# 10 t.PR -9 

# p;:j I: 5S Bryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. 

### Vickery, P.G., 

### ExecutiveDirector - '

. • \ "'. '

..' •• 'I "**~.,** i . !'



# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas byReducing andPreventingPollution 

### April 6, 2010

Docket No. 2009-0802-SIP, ProjectNo. 2009-017-SIP-NR Docket No. 2009-0932-RUL, Rule ProjectNo. 2009-006-101-EN Docket No. 2009;.0867-RUL, Rule Project No. 2009-019-101-EN

Al Armendariz, Ph.D, Regional Administrator U.S. Environmental ProtectionAgency

- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733

DearDr. Armendariz:

On March 10, 2010, the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP) for the control of ozone air pollution for the Houston-Galveston-Brazoria (HGB) area.

The Commission adopted amendments to 30 Texas Administrative Code (TAC) Chapter 101, Subchapter A, General Rules, Section 101.1; and SubchapterH, Emissions Banking and Trading, Division 6, Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program. Sections 101.390

- 101.394. 101.396 and 101.399

- 101.401:1 30 TAC Chapter 101, Subchapter H, Emissions Banking and Trading, Division 3, Mass Emissions Cap and Trade Program, Sections 101.350, 101.351, and 101.353 and corresponding revisions to the SIP; and anHGB AttainmentDemonstration SIP Revision for the 1997 Eight-Hour Ozone Standard. These rule changes and SIP revisions demonstrate that the HGB area 

## will attain the 1997 eight-hour ozone National Ambient

## Air Quality Standardby June 15, 2019.

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying orders. I lookforward to your expeditious approval ofthese SIP revisions.
Sincerely,

# B~~**B~haW,** Ph.D. 

## Chairman
BWS/jmm

Enclosures

cc: The HonorableRickPerry, Governor ofTexas 

## Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor 

## Mr. MarkR. Vickery, P.G., Executive Director, Texas Commission onEnvironmental Quality

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

# 10 APR -9 Pr,1 1: 55

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY BryanW. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. 

### Vickery, P.G., 

### ExecutiveDirector

Protecting Texas by

### ReducingandPreventingPollution 

## April 6, 2010

DocketNo. 2009-0802-SIP, Project No. 2009-017-SIP-NR DocketNo. 2009-0932-RUL, Rule ProjectNo. 2009-006-101-EN DocketNo. 2009-0867-RUL, Rule ProjectNo. 2009-019-101-EN



## Al Annendariz, Ph.D, Regional Administrator U.S. Environmental ProtectionAgency

- Region 6 1445 Ross Avenue Dallas, Texas 75202-2733

DearDr. Armendariz:

On March 10,2010, the Texas Commission on Environmental Quality (Commission) adopted revisions to the State hnplementation Plan (SIP) for the control of ozone air pollution for the Houston-Galveston-Brazoria (HGB) area.
The Commission adopted amendments to 30 Texas Administrative Code (TAC) Chapter 101, Subchapter A, General Rules, Section 101.1; and Subchapter H, Emissions Banking and Trading, Division 6, Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program, Sections 101.390

- 101.394, 101.396, and 101.399

- 101.401; 30 TAC Chapter 101, Subchapter H, Emissions Banking and Trading, Division 3, Mass Emissions Cap and Trade Program, Sections 101.350, 101.351, and 101.353 and corresponding revisions to the SIP; and an HGB Attainment Demonstration SIP Revision for the 1997 Eight-Hour Ozone Standard. These rule changes and SIP revisions demonstrate that the HGB area will attain the 1997 eight-hour ozone National AmbientAir Quality Standard by June 15,2019.

Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying orders. I 

## look forward to your expeditious approval ofthese SIPrevisions.
Sincerely, 

# B QM.W,/kzw-**B~haw,** Ph.D. Chairman BWS/jmm

Enclosures

cc: TheHonorable RickPerry, Governor ofTexas 

## Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. 

## Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
prmted on recycled paper u5ing soy-ba5ed ink

# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Docket No. 2009-0802-SIP 2009-0932-RUL 2009-0867-RUL

THE STATE OF TEXAS 

## COUNTY OF 1RA VIS

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

State hnplementation Plan, adopted on March 10,2010, pursuant to 40 Code ofFederal Regulations (C.F.R.) 

## §

51.104. I am the records administrator for the Air 

## Quality Division ofthe Texas Commission on Environmental
Quality (Commission).

# D~~~- Director, 

## Air QualityDivision Texas Commission onEnviromnental Quality

### Texas Commission on Environmental Quality Public Hearings October28 and 29. 2009 Concerning Revisions to 30 TAC Chapter 101 HECT Program Cap Reduction and Allowance Reallocation Rule Project No. 2009-006-101-EN

### INTRODUCTION

The Texas Commission on Environmental Quality (commission) held public hearings in Houston on
October28,2009, and Austin on October29,2009, to receive testimony regarding 30 TAC Chapter
101, General AirQuality Rules. SubchapterA, General Rules. §1 01.1; and SubchapterH, Emissions
Banking and Trading, Division 6, Highly Reactive Volatile Organic Compound Emissions Cap and

Trade Program, §§101.390

- 101.394, 101.396, and 101.399

- 101.401; and corresponding

revisions to the state implementation plan.

The adoption reduces the total cap amount of Highly Reactive Volatile Organic Compounds
(HRVOC) allowances and revises the allocation methodology of allowances for participants ofthe

HRVOC Emissions Cap and Trade Program. The adopted rulemaking also updatesthe definition of

volatile organic compound to linkthe 30 TAC definition with the current definition in Title 40 Code of

Federal Regulations, and corrects the reportable quantityfor 1,1,1 ,2,3,3,3-heptafluoropropane.

The comment period closed on November 9, 2009. All testimony and comments have been

reviewed and seriously considered. "rhis hearing record contains a complete record ofthe public
hearings and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o 

### Evaluation ofTestimony

o Staff Recommendations/Order

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park 35
Circle, Austin, Texas 78753. Forfurther information, please contact JayTonne at (512) 239-1453.

# PUBLIC NOTIFICATION AND PROPOSAL

### PUBLIC NOTIFICATION

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

1. Publication of notice of public hearings in the following newspapers on the date listed:

Austin American-Statesman, 

### September 28, 2009 Corpus Christi Caller-Times! 

### September 26, 2009 Houston Chronicle, 

### September 28,2009

2. Publication of the Notice of Public Hearings in the October 9, 2009, issue of the Texas Register


### (34 TexReg 7132)

3. Correspondence forwarding the notice of public hearing to the following officials and agencies:
Speaker of the House

Lieutenant Governor

Alamo Area Council of Governments
Capital Area Planning Council
City of Austin, Mayor's Office
City of EI Paso City of Houston, Mayor's Office City of Victoria Planning Department

Dallas Department of Environmental and Health Services

Dallas Department of Aviation

East Texas Council of Governments

EI Paso Metropolitan Planning Organization

Federal Highway Administration

Fort Worth Environmental Management Department

### Galveston County Health District

Houston Department of Health and Human Services

Harris County Public Health and Environmental Services

Houston-Galveston Area Council

North Central Texas Council of Governments

South East Texas Regional Planning Commission

Texas Department of Transportation

Texas Transportation Institute

Travis County Judge

Arkansas Department of Pollution Control and Ecology

Louisiana Department of Environmental Quality

New Mexico Environmental Department

Oklahoma Department of Environmental Quality

U. S. Environmental Protection Agency

## Example of NewspaperClassified Ad Corpus ChristiCalJer-Times, September26, 2009**~onCE** OF pUBuCllChapter 101, SuD=llli'earing. -, 

# I HURlNG& iohapter A. 5101.1,

. BYTHETEXAS jDeflnltlons J would uP-Persons planning to COMMISSION ON Idate the aerlnlt/on of.attend the hearing, 

### I ENVIRONMENTAL volatile orftanlc com-,who han specia QUAUTY pound to nk the 30 communication or
I ON PROPOSED RE. T AC definition with, other accommodation VISIONS TO 30TAC the current deflnltlonlneeds, should con

### CHAPTER 101 In 

### 40 Code 

## at Federal 

# I tact Charlotte Horn, ANDTOTHE RegUlations and cor-TeXIS Register Team STATEIMPLEMEN- Irect the reportable 1'(612)**239-0m~.** ReTAnON PLAN qua n tit Y for quests should be

. '1,1,1,2,3,3,3-hepta·lmade II far In ad- 'The Texas Commls. fluoropropane. The ivance 

### as poulble. s ion 0 n proposed amend·! 

## .e: n v 

### I ron m.a nta 

### I ment 

### to Chapter 101, ,Comments may be Quality (commission) Subchapter 

### H, OM· lsubmltted to Jessica 

### will conduct concur. lion 

### B, Highly· !Rawllngl, Texas rent public hearings Reactive Volatile Or·'

# IRegister Team, Of· 

### to receive testimony :ganlc Compound flce of Legal regarding propoeeil IEmlaslons Cap and ,Services, Texas reVisions to 30 TAC Trade Program, ICommlsslon en EnvlChapter 101. General Iwould also reduce Ironmental Quality, Air Quality Rules [the 

### tolal cap amount MC 205, 

### P.O. Box SUbchapter 

### A.**Defin~** 

## at allowances and 

### re- 113087, Austin, Texas t Ion s , and lvlse the allocation \78711-3087. or faxed Subchapter H, Emle- imsthodology of al· ,to (512) 239-4808. slons Banking and ,low. an c e a for !Electronlc comments Trading, Division 

### B, Ipartlclpants In ths /may be aubmltted at. Hlghly-Redve Vola- /HighIY-Reactive Vola· ,www5.teeq.state.tx.u tile 0 r g a n lot 11 e 0 r g a n I c Ialrulealecommentsl. Compound Emla•."Compound Emls- File size restrictions slons Cap and Trade 

### !slena cap and Trade may apply to comProgram, and corre. 

# IProgram. (Rule Pro- !min t8 bel n 

### 9 spondlng revl8lons to 

## .'20!.,c:..J,. No. !submltted via the the state.lmplemente. I

.............101-EN) 

# I&comments system. tlon plan (SlP) under :\.

.Copies of the pro· the requlraments of Public hearings for 

### Iposed rules can be Texas Health and Ithls proposea rule- iobtained from the Safety Code ,m a kin g and Icommlsalon's Web '§382.017j

### Texa~ ,corresponding SIP 

# IS I tea t Government Code 'revl,lon are ached· htlp://wWW.teeq.stat8. Chapter 2001, Sub: uled In conJunction

.tx.iJsInav/rulealpropo ohapter B; and 40 ,with the propoled I. ae_adopt.html. Cop- Code of Federal ,amendments to :Ie. of the propoll8d Regulations 151102 IChapter 101, Sub· 'SIP revisions and all of the United states :chapter HI Plvlllon 3, 

### iappendices can be Environmental Pro. IMall Em esJon. Cap \obtained from the taction Agency (EPA) ,and Tra.de (MECT)**i~ommlsslon's** Web concerning SIPs. iprogram. and Chap- \s I t a a t ter 115, Subchapter 

### ihttp://wWW.tceq.state. The proposed E• Division 4, Offellt ltx.us/lmplementaia men dm e nts to, iLlthographlc Printing Itlon lai 

### r/81 plHot
....1 rat the following timu Itcp.html. For further iand locations: 

### Octo- 

### iInformation regarding ber 28, 2009, 2:00 

## Ithe proposed rule. ,p.m. and B:OO JI.m., ;and SIP revisions, In Conference Room iplease contact Ray A at the Houston- iSchubert Air QuaRty Galveston Area :Plannlng'Sectlon at iCouncil, 3555 Tim- !(512) 239-6815. • 

### ;mons Lane, Houston; and In Austin on Oc-ISIlIIld In Austin, Textober 29,**2~09,** 1:00 '81, on**~ptember** 23" ,p.m. and 3.00 p.m"@09. iat the Texas Com1m I I I Jon 0 n !Envlronmental IQuality complax, ·.,Bulldlng E, Room 2018, 12100 Park 35

. 1Circle. The hearings iwill be structured for Itile receipt of oral or :written comments by ,Interested personl. I Registration will belgin SO minutes prior i

### to each hearing. Indl- :viduels may pre.ent :oral statements when icalled upon In order !of registration. There iwill be no open dis- :cullion during the

i hearing; however, icammisslon staff :members will be 'available to discuss 

### ithe proposals SO miniutes before each :hearing and 

### will an- ,awer questions i,betore and after tile,

### Example of Newspaper Classified Ad

Houston Chronicle, 

### September 28, 2009

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# •

Notice ofPublic Hearings on Proposed Revisions to 30 TAC Chapters 101 and 115 and to the State Implementation Plan
The Texas Commission on Environmental Quality (commission) will conduct public hearings to receive testimony. regarding proposed revisions to 30 TAC Chapter 101, General Air Quality Rules, and 30 TAC Chapter 115, Control ofAir Pollution from Volatile Organic Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederal Regulations §51.102, of the United States Environmental ProtectionAgency (EPA) concerning SIPs. The proposed amendments to Chapter 101, Subchapter A, §101.1, Definitions, would update the definition of volatile organic com· pound to link the 30 TAC definition with the current definition in 40 Code ofFederal Regulations and correct the reportable quantity for 1,1,1,2,3,3,3·heptafluoropropane. The proposed amendment to Chapter 101, Subchapter 

### H, Division 6, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program, would also reduce the total cap amount ofallowances and revise the allocation methodology ofallowances for participants in the Highly-Reactive Volatile Organic CompoundEmissions Cap and Trade

### Program. (Rule Project No. 2009-806-101-EN) Public hearings for this proposed rulemaking and corresponding SIP revision are scheduled in conjunction with the proposed amendments to Chapter 101, Subchapter H, Division 3, Mass Emissions Cap and Trade (MECT) program; and Chapter 115, Subchapter E, Division 4, Offset Lithographic Printing atthe following times and locations: October28, 2009, 2:00 p.m. and 6:00 p.m., in Conference Room A atthe Houston-Galveston Area Council, 3555 Timmons Lane, Houston; and in Austin on October 29, 2009, 1:00 p.m. and 3:00 p.m., at the Texas Commission on Environmental Quality complex, Building E, Room 201S, 12100 Park 35 Circle. The hearings will be structured for the receiptoforal orwrittencomments by interestedpersons. Registration will begin 30 minutes prior to each hearing. Individuals may present oral statements when called upon in order ofregistration. There will be no open discussion during the hearing; however, commission staff members will be available to discuss the proposals 30 minutes before each hearing and will answer questions before and after the hearing.
Persons planning to attend the hearing, who have special communication or other accommodation needs, should contact Charlotte Horn, Texas Register Team (512) 239-0779. Requests should be made as far in advance as possible.
Comments may be submitted to Jessica Rawlings, Texas Register Team, Office ofLegal Services, Texas Commission on Environmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711·3087, or faxed to (512) 239-4808. Electronic comments may be submitted at www5.tceq.state.tx.uslruleslecommentsl. File sizerestrictions may apply to comments being submitted via the eComments system. Copies ofthe proposedrules can be obtained from the commission's Web site at http://www.tceq.state.tx.uslnovlrulesipropose

_adopt.hlml. Copies ofthe proposed SIP revisions and all appendices can be obtained from the commission's Web site at http://www.tceq.state.tx.uslimplementation/airlsipIHottop.html. For further information regarding the proposed rules and SIP revisions, please contact Ray Schubert, Air Quality Planning Section, at (512) 239·6615.
TRD-200904274 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: September 25,2009 

# •• • (TCEQ) for proposedRegistratio No. 40243, to constructand operate
a Type V municipal solid waste tr sfer station. The proposed facility, River City Recycles, will be locat d 8000 Daffan Lane, Austin, Texas 78724, in Travis County. This fi ility is requesting authorization to recycle andtransfermunicipal sol' waste which includes construction and demolition waste. The regi tion application is available for viewing and copying at the TCE Region 11 Office, 2800 S. 

