## Docket No. 201O-0711-RUL

91 7108 2133 3934 5803 4547 

## May 19,2011 Protecting Texas 

### by Reducing andPreventingPollution

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# .... Alfredo Affilendariz, Ph.D. Regional Administrator U.S. Environmental ProtectionAgency

- Region 6 1445 

## Ross Avenue Dallas, Texas 75202-2733**\i1i~~I;':;~';** 

## 6RA

# eJ"·,' \ 6EN Bryan

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

### Chairman 

# R ECE\ /-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., 

### ExecutiveDirector 

## 11 

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## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY



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## ex::

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, 

## (GeneralAir Quality Rules, SubchapterA, General Rilles); §106-4 

## in 30

## TAC Chapter 106 

## (Permits By Rule, SubchapterA, 

## General Requirements); andcorresponding revisions to the SIP. The amended rules replacethefigure in 30 

## TAC §101.1(25) 

## concerning de minimis impactlevels with a referenceto 40 

## Code ofFederal Regulations §51.165(b)(2); 

## adddefinitions for particulate matter with an aerodynamic diameterless than or equalto a nominal 10 

## micrometers (PM lO), 

## particulate matter with an aerodynamic diameterless than or equalto a nominal 2.5 

## micrometers (PM2
.S), 

## direct and secondary PM emissions; and addthe applicable significant emissionthresholds for PM, PMlO, 

## and PM2
.S' 

## Enclosed are the proposedrevisions to the SIP, apublichearing certification, a complete recordofthe publichearing, andthe accompanying order. I lookforwardto your expeditious approval ofthese SIP revisions. 

# ;:;.w.)1'4IN
BryanW. 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 ofBudget, 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 OFTEXAS COUNTY OFTRAVIS This is to certifythat the attachedare true and correct copies ofdocuments for revisions to the Texas State Implementation Plan, adopted onApril 20, 2011, 

## pursuantto 40 

## Code ofFederal Regulations § 

## 51.104. I am the records administratorfor theAir 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 ofFederal 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 December20, 20I

## O. 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, contactJohnny 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 ofpublic hearing to the following officials and agencies:

Speaker ofthe House Lieutenant Governor City ofEI Paso City ofVictoria Planning Department Dallas Department ofHealth and Human Services EI Paso City-County Health District Federal Highway Administration

### Fort Worth Public Health Department Galveston County Health District Houston Department ofHealth 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 ofPollution Control and Ecology LouisianaDepartment ofEnvironmental Quality New Mexico Air Quality Bureau OklahomaDepartment 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, underthe 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 Orwritten 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, orfaxed 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. Forfurther 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

NEWS :OBITUARIES :SPDRTS BUSINESS ;ENJERTAINIlllENT UP£. &;ARTS "OPINIDNS :CARS +tOMES :I:LASSIFJEDS ,JOBS R9DER**SERVICES'~** OUR NETWORK OF SITES Sunny 40·F Forecasl 

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### With Dis·;ov:?r! Motive1e**::;::lr~** PUBUC HEARING ON PROPOSED REVISIONS TO PUBUC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTERS 101 AND 106 The Texas Commission on EnVironmental Quality (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

, advance 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 20 r 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 amendmentwill 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 orequal to a nomina12.5 micrometers (PM 2,s) as an indicator. However, at that time, certain difficulties regarding implementation ofthe PM H 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 PM 2,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 PM H " EPA reaffirmed use ofthe 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 ofcompliance 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-yeartransition 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 Air Permits Division (APD) is proposing amendments to Chapters 101 and 106to 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 orto 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 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, PM n 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 PM Z,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 PM u 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 significantcontributor in an area, and thus, should be subject to major NSR. EPA has also provided clarification regarding regulation of condensable PM underthe 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 10147provided 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 PM 25 concentrations in that area; and to 

## vae if identified by a state as a precursor in the PM 2,5 attainment area where the source is located. Anhough EPA has specified that direct emissions of PM 2,5 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 PM 2.5 if direct emissions of PM2,S are below the PM,. SER. Therefore it is presumed that BACT fordirect PM,., will apply only ifdirect PM" 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 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 ofdefinition 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 BACTwith regards to PM" and PM". The incerporation ofdefinitionswill not require the implementation ofadditional 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 ofothercontrol 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 Registerrule" is "a rule the specific intent ofwhich is to protectthe environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, 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 thatthis rulemaking will adversely affect in a material way the economy, a sector ofthe economy, productivity, jobs, the environment, orthe public heaith and safety ofthe 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 ofTexas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), which is cited in the STATUTORY AUTHORITY section. The specific intentofthe 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 PM 1C as a surrogate for PM 2" 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 ofwhether 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 underthe NSR program. The proposed amendment would substantially advance this stated purpose by adding new definitions to Chapter 101, necessary for implementation of the PM H 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 ofwhetherthis 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 newdefinitions to Chapter 101 ofTCEO ruies, necessary for implementation of the PM n regulations. Promulgation and enforcement of this proposed rule would be neither a statutory nor a constitutional taking ofprivate 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 otherwords, 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 underTexas 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 

### etseq.), and commission rules in 30 TAC Chapter281, 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 PM 2 ! 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 10149There 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 oforal 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. Personswho 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 ofthe 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 ofthe commission, the terms used by the commission have the meanings commonly ascribed to them in the field ofair pollution control. In addition to the tenns that are defined by the TCAA, the following terms, when used in the airquality rules in thistitle, have the following meanings, unless the contextclearly indicates otherwise. (J) Account--For those sources required to be permitted under Chapter 122 ofthis title (relating to Federal Operating Permits Program), all sources thatare aggregatedas a site. Forall 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 ofhydrogen sulfide and other acidic gases derived from natural gas sweetening processes. ·(3) Agency established facility identification number--For the purposes of Subchapter F ofthis chapter (relating to Emissions Events and Scheduled Maintenance, Startup. and Shutdo\\n Activities). aunique alphanumeric eode required to be assigned by the owner or operator ofa regulated entity that the emission inventory reporting requirements of§IOLI0 ofthis title (relating to Emissions InventOr)' Requirements) are applicable to each facility atthat regulated entity. (4) Ambient air-That portion ofthe 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, butnotlimited to. hoods, ducts, fans, booths, ovens, dryers. ete.) that contains, collects. and transports an air pollutant to a control device. (8) Capturedfacility--A manufacturingorproductionfacility 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--Acarbon adsorber withan inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent. (11) Coating-·A material applied onto orimpregnated into a substrate for protective, decorative, orfunctional purposes. Suehmaterials 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 solventto remove soils from the surfaces ofparts orto drythe parts by spraying, brushing, flushing, 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 otherdevice or systemusedto 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 attachedto a foundatiun oris portable equipmentoperated 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 capturedfacility 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 ofwaste 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 ofequipment, including, butnot limited to, pumps, valves. compressors, and pressure reliefvalves thaI has the potential to leak volatile organic compounds. (19) Condensate--Liquids that result from the cooling and/or pressure changes ofproduced natural gas. Once these liquids are processed at gas plants or refineries or in any other manner, they are no longer considered condensates. (20) Construction-demolition waste--\Vaste resulting from construction or demolition projects. (21) Control system orcontrol device--Any part, chemical, machine. equipment. contrivance. or combination ofsame, used to destroy, eliminate. reduce, or control the emission ofair contaminants to the atmosphere. (22) Conveyorized degreasmg--A solventcleaning process that uses an automated parts handling system, typically a conveyor, to automatically provide a continuous supply ofparts to be cleaned or dried using either cold solvent or vaporized solvent. A conveyorized degreasing process is fully enclosed except for the conveyor inlet and exit portals. (23) Criteria pollutant or standard--Any pollutant for which there is anational ambient air quality standard established under 40 Codc ofFederal Regulations Part 50. (24) Custody transfer--The transfer ofproduced crude oil and/or condensate, afterprocessing and/ortreating in the producingoperations, from storage tanks or automatic transfer facilities to pipelines or an)' other forms oftransportation. (25) De minimis impact--A change in ground level concentrationofan air contaminant as aresult ofthe operation ofany newmajor stationary source or ofthe operation ofany existing source thathas undergone a major modification that does not exeeed the significance levels as specifiedin 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 oflife withm a residence. (27) Emissionsbanking--A system forrecording emissions reduction credits so they may be used ortransferred 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 ofqualified reduction available for use as offsets and the length oftime the reduction is eligible for use. (3]) Emissions unit--Any part ofa 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 ofcarbon compounds used as solvents that have been excluded from the definition ofvolatile organic compound. (34) External floating roof--A cover orroofin 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 roofedge 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 ofFederal 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, aflare may also use auxiliary fuel. The combustionflame 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 10151through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control its flow. (40) Garbage--Solidwaste consistingofputrescib1e animal and vegetable waste materials resulting from the handling, preparation, cooking, andconsumption offood, includingwaste materials from markets, storage facilities, and handling and sale ofproduce and other food products. (41) Gasoline--Any petroleum distillate having a Reid vapOl'pressureoffourpoundsper square inch (27.6 kilopascals) orgreater that is produced for use as a motor fuel, and is commonly called gasoline. (42) Hazardous**wastes~-Any** solidwaste identifiedorlisted as ahazardous waste b)' the administratorofthe United StatesEnvironmental Protection Agency underthe federal Solid Waste Disposal Act, as amended by Resource Conservation and Recover)' Aet 42 United States Code, §§6901 etseq., as amended. (43) Heatset (used in offsetlithographicprinting)--Any operation where heatisrequired to evaporate inkoil 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 ofa 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 ofburning wastes for the primary purpose ofreducing its volume and weightby removingthe 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 ofsolid waste on a total British thermal unit (Btu) heat input basis averaged over anyone-hour period is considered to be an incinerator. A combustion device without instrumentation or methodology to determine hourly flow rates ofsolid waste and burning 1.0% or more ofsolid waste on a total Btu heat input basis averaged annually is also considered to be an incinerator. An open-trench type (with closed ends) combustion unit may be eonsidered an incinerator when approved by the executive director. Devices burning untreated wood scraps, waste wood, or sludge from the treatment ofwastewater from the process mills as a primary fuel for heat recovery are not included underthis definition. Combustion devices pennitted underthis title as combustion devices otherthan incinerators will not be considered incinerators for application ofany rule within this title provided they are installed and operated in compliance with the condition ofall applicable permits. (47) Industrial boiler--A boiler located on the site ofa facility engaged in a manufacturing process where substances are transformed into new products. including the component parts ofproducts, by mechanical or chemical processes. (48) Industrial 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 ofindustry or rnanufaeturing, or mining or agricultural operations. classified as follows. (A) Class I industrial solidwasteorClass 1 \\'asteis any industrial solid waste designated as Class I by the executive director as any industrial solid waste or mixture ofindustrial solid wastes that because ofits concentration or physieal or chemical characteristics is toxic. corrosive, flammable, a strong sensitizer or irritant. a generator ofsudden 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 ofthis title (relating to Definitions and Class 1 Waste Determination). (B) Class 2 industrial solid waste is any individual solid wasteorcombinationofindustrial solid wastesthateannotbe deseribed as Class 1 or Class 3, as defined in §335.506 ofthis title (relating to Class 2 Waste Determination). (C) Class 3 industrial solidwaste is any inertandessentially insoluble industrial solid waste, including materials such as rock,**bric~** glasS, dirt, and certain plastics and rubber, etc
.. that are notreadily decomposable as defined in §335.507 ofthis title (relating to Class 3 Waste Detennination). (50) Internal floating cover-A cover or floating roofin a fixed rooftank 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 orthe amount specified b)' applicable rule, whichever is lower; orthe dripping orexuding ofproeess 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 roofaround the circumference ofthe 

### tank. (54) Maintenance area--A geographic region ofthe state previously designated nonattainment under the Federal Clean Air Act Amendments of1990 andsubsequently redesignatedto attainment subjectto 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 ofSouth 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 of42 United States Code, §7505a.



## 35 TexReg 10152 November 19, 

## 2010 Texas Register(56) Marine vessel--Any watereraftused, or capable ofbeing used, as a means oftransportation 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 sheetthat is held vertically against the storage tank wall by springs or weighted levers and is connecl.t:d by braces to the floating roof. Aflexible 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 "specialwaste 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 under23 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 ofseveral 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 concentrationflowing onto aproperty as measured at an)' point. "'here there is no expected influence of the air contaminant flowing onto a property from other sources, the net ground level concentration may be determined by a measurement at orbeyond the property boundary. (68) New souree--Any stationary source, the construction or modification ofwhich was commenced afterMarch 5, 1972. (69) Nitrogen oxides (NO,)--The sum ofthe 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 of42 United States Code, §7407(d). For the official list and boundaries of nonattainment areas. see 40 Code ofFederal Regulations Part 81 and pertinentFederal Register (FR) notices. The following areas comprise the nonattainment areas within the state for all national ambient air quality standards (NAAQS). EPA has indicated that it will revoke the one-hour ozone standard in full, including the associated designations and classifications. on June 15, 2005. which is one year following the effective date ofthe designations' for the eight-hour NAAQS ofJune 15.2004. (A) Carbon monoxide (CO). El Paso CO nonattainment area (56 FR 56694)--elassified as a Moderate CO nonattainment area with a design value less than orequal to 12.7 parts permillion. Portion ofEl Paso County. Portion ofthe city limits ofEl Paso: Thatportion 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 PacificRailroad 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 PM I " nonattainment area (56 FR 56694)--Classified as a Moderate PM I " nonattainrnent area. Portion ofEl 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)

- Classifiedas a Seriousozone nonattainmentarea. Consists ofEl Paso Coun!)'. (fji) Beaumont-Port Arthur (BPA)**one~hour** ozone nonattainrnent area (69 FR 16483)

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

- Classified as a Moderate ozone nonattain

### ment area. Consists ofCollin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties. (iv) San Antonio eight-hour ozone nonattainrnent area (69 FR 23936)

- Classified underthe 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) Sulfurdioxide. No designated nonattainmentareas. (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 ofair contaminants obstructs the transmission oflight 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 ofthe 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, thatexists as a solidor liquid inthe 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 ofFederal Regulations (CFR) Part 50, Appendix J. and designated in accordance with 40 CFR Part 53, or by an equivalent method designated with that Part 53. @ 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 liquidmaterial, other thanuncombinedwater, emittedto the ambient air as measured by United States Environmental Protection Agency Reference Method 5, as specified at 40 Code ofFederal Regulations (CFR) Part 60, Appendix A, modified to include 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 inthe atmosphere as a resultofvarious 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 ofcrude oil, or throughthe redistillation, cracking, extraction, refonning, or other processing ofunfinished 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 CodeofFederal Regulations Part51, orby atest method specified in an approved state implementation plan. 

