andrestrictions on hours ofoperation or on the type or amount ofmaterial combusted, stored, or processed, may [shal-1] be treated as part ofits design only ifthe limitation or the effect 

### PROPOSEDRULES Februaiy 25, 2005 30 TexReg 1021it would have on emissions is federally enforceable. Secondary emissions, as defined in 40 Code ofFederal Regulations §51 .165(a)(1)(viii), do not count in determining the potential toemit for a stationary source.

(16) Project net--The sumof the following: the total proposed increase in emissions resulting from aphysical change or change inthe method ofoperation ata stationary source, minus any sourcewide creditable actual emission decreasesproposed atthesource between the date ofapplication 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 fromthe 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 fromany off-site support facility that [-which] would not be constructed or increase its emissions, except as a result of the construction or operation ofthe major stationary source or major modification. Secondary emissions do not include any emissions that [which] come directly from a mobile source such as emissions fromthe tail pipe ofa motor vehicle, froma 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 herebycertifiesthat the proposal hasbeen reviewed by legalcounsel andfoundto bewithin the agency's legalauthority 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 Forfurther information, please call : (512) 239-0348 

### SUBCHAPTER B

. NEW

SOURCE REVIEW PERMITS DIVISION 5. NONATTAINMENT REVIEW 30TAC §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 tocontrol the quality of the state air; §382.012, concerning StateAir 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 fromthe 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 toall newsource review authorizations which are administratively complete afterJune 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 [theJ'~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 ofan existingmajor stationary source ofVOC or NO emissions that will undergo a major modification with respect toVOCor 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)] ofthis section. Table I of§ 116.12 ofthis 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 VOCor NO,, unless at least one ofthe 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 DSubpart 2 (12 USC, §7511) classified as Serious or Severe;

the proposed emissions increases associated 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( 2USC, . §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 projectactual 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/B razoria Dallas/Fort Worth, _and Beaumont/Port Arthur eight-hour ozone nonattainment areas, if the United States Environmental ProtectionAgency promulgates rules req_uiring newsource reviewpermit applications in these areas _to be evaluated for nonattainment new _source review

according tothat area's one-hour standard classification except as noted in subsection (b) _of this section re r_equired_for al] modifications foexisting major sources ofVOC or NO _in that area,unlessatleastone ofthefollowing conditions ismet : 

### 30TexReg 1022 February 25, 2005 Texas Registerthe proposed emissions increases associated with a

project, withoutregardtodecreases, is less than fivetpyofthe individual nonattainmentpollutant; or

(2) the project emissions increases coupled with project actual emissionsdecreasesfor the same pollutant, summedasthe project net, are lessthan or equaltozero 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 .12ofthistitle, 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 newmajor 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, bestavailablecontrol technology [Best Available Control Teeltneleg3~] (BACT) can be substituted for LAER . LAER shall otherwise be applied to each newemission 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 ofthe 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 newor modified facility or facilities commence operation, the emissions increases fromthe newor modified facility or facilities _must [shall] be offset. The proposed facility shall use the offset ratio for the appropriate nonattainment classification as defined in §116.12ofthis title and shown inTable I of§ 116.12 ofthis title. Internal offsets _that [whic-h] are generated atthesource and _that [whieh] otherwise meet all creditability criteria can be applied as follows. (A) Major stationary sources with a PTE of less than 1001py [tons per yea-r] ofan applicable nonattainment pollutant are not required to undergo nonattainmentnewsourcereview[Nonattaintnent NewSeuree Review] under this section, if the project increases are offset with internal offsets at a ratioof at least 1 .3 to 1 .

(B) Major stationary sources with a PTE of greaterthan or equal to 100tpy [tons per year] of an applicable nonattainment pollutant can substitute BACT for LAER, ifthe 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 ofthe 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 ofthis title (relatingto 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 bewithin 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 CHAPTER57. 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 viewprocess under the provisions of Government Code, §2 1 .039, which requires each state agency to performa 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: 30TAC §116.12(11)(A) TABLE I MAJORSOURCE/MAJORMODIFICATIONEMISSIONTHRESHOLDS POLLUTANT MAJORSOURCE MAJOR OFFSET RATIO designation' tons/year MODIFICATION' minimum tons/year OZONE (VOC, NOX)s.6 I marginaP 100 40 1 .10to 1 II moderate 100 40 1.15 to 1 III serious 50 25 1 .20to 1 IVsevere 25 25 1 .30to 1 

### CO I moderate 100 100 1 .00to 14 II serious 50 50 1 .00to 1° 

### S02 100 40 1 .00to 14 PMio I moderate 100 15 1 .00to 1° II serious 70 15 1 .00to 1° No x3 100 40 1 .00to 14 Lead 100 0 .6 1.00to 1" 

### ' Texas nonattainment area designations are specified in 40Code of Federal Regulations §81 .344. Z Themajormodification threshold is applicable only to existing major sources and shall beevaluated afternetting, unless theapplicant chooses to applynonattainment new source review(NNSR) directly totheproject. Tbe appropriate netting triggers for existing major sources ofNO .and VOCare specified in §116.150 ofthis title (relating to New Major Source or MajorModification in Ozone NonattainmentAreas) and forotherpollutants are equaltothe majormodification level listed in this table . 3VOCand NO, areprecursors to ozone formation and should be quantified individually to determine whether a source is subjectto NNSR under §116.150 ofthis title. As specified in §116 .150ofthis title, forEl Paso County, the NNSRrules apply to sources ofVOC, butnotto sources of NO . .



### TABLES AND GRAPHICS Febr-uary 25, 2005 30 TexReg 1161

### ° The offset ratio is specified to be greaterthan 1.00to 1 .

VOC=volatile organic compounds NO,, =oxides ofnitrogen 

### NOz =nitrogen dioxide CO=carbon monoxide SOZ =sulfur dioxide PM,,, =particulate matterwith an aerodynamic diameter less than or equal to tenmicrons 5Applies to the NAAQSfornitrogen dioxide (NO2)

. 6Forthe Houston/Galveston/Brazoria, Dallas/FortWorth, andBeaumont/Port Arthur eight-hour ozone nonattainment areas, if the United States Environmental ProtectionAgency promulgates rules requiring new

source reviewpermit applications in these areas to be evaluated for NNSRaccording 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 thethreshold fordetermining ifthere is a majormodification as well'as the ratio ofoffsets required along with any other applicable requirement that depends upon an area's nonattainment classification. ' Forareas designated as nonattainmentfor ozoneunderFederal Clean AirAct, Title1, 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 fordetermining ifthere is a major modificationas well as the ratio ofoffsets required alongwithany otherapplicable requirement that depends upon an area's nonattainment classification.



### 30 TexReg 1162 Februaty 25, 2005 Texas RegisterKathleen Hartnett White, Chairman

R . B . "Ralph" Marquez, Commissioner Larry R . Soward, Commissioner Glenn Shankle, ExecutiveDirector



## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing and PreventingPollution 

### NOTICE OF PUBLIC HEARING BY THE 

### TEXAS COMMISSIONONENVIRONMENTAL QUALITY ON PROPOSED REVISIONS TO30TACCHAPTERS 101 AND 116 ANDTOTHE 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 NewConstruction 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. Theproposed rulemaking wouldamend thedefinitionofnonattainment area in §101 .1 tobeconsistentwithcurrent 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 §116.150would 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 12100Park 35 Circle. The hearing will be structured for the receipt oforal or written comments by interested persons. Registration will begin 30minutes 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 30minutes beforethe hearing andwill answer questions before and after the hearing. Persons planning to attend the hearing who have special communication or other accommodation needs, shouldcontact the Officeof Environmental Policy, Analysis, andAssessmentat (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 WRITTENTESTIMONY

Reference Number Submitted By W-1

W-2 W-3 W-4 W-5 W-6 Clark, Thomas, &Winters onbehalf of Enbridge Gathering LP; Acacia Natural Gas Corporation, a subsidiary of Devon Energy Corporation; and Energy Transfer Company 

### RobEisenhauer, 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

A1'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 a7

"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"clccomat 5l ;1-x39-4808 hola Brown I'"!IS Curr1rnissiun urlEuvirwlurcillal Qurrlily ()f(icc : ul :,i.?nviruiunc;nlrll Pulicy, Analysis andAsacsSiliurLl MC205 . 

## 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 Anicnding 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 ofthe cight-hour ozono standard and tltc desi,,nation ofnon-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 underthe cight-}tour standard, Those facilities are (ar the first time impacted bythe 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 tiewsource review thresholds rbr major source reviewat The moderate level for the DFW area, PracticWly, tllis cliange wit[ modify 11ac trigger for netting calculations in the DrW area from3 tpy to 40 tpy to tlului luilwi flllc frzcilily Ilcuas tu ulldcrgu ilcwsuurcc 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 ozonestandard; 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' :: :U17MAWltlAWl~l :\L;'rW .AU51L.LllLtbl :61G(1S.1

## MAR-28-2005 MON 04;02 PM 0000 FAX N0, 0000 P, 03

C'l,lti7v'1r, rp IT0VTAS ti'Tr W1NT1C 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;wof ~'.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 packagethat 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 reviewits standards Earthjustice's position and rcinstate the old thresholds, that the TCEQshould not automatically adopt those as the now tilr4`sllolcls rc:gion-wide, 711ese companies would urge the TCRQto 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 TCEQto make ille older thresholds applicable to wily theoriginal four-county DFW non-attainment area and to allowthe 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 TCEQto reviewthe applicability of the old standards aud only apply those standards to the portion ofthe current DrW that wero dosigiated non-attainincnt under the onc~- 11()lirstandard. 