# m: 35, Suite 100, Austin, Travis County, 78704·5712.
PUBLIC COMMENT/PUBLIC ETING. Writtenpublic comments
orwrittenrequests for apublic me ting mustbe submittedto the Office ofChiefClerkatthe address inclu d inthe information sectionbelow. Commentsmay also 

### bereceivedi public meeting isheld onthe facil· ity. A public meetingwill beheld y the executive directorifrequested by a member of

### the legislature w represents the general area where the development is to 

### be located, r ifthere is a substantial public in· terestinthe proposed developmen

. Thepurpose ofthe public meeting is for the public to provide input 

### f1 r consideration by the commission, and for the applicant and the co ission staffto provide information to the public. A public meeting i not a contested case hearing. The executive directorwillreview and nsiderpublic comments and writ· ten requests for a public meeting bmitted prior to 

### the notice offinal determination. The executive dire tor is notrequired to file a response to comments. EXECUTIVE DIRECTOR ACTI N. The executive director shall, af· ter review ofan application for re istration, determine ifthe application will be approved or denied' whole or in part. Ifthe executive director 

### acts on an application, th chiefclerk shall mail or otherwise transmit notice ofthe action and explanation ofthe opportunity to file a motion to reconsiderthe exe utive director's decision. The chief clerkshallmail this notice tothe 0 erand operator, the public interest counsel, to adjacent landowners as shown onthe required land ownership map and landowners list, an to other persons who timely filed public comment in response to p lic notice. Not all persons on the mailing list for this notice will rec 've the notice letterfrom the Office ofthe ChiefClerk.
INFORMATION. Written public mments or requests to be placed

on the permanent mailing list 

### fi this application should be submitted to the Office ofthe Chief lerk, MC 105, TCEQ, P.O. Box 13087, Austin, TX 78711·308 or electronically submitted to http://wwwS.tceq.state.tx.uslecmnindex.cfin. Individual members of

### the general public may contact the Office ofPublic Assistance at 1·800-687-4040. General inform tion regarding the TCEQ can 

### be found at our web site at www.q.state.tx.us. Further information may also be obtained from Ms. n Rodewald at the address stated above orby calling (512) 832·830

. TRD-200904422 LaDonna Castatluela Chief Clerk Texas Commission on Environmen Filed: September 30, 2009 

# •

Notice ofPublic Hearings on Proposed Revisions to 30 TAC Chapter 101 and to the State Implementation Plan
The Texas Commission on Environmental Quality (commission) will conduct concurrent public hearings to receive testimony regarding proposedrevisions to 30 TAC Chapter 101, General Air Quality Rules, SubchapterA, Definitions, and Subchapter H, Emissions Banking and Trading, Division 6, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program, and corresponding revisions to the state implementation plan (SIP) under the requirements ofTexas



## 34 Tex.Reg 7132 

## October9, 

## 2009 Texas Register

# • Compounds and corresponding revisions to the state implementation plan (SIP) under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederal Regulations §51.102, and the United States Environmental Protection Agency (EPA) concerning SIPs. Additionally, the commission will also receive testimony regarding the proposed eight-hour ozone attainment demonstration and reasonable further progress (RFP) demonstration for the Houston-Galveston-Brazoria (HGB) area. The proposed amendment to Chapter 101, Subchapter 

### H, Division 3, Mass Emissions Cap and Trade (MECT) Program, would revise the definition of"Uncontrolleddesign capacity" to provide additionalflexibility for certain stationary diesel engines and clarifY both site and facility applicability. In addition, the proposed amendment would maintain the integrity ofthe nitrogen oxides (N0x) cap in the HGB ozone nonattainment area and minimize increases in the NOx cap by discontinuing the acceptance oflate ECT-3 forms, Level ofActivity Certification, from major sources ofNOx submitted after March 30, 2010. (Rule Project No. 2009-019-101-EN)
The proposed amendment to Chapter 10I, Subchapter 

### H, Division 6, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program, would reduce the total cap amount ofallowances and revise the allocationmethodology ofallowances forparticipants inthe Highly-Reactive Volatile Organic Compound (HRVOC) Emissions Cap and Trade Program. A proposed amendmentto § 101.1 would also update the definition ofvolatile organic compound (VOC) to link the 30 TAC definition with the current definition in 40 Code ofFederal Regulations and correct the reportable quantity for 1,I,I,2,3,3,3-heptafluoropropane. (Rule Project No. 2009-006-101-EN)
The proposed amendments to Chapter 115, Subchapter E, Division 4, OffsetLithographic Printing, wouldreduce the VOC content limits on fountain solutions usedby sourcesthatare subjecttothe existing Chapter 115 rules. The proposed rulemaking would also limit the VOC content offountain and cleaning solutions used by certain sources that

are exempt from the existing Chapter 115 rules. (Rule Project No. 2008-019-115-EN)
The proposed HGB Attainment Demonstration SIP revision contains Federal Clean AirAct-required SIP elements, including a photochemical modeling analysis, a weight ofevidence analysis, a reasonable available control technology (RACT) analysis, a reasonably available control measures (RACM) analysis, a motor vehicle emissions budget (MVEB) for 2018, and a contingency plan. In addition, the Houston-Galveston Area Council 

### has committed to emissions reductions through the Voluntary Mobile Emission Reduction Program and implementation oftransportation control measures. The proposed revision also describes the concurrently proposed rule revisions in Chapters 101 and 115. The commission is 

### also soliciting comments on whether it is appropriate to perform a 1997 eight-hour ozone standard mid-course review analysis, and, 

### ifso, what elements should be contained in the analysis. The commission is also seeking input on the appropriate date to submit the mid-course review. (Rule Project No. 2009-017-SIP-NnR)
The proposed HGB Eight-Hour Ozone Nonattainment Area 

### RFP SIP revision demonstratesthatthe 18percentozoneprecursoremissions reductionrequirementwillbemetforthe analysisperiodof2002to 2008, 9 percent between 2009 and 2011,9 percent between 2012 and 2014, 9 percent between 2015 and 2017, 3 percent in 2018, and 3 percent forcontingencypurposes. This revision also includes arevised MVEB for the milestone years 2008,2011,2014,2017, and 2018. No new on-road mobile source controls have been adopted as part ofthe plan. However, on-road mobile source emissions inventories have been updatedusingthe latestavailable

### dataandthe EPA'sMOBILE6 inventory development tool. As a result ofthe required mobile source emission inventory updates, the MVEBs are updated as part ofthis SIP revision. (Rule Project No. 2009-018-SIP-NnR)
Public hearings on these proposals will be held at the following times and locations: October 28, 2009, 2:00 p.m. and 6:00 p.m., in ConferenceRoomA atthe Houston-Galveston AreaCouncil, 3555 Timmons Lane, Houston; and in Austin on October 29, 2009, 3:00 p.m., at the Texas Commission on Environmental Quality complex, Building E, Room 201S, 12100 Park 35 Circle. The hearings will be structured for the receipt oforal or written comments by interested persons. Registration will begin 30 minutes priorto each hearing. Individuals may presentoral statementswhen calledupon inorderof registration. There will be no open discussion during the hearing; however, commission staffmembers will be available to discussthe proposals 30 minutes before each hearing and will answer questions before and afterthe hearing.
Persons planning to attend the hearing, who have special communication or other accommodation needs, should contact Charlotte Hom, Texas Register Team (512) 239-0779. Requests should be made as far in advance as possible.
Comments may be submitted to Jessica Rawlings, Texas Register Team, Office ofLegal Services, Texas Commission on Environmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at 

### www5.tceq.state.tx.us/rules/ecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference the rule or SIP project number that the comment pertains to: Rule Project No. 2009-019-101-EN for the proposed MECT rule amendments, Rule Project No. 2009-006-101-EN for the proposed HRVOC rule amendments, Rule Project No. 2008-019-115-EN for the proposed VOC rule amendments, SIP Project No. 2009-017-SIP-NnR for the proposed HGB Attainment Demonstration SIP revision and SIP Project No. 2009-018-SIP-NnR for the proposed HGB RFP SIP revision. Comments must be received by November 9, 2009. Copies of the proposed rules can be obtained from the commission's Web site at 

### http://www.tceq.state.tx.us/nav/ruleslpropose

_adopt.html. Copies of the proposed SIP revisions and all appendices can be obtained from the commission's Web site at 

### http://www.tceq.state.tx.us/implementation/air/siplHottop.html. For further information regarding the proposed rules and SIP 'revisions, please contact Ray Schubert, 

### Air Quality Planning Section, at (512) 239-6615.
TRD-200904267 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: September 25, 2009 

# •
Notice ofPublic Hearings on P oposed Revisions to 30 TAC Chapter 115 and to the State 1 plernentation Plan
The Texas Commission on Enviro ental Quality (commission) will conduct public hearings to rece e testimony regarding proposed revisions to 30 TAC Chapter 10 , General Air Quality Rules, and 30 TAC Chapter 115, Control of

. Pollution from Volatile Organic Compounds and corresponding re isions to the state implementation plan (SIP) under the requiremen ofTexas Health and Safety Code, §382.017; Texas Government C de, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulati ns §51.102, and the United States Environmental Protection Agenc (EPA) concerning SIPs. Additionally, the commission will al receive testimony regarding the



## INADDITION October 9, 

## 2009 34 

## TexReg 7133

### BryanW. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner. Carlos Rubinstein, 

### Commissioner Mark R. 

### Vickery, P.G., 

### ExecutiveDirector



# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by

### ReducingandPreventingPollution



## NOTICE OFPUBLIC HEARINGS BYTHE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ONPROPOSED REVISIONS TO 30 TAC CHAPTER. 101 AND TO THE STATEIMPLEMENTATIONPLAN

The Texas Commission onEnvironmental Quality 

## (commission) will conduct concurrentpublic hearings

to 

## receive testimony regarding proposed revisions to 

## 30 TAt Chapter 101, General Air Quality 

## Rules, Subchapter A, 

## Definitions, and Subchapter H, 

## Emissions Banking and Trading, Division 6, HighlyReactive Volatile Organic Compound Emissions Cap and Trade Program, and corresponding revisions to 

## the state 

## implementation plan (SlP) under the requirements ofTexas Health 

## and Safety 

## Code, §382.0l7;
Texas Government 

## Code, Chapter 2001, SubchapterB; and 40 

## Code ofFederal Regulations §51.102, of theUnited States EnvironmentalProtectionAgency (EPA) concerning SIPs.

The proposed amendments to 

## Chapter 101, Subchapter A, 

## §101.l, Definitions, would update the 

## definition ofvolatile organic compound to 

## link 

## the 30 TAC definition with 

## the current definition in 40 Code of Federal Regulations and correct the reportable quantity 

## for l,l,l,2,3,3,3-heptafluoropropane. The proposed amendment to 

## Chapter 101, Subchapter H, 

## Division 6, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program, would alsoreduce the total 

## cap amount ofallowances and revise the allocation methodology ofallowances for participants in the Highly-Reactive Volatile Organic CompoundEmissions Cap and TradeProgram. (RuleProjectNo. 2009-006-101-EN)



## Public hearings for this 

## proposed rulemaking and corresponding SlP revision are scheduled in conjunction with the proposed amendments to 

## Chapter 101, Subchapter H, 

## Division 3, Mass Emissions Cap and Trade (MEeT) 

## program.; and 

## Chapter lIS, Subchapter E, Division 4, 

## Offset Lithographic Printing at 

## the 

## following times and locations: October 28, 2009, 2:00 p.m. and 6:00 p.m., in Conference
Room A at 

## the Houston-Galveston Area 

## Council, 3555 Timmons Lane, Houston; and in Austin on October29,2009,1:00 p.m. and 3:00p.m., atthe Texas Commission onEnvironmental Quality 

## complex, Building E, Room 201S, 12100 Park 35 Circle. The hearings will 

## be structured for the receipt oforal 

## or written comments by 

## interested persons. Registration will begin 

## 30 minutes prior to 

## each hearing. Individuals may present oral 

## statements when called upon in order ofregistration. There will'

## be no open

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
prinlc<.l un recycled rapt!" usinJ,1**soy-ba~;eti** ink

## discussion during the hearing; however, commission staff members will be available to discuss the proposals 30 minutes before each hearing and will answer questions before and afterthehearing.

Persons planning to attendthe hearing, who have special communication or other accommodation needs, should contact Charlotte Hom, Texas Register Team (512) 239-0779. Requests shouldbe made as far 

## in advance as possible.

Comments may be submitted to Jessica Rawlings, Texas RegisterTeam, Office ofLegal Services, Texas Commission onEnvironmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to 

## (512) 239-4808. Electronic comments may be submitted at

## www5.tceq.state.tx.us/ruIesiecommentsi. File size restrictions may apply to 

## comments being submitted via the eComments system. Copies ofthe proposed rules can be obtained from the commission's Web site 

## at http://www.tceq.state.tx.us/nav/ruIes/propose_adopt.html. Copies ofthe proposed SIP revisions and all appendices can be obtained from the commission's Web site 

## at http://www.tceq.state.tx.us/implementation/air/sip/Hottop.html. For further information regarding the proposed rules and SIP revisions, please contact Ray Schubert, Air 

## Quality Planning Section, at (S 12) 239-6615.



## IssuedinAustin, Texas, onSeptember23, 

## 2009.

### Bryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. 

### Vickery, P.G., 

### ExecutiveDirector



# TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by

### Reducing andPreventingPollution


## NOTICE OF PUBLIC HEARINGS BY THE TEXAS COMMISSION ONENVIRONMENTAL QUALITY ON PROPOSED REvIsIONS TO 30 TAC CHAPTERS 

## 101 AND 115, AND 

## TO THE 

## STATE IMPLEMENTATION PLAN

The Texas Commission on Environmental Quality (commission) will conduct public hearings to receive testimony regarding proposed revisions 

## to 30 TAC Chapter 101, General Air Quality Rules, and 30 TAC Chapter lIS, Control of

## Air Pollution from Volatile Organic Compounds and corresponding revisions 

## to the state implementation plan (SIP) under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter2001, SubchapterB; and 40 Code ofFederal Regulations §51.102, and the United States Environmental Protection Agency (EPA) concerning SlPs. Additionally, the commission will also receive testimony regarding the proposed eight-hour ozone attainment demonstration and reasonable further progress (RFP) 

## demonstration for the 

## Houston-Galveston-Brazoria (HGB) area.

The proposed amendment to Chapter 101, Subchapter H, Division 3, Mass Emissions Cap and Trade (MEeT) 

## Program, would revise the definition of "Uncontrolled design. capacity" to provide additional flexibility for certain stationary diesel engines and clarifyboth site and facility applicability. 

## In addition, the proposed amendment would maintain the integrity ofthe nitrogen oxides (N0x) 

## cap in the HGB
ozone nonattainment area and minimize increases in the NOx cap by discontinuing the acceptance oflate ECT-3 forms, Level of Activity Certification, from major sources of NOx 

## submitted after 

## March 30, 2010. (Rule ProjectNo. 2009-019-101-EN)

The proposed amendment to Chapter 101, Subchapter H, Division 6, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program, would reduce the total cap am01.Dlt of allowances and revise the allocation methodology ofallowances for participants in the Highly-Reactive Volatile Organic Compound (HRVOC) Emissions Cap and Trade Program. A proposed amendment to §lOI.l would also update the definition ofvolatile organic compound (VOC) to link the 30 TAC definition with the current definition in 40 Code of Federal Regulations and correct the reportable quantity for 1,1,1,2,3,3,3- heptafluoropropane. (Rule ProjectNo. 2009-006-101-EN)

Theproposed amendments to Chapter 115, SubchapterE, Division 4, OffsetLithographic Printing, would reduce the VOC content limits on fountain solutions used by sources that are subject to the existing Chapter 115 rules. The proposed rulemaking would also limit the VOC content offountain and cleaning solutions used by certain sources that 

## are exempt from the existing Chapter 115 rules. (Rule Project No. 2008-019-115-EN)

The proposed HGB AttainmentDemonstration SIP revision contains Federal Clean Air 

## Act-required SIP elements, including a photochemical modeling analysis, a weight of evidence analysis, a reasonable available control technology (RACT) analysis, areasonably available control measures (RACM) analysis,
a motor vehicle emissions budget (MVEB) for 2018, and a contingency plan. In 

## addition, the HoustonGalveston Area Council has committed to emissions reductions through the Vohmtary Mobile Emission Reduction Program and implementation oftransportation control measures. The proposed revision also describes the concmrently proposed rule revisions in 

## Chapters 101 and 115. The commission is also

## soliciting comments on whether it is appropriate to 

## perform a 1997 eight-hour ozone standard mid-eourse review analysis, and, if so, what elements should be contained in the analysis. The commission is also seeking input on the appropriate date to submit the mid-course review. (Rule Project No. 2009-017-SIPNR)

.


## The proposed HGB Eight-Hour Ozone Nonattainment Area RFP SIP revision demonstrates that the 18 percent ozone precursor emissions reduction requirement will be met for the analysis period of2002 to 2008, 9 percent between 2009 and 2011,9 percent between 2012 and 2014, 9 percent between 2015 and 2017, 3 percent in 2018, and 3 percent for contingency purposes. This revision also includes a revised MVEB 

## for the milestone years 2008, 2011, 2014, 2017, and 2018. No new on-road mobile source controls have been adopted as part ofthe plan. However, on-road mobile source emissions inventories have been updated using the latest available data and the EPA's MOBILE6 inventory development tool. As 

## a result ofthe required mobile source emission inventory updates, the MVEBs are updated as part of this SIP revision. (Rule ProjectNo. 2009-018-SIP-NR)

Public hearings on these proposals will be held at the following times and locations: October 28,2009, 2:00 p.m. and 6:00 p.m., in Conference Room A at the Houston-Galveston Area Council, 3555 Timmons Lane, Houston; and in Austin on October 29, 2009, 3:00 p.m., at the Texas Commission on Environmental Quality complex, Building E, Room 201S, 12100 Park 35 Circle. 

## The hearings will be structured for the receipt oforal or 

## written connnents by interested persons. Registration will begin 30 minutes prior to 

## each hearing. Individuals may present 

## oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff 

## members will be available 

## to discuss the proposals 30 minutes before eachhearing and will answerquestions before and after the hearing.

Persons planning 

## to attend the hearing, who have special communication or other accommodation needs, should contact Charlotte Horn, Texas Register Team (512) 239-0779. Requests should 

## be made as far in advance 

## as possible.

Comments may be submitted 

## to Jessica Rawlings, Texas Register Team, Office ofLegal Services, Texas Commission'onEnvironmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to 

## (512) 239-4808. Electronic comments may be submitted at www5.tceq.state.tx.us/rules/ecomments/. 

## File size restrictions may apply 

## to comments being submitted via the eComments system. All comments should reference the rule or SIP project number that the comment pertains 

## to: Rule Project No. 2009-019-101-EN for the proposed MECfrule amendments, Rule Project No. 2009-006-101-EN for the proposed BRVOC rule amendments, Rule Project No. 2008-019-llS-EN for the proposed VOC rule amendments, SIP Project No. 2009-017-SIP-NR for the proposed 

## HGB Attainment Demonstration SIP revision and SIP Project No. 2009-018-SIP-NR for the proposed 

## HGB RFP SIP revision. Comments must be received by November 9, 2009. Copies ofthe proposed rules can be obtained from the commission1s Web site at http://www.tceq.state.tx.us/nav/ruJes/propose_adopt.html. 

## Copies 

## ofthe proposed SIP revisions and 

## all appendices can be obtained from the commission's Web site at http://www.tceq.state.tx.us/implementation/air/siplHottop.html. 

## For further information regarding the proposed rules and SIP revisions, please contact Ray Schubert, Air Quality Planning Section, at (512) 239-6615.

Issued in Austin, Texas, on September23,2009.

### a school district under the TEC, Chapter 39**[~],** 

### for failure to comply withthe OFSDP requirements ofthis section. This agency herebycertifies thatthe proposal has been reviewed by legal counsel and found 

## to bewithin the agency's legal authority to adopt.

Filed with the Office ofthe Secretary of State on September 28,
2009.
TRD-200904304 Cristina De La Fuente-Valadez Diredor, Policy Coordination Texas Education Agency Earliest possible date of adoption: November 8, 2009 For further information, please call: (512) 475-1497 

# • • • TITLE 22. EXAMINING BOARDS 

# PART 3. TEXAS BOARD OF CHIROPRACTIC EXAMINERS
CHAPTER 73. LICENSES AND RENEWALS
22 TAC §73.7 The Texas Board ofChiropractic Examiners (Board) proposes an amendment to §73.7, Approved Continuing Education Courses, to remove a reference to the specific 

### fee amount for submittal of an application for board approval of a continUing education course. The specific amounts for all board fees are listed in §75.7, Required Fees and Charges. Glenn Par1<er, Executive Director, has determined that for each year ofthe firstfive years thatthis amended rule is in effectthere will be no additional cost to state or local governments. Mr. Par1<er has also determined that for each yearofthe first five years that this amended rule is in effectthe public benefit will be that §73.7 will not need to be amended should the board change the 

### fee for submittal ofan application for approval ofa continuing education course. Mr. Par1<er has also determined that there will be no adverse economic effect to individuals, small or micro businesses during the first five years that this amended rule will be in effect as this rule imposes no burdens. Comments on the proposed amendment to §73.7 and/or a request for a public hearing on the proposed rule amendment may 

### be submitted to Glenn Par1<er, Executive Director, Texas State Board of Chiropractic Examiners, 333 Guadalupe St., Tower III, Suite 825, Austin, TX 78701, (512) 305-6705 

### fax, no later than 30 days from the date that this proposed amendment is published in the 

### Texas Register. The rule amendment is proposed under Texas Occupations Code §201.152, relating to rules and §201.356 relating to continuing education. Section 201.152 authorizes the Board to adopt rules necessary to regulate the practice of chiropractic; §201.356 requires the board to adopt rules concerning continuing education. No otherstatutes, articles, or codes are affected by the adopted rule. §73.7. ApprovedContinuing Education Courses. 