### [PM1lI Par-tieuIate mtHtefwith 

### an aefs5ynamie diametef tfteft

## 6f'etttHtl t& tl-ft6fltift&I-teft

### miefflffletefS '$ meB:3l:1feel by- a refere8ee 

### metfted. bage& 00- 4Q. Gede- 

### ef

### FedeffiI. 'RegulatisAs (GFR1 

### Part-

## -w,**A:~~eAdh,** J,

### ttBEi designated -in aeesfdfmee with4G

### GFR-Part-.£,ef.ey.iIft eflui I alent

### metfted. designated withthat Paft£cj (79) PM 1" emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method specified 

### in 40 Code ofFederal Regulations Part 5 L or by a test method specified in an approved state implementation plan. (80) Polychlorinated biphenyl compound--A compound subject to 40 Code ofFederal 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 equipmentused inconnectiontherewith,. andall othermethods orforms ofmanufacturing or processing that may emit smoke. particulate matter, gaseous matter, or visible emissions. (82) Process weight per hour--"Process weight" is the total weight ofall materials introduced or recirculated into any specific process that may cause any discharge ofair contaminants into the atmosphere. Solid fuels charged into the process will be considered as 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 ofhours in one complete operation from the beginning ofany 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, andall 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) Regulatedentity·-Allregulated 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 Registerin conjunction with the regulated acti\'ity at the same street address or location. O\\ners or operators ofpipelines, 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 ofassessment and regulation ofemissions events. (86) Remote reservoircold soh'entcleaning--Any cold soiYent cleaningoperation in which liquid solventis pumpedto 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 emissionseventthat 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) ofthis section. where the RQ must be 100 pounds: (-b-) butanes (any isomer)

- 5.000 pounds; (-c-) butenes (any isomer, except**1.3-butadi~** ene)

- 5,000pounds. 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 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-) 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 10155pounds; 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) ifnot listed in clause (i) ofthis subparagraph, 100 pounds; (B) for mixtures ofair contaminant eompounds: (i) where the relative amount ofindividual air contaminant compounds is known through common process knowledge or prior engineering analysis or testing, any amount ofan individual air contaminant compound that equals or exceeds the amount specified in subparagraph (A) ofthis paragraph; (ij) 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 ofthe individual air contaminant compounds listed in subparag'raph (A)(i) ofthis paragraph are known to be less than 0.02% by weightofthe mixture, and eachofthe 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 ofthe mixture ofair 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 ofless 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-halfofany 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 expectedto 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 ofthis 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 thatprovide 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 ofearbon and other combustible matcrial and present in sufficient quantity to be visible. (93) Solid waste--Garbage, rubbish, refuse, sludge from a waste watertreatmcnt plant, water supply treatment plant, or airpollution 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 othernatural 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 ofoil 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 ofthe United States Environmental Protection Agency under the federal SolidWaste 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 Sourgas when in equilibrium at atmospheric pressure. (95) Sour**gas~-Any** natural gas containing more than 1.5 grains ofhydrogen sulfide per 100 cuhic feet. or more than 30 grains oftotal sulfur per 100 cubic feet. (96) Source--Apointoforigin ofair eontarninants, whether priYately or publicly ov.ned or operated. Upon request of a source owner, the executive director shall detennine whether multiple pro
## 35 TexReg 10156 November 19,2010 Texas RegisterFiled 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 ofadoption: December 19, 2010 Forfurther 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, orother containerin which any VOC, floating on or contained in waterentering such tank, box, sump, orothercontainer, is physically separated and removed from such water prior to outfall, drainage, or recovery ofsuch water. This agency hereby certifies thatthe 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 (relatingto 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 ofa process or operation is an upset event. (110) Utility boiler--A boiler used to produce electric power, steam. or heated or cooled air. or other gases orfluids 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 ofprocess 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 aircontrol damping systemthat canoperate 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 ofthe primary seal. the tank wall, the liquid surface, and the floating roofor cover. (113) Vent--Any duct, stack. chimney. flJle, conduit, or other device used to conduct air contaminants into the atmosphere. (114) Visible**emissions~-Particulate** Orgaseous 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 ofemission v.'ill be treated as a single source or as multiple sources. (97) Special waste from health care-related facilities·-A solid waste that ifimproperly treated orhandled, 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 ofa county or one or more contiguous counties that is officially so designated by the United States Bureau ofthe Budget. (l00) Submergedfill pipe--A fill pipe that extendsfrom the top ofatank tohave 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 acidmist and sulfuric acid are considered to be the same aircontaminant 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 ofFederal Regulations Part 60, Appendix A. (103) Sweet crude oil and gas--Those crude petroleum hydrocarbons that are not "sour" as defined in this section. (104) Total suspended particulate--Particulate matter as measured by the method described in 40 Code ofFederal Regulations Part 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 ofcoating solids delivered to the coating application system. (106) True vapor pressure--The absolute aggregate partial vapor pressure, measured in pounds per square inch absolute, of all volatile organic compounds at the temperature ofstorage, handling, or processing. (107) Unauthorized emissions--Emissions ofany air contaminant except carbon dioxide, water, nitrogen, methane, ethane, noblegases, hydrogen, andoxygen that exceedany airemission 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 ofnonnal or routinc facility operations, is unpredictable as to timing, and is not the type ofevent nonnally authorized by pennit: or (B) a maintenance activity that arises from sudden and unfureseeable events beyond the control ofthe operator that requires the immediate corrective action to minimize or avoid an upset or malfunction. (109) Upset event--An unplanned and unavoidable breakdown orexcursion ofaprocess oroperation thatresults in unauthorized emissions. A maintenance. startup, or shutdov.ll activity that was re
## PROPOSED RULES November 19, 

## 2010 35 

## TexReg 10157BACKGROUND 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 AmbientAirQuality 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 PM 2.5 

### 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 ofthe 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 ele

### ments necessary to implement a PM 2_ 5 

### Prevention of Significant Deterioration (PSD) program. On February 11, 2010, the EPA proposed two actions that would end the EPA's 1997 policy al

### lowing sources and permitting authorities to use ademonstration ofcompliancewith the PSD requirements for PM.o

### as asurrogate 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 appli

### cants 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 notyet received final and effective PSD permit, to continue relying on information already in the application rather than immediately having to amend applications to demonstrate compli

### ance 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-yeartransition period for revising the SIP and for use ofthe 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 ofsuch 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 orto 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 sat

### isfy 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" implemen

### tation rule, stating that generally Where scientific data and modeling analyses provide reasonable certainty that the pollutanrs 

### emissions are a significant contributor to ambient PM H 

### concentrations, EPA believes that pollutant should 

### be identified as a "regUlated NSR pollutant" and SUbject to the PM,. NSR provi

### sions. 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 PM Z,!' 

### 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/orammonia are asignificantcontributor in an area, and thus, should 

### be subject to major NSR. EPA has also provided clarification regarding regulaUon of con

### densable PM underthe PMu 

### regulations stating itwill 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, EPAis assessing the capabilities oftest meth

### ods 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) require

### ments for PM2,! at major

### sources that are subjectto 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 re

## 35 TexReg 10158 November 19,2010 Texas Registersuit 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 PM Z,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 PM 25 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 

### ifthe 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" Itwill 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 ofthe 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 currentagency 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 matterwill 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 PM 10 and 

### PMz.s" The incorporation ofdefinitionswill 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 notexpected 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 rulewill not require implementation ofothercontrol 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 ofthe 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 ofthe environment and reduce riskto 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, orthe public**hea~h** and safety ofthe 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 im

## PROPOSED RULES November 19, 

## 2010 35 

## TexReg 10159plement a state and federal program; or 4) adopts a rule solely under lt1e general powers ofthe 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 ofTexas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), which is cited in the STATUTORY AUTHORITY section. The specific intentolthe proposed rulemaking isto 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 PM 2" 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 underTexas Government Code, Chapter2007. The specific purpose ofthe rulemaking is to facilitate implementation of new federal regulations underthe 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, Chapter2007 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 atakings underTexas Government Code, Chapter 2007. The specific purpose ofthe proposed rule is to facilitate implementation of new federal regUlations underthe 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 nora 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 otherwords, 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 etseq.), and commission rules in 30 TAC Chapter281, 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 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 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 

### itwill 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~** plywith 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 consistentwith 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 orwritten 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 RegisterSUBMITTAL 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 ofpublic 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; §382.051, 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. RequirementsforPermitting 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) ofearbon monoxide (CO) or nitrogen oxides (NO.); or 25 tpy ofvolatile organic compounds (VOC) or sulfurdioxidc (Sal) orinhalable particulate matter (PM): or 15 tpv ofparticulate matter with diameters of 10 microns or less (PM .): or 10 tpy ofparticulate matter with diameters of2.5 microns or less (PM"J. [f¥M,.,.1]; Or 25 tpy ofany otheraircontaminantexcept carbon dioxiae. water, nitrogen, methane, cthane, hydrogen, and oxygen. (2) Any facility or group offacilities, which constitutes a new major stationary source, as defined in §116.12 ofthis title (relating to Nonattainment and Prevention ofSignifieant Deterioration Reviev. Definitions), or any modification whieh constitutes a major modification. as defined in §116.12 ofthis title, under the new source reviev. requirements ofthe 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 ReviewPermits) and cannoLqualify for apennitb)' rule under this chapter. Persons claiming a pennit by rule under this chapter should see the requirements of§1] 6.150 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**facili~'** or group offaeilities, which constitutes a new major stational)" source, as defined in 40 Code ofFederal**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 ofthe FCAA. Pan C (Prevention ofSignifieant Deterioration) as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder. must meet the permitting requirements ofChapter 116, SubehapterB ofthis title and cannot qualify for a permit by rule under this chapter. (4) Unless at least one faeility at an aceount has been subjecttopublie notifieationand commentas required inChapter 116, SubchapterB 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 notexceed 250 tpy ofCO orNO;.:; or 25 tpy ofVOC or**SO~** or PM [PM 11I]; or ] 5 to\' ofPMI.: or 10 tpy ofPM" ..;. or 25 tpy ofany other air contaminantexcept caroon dioxide. water.nitrogen. methane. ethane, hydrogen, and oxygen. (5) Construction or modifieation ofa facilit), commenced on or afterthe effeetive date ofarevisionofthis sectionorthe effective date ofa 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 ofthe FCAA, Part C and Part D and regulations promulgated thereunder. (7) There are no permits under the same commission aecount numberthat contain a condition or conditions precluding the use ofa pennit by rule under this ehapter. (8) The proposed facility or group offacilities 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 eircUJnventby artifieiallimitations the requirements of§1]6.]] 0 ofthis title (relating to Applicability). (c) The emissions from thc facility shall comply with all rules and regulations ofthe commission and with the intent ofthe Texas Clean Air Act nCAA}. including protection ofhealth 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 airpollution control agencies. Any such requirements must be in accordance with TCAA,. §382.] 13 and any other applicable law. This agency hereby certifiesthatthe proposal has been reviewed by legal counsel and found to bewithin the agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 5, 2010. TRD-201006333



## PROPOSED RULES November 19,2010 35 TexReg 10161Robert 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 exec

### utive directorto 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 afterJune 1, 2007, to 0.60 grams per horsepower-hour (glhp-hr) iffired 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 enginesfired 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 di

### gestion or decomposition of organic matter and have similarfuel and combustion characteristics. Both landfill gas and other bio

### gas 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 inter

### fere with control measures, and will not prevent reasonable further progress toward attainment ofthe ozone NAAOS. The commission acknowledges that the DFW area failed to altain the 1997 eight-hourozone NAAOS bythe 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 dis

### cussed 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 commentperiod 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 nonattainmentarea. Subchapter D. Divi

### sion 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, orgroup 

### of sources located within a contiguous area and undercommon 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 en

### gines 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 forthe DFW 1997eight-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 nonattain

### ment 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, emis

### sions 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 in

## 35 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 andPreventing 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 proposedrevisions to 30 Texas Administrative Code (TAC) Chapters 101, General Air Quality Rules, and 106, Permits By Rule, §101.1 and §106.4, underthe 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 commissionwill hold a public hearing onthis proposal inAustin on December 13, 2010, at 10:00 a.m. in Building E Room 201S, atthe commission's central office located at 12100Park 35 Circle. The hearing is structuredfor the receipt oforal orwritten commentsby interested persons. Individuals may present oral statements when calledupon in order ofregistration. Open discussionwill notbepermitted during the hearing; however, commission staffmembers willbe availableto discuss the proposal 30 minutes priorto the hearing.

Persons who have special communication or other accommodation needs who are planningto attendthe hearing should contactCharlotte Horn, Office ofLegal Services at (512) 239-0779. Requests shouldbe made as far in advance as possible.
Written comments maybe submittedto Devon Ryan, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087,Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

## http://www5.tceq.state.tx.llS/rules/ecomments/. File size restrictions may applyto comments being submittedviathe 

## eComments system. All comments shouldreference Rule Project

## Number 2010-020-101-PR. The comment period closes December 20, 2010. Copies ofthe proposed rulemaking canbe obtainedfrom the commission's Web siteat 

## http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. Forfurther information, please contactJohnny Bowers, AirPermits 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 BakerBotts L.L.P., onbehalfofthe Texas Industry Project The United States Environmental Protection Agency

## 7607 Meadowview Lane Austin, TX 78752 November 12,2010 DevonRyan MC205 Office ofLegal Services Texas Commission on Environmental Quality P.O. Box 13087 Austin, TX 78711-3087 DearMs. 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 CleanAirAct to protect the public health. 

## Ifthe TCEQ does not implement this rule change, Texas will notbe 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 healthresulting inrespiratory problems. Smallerparticles have a greater negative affect as they can travel further into the lungs, having aparticularly damaging affect on the elderly and children. I hope the TCEQ implements the new more stringentPM 2.5 

## and does not takethe allowed state implementation plan of10 micrometers or less. 

## In addition, I would like to see some suggested guidancein this proposed rule on formation ofPM 2.5 

## from photochemical interaction.
Sincerely,

# ~.cs=;. Elena Capsuto, CHMM. ..**---~-_** ..-. 

### ---

------- . ..- ._----- _.,-- -_. 

### 12/20/2010 11:14 

### FAX

ABU DHABI AUSiIN BEUING 

### DAllAS DUBAI HONG KONG HOUSTON lONDON M05CON NEVVVORK PAlO AlTO I!rYA:>H WA,SHINGTON Karhl

....n E, Walr TEL

.. 1713.229.2106 FAX 

### +I 713.229.7906**kalhlllliln.~ir@bdkerbotb.com** 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 

## ofLegal Services Texas Commission on Environmental Quality P.O. Box 13087

.

.Austin, Texas 78711-3087 (512) 239-4808 Re: Comments on Rule ProjectNo.**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 

## TexasAdministrative 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 of63 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



# BAKERBOITS LL. 

## Ms. Devon Ryan ·2· 

## December 20, 2010



## PMz.s, Those testmethods, 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 

## PM 2.

## s . For example, several commenters noted the inappropriateness ofusing 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. Forthese 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 gas

## fired 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 significanttechnical issues remain associated with the test methods for measuring PM

## z .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 ormethods 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 inthatrulemaking. For all these reasons, TCEQ should postpone this proposed rulemaking, For further information, please do nothesitateto contactme.

