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., Executive Director

- ' . • \ "'. '..' •• 'I " ~., i . !'

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing and Preventing Pollution

April 6, 2010

Docket No. 2009-0802-SIP, Project No. 2009-017-SIP-NR

Docket No. 2009-0932-RUL, Rule Project No. 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 Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Dr. 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 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 - 101.401:1 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 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

Ambient Air Quality Standard by June 15, 2019.

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

hearings, and the accompanying orders. I look forward to your expeditious approval ofthese SIP revisions.

Sincerely,

B~~ B~haW, Ph.D.

Chairman

BWS/jmm

Enclosures

cc: The Honorable Rick Perry, 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.lls
10 APR -9 Pr,1 1: 55

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

Mark R. Vickery, P.G., Executive Director

Protecting Texas by Reducing and Preventing Pollution

April 6, 2010

Docket No. 2009-0802-SIP, Project No. 2009-017-SIP-NR

Docket No. 2009-0932-RUL, Rule Project No. 2009-006-101-EN

Docket No. 2009-0867-RUL, Rule Project No. 2009-019-101-EN

Al Annendariz, Ph.D, Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Dr. 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

Ambient Air Quality Standard by June 15,2019.

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

hearings, and the accompanying orders. I look forward to your expeditious approval ofthese SIP revisions.

Sincerely,

B QM.W,/kzw- B~haw, Ph.D.

Chairman

BWS/jmm

Enclosures

cc: The Honorable Rick Perry, 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 1RAVIS

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

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

51.104. I am the records administrator for the Air Quality Division ofthe Texas Commission on Environmental

Quality (Commission).

Director,

D~~~- Air Quality Division

Texas Commission on Enviromnental Quality
Texas Commission on Environmental Quality

Public Hearings

October 28 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

October 28,2009, and Austin on October 29,2009, to receive testimony regarding 30 TAC Chapter

101, General Air Quality Rules. SubchapterA, General Rules. §1 01.1; and Subchapter H, 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 of the

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

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

Federal Regulations, and corrects the reportable quantity for 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 of the public

hearings and is divided into the following four sections:

o Public Notification and Proposal

o Written and Oral Testimony

o Evaluation of Testimony

o Staff Recommendations/Order

Additional copies ofthis hearing record are maintained in the TCEQ central office at 12100 Park 35

Circle, Austin, Texas 78753. For further information, please contact Jay Tonne 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 Newspaper Classified Ad

Corpus Christi CalJer-Times, September 26, 2009

~onCE OF pUBuCllChapter 101, SuD=llli'earing. -,

I HURlNG& iohapter A. 5101.1, . BYTHETEXAS jDeflnltlonsJ 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. TAC definition with, other accommodation

VISIONS TO 30TAC the current deflnltlonlneeds, should conCHAPTER 101 In 40 Code at FederalItact Charlotte Horn,

AND TO THE 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 n ta 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 plH ot ....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.

IRegistration will belgin SO minutes prior ito 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

NClTICE Of PUBUC HEARINGS IV 'TME 'T1!XAS

CCMMISSIDN ON I!IIMRONMENTAL QUAIJTYON PROPOS!D ReVlSlONS TO 30 TAt: CHAPT!RS 101

AND 115. AND TO THE STA'ft IMPI.!M!NTA'T1DN

PLAN

The T_ CDmmlalon iii EnvIronmutlll Quality

(CDmmlalon) will CIIlIduct IIUIIIIc ....rIng. III ,...

lBlIlIlDIIY N/I.rdIll11 l'IYlIIolIIlll 30 TAt:

ChIIpt8r 101........1AIr QUIIIIty Ru"••nd 30 TAt:

ChI_ 115. Control Dt Air PllllutlDn fl'lIm IIDlIIllll .

01'1I'* Compoulllll.nd CIIINIlIDIIlIInO ....-.-III the lIlII.. I/npIeInMIatIan p.n (SJP) under the

I'IlIUIIuluD DtT_ ...1II1 .nd sntv Code,

1382.017;T_ GlMmnwnt CoM. C/aIIIIIr 2001.

SUllchllpt8r I; .nd4D Code Dt Fed...1lWg*llllnI

151.102••ndthe UnI\IId .....Envinln_1

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I!nllaIaIl1l c.p .nd TIId. (M!CT) Pragnm. _Id _1M the dllllnltlDn Dt·lInc:lIntrDI*I dIIlgn CIIPKltY" III Pni"/1dII IddItIoMlllulbllltYfar _In ItJIllol\llry d...1IlII-.nd dIIrtrv both ....nd fIcIIlty .pp/lCllbUIty. In Iddlllon. the pnlllllMd .nwncl__lei mll....1n the lntIgrity Dt the nllrage/l DXldII (NOlC) ClIp In the HGI _

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..... IltAi:lIvIty CMtlIICIItIon. fl'lIm ~rIIIUnasllt NOX submltlild IIlIr MlI'CII 3D. 2010. (lUll PnQKI: No. 2IllIe011-101-81) ThI pra...-s .nwnclmentIII ChI_l0l. SUllc:haptJlr H. DIvIsIDn 6. Hlghly-ll8cllve VDllIl:IIlI Orpnlc CDmpouncll!mllalcMls c.p ..... TIIdIIl'rDglllm. would NIl_the lDlIl ClIP .mount Ilt .11DwI..- .nd __the .1IDCIIIIDn lMI:hDdolDgy Dt IIIDw._ far partldpantlln the Hlghll'-RMetIVa IIDlIItIIII Or;Ilnlc Compound

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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 Protection Agency (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 of Federal 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 of allowances and revise the allocation

methodology of allowances for participants in the Highly-Reactive

Volatile Organic Compound Emissions 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 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, 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

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 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 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.uslnovlrulesipropose_adopt.hlml. Copies

of the 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 proposed Registratio No. 40243, to construct and 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 and transfer municipal 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. Written public comments

or written requests for a public me ting must be submitted to the Office

ofChiefClerk at the address inclu d in the information section below.

Comments may also be received i public meeting is held on the facil·

ity. A public meeting will be held y the executive director ifrequested

by a member ofthe legislature w represents the general area where

the development is to be located, r ifthere is a substantial public in·

terest in the proposed developmen . The purpose 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 director will review and nsider public comments and writ·

ten requests for a public meeting bmitted prior to the notice offinal

determination. The executive dire tor is not required to file a response

to comments.

EXECUTIVE DIRECTOR ACTI N. The executive director shall, af·

ter review of an application for re istration, determine ifthe application will be approved or denied' whole or in part. Ifthe executive

director acts on an application, th chief clerk shall mail or otherwise

transmit notice ofthe action and explanation ofthe opportunity to

file a motion to reconsider the exe utive director's decision. The chief

clerk shall mail this notice to the 0 er and operator, the public interest

counsel, to adjacent landowners as shown on the 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 letter from the Office

ofthe Chief Clerk.

INFORMATION. Written public mments or requests to be placed

on the permanent mailing list fi this application should be submitted to the Office of the 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 of Public 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 or by 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

proposed revisions to 30 TAC Chapter 101, General Air Quality Rules,

Subchapter A, 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 of Texas

34 Tex.Reg 7132 October 9, 2009 Texas Register
•

Compounds and corresponding revisions to the state implementation

plan (SIP) under the requirements of Texas Health and Safety Code,

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

40 Code of Federal Regulations §51.102, 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 "Uncontrolled design capacity" to provide additional flexibility 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 of late ECT-3 forms, Level of Activity Certification, from major sources of NOx 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 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 §101.1 would also

update the definition of volatile 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,I,I,2,3,3,3-heptafluoropropane. (Rule Project No. 2009-006-101-EN)

The proposed amendments to Chapter 115, Subchapter E, Division 4,

Offset Lithographic Printing, would reduce the VOC content limits on

fountain solutions used by sourcesthat 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 Attainment Demonstration 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, 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 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 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 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 of oral 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 discussion during the hearing; however, commission

staffmembers 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 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 of Texas Health and Safety Code,

§382.017; Texas Government C de, Chapter 2001, Subchapter B;

and 40 Code of Federal 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
Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner.

Carlos Rubinstein, Commissioner

Mark R. Vickery, P.G., Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing andPreventing Pollution

NOTICE OF PUBLIC HEARINGS

BYTHE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

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 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 of Texas Health and Safety Code, §382.0l7;

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102, of

the United States Environmental Protection Agency (EPA) concerning SIPs.

The proposed amendments to Chapter 101, Subchapter A, §101.l, Definitions, would update the

definition of volatile 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 also reduce the total cap amount of allowances and

revise the allocation methodology of allowances for participants in the Highly-Reactive Volatile Organic

Compound Emissions Cap and Trade Program. (Rule Project No. 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

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 receipt of oral 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 after the 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/ruIesiecommentsi. File

size restrictions may apply to comments being submitted via the eComments system. Copies of the

proposed rules can be obtained from the commission's Web site at

http://www.tceq.state.tx.us/nav/ruIes/propose_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/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.

Issued in Austin, Texas, on September 23, 2009.
Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

Mark R. Vickery, P.G., Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing andPreventing Pollution

NOTICE OF PUBLIC HEARINGS BY THE

TEXAS COMMISSION ON ENVIRONMENTAL 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 of Texas Health and Safety Code, §382.017;

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal 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 clarify both site and facility applicability. In addition,

the proposed amendment would maintain the integrity of the nitrogen oxides (N0x) cap in the HGB

ozone nonattainment area and minimize increases in the NOx cap by discontinuing the acceptance of late

ECT-3 forms, Level of Activity Certification, from major sources of NOx submitted after March 30,

2010. (Rule Project No. 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 of allowances 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 of volatile 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 Project No. 2009-006-101-EN)

The proposed amendments to Chapter 115, Subchapter E, Division 4, Offset Lithographic 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 of fountain 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 Air Act-required SIP

elements, including a photochemical modeling analysis, a weight of evidence 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 HoustonGalveston Area Council has committed to emissions reductions through the Vohmtary Mobile Emission

Reduction Program and implementation of transportation 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 of 2002 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 of the 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 of the required mobile source emission inventory updates, the MVEBs are updated as part of

this SIP revision. (Rule Project No. 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 of oral 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 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 of Legal 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/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 MECf rule 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 of the 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 September 23,2009.
a school district under the TEC, Chapter 39 [~], for failure to

comply with the OFSDP requirements ofthis section.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on 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 of the first five years that this amended rule is in effect there

will be no additional cost to state or local governments.

Mr. Par1<er has also determined that for each year of the first five

years that this amended rule is in effect the public benefit will be

that §73.7 will not need to be amended should the board change

the fee for submittal of an application for approval of a 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 other statutes, 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 later than 60 days prior to the date ofthe course, along

with a nonrefundable application fee as set by the board [efW] for

each course. For the purpose ofthis subsection, where the same course

is held inmultiple cities ortowns, with differentspeakers, each location

is considered a separate course. If a continuing education program

consists of separate sessions or modules, on different topics and on

different dates, each session or module is considered a separate course.

(d) • G) (No change.)

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on 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

or TCEQ) 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.

PROPOSED RULES October 9, 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 under the HECT program for the 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 of the NAAOS as expeditiously as practicable.

As part of the December 2004 HGB SIP mid-course review for

the one-hour ozone standard, the commission developed a dual

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 under 30 TAC 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 per year (tpy). The cap is enforced through

the allocation, trading, and banking of allowances. An allowance

is the equivalent of one 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. For sites that have the potential to emit ten 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 exempt from 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 under this rulemaking

would reduce the total HECT cap by 25% by the attainment year

and revise the HRVOC allocation methodology to address inequities from the initial allocation. Photochemical modeling analysis demonstrates that a 25% reduction of the 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 at the 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% of the 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 October 9, 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 account for 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 effect for one 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 allow companies time to install controls if necessary.

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 other chemical manufactures and refineries. Therefore, under

the existing HECT program, sites in the refinery and non-polymer

chemical sectors generally have the largest excess HRVOC allowances as compared to actual emissions. HECT program participants also commented on the reluctance of sites 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 under the 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 of the 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 data to 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 allow for applicable sites to establish a representative

baseline emission period, the proposal would allow sites to use
their two highest consecutive calendar-year control periods out

of the four years from 2006 - 2009.

The proposed rulemaking includes a provision for HECT participants that qualify to have the ability to request from 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 must be

permanent, voluntary, and quantifiable of an amount equal to or

greater than 50% of the 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 request to retain

their current allocation until an alternate baseline period is established. Beginning with the 2014 calendar-year control 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

for the two consecutive calendar-year control 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 industry that the 2006 - 2009 years proposed for establishing 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 if their 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 for these 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 higher flame temperatures. Other facilities subject to 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 account for f1are-gas recovery, recycle streams, or other processes 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 for well

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 of the 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 Best Available 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 prodUct that is recycled and recovered for sites 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 for the sector by the total available cap. The resulting

fraction expressed as a percentage becomes the industry sector

share. Applying this sector share 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

order to 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 under continuous pressure to prevent and control emissions events

and there is a strong enforcement action mechanism in place to

PROPOSED RULES October 9, 2009 34 TexReg 6991
discourage excessive emissions events. The use of allowances

from the set-aside by the agency to cover emissions from emissions events from a site would not in any way alleviate or replace

the site's compliance burden with other Chapter 101 and Chapter 115 regulations for emissions events.

The 250 ton emissions event set-aside would 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 after each

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-year control period or until the set-aside amount of 250 tons

has been met. Allowances for non-reportable emissions from

emissions events will be accounted under the 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 of the 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 first week of September, an individual site had

a one ton non-reportable emission event and a second site had

a nine ton reportable emission event. The 249 tons of emissions from reportable emissions events would be counted toward the 250 ton set-aside when reported to STEERS two weeks

later. The one ton ofemissions from 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 first week in September. These emissions would then be covered by the set-aside. Any and all emissions from emissions events reported as occurring after the 250

ton limit was reached during the first week of September would

be required to be covered by allowances 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 HECT program includes a 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 to ten tons in

orderto meetthe exemption level. Underthis proposal, sites with

a potential to emit equal to or greater than 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 methodology for 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. After deducting the required 5% EPA environmental contribution of 181.65 tons, the total HRVOC cap would be

3,451.4 tons. After then subtracting the 250 ton emissions event

set-aside, the commission will allocate 3,201.4 tons to individual

sites at the beginning of the 2011 calendar-year control period.

The first 10% cap stepdown would occur at the beginning of the

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 of 2,588.6 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, proposes that each site receive an allocation equal

to their highest emissions during anyone year of the baseline

emissions period from 2006 - 2009, plus an additional amount
of the remaining cap such'that each site receives an equal percentage of their 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 greater than 100% of their

emissions during their highest emission year.

Consider an example where the total HRVOC cap is 3,500 tons

and the sum of all 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% of each site's highest emissions. If a site's

highest emissions were 100 tons, then their allocation under this

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 language to current Texas Register style and format requirements, as well as establish 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 of 5,000 pounds for HFC-227ea in

2005 and the adopted rule was pUblished in the December 30,

2005, issue of the Texas Register (30 TexReg 8886). However,

the reportable quantity value of 5,000 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 current definition 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 for the purpose of establishing 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 October 9, 2009 34 TexReg 6993
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. 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

longer applicable. 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 per calendar-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

events are to be covered by allowances 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, Level ofActivity 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 later than 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 of administration or enforcement

of the proposed rules. Other units of state or local governments

are not expected to experience any fiscal 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 assist with 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 of the proposed rules since they do not participate in the types of activities that produce HRVOC emissions and do not own 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 show that

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 that a small business regulatory flexibility analysis is not

required because the proposed rules are required to protect the

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 IMPACT ANALYSIS DETERMINATION

The commission reviewed this proposed rulemaking in light of

the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined thatthe proposed rulemaking action meets the definition of a "major environmental

rule" as defined in that statute. A "major environmental rule" is a

rule, the specific intent of which is to protect the environment or

reduce risks to human health from environmental exposure and

that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state.

The proposed amendments to Chapter 101 and revisions to the

SIP would reduce the total cap amount of HRVOC allowances

for the HECT program by 25% and revise the allocation methodology for allowances for participants of the 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 of the 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.

Following the initial allocation of allowances, stakeholder comments indicated that the allocation was not equitably distributed.

Information from the first three years of monitoring data supports

the assertion of an inequitable distribution of allowances. The

proposed revisions are necessary to implement a more equitable

allocation methodology, while contributing to HGB's attainment

of the 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 of these investments

reduced or nullified. Facilities that have their HRVOC allowances

reduced, either through the reallocation or reduction of 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. Ifthe cap is reduced, the price of HRVOC allowances available in the market

may increase.

This rulemaking does not meet any ofthe four applicability criteria of a "major environmental rule" as defined in the Texas Government Code. Texas Government Code, §2001.0225 applies

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

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

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

3) exceed a requirement of a delegation agreement or contract

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

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

instead of under a specific state law. Specifically, the proposed

amendments will result in a decrease in the HECT program cap,

and will adjust the allocation methodology for allowances under

the program. The HECT program was adopted as a control measure for the HGB one-hour attainment demonstration SIP, and

the proposed changes to the program will contribute to HGB's attainment of the 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 of the agency, but was specifically developed under federallaw and authorized underthe Texas Health and Safety Code

(THSC).

The rulemaking implements requirements of 42 United States

Code (USC), §7410, which requires states to adopt a SIP that

provides for "implementation, maintenance, and enforcemenf' of

the NMOS in each air quality control region of the state. While

42 USC, §7410 does not require specific programs, methods,

or reductions to meet the standard, SIPs must include "enforceable emission limitations and other control 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 meet the applicable requirements of this chapter," (meaning 42 USC, Chapter 85, Air Pollution Prevention and

Control). It is true that the Federal Clean Air Act (FCM) does

require some specific measures for SIP purposes, such as the inspection and maintenance program, but those programs are the

exception, not the rule, in the SIP structure of 42 USC, §7410.

The provisions of the FCM recognize that states are in the best

position to determine what programs and controls are necessary

or appropriate in order to meet the NMOS. This flexibility allows

states, affected industry, and the public to collaborate on the best

methods to 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 of 42 USC, §7410. Thus,

while specific measures are not generally required, the emission

reductions are required. States are not free to ignore the requirements of 42 USC, §741 0, and must develop programs to assure

that the nonattainment areas of the 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 that would 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 that this requirement would seldom apply, the

commission provided a cost estimate for SB 633 that concluded

"based on an assessment of rules adopted by the agency in the

past, it is not anticipated that the bill would have significant fiscal implications for the agency due to its limited application." The

commission also noted that the number of rules that would require assessment under the provisions of the bill was not large.

This conclusion was based, in part, on the criteria set forth in the

PROPOSED RULES October 9, 2009 34 TexReg 6995
bill 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 order to

meet the NMOS; thus, states must develop programs for each

nonattainment area to ensure that area would meet the attainment deadlines. Because of the 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 another issue, 960 S.W2d 617

(Tex. 1997); Bullock v. Marathon Oil Co., 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. Water Auth. v. Trinity Portland

Cement Div., 563 S.w.2d 916 (Tex. 1978).

As discussed, this rulemaking action implements requirements

of 42 USC, §7410. There is no contract or delegation 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 Texas Register

subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the rulemaking does not

meet any of the 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 impact assessment for this

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 for allowances for participants of

the HECT program. Photochemical modeling analysis demonstrates that a 25% reduction of the 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 significant investments

on future HRVOC stream trades may see the value of these 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 by these 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 applicable
CMP 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 lower the HRVOC cap. No new sources of air contaminants

will be authorized and the revisions will maintain the same level

of emissions 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

of these 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.

EFFECT ON SITES SUBJECT TO 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 Integrity for the 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 for the receipt of oral or written comments by interested persons. Individuals may present

oral statements when called upon in order of registration. Open

discussion will not be permitted during each hearing; however,

commission staff members will be available to discuss the pro-:

posal 30 minutes prior to each hearing.

Persons who have special communication or other accommodation 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 of the 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 of the 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 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 amendment implements THSC, §§382.002,

382.011, 382.012, 382.016, and 382.017 and FCAA, 42 USC,

§§7401 et seq.

§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 of air pollution

control. In addition to the terms that are defined by the TCAA, the

following terms, when used in the air quality rules in this title, 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 sourcesthat are aggregated as a site. For all othersources,

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) Acid gas flare--A flare used exclusively for the incineration of hydrogen sulfide and other acidic gases derived from natural

gas sweetening processes.

(3) Agency established facility identification number--For

the purposes of Subchapter F of this chapter (relating to Emissions

Events and Scheduled Maintenance, Startup, and Shutdown Activities), a unique alphanumeric code required to be assigned by the owner

PROPOSED RULES October 9, 2009 34 TexReg 6997
or operator of a regulated entity that the emission inventory reporting

requirements of §101.10 ofthis title (relating to Emissions Inventory

Requirements) are applicable to each facility at that regulated 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 contaminants that cannot be reduced by 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 or to heat water.

(7) Capture system-All equipment(including, but not limited to, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains,

collects, and transports an air pollutant to a control device.

(8) Captured facility--A manufacturing or production facility that generates an industrial solid waste or hazardous waste that is

routinely stored, processed, or disposed ofon a shared basis in an integrated waste management unit owned, operated by, 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) Carbon adsorption system-A carbon adsorber with an

inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent.

(11) Coating--A material applied onto or impregnated into

a substrate for protective, decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and temporary protective

coatings.

(12) Cold solvent cleaning-A batch process that uses liquid solvent to remove soils from the surfaces ofparts or to dry the parts

by spraying, brushing, flushing, and/or immersion while maintaining

the solvent below its boiling point. Wipe cleaning (hand cleaning) is

not included in this definition.

(13) Combustion unit-Any boiler plant, furnace, incinerator, flare, engine, or other device orsystem used to oxidize solid, liquid,

or gaseous fuels, but excluding 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 with or without power augmentation. This

unit is either attached to a foundation or is portable equipment operated

at a specific minor or 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

captured facility that disposes only waste generated on-site or a facility

that accepts waste only from other facilities owned or effectively

controlled by the same person.

(16) Commercial incinerator-An incinerator used to dispose ofwaste material from retail and wholesale trade establishments.

(17) Commercial medical waste incinerator-A facility that

accepts for incineration medical waste generated outside the property

boundaries ofthe facility.

34 TexReg 6998 October 9, 2009 Texas Register

(18) Component--A piece ofequipment, including, but not

limited to, 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 of produced natural gas. Once these liquids

are processed at gas plants or refineries or in any other manner, they

are no longer considered condensates.

(20) Construction-demolition waste--Waste resulting from

construction or demolition projects.

(21) Control system or control device--Any part, chemical,

machine, equipment, contrivance, or combination ofsame, used to destroy, eliminate, reduce, or control the emission ofair contaminants to

the atmosphere.

(22) Conveyorized degreasing--A solvent cleaning process

that uses an automated parts handling system, typically a conveyor, to

automatically provide a continuous supply of parts to be cleaned or

dried using either cold solvent or vaporized solvent. A conveyorized

degreasing process is fully enclosed except for the conveyor inlet and

exit portals.

(23) Criteria pollutant or standard--Any pollutant for

which there is a national ambient air quality standard established under

40 Code ofFederal Regulations Part 50.

(24) Custody transfer--The transfer of produced crude oil

and/or condensate, after processing and/ortreating in the producing operations, from storage tanks or automatic transfer facilities to pipelines

or any other forms oftransportation.

(25) De minimisimpaet--A change in ground level concentration of an air contaminant as a result ofthe operation of any new

major stationary source or ofthe operation of any existing source that

has undergone a major modification that does not exceed the 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 a residence.

(27) Emissions banking--A system for recording emissions

reduction credits so they may be used or transferred for future use.

(28) Emissions event--Any upset event or unscheduled

maintenance, startup, or shutdown activity, from a common cause that

results in unauthorized emissions of air contaminants from one or

more emissions points at a regulated entity.

(29) Emissions reduction credit-Any stationary source

emissions reduction that has been banked in accordance with Chapter

101, Subchapter H, Division 1ofthis title (relating to Emission Credit

Banking and Trading).

(30) Emissions reduction credit certificate--The certificate

issued by the executive director that indicates the amount of qualified

reduction available for use as offsets and the length oftime the reduction is eligible for use.

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

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

regulation under the Federal Clean Air Act

(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 mixtures of carbon compounds used as solvents that have been excluded

from the definition ofvolatile organic compound.
(34) External floating roof--A cover or roafin an open top

tank that rests upon or is floated upon the liquid being contained and

is equipped with a single or double seal to close the space between

the roof edge and tank shell. A double seal consists oftwo complete

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

space between them.

(35) Federal motor vehicle 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 of Federal Regulations (CFR) Parts 60 and 61; requirements

within any applicable state implementation plan (SIP); and any permit

requirements established under 40 CFR §52.21 or under regulations

approved under 40 CFR Part 51, Subpart 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, a flare

may also use auxiliary fuel. The combustion flame may be elevated or

at ground level. A vapor combustor, as defined in this section, is not

considered a flare.

(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·-Solid waste consisting ofputrescible animal

and vegetable waste materials resulting from the handling, preparation, cooking, and consumption offood, including waste materials from

markets, storage facilities, and handling and sale ofproduce and other

food products.

(41) Gasoline--Any petroleum distillate baving a Reid vapor pressure offour pounds per square inch (27.6 kilopascals) or greater

that is produced for use as a motor fuel, and is commonly called gasoline.

(42) Hazardous wastes-Any solid waste identified or listed

as a hazardous waste by the administrator ofthe United States Environmental Protection Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, 42 United

States Code, §§6901 et seq., as amended.

(43) Heatset (used in offset lithographic printing)--Any operation where heat isrequired to evaporate ink oil from the printing 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 of a 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 of burning wastes for the primary purpose ofreducing its volume and weight by removing the combustibles ofthe waste and is equipped with a flue for conducting products of combustion 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 ofsolid waste and burning

1.0% or more ofsolid waste on a total Btu heat input basis averaged

annually is also considered to be an incinerator. An open-trench type

(with closed ends) combustion unit may be considered an incinerator

when approved by the executive director. Devices burning untreated

woad scraps, waste wood, or sludge from the treatment ofwastewater

from the process mills as a primary fuel for heat recovery are not included under this definition. Combustion devices permitted under this

title as combustion devices other than incinerators will not be considered incinerators for application of any rule within this title provided

they are installed and operated in compliance with the condition of all

applicable permits.

(47) Industrial boiler-·A boiler located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts 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 other devices the commission may list.

(49) Industrial solid waste--Solid waste resulting from, or

incidental to, any process of industry or manufacturing, or mining or

agricultural operations, classified as follows.

(A) Class I industrial solid waste or Class I waste is any

industrial solid waste designated as Class I by the executive director

as any industrial solid waste or mixture of industrial 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 solid waste is any individual solid

waste or combination ofindustrial solid wastesthat cannot be described

as Class I or Class 3, as defined in §335.506 of this title (relating to

Class 2 Waste Determination).

(C) Class 3 industrial solid waste is any inert and essentially insoluble industrial solid waste, including materials such as rock,

brick, glass, dirt, and certain plastics and rubber, etc., that are not readily decomposable as defined in §335.507 ofthis title (relating to Class

3 Waste Determination).

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

fixed rooftank that rests upon or is floated upon the liquid being conPROPOSED RULES October 9, 2009 34 TexReg 6999
tained, 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; or the dripping or exuding

of process 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--A primary seal mounted in continuous contact with the liquid between the tank wall and the floating

roof around the circumference ofthe tank.

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

previously designated nonattainment under the Federal Clean Air Act

Amendments of1990 and subsequently redesignated to attainmentsubject to the requirement to develop a maintenance plan under 42 United

States Code, §7505a. The following are the maintenance areas within

the state:

(A) Victoria Ozone Maintenance Area 60 (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 of South Fifth Street and the fence line approximately 1,000

feet south ofthe Exide property line going north to the intersection of

South Fifth Street and Eubanks Street; Northside: Proceeding west

on Eubanks to the Burlington Railroad tracks; Westside: Along the

Burlington Railroad tracks to the fence line approximately 1,000 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 of 42 United States

Code, §7505a.

(56) Marine vessel--Any watercraft used, or capable ofbeing used, as a means oftransportation on water, and that 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 sheet that is held vertically against the storage tank wall by springs or weighted levers and is

connected by bracesto the floating roof. A flexible coated fabric (envelope) spans the annular space between the metal sheet and the floating

roof.

(58) Medical waste-Waste materials identified by the Department ofState Health Services as "special waste from health care-related facilities" and those waste materials commingled and discarded

with special waste from health care-related facilities.

(59) Metropolitan Planning Organization--That organization designated as being responsible, together with the state, for

conducting the continuing, cooperative, and comprehensive planning

process under 23 United States Code (USC), §134 and 49 USC, §1607.

(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 of this

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 October 9, 2009 Texas Register

(62) Motor vehicle fuel dispensing facility-Any site where

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 or privately 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

application unit, surface impoundment, injection well, or waste pile, as

those terms are defined under 40 Code ofFederal Regulations §257.2.

A municipal solid waste 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) Net ground-level concentration--The concentration of

an air contaminant as measured at or beyond the property boundary

minus the representative concentration flowing onto a property as measured at any point. Where there is no expected influence ofthe air contaminant flowing onto a property from other sources, the net ground

level concentration may be determined by a measurement at or beyond

the property boundary.

(68) New source--Any stationary source, the construction

or modification ofwhich was commenced after March 5, 1972.

(69) Nitrogen oxides (NO)-The sum of the 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 of 42

United States Code, §7407(d). For the official list and boundaries of

nonattainment areas, see 40 Code of Federal Regulations Part 81 and

pertinent Federal Register (FR) notices. The following areas comprise

the nonattainment areas within the state for all national ambient air

quality standards (NAAQS). EPA has indicated that it will revoke the

one-hour ozone standard in full, including the associated designations

and classifications, on June 15,2005, which is one year following the

effective date ofthe designations for the eight-hour NAAQS ofJune

15,2004.

(A) Carbon monoxide (CO). El Paso CO nonattainment

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

with a design value less than or equal to 12.7 parts per million. Portion

ofEI Paso County. Portion ofthe city limits ofEI Paso: That portion of

the City ofEI Paso bounded on the north by Highway 10 from Portirio
Diaz Street to Raynolds Street, Raynolds Street from Highway 10 to

the Southern Pacific Railroad lines, the Southern Pacific Railroad lines

from Raynolds Street to Highway 62, Highway 62 from the Southern

Pacific Railroad lines to Highway 20, and Highway 20 from Highway

62 to Polo Inn Road. Bounded on the east by Polo Inn Road from

Highway 20 to the Texas-Mexico border. Bounded on the south by

the Texas-Mexico border from Polo Inn Road to Porfirio Diaz Street.

Bounded on the west by Porfirio Diaz Street from the Texas-Mexico

border to Highway 10.

(B) Inhalable particulate matter (PM..). 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 limit boundaries as they existed on November 15, 1990.

(C) Lead. No designated nonattainment areas.

(D) Nitrogen dioxide. No designated nonattainment areas.

(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 Waller Counties.

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

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

of EI Paso County.

(iii) Beaumont-Port Arthur (BPA) one-hour ozone

nonattainment area (69 FR 16483) - Classified as a Serious ozone

nonattainment area. Consists of Hardin, Jefferson, and Orange Counties.

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

area. Consists 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 nonattainment area. Consists of Brazoria, 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 of Hardin, Jefferson, and Orange Counties.

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

(iv) San Antonio eight-hour ozone nonattainment

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

I, Part D, Subpart 1 (42 United States Code, §7502), nonattainment

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

(G) Sulfur dioxide. No designated nonattainment areas.

(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 of the reportable quantity as defined in this section.

(72) Opacity--The degree to which an emission ofair contaminants obstructs the transmission oflight expressed as the percentage oflight obstructed as measured by an optical instrument or trained

observer.

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

process that is open to the air and that uses boiling solvent to create

solvent vapor used to clean or dry 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, that exists as a solid or liquid in the atmosphere or in a gas stream

at standard conditions.

(76) Particulate matter emissions--All finely-divided solid

or liquid material, otherthan uncombined water, emitted to the ambient

air as measured by United States Environmental Protection Agency

Reference Method 5, as specified at 40 Code of Federal Regulations

(CFR) Part 60, Appendix A. modified to include particulate caught by

an impinger train; by an equivalent or alternative method, as specified

at 40 CFR Part 51; or by a test method specified in an approved state

implementation plan.

(77) Petroleum refinery--Any facility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants,

or other products through distillation ofcrude oil, or through the redistillation, cracking, extraction, reforming, or other processing of unfinished 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 ofFederal Regulations (CFR) Part

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

by an equivalent method designated with that Part 53.

(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 of Federal Regulations Part 51, or by a test method specified

in an approved state implementation plan.

(80) Polychlorinated biphenyl compound-A compound

subject to 40 Code of Federal Regulations Part 761.

(81) Process or processes--Any action, operation, or treatment embracing chemical, commercial, industrial, or manufacturing

factors such as combustion units, kilns, stills, dryers, roasters, and

equipment used in connection therewith, and all other methods or fonns

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 of all materials introduced or recirculated into any specific

process that may cause any discharge of air contaminants into the atmosphere. Solid fuels charged into the process will be considered as

part ofthe process weight, but liquid and gaseousfuels and combustion

air will not. The "process weight per hour" will be derived by dividing the total process weight by the number of hours in one complete

operation from the beginning of any given process to the completion

thereof, excluding any time during that the equipment used to conduct

the process is idle. For continuous operation, the "process weight per

hour" will be derived by dividing the total process weight for a 24-hour

period by 24.

(83) Property-All land under common control or ownership coupled with all improvements on such land, and all fixed or movable objects on such land, or any vessel on the waters ofthis state.

(84) Reasonable further progress-Annual incremental reductions in emissions ofthe applicable air contaminant that are sufficient to provide for attainment ofthe applicable national ambient air

PROPOSED RULES October 9, 1009 34 TexReg 7001
quality standard in the designated nonattainment areas by the date required in the state implementation plan.

(85) Regulated entity--All regulated units, 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 under common ownership or control identified in a permit or used

in conjunction with the regulated activity at the same street address or

location. Owners or operators of pipelines, gathering lines, and flowlines under common ownership or control in a particular county may

be treated as a single regulated entity for purposes of assessment and

regulation ofemissions events.

(86) Remote reservoir cold solvent cleaning-Any cold solvent cleaning operation in which liquid solvent is pumped to a sink-like

work area that drains solvent back into an enclosed container while

parts are being cleaned, allowing no solvent to pool in the work area.

(87) Reportable emissions event--Any emissions event that

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 October 9, 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 ofthe 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 nonattainment areas 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) if not listed in clause (i) of this subparagraph,

100 pounds;

(B) for mixtures of air contaminant compounds:

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

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

contaminant compound that equals or exceeds the amount specified in

subparagraph (A) ofthis paragraph;

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

known, any amount ofthe mixture that equals or exceeds the amount

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

and listed in subparagraph (A)(i) ofthis paragraph;

(iii) where each of the individual air contaminant

compounds listed in subparagraph (A)(i) ofthis paragraph are known

to be less than 0.02% by weight ofthe mixture, and each ofthe other individual air contaminant compounds covered by subparagraph (A)(ii)

ofthis paragraph are known to be less than 2.0% by weight ofthe mixture, any total amount of the mixture of air contaminant compounds

greater than or equal to 5,000 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 combustion turbines 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 or exceeds 15 additional percentage points above the applicable limit, averaged over a six-minute

period. Opacity is the only RQ applicable to boilers and combustion

turbines described in this paragraph; 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-half of any 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·-For activities with unauthorized emissions that are expected to exceed a reportable quantity (RQ), a scheduled maintenance, startup, or

shutdown activity is an activity that the owner or operator ofthe regulated entity whether performing or otherwise affected by the activity,

provides prior notice 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 actual 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)

ofthis title (relating to Emissions Event Reporting and Recordkeeping

Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those that provide prior notice (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 treatment plant; watersupply treatment plant, 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 of carbon and other

combustible material and present in sufficient quantity to be visible.

(93) Solid waste··Garbage, rubbish, refuse, sludge from a

waste water treatment plant, water supply treatment plant, or air pollution control equipment, and other discarded material, including solid,

liquid, semisolid, or containerized gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations

and from community and institutional activities. The term does not include:

(A) solid or dissolved material in domestic sewage, or

solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under the Texas Water

Code, Chapter 26;

(B) soil, dirt, rock, sand, and other natural or man-made

inert solid materials used to fill land, ifthe object ofthe 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 of oil or gas,

or geothermal resources, and other substance or material regulated by

the Railroad Commission of Texas under Natural Resources Code,

§91.10 I, unless the waste, substance, or material results from activities

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, as amended

(42 United States Code, §§6901 et seq.).

(94) Sour erude--A crude oil that will emit a sour gas 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 action to minimize or avoid an upset or malfunction.

(109) Upset event--An unplanned and unavoidable breakdown or excursion ofa process or operation thatresultsin unauthorized

emissions. A maintenance, startup, or shutdown activity that was reported under §101.211 ofthistitle (relating to Scheduled Maintenance,

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 ofa process or operation is an upset event.

(110) Utility boiler--A boiler used to produce electric

power, steam, or heated or cooled air, or other gases or fluids for sale.

(111) Vapor combustor--A partially enclosed combustion

device used to destroy volatile organic compounds by smokeless combustion without extracting energy in the form ofprocess heat or 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 air control damping system that can operate at all timesto control

the air/fuel mixture to the combustor's flame zone, may be required to

ensure smokeless combustion during operation.

(112) Vapor-mounted seal--A primary seal mounted so

there is an annular space underneath the seal. The annular vapor space

is bounded by the bottom ofthe primlllY seal, the tank wall, the liquid

surface, and the floating roof or cover.

(113) Vent-Any duct, stack, chimney, flue, conduit, or

other device used to conduct air contaminants into the atmosphere.

(114) Visible emissions--Particulate or gaseous matter that

can be detected by the human eye. The radiant energy from an open

flame is not considered a visible emission under this 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, or other container in which any VOC, floating on

or contained in water entering such tank, box, sump, or other container,

is physically separated and removed from such water prior to outfall,

drainage, or recovery ofsuch water.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on September 25,

2009.

TRD-200904272

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: November 8, 2009

For further information. please call: (512) 239-6090

(95) Sour gas--Any natural gas containing more than 1.5

grains of hydrogen sulfide per I()() cubic feet, or more than 30 grains

oftotal sulfur per 100 cubic feet.

(96) Source--A point oforigin ofair contaminants, whether

privately or publicly owned or operated. Upon request of a source

owner, the executive director shall determine whether multiple processes emitting air contaminants from a single point ofemission will

be treated as a single source or as multiple sources.

(97) Special waste from health care-related facilities--A

solid waste that ifimproperly treated or handled, may serve to transmit

infectious disease(s) and that is comprised of the following: animal

waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps.

(98) Standard conditions--A condition at a temperature of

68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7

pounds per square inch absolute (101.3 kiloPascals).

(99) Standard metropolitan statistical area--An area consisting ofa county or one or more contiguous counties that is officially

so designated by the United States Bureau ofthe Budget.

(100) Submerged fill pipe--Afill pipe that extends from the

top ofa tank to have a maximum clearance ofsix inches (15.2 centimeters) from the bottom or, when applied to a tank that is loaded from the

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

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

normal operation.

(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 acid mist and sulfuric acid are considered to be the same air contaminant calculated as H, SO, and must include sulfuric acid liquid mist,

sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8

in 40 Code ofFederal Regulations Part 60, Appendix A.

(103) Sweet crude oil and gas-Those crude petroleum hydrocarbons that are not "sour" as defined in this section.

(104) Total suspended particulate--Particulate matter as

measured by the method described in 40 Code ofFederal Regulations

Part SO, Appendix B.

(105) Transfer efficiency--The amount of coating solids

deposited onto the surface or a part of product divided by the total

amount ofcoating solids delivered to the coating application system.

(106) True vapor pressure--The absolute aggregate partial

vapor pressure, measured in pounds per square inch absolute, of all

volatile organic compounds at the temperature ofstorage, handling, or

processing.

(107) Unauthorized ernissions--Emissions of any air contaminant except carbon dioxide, water, nitrogen. methane, ethane, noble gases, hydrogen. and oxygen that exceed any air emission limitation

in a permit, rule, or order ofthe commission or as authorized by Texas

Clean Air Act, §382.0518(g).

(108) Unplanned maintenance, startup, or shutdown activity-For activities with unauthorized emissions that are expected to exceed a reportable quantity or with excess opacity, an unplanned maintenance, startup, or shutdown activity is:

(A) a startup or shutdown that was not part of normal

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

of the Texas Clean Air Act. 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 et seq.

§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 of a

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 of allocation, 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 of establishing baseline emissions used for the allocation

of allowances. except as allowed under §101.394(a)(l)(C) and (D) of

this title (relating to Allocation of Allowances).

ill [(4t] Broker--A person that is not required to participate in the requirements of this division, but that opens an account

under this 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 not be 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 of meeting the

requirements of this division.

ill [~] Level of activity--The amount of highly-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,

but excluding any recycled highly-reactive volatile organic compounds

internal to the process unit.

ill Uncontrolled emissions--The total emissions calculated by dividing actual average emissions over the 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 of this title

(relating to General Definitions), in the Houston-Galveston-Brazoria

[Heti5teBlGah<esteBlBfIli'l8l'ia] ozone nonattainment area, as defined in

§115.10 of this title (relating to Definitions), that is subject to Chapter 115, Subchapter II, Division 1 of this title [~t&.\feBt Gti

~] or Division 2 of this 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 or Division 2 ofthis title, each

site that meets the applicability requirements of this section will[, er

eleetst&6jlt-iftt&tIMeiYisieft tIfttief §lOl.392(h) eftIMti&(reIatiBg

t& EitefftJlaefts), shell] always be subject to this division.

§JOJ.392. Exemptions.

(a) Sites in the Houston-Galveston-Brazoria [lleusteBlGB:l>le

steBlBreeria] ozone nonattainment area that have the potential to emit,

as defined in §116.12 ofthis title (relating to Nonattainment Review

Definitions), ten tons per year or less of highly-reactive volatile organic compounds from all applicable [tleYefed] facilities at the site are

exempt from the requirements ofthis division.

[00 Sites eHeftI:pt ffem tIM eiYisieft tIfttief sueseetleft (e) ef

tIM5eetieftmay eleet t& t& the requiremeftts eftIM eiYisieft by

fteafyiBg the eeettfl'le direeteritt wffliBg by Apfil.~~]

@ [~] All sites in the Houston-Galveston-Brazoria [HettsteBlGel.esteBlBreel'ia] ozone nonattainment area, excluding Harris

County, are exempt from the requirements of this 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 October 9, 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 of the allocation methodology provided under

comply by January I, 2007, or within 180 days of public notice, subparagraph (A) ofthis paragraph in lieu of the allocation provided

whichever is later. under subparagraph (B) ofthis paragraph, according to the following:

§JOJ.393. General Provisions. ill this allocation is less than the 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 of this 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 after December 31,2007, shall methodology under subparagraph (B) ofthis paragraph. begin January 1 and end December 31 of each 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 of allowances in its compliance account that is equal quest to use an alternative baseline emissions period consisting ofthe

to or greater than 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) of this title

during the control period. (relating to Definitions):

(c) Allowances may not be used to satisfy netting requirements ill the site used continuousflow rate monitoring and

under Chapter 116, Subchapter B, Divisions 5 and 6 ofthis title (relat- speciation of HRVOC to determine HRVOC emissions during the aling to Nonattainment Review; and Prevention of Significant 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 and the one-to-one portion ofthe offset re- than 50% ofthe site's total annual HRVOC emissions subject to this

quirements for new or modified covered facilities, subject to federal program, or a site-wide reduction in HRVOC emissions subject to this

nonattainment new source review requirements as provided in Chapter program of 50 tons or greater, as calculated by comparing the average

116, Subchapter B, Division 7 ofthis title (relating to 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 (relating to Control ofAir Pollution by Permits

used in tenths oftons. The number ofallowances will be rounded down for New Construction or Modification) or other submittal to the executive director no later than April 1,2010; and

to the nearest tenth of a ton when determining excess allowances and

rounded up to the nearest tenth of a ton when determining allowances fM. a request for an alternative baseline period must

used be received by the executive director no later than July 1, 2010.

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

(h) The commission will maintain a registry ofcompliance ac- 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 ofAllowances. Figure: 30 TAC §I01.394(a)(2) (No change.)

(a) On January 1, 2007, the executive director will deposit al- (b) The level of activity ofa site will [llfttlH] be determined by lowances into compliance accounts as follows. summing the levels of activity from the chosen 12 consecutive month

(1) For sites located in Harris County [that fife Bet eligible period for each process unit, as defined in §115.10 ofthis title, located

teRleeiYe &Ila'll'H:B:ses tIft8ef slfesesbaft fElt efthis~], allowances at the site that produce one or more HRVOCs as an intermediate, byfor the emissions ofone or more ofthe highly-reactive volatile organic product, or final product or that use one or more HRVOCs as a raw

compounds (HRVoq as defined in §1l5.IO of this title (relating to material or intermediate to produce a product.

Definitions), will be determined using the equations [eqttabeft] in sub- [fElt -The _ et' epefIitefefasHe that is 5tibjeette this di¥iparagraphs (A) and (B) ofthis paragraph [-the felle'.....dlg figlffe]. sieft;- bt:tt that il6es Bet iftefl:tde a J'reees5 tIftit that JlfBdHees et' tiSeS iIft [FigtHe!- ~.:rAG §lQl.394(1i)(1)] HR¥OC, llfttlHilpJlIybylH:B:ttlIry 39;-~te -the exeetftive difeet6ffer

fA} For calendar-year control periods 2007 - 2010, the iIft alleeatieft besed 6ftHR¥9G threaghplltet'~~fefaBy

following equation will be used to determine the allocation for each H eBftSeetlb'/e iflEIftth5tllffiftg -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%efthetetB1HlWGG &IlaslibellS ferHtlffi&~ tetil'9tle1t5ite9

@ For calendar-year control periods 2011 and laterthe 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 not in operation during the baseline emissions difeetef may itIleettte tift te -Hl% ef-the tetB1 HRVOC elftissleftS tI:Ileperiod due to the construction of an authorized modification that re34 TexReg 7006 October 9, 2009 Texas Register
eateElfefiheseeetlftties.t&ilH5tKlhsiteslooatediftBflti!!eri&; Chambers,

FeftBeftd; Gal...e9teft, bibefly, Mefttgemery, - WaHef Cellftties.]

[~ The elteeathe difeet&F 5haH tiistFietlte tHl alleweees

flet alleeated tifttieF this sabseetieft IlFelleFtieftally t&ihese sites reeei¥-

iftg alleeatieftS tifttieF stlbseetieasfa) _ W efthis~]

[~] Sites subject to the requirements ofthis division or

electing to opt-in to the requirements of this division that receive an

HRVOC allocation oflessthan 5.0 tons based on the allocationmethodologies undersubsection (a)(l)(A) [5t1Bseetieafa)effet] ofthis section

will [5haH] be eligible to receive a minimum allocation of 5.0 tons of

HRVOC allowances per year.

@ Sites subject to the requirements of this division that receive an HRVOC allocation ofless than 10.0 tons based on the 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 facilities at a site during a control period exceed the amount ofallowances

in the compliance account for the site on March 1 following the control

period, allowances for the next control period will [5haH] be reduced by

an amount equal to the emissions exceeding the allowances in the compliance account plus 10% ofthe exceedance. This allocation reduction

does not preclude the executive director from initiating an enforcement

action. If a compliance account does not hold sufficient allowances to

accommodate the reduction, the executive director may issue a notice

of deficiency 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 of deficiency from

the executive director.

(f) Allowances will be allocated by the executive 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) The executive director may adjust the deposits for any control period to reflect new or existing state implementation plan requirements.

(h) The executive director may add or deduct allowances from

compliance accounts based on the review of reports 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 account for the site. The amount ofHRVOC emissions

will be based upon the monitoring and testing protocols established in

§115.725 and §115.764 ofthis title (relating to Monitoring and Testing

Requirements), as appropriate.

(b) The amount ofHRVOC emissions from applicable [eeYeretl] facilities will [-shtHl] be calculated for each hour ofthe year and

summed to determine the annual emissions for compliance. For[emilr

-siefts 4fem emissieas evet$ 5tibjeet t& the reqttifemeMs ef §101.291

efthis 00e t& Bmissieas EYeBt R-ellef'tiBg lIftd R-eeeftikeell

iBg R-eqttifemeftts) er] emissions from scheduled maintenance, 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) ofthis title (relating to Site-wide Cap and

Control Requirements; and Site-wide Cap.

(£} As of January 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

of this 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 in the chronological order reported to 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 after the control period in the order ofactual occurrence reported on FormECT-IH, Highly-Reactive Volatile Organic Compound

(HRVOC) Emissions Cap and Trade Annual Compliance Report, as required under §101.400(aX4) ofthis title (relating to Reporting).

@ If the total HRVOC emissions from all applicable facilities in Harris County that are attributable to emission events subject to

the requirements of §101.201 ofthistitle exceed the 250 ton emissions

event set-aside in any calendar-year control period, allowances equivalent to the emissions from those emissions events occurring after the

emissions eventset-aside limit has been reached will be deducted from

a site's compliance account no later than March 31 ofthe year following the applicable calendar-year control period.

[fet] Ifthe monitoring and testing data referenced in subsection (a) ofthis section does not exist or is unavailable, the site may

determine its HRVOC emissions for that period 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 under this 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 of a 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 a control period that are not used

for compliance in that control period may be banked for use in demonstrating compliance for the next control period or transferred.

(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 desiring to transferthe allowances shall apply for approval ofthe transaction to the executive director by submitting a completed Form ECT-2, Application for TransferofAllowances.

(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 of the allowances will be immediately made available to the

public.

(4) Ifthe executive director approves the application, the

executive director willsend a letterto the seller and purchaserreflecting

the transaction. The transaction is final upon issuance ofthe letter.

PROPOSED RULES October 9, 2009 34 TexReg 7007
(c) A person receiving allowances on an annual basis may permanently transfer ownership of current and future allowances to any

person in accordance with the following requirements.

(1) The person desiring to transfer the allowances shall apply for approval ofthe transaction to the executive director by submitting a completed Fonn ECT-4, Application for Pennanent Transfer of

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 of the allowances will be immediately made available to the

public.

(4) Ifthe executive director approves the application, the

executive director will send a letterto the seller and purchaserreflecting

the transaction. The transaction is final upon issuance ofthe letter.

(d) A person may transfer allowances that are scheduled to be

allocated in a future control period but have not yet been deposited into

an account.

(I) The person desiring to transfer the allowances shall apply for approval ofthe transaction to the executive director by submitting a completed Fonn ECT-5, Application for Transfer ofIndividual

Future Year Allowances.

(2) The ECT-5 fonn 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 of the allowances will be immediately made available to the

public.

(4) If the executive director approves the application, the

executive director will send a letterto the seller and purchaser reflecting

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

transfer under 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 generated from sites located in HarrisCountymay

not be used at sites located in counties other than Harris County.

{gl [00] Only authorized account representatives may transfer

allowances.

ill [fg)] Allowances subject to an approved transaction will

be deposited into the purchaser's broker or compliance account within

30 days ofreceipt ofa completed transfer application.

ill [W] Volatile organic compound emission reduction 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 October 9, 2009 Texas Register

(C) from a reduction in VOC species other than those

defined as HRVOCs under §115.10 ofthistitle (relating to Definitions).

(2) VOC reductions due to the installation ofbest available

control technology do not qualify for conversion under thissubsection.

(3) In addition to the requirements ofDivision I ofthissubchapter, a qualified VOC ERC must meet the following requirements:

(A) the ERC must be quantifiable, real, surplus, enforceable, and pennanent as required in §101.302 ofthis title (relating

to General Provisions) at the time the ERC is converted;

(B) the baseline emissions to which the VOC reduction

is compared must consist ofthe average actual emissions for any two

consecutive calendar years preceding the emission reduction strategy

and that include or follow the most recent year of emission 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 of this title (relating to Monitoring and Testing Requirements) and subject to the recordkeeping and reporting

requirements under §115.726 and §115.766 of this title (relating to

Recordkeeping and Reporting Requirements);

(D) the ERC must not have expired; and

(E) the owner oftheERC shall have prior approval from

the executive director to convert the ERC to an HRVOC allocation.

(4) VOC ERCs must be converted to HRVOC allowances

at a ratio calculated using the equation in the 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 of VOC ERCs under this subsection must be limited to

a quantity not to exceed more than 5% of the site's initial HRVOC

allocation.

(6) In addition to paragraph (5) ofthis subsection, sites subject to this division may receive an HRVOC allocation from the conversion ofVOC ERCs under this subsection equivalent to any HRVOC

emissions increases from new or modified covered facilities not in operation prior to January 2, 2004, and that were included in an application for a permit under Chapter 116 ofthis title (relating to Control

ofAir Pollution by Permits for New Construction orModification) that

was deemed administratively complete by the executive director within

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 Annual Compliance Report, to the executive director, which will [~]

include the following:

(1) the total amount ofactual HRVOC emissions from!p:

plicable [ee¥eftlti] facilities at the site during the preceding control period;

(2) the method or methods used to determine the actual

HRVOC emissions, including, but not limited to, monitoring protocol

and results, calculation methodologies, and emission factors; [8ftd]

(3) a summary of all 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 amount and respective dates ofHRVOC emissions from emissions events subject to the requirements of §101.201

ofthis title (relating to Emissions Event Reporting and Recordkeeping

Requirements).

(b) Forsitesfailing to submit an ECT-IH form by the required

deadline in subsection (a) of this section. the executive director may

withhold approval of any proposed trades from that site involving allowances allocated for the control period for which the ECT-I H form

is due or to be allocated in subsequent control periods.

§101.401. Level ofActivity Certification.

(a) No laterthan April 30, 2005, the owner or operator ofeach

site subject to this division will [~] submit to the executive director

a completed Form ECT-3H, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Level ofActivity Certification Form.

(b) For each process unit subject to this division. the owner or

operator will [~] certify in the ECT-3H form the level ofactivity for

the selected 12 consecutive months during the period of 2000 through

2004.

(c) The owner or operator will [~] attach to the ECT-3H

form information and documentation necessary to support the proposed

level of activity baseline.

(d) The owner or operator of the site may mark any portion

ofthe ECT-3H form, orsupporting information and documentation. as

confidential under Texas Health and Safety Code, §382.041.

(e) In conjunction with submission ofthe ECT-3H form, the

owner or operator ofthe site subject to this division win [~] provide

enforceable documentation of the maximum allowable emission rate

of highly-reactive volatile organic compounds from facilities located

at that site.

ill No later than April 30, 2010, the owner or operator ofeach

site subject to this division will submit to the executive director a completed Form ECT-6H, Highly Reactive Volatile Organic Compound

Emissions Cap and Trade Baseline Emissions Certification Form.

fg} For each site subject to this division. the owner or operator

will certify in the ECT-6H form two consecutive calendar-year control

periodsselected from the period of2006 - 2009 to establish the baseline

emissions period.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on 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 to the 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 of Activity 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 attainment demonstration

for the one-hour ozone National Ambient Air Quality Standard

(NAAQS). The MECT program NO. cap is a product of the emission specifications of Chapter 117 and the submitted levels of activity 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 of facilities 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 industry were received regarding clarification on "air pollution control equipmenf' in the definition of"Uncontrolled design capacity." Therefore, the proposed rulemaking

PROPOSED RULES October 9, 2009 34 TexReg 7009
Figure: 30 TAC §101.394(a)(1)(B)

S=ACI X (Industry Sector Share) x (Facility Share)

Where:

S=the greater of 10.0 tons or the allocation for the site.

Industry Sector Share =Total actual average emissions for the industry sector baseline emissions

period divided by the total actual average emissions for all participating sites' baseline emissions

period.

Facility Share = The sum ofthe total average actual emissions for non-flare facilities and

uncontrolled emissions for flares, as well as heaters, boilers, and furnaces combusting highlyreactive volatile organic compound (HRVOC) streams, for the baseline emissions period divided

by the total uncontrolled actual average emissionsfor the industry sector baseline emission

period.

ACI =the amount ofHRVOC tons defined in (1) - (5) ofthis figure less the total amount

allocated to those sites receiving a minimum of 10.0 tons.

(1) For 2011 - 2013, ACI =3,201.5 tons;

(2) For 2014, ACt =2,856.4 tons;

(3) For 2015, ACt =2,683.8 tons;

(4) For 2016, ACI =2,511.2 tons; and

(5) For 2017 and all subsequent calendar-year control periods, ACI =2,338.6 tons.

TABLES AND GRAPHICS October 9, 2009 34 TexReg 7111