Docket No. 201O-0711-RUL

91 7108 2133 3934 5803 4547

May 19,2011

Protecting Texas by Reducing and Preventing Pollution

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Alfredo Affilendariz, Ph.D.

Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

\i1i~~I;':;~'; 6RA eJ"·,' \ 6EN Bryan W. Shaw, Ph.D., Chairman RECE\/-7.. \J : ..0.'. 'L., . '" ••••••••• •••••••••••••••••

Buddy Garcia, Commissioner AIR P4~~'H{~;,~ L 6DRA.q.'!':'".·.~ 6WQ .

Carlos Rubinstein, Commissioner \.... ~./ I 6MD.•..•.•...•••6SF

Mark R. Vickery, P.G., Executive Director 11 !'\A~'~3'" j.30 60EJ 6RC::·· . ,~.. // . • a .

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TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

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Dear Dr, Armendariz:

On April 20, 2011, the Texas Commission on Environmental Quality (Commission) adopted

revisions to the State Implementation Plan (SIP).

The Commission adopted amendments to §101.1 in 30 TAC Chapter 101, (General Air Quality

Rules, Subchapter A, General Rilles); §106-4 in 30 TAC Chapter 106 (Permits By Rule,

Subchapter A, General Requirements); and corresponding revisions to the SIP. The amended

rules replace the figure in 30 TAC §101.1(25) concerning de minimis impact levels with a

reference to 40 Code of Federal Regulations §51.165(b)(2); add definitions for particulate

matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PMlO),

particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5

micrometers (PM2 .

S), direct and secondary PM emissions; and add the applicable significant

emission thresholds for PM, PMlO, and PM2.

S'

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

record ofthe public hearing, and the accompanying order. I look forward to your expeditious

approval ofthese SIP revisions.

;:;.w.)1'4IN

Bryan W. Shaw, Ph.D.

Chairman

BWSjERS

Enclosures

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
cc: The Honorable Rick Perry, Governor ofTexas

Mr. Toby Baker, Office of Budget, Planning and Policy, Office ofthe Governor

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental

Quality
Docket No. 2010-0711-RUL

THE STATE OF TEXAS

COUNTY OF TRAVIS

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

revisions to the Texas State Implementation Plan, adopted on April 20, 2011, pursuantto 40

Code of Federal Regulations § 51.104. I am the records administrator for the Air Permits

Division ofthe Texas Commission on Environmental Quality (Commission).

Director, Air Permits Division

Texas Commission on Environmental Quality
Texas Commission on

Environmental Quality

Public Hearing

December 13,2010

30 TAC Chapter 101

General Air Quality Rules

30 TAC Chapter 106

Permits by Rule

Rule Project No. 20 10-020-1 Ol-PR

Regulation ofParticulate Matter with diameters

less than or equal to 2.5 micrometers (PM,,)
INTRODUCTION

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

on December 13,2010, to receive testimony regarding revisions to 30 TAC Chapter 101, General

Air Quality Rules and 30 TAC Chapter 106, Permits by Rule; and corresponding revisions to the

Texas state implementation plan (SIP).

This rulemaking would replace Figure 30 TAC §I01.1(25) concerning de minimis impact levels

with a reference to 40 Code of Federal Regulations §51.165(b)(2). It will add definitions for

PMlO, PM,s, direct and secondary PM emissions in 30 TAC §101.1 and add the applicable

significant emission thresholds for PM, PMlO, and PM,s in 30 TAC §106.4

The comment period closed on December 20, 20 IO. All testimony and comments have been

reviewed and seriously considered. This hearing record contains a complete record ofthe'public

hearings and is divided into the following four sections:

• Public Notification and Proposal

• Written and Oral Testimony

• Evaluation ofTestimony

• StaffRecommendations

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

35 Circle, Austin, Texas 78753. For further information, contact Johnny Bowers at (512) 239-

6770.
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION

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

I. Publication ofthe notice ofpublic hearing in the following newspapers on the dates

listed:

Austin American-Statesman

Fort Worth Star-Telegram

Houston Chronicle

November 5, 2010

November 5, 2010

November 5, 2010

2. Publication ofthe public hearing notice in the Texas Register on November 19,2010 (35

TexReg 10147).

3. Publication ofthe proposed rules in the Texas Register on November 19,2010 (35

TexReg 10147).

4. Correspondence forwarding the notice of public hearing to the following officials and

agencies:

Speaker ofthe House

Lieutenant Governor

City ofEI Paso

City of Victoria Planning Department

Dallas Department of Health and Human Services

EI Paso City-County Health District

Federal Highway Administration
Fort Worth Public Health Department

Galveston County Health District

Houston Department of Health and Human Services

Harris County Pollution Control Department

North Central Texas Council ofGovernments

Houston-Galveston Area Council

South East Texas Regional Planning Commission

Texas Department ofTransportation

Texas Transportation Institute

Arkansas Department of Pollution Control and Ecology

Louisiana Department ofEnvironmental Quality

New Mexico Air Quality Bureau

Oklahoma Department ofEnvironmental Quality

U. S. Environmental Protection Agenc)'
EXAMPLE OF NEWSPAPER CLASSIFIED AD

Austin American-Statesman

November 5,2010

Legal ~orice Ads I SlBt>::sman C1BSsified.o:;

PUBLIC HEARING ON PROPOSED REVISiONS TO 3D TAC CHAPTERS 101 AND 106 The Texas Commission

on Environmental Quality (commission) will conduct a pUblic hearing to receive testimony regarding proposed

revisions to 30 Texas Administrative Code (TAC) Chapters lOt General Air Ouality RUles. and 106. Permits By

Rule, 101,1 and 106A, under the requirements of Texas Health and Safety Code. 382.017; Texas Govemment

Code Chapter 2001. Subchapter B, The proposed rulemaking would add specific definitions related to particulate

maller w~h diameters less than 2.5 micrometers (PM2.5) regulation and address known requIrements for

implementation, The commission will hold a public hearing on thiS proposal in Austm on December 13, 2010, at

10;00a,m in BUilding E Room 201S. at the commission's central office located at 12100 Park 35 Circle. The

hearing IS structured for the receipt of oral Or written comments by Interested persons. Individuals may present oral

statements when called upon in order of registration. Open diScussion will nol be permitted during the hearing;

however. commIssion staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the heanng

should contact Charlotte Hom, Office of Legal Servicas at (512) 239-0779, Requests should be made asfar in

advance as possible, Written comments may be submitted to Devon Ryan, MC 205. Office of Legal Sarvices,

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: http;/lwww5. te:eq.state.tx.uslruleslecommentsf File size

restrictions may apply to comments being submitted via the eComments system. All comments shouid reference

Rule Project Number 2010-020-101.PR. The comment period closes December 20,2010, Copies of the proposed

rulemaking can be obtained from the commission's Web srte at http;!lwww,

te:eq.statetx.uslnavlruleslpropose_adopt.html. For further mfonnation. please contact JOhnny Bowers, Air Pennits

Division, (512) 239-6770.
EX-4.MPLE OF NE''''SPAPER CLASSIFIED AD

Fort Worth Star-Telegram

November 5, 2010

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PUBUC HEARING ON PROPOSED REVISIONS TO

PUBUC HEARING ON PROPOSED REVISIONS

TO 30 TAC CHAPTERS 101 AND 106

The Texas Commission on EnVironmental

Qua lity (commission) will conduct a public

hearing tc receive testimony regarding

proposed revisions to 3D Texas AdminlstratJve

Code (TAC) Chapters 101, General Air Quality

Rules, and 106, Permits By Rule, 101.1 and

106A, under the requirements of Texas Health

and Safety Code, 382,017; Texas Govemment

Code, Chapter 2001, Subchapter B, The

; proposed rUiemaking would add specific

deftn!tions related to particulate matter with

diameters less than 2.5 micrometers (PM2,5)

regulation and address known requirements for

ImplementatJon, The commission will hold a

public hearl ng on this proposal In Ausbn on

December 13, 2010, at 10:00 a.m, in Building

E Room 201S, at the commission's central

office located at 12100 Park 35 Circle, The

, heanng Is structured for the receipt of oral or

written comments by interested persons.

Indivld L1als may present oral statements when

ccolleO upon in order of regIstration, Open

discussior. will not be pennltted during the

hearing; however, commls5ion starr members

..III be available to dIscuss the proposal 30

minutes prior to the hearing, Persons who

have special communication or other

accommodation needs who a", planning to

attend the hearing should conract Charlotte

Hom, Office of ~ega! Services at (512) 239-

0779, Requests should be made as far in

, ad vance as pcsslble, Wrttten comments may

be submitted to Devon Ryan, MC 205, Office

; of Legal Services, Texas Comm'ssion on

Envlronmentai Quality, P,O. Box 13087,

, Austin, Texas 78711-3057, or faxed to (512)

239-4B08, ElectronIC comments may be

submitted at;

http;/(www5.tcea,state,b<,us/rules/ecomments/,

File size restnctJons may apply to comments

being submitted via the eComments system.

All comments should reterence Rule Project

Number 2010-020-101-~R. The comment

, period clo5e~ December 20r 2010. Copies of

the proposed rulemaking Can be obtamed from

the commi55tOn's Web Site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html.

For further InformatIon, please Contact Johnny

Bowers, Air pemut5 DiViSIon, (512) 239-6770,

31284711

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TEXAS COMMISSION

ON ENVIRONMENTAL

QUALITY

PUBUC HEARING ON

PROPOSED REVISIONS

TO 30 TAC CHAPTERS

101 AND 106

The Texas Commission on Environmental Quality (comm;SSlon) will ronduct a public hearing to receive

testimony regarding proposed revisions to 3D Texas Administrative Code (TAC) Chapters 101, General Air

Quality Rules, and 106, Permits By Rule, §101.1 and §l06.~, under the requirements of Texas Health and

Safety Code. §382.017; Texas Government Code, Chapter 2001, 5ubOlapter B.

The proposed rulemaking would add specific definitions reiated to patticulate matter with diameters less than

2.5 micrometer,; (PM2.S) regulalfon and address known requirements for implementation.

The commiSSion will hold a public hearing on this proposal in Austin on December 13, 2010, at 10,00 a.m. In

Building E Room 2015, at the commission's central office located at 12100 Park 35 Circle, The hearing is

structured for the receipt or oral or written comments by Jnterested persons. Individuals may present oral

statements when called upon in order of registration. Open discussion will not be permitted during the hearing;

however, commission staff members will be availabie to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the

hearing shoulc contact Charlotte Horn, Office of legal Services at (512) 239-0779. Requests should be made

~s far ir: advance as possible.

Written comments may be submitted to Devon Ryan, Me 205, Office of Leg~1 Services, lex.as Commission on

Environmental Quality, P.O. Box 13087, Austin, Texas 76711-3087, Or faxed to (512) 239-4808, Electronic

'comment. may be submitted at: http://wwwS:t<:eq.state.b<.us/rUJesjecomments/.Filesi~erestrlctionsm ..;;- -~ -

apply to comment. being submitted via the eComments system. Ali comments should refe.ence Rule ProJect

Number 2010-020-101-PR. The comment period closes December 20, 2010. Coptes of the proposed

rulemaking can be obtained from the commission's Web site at http://www.tceq.

state.tx.us/nav/rules/propose<hr width="50%"></hr>adopt.html. For further information, please rontact

Joh nny Bowers,

Air ~ermlts DiV~5ionf

(512) 239-6770.
CHAPTER 101. GENERAL AIR QUALITY

RULES

SUBCHAPTER A. GENERAL RULES

30 TAC §IOl.l

The Texas Commission on Environmental Quality (TCEQ or

commission) proposes an amendment to §101.1.

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

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

implementation plan (SI Pl.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

This rulemaking adds clarifying definitions to TCEQ rules necessary for proper implementation of new and revised federal

regulations regarding the National Ambient Air Quality Standard

(NAAQS) for particulate matter (PM).

On Juiy 18, 1997, the EPA revised the NAAQS for PM to add new

standards for fine particles using PM with an aerodynamic diameter less than or equal to a nomina12.5 micrometers (PM2

,s) as an

indicator. However, at that time, certain difficulties regarding implementation of the PMH regulations remained, including the lack

of necessary tools to calculate emissions of PM2~ and related

precursors, the lack of adequate mOdeiing techniques to project

ambient impacts, and the lack of PM2

,s monitoring sites. Therefore, on October 23, 1997, EPA issued a memorandum providing for PM with an aerodynamic diameter less than or equal to

a nominal 10 micrometers (PM,o) to be used as a surrogate for

PMH " EPA reaffirmed use of the surrogate policy in a memorandum dated April 5, 2005.

On November 1, 2005, the EPA proposed reguiations to implement the New Source Review (NSR) program for PM". EPA

published the bulk of the major NSR program final regulations

for PM" on May 16, 2008 (effective on July 15, 2008). EPA

noted that this final action, with EP,/>;s proposed rule on increments, significant impact levels (SILs), and significant monitoring concentration (SMC) when final, will represent the final elements necessary to implement a PM" PSD program. On February 11, 2010, the EPA proposed two actions that would end

EPA's 1997 policy allowing sources and permitting authorities to

use a demonstration of compliance with the Prevention of Significant Deterioration (PSD) requirements for PM,o as a surrogate

for meeting the PSD requirements for PM". In the first action,

the EPA proposed to repeal the "grandfathering" provision for

PM" contained in the Federal PSD program, which allows applicants for proposed new major sources and major modifications

that have submitted a compiete PSD permit application prior to

the effective date of an amendment to the PSD regulations but

have not yet received final and effective PSD permit to continue

relying on information already in the application rather than immediately having to amend applications to demonstrate compliance with the new PSD requirements. in the second action, EPA

also proposed to end early the PM,. Surrogate Policy applicable

in states that have an approved PSD program in their SIP. The

three-year transition period for revising the SIP and for use of the

surrogate policy ends in May 2011, unless revised by EPA. In an

effort to ensure the TCEQ meets regulatory requirements of the

Federal Clean Air Act (FCAA), the Air Permits Division (APD) is

proposing amendments to Chapters 101 and 106 to add specific

definitions related to PM:z.5 regulation, and to address the known

requirements for implementation.

Existing federal reguiations require both major and minor NSR

programs to address any pollutant for which there is a NAAQS

and precursors to the formation of such pollutant when identified

for reguiation by the EPA. TCEQ ruies outiine the requirements

for both major and minor NSR programs under 30 TAC §116.110

(addressing NSR applicability). This section requires any person

who pians to construct any new facility or to engage in the modification of any existing facility Which may emit air contaminants

into the air of this state to obtain a permit under §116.111 or satisfy the conditions for another authorization type as listed within

that section. Chapter 116, SUbchapter B outlines the generai requirements for both minor and major NSR permits. Specifically,

§116.111 covers the general appiication requirements for both

major and minor NSR. Minor NSR sources are required to comply with ail sections of §116.111 except §116.111 (a)(2)(h) and (i)

which oniy appiy to major NSR (Nonattainment and PSD).

For precursors, EPA prOVided some clarification regarding regulation of PM15 precursors in the May 16, 2008, PMn implementation rule, stating that generally where scientific data and modeling analyses provide reasonable certainty that the pollutant's

emissions are a significant contributor to ambient PM25 concentrations, EPA believes that pollutant should be identified' as a'

"reguiated NSR pollutant" and subject to the PM" NSR provisions. Conversely,· where the effect of a pollutant's emission

on ambient PMZ,5 concentrations is subject to SUbstantial uncertainty, such that in some circumstances, the pollutant may not

result in the formation of PM", or control of the pollutant may

have no effect or may even aggravate air quality, EPA generally believes it is unreasonable to establish a nationally-applicable presumption that the pollutant is a regulated NSR pollutant

subject to the requirements of NSR for PM". Therefore, EPA

has established certain presumptions regarding the PM" precursors, sulfur dioxide (SO,), nitrogen oxide (NO,), volatiie organic

compound (VOC) and ammonia. Specificaliy, EPA presumes

SOz and NO~ to be significant contributors to ambient PM1

.

5concentrations in all areas and thUS, have termed these pollutants

"presumed in," meaning requiring regUlation as a precursor for

PM". Conversely, the final ruie does not require reguiation of

VOC or ammonia as a precursor to PM" for the NSR program

because additional research and technical tools are necessary

to characterize the emissions inventories for VOC, and there

is considerable uncertainty related to ammonia as a precursor.

Therefore, EPA has categorized these pollutants as "presumed

out," meaning not regUlated as a precursor for PMu regulation.

However, states have the option to exclude NO~, as a precursor

by demonstrating that NO..:. emissions are not a significant contributor to ambient PM2

,5 concentrations in a particular area. In

addition, states have the option of identifying VOC and/or ammonia as precursor(s) by demonstrating that emissions for VOC

and/or ammonia are a significant contributor in an area, and thus,

should be subject to major NSR.

EPA has also provided clarification regarding regulation of condensable PM under the PM" reguiations stating they will not require states to address condensable PM in establishing enforceable emissions limits for either PM,o or PM1

.

5in NSR permits during the transitional period that ends on January 1, 2011. During

this transitional period, EPA is assessing the capabilities of test

methods available for measuring condensable emissions. As

specified in 40 Code of Reguiations (CFR) Part 51, Method 202

is used in the determination of condensable particulate emissions from stationary sources, and Method 201 is used in the

determination of PM,o emissions. It is presumed that the appropriate test method set forth by EPA once promuigated will be

PROPOSED RULES November 19, 2010 35 TexReg 10147
provided in 40 CFR Part 51 for measuring condensable emissions.

Finally, EPA clarified that there will be no changes to the implementation of Best Available Control Technology (BACT) reQuirements for PM~.~ at major sources that are subject to the

PSD program. If a new major source will emit, or has the potential to emit, a significant amount of a regulated NSR pollutant

in an attainment area for that pollutant, the source must apply

BACT for each emissions unit that emits the pollutant. In addition, if a physical change or operational change at an existing

major source will result in a significant emissions increase and

significant net emissions increase of a regulated NSR pollutant,

the source must apply BACT to each proposed emissions unit

experiencing a net increase in emissions of that pollutant as a

result of the physical or operational change in the unit. Under

the PM" PSD program, these requirements will apply to direct

PMH emissions; SO~ emissions; NO. emissions, unless states

demonstrate that NOx is not a significant contributor to ambient PM25 concentrations in that area; and to vae if identified

by a state as a precursor in the PM2,5 attainment area where the

source is located. Anhough EPA has specified that direct emissions of PM2

,5 at or above the significant emission rate (SER)

would trigger a BACT analysis, EPA has not specified whether a

precursor's emissions above the precursor's SER would trigger

a BACT analysis for PM2

.

5 if direct emissions of PM2,S are below

the PM,. SER. Therefore it is presumed that BACT for direct PM,.,

will apply only if direct PM" emissions are significant, and BACT

for precursor pollutants will apply only if the precursor emissions

equal or exceed the specific SER for the precursor pollutant.

SECTION DISCUSSION

The commission proposes to amend §101.1, Definitions, to

remove Figure: 30 TAC §101.1(25) providing the de minimis

impact levels for SO~, PM,c' nitrogen dioxide and carbon monoxide (CO). In its place, the definition will reference 40 CFR

§51.165(b)(2). 40 CFR §51.165(b)(2) provides the significance

levels above which a major source or major modification would

be considered to cause or contribute to a violation of the

NAAQS when such source or modification wouid, at a minimum,

exceed the listed significance levels. In addiUon, the commission is proposing changes to §101.1(75), which currently

defines PM. The proposal will move the definiUon for PM" from

§1 01.1 (78) to §1 01.1 (75)(A), and add the definition for PM" under §101.1(75)(B). PM emissions is defined under §101.1(76).

This section will be amended to include §101.1(76)(A) and

(B), which will define direct and secendary PM emissions.

PM,. emissions will be defined under existing §101.1(78) when

the definition for PM" is moved to new §101.1(75)(A). These

changes will provide the definitions for PM,c and PMa emissions

and the definitions for direct and secondary PM emissions which

currently do not exist.

FISCAL NOTE COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

has detennined that for the first five-year period the proposed

rule is in effect,"no significant fiscal-implications"are"anticipated

for the agency or other units of state or local government as a

result of administration or enforcement of the proposed rule.

The proposed rulemaking amends 30 TAC Chapters 101 and

106 to modify definitions regarding particulate matter. This fiscal

note addresses the fiscal impact of definition changes to Chapter

101, and the fiscal impact of definition changes to Chapter 106

will be addressed in a separate but reiated fiscal note.

The proposed amendment to Chapter 101 incerporates federal

regulatory requirements for the FCAA into state rules. EPA

finalized PM,. for the PSD program in 2008, and allowed states

with approved SIPs to continue to implement a surrogate PM,"

policy until May 2011, or until revised PSD programs for PM"

were approved by EPA, whichever came first. During this time,

the agency issued guidance to all regulated parties to aid them

in cemplying with the federal regulations. The proposed rule

amends the definitions in Chapter 101, General Air Quality

Rules, to incorporate definitions of PM for PM," and PMu as well

as definitions of direct PM emissions, secondary PM emissions,

and PM~, emissions.

Local government and other state agencies that own or operate

facilities that generate PM are not expected to experience any

fiscal impact as a result of the proposed rule. All regulated entities have already been required to comply with federai law and

implement BACT with regards to PM" and PM". The incerporation of definitions will not require the implementation of additional

controls until such time that EPA issues additional guidance.

PUBLIC BENEFITS AND COSTS

Nina Chamness also detennined that for each year of the first

five years the proposed rule is In effect, the public benefit anticipated from the changes seen in the proposed rule will be compliance with the FCAA and maintenance of the state's delegation

authority.

The proposed rule is not expected to have a fiscal impact on individuals or businesses that own or operate facilities that emit

PM Regulated entities have already been required to comply

with federal regUlations cenceming PM and utilize BACT. The

proposed rule incorporates current agency guidance and federal

regulations into state regUlations, and no other implementation

of centrol technologies is required until EPA issues additional

guidance.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or microbusinesses since they have already been required to implement

BACT as a result of federal regulations and agency guidance.

The proposed rule will not require implementation of other control

technologies until EPA issues additional guidance.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and detennined that a small business regUlatory flexibility analysis is

not required because the proposed rule is reqUired to comply

wijh federal regUlations.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and detennined that a local employment impact statement is not required because the proposed rule does not adversely affect a

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

proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The cemmission reviewed the proposed rulemaking in light olthe

regUlatory analysis requirements of Texas Government Code,

§2001.0225 and detennined that the proposed rule does not

meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental

35 TexReg 10148 November 19, 2010 Texas Register
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, a sector of the economy, productivity, competition, jobs,

the environment, or the public hea~h and safety of the state or

a sector of the state." While the purpose of this rulemaking is to

increase protection of the environment and reduce risk to human

heaith, it is not expected that this rulemaking will adversely affect

in a material way the economy, a sector of the economy, productivity, jobs, the environment, orthe public heaith and safety of the

state or a sector of the state.

Furthenmore, while the proposed rulemaking does not constitute

a major environmental rule, even if it did, a regulatory impact

analysis would not be required because the proposed rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule.

Texas Government Code, §2001.0225 applies only to a major

environmental rule which: 1) exceeds a standard set by federal

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

specifically required by federal law; 3) exceeds 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) adopts a rule solely

under the general powers of the agency instead of under a specific state law. The proposed rulemaking does not meet any of

the four applicability criteria listed in Texas Government Code,

§2001.0225 because: 1) the proposed rulemaking is designed

to meet, not exceed the relevant standard.set by federal law; 2)

parts of the proposed rulemaking are directly required by state

law; 3) no contract or delegation agreement covers the topic that

is the subject of this rulemaking; and 4) the proposed rulemaking is authorized by specific sections of Texas Health and Safety

Code, Chapter 382 (also known as the Texas Clean Air Act),

which is cited in the STATUTORY AUTHORITY section.

The specific intent of the proposed rulemaking Is to amend Chapter 101 to add new definitions necessary for implementation of

PM2_~ NSR regulations, and replace current definitions with references to federal definitions for efficiency. The preamble to this

rulemaking clarifies how precursors and condensable emissions

are addressed, that EPA has made no changes to the BACT

analysis process for PMu ' and provides a basis for regulation of

PMu emissions when the use of PM1C as a surrogate for PM2

" is

no longer applicable.

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 evaluated the proposed rule and performed an

analysis of whether this proposed rule constitutes a taking under

Texas Government Code, Chapter 2007. The specific purpose

of the rulemaking is to facilitate implementation of new federal

regulations under the NSR program. The proposed amendment

would substantially advance this stated purpose by adding new

definitions to Chapter 101, necessary for implementation of the

PMH regUlations. The commission's analysis indicates that the

Texas Govemment Code, Chapter 2007 does not apply to this

proposed rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by feceral law, which

is exempt under Texas Govemment Code, §2007.003(b)(4).

Specifically, EPA has promulgated new NSR reguiations for

PM" in accordance with 40 CFR §§52.21, 52.24, 51.160 -

51.165, 51.165(b), 51.166, and Part 51, Appendix S. TCEO, as

the administrator of the NSR program for Texas, is tasked with

implementing the new federal regUlations in accordance with 40

CFR §51.166 and FCAA, §107(d)(1 )(A)(ii) or (iii).

Nevertheless, the commission further evaluated this proposed

rule and performed an assessment of whether this proposed rule

constitutes a takings under Texas Govemment Code, Chapter

2007. The specific purpose of this proposed rule is to facilitate

impiementation of new federal regUlations under the NSR program. The proposed rule would substantially advance this stated

purpose by adding new definitions to Chapter 101 ofTCEO ruies,

necessary for implementation of the PMn regulations.

Promulgation and enforcement of this proposed rule would be

neither a statutory nor a constitutional taking of private real property. Specifically, the SUbject proposed regUlations do not affect

a landowner's rights in private real property because this rulemaking does not burden (constitutionally); nor restrict or limit the

owner's right to property and reduce its value by 25% or more

beyond that which would otherwise exist in the absence of the

regulations. In other words, this rule does not affect private property in a manner that restricts or limits an owner's right to the

property that would otherwise exist in the absence of a govemmental action. Consequently, this rulemaking action does not

meet the definition of a takings under Texas Government Code,

§2007.002(5).

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking action relates

to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code,

§§33.201 et seq.), and commission rules in 30 TAC Chapter 281,

Subchapter B, concerning Consistency with the Texas Coastal

Management Program. As requirec by §281.45(a)(3) and 31

TAC §505.11(b)(2), relating to Actions and Rules Subject to the

Coastal Management Program, commission rules governing air

pollutant emissions must be consistent With the applicable goals

and policies ofthe CMP. The commission reviewed this action for

consistency with the CMP goals and policies in accordance with

the rules of the Coastal Coordination Council and detenmined

that the action is consistent with the applicable CMP goals and

policies.

The CMP goal applicable to this proposed rulemaking action is

the goal to protect, preserve, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas

(31 TAC §501.12(1». The proposed amendment will indirectly

benefit the environment because it will require PM2 ! emissions

to be evaluated for compliance not to exceed significance leveis which will ensure that there will be fewer adverse impacts to

pUblic health and the environment. The CMP policy applicable to

this ruJemaking action is the policy that commission rules comply with federal regulations in CFR, to protect and enhance air

quality in the coastal areas (31 TAC §501.32). Therefore, in accordance with 31 TAC §505.22(e), the commission affinms that

this rulemaking action is consistent with CMP goals and policies.

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

PROPOSED RULES November 19,2010 35 TexReg 10149
There should be no effect on facilities sUbject to the Federal Operating Pemlits Program since APD is currently conducting reviews of sources sUbject to PSD and minor NSR that meet federal definitions and requirements. Permit holders may need to

conduct an evaluation and determine if a revision to a Federal

Operating Pemlit is needed to update the applicable requirements.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on December 13, 2010, at 10:00 a.m. in Building E, Room

201S, at the commission's central office located at 12100 Park

35 Circle. The hearing is structured for the receipt of oral orwritten comments by interested persons. Individuals may present

oral statements when called upon in order of registration. Open

discussion will not be pennitted dUring the hearing; however,

commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact

Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as far in adv'ance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Devon Ryan, MC

205, Office of Legal Services, Texas Commission on Environ·

mental Quality, P.O. Box 13087, Austin, Texas 78711-3087,

or faxed to (512) 239-4808. Electronic comments may be

submitted at: http://www5.tceq.state.tx.uslruleslecommentsl.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should reference

Ruie Project Number 2010-020-101-PR. The comment period

closes December 20, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site at

http://www.fceq.state.tx.uslnavlruleslpropose_adopt.html. For

further infonna~on, please contact Johnny Bowers, Air Pennlts

Division, at (512) 239-8770.

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

TWC; §5.103, conceming Ruies, and §5.105, concerning General Policy, which authorize the commission to adopt rUles necessary to carry out its powers and duties under the TWC; and

under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Ciean Air

Act. The amendment is also proposed under THSC, §382.002,

concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent

with the protection of public health, general welfare, and physical

property; §382.003, concerning Definitions; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning

Stale Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control

of the state's air; §382.051, concerning Pennitting Authority of

Commission; Rules, which authorizes the commission to issue

a penn~ by ruie for types of facilities that will not significan~y

contribute air contaminants to the atmosphere; §382.0513, concerning Permit Conditions, which authorizes the commission to

establish and enforce pennit conditions; and §382.0514, concerning Sampling, Monitoring, and Certification.

This rulemaking implements THSC, §§382.002, 382.003,

382.011,382.012,382.051,382.0513, and 382.0514.

§101.l. Definitions.

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

the rules of the commission, the terms used by the commission have

the meanings commonly ascribed to them in the field of air pollution

control. In addition to the tenns 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.

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

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

Program), allsources that are aggregated as a site. For all othersources,

am' combination ofsources under common ownership or control and

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

or similar divisions.

(2) Acid gas ftare--A flare used exclusively for the incineralion 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 Shutdo\\n Activities). a unique alphanumeric eode required to be assigned by the owner

or operator of a regulated entity that the emission inventory reporting

requirements of §IOLI0 ofthis title (relating to Emissions InventOr)'

Requirements) are applicable to each facility at that regulated entity.

(4) Ambient air-That portion of the atmosphere, external

to buildings, to which the general public has aeeess.

(5) Baekground--Background concentration. the level of

air contaminants that cannot be reduced by controlling emissions from

man-made sources. It is detennined 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. ete.) 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 inte·

grated 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. Sueh 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, fl ushing, andlor immersion while maintaining

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

not included in this definition.