# rF:~tJ~ Kathleen

## E. Weir

HOU02:1216,.7,1

# -,.....,...**!~** I,



## ..**~'--..;** 

# 1 '1 2010

Ms. Devon Ryan Office ofLegal 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 ofparticulate 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 orless that 10 micrometers (PM IO) 

## 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 limitthe 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 eitheruse the federal definition or provide a demonstration that its proposed definition is as stringent as ormore stringent that then federal definition.

,,,:.,,"'::/!**,,,;j(~~,** l;ij=,yt:lcd,'B.o:;ycitltJi!: '" ; ''C,,",,'" .'/,:i 'A**~1** .c, .. ,

## 1

In 30 TAC 101.1 (76)(B), the definition of"secondary PM emissions is" unclear. This definition is similar to, butnot 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 ormore slringent that then federal definition. If**T~xas** 

## excludes NO" as a PM2.5 precursor it mustprovide a demonstration that NO" is not a significant contributor to ambient PM2.5. 

## Texas may include volatile organic compounds and ammonia and PM2.; 

## precursors ifTexas 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 ofProposed Rulemaking to Repeal Grandfathering Provision and End the PM IO 

## 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 arcccnt 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 ofPM 10 

## as a surrogate for PM2.;. 

## We 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 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 cannotrely upon a Permit by Rule butmustperform 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. Ifyou have any questions, please call Mr. 

## Stanley M. 

## Spruiell ofmy staffa! (214) 665-7212.
Sincerely yours,

# ~~1JD~'IS' Thomas H. Diggs Associate Directorfor 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)

## ~"t) 

# 0.3 

# . "'"2

...., 

# 00 fVC\

# ht I,'..Q..... 

# I

# cfb**~.'y"\.** 11.0Y7

.... :'" 

# Qll-, .• 

# L- It.. Yes 

# '"**b~~ (fJ~**  -

## \kr~~ Yes

## d~\J~\dtn~ 

# +r',,,,;h<.<-'On-s

...l -.1-7 •"" .-'\ 

# vi**r,l~** e-","-''SlA(

## ~~ 

# ,
-. 

# ------ Yes 

### No

. 

# VYes 

### No 

# /" Yes 

### No C 

# / 

# ------- 

# / Yes 

### No

. 

# / Yes 

### No

,

# - Yes 

### No

. 

## ,

## HEARING OFFICERREPORT



## 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 

## staffand a courtreporter were present and ready to openthehearing for public comment. Afterwaiting for 10 

## minutes, no one had provided comments on the record. Therefore,

.the publichearing was notformally openedfor commentand a transcript was 

## notprepared.

Hearing Officer

# EVALUATION OF TESTIMONY

# Texas Commission on Environmental Quality Interoffice Memorandum To: Thru:

From:
DocketNo.: Subject: Commissioners LaDonna Castaiiuela, ChiefClerk Mark R. 

## Vickery, P.G. Executive Director

RichardA. Hyde, P.E., Deputy Director Office ofPermitting and Registration 201O-0711

-RUL CommissionApproval for RulemakingAdoption Chapter 101, General Air Quality Rules Chapter 106, Permits ByRule Regulation ofParticulateMatterwith 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 inthe 

## TexasRegisteron November 19, 2010, are necessary to implement changes to the Federal Clean Air

## Act (FCAA) and United States Environmental ProtectionAgency (EPA) regulations regarding particulate matter\\ith an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM 2

### ,5)' 

## EPAhas indicatedthat states with state implementationplan (SIP) approvedprograms may continue to implement a PM lO 

## program as a surrogate to meet the Prevention ofSignificant Deterioration (PSD) program requirements for PM 2
.S

## under the 1997 PM 10

## Surrogate Policyfor up to three years (until May 2011) or until the individual re"ised state PSD programs for PM2 ,5

## are approvedby EPA, whichever comes first. In an effortto ensure the TCEQ meets regulatory requirements ofthe FCAA, APD has proposed amendments for adoption to add specific definitions relatedto PM2.5

## regulation andto address known requirements for implementation. 

## Scope ofthe rulemaking: The adopted amendments to Chapters 101 and 106 will add specific definitions relatedto PM2 .5

## regulation and address known requirements for implementation. In addition, the adoptedrulemaking will provide guidance as TCEQ implements PM2
.5 

## as a PSD requirementfor the New Source Review (NSR) program. The guidance includes, butwill notbe limitedto, direct PM2•S

## emissions, precursorpollutants, definitions, and references to federal requirements. APD staffwill make the necessary updates to PSD guidance documents for agency staffas well as external customers.

## Commissioners Page 2 April 1, 2011 Re: Docket No. 2010-0711-RUL
A.) 

## Summary ofwhatthe rulemakingwill do: 1. Replace Figure 30 TAC §101.1(2S) concerning de minimis impactlevels with areference to 40 Code ofFederal Regulations §S1.16S(b)(2). 2. Add definitions for PMlO, 

## PM2
.S, 

## direct and secondaryPM emissions. 3. Add the applicable significant emission thresholds for PM, PMlO, 

## and PM2.S. 

## B.) Scope requiredbyfederal regulations or state statutes: The adopted rules are intendedto ensure the TCEQ meets regulatory requirements ofthe FCAAonce the revisions are submittedto the EPAfor approval to the SIP. C.) Additional staffrecommendations that are notrequiredby federal rule or state statute: There are no additional staffrecommendations. Statutory authority: Statutoryauthority includes Texas Water Code, §S.102, General Powers, §S.103, Rules, and §S.lOS, General Policy; andTexas Health and Safety Code, §382.017, Rules, §382.002, Policy and Purpose, §382.011, General Powers and Duties, §382.012, StateAir 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 specificallyquantify and address controls and impacts for PM2.S as a PSD and minorNSR requirement. This may be accomplishedthrough variousTCEQ forms andtables, and modeling as applicable. B.) Public: There willbe no effecton the public since APD is currently conducting reviews ofsources subjectto PSD and minor NSRthat meet federal definitions and requirements. C.) Agency programs: There

## will be no effect on agency programs sinceAPD is currently conducting reviews ofsources subjectto PSD and minorNSR thatmeet federal definitions and requirements. This adopted rulemakingwill not create a group ofaffected persons whowere not affected previously. In addition, it shouldnothave fiscal effects. Stakeholdermeetings: No stakeholdermeetings havebeen held. However, standardnotice ofthis action and an opportunityfor public commentwas provided after proposal.

## Commissioners Page 3 April!, 2011 Re: Docket No. 2010-071l-RUL


## Public comment: Atotal of3 commentletters were received and no oral comments were made atthe public hearing. The Texas Industry Projectis opposedto the rule projectand was concernedthat EPAhad notfinalized approvedtestmethods for measuring differenttypes ofPM and condensable PM2 .5• 

## EPA appreciatedthe proposedrevisions buthad concerns aboutthe definitions for "Direct PM Emissions" and "Secondary PM Emissions." An 

## individual supportedthis rule project. 

## Significantchanges from proposal: Revised definitions for "Direct PM Emissions" and "Secondary PM Emissions" to be consistentwith definitions for "Direct PM'.5 Emissions" and "PM2
.5 

## Precursor" as reflected in 40 CFR §Sl.lOOO as specifiedby EPA's comment. 

## Potential controversial concerns and legislative interestremaining after proposal andpublic comment: The adopted amendments includedinthis rulemaking will be consistent\\ith current EPA presumptions andAPD policyregarding NSR programs. There is no known legislative interest at this time. However, the current NSR program does not address secondary formation ofPM2
.5• 

## In the Final Rule for increments, significant impact levels (SILs), and significant monitoring concentration (SMC), EPAremovedthe reference to "direct" PM2.5

## emissions, to allow for consideration ofprecursor emissions when determining whetherthe air quality impact ofa major new source or modification wouldbe less than the PM2 .5 

## SILs. EPAhas indicatedthat estimating techniques are being developedthat

## will be able to be appliedto the PM2 .5

## analysis in the near future. EPAis concernedthat a large fraction ofPM2
.5 

## monitored in ambient air is formedby photochemical interaction ofprecursor pollutants and the lackoftechnical tools to predict the formation ofsecondary PM2 .5• 

## Remo\ing the reference to directemissions in the rule, also allows EPAto include precursor emissions through guidancewithout 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 secondarilyformed PM2.S inthe source impact and air quality analyses for PSD and minor NSR permitting compliance demonstrations. 

## Does this rulemaking affect any currentpolicies orrequire development of new policies? APD is currently conducting reviews ofsources subjectto PSD and minor NSRthat meet federal definitions and requirements. There will be necessary updates to PSD guidance for staffand 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 meetthe regulatory requirements ofthe FCAA. 

## Keypoints in 

## adoption rulemaking schedule:

• Texas Registerproposal publication date: November 19, 2010

• Anticipated 

## Texas Registerpublication date: May 6, 2011

• Anticipatedeffective date: May 12, 2011

• Six-month 

## TexasRegisterfiling deadline:. May 19, 2011 

## Agencycontacts: Johnny Bowers, Rule ProjectManager, 239-6770, Air

## Permits Division Erin Selvera, StaffAttorney, 239-6033 Charlotte Horn, Texas Register Coordinator, 239-0779

cc: ChiefClerk, 2 copies Executive Director's Office SusanaM. Hildebrand, P.E. Anneldsal Curtis Seaton Ashley Morgan Office ofGeneral 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

TheTexas Commission on Environmental Quality (TCEQ orcommission) adopts the amendment to §101.1.

The amendment is adopted 

## with changes to the proposed textas published inthe November 19, 2010, issue ofthe 

## Texas Register (35 TexReg 10147) and will be republished.

The amendmentwill be submitted to the United States Environmental Protection Agency (EPA) as a revisionto the state implementationplan (SIP).


## Backgroundand SUDlmary ofthe Factual Basis for the AdoptedRule This rulemaking adds clarifying definitions to TCEQ rules necessary for proper implementation ofnew andrevised federal regulations regarding the NationalAmbient Air Quality Standard (NAAQS) for particulate matter (PM).

On July 18, 1997, the EPArevised the NAAQS for PM to add new standards forfine particles using PM with an aerodynamic diameterless than or equal to a nominal 2.5 micrometers (PM2

.5

) as an indicator. However, atthattime, certain difficulties regarding implementation ofthe PM2.5 regulations remained, including the lack of necessary tools to calculate emissions ofPM2
.5and relatedprecursors, the lack of adequate modeling techniques to projectambientimpacts, and the lack ofPM2

.5

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 201O-020-101-PR Page 2

monitoring sites. Therefore, on October 23,1997, EPAissued a memorandum providing for PM v.ith an aerodynamic diameterless than or equalto a nominal 10 micrometers (PMlO) 

## to be used as a surrogate for PM2.S' 

## EPAreaffirmeduse ofthe surrogate policyin

a memorandum datedApril 5, 2005.

On November 1, 2005, the EPAproposed regulations to implementthe New Source Review (NSR) programfor PM2 .S' 

## EPApublishedthebulkofthe majorNSRprogram final regulations for PM2
.S

## on May 16, 2008 (effective on July 15,2008). EPAnotedthat this final action, with EPA's proposed rule on increments, significant impactlevels (SILs), and significant monitoring concentration (SMC) whenfinal, willrepresentthe final elements necessaryto implement a PM2
.S 

## Prevention ofSignificant Deterioration (PSD) program. EPApublishedthe final rule onincrements, 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 EPAproposedtwo actions thatwouldend EPA's 1997 policy allowing sources and permitting authorities to use a demonstration ofcompliance with the PSD requirements for PM lO 

## as a surrogate for meeting the PSD requirements for PM2 .S' 

## Inthe first action, the EPA proposedto repeal the "grandfathering" provision for PM2 .

## scontained in the federal PSD program. The provision allows applicants for proposed new major sources and major modifications thathave submitted a complete PSD permit application priorto the effective date ofan amendmentto the PSD regulations buthave notyet receivedfinal'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 ratherthan Page 3

immediatelyhaving to amend applications to demonstrate compliance\\iththe new PSD requirements. Inthe second action, EPAalso proposed to end early the PM IO 

## Surrogate Policy applicable in states that have an approved PSD program in their SIP. The three-year transition periodfor revising the SIP andfor use ofthe surrogate policy ends in May 2011, unless revisedbyEPA. In an effort to ensure the TCEQ meets regulatory requirements ofthe Federal CleanAirAct (FCAA), the commission is adopting amendments to Chapter 101 and 30 TAC Chapter 106, Permits by Rule, to add specific definitions relatedto PM2
.

## sregulation, and to address the known requirements for implementation.

Existing federal regulations require both major and minorNSRprograms to address any pollutantfor whichthere is a NAAQS andprecursors to the formation ofsuchpollutant when identifiedfor regulation by the EPA. TCEQ rules outline the requirements for both major and minor NSRprograms under 30 TAC §n6.no, Applicability. This section requires any person who plans to construct any new facility orto engage in the modification ofany existing facility which mayemit air contaminants into the airofthis
state to obtain a permit under §n6.1n, General Application, or satisfythe conditions for anotherauthorization type as listed within that section. Chapter n6, Subchapter B, New Source Review Permits, outlines the general requirements for both minorand major NSRpermits. 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 andminor NSR. Minor NSR sources are required to complywith all sections of§116.111 except §116.111(a)(z)(H) and (I) 

## which onlyapply to major NSR (nonattainment and PSD).

Forprecursors, EPAprovided some clarification regarding regulation ofPM2
.S 

## precursors in the May 16, zo08, PM2
.S

## implementation rule, stating that generallywhere scientific data and modeling analyses provide reasonable certainty that the pollutant's emissions are a significant contributor to ambient PM2
.S

## concentrations, EPAbelieves that pollutant shouldbe identified as a "regulated NSRpollutant" and subjectto the PM2
.S

## NSRprovisions. Conversely, where the effect ofapollutant's emission on ambient PM2
.S

## concentrations is subjectto substantial uncertainty, such that in some circumstances, the pollutant may not result inthe formation ofPM2
.S, 

## or control ofthe pollutant may have no effect or mayeven aggravate air quality, EPAgenerallybelieves it is unreasonable to establish a nationally-applicable presumption thatthe pollutantis a regulated NSR pollutant subjectto the requirements ofNSRfor 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, EPApresumes S02 and NOx to be significant contributors to ambient PM2
.S 

## concentrations in all areas and thus, have termed these pollutants "presumedin," 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 NSRprogram

## Texas Commissionon Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 201O-020-101-PR

because additional research andtechnical tools are necessaryto characterize the emissions inventories for VOC, and there is considerableuncertaintyrelatedto Page 5

ammonia as a precursor. Therefore, EPAhas categorized these pollutants as "presumed out," meaning not regulated as a precursorfor PM2
.Sregulation. However, states have the option to exclude NOx, as a precursorby demonstrating thatNOx emissions are not

a significant contributorto ambient PM2
.Sconcentrations in aparticular area. In addition, states have the option ofidentifyingVOC and/or ammonia as precursor(s) by demonstrating that emissions for VOC and/or ammonia are a significant contributorin

an area, and thus, shouldbe subjectto major NSR.