### (a)

- (b) 

### (No change.) (c) Application deadline and fee. A sponsor may submit an application no laterthan 60 days priorto the date ofthe course, along with a nonrefundable application fee as set by the board 

### [ef

### W] for eachcourse. Forthe purpose ofthis subsection, wherethe same course isheldinmultiplecitiesortowns, withdifferentspeakers, eachlocation is considered a separate course. If

### a continuing education program consists ofseparate sessions or modules, on different topics and on differentdates, each sessionormoduleis consideredaseparatecourse. (d) • G) 

### (No change.) This agency herebycertifiesthatthe proposal has been reviewed by legal counsel and found to bewithin the agency's legal authority to adopt.

Filed with the Office ofthe Secretary of State on September 25, 2009.
TRD-200904281 Glenn Parker Executive Director Texas Board of Chiropractic Examiners Earliest possible date of adoption: November 8, 2009 For further information, please call: (512) 305-6901 

# • • • TITLE 30. ENVIRONMENTAL QUALITY 

# PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 101. GENERAL AIR QUALITY RULES
The Texas Commission on Environmental Quality (commission
orTCEQ) proposes amendments

## to §§101.1, 101.390 -101.394, 101.396, and 101.399

- 101.401. The proposed sections will 

### be submitted 

## to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The Houston-Galveston-Brazoria (HGB) metropolitan area was designated nonattainment for the 1997 eight-hour ozone National Ambient Air Quality Standard (NMQS) as a moderate area effective June 15, 2004. In October 2008, the HGB area was reclassified as a severe ozone nonattainment area by the EPA as requested by the governor of Texas. The HGB area is required to attain the 1997 eight-hour ozone standard of 0.08 parts per million as expeditiously as practicable, but no laterthan by June 15, 2019. The EPA requires submittal of the HGB Attainment Demonstration SIP Revision for the 1997 Eight-Hour Ozone Standard by April 15, 2010. This rulemaking would be submitted as part ofthe HGB Attainment Demonstration SIP Revision for the 1997 Eight-Hour Ozone Standard. Photochemical modeling analysis demonstrates that a 25% reduction of the Highly Reactive Volatile Organic Compound (HRVOC) cap in Harris County would contribute to attainment of the 1997 eight-hour ozone NMQS by reducing the future 2018 ozone design values for all HGB area monitors. The largest reductions are projected at the Deer Par1< monitoring site, which is the area's driving design value monitor.



## PROPOSEDRULES October9, 

## 2009 34 

## TexReg 6989

### In addition, some regulated entities participating in the HRVOC Emissions Cap and Trade (HECn program have commented that the initial allocation of HRVOC allowances was not equitably distributed. The existing allocation methodology is based on the total amount, in pounds, of HRVOC produced as an intermediate, byprodUct, or final prodUct, or used by a process unit at each participating site. Subsequent analysis of the HRVOC emissions data reported underthe HECT program forthe 2007 and 2008 calendar-year control periods supports the assertion that some industry sectors may have been over-allocated while others may have received an insufficient allocation. Revisions to the rule are designed to result in a more equitable approach while establishing HRVOC limitations in support of HGB's attainment ofthe NAAOS as expeditiously as practicable. As part of the December 2004 HGB SIP mid-course review for the one-hourozone standard, the commission developed adual approach to achieve the necessary HRVOC reductions: address variable short-term emissions through a not-to-exceed hourly emission limit and address steady-state and routine emissions through an annual cap. The annual HRVOC cap reduced the overall reactivity in the airshed by removing the compounds that are most prevalent and most likely to react rapidly enough to cause one-hour ozone exceedances. For Harris County, the annual HRVOC cap was distributed and enforced through the HECT program under30TAC Chapter 101, Subchapter H, Division 6. This program established a mandatory annual HRVOC emissions cap on all sites subject to the HRVOC control requirements of30 TAC Chapter 115, SUbchapter H, Division 1 or Division 2, and having a potential to emit greaterthan ten tons peryear (tpy). The cap is enforced through the allocation, trading, and banking ofallowances. An allowance is the equivalent ofone ton of HRVOC emissions. This HRVOC cap, initially implemented on January 1, 2007, was established at a level demonstrated as necessary to allow the HGB area to attain the one-hour ozone standard along with a 5% reduction to safeguard against potential emissions variations. The HECT program also requires subject sites with new or modified HRVOC sources to obtain unused allowances for any increased HRVOC emissions from other sites already participating in the program. Forsites that have the potential to emitten tpy or less of HRVOC from sources subject to the HRVOC control requirements of Chapter 115, Subchapter H, Divisions 1 or 2, the total, aggregate HRVOC emissions from those sources is limited to ten tpy. Sites exemptfrom the HECT program were extended an opportunity to opt-in, receive an HRVOC allocation, and thereby not be restricted to the ten tpy limit. Proposed revisions to the HECT program underthis rulemaking would reduce the total HECTcap by 25% by the attainmentyear and revise the HRVOC allocation methodology to address inequitiesfrom the initial allocation. Photochemical modeling analysis demonstrates that a 25% reduction ofthe total HRVOC cap in Harris County would advance attainment of the 1997 eighthour ozone NAAOS by reducing the future 2018 ozone design values at all HGB monitors. The largest decrease in the projected design value, 0.24 parts per billion (ppb), was atthe Deer Park monitor. The average decrease for all sites was 0.11 ppb. HRVOC monitoring data reported for 2006

- 2008 indicates that the total actual emissions from sources in the HECT program have been approximately 50% ofthe total current HRVOC cap. Because the HRVOC rules in Chapter 115, Subchapter H, Divisions 1 and 2, require emissions from maintenance, startup, and shutdown activities and emissions events be included in the



## 34 Tex.Reg 6990 October9, 

## 2009 Texas Register HECT program, the total surplus observed in the two years that the program has been active cannot be removed. Therefore, a buffer in the cap is still needed to accountfor the inherent variability of HRVOC emissions associated with these activities. The proposed rule would implement an initial 10% reduction on the existing available cap of3,451.5tons beginning with the 2014 calendar-year control period. The available cap would then be reduced in a "stepdown" fashion, similar to the existing Mass Emissions Cap and Trade Program (MECT) for Nitrogen Oxide, in 5% increments at the start of each calendar-year control period for 2015, 2016, and 2017. Therefore, the full 25% cap reduction will have been in effectforone full calendar-year control period by January 1, 2018. While historical data demonstrates an overall surplus in the HRVOC cap, the cap reduction and reallocation may require some individual sites to install additional controls. The commission is therefore proposing this stepdown approach to allowcompaniestimeto install controls ifnecessary. Following the initial allocation of allowances, companies participating in the HECT program commented that the allocation was not eqUitably distributed. Emissions reported by industry based on their HRVOC monitoring data supports the assertion of an inequitable distribution of allowances. In addition, HECT program participants commented that certain HRVOC-emitting industry sectors were more adversely affected under the existing allocation methodology due to different HRVOC emission rates associated with production throughput. Facilities that use HRVOC as a raw material in the production ofolefins have higher HRVOC emissions associated with their process as compared to otherchemical manufactures and refineries. Therefore, under the existing HECT program, sites in the refineryand non-polymer chemical sectors generally have the largest excess HRVOC allowances as compared to actual emissions. HECT program participants also commented on the reluctance ofsites to trade due to the inclusion of emissions events in determining compliance with the program and the risk of trading away allowances that may be needed for compliance due to an emission event later in the calendar-year control period. The commission proposes to reallocate HRVOC allowances underthe HECT program based on actual emissions data and implement several significant program changes to encourage market activity through trading. The existing HECT allocation methodology is a level of activity production-based calculation ofthe total amount of HRVOC, in pounds, prodUced or used by a process unit. This productionbased methodology was developed prior to the implementation of monitoring requirements for applicable sources of HRVOC in Harris County. HECT program participants have been reporting actual monitored emissions datato the HECT program since 2006. The rule revision proposes a new allocation methodology based on actual emissions data with the goals of fairly and equitably distributing the compliance burden for HECT program participants, applying credit for controlling and reducing HRVOC emissions, and not rewarding or encouraging emissions from emissions events. Cap and trade programs aim to provide economic incentives for reducing emissions through controls by allowing excess allowances to be sold to other program participants. However, an allocation methodology based solely on actual emissions has the potential of penalizing sites that are well controlled and/or rewarding sites that are not well controlled. To allowfor applicable sites to establish a representative baseline emission period, the proposal would allow sites to usetheir two highest consecutive calendar-year control periods out of the four years from 2006

- 2009. The proposed rulemaking includes a provision for HECT participants thatqualifyto havethe abilityto requestfrom the executive director the use of an alternate baseline period from 2004 and 2005 for the purpose of establishing baseline emissions. The
owner or operator of a site must submit a request to the executive director by July 1, 2010, demonstrating that they were performing speciated testing and continuous flow monitoring of HRVOC emissions during the requested alternative baseline period. This provision is available for participants with substantial HRVOC reductions. In addition, the emission reductions mustbe permanent, voluntary, and quantifiable of an amount equal to or greaterthan 50% ofthe site's total annual HRVOC emissions or a site-wide reduction in HRVOC emissions subject to the HECT program of 50 tons or greater. The emissions reductions must also have been made enforceable under an action submitted to the executive director no later then April 1, 2010. Additionally, an owner or operator of qualifying sites not in operation dUring the baseline emissions period may requestto retain theircurrent allocation until an alternate baseline period is established. Beginning with the 2014 calendar-yearcontrol period, all sites under the HECT program will receive an allocation in accordance with the proposed allocation methodology. Allocations would then be distributed based on the new allocation methodology beginning with the 2011 calendar-year control period. Baseline emissions for the purpose of calCUlating the site allocations would be the average of the actual emissions forthe two consecutive calendar-yearcontrol periods as submitted in the Form ECT-6H, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Baseline Emissions Certification Form. Recent economic conditions have prompted concerns from industrythatthe 2006

- 2009years proposed forestablishing baseline emissions activity may not be representative of general production and emission rates due to the recent economic downturn. However, the proposed reallocation methodology is based on the percentage of individual site emissions contributing to the total indUStry sector emissions and the fraction that each industry sector's emissions make up toward the total of all HRVOC emissions in the county. Therefore, the proposed allocation of allowances for any individual site would not be significantly affected by general changes in economic conditions. An individual site's allocations would only be changed iftheir uncontrolled emissions significantly increased as a proportion of the total industry sector emissions. The commission is seeking comment on the proposal for establishing baseline emissions, including choosing the two highest consecutive calendar-year control 

### periods from the four-year period 2006

- 2009. The proposed reallocation methodology would be based on calculating "uncontrolled" or "precontrolled" emissions for facilities using reported control efficiencies based on the specifications for flares in 30 TAC §115.725(d). Dividing actual emissions by one minus the percent control efficiency calculates the amount of emissions before controls, therefore allowing sites, who have controlled their HRVOC emissions from flares well, to receive credit forthese reductions in the allocation. In addition, heaters, boilers, and furnaces combusting HRVOC streams would calculate "uncontrolled" emissions by dividing actual emissions by one minus a control efficiency of 99%. By allowing these facilities to claim a control efficiency of 99%, the methodology recognizes that the average percent control efficiency from these types of combustion units provides better combustion and control efficiency than flares due to their closed combustion design and higherflame temperatures. Otherfacilities subjectto Chapter 115, Subchapter H, Divisions 1 and 2, and the HECT program will be inclUded in the equation for calculating uncontrolled emissions, however because they do not have a specified control efficiency under Chapter 115, their uncontrolled emissions will be equal to their actual emissions. This methodology cannot accountforf1are-gas recovery, recycle streams, orotherprocesses resulting in differing emission control rates. Therefore, the commission is considering rule provisions to award credit for well controlled facilities that have installed flare minimization programs, flare gas recovery systems, HRVOC stream recycling and/or recirculation. The commission is seeking comment on suitable methodologies for awarding allowance credit forwell controlled facilities during reallocation. The proposed reallocation methodology also creates four industry-type sector pools to account for different HRVOC emission rates associated with the processes ofthe industry sectors with HRVOC emissions in Harris County. These industry sector definitions reflect those used in existing regulations and are readily defined by process type and product. The existing application of BestAvailable Control Technology (BACT) and other federal standards within industry sectors would assure a comparable cost of control within the industry sector, and the division of the cap into industry sector share would therefore reflect a more equitable allocation methodology. In addition, the amount of HRVOC prodUctthat is recycled and recovered forsites within the same industry sector should be comparable due to market forces and competition within the sector. Sites within industry sectors that produce HRVOC as prodUct share the economic incentive to reduce emissions using similar recovery techniques. The four industry sectors proposed are petroleum refining, nonpolymer chemical prodUcers, polymer producers, and storage/loading/other. The proposed methodology then calculates each sector's share of the available cap by dividing the total amount of actual average emissions over the emissions baseline period forthe sector by the total available cap. The resulting fraction expressed as a percentage becomes the industry sector share. Applying this sectorshare to the individual site allocation equation creates a methodology in which only facilities within the individual industry sectors compete with one another for allowances. Some sites contain facilities from two or more industry sectors, and these sites would be separated by the various facility process-type into "sub-sites" that would be included in the respective industry sectors, with emissions and allocations for the industry sector and site calculated accordingly. To address the reluctance of sites to trade HECT allowances in orderto reserve their allowances to cover emissions from emissions events under the current HECT program, the proposed reallocation methodology would create an emissions event setaside pool. This set-aside would come out of the available cap before allocation. The total HRVOC cap would therefore not be increased. The proposed emissions event set-aside amount of 250 tons is intended to exceed the anticipated HRVOC emissions from emissions events during any calendar-year control period. This amount is based on records of emissions events from the 2006 Special Inventory, 223 tons, and those associated with Hurricane Ike, 196 tons. HECT participating sites would still be held accountable for emissions events under the existing Chapter 101 regulations. The regulated community is undercontinuous pressure to prevent and control emissions events and there is a strong enforcement action mechanism in place to



## PROPOSEDRULES October9, 

## 2009 34 

## TexReg 6991

### discourage excessive emissions events. The use ofallowances from the set-aside by the agencyto cover emissions from emissionsevents from asitewould notin anyway alleviate or replace the site's compliance burden with other Chapter 101 and Chapter 115 regulations for emissions events. The 250ton emissionseventset-asidewould be solely dedicated to covering emissions from emissions events for all sites under the HECT program. Allowances from the set-aside would not be distributed to any individual site on any basis, and any 

## remaining allowances from the emissions event set-aside would not be available for sale or use as vintage allowances aftereach control period. Emissions from emissions events at individual sites would not be included in the calculation to determine the annual operating emissions for HECT account compliance until total emissions from emissions events in the county have exceeded the 250 ton set aside amount dUring any control 

### period. Emissions from reportable emissions events, as defined under §101.1 (87), in Harris County during each calendar-year control period would be counted toward the set-aside in reported chronological order to the State of Texas Environmental Electronic Reporting System (STEERS) until the end of each calendar-yearcontrol period 

### or until the set-aside amount of250 tons has been met. Allowances for non-reportable emissions from emissions events will be accounted underthe 250 ton set aside on March 31st after each calendar-year control period in order of reported chronology. Emissions from emissions events would be applied toward the 250 ton set-aside in actual pounds per hour of HRVOC emissions and would not be calculated according to the 1,200 pound per hour short-term limit allowed under existing §101.396(b). In the event that the sum total of emissions events in any control period exceeds the 250 ton amount, individual sites would be required to cover any emissions from emissions events in excess ofthe 250 ton set-aside from their allocation or through the acquisition of allowances on the open market. Therefore, emissions from reportable emissions events would in effect be counted toward the set-aside before emissions from non-reportable emissions events. Using a hypothetical Scenario: dUring an emergency in Harris County over a period at the end of August, a total of 240 tons of HRVOC were emitted as reportable emissions events from HECT participating sites. During the firstweek of September, an individual site had a one ton non-reportable emission event and asecond site had a nine ton reportable emission event. The 249 tons of emissions from reportable emissions events would be counted toward the 250ton set-asidewhen reported to STEERStwoweeks later. The oneton ofemissionsfrom the non-reportable emission event would be covered by the set-aside when the site submitted its ECT-1H, Annual Compliance Report, on March 31stofthe following year, in the event that there were no other reportable emissions events afterthe firstweek in September. These emissions would then be covered by the set-aside. Any and all emissions from emissions events reported as occurring afterthe 250 ton limitwas reached during the first week of Septemberwould be required to be covered byallowances from the individual site's compliance account. In order to allow HECT participants to plan facility operations and HECT program trades and activities, reportable emissions events during the calendar-year control period, reported to STEERS as a final record under §101.201(b), will be counted toward the 250 ton set-aside in chronologically reported order, posted quarterly, and made available to the public and EPA on the emissions banking and trading webpage. The commission is seeking comment and suggested alternatives on the proposed



## 34 TexReg 6992 

## October 9, 

## 2009 Texas Register approach for tracking and posting reportable emissions events and the status of emissions covered under the emission event set-aside for the purpose of HECT program planning, including methods to estimate and post non-reportable emissions events during the calendar-year control period. 