35 TexReg 10150 November 19,2010 Texas Register
(13) Combustion unit--Any boiler plant, furnace, incinerator. flare, engine, or other device or system used to oxidize solid. liquid.

or gaseous fuels, but excluding motors and engines used in propelling

land, water. and air vehicles.

(14) Combustion turbine--Any gas turbine s),stem that is

gas and/or liquid fuel fired with or without power augmentation. This

unit is either attached to a foundatiun 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.

(] 5) 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 o\o\lled or effectively

controlled by the same person.

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

(] 7) Commercial medical waste incinerator--A facility that

accepts for incineration medical waste generated outside the property

boundaries ofthe facility.

(l8) Component--A piece of equipment, including, but not

limited to, pumps, valves. compressors, and pressure relief valves thaI

has the potential to leak volatile organic compounds.

(19) Condensate--Liquids that result from the cooling

and/or pressure changes of produced natural gas. Once these liquids

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

are no longer considered condensates.

(20) Construction-demolition waste--\Vaste 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 of air contaminants to

the atmosphere.

(22) Conveyorized degreasmg--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 Codc of Federal 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 an)' other forms oftransportation.

(25) De minimis impact--A change in ground level concentration ofan air contaminant as a result ofthe operation ofany new major stationary source or ofthe operation of any existing source that has

undergone a major modification that does not exeeed the significance

levels as specified in 40 Code ofRegulatioru; (CFR) §5I. 165(b)(2) [ful-

-lewffig speeiAea tifDettfttS].

[~;Q'fM'!191.1(25)]

(26) Domestic wastes--The garbage and rubbish nonnally

resulting from the functions of life withm 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 shutdo\'oll 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 I ofthis 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 of time the reduction is eligible for use.

(3]) Emissions unit--Any part of a stationalj' source that

emits, or would have the potential to emit, any pollutant sUQ,iect to

regUlation under the Federal Clean Air Act.

(32) Excess opacity event--When an opacity reading is

equal to or exceeds] 5 additional percentage points abo\-e 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 of volatile organic compound.

(34) External floating roof--A cover or roofin 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 betv..'een

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

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

space between them.

(35) Federal motor vehicle regulation--Control of Air 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 6]; requirements

within any applicable state implementation plan (SIP): and any pennit

requirements established under 40 CFR §52.2] 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 pennit issued under

such program.

(37) Flare--An open combustion unit (i.e., lacking an enclosed combustion chamber) whose combustion air is provided by uncontrolled ambient air around the flame, and that is used as a control

device. A flare may be equipped with a radiant heat shield (witb 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 1, 1 (Low Sulfur), 2, 2 (Low Sulfur). 4 (Light).

4,5 (Light), 5 (Heavy), and 6.

(39) Fugitive emission--An) gaseous or particulate contaminant entering the atmosphere that could not reasonably pass

PROPOSED RULES November 19,2010 35 TexReg 10151
through a stack, chimney, vent, or other functionally equivalent

opening designed to direct or control its flow.

(40) Garbage--Solid waste consisting ofputrescib1e 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 of produce and other

food products.

(41) Gasoline--Any petroleum distillate having a Reid vapOl' pressure offourpounds 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 b)' the administrator ofthe United States Environmental Protection Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recover)' Aet 42 United

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

(43) Heatset (used in offset lithographic printing)--Any operation where heat is required to evaporate ink oil from the printing ink.

Hot air dryers are used to deliver the heat.

(44) High-bake coatings--Coatings designea 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

OJ and 10.0 pounds per square inch gauge air pressure measured at

the air cap.

(46) Ineinerator-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

bums 10% or more of solid 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 of solid waste on a total Btu heat input basis averaged

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

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

when approved by the executive director. Devices burning untreated

wood scraps, waste wood, or sludge from the treatment of wastewater

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

by mechanical or chemical processes.

(48) Industrial fumace--Cement kilns; lime kilns; aggregate kilns; phosphate kilns; coke ovens; blast furnaces; smelting,

melting, or refining furnaces, including pyrometallurgical deviees

such as cupolas, reverberator furnaces, sintering machines, roasters,

or foundr)' furnaces; titanium dioxide chloride process oxidation

reactors; methane reforming furnaces; pulping recovery furnaces;

combustion de"ices 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 rnanufaeturing, or mining or

agricultural operations. classified as follows.

(A) Class I industrial solid waste orClass 1 \\'aste is any

industrial solid waste designated as Class I by the executive director

as any industrial solid waste or mixture ofindustrial solid wastes that

because of its concentration or physieal or chemical characteristics is

toxic. corrosive, flammable, a strong sensitizer or irritant. a generator

of sudden pressure by deeomposition, 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 othenvise managed, including hazardous industrial waste, as defined in

§335.1 and §335.505 of this title (relating to Definitions and Class 1

Waste Determination).

(B) Class 2 industrial solid waste is any individual solid

waste or combination ofindustrial solid wastesthat eannot be deseribed

as Class 1 or Class 3, as defined in §335.506 of this title (relating to

Class 2 Waste Determination).

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

bric~ 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 Detennination).

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

fixed roof tank that rests upon or is floated upon the liquid being contained, and is equipped with a closure seal or seals to close the space

between the cover edge and tank shell.

(51) Leak-~A volatile organic eompound concentration

greater than 10,000 parts per million by volume or the amount specified b)' applicable rule, whichever is lower; or the dripping or exuding

of proeess fluid based on sight, smell, 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 eontinuous 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 of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under 42 United

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

the state:

(A) Victoria Ozone Maintenance Area 60 (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 linc 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 fenee line approximately 1,000 feet

south ofthe Exide property line; Southside: Fence line approximately

],000 feet south ofthe Exide propeIt) line.

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

implementation plan, meeting the requirements of 42 United States

Code, §7505a.

35 TexReg 10152 November 19, 2010 Texas Register
(56) Marine vessel--Any watereraft used, or capable of being used, as a means of transportation on water, and that is constructed

or adapted to carry, or that carries, oil. gasoline, or other volatile organic liquid in bulk as a cargo or cargo residue.

(57) Mechanical shoe seal--A metal sheet that is held vertically against the storage tank wall by springs or weighted levers and is

connecl.t:d by braces to the floating roof. A flexible eoated 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 faeilities" 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 eontinuing. cooperative, and comprehensive planning

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

(60) Mobile emissions reduction eredit--The credit ob·

tained 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 H.

Division 1 ofthis chapter.

(61) Motor vehicle-A self-propelled vehicle designed for

transporting persons or property on a street or highway.

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

gasoline is dispensed to motor vehicle fuel tanks from stationBJ')' storage tanks.

(63) Municipal solid waste--Solid waste resulting from. or

ineidentaJ to. munieipal, eommunity, eommerciaL institutional, and

reereational activities, including garbage, rubbish, ashes, street cleanings, dead animals. abandoned automobiles, and all other solid waste

except industrial solid waste.

(64) Municipal solid waste facility--AII contiguous land,

structures, other appurtenances, and improvements on the land used

for processing, storing, or disposing of solid waste. A facility may

be publiely or privately owned and may consist of several processing,

storage, or disposal operational units. e.g., one or more landfills. surface impoundments, or eombinations ofthem.

(65) Municipal solid waste landfill--A diserete area ofland

or an excavation that reeeives 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 reeeive other

types ofResource Conservation and Recovery Act Subtitle D wastes,

such as commercial solid waste. nonhazardous sludge, conditionally

exempt small-quanti!)' generator waste, and industrial solid waste.

Such a landfill may be publicly or privatel)' ov.ned. 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 marter, 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 an)' point. "'here 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 souree--Any stationary source, the construction

or modification of which 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 ex~

pressed as nitrogen dioxide.

(70) Nonattainment area--A defined region within the

state that is designated by the United States Environmental Proteetion 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 of the designations' for the eight-hour NAAQS ofJune

15.2004.

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

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

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

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

the City ofEI Paso bounded on the north by Highway 10 from Porfirio

Diaz Street to Raynolds Street, Raynolds Street from Highway 10 to

the Southern Pacific Railroad lines. the Southern Pacific Railroad lines

from Raynolds Street to Highway 62. Highwa)' 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 b)'

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 (PMu.)' El Paso PMI

"

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

"

nonattainrnent area. Portion of El Paso County that comprises the El

Paso city limit boundaries as they existed on November 15, 1990.

(C) Lead. No designated nonattainrnent 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.

(if) EI Paso one~hour ozone nonattainrnent area (56

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

of El Paso Coun!)'.

(fji) Beaumont-Port Arthur (BPA) one~hour ozone

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

nonattainrnent 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 nonattainrnent

area. Consists ofCollin, Dallas, Denton. and Tarrant Counties.

PROPOSED RULES November 19,2010 35 TexReg 10153
(F) Ozone (eight-hour).

(i) HGB eight-hour ozone nonattainment area (69

FR 23936) - Classified as a Moderate ozone nonattainrnent area. Consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty,

Montgomery, and Waller Counties.

(iij BPA eight-hour ozone nonattainrnent 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 nonattainrnent

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 of air contaminants obstructs the transmission of light expressed as the percentage oflight obstructed as measured by an optical instrument or trained

obsen'er.

(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 of the

hot solvent vapors on the parts.

(74) Outdoor buming--Any fire or smoke-producing

process that is not conducted in a combustion unit.

(75) Particulate matter--Any material, exeept uncombined

water, that exists as a solid or liquid in the atmosphere or in a gas stream

at standard conditions.

1Al Particulate matter with diameters less than lO

micrometers (PM,,}··Particulate matter with an aerodynamic diameter

less than or equal to a nominal ten micrometers as measured by a

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

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

53, or by an equivalent method designated with that Part 53.

@ Particulate matter with diameters less than 2.5

micrometers (PM,).-Particulate matter with an aerodynamic diameter

less than or equaT to a nominal 2.5 micrometers as measured by a

reference method based on 40 CFR Part 50. Appendix L, and designated in accordance with 40 eFR Part 53, or by an equivalent method

designated with that Part 53.

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

or liquid material, other than uncombined water, emitted to the ambient

air as measured by United States Environmental Protection Agency

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

(CFR) Part 60, Appendix A, modified to include partieulate 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.

ill Direct PM emissions--Particulate matter that is

emitted directly into the air as a solid or liquid particlc (e.g. elemental

carbon from diesel engines or fire activities. or condensable organic

particles from gasoline engines),

@ Secondary PM emissions-Particulate matter that is

formed in the atmosphere as a result ofvarious chemical reactions (e.g.

sulfate and nitrate ).

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

or other produets through distillation of crude oil, or through the redistillation, cracking, extraction, refonning, or other processing of unfinished petroleum derivatives.

(78) PM., emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal 2.5

micrometers emitted to the ambient air as measured by an applicable

reference method. or an equivalent or alternative method specified in

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

an approved state implementation plan. [PM1lI Par-tieuIate mtHtef with

an aefs5ynamie diametef tfteft 6f'etttHtl t& tl-ft6fltift&I-teft miefflffletefS '$ meB:3l:1feel by- a refere8ee metfted. bage& 00- 4Q. Gede- efFedeffiI.

'RegulatisAs (GFR1 Part--w, A:~~eAdh, J, ttBEi designated -in aeesfdfmee

with4G GFR-Part-.£,ef.ey.iIft eflui I alent metfted. designated with that

Paft£cj

(79) PM1

" 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 5 L 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 forms

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 gaseous fuels and combustion

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

operation from the beginning of any given process to the completion

thereof, excluding any time during 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 ovroership 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 of the applicable national ambient air

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 pennit or used

35 TexReg 10154 November 19,2010 Texas Register
in conjunction with the regulated acti\'ity at the same street address or

location. O\\ners or operators of pipelines, gathering lines, and flo\'.,~

lines under common o\\'Ilership or control in a panicular eounty may

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

regulation of emissions events.

(86) Remote reservoir cold soh'ent cleaning--Any cold soiYent 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 any 24-hour period. results in an unauthorized emission from any

emissions point equal to or in exeess ofthe reportable quantity as defined in this section.

(88) Reportable quaotlt)' (RQ)--Is as follows:

(A) for individual air contaminant eompounds and

speeifieally listed mixtures by name or Chemical Abstracts Service

(CAS) number. either:

0) the lowest ofthe quantities:

(lJ listed in 40 Code of Federal Regulations

(CFR) Part 302. Table 302.4, the column "final RQ":

(If) listed in 40 CFR Pan 355, Appeodix A, the

column "Reportable Quantity"; or

(III) listed as follows:

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

the Houston-Galveston-Brazoria (HGB) and Beaumont-Port Arthur

(BPA) ozone nonanainment areas as defined in paragraph (70)(E)(i)

and (iii) of this section. where the RQ must be 100 pounds:

(-b-) butanes (any isomer) - 5.000 pounds;

(-c-) butenes (any isomer, except 1.3-butadi~

ene) - 5,000 pounds. except in the HOB and BPA ozone nonattainment

areas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where

the RQ must be 100 pounds;

(-d-) carbon monoxide - 5,000 pounds;

(-e-) I-chloro-l,I~difluoroethane (HCFC142b) - 5,000 pounds:

(-f·) chlorodifluoromethaoe (HCFC-22) -

5,000 pounds:

(-g-) l-chloro-I-fluoroethaoe (HCFC-15Ia)-

5,000 pouods:

(-h-) chlorofluoromethaoe (HCFC-31)

5,000 pounds:

(-i-) chloropentafluoroethane (CFC~115)

5,000 pounds:

(-j-) 2-chloro-l, 1,1 ,2-tetrafluoroethane

(HCFC-124) - 5.000 pounds:

(-k-) I-chloro-I,1,2,2 tetrafluoroethane

(HCFC-124al- 5.000 pounds:

(-1-) 1,1 ,I,2,3.4,4,5,5,5-decafluoropentane

(HFC 43-IOmee) - 5.000 pounds:

(-m-) decanes (any isomer) - 5.000 pounds;

(-n-) I,l-dlchloro-I-fluoroethaoe (HCFC14Ib)· 5.000 pounds:

(-0·) 3,3-dichloro-l,1,2,2-pentafluoropropane (HCFC-225ca) - 5.000 pounds;

(-p-) 1,3-diehloro-l,I,2,2,3-pentafluoropropane (HCFC-225cb) - 5.000 pounds:

(-q-) 1.2~diehloro-l, 1,2.2-tetrafluoroethane

(CFR-114)· 5.000 pounds:

(-r-) 1,I~diehlorotetrafluoroethane (CFCll4a) - 5.000 pounds:

(-s-) l,2-dichloro-l.I,2-trifluoroethane

(HCFC·123a) - 5,000 pounds;

(-t-) I,l-dlfluoroethaoe (HFC-152a) - 5,000

pounds;

(·u-) difluoromethaoe fHFC·32) - 5,000

pounds:

(-\'-) ethanol - 5,000 pounds~

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

HGS and BPA ozone nonattainment areas as defined in paragraph

(70)(E)(I) aod (iii) ofthis section, where the RQ must be 100 pounds:

(-x-) ethylfluorlde (HFC-161) 5,000

pounds;

(-y-) I, I, 1,2.3,3,3-heptafluoropropaoe

(HFC-227ea) - 5,000 pounds:

(-z-) 1,1.1,3,3,3-hexafluoropropane (HFC236fa) • 5,000 pounds:

(-aa-) 1,1, 1,2,3.3-hexafluoropropane

(HFC-236ea) - 5.000 pounds:

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

(-ec-) isopropyl alcohol- 5,000 pounds;

(-dd-) mineral spirits - 5,000 pounds;

(-ee-) octanes (an~' isomer).-·5.000 pounds;

(-if-) oxides of nitrogen 200 pounds in

ozone nonattainment, ozone maintenanee, early action compact areas,

Nueces County, and San Patricio County, and 5,000 pounds in all

other areas of the state, which should be used instead of the RQs for

nitrogen oxide and nitrogen dioxide provided in 40 CFR Part 302,

Table 302.4, the column "final RQ":

(-gg-) pentaehlorofluoroethane (CFR-lll) -

5,000 pounds:

(-hh-) 1,I,1,3.3-pentafluorobutane (HFC365mfc)· 5,000 pounds:

(-Ii·) pentafluoroethaoe (HFC-125) - 5.000

pounds;

(-jj-) 1.1,2.2,3-pentafluoropropane (HFC245ca)· 5,000 pounds:

(~kk-) 1,] ,2,3,3~pentafluoropropane (HFC245ea) - 5,000 pounds;

(-11-) 1,I,1,2,3-pentafluoropropaoe (HFC245eb) - 5,000 pounds:

(-mm-) 1,1,1.3,3-pentafluoropropane

(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-) 1,1 ,2,2-terachlorodifluoroethane

(CFR-112) - 5,000 pounds;

(-rr-) 1,I,1,2-tetrachlorodifluoroethane

(CFC-112a) -5,000 pounds;

(-ss-) 1,I,2,2-tetrafluoroethane (HFC-134) -

5,000 pounds;

(-tt·) 1,1,1,2-tetrafluoroethaoe (HFC-134a) -

5,000 pounds:

(-uu-) 1,1 ,2-triehloro-l ,2,2-trifluoroethane

(CFR·113) - 5,000 pounds;

(-vv-) 1,1,I-trichloro-2,2,2-trilfloroethane

(CFC-I13a) - 5,000 pounds:

(-wVt·~) 1,1,1-trifluoro-2.2-dichloroethane

(HCFC-123) - 5,000 pounds:

(-xx-) 1,1,1-trlfluoroethaoe (HFC-143a)

5,000 pounds;

PROPOSED RULES November 19,2010 35 TexReg 10155
pounds; or

(-yy-) trifluommethane (HFC-23) - ;,000

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

HGB and BPA ozone nonattainrnent areas as defined in paragraph

(70)(E)(i) and (iii) ofthis section, where the RQ must be 100 pounds;

m) if not listed in clause (i) of this subparagraph,

100 pounds;

(B) for mixtures of air contaminant eompounds:

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

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

contaminant compound that equals or exceeds the amount specified in

subparagraph (A) of this paragraph;

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

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

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

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

(iii) where each of the individual air contaminant

compounds listed in subparag'raph (A)(i) of this paragraph are known

to be less than 0.02% by weight ofthe mixture, and each ofthe other individual air contaminant eompounds 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 cqual to 5.000 pounds; or

(iv) whcre natural gas exeluding carbon dioxide,

water, nitrogcn, 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 hydrogcn sulfide and

mcrcaptans 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, lignitc, wood. fuel

oil containing hazardous air pollutants at a concentration of less than

0.02% by weight. opacity that is equal to or exceeds 15 additional percentage points above thc applicable limit, averaged over a six-minute

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

turbines described in this paragraph; or

(D) for facilities where air contaminant compounds are

measured directly by a eontinuous emission monitoring system providing updated readings at a minimum IS-minute interval an amount,

approved by the executive director based on any relevant eonditions

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

(1) less than two times the eoncentration ofapplieable air emission limitations.

(89) Rubbish-·Nonputrescible solid waste, consisting of

both combustible and noncombustible waste materials. Combustible

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

rubber, plastics. yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, croelery, tin cans, aluminum

eans, 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 activit)' is an activity that the oWner or operator ofthe regulated entity whether performing or otherwise affected by the activity,

provides prior notiee and a final report as required by §101.21l ofthis

title (relating to Scheduled Maintenance. Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice or final report

includes the information required in §101.211 of this title; and the actual unauthorized emissions from the activity do not exceed the cmissions estimates submitted in the initial notification by more than an

RQ. For aerivities with unauthorized cmissions that are not expected

to, and do not. exceed an RQ, a scheduled maintenance, startup, or

shutdov.TI activit)' is one that is recorded as required by §101.21l of

this title. Expected excess opacity events as described in §101.201(e)

ofthis titlc (relating to Emissions Event Rcporting and Rccordkeeping

Rcquirements) resulting from scheduled maintenance, startup, or shutdown activities arc those that provide prior notice (ifrequircd), and are

recorded and reportcd as required by §101.211 ofthis title.

(9]) Sludge--Any solid or semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant; water supply treatment plant, cxclusive ofthe trcated efRu·

ent from a wastewater treatment plant; or air pollution control equipmcnt.

(92) Smoke--Small gas-born particles resulting from

incompletc combustion consisting predominately of earbon and other

combustible matcrial and present in sufficient quantity to be visible.

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

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

liquid. semisolid, or eontainerized 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 diseharges 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, ifthc object ofthe fill is to makc

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,

§91.101, unless the waste, substance, or material results from activities

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

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

as amended by Resource Consenration and Recovery Act, as amended

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

(94) Sour crude--A crude oil that will emit a Sour gas when

in equilibrium at atmospheric pressure.

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

grains of hydrogen sulfide per 100 cuhic feet. or more than 30 grains

of total sulfur per 100 cubic feet.

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

priYately or publicly ov.ned or operated. Upon request of a source

owner, the executive director shall detennine whether multiple pro35 TexReg 10156 November 19,2010 Texas Register
Filed with the Office of the Secretary of State on November 5,

2010

TRD-201006332

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 19, 2010

For further infonnation, please call: (512) 239-6090

CHAPTER 106. PERMITS BY RULE

SUBCHAPTER A. GENERAL REQUIREMENTS

30 TAC §106.4

The Texas Commission on Environmental Quality (TCEQ,

agency, or commission) proposes an amendment to §106.4.

If adopted, the amended section will be SUbmitted to the United

States Environmental Protection Agency (EPA) as a revision to

the state implementation plan (SIP).

(115) Volatile organic compound--As defined in 40 Code

of Federal RegUlations §51.100(s), except §51.100(s)(2) - (4), as

amended on Janua!)' 21, 2009 (74 FR 3441).

(116) Volatile organic compound (VQC) water separator--

Any tank. box, sump, or other container in which any VOC, floating on

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

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

drainage, or recovery 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.

ported under §101.211 ofthis title (relating to Scheduled Maintenance,

Startup, and Shutdown Reporting and Recordkeeping Requirements),

but had emissions that exceeded the reported amount by morc than a

reportable quantity due to an unplanned and unavoidable breakdovm

or cxcursion of a 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 cnelosed combustion

device used to destroy volatile organic compounds by smokeless combustion without extracting energy in the form of process heat or steam.

The eombustion flame may be partially visible, but at no time does

the de\'ice operate with an uncontrolled flame. Auxilial)' fuel and/or a

flamc air control damping system that can operate at all times to control

the air/fuel mixturc to the combustor·s flame zone, may be required to

ensure smokeless combustion during operation.

(112) Vapor-mounted seal--A primal)" seal mounted so

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

is bounded by the bottom of the primary seal. the tank wall, the liquid

surface, and the floating roof or cover.

(113) Vent--Any duct, stack. chimney. flJle, 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.

•••

cesses emitting air contaminants from a single point of emission v.'ill

be treated as a single source or as multiple sources.

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

solid waste that if improperly treated or handled, may ser..e 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 eondition 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 of a county or one or more contiguous counties that is officially

so designated by the United States Bureau of the Budget.

(l00) Submerged fill pipe--A fill 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

nonnal operation.

(101r Sulfur cOinpounds':'-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 includc sulfuric aeid liquid mist,

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

in 40 Code of Federal 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 of Federal Regulations

Part 50, Appendix B.

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

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

amount of coating solids delivered to the coating application system.

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

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

Clean Air Act, §382.0518(g).

(108) Unplanned maintenancc, startup, or shutdov.ll 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 shutdov,..ll that was not part of nonnal

or routinc facility operations, is unpredictable as to timing, and is not

the type of event nonnally authorized by pennit: or

(B) a maintenance activity that arises from sudden and

unfureseeable events beyond the control of the 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 that results in unauthorized

emissions. A maintenance. startup, or shutdov.ll activity that was rePROPOSED RULES November 19, 2010 35 TexReg 10157
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

The commission proposes to amend §106.4. Requirements for

Penmitting by Rule, to address the applicabie significant emission thresholds for particuiate matter (PM), PM 10 micrometers

or iess (PM,J, and PM 2.5 micrometers or less (PM,.•) to provide

clarity to the penmitting process for PM.

On july 18, 1997, the EPA revised the Nationai AmbientAir Quality Standards (NMQS) for PM to add new standards for PM,.• as

an indicator. However, at that time, certain difficulties regarding

implementation of the PM2., regUlations remained, including the

lack of necessary tools to calculate emissions of PM2~ and related precursors, the lacl< of adequate modeiing techniques to

project ambient impacts, and the lack of PM2

.

5 monitoring sites.

Therefore, on October 23, 1997, EPA issued a memorandum

prOViding for PM,o to be used as a surrogate for PM2~. EPA reaffinmed use of the surrogate policy in a memorandum dated April

5, 2005.

On November 1, 2005, the EPA proposed regUlations to impiement the New Source Review (NSR) program for PM,.. EPA

published the bulk of the major NSR program final regulations

for PM,.• on May 16, 2008 (effective on july 15, 2008). EPA

noted that this final action, with EPA:s proposed ruie on increments, significant impact levels (SILs), and significant monitoring concentration (SMC) when final, will represent the finai elements necessary to implement a PM2

_

5 Prevention of Significant

Deterioration (PSD) program. On February 11, 2010, the EPA

proposed two actions that would end the EPA's 1997 policy allowing sources and permitting authorities to use a demonstration

of compliance with the PSD requirements for PM.o as a surrogate

for meeting the PSD reqUirements for PM". In the first action,

the EPA proposed to repeal the "grandfathering" provision for

PM,. contained in the Federal PSD program, which allows applicants for proposed new major sources and major modifications

that have submitted a complete PSD penmit application prior to

the effective date of an amendment to the PSD regUlations but

have not yet received final and effective PSD permit, to continue

relying on information already in the application rather than immediately having to amend applications to demonstrate compliance with the new PSD requirements. In the second action, EPA

also proposed to end early the PM" Surrogate Policy applicable

in states that have an approved PSD program in their SIP. The

three-year transition period for revising the SIP and for use of the

surrogate policy ends in May 2011, uniess revised by EPA. In an

effort to ensure the TCEQ meets reguiatory requirements of the

Federal Clean Air Act (FCM), the Air Penmits Division (APD) is

proposing amendments to 30 TAC Chapters 101 and 106 to add

specific definitions related to PMn regulation, and to address the

known requirements for implementation.

Existing federal regUlations require both major and minor NSR

programs to address any pollutant for which there is a NMQS

and precursors to the formation of such pollutant when identified

for regulation by the EPA. TCEQ rules outline the requirements

for both major and minor NSR programs under 30 TAC §116.11 0

(addressing NSR applicability). This secUon requires any person

who plans to construct any new facility or to engage in the modification of any existing facility which may emit air contaminants

into the air of this state to obtain a penmit under §116.111 or satisfy the conditions for another authorization type as listed within

that section. Chapter 116, Subchapter B outlines the general requirements for both minor and major NSR penmits. Specifically,

§116.111 covers the general application reqUirements for both

major and minor NSR. Minor NSR sources are required to comply with all sections of §116.111 except §116.111 (a)(2)(h) and (i)

which only apply to major NSR (Nonattainment and PSD).

For precursors, EPA provided some clarification regarding reguiation of PM,. precursors in the May 16, 2008, PM" implementation rule, stating that generally Where scientific data and modeling analyses provide reasonable certainty that the pollutanrs

emissions are a significant contributor to ambient PMH concentrations, EPA believes that pollutant should be identified as a

"regUlated NSR pollutant" and SUbject to the PM,. NSR provisions. Conversely, where the effect of a pollutant's emission

on ambient PM~.! concentrations is subject to substantial uncertainty, such that in some circumstances the pollutant may not

result in the fonmation of PM,., or control of the pollutant may

have no effect or may even aggravate air quality, EPA generally believes it is unreasonable to establish a nationally-applicable presumption that the pollutant is a regUlated NSR pollutant

subject to the requirements of NSR for PM,.. Therefore, EPA

has established certain presumptions regarding the PM2.! precursors, sulfur dioxide (SO,), nitrogen oxide (NO,), volatile organic

compound (VOC) and ammonia. Specifically, EPA presumes

S01 and NO~ to be significant contributors to ambient PM2~ concentrations in all areas and thus, have tenmed these pollutants

"presumed in," meaning requiring regUlation as a precursor for

PMZ,!' Conversely, the final rule does not reqUire regUlation of

VOC or ammonia as a precursor to PM,. for the NSR program

because additional research and technical tools are necessary

to characterize the emissions inventories for vac, and there

is considerable uncertainty related to ammonia as a precursor.

Therefore, EPA has categoriZed these pollutants as "presumed

out," meaning not regulated as a precursor for PM~ regUlation.

However, states have the option to exclude NOx' as a precursor

by demonstrating that NO;e, emissions are not a significant contributor to ambient PM2

.! concentrations in a particular area. In

addition, states have the opUon of identifying VOC and/or ammonia as precursor(s) by demonstrating that emissions for VOC

and/or ammonia are a significant contributor in an area, and thus,

should be subject to major NSR.

EPA has also provided clarification regarding regulaUon of condensable PM underthe PMu regulations stating it will not reqUire

states to address condensable PM in establishing enforceable

emiSSions limits for either PM,0 or PMa in NSR permits during

the transitional period that ends on January 1, 2011. During this

transitional period, EPA is assessing the capabilities oftest methods available for measuring condensable emissions. As specified in 40 Code of RegUlations (CFR) Part 51, Method 202 is

used in the determination of condensable particulate emissions

from stationary sources, and Method 201 is used in the determination of PM\O emissions. It is presumed that the appropriate

test method set forth by EPA once promulgated, will be provided

in 40 CFR Part 51 for measuring condensable emissions.

Finally, EPA clarified that there will be no changes to the implementation of Best Availabie Control Technology (BACT) requirements for PM2

,! at major sources that are subject to the PSD program. If a new major source will emit, or have the potential to

emit, a significant amount of a regUlated NSR pollutant in an attainment area for that pollutant, the source must apply BACT

for each emissions unit that emits the pollutant. In addition, if

a physical change or operational change at an existing major

source will result in a significant emissions increase and significant net emissions increase of a regUlated NSR pollutant, the

source must apply BACT to each proposed emissions unit experiencing a net increase in emissions of that pollutant as a re35 TexReg 10158 November 19,2010 Texas Register
suit of the physical or operational change in the unit. Under the

PM, PSD program, these requirements will apply to direct PM"

emf~sions; SO, emissions; NO~emissions, unless states demonstrates that NOx is not a significant contributor to ambient PMZ

,5

concentrations in that area; and to VOC if identified by a state

as a precursor in the PM.,~ attainment area where the source

is located. Although EPA has specified that direct emissions

of PM" at or above the significant emission rate (SER) would

trigger a BACT analysis, EPA has not specified whether a precursor's emissions above the precursor's SER would trigger a

BACT analysis for PM25 if direct emissions of PM2~ are below the

PM_ SER. Therefore, it Is presumed that BACT for direct PM"

will-~pply only if direct PM" emissions are significant. and BACT

for precursor pollutants will apply only if the precursor emissions

equal or exceed the specific SER for the precursor pollutant.