Furthermore, in the Final Rule for increments, SILs, and SMC, EPAremovedthe reference to "direct" PM2
.Semissions, to allow for consideration ofprecursor emissions when determining whetherthe air quality impact ofa major new source or modification wouldbe less thanthe PM2.S SILs. EPAhas indicatedthat estimating techniques are being developedthatwillbe able to be appliedto the PM2
.Sanalysis inthe near future. Removing the reference to direct emissions in the rule also allows EPAto include precursor emissions through guidance without notice andcommentrequiredfor rulemaking. Furthermore, EPAmay require precursors be included in "photochemical" modeling to obtain concentrations that couldinclude direct and secondarilyformed PM2.5 inthe source impact and air qualityanalyses.

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 201O-020-101-PR Page 6

EPAhas also provided clarification regarding regulation ofcondensable 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 NSRpermits during the transitional period that ended on January 1, 2011. During this transitional period, EPA assessedthe capabilities oftest methods availablefor measuring condensable emissions, publishing a final rule for methods ofmeasuring 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 aparticulate-sizing device to allow for sampling ofparticulate matterwith

mean aerodynamic diameters less than or equal to PM2 .5• 

## Thefinal amendments to Method 202 revise the sample collection and recoveryprocedures ofthe method to reduce the formation ofreaction artifacts that couldleadto inaccurate measurements of condensableparticulate 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 consistencyin the
measurements obtainedbetween source tests performedunder different regulatory authorities. This final rulebecame effective on January 1, 2011.

Finally, EPAclarified that there willbe no changes to the implementation ofBest Available Control Technology (BACT) requirements for PM2 .5 

## at major sources that are subjectto the PSD program. Ifa new major source will emit, or has the potential to

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 201O-020-101-PR Page 7

emit, a significant amount ofa regulated NSRpollutantin anattainment area for that pollutant, the source must apply BACTfor eachemissions unitthatemits the pollutant. In addition, ifa physical change oroperational change at an existing major source will result in a significant emissions increase and significant netemissions increase ofa regulated NSRpollutant, the source must apply BACTto each proposed emissions unit experiencing a net increase in emissions ofthatpollutant as a result ofthe physical or operational change in the unit. Underthe PM2

.5 

## PSD program, these requirements will apply to direct PM2

. 5

## emissions; S02 emissions; andNOx emissions, unless states demonstrate that NOx is not a significant contributorto ambient PM2
.5

## concentrations in that area; andto VOC ifidentified by a state as aprecursorinthe PM2
.5

## attainment area where the source is located. Although EPAhas specifiedthat direct emissions ofPM2
.5 

## at or above the significant emission rate (SER) wouldtriggera BACT analysis, EPAhas
not specifiedwhether a precursor's emissions above the precursor's SERwouldtrigger a BACT analysis for PM2

.5

## ifdirect emissions ofPM2
.5

## arebelowthe PM2

.5

## SER. Therefore, it 

## is presumedthat BACTfor direct PM2
.5

## will apply onlyifdirect PM2
.5

## emissions are significant, and BACTfor precursorpollutants will apply onlyifthe precursoremissions equal or exceedthe specific SER for the precursorpollutant.



## Section Discussion The commission adopts the amendmentto §101.1, Definitions, to remove the figure in §101.1(2S) providing the de minimis impactlevels for S02, PMlO, 

## nitrogen dioxide (N02 ),

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 201O-020-101-PR Page 8

andcarbon monoxide (CO). In its place, the definition will reference 40 Code ofFederal Regulations (CFR) §S1.l6S(b)(2). 40 CFR §S1.l6S(b)(2) provides the significance levels, above which a major source or majormodification wouldbe considered to cause or contributeto a violation ofthe NAAQS when such source ormodification would, at a minimum, exceed the listed significance levels. In addition, the commissionis adopting changes to §101.1(7S), which currently defines PM. The adoption will move the definitionfor PM lO 

## from §101.1(78) to §101.1(7S)(A), and addthe definition for PM2
.5 

## under §101.1(7S)(B). PM emissions is defined under §101.1(76). This sectionwill 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 

## emissionswill 

## be defined underexisting §101.1(78) when the definition for PM lO 

## is movedto new §101.1(7S)(A). These changes will provide the definitions for PM lO 

## and PM2.5 

## emissions andthe definitions for direct and secondary PM emissions which currently do notexist. The definition ofPM2• 5 

## emissions in §101.1(78) has been amendedto address continuing technical issues associatedwith the measurement ofPM2.5 

## in wetgas streams. EPAacknowledged in promulgating amendments to its particulate matter measurement methods that "using Method 5 on stacks with entrained moisture and assuming thatthe catch is PM2
.5 

## can potentially overestimate PM2•5 

## concentrations

.... Monitoring the emission ofPM lO 

## or PM2
.5 

## from awet gas stream is a challenging problem that has notbeen addressed successfully despite considerable effort." EPAfurther notes that state permitting

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 201O-020-101-PR Page 9

authorities have the responsibility to interpret EPA's recommendations regardingwet gas measurement (December 21, 2010, issue ofthe Federal Register (FR) (75 FR 80,117, 80,126)). Based onthese technical issues and the commission's interpretation ofEPA's recommendations, the final language of§101.l(78) has been amendedto allow the use of
test methods approved under the SIP oran 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 ImpactAnalysis The commission reviewedthe adopted rulemaking in lightofthe regulatory analysis requirements ofTexas Government Code, §2001.0225 and determinedthat the adopted rule does notmeetthe definition ofa "majorenvironmental rule." Texas Government Code, §2001.0225 states that a "major emironmental rule" is, "arule the specific intent ofwhich is to protect the environmentor reduce risks to human health from environmental exposure and that may adversely affectin 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 riskto human health, it is not expectedthat this rulemaking will adversely affect in a material way the economy, a sector ofthe economy, productivity,jobs, the emironment, orthe public health and safety ofthe state or a sector ofthe state.

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 201O-020-101-PR Page 10

Furthermore, while the adopted rulemaking does not constitute a majorenvironmental rule, even ifit did, a regulatory impact analysis would notbe requiredbecause the adopted rulemaking does not meet any ofthe four applicability criteriafor requiring a regulatory impact analysis for a majorenvironmental rule. Texas Health and Safety Code (THSC), §200l.0225 applies only to a major environmental rule which: 1) exceeds

a standard setbyfederal law, unless the rule is specificallyrequired by statelaw; 2) exceeds an express requirement ofstate law, unless the rule is specifically required by 

## federal law; 3) exceeds a requirement ofa delegation agreement or contractbetween the
state and an agency or representative ofthe federal government to implement a state andfederal program; or4) adopts a rule solely underthe general powers ofthe agency instead ofunder a specific state law. The adopted rulemaking does not meetany ofthe four applicability criterialisted inTexas GovernmentCode, §200l.0225 because: 1) the adopted rulemaking is designed to meet, not exceedthe relevant standard setbyfederal law; 2) parts ofthe adopted rulemaking are directly requiredby state law; 3) no contract

or delegation agreement covers the topic that is the subject ofthis rulemaking; and4) the adopted rulemaking is authorizedby specific sections ofTHSC, Chapter382 (also known as the TCAA), which is cited in the (statutory authority) section.

The specificintent ofthe adoptedrulemaking is to amend Chapter 101 to add definitions necessaryfor implementation ofPM2
.S

## NSR regulations, and replace currentdefinitions

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 201O-020-101-PR Page 11



## with references to federal definitions for efficiency. The preamble to this rulemaking clarifies how precursors and condensable emissions are addressed, that EPAhas made

no changes to the BACT analysis process for PMo.

## s, and provides abasis for regulation of PM2•S 

## emissions when the use ofPM IO 

## as a surrogate for PM2
.S

## is no longer applicable.



## Takings ImpactAssessment The commission evaluatedthe adoptedrule andperformed an analysis ofwhetherthe adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The specificpurpose ofthe rulemaking is to facilitate implementation ofnew federal regulations under the NSR program. The adopted amendment would substantially advance this statedpurposeby adding definitions to Chapter 101, necessaryfor 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 takento fulfill an obligation mandatedbyfederal law, which is 

## exempt under Texas Government Code, §2007.003(b)(4). Specifically, EPAhas promulgated new NSR regulations for PM2
.S

## in accordance with40 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 administratorofthe NSRprogramforTexas, is tasked with implementing the new federal regulations 

## in accordance with 40 CFR §51.166 and FCAA, §107(d)(I)(A)(ii) or (iii).

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 201O-020-101-PR Page 12

Nevertheless, the commissionfurther evaluated the adoptedrule andperformedan assessmentofwhether the adoptedrule constitutes atakings underTexas Government Code, Chapter 2007. The specific purpose ofthe adoptedrule is to facilitate implementationofnewfederal regulations underthe NSRprogram. The adopted rule would substantiallyadvance this stated purposeby adding new definitions to Chapter 101, necessaryfor implementation ofthe PM2 .

## sregulations.

Promulgation andenforcement ofthe adoptedrule wouldbe 

## neithera statutory nora constitutionaltaking ofprivate real property. Specifically, the subjectadopted regulations do not affect alandowner's rights in private real propertybecause this rulemaking does notburden (constitutionally), nor restrict orlimitthe owner's right to property and reduce its value by 2S% or more beyond thatwhich would otherwise exist inthe absence ofthe regulations. In otherwords, the rule does notaffect private propertyin a mannerthat restricts orlimits an owner's rightto the propertythatwould otherwise existin the absence ofa governmental action. Consequently, this rulemaking action does not meetthe definition ofa takings under Texas Government Code, §2007.002(S).



## Consistencywith the CoastalManagement Program The commission determinedthat this rulemaking action relates to an action oractions subjectto the Texas Coastal Management Program (CMP) in accordance withthe

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2010-020-101-PR Page 13

Coastal CoordinationAct of1991, as amended (Texas Natural Resources Code, §§33.201


## etseq.), and commission rules in 30 TAC Chapter 281, SubchapterB, concerning Consistency withthe Texas Coastal Management Program. As 

## requiredby §281.4s(a)(3) and 31 TAC §SOS.11(b)(2), relating toActions and Rules Subjectto the Coastal Management Program, commission rules governing airpollutantemissions
mustbe consistent with the applicable goals andpolicies 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 thatthe action is consistentwith 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 ofcoastal natural resource areas (31 TAC §S01.12(l)). The adopted amendmentwill indirectly benefit the environmentbecause it will require PM2 .S 

## emissions tobe evaluated for compliance not to exceed significancelevels which will ensure that there willbefewer adverse impacts to public health and the environment. The CMP policy applicable to this rulemaking action is the policythat commission rules comply withfederal regulations in40 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.

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2010-020-1Q1-PR Page 14

The commission invitedpublic commentregarding the consistency with the coastal management program during the public commentperiod. No comments were received

onthe Coastal Management Program.



## Effect on Sites Subjectto the Federal Operating Permits Program There shouldbe no significant effect onfacilities subjectto the Federal Operating Permits Program sinceAPD is currently conducting reviews ofsources subjectto PSD and minor NSRthat meetfederal definitions and requirements. Permitholders may need to conduct an evaluation and determine ifa revision to a Federal Operating Permit is neededto update the applicable requirements.



## Public Comment The commission held apublic hearing on December 13, 2010. The commentperiod closed on December20, 2010. The commission received comments from BakerBotts L.L.P. onbehalfofthe Texas Industry Project (TIP), an individual, and EPA. The individual andthe EPAwere in supportofthe rule project. EPA did suggest changes to the definitions of"Direct PM Emissions" and "Secondary PM Emissions." TIP was opposedto the rule project.



## Response to Comments An 

## individual supports this rule projectand hopes TCEQ implements the new more

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 201O-020-101-PR stringent PM2.S 

## and does nottake the allowed state implementation plan of10 Page 15

micrometers orless. In addition, the individual wouldlike to see some suggested guidance in this proposed rule onformation ofPM 2 .S

## from photochemical interaction.



## The commission didnotmake any changes to the rule 

## in response to this comment. The TCEQ will develop non-rule guidanceto address photochemical modeling.

EPA appreciates the state's proposed revisions buthas concerns over the proposed definitions for "Direct PM Emissions" and "Secondary PM Emissions." EPA states the definitions are similarto, but notidentical to the definitions of"Direct PM2 .S" 

## and "PM2 .S 

## precursor" in 40 CFR §51.1000. EPA states thatTCEQ must eitheruse the federal definitions orprovide a demonstration thatits proposed definition is as stringent as or
more stringentthan the federal definitions. If

## Texas excludes NOx as a PM2
.S 

## precursor, it must provide a demonstrationthat NOx is not a significant contributorto ambient PM2 .S' 

## Texas may includeVOCs and ammonia and PM 2
.S 

## precursors ifTexas has identified these substances as significant contributors to ambient PM 2
.S'



## EPA also noted thatthey have proposed rulemaking for repealing the Grandfathered Provisions, Implementation oftheNSRProgram for PM 2 .5; 

## Notice ofProposed Rulemaking to repeal Grandfathering Provision andthe endthe PM lO 

## Surrogate policy

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 201O-020-101-PR prior to the May 16, 2011 deadline, buthas not yettaken final action. Page 16

EPA also issued a recent orderin response to aTitleVpetitionfor Louisville Gas and Electric Company (LG&E), located inTrimble County, Kentucky, that discussed use of PM,o as a surrogate for PM2
.5• 

## They remind TCEQ and sources inTexas to carefully considerthe caselaw andthe limits ofthe Surrogate policy discussedinthe LG&E petition decision to determine what information and analysis needs to be includedin the permit application andpermitrecordbefore relying onthe Surrogatepolicy.



## The commission didmake changes to theproposedtextbased on the commentthatthe definitions for "DirectPM Emissions" and "Secondary PM Emissions" are similarto, butnotidentical to the definitions of"Direct PM2

.S" 

## and "PM2.5 precursor" in 40 CFR §51.1000. Theproposeddefinitions

were derived from EPAs 

## FederalRegisternotice (73 Federal Register 28341, May 16, 2008). Theproposed definitions have been revisedto be identicalto the definitions of"DirectPM2
.S" 

## and "PM2
.S 

## precursor" in 40 CFR §51.1000.

The commission appreciates EPA' comments and continues to track developments on case law andEPA's policies concerning PM2.5 issues.