### As part of the reallocation methodology, the commission proposes to increase the minimum allocation from five to ten tons. The current HECTprogram includesa minimum allocation offive tons for all sites whose prodUct throughput/use level of activity-based allocation was less than or equal to five tons. However, the program also exempts sites with a potential to emit less than ten tons from the program. The original rationale for establishing the minimum allocation lower than the exemption level was to prevent companies with low emissions from "opting-in," and thereby automatically receiving allowances greater than their emissions. Under §101.392(b), any site 

### wishing to opt-in must have requested to participate by April 30, 2005. As there is no longer an opportunity for sites to "opt-in," the reallocation proposal would raise the minimum allocation toten tons in orderto meettheexemption level. Underthis proposal, siteswith a potential to emit equal to or greaterthan ten tons that are required to participate in the program, but with average emissions over the baseline period of less than ten tons, would receive a minimum ten ton allocation. According to the reallocation principals above, including a methodology based on average actual emissions from over the emissions baseline period, calculating "uncontrolled" or "precontrolled" emissions using reported control efficiencies, setting aside 250 tons for emissions events, and raising the minimum allocation to ten tons, the commission proposes a revised reallocation methodologyfor HRVOC allowances beginning with the 2011 calendar-year control period. The total modeled (future base) cap on HRVOC emissions in Harris County is currently 3,633.1 tons. Afterdeducting the required 5% EPAenvironmental contribution of 181.65 tons, the total HRVOC cap would be 3,451.4 tons. Afterthen subtracting the 250 ton emissions event set-aside, the commission will allocate 3,201.4 tonsto individual sites at the beginning ofthe 2011 calendar-year control period. 

### The first 10% cap stepdown would occuratthe beginning ofthe 2014 calendar-year control period. The total amount of HRVOC allowances available in 2014 would therefore be 3,106.3 tons. After subtracting the 250 ton emissions event set-aside, the commission will allocate 2,856.3 tons to individual sites in the 2014 calendar-year control period. The proposed rulemaking would then continue to reduce the cap to a total of 25% in annual 5% reductions from 2015 to 2017. Therefore, the final available cap beginning with the 2017 control period would be 2,338.6 tpy. The 2,338.6 ton value represents the amount modeled in the 2018 future case 25 Percent HECT Cap Reduction sensitivity run of2,588.6 tons, minus the 250 ton set-aside, as HRVOC allowances. The allocation methodology for each calendar-year control period would be identical to the proposed methodology for 2011. The commission is also seeking comment on an alternative allocation methodology that would allocate to each site a quantity of allowances equal to their highest emissions over the emissions baseline period plus aflat percentage ofthe remaining cap. This alternative, a "flat percentage of highest emissions-based" methodology, proposesthateach site receive an allocation equal to their highest emissions during anyone year of the baseline emissions period from 2006

- 2009, plus an additional amountof the remaining cap such'that each site receives an equal percentage oftheir highest emissions. The total highest emissions from HECT program participants during the baseline emissions period is estimated to be approximately 75% of the total cap prior to any reduction in the cap for the eight-hour ozone attainment demonstration. Therefore, this altemative proposes that**t~e** remaining 25% then be divided among the sites. This proposed methodology would calculate each site's allocation by multiplying the site's highest emissions by the total available cap divided by the sum of all highest emissions from all sites. Because the total available cap is greater than the sum of all of the sites' highest emissions, each site would therefore receive an allocation greaterthan 100% oftheir emissions during their highest emission year. Consider an example where the total HRVOC cap is 3,500 tons and the sum ofall ofthe site's highestemissions during the baseline emissions period is 3,181.8 tons; dividing the total cap of 3,500 by 3,181.8 equals 1.10 or 110%. Each site's highestemissions is then multiplied by this percentage yielding an allocation for each site of 110% ofeach site's highestemissions. Ifa site's highestemissions were 100tons, then theirallocation underthis proposal would be equal to 110 tons. SECTION BY SECTION DISCUSSION In addition to the proposed amendments 

### to §§101.1, 101.390- 101.394, 101.396, and 101.399

- 101.401 discussed elsewhere in this preamble, the commission also proposes to make various stylistic non-substantive changes to update rule languageto currentTexas Registerstyle and format requirements, as well asestablish more consistency in the rules. Such changes include appropriate and consistent use of acronyms, punctuation, section references, and certain terms such as "must" and "shall." These changes are non-substantive and generally are not specifically discussed in this preamble. §101.1, Definitions Proposed changes to §101.1 would amend the definition of reportable quantity for 1, 1,1,2,3,3,3-heptafluoropropane (HFC-227ea) in §1 01.1 (88)(A)(i)(I1I)(-y-). The commission adopted a reportable quantity of5,000 pounds for HFC-227ea in 2005 and the adopted rule was pUblished in the December 30, 2005, issue ofthe Texas Register(30 TexReg 8886). However, the reportable quantity value of5,000 pounds was inadvertently omitted in the version filed with the Secretary of State's Office. The commission is only proposing to correct this omission in §101.1(88)(A)(i)(III)(-y-) and no other changes to the definition of reportable quantity will be addressed in this ru/emaking. Additionally, the commission proposes to update the definition of volatile organic compound in §101.1(115) to be consistent with the currentdefinition in the 40 Code of Federal RegUlations, §57.100(s) amended on January 21,2009 (74 FR 3441). §101.390, Definitions The commission proposes to revise §101.390(4) and add §101.390(9) to include the definitions of "Baseline emissions period" and "Uncontrolled emissions." "Baseline emissions period" is defined as any two consecutive calendar-year control periods designated by the site for the purpose of establishing baseline emissions for the allocation of allowances. "Uncontrolled emissions" is defined as taking the total emissions calculated over the baseline emissions period for each facility and dividing them by one minus the average percent control efficiency specifications found in Chapter 115. For heaters, boilers, and furnaces combusting HRVOC streams, the definition would provide for these emissions to be calculated as actual average emissions over the baseline emissions period for each facility divided by one minus 99%. The commission also proposes renumbering §101.390. §101.391, Applicability The commission proposes deleting the term "covered" and replacing it with "applicable" in describing sites and facilities subject to the rulemaking for rule consistency clarity. §101.392, Exemptions The commission proposes deleting the term "covered" and 

### replacing 

### it with "applicable" in describing sites and facilities subject to the rulemaking for rule consistency clarity. §101.393, General Provisions The commission proposes deleting the term "covered" and 

### replacing it with "applicable" in describing sites and facilities subject

### to the rulemaking for rule consistency clarity. §101.394, Allocation ofAllowances The commission proposes repealing figure located at §101.394(a)(1) and adding a new figure to be located at §101.394(a)(1)(A). In addition, the commission proposes §101.394(a)(1)(B) to revise the reallocation methodology for allowances beginning in the calendar-year control period 2011. The proposed figure located at §101.394(a)(1 )(B) prOVides the equation for calCUlating the new allocation methodology and for a stepped down reduction in the total cap of allowances. The first reduction is a 10% reduction ofthe total cap in calendar-year control period 2014, followed by successive 5% reductions per calendar-year control period until the 25% total reduction in the cap is reached in calendar-year control period 2017. The commission also proposes to add §101.394(a)(1)(C) to allow sites not in operation during the baseline emissions period to use the allocation methodology provided under §101.394(a)(1)(A) until the alternate baseline emissions are established where the site has made HRVOC reductions. Proposed subparagraph (C) allows owners or operators of sites to request from the executive director the ability to retain the allocation received under §101.394(a)(1)(A), prOVided: that 

### it is less than the HRVOC permit allowable limit and the baseline emissions period for any site qualifying will be any two consecutive calendar-year control periods from 2010

- 2012. However, the owner or operator of the site, should note that beginning with the 2014 calendar-year control period, all sites will 

### receive
an allocation in accordance with the proposed methodology under §101.394(a)(1 )(B). The commission also proposes to add §101.394(a)(1)(D) for HECT participants that implemented permanent, voluntary, and quantifiable HRVOC emission reductions and monitoring programs before the beginning of the 2006 calendar-year period. The proposed subparagraph (D) provides the ability to request from the executive director the use of an altemative baseline period from 2004 and 2005 forthe purpose ofestablishing baseline emissions. To qualify for this provision, owners or operators of sites must be able to demonstrate to the executive director that they were performing speciated testing and continuous flow rate monitoring of HRVOC emissions during the requested alternative baseline period. In addition, the emission reductions must be permanent, voluntary, and quantifiable of an amount equal to or greater than 50% of the site's total annual HRVOC



## PROPOSED RULES October9, 

## 2009 34 

## TexReg 6993emissions or a site-wide reduction in HRVOC emissions subject to the HECT program of 50 tons or greater. The emissions reductions must also have been made enforceable under an action submitted to the executive director no later then April 1, 2010. This provision would ensure that sites that made early reductions before the proposed baseline emissions period of 2006

- 2009 would receive adequate credit for those early reductions. The commission proposes to repeal §101.394(c) because it is no longerapplicable. The existing §101.394(d) will be relettered as SUbsection (c). Proposed §1 01.394(d) would ensure that sites to be allocated less than ten tons of allowances would instead receive a minimum allocation often tons ofallowances percalendar-year control period. The commission also proposes renumbering §101.394. §101.396, Allowance Deductions The commission proposes to add §1 01.396(c) to differentiate between routine emissions from normal operations and scheduled 

## maintenance, startup, and shutdowns, and emissions from emissions events for the purposes of identifying those emissions to be applied against the 250 ton emission event set-aside. In addition, proposed subsection (d) states that once total emissions from all emissions events in Harris County exceed 250 tons in anyone calendar-year control period, emissions from emissions eventsare to be covered byallowances from each individual site. The commission also proposes renumbering §101.396. §101.399, Allowance Banking and Trading The commission proposes to amend §101.399(h)(5) to delete the reference to §101.394(c) because it is no longer applicable. In addition, the commission proposes to add §101.399(e) to prohibit the transfer of allowances allocated to sites under §101.394(a)(1)(C) that have yet to establish a baseline emissions period. The commission also proposes renumbering the remaining subsections in §101.399. §101.400, Reporting The commission proposes to add §101.400(a)(4) to require sites to report the total amount and respective dates of HRVOC emissions from emissions events for potential applicability to the emission event set-aside. §101.401, LevelofActivity Certification The commission proposes to add §101.401 (f) and (g). Proposed §101.401(f) will require the Form ECT-6H, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Baseline Emissions Certification Form, to be submitted no laterthan April 30, 2010. Proposed §101.401(g) will require sites to select two consecutive calendar-year control periods to establish a baseline emissions period.

. FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated forthe agency as a result ofadministration orenforcement ofthe proposed rules. Other units ofstate or local governments are notexpected to experience anyfiscal implications as a result of the proposed rules since they do not participate in the types of activities to which the rules would apply.



## 34 TexReg 6994 

## October 9, 

## 2009 Texas Register The proposed rules would revise Chapter 101, Subchapter H, Division 6 to: 1) propose a 25% reduction in the allowance cap ofthe total HECT Program and 2) revise the allocation methodology currently used in the program. The proposed 25% reduction in the allowance cap would be phased in with a 10% reduction occurring in calendar-year 2014 and a 5% reduction per year starting calendar-year 2015

- 2017. Currently, the HECT program only applies to Harris County. The proposed rules implement a strategy to reduce HRVOC emissions and assistwith the attainment of the 1997 eight-hour ozone NAAQS for the HGB non-attainment area. Local governments and state agencies in Harris County are not expected to experience any fiscal impacts as a result ofthe proposed rules since they do not participate in the types of activities that produce HRVOC emissions and do notown allowances. The proposed rule is expected to impact petroleum refineries, non-polymer chemical manufacturers, polymer manufacturers, and petrochemical storage and loading facilities in Harris County. PUBLIC BENEFITS AND COSTS Nina Chamness also determined that for each year of the first five years the proposed new rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be increased environmental protection because of a lower allowance cap in Harris County and a more equitable distribution of HRVOC allowances among industry participants in the county. The proposed rules are not expected to have a fiscal impact on individuals. The most affected industry sectors are petroleum refining, nonpolymer chemical producers, polymer producers, and storage and loading facilities in Harris County. Agency records showthat there could be as many as 28 nonpolymer chemical producers, 11 polymer prodUcers, seven storage and loading facilities, and five refineries that will 

### be SUbject to the proposed rule starting in calendar-year 2011. Emissions reported for these facilities indicate that actual emissions are lower than total allowances available for trading when the county as a whole is considered. Therefore, the proposed phased in 25% reduction in the HECT allowance cap will have no overall fiscal impact on these industrial groups as a whole if they continue to produce at historic levels. However, jf a reallocation of allowances does not occur, some owners of chemical manufacturing and polymer manufacturing facilities would continue to have actual emissions exceed historically allocated allowances. The proposed reallocation of allowances to cover certified actual emission levels could save some nonpolymer chemical producers and polymer producers in Harris County the cost of purchasing allowances or installing controls. Cost impacts of reallocation cannot be estimated. The costs for controls vary widely depending on product, plant configurations, and equipment. Not having to install a control could save as much as $6,000 to $11.5 million depending on the operations of these manufacturers. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT No adverse fiscal implications are anticipated for small or

## microbusinesses in Harris County as a result of the proposed rules since these small businesses do not typically own businesses that prodUce HRVOCs. SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

### The commission has reviewed this proposed rulemaking and determined thatasmall business regulatoryflexibility analysis is not required because the proposed rules are required to protectthe environment and do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect. LOCAL EMPLOYMENT IMPACT STATEMENT The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect. DRAFT REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewed this proposed rulemaking in light of the regulatory impact analysis requirements of Texas GovernmentCode, §2001.0225, and determined thatthe proposed rulemaking action meets the definition of a "major environmental rule" as defined in thatstatute. A "majorenvironmental rule" is a rule, the specific intent ofwhich is to protectthe environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state. The proposed amendments to Chapter 101 and revisions to the SIP would reduce the total cap amount of HRVOC allowances forthe HECT program by25% and revise the allocation methodology for allowances for participants ofthe HECT program. The HECT program was adopted as a control measure for the HGB one-hour attainment demonstration SIP, and it is currently only applicable in Harris County. Photochemical modeling analysis demonstrates that a 25% reduction ofthe cap on the total Harris County HRVOC allocation would contribute to attainment ofthe 1997 eight-hourozone NMOS by reducing future ozone design values at all HGB monitors. Following the initial allocation of allowances, stakeholder comments indicated thatthe allocation was notequitably distributed. Information from the firstthree years of monitoring data supports the assertion of an inequitable distribution of allowances. The proposed revisions are necessaryto implementamore equitable allocation methodology, while contributing to HGB's attainment ofthe 1997 eight-hour ozone NMOS as expeditiously as practicable. The proposed change in allocation methodology will result in allowance reductions for certain facilities, and it is possible facilities that have made significant investments on future HRVOC stream trades may see the value ofthese investments reduced ornullified. Facilitiesthat havetheirHRVOC allowances reduced, eitherthrough the reallocation or reduction ofthe total HRVOC cap, may incur costs from the installation of additional controls or having to purchase allowances from othersources if necessaryto comply with their lowerallowances. Ifthe cap is reduced, the price of HRVOC allowances available in the market may increase. This rulemaking does not meet any ofthe fourapplicability criteria of a "majorenvironmental rule" as defined in the Texas Government Code. Texas Government Code, §2001.0225 applies only to a major environmental rule, the result ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a 

### rule solely under the general powers of the agency instead of under a specific state law. Specifically, the proposed amendments will result in a decrease in the HECT program cap, and will adjustthe allocation methodology for allowances under the program. The HECTprogram was adopted as acontrol measure for the HGB one-hour attainment demonstration SIP, and the proposed changestothe program will contribute to HGB's attainment ofthe 1997 eight-hour ozone NAAOS as expeditiously as practicable. The rulemaking does not exceed an express requirement of federal or state law or a requirement of a delegation agreement, and was not developed solely underthe general powers ofthe agency, butwas specifically developed underfederallawand authorized undertheTexas Health and Safety Code (THSC). The rulemaking implements requirements of 42 United States Code (USC), §7410, which requires states to adopt a SIP that providesfor"implementation, maintenance, and enforcemenf' of the NMOS in each airquality control region ofthe state. While 42 USC, §7410 does not require specific programs, methods, or reductions to meetthe standard, SIPs must include "enforceable emission limitations and othercontrol measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meetthe applicable requirements ofthis chapter," (meaning 42 USC, Chapter85, Air Pollution Prevention and Control). It is true that the Federal Clean Air Act (FCM) does require somespecificmeasuresforSIP purposes, such asthe inspection and maintenance program, butthose programs are the exception, not the rule, in the SIP structure of 42 USC, §7410. The provisions ofthe FCM recognize that states are in the best position to determinewhat programs and controls are necessary orappropriate in orderto meetthe NMOS. Thisflexibility allows states, affected industry, and the publicto collaborate on the best methodsto attain the NMOSforthe specific regions in the state. Even though the FCM allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of42 USC, §7410. Thus, while specific measures are notgenerally required, the emission reductions are required. States are notfreeto ignorethe requirements of42 USC, §741 0, and must develop programs to assure that the nonattainment areas ofthe state would be brought into attainment on schedule. The proposed amendments will help the HBG area attain the 1997 eight-hour ozone NMOS as expeditiously as practicable. The requirement to provide a fiscal analysis of adopted regulations in the Texas Government Code was amended by Senate Bill (SB) 633 dUring the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as majorenvironmental rules thatwould have a material adverse impact and would exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding thatthis requirementwould seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted bythe agency in the past, it is not anticipated that the bill would have significant fiscal implications forthe agency due to its limited application." The commission also noted that the number of rules that would require assessment underthe provisions ofthe bill was not large. This conclusion was based, in part, on the criteria setforth in the



## PROPOSEDRULES October9, 

## 2009 34 

## TexReg 6995bill that exempted proposed rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. 

### As discussed earlier in this preamble, 42 USC, §741 0 does not require specific programs, methods, or reductions in orderto meet the NMOS; thus, states must develop programs for each nonattainment area to ensure that area would meet the attainmentdeadlines. Because ofthe ongoing need to address nonattainment issues, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full regUlatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board in its fiscal notes. Because the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the Legislative Budget Board, the commission contends that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the SIP rules would have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of 42 USC, §7410. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are specifically required by federal law. In addition, 42 USC, §7502(a)(2) requires attainment as expeditiously as practicable, and 42 USC, §7511(a), requires states to submit ozone attainment demonstration SIPs for ozone nonattainment areas, such as the HGB eight-hour ozone nonattainment area. 