SECTION DISCUSSION

§106.4, Requirements for PermittJng by Rule

The commission proposes to amend §106.4, Requirements for

Penmitting by Rule, to address the applicable significant emission thresholds established by EPA for PM, PM", and PM". The

significant emission threshold for PM is 25 tbn's per year (tpy).

PM" is 15 lpy, and PM" is 10 tpy. Section 106.4(a)(1) and (4)

have been revised to include these changes. This change wil!

provide clarity to the permitting process for particulate matter by

including the significant levels for PM, PM", and PM" It will not

affect existing claims and is only applicable to new or modified

claims under this chapter, not currently operating authorized facilities under standard exemption or permit by rule (PBR) in accordance with §106.2, Applicability.

FISCAt. NOTE: COSTS TO STATE AND t.OCAt. GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

has detenmined that for the first five-year period the proposed

rule is in effect, no significant fiscal implications are anticipated

for the agency or other units of state or local government as a

result of administration or enforcement of the proposed rule.

The proposed rulemaking amends Chapters 101 and 106 to

modify definitions regarding particulate matter. This fiscal note

addresses the fiscal impact of definition changes to Chapter

106, and the fiscal impact of definition changes to Chapter 101

will be addressed in a separate fiscal note.

The proposed rule incorporates federal regulatory requirements

for the FCAA into state rules. EPA finalized PM" for the PSD

program in 2008, and allowed states with approved SIPs to continue to implement a surrogate PM,o policy until May 2011, or

until revised PSD programs for PM,. were approved by EPA,

whichever came first. During this time, the agency issued guidance to all regulated parties to aid them in complying with the

federal regulations. The proposed rule amends the PBR program and fonnally incorporates current agency guidance regarding definitions of PM,o and PM2_~ into state rules.

Local government and other state agencies that own or operate

facilities that generate particulate matter will not experience any

fiscal impact as a result of the proposed rule. All regulated entities have already been required to comply with federal law and

implement BACT with regards to PM10 and PMz.s" The incorporation of definitions will not require the implementation of additional

controls until such time that EPA issues additional guidance.

PUBt.lC BENEFITS AND COSTS

Nina Chamness also detenmined that for each year of the first

five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be compliance with the FCAA and maintenance of the state's delegation

authority.

The proposed rule is not expected to have a fiscal impact on individuals or businesses that own or operate facilities that emit particulate matter. Regulated entities have already been required

to comply with federal regulations concerning particulate matter

and utilize BACT. The proposed rule incorporates current agency

guidance and federal regulations into state regulations, and no

other implementation of control technologies is required until the

EPA issues additional guidance.

SMAt.t. BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or microbusinesses since they have already been required to implement

BACT as a result of federal regulations and agency guidance.

The proposed rule will not require implementation of other control

technologies until EPA issues additional guidance.

SMAt.t. BUSINESS REGULATORY FLEXIBIt.lTY ANAt.YSIS _.

The commission has reviewed this proposed rulemaking and detenmined that a small business regulatory flexibility analysis is

not required because the proposed rule is required to comply

with federal regulations.

t.OCAL EMPt.OYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and detenmined that a local employment impact statement is not required because the proposed rule does not adverseiy affect a

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

proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the

regulatory analysis reqUirements of Texas Govemment Code,

§2001.0225 and detenmined that the proposed rule does not

meet the definition of a "major environmental rule." Texas Govemment Code, §2001.0225 states that a "major environmentai

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

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

a sector of the state." While the purpose of this rulemaking is to

increase protection of the environment and reduce risk to human

health, it is not expected that this rulemaking will adversely affect

in a material way the economy, a sector of the economy, productivity, jobs, the environment, or the public hea~h and safety of the

state or a sector of the state.

Furthenmore, while the proposed rulemaking does not constitute

a major environmental rule, even if it did, a regulatory impact

analysis would not be required because the proposed rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule.

Texas Govemment Code, §2001.0225 applies only to a major

environmental rule which: 1) exceeds a standard set by federal

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

specifically reqUired by federal law; 3) exceeds a requirement

of a delegation agreement or contract between the state and

an agency or representative of the federal government to imPROPOSED RULES November 19, 2010 35 TexReg 10159
plement a state and federal program; or 4) adopts a rule solely

under lt1e general powers of the agency instead of under a specific state law The proposed rulemaking does not meet any of

the four applicability criteria listed in Texas Govemment Code,

§2001.0225 because: 1) the proposed rulemaking is designed

to meet, not exceed the relevant standard set by federal law; 2)

parts of the proposed rulemaking are directly required by state

law; 3) no contract or delegation agreement covers the topic that

is the subject of this rulemaking; and 4) the proposed rulemaking is authorized by specific sections of Texas Health and Safety

Code, Chapter 382 (also known as the Texas Clean Air Act),

which is cited in the STATUTORY AUTHORITY section.

The specific intent olthe proposed rulemaking is to amend Chapter 106 to include the significant levels for PM, PM,o' and PM2~.

The preamble to this rulemaking clarifies how precursors and

condensable emissions are addressed, that EPA has made no

changes to the BACT analysis process for PM", and provides a

basis for regulation of PM2

" emissions when the use of PM,o as

a surrogate for PMu is no longer applicable.

Written comments on the draft regulatory impact analysis detenmination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of

this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaiuated the proposed rules and performed

an analysis of whether these proposed rules constitute a taking

under Texas Government Code, Chapter2007. The specific purpose of the rulemaking is to facilitate implementation of new federal regulations under the NSR program. The proposed amendment would substantially advance this stated purpose by including the significant ievels for PM, PM", and PM" in Chapter 106 of

TCEQ rules. The commission's analysis indicates that the Texas

Government Code, Chapter 2007 does not apply to the proposed

rulemaking because this ;s an action that is reasonably taken

to fulfill an obligation mandated by federal iaw, which is exempt

under Texas Government Code §2007.003(b)(4). Specifically,

EPA has promulgated new NSR regulations for PM" in aCCOrdance with 40 CFR §§52.21, 52.24, 51.160 - 51.165, 51.165(b),

51.166, and 40 Part 51, Appendix S. TCEQ, as the administrator

of the NSR program for Texas, is tasked with implementing the

new federal regulations in accordance with 40 CFR §51.166 and

FCAA, §107(d)(1)(A)(ii) or (iii).

Nevertheless, the commission further evaiuated the proposed

rulemaking and perfonmed an assessment of whether the proposed rule constitutes a takings under Texas Government Code,

Chapter 2007. The specific purpose of the proposed rule is to facilitate implementation of new federal regUlations under the NSR

program. The proposed rule would sUbstantially advance this

stated purpose by including the significant levels for PM, PM",

and PM" in Chapter 106.

Promulgation and enforcement of the proposed ruie would be

neither a statutory nor a constitutional taking of private real propenty. Specifically, the subject proposed regulations do not affect

a landowner's rights in private real property because this rulemaking does not burden (constitutionally); nor restrict or limit the

owner's right to propenty and reduce its vaiue by 25% or more

beyond that which would otherwise exist in the absence of the

regUlations. In other words, the rule does not affect private property in a manner that restricts or limits an owner's right to the

propenty that would olt1erwise exist in the absence of a governmental action. ConsequenUy, this ruiemaking action does not

meet the definition of a takings under Texas Government Code,

§2007.002(5).

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking action relates

to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code,

§§33.201 et seq.), and commission rules in 30 TAC Chapter 281,

Subchapter B, concerning Consistency with the Texas Coastal

Management Program. As reqUired by §281.45(a)(3) and 31

TAC §505. 11 (b)(2), relating to Actions and Ruies Subject to the

Coastal Management Program, commission rules governing air

pollutant emissions must be consistent with the applicable goals

and policies of the CMP. The commission reviewed this action for

consistency with the CMP goals and policies in accordance with

the rules of the Coastal Coordination Council and detenmined

that the action is consistent wilt1the applicable CMP goals and

policies.

The CMP goal applicabie to this proposed rulemaking action is

the goal to prote~ preserve, and enhance the diversity,'quality,

quantity, functions, and values of coastal natural resource areas

(31 TAC §501.12(1». The proposed amendment will indirectly

benefit the environment because it clear1y defines the significant

emission thresholds for particulate emissions and it will continue

to be evaluated for compliance not to exceed significance levels Which will ensure that there will be fewer adverse impacts to

public health and the environment. The CMP poiicy applicabie to

this rulemaking action is the policy that commission rules com~

ply with federai regulations in 40 CFR, to protect and enhance air

quality in the coastal areas (31 TAC §501.32). Therefore, in accordance with 31 TAC §505.22(e), the commission affinms that

this rulemaking action is consistent with CMP goals and policies.

Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address iisted under the

SUBMITTAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

There shouid be no effect on facilities SUbject to the Federal Operating Permits Program since APD is currently conducting reviews of sources subject to PSD and minor NSR that meet federal definitions and requirements. Permit holders may need to

conduct an evaluation and determine if a revision to a Federal

Operating Penmit is needed to update lt1e applicable requirements.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal In

Austin on December 13,2010, at 10:00 a.m. in Building E, Room

201S, at the commission's central office located at 12100 Park

35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present

oral statements when called upon in order of registration. Open

discussion will not be permitted during the hearing; however,

commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommoda~

lion needs who are planning to attend the hearing should contact

Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests shouid be made as far in advance as possible.

35 TexReg 10160 November 19,2010 Texas Register
SUBMITTAL OF COMMENTS

Written comments may be submitted to Devon Ryan, Me

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: http://www5.tceq.state.tx.usJrulesJecommentsJ.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should reference

Rule Project Number 2010-020-101-PR. The comment period

closes December 20, 2010. Copies of the proposed rulemaking can be obtained from the commission's Web site at

http://www.tceq.state.tx.usJnav/rulesJpropose_adopt.html. For

further information, please contact Johnny Bowers, Air Permits

Division, at (512) 239-6770.

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

TWC; §5.1 03, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to· carry out its powers and duties 'under the'TWC; and

under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the poiicy and purposes of the Texas Clean Air

Act. The amendment is also proposed under THSC, §382.002,

concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent

with the protection of public health, general welfare, and physical

property; §382.003, concerning Definitions; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning

State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control

of the state's air; §382.051, concerning Permitting Authority of

Commission: Rules, which authorizes the commission to issue

a permit by rule for types of facilities that will not significantly

contribute air contaminants to the atmosphere; §382.0513, concerning Permit Conditions, which authorizes the commission to

establish and enforce permit conditions; and §382.0514, concerning Sampling, Monitoring, and Certification.

This rulemaking implements THSC, §§382.002, 382.003,

382.011,382.012,382.051,382.0513, and 382.0514.

§J06.4. Requirementsfor Permitting by Rule.

(a) To qualify for a permit by rule, the following general requirements must be met.

(1) Total actual emissions authorized under pennit by rule

from the faeility shall not exceed 250 tons per year (tpy) of earbon

monoxide (CO) or nitrogen oxides (NO.); or 25 tpy of volatile organic

compounds (VOC) or sulfur dioxidc (Sal) or inhalable particulate matter (PM): or 15 tpv of particulate matter with diameters of 10 microns

or less (PM .): or 10 tpy of particulate matter with diameters of2.5 microns or less (PM"J. [f¥M,.,.1]; Or 25 tpy ofany other air contaminant except carbon dioxiae. water, nitrogen, methane, cthane, hydrogen, and

oxygen.

(2) Any facility or group of facilities, which constitutes a

new major stationary source, as defined in §116.12 ofthis title (relating

to Nonattainment and Prevention of Signifieant Deterioration Reviev.

Definitions), or any modification whieh constitutes a major modification. as defined in §116.12 of this title, under the new source reviev.

requirements of the Fcderal Clean Air Act (FCAA), Part D (Nonattainment) as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder, must meet the permitting requirements

ofChapter 116. Subchapter B ofthis title (relating to Nev.' Source Review Permits) and cannoL qualify for a pennit b)' rule under this chapter.

Persons claiming a pennit by rule under this chapter should see the requirements of §1] 6.150 of this title (relating to New Major Source or

Major Modification in Ozone Nonattainment Areas) to ensure that any

applicable netting requirements have been satisfied.

(3) Any facili~' or group of faeilities, which constitutes a

new major stational)" source, as defined in 40 Code of Federal Regu~

lations (CPR) §52.2], or any change whieh eonstitutes a major modification, a" defined in 40 CFR §52.2l. under the new source review

requirements of the FCAA. Pan C (Prevention of Signifieant Deterioration) as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder. must meet the permitting requirements

ofChapter 116, Subehapter B ofthis title and cannot qualify for a permit by rule under this chapter.

(4) Unless at least one faeility at an aceount has been subjectto publie notifieation and comment as required in Chapter 116, Subchapter B or Subchapter D ofthis title (relating to New Source Review

Permits or Permit Renewals). total aetual emissions from all facilities

pennitted by r.ule at an account shall not exceed 250 tpy ofCO or NO;.:;

or 25 tpy of VOC or SO~ or PM [PM11I]; or ] 5 to\' of PMI.: or 10 tpy

of PM" ..;. or 25 tpy of any other air contaminant except caroon dioxide.

water. nitrogen. methane. ethane, hydrogen, and oxygen.

(5) Construction or modifieation of a facilit), commenced

on or after the effeetive date ofa revision ofthis section or the effective

date of a revision to a specific pennit by rule in this chapter must meet

the revised requirements to qualify for a permit by rule.

(6) A facilit)· shall comply with all applicable provisions

ofthc FCAA. §11] (Federal New Source Performance Standards) and

§1l2 (Hazardous Air Pollutants). and the new source rcview requirements of the FCAA, Part C and Part D and regulations promulgated

thereunder.

(7) There are no permits under the same commission aecount number that contain a condition or conditions precluding the use

of a pennit by rule under this ehapter.

(8) The proposed facility or group of facilities shall obtain

allowanees for NO;.: ifthey are subject to Chapter 101, Subchapter H,

Division 3 ofthis title (relating to Mass Emissions Cap and Trade Program).

(b) No person shall eircUJnvent by artifieiallimitations the requirements of §1]6.]] 0 of this title (relating to Applicability).

(c) The emissions from thc facility shall comply with all rules

and regulations of the commission and with the intent of the Texas

Clean Air Act nCAA}. including protection of health and property of

the public, and all emissions control equipment shall be maintained in

good condition and operated properly during operation ofthc facility.

(d) Facilities permitted by rule under this chapter are not ex~

empted from any pennits or registrations required by local air pollution

control agencies. Any such requirements must be in accordance with

TCAA,. §382.] 13 and any other applicable law.

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 November 5,

2010.

TRD-201006333

PROPOSED RULES November 19,2010 35 TexReg 10161
Robert Martinez

Director, Environmental Law DiVision

Texas Commission on Environmental Quality

Earliest possible date of adoption: December 19, 2010

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

CHAPTER 117. CONTROL OF AIR

POLLUTION FROM NITROGEN COMPOUNDS

SUBCHAPTER D. COMBUSTION

CONTROL AT MINOR SOURCES IN

OZONE NONATTAINMENT AREAS

DIVISION 2. DALLAS-FORT WORTH

EIGHT-HOUR OZONE NONATTAINMENT

AREA MINOR SOURCES

30 TAC §117.2110

The Texas Commission on Environmental Quality (commission)

proposes an amendment to §117.2110.

If adopted, amended §117.2110 will be submilted to the United

States Environmental Protection Agency (EPA) as a revision to

the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

On April 27, 2010, Ameresco of Texas (petitioner) submitted

a petition for rulemaking requesting an amendment to Chapter 117. Subchapter D. Division 2, §117.2110 for the Dallas-Fort

Worth (DFW) 1997 eight-hour ozone nonattainment area. The

commission approved the petition for rulemaking on June 16,

2010, and issued an order on June 22,2010, directing the executive director to examine the issues in the petition and to initiate

rulemaking. Currently, §117.2110 limits nitrogen oxides (NO,)

emissions from stationary gas-fired, lean-burn engines installed,

modified. reconstructed, or relocated on or after June 1, 2007, to

0.60 grams per horsepower-hour (glhp-hr) if fired on landfill gas

and 0.50 glhp-hr for all other iean-burn engines. The proposed

change would expand the emission specification for lean-burn

engines fired on landfill gas to include lean-burn engines fired on

biogas at minor sources NO, in the OFW 1997 eight-hour ozone

nonattainment area.

Landfill gas and other biogas are produced from anaerobic digestion or decomposition of organic matter and have similar fuel

and combustion characteristics. Both landfill gas and other biogas can contain contaminants such as SUlfur, chlorine, and silicon, which are present in other gaseous fuels. Consequently,

engines fired on landfill gas and other biogas can have technological feasibiiity issues with regard to the installation of a NO,

control catalyst because these contaminants can result in catalyst failure or deactivation in hours or days. The technological

feasibility issues with regard to the installation of a NO, control

.. catalyst is the basis for the 0.60 glhp-hr emission standard in

the current rule and the justification for the proposed expansion

of the existing emission specification to include lean-burn engines fired on biogas at minor sources of NOx in the DFW 1997

eight-hour ozone nonattainment area.

Demonstrating Noninterference under Federal Clean Air Act,

Section 110(1)

• • •

The commission prOVides the following information to demonstrate Why the proposed change to expand the emission specification in §117.2110(a)(1)(B)(ii)(I) will not negativeiy impact the

status of the state's attainment with the 1997 eight-hour ozone

National Ambient Air Ouality Standard (NAAOS), will not interfere with control measures, and will not prevent reasonable further progress toward attainment of the ozone NAAOS. The commission acknowledges that the DFW area failed to altain the

1997 eight-hour ozone NAAOS by the June 15, 2010, attainment

deadiine based on monitoring data; however, the proposed rule

change will not adverseiy affect the ability of the DFW area to

attain the 1997 eight-hour ozone NAAOS for the reasons discussed in this preamble.

The requirement for reasonable notice and public hearing will be

satisfied through a public hearing scheduled for December 14,

2010. The pUblic comment period will begin November 19, 2010,

and end December 20,2010.

On May 23, 2007, as part of the DFW attainment demonstration, the commission adopted a new Chapter 117, Subchapter

D, Division 2 with new emission control requirements for minor

industrial, commercial, or institutional sources of NOx in the DFW

1997 eight-hour ozone nonattainment area. Subchapter D. Division 2 requires owners or operators of minor sources of NO~ in

the DFW 1997 eight-hour ozone nonattainment area to reduce

NOx emissions from affected stationary internal combustion engines. A minor source of NO~ in the DFW 1997 eight-hour ozone

nonattainment area is any stationary source, or group of sources

located within a contiguous area and under common control, that

emits or has the potential to emit less than 50 tons per year of

NO,.

One source category newly regUlated under Chapter 117

during the 2007 rulemaking was lean-burn engines at minor

sources. The current applicable NOx emission specification in

§117.211 0(a)(1 )(B)(ii)(lI) for gas-fired lean-burn engines using

gaseous fuels other than landfill gas that are installed. modified,

reconstructed. or relocated on or after June 1. 2007, is 0.50

glhp-hr. During the 2007 rulemaking, no iandfill gas-fired engines were identified in the emissions inventory in the counties

impacted by the proposed rule; however, the emission specification of 0.60 glhp-hr for gas-fired engines fired on iandfill gas

established by §117.2110(a)(1)(B)(ii)(I) is consistent with the

emission specification for this category of engines in the Houston-Galveston-Brazoria 1997 eight-hour ozone nonattainment

area.

In the 2007 Chapter 117 rulemaking for the DFW 1997 eight-hour

ozone attainment demonstration, no gas-fired engines fired on

biogas or other non-landfill gaseous fuels were relied upon for

creditable reductions for the SIP. Therefore, if the petitioner's

proposed change is adopted. allowing the siightly higher emission specification of 0.60 glhp-hr on gas-fired engines fired on

other biogas fuels would not result in a loss of any SIP creditable reductions for the DFW 1997 eight-hour ozone nonattainment area.

The proposed change is limited to a narrow category of stationary gas-fired engines with NO~ controls that were not relied upon

in the DFW 1997 eight-hour ozone attainment demonstration

adopted in 2007, and the resulting change in future NO, emissions is negligible. Furthermore, if the proposed rulemaking is

not adopted and the petitioner is notable to comply with the 0.50

g/hp-hr emission limit or purchase credits to offset the surplus

emissions, the company may be forced to abandon the project.

This outcome could actually result in a net NO~ emissions in35 TexReg 10162 November 19, 2010 Texas Register
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 and Preventing Pollution

PUBLIC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTERS 101 AND 106

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to

receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC)

Chapters 101, General Air Quality Rules, and 106, Permits By Rule, §101.1 and §106.4, under the

requirements ofTexas Health and Safety Code, §382.0l7; Texas Government Code, Chapter

2001, Subchapter B.

The proposed rulemaking would add specific definitions related to particulate matter with

diameters less than 2.5 micrometers (PM'.5) regulation and address known requirements for

implementation.

The commission will hold a public hearing on this proposal in Austin on December 13, 2010, at

10:00 a.m. in Building E Room 201S, at the commission's central office located at 12100 Park 35

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

persons. Individuals may present oral statements when called upon in order of registration.

Open discussion will not be permitted during the hearing; however, commission staff members

will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to

attend the hearing should contact Charlotte Horn, Office ofLegal Services at (512) 239-0779.

Requests should be made as far in advance as possible.

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:

http://www5.tceq.state.tx.llS/rules/ecomments/. File size restrictions may apply to comments

being submitted via the eComments system. All comments should reference Rule Project
Number 2010-020-101-PR. The comment period closes December 20, 2010. Copies ofthe

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

http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please

contact Johnny Bowers, Air Permits Division, (512) 239-6770.
WRITTEN AND 

ORAL TESTIMONY 
Reference Number

W-l

W-2

W-3

INDEX OF WRITTEN TESTIMONY

Submitted By

An individual citizen

Baker Botts L.L.P., on behalfofthe Texas Industry Project

The United States Environmental Protection Agency
7607 Meadowview Lane

Austin, TX 78752

November 12,2010

Devon Ryan

MC205

Office ofLegal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, TX 78711-3087

Dear Ms. Ryan:

I am writing concerning the proposed environmental regulation in Rule ProjectNUmber

20l0-020-lOl-PR. I strongly support the rule change to bring the State ofTexas in line

with Environmental Protection Agency's (EPA) Federal Clean Air Act to protect the

public health.

Ifthe TCEQ does not implement this rule change, Texas will not be able to meet some

parts ofthe EPA's new standard. The TCEQ has a legal and ethical obligation to protect

its citizens' health through environmental regulations.

Exposure to particulate matter 2.5 micrometers (PM 2.5) has a negative affect on the

public's health resulting in respiratory problems. Smaller particles have a greater negative

affect as they can travel further into the lungs, having a particularly damaging affect on

the elderly and children.

I hope the TCEQ implements the new more stringent PM 2.5 and does not take the

allowed state implementation plan of 10 micrometers or less. In addition, I would like to

see some suggested guidance in this proposed rule on formation ofPM 2.5 from

photochemical interaction.

Sincerely,

~.cs=;. Elena Capsuto, CHMM
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12/20/2010 11:14 FAX

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DUBAI

HONG KONG

HOUSTON

lONDON

M05CON

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WA,SHINGTON Karhl....n E, Walr

TEL ..1713.229.2106

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TEl +1713.229.1234

FAX +171:l.229,152~

__.bokerbo.1J.COITl

ONE SHEll PlAZA

910 lOUISIANA

HOUSTON, TEXAS

77002-4995

005580.0135

BY FACSIMILE

December 20, 2010

BAKER BOlTS LLl»

Ms. Devon Ryan. M~ 205

Office of Legal Services

Texas Commission on Environmental Quality

P.O. Box 13087 .

.Austin, Texas 78711-3087

(512) 239-4808

Re: Comments on Rule Project No. 2010-020~101-PR

Dear Ms, Ryan:

The TeKaS Industry Project ("TIPt') appreciates the opportunity to provide

comments on Texas Commission on Environmental Quality's (ClTCEQI» proposed revisions to

definitions in 30 Texas Administrative Code Chapter 101 and the Permit by Rule provisions in

30 Texas Administrative Code Chapter 106. TIP understands that TCEQ is making this proposal

to implem.ent EPA requirements regarding particulate matter with an aerodynamic diameter less

than or equal to a nominal 2.5 micrometers ("PM~,s''). TIP is comprised of 63 companies in the

chemical~ refining, oil and gas, electronics, forest products, terminal~ electric utility, and

transportation industries with operations in Texas, l

TIP opposes the proposed ~endments to 30 Texas Administrative Code Chapter

101 and 106 at this time. TCEQ acknowledges in the preamble to this proposal that EPA is

continuing to assess test methods for measuring different types of particulate matter. TCEQ

"presume[s]n that EPA will be promulgating test methods in the future by EPA for condensable

TIP members participating in these commenb a.n:: Albemarle Corporation, Arkema Inc" Asc~nd

performance Materials LLC. BASF Corporation, BP, Celanese Chemicals, Ltd.• CcnterPoint Energy Houston

Electric, LLC, Chevron Corporation. Chevron Phillips Chemical Company LP, CITGO Petroll:i1.lm Corporation,

ConocoPhillips. DCP Mfd$tream, Ll..C, Degussa E.ngineered Carbons, LP, Delek Refining Ltd.• Dixie Chemical

Company, Inc., Dow Chemical Company, Thc Dynegy Inc., Eagle Rock Energy, Eastmlm Chemical Company, E, I.

Du Pont de Nemours & CompllIlY, Enter,gy Texas, Enterprise PrOQucts Operaling LLC, Exolon Power Texas,

Exx.onMobil Chemical Company, Flrestou Polymers, LLC. GB Biosciences Corporation, Halliburton Company,

Hunts!n!lll corpoI11t1on, TNEOS NOVA LLC. Intercontinental Terminals Company, International Paper Company,

Intlllmlitional Power, Kinder Morgan Li'lLlids Terminals, LLC, LANXESS Corporation, LBC Howton, LP, LyondelJ

Cbomical Company, Marathon Petroleum CQIIlPiIllY LLC, Mea!iWestvaco Corponrtion. Merisol USA. L.L.C., NRG

Tex.as PowerLLC, Odfjell Tcrminilis (Houston) LP, Oiltanking Holding USA. Inc.• Pllli~dona Refining Syst:m,lnc.,

PL Propylene, Praxair, Inc., Rohm and Haas Te;o.:iU, Incorporated, Shell Oil CompiiIIlY. Shintech, Inc., Sterling

Chemii::ah" Inc., Stolthavan Houston Inc., Suez Energy North America, TARGA, Temple~lnland Inc" Tex~s

Instruments Jncorporated, TPC Gro1.lp, Total Petroch:micals USA, Inc.• Union Pacific ~i1TOad Compatly, Vale.o

Energy Corporation, Vopak Logistics North America., Inc.. Western Refining Co., L,P. .~

HOUD2;1216S27.1
12/20/2010 17:14 FAX

BAKER BOITS LL.

Ms. Devon Ryan ·2· December 20, 2010

PMz.s, Those test methods, however, have not yet been approved, so this rulemaking is

premature.

, At this time there are no federally approved test methods for measuring PM2,5.

While the EPA has proposed changes to existing PM test methods (EPA Method 20lA and

Method 202) in order to more accurately measure PM2,s, EPA recognized in this proposed rule

that there are technical issues that need to be resolved when using such methods. 74 Fed. Reg.

12,970-13,012 (March 25,2009). A review ofthe various comments submitted far this proposed

rule also demonstrates the significant teclmical issues that need to be resolved associated with

EPA's proposal to use an updated Method 20lA and Method 202 for measuring PM2.

s. For

example, several commenters noted the inappropriateness of using the proposed Method 20lA

for stacks with high moisture content because the waler droplets are larger than the cut size for

the PM2.5 sizing device. For these types ofstacks, there is a need for an alternative method other

than just reverting to using EPA Method 5 and asswning all PM is PM2,5 as proposed by EPA.

Using EPA Method 5 and assuming all measured PM is PM2.5 greatly overestimates the

emissions from these sources. There are also significant technical concerns over using either

Method 20lA or Method 202 for emission sources with very low PM emissions, such as gasfired furnaces. Lastly, the rule proposal comments reflect a strong desire for EPA to consider

other PM2.s measurement approaches. such as dilution-based sampling methods to be able to

more accurately measure PM2.5 emissions, TIP has concerns with sources being required to

perform an emission test to demonstrate compliance with a PM2.s PSD pennit emission limit

when there are no federally approved methods, and significant technical issues remain associated

with the test methods for measuring PMz.s,

Further, once EPA does promulgate test methods, TCEQ should allow regulated

entities to use test methods that are shown to be equivalent rather than limiting sources to only

the method or methods promulgated by EPA.

Finally, EPA issued additional PM.z.s rules on October 20, 2010, 73 Fed. Reg.

20,586, establishing significant impact levels and de minimis monitoring levels for PM2,5. This

proposal does not address the concepts established in that rulemaking.

For all these reasons, TCEQ should postpone this proposed rulemaking,

For further information, please do not hesitate to contact me.

rF:~tJ~ Kathleen E. Weir

HOU02:1216,.7,1
-,..... ,... !~ I, ..~'--..; 1 '1 2010

Ms. Devon Ryan

Office of Legal Services (MC 205)

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

RE: EPA Comments on Rule Project Number 2010-020-101-PR

Dear Ms. Ryan:

Thank you for providing us the opportunity to review and comment on the

proposed revisions to the provisions for the regulation of particulate matter with an

aerodynamic diameter equal to or less than 2.5 micrometers (PM2.S). This includes

proposed revisions to 30 TAC 10 1.1 and 106.4.

In general, we appreciate the State's proposed revisions to 30 TAC 101.1 to

included definitions relating to PM2.s and to 30 rAC 106.4 relating to revisions to thc

PBR thresholds to match PSD and N'NSR for particulate matter with an aerodynamic

diameter equal to or less that 10 micrometers (PMIO) and PM2,;. However, we request

that the TCEQ also address the comments and concerns described below.