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2010-020-101-PR Page 17

TIP opposes the proposed amendment atthis time since EPA has notidentified a test method for measuring differenttypes ofPM and condensable PM2
.5• 

## They also state at this time there are no federally approvedtest methods for measuring PM2
.5• 

## While EPA has proposed changes to existing PM test methods in orderto more accurately measure PM2.5, 

## EPArecognizes there are technical issues that needto be resolved. TIP states that rule comments reflect a strong desire for EPAto consider other PM2 .5 

## measurement approaches. There are concerns with sources being requiredto perform an emission
testto demonstrate compliance with a PM2
.5 

## PSD Permit emissionlimitwhen there are
no federally approved methods, and significanttechnical issues remain associatedwith the test methods for measuring PM2
.5• 

## TCEQ should allow regulatedentities to use test methods that are shownto be equivalentrather thanlimiting sources to onlythe method

or methods promulgatedby EPA. EPA issued additional PM2 .5 

## rules on October 20, 2010, establishing significantimpact levels and de minimis monitoring levels for PM 2 .5• 

## TIP is concerned thatthis proposal does notaddress the concepts establishedin that rulemaking.



## The commission didnot make any changes to the rule in response to these comments. This rulemaking is necessary since EPAproposedrulemaking for repealing the Grandfatheredprovisions, Implementation ofthe NSR Programfor PM2 •5 ; 

## Notice ofProposed Rulemaking to 

## repeal Grandfathering Provision andthe endto the PMto 

## Surrogate policypriorto

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 201O-020-101-PR Page 18



## theMay 16, 2011 deadline, whichhas notbeenfinalized. In efforts to ensnre theTCEQ meets regulatoryrequirements ofthe FCAA, the commission is adopting amendments to add specific definitions related to PM".s regulation andto address known requirements for implementation.

Subsequentto receipt ofTIP's comments, EPAhas publishedthe final rule

on the Methods for Measnrement ofFilterable PMlO 

## andPM2.s and Measurement ofCondensable PM Emissions (75 FederalRegister 80118, 

## December 21,2010).

This adoption addresses known requirements to date in orderto meet the May 16, 2011 deadlinefor implementation ofthe PM2.5 requirements and the endofthe PMlO

## Surrogate policy. TCEQ will consider anyfutnre rulemaking, as necessaryto address futnre state orfederal regulatory requirements.

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR

The Texas Commission on Environmental Quality (TCEQ, agency, orcommission) adopts the amendmentto §106-4. Page 1

The amendment is adopted 

## withoutchange to the proposed text as published in the November 19, 2010, issue ofthe 

## Texas Register (35 TexReg 10157) and will notbe republished.

The amended section willbe submittedto the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).



## Backgroundand Summary 

## ofthe Factual Basis for theAdopted Rule The commission adopts the amendment to §106-4to address the applicable significant emissionthresholds for particulate matter (PM), PM 10 micrometers orless (PM lO), 

## and PM 2.5 micrometers orless (PM 2 .

## s) to provide clarityto the permitting process for PM.

OnJuly 18,1997, the EPArevised the National AmbientAir Quality Standards (NAAQS) for PM to add new standards for PM2 .

## sas anindicator. However, atthattime, certain difficulties regarding implementation ofthe PM2 .

## sregulations remained, including the lackofnecessarytools to calculate emissions ofPM 2 .

## sand related precursors, the lackof adequate modeling techniques to project ambient impacts, and the lackofPM2 .

## s monitoring sites. Therefore, on October 23,1997, EPA issued a memorandum providing

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule ProjectNo. 201O-020-101-PR Page 2

for PMlO 

## to be used as a surrogate for PM2.5• 

## EPAreaffirmed use ofthe surrogate policy in a memorandum datedAprilS, 2005.
On November 1, 2005, the EPAproposedregulations to implementthe New Source Review (NSR) programfor PM2
.5• 

## EPApublishedthe bulk ofthe majorNSRprogram final regulations for PM2
.5 

## on May 16,2008 (effective onJuly 15,2008). EPAnotedthat this final action, with EPA's proposed rule on increments, significantimpactlevels (SILs), and significant monitoring concentration (SMC) whenfinal, will representthe final elements necessaryto implement a PM2
.5 

## Prevention ofSignificant Deterioration (PSD) program. EPApublishedthe final rule on increments, SILs, and SMC on October 20,2010 (effective December 20, 2010for the SILs and SMC, and October 20,2011 for the increment demonstration). On February 11, 2010, the EPAproposedtwo actions thatwouldendthe EPA's 1997 policy allowing sources and permitting authorities to use
a demonstration ofcompliance with the PSD requirements for PMlO 

## as a surrogatefor meeting the PSD requirements for PM2 .5• 

## Inthe first action, the EPA proposedto repeal the "grandfathering" provisionfor PM2 .5 

## containedin the federal PSD program. This provision allows applicants for proposednew major sources andmajor modifications thathave submitted a complete PSD permit applicationpriorto the effective date ofan amendmentto the PSD regulations buthave notyet receivedfinal and effective PSD permit. to continue relying on information already inthe application ratherthan immediatelyhaving to amend applications to demonstrate compliancewiththe new PSD requirements. In the second action, EPA also proposedto endearlythe PMlO 

## Surrogate

## Texas Commission on Emironmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR Page 3

Policy applicable in states that have an approved PSD program in their SIP. The threeyear transition period for re\ising the SIP andfor use ofthe surrogate policy ends in May 2011, unless revisedby EPA. In an effortto ensurethe TCEQ meets regulatory requirements ofthe Federal CleanAirAct (FCAA), the commission is adopting amendments to 30 TAC Chapter 101, GeneralAir Quality Rules, andto Chapter 106 to add specific definitions related to PM2 .

## sregulation, andto address theknown requirements for implementation.

Existing federal regulations requireboth major and minor NSRprograms to address any pollutantfor which there is a NAAQS andprecursors to the formation ofsuch pollutant when identified for regulationbythe EPA. TCEQ rules outlinethe 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 orto engage inthe modification ofany existing facility which may emit air contaminants into the airofthis
state to obtain apermit under §116.111, GeneralApplication, orsatisfythe conditions for another authorizationtype as listed within that section. Chapter 116, Subchapter B, New Source Review Permits, outlines the general requirements forboth minor and major NSRpermits. Specifically, §116.111 covers the general application requirements forboth major and minor NSR. Minor NSR sources are requiredto 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 Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR

Forprecursors, EPAprovided some clarification regarding regulation ofPM2
.S 

## Page 4

precursors in the May 16, 2008, PM2
.S 

## implementation rule, stating that generallywhere scientific data and modeling analyses provide reasonable certainty thatthepollutant's emissions are a significant contributorto ambient PM2
.S 

## concentrations, EPAbelieves that pollutant shouldbe identifiedas a "regulated NSRpollutant" and subjectto the PM2
.S 

## NSRprovisions. Conversely, where the effect ofa pollutant's emissionon ambient PM2
.S 

## concentrations is subjectto substantial uncertainty, suchthat in 

## some circumstances thepollutant may not result in the formation ofPM2
.S, 

## or control ofthe pollutant may have no effector may even aggravate air quality, EPA generallybelieves it is unreasonable to establish a nationally-applicable presumptionthatthe pollutantis a regulated NSRpollutant subjectto the requirements ofNSRfor 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, EPApresumes S02 and NOx to be significant contributors to ambient PM2
.S 

## concentrations in all areas andthus, have termed thesepollutants "presumedin," meaning requiring regulation as a precursor for PM2

.S' 

## Conversely, the final rule does
not require regulation ofVOC or ammonia as aprecursorto PM2
.S 

## for the NSRprogram because additional research andteclmical tools are necessary to characterize the emissions inventories for VOC, andthere is considerable uncertainty relatedto ammonia as a precursor. Therefore, EPA has categorized these pollutants as "presumed out," meaning not regulated as a precursorfor PM2
.S 

## regulation. However, states have

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR Pages

the optionto exclude NOx, as aprecursorby demonstrating thatNOx emissions are not

a significant contributor to ambient PM2 .S 

## concentrations in aparticular area. In addition, states have the option ofidentifyingVOC and/or ammonia as precursor(s) by demonstrating that emissions forVOC and/or ammonia are a significantcontributorin

an area, andthus, shouldbe subjectto major NSR.

Furthermore, 

## in the Final Rule for increments, SILs, and SMC, EPAremovedthe reference to "direct" PM2 .S

## emissions, to allowfor consideration ofprecursor emissions when determining whether the air quality impactofa majornew source or modification wouldbeless than the PM2
.S 

## SI1.5. EPA has indicated that estimating techniques are being developed that will be able tobe applied to the PM2
.S

## analysis in the near future. Removingthe reference to direct emissions inthe rule also allows EPA to include precursor emissions through guidance withoutnotice andcommentrequiredfor 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 airqualityanalyses.

EPAhas also providedclarification regarding regulation ofcondensable PM underthe PM2.S

## regulations stating it will not require states to address condensable PM in establishing enforceableemissions limits for either PMlO 

## or PM2.S 

## inNSRpermits during the transitional period that ended on January 1, 2011. During this transitional period,

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR Page 6

EPA assessedthe capabilities oftest methods available for measuring condensable emissions, publishing afinal rule for methods ofmeasuring filterable PMlO 

## and PM2 •5 

## andmeasuring condensable PM emissions on December 21, 2010. Thefinal rule promulgates amendments to Methods 20lA and 202. Thefinal amendments to Method 20lAadd aparticulate-sizing device to allow for sampling ofPM with mean aerodynamic diameters less than or equal to PM2
.5• 

## Thefinal amendments to Method 202 revise the sample collection andrecovery procedures ofthe methodto reduce the formation ofreaction artifacts thatcouldlead 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, therebyincreasing the precision ofthe method and improving the consistencyin the measurements obtained between sourcetests performedunder different regulatory authorities. This final rule became effective on January 1, 2011.

Finally, EPAclarifiedthat there willbe no changes to the implementation ofBest Available Control Teclmology (BACT) requirements for PM2
.5 

## at major sources that are subjectto the PSD program. Ifa new major source will emit, orhave the potential to emit, a significantamount ofaregulated NSRpollutantin an attainment area for that pollutant, the source must apply BACTfor each emissions unit that emits the pollutant. In addition, ifaphysical change or operational c!lange at an existing major sourcewill result in a significant emissions increase and significant netemissions increase ofa

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR Page?

regulated NSRpollutant, the source must apply BACTto each proposed emissions unit experiencing a net increase in emissions ofthatpollutant as a result ofthe physical or operational change in the unit. Underthe PM2
.S 

## PSD program, these requirements ",ill apply to direct PM2

.S 

## emissions; S02 emissions; and NOxemissions, unless states demonstrate that NOx is not a significant contributorto ambient PM2
.S 

## concentrations in thatarea; andto VOC ifidentifiedby a state as a precursorin the PM2
.S 

## attainment

area where the source is located. Although EPAhas specifiedthat direct emissions of PM2
.S

## at or above the significant emission rate (SER) wouldtrigger a BACT analysis, EPA has not specified whether a precursor's emissions above the precursor's SERwould trigger a BACT analysis for PM2
.S 

## ifdirect emissions ofPM2
.S

## are belowthe PM2
.S

## SER. Therefore, itis presumed that BACT for direct PM2
.S

## will apply only ifdirect PM2
.S 

## emissions are significant, and BACTfor precursorpollutants ",ill apply onlyifthe precursoremissions equal orexceed the specific SERforthe precursorpollutant.



## Section Discussion 

## §106.4, RequirementsforPermitting by

## Rule The commission adopts the amendmentto §106-4to address the applicable significant emission thresholds establishedby EPAfor PM, PMlO, 

## and PM2

.S' 

## The significant emission threshold for PM is 25 tons peryear (tpy), PMlO 

## is 15 tpy, and PM2
.S 

## is 10 tpy. Section 106-4(a)(1) and (4) has been revisedto include these changes. This change 

## will provide clarityto the permitting process for PM byincluding the significantlevels for

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule ProjectNo. 201O-020-101-PR PageS

PM, PMlO, 

## and PM'.5' It

## will not affect existing claims and is only applicableto new or modified claims underthis chapter, not currently operating authorized facilities under standard exemption orpermitby rule (PBR) in 

## accordance with §106.2, Applicability.



## Final Regulatory ImpactAnalysis The commission reviewed the adopted rulemaking inlight ofthe regulatory analysis requirements ofTexas Government Code, §2001.0225 and determined thatthe adopted rule does not meet the definition ofa "majorenvironmental rule." Texas Government Code, §2001.0225 states that a "majorenvironmental rule" is, "a rule the specificintent ofwhich is to protect the environment orreduce risks to human health from environmental exposure andthat 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 riskto 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 notconstitute a major environmental rule, even ifit did, aregulatory impact analysis wouldnot be requiredbecause the adopted rulemaking does not meet any ofthe four applicability criteriafor requiring a

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR Page 9

regulatory impactanalysis for a major environmental rule. Texas Government Code, §2001.0225 applies onlyto a major environmental rule which: 1) exceeds a standard set byfederal law, unless the rule is specifically requiredby state law; 2) exceeds an express requirement ofstatelaw, unless the rule is specificallyrequiredbyfederal law; 3) exceeds a requirement ofa delegation agreement or contractbetween the state and an agency orrepresentative ofthe federal government to implement a state andfederal program; or 4) adopts a rule solely underthe general powers ofthe agency insteadof under a specific statelaw. The adopted rulemaking does not meet anyofthe four applicability criteria listed inTexas Government Code, §2001.0225 because: 1) the proposedrulemaking is designedto meet, not exceedthe relevant standard setby federal law; 2) parts ofthe proposed rulemaking are directlyrequiredby statelaw; 3) no contract or delegation agreement covers the topic that is the subject ofthis rulemaking; and 4) theproposed rulemaking is authorizedby specificsections ofTHSC, Chapter 382 (also known as the Texas CleanAirAct orTCAA), which is cited 

## in the (statutory authority) section.

The specific intent ofthe adopted rulemaking is to amend Chapter 106 to includethe significantlevels for PM, PM lO, 

## and PM2
.S. 

## Thepreambleto this rulemaking clarifies how precursors and condensable emissions are addressed, that EPA has made no changes to the BACTanalysis process for PM2 .S, 

## and provides abasis for regulation of PM2
.S 

## emissions when the use ofPMlO 

## as a surrogate for PM2
.S 

## is no longer applicable.

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule Project No. 201O-020-101-PR 

## Takings ImpactAssessment Page 10

The commission evaluatedthe adopted rule and performed an analysis ofwhetherthe rule constitutes a taking underTexas Government Code, Chapter 2007. The specific purpose ofthe rulemaking 

## is to facilitate implementation ofnewfederal regulations underthe NSR program. The adopted amendmentwould substantiallyadvance this statedpurposeby including the significantlevels for PM, PM lO, 

## and PM2 .5 

## in Chapter 106. The commission's analysis indicates thatTexas Government Code, Chapter 2007 does notapply to this adopted rule because this is an action thatis reasonablytaken to fulfill an obligation mandatedbyfederal law, which is exemptunderTexas Government Code, §2007.003(b)(4). Specifically, EPAhas promulgated newNSRregulations for PM2
.5

## in accordance with40 Code ofFederal Regulations (CFR) §§S2.21, 52.24, 51.160

- 51.164, 51.165, S1.16s(b), and 51.166, and40 CFR Part 51, Appendix S. TCEQ, as the administratorofthe NSRprogramfor 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 evaluatedthe adopted rule andperformed an assessment ofwhetherthe rule constitutes a takings underTexas Government Code, Chapter 2007. The specificpurpose ofthe adopted rule is to facilitate implementation of

newfederal regulations underthe NSRprogram. The adoptedrule would substantially advance this stated purposebyincluding the significantlevels for PM, PM lO, 

## 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 wouldbe 

## neithera statutorynor a constitutional taking ofprivate real property. Specifically, the subjectproposed regulations do not affect a landowner's rights in private real propertybecausethis rulemaking does notburden (constitutionally), nor restrict orlimit the owner's right to property and reduce its valueby 2S% ormore beyond thatwhich would otherwiseexist in the absence ofthe regulations. In otherwords, therule does not affect private propertyin a mannerthat restricts orlimits an owner's right to the propertythatwould otherwise existin the absence ofa governmental action. Consequently, this rulemaking action does not meetthe definition ofatakings underTexas Government Code, §2007·002(S)·


## Consistencywith the Coastal ManagementProgram The commission determinedthat this rulemaking action relates to an action oractions subjectto theTexas Coastal Management Program (CMP) in accordance withthe Coastal CoordinationAct of1991, as amended (Texas Natural Resources Code, §§33.201


## etseq.), and commission rules in 30 TAC Chapter 281, SubchapterB, concerning Consistencywiththe Texas Coastal Management Program. As 

## requiredby §281.4s(a)(3) and 31 TAC §soS.11(b)(2), relating to Actions and Rules Subjectto the Coastal ManagementProgram, commission rules governing air pollutant emissions mustbe

## Texas Commission on Environmental Quality Chapter 106

- Permits by Rule Rule ProjectNo. 201O-020-101-PR Page 12

consistentwith the applicable goals andpolicies ofthe CMP. The commission reviewed this action for consistencywith the CMP goals andpolicies in accordancewiththe rules ofthe Coastal Coordination Council and determinedthat the actionis consistentwith the applicable CMPgoals andpolicies.

The CMP goal applicable to this adoptedrulemaking action is the goal to protect, preserve, andenhance the diversity, quality, quantity, functions, andvalues ofcoastal natural resource areas (31 TAC §S01.12(l)). The adopted rule willbenefitthe environmentby ensuring the NSRprogram meets applicable federal requirements, and is adequately enforceable so that airquality is protected. The CMP policy applicable to this rulemaking action is the policy that commission rules complywithfederal 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 thatthis rulemaking action is consistentwith CMP goals andpolicies.

The commission invited public comment regarding the consistencywith the coastal managementprogram during the public comment period. No comments were received

on the Coastal Management Program.



## Effect on Sites Subjectto the Federal Operating Permits Program There shouldbe no significant effect on facilities subjectto the Federal Operating

## Texas Commission on Environmental Quality Chapter 106

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Permits Program since APD is currently conducting reviews ofsources subjectto PSD and minorNSR that meet federal definitions and requirements. Permit holders may need to conduct an evaluation and determine ifa 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 behalfofthe 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 nottake the allowed SIP of10 micrometers or less. In addition, the individual would like to see some suggested guidance in this proposed rule on formation ofPM2
.S 

## from photochemical interaction.



## Thecommission did not make any changes to the rule in 

## response to this
comment. The TCEQ will develop guidance to address photochemical modeling at the appropriatetime when necessary.

## Texas Commission on Environmental Quality Chapter 106

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EPA appreciates the State's proposed revisions butreminds the TCEQthatany source subjectto the Greenhouse Gas permitting requirements cannotrely upon a PBRbut
mustperformthe Major NSRapplicability determination.



## The commission didnot make any changes based onthis comment. The changes adoptedunder this rulemaking do not address applicabilityto greenhouse gas permitting, but are made to facilitate implementation of PM2 •5 

## requirements underTCEQ rules andTexas' SIP.

TIP opposes the proposed amendments at this time since EPAhas notidentified a test methodfor measuring differenttypes ofPM and condensable PM2
.5• 

## They also state at this time there are no federally approvedtest methods for measuring PM2 .5• 

## While EPA has proposed changes to existing PM test methods in orderto more accurately measure PM2
.5, 

## EPArecognizes there are technical issues that needto be resolved. TIP states that rule comments reflect a strong desire for EPAto considerother PM2 .5 

## measurement approaches. There are concerns with sources being requiredto perform an emission test to demonstrate compliance with a PM2 .5 

## PSD permit emissionlimit when there are no federally approved methods, and significanttechnical issues remain associatedwith the
test methods for measuring PM2
.5• 

## TCEQ shouldallow regulatedentities to use test methods that are shown to be equivalentratherthanlimiting sources to onlythe method

## Texas Commission on Environmental Quality Chapter 106

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or methods promulgatedby EPA. EPAissued additional PM2
.5 

## rules on October 20, 2010, establishing significantimpactlevels and de minimis monitoring levels for PM2
.5• 

## TIP is concerned thatthis proposal does notaddress the concepts established inthat rulemaking.



## The commission didnot make anychanges to the rule in response to these
comments. EPAproposedrulemaking for repealing the Grandfathered Provisions, Implementation ofthe NSRProgram for PM2•5 ; 

## Notice of Proposed Rulemaking to repeal Grandfathering Provision andthe endto the PMlO 

## Surrogate policypriorto 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 relatedto PM2•5 

## regulation andto address known requirements for implementation.

Subsequentto receipt ofTIP's comments, EPApublishedthefinal rule on theMethods for Measurement ofFilterable PMlO 

## andPM2 •5 

## and Measurement ofCondensable PM Emissions (75 FederalRegister80118, 

## December 21,2010).



## This adoption addresses known requirements to date in 

## orderto meetthe

## Texas Commission on Environmental Quality Chapter 106

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## Rule Rule ProjectNo. 201O-020-101-PR Page 16



## May 16,2011 deadline for implementation ofthe PM2.5 requirements and the end ofthe PMto

## Surrogatepolicy. TCEQ will consider any future rule making, as necessary to address future state orfederal 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 

## StatutoryAuthority Page 19

The amendment is adopted under Texas Water Code (TWC), §S.102, concerning General Powers, thatprovides the commissionwith the general powers to carry out its duties under the TWC; §S.103, concerning Rules, and §S.lOS, concerning General Policy, which authorize the commissionto adopt rules necessary to carry out its powers and duties under the TWC; and underTexas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adoptrules consistentwiththe policy and purposes ofthe Texas CleanAirAct. The amendmentis also adopted underTHSC, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state's airresources, consistentwiththe protection ofpublic health, general welfare, and physical property; §382.oo3, concerning Definitions; §382.011, concerning General Powers and Duties, which authorizes the commissionto control the quality ofthe state's air; §382.012, concerning StateAir Control Plan, which authorizes the commission to prepare and develop a general, comprehensive planfor the control of the state's air; §382.0S1, concerning PermittingAuthority ofCommission; Rules, which authorizes the commission to issue a permitbyrule for types offacilities thatwill not significantly contribute air contaminants to the atmosphere; §382.0S13, concerning Permit Conditions, which authorizes the commission to establish andenforce permit conditions; and §382.0S14, concerning Sampling, Monitoring, and Certification.

## Texas Commission on Environmental Quality Chapter 101

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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 definedin the Texas CleanAirAct 

## (TCAA) or in the rules of the commission, the terms usedby the commission have the meanings commonly ascribedto theminthe field ofairpollution control. In addition to the terms that are definedby the TCAA, the following terms, when usedinthe air quality rules inthis title, have the following meanings, unless the context clearlyindicates otherwise.

(1) Aceount--For those sources requiredto be permittedunder Chapter 122 ofthis title (relating to Federal Operating Permits Program), all sources that are aggregated as a site. For all othersources, any combinationofsources undercommon ownership orcontrol andlocatedon one or more contiguous properties, orproperties contiguous exceptfor intervening roads, railroads, rights-of-way, waterways, or similar divisions.

(2) Acid

## gas flare--A flare used exclusivelyforthe incinerationof hydrogen sulfide andother acidic gases derivedfrom natural gas sweetening processes.

## Texas Commission on Environmental Quality Chapter 101

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(3) Agency 

## established facility identification nwnber--For the purposes ofSubchapter Fofthis chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and ShutdownActivities), a unique alphanumeric code required
to be assignedbythe owner or operator ofa regulatedentitythat the emission inventory reporting requirements of§101.1O ofthis title (relating to Emissions Inventory Requirements) are applicableto each facility at that regulatedentity.

(4) 

## Ambient air--That portion ofthe atmosphere, external to buildings,
to whichthe general public has access.

(5) Background--Background concentration, the level ofair contaminants thatcannotbe reducedby controlling emissions from man-made sources. Itis determinedby measuring levels in non-urban areas.

(6) Boiler--Any combustion equipmentfired with solid, liquid, and/or gaseous fuel usedto produce steam orto heatwater.

(7) 

## Capture system--All equipment (including, but notlimitedto, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains, collects, andtransports an air pollutantto a control device.

## Texas Commission on Environmental Quality Chapter 101

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(8) 

## Capturedfacility--A manufacturing orproduction facility that generates an industrial solid waste orhazardous waste that is routinely stored, processed, or disposed ofon a sharedbasis in an integrated waste management unit owned, operatedby, andlocated v.>ithin a contiguous manufacturing complex.

(9) 

## Carbon adsorber--An add-on control device thatuses activated carbon to adsorb volatile organic compounds from a gas stream.

(10) 

## Carbon adsorption system--Acarbon adsorberwith an inlet and outletfor exhaustgases and a system to regenerate the saturated adsorbent.

(11) 

## Coating--A material applied onto orimpregnated into a substrate for protective, decorative, or functional purposes. Suchmaterials include, butare not limited to, paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and temporaryprotective coatings.

(12) 

## Coldsolvent cleaning--Abatch process that uses liquid solvent to

remove soils from the surfaces ofparts or to drythe parts by spraying, brushing, flushing, and/orimmersion while maintaining the solventbelowits boiling point. Wipe cleaning (hand cleaning) is not included in this definition.

## Texas Commission on Environmental Quality Chapter 101

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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 systemthat is gas and/or liquid fuel fired with or withoutpower augmentation. This unit is either attached to a foundation or is portable equipment operated ata specific minor or major source for

more than 90 days in any 12-monthperiod. Two or more gas turbines powering one shaftwill betreated as one unit.

(15) Commercialhazardous waste management facility--Any hazardous waste managementfacility that accepts hazardous waste orpolychlorinated biphenyl compounds for a charge, excepta capturedfacility thatdisposes onlywaste generated on-site or a facility that accepts waste onlyfrom otherfacilities ownedor effectively controlledby the same person.

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

(17) Commercial medical waste incinerator--Afacility thataccepts for incineration medical waste generatedoutside the propertyboundaries ofthe facility.

## Texas Commission on Environmental Quality Chapter 101

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(18) Component--A

## piece ofequipment, including, but notlimitedto, pumps, valves, compressors, and pressure reliefvalves thathas the potentialto leak volatile organic compounds.

(19) Condensate--Liquids that result from the cooling and/orpressure changes ofproduced natural gas. Once these liquids are processed atgas plants or refineries orin any other manner, they are no longer consideredcondensates.

(20) Construction-demolition 

## waste--Waste resulting from construction or demolitionprojects.

(21) Control system or control 

## device--Any part, chemical, machine, equipment, contrivance, or combination ofsame, used to destroy, eliminate, reduce, or control the emission ofair contaminants to the atmosphere.

(22) Conveyorized 

## degreasing--A solvent cleaningprocess that uses an automatedparts handling system, typically a conveyor, to automaticallyprovide a continuous supply ofparts to be cleaned or dried using either cold solvent orvaporized solvent. Aconveyorized degreasing process is fully enclosed exceptforthe conveyorinlet and exitportals.

## Texas Commission on Environmental Quality Chapter 101

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(23) 

## Criteria pollutant or standard--Anypollutantforwhichthere is a national ambientairquality standard established under40 Code ofFederal Regulations Part 50.

(24) 

## Custodytransfer--The transfer ofproduced crude oil and/or condensate, afterprocessing and/or treating in the producing operations, from storage tanks or automatic transferfacilities to pipelines or any otherforms 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 ofany existing sourcethat has undergone a majormodification that does not exceed the significance levels as specified in 40 Code ofRegulations (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 Chapter 101

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(PMlO) 

# ISulfurDioxide 

# 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 andrubbish normally resulting from the functions oflife within aresidence.

(27) 

## Emissions banking--A system for recording emissions reduction credits so they may be used ortransferredfor future use.

(28) 

## Emissions event--Any upset eventor unscheduled maintenance, startup, or shutdown activity, from a common cause that results in unauthorized emissions ofair contaminants from one or more emissions points at aregulated entity.

## Texas Commission on Environmental Quality Chapter 101

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(29) 

## Emissions reduction credit--Any stationary source emissions reduction that has beenbanked in accordance with Chapter 101, Subchapter H, Division 1ofthis title (relating to Emission Credit Banking andTrading).

(30) 

## Emissions reductioncredit certificate--The certificate issuedby the executive directorthat indicates the amountofqualified reduction available for use

as offsets andthe length oftime the reduction is eligiblefor use.

(31) 

## Emissions unit--Any part ofa stationary sourcethat emits, or wouldhave the potential to emit, any pollutant subjectto regulation underthe Federal CleanAirAct.

(32) Excess 

## opacityevent--When an opacityreading is equalto or exceeds 15 additional percentage points above an applicable opacitylimit, averaged over
a six-minute period.

(33) 

## Exempt solvent--Those carbon compounds or mixtures ofcarbon compounds used as solvents that have been excluded from the definition ofvolatile organic compound.

## Texas Commission on Environmental Quality Chapter 101

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(34) Externalfloating roof--A cover orroofin an opentop tankthat
rests upon or is floated upon the liquidbeing containedandis equippedwith a single or double seal to close the spacebetween the roofedge andtank shell. A double seal consists oftwo complete and separate closure seals, one above the other, containing an enclosed spacebetween them.

(35) Federal motorvehicle regulation--Control ofAir Pollutionfrom MotorVehicles and MotorVehicle Engines, 40 Code ofFederal Regulations Part 85.

(36) Federallyenforceable--Alllimitations and conditions that are enforceable bythe United States Environmental ProtectionAgency administrator, including those requirements developed under 40 Code ofFederal Regulations (CFR) Parts 60 and 61; requirements within any applicable state implementationplan (SIP); and any permitrequirements established under 40 CFR §52.21 or under regulations approvedunder 40 CFR Part51, Subpart 1, including operatingpermits issuedunder the approvedprogram that is incorporatedinto the SIP andthatexpresslyrequires adherence to any permitissuedunder suchprogram.

(37) Flare--An open combustion unit (Le., lacking an enclosed combustion chamber) whose combustion air is providedby uncontrolled ambient air around the flame, and that is used as a control device. Aflare maybe equippedwith a

## Texas Commission on Environmental Quality Chapter 101

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radiant heat shield (with orwithouta refractory lining), butis not equippedwith aflame air control damping systemto control the air/fuel mixture. In addition, aflare may also

use auxiliary fuel. The combustion flame maybe elevated or at ground level. Avapor combustor, as defined inthis section, is not considered aflare.

(38) 

## Fuel oil--Anyoil meeting the American Society for Testing and Materials (ASTM) specifications for fuel oil inASTM 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 orparticulate contaminant entering the atmosphere that could not reasonably pass through a stack, chimney, vent,

or otherfunctionally equivalent opening designed to direct or controlits flow.

(40) Garbage--Solid waste consisting ofputrescible 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 ofproduce and other food products.

## Texas Commission on Environmental Quality Chapter 101

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(41) Gasoline--Anypetroleum distillate having a Reidvapor pressure of four pounds persquare inch (27.6 kilopascals) or greaterthatis producedfor use as a motorfuel, and is commonly called gasoline.

(42) Hazardous wastes--Any solidwaste identified orlisted as a hazardous wastebythe administrator ofthe United States Environmental Protection Agency underthe federal SolidWaste DisposalAct, as amendedby Resource Conservation and RecoveryAct, 42 United States Code, §§6901 

## etseq., as amended.

(43) Heatset (usedin offset lithographic printing)--Any operation where heat is requiredto evaporate ink oil fromthe printing ink. Hotairdryers are used
to deliver the heat.

(44) High-bake coatings--Coatings designed to cure attemperatures above 194 degrees Fahrenheit.

(45) High-volume low-pressure sprayguns--Equipment used to apply coatings by means ofa spray gun that operates between 0.1 and 10.0 pounds per square inch gauge airpressure measured atthe air cap.

## Texas Commission on Environmental Quality Chapter 101

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(46) 

## Incinerator--An enclosed combustion apparatus and attachments that is used in the process ofburning wastes for the primarypurpose ofreducing its volume and weightby removing the combustibles ofthe waste and is equipped with a flue for conducting products ofcombustion to the atmosphere. Any combustion device thatburns 10% or more ofsolidwaste on a total Britishthermal unit (Btu) heat input basis averaged over anyone-hourperiod is considered to be an incinerator. A combustion device withoutinstrumentation or methodologyto determine hourlyflow
rates ofsolidwaste andburning 1.0% or more ofsolidwaste on a total Btuheat input basis averaged annually is also considered to be an incinerator. An open-trench type (with closed ends) combustion unit maybe considered an incineratorwhen approvedby the executive director. Devices burning untreated wood scraps, waste wood, or sludge from the treatment ofwastewaterfrom the process mills as aprimaryfuel for heat recovery are not included underthis definition. Combustion devices permitted under this title as combustion devices otherthan incinerators w:ill notbe considered incinerators for application ofany rule within this title providedthey are installed and operated incompliance with the condition ofall applicable permits.

(47) 

## Industrialboiler--Aboilerlocated onthe site ofa facility engaged in a manufacturing process where substances are transformed into new products, including the componentparts ofproducts, by mechanical orchemical processes.

## Texas Commission on Environmental Quality Chapter 101

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(48) 

## Industrialfurnace--Cement kilns; lime kilns; aggregate kilns; phosphatekilns; coke ovens; blastfurnaces; smelting, melting, orrefining furnaces, including pyrometallurgical devices such as cupolas, reverberatorfurnaces, sintering machines, roasters, or foundry furnaces; titaniumdioxide chloride process oxidation reactors; methane reforming furnaces; pulping recoveryfurnaces; combustion devices usedinthe recovery ofsulfur values from spent sulfuric acid; and otherdevices the commission maylist.

(49) 

## Industrial solid waste--Solidwaste resulting from, or incidental to, any process ofindustry or manufacturing, or mining or agricultural operations, classifiedas follows.

(A) Class 1industrial solidwaste or Class 1 waste is 

## any industrial solidwaste designated as Class 1by the executivedirector as any industrial solid waste

or mixture ofindustrial solidwastes thatbecause ofits concentration orphysical or chemical characteristics is 

## toxic, corrosive, flammable, a strong sensitizer or irritant, a generatorofsuddenpressure by decomposition, heat, or other means, and may pose a substantial present orpotential dangerto human health or the environment when improperlyprocessed, stored, transported, or otherwise managed, including hazardous industrial waste, as definedin §335.1 and §335.505 ofthis title (relating to Definitions and Class 1Waste Determination).

## Texas Commission on Environmental Quality Chapter 101

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(B) Class 2 industrial solidwaste is any individual solid waste or combination ofindustrial solid wastes that cannotbe described as Class 1 orClass 3, as defined in §335.506 ofthis title (relating to Class 2Waste Determination).

(C) Class 3 industrial solidwaste is any inert and essentially insoluble industrial solidwaste, 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) 

## Internalfloating cover--Acover or floating roofin afixed roof tankthat rests upon or is floated upon the liquidbeing contained, and is equipped with

a closure seal or seals to close the space betweenthe cover edge andtankshell.

(51) Leak--Avolatile organic compound concentration greaterthan 10,000 parts per millionbyvolume or the amount specifiedby applicable rule, whichever is lower; or the dripping or exuding ofprocess fluidbased on sight, smell, or sound.

(52) 

## Liquidfuel--A liquid combustible mixture, not derivedfrom hazardous waste, with a heating value ofatleast 5,000 British thermal units perpound.

## Texas Commission on Environmental Quality Chapter 101

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(53) 

## liquid-mounted seal--Aprimary seal mountedin continuous
contactwith the liquidbetweenthe tank wall andthe floating roofaroundthe circumference ofthe tank.

(54) 

## Maintenance area-- Ageographic region ofthe state previously designatednonattainment underthe Federal CleanAirActAmendments of1990 and subsequentlyredesignatedto attainment subjectto the requirement to develop a maintenance plan under 42 United States Code, §7505a, as described in40 Code of Federal Regulations Part 81 and in pertinent 

## FederalRegisternotices.

(55) 

## Maintenance plan--A revision to the applicable state implementation plan, meeting the requirements of42 United States Code, §7505a.

(56) 

## Marine vessel--Any watercraftused, or capable ofbeing used, as a
means oftransportation on water, andthat is constructed or adapted to carry, orthat carries, oil, gasoline, or othervolatile organicliquid in bulk as a cargo or cargoresidue.

(57) 

## Mechanical shoe seal--A metal sheet that is heldvertically against the storage tankwall by springs or weightedlevers and is connected bybraces to the

## Texas Commission on Environmental Quality Chapter 101

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floating roof. Aflexible coatedfabric (envelope) spans the annular space betweenthe 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" andthose
waste materials commingled and discarded with special waste from health care-related facilities.

(59) 

## Metropolitan Planning Organization--That organization designated as being responsible, togetherwith 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 generatedby a mobile source as set forth in Chapter 114, SubchapterFofthis title (relating to Vehicle Retirement and Mobile Emission Reduction Credits), and that hasbeenbanked in accordance with Subchapter H, Division 1ofthis chapter.

## Texas Commission on Environmental Quality Chapter 101

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(61) Motorvehicle--A self-propelledvehicle designedfortransporting persons orproperty on a street orhighway.

(62) Motorvehiclefuel dispensing facility--Any site where gasoline is dispensed to motorvehicle fuel tanks from stationary storagetanks.

(63) Municipal solid waste--Solid waste resulting from, orincidental to, municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, streetcleanings, dead animals, abandoned automobiles, and all other solidwaste exceptindustrial solid waste.

(64) Municipal solid waste facility--All contiguous land, structures, other appurtenances, and improvements ontheland used forprocessing, storing, or disposing ofsolidwaste. Afacility maybepublicly orprivately ownedand may consist of several processing, storage, ordisposal operational units, e.g., one ormore landfills, surface impoundments, or combinations ofthem.

(65) Municipal solid waste landfill--Adiscrete areaofland or an excavation that receives household waste and that is not a land application unit, surface impoundment, injection well, orwaste pile, as those terms are definedunder 40 Code of Federal Regulations §257.2. Amunicipal solid waste landfill (MSWLF) unit also may

## Texas Commission on Environmental Quality Chapter 101

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receive other types ofResource Conservationand RecoveryAct Subtitle Dwastes, such

as commercial solid waste, nonhazardous sludge, conditionallyexempt small-quantity generator waste, and industrial solid waste. Such a landfill maybepublicly orprivately owned. An MSWLFunit maybe a new MSWLF unit, an existing MSWLF unit, or a lateral expansion.

(66) 

## National ambient air quality standard--Those standards established under 42 United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, ozone, inhalable particulate matter, and sulfur dioxide.

(67) 

## Netground-level concentration--The concentrationofan air contaminantas measured at orbeyond the propertyboundary minus the representative concentrationflowing onto a property as measured at any point. Where there is no expected influence ofthe air contaminantflowing onto apropertyfrom other sources, the net ground level concentration maybe determinedby a measurementat orbeyond the propertyboundary.

(68) 

## New source--Any stationary source, the construction or modification ofwhich was commenced after March 5,1972.

## Texas Commission on Environmental Quality Chapter 101

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(69) Nitrogen oxides (NOx)--The sum ofthe nitric oxide andnitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.

(70) Nonattainment area-- Adefinedregion\\ithin the state thatis designatedby the United States Environmental ProtectionAgency (EPA) as failing to meetthe national ambient air quality standard (NAAQS or standard) for a pollutantfor which a standardexists. The EPA will designate the area as nonattainment under the provisions of42 United States Code, §7407(d). For the officiallist andboundaries of nonattainmentareas, see 40 Code ofFederal Regulations (CFR) Part 81 and pertinent FederalRegisternotices. The designations and classifications for the one-hour ozone national ambient air quality standardin 40 CFR Part 81 were retainedfor the purpose of anti-backsliding and upon determinationbythe EPAthat any requirementis no longer requiredforpurposes ofanti-backsliding, then that requirement no longer applies.

(71) Non-reportable emissions event--Any emissions event thatin any 24-hourperiod does not result in an unauthorizedemission from any emissions pointequalto orin excess ofthe reportable quantityas defined in this section.

(72) Opacity--The degree to which an emission ofair contaminants obstructs the transmission oflight expressed as the percentage oflight obstructedas measuredby an optical instrument or trained observer.

## Texas Commission on Environmental Quality Chapter 101

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(73) 

## Open-top vapor degreasing--Abatch solvent cleaning process that is open to the air andthat uses boiling solventto create solventvapor usedto clean

or dry parts through condensation ofthe hot solventvapors on the parts.

(74) 

## Outdoorburning--Anyfire or smoke-producing process that is not conducted in a combustion unit.

(75) 

## Particulate matter--Anymaterial, exceptuncombinedwater, that exists as a solid or liquid inthe atmosphere orin a gas stream at standard conditions.

CA} Particulate matter with diameters less than 10 micrometers CPM 10}--

## Particulate matter with an aerodYnamic diameter less than or equal to a nominal ten micrometers as measuredby a reference methodbased on 40 Code of Federal Regulations rCFR) 

## Part 50. Appendix J, 

## and designated in accordance with40 CFR Part 53. orby an equivalent method designated with that Part 53.

CB) Particulate matter with diameters less than 2.5 micrometers CPM;u}--Particulate matterwith an aerodynamic diameterless than or equal to a nominal 2.5 micrometers as measuredby areference methodbased on40 CFR Part 50,

## Texas Commission on Environmental Quality Chapter 101

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Appendix L. and designated in accordance with 40 CFR Part 53. orby an equivalent method designatedwiththat Part 53.

(76) 

## Particulatematter emissions--Allfmely-divided solid orliquid material, other than uncombinedwater, emittedto the ambient air as measuredby United States Environmental ProtectionAgency Reference Method 5, as specifiedat 40 Code ofFederal Regulations (CFR) Part 60, AppendixA, modified to include particulate caughtby an impinger train; byan equivalentor alternative method, as specified at40 CFR Part 51; orby 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 orliquid droplets from an air emissions source or activitywhich condense to form particulate matteratambient temperatures. Direct 2.5 micrometers (PM 2
.

## s) emissions include elemental carbon, directly emitted organic carbon, directlyemitted sulfate, directly emitted nitrate, and otherinorganic particles (includingbut notlimitedto crustal materials, metals, and sea salt)PaFtielilate matteFthat is emittea ffiFeeHv iato the aiF as a solia OFliqlliaBaFtiele 

## fe.g. elemcataI eB:mBR 

## iTem diesel CftgiRcs 

## at' fiFe 

## aetivities. Sf

## eondcftsa1:'Jle orgaaie tlartieles**~aftl** 

## easaliflc CftgiRCS).



## em Secondary PM emissions-- Those airpollutantsother than PM 2
.

## s directemissions that contribute to the formation ofPM 2.

## s. PM 2•

## s precursors

## Texas Commission on Environmental Quality Chapter 101

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include sulfur dioxide (S02), NOx, volatile organic compounds, and ammonia Page41

PaFtieHlate matteFthat is foFmea if! the atmsseheFe as a FesHlt sfvaFisHs ehemieal reaetiORS (e.g. 

## sHlfate aRa 

## nitrate).



## (77) 

## Petroleum refinery--Anyfacility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or otherproducts through distillation ofcrude oil, orthroughthe redistillation, cracking, extraction, reforming, or otherprocessing ofunfinishedpetroleum derh·atives.

(78) PM;:.s emissions--Finely-divided solid orliQuid material with an aerodynamic diameter less than or eQual to a nominal 2.5 micrometers emittedto the ambient air as measuredbv an applicable reference method, or an eQuivalentor alternative method specifiedin 40 Code ofFederal Regulations Part 51. orby a test method sveeiaea 

## ie. approvedunder a aVj;lFsvea state implementation plan orunder a United States Environmental ProtectionAgency delegation or approvat [PM lO -- 

## Particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers as measuredby a reference methodbasedon 40 Code ofFederal Regulations (CFR) Part 50, Appendix 

## J, and designated in accordance with40 CFR Part 53, orby an equivalent methoddesignatedvl'iththat Part 53.]

## Texas Commission on Environmental Quality Chapter 101

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(79) PM lO 

## emissions--Finely-divided solidorliquid material with an aerodynamic diameterless than orequal to a nominal ten micrometers emittedto the ambient airas measuredby an applicable reference method, or an equivalent or alternative method specified in 40 Code ofFederal Regulations Part 51, orby a test method specifiedin an approved state implementation plan.

(80) PolycWorinatedbiphenyl compound--Acompound subjectto 40 Code ofFederal Regulations Part761.

(81) Process orprocesses--Any action, operation, ortreatment embracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipmentused in connection therev.ith, and all other methods orforms ofmanufacturing orprocessing that may emit smoke, particulate matter, gaseous matter, orvisible emissions.

(82) Process weight perhour--"Process weight" is the total weight of all materials introduced orrecirculated into any specificprocess that may cause any discharge ofaircontaminants into the atmosphere. Solid fuels chargedinto the process willbe considered as part ofthe process weight, but liquid and gaseous fuels and combustion airwill not. The "process weightperhour" willbe derived by dividing the total process weightbythe number ofhours in one complete operation from the

## Texas Commission on Environmental Quality Chapter 101

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beginning ofany given process to the completionthereof, excluding any time during thatthe equipment usedto conductthe process is idle. For continuous operation, the "process weight per hour" w:illbe derivedby dividing the total process weight for a 24- hour periodby 24.

(83) Property--Allland under commoncontrol orownership coupled with all improvements on suchland, and all fixed or movable objects on suchland, or anyvessel onthe waters ofthis state.

(84) 

## Reasonable further progress--Annual incremental reductions in emissions ofthe applicable air contaminantthat are sufficientto providefor attainment ofthe applicable national ambient air quality standardinthe designated nonattainment

areasby the date required inthe state implementationplan.

(85) 

## Regulated entity--All regulated units, facilities, equipment, structures, or sources at one street address or locationthat are owned or operatedbythe

same person. The term includes any propertyunder common ownership or control identified in apermit or usedin conjunction withthe regulated activity atthe same streetaddress orlocation. Owners or operators ofpipelines, gathering lines, and flowlines under common ownership or control in a particular county maybe treated as a single regulated entityfor purposes ofassessment and regulation ofemissions events.

## Texas Commission on Environmental Quality Chapter 101

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(86) Remote reservoir cold solvent cleaning--Any cold solvent cleaning operation in which liquid solventis pumpedto a sink-like work area that drains solventbackinto an enclosed containerwhile parts are being cleaned, allowing no solventto pool in the work area.

(87) Reportable emissions event--Any emissions event thatin any 24- hourperiod, results in an unauthorized emission from any emissions point equalto or in excess ofthe reportable quantity as defined inthis section.

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

(A) for individual air contaminant compounds and specifically listed mixtures by name or ChemicalAbstracts Service (CAS) number, either:

(i) 

## the lowestofthe quantities:

(I) 

## listed in 40 Code ofFederal Regulations (CFR) Part302, Table 302-4, the column "final RQ";

## Texas Commission on Environmental Quality Chapter 101

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(II) 

## listedin 40 CFR Part355, Appendix A, 

## the column "Reportable Quantity"; or

(III) listed as follows: Page 45

(-a-) acetaldehyde

- 1,000 pounds, exceptin the Houston-Galveston-Brazoria (HGB) and Beaumont-PortArthur (BPA) ozone nonattainment areas as definedin paragraph (70) ofthis section, where the RQ mustbe 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 BPAozone nonattainment areas as definedinparagraph (70) ofthis section, where the RQ mustbe 100 pounds;

(-d-) carbon monoxide

- 5,000 pounds;

(-e-) 1-chloro-1,1-difluoroethane (HCFC-142b)

- 5,000 pounds;

## Texas Commission on Emironmental Quality Chapter 101

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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)

- 5,000pounds;

(-j-) 2-chloro-1,1,1,2-tetrafluoroethane (HCFC124)

- 5,000pounds;

(-k-) 1-chloro-1,1,2,2 tetrafluoroethane (HCFC124a)

- 5,000pounds;

(-1-) 

## 1,1,1,2,3AA,5,5,5-decafluoropentane (HFC 43-lOmee)

- 5,000 pounds;

## Texas Commission on Environmental Quality Chapter 101

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(-m-) decanes (anyisomer)

- 5,000pounds;

(-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;

## Texas Commission on Environmental Quality Chapter 101

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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 inthe HGB and BPAozone nonattainment areas as defined in paragraph (70) ofthis section, where the RQ must be 100pounds;

(-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;

## Texas Commission on Environmental Quality Chapter 101

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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 (anyisomer)

- 5,000 pounds;

(-ff-) 

## oxides ofnitrogen

- 200 pounds in 

## ozone nonattainment, ozone maintenance, early action compact areas, Nueces County, and San Patricio County, and 5,000 pounds in 

## all otherareas ofthe state, which shouldbe used insteadofthe RQs for nitrogen oxide and nitrogen dioxide provided 

## in 40 CFRPart 302, Table 302.4, the column "final RQ";

(-gg-) pentachlorofluoroethane (CFR-1ll)- 5,000 pounds;

## Texas Commission on Environmental Quality Chapter 101

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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;

## Texas Commission on Environmental Quality Chapter 101

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(-pp-) propylene

- 5,000 pounds, except 

## in the HGB and BPAozone nonattainrnent areas as defined 

## in paragraph (70) ofthis section, where the RQ mustbe 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;

## Texas Commission on Environmental Quality Chapter 101

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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 inthe HGB and BPAozone nonattainmentareas as defined in paragraph (70) ofthis section, where the RQ mustbe 100 pounds;

(ii) ifnotlistedin clause (i) ofthis subparagraph, 100 pounds;

(B) for mixtures ofair contaminant compounds:

## Texas Commission on Environmental Quality Chapter 101

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(i) where the relative amount ofindividual aircontaminant compounds is known through common process knowledge orprior engineering analysis

ortesting, any amountofan individual air contaminant compoundthatequals 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 presentin the mixture andlisted in subparagraph (A)(i) ofthis paragraph;

(iii) where each ofthe individual air contaminant compounds listed in subparagraph (A)(i) ofthis paragraph are known to beless than 0.02% by weight ofthe mixture, and each ofthe otherindividual air contaminant compounds coveredby subparagraph (A)(ii) ofthis paragraph are known to beless than 2.0% byweight ofthe mixture, anytotal amount ofthe mixture ofair contaminant compounds greaterthan orequal 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 amountgreaterthan or equal to 5,000 pounds orthe

## Texas Commission on Environmental Quality Chapter 101

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associated hydrogen sulfide and mercaptans in a total amount greaterthan 100 pounds, whichever occurs first;

(C) for opacityfrom boilers and combustion turbines as defined in this sectionfueledby natural gas, coal, lignite, wood, fuel oil containing hazardous air pollutants ata concentration ofless than 0.02% byweight, opacity thatis equal to or exceeds 15 additionalpercentage points above the applicable limit, averaged over a sixminute period. Opacityis the only RQ applicableto boilers and combustionturbines described in this paragraph; or

(D) forfacilities where air contaminant compounds are measured directlyby a continuous emission monitoring systemproviding updated readings at a minimum Is-minute interval an amount, approvedby the executive directorbased on any relevant conditions and a screening model, thatwouldbe reported priorto ground level concentrations reaching at any distance beyondthe closestregulated entity property line:

(i) 

## less than one-halfofany applicable ambientair standards; and

## Texas Commission on Environmental Quality Chapter 101

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(ii) less thantwo times the concentration ofapplicable air emission limitations.

(89) Rubbish--Nonputrescible solidwaste, consisting ofboth combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbishincludes glass, crockery, tin cans, aluminum
cans, metal furniture, and like materials thatwill notburn atordinary incinerator temperatures (1,600 degrees Fahrenheitto 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, orshutdown acthity is an acthitythat the

owneror operator ofthe regulated entitywhetherperforming orotherwise affectedby the activity, provides prior notice and a final reportas requiredby §101.211 ofthis title (relating to Sc!leduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice orfinal reportincludes the information required in §101.211 ofthis title; and the actual unauthorized emissions from the acthity do not exceed the emissions estimates submitted 

## inthe initial notificationby 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

## Texas Commission on Environmental Quality Chapter 101

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recorded as requiredby §101.211 ofthis title. Expectedexcess opacityevents as described in §101.201(e) ofthis title (relating to Emissions Event Reporting and Page 56

Recordkeeping Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those thatprm-ide priornotice (ifrequired), and are recorded and reported as requiredby §101.211 ofthis title.

(91) Sludge--Any solidor semi-solid, orliquidwaste generated from a municipal, commercial, orindustrial wastewater treatmentplant; water supply
treatment plant, exclusive ofthe treated effluentfrom awastewatertreatment plant; or air pollution control equipment.

(92) Smoke--Small gas-born particles resulting from incomplete combustion consisting predominately ofcarbon and othercombustible material and presentin sufficient quantity to be visible.

(93) 

## Solid waste--Garbage, rubbish, refuse, sludge from a waste water treatment plant, water supplytreatment plant, orairpollutioncontrol equipment, and other discarded material, including solid, liquid, semisolid, or containerizedgaseous material resulting from industrial, municipal, commercial, rining, and agricultural operations andfrom communityandinstitutional activities. The term does notinclude:

## Texas Commission on Environmental Quality Chapter 101

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(A) solid or dissolved material in domestic sewage, or solid or dissolved materialin irrigation return flows, or industrial discharges subjectto regulationby permitissued undertheTexas WaterCode, Chapter 26;

(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials usedto fill land, ifthe object ofthe fill is to make the land suitable for the construction ofsurface improvements; or

(C) waste materials that resultfrom activities associated \\ith the exploration, development, orproduction ofoil orgas, orgeothermal resources, and other substance or material regulatedbythe 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 processingplants, pressure maintenance plants, orrepressurizing plants and is hazardous waste as definedbythe administratorofthe United States Environmental ProtectionAgency underthe federal SolidWaste DisposalAct, as amendedby Resource Conservation and RecoveryAct, as amended (42 United States Code, §§6901 

## etseq.).

(94) 

## Sour crude--A crude oil thatwill emita sourgas when in equilibrium atatmospheric pressure.

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(95) Sourgas--Any natural gas containing more than 1.5 grains of hydrogen sulfideper 100 cubicfeet, or more than 30 grains oftotal sulfurper 100 cubic feet.

(96) Source--Apoint oforigin ofair contaminants, whether privately or publicly owned oroperated. Upon requestofa source owner, the executive director shall determine whether multiple processes emitting air contaminants from a single point of emissionwill be

## treated as a single source or as multiple sources.

(97) Specialwaste from health care-relatedfacilities--A solid
waste thatifimproperlytreatedorhandled, may serve to transmitinfectious disease(s) andthat is 

## comprisedofthe following: animal waste, bulkbloodandbloodproducts, microbiological waste, pathological waste, and sharps.

(98) Standardconditions--Acondition at a temperature of68 degrees Fallfenheit (20 degrees Centigrade) and apressure of14.7pounds persquare inch absolute (101.3 kiloPascals).

(99) Standardmetropolitan statistical area--An area consisting ofa county or one or more contiguous counties that is officiallyso designatedbythe United States Bureau ofthe Budget.

## Texas Commission on Environmental Quality Chapter 101

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(100) Submerged

## fill pipe--Afill pipe thatextends from the top ofa tankto have a maximumclearance ofsix inches (l5.2 centimeters) from thebottom or, when applied to a tankthat is loadedfrom the side, that has a discharge opening entirely submerged when the pipe used to withdrawliquid fromthe tankcan no longerwithdraw liquid in normal operation.

(101) Sulfurcompounds--All inorganic or organic chemicals having an atom or atoms ofsulfurintheir roernical structure.

(102) Sulfuric acidmist/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 acidvapor as measuredbyTest Method 8 in 40 Code ofFederal Regulations Part 60, AppendixA.



## (l03) Sweet crude oil andgas--Those crude petroleum hydrocarbons that are not "sour" as defined inthis section.

(104) Total suspendedparticulate--Particulate matter as measuredby the method described in 40 Code ofFederal Regulations Part 50, Appendix B.

## Texas Commission on Environmental Quality Chapter 101

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(105) 

## Transfer efficiency--The amountofcoating solids deposited onto the surface or apart ofproduct dividedbythe total amount ofcoating solids deliveredto the coating application system.

(106) 

## Truevapor pressure--The absolute aggregate partialvapor pressure, measured in pounds per square inch absolute, ofall volatile organic compounds atthe temperature ofstorage, handling, orprocessing.

(107) 

## Unauthorized emissions--Emissions ofany air contaminant except carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen thatexceed any airemission limitation in a permit, rule, ororderofthe commission or as authorizedbyTexas Clean AirAct, §382.0S18(g).

(108) 

## Unplannedmaintenance, startup, or shutdown activity-- For activities with unauthorized emissions that are expectedto exceed a reportable quantity orwith excess opacity, an unplanned maintenance, startup, or shutdown activity is:

(A) a startup or shutdownthatwas notpart ofnormal or routine facility operations, is unpredictable as to timing, and is not the type ofevent normally authorizedby permit; or

## Texas Commission on Environmental Quality Chapter 101

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(B) a maintenance activity that arises from sudden and Page 61

unforeseeable events beyondthe control ofthe operator that requires the immediate corrective actionto minimize or avoid an upset or malfunction.

(109) 

## Upset event--An unplanned and unavoidablebreakdown or excursion ofaprocess or operationthatresults in unauthorized emissions. A maintenance, startup, orshutdown activity thatwas reported under §101.2ll ofthis title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), buthad emissions that exceeded the reported amountby

more than a reportable quantitydue to an unplanned and unavoidablebreakdov.n or excursion ofa process oroperation is an upset event.

(110) 

## Utilityboiler--Aboilerusedto produce electricpower, steam, or heated or cooled air, or othergases orfluids for sale.

(Ill) 

## Vapor combustor--Apartiallyenclosed combustion device used to destroyvolatile organic compounds by smokeless combustionwithout extracting energy in the form ofprocess heat or steam. The combustionflame maybe partiallyvisible, but
at no time does the device operate with an uncontrolled flame. Auxiliary fuel and/ora flame air control damping system that can operate at all times to control the air/fuel

## Texas Commission on Environmental Quality Chapter 101

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mixture to the combustor's flame zone, may be required to ensure smokeless combustion during operation. Page 62

(112) Vapor-mounted seal--Aprimary seal mounted so there is 

## an annular space underneath the seal. The annularvapor space is

## bounded by thebottom ofthe primary seal, the tankwall, the liquid surface, and the floating roofor 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 thatcan be detected by the human eye. The radiant energyfrom an openflame is not considered a visible emission under this definition.

(115) Volatile organic compound--As defined in40 Code ofFederal 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 containerin which anyVOC, floating on or contained in water

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entering such tank, box, sump, or other container, is physicallyseparated and removed from such waterpriorto outfall, drainage, orrecovery ofsuch water.

## Texas Commission on Environmental Quality Chapter 106

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SUBCHAPTERA: GENERAL REQUIREMENTS



## StatutoryAuthority Page 17

The amendment is adopted underTexas WaterCode (TWC), §S.102, concerning General Powers, thatprovides 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 commissionto adopt rules necessary to carry out its powers and duties underthe TWC; and underTexas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commissionto adopt rules consistentwith the policy and purposes ofthe Texas CleanAirAct. The amendment is also adopted underTHSC, §382.002, concerning Policy and Purpose, which establishes the commission purposeto safeguard the state's air resources, consistent "ith the protection ofpublic health, general welfare, andphysical property; §382.003, concerning Definitions; §382.011, concerning General Powers and Duties, which authorizes the commissionto control the quality ofthe state's air; §382.012, concerning StateAirControl Plan, which authorizes the commission to prepare and develop a general, comprehensive planfor the control of the state's air; §382.0S1, concerning Permitting Authority ofCommission; Rules, which authorizes the commissionto issue a permitby rule for types offacilities that "ill not significantly contribute aircontaminants to the atmosphere; §382.0S13, concerning Permit Conditions, which authorizes the commission to establish and enforce permit

## Texas Commission on Environmental Quality Chapter 106

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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 Permittingby Rule.

(a) To qualify for a permitby rule, the following general requirements mustbe
met.

(1) Total actual emissions authorizedunderpermitbyrule