### As discussed earlier in this preamble, the proposed amendments will help the HBG area attain the 1997 eight-hour ozone NMOS as expeditiously as practicable. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since thattime, the legislature has revised the Texas Government Code but left this provision substantially un-amended. The commission presumes that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power

### & Light Co. v. Sharp, 919 S.W2d 485,489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting anotherissue, 960 S.W2d 617 (Tex. 1997); Bullock v. Marathon OilCo., 798 S.w.2d 353, 357 (Tex. App. Austin 1990), no writ, 

### Cf. Humble Oil 

### & Refining Co. v. Calvert, 414 S.w.2d 172 (Tex. 1967); Sharp v. House of Uoyd, Inc., 815 S.W2d 245 (Tex. 1991); Southwestem Life Ins. Co. v. Montemayor, 24 S.W3d 581 (Tex. App. Austin 2000), pet. denied; and Coastallndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.w.2d 916 (Tex. 1978). As discussed, this rulemaking action implements requirements of42 USC, §7410. There is no contract ordelegation agreement that covers the topic that is the subject of this action. Therefore, the rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, nor is it adopted solely under the general powers of the agency. Finally, this rulemaking action was not developed solely under the general powers of the agency, but is authorized by specific sections of THSC, Chapter 382 Texas Clean Air Act (TCM), and the Texas \/Vater Code that are cited in the STATUTORY AUTHORITY section of this rulemaking, including THSC, §§382.002, 382.011, 382.012, 382.016, and 382.017. Therefore, this rulemaking action is not



## 34 TexReg 6996 

## October 9, 

## 2009 TexasRegister subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the rulemaking does not meet any ofthe four applicability requirements. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITIAL OF COMMENTS section of this preamble. TAKINGS IMPACT ASSESSMENT The commission completed a takings impactassessmentforthis rulemaking action under Texas Government Code, §2007.043. The proposed amendments would reduce the total cap amount of HRVOC allowances for the HECT program by 25% and 

### revise the allocation methodology forallowances for participants of the HECT program. Photochemical modeling analysis demonstratesthat a 25% reduction ofthe cap on the total Harris County HRVOC allocation would contribute to attainment of the 1997 eight-hour ozone NMOS by reducing future ozone design values at all HGB monitors. The proposed changes to the HECT program will result in allowance reductions for certain" facilities and 

### it is possible facilities that have made significantinvestments on future HRVOC stream trades may see the value ofthese investments reduced or nullified. Facilities that have their HRVOC allowances redUced, either through the reallocation or reducing the total HRVOC cap, may incur costs from the installation of additional controls or having to purchase allowances from other sources if necessary to comply with their lower allowances. If the cap is redUced, the price of HRVOC allowances available in the market may increase. However, the allowances that will 

### be affected bythese rules are not property rights (§101.393(e)), and therefore reductions or changes in the allowances does not constitute a taking. Consequently, this rulemaking action does not meet the definition of a takings under Texas Government Code, §2007.002(5). Additionally, Texas Government Code, §2007.003(b)(4) provides that Chapter 2007 does not apply to this rulemaking action because it is reasonably taken to fulfill an obligation mandated by federal law. The proposed changes to 

### the HECT program within the HGB area that would be implemented by these proposed rules were developed to advance attainment of the 1997 eight-hour ozone NMOS in the HGB ozone nonattainment area. States are primarily responsible for ensuring attainment and maintenance of NMOS once the EPA has established them. Under 42 USC, §7410, and related provisions, states must submit, for approval by the EPA, SIPs that provide for the attainment and maintenance of NMOS through control programs directed to sources of the pollutants involved. Therefore, one purpose of this proposed rulemaking action is to meet the air quality standards established under federal law as NMOS. However, this rulemaking is only one step among many necessary for attaining the ozone NMOS. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM The commission reviewed the proposed rulemaking and found that the proposal is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the proposed rules in accordance with Coastal Coordination Act Implementation RUles, 31 TAC §505.22 and found the proposed rulemaking is consistent with the applicableCMP goals and policies. CMP goals applicable to the proposed amendments is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The proposed amendments update a definition, reallocate allowances, and lowerthe HRVOC cap. No new sources of air contaminants will 

### be authorized and the revisions will maintain the same level ofemissions control as previous rules. CMP policies applicable to the proposed amendments are the policy that the commission's rules comply with federal regulations in Code of Federal Regulations, Title 40, to protect and enhance air quality in the coastal areas (31 TAC §501.32). PromUlgation and enforcement ofthese rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the proposed rules are consistent with these CMP goals and policies because these fules do not create or have a direct or significant adverse effect on any coastal natural resource areas. Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITIAL OF COMMENTS section of this preamble. EFFECTON SITES SUBJECTTO THE FEDERAL OPERATING PERMITS PROGRAM Chapter 101, Subchapter H is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program. Owners or operators subject to the Federal Operating Permits Pro-: gram must, consistent with the revision process in Chapter 122, upon the effective date of the proposed rulemaking, revise their operating pennit to include the new Chapter 101, SUbchapter H requirements. ANNOUNCEMENT OF HEARINGS The commission will hold public hearings on this proposal in conjunction with the HGB SIP revision, HGB Attainment Demonstration and Reasonable Further Progress SIP revisions, Control Techniques Guidelines rulemaking, and the Mass Emissions Cap and Trade Program Cap Integrityforthe HGB Ozone Nonattainment Area revisions in Houston on October 28, 2009, at 2:00 p.m. and 6:00 p.m. in Conference Room A at the Houston-Galveston Area Council, located at 3555 Timmons Lane, and in Austin on October 29, 2009, at 3:00 p.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. Each hearing is structured forthe receiptoforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not 

### be permitted during each hearing; however, commission staff members will be available to discuss the pro-: posal 30 minutes priorto each hearing. Persons who have special communication or otheraccommodation needs who are planning to attend a hearing should contact Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as far

# in advance as possible. SUBMITIAL OF COMMENTS Written comments may be submitted to Devon Ryan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: 

### htfp:/1www5.tceq.state.tx. uslruleslecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-006-101-EN. The comment period closes November 9, 2009. Copies of the proposed rUlemaking can be obtained from the commission's Web site at 

### http://www.tceq.state.tx.uslnav/ruleslpropose_adopt.html. For further information, please contact Jay C. Tonne Jr., P.E., Air Quality Planning Section, (512) 239-1453. 

## SUBCHAPTER A. 

## GENERAL RULES
30 TAC §101.1 STATUTORY AUTHORITY The amendment is proposed under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the. general powers to carry out its duties under the Texas Water Code; TVVC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; TWC, §5.105, concerning General Policy, that authorizes the commission by rUle to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, conceming Rules, that authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The amendment is also proposed under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and §382.012, concerning State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air. The amendment is also proposed under THSC, §382.016, concerning Monitoring Requirements; Examination of Records, that authorizes the commission to prescribe reasonable 

## requirements for the measuring and monitoring of air contaminant emissions. The amendment is also proposed under Federal Clean AirAct (FCAA), 42 United States Code (USC), §§7401, 

### et seq., which requires states to submit state implementation plan (SIP) revisions that specify the manner in which the National Ambient Air Quality Standard (NAAQS) will be achieved and maintained within each air quality control region ofthe state. The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, and 382.017 and FCAA, 42 USC, §§7401 

### etseq. §lOJ.J. Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules ofthe commission, the terms used by the commission have the meanings commonly ascribed to them in the field ofair pollution control. 

### In addition to the terms that are defined by the TCAA, the following terms, when used inthe airquality rules inthistitle, have the following meanings, unless the context clearly indicates otherwise. (1) Account--For those sources required to be permitted under Chapter 122 ofthis title (relating to Federal Operating Permits Program), all sourcesthatare aggregated as a site. Forallothersources, any combination ofsources 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) Acidgas flare--A flare used exclusively forthe incineration ofhydrogen sulfide and other acidic gases derived from natural gas sweetening processes. (3) Agency established facility identification number--For the purposes ofSubchapter F ofthis chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities), a unique alphanumeric code requiredto be assigned by the owner



## PROPOSEDRULES October 9, 

## 2009 34 

## TexReg 6997

### or operator ofaregulated entity that the emission inventory reporting requirements of§101.10 ofthis title (relating to Emissions Inventory Requirements) are applicable to 

### each facility atthatregulated entity. (4) 

### Ambient air--That portion ofthe atmosphere, external to buildings, to 

### which the general public has access. (5) 

### Background--Background concentration, the level of air

### contaminantsthatcannotbe reducedby controlling emissions from man-made sources. It 

### is determined by measuring levels in non-urban
areas. (6) 

### Boiler--Any combustion equipment fired with solid, liquid, andlor gaseous fuel used to produce steam orto heatwater. (7) 

### Capture system-Allequipment(including, butnot limited to, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains, collects, and transports 

### an air

### pollutantto a control device. (8) 

### Capturedfacility--A manufacturingorproductionfacility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, ordisposed ofon a shared basis in an integratedwaste managementunit owned, operatedby, and located within
a contiguous manufacturing complex. (9) 

### Carbon adsorber--An add-on control device that uses activated carbon to adsorb volatile organic compounds from a gas stream. (10) Carbonadsorption system-A carbonadsorberwithan inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent. (11) 

### Coating--A material applied ontoor impregnated into
asubstrateforprotective, decorative, orfunctional purposes. Suchmaterials include, but are not limited to, paints, varnishes, sealants, adhesives, thinners, diluents, 

### inks, maskants, and temporary protective coatings. (12) 

### Cold solvent cleaning-A batch process that uses liquid solventtoremove soils from the surfaces ofparts orto drythe parts by spraying, brushing, flushing, and/or immersion while maintaining the solvent below its boiling point. Wipe cleaning (hand cleaning) is not included in this 

### definition. (13) Combustionunit-Any boilerplant, furnace, incinerator, flare, engine, orotherdeviceorsystemusedto 

### oxidize solid, liquid,
or gaseous fuels, butexcluding motors and engines used in propelling land, water, and air 

### vehicles. (14) Combustion turbine--Any gas turbine system that is gas and/or liquid fuel fired withor withoutpower augmentation. This unitiseitherattachedto afoundation oris portable equipmentoperated at a specific minoror major source for more than 

### 90 days in any 12- 

### month period. Two or more gas turbines powering one shaft will be treated as one unit (15) 

### Commercial hazardous waste management facility--Any hazardous waste management facility that accepts hazardous waste 

### or polychlorinated biphenyl compounds for a charge, except a capturedfacilitythatdisposes only waste generatedon-siteorafacility that 

### accepts waste 

### only from other facilities owned or effectively controlled by the same person. (16) Commercial incinerator-An incinerator used to dispose ofwaste material from retail and wholesale trade establishments. (17) Commercial medicalwaste incinerator-Afacility that accepts for incineration medical waste generated outside the property boundaries ofthe facility.



## 34 TexReg 6998 

## October 9, 

## 2009 Texas Register (18) Component--Apiece ofequipment, including, butnot limitedto, pumps, valves, compressors, and pressure reliefvalves that has the potential to leak volatile organic compounds. (19) 

### Condensate--Liquids that result from the cooling andlor pressure changes ofproduced 

### natural gas. Once these liquids
are processed at gas plants or refineries or in any other manner, they


### are no longer considered condensates. (20) Construction-demolition waste--Waste resulting from construction or demolition projects. (21) 

### Control systemorcontroldevice--Anypart, chemical, machine, equipment, contrivance, orcombination ofsame, usedto destroy, eliminate, reduce, orcontrol the emission ofair 

### contaminants to 

### the atmosphere. (22) Conveyorizeddegreasing--A solventcleaningprocess that uses an automated parts handling system, typically a conveyor, to 

### automatically provide a continuous supply ofparts to be cleaned or dried using either cold solvent or vaporized solvent. A conveyorized degreasing process is fully enclosed exceptfor the conveyor inlet and exit portals. (23) Criteria pollutant or standard--Any pollutant for whichthere is anational ambientair

### quality standardestablishedunder 40 Code ofFederal Regulations Part 50. (24) Custody transfer--The transfer ofproduced crude oil and/orcondensate, afterprocessingand/ortreating intheproducingoperations, from storagetanks or automatictransferfacilities to pipelines
or any other forms oftransportation. (25) Deminimisimpaet--A change ingroundlevel concentration ofan air 

### contaminant as a result ofthe operation ofany new major stationary source orofthe operation ofany existing source that has undergone amajormodificationthatdoes notexceedthe following specified amounts. Figure: 30 TAC §101.1(25) (No change.) (26) Domestic wastes-The garbage and rubbish normally resulting from the functions oflife within aresidence. (27) Emissionsbanking--A systemforrecordingemissions reduction credits so they may be used ortransferred for future use. (28) Emissions event--Any upset event or unscheduled maintenance, startup, or shutdown activity, from acommon cause that results in unauthorized emissions of air 

### contaminants from one or more emissions points at aregulated entity. (29) Emissions reduction credit-Any stationary source emissions reduction thathas been banked in accordance with Chapter 101, SubchapterH, 

### Division 1ofthis 

### title (relating to Emission Credit Banking and Trading). (30) Emissions reduction credit certificate--The certificate issued by the executive directorthat indicates the amount ofqualified reduction available for use as offsets and the length oftime the reduction is eligible for use. (31) 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 (32) Excess opacity event--When an opacity reading is equal to or exceeds 15 

### additional percentage points above an applicable opacity limit, averaged over a six-minute period. (33) Exempt solvent--Those carbon compounds or mix

### tures ofcarbon compounds used as solvents that have been excluded from the definition ofvolatile organic compound.(34) Externalfloating roof--A cover orroafin 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 roofedge and 

### tank shell. A double seal consists oftwo complete and separate closure seals, one abovethe other, containing an enclosed space between them. (35) Federal motorvehicle regulation--Control ofAir Pollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85. (36) Federally enforceable--Alllimitations and conditions that are enforceable by the United States Environmental Protection Agency administrator, including those requirements developed under 40 Code ofFederal Regulations (CFR) Parts 60 and 61; requirements within any applicable state implementationplan (SIP); and any permit requirements established under 40 CFR §52.21 or under regulations approved under 40 CFR Part 51, Subpart I, 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. (37) Flare--An open combustion unit (Le., lacking an enclosed combustion chamber) whose combustion air is provided by uncontrolled ambient air around the flame, and that is used as a control device. A flare may be equipped with a radiant heat shield (with or without a refractory lining), but is not equipped with a flame air control damping system to control the air/fuel mixture. In addition, aflare 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. (38) 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 I, I (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light), 4,5 (Light), 5 (Heavy), and 6. (39) 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. (40) Garbage·-Solidwaste consisting ofputrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, andconsumptionoffood, includingwastematerials from markets, storage facilities, and handling and sale ofproduce and other food products. (41) Gasoline--Any petroleum distillate baving a Reid vaporpressure offourpoundspersquare inch (27.6kilopascals) orgreater that is produced for use as a motor fuel, and is commonly called gasoline. (42) Hazardouswastes-Any solidwaste identifiedorlisted
as ahazardouswastebythe administratorof theUnited StatesEnvironmental ProtectionAgency underthe federal Solid Waste Disposal Act,
as amended by Resource Conservation and Recovery Act, 42 United States Code, §§6901 etseq., as amended. (43) Heatset(usedinoffsetlithographicprinting)--Any operationwhereheatisrequiredto evaporate inkoil fromtheprinting 

### ink. Hot air dryers are used to deliver the heat. (44) High-bake coatings--Coatings designed to cure at temperatures above 194 degrees Fahrenheit. (45) High-volume low-pressure spray guns--Equipment used to apply coatings by means ofa spray gun that operates between 0.1 and 10.0 pounds per square inch gauge 

### air pressure measured at the 

### air cap. (46) Incinerator--An enclosed combustion apparatus and attachments that is used in the process ofburning wastes for the primary purpose ofreducing its volume andweightby removingthe combustibles ofthe waste and is equipped with aflue for conducting products ofcombustion to the atmosphere. Any combustion device that burns 10% or more ofsolid waste on a total British thermal unit (Btu) heat input basis averaged over anyone-hour period is considered to be an incinerator. A combustion device without instrumentation or methodology to determine hourly flow rates ofsolidwaste andburning 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 woad scraps, waste wood, or sludge from the treatment ofwastewater from the process mills as a primary fuel for heat recovery are not included underthis definition. Combustion devices permitted underthis title as combustion devices otherthan incinerators will not be considered incinerators for application ofany rule within this title provided they are installed and operated in compliance with the condition ofall applicable permits. (47) Industrial boiler-·A boiler located on the site ofa facility engaged in a manufacturing process where substances are 

### transformed into new products, including the component parts ofproducts, by mechanical or chemical processes. (48) 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 ofsulfur values from spent sulfuric acid; and otherdevices the commission may list. (49) Industrial solid waste--Solid waste resulting from, or incidental to, any process ofindustry or manufacturing, or mining or agricultural operations, classified as follows. (A) Class I industrial solidwaste orClass I wasteis any industrial solid waste designated as Class I by the executive director
as any industrial solid waste or mixture ofindustrial solid wastes that because ofits concentration or physical or chemical characteristics is toxic, corrosive, flammable, a strong sensitizer or irritant, a generator ofsudden 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 defined in §335.1 and §335.505 ofthis title (relating to Definitions and Class I Waste Determination). (B) Class 2 industrial solidwaste is any individual solid wasteorcombinationof industrial solidwastesthatcannotbedescribed
as Class I or Class 3, as defined in §335.506 ofthis title (relating to Class 2 Waste Determination). (C) Class 3 industrial solidwaste is any inertandessentially insolubleindustrial solidwaste, including materials such as rock, brick, glass, dirt, and certainplastics andrubber, etc., thatare notreadily decomposable as defined in §335.507 ofthis title (relating to Class 3 Waste Determination). (50) Internal floating cover--A cover or floating roofin a fixed roof

### tank thatrests upon or is floated upon the liquid being con

## PROPOSEDRULES October 9, 

## 2009 34 

## TexReg 6999tained, and is equipped with a closure 

### seal or seals to close the space between the cover edge and 

### tank shell. (51) Leak-A volatile organic compound concentration greater than 10,000 parts per million by volume or the amount specified by applicable rule, whichever is lower; orthe dripping or exuding ofprocess fluid based on sight,**smel~** or sound. (52) Liquid fuel--A liquid combustible mixture, not derived from hazardous waste, with a heating value of at least 5,000 British thermal units per pound. (53) Liquid-mounted seal--Aprimary sealmountedincontinuous contact with the liquid between the 

### tank wall and the floating roofaround the circumference ofthe tank. (54) Maintenance area--A geographic region ofthe state previously designated nonattainment under the Federal Clean Air Act Amendmentsof1990 andsubsequently redesignatedto attainmentsubjectto the requirementto 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 (Federal Register (FR) 12453)

- Victoria County; and (B) Collin County Lead Maintenance Area (64 FR 55421)

- Portion of Collin County. Eastside: Starting at the intersection ofSouth 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 1,000 feet south ofthe Exide property line; Southside: Fence line approximately 1,000 feet south ofthe Exide property line. (55) Maintenance plan--A revision to the applicable state implementation plan, meeting the requirements of42 United States Code, §7505a. (56) Marine vessel--Any watercraftused, or capable ofbeing used, as a means oftransportation on water, andthat is constructed

or adapted to carry, or that carries,**oi~** gasoline, or other volatile organic liquid in bulk as a cargo or cargo residue. (57) Mechanical shoe seal--A metal sheetthatis heldvertically against the storage 

### tank wall by springs orweighted levers and 

### is connectedby bracesto thefloating roof. A flexible coatedfabric (envelope) spans the annular space betweenthe metal sheetand the floating roof. (58) Medical waste-Waste materials identified by the DepartmentofStateHealth Servicesas "specialwaste from health care-related facilities" and those waste materials commingled and discarded with special waste from health care-related facilities. (59) Metropolitan Planning Organization--That organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under23 United States Code (USC), §134 and49 USC, §1607. (60) Mobile emissions reduction credit-The credit obtained from an enforceable, permanent, quantifiable, and surplus (to other federal and state rules) emissions reduction generated by

a mobile source as set forth in Chapter 114, Subchapter F ofthis title (relating to Vehicle Retirement and Mobile Emission Reduction Credits), and that has been banked in accordance with Subchapter 

### II. Division 1 ofthis chapter. (61) Motor vehicle--A self-propelled vehicle designed for transporting persons or property on a street or highway.