## We ahproc`iate tile opportunity to file these comments. pleasc contact me ifyou have ar2 y qucstions. Verytrulyyours, Celina Romcro 

## CRfc1i

### 21 February 2005

Lola Brown Office ofEnvironmental Policy, Analysis, and Assessment MC205 P.O . Box 13087 Austin, Texas 78711-3087 

## Reference: Rule Project Number 2005-009-116-AI

TBAc Exemption fromthe List of VOCs Dear Ms. Brown: On behalfofPVI Industries, LLCin Fort Worth, Texas, Iwould like to express our interest inthe proposed rule whichwould include exemptingtertiary butyl acetate (TBAc) as aVOCfor emission limits. PVIis one potential end-user ofproduct coating systems whichcould be reformulated usingTBAc inplaceofother potentially ozoneformingsolvents. While Iwish that the exemption applied to emission inventories as well, exemptingTBAc as aVOCat this time is awelcomefirst step. PVI has already performedextensive testing onTBAc reformulated coatingsystems in ourspecific applicationwith very encouraging results. We found theTBAc systems to be more forgiving during the cure cycle, aproperty that could potentially reduce rework. Ourtestingalso includes field units forthe last twoyears which, to date, have shown no compromise in performance as a result ofsubstituting TBAc for xylene and toluene in the solvent line-up. Oneofour edicts here at PVI is to lessen our impact on the environment throughthe research and implementation ofnew fabrication and processing methods, reducedVOC coating systems, and best available control technology (BACT) equipment. With that in mind, we look forward to the passage ofthe proposed rule exempting TBAc and implementing another processwhich further reduces our emissions. Thankyou for your efforts in this important matter.

RobEisenhauer, 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, 30TAC 101 .1, 116.12, and 116.150. 1) The HSC understands that the TCEQ is adopting a definition of NewSource Reviewthat is required by U.S. Environmental Protection Agency's (EPA) new NewSource Reviewregulations. 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 allowgreater health, mortality, welfare, safety, and environmental impacts to the nonattainment area. This definition of NewSource Reviewis not protective of the public and the TCEQshould reject it. The HSC appreciates this opportunity to comment. Thankyou. Sincerely, Brandt Mannchen Chair, Air Quality Committee Houston Sierra Club Lone Star Chapter 5431 Carew Houston, Texas 77096 713-664-5962

"Whenwe tryto pick out anything byitself,we findit 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, andAssessment MC205 

## POBox 13087 Austin, Texas 78711-3087 Rule Log Number 2005-009-116-AI Dear Ms. Brown: 

## RECEIVED MAR 2 8 2005 AIRQUALITY PLANNING

Texas Chemical Council (TCC) members represent a major component ofthe manufacturing sector in Texas. Thechemical industry results in the employment of more than 450,000Texans with atotal annual payroll of more than $15 billion. Thechemical industry has invested more that $40billion in Texas production facilities. The Texas chemical industry generates about 25% ofthestate's manufacturingvalue added and accounts for asimilar percentage ofmanufacturing shipments. Texas Chemical Council appreciates the opportunity to comment on the proposed revisions to Chapter 101, the GeneralAir Quality Rules, concerning TCEQ's plans to incorporate the November 29, 2004, EPArule which addedfive volatile organic compounds (VOC) to the list ofcompounds in 40 CFR51 .100which are excludedfrom the definition ofVOC

. The definition ofVOCis based on compound reactivity and the compound's tendency to produce ozone, and the compoundswere excluded based on their lack ofreactivity. TCCsupports the exclusion ofthe listed compounds fromthe definition ofVOC

. In addition, TCCmembers request agency reviewofthe definition of Reportable Quantity (RQ

in light of these proposed changes. There is no state RQfor the Hydrochlorofluorocarbons (HCFCs), therefore, companies must resort to a 100 pound RQ threshold per 101 .1(84) (A) (ii). Very few ofthese compounds have afederal RQ, with the exception of dichlorodifluoromethane and trichloromonofluoromethane, which are regulated at 5000pounds.

PRINTEDONRECYCLEDPAPER

### Therefore, TCCsuggests the following language be added in 101 .1(84)(A)(i)(r) to

define the RQfor HCFCs as 5000pounds: "(r) HCFCs, as defined under Section 602 ofthe Federal CleanAir Act - 5,000pounds" Please contact Susan Moore at (281) 366-5018 or me at (512) 646-6404 for questions on these comments.

# BAKERBOTTSU .P PFCEiVED



# MAR 2 5 2005 AIR QUALITY PLANNING 

## P,ECEIVED March 24, 2005 BY HAND DELIVERY 

# MAR 281 200115, 

## RiGUll,l-IOId} fivi-11111f"MICII"! SEUD"'i Ms. Lola Brown (MC205) Office ofEnvironmental Policy, Analysis andAssessment Texas Commission on Environmental Quality 

## 12100Park 35 Circle, Building F Austin, TX 78753 Re: Rule Project Number 2005-009-116-AI Dear Ms. Brown: 1500SANJACINTOCENTER AUSTIN 98SANJACINTOBLVD. 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 . WhileTIP generally supports TCEQ's proposal, we believe that two aspects of the rulemaking warrant comment and revision by the TCEQ . First, the preamble to theproposed rule provides:

Concurrent with the effective date of the new five-year contemporaneous period, the commission will allowthe reductions required by the HGB NOx mass emission cap and trade program (MECT) in 30 TACChapter 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 programare 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 anyspecific unit or site. Rather MECT ensures that area-wide emission reductions are made, regardless ofchanges at any particular site.

Second, TCEQhas made two unnecessary word changes that make the proposed rules different fromtheir federal analog. Specifically, proposed 30 TAC §§ 116.112(10) and (11)(B) change theword "shall not" to "may not." However, the Section 311 .016(5) ofthe 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. TIPmembers include a variety of companies in the following sectors: electric utilities, petrochemicals, upstream operations, ?etroleum

refining, forest products and semiconductor manufacturing. 

### 30Tex. Reg. 1017 (February 25, 2005) . 3 TEx. Gov'TCODEANN . § 311 .016(5) (Vernon 2004) . AUS01 :376626

.1

## BAKERBOTTSUP

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 TCEQstrike 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 ourviews.

Please call me at 512.322.2648 ifyou have anyquestions. Sincerely, 

## J For theTexas Industry Project

4See 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 PROTECTIONAGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 

## RECEIVED March 25, 2005 Ms. Lola Brown Office of Environmental Policy, Analysis, andAssessment MC205 Texas Commission on Environmental Quality P .O . Box 13087 

## Austin, Texas 78711-3087 

# APR 07 2005 REGULATIONSDEVELOPMENTSECTION

RE: Comments onproposed regulatory revisions to address New Source Reviewl for the 8-Hour Ozone Standard. Rule Pruject Number: 2005-009-116-AI . Dear Ms. Brown

: Thankyoufor the opportunity to reviewthe proposed changes to 30TACChapters 101 and 116 . In this action, theTexas Commission on Environmental Quality (TCEQproposes revisions to implement New

Source Review

for the 8-hour ozonestandard. Based on our reviewofthe proposed regulations, we have the following,comments. We believe that incorporation ofthese comments will clarify and strengthenthese 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 250tons per year. The proposal will change the beginning date ofthe contemporaneous fromNovember 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 40CFRCFR 51 .165(a)(1)(vi)(A) andsection 182(c)(6) ofthe CleanAir . Act. EPAapproved 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 FR43986 (July 17, 2000) . We also approved Texas' five tpy netting trigger at Section 116 .150(a) based, in part, on considerationof the State's contemporaneous period definition and on EPA's proposal dated July 23, 1996

. The Chapter 116 revision preamble notes, "The EPAagreed 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 (Minimum30%Postconsumer)

### major sources instead ofthefive-year netting period in thefederal 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, 1996proposed rule and the State's revisionto the contemporaneous period definition. 2 . Please further clarify timing ofapplicability ofPSDand NNSRrequirements for previously designated and newly designated nonattainment areas prior to andfollowing theeffective dates ofboth the 8-hour ozone standard designations and withdrawal of the 1-hour ozonestandard. 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 reviewauthorizations which are administratively complete afterJune 15, 2004, for new construction or modification offacilities located in anyarea designated as nonattainment for ozone in accordance with 42United States Code (U.S.C.) § 7407. 

## Texas' existing rules at 116.111(a) state: (H) Nonattainment review . Ifthe proposed facility is located in a Nonattainment area, it shall complywith 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 PSDreview . Please clarify that nonattainment NSRrequirements apply to final permits issued afterJune 15, 2004 in all areas designated as nonattainment ofthe 8-hour, as well as the 1-hour ozone standard (if the area is designated nonattainment for the 1-hour ozonestandard) . Please clarify that the date of permit issuance, not the date of administrative completeness, determines applicability of NSRrequirements. 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 thefinal permit is issued determines which major New

Source Review(NSR) requirements apply to theconstruction activity. Accordingly, ifa source has received its PSDpermit before the area is designated nonattainment, it mayconstruct under the terms of that permit ifit commences an ongoing programof construction within the required time period

### and completes the project within a reasonable time. However, ifthe area is designated nonattainment before the permit is issued (even ifthe reviewing authority deemed the PSDapplication complete), the PSDpermit may not be issued. The source would be required to submit a new application to comply with the requirements of the applicable nonattainment major NSRprogram before receiving afinal permit and beginning construction. 3 . Also, TheTCEQshould clarifyin the record that the requirements for the 1-hour ozone standard remain applicable untilJune 15, 2005. Final NSRpermits 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 ofnonattainment new source reviewunder the currently approved requirements applicable for the 1-hour ozoneclassifications (including use ofthe currently approved contemporaneous period) . 4 . Please clarify whether the State interprets its SIPto make nonattainment NSRrequirements automatically applicable to areas that may be designated as nonattainment in thefuture. Texas' definition ofnonattainment 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 SIPto require areas which may be designated as nonattainment in the future be subject to federal regulations at 40CFRPart 51, Appendix Suntil the SIP is revised to include thearea, or wouldTexas' NSRrequirements become automatically applicable upon the effective date ofthedesignation? 5 . Page 4ofthe Chapter 116revision preamble includes the statement: "Application of theeighthour ozonestandard for NNSRbecomes 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 NNSRbecame effective onJune 15, 2004. 

## 6. Mass Emission Cap and Trade on Page 5 ofthe TCEQ's proposal preamble document. A . Participating in the MECT does not exempt afacility fromNSRrequirements. For reductions to be creditable for NSRnetting, they must be consistent with all federal and state netting requirements. See 40 CFR51 .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 40CFR51 .165(a)(1)(vi)(A) . Texas should also clarify that any MECT reduction that is used for nettingwill be enforceable as a practical matter, consistent with 40CFR51 .165(a)(1)(vi)(E)(2) . B . The proposed preamble language regarding useofreductions fromthe MECT for netting appears to conflict with thecurrent MECT rule at 101 .352(d), whichstates that

### "Allowances cannot be used for netting requirements under 30 TACChapter 116, Subchapter B, Divisions 5 and 6 (relating to Nonattainment Reviewand Prevention of Significant Deterioration Review)." Please address this apparent conflict. In addition, please clarify whether reductions below afacility's MECT allowance level may generate excess allowances that can also be used for NSRnetting. Thankyou for the opportunity to provide comments. We look forward to seeing thefinal rule when submitted. Ifyou 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

## INDEXOF ORAL TESTIMONY

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# EVALUATION OF

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# 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 ofthe 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 commissionto control the quality ofthe stateair; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control ofthe state air; and §382.051, concerning PermittingAuthority ofCommission; Rules, whichauthorizesthe commissionto 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 ofeight-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 reviewand emission offsetting due to the

### Commissioners

Page 2 

### May6, 2005 Re: Docket No. 2004-1877-RUL higher netting trigger and netting threshold. Major sources inthe 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 Theserules amend agency rules concerning NSRtoreflect federal requirements resulting from the change froma one-hourozone standard to aneight-hour ozone standard. The Houston-GalvestonBrazoria and DFW

ozonenonattainment areas are now classified as Moderate underthe neweighthour 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 underthe Federal CleanAirAct, Title I, Part D, Subpart 1 (42United States Code (USC), §7402), but with a deferred effective date ofSeptember 30, 2005, due to its status as an early action compact (EAC) area. The rules raise the netting trigger fromfive tons per year (tpy) to 40 tpy and restrict the netting period to five years. The netting trigger is that emission increase resulting fromasource modification that would require anemissionaccounting 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 offive counties to the DFW

nonattainment area and the SanAntonio area and the removal ofthe 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 falloutside of federal rule or state statute: None. Impact on the regulated community: " Who will be affected? Owners or operators ofall major sources in the ozone nonattainment areas ofthe 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 addedto the DFW nonattainment area are nowsubject 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. Willthere be a fiscal impact? Yes. Ifso, 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 requiredtoupgrade theiremissioncontrol equipmentfrom bestavailable control technologyto LAER

. The designation ofthe counties as nonattainment does not in itself meanthat 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: " Whowill be affected? No effects on the public. " Does it createagroupofaffectedpersonswhowere 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 staffwill be required. 

### Stakeholder meetings: " Have any stakeholder meetings been held? Yes, on October 2, 2004. " With whom? Primarily industrial representatives. Notices were sentto 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 40tpy 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 ofTexas Industry Project (TIP) ; United States Environmental ProtectionAgency (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 EPAgenerally supported theproposal with comments. HSCstated that thechange in netting triggers and netting periods would endanger public health. The staffreplied 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 40tpy 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 ifa 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 inthe contemporaneous period. The staffwas unable to identify any cases where nonattainment review would not havebeen requiredwith afive-yearcontemporaneous period. Basedon 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, ProgramLead, 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, 8copies 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, ProgramLead 

### Janis Hudson, Staff Attorney andActing OLS Liaison Daniel Long, Staff Attorney Tara Capobianco, ProgramLiaison Keith Sheedy, P.E. , Technical Liaison

### EVALUATIONOF 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 ofthe 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) . BACKGROUNDAND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE After adoption ofthe 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 of0.12 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 FR23858) . 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. EPAnoted 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 ofcompounds in 40 CFR §51 .100(s) that, for lack ofreactivity, are excluded fromthe definition of VOC . The definition ofVOCis 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 ofVOC to say that TBACwill not be a VOCfor purposes of VOCemissions limitations or VOCcontent requirement, but will continue to be a VOCfor purposes ofall recordkeeping, emissions reporting, and inventory requirements that apply to a VOC . The commission is deleting the list of compounds fromthe commission definition and referring to the federal definition in 40 CFR §51 .100, as amended on November 29, 2004 (69 FR69290 - 69304) . Adopted changes to the 30TAC 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 neweighthour 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 inparagraph (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 FR69290 - 69304) . The federal definition includes a special case for the compound t-butyl acetate, which will not be considered a VOCfor emission limitation or content purposes but will be considered a VOCfor 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 ofthe 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 fromenvironmental 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 ofthe state.

In addition, Texas Government Code, §2001 .0225, only applies to a major environmental rule, the result ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law

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

; 3) exceed a requirement ofa 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 lawor 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 ofthe 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 ofthe 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. 

### CONSISTENCYWITHTHE 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 30TAC 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, commissionrules governing air pollutant emissions must be consistent with the applicable goals and policies ofthe 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 newsources of air contaminants are authorized and the adopted revisions maintain the same level of emissions control as the previously existing rules. The CMPpolicy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40CFR, 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 TOTHE FEDERAL OPERATING PERMITS PROGRAM Section 101 .1 is an applicable requirement under 30TAC Chapter 122, Federal Operating Permits. Upon the effective date of this rulemaking, owners or operators subject to the Federal Operating Permit Programwill 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 fromthe list of reactive VOCs.

Texas Chemical Council (TCC) also supported the removal of the compounds fromthe list of regulated VOCs. TCC also commented that the reportable quantity (RQfor hydrochloroflourocarbons (HCFC) should be set to 5,000 pounds, which is the federal RQunder 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 ofthe request . No change has been made in response to TCC's comment requesting a change in the RQfor HCFC.

### EVALUATIONOF 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) . BACKGROUNDAND SUMMARY OF THE FACTUAL BASIS FORTHE ADOPTED RULES After adoption of the Federal Clean Air Act (FCAA) Amendments of 1990, the EPA classified the designated four areas ofTexas that failed to meet the one-hour national ambient air quality standard (NAAQS) for the air contaminant ozone. Each area was classified by the EPAbased 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 newsource 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 ifa 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 oftime. 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 FR23951), implementing a neweight-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 fromthe 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 ofthe 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 EPAalso 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 ofthe 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 nowtoo long to be useful and could not bejustified for the sources in the five newnonattainment 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 now40tpy and all netting

periods are five years. Application of the eight-hour ozone standard for NNSRbecame 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 NNSRbased 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, NewMajor 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 ifthe EPA decides to require states to return to a one-hour standard for federal NNSR determination. Adopted changes to the 30TAC 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 allowsources 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 fromincreases 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 ofchanges 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 offederal and state law and added USC references to citations of sections of the FCAA. 

### §I16 .12, NonattainmentReview Definitions The commission amended the definition of contemporaneous period in paragraph (7) to require that netting be performed fromthe 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 EPAperiod. 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 ofits rule implementing the neweight-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 ifthere 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) fromthe 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 NonattainmentAreas For ease of understanding, the commission reformatted the previously existing subsection (a) into additional subsections and added newlanguage to address the eight-hour netting procedures. The commission adopts the reformatted subsection (a) to apply major modification procedures to all NSRauthorizations 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 nowreads "subsection (e)(1) - (4) of this section." The commission changed the citation concerning the exception for NO,, sources in El Paso County fromsubsection (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 fromproposal for better clarification. The commission adopts new subsection (c), which contains a newnetting 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 newsubsection (d), which contains contingency language that will go into effect ifthe EPA, after reconsideration ofthe 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 offive 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 frompreviously 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 fromproposal for better clarification. New subsection (f) exempts sources located in El Paso County fromthe requirements of this section concerning NO,, emissions and contains identical language frompreviously 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 ofthe 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 fromenvironmental exposure, and that may adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment, or the public health and safety ofthe state or a sector 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 NNSRfor 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 ofSeptember 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 ofthe economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector ofthe 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 ofa delegation agreement or contract between the state and an agency or representative ofthe federal government to implement a state and federal program ; or 4) adopt a rule solely under the general powers 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 ofthis rulemaking. Finally, this rulemaking was not developed solely under the general powers of the agency, but is authorized by specific sections ofthe Texas Health and Safety Code (THSC) and Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section ofthis 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 NNSRfor air quality permitting and specific levels of pollution control . The amendments implement NNSRrequirements 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. 

### CONSISTENCYWITHTHE 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 ofcoastal 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 CMPpolicy 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 CFRPart 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 CMPgoals and policies. EFFECT ON SITES SUBJECT TOTHE 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 ofthis rulemaking, owners or operators subject to the Federal Operating Permit Programthat 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 behalfof Enbridge Gathering LP, Acacia Natural Gas Corporation, a subsidiary of Devon Energy Corporation, and Energy Transfer Company (CTW). HSCopposed 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 termshould 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. HSCstated that the 40 tpy netting trigger will allowgreater 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 allowmore 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 FCAAamendments of 1990 . The commission has not changed the rule in response to this comment .

TIPcommented on a paragraph in the preamble concerning the ability to credit reductions under the HGB NO,, MECT, which states that "the commission will allowthe reductions required by the HGB NO,, mass emission cap and trade program(MECT) in 30TAC Chapter 101, Subchapter H, to be creditable for netting purposes ." TIPexpressed 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 ofa 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 howa 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 250tpy 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 EPAas equivalent to the federal standard provided that sources with a potential to emit greater than 250tpy maintained a contemporaneous period back to 1992to 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 reviewwould 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 HGBnonattainment 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.

### EPArequested 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, EPArequested clarification that NNSRrequirements apply to final permits issued after June 15, 2004, in areas designated as nonattainment ofthe eight-hour as well as the one-hour ozone standard and that the date of permit issuance, not administrative completeness, determines applicability of NSRrequirements. 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 CFRPart 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 SIPapproved 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 ofTexas' 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 NSRauthorizations 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. EPAhas addressed areas in transition through 40 CFR Part 51, Appendix S, and policy memos, but EPA acknowledges that areas that

### have a SIP approved programin place for newly designated areas are not subject to Appendix S.

Therefore, the commission will continue to followthe 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 reviewunder 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.

EPAcommented 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 frombeing used for netting requirements addresses the ability for a site with a proposed emissions increase to purchase excess allowances fromanother site to use in netting. The preamble has been revised to clarify that emission reductions shown in netting must occur at the same NNSRsource. 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 STATUTORYAUTHORITY 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. 

### Theadopted 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 themin 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 122ofthis 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 fromnatural 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 fromman-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 - Amanufacturing 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 froma gas stream . (8) Carbon adsorption system- A carbon adsorber with an inlet and outlet for exhaust gases and a systemto 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 fromthe surfaces of metal parts or to dry the parts by spraying, brushing, flushing, and/or immersion while maintaining the solvent belowits 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 systemused 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 fromother 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 ofthe 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 fromthe 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 fromconstruction or

demolitionprojects.

(18) Control systemor control device - Any part, chemical, machine, equipment, contrivance, or combination of same, used to destroy, eliminate, reduce, or control the emission ofair 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. Aconveyorized 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 oftransportation.

(22) De minimis impact - A change in ground level concentration of an air contaminant as a result of the operation of any newmajor stationary source or of the operation of any existing source that has undergone a major modification, which does not exceed the following specified amounts.

### AIRCONTAMINANT 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 fromthe functions oflife within a residence.

(24) Emissions banking - A systemfor 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 froman 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 ofa 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 fromthedefinition ofvolatile 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 fromMotor 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 60and 61 ; requirements within any applicable state implementation plan (SIP) ; and any permit requirements established under 40 CFR §52.21 or under regulations approved under 40CFRPart 51, Subpart 1, including operating permits issued under the approved programthat 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 systemto 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 fromthe handling, preparation, cooking, and consumption of food, including waste materials frommarkets, storage facilities, and handling and sale of produce and other food products.

(37) Gasoline - Any petroleumdistillate 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 termincludes 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 - Alandfill, 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 ofthe EPA under the federal Solid Waste Disposal Act, as amended by RCRA, 42 United States Code, §§6901 etseq., as amended.

(41) Heatset (used in offset lithographic printing) - Any operation where heat is required to evaporate ink oil fromthe 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 ofsolid 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 fromthe treatment of wastewater fromthe 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 - Aboiler 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 §335.506of 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 10,000parts 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 fromhazardous waste, with a heating value of at least 5,000British 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 ofthe tank.

(52) Maintenance area - Ageographic region ofthe state previously designated nonattainment under the Federal Clean Air Act (FCAA) Amendments of 1990and 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 FR55421 - 55425) - Portion of Collin County. Eastside: Starting at the intersection of South Fifth Street and the fence line approximately 1,000 feet south ofthe 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 1,000feet south ofthe Exide property line; Southside: Fence line approximately 1,000 feet south ofthe Exide property line.



### (53) Maintenance plan -Arevision to the applicable state implementation plan, meeting the requirements of 42United 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 fromhealth care-related facilities" and those waste materials commingled and discarded with special waste fromhealth 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), § 134and 49 USC, § 1607.

(58) Mobile emissions reduction credit - The credit obtained froman 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 LowEmission 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 motorvehicle fuel tanks fromstationary 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 RCRASubtitle Dwastes, 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 fromother 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 ofthe designations for the eight-hour NAAQS of June 15, 2004. (A) Carbon monoxide (CO) . El Paso COnonattainment area (56 FR 56694)--Classified as a Moderate COnonattainment 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 fromPorfirio Diaz Street to Raynolds Street, Raynolds Street fromHighway 10 to the Southern Pacific Railroad lines, the Southern Pacific Railroad lines fromRaynolds Street to Highway 62, Highway 62 fromthe Southern Pacific Railroad lines to Highway 20, and Highway 20 fromHighway 62to Polo Inn Road. Bounded on the east by Polo Inn Road fromHighway 20 to the Texas-Mexico border. Bounded on the south by the Texas-Mexico

### border fromPolo 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 FR56694) - 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 FR56694) - 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 FR56694)

- 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 FR23936)

- 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 streamat 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) Petroleumrefinery - 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) PMIOemissions - 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 ofall materials

introduced or recirculated into any specific process that may cause any discharge ofair 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 ofthis state. (81) Reasonable further progress - Annual incremental reductions in emissions ofthe 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) - 5,000pounds; (-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 RQshall be 100pounds; (-d-) carbon monoxide - 5,000pounds; 

### (-e-) pentanes (any isomer) - 5,000pounds; (-f-) propane - 5,000pounds; (-g-) propylene - 5,000pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (67)(E)(i) and(iii) ofthis section, where the RQshall be 100 pounds; 

### (-h-) ethanol - 5,000 pounds; (-i-) isopropyl alcohol - 5,000pounds; (-j-) mineral spirits - 5,000 pounds;

### (-k-) hexanes (any isomer) - 5,000 pounds; (-1-) octanes (any isomer) - 5,000 pounds; (-m-) decanes (any isomer) - 5,000pounds; (-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 RQshall be 100pounds; (-o-) toluene - 1,000pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (67)(E)(i) and (E)(iii) of this section, where the RQshall be 100pounds; (-p-) nitrogen oxide - 100pounds, which shall be used instead of the RQprovided in 40 CFR §302, Table 302.4, the column "final RQ" ; or (-q-) nitrogen dioxide - 100pounds, which shall be used instead of the RQlisted 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) ofthis 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) ofthis 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) ofthis 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) ofthis paragraph are known to be less than 2.0% by weight ofthe mixture, any total amount of the mixture of air contaminant compounds greater than or equal to 5,000pounds; or (iv) where natural gas excluding methane and ethane, or air emissions fromcrude oil are known to be in an amount greater than or equal to 5,000pounds or associated hydrogen sulfide and mercaptans in a total amount greater than 100pounds, whichever occurs first;

### (C) for opacity fromboilers 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 RQapplicable 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 systemproviding updated readings at a minimum15-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, aluminumcans, 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 fromthe 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 ofthis title. Expected excess opacity events as described in §101 .201(e) ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements) resulting fromscheduled maintenance, startup, or shutdown activities are those that provide prior notice (if required), and are recorded and reported as required by §101 .211 ofthis title.



### (87) Site - For the purposes of Subchapter Fofthis 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 froma municipal, commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive ofthe treated effluent froma wastewater treatment plant; or air pollution control equipment.

### (89) Smoke - Small gas-born particles resulting fromincomplete combustion

consisting predominately of carbon and other combustible material and present in sufficient quantity to be visible. (90) Solid waste - Garbage, rubbish, refuse, sludge froma 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 fromindustrial, municipal, commercial, mining, and agricultural operations and fromcommunity and institutional activities. The termdoes 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 ofoil 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 fromactivities 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 ofthe EPAunder 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 equilibriumat atmospheric pressure.

(92) Sour gas - Any natural gas containing more than 1 .5 grains of hydrogen sulfide per 100cubic feet, or more than 30 grains of total sulfur per 100cubic 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 froma single point of emission will be treated as a single source or as multiple sources.

(94) Special waste fromhealth 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 froman 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 fromthe top of a tank to have a maximumclearance of six inches (15.2 centimeters) fromthe bottomor, when applied to a tank that is loaded fromthe side, that has a discharge opening entirely submerged when the pipe used to withdraw liquid fromthe tank can no longer withdraw liquid in normal operation. (98) Sulfur compounds - All inorganic or organic chemicals having an atomor 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 petroleumhydrocarbons 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 ofany 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 ofthe commission or as authorized by Texas Clean Air Act, §382.0518(g) .

(105) Upset event - Anunplanned or unanticipated occurrence or excursion ofa process or operation that results in unauthorized emissions.

(106) Utility boiler - Aboiler 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 formof 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 bottomof 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 froman 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 FR69290 - 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.

### SUBCHAPTERA : DEFINITIONS §116.12 > STATUTORYAUTHORITY 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 ofthe 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 fromthe commission prior to newconstruction 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 themin the field ofair pollution control . The terms in this section are applicable to permit reviewfor 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 allowthe use ofa 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 ofa stationary source, calculated using

the maximumrated capacity ofthe 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 afuture compliance date.

(3) Begin actual construction - In general, initiation of physical on-site construction activities on an emissions unit that are ofa 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 termrefers 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 programof 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 programof actual construction of the source to be completed within a reasonable time.

(6) Construction - Any physical change or change in the method ofoperation (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 fromthe particular change occurs; and

### (B) 60months prior to the date that construction on the particular change

commences. (8) De minimis threshold test (netting) - A method of determining ifa 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 reviewis required.

(9) Lowest achievable emission rate - For any emitting facility, that rate ofemissions ofa 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 ofany approved state implementation plan for a specific class or category of facility, unless the owner or operator ofthe 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 MAJORSOURCE column of Table I located in the definition of major modification in this section or more ofany 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, ifthe 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 ofa stationary source shall not be included in determining for any ofthe 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 ofa 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 ofTable I ofthis 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 MAJORSOURCE/MAJOR MODIFICATION EMISSION THRESHOLDS POLLUTANT MAJORSOURCE 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 .30to 1 

### CO I moderate 100 100 1 .00to 14 II serious 50 50 1 .00to 14 S02 100 40 1 .00to 14 PM,o I moderate 100 15 1 .00to 14 11 serious 70 15 1 .00to 14 NOX5 100 40 1 .00to 14 Lead 100 0 .6 1 .00to 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 newsource review(NNSR) directly to the project. The appropriate netting triggers for existing major sources of NO,, and VOCare specified in §116.150 ofthis 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 VOCand NO,, are precursors to ozone formation and should be quantified individually to determine whether a source is subject to NNSRunder §116.150 of this title. As specified in §116.150 of this title, for El Paso County, the NNSR rules apply to sources ofVOC, 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, ifthe United States Environmental Protection Agency promulgates rules requiring new source reviewpermit applications in these areas to be evaluated for NNSRaccording 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 ifthere is a major modification as well as the ratio ofoffsets 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 rawmaterial 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 steamgenerating unit to the extent that the fuel is generated frommunicipal solid waste; (v) use of an alternative fuel or rawmaterial 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 sumof the following exceeds zero: the total increase in actual emissions froma 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 ofthe 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 fromthe 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) Adecrease 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 newlevel ofactual 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 fromthe particular change. (D) An increase that results froma 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 180days.

(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 ofthis title (relating to Emission Credit Banking or Trading; or Discrete Emission Credit Banking and Trading), except as provided for in §116.170(b) ofthis title (relating to Applicability of Emission Reductions as Offsets) . The reduction must not have been relied on in the issuance ofa previous nonattainment or prevention ofsignificant deterioration permit .

### (15) Potential to emit - The maximumcapacity of a facility/stationary source to emit

a pollutant under its physical and operational design. Any physical or enforceable operational limitation on the capacity ofthe 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 ofits 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 sumof the following: the total proposed increase in emissions resulting froma physical change or change in the method ofoperation 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 ofthe construction or operation of a major stationary source or major modification, but do not come fromthe 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 fromany off-site support facility that would not be constructed or increase its emissions, except as a result of the construction or operation ofthe major stationary source or major modification. Secondary emissions do not include any emissions that come directly

12

### froma mobile source such as emissions fromthe tail pipe ofa motor vehicle, froma train, or froma

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 DIVISION5: 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 ofthe Texas CleanAirAct. 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 ofthe 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 fromthe 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 reviewauthorizations that are administratively complete after June 15, 2004, for newconstruction 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 ofa proposed new or modified facility that will be a newmajor stationary source ofvolatile organic compound (VOC) emissions or nitrogen oxides (NOX) emissions, or the owner or operator of an existing major stationary source of VOCor NOX emissions that will undergo a major modification with respect to VOC or NO, shall meet the requirements of subsection (e)(1) - (4) ofthis section, except as provided in subsection (f) ofthis section. Table I located in the definition of major modifications in §116.12 ofthis 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 ofVOC 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, ifthe United States Environmental Protection Agency promulgates rules requiring new

source reviewpermit applications in these areas to be evaluated for nonattainment new source reviewaccording 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 ofVOCor 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 ofthe 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 ofthis 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 newmajor source or major modification except as provided inparagraph (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 newemission 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 ofoperation 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 fromthe newor 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 reviewunder this section, ifthe 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 100tpy of an applicable nonattainment pollutant can substitute BACT for LAER, ifthe 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 ofthe 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,hi:~filed Mrrr, ;; : ::t ructiras oftheCommission,

~.`'IY~i71tt1d6'r fn' .' s°F~al GioS'i1c8 on



## JUN o ~ 20d~ 6Dnlla Q8tto ;- ii Za37i7r`sls3bfi on -Enviroromn'tal Quality 

### ORDERADOPTINGAMENDEDRULESAND REVISIONSTOTHE STATE IMPLEMENTATION PLAN

Docket No. 2004-1877-RUL On May 25, 2005, the Texas Commissionon Environmental Quality (Commission), during a public meeting, considered adoption ofamended §§ 101 .1, 116.12, and 116.150. The Commission adopts these amendments inTitle30, Tex. Admin. Code, Chapter 101, GeneralAirQuality Rules; Chapter 116, Control ofAir Pollution by Permits for New Constructionor Modification; and corresponding revisions to the state implementation plan (SIP) . The adoption amends the definitions of nonattainment area andvolatile organic compoundinChapter 101, and amends thedefinitions ofcontemporaneous period, major modification, and netemissions increase and changes new sourcereview

nettingtriggers and periods forareasclassifiedunder 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. UnderTex. Health &Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the Commissionhas the authority tocontrol thequality ofthe state's air and to issue orders consistent with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & SafetyCode. The proposed ruleswere published for comment inthe February 25, 2005, issue ofthe Texas Register (30TexReg 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 40Code of Federal Regulations § 51 .102and 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. Apublic hearing was held in Austin on March 17, 2005: The Commission circulated hearing notices ofits intended action to the public, including interested persons, the RegionalAdministrator ofthe EPA, and all applicable local air pollutioncontrol 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 ofthe proposed amended rules and SIP revisionswere available for public inspection atthe Commission's central office and on the Commission's Web site. Data, views, and recommendations of interestedpersons 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 oftestimony 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 verbatimin 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 ofEPAas aproposedrevisionto theTexas SIPpursuant to the Federal Clean Air Act, § 110, codified at 42 U .S. Code Ann. §§ 7410 - 7671q, as amended. This Order constitutes the Order ofthe Commission required by the Administrative Procedure Act, Government Code, § 2001 .033. If any portion ofthis Order is for any reason held to be invalid by a court of competentjurisdiction, the invalidity of any portion shall not affect the validity of the remaining portions. 

### Date issued: 

# MAY 31 2005 TEXAS COMMISSION ON - ENVIRONMENTAL QUALITY

athleen Hartnett White, ChairmanTexas Structural Pest Co~trol Board with the authority to license

and regulate the structur I pest control industry. This agency herebycerti es that theadoption hasbeen reviewed by legalcounseland foud to be a valid exercise ofthe agency's legal authority

. Filed with the Office of th Secretary of State on May24, 2005. TRD-200502098 Dale Burnett Executive Director Texas Structural Pest Contr Board Effective date: June 13, 200 Proposal publication date: A ril 22, 2005 Forfurther information, pleas call : (512) 305-8270 

### TITLE 30

. ENVIRONMENTAL QUALITY 

## PART 1 . TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 101 . GENERAL AIR QUALITY RULES SUBCHAPTERA

. GENERAL RULES 30 TAC §101 .1 The Texas Commission on Environmental Quality (commission) adopts an amendmentto§101 .1 withoutchange tothe proposed text as published in the February 25, 2005, issue of the Texas Register (30TexReg 1009), and will not be republished. The amendment will besubmitted to the United States Environmental Protection Agency (EPA) as a revision to thestate implementation plan (SIP) . BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FORTHE ADOPTED RULE Afteradoption of theFederal CleanAirAct (FCAA) Amendments of 1990, the EPAclassified the designated four areas of Texas that failedto meet the one-hour national ambientair quality standard (NAAQS) for the air contaminant ozone. Each area was classified by the EPAbased 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-FortWorth (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 underthe one- hour standard: Hardin, Jefferson, and Orange. The El Paso area consisting of El Paso County is nowdesignated as attainment . In addition, the San Antonioarea, consisting of Bexar, Comal, andGuadalupe Counties, wasalsodesignated as nonattainment underthe 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. EPAnoted 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 amendmentwill update the commission rules to match the new federal classifications. On November 29, 2004, EPAadded 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) . EPArevised the definition ofVOCtosay that TBACwill not be a VOCfor purposes ofVOCemissions limitations orVOCcontent requirement, but will continue to be a VOCfor purposes of all recordkeeping, emissions reporting, and inventoryrequirements that apply to a VOC

. The commission is deleting the list of compounds fromthe commission definition and referring to the federal definition in 40CFR§51 .100, as amended on November 29, 2004 (69 FR 69290- 69304) . Adoptedchangestothe 30TACChapter116corresponding 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 BPAarea. 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 EACarea. 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 alsoamends the definition ofVOCin paragraph (111) by deleting the existing list of compounds and by referring to thefederal definition in 40CFR§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, whichwill not be considered a VOCfor emission limitation or content purposes but will be considered a 

### 30TexReg 3408 June 10, 2005 Texas RegisterVOCfor emissions reporting and inventoriesand photochemical

modeling. The commission also made administrative changes for readability, conformity with the drafting standards in the TexasLegislative CouncilDrafting 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 anyof the four applicability requirements listed in Texas Government Code, §2001 .0225(a) . A"major environmental rule" means a rule, the specific intent ofwhich, is to protecttheenvironment or reduce risksto human health fromenvironmentalexposure, andthat mayadverselyaffect in amaterial waythe 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 reflectthe new classifications underthe eight-hour standard fortheBPA, DFW, and HGBareas; adds the five newly designated counties in the DFW area; and adds the SanAntonio area. Theamendmentalso incorporates a change tothe federaldefinition forVOC, 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 statelaw ; 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 implementastate andfederal program ; or 4) adopt a rule solely under the general powers of the agency instead of underaspecificstate law . Theamendmentdoes notexceed astandard setbyfederal law or exceed an expressrequirement of state law

. There is no contract or delegation agreement that covers thetopicthat is the subjectofthis rulemaking. Finally, this rulemakingwasnotdeveloped solely underthegeneral powers of the agency, but is authorized by specific sections of the Texas Health and Safety Code and Texas Water Code, which arecited in theSTATUTORYAUTHORITYsection of this preamble. Therefore, this rulemaking is not subject to the regulatory analysis provisions ofTexas Government Code, §2001 .0225(b), because the amendment does notmeet any of the four applicability requirements. TAKINGS IMPACTASSESSMENT 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 newclassifications for the BPA, DFW, and HGB areas ; add the five newly designated counties in the DFW area ; and add the San Antonio area. The EPAhas indicated that the one- hour standard will be revoked onJune 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 notaffect 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, Chapter2007. 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 Actof 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), andthe commission rules in 30TACChapter 281, Subchapter B, concerning Consistencywith theCMPAs required by §281 .45(a)(3) and 31 TAC§505.11(b)(2), relatingto Actions and Rules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMF The commission reviewed this action forconsistencywith the CMPgoals and policies in accordancewith the rulesof the Coastal Coordination Council, anddetermined thatthe action is consistentwith theapplicable CMPgoalsand policies. The CMPgoal applicabletothis 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 areauthorized and the adopted revisions maintain the same levelof emissionscontrolas thepreviously existing rules. TheCMPpolicy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40CFR, to protect and enhance air quality in the coastal areas (31 TAC §501 .14(q)) . This rulemaking action complies with 40 CFRPart 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31 TAC§505.22(e), the commission affirmsthat this rulemaking action is consistent with CMPgoals and policies. EFFECT ONSITESSUBJECTTOTHE FEDERALOPERATING PERMITS PROGRAM Section 101 .1 is an applicable requirement under 30TACChapter 122, Federal Operating Permits . Upon the effective date of this rulemaking, owners or operators subjectto the Federal Operating Permit Program

will be required tocertifycompliancewith amended §101 .1 . PUBLIC COMMENT The commission conducted a public hearing on this proposal in Austin on March 17, 2005. Twocomments were received during the public comment period, which closed on March 28, 2005. PVI Industries, LLCsupported the removal of tertiary butyl acetate fromthe list of reactive VOCs. Texas Chemical Council (TCC) also supported the removal of the compounds fromthe list of regulated VOCs. TCCalso commented that the reportable quantity (RQ) for hydrochloroflourocarbons (HCFC) should be set to 5,000 pounds, which is the federal RQunder 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 RQfor HCFC . STATUTORYAUTHORITY 

### ADOPTEDRULES June 10, 2005 30TexReg 3409The 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 herebycertifiesthat theadoption hasbeen reviewed by legal counsel andfound to be avalid exercise ofthe agency's legal authority

. Filed with the Office of the Secretary of State on May26, 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 Forfurther information, please call : (512) 239-0348 

### CHAPTER 113. ST PERFORMANCE FO POLLUTANTS AND FACILITIES ANDPO 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 

### 30TexReg 3410 June 10, 2005 Texas Register DARDS OF HAZARDOUS AIR OR DESIGNATED LUTANTS TIONAL EMISSION ZARDOUSAIR 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 TheTexas 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 113.1290withoutch in the December 31, TexReg 12080), and wil BACKGROUND AND FORTHE 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 EPAis theagency res standards are promulgat viewedforcompatibilitywi policies. The commission 113through formal rulem standard or amendment i formal delegation fromthe E, which implements 42 commission will be respo the MACT requirements. The commission incorpor made to the 40 CFRPart 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 theproposed text as published 004, issue of the Texas Register (29 not be republished. UMMARY OF THE FACTUAL BASIS LES pter 113incorporate 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 EPAis 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 rehcurrentcommission regulations and then incorporates them into Chapter king procedures. After each MACT adopted, the commission will seek EPAunder 40 CFR Part 63, Subpart C, §7412(1). Upon delegation, the sible for administering and enforcing tes amendments that the EPA has 3General Provisions and 49 of the viously incorporated into the come federal promulgation dates and ns stated in the commission rules. ir corresponding Chapter113secon 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 anystandard 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 derthe 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 specfic 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 responsiblefor 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 Apublic 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 becausethe MACT stanfederal technology-based standards by reference, and therefore, will not y federal law

. This adoption is notan ate law, but was developed by EPAas 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 forthe 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 sas necessaryto complywith 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 nsistencydetermination forthe 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 ntswere received. The public comm . onJanuary31, 2005. Nowritten



### 30TexReg3422 June 10, 2005 Texas Register The new and amend Code (TWC), §5.10 general powers to c which authorizes the to carryoutthepower TWCand 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 forthecontrol ofthestate's thorizes the commissionto prescribereafor measuring and monitoring the emisnts; and §382.051, which authorizes the lesas necessaryto complywith changes ations applicable to permits issued under in the state's air and §382.012, which auth velopa general, comp air; §382.016,whicha sonable requirement sions of air contamin commissionto adopt in federal law

or regu the TCAA

. The adopted new Health and Safety 382.016, 382.017, a This agency herebyc by legalcounsel 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 Forfurther information,

" dsections are adopted underTexasWater which provides the commission with the y out its duties under the TWC ; §5.103, ommission to adopt any rules necessary and theduties undertheprovisions of the fthis state; and §5.105, which authorizes to establish and approve all general polThe amendedand new sections arealso ealth and Safety Code, TCAA, §382.017, ommission to adopt rules consistent with es of the TCAA

; §382.002, which estab- 's purposeto safeguard the state's air red amended sections implement Texas Code, §§382.002, 382.011, 382.012, 382.051 . rtifiesthattheadoption hasbeen reviewed und to be a valid exercise of theagency's fthe Secretary of State on May 26, 2005. ue awDivision vironmental Quality 005 : December 31, 2004 ease call : (512) 239-6087 

### CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTIONORMODIFICATION The Texas Commission on Environmental Quality (commission) adopts theamendments to §116.12and §116.150withchanges to the proposed text as publishedin the February 25, 2005, issue of the TexasRegister (30TexReg 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 CleanAir 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 apeak 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 PasoCountywas classified as Serious. Four counties in the Dallas- FortWorth (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. Theclassification ofanarea has specific effectsonsourcesofaircontaminants within the area including what will be considered a major source of contaminants. In the case of ozone, thecontaminants 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 sourcewill 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 thatwould makethe project a majormodification, the source owner performs a netting exercise if the project emission increase is greater than the netting trigger (five tons peryear (tpy) under current commission rules) . Netting is an accounting procedure usedto determinethe amount of increase in emissions by a source over a specified period of time. All emission increasesand decreases at asourceover thespecified time (netting period) are added or subtracted and, if the resulting figure is at or above the major modification threshold, the source becomes subjectto 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 §182that 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 underthe 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, oneyear following the effective date of the designations for the eight-hour NAAQS. One year afterthe effective date of the designations forthe eight-hour ozone standard is June 15, 2005 . The new EPAPhase 1 Implementation Rules make no changes to the nettingprocedureor thresholds. Thecommissionis 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 existingfivetpytrigger. The commission eliminated thenetting period forlarger majorsourcesthat required nettinggoingbackto 1992 . This period is now

too long to be useful and could not be justified forthe sources in thefive new nonattainment counties in the DFW area. Underthe new

eight-hour ozonestandard, thereare noareascurrentlyclassified as SeriousorSevere. Theproposed netting triggers for all eight- hour ozone nonattainmentareas is now 40tpy and all netting periods are fiveyears. Application of the eight-hour ozone standard for NNSRbecame effective June 15, 2004, andthecommission is updating itsrules to implement the necessary changes. On September 24, 2004, in responsetoa petition by EarthJusticeand otherenvironmental groups, the EPAgranted a partial reconsideration of the Phase 1 Implementation Rule adopted April 30, 2004, allowing states to applyfederal NNSR based on an eight-hour classification. The result of this reconsideration could be a return to the one-hour ozone standard for application offederal NNSR . Therefore, the commission is includingcontingency language in §116 .150, New MajorSource or Major Modification in Ozone NonattainmentAreas, and in the table footnotes in thefigure located in the definitionof majormodification in §116.12. This contingency language will go into effect if the EPAdecides to require states to return to a one-hour standard forfederal NNSRdetermination. Adopted changestothe30TACChapter 101 corresponding rulemaking are also published in this issue of the Texas Register. NO,Netting andMass Emission Capand Trade The new

five-year contemporaneous period for all sources will allowsources 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 fromincreases 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 lawand added USC references to citations of sections of the FCAA. 

### ADOPTEDRULES June 10, 2005 30TexReg 3423§116

.12, Nonattainment ReviewDefinitions The commission amended the definition of contemporaneous period in paragraph (7) to requirethat netting be performed from thedate of a modification going back aperiod of 60 months forall 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 EPAperiod. Thecommission added new footnotes6and 7 tothetable in the figure located in the definition of majormodification in paragraph (11)(A) that require sources in areas thatwere classified nonattainment for ozone undera one-hour ozonestandard to return to the majorsource thresholds, major modification thresholds, and offset ratios for the one-hour standard for federal NNSRapplicability if the EPA requires states to use the one-hour standard afterreconsideration of its rule implementing the new eight-hour standard . Footnote 7 also requires applications submitted forfacilities 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, Subpart2 (42 USC, §7502) . The evaluation includes both thethreshold fordetermining if there is a major modification as well as the ratio of offsets required alongwith any otherapplicable requirement that depends uponanarea's nonattainmentclassification. Currently, only San Antonio is designated underSubpart 1 . This is necessary due tothe Phase 1 Implementation Rulethat applyto areas designated under Subparts 1 or 2 . Thecommission deleted subparagraphs (E)and (F)from thedefinitionof netemissionsincrease in paragraph(13) . The subparagraphs containedreferences toacontemporaneous period going backto 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 newlanguage 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 tomajorsourcesor majormodifications. 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 fromsubsection (b) to subsectionX(f) . The commission also changed a referencetosubsection (c) because it was obsolete. The phrase "located in the definition of major modification" was added fromproposal for better clarification. The commission adopts newsubsection (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. Thecommissionadopts new subsection (d), whichcontains contingency languagethatwill 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 toreturn to a netting triggeroffivetpy, which is basedon a one-hour ozonestandard fortheapplicability offederal NNSR

.Thecommission added this language because EPAagreed toreconsider theeight-hour designations in reaction to lawsuitsfiled by EarthJusticeand otherenvironmentalorganizations. New subsection (e) contains language frompreviously existing subsection (a) concerning emission standards and offsets for sources and modifications classified as major sourcesand modifications. The phrase "located in the definition of major modification"was added fromproposal for better clarification. New subsection (f) exempts sources located in El Paso County fromthe requirements of this section concerning NO, emissions andcontains identical languagefrompreviously designated subsection (b) . Thecommissionalso madeadministrative changes forreadability, conformity with drafting standards in the Texas Legislative Council Drafting Manual, November 2004, and consistencywith other commission rules. FINAL REGULATORY IMPACT ANALYSIS DETERMINATION The commission reviewed the adopted rulemaking in lightof the regulatory impact analysis requirements of Texas Government Code, §2001 .0225, and determined that therulemaking does not meet the definition of a"major environmental rule." Furthermore, it does notmeet anyof thefour applicability requirements listed in Texas Government Code, §2001 .0225(a) . A"major environmental rule" means a rule, the specific intent ofwhich, is to protect the environment or reduce risks to human health fromenvironmental exposure, andthat mayadversely affect in amaterial way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public healthand safetyof thestate or asector of thestate. The adopted amendments revise thenetting trigger and netting period for projects that are a major modification and are thereforesubjecttofederal NNSRforair quality permitting and specific levels of pollution control . The amendments also make NNSR requirements applicable tothe San Antonio area and thefive additional counties in the DFW area. Because San Antonio is an early action compact area, it has a deferred effectivedateof September 30, 2005, andwill continue to bedeferred as it remains in compliance with the compact agreements. The amendments also make changes tothe definition of contemporaneous period and net emissions increase aswell as changesto the figure in thedefinition of majormodification, 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 stateor asector 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 contractbetween the state and an agency or representative of the federal government to implementa state andfederal program ; or 4) adopt a rule solely under the general powers of the agency instead of undera specific statelaw . The adopted amendments do notexceeda standard setbyfederal law or exceedanexpressrequirement ofstate law

. There is no contract or delegation agreement that covers the topic that is the subjectof this rulemaking. Finally, this rulemaking was notdeveloped solely underthegeneral 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 STATUTORYAUTHORITY 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 triggerand netting period for projects that are a majormodification and arethereforesubjectto federal NNSRfor 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. Theamendments also make nonsubstantive organizational changes. Promulgation andenforcement of the adopted amendments would be neither a statutory nor a constitutional taking becausethey do notaffect 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 thatwould otherwise exist in the absence of agovernmental action. Therefore, the amendments do notconstitute a takings underTexas Government Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission determined that this rulemaking action relates toan 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 CMPAs required by §281 .45(a)(3) and 31 TAC §505.11(b)(2), relating toActions 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 accordancewith the rules of the Coastal Coordination Council, and determined that the action is consistent with the applicable CMPgoals and policies. The CMPgoal applicable tothis 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 CMPpolicy applicable tothis 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 ONSITES SUBJECTTOTHE FEDERALOPERATING PERMITS PROGRAM Sections 116.12and 116 .150 areapplicable requirements under 30TACChapter 122, Federal Operating Permits Program . Upon theeffective dateof this rulemaking, owners or operators subject to the Federal Operating Permit Programthat modify any NSR authorized sources at theirsites are subjectto the amended requirements of §116.12 and §116.150. PUBLIC COMMENT Thecommission 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) ; BakerBotts L.L.P on behalf ofTexas Industry Project (TIP) ; EPA ; and Clark, Thomas, and Winters on behalf of Enbridge Gathering LP, Acacia Natural Gas Corporation, a subsidiary of Devon EnergyCorporation, and EnergyTransfer Company (CTW). HSC opposed the proposal, while TIP, CTW, and EPAgenerally supported the proposal with comments. TIPcommentedthatthecommission proposed twounnecessary word changesin §116.112(10) and (11)(B) wherethe term "shall not" was changed to "may not." TIP stated that Texas Government Code, §311 .016(5) makesclearthat the terms aresynonymous and commented that the termshould not be changed to eliminate potential confusion. The commission reviewed the use of the terms "shall not" and "may not" andtheir use according tothe TexasLegislative CouncilDrafting Manualand will leavetheterm"shall not" unchanged. HSCstated thatthe40tpynettingtriggerwill allow greaterhealth, mortality, safety, and environmental effects in the nonattainment area and suggested that thecommission reject the standard. The commission acknowledges that a 40tpy netting triggerwill allowmore projects to be authorized without a netting analysis, but the commission disagrees that this will result in adverse health effects. Like the one-hour ozonestandard, the eight-hour standard is health based, and the 40tpytrigger is based on the eight- hour standard. The 40tpytrigger hasbeen thenettingtrigger for Moderate areas since the FCAA amendments of 1990 . The commission has not changed the rule in response to this comment. TIPcommented on a paragraph in the preamble concerning the ability to credit reductions under the HGB NO, MECT, which states that "the commission will allowthe 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." TIPexpressed the belief that this statement incorrectlysuggests that the proposals in Chapter 116affect the abilityto credit reductions under the MECT The rule does not affect the ability of a site to generate excess allowances underthe MECT by reducing emissions. The statement identified by the commenter clarifies that reductions made underthe MECT to complywith 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. 

### ADOPTEDRULES June 10, 2005 30TexReg 3425Texas would be unable to make an independent determination

since the designation and classification of areas is based on a national airstandard 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. Afive-yearcontemporaneous 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 windowfor sources with emissions greater than 250 tpy required that emissions increases and decreases made well before the SIPbaseline year be considered in whether a project would be subject to nonattainment review . Given that fewer than 20nonattainment permits were issued in Texas priorto 2001, it is likely that including emission increases and decreases priortothat date in nettingexerciseswould 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 EPAas 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 ensurethat anysmallemission increases were included in the contemporaneous period. Thefederal applicability analysis (netting) associated with the issued nonattainment permits in Texas was reviewed priorto these rules being proposed to determine if including this additional period would have resulted inanyof those projects being subjectto nonattainment review . The commission was unable to identify any cases where nonattainment review would nothave been required with afive-yearcontemporaneous 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. Thecommission establishedcap andtradeprograms 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 necessaryforthe SIP, regardless ofwhat construction or modificationstake place under NSR . Finally, thecommission will ensure that the SIPdemonstration 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. EPAasked 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 NSRrequirements become automaticallyapplicable upon theeffective 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 SIPAdopted §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 afterJune 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 programin place for newly designated areas are not subject to Appendix S. Therefore, the commission will continue to followthe 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 NSRapplications are reviewed for one-hour applicability

. Thecommission will applythe requirements forcompliance with the one-hour standard for permits that were administratively complete on or before June 15, 2004, and will not require a separate reviewunder 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 . EPArequested that thecommission clarifythat any reduction underthe MECTwill only occuratthe source at whichthe proposed increase will occur. EPA also requested clarification of an apparent conflict of the preamble statement, which states that reductions underthe MECTcan be usedfor netting purposeswith §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 fromanother site to use in netting. The preamble has been revised to clarify that emission reductions shown in netting must occur at the same NNSR 

### 30TexReg 3426 June 10, 2005 Texas Registersource. Emission reductions used in netting must occur at that

source and cannot be transferred to a differentsource for use in netting. Emission reductions used togenerate andsold as emission reduction credits are not creditable for netting . 

### SUBCHAPTER A

. DEFINITIONS 30TAC§116

.12 STATUTORYAUTHORITY 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 undertheTWC ; and underTHSC, §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 underTHSC, Chapter 382 ; and §382.0518, concerning Preconstruction Permit, which requires that a permit be obtained fromthe commission priorto new construction or modification of an existingfacility. 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 themin the field of air pollution control . The terms in this section are applicable to permit reviewfor 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 ofthis 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 ofa 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 theparticular date andthat is representative ofnormal source operation. The executive director shall allowthe 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, calculatedusing the maximum rated capacity ofthe source (unless the source is subject tofederally enforceable limits that restrict the operating rate, or hours ofoperation, 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 thosewith 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 termrefers 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 ifthey 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 ofa 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 ofactual 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 thatthe increase from the particularchange (B) 60months priortothe 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 ofthe proposed increase in tons per year with all other creditable source emission increases and decreases during the contemporaneousperiod is compared tothe MAJORMODIFICATION column ofTable I located in the definition ofmajormodification 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:



### ADOPTEDRULES June 10, 2005 30TexReg 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 offacility, unless the owner or operator ofthe 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 thatemits, 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 . Amajor 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 ofthe 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 ofa facility/stationary source that causes a significant net emissions increase for any air contaminant for whicha national ambient air quality standard (NAAQS) has been issued. At a facility/stationary source that is not majorprior to the increase, the increase by itselfmust equal or exceed that specified in the MAJOR SOURCE column ofTable I ofthis 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 ofoperation shall not include:

(i) routine maintenance, repair, and replacement; (ii) use ofan alternative fuel or raw material by reason of an order underthe 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 ofan alternative fuel by reason ofan order or rule of 42 United States Code, §7425;

(iv) use ofan altemative fuel at a steam generating unit tothe extent that the fuel is generated from municipal solid waste; (v) use of an alternative fuel or rawmaterial by a stationary source that the source was capable ofaccommodatingbefore December 21, 1976(unless such changewould be prohibited underany 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 ofoperation 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 ofthe applicable state implementation plan.

(13) Net emissions increase--The amount by which the sumof 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 ifboth 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 tothe extent thatthe new level ofactual emissions exceeds the old level . (C) Adecrease 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 newlevel 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 nonattainmentpermit, orthe state has notrelied on the decrease todemonstrate attainment or reasonable further progress; and

(iv) the decrease has approximately the same qualitative significance for public health andwelfare as that attributed tothe increase from

the particular change. (D) An increase that results from aphysical change at a source occurs when the emissions unit onwhich 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 180days.

(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 oftotal actual reductions ofemissions to total allowable emissions increases of such pollutants. The minimumoffset 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 maximumcapacity of a facility/stationary source to emit a pollutant under its physical and operational design. Anyphysical or enforceable operational limitation on the capacity ofthe facility/stationary source toemit 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 

### 30TexReg3428 June 10, 2005 Texas Registerit would have on emissions is federally enforceable. Secondary emissions, as defined in 40Code ofFederal Regulations §51 .165(a)(1)(viii), do not count in determiningthe potentialtoemit for a stationary source.

(16) Project net--The sumofthe following: the total proposed increase in emissions resulting from a physical change or change in themethod ofoperation 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 creditabilitycriterialisted under the definition ofnet 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 fromthe 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 fromany off-site support facility that would not be constructed or increase its emissions, except as a result of the construction or operation ofthe major stationary source or major modification. Secondary emissions do not include any emissions that come directly froma mobile source such as emissions from the tail pipe ofa motor vehicle, froma train, or from a vessel . (18) Stationary source--Any building, structure, facility, or installation that emits or may emit any airpollutant subject to regulation under 42 United States Code, §§7401 et seq. This agency herebycertifiesthat theadoption hasbeen reviewed by legal counsel andfound to be avalid exercise of the agency's legal authority

. Filed with the Office of the Secretary of Stateon 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 30TAC §116.150 STATUTORYAUTHORITY 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 fromthe commission priorto 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 . NewMajorSource orMajorModification inOzoneNonattainment Areas. (a) This section applies to all newsource reviewauthorizations that are administratively complete after June 15, 2004, for new construction ormodification offacilities located in any area designated as nonattainment for ozone in accordance with 42 United States Code (USC), §7407. (b) The owner or operator ofa proposed new or modified facility that will be a newmajor stationary source of volatile organic compound (VOC) emissions or nitrogen oxides (NO) emissions, or the owner or operatorof an existing major stationary source ofVOCor 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 ofmajor modifications in §116.12ofthis title (relatingtoNonattainment Review Definitions) specifies thevarious classifications ofnonattainment alongwith the associated emission levels that designate a major stationary source or major modification for those classifications. (c) Except as noted in subsection (f) ofthis section regarding NO,, the de minimis threshold test (netting) is required for all modifications to existingmajor sources ofVOCorNO,, 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 tozero 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 newsource reviewpermit applications in these areas to be evaluated fornonattainmentnew source reviewaccording tothat 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 toexisting major sources ofVOCorNO, in that area, unless at least one ofthe 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 

### ADOPTEDRULES 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 newemission unit and to each existing emission unit at which the net emissions increase will occur as a result ofa physical change or change in method of operation ofthe 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 withall applicable state and federal emission limitations and standards.

(3) At the time the newor modified facility or facilities commence operation, the emissions increases from the new ormodified 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 100tpy ofan applicable nonattainment pollutant arenot required to undergo nonattainment new source reviewunderthis section, iftheproject increases are offset with internal offsets at a ratio ofat least 1 .3 to 1.

(B) Major stationary sources with a PTEofgreater than or equal to 100 tpy of an applicable nonattainment pollutant can substitute BACT for LAER, ifthe project increases are offset with internal offsets at a ratio of at least 1 .3to 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 ofthe proposed location and source configurationsignificantly 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 herebycertifiesthat theadoption hasbeen reviewed by legal counsel andfound to be a valid exercise of theagency'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 Forfurther information, please call : (512) 239-0348 

### TITLE 37. PUBLIC SA TIONS 

## PART 1 . TEXAS DE PUBLIC SAFETY CHAPTER4

. COMMER REGULATIONS ANDEN PROCEDURES SUBCHAPTERC

. 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 thesection 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 whichauthorizes thedepartment enforce the compulsory inspecti This agency herebycertifiesthat by legal counsel and found to be legal authority

. 

### IAL VEHICLE

ORCEMENT

afety adopts amendments to otor Vehicle Compulsory Insto 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 adoptrulesto administer and n of vehicles. eadoption hasbeen reviewed valid exercise of the agency's aryof State on May24, 2005 . TRD-200502077 Thomas A

. Davis, Jr. Director Texas Department of Public Safety Effective date: June 13, 2005 Proposal publication date: March 18 Forfurther information, please call : ( 

### CHAPTER 21 . EQUIP STANDARDS 37 TAC§Zi .i "



### 30TexReg 3430 June 10, 2005 Texas Register