In 30 TAC 101.1(76)(A), the definition of "direct PM emissions" is unclear. This

definition is similar to, but not identical to the definitions of "Direct PM2.5" under 40

CFR 51.1000. Texas' proposed definition appears to limit the term to "elemental carbon

from diesel engines or fire activities, or condensable particles from gasoline engines. The

federal definition defines the term to include elemental carbon, directly emitted organic

carbon, directly emitted sulfate, directly emitted nitrate, and orher inorganic particles

(including but not limited to crustal material, metals, and sea salt). TCEQ must either use

the federal definition or provide a demonstration that its proposed definition is as

stringent as or more stringent that then federal definition.

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In 30 TAC 101.1 (76)(B), the definition of "secondary PM emissions is" unclear.

This definition is similar to, but not identical to the definitions of "PM".; precursor" in 40

CFR 51.1000. Texas' proposed definition appears to limit the term to "sulfate and

nitrate." The federal definition defines the term of "PM".; precursor" to include sulfur

dioxide (S02). oxides ofnitro!!en (NO,,). volatile organic compounds. and ammonia.

TCEQ must either use the federal defmitiolJ or provide a demonstration that its proposed

definition is as stringem as or more slringent that then federal definition. If T~xas

excludes NO" as a PM2.5 precursor it must provide a demonstration that NO" is not a

significant contributor to ambient PM2.5. Texas may include volatile organic compounds

and ammonia and PM2.; precursors if Texas has identified these substa.T1ces as significant

contributors to ambient PM25•

It is also important lO note that we have also proposed rulemaking, for repealing

thc Grandfathcring provisions, (Implementation ofthe New Source Review (NSR)

Program for Particulate Maner Less Than 2.5 Micrometers (PM2;); Notice of Proposed

Rulemaking to Repeal Grandfathering Provision and End the PMIO Surrogate Policy, 75

FR 6817). EPA proposed lO end the use ofthe 1997 PMto Surrogate Policy prior to the

May [6,1011 deadline, but has not yet taken final action. We also issued a rcccnt order

in response to a Title V petition for Louisville Gas and Electric Company (LG&E);

Trimble County, Kentuc\,.-y; Title VrpSD Air Quality Permit V-01-043 Revisions 2 and 3,

Petition No. IV-2008-3, that discussed use ofPM10 as a surrogate for PM2.;. We remind

TCEQ and sources in Texas to carefully consider the case law and the limits of the

Surrogate Policy discussed in the LG&E petition decision to deteI1lline what information

and analysis needs to be included in tne permit application and pennit record before

relying on the Surrogate Policy.

Finally, regarding the proposed changes to 30 TAC 106.4, we remind TCEQ that

any source subject to the Greenhouse Gas pCI1Ilining requirements cannot rely upon a

Permit by Rule but must perform the Major NSR applicability deteI1llination.

Please note that these comments do not constitute final determinations concerning

approvability ofthe revisions to the Texas SIP. We are providing these comments to

assist TCEQ in the development ofregulatory language.
3

We look forward to working with the Texas Commission on Environmental

Quality (TCEQ) as you move forward in responding to these comments and finalizing the

revisions to the Texas SIP. If you have any questions, please call Mr. Stanley M. Spruiell

of my staffa! (214) 665-7212.

Sincerely yours,

~~1JD~'IS'

Thomas H. Diggs

Associate Director for Air Programs

Multimedia Planning and

Permitting Division
INDEX OF ORAL TESTIMONY

Public Hearing

December 13, 2010, in Austin

TCEQ received no oral testimony for this rulemaking
- 1 -

Texas Commission on Environmental Quality

Public Hearing Registration

Date: December 13,2010

Time: 10:00 AM

Rule Project No.: 201 0-020-1 01-PR

Short Title: Regulation of PM2.5

Location: TCEQ Complex, 12100 Park 35 Circle, Building E, Room 201S, Austin, Texas

Concerning: Proposed revisions to 30 TAC Chapters 101 and 106

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony?

(Please Print) (Circle One)

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. ,
HEARING OFFICER REPORT

I am the hearing officer assigned to conduct the public hearing regarding Rule

Project No. 2010-020-101-PR concerning revisions to 30 Texas Administrative

Code Chapters 101 and 106 319, General Regulations Incorporated into Permits,

§319.302 and §319.303.

. I~

A public hearing was scheduled :in Austin on December~ 2010, at 10:00 .A..M: in

Bldg B, Room 201.A, at the commission's central office located at 12100 Park 35

Circle.

·At 9:30 .A..M:, the room was open and TCEQ staff members were available to

discuss the proposal. At 10:00 AM, TCEQ staff and a court reporter were present

and ready to open the hearing for public comment. After waiting for 10 minutes,

no one had provided comments on the record. Therefore, .the public hearing was

not formally opened for commentand a transcript was not prepared.

Hearing Officer
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality

Interoffice Memorandum

To:

Thru:

From:

Docket No.:

Subject:

Commissioners

LaDonna Castaiiuela, Chief Clerk

Mark R. Vickery, P.G. Executive Director

Richard A. Hyde, P.E., Deputy Director

Office of Permitting and Registration

201O-0711-RUL

Commission Approval for Rulemaking Adoption

Chapter 101, General Air Quality Rules

Chapter 106, Permits By Rule

Regulation of Particulate Matter with diameters

less than 2.5 micrometers (PM2 ,s)

Rule Project No. 201O-020-101-PR

Date: April 1, 2011

Background and reason(s) for the rulemaking:

The Air Permits Division (APD) has proposed amendments to TCEQ rules found in 30

Texas Administrative Code (TAC) Chapters 101 and 106. The amendments, proposed in the

Texas Register on November 19, 2010, are necessary to implement changes to the Federal

Clean Air Act (FCAA) and United States Environmental Protection Agency (EPA)

regulations regarding particulate matter \\ith an aerodynamic diameter less than or equal

to a nominal 2.5 micrometers (PM2 ,5)' EPA has indicated that states with state

implementation plan (SIP) approved programs may continue to implement a PMlO

program as a surrogate to meet the Prevention of Significant Deterioration (PSD) program

requirements for PM2.S under the 1997 PM10 Surrogate Policy for up to three years (until

May 2011) or until the individual re"ised state PSD programs for PM2 ,5 are approved by

EPA, whichever comes first. In an effort to ensure the TCEQ meets regulatory

requirements ofthe FCAA, APD has proposed amendments for adoption to add specific

definitions related to PM2.

5 regulation and to address known requirements for

implementation.

Scope ofthe rulemaking:

The adopted amendments to Chapters 101 and 106 will add specific definitions related to

PM2 .

5 regulation and address known requirements for implementation. In addition, the

adopted rulemaking will provide guidance as TCEQ implements PM2.5 as a PSD

requirement for the New Source Review (NSR) program. The guidance includes, but will

not be limited to, direct PM2•

S emissions, precursor pollutants, definitions, and references

to federal requirements. APD staff will make the necessary updates to PSD guidance

documents for agency staff as well as external customers.
Commissioners

Page 2

April 1, 2011

Re: Docket No. 2010-0711-RUL

A.) Summary ofwhat the rulemakingwill do:

1. Replace Figure 30 TAC §101.1(2S) concerning de minimis impact levels with a reference

to 40 Code of Federal Regulations §S1.16S(b)(2).

2. Add definitions for PMlO, PM2 .

S, direct and secondary PM emissions.

3. Add the applicable significant emission thresholds for PM, PMlO, and PM2 .

S.

B.) Scope required by federal regulations or state statutes:

The adopted rules are intended to ensure the TCEQ meets regulatory requirements ofthe

FCAA once the revisions are submitted to the EPA for approval to the SIP.

C.) Additional staffrecommendations that are not required by federal rule or

state statute: There are no additional staffrecommendations.

Statutory authority:

Statutory authority includes Texas Water Code, §S.102, General Powers, §S.103, Rules, and

§S.lOS, General Policy; and Texas Health and Safety Code, §382.017, Rules, §382.002,

Policy and Purpose, §382.011, General Powers and Duties, §382.012, State Air Control

Plan, §382.0S1, Permitting Authority ofthe Commission, Rules, §382.0S13, Permit

Conditions, §382.0S1S, Application for Permit, and §382.0S18, Preconstruction Permit.

Effect on the:

A.) Regulated community: Permit applicants will have to specifically quantify and

address controls and impacts for PM2.S as a PSD and minor NSR requirement. This may

be accomplished through various TCEQ forms and tables, and modeling as applicable.

B.) Public: There will be no effect on the public since APD is currently conducting

reviews ofsources subject to PSD and minor NSR that meet federal definitions and

requirements.

C.) Agency programs: There will be no effect on agency programs since APD is

currently conducting reviews ofsources subject to PSD and minor NSR that meet federal

definitions and requirements.

This adopted rulemaking will not create a group of affected persons who were not affected

previously. In addition, it should not have fiscal effects.

Stakeholder meetings:

No stakeholder meetings have been held. However, standard notice ofthis action and an

opportunity for public comment was provided after proposal.
Commissioners

Page 3

April!, 2011

Re: Docket No. 2010-071l-RUL

Public comment:

A total of 3 comment letters were received and no oral comments were made at the public

hearing. The Texas Industry Project is opposed to the rule project and was concerned that

EPA had not finalized approved test methods for measuring different types of PM and

condensable PM2 .

5• EPA appreciated the proposed revisions but had concerns about the

definitions for "Direct PM Emissions" and "Secondary PM Emissions." An individual

supported this rule project.

Significant changes from proposal:

Revised definitions for "Direct PM Emissions" and "Secondary PM Emissions" to be

consistent with definitions for "Direct PM'.5 Emissions" and "PM2 .

5 Precursor" as reflected

in 40 CFR §Sl.lOOO as specified by EPA's comment.

Potential controversial concerns and legislative interest remaining after

proposal and public comment:

The adopted amendments included in this rulemaking will be consistent \\ith current EPA

presumptions and APD policy regarding NSR programs. There is no known legislative

interest at this time. However, the current NSR program does not address secondary

formation of PM2 .

5•

In the Final Rule for increments, significant impact levels (SILs), and significant

monitoring concentration (SMC), EPA removed the reference to "direct" PM2.

5 emissions,

to allow for consideration of precursor emissions when determining whether the air quality

impact of a major new source or modification would be less than the PM2 .

5 SILs. EPA has

indicated that estimating techniques are being developed that will be able to be applied to

the PM2 .

5 analysis in the near future.

EPA is concerned that a large fraction of PM2.

5 monitored in ambient air is formed by

photochemical interaction of precursor pollutants and the lack oftechnical tools to predict

the formation ofsecondary PM2 .

5• Remo\ing the reference to direct emissions in the rule,

also allows EPA to include precursor emissions through guidance without notice and

comment required for rulemaking. Therefore, EPA may impose additional technical

requirements in the future such as photochemical modeling to obtain concentrations that

could include direct and secondarily formed PM2.S in the source impact and air quality

analyses for PSD and minor NSR permitting compliance demonstrations.

Does this rulemaking affect any current policies or require development of

new policies?

APD is currently conducting reviews ofsources subject to PSD and minor NSR that meet

federal definitions and requirements. There will be necessary updates to PSD guidance for

staff and external customers.
Commissioners

Page 4

April 1, 2011

Re: Docket No. 2010-0711-RUL

What are the consequences ifthis rulemaking does not go forward? Are there

alternatives to rulemaking?

The TCEQ will not meet the regulatory requirements ofthe FCAA.

Key points in adoption rulemaking schedule:

• Texas Register proposal publication date: November 19, 2010

• Anticipated Texas Register publication date: May 6, 2011

• Anticipated effective date: May 12, 2011

• Six-month Texas Register filing deadline:. May 19, 2011

Agency contacts:

Johnny Bowers, Rule Project Manager, 239-6770, Air Permits Division

Erin Selvera, StaffAttorney, 239-6033

Charlotte Horn, Texas Register Coordinator, 239-0779

cc: Chief Clerk, 2 copies

Executive Director's Office

Susana M. Hildebrand, P.E.

Anneldsal

Curtis Seaton

Ashley Morgan

Office of General Counsel

Johnny Bowers

Charlotte Horn
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 201O-020-101-PR

Page 1

The Texas Commission on Environmental Quality (TCEQ or commission) adopts the

amendment to §101.1.

The amendment is adopted with changes to the proposed text as published in the

November 19, 2010, issue ofthe Texas Register (35 TexReg 10147) and will be

republished.

The amendment will be submitted to the United States Environmental Protection

Agency (EPA) as a revision to the state implementation plan (SIP).

Background and SUDlmary ofthe Factual Basisfor the Adopted Rule

This rulemaking adds clarifying definitions to TCEQ rules necessary for proper

implementation of new and revised federal regulations regarding the National Ambient

Air Quality Standard (NAAQS) for particulate matter (PM).

On July 18, 1997, the EPA revised the NAAQS for PM to add new standards for fine

particles using PM with an aerodynamic diameter less than or equal to a nominal 2.5

micrometers (PM2.5) as an indicator. However, at that time, certain difficulties

regarding implementation ofthe PM2.5 regulations remained, including the lack of

necessary tools to calculate emissions of PM2.5and related precursors, the lack of

adequate modeling techniques to project ambient impacts, and the lack of PM2.5
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 201O-020-101-PR

Page 2

monitoring sites. Therefore, on October 23,1997, EPA issued a memorandum providing

for PM v.ith an aerodynamic diameter less than or equal to a nominal 10 micrometers

(PMlO) to be used as a surrogate for PM2 .

S' EPA reaffirmed use ofthe surrogate policy in

a memorandum dated April 5, 2005.

On November 1, 2005, the EPA proposed regulations to implement the New Source

Review (NSR) program for PM2 .

S' EPA published the bulk ofthe major NSR program

final regulations for PM2.

S on May 16, 2008 (effective on July 15,2008). EPA noted that

this final action, with EPA's proposed rule on increments, significant impact levels

(SILs), and significant monitoring concentration (SMC) when final, will represent the

final elements necessary to implement a PM2.

S Prevention of Significant Deterioration

(PSD) program. EPA published the final rule on increments, SILs, and SMC on October

20,2010 (effective December 20, 2010 for the SILs and SMC, and October 20, 2011 for

the increment demonstration). On February 11, 2010, the EPA proposed two actions

that would end EPA's 1997 policy allowing sources and permitting authorities to use a

demonstration of compliance with the PSD requirements for PMlO as a surrogate for

meeting the PSD requirements for PM2 .

S' In the first action, the EPA proposed to repeal

the "grandfathering" provision for PM2 .

s contained in the federal PSD program. The

provision allows applicants for proposed new major sources and major modifications

that have submitted a complete PSD permit application prior to the effective date of an

amendment to the PSD regulations but have not yet received final'and effective PSD
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 201O-020-101-PR

permit, to continue relying on information already in the application rather than

Page 3

immediately having to amend applications to demonstrate compliance \\ith the new

PSD requirements. In the second action, EPA also proposed to end early the PMIO

Surrogate Policy applicable in states that have an approved PSD program in their SIP.

The three-year transition period for revising the SIP and for use ofthe surrogate policy

ends in May 2011, unless revised by EPA. In an effort to ensure the TCEQ meets

regulatory requirements ofthe Federal Clean Air Act (FCAA), the commission is

adopting amendments to Chapter 101 and 30 TAC Chapter 106, Permits by Rule, to add

specific definitions related to PM2 .

sregulation, and to address the known requirements

for implementation.

Existing federal regulations require both major and minor NSR programs to address any

pollutant for which there is a NAAQS and precursors to the formation ofsuch pollutant

when identified for regulation by the EPA. TCEQ rules outline the requirements for

both major and minor NSR programs under 30 TAC §n6.no, Applicability. This

section requires any person who plans to construct any new facility or to engage in the

modification of any existing facility which may emit air contaminants into the air ofthis

state to obtain a permit under §n6.1n, General Application, or satisfy the conditions for

another authorization type as listed within that section. Chapter n6, Subchapter B,

New Source Review Permits, outlines the general requirements for both minor and

major NSR permits. Specifically, §n6.n1 covers the general application requirements
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. ZOlO-0Z0-101-PR

Page 4

for both major and minor NSR. Minor NSR sources are required to comply with all

sections of §116.111 except §116.111(a)(z)(H) and (I) which only apply to major NSR

(nonattainment and PSD).

For precursors, EPA provided some clarification regarding regulation of PM2.

S

precursors in the May 16, zo08, PM2.

S implementation rule, stating that generally where

scientific data and modeling analyses provide reasonable certainty that the pollutant's

emissions are a significant contributor to ambient PM2.

S concentrations, EPA believes

that pollutant should be identified as a "regulated NSR pollutant" and subject to the

PM2.

S NSR provisions. Conversely, where the effect of a pollutant's emission on ambient

PM2.

S concentrations is subject to substantial uncertainty, such that in some

circumstances, the pollutant may not result in the formation of PM2.

S, or control ofthe

pollutant may have no effect or may even aggravate air quality, EPA generally believes it

is unreasonable to establish a nationally-applicable presumption that the pollutant is a

regulated NSR pollutant subject to the requirements of NSR for PM2.

S• Therefore, EPA

has established certain presumptions regarding the PM2.

S precursors, sulfur dioxide

(S02), nitrogen oxide (NOx), volatile organic compound (VOC) and ammonia.

Specifically, EPA presumes S02 and NOx to be significant contributors to ambient PM2.

S

concentrations in all areas and thus, have termed these pollutants "presumed in,"

meaning requiring regulation as a precursor for PM2.S• Conversely, the final rule does

not require regulation ofVOC or ammonia as a precursor to PM2.

S for the NSR program
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 201O-020-101-PR

because additional research and technical tools are necessary to characterize the

emissions inventories for VOC, and there is considerable uncertainty related to

Page 5

ammonia as a precursor. Therefore, EPA has categorized these pollutants as "presumed

out," meaning not regulated as a precursor for PM2.Sregulation. However, states have

the option to exclude NOx, as a precursor by demonstrating that NOx emissions are not

a significant contributor to ambient PM2.

Sconcentrations in a particular area. In

addition, states have the option ofidentifying VOC and/or ammonia as precursor(s) by

demonstrating that emissions for VOC and/or ammonia are a significant contributor in

an area, and thus, should be subject to major NSR.

Furthermore, in the Final Rule for increments, SILs, and SMC, EPA removed the

reference to "direct" PM2.

Semissions, to allow for consideration of precursor emissions

when determining whether the air quality impact of a major new source or modification

would be less than the PM2.S SILs. EPA has indicated that estimating techniques are

being developed that will be able to be applied to the PM2.

Sanalysis in the near future.

Removing the reference to direct emissions in the rule also allows EPA to include

precursor emissions through guidance without notice and comment required for

rulemaking. Furthermore, EPA may require precursors be included in "photochemical"

modeling to obtain concentrations that could include direct and secondarily formed

PM2.5 in the source impact and air quality analyses.
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EPA has also provided clarification regarding regulation of condensable PM under the

PM2 .

5 regulations stating they will not require states to address condensable PM in

establishing enforceable emissions limits for either PMlO or PM2 .

5 in NSR permits during

the transitional period that ended on January 1, 2011. During this transitional period,

EPA assessed the capabilities oftest methods available for measuring condensable

emissions, publishing a final rule for methods of measuring filterable PMlO and PM2 •

5

and measuring condensable PM emissions on December 21, 2010. The final rule

promulgates amendments to Methods 20lA and 202. The final amendments to Method

20lA add a particulate-sizing device to allow for sampling of particulate matter with

mean aerodynamic diameters less than or equal to PM2 .

5• The final amendments to

Method 202 revise the sample collection and recovery procedures ofthe method to

reduce the formation ofreaction artifacts that could lead to inaccurate measurements of

condensable particulate matter. Additionally, the final amendments to Method 202

eliminate most ofthe hardware and analytical options in the existing method, thereby

increasing the precision ofthe method and improving the consistency in the

measurements obtained between source tests performed under different regulatory

authorities. This final rule became effective on January 1, 2011.

Finally, EPA clarified that there will be no changes to the implementation of Best

Available Control Technology (BACT) requirements for PM2 .

5 at major sources that are

subject to the PSD program. If a new major source will emit, or has the potential to
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emit, a significant amount of a regulated NSR pollutant in an attainment area for that

pollutant, the source must apply BACT for each emissions unit that emits the pollutant.

In addition, if a physical change or operational change at an existing major source will

result in a significant emissions increase and significant net emissions increase of a

regulated NSR pollutant, the source must apply BACT to each proposed emissions unit

experiencing a net increase in emissions ofthat pollutant as a result ofthe physical or

operational change in the unit. Under the PM2.

5 PSD program, these requirements will

apply to direct PM2.

5 emissions; S02 emissions; and NOx emissions, unless states

demonstrate that NOx is not a significant contributor to ambient PM2.

5 concentrations in

that area; and to VOC if identified by a state as a precursor in the PM2.

5 attainment area

where the source is located. Although EPA has specified that direct emissions of PM2.

5

at or above the significant emission rate (SER) would trigger a BACT analysis, EPA has

not specified whether a precursor's emissions above the precursor's SER would trigger a

BACT analysis for PM2.

5 if direct emissions of PM2.5 are below the PM2.5 SER. Therefore,

it is presumed that BACT for direct PM2.

5will apply only if direct PM2.

5 emissions are

significant, and BACT for precursor pollutants will apply only ifthe precursor emissions

equal or exceed the specific SER for the precursor pollutant.

Section Discussion

The commission adopts the amendment to §101.1, Definitions, to remove the figure in

§101.1(2S) providing the de minimis impact levels for S02, PMlO, nitrogen dioxide (N02),
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and carbon monoxide (CO). In its place, the definition will reference 40 Code of Federal

Regulations (CFR) §S1.l6S(b)(2). 40 CFR §S1.l6S(b)(2) provides the significance levels,

above which a major source or major modification would be considered to cause or

contribute to a violation ofthe NAAQS when such source or modification would, at a

minimum, exceed the listed significance levels. In addition, the commission is adopting

changes to §101.1(7S), which currently defines PM. The adoption will move the

definition for PMlO from §101.1(78) to §101.1(7S)(A), and add the definition for PM2 .

5

under §101.1(7S)(B). PM emissions is defined under §101.1(76). This section will be

amended to include §101.1(76)(A) and (B), which will define direct and secondary PM

emissions. The definitions for direct and secondary PM emissions were c!Ianged from

proposal due to EPA's comment. PM2.

5 emissions will be defined under existing

§101.1(78) when the definition for PMlO is moved to new §101.1(7S)(A). These changes

will provide the definitions for PMlO and PM2.

5 emissions and the definitions for direct

and secondary PM emissions which currently do not exist. The definition of PM2 •

5

emissions in §101.1(78) has been amended to address continuing technical issues

associated with the measurement of PM2.

5 in wet gas streams. EPA acknowledged in

promulgating amendments to its particulate matter measurement methods that "using

Method 5 on stacks with entrained moisture and assuming that the catch is PM2.

5 can

potentially overestimate PM2 •

5 concentrations.... Monitoring the emission of PMlO or

PM2.

5 from a wet gas stream is a challenging problem that has not been addressed

successfully despite considerable effort." EPA further notes that state permitting
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authorities have the responsibility to interpret EPA's recommendations regarding wet

gas measurement (December 21, 2010, issue ofthe Federal Register (FR) (75 FR 80,117,

80,126)). Based on these technical issues and the commission's interpretation of EPA's

recommendations, the final language of §101.l(78) has been amended to allow the use of

test methods approved under the SIP or an EPA delegation or approval. Finally, the

federal significant monitoring concentration for PM2.

S, 4 micrograms per cubic meter

24-hour average, also applies to Texas PM2.

S sources.

Final Regulatory Impact Analysis

The commission reviewed the adopted rulemaking in light ofthe regulatory analysis

requirements ofTexas Government Code, §2001.0225 and determined that the adopted

rule does not meet the definition of a "major environmental rule." Texas Government

Code, §2001.0225 states that a "major emironmental 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, a

sector ofthe economy, productivity, competition, jobs, the environment, or the public

health and safety ofthe state or a sector ofthe state." While the purpose of this

rulemaking is to increase protection ofthe environment and reduce risk to human

health, it is not expected that this rulemaking will adversely affect in a material way the

economy, a sector ofthe economy, productivity, jobs, the emironment, or the public

health and safety ofthe state or a sector ofthe state.
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Furthermore, while the adopted rulemaking does not constitute a major environmental

rule, even ifit did, a regulatory impact analysis would not be required because the

adopted rulemaking does not meet any ofthe four applicability criteria for requiring a

regulatory impact analysis for a major environmental rule. Texas Health and Safety

Code (THSC), §200l.0225 applies only to a major environmental rule which: 1) exceeds

a standard set by federal law, unless the rule is specifically required by state law; 2)

exceeds an express requirement ofstate law, unless the rule is specifically required by

federal law; 3) exceeds a requirement of a delegation agreement or contract between the

state and an agency or representative ofthe federal government to implement a state

and federal program; or 4) adopts a rule solely under the general powers ofthe agency

instead of under a specific state law. The adopted rulemaking does not meet any ofthe

four applicability criteria listed in Texas Government Code, §200l.0225 because: 1) the

adopted rulemaking is designed to meet, not exceed the relevant standard set by federal

law; 2) parts ofthe adopted rulemaking are directly required by state law; 3) no contract

or delegation agreement covers the topic that is the subject ofthis rulemaking; and 4)

the adopted rulemaking is authorized by specific sections of THSC, Chapter 382 (also

known as the TCAA), which is cited in the (statutory authority) section.

The specific intent ofthe adopted rulemaking is to amend Chapter 101 to add definitions

necessary for implementation of PM2.

SNSR regulations, and replace current definitions
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with references to federal definitions for efficiency. The preamble to this rulemaking

clarifies how precursors and condensable emissions are addressed, that EPA has made

no changes to the BACT analysis process for PMo.

s, and provides a basis for regulation of

PM2 •

S emissions when the use of PMIO as a surrogate for PM2 .

S is no longer applicable.

Takings Impact Assessment

The commission evaluated the adopted rule and performed an analysis of whether the

adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The

specific purpose of the rulemaking is to facilitate implementation of new federal

regulations under the NSR program. The adopted amendment would substantially

advance this stated purpose by adding definitions to Chapter 101, necessary for

implementation ofthe PM2.

S regulations. The commission's analysis indicates that Texas

Government Code, Chapter 2007 does not apply to the adopted rule because this is an

action that is reasonably taken to fulfill an obligation mandated by federal law, which is

exempt under Texas Government Code, §2007.003(b)(4). Specifically, EPA has

promulgated new NSR regulations for PM2.

S in accordance with 40 CFR §§52.21, 52.24,

51.160 - 51.164, 51.165, 51.165(b), 51.166, and 40 CFR Part 51, Appendix S. TCEQ, as the

administrator ofthe NSR program for Texas, is tasked with implementing the new

federal regulations in accordance with 40 CFR §51.166 and FCAA, §107(d)(I)(A)(ii) or

(iii).
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Nevertheless, the commission further evaluated the adopted rule and performed an

assessment ofwhether the adopted rule constitutes a takings under Texas Government

Code, Chapter 2007. The specific purpose ofthe adopted rule is to facilitate

implementation of new federal regulations under the NSR program. The adopted rule

would substantially advance this stated purpose by adding new definitions to Chapter

101, necessary for implementation ofthe PM2 .

sregulations.

Promulgation and enforcement ofthe adopted rule would be neither a statutory nor a

constitutional taking of private real property. Specifically, the subject adopted

regulations do not affect a landowner's rights in private real property because this

rulemaking does not burden (constitutionally), nor restrict or limit the owner's right to

property and reduce its value by 2S% or more beyond that which would otherwise exist

in the absence ofthe regulations. In other words, the rule does not affect private

property in a manner that restricts or limits an owner's right to the property that would

otherwise exist in the absence of a governmental action. Consequently, this rulemaking

action does not meet the definition of a takings under Texas Government Code,

§2007.002(S).

Consistencywith the Coastal Management Program

The commission determined that this rulemaking action relates to an action or actions

subject to the Texas Coastal Management Program (CMP) in accordance with the
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Page 13

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

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning

Consistency with the Texas Coastal Management Program. As required by

§281.4s(a)(3) and 31 TAC §SOS.11(b)(2), relating to Actions and Rules Subject to the

Coastal Management Program, commission rules governing air pollutant emissions

must be consistent with the applicable goals and policies ofthe CMP. The commission

reviewed this action for consistency with the CMP goals and policies in accordance with

the rules ofthe Coastal Coordination Council and determined that the action is

consistent with the applicable CMP goals and policies.

The CMP goal applicable to this adopted rulemaking action is the goal to protect,

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

natural resource areas (31 TAC §S01.12(l)). The adopted amendment will indirectly

benefit the environment because it will require PM2 .

S emissions to be evaluated for

compliance not to exceed significance levels which will ensure that there will be fewer

adverse impacts to public health and the environment. The CMP policy applicable to

this rulemaking action is the policy that commission rules comply with federal

regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC

§S01.32). Therefore, in accordance with 31 TAC §SoS.22(e), the commission affirms

that this rulemaking action is consistent with CMP goals and policies.
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The commission invited public comment regarding the consistency with the coastal

management program during the public comment period. No comments were received

on the Coastal Management Program.

Effect on Sites Subject to the Federal Operating Permits Program

There should be no significant effect on facilities subject to the Federal Operating

Permits Program since APD is currently conducting reviews ofsources subject to PSD

and minor NSR that meet federal definitions and requirements. Permit holders may

need to conduct an evaluation and determine if a revision to a Federal Operating Permit

is needed to update the applicable requirements.

Public Comment

The commission held a public hearing on December 13, 2010. The comment period

closed on December 20, 2010. The commission received comments from Baker Botts

L.L.P. on behalf ofthe Texas Industry Project (TIP), an individual, and EPA. The

individual and the EPA were in support of the rule project. EPA did suggest changes to

the definitions of "Direct PM Emissions" and "Secondary PM Emissions." TIP was

opposed to the rule project.

Response to Comments

An individual supports this rule project and hopes TCEQ implements the new more
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Rule Project No. 201O-020-101-PR

stringent PM2.

S and does not take the allowed state implementation plan of 10

Page 15

micrometers or less. In addition, the individual would like to see some suggested

guidance in this proposed rule on formation of PM2 .

S from photochemical interaction.

The commission did not make any changes to the rule in response to this

comment. The TCEQ will develop non-rule guidance to address

photochemical modeling.

EPA appreciates the state's proposed revisions but has concerns over the proposed

definitions for "Direct PM Emissions" and "Secondary PM Emissions." EPA states the

definitions are similar to, but not identical to the definitions of "Direct PM2 .

S" and "PM2 .S

precursor" in 40 CFR §51.1000. EPA states that TCEQ must either use the federal

definitions or provide a demonstration that its proposed definition is as stringent as or

more stringent than the federal definitions. IfTexas excludes NOx as a PM2.

S precursor,

it must provide a demonstration that NOx is not a significant contributor to ambient

PM2 .

S' Texas may include VOCs and ammonia and PM2 .

S precursors if Texas has

identified these substances as significant contributors to ambient PM2 .

S'

EPA also noted that they have proposed rulemaking for repealing the Grandfathered

Provisions, Implementation ofthe NSR Program for PM2 .

5; Notice of Proposed

Rulemaking to repeal Grandfathering Provision and the end the PMlO Surrogate policy
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Rule Project No. 201O-020-101-PR

prior to the May 16, 2011 deadline, but has not yet taken final action.

Page 16

EPA also issued a recent order in response to a Title V petition for Louisville Gas and

Electric Company (LG&E), located in Trimble County, Kentucky, that discussed use of

PM,o as a surrogate for PM2.

5• They remind TCEQ and sources in Texas to carefully

consider the case law and the limits ofthe Surrogate policy discussed in the LG&E

petition decision to determine what information and analysis needs to be included in the

permit application and permit record before relying on the Surrogate policy.

The commission did make changes to the proposed text based on the

comment that the definitions for "Direct PM Emissions" and "Secondary

PM Emissions" are similar to, but not identical to the definitions of "Direct

PM2.S" and "PM2.5 precursor" in 40 CFR §51.1000. The proposed definitions

were derived from EPAs Federal Register notice (73 Federal Register

28341, May 16, 2008). The proposed definitions have been revised to be

identical to the definitions of "Direct PM2.S" and "PM2.

S precursor" in 40

CFR §51.1000.

The commission appreciates EPA' comments and continuesto track

developments on case law and EPA's policies concerning PM2.5 issues.
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Page 17

TIP opposes the proposed amendment at this time since EPA has not identified a test

method for measuring different types of PM and condensable PM2.

5• They also state at

this time there are no federally approved test methods for measuring PM2.

5• While EPA

has proposed changes to existing PM test methods in order to more accurately measure

PM2.

5, EPA recognizes there are technical issues that need to be resolved. TIP states that

rule comments reflect a strong desire for EPA to consider other PM2 .

5 measurement

approaches. There are concerns with sources being required to perform an emission

test to demonstrate compliance with a PM2.

5 PSD Permit emission limit when there are

no federally approved methods, and significant technical issues remain associated with

the test methods for measuring PM2.

5• TCEQ should allow regulated entities to use test

methods that are shown to be equivalent rather than limiting sources to only the method

or methods promulgated by EPA. EPA issued additional PM2 .

5 rules on October 20,

2010, establishing significant impact levels and de minimis monitoring levels for PM2 .

5•

TIP is concerned that this proposal does not address the concepts established in that

rulemaking.

The commission did not make any changes to the rule in response to these

comments. This rulemaking is necessary since EPA proposed rulemaking

for repealing the Grandfathered provisions, Implementation ofthe NSR

Program for PM2 •

5 ; Notice ofProposed Rulemaking to repeal

Grandfathering Provision and the end to the PMto Surrogate policy prior to
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Page 18

the May 16, 2011 deadline, which has not been finalized. In efforts to ensnre

the TCEQ meets regulatory requirements ofthe FCAA, the commission is

adopting amendments to add specific definitions related to PM".s regulation

and to address known requirements for implementation.

Subsequent to receipt ofTIP's comments, EPA has published the final rule

on the Methods for Measnrement ofFilterable PMlO and PM2.s and

Measurement ofCondensable PM Emissions (75 Federal Register 80118,

December 21,2010).

This adoption addresses known requirements to date in order to meet the

May 16, 2011 deadline for implementation ofthe PM2.5 requirements and

the end ofthe PMlO Surrogate policy. TCEQ will consider any futnre

rulemaking, as necessary to address futnre state or federal regulatory

requirements.
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Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

The Texas Commission on Environmental Quality (TCEQ, agency, or commission)

adopts the amendment to §106-4.

Page 1

The amendment is adopted without change to the proposed text as published in the

November 19, 2010, issue ofthe Texas Register (35 TexReg 10157) and will not be

republished.

The amended section will be submitted to the United States Environmental Protection

Agency (EPA) as a revision to the state implementation plan (SIP).

Background and Summary ofthe Factual Basis for the Adopted Rule

The commission adopts the amendment to §106-4 to address the applicable significant

emission thresholds for particulate matter (PM), PM 10 micrometers or less (PMlO), and

PM 2.5 micrometers or less (PM2 .

s) to provide clarity to the permitting process for PM.

On July 18,1997, the EPA revised the National Ambient Air Quality Standards (NAAQS)

for PM to add new standards for PM2 .

sas an indicator. However, at that time, certain

difficulties regarding implementation ofthe PM2 .

sregulations remained, including the

lack of necessary tools to calculate emissions of PM2 .

s and related precursors, the lack of

adequate modeling techniques to project ambient impacts, and the lack of PM2 .

s

monitoring sites. Therefore, on October 23,1997, EPA issued a memorandum providing
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Page 2

for PMlO to be used as a surrogate for PM2 .

5• EPA reaffirmed use ofthe surrogate policy

in a memorandum dated AprilS, 2005.

On November 1, 2005, the EPA proposed regulations to implement the New Source

Review (NSR) program for PM2.

5• EPA published the bulk ofthe major NSR program

final regulations for PM2.

5 on May 16,2008 (effective on July 15,2008). EPA noted that

this final action, with EPA's proposed rule on increments, significant impact levels

(SILs), and significant monitoring concentration (SMC) when final, will represent the

final elements necessary to implement a PM2.

5 Prevention of Significant Deterioration

(PSD) program. EPA published the final rule on increments, SILs, and SMC on October

20,2010 (effective December 20, 2010 for the SILs and SMC, and October 20,2011 for

the increment demonstration). On February 11, 2010, the EPA proposed two actions

that would end the EPA's 1997 policy allowing sources and permitting authorities to use

a demonstration of compliance with the PSD requirements for PMlO as a surrogate for

meeting the PSD requirements for PM2 .

5• In the first action, the EPA proposed to repeal

the "grandfathering" provision for PM2 .

5 contained in the federal PSD program. This

provision allows applicants for proposed new major sources and major modifications

that have submitted a complete PSD permit application prior to the effective date of an

amendment to the PSD regulations but have not yet received final and effective PSD

permit. to continue relying on information already in the application rather than

immediately having to amend applications to demonstrate compliance with the new PSD

requirements. In the second action, EPA also proposed to end early the PMlO Surrogate
Texas Commission on Emironmental Quality

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Page 3

Policy applicable in states that have an approved PSD program in their SIP. The threeyear transition period for re\ising the SIP and for use ofthe surrogate policy ends in

May 2011, unless revised by EPA. In an effort to ensure the TCEQ meets regulatory

requirements ofthe Federal Clean Air Act (FCAA), the commission is adopting

amendments to 30 TAC Chapter 101, General Air Quality Rules, and to Chapter 106 to

add specific definitions related to PM2 .

sregulation, and to address the known

requirements for implementation.

Existing federal regulations require both major and minor NSR programs to address any

pollutant for which there is a NAAQS and precursors to the formation of such pollutant

when identified for regulation by the EPA. TCEQ rules outline the requirements for

both major and minor NSR programs under 30 TAC §116.110, Applicability. This

section requires any person who plans to construct any new facility or to engage in the

modification of any existing facility which may emit air contaminants into the air ofthis

state to obtain a permit under §116.111, General Application, or satisfy the conditions for

another authorization type as listed within that section. Chapter 116, Subchapter B, New

Source Review Permits, outlines the general requirements for both minor and major

NSR permits. Specifically, §116.111 covers the general application requirements for both

major and minor NSR. Minor NSR sources are required to comply \\ith §116.111 except

§116.111(a)(2)(H) and (I), which only apply to major NSR (Nonattainment and PSD).
Texas Commission on Environmental Quality

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For precursors, EPA provided some clarification regarding regulation of PM2.

S

Page 4

precursors in the May 16, 2008, PM2.

S implementation rule, stating that generally where

scientific data and modeling analyses provide reasonable certainty that the pollutant's

emissions are a significant contributor to ambient PM2.

S concentrations, EPA believes

that pollutant should be identified as a "regulated NSR pollutant" and subject to the

PM2.

S NSR provisions. Conversely, where the effect of a pollutant's emission on ambient

PM2.

S concentrations is subject to substantial uncertainty, such that in some

circumstances the pollutant may not result in the formation of PM2.

S, or control ofthe

pollutant may have no effect or may even aggravate air quality, EPA generally believes it

is unreasonable to establish a nationally-applicable presumption that the pollutant is a

regulated NSR pollutant subject to the requirements of NSR for PM2.

S' Therefore, EPA

has established certain presumptions regarding the PM2.S precursors, sulfur dioxide

(S02), nitrogen oxide (NOx), volatile organic compound (VOC) and ammonia.

Specifically, EPA presumes S02 and NOx to be significant contributors to ambient PM2.S

concentrations in all areas and thus, have termed these pollutants "presumed in,"

meaning requiring regulation as a precursor for PM2.S' Conversely, the final rule does

not require regulation ofVOC or ammonia as a precursor to PM2.S for the NSR program

because additional research and teclmical tools are necessary to characterize the

emissions inventories for VOC, and there is considerable uncertainty related to

ammonia as a precursor. Therefore, EPA has categorized these pollutants as "presumed

out," meaning not regulated as a precursor for PM2.

S regulation. However, states have
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Rule Project No. 201O-020-101-PR

Pages

the option to exclude NOx, as a precursor by demonstrating that NOx emissions are not

a significant contributor to ambient PM2 .

S concentrations in a particular area. In

addition, states have the option ofidentifying VOC and/or ammonia as precursor(s) by

demonstrating that emissions for VOC and/or ammonia are a significant contributor in

an area, and thus, should be subject to major NSR.

Furthermore, in the Final Rule for increments, SILs, and SMC, EPA removed the

reference to "direct" PM2 .

S emissions, to allow for consideration of precursor emissions

when determining whether the air quality impact of a major new source or modification

would be less than the PM2.

S SI1.5. EPA has indicated that estimating techniques are

being developed that will be able to be applied to the PM2.

S analysis in the near future.

Removing the reference to direct emissions in the rule also allows EPA to include

precursor emissions through guidance without notice and comment required for

rulemaking. Furthermore, EPA may require precursors be included in "photochemical"

modeling to obtain concentrations that could include direct and secondarily formed

PM2.S in the source impact and air quality analyses.

EPA has also provided clarification regarding regulation of condensable PM under the

PM2 .

S regulations stating it will not require states to address condensable PM in

establishing enforceable emissions limits for either PMlO or PM2 .

S in NSR permits during

the transitional period that ended on January 1, 2011. During this transitional period,
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Page 6

EPA assessed the capabilities oftest methods available for measuring condensable

emissions, publishing a final rule for methods of measuring filterable PMlO and PM2 •

5

and measuring condensable PM emissions on December 21, 2010. The final rule

promulgates amendments to Methods 20lA and 202. The final amendments to Method

20lA add a particulate-sizing device to allow for sampling of PM with mean

aerodynamic diameters less than or equal to PM2.

5• The final amendments to Method

202 revise the sample collection and recovery procedures ofthe method to reduce the

formation ofreaction artifacts that could lead to inaccurate measurements of

condensable PM. Additionally, the final amendments to Method 202 eliminate most of

the hardware and analytical options in the existing method, thereby increasing the

precision ofthe method and improving the consistency in the measurements obtained

between source tests performed under different regulatory authorities. This final rule

became effective on January 1, 2011.

Finally, EPA clarified that there will be no changes to the implementation of Best

Available Control Teclmology (BACT) requirements for PM2.

5 at major sources that are

subject to the PSD program. If a new major source will emit, or have the potential to

emit, a significant amount of a regulated NSR pollutant in an attainment area for that

pollutant, the source must apply BACT for each emissions unit that emits the pollutant.

In addition, if a physical change or operational c!lange at an existing major source will

result in a significant emissions increase and significant net emissions increase of a
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Page?

regulated NSR pollutant, the source must apply BACT to each proposed emissions unit

experiencing a net increase in emissions ofthat pollutant as a result ofthe physical or

operational change in the unit. Under the PM2.

S PSD program, these requirements ",ill

apply to direct PM2.

S emissions; S02 emissions; and NOx emissions, unless states

demonstrate that NOx is not a significant contributor to ambient PM2.

S concentrations

in that area; and to VOC ifidentified by a state as a precursor in the PM2.S attainment

area where the source is located. Although EPA has specified that direct emissions of

PM2.

S at or above the significant emission rate (SER) would trigger a BACT analysis, EPA

has not specified whether a precursor's emissions above the precursor's SER would

trigger a BACT analysis for PM2.S if direct emissions of PM2.

S are below the PM2.

S SER.

Therefore, it is presumed that BACT for direct PM2.Swill apply only if direct PM2.

S

emissions are significant, and BACT for precursor pollutants ",ill apply only ifthe

precursor emissions equal or exceed the specific SER for the precursor pollutant.

Section Discussion

§106.4, Requirementsfor Permitting by Rule

The commission adopts the amendment to §106-4 to address the applicable significant

emission thresholds established by EPA for PM, PMlO, and PM2.S' The significant

emission threshold for PM is 25 tons per year (tpy), PMlO is 15 tpy, and PM2.

S is 10 tpy.

Section 106-4(a)(1) and (4) has been revised to include these changes. This change will

provide clarity to the permitting process for PM by including the significant levels for
Texas Commission on Environmental Quality

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PageS

PM, PMlO, and PM'.5' It will not affect existing claims and is only applicable to new or

modified claims under this chapter, not currently operating authorized facilities under

standard exemption or permit by rule (PBR) in accordance with §106.2, Applicability.

Final Regulatory Impact Analysis

The commission reviewed the adopted rulemaking in light ofthe regulatory analysis

requirements ofTexas Government Code, §2001.0225 and determined that the adopted

rule does not meet the definition of a "major environmental rule." Texas Government

Code, §2001.0225 states that 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, a

sector ofthe economy, productivity, competition, jobs, the environment, or the public

health and safety ofthe state or a sector ofthe state." While the purpose ofthis

rulemaking is to increase protection ofthe environment and reduce risk to human

health, it is not expected that this rulemaking will adversely affect in a material way the

economy, a sector ofthe economy, productivity, jobs, the environment, or the public

health and safety ofthe state or a sector ofthe state.

Furthermore, while the adopted rulemaking does not constitute a major environmental

rule, even if it did, a regulatory impact analysis would not be required because the

adopted rulemaking does not meet any ofthe four applicability criteria for requiring a
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Chapter 106 - Permits by Rule

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Page 9

regulatory impact analysis for a major environmental rule. Texas Government Code,

§2001.0225 applies only to a major environmental rule which: 1) exceeds a standard set

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

requirement ofstate law, unless the rule is specifically required by federal law; 3)

exceeds a requirement of a delegation agreement or contract between the state and an

agency or representative ofthe federal government to implement a state and federal

program; or 4) adopts a rule solely under the general powers ofthe agency instead of

under a specific state law. The adopted rulemaking does not meet any ofthe four

applicability criteria listed in Texas Government Code, §2001.0225 because: 1) the

proposed rulemaking is designed to meet, not exceed the relevant standard set by

federal law; 2) parts of the proposed rulemaking are directly required by state law; 3) no

contract or delegation agreement covers the topic that is the subject ofthis rulemaking;

and 4) the proposed rulemaking is authorized by specific sections of THSC, Chapter 382

(also known as the Texas Clean Air Act or TCAA), which is cited in the (statutory

authority) section.

The specific intent ofthe adopted rulemaking is to amend Chapter 106 to include the

significant levels for PM, PMlO, and PM2 .

S. The preamble to this rulemaking clarifies

how precursors and condensable emissions are addressed, that EPA has made no

changes to the BACT analysis process for PM2 .

S, and provides a basis for regulation of

PM2 .

S emissions when the use of PMlO as a surrogate for PM2 .S is no longer applicable.
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Takings Impact Assessment

Page 10

The commission evaluated the adopted rule and performed an analysis of whether the

rule constitutes a taking under Texas Government Code, Chapter 2007. The specific

purpose of the rulemaking is to facilitate implementation of new federal regulations

under the NSR program. The adopted amendment would substantially advance this

stated purpose by including the significant levels for PM, PMlO, and PM2 .

5 in Chapter

106. The commission's analysis indicates that Texas Government Code, Chapter 2007

does not apply to this adopted rule because this is an action that is reasonably taken to

fulfill an obligation mandated by federal law, which is exempt under Texas Government

Code, §2007.003(b)(4). Specifically, EPA has promulgated new NSR regulations for

PM2.5 in accordance with 40 Code of Federal Regulations (CFR) §§S2.21, 52.24, 51.160 -

51.164, 51.165, S1.16s(b), and 51.166, and 40 CFR Part 51, Appendix S. TCEQ, as the

administrator ofthe NSR program for Texas, is tasked with implementing the new

federal regulations in accordance with 40 CFR §Sl.166 and FCAA, §107(d)(1)(A)(ii) or

(iii).

Nevertheless, the commission further evaluated the adopted rule and performed an

assessment ofwhether the rule constitutes a takings under Texas Government Code,

Chapter 2007. The specific purpose ofthe adopted rule is to facilitate implementation of

new federal regulations under the NSR program. The adopted rule would substantially

advance this stated purpose by including the significant levels for PM, PMlO, and PM2 .

5
Texas Commission on Environmental Quality

Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

in Chapter 106.

Page 11

Promulgation and enforcement ofthe adopted rule would be neither a statutory nor a

constitutional taking of private real property. Specifically, the subject proposed

regulations do not affect a landowner's rights in private real property because this

rulemaking does not burden (constitutionally), nor restrict or limit the owner's right to

property and reduce its value by 2S% or more beyond that which would otherwise exist

in the absence ofthe regulations. In other words, the rule does not affect private

property in a manner that restricts or limits an owner's right to the property that would

otherwise exist in the absence of a governmental action. Consequently, this rulemaking

action does not meet the definition of a takings under Texas Government Code,

§2007·002(S)·

Consistency with the Coastal Management Program

The commission determined that this rulemaking action relates to an action or actions

subject to the Texas Coastal Management Program (CMP) in accordance with the

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

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning

Consistency with the Texas Coastal Management Program. As required by §281.4s(a)(3)

and 31 TAC §soS.11(b)(2), relating to Actions and Rules Subject to the Coastal

Management Program, commission rules governing air pollutant emissions must be
Texas Commission on Environmental Quality

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Page 12

consistent with the applicable goals and policies ofthe CMP. The commission reviewed

this action for consistency with the CMP goals and policies in accordance with the rules

ofthe Coastal Coordination Council and determined that the action is consistent with

the applicable CMP goals and policies.

The CMP goal applicable to this adopted rulemaking action is the goal to protect,

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

natural resource areas (31 TAC §S01.12(l)). The adopted rule will benefit the

environment by ensuring the NSR program meets applicable federal requirements, and

is adequately enforceable so that air quality is protected. The CMP policy applicable to

this rulemaking action is the policy that commission rules comply with federal

regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC

§S01.32). Therefore, in accordance with 31 TAC §Sos.22(e), the commission affirms

that this rulemaking action is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal

management program during the public comment period. No comments were received

on the Coastal Management Program.

Effect on Sites Subject to the Federal Operating Permits Program

There should be no significant effect on facilities subject to the Federal Operating
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Permits Program since APD is currently conducting reviews ofsources subject to PSD

and minor NSR that meet federal definitions and requirements. Permit holders may

need to conduct an evaluation and determine if a revision to a Federal Operating Permit

is needed to update the applicable requirements.

Public Comment

The commission held a public hearing on December 13, 2010. The comment period

closed on December 20, 2010. The commission received comments from Baker Botts

L.L.P. on behalf ofthe Texas Industry Project (TIP), an individual, and EPA. The

individual and the EPA were in support ofthe rule project. TIP was opposed to the rule

project.

Response to Comments

An individual supports this rule project and hopes TCEQ implements the new more

stringent PM2.S and does not take the allowed SIP of 10 micrometers or less. In addition,

the individual would like to see some suggested guidance in this proposed rule on

formation of PM2.

S from photochemical interaction.

The commission did not make any changes to the rule in response to this

comment. The TCEQ will develop guidance to address photochemical

modeling at the appropriate time when necessary.
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EPA appreciates the State's proposed revisions but reminds the TCEQ that any source

subject to the Greenhouse Gas permitting requirements cannot rely upon a PBR but

must perform the Major NSR applicability determination.

The commission did not make any changes based on this comment. The

changes adopted under this rulemaking do not address applicability to

greenhouse gas permitting, but are made to facilitate implementation of

PM2 •

5 requirements under TCEQ rules and Texas' SIP.

TIP opposes the proposed amendments at this time since EPA has not identified a test

method for measuring different types of PM and condensable PM2.

5• They also state at

this time there are no federally approved test methods for measuring PM2 .

5• While EPA

has proposed changes to existing PM test methods in order to more accurately measure

PM2 .

5, EPA recognizes there are technical issues that need to be resolved. TIP states that

rule comments reflect a strong desire for EPA to consider other PM2 .

5 measurement

approaches. There are concerns with sources being required to perform an emission test

to demonstrate compliance with a PM2 .

5 PSD permit emission limit when there are no

federally approved methods, and significant technical issues remain associated with the

test methods for measuring PM2.

5• TCEQ should allow regulated entities to use test

methods that are shown to be equivalent rather than limiting sources to only the method
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or methods promulgated by EPA. EPA issued additional PM2.

5 rules on October 20,

2010, establishing significant impact levels and de minimis monitoring levels for PM2.

5•

TIP is concerned that this proposal does not address the concepts established in that

rulemaking.

The commission did not make any changes to the rule in response to these

comments. EPA proposed rulemaking for repealing the Grandfathered

Provisions, Implementation ofthe NSRProgram for PM2•

5 ; Notice of

Proposed Rulemaking to repeal Grandfathering Provision and the end to

the PMlO Surrogate policy prior to the May 16, 2011 deadline, which has not

been finalized. In efforts to ensure the TCEQ meets regulatory

requirements ofthe FCAA, the commission is adopting amendments to add

specific definitions related to PM2•5 regulation and to address known

requirements for implementation.

Subsequent to receipt ofTIP's comments, EPA published the final rule on

the Methods for Measurement ofFilterable PMlO and PM2 •5 and

Measurement ofCondensable PM Emissions (75 Federal Register 80118,

December 21,2010).

This adoption addresses known requirements to date in order to meet the
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May 16,2011 deadline for implementation ofthe PM2.5 requirements and

the end ofthe PMtoSurrogate policy. TCEQ will consider any future rule

making, as necessary to address future state or federal regulatory

requirements.
STAFF 

RECOMMENDATIONS
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 201O-020-101-PR

SUBCHAPTERA: GENERAL RULES

§101.1

Statutory Authority

Page 19

The amendment is adopted under Texas Water Code (TWC), §S.102, concerning General

Powers, that provides the commission with the general powers to carry out its duties

under the TWC; §S.103, concerning Rules, and §S.lOS, concerning General Policy, which

authorize the commission to adopt rules necessary to carry out its powers and duties

under the TWC; and under Texas Health and Safety Code (THSC), §382.017, concerning

Rules, which authorizes the commission to adopt rules consistent with the policy and

purposes ofthe Texas Clean Air Act. The amendment is also adopted under THSC,

§382.002, concerning Policy and Purpose, which establishes the commission purpose to

safeguard the state's air resources, consistent with the protection of public health,

general welfare, and physical property; §382.oo3, concerning Definitions; §382.011,

concerning General Powers and Duties, which authorizes the commission to control the

quality ofthe state's air; §382.012, concerning State Air Control Plan, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of

the state's air; §382.0S1, concerning Permitting Authority of Commission; Rules, which

authorizes the commission to issue a permit by rule for types offacilities that will not

significantly contribute air contaminants to the atmosphere; §382.0S13, concerning

Permit Conditions, which authorizes the commission to establish and enforce permit

conditions; and §382.0S14, concerning Sampling, Monitoring, and Certification.
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Page 20

The adopted amendment implements THSC, §§382.002, 382.003, 382.011, 382.012,

382.051, 382.0513, and 382.0514·

§lOl.l. Definitions.

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

the commission, the terms used by the commission have the meanings commonly

ascribed to them in the field of air pollution control. In addition to the terms that are

defined by the TCAA, the following terms, when used in the air quality rules in this title,

have the following meanings, unless the context clearly indicates otherwise.

(1) Aceount--For those sources required to be permitted under Chapter

122 ofthis title (relating to Federal Operating Permits Program), all sources that are

aggregated as a site. For all other sources, 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.
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(3) Agency established facility identification nwnber--For the

purposes of Subchapter F ofthis chapter (relating to Emissions Events and Scheduled

Maintenance, Startup, and Shutdown Activities), a unique alphanumeric code required

to be assigned by the owner or operator of a regulated entity that the emission inventory

reporting requirements of §101.1O 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, and/or

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.
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(8) Captured facility--A manufacturing or production facility that

generates an industrial solid waste or hazardous waste that is routinely stored,

processed, or disposed of on a shared basis in an integrated waste management unit

owned, operated by, and located v.>ithin 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 of parts or to dry the parts by spraying, brushing,

flushing, and/or immersion while maintaining the solvent below its boiling point. Wipe

cleaning (hand cleaning) is not included in this definition.
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(13) Combustion unit--Anyboiler plant, furnace, incinerator, flare,

engine, or other device or system used to oxidize solid, liquid, or gaseous fuels, but

excluding motors and engines used in propelling land, water, and air vehicles.

(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 of waste

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.
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(18) Component--A piece of equipment, including, but not limited to,

pumps, valves, compressors, and pressure relief valves that has the potential to leak

volatile organic compounds.

(19) Condensate--Liquids that result from the cooling and/or pressure

changes of produced natural gas. Once these liquids are processed at gas plants or

refineries or in any other manner, they are no longer considered condensates.

(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 of air 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.
Texas Commission on Environmental Quality

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Page 25

(23) Criteria pollutant or standard--Any pollutant for which there is a

national ambient air quality standard established under 40 Code of Federal Regulations

Part 50.

(24) Custody transfer--The transfer of produced crude oil and/or

condensate, after processing and/or treating in the producing operations, from storage

tanks or automatic transfer facilities to pipelines or any other forms of transportation.

(25) De minimis impact--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 significance levels as specified in 40 Code of Regulations (CFR) §S1.165(b)(2)

[follov.ing specified amounts].

[Figure: 30 TAC §101.1(25)]

AIR CONTAMINANf ANNUAL 24- 8-HOUR 3-HOUR I-HOUR

HOUR

Inhalable Particulate Matter 1.0 J.Ig/m3 5 J.Ig/m3
Texas Commission on Environmental Quality

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Page 26

(PMlO)

ISulfur Dioxide II 1.0 ~g/m3 "5~g/m3 10[25 ~g/m3 ICJ

INitrogen Dioxide IBCJOCJCJ

Carbon Monoxide 0·5 2 mg/m3

mg/m3

(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.
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Page 27

(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.
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Page 28

(34) External floating roof--A cover or roofin 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 1, including operating permits issued under

the approved program that is incorporated into the SIP and that expressly requires

adherence to any permit issued under such program.

(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
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

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Page 29

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. Avapor

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 1, 1 (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 of putrescible animal and vegetable

waste materials resulting from the handling, preparation, cooking, and consumption of

food, including waste materials from markets, storage facilities, and handling and sale

of produce and other food products.
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(41) Gasoline--Any petroleum distillate having a Reid vapor pressure of

four 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 is required 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.
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(46) Incinerator--An enclosed combustion apparatus and attachments

that is used in the process of burning wastes for the primary purpose of reducing its

volume and weight by removing the combustibles ofthe waste and is equipped with a

flue for conducting products of combustion to the atmosphere. Any combustion device

that burns 10% or more of solid waste on a total British thermal unit (Btu) heat input

basis averaged over 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 wood scraps, waste wood, or sludge

from the treatment of wastewater from the process mills as a primary fuel for heat

recovery are not included under this definition. Combustion devices permitted under

this title as combustion devices other than incinerators w:ill not be considered

incinerators for application ofany 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 of products, by mechanical or chemical processes.
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(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 1industrial solid waste or Class 1 waste is any industrial

solid waste designated as Class 1by the executive director as any industrial solid waste

or mixture of industrial solid wastes that because of its concentration or physical or

chemical characteristics is toxic, corrosive, flammable, a strong sensitizer or irritant, a

generator 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 of this title (relating to Definitions

and Class 1Waste Determination).
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(B) Class 2 industrial solid waste is any individual solid waste or

combination ofindustrial solid wastes that cannot be described as Class 1 or Class 3, as

defined in §335.506 ofthis 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 roof

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

a closure seal or seals to close the space between the cover edge and tank shell.

(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, smell, 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.
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(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 ofthe state previously

designated nonattainment under the Federal Clean Air Act Amendments of 1990 and

subsequently redesignated to attainment subject to the requirement to develop a

maintenance plan under 42 United States Code, §7505a, as described in 40 Code of

Federal Regulations Part 81 and in pertinent Federal Register notices.

(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 of being used, as a

means of transportation on water, and that is constructed or adapted to carry, or that

carries, oil, gasoline, or other volatile organic liquid in bulk as a cargo or cargoresidue.

(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 braces to the
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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 of

State Health Services as "special waste from health care-related facilities" and those

waste materials commingled and discarded with special waste from health care-related

facilities.

(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 ofthis title (relating to Vehicle Retirement and Mobile Emission

Reduction Credits), and that has been banked in accordance with Subchapter H,

Division 1ofthis chapter.
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(61) Motor vehicle--A self-propelled vehicle designed for transporting

persons or property on a street or highway.

(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, commercial, institutional, and recreational activities,

including garbage, rubbish, ashes, street cleanings, dead animals, 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 ofsolid waste. A facility may be publicly or privately owned and may consist of

several processing, storage, or disposal operational units, e.g., one or more landfills,

surface impoundments, or combinations ofthem.

(65) Municipal solid waste landfill--A discrete area ofland or an

excavation that receives household waste and that is not a land application unit, surface

impoundment, injection well, or waste pile, as those terms are defined under 40 Code of

Federal Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may
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receive other types of Resource 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.
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(69) Nitrogen oxides (NOx)--The sum ofthe nitric oxide and nitrogen

dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.

(70) Nonattainment area-- A defined region \\ithin the state that is

designated by the United States Environmental Protection Agency (EPA) as failing to

meet the national ambient air quality standard (NAAQS or 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 (CFR) Part 81 and pertinent

Federal Register notices. The designations and classifications for the one-hour ozone

national ambient air quality standard in 40 CFR Part 81 were retained for the purpose of

anti-backsliding and upon determination by the EPA that any requirement is no longer

required for purposes of anti-backsliding, then that requirement no longer applies.

(71) Non-reportable emissions event--Any emissions event that in

any 24-hour period does not result in an unauthorized emission from any emissions

point equal to or in excess ofthe reportable quantity as defined in this section.

(72) Opacity--The degree to which an emission of air contaminants

obstructs the transmission oflight expressed as the percentage oflight obstructed as

measured by an optical instrument or trained observer.
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(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--Anyfire 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.

CA} Particulate matter with diameters less than 10 micrometers

CPM10}--Particulate matter with an aerodYnamic diameter less than or equal to a

nominal ten micrometers as measured by a reference method based on 40 Code of

Federal Regulations rCFR) Part 50. Appendix J, and designated in accordance with 40

CFR Part 53. or by an equivalent method designated with that Part 53.

CB) Particulate matter with diameters less than 2.5 micrometers

CPM;u}--Particulate matter with an aerodynamic diameter less than or equal to a

nominal 2.5 micrometers as measured by a reference method based on 40 CFR Part 50,
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Appendix L. and designated in accordance with 40 CFR Part 53. or by an equivalent

method designated with that Part 53.

(76) Particulate matter emissions--All fmely-divided solid or liquid

material, other than uncombined water, emitted to the ambient air as measured by

United States Environmental Protection Agency Reference Method 5, as specified at 40

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

caught by an impinger train; by an equivalent or alternative method, as specified at 40

CFR Part 51; or by a test method specified in an approved state implementation plan.

eA) Direct PM emissions-- Solid particles emitted directly from an

air emissions source or activity, or gaseous emissions or liquid droplets from an air

emissions source or activity which condense to form particulate matter at ambient

temperatures. Direct 2.5 micrometers (PM2 .

s) emissions include elemental carbon,

directly emitted organic carbon, directly emitted sulfate, directly emitted nitrate, and

other inorganic particles (including but not limited to crustal materials, metals, and sea

salt)PaFtielilate matteF that is emittea ffiFeeHv iato the aiF as a solia OF liqllia BaFtiele

fe.g. elemcataI eB:mBR iTem diesel CftgiRcs at' fiFe aetivities. Sf eondcftsa1:'Jle orgaaie

tlartieles ~aftl easaliflc CftgiRCS).

em Secondary PM emissions-- Those air pollutants other than

PM2 .

s direct emissions that contribute to the formation ofPM2 .

s. PM2 •s precursors
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include sulfur dioxide (S02), NOx, volatile organic compounds, and ammonia

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PaFtieHlate matteF that is foFmea if! the atmsseheFe as a FesHlt sf vaFisHs ehemieal

reaetiORS (e.g. sHlfate aRa nitrate).

(77) Petroleum refinery--Any facility engaged in producing gasoline,

kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through

distillation of crude oil, or through the redistillation, cracking, extraction, reforming, or

other processing of unfinished petroleum derh·atives.

(78) PM;:.s emissions--Finely-divided solid or liQuid material with an

aerodynamic diameter less than or eQual to a nominal 2.5 micrometers emitted to the

ambient air as measured bv an applicable reference method, or an eQuivalent or

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

method sveeiaea ie. approved under a aVj;lFsvea state implementation plan or under a

United States Environmental Protection Agency delegation or approvat [PMlO --

Particulate matter with an aerodynamic diameter less than or equal to a nominal ten

micrometers as measured by a reference method based on 40 Code of Federal

Regulations (CFR) Part 50, Appendix J, and designated in accordance with 40 CFR Part

53, or by an equivalent method designated vl'ith that Part 53.]
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(79) PMlO 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) PolycWorinated 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

therev.ith, and all other methods or forms of manufacturing 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 gaseous fuels and

combustion air will not. The "process weight per hour" will be derived by dividing the

total process weight by the number of hours in one complete operation from the
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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" w:ill be derived by dividing the total process weight for a 24-

hour period by 24.

(83) Property--Allland 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 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 of emissions events.
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(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 any 24-

hour period, results in an unauthorized emission from any emissions point equal to or

in excess ofthe reportable quantity as defined in this section.

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

(A) for individual air contaminant compounds and specifically

listed mixtures by name or Chemical Abstracts Service (CAS) number, either:

(i) the lowest ofthe quantities:

(I) listed in 40 Code of Federal Regulations (CFR)

Part 302, Table 302-4, the column "final RQ";
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(II) listed in 40 CFR Part 355, Appendix A, the

column "Reportable Quantity"; or

(III) listed as follows:

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

the Houston-Galveston-Brazoria (HGB) and Beaumont-Port Arthur (BPA) ozone

nonattainment areas as defined in paragraph (70) ofthis section, where the RQ must be

100 pounds;

(-b-) butanes (any isomer) - 5,000 pounds;

(-c-) butenes (any isomer, except 1,3-

butadiene) - 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as

defined in paragraph (70) ofthis section, where the RQ must be 100 pounds;

(-d-) carbon monoxide - 5,000 pounds;

(-e-) 1-chloro-1,1-difluoroethane (HCFC-142b)

- 5,000 pounds;
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(-f-) chlorodifluoromethane (HCFC-22) - 5,000

pounds;

(-g-) 1-chloro-1-fluoroethane (HCFC-151a)-

5,000 pounds;

(-h-) chlorofluoromethane (HCFC-31) - 5,000

pounds;

(-i-) chloropentafluoroethane (CFC-115) -

5,000 pounds;

(-j-) 2-chloro-1,1,1,2-tetrafluoroethane (HCFC124) - 5,000 pounds;

(-k-) 1-chloro-1,1,2,2 tetrafluoroethane (HCFC124a) - 5,000 pounds;

(-1-) 1,1,1,2,3AA,5,5,5-decafluoropentane (HFC

43-lOmee) - 5,000 pounds;
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(-m-) decanes (anyisomer) - 5,000 pounds;

(-n-) 1,1-dichloro-1-fluoroethane (HCFC-141b)

- 5,000 pounds;

(-0-) 3,3-dichloro-1,1,2,2-pentafluoropropane

(HCFC- 225ca) - 5,000 pounds;

(-p-) 1,3-dich1oro-1,1,2,2,3-pentafluoropropane

(HCFC-225cb) - 5,000 pounds;

(-q-) 1,2-dichloro-1,1,2,2-tetrafluoroethane

(CFR-114) - 5,000 pounds;

(-r-) 1,1- dichlorotetrafluoroethane (CFC-114a)

- 5,000 pounds;

(-s-) 1,2-dichlorO-1,1,2-trifluoroethane (HCFC123a) - 5,000 pounds;
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(-1-) 1,I-difluoroethane (HFC-152a) - 5,000

pounds;

(-u-) difluoromethane (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) ofthis section,

where the RQ must be 100 pounds;

(-x-) ethylfluoride (HFC-161) - 5,000 pounds;

(-y-) 1,1,1,2,3,3,3-heptaf!uoropropane (HFC227ea) - 5,000 pounds;

(-z-) 1,1,1,3,3,3-hexafluoropropane (HFC236fa) - 5,000 pounds;
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(-aa-) 1,1,1,2,3,3-hexafluoropropane (HFC236ea) - 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-1ll)-

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

(-ii-) pentafluoroethane (HFC-125) - 5,000

pounds;

(-jj-) 1,1,2,2,3-pentafluoropropane (HFC245ca) - 5,000 pounds;

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

(-11-) 1,1,1,2,3-pentafluoropropane (HFC245eb) - 5,000 pounds;

(-mm-) 1,1,1,3,3-pentafluoropropane (HFC245fa) - 5,000 pounds;

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

(-00-) propane - 5,000 pounds;
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(-pp-) propylene - 5,000 pounds, except in the

HGB and BPA ozone nonattainrnent areas as defined in paragraph (70) of this section,

where the RQ must be 100 pounds;

(-qq-) 1,1,2,2-terachlorodifluoroethane (CFR112) - 5,000 pounds;

(-rr-) 1,1,1,2-tetrachlorodifluoroethane (CFC112a) -5,000 pounds;

(-ss-) 1,1,2,2-tetrafluoroethane (HFC-134) -

5,000 pounds;

(-tt-) 1,1,1,2-tetrafluoroethane (HFC-134a) -

5,000 pounds;

(-uu-) 1,1,2-trichloro-l,2,2-trifluoroethane

(CFR-113) - 5,000 pounds;
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(-\'Y-) 1,1,1-trichloro- 2,2,2- trilfloroethane

(CFC- 113a) - 5,000 pounds;

(-ww-) 1,1,1-trifluoro-2,2-dichloroethane

(HCFC-123) - 5,000 pounds;

(-xx-) 1,1,1-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) ofthis section,

where the RQ must be 100 pounds;

(ii) if not listed in clause (i) ofthis subparagraph, 100

pounds;

(B) for mixtures of air contaminant compounds:
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(i) where the relative amount ofindividual 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) ofthis 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 of the other individual air contaminant

compounds covered by subparagraph (A)(ii) ofthis paragraph are known to be less than

2.0% by weight of the mixture, any total amount ofthe 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
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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 sixminute period. Opacity is the only RQ applicable to boilers and combustion turbines

described in this paragraph; or

(D) 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:

(i) less than one-half of any applicable ambient air

standards; and
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(ii) less than two times the concentration of applicable 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 v.ith unauthorized emissions that are expected to exceed a reportable quantity

(RQ), a scheduled maintenance, startup, or shutdown acthity is an acthity 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 §101.211 ofthis title

(relating to Sc!leduled Maintenance, Startup, and Shutdown Reporting and

Recordkeeping Requirements); the notice or final report includes the information

required in §101.211 of this title; and the actual unauthorized emissions from the acthity

do not exceed the emissions estimates submitted in the initial notification by more than

an RQ. For acthities v.ith unauthorized emissions that are not expected to, and do not,

exceed an RQ, a scheduled maintenance, startup, or shutdown acthity is one that is
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recorded as required by §101.211 ofthis title. Expected excess opacity events as

described in §101.201(e) ofthis title (relating to Emissions Event Reporting and

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Recordkeeping Requirements) resulting from scheduled maintenance, startup, or

shutdown activities are those that prm-ide prior notice (if required), and are recorded

and reported as required by §101.211 ofthis title.

(91) Sludge--Any solid or semi-solid, or liquid waste generated from a

municipal, commercial, or industrial wastewater treatment plant; water supply

treatment plant, exclusive ofthe treated effluent 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, rining, and agricultural

operations and from community and institutional activities. The term does not include:
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(A) solid or dissolved material in domestic sewage, or solid or

dissolved material in irrigation return flows, or industrial discharges subject to

regulation by permit issued under the Texas Water Code, Chapter 26;

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

materials used to fill land, if the object ofthe fill is to make the land suitable for the

construction ofsurface improvements; or

(C) waste materials that result from activities associated \\ith the

exploration, development, or production of oil or gas, or geothermal resources, and

other substance or material regulated by the Railroad Commission ofTexas under

Natural Resources Code, §91.101, unless the waste, substance, or material results from

activities associated with gasoline plants, natural gas liquids processing plants, pressure

maintenance plants, or repressurizing plants and is hazardous waste as defined by the

administrator ofthe 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 crude--A crude oil that will emit a sour gas when in

equilibrium at atmospheric pressure.
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(95) Sour gas--Any natural gas containing more than 1.5 grains of

hydrogen sulfide per 100 cubic feet, or more than 30 grains oftotal sulfur per 100 cubic

feet.

(96) Source--A point of origin of air contaminants, whether privately or

publicly owned or operated. Upon request of a source owner, the executive director shall

determine whether multiple processes emitting air contaminants from a single point of

emission will be treated as a single source or as multiple sources.

(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 ofthe 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

Fallfenheit (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 of a

county or one or more contiguous counties that is officially so designated by the United

States Bureau ofthe Budget.
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(100) Submerged fill pipe--A fill pipe that extends from the top of a

tank to have a maximum clearance ofsix inches (l5.2 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--All inorganic or organic chemicals having an

atom or atoms ofsulfur in their roernical structure.

(102) Sulfuric acid mist/sulfuric acid--Emissions ofsulfuric acid mist

and sulfuric acid are considered to be the same air contaminant calculated as H2 S04

and must include sulfuric acid liquid mist, sulfur trioxide, and sulfuric acid vapor as

measured by Test Method 8 in 40 Code of Federal Regulations Part 60, Appendix A.

(l03) Sweet crude oil and gas--Those crude petroleum hydrocarbons

that are not "sour" as defined in this section.

(104) Total suspendedparticulate--Particulate matter as measured by

the method described in 40 Code of Federal Regulations Part 50, Appendix B.
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(105) Transfer efficiency--The amount of coating solids deposited onto

the surface or a part of product divided by the total amount of coating solids delivered to

the coating application system.

(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 emissions--Emissions of any air contaminant

except carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and

oxygen that exceed any air emission limitation in a permit, rule, or order ofthe

commission or as authorized by Texas Clean Air Act, §382.0S18(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 of event normally

authorized by permit; or
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(B) a maintenance activity that arises from sudden and

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unforeseeable events beyond the control of the 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 of a process or operation that results in unauthorized emissions. A

maintenance, startup, or shutdown activity that was reported under §101.2ll ofthis title

(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 breakdov.n or

excursion of a 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.

(Ill) Vapor combustor--A partially enclosed combustion device used to

destroy volatile organic compounds by smokeless combustion without extracting energy

in the form of process heat or steam. The combustion flame may be partially visible, but

at no time does the device operate with an uncontrolled flame. Auxiliary fuel and/or a

flame air control damping system that can operate at all times to control the air/fuel
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mixture to the combustor's flame zone, may be required to ensure smokeless

combustion during operation.

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(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

of the primary 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.

(115) Volatile organic compound--As defined in 40 Code of Federal

Regulations §Sl.1oo(s), except §S1.100(S)(2) - (4), as amended on January 21, 2009 (74

FR3441).

(116) Volatile organic compound (VOC) water separator--Any

tank, box, sump, or other container in which any VOC, floating on or contained in water
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 201O-020-101-PR

Page 63

entering such tank, box, sump, or other container, is physically separated and removed

from such water prior to outfall, drainage, or recovery ofsuch water.
Texas Commission on Environmental Quality

Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

SUBCHAPTERA: GENERAL REQUIREMENTS

Statutory Authority

Page 17

The amendment is adopted under Texas Water Code (TWC), §S.102, concerning General

Powers, that provides the commission "ith the general powers to carry out its duties

under the TWC; §S.103, concerning Rules, and §S.lOS, concerning General Policy, which

authorize the commission to adopt rules necessary to carry out its powers and duties

under the TWC; and under Texas Health and Safety Code (THSC), §382.017, concerning

Rules, which authorizes the commission to adopt rules consistent with the policy and

purposes ofthe Texas Clean Air Act. The amendment is also adopted under THSC,

§382.002, concerning Policy and Purpose, which establishes the commission purpose to

safeguard the state's air resources, consistent "ith the protection of public health,

general welfare, and physical property; §382.003, concerning Definitions; §382.011,

concerning General Powers and Duties, which authorizes the commission to control the

quality ofthe state's air; §382.012, concerning State Air Control Plan, which authorizes

the commission to prepare and develop a general, comprehensive plan for the control of

the state's air; §382.0S1, concerning Permitting Authority ofCommission; Rules, which

authorizes the commission to issue a permit by rule for types offacilities that "ill not

significantly contribute air contaminants to the atmosphere; §382.0S13, concerning

Permit Conditions, which authorizes the commission to establish and enforce permit
Texas Commission on Environmental Quality

Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

conditions; and §382.0514, concerning Sampling, Monitoring, and Certification.

Page 18

The adopted amendment implements THSC, §§382.002, 382.003, 382.011, 382.012,

382.051, 382.0513, and 382.0514·

§106-4. Requirements for Permitting by Rule.

(a) To qualify for a permit by rule, the following general requirements must be

met.

(1) Total actual emissions authorized under permit by rule from the facility

shall not exceed 250 tons per year (tpy) of carbon monoxide (CO) or nitrogen oxides

(NOx); or 25 tpy of volatile organic compounds (VOC) or sulfur dioxide (S02) or

inhalable particulate matter (PM); or 15 tpv of particulate matter with diameters of 10

microns or less (PMJO); or 10 roy of particulate matter with diameters of 2.5 microns or

less (PM? 52 [(PMJO )]; or 25 tpy of any other air contaminant except carbon dioxide,

water, nitrogen, methane, ethane, hydrogen, and oxygen.

(2) Any facility or group offacilities, which constitutes a new major

stationary source, as defined in §116.12 of this title (relating to Nonattainment and

Prevention of Significant Deterioration Review Definitions), or any modification which
Texas Commission on Environmental Quality

Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

Page 19

constitutes a major modification, as defined in §116.12 ofthis title, under the new source

review requirements of the Federal Clean Air Act (FCAA), Part D (Nonattainment) as

amended by the FCAA Amendments of 1990, and regulations promulgated thereunder,

must meet the permitting requirements ofChapter 116, Subchapter Bofthis title

(relating to New Source Review Permits) and cannot qualify for a permit by rule under

this chapter. Persons claiming a permit by rule under this chapter should see the

requirements of §116.150 ofthis title (relating to New Major Source or Major

Modification in Ozone Nonattainment Areas) to ensure that any applicable netting

requirements have been satisfied.

(3) Any facility or group offacilities, which constitutes a new major

stationary source, as defined in 40 Code of Federal Regulations (CFR) §52.21, or any

change which constitutes a major modification, as defined in 40 CFR §52.21, under the

new source review requirements ofthe FCAA, Part C (Prevention of Significant

Deterioration) as amended by the FCAA Amendments of 1990, and regulations

promulgated thereunder, must meet the permitting requirements ofChapter 116,

Subchapter B ofthis title and cannot qualify for a permit by rule under this chapter.

(4) Unless at least one facility at an account has been subject to public

notification and comment as required in Chapter 116, Subchapter Bor Subchapter D of

this title (relating to New Source Review Permits or Permit Renewals), total actual
Texas Commission on Environmental Quality

Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

Page 20

emissions from all facilities permitted by rule at an account shall not exceed 250 tpy of

CO or NOx; or 25 tpy ofVOC or S02 or PM [PMlO] ; or 15 my of PMlO: or 10 tpy of PM25;

or 25 tpy of any other air contaminant except carbon dioxide, water, nitrogen, methane,

ethane, hydrogen, and oxygen.

(5) Construction or modification of a facility commenced on or after the

effective date of a revision ofthis section or the effective date of a revision to a specific

permit by rule in this chapter must meet the revised requirements to qualify for a permit

by rule.

(6) A facility shall comply with all applicable provisions ofthe FCAA, §111

(Federal New Source Performance Standards) and §112 (Hazardous Air Pollutants), and

the new source review requirements ofthe FCAA, Part C and Part D and regulations

promulgated thereunder.

(7) There are no permits under the same commission account number that

contain a condition or conditions precluding the use of a permit by rule under this

chapter.
Texas Commission on Environmental Quality

Chapter 106 - Permits by Rule

Rule Project No. 201O-020-101-PR

Page 21

(8) The proposed facility or group offacilities shall obtain allowances for

NOx if they are subject to Chapter 101, Subchapter H, Division 3 ofthis title (relating to

Mass Emissions Cap and Trade Program).

(b) No person shall circumvent by artificial limitations the requirements of

§1l6.1l0 ofthis title (relating to Applicability).

(c) The emissions from the facility shall comply with all rules and regulations of

the commission and with the intent ofthe Texas Clean Air Act CTCAA1, including

protection of health and property ofthe public, and all emissions control equipment

shall be maintained in good condition and operated properly during operation ofthe

facility.

(d) Facilities permitted by rule under this chapter are not exempted from any

permits or registrations required by local air pollution control agencies. Any such

requirements must be in accordance with TCAA, §382.1l3 and any other applicable law.
La onna Castanuc:•. Chief Cieri<

r.... ~lilH"" c'wifllnffiPfl1@lli!\l§HIl'

ORDER ADOPTING AMENDED RULES AND REVISIONS TO THE STATE

IMPLEMENTATION PLAN

THE STATE OF "TEXAS

COU~'TY OF TRAVIS

TEXAS COMMISSION ON ENVIRONMENTJII~",,,,,rrtl!<l!1jIi.iS8trueandconectcapyofa '''i501lllr1lMM, tit' envtl1lnmonllll Quality document. .,"E 0" which is flied inJIlI'Pennanenl records of the Commission. ~,"" Givenun rmY!Ill~ andlhoaoloioflioeon ,.", "Jh.._dAPR 29 2011

;I,. c

Docket No. 2010-0711-RUL

On April 20, 2011, the Texas Commission on Environmental Quality (Commission),

during a public meeting, considered adoption of amended § 101.1 and § 106,4. The

Commission adopts these amendments in § 101.1 in Chapter 101, (General Air Quality Rules,

Subchapter A, General Rules), § 106,4 in Chapter 106 (Permits By Rule, Subchapter A,

General Requirements); and corresponding revisions to the SIP. The amended rules replace

the figure in § 101.1(25) concerning de minimis impact levels with a reference to 40 Code of

Federal Regulations § 51.165(b)(2); add definitions for particulate matter with an

aerodynamic diameter less than or equal to a nominal 10 micrometers (PMlO), particulate

matter vl'ith an aerodynamic diameter less than or equal to a nominal 2.5 micrometers

(PM2 .

S), direct and secondary PM emissions; and add the applicable significant emission

thresholds for PM, PMlO, and PM2 .

S' Under Tex. Health & Safety Code Ann. §§ 382.011,

382.012, and 382.023 (Vernon 2001), the Commission has the authority to control the quality

ofthe state's air and to issue orders consistent with the policies and purposes ofthe Texas

Clean Air Act, Chapter 382 ofthe Tex. Health & Safety Code. The proposed rules were

published for comment in the November 19, 2010 issue ofthe Texas Register (35 TexReg

10147 and 10157)·

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code

Chapter 2001 (Vernon 2008), and 40 Code of Federal Regulations § 51.102, and after proper

notice, the Commission conducted a public hearing to consider the amended rules and

revisions to the SIP. Proper notice included prominent advertisement in the areas affected at

least 30 days prior to the date ofthe hearing. A public hearing was held in Austin on

December 13, 2010.

The Commission circulated hearing notices of its intended action to the public,

including interested persons, the Regional Administrator of the EPA, and all applicable local

air pollution control agencies. The public was invited to submit data, views, and

recoII,lmendations on the proposed amended rules and SIP revisions, either orally or in

writing, at the hearings or during the comment period. Prior to the scheduled hearing, copies

ofthe proposed, amended rules and SIP revisions were available for public inspection at the

Commission's central office and on the Commission's Web site.

Data, views, and recommendations of interested persons regarding the proposed

amended rules and SIP revisions were submitted to the Commission during the comment

period, and were considered by the Commission as reflected in the analysis oftestimony

incorporated by reference to this Order. The Commission finds that the analysis oftestimony
includes the names of all interested groups or associations offering comment on the proposed

amended rules and the SIP revisions and their position concerning the same.

. IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and

revisions to the SIP incorporated by reference to this Order are hereby adopted. The

Commission further authorizes staffto make any non-substantive revisions to the rules

necessary to comply with Texas Register requirements. The adopted rules and the preamble

to the adopted rules and the revisions to the SIP are incorporated by reference in this Order

as ifset forth at length verbatim in this Order.

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf ofthe Commission,

the Chairman should transmit a copy ofthis Order, together with the adopted rules and

revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to the Texas

SIP pursuant to the Federal Clean Air Act, codified at 42 U.S. Code Ann. §§ 7401 - 7671q, as

amended.

This Order constitutes the Order ofthe Commission required by the Administrative

Procedure Act, Tex. Gov't Code, § 2001.033 (Vernon 2008).

Ifany portion ofthis Order is for any reason held to be invalid by a court of competent

jurisdiction, the invalidity of any portion shall not affect the validity ofthe remaining

portions.

Date issued: APR 292011

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

... .. ... f)/ ... _

W,...,~ ~S::.:hD. C""',mm
CHAPTER 101. GENERAL AIR QUALITY

RULES

SUBCHAPTER A. GENERAL RULES

30 TAC §101.1

The Texas Commission on Environmentai Quality (TCEQ or

commission) adopts the amendment to §101.1.

I/W'J comments that proposed §35.1 01 (I) and (n) contain references to water conservation plans and drought contingency

plans but that the language is inconsistent between the two subsections. Section 35.101 (I) states that the emergency suspension may be contingent on full implementation of the plans and

measures, and that if the permittee does not have a water conservation plan and drought contingency plan, permittee shall be

required to develop and implement those plans in a required time

period. Section 35.101 (n), however, only states that the order

granting emergency or temporary suspension may require full

implementation of the water conservation plans and drought contingency plans "as a precondition for obtaining relief." Because

the proposed rules for Chapter 35 contempiate emergency suspensions of ,environmental conditions in water rights permits, it

seems that the rules should require full implementation of water

conservation and drought contingency plans or measures and

any inconsistency between §35.1 01 (I) and (n) should be clarified

by changing "may" to "shall" in the last sentence of§35.101(n).

The commission respectfully disagrees with this comment. The

sections cited are not inconsistent. Section 35.101 (I) provides

that the agency will require development and implementation

of water conservation and drought contingency plans, if the

applicant has none, in a prescribed time period sUbsequent

to granting the authorization. Section 35.101(n) provides that

the agency may require full implementation of those plans as a

precondition to relief, that is, prior to granting the authorization.

No change was made in response to this comment.

STATUTORY AUTHORITY

This amendment is adopted under Texas water Code (TWC),

§5.102, which establishes the commission's general authority

necessary to carry out its jurisdiction; TWC, §5.1 03, which establishes the commission's general authority to adopt rules; TWC,

§5.105, which establishes the commission's authority to set policy by rule; and TWC, §5.501, which establishes the commission's authority to adopt rules necessary to administer and carry

out emergency and temporary orders.

The adopted amendment implements TWC, §5.506 and

§11.14B.

This agency hereby certifies that the adoption has been reviewed

by iegal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on April 25, 2011.

TRD-201101537

Robert Martinez

Director, EnVironmental Law Division

Texas Commission on Environmental Quality

Effective date: May 15, 2011

Proposal publication date: November 19, 2010

For further information, please call: (512) 239-0779

• • •

The amendment is adopted with changes to the proposed text as

published in the November 19, 2010, issue of the Texas Register

(35 TexReg 10147) and wiH be republished.

The amendment will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

Background and Summary of the Factual BaSIS for the Adopted

Rule

This rulemaking adds clarifying definitions to TCEQ ruies necessary for proper implementation of new and revised federal

regUlations regarding the National Ambient Air Quality Standard

(NAAQS) for particulate matter (PM).

On JUly 1B, 1997, the EPA revised the NAAQS for PM to add new

standards for fine particles using PM with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM1.~) as an

indicator. However, at that time, certain difficulties regarding implementation of the PMu regulations remained, including the lack

of necessary tools to calculate emissions of PM2_~ and related

precursors, the lack of adequate modeling techniques to project

ambient impacts, and the .lack of PMu monitoring sites. Therefore, on October 23, 1997, EPA issued a memorandum prOViding for PM with an aerodynamic diameter less than or equal to

a nominal 10 micrometers (PM10) to be used as a surrogate for

PMa EPA reaffirmed use of the surrogate policy in a memorandum dated April 5, 2005.

On November 1, 2005, the EPA proposed regUlations to implement the New Source Review (NSR) program for PM". EPA

published the bUlk of the major NSR program final regulations for

PM" on May 16, 200B (effective on July 15, 200B). EPA noted

that this final action, with EPA's proposed rule on increments, significant impact levels (SILs), and significant monitoring concentration (SMC) when finai, will represent the final elements necessary to implement a PMu Prevention of Significant Deterioration (PSD) program. EPA PUblished the final rule on increments,

SILs, and SMC on October 20, 2010 (effective December 20,

2010 for the SILs and SMC, and October 20, 2011 for the increment demonstration). On February 11, 2010, the EPA proposed

two actions that would end EPA's 1997 policy aHowing sources

and permitting authorities to use a demonstration of compliance

with the PSD requirements for PM,o as a surrogate for meeting

the PSD requirements for PM". In the first action, the EPA proposed to repeal the "grandfathering" prOVision for PM,. contained

in the federal PSD program. The provision allows applicants for

proposed new major sources and major modifications that have

submitted a complete PSD permit application prior to the effective date of an amendment to the PSD regulations but have not

yet received final and effective PSD permit, to continue relying

on information already in the application rather than immediately

having to amend applications to demonstrate compliance with

the new PSD requirements. In the second action, EPA also proposed to end·eany the PM.. Surrogate Policy applicable in states

that have an approved PSD program in their SIP. The three-year

transition period for revising the SIP and for use of the surrogate

policy ends in May 2011, unless revised by EPA In an effort to

ensure the TCEQ meets regUlatory reqUirements of the Federal

Clean Air Act (FCAA), the commission is adopting amendments

to Chapter 101 and 30 TAC Chapter 106, Permits by Rule, to add

specific definitions related to PM2,! regUlation, and to address the

known requirements for implementation.

Existing federal regUlations reqUire both major and minor NSR

programs to address any poliutant for Which there is a NAAQS

ADOPTED RULES May 6, 2011 36 TexReg 2841
and precursors to the formation of such pollutant when identified for regulation by the EPA. TCEQ rules outline the requirements for both major and minor NSR programs under 30 TAC

§116.110, Applicability. This section requires any person who

plans to construct any new facility or to engage in the modification of any existing facility which may emit air contaminants into

the air of this stale to obtain a permit under §116.111, General

Application, or satisfy the conditions for another authorization

type as listed within that section. Chapter 116, Subchapter B,

New Source Review Penn its, outlines the general requirements

for both minor and major NSR permits. Specifically, §116.111

covers the general application requirements for both major and

minor NSR. Minor NSR sources are required to compiy with all

sections of §116.111 except §116.111 (a)(2)(H) and (I) which only

apply to major NSR (nonattainment and PSD).

For precursors, EPA prOVided some clarification regarding regulation of PM" precursors in the May 16, 200B, PM" implementation rule, stating that generally where scientific data and modeling analyses provide reasonable certainty that the pollutant's

emissions are a significant contributor to ambient PM2,~ concentrations, EPA believes that pollutant should be identified as a

"regulated NSR pOllutant" and SUbject to the PM" NSR provisions. Conversely, where the effect of a pollutant's emission

on ambient PM2~ concentrations is SUbject to substantial uncertainty, such that in some circumstances, the pollutant may not

result in the formation of PM", or control of the pollutant may

have no effect or may even aggravale air quality, EPA generally believes it is unreasonable to establish a nationally-applicable presumption that the pollutant is a regUlated NSR pollutant

SUbject to the requirements of NSR for PM". Therefore, EPA

has established certain presumptions regarding the PM2,~ precursors, sulfur dioxide (SO,), nitrogen oxide (NO,), volatile organic

compound (VOC) and ammonia. Specifically, EPA presumes

S02 and NOx to be significant contributors to ambient PMB concentrations in all areas and thus, have termed these pollutants

"presumed in," meaning requiring regulation as a precursor for

PM:,5' Conversely, the final rule does not require regulation of

vac or ammonia as a precursor to PM2.! for the NSR program

because additional research and technical tools are necessary

to characterize the emissions inventories for vac, and there

is considerable uncertainty related to ammonia as a precursor.

Therefore, EPA has categorized these pollutants as "presumed

out," meaning not regulated as a precursor for PM25 regulation.

However, states have the option to exclude NOx' as a precursor

by demonstrating that NOx emissions are not a significant contributor to ambient PM:5concentrations in a particular area. In

addrtion, states have the option of identifying VOC and/or ammonia as precursor(s) by demonstrating that emissions for vac

and/or ammonia are a significant contributorin an area, and thUS,

should be SUbject to major NSR.

Furthermore, in the Final Rule for increments, SILs, and SMC,

EPA removed the reference to "direct" PM:,! emissions, to allow for consideration of precursor emissions when determining

whether the air quality impact of a major new source or modification would be less than the PM,., SILs. EPA has indicated

that estimating techniques are being developed that will be able

to be applied to the PMH analysis in the near future. Removing the reference to direct emissions in the rule also allows EPA

to include precursor emissions through guidance without notice

and comment required for rUlemaking. Furthermore, EPA may

require precursors be included in "photochemical" modeling to

obtain concentrations that could include direct and secondarily

fonned PM:,5 in the source impact and air quality analyses.

36 TexReg 2842 May 6, 2011 Texas Register

EPA has also provided ciarification regarding regulation of condensable PM under the PM" regUlations stating they will not require states to address condensable PM in establishing enforceable emissions limits for either PM,o or PM2

.

5 in NSR pennits during the transitional period that ended on January 1, 2011. During this transitional period, EPA assessed the capabilities of test

methods available for measuring condensable emissions, pUblishing a final rule for methods of measuring filterable PM.. and

PM25 and measuring condensable PM emissions on December

21, 2010. The final rule promUlgates amendments to Methods

201A and 202. The final amendments to Method 201A add a

partiCUlate-sizing device to allow for sampling of partiCUlate matterwith mean aerodynamic diameters less than orequal to PM:,!'

The final amendments to Method 202 revise the sample collection and recovery procedures of the method to reduce the formation of reaction artifacts that could lead to inaccurate measurements of condensable partiCUlate matter. Additionally, the final

amendments to Method 202 eliminate most of the hardware and

analytical options in the existing method, thereby increasing the

precision of the method and improving the consistency in the

measurements obtained between source tests performed under

different regUlatory authorities. This finai rule became effective

on January 1, 2011.

Finally, EPA clarified that there will be no changes to the implementation of Best Available Control Technology (BACT) requirements for PM" at major sources that are subject to the PSD

program. If a new major source will emit, or has the potential

to emit, a significant amount of a regUlated NSR pollutant in an

attainment area for that pOllutant, the source must apply BACT

for each emissions unit that emits the pollutant. In addition, if

a physical change or operational change at an existing major

source will result in a significant emissions increase and significant net emissions increase of a regulated NSR pOllutant, the

source must apply BACT to each proposed emissions unit experiencing a net increase in emissions of that pollutant as a result

of the physical or operational change in the unit. Under the PM"

PSD program, these requirements will apply to direct PM" emissions; sa2 emissions; and NOx emissions, unless states demonstrate that NOx is not a significant contributor to ambient PM:.5

concentrations in that area; and to VOC if identified by a state

as a precursor in the PM:.5 attainment area where the source

is located. Although EPA has specified that direct emissions

of PM,., at or above the significant emission rate (SER) would

trigger a BACT analysis, EPA has not specified whether a precursor's emissions above the precursor's SER would trigger a

BACT analysis for PM2

,5 if direct emissions of PM2

.

5 are below the

PM,., SER. Therefore, it is presumed that BACT for direct PM"

will apply only if direct PM:.5emissions are significant, and BACT

for precursor pOllutants will apply only if the precursor emissions

equal or exceed the specific SER for the precursor pollutant.

Section Discussion

The commission adopts the amendment to §101.1, Definitions,

to remove the figure in §101.1 (25) prOViding the de minimis

impact leveis for SO" PM.., nitrogen dioxide (NO,), and camon

monoxide (CO). In its place, the definition will reference 40

Code of Federal Regulations (CFR) §51.165(b)(2). 40 CFR

§51.165(b)(2) provides the significance ievels, above which a

major source or major modification would be considered to cause

or contribute to a violation of the NAAQS when such source or

modification WOUld, at a minimum, exceed the listed significance

levels. In addition, the commission is adopting changes to

§101.1(75), which currently defines PM. The adoption will move

the definition for PM.. from §101.1(7B) to §101.1(75)(A), and add
the definition for PM" under §101.1(75)(B). PM emissions is defined under §101.1 (76). This section will be amended to include

§101.1(76)(A) and (B), which will define direct and secondary

PM emissions. The definitions for direct and secondary PM

emissions were changed from proposai due to EPA:s comment.

PM,. emissions will be defined under existing §101.1(78) when

the definition for PM" is moved to new §101.1(75)(A). These

changes will provide the definitions for PM\O and PM2,s emissions

and the definitions for direct and secondary PM emissions

which currently do not exist. The definition of PM2,s emissions in

§1 01.1 (78) has been amended to address continuing technical

issues associated with the measurement of PM2,5 in wet gas

streams. EPA acknowledged in promulgating amendments to

its particulate matter measurement methods that "using Method

5 on stacks with entrained moisture and assuming that the catch

is PM2,s can potentially overestimate PMu concentrations....

Monitoring the emission of PM,o or PM2_~ from a wet gas stream

is a chalienging problem that has not been addressed successfully despite considerable effort." EPA further notes that state

permitting authorities have the responsibility to interpret EPA's

recommendations regarding wet gas measurement (December

21, 2010, issue of the Federal Register (FR) (75 FR 80,117,

80,126)). Based on these technical issues and the commission's

interpretation of EPA's recommendations, the final language of

§101.1 (78) has been amended to aliow the use oltest methods

approved under the SIP or an EPA delegation or approval.

Finally, the federal significant monitoring concentration for PM2

.

S'

4 micrograms per cubic meter 24-hour average, also applies to

Texas PMH sources.

Final Regulatory Impact Analysis

The commission reviewed the adopted rulemaking in light of the

reguiatory analysis requirements of Texas Govemment Code,

§2001.0225 and determined that the adopted rule does not meet

the definition of a "major environmental rule." Texas Government

Code, §2001.0225 states that 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, a

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

of the state." Vllhile the purpose of this rUI~making is to increase

protection of the environment and reduce risk to human health,

it is not expected that this rulemaking will adversely affect in a

material way the economy, a sector of the economy, prOductivity, jobs, the environment, or the public heaith and safety of the

state or a sector of the state.

Furthermore, while the adopted rulemaking does not constitute

a major environmental rUle, even if it did, a regulatory impact

analysis would not be required because the adopted rulemaking

does not meet any of the four applicability criteria for requiring a

regulatory impact analysis for a major environmental rule. Texas

Health and Safety Code (THSC), §2001.0225 applies only to a

major environmental rule which: 1) exceeds a standard set by

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

2) exceeds an express requirement of state Jaw, unless the rule

is specifically required by federal law; 3) exceeds a requirement

of a delegation agreement or contract between the state and an

agency or representative ofthe federal government to implement

a state and federal program; or 4) adopts a rule solely under the

general powers of the agency instead of under a specific state

law. The adopted rulemaking does not meet any of the four applicability criteria listed in Texas Government Code, §2001.0225

because: 1) the adopted rulemaking is designed to meet, not

exceed the relevant standard set by federal law; 2) parts of the

adopted rulemaking are directly required by state law; 3) no contract or delegation agreement covers the topic that is the SUbject

of this rulemaking; and 4) the adopted rulemaking is authorized

by specific sections of THSC, Chapter 382 (also known as the

TCAA), which is cited in the statutory authority section.

The specific intent of the adopted rulemaking is to amend Chapter 101 to add definitions necessary for implementation of PM"

NSR regUlations, and repiace current definitions with references

to federal definitions for efficiency. The preamble to this rulemaking clarifies how precursors and condensable emissions are

addressed, that EPA has made no changes to the BACT analysis process for PM:", and prOVides a basis for regUlation of PM~_~

emissions when the use of PM,o as a surrogate for PM~., is no

longer applicable.

Takings Impact Assessment

The commission evaluated the adopted rule and performed an

analysis of whether the adopted rule constitutes a taking under

Texas Govemment Code, Chapter 2007. The specific purpose of

the rulemaking is to facilitate implementation of new federal regulations under the NSR program. The adopted amendment would

SUbstantially advance this stated purpose by adding definitions

to Chapter 101, necessary for implementation of the PM~, regulations. The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to the adopted

rule because this is an action that is reasonably taken to fulfill

an obiigation mandated by federal law, which is exempt under

Texas Govemment Code, §2007.003(b)(4). Specifically, EPA

has promulgated new NSR regUlations for PM~, in accordance

with 40 CFR §§52.21, 52.24, 51.160- 51.154,51.165, 51.165(b),

51.166, and 40 CFR Part 51, Appendix S. TCEQ, as the administrator of the NSR program forTexas, is tasked with implementing

the new federal regulations in accordance with 40 CFR §51.166

and FCAA, §107(d)(1)(A)(ii) or (iii).

Nevertheless, the commission further evaluated the adopted rule

and performed an assessment of whether the adopted rule consmutes a takings under Texas Government Code, Chapter 2007.

The specific purpose of the adopted rule is to facilitate implementation of new federal regUlations under the NSR program. The

adopted rule would substantially advance this stated purpose by

adding new definitions to Chapter 101, necessary for implementation of the PM,. regulations.

Promulgation and enforcement of the adopted rule would be neither a statutory nor a constitutional taking of private real property. Specifically, the SUbject adopted regUlations do not affect

a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the

owner's right to property and reduce its value by 25% or more

beyond that which would otherwise exist in the absence of the

regUlations. In other words, the rule does not affect private property in a manner that restricts or limits an owner's right to the

property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not

meet the definition of a takings under Texas Government Code,

§2007.002(5).

Consistency with the Coastal Management Program

The commission determined that this rulemaking action relates

to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance wrth the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code,

§§33.201 et seq.), and commission rules in 30 TAC Chapter 281,

ADOPTED RULES May 6. 2011 36 TexReg 2843
Subchapter B, concerning Consistency with the Texas Coastal

Management Program. As required by §281.45(a)(3) and 31

TAC §505.11 (b)(2), relating to Actions and Rules Subject to the

Coastal Management Program, commission rules goveming air

pollutant emissions must be consistent with the applicable goals

and policies olthe CMP. The cemmission reviewed this action for

consistency with the CMP goals and policies in accordance with

the nules of the Coastal Coordination Council and detennined

that the action is consistent with the applicable CMP goals and

policies.

The CMP goal applicable to this adopted nulemaking action is

the goal to protect, preserve, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The adopted amendment will indirectly

benefit the environment because it will require PMl5 emissions

to be evaluated for compliance not to exceed significance levels which will ensure that there will be fewer adverse impacts to

public health and the environment. The CMP policy applicable to

this rulemaking action is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air

quality in the coastal areas (31 TAC §501.32). Therefore, in accerdance with 31 TAC §505.22(e), the cemmission affinns that

this rulemaking action is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal management program during the public

comment period. No comments were received on the Coastal

Management Program.

Effect on Sites SUbject to the Federal Operating Pennlts Program

There should be no significant effect on facilities subject to the

Federal Operating Pennlts Program since APD is currently conducting reviews of sources subject to PSD and minor NSR that

meet federal definitions and requirements. Permit holders may

need to conduct an evaluation and detennine if a revision to a

Federal Operating Pennit is needed to update the applicable requirements.

Public Comment

The cemmission held a public hearing on December 13, 2010.

The cemment period closed on December 20, 2010. The commission received comments from Baker Bolts L.L.P. on behalf of

the Texas IndUStry Project (TIP), an indiVidual, and EPA. The individual and the EPA were in support of the nule project. EPA did

suggest changes to the definitions of "Direct PM Emissions" and

"Secondary PM Emissions." TIP was opposed to the rule project.

Response to Comments

An individual supports this rule project and hopes TCEQ implements the new more stringent PM2

., and does not take the allowed state implementation plan of 10 micrometers or less. In

addition, the individual would like to see some suggested gUidance in this proposed rule on fonnation of PM2

.

5 from photochemical interaction.

The commission did not make any changes to the rule in response to this comment. The TCEQ will develop non-rule guidance to address photochemical modeling.

EPA appreciates the state's proposed revisions but has concerns over the proposed definitions for "Direct PM Emissions"

and "Secondary PM Emissions." EPA states the definitions are

similar to, but not identical to the definitions of "Direct PM25" and

"PM,. precurso~' in 40 CFR §51.1 000. EPA states that TCEQ

36 TexReg 2844 May 6, 2011 Texas Register

must either use the federal definitions or provide a demonstration that its proposed definition is as stringent as or more stringent than the federal definitions. IfTexas excludes NO as a PM

precursor, it must provide a demonstration that NO~ i; not a sig=

nificant contributor to ambient PM2s' Texas may include VOCs

and ammonia and PM2

.

S precursors if Texas has identified these

substances as significant contributors to ambient PM2S'

EPA also noted that they have proposed ruiemaking for repealing

the Grandfathered Provisions, Implementation of the NSR Program for PM,.,; Notice of Proposed Rulemaking to repeal Grandfathering Provision and the end the PM" Surrogate policy prior

to the May 16,2011 deadline, but has not yet taken final action.

EPA also issued a recent order in response to a Title V petition

for Louisville Gas and Electric Company (LG&E), located In Trimble County, Kentucky, that discussed use of PM,o as a surrogate

for PM". They remind TCEQ and sources in Texas to carefully

consider the case law and the limits of the Surrogate policy discussed in the LG&E petition decision to detennine what infonnation and analysis needs to be included in the pennit application

and pennlt record before relying on the Surrogate policy.

The commission did make changes to the proposed text based

on the comment that the definitions for "Direct PM Emissions"

and "Secondary PM Emissions" are similar to, but not identical

to the definitions of "Direct PMu " and "PM2

.

5 precursor" in 40 CFR

§51.1 000. The proposed definitions were derived from EPAs

Federal Register notice (73 Federal Register 28341, May 16,

2008). The proposed definitions have been revised to be identical to the definitions of "Direct PM2

.:' and "PM2~ precursor" in 40

CFR §51.1000.

The commission appreciates EPA's comments and continues to

track developments on case law and EPA's policies concerning

PM2.5 issues.

TIP opposes the proposed amendment at this time since EPA

has not identified a test method for measuring different types of

PM and condensable PM". They also state at this time there are

no federally approved test methods for measuring PM". While

EPA has proposed changes to existing PM test methods in orderto more accurately measure PM2

.5' EPA recognizes there are

technical issues that need to be resolved. TIP states that nule

comments reflect a strong desire for EPA to consider other PM2

.

5

measurement approaches. There are concerns with sources being required to perform an emission test to demonstrate compliance with a PM2

.5 PSD Permit emission limit when there are

no federally approved methods, and significant technical issues

remain associated with the test methods for measuring PM:u '

TCEQ should allow regUlated entities to use test methods that

are shown to be equivalent rather than limiting sources to only

the method or methods promulgated by EPA. EPA issued additional PM,., rules on October 20, 2010, establishing significant

impact levels and de minimis monitoring levels for PM2,S, TIP is

concerned that this proposal does not address the concepts established in that rulemaklng.

The commission did not make any changes to the rule in response to these comments. This rulemaking is necessary since

EPA proposed rulemaking for repealing the Grandfathered provisions, Implementation of the NSR Program for PM,,; Notice of

Proposed Rulemaking to repeal Grandfathering Provision and

the end to the PM" Surrogate policy prior to the May 16, 2011

deadline, which has not been finalized. In efforts to ensure the

TCEQ meets regUlatory requirements of the FCAA, the commission is adopting amendments to add specific definrtions related
to PM2

_

5 regulation and to address known requirements for implementation.

Subsequent to receipt of TIP's comments, EPA has pUblished

the final rule on the Methods for Measurement of Filterable PM"

and PM" and Measurement of Condensable PM Emissions (75

Federal Register 80118, December 21,2010).

This adoption addresses known requirements to date in order to

meet the May 16, 2011 deadline for implementation of the PM2.5

requirements and the end of the PM" Surrogate policy. TCEQ

will consider any future rulemaking, as necessary to address future state or federal regulatory requirements.

Statutory Authority

The amendment is adopted 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

TWC; §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and

under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amendment is also adopted under THSC, §382.002,

concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent

with the protection of public health, general welfare, and physical

property; §382.003, concerning Definitions; §382.011, conceming General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning

State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control

of the state's air; §382.051, concerning Permitting Authority of

Commission; Rules, which authorizes the commission to issue

a permit by rule for types of facilities that will not significantly

contribute air contaminants to the atmosphere; §382.0513, concerning Permit Conditions, which authorizes the commission to

establish and enforce permit conditions; and §382.0514, concerning Sampling, Monitoring, and Certification.

The adopted amendment implements THSC, §§382.002,

382.003,382.011,382.012,382.051,382.0513, and 382.0514.

§lOI.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 elearly indicates otheN·ise.

(l) Account·-For those sources required to be permitted

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

Program), all sourcesthat are aggregated as a site. For all other sources,

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 aeidic gases derived from natural

gas sweetening proeesses.

(3) Agency established facility identifieation number--For

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

Events and Scheduled Maintenance, Startup, and Shutdo\.\-n Activities), a unique alphanumeric code required to be assigned by the owner

or operator of a regulated entity that the emission inventory reporting

requirements of §101.10 of this title (relating to Emissions InventOr)'

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 h~ 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, and/or 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 of on a shared basis in an integrated waste management unit owned, operated by, and located within

a eontiguous manufaeturing complex.

(9) Carbon adsorber--An add~on eontrol 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.

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

a substrate for protective, deeorative, 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 c1eaning-.A batch process that uses liquid solvent to remove soils from the surfaces ofparts or to dr)' the parts

by spraying, brushing, flushing, andior 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 or system 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 eompounds for a charge, exeept a

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

that accepts v¥1lSte only from other facilities own~d or effectively

controlled by the same person.

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

(17) Commereial medical waste incinerator--A faeiHty that

accepts for incineration medieal waste generated outside the property

boundaries of the faeility.

ADOPTED RULES May 6, 2011 36 TexReg 2845
(18) Component--A piece ofequipment, including, but not

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

has the potential to leak volatile organic compounds.

(19) Condensate·-Liquids that result from the cooling

and/or pressure changes of produced natural gas. Once these liquids

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

are no longer considered condensates.

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

construction Or demolition projects.

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

machine. equipment, contrivance, or combination ofsame, used to de·

stroy, eliminate, reduce, or control the emission of air contaminants to

the atmosphere.

(22) Conveyorized degreasing--A solvent eleaning process

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

automatically provide a eontinuous 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 ponals.

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

whieh there is a national ambient air quality standard established under

40 Code of Federal Regulations Part 50.

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

and/or eondensate, after processing and/or treating in the producing op·

erations, from storage tanks or automatic transfer facilities to pipelines

or any other forms oftransportation.

(25) De minimis impact··A ehange in ground level concentration ofan air contaminant as a result ofthe operation ofany new major stationary SOurce or ofthe operation ofany existing source that has

undergone a major modification that does not exceed the significance

levels as specified in 40 Code ofRegulations (CFR) §51.165(b)(2).

(26) Domestic wastes·-The garbage and rubbish normally

resulting from the funetions oflife within a residenee.

(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 unseheduled

maintenance, startup, or shutdo\\'I1 actiVity, from a common eause 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 aeeordance with Chapter

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

Banking and Trading).

(30) Emissions reduction eredit eertifieate--The certificate

issued by the exeeutive director that indicates the amount of qualified

reduetion available for use as offsets and the length oftime the reduc·

tion is eligible for use.

(31) Emissions unit--An)· part of a stationary souree that

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

regulation under the Federal Clean Air Act.

(32) Excess opaeity event-·When an opacity reading is

equal to or exeeeds 15 additional percentage points above an applicable opacity limit, averaged over a six-minute period.

(33) Exempt solvent··Those earbon compounds or mixtures of earbon compounds used as solvents that have been excluded

from the definition of volatile organie eompound.

36 TexReg 2846 May 6, 2011 Texas Register

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

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

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

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

and separate closu~ seals, one above the other, containing an enclosed

space between them.

(35) Federal motor vehicle regulation--Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of

Federal Regulations Part 85.

(36) Federally enforceable--AlIlimitations and conditions

that are enforceable by the United States Enviromnental 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 per·

mits 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 (i.e., lacking an enclosed cOmbustion ehamber) whose combustion air is provided by uneontrolled ambient air around the flame, and that is used as a control

deviee. A flare may be equipped with a radiant heat shield (with or

without a refractory lining), but is not equipped with a flame air can·

trol damping system to control the air/fuel mixture. In addition, a flare

may also use auxiliary fuel. The eombustion 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

0396-01, Standard Speeifications for Fuel Oils, revised 2001. This

includes fuel oil grades 1, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light),

4, 5 (Light), 5 (Heavy), and 6.

(39) Fugitive emission-Any gaseous or particulate con·

taminant entering the atmosphere that could not reasonably pass

through a stack, ehimney, 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, eooking, and consumption oHood, ineluding waste materialsfrom

markets, storage facilities, and handling and sale of produce and other

food products.

(41) Gasoline--Any petroleum distillate having a Reid vapor pressure offour pounds persquare ineh (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 hy Resource Conservation and Recovery Act, 42 United

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

(43) Heatset (used in offset lithographie printing)--Any op·

eration where heat is required 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 coma

bustibles ofthe waste and is equipped with a flue for conducting products of combustion to the atmosphere. Any combustion device that

bums] 0% 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 detennine hourly flow rates ofsolid waste and burning

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

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

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

when approved by the exeeutive director. Devices burning untreated

wood scraps, waste wood, or sludge from the treatment of wastewater

from tbe process mills as a primary fuel for heat recovery are not ineluded 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 eompliance 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 transfonned into new products, including the component parts ofproducts,

by meehanical or chemical processes.

(48) Industrial furnaee--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 fwnaces; pulping recovery furnaces;

combustion devices used in the recovery of sulfur 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 1 industrial solid waste or Class 1 waste is any

industrial solid waste designated as Class 1 by the executive director

as any industrial solid waste or mixture of industrial solid wastes that

because of its concentration or physical or chemical characteristics is

toxic, corrosive, flammable, a strong sensitizer or irritant, a generator

of sudden pressure by decomposition, heat, or other means, and may

pose a substantial present or potential danger to human health or thc

environment when improperly processed, stored, transported. or oth·

envise managed, including hazardous industrial waste, as defined in

§335.1 and §335.505 of this title (relating to Definitions and Class 1

Waste Determination).

(B) Class 2 industrial solid waste is any individual solid

waste or combination ofindustrial solid wastes that cannot be described

as Class 1 or Class 3, as defined in §335.506 of this title (relating to

Class 2 Waste Determination).

(C) Class 3 industrial solid waste is any inert andessentially insolubJc 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 Detennination).

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

fixed roof tank that rests upon or is floated upon the liquid being contained. and is eqUipped with a closure seal or seals to close the space

between the cover edge and tank shell.

(51) Leak--A volatile organic compound concentration

greater than IO~OOO parts per million by volume or the amount specified by applicable role, whichever is lower; or the dripping or exuding

of process fluid based on sight, smell. 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 of] 990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under 42 United

States Code, §7505a, as described in 40 Code of Federal Regulations

Part 81 and in pertinent Federal Register notices.

(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 of being used, as a means oftransportation on water. and that is constructed

or adapted to carTy. or that carries, oil, gasoline, or othcr volatile 01'-

ganie 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 braces to 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 Cnde (USC), §134 and 49 USC, §1607.

(60) Mobile emissions reduction credit-~The credit obtained from an enforceable, pennanent, quantifiable, and surplus

(to other federal and state roles) 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 H,

Division 1 of this chapter.

(61) Motor vehicle-A self-propelled vehicle designed for

transporting persons or property on a street or highway.

(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, commercial institutional, and

recreational activities, including garbage, rubbish, ashes, street eleanings, dead animals, 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

ADOPTED RULES May 6, 2011 36 TexReg 2847
for processing, storing. or disposing of solid waste. A facility may

be publiely or privately owned and may eonsist 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 area ofland

or an exeavation that receives household waste and that is not a land

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

those tenns are defined under 40 Code of Federal Regulations §257.2.

A municipal solid waste landfill (MSWLF) unit also may receive other

types of Resource Conservation and Reco\-'ery Act Subtitle D wastes,

such as commereial 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 n~' 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 earbon 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 eoncentration flowing onto a property as measwed at any point. Where there is no expectcd influence ofthe air contaminant flowing onto a property from other SOurces, the net ground

level concentration may be detennined by a measurement at or beyond

the property boundar)'.

(68) New source--Any stationar:r source, the construction

or modification of which was eommenced after March 5,1972.

(69) Nitrogen oxides (N0l')--The sum of the nitrie oxide

and nitrogen dioxide in the flue gas or emission point, collecti\'ely expressed as nitrogen dioxide.

(70) Nonattainment area--A defined region within the

state that is designated by the United States Environmental Protection

Agency (EPA) as failing to meet the national ambient air quality

standard (NAAQS or standard) for a pollutant for which a standard

exists. The EPA will designate the area as nonattainrnent 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 (CFR) Part 81 and pertinent Federal Register notices.

The designations and elassifications for the one-hour ozonc national

ambient air quality standard in 40 CFR Part 81 were retained for the

purpose of anti-backsliding and upon detennination by the EPA that

any requirement is no longer required for purposes ofanti-baeksliding,

then that requirement no longer applies.

(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 of air Contaminants obstructs the transmission of light expressed as the percentage oflight obstrueted as measured by an optical inslrUment or trained

observer.

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

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

solvent vapor used to clean or dry parts through condensation of the

hot solvent vapors on the parts.

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

proeess that is not conducted in a combustion unit.

36 TexReg 2848 May 6, 20ll Texas Register

(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 eonditions.

(A) Particulate matter with diameters less than 10

micrometers (PMw)--Particulate matter with an aerodynamic diameter

less than or equal to a nominal ten micrometers as measured by a

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

Part 50. Appendix J, and designated in aceordance with 40 CFR Part

53, or by an equivalent method designated with that Part 53.

(B) Particulate matter with diameters less than 2.5

micrometers (PM,,)-~Particulatematter with an aerodynamic diameter

less than or equal to a nominal 2.5 mierometers as measured by a

reference method based on 40 CFR Part 50, Appendix L, and designated in accordance with 40 CFR Part 53, or by an equivalent method

designated with that Part 53.

(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 speeified at 40 Code of Federal Regulations

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

(A) Direct PM emissions--Solid particles emitted

directly from an air emissions source or activity, or gaseous emissions

or liquid droplets from an air emissions source or activity which

condense to form particulate matter at ambient temperatures. Direct

2.5 micromcters (PM;c,) emissions inelude elemental earbon, directly

emitted organic carbon, directly emitted sulfate, directly emitted

nitrate, and other inorganic partieles (ineluding but not limited to

crustal materials, metals, and sea salt).

(B) SecondaI)' PM emissions--Those air pollutants

other than PM],! direet emissions that contribute to the formation of

PM;cJ' PM:u preeursors inelude sulfur dioxide (SO). NOx' volatile

organic eompounds, and ammonia.

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

or other produets througb distillation ofcrude oiL or through the redistillation, craeking, extraction, refonning, or other processing of unfinished petroleum derivatives.

(78) PM,-, emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal 2.5

micrometers emitted to the ambient air as measured by an applieable

reference method, or an equivalent or alternative method specified in

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

under a state implementation plan or under a United States Environmental Protection Agency delegation or approval.

(79) PM," emissioris--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 coIUlection therewith, and all other methods or fonns
5,000 pounds;

(-h-) chlorofluoromethane (HCFC-31)

(-u-) difluoromethane (HFC·32) - 5,000

(-i-) chloropentafluoroethane (CFC-1l5)

1.1,1.3,3-pentafluorobutane (HFCpentafluoroethane (HFC-125) - 5,000

(-hh·)

365mfc) - 5,000 pounds;

(-ii-)

pounds;

(-j-) 2-chloro-I, 1.1,2-tetrafluoroethane

(HCFC-124) - 5,000 pounds;

(-k-) l-chloro-I,I.2,2 tetrafluoroethane

(HCFC-124a) - 5,000 pounds;

(-1-) I, l.l.2,3,4,4.5,5,5~decafluoropentane

(HFC 43-lOmee) - 5,000 pounds;

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

(-n-) I,I-dichloro-I-fluoroethane (HCFC141b) - 5,000 pounds;

(-0-) 3.3-dichloro-I,I,2,2-pentafluoropropane (HCFC-225ca) - 5,000 pounds:

(-p-) 1,3-dichloro~ I, L2.2,3-pcntafluoropropane (HCFC-225cb) - 5,000 pounds;

(-q-) I,2-dichloro-l,1,2.2-tetrafiuoroethane

(CFR-114) - 5,000 pounds;

(-r-) l,l-dichlorotetrafluoroethane (CFC.

114a) - 5,000 pounds;

(-s-) 1,2-dichloro-l,I,2-trifluorocthane

(HCFC-123a) • 5,000 pounds;

(-t-) I,I-difluoroethane (HFC-152a) - 5,000

pounds;

5,000 pounds;

(-y-) 1,1,1,2,3,3,3-heptafluoropropane

(HFC-227ea) - 5,000 pounds;

(-z·) 1,1,1,3,3,3·hexafluoropropane (HFC236fa) - 5,000 pounds;

(-aa-) 1,1,1,2,3,3-hexafluoropropane

(HFC-236ea) - 5,000 pounds;

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

(-ce-) isopropyl aleohol- 5,000 pounds;

(-dd-) mineral spirits - 5,000 pounds;

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

(-if-) oxides of nitrogen - 200 pounds in

ozone nonattainment, ozone maintenanee, early action compact areas,

Nueces County, and San Patrieio County, and 5,000 pounds in all

othcr areas of the state, which should be used instead of the RQs for

nitrogen oxide and nitrogen dioxide prOVided in 40 CFR Part 302,

Table 302.4, the column "final RQ";

(-gg.) pentachlorofluoroethanc (CFR-lll) -

pounds;

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

(-w-) ethylenc - 5,000 pounds, except in the

HGB and BPA ozone nonattainrnent areas as defined in paragraph (70)

of this section, where the RQ must be 100 pounds;

(·x-) ethyllluoride (HFC·161) 5,000

(-d-) carbon monoxide - 5,000 pounds;

(-e-) I-chloro·I,I-difluoroethane (HCFCI42b) - 5,000 pounds;

(-f-) chlorodifluoromethane (HCFC·22) -

(-g.) l-chloro-l-fluoroelhane (HCFC·151a) -

5,000 pounds;

5,000 pounds;

pounds;

5,000 pounds;

(-ii·) 1,1.2,2,3-pentafluoropropane (HFC·

245ca) - 5,000 pounds;

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

(A) for individual air contaminant eompounds and

speeifically listed mixtures by name or Chemieal Abstracts Service

(CAS) number. cither:

(i) the lowcst of the quantities:

(I) listed in 40 Code of Federal Regulations

(CFR) Part 302. Table 302.4. the column "final RQ";

III) listed in 40 CFR Part 355, Appendix A, the

column "Reportable Quantity"; or

(III) listed as follows:

(-a-) aeetaldehyde - 1,000 pounds, cxcept in

the Houston-Galveston-Brazoria (HGB) and Beaumont-Port Arthur

(BPA) ozone nonanainment areas as defined in paragraph (70) ofthis

section. where the RQ must be 100 pounds;

(-b-) butanes (any isomer) - 5,000 pounds~

(-e-) butenes (any isomer, exeept l.3-butadienc) - 5.000 pounds, except in the HGB and BPA ozone nonattainment

areas as defined in paragraph (70) ofthis section, where the RQ must

be 100 pounds;

of manufacturing or processing that may emit smoke, particulate matter, gaseous matter, or visible emissions.

(82) Process weight per hour--"Proeess 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 gaseous fuels and combustion

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

operation from the beginning of an)' 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 ov,mership 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 of the applicable air contaminant that are sufficient to provide for attainment of the applicable national ambient air

quality standard in the designated nonattainrnent 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 loeation that are

owned or operated by the samc person. The tenn ineludes any propcrt)' under common ownership or control identified in a pennit or used

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

loeation. Owners or opcrators of pipelines, gathering lines, and flow~

lines under common o\\-'Dership or control in a particular eounty may

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

regulation of emissions events.

(86) Remote rescrvoir eold solvent c1caning--Any eold solvent cleaning operation in whieh liquid solvent is pumped to a sink-like

work area that drains solvent back into an enelosed eontainer while

parts are being e1eaned, allowing no solvent to pool in the work area.

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

in any 24-hour period. results in an unauthorized emission from any

emissions point equal to or in excess ofthe reportable quantity as defined in this section.

ADOPTED RULES May 6, 2011 36 TexReg 2849
(.yy-) trifluoromethane (HFC-23) - 5,000

100 pouods;

pounds: or

5,000 pounds;

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

(D) for facilities where air contaminant compounds are

measured directly by a continuous emission monitoring system providing updated readings at a minimum 15-minute interval an amount,

appro\'ed 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:

(i) less than one-half of any applicable ambient air

standards; and

(ii) less than two times the concentration of applieable 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 bum 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 activit)' is an activity that the owner or operator of the regulated entity whether performing or otherwise affected by the activity,

provides prior notice and a final report as required by §I01.211 ofthis

title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice or final report

includes the information required in § I01.211 ofthis title: and tbe aetual 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 expeeted

to, and do not, exceed an RQ, a scheduled maintenance, startup, or

shutdown activity is one that is recorded as required by §101.211 of

this title. Expected excess opacity events as described in §101.201(e)

ofthis title (relating to Emissions Event Reporting and Reeordkeeping

Requirements) resulting from scheduled maintenance, startup, or shut·

down activities are those that provide prior notice (ifrequired), and are

recorded and reported as required by §101.211 ofthis title.

(91) Siudge--Any solid or semi-solid., or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive ofthe treated emuent from a wastewater treatment plant; or air pollution control equipment.

(92) Smoke--Small gas·bom 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 poilu·

tion control equipment, and other discarded material, including solid,

liquid., semisolid, or containerized gaseous material resulting from industrial, municipal conunercial, mining, and agriCUltural operations

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

(-tt-) 1,1,1,2-tetrafluoroethane (HFC-134a) -

5,000 pounds;

5.000 pounds;

(-kk-) 1,1.2,3,3-pentafluoropropane (HFC245ea) - 5,000 pounds;

(-11-) 1,1,1,2,3-pentafluoropropane (HFC245eb) • 5,000 pounds;

(-mm-) 1,1,1,3,3-pentafluoropropane

(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 (10)

ofthis section, where the RQ must be 100 pounds;

(-qq-) 1,l,2.2-terachlorodifluoroethane

(CFR-I12) - 5,000 pounds;

(-rr-) 1,1,1 ,2-tetrachlorodifluoroethane

(CFC-112a) - 5,000 pounds;

(-ss-) 1,1,2,2-tetrafluoroethane (HFC-l34)

(B) for mixtures of air contaminant compounds:

(i) where the relative amount of individual air con·

taminant 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;

(jj) 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 in·

dividual 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 knOv.:n 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;

(-uu-) l,l.2-trichloro-l,2.2-trifluoroethane

(CFR-Il3) - 5,000 pounds;

(-vv-) 1,1,I-trichloro-2,2,2-trilftoroethane

(CFC-1l3a) - 5,000 pouods:

(-ww-) 1.1,I-trifluoro-2,2-dichloroethane

(HCFC'-123)· 5,000 pounds;

(-xx-) 1,1,I-trifluoroethane (HFC·1 43a)

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

HGB and BPA ozone nonattainrnent areas as defined in paragraph (10)

ofthis section., where the RQ must be 100 pounds;

(ji) if not listed in clause (i) of this subparagraph,

(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 of less than

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

solid or dissolved material in irrigation return flows, or industrial dis36 TexReg 2850 May 6, 2011 Texas Register
charges 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 substancc or material regulated by

the Railroad Commission of Texas under Natural Resources Codc,

§9l.101, unless the waste, substance, or material results from activities

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

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

as amended by Resource Conscrvation and Recovery Act, as amended

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

(94) Sour crude-A crude oil that will emit a sour gas when

in equilibrium at atmospheric pressure.

(95) Sour gas-Any natural gas containing more than L.S

grains of hydrogen sulfide per 100 cubic feet, or more than 30 grains

oftotal sulfur per 100 cubic feet.

(96) Source--A pointoforigin 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 singlc point of cmission will

be treated as a single souree or as multiple sourees.

(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 produets, microbiological waste, patho~

logical 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 kiioPascals).

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

so designated b)' thc United States Bureau ofthe Budget.

(l00) Submerged fill pipe--A fill pipe that extends from the

topofs tank to have a maximum clearance ofslx 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-~AlI 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 Codc ofFederal Regulations Part 60, Appendix A

(103) Swect 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 of Federal Regulations

Part 50. Appendix B.

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

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

amount of coating solids delivered to the coating application system.

(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 emissions--Emissions of any air contaminant except carbon dioxide, water, nitrogen, methanc, ethane, noble gases, hydrogen, and oxygen that exceed any air emission limitation

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

Clean Air Act, §382.0S18(g).

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

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

or routine facility operations, is unpredictable as to timing, and is not

tre type of event normally authorized by permit; or

(B) a maintenance activit)· that arises from slidden and

unforeseeable events beyond the control of the 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 that results in unauthorized

emissions. A maintenance. startup, or shutdown activit)1 that was reported under §101.211 ofthis title (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 of a 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 of process heat or steam.

The combustion flame may bc partially visible, but at no time does

the device operate with an uncontrolled flame. Auxiliary fuel and/or a

flame air control damping system that can operate at all times to control

the air/fuel mixture to the combustor'sflame wne, may be required to

ensure smokeless combustion during operation.

(l12) 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 primary seaL the tank wall, the liquid

surface, and the floating roof or cover.

(113) Vent--Any duct.. stack, chimney, flue, eonduit, Or

other devicc 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 enet'gy from an open

flame is not considered a visible emission under this definition.

(115) 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).

(116) Volatile organic compound (VOC) water separator--

Any tank, box, sump, or other container in which any VOC, floating on

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

is physically separated and removed from such water prior to outfal~

drainage, or recovery ofsuch water.

ADOPTED RULES May 6,2011 36 TexReg 2851
This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed w~h the Office of the Secretary of State on April 25, 2011.

TRD-201101535

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 15, 2011

Proposal publication date: November 19, 2010

For further information. please call: (512) 239-0779

CHAPTER 106. PERMITS BY RULE

SUBCHAPTER A. GENERAL REQUIREMENTS

30 TAC §106.4

The Texas Commission on Environmental Quality (TCEQ,

agency, or commission) adopts the amendment to §106.4.

The amendment is adopted without change to the proposed text

as published in the November 19, 2010, issue of the Texas Regisfer (35 TexReg 10157) and will not be repUblished.

The amended section will be submilled to the United States Environmental Protection Agency (EPA) as a revision to the state

implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted

Rule

The commission adopts the amendmentto §1 06.4 to address the

applicable significant emission thresholds for particulate matter

(PM), PM 10 micrometers or less (PM,,), and PM 2.5 micrometers or less (PM,,) to provide clarity to the pennilling process for

PM.

On July 18, 1997, the EPA revised the NationalAmbientAir Quality Standards (NAAQS) for PM to add new standards for PM" as

an indicator. However, at that time. certain difficulties regarding

implementation of the PMB regulations remained, including the

lack of necessary tools to calculate emissions of PMu and related precursors, the lack of adequate modeling techniques to

project ambient impacts, and the lack of PM2-5 monitoring sites.

Therefore, on October 23, 1997, EPA issued a memorandum

providing for PM,o to be used as a surrogate for PM2,~. EPA reaffinned use of the surrogate policy in a memorandum dated April

5,2005.

On November 1, 2005. the EPA proposed regUlations to implement the New Source Review (NSR) program for PM". EPA

published the bulk of the major NSR program final regulations

for PM" on May 16, 2008 (effective on JUly 15, 2008). EPA

noted that this final action, with EPA's proposed rule on increments, significant impact levels (SILs): and significant monitoring concentration (SMC) when final, will represent the final elements necessary to implement a PM2.~ Prevention of Significant

Deterioration (PSD) program. EPA published the final rule on

increments, SILs, and SMC on October 20,2010 (effective December 20,2010 for the SILs and SMC, and October20, 2011 for

the increment demonstration). On February 11, 2010, the EPA

proposed two actions that would end the EPA's 1997 policy allowing sources and pennitting authorities to use a demonstration

• • •

of compl~ance with the PSl? requirements for PM,o as a surro~ate

for meeting the PSD requirements for PM". In the first action,

the EPA proposed to repeal the "grandfathering" provision for

PMu contained in the federal PSD program. This provision allows applicants for proposed new major sources and major modifications that have submitted a complete PSD pennit application

prior to the effective date of an amendment to the PSD regulations but have not yet received final and effective PSD pennit, to

continue relying on infonnation already in the application rather

than immediateiy having to amend applications to demonstrate

compliance with the new PSD requirements. In the second ac-

:~~ii~~e~~~t~~~~:tdh~v:n:n~~~~~::~SbS~~~,:,ei~~~~ SIP. The three-year transition period for revising the SIP and for

use of the surrogate poiicy ends in May 2011, unless revised by

EPA. In an effort to ensure the TCEQ meets regulatory requirements of the Federai Clean Air Act (FCAA), the commission is

adopting amendments to 30 TAC Chapter 101, General Air Quality Rules, and to Chapter 106 to add specific definitions related

to PM2-S regUlation, and to address the known requirements for

implementation.

EXisting federal regulations require both major and minor NSR

programs to address any pollutant for which there is a NAAQS

and precursors to the fonnation of such pollutant when identified

for regulation by the EPA. TCEQ rules outline the requirements

for both major and minor NSR programs under 30 TAC §116.110,

Applicability. This section requires any person who plans to construct any new facility or to engage in the modification of any

existing facility which may emit air contaminants into the air of

this state to obtain a penn~ under §116.111, General Application,

or satisfy the conditions for another authorization type as listed

within that section. Chapter 116, Subchapter B, New Source

Review Permits, outlines the general requirements for both minor and major NSR permits. Specifically, §116.111 covers the

general application requirements for both major and minor NSR.

Minor NSR sources are required to comply w~h §116.111 except

§116.111(a)(2)(H) and (I), which only apply to major NSR (Nonattainment and PSD).

For precursors, EPA provided some clarification regarding regulation of PM2~ precursors in the May 16, 2008, PM2.~ implementation ruie, stating that generally where scientific data and modeling analyses provide reasonable certainty that the pollutant's

emissions are a significant contributor to ambient PM2

.

5 concentrations, EPA believes that pollutant should be identified as a

"regulated NSR pollutant" and SUbject to the PM,. NSR provisions. Conversely, where the effect of a pollutant's emission

on ambient PM25 concentrations is subject to substantial uncertainty, such that in some circumstances the pollutant may not

result in the fonnation of PM,., or control of the pollutant may

have no effect or may even aggravate air qual~, EPA generally believes it is unreasonable to establish a nationally-applicable presumption that the pollutant is a regUlated NSR pollutant

subject to the requirements of NSR for PM". Therefore, EPA

has established certain presumptions regarding the PM" precursors, SUlfur dioxide (SO,), nitrogen oxide (NO,), volatile organic

compound (YOC) and ammonia. Specifically, EPA presumes

SO:; and NO. to be significant contributors to ambient PM2,s concentrations in all areas and thus, have tenned these pollutants

"presumed in," meaning requiring regulation as a precursor for

PM2

.

5• Conversely, the final rule does not require regUlation of

VOC or ammonia as a precursor to PM2

.

5 for the NSR program

because additional research and technical tools are necessary

to characterize the emissions inventories for VOC, and there

36 TexReg 2852 May 6, 2011 Texas Register
is considerable uncertainty related to ammonia as a precursor.

Therefore, EPA has categorized these pollutants as "presumed

out," meaning not regulated as a precursor for PM1~ regulation.

However, states have the option to exclude NO~, as a precursor

by demonstrating that NOx emissions are not a significant contributor to ambient PM~,~ concentrations in a particular area. In

addition, states have the option of identifying vac and/or ammonia as precursor(s) by demonstrating that emissions for vac

and/or ammonia are a significant contributor in an area, and thus,

should be sUbject to major NSR.

Furthermore, in the Final Rule for increments, SILs, and SMC,

EPA removed the reference to "direct" PMB emissions, to allow for consideration of precursor emissions when detennining

whether the air' quality impact of a major new source or modification would be less than the PM" SILs. EPA has indicated

that estimating techniques are being developed that will be able

to be applied to the PM:L5 analysis in the near future. Removing the reference to direct emissions in the rule also allows EPA

to include precursor emissions through guidance without notice

and comment required for rulemaking. Furthermore, EPA may

require precursors be included in "photochemical" modeling to

obtain concentrations that could include direct and secondarily

formed PM2.5 in the source impact and air quality analyses.

EPA has also provided clarification regarding regulation of condensable PM under the PM2 ! regulations stating it will not require states to address condensable PM in establishing enforceable emissions limits for either PM10 or PM1~ in NSR pennits during the transitional period that ended on January 1. 2011 During this transitional period, EPA assessed the capabilities of test

methods available for measuring condensable emissions, publishing a final rule for methods of measuring filterable PM" and

PM1

.

S and measuring condensable PM emissions on December

21,2010. The final ruie promulgates amendments to Methods

201A and 202. The final amendments to Method 201A add a

particulate-sizing device to allow for sampling of PM with mean

aerodynamic diameters less than or equal to PM2S. The final

amendments to Method 202 revise the sample collection and

recovery procedures of the method to reduce the formalion of

reaction artifacts that could lead to inaccurate measurements of

condensable PM. Additionally, the final amendments to Method

202 eliminate most of the handware and analytical options in the

existing method, thereby increasing the precision of the method

and improving the consistency in the measurements obtained

between source tests performed under different regulatory authorities. This final rule became effective on January 1, 2011.

Finally, EPA clarified that there will be no changes to the implementation of Best Available Control Technology (BACT) requirements for PM" at major sources that are subject to the PSD program. If a new major source will emit, or have the potential to

emit a significant amount of a regulated NSR pollutant in an attainment area for that pollutant, the source must appiy BACT

for each emissions unit that emits the pollutant. In addition, if

a physical change or operational change at an existing major

source will result in a significant emissions increase and significant net emissions increase of a regulated NSR pollutant, the

source must apply BACT to each proposed emissions unit experiencing a net increase in emissions of that pollutant as a result

of the physical or operational change in the unit. Under the PM"

PSD program, these requirements will apply to direct PM,., emissions; SOl emissions; and NO~ emissions, unless states demonstrate that NO~ is not a significant contributor to ambient PMH

concentrations in that area; and to vac if identified by a state

as a precursor in the PMH attainment area where the source

is located. Although EPA has specified that direct emissions

of PM15 at or above the significant emission rate (SER) would

trigger a BACT analysis, EPA has not specified whether a precursor's emissions above the precursor's SER would trigger a

BACT analysis for PM2 ! if direct emissions of PM1! are below the

PM" SER. Therefore, it is presumed that BACT for direct PM"

will apply only if direct PM2,! emissions are significant, and BACT

for precursor pollutants will apply only if the precursor emissions

equal or exceed the specific SER for the precursor pollutant.

Section Discussion

§106.4, Requirements for Permitting by Rule

The commission adopts the amendment to §1 06.4 to address the

applicable significant emission thresholds established by EPA for

PM, PM,o' and PM.!. The significant emission threshold for PM is

25 tons per year (tpy), PM" is 15 tpy, and PM" is 10 tpy. Section

106.4(a)(1) and (4) has been revised to include these changes.

This change will provide clarity to the permitting process for PM

by including the significant levels for PM, PM", and PM". It will

not affect existing claims and is only applicable to new or modified claims under this chapter, not currently operating authorized

facilities under standard exemption or permit by rule (PBR) in accordance with §106.2, Applicability.

Final Regulatory Impact Analysis

The commission reviewed the adopted rulemaking in light of the

regulatory analysis requirements of Texas Government Code,

§2001.0225 and determined thatthe adopted rule does not meet

the definition ofa "major environmental rule." Texas Government

Code, §2001.0225 states that 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, a sector of the economy, productivity, competition, jobs, the environment, or the pUbiic heaith and safety of the state or a sector of

the state." While the purpose of this rulemaking is to increase

protection of the environment and reduce risk to human health,

it is not expected that this rulemaking will adversely affect in a

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

state or a sector of the state.

Furthermore, while the adopted rulemaking does not constitute

a major environmental rule, even jf it did, a regulatory impact

analysis would not be required because the .adopted rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule.

Texas Government Code, §2001.0225 applies only to a major

environmental rule which: 1) exceeds a standard set by federal

law, unless the rule is specifically reqUired by state law; 2) exceeds an express requirement of state law, unless the rule is

specifically required by federal law; 3) exceeds 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) adopts a rule solely

under the general powers of the agency instead of under a specific state law. The adopted rulemaking does not meet any of

the four applicability criteria listed in Texas Government Code,

§2001.0225 because: 1) the proposed rulemaking is designed

to meet, not exceed the relevant standard set by federal law; 2)

parts of the proposed rulemaking are directly required by state

law; 3) no contract or delegation agreement covers the topic that

is the subject of this rulemaking; and 4) the proposed rulemaking is authorized by specific sections ofTHSC, Chapter 382 (also

ADOPTED RULES May 6, lOll 36 TexReg 1853
known as the Texas Clean Air Act or TCAA), which is cited in the

(statutory authority) section.

The specific intent of the adopted rulemaking is to amend Chapter 106 to include the significant levels for PM, PM", and PM".

The preamble to this rulemaking clarifies how precursors and

condensable emissions are addressed, that EPA has made no

changes to the BACT analysis process for PM231 and provides a

basis for regulation of PM2 , emissions when the use of PM10 as

a surrogate for PM2

,5 is no longer applicable.

Takings Impact Assessment

The commission evaluated the adopted rule and per/onmed an

analysis of whether the rule constitutes a taking under Texas

Government Code, Chapter 2007. The specific purpose of the

rulemaking is to facilitate implementation of new federal regulations under the NSR program. The adopted amendment would

substantialiy advance this stated purpose by including the significant levels for PM, PM", and PM" in Chapter 106. The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to this adopted rule because this is

an action that is reasonably taken to fulfili an obligation mandated by federal law, which is exempt under Texas Government

Code, §2007.003(b)(4). Specifically, EPA has promulgated new

NSR regulations for PM" in accordance with 40 Code of Federal Regulations (CFR) §§52.21, 52.24, 51.160 - 51.164,51.165,

51.165(b), and 51.166, and 40 CFR Part 51, Appendix S. TCEQ,

as the administrator olthe NSR program for Texas, is tasked with

implementing the new federal regulations in accordance with 40

CFR §51.166 and FCAA, §107(d)(1)(A)(ii) or (iii).

Nevertheiess, the commission further evaluated the adopted rUle

and per/onmed an assessment of whether the rule constitutes a

takings underTexas Government Code, Chapter 2007. The specific purpose of the adopted rule is to facilitate implementation of

new federal regulations under the NSR program. The adopted

rule would sUbstantially advance this stated purpose by including the significant levels for PM, PM", and PM" in Chapter 106.

Promulgation and enforcement olthe adopted rule would be neither a statutory nor a constitutional taking of private real property. Speclficaliy, the subject proposed regulations do not affect

a landowner's rights in private real property because this rulemaking does not burden (constitutionaliy), nor restrict or limit the

owner's right to property and reduce its value by 25% or more

beyond that Which would otherwise exist in the absence of the

regulations. In other words, the rule does not affect private property in a manner that restricts or limits an owner's right to the

property that would otherwise exist in the absence of a governmental action. Consequently, this rulemaking action does not

meet the definition of a takings under Texas Government Code,

§2007.002(5).

Consistency with the Coastal Management Program

The commission determined that this rulemaking action relates

to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code,

§§33.201 et seq.), and commission rules in 30 TAC Chapter 281,

Subchapter B, concerning Consistency with the Texas Coastal

Management Program. As required by §281.45(a)(3) and 31

TAC §505.11(b)(2), relating to Actions and Rules Subject to the

Coastal Management Program, commission rules governing air

poliutant emissions must be consistent with the applicable goals

and policies ofthe CMP. The commission reviewed this action for

consistency with the CMP goals and policies in accordance with

36 TexReg 2854 May 6, 2011 Texas Register

the rules of the Coastal Coordination Council and detenmined

that the action is consistent with the applicable CMP goals and

policies.

The CMP goal applicable to this adopted rulemaking action is

the goal to protect, preserve, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas

(31 TAC §501.12(1)). The adopted rule will benefit the environment by ensuring the NSR program meets applicable federal requirements, and is adequately enforceable so that air quality is

protected. The CMP policy applicable to this rulemaking action

is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the coastal

areas (31 TAC §501.32). Therefore, in accordance with 31 TAC

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

is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal management program during the public

comment period. No comments were received on the Coastal

Management Program.

Effect on Sites Subject to the Federal Operating Penmits Program

There should be no significant effect on facilities subject to the

Federal Operating Permits Program since APD is currently conducting reviews of sources subject to PSD and minor NSR that

meet federal definitions and requirements. Permit holders may

need to conduct an evaluation and determine if a revision to a

Federal Operating Penm~ is needed to update the applicable requirements.

Public Comment

The commission heid a public hearing on December 13, 2010.

The comment period closed on December 20, 2010. The com·

mission received comments from Baker Bolts L.L.P. on behalf

of the Texas Industry Project (TIP), an individual, and EPA. The

individual and the EPA were in support of the rule project. TIP

was opposed to the rule project.

Response to Comments

An individual supports this ruie project and hopes TCEQ implements the new more stringent PM~~ and does not take the allowed SIP of 10 micrometers or less. In add~ion, the individual

would like to see some suggested guidance in this proposed rule

on formation of PM2,~ from photochemical interaction.

The commission did not make any changes to the rule in response to this comment. The TCEQ will develop guidance to

address photochemical modeling at the appropriate time when

necessary.

EPA appreciates the State's proposed revisions but reminds the

TCEQ that any source subject to the Greenhouse Gas penmitting requirements cannot rely upon a PBR but must per/onm the

Major NSR applicability detenmination.

The commission did not make any changes based on this comment. The changes adopted under this rulemaking do not address applicability to greenhouse gas penmitting, but are made

to facilitate implementation of PM2_~ requirements under TCEQ

rules and Texas' SIP.

TIP opposes the proposed amendments at this time since EPA

has not identified a test method for measuring different types of

PM and condensable PM". They also state at this time there are

no federally approved test methods for measuring PM2,~' While
The adopted amendment implements THSC, §§382.002,

382.003,382.011,382.012,382.051,382.0513, and 3820514.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legai authority.

Filed with the Office of the Secretary of State on Aprii 25, 2011.

TRD-201101536

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 15, 2011

Proposal publication date: November 19, 2010

For further information, please call: (512) 239-0779

CHAPTER 117. CONTROL OF AIR

POLLUTION FROM NITROGEN COMPOUNDS

SUBCHAPTER D. COMBUSTION

CONTROL AT MINOR SOURCES IN

OZONE NONATTAINMENT AREAS

DIVISION 2. DALLAS-FORT WORTH

EIGHT-HOUR OZONE NONATIAINMENT

AREA MINOR SOURCES

30 TAC §117.2110

The Texas Commission on Environmental Quality (TCEQ or

commission) adopts the amendment to §117.2110.

Section 117.2110 is adopted without changes to the proposed

tex1 as published in the November 19, 2010, issue of the Texas

Regisfer(35 TexReg 10162) and the text will not be republished.

The amendment will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted

Rule

On April 27, 2010, Ameresco of Texas (petitioner) submitted a

petition for rulemaking (Project Number 2010-026-PET-NR) requesting an amendment to Chapter 117, Subchapter D, Division

2, §117.2110 for the Dallas-Fort Worth (DFW) 1997 eight-hour

ozone nonattainment area. The commission approved the petition for rUiemaking on June 16, 2010, and issued an order

on June 22, 2010, directing the executive director to examine

the issues in the petition and to initiate rulemaking. Currently,

§117.211 0 limits nitrogen OXides (NO,) emissions from stationary

gas-fired, lean-burn engines installed, modified, reconstructed,

or relocated on or after June 1, 2007, to 0.60 grams per horsepower-hour (g/hp-hr) if fired on landfill gas and 0.50 g/hp-hr for

all other lean-burn engines. The adopted change will expand the

emission specification for lean-bum engines fired on landfill gas

to include lean-burn engines fired on biogas at minor sources of

NOx in the DFW 1997 eight-hour ozone nonattainment area.

Landfill gas and other biogas are produced from anaerobic digestion or decomposition of organic matter and have similar fuel

and combustion characteristics. Both iandfill gas and other biogas can contain contaminants such as sulfur, chlorine, and silEPA has proposed changes to existing PM test methods in order to more accurately measure PM2 " EPA recognizes there are

technical issues that need to be resolved. TIP states that rule

comments reflect a strong desire for EPA to consider other PM1 ,

measurement approaches. There are concerns with sources being required to perform an emission test to demonstrate compliance with a PM,., PSD penmit emission limit when there are

no federally approved methods, and significant technical issues

remain associated with the test methods for measuring PM2_,·

TCEQ should allow regulated entities to use test methods that

are shown to be equivalent rather than limiting sources to only

the method or methods promulgated by EPA. EPA issued additional PM" rules on October 20, 2010, establishing significant

impact levels and de minimis monitoring levels for PM15. TIP is

concerned that this proposal does not address the concepts established in that rulemaking.

The commission did not make any changes to the rule in

response to these comments. EPA proposed rulemaking for

repealing the Grandfathered Provisions, Implementation of the

NSR Program for PM,,; Notice of Proposed Rulemaking to

repeal Grandfathering Provision and the end to the PM,c Surro~

gate policy prior to the May 16, 2011 deadline, which has not

been finalized. In efforts to ensure the TCEQ meets regulatory

requirements of the FCAA, the commission is adopting amendments to add specific definitions related to PMu regulation and

to address known requirements for implementation.

Subsequent to receipt ofTlP's comments, EPA published the final rule on the Methods for Measurement of Filterable PM" and

PM" and Measurement of Condensable PM Emissions (75 Federal Register 80118, December 21, 2010).

This adoption addresses known requirements to date in order to

meet the May 16, 2011 deadline for implementation of the PM"

requirements and the end of the PM" Surrogate policy. TCEQ

will consider any future rulemaking as necessary to address future state or federal regulatory requirements.

Statutory AuthOlity

The amendment is adopted 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

TWC; §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC; and

under Texas Health and Safety Code (THSC), §382.017, conceming RUles, which authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amendment Is also adopted under THSC, §382.002,

concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's air resources, consistent

with the protection of public health, general welfare, and physical

property; §382.003, concerning Definitions; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning

State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control

of the state's air; §382.051, concerning Penmitting Authority of

Commission; Rules, which authorizes the commission to issue

a penmit by rule for types of facilities that will not significantly

contribute air contaminants to the atmosphere; §382.0513, concerning Permit Conditions, which authorizes the commission to

establish and enforce penmit conditions; and §382.0514, concerning Sampling, Monitoring, and Certification.

• • •

ADOPTED RULES May 6, 2011 36 TexReg 2855