## 34 TexReg 7000 October9, 

## 2009 Texas Register (62) Motorvehicle fuel dispensingfacility-Any sitewhere gasoline is dispensed to motor vehicle fuel tanks from stationary storage 

### tanks.(63) Municipal solid waste--Solid waste resulting from, or incidental to, municipal, community,**commerci~ institutio~**  and recreational activities, including garbage, rubbish, ashes, street cleanings, dead ariimals, abandoned automobiles, and all other solid waste except industrial solid waste. (64) Municipal solid waste facility--All contiguous land, structures, other appurtenances, and improvements on the land used for processing, storing, or disposing of solid waste. A facility may be publicly orprivately owned and may consist ofseveral processing, storage, or disposal operational units, e.g., one or more landfills, surface impoundments, or combinations ofthem. (65) Municipal solid waste landfill--A discrete areaofland

or an excavation that receives household waste and that is not a land applicationunit, surface impoundment, injectionwell, orwaste pile, as those terms are defined under 40 Code ofFederal Regulations §257.2. A municipal solidwaste landfill (MSWLF) unit also may receive other types ofResource Conservation and Recovery Act Subtitle D wastes, such as commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generator waste, and industrial solid waste. Such a landfill may be publicly or privately owned. An MSWLF unit may be a new MSWLF unit, an existing MSWLF unit, or a lateral expansion. (66) 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. (67) Netground-level concentration--The concentrationof

an 

### air contaminant as measured at or beyond the property boundary minus therepresentative concentrationflowing onto aproperty as measured at any point. Where there is no expectedinfluence ofthe 

### aircontaminant flowing onto a property from other sources, the net ground level concentrationmay be determined by a measurement atorbeyond the property boundary. (68) New source--Any stationary source, the construction

or modification ofwhich was commenced after March 5, 1972. (69) Nitrogen oxides (NO)-The sum ofthe nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide. (70) Nonattainment area--A defined region within the state that 

### is designated by the United States Environmental 

### Pr0- tection Agency (EPA) as failing to meet the national ambient air quality standard for a pollutant for which a standard exists. The EPA will designate the area as nonattainment under the provisions of42 United States Code, §7407(d). For the official list and boundaries of nonattainment areas, see 40 Code ofFederal Regulations Part 81 and pertinentFederalRegister(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-hourozone 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 ofJune 15,2004. (A) Carbonmonoxide (CO). El Paso CO nonattainment
area (56 FR 56694)--Classified as a Moderate CO nonattainment area with a design value less 

### than orequal to 12.7 parts per million. Portion ofEIPaso County. Portionof the city limits ofEIPaso: Thatportionof the City ofEI Paso bounded onthe northby Highway 10 from PortirioDiaz Street to Raynolds Street, Raynolds Street from Highway 10 to the SouthernPacific Railroad lines, the Southern Pacific Railroad lines from Raynolds Street to Highway 62, Highway 62 from the Southern Pacific Railroad lines to Highway 20, and Highway 20 from Highway 62 to Polo Inn Road. Bounded on the east by Polo Inn Road from Highway 20 to the Texas-Mexico border. Bounded on the south by the Texas-Mexico border from Polo Inn Road to Porfirio Diaz Street. Bounded on the west by Porfirio Diaz Street from the Texas-Mexico border to Highway 10. (B) Inhalable particulate matter (PM

..). EI Paso PM

.. nonattainment area (56 FR 56694)--Classified as a Moderate PM

.. nonattainment area. Portion ofEI Paso County that comprises the EI Paso city limitboundaries as they existed on November 15, 1990. (C) Lead. No designated nonattainment areas. (D) Nitrogen dioxide. No designatednonattainmentareas. (E) Ozone (one-hour). (i) Houston-Galveston-Brazoria (HGB) one-hour

ozone nonattainment area (56 FR 56694)

- Classified as a Severe-17
ozone nonattainment area. Consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and WallerCounties. (ii) El Paso one-hour ozone nonattainment area (56 FR56694)

- Classifiedas a Serious ozonenonattainmentarea. Consists ofEI Paso County. (iii) Beaumont-Port Arthur (BPA) one-hour ozone nonattainment area (69 FR 16483)

- Classified as a Serious ozone nonattainment area. Consists ofHardin, Jefferson, and Orange Counties. (iv) Dallas-Fort Worth one-hour ozone nonattainment area (63 FR 8128)

- Classified as a Serious ozone nonattainment

area. Consists ofCollin, Dallas, Denton, and Tarrant Counties. (F) Ozone (eight-hour). (i) HGB eight-hour ozone nonattainment area (69 FR 23936)

- Classified as a Moderate ozone nonattainmentarea. Consists ofBrazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties. (ii) BPA eight-hour ozone nonattainment area (69 FR 23936)

- Classified as a Marginal ozone nonattainment area. Consists ofHardin, Jefferson, and Orange Counties. (iii) Dallas-Fort Worth eight-hour ozone nonattainment area (69 FR 23936)

- Classified as a Moderate ozone nonattainment area. Consists ofCollin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties. (iv) San Antonio eight-hour ozone nonattainment

area (69 FR 23936)

- Classified underthe Federal Clean AirAct, Title I, Part D, Subpart 1 (42 United States Code, §7502), nonattainment deferred to September 30, 2005, or as extended by EPA. (G) Sulfurdioxide. No designatednonattainmentareas. (71) Non-reportable emissions event-Any emissions event 

### that in any 24-hour period does not result in an unauthorized emission from any emissions point equal to or in excess ofthe reportable quantity as defined in this section. (72) Opacity--The degree to which an emission ofaircontaminants obstructs the transmission oflight expressed as the percentage oflight obstructed as measured by an optical instrumentortrained observer. (73) Open-top vapor degreasing--A batch solventcleaning process that is open to the air and that uses boiling solvent to create solvent vapor used to clean or dry parts through condensation ofthe hot solvent vapors on the parts. (74) Outdoor burning--Any fire or smoke-producing process that is not conducted in a combustion unit. (75) Particulate matter--Any material, except uncombined water, thatexists as a solidorliquidintheatmosphere orinagas stream at standard conditions. (76) Particulate matter emissions--All finely-divided solid

or liquidmaterial, other

### than uncombinedwater, emittedtotheambient air as measured by United States Environmental Protection Agency Reference Method 5, as specified at 40 Code ofFederal Regulations (CFR) Part 60, Appendix 

### A. modified to include particulate caughtby
an impinger train; by an equivalentor alternative method, as specified at 40 CFR Part 51; or by a test method specified in an approved state implementation plan. (77) Petroleum refinery--Any facility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants,

orotherproducts through distillation ofcrude oil, orthroughtheredistillation, cracking, extraction, reforming, or otherprocessing ofunfinished petroleum derivatives. (78) 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 ofFederalRegulations (CFR) Part 50, Appendix J, and designated in accordance with40 CFRPart 53, or by an equivalent method designated with that Part 53. (79) PM

.. emissions-Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method specified in 40 Code ofFederal Regulations Part 51, or by a test method specified in an approved state implementation plan. (80) Polychlorinated biphenyl compound-A compound subjectto 40 Code ofFederal Regulations Part 761. (81) Process orprocesses--Any action, operation, or treatment embracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipmentusedinconnectiontherewith, andallothermethodsorfonns ofmanufacturing or processing that may emit smoke, particulate matter, gaseous matter, or visible emissions. (82) 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 partof the process weight, butliquid and gaseousfuels andcombustion air will not. The "process weight per hour" will be derived by dividing the total process weight by the number ofhours in one complete operation from the beginning ofany given process to the completion thereof, excluding any time during thatthe equipment usedto conduct the process is idle. For continuous operation, the "process weight per hour" will be derivedby dividing the totalprocess weight for a24-hour period by 24. (83) Property-All land under common control or ownership coupledwith all improvements on such land, and all fixed ormovable objects on such land, or any vessel on the waters ofthis 

### state. (84) Reasonable further progress-Annual incremental reductions in emissions ofthe applicable air contaminantthat are sufficient to provide for attainment ofthe applicable national ambient air



## PROPOSED RULES October 9, 

## 1009 34 

## TexReg 7001quality standard in the designated nonattainment areas by the date required in the state implementation plan. (85) Regulatedentity--Allregulatedunits, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. The term includes any property undercommon ownership orcontrol identifiedin a permitorused in conjunction with the regulated activity atthe same street address or location. Owners or operators ofpipelines, gathering lines, and flowlines under common ownership or control in a particular county may be treated as a single regulated entity for purposes ofassessment and regulation ofemissions events. (86) Remotereservoircold solventcleaning-Any cold solventcleaningoperationinwhich liquid solventis pumpedto a sink-like work area that drains solvent back into an enclosed container while parts are being cleaned, allowing no solventto pool inthe work area. (87) Reportable emissions event--Anyemissionseventthat in**~~ 24-ho~**  period,**resu~ts** in an unauthorized emission from any emtsslons pomt equal to or m excess ofthe reportable quantity as defined in this section.

5,000 pounds;
5,000 pounds;
5,000 pounds; (-i-) chloropentafiuoroethane (CFC-1l5)

- 5,000 pounds; (-j-) 2-chloro-l,1,1,2-tetrafiuoroethane (HCFC-124)

- 5,000 pounds; (-k-) l-chloro-l,1,2,2 tetrafiuoroethane (HCFC-124a)

- 5,000 pounds; (-1-) 1,1,1,2,3,4,4,5,5,5-decafiuoropentane (HFC 43-lOmee)

- 5,000 pounds; (-m-) decanes (any isomer)

- 5,000 pounds; (-n-) 1,I-dichloro-l-fluoroethane (HCFCl4lb)

- 5,000 pounds; (-0-) 3,3-dichloro-l,1,2,2-pentafiuoropropane (HCFC-225ca) • 5,000 pounds;



## 34 TexReg 7002 October9, 

## 2009 Texas Register (-p-) I,3-dichloro-l,I,2,2,3-pentafiuoropropane (HCFC-225cb)

- 5,000 pounds; (-q-) 1,2-dichloro-l,1,2,2-tetrafiuoroethane (CFR-1l4)

- 5,000 pounds; (-r-) l,l-dichlorotetrafiuoroethane (CFC114a)

- 5,000 pounds; (-s-) l,2-dichloro-l,l,2-trifiuoroethane (HCFC-123a)

- 5,000 pounds; (-t-) l,l-difiuoroethane (HFC-152a)

- 5,000 pounds; (-u-) difiuoromethane (HFC-32)

- 5,000 pounds; (-v-) ethanol- 5,000 pounds; (-w-) ethylene

- 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ must be 100 pounds; (-x-) ethylfiuoride (HFC-16l)

- 5,000 pounds; (-y-) I, 1,1,2,3,3,3-heptafiuoropropane (HFC-227ea)

- 5,000 pounds; (-z-) I,I, 1,3,3,3-hexafiuoropropane (HFC236fa)

- 5,000 pounds;(-aa-) 1,1,1,2,3,3-hexafiuoropropane (HFC-236ea)

- 5,000 pounds; (-bb-) hexanes (any isomer)

- 5,000 pounds; (-cc-) isopropyl alcohol- 5,000 pounds; (-dd-) mineral spirits

- 5,000 pounds; (-ee-) octanes (any isomer)

- 5,000 pounds; (-ff-) oxides of nitrogen

- 200 pounds in
ozone nonattainment, ozone maintenance, early action compact areas, Nueces County, and San Patricio County, and 5,000 pounds in all other areas of

### the state, which should be used instead ofthe RQs for nitrogen oxide and nitrogen dioxide provided in 40 CFR Part 302, Table 302.4, the column "final RQ"; (-gg-) pentachlorofluoroethane (CFR-llI)

- 5,000 pounds; (-hh-) 1,1,1,3,3-pentafiuorobutane (HFC365mfc)

- 5,000 pounds; (-ii-) pentafiuoroethane (HFC-125)

- 5,000 pounds; (-]-) 1,1,2,2,3-pentafiuoropropane (HFC245ca)

- 5,000 pounds;(-kk-) 1,1,2,3,3-pentafiuoropropane (HFC245ea)

- 5,000 pounds;(-11-) 1,1,1,2,3-penta!luoropropane (HFC245eb)

- 5,000 pounds;(-mm-) 1,1,1,3,3-pentafiuoropropane (HFC-245fa)

- 5,000 pounds; (-nn-) pentanes (any isomer)

- 5,000 pounds; (-00-) propane

- 5,000 pounds; (-pp-) propylene

- 5,000 pounds, except in the HGB and BPA ozone nonattainmentareas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ must be 100 pounds; (-qq-) I,I,2,2-terachlorodifiuoroethane (CFR-112)

- 5,000 pounds; (-rr-) I, I, 1,2-tetrachlorodifiuoroethane (CFC-1l2a)

- 5,000 pounds; (-ss-) 1,1,2,2-tetrafiuoroethane (HFC-134)

- 5,000 pounds; (-tt-) 1,1,1,2-tetrafiuoroethane (HFC-134a)

- 5,000 pounds; (-uu-) 1,1,2-trichloro-l,2,2-trifiuoroethane (CFR-1l3)

- 5,000 pounds;(-vv-) 1,1, 1-trichloro-2,2,2-trilfloroethane (CFC-113a)

- 5,000 pounds; (-ww-) 1,I,I-trifluoro-2,2-dichloroethane (HCFC-123)

- 5,000 pounds; (-xx-) l,l,l-trifluoroethane (HFC-143a)

- 5,000 pounds; (-yy-) trifluoromethane (HFC-23)

- 5,000 pounds; or (-zz-) toluene

- 1,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ must be 100 pounds; (ii) ifnot listed in clause (i) ofthis subparagraph, 100 pounds; (B) for mixtures ofair contaminant compounds: (i) where the relative amount ofindividual air contaminant compounds is known through commonprocess knowledge or prior engineering analysis or testing, any amount ofan individual air contaminant compound that equals or exceeds the amount specified in subparagraph (A) ofthis paragraph; (ii) where the relative amount ofindividual air contaminant compounds in subparagraph (A)(i) ofthis paragraph is not known, any amount ofthe mixture that equals or exceeds the amount for any single air contaminantcompoundthat is present in the mixture and listed in subparagraph (A)(i) ofthis paragraph; (iii) where each of the individual 

### air contaminant compounds listed in subparagraph (A)(i) ofthis paragraph are known to be lessthan 0.02% by weightofthe mixture, andeach of the otherindividual air contaminant compounds covered by subparagraph (A)(ii) ofthis paragraph are known to be less than 2.0% by weightofthe mixture, any total amount ofthe mixture ofair contaminant compounds greater than or equal to 5,000 pounds; or (iv) where natural gas excluding carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen
or air emissions from crude oil are known to be in an amount greater than or equal to 5,000 pounds or the associated hydrogen sulfide and mercaptans in a total amount greater than 100 pounds, whichever

occurs first; (C) for opacity from boilers and combustionturbines as defined in this section fueled by natural gas, coal, lignite, wood, fuel oil containing hazardous air pollutants at a concentration ofless than 0.02% by weight, opacity that is equal to orexceeds 15 additional 

### percentage points above the applicable limit, averaged over a six-minute period. Opacity is the only RQ applicable to boilers and combustion turbines described in this paragraph; or (0) for facilities where air contaminant compounds are measured directly by a continuous emission monitoring system providing updated readings at a minimum IS-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 regulated entity property line: 0) less than one-halfofany applicable ambient air standards; and (ii) less than two times the concentration ofapplicable air emission limitations. (89) Rubbish--Nonputrescible solid waste, consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, metal furniture, and like materials that will not burn at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit). (90) Scheduled maintenance, startup, or shutdown activity·-Foractivities withunauthorizedemissions that are expectedto exceed a reportable quantity (RQ), a scheduled maintenance, startup, or shutdown activity is an activity that the owner or operator ofthe regulated entity whetherperforming or otherwise affected by the activity, provides priornotice and a final report as required by §10 1.211 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 ofthis title; and the ac

### tual unauthorized emissions from the activity do not exceed the emissions estimates submitted in the initial notification by more than an RQ. For activities with unauthorized emissions that are not expected to, and do not, exceed an RQ, a scheduled maintenance, startup, or shutdown activity is one that is recorded as required by §101.211 of this title. Expected excess opacity events as described in §I01.20I(e) of

### this title (relating to Emissions Event Reporting and Recordkeeping Requirements) resulting from scheduledmaintenance, startup, or shutdown activities are those thatprovide priornotice (ifrequired), and are recorded and reported as required by 

### §I01.211 ofthis title. (91) Sludge--Any solid or semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatmentplant; watersupply treatmentplant, exclusive ofthe treated etlluent from a wastewater treatment plant; or air pollution control equipment (92) Smoke--Small gas-born particles resulting from incomplete combustion consisting predominately ofcarbon and other combustible material and present in sufficient quantity to be visible. (93) Solid waste··Garbage, rubbish, refuse, sludge from a waste watertreatmentplant, water supply treatmentplant, or airpollution control equipment, and other discarded material, including solid, liquid, semisolid, or containerized gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations andfrom community and institutional activities. The term does notinclude: (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, andothernatural orman-made inert solid materials used to fill land, ifthe objectofthe fill is to make the land suitable for the construction ofsurface 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 Natural Resources Code, §91.10I, unless the waste, substance, ormaterialresults from activities associated with gasoline plants, natural gas liquids processing plants, pressure maintenanceplants, or repressurizing plants and is hazardous waste as defined by the administrator ofthe United States Environmental ProtectionAgency underthe federal Solid Waste Disposal Act,
as amended by Resource Conservation and Recovery Act, as amended (42 United States Code, §§6901 

### etseq.). (94) Sourerude--A 

### crude oil thatwill emita sourgas when in equilibrium at atmospheric pressure.



## PROPOSED RULES October 9, 

## 2009 34 

## TexReg 7003(B) 

### a maintenance activity that arises from sudden and unforeseeable events beyond the control ofthe operator that requires the immediate corrective actionto minimize or avoid an upset ormalfunction. (109) Upset event--An unplanned and unavoidable breakdownorexcursionofaprocess oroperationthatresultsinunauthorized emissions. A maintenance, startup, or shutdown activity that was reportedunder §101.211 of thistitle (relatingto ScheduledMaintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), but had emissions that exceeded the reported amount by more than a reportable quantity due to an unplanned and unavoidable breakdown
or excursion ofaprocess or operation is an upsetevent. (110) Utility boiler--A boiler used to produce electric power, steam, orheated orcooled air, or othergases orfluids for sale. (111) Vapor combustor--A partially enclosed combustion device usedto destroy volatile organic compounds by smokeless combustionwithoutextracting energy in the form ofprocess heator steam. The combustion flame may be partially visible, but at no time does the device operate with an uncontrolled flame. AuxililllY fuel and/or a flame aircontrol damping systemthatcanoperateatalltimestocontrol the air/fuel mixture to the combustor's flame zone, may be requiredto
ensure smokeless combustion during operation. (112) Vapor-mounted seal--A primary seal mounted so there is an annular space underneaththe seal. The annularvapor space is bounded by the bottom ofthe primlllY seal, the tank wall, the liquid surface, and the floating roofor cover. (113) Vent-Any duct, stack, chimney, flue, conduit, or otherdevice used to conductair contaminants into the 

### atmosphere. (114) Visible emissions--Particulate orgaseous matterthat
can be 

### detected by the human eye. The radiant energy from an open flame is notconsidered a visible emissionunderthis definition. (lIS) Volatile organic compound-As defined in 40 Code of Federal Regulations §51.100(s), except §51.100(s)(2)

- (4), as amended on January 21, 2009 (74 FR 3441)**[Ne'lembef~2004f69 FR~].** 

### (116) Volatile organic compound (VOC) water separatorAny tank, box, sump, orothercontainerinwhichany VOC, floating on orcontainedinwaterentering suchtank, box, sump, orothercontainer, is physically separated and removed from such water prior to outfall, drainage, or recovery ofsuch water. 

### This agency herebycertifiesthatthe proposal has been reviewed by legal counsel and found to bewithin the agency's legal authority to adopt.
Filed with the Office ofthe Secretary of State on September25, 

### 2009. TRD-200904272 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date ofadoption: November 8, 2009 Forfurther information. please call: 

### (512) 239-6090 (95) Sour gas--Any natural gas containing more than 1.5 grains ofhydrogen sulfide per I()() cubic feet, or more than 30 grains oftotal sulfur per 100 cubic feet. (96) Source--Apointoforiginof aircontaminants, whether privately or publicly owned or operated. Upon request ofa source owner, the executive director shall determine whether multiple processes emitting air contaminants from a single point ofemission will be treated as a single source or as multiple sources. (97) Special waste from health care-related facilities--A solidwastethatifimproperly treatedorhandled, may serve totransmit infectious disease(s) and that is comprised ofthe following: animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps. (98) Standard conditions--A condition at atemperature of 68 degrees Fahrenheit (20 degrees Centigrade) and apressure of14.7 pounds per square inch absolute (101.3 kiloPascals). (99) Standard metropolitan statistical area--An area consisting ofacounty orone ormore contiguous counties thatis officially
so designated by the United States Bureau ofthe Budget. (100) Submergedfill pipe--Afillpipe thatextends from the top ofatanktohave amaximum clearance ofsix inches (15.2 centimeters) from the bottom or, when appliedto atankthatis loadedfrom the side, that has a discharge opening entirely submerged when the pipe usedto withdrawliquid from the tankcanno longerwithdraw liquidin normal operation. (101) Sulfur compounds--AII inorganic or organic chemicals having an atom or atoms ofsulfur in their chemical structure. (102) Sulfuric acid mist/sulfuric acid--Emissions ofsulfuric acidmist and sulfuric acidareconsideredtobe the sameaircontaminant calculated as 

### H, SO, and must include sulfuric acid liquid mist, sulfurtrioxide, and sulfuric acid vapor as measured by Test Method 8 in 40 Code ofFederal Regulations Part 60, Appendix A. (103) Sweetcrude oil andgas-Those crude petroleum hydrocarbons that are not "sour" as defined in this section. (104) Total suspended particulate--Particulate matter as measuredby the method described in 40 Code ofFederal Regulations Part 

### SO, Appendix B. (105) Transfer efficiency--The amount ofcoating solids deposited onto the surface or a part ofproduct divided by the total amountofcoating solids deliveredto the coating application system. 

### (106) True vapor pressure--The absolute aggregate partial vapor pressure, measured in pounds per square inch absolute, ofall volatile organic compounds atthe

### temperature ofstorage, handling, or processing. (107) Unauthorized ernissions--Emissions ofany air contaminant except carbon dioxide, water, nitrogen. methane, ethane, noble gases, hydrogen. andoxygenthatexceedany airemissionlimitation in apermit, rule, ororderofthe commission or as authorized by Texas Clean Air Act, §382.0518(g). (108) Unplanned maintenance, startup, or shutdown activity-Foractivities with unauthorizedemissionsthat are expectedto exceed areportable quantity orwith excess opacity, an unplanned maintenance, startup, or shutdown activity is: (A) a startup or shutdown that was not part ofnormal
or routine facility operations, is unpredictable as to timing, and is not the type ofevent normally authorized by permit; or



## 34 TexReg 7004 October 9, 

## 2009 Texas Register 

# • SUBCHAPTER H. AND TRADING 

# • •
EMISSIONS BANKING

## DIVISION 6. HIGHLY-REACTIVE VOLATILE ORGANIC COMPOUND EMISSIONS CAP AND TRADE PROGRAM
30 TAC §§101.390

- 101.394, 101.396,101.399

- 101.401 STATUTORY AUTHORITY The amendments are proposed under Texas water Code (lWC)
, §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the Texas water Code; lWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the Texas water Code; TWC, §5.105, conceming General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code rrHSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean AirAct. The amendments are also proposed under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and §382.012, concerning State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. The amendments are also proposed under THSC, §382.016, concerning Monitoring Requirements; Examination of Records, that authorizes the commission to prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions. The amendments are also proposed under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to submit state implementation plan (SIP) revisions that specify the manner in which the National Ambient Air Quality Standard (NAAQS) will be achieved and maintained within each air quality control region of the state. The proposed amendments implement THSC, §§382.002, 382.011, 382.012, 382.016, and 382.017 and FCAA, 42 USC, §§7401 etseq. §JOJ.390. Definitions.
The following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise. (l) Allowance-The authorization to emit one ton of highly-reactive volatile organic compounds, expressed in tenths ofa ton, during a control period. (2) Authorized account representative--The responsible person who is authorized in writing to transfer and otherwise manage allowances for the site. (3) Banked a1lowance--An allowance that is not used to reconcile emissions in the designated year ofallocation, but is carried forward for up to one year and noted as banked in the compliance account or broker account. 

## ill Baseline emissions period--Any two consecutive calendar-year control periods from 2006

- 2009 designated by a site for the purpose ofestablishing baseline emissions used for the allocation ofallowances. except as allowed under §101.394(a)(l)(C) and (D) of this title (relating to Allocation ofAllowances). 

## ill [(4t] Broker--A person that is not required to participate in the requirements ofthis division, but that opens an account underthis division for the purpose ofbanking and trading allowances. 

### @ [(S)] Broker account--The account where allowances held by a broker are recorded. Allowances held in a broker account may notbe used to satisfy compliance requirements for this division. 

## ill**[~]** Compliance account--The account in which allowances held by a site are recorded for the purposes ofmeeting the requirements ofthis division. 

## ill**[~]** Level ofactivity--The amount ofhighly-reactive volatile organic compounds, as defined in §115.10 ofthis title (relating to Definitions), in pounds produced as an intermediate, by-product, or final product or used by a process unit during a given period oftime, butexcluding any recycledhighly-reactivevolatile organic compounds internal to the process unit. 

## ill Uncontrolled emissions--The total emissions calculated by dividing actual average emissions overthe baseline emissions period for each facility by one minus the average percent control efficiency specifications in §115.725(d) ofthis title (relating to Control of 

### Air Pollution from Volatile Organic Compounds). For heaters, boilers, and furnaces combusting highly-reactive volatile Organic compound streams, the uncontrolled emissions shall 

### be calculated by dividing actual average emissions over the baseline emissions period for each facility by one minus 99%. The control efficiency for all other non-flare facilities is equal to zero; therefore, the uncontrolled emissions will 

### be equal to the 

### actual emissions. 

### §J01.39J. Applicability. 

### This division applies to each site, as defined in § 122.1 0 ofthis title (relating to General Definitions), in the Houston-Galveston-Brazoria 

### [Heti5teBlGah<esteBlBfIli'l8l'ia] ozonenonattainmentarea, as defined in §115.10 ofthis title (relating to Definitions), that is subject to Chapter 115, Subchapter II, Division 1 ofthis title**[~t&.\feBt** 

### Gti**~]** or Division 2 ofthis title (relating to Cooling Tower Heat Exchange Systems). Applicable**[~]** facilities include vent gas streams, flares, and cooling tower heat exchange systems that emit highly-reactive volatile organic compounds, as defined in §115.10 of this title (relating to Definitions), and that are located at a site subject to Chapter 115, Subchapter H ofthis title (relating to Highly-Reactive Volatile Organic Compounds). For the purpose of compliance with Chapter 115, Subchapter II, Division 1 orDivision 2 ofthis title, each site that meets the applicability requirements ofthis section will[, er eleetst&6jlt-iftt&

### tIMeiYisiefttIfttief §

### lOl.392(h) ef

### tIMti&(reIatiBg t& EitefftJlaefts), 

### shell] always 

### be subjectto this division. 

### §JOJ.392. Exemptions. (a) Sites in the Houston-Galveston-Brazoria 

### [lleusteBlGB:l>le steBlBreeria] ozonenonattainmentarea

### thathave thepotentialtoemit,

as defined in §116.12 ofthis title (relating to Nonattainment Review Definitions), ten tons per year or less ofhighly-reactive volatile organic compounds from all applicable 

### [tleYefed] facilities atthe site are exempt from the requirements ofthis division. 

## [00 Sites eHeftI:pt 

### ffem 

### tIM eiYisieft tIfttief sueseetleft (e) ef 

### tIM5eetieftmayeleett& t&

### the requiremeftts ef

### tIM eiYisieftby fteafyiBg 

### the eeettfl'le direeterittwffliBg byApfil.**~~]** 

### @**[~]** All sites in the Houston-Galveston-Brazoria 

### [Hetts

### teBlGel.esteBlBreel'ia] ozone nonattainment area, excluding Harris County, are exempt from the requirements ofthis division except for §101.401 ofthis title (relating to Level ofActivity Certification). The commission may revoke this exemption upon public notice of this revocation. Ifthe exemption is revoked, sites subject to this division



## PROPOSED RULES October9, 

## 2009 34 

## TexReg 7005

### located in the Houston-Galveston-Brazoria [HatistanIGlifl'estanIBfll suited in an HRVOC emission reduction may request from the execmrilt] 

### ozone nonattainment area, excluding Harris County, will 

### [ffttiSt] utive director the use ofthe allocation methodology provided under comply by January I, 2007, or within 180 days of public notice, subparagraph (A) ofthis paragraph in lieu ofthe allocation provided whichever is later. under subparagraph (B) ofthis paragraph, according to the following: §JOJ.393. GeneralProvisions. 

## ill this allocation is less thanthe HRVOC permit al- (a) Allowances may be used only for the purposes described lowable limit; in this division and may not be used to meet or exceed the emission {JJl 

### the baseline emissions period for any site under limitations authorized under Chapter 116, Subchapter B ofthis title this subparagraph will be any two consecutive calendar-year control (relating to New Source Review Permits), or any other applicable rule periods from 2010

- 2012; and or law.(b) 

### The initial control period is January 1,2007, through De- {jjQ 

### beginning with the 2014 calendar-year control period, all sites will receive an allocation in accordance with the cember 31,2007. Each control period afterDecember 31,2007, shall methodology under subparagraph (B) 

### ofthis paragraph. begin January 1 and end December 31 ofeach year. No later than March 1 after each control period, a site subject to this division must ill} A site meeting the following conditions may rehold a quantity ofallowances in its compliance account that is equal questto use an alternative baseline emissions period consisting ofthe to or greaterthan the total highly-reactive volatile organic compound two consecutive calendar-year control periods immediately preceding emissions from the applicable [ee¥efetl] 

### facilities located at the site the baseline emissions period defined under §101.390(4) ofthis title during the control period. (relating to Definitions): (c) Allowancesmay notbeusedto satisfynettingrequirements 

## ill the site usedcontinuousflowrate monitoring and underChapter 116, SubchapterB, Divisions 5 and 6ofthis title (relat- speciation ofHRVOC to determine HRVOC emissions during the aling to Nonattainment Review; and Prevention ofSignificant Deterio- ternative baseline period; ration Review). fjjl the site had permanent, voluntary, and quantifi- (d) Allowances may be used simultaneously to satisfy the re- able HRVOC emission reductions in an amount equal to or greater quirements ofthis division andthe one-to-one portion ofthe offsetre- than 50% ofthe site's total annual HRVOC emissions subject to 

### this quirements for new or modified covered facilities, subject to federal program, ora site-wide reduction inHRVOC emissions subjectto this nonattainmentnew sourcereviewrequirements as providedin Chapter program of50tons orgreater, as calculated by comparing the average 116, SubchapterB, Division 7ofthis title (relatingto Emission Reduc- HRVOC emissions from the alternate baseline period to the baseline tions: Offsets). emissions period defined under §I01.390(4) ofthis title; (e) 

### An allowance does not constitute a security or a property {jjQ 

### qualifying HRVOC emission reductions must right. have been made enforceable by a permit application submitted under (f) 

### All allowances will be allocated, transferred, deducted, or Chapter 116 ofthistitle (relatingto ControlofAirPollutionby Permits
usedintenthsoftons. Thenumberofallowances willberoundeddown for New Construction orModification) or other submittal to the executive director no laterthan April 1,2010; and to the nearest tenth ofa ton when determining excess allowances and rounded up to the nearesttenth ofa ton when determining allowances 

## fM. arequestfor an alternativebaseline periodmust used be 

### received bythe executive director no laterthan 

### July 1, 

### 2010. (g) Each site shall have only one compliance account. (2) For sites located in Brazoria, Chambers, Fort Bend, (h) 

### The commissionwillmaintainaregistry ofcomplianceac- Galveston, Liberty, Montgomery, and Waller Counties [that fife Bet



### counts and broker accounts. The registry will not contain proprietary 

### eltgibIe te 

### ftleei¥e ltIIe'HH:B:eeS 

### tIft8ef stHlseefteft

## fElt efthis 

### 5eetieft],
information. allowances for emissions ofethylene and propylene for each site will be 

### determined using the equation in the following figure. §JOJ.394. Allocation of Allowances. 

### Figure: 30 TAC §I01.394(a)(2) (No change.) (a) On 

### January 1, 2007, the executive directorwill deposit al- (b) 

### The level ofactivity ofa site will [llfttlH] 

### be determined by lowances into compliance accounts as follows. summing the levels ofactivity from the chosen 12 consecutive month (1) For sites located in Harris County [that fife Beteligible 

### period for each process unit, as defined in §

### 115.10ofthis title, located te

### RleeiYe &Ila'll'H:B:ses

### tIft8efslfesesbaft

## fEltef this**~],** 

### allowances at the site that produce one or more HRVOCs as an intermediate, byforthe emissions ofone ormore ofthehighly-reactivevolatile organic product, or final product or that use one or more HRVOCs as a raw compounds (HRVoq as defined in §1l5.IO ofthis title (relating to material or intermediate to produce a product. Definitions), will be determined using the equations [eqttabeft] in sub- 

## [fElt -The

_ et'epefIitefef

### asHethat

### is

### 5tibjeettethis

### di¥i

### paragraphs (A) 

### and (B) 

### ofthis paragraph 

### [-thefelle'

..... dlg figlffe]. 

### sieft;- bt:ttthatil6esBetiftefl:tde

### a J'reees5 

### tIftitthat

### JlfBdHees et' tiSeS iIft 

### [FigtHe!-**~.:rAG** 

### §lQl.394(1i)(1)] HR¥OC, llfttlHilpJlIybylH:B:ttlIry

### 39;-**~te** 

### -theexeetftivedifeet6f

### fer fA} 

### For calendar-year control periods 2007

- 2010, the iIft

### alleeatieftbesed 6ftHR¥9G

### threaghpllt**et'~~** fefaBy 

### following equation will be 

### used to determine the allocation for each H 

### eBftSeetlb'/e iflEIftth5

### tllffiftg

### -the ef**~-t!H6ttgIt~]** 

### site: 

### [fl7 .:Jfie 

### elteeubve direetet' ftIllY 

### eEjlflt&Bly 

### eI1ee&te tift 

### te 

### Figure: 30 TAC §101.394(a)(1)(A) W%efthetetB1

### HlWGG&IlaslibellS**ferHtlffi&~** 

### tetil'9tle1t5ite9 @ 

### Forcalendar-yearcontrolperiods2011 andlaterthe Iee&ted ift**HIlFris~]** 

### following allocation methodology will apply:**[~** Fer 

### 5ite9lee&tetl ift 

### Bflli!larill; ChemeefS, Feft BeBd;- 

### Figure: 30 TAC §J01.394(a)(l)(B) GB:lvesteft; bigefty, 

### Mafttgamery, tm& 

### Cetl:ftties, 

### -the exeellti'le {Q Sites notinoperation duringthe baseline emissions 

### difeetefmay

### itIleetttetift

### te-Hl% ef

### -the tetB1 

### HRVOC elftissleftS tI:Ile

### period due to the construction ofan authorized modification that re

## 34 TexReg 7006 October

## 9, 2009 Texas Register

### eateElfefihese

### eetlftties.t&ilH5tKlhsiteslooatediftBflti!!eri&; Chambers, FeftBeftd; 

### Gal

...e9teft, bibefly, 

### Mefttgemery,

- 

### WaHefCellftties.]**[~** 

### The elteeathe difeet&F 

### 5haH tiistFietlte tHl 

### alleweees flet 

### alleeatedtifttieF

### this sabseetieftIlFelleFtieftallyt&

### ihese

### sitesreeei¥- iftg alleeatieftS tifttieF 

### stlbseetieasfa)

_ 

## Wef**this~] [~]**  

### Sites subject to the requirements of

### this division or electing to opt-in to the requirements ofthis division that receive an HRVOC allocationoflessthan5.0tonsbasedonthe allocationmethodologies undersubsection(a)(l)(A) [5t1Bseetieafa)effet] ofthis section will 

### [5haH] be eligible to receive a minimum allocation of5.0 tons of HRVOC allowances peryear. 

### @ Sites subject to the requirements ofthis division that receive an HRVOC allocation ofless than 10.0tons based onthe allocation methodologies under subsection (a)(l)(B) ofthis section will be eligible to receive a minimum allocation of 10.0 tons ofHRVOC allowances per calendar-year control period. (e) Ifthe total actual HRVOC emissions from the covered facilitiesatasiteduring acontrolperiodexceedthe amountofallowances inthe compliance accountforthe site onMarch 1 following the control period, allowances forthe nextcontrolperiodwill 

### [5haH] bereducedby
an amountequalto the emissions exceedingthe allowances inthe compliance accountplus 10% ofthe exceedance. This allocationreduction does notprecludethe executive directorfrom initiating anenforcement action. Ifa compliance account does nothold sufficient allowances to accommodate the reduction, the executive director may issue a notice ofdeficiency to the owner or operator. The owner or operator will 

### [-shaH] purchase or transfer allowances sufficient to accommodate the reduction within 30 days ofissuance ofthe notice ofdeficiency from the executive director. (f) 

### Allowanceswillbeallocatedbytheexecutive director, who will deposit allowances into each compliance account: (1) initially, by January 1,2007; and (2) subsequently, by January 1 ofeach following year. (g) 

### Theexecutive directormay adjustthe deposits foranycontrol periodto reflectnew orexisting state implementationplanrequirements.(h) 

### Theexecutive directormay addordeductallowances from compliance accounts based on the review ofreports required under §101.400 ofthis title (relating to Reporting). §JOJ.396. Allowance Deductions. 

### (a) On March 31 of each year after a control period, allowances representing the total highly-reactive volatile organic compounds (HRVOC) emissions from the applicable 

### [eeYeFeti] facilities at 

### a site during the previous control period will be deducted from the compliance accountforthe site. The amountofHRVOC emissions will be based upon the monitoring and testing protocols established in §115.725 and §115.764 ofthis title (relatingtoMonitoring and Testing Requirements), as appropriate. (b) 

### The amount ofHRVOC emissions from applicable [eeY

### eretl] facilities will 

### [-shtHl] be calculated for each hour ofthe year and summedto determine the annual emissions forcompliance. For

### [emilr -siefts 4fem 

### emissieas evet$ 5tibjeet t& 

### the 

### reqttifemeMs 

### ef§101.291 

### efthis00e t& 

### Bmissieas EYeBt 

### R-ellef'tiBg 

### lIftd R-eeeftikeell iBg

### R-eqttifemeftts)er] 

### emissions from scheduledmaintenance, startup,
or shutdown activities subject to the requirements of§101.211 ofthis title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements)Jt] the hourly emissions to be included in the summation shall not exceed the short-term limit of §1l5.722(c) and §1l5.761(c) of this title (relatingto Site-wide Cap and Control Requirements; and Site-wide Cap. (£} 

### As ofJanuary 1, 2011, HRVOC emissions, up to a total of250 tons from all applicable facilities in Harris County, that are attributed to emissions events subject to the requirements of§101.201 ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements) will be excluded from determining annual compliance for each calendar-year control period. Emissions from emissions events at each individual site will be applied 

### against the emissions event set-aside inthe chronological orderreportedto the State of Texas Environmental Electronic Reporting System, as a final record, under §101.201(b). Emissions from non-reportable emission events will be applied against the emissions event set-aside on March 31 of each year afterthe control period in the orderofactual occurrence reportedonFormECT-IH, 

### Highly-ReactiveVolatileOrganicCompound (HRVOC) Emissions Capand TradeAnnual 

### ComplianceReport, as required under §101.400(aX4) ofthis title (relating to Reporting). @ 

### Ifthe total HRVOC emissions from all applicable facilities in Harris Countythat are attributable to emission events subjectto the requirements of§101.201 ofthistitle exceedthe 250 tonemissions event set-aside in any calendar-yearcontrol period, allowances equivalentto the emissions from those emissions events occurring afterthe emissions eventset-aside limithas beenreachedwill be deducted from
a site's compliance accountno laterthan 

### March 31 ofthe yearfollowing the applicable calendar-yearcontrol period. [fet] Ifthe monitoring and testing datareferenced in subsection (a) ofthis section does not existoris unavailable, the site may determine its HRVOC emissions for thatperiod oftime using the following methods and in the following order: continuous monitoring data; periodic monitoring data; testing data; data from manufacturers; and engineering calculations. When determining the amount of HRVOC emissions underthis subsection, the site will 

### [5haH] include a justification for using the substitute method or methods in lieu ofthe methods referenced in subsection (a) ofthis section. 

## ill**[~]** 

### When deducting allowances from the compliance account ofa site for a control period, the executive director will deduct the allowances beginning with the most recently allocated allowances before deducting banked vintage allowances. §JOJ.399. Allowance Banking and Trading. 

### (a) Allowances allocated for acontrol periodthat are notused for compliance inthatcontrol period may be bankedfor use indemonstrating compliance for the next control period ortransferred. (b) 

### Allowances 

### that have not expired or been used may be transferred at any time during a control period, except as provided in this section. (I) The person desiringto transferthe allowances shall apply for approval ofthe transaction to the executive directorby submitting acompletedForm ECT-2, ApplicationforTransferofAllowances. (2) The ECT-2 form must include the purchase price per allowance proposed to be paid, except for transactions between sites under common ownership or control. (3) All information regarding the quantity and purchase price ofthe allowances will be immediately made available to the public. (4) Ifthe executive director approves the application, the executivedirectorwillsendaletterto the sellerandpurchaserreflecting the transaction. The transaction is final upon issuance ofthe letter.



## PROPOSED RULES October 

## 9, 2009 

## 34 TexReg 7007

### (c) Apersonreceiving allowancesonan annualbasismay permanently transfer ownership ofcurrent and future allowances to any person in accordance with the following requirements. (1) 

### The person desiringto transferthe allowances shall apply for approval ofthe transaction to the executive directorby submitting a completed Fonn ECT-4, 

### Application for Pennanent Transferof Allowance Ownership. (2) The ECT-4 

### fonn must include the purchase price per allowance proposed to be paid, except for transactions between sites under common ownership or control. (3) All infonnation regarding the quantity and purchase price ofthe allowances will be immediately made available 

### to the public. (4) Ifthe executive director approves the application, the executivedirectorwill sendalettertothe sellerandpurchaserreflecting the transaction. The transaction is final upon issuance ofthe letter. (d) Aperson may transfer allowances that are scheduledto be allocatedin afuture controlperiodbuthavenotyetbeen deposited into
an account. (I) The person desiringto transferthe allowances shall apply for approval ofthe transactionto the executive directorby submitting a completed Fonn ECT-5, Application for Transfer ofIndividual Future YearAllowances. (2) The ECT-5 fonn must include the purchase price per allowance proposed to be paid, except for transactions between sites under common ownership orcontrol. (3) All information regarding the quantity and purchase price ofthe allowances will be immediately made available to the public. (4) Ifthe executive director approves the application, the executivedirectorwill sendalettertothe sellerandpurchaserreflecting the transaction. The transaction is final upon issuance ofthe letter. (tl 

### Allowances that were provided under §101.394(a)(l)(C) ofthis title (relating to Allocation ofAllowances) are not eligible for transferunder subsections (b), (c), or(d) ofthis section. 

## ill**[~]** 

### Allowances generated from sites located in counties other 

### than Harris County may not be used at sites located in Harris County. Allowances generatedfrom sites locatedinHarrisCountymay not be used at sites located in counties otherthan Harris County. {gl 

### [00] Only authorizedaccountrepresentativesmaytransfer allowances. 

## ill [fg)] 

### Allowances subject to an approved transaction will be deposited into the purchaser's brokeror compliance accountwithin 30 days ofreceiptofa completed transfer application. 

## ill [W] 

### Volatileorganiccompoundemissionreduction credits (ERC) certified in accordance with Division I ofthis subchapter (relating to Emission Credit Banking and Trading) may be converted to
a yearly highly-reactive volatile organic compound (HRVOC) allocation. (1) 

### Qualified volatile organic compound (VOC) ERCs must be generated: (A) from a reduction at 

### a site located in the Houston/GaivestonlBrazoria nonattainment area; (B) 

### from a reduction strategy implemented after December 31, 2004; and



## 34 TexReg 7008 October9, 

## 2009 Texas Register (C) from a reduction in VOC species other than those definedasHRVOCsunder §115.10ofthistitle (relating

### to Definitions). (2) VOC reductions duetothe installationofbestavailable controltechnology do notqualify for conversionunderthis subsection. (3) In 

### additiontotherequirementsof DivisionI of this subchapter, aqualified VOC ERC mustmeetthe following requirements: (A) the ERC must be quantifiable, real, surplus, enforceable, and pennanent as required in §101.302 ofthis title (relating to General Provisions) atthe time the ERC is converted; (B) 

### the baseline emissionsto whichthe VOC reduction is compared must consistofthe average actual emissions for any two consecutive calendar years preceding the emission reduction strategy and that include or follow the most recent year ofemission inventory used in the state implementation plan; (C) the quantification of VOC reductions must be perfonned using the monitoring and testing methods required under §115.725 or §115.764 ofthis title (relating to Monitoring and Testing Requirements) and subject to the recordkeeping and reporting requirements under §115.726 and §115.766 ofthis title (relating to Recordkeeping and Reporting Requirements); (D) 

### the ERC must nothave expired; and (E) 

### theownerof theERC shallhavepriorapprovalfrom the executive directorto convert the ERCto an HRVOC allocation. (4) VOC ERCs must be converted to HRVOC allowances at aratio calculatedusing the equation inthe following figure. Figure: 30 TAC §101.399(iX4) [Figure**~-TAG** 

### §llH.399(h)(4)] (5) For each site eligible to receive allowances under §101.394(a) [ef (e)] of this title 

### [(fel&tiftg t& 

### Alleeatieft 

### ef Alle'fl8ftees)], additional HRVOC allowances received from the conversion ofVOC ERCs under this subsection must be limited to
a quantity not to exceed more than 

### 5% ofthe site's initial HRVOC allocation. (6) In

### additiontoparagraph(5)of this subsection, sites subject to this division may receive an HRVOC allocation from the conversionofVOC ERCs underthis subsectionequivalentto anyHRVOC emissions increases from new ormodified covered facilities notin operation prior to January 2, 2004, and that were included in an application for a permit under Chapter 116 ofthis title (relating to Control ofAirPollutionby Permits forNewConstructionorModification) that


### was deemedadministratively completebytheexecutivedirectorwithin
one year ofthe effective date ofthis rule. §J01.400. Reporting. (a) No later than March 31 after each control period, each site will 

### [5h&H] submit a completed Form ECT-IH, Highly-Reactive Volatile Organic Compound (HRVOC) Emissions Cap and Trade An

### nual Compliance Report, to the executive director, which will**[~]** 

### include the following: (1) the total amountofactual HRVOC emissions from!p: plicable [ee¥eftlti] 

### facilities atthe site during the precedingcontrol period; (2) the method or methods used to determine the actual HRVOC emissions, including, but notlimited to, monitoring protocol and results, calculation methodologies, and emission factors; [8ftd] 

### (3) a summary ofall final transactions for the preceding control period; and[:-]

## SUBCHAPTER H. EMISSIONS BANKING AND TRADING 

## DIVISION 3. 

## MASS EMISSIONS CAP AND TRADE 

## PROGRAM
30 TAC §§101.350, 101.351, 101.353 

## ill the total amountand respective dates ofHRVOC emissions from emissions events subject to the requirements of§101.201 ofthis title (relatingto Emissions EventReporting andRecordkeeping Requirements). (b) Forsitesfailing to submitanECT-IHform bythe required deadline in subsection (a) ofthis section. the executive director may withhold approval ofany proposed trades from that site involving allowances allocated for the control period for which the ECT-IHform is due orto be allocated in subsequent control periods. §101.401. Levelof Activity Certification. 

### (a) No laterthanApril 30, 2005, the owneroroperatorofeach site subjectto this division will**[~]** 

### submitto the 

### executive director
a completed Form ECT-3H, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Level ofActivity Certification Form. (b) 

### Foreachprocessunit subjectto this division. the owneror operatorwill**[~]** 

### certifyintheECT-3H form the levelofactivity for the selected 12 consecutive months during the period of2000 through 2004. (c) The owner or operator will**[~]** 

### attach to the ECT-3H form informationanddocumentation necessaryto supporttheproposed level ofactivity baseline. (d) The owner or operator ofthe site may mark any portion ofthe ECT-3H form, orsupporting informationand documentation. as confidential under Texas Health and Safety Code, §382.041. (e) In 

### conjunction with submission ofthe ECT-3H form, the
owneroroperatorof the site subjectto this divisionwin**[~]** 

### provide enforceable documentation ofthe maximum allowable emission rate ofhighly-reactive volatile organic compounds from facilities located at that site. 

## ill No laterthan April 30, 2010, the owneroroperatorofeach site subjectto this division will submitto

### the executive directoracompleted Form ECT-6H, Highly Reactive Volatile Organic Compound Emissions Cap and Trade Baseline Emissions CertificationForm. fg} 

### Foreach site subjecttothis division. the owneroroperator willcertify intheECT-6H form two consecutive calendar-yearcontrol periods selectedfromtheperiodof2006

- 2009toestablishthebaseline emissions period. This agency hereby certifiesthatthe proposal has been reviewed by legal counsel and found to 

### bewithin the agency's legal authority to adopt.

Filed with the Office ofthe Secretary of State on September 25, 2009.
TRD·200904273 Robert Martinez Diredor, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: November 8, 2009 For further information, please call: (512) 239-6090 

# • • • The Texas Commission on Environmental Quality (commission or agency) proposes amendments to §§ 101.350, 101.351, and 101.353. The amended sections will 

### be submitted to the United States Environmental Protection Agency (EPA) as a revision tothe state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES The purpose ofthe proposed amendments to Subchapter H, Division 3, Mass Emissions Cap and Trade Program, is to maintain the integrity of the nitrogen oxides (NO.) cap in the Houston-Galveston-Brazoria (HGB) ozone nonattainment area and minimize increases in the NO. cap. The proposal would discontinue the acceptance of late ECT-3 forms, Level ofActivity Certification, submitted in accordance with §1 01.360(a) after March 30,2010, from sites defined on or before December 31,2000, as major sources of NO., as defined in 30 TAC §117.10. Also, the proposed rulemaking would amend the definition of "Uncontrolled design capacity" to provide additional flexibility for certain stationary diesel engines and clarify both site and facility applicability. The Mass Emissions Cap and Trade (MECT) program is a market-based component ofthe SIP that prOVides stationary sources of NO. compliance flexibility for the emission specifications under 30 TAC Chapter 117, while establishing a mandatory cap for total NO. emissions from affected source categories in the HGB ozone nonattainment area. The MECT program was adopted as a primary control measure ofthe HGB attainmentdemonstration for the one-hour ozone National Ambient Air Quality Standard (NAAQS). The MECT program NO. cap is a productofthe emission specifications ofChapter 117 and the submitted levels ofactivity from applicable facilities. The proposed rulemaking would not affect the submittal of ECT-3 forms from minor sources of NO•. In accordance with §101.360(a), to receive an allocation of allowances (one allowance equals one ton of NO.), sites were required to submit an ECT-3 form with the levels of activity from their applicable facilities by June 30, 2001. Applicable facilities with historical actual emission data were allocated allowances based on actual levels of activity while other applicable facilities without historical actual emission data were allocated allowances based on permitted allowable emissions. Representatives offacilities with allocations based on permitted emissions are required to submit a second ECT-3 form once a historical emissions baseline is established to convert their permit-based allocation to a historical level of activity based allocation in accordance with §101.360(b)(1). The current rule doesn't address late submittals of ECT-3 forms. Therefore, a site that has never complied with the MECT program could submit a late ECT-3 form in accordance with §101.360(a) and receive an allocation of allowances, thus, potentially increasing the NO. cap. To maintain the 

### integrity and minimize increases in the NO. cap, the proposed rulemaking would discontinue the acceptance of late ECT-3 forms from sites defined on or before December 31, 2000, as major sources of NO. if submitted in accordance with §101.360(a) after March 30, 2010. These applicable facilities would have to obtain allowances from the market instead of receiving an allocation of allowances. Informal comments from industrywere received regarding clarification on "airpollution control equipmenf' in the definition of"Uncontrolled design capacity." Therefore, the proposed rulemaking



## PROPOSEDRULES October9, 

## 2009 34 

## TexReg 7009

## Figure: 30TAC §101.394(a)(1)(B)

S

# =ACI X

## (Industry SectorShare) x 

## (Facility Share)

Where:

S

# =the greater

## of10.0 tons orthe allocationforthe site. Industry SectorShare

# =Total actual average emissions forthe industry sectorbaseline emissions period 

## dividedbythe total actual average emissions for allparticipating sites'baseline emissions period. Facility Share = 

## The sumofthe total average actual emissions fornon-flare facilities and uncontrolledemissions for flares, 

## as well 

## as heaters, boilers, andfurnaces combustinghighlyreactive volatile organic compound (HRVOC) streams, forthebaseline emissions period 

## divided by

## the total uncontrolledactual average emissionsforthe industry 

## sectorbaseline emission period.



## ACI 

# =the amountofHRVOCtons defined in (1)

- 

## (5) ofthis figure less the total amount allocatedtothose sites receiving aminimumof10.0

## tons.
(1) 

## For2011

- 2013, ACI 

# =3,201.5 tons; 

## (2) For2014, ACt

# =2,856.4tons; (3) For2015, ACt

# =2,683.8 tons;
(4) For2016, ACI 

# =2,511.2 tons; and
(5) For2017 and all subsequentcalendar-yearcontrolperiods, ACI 

# =2,338.6 tons.



## TABLESAND GRAPHICS October 9, 

## 2009 34 

## TexReg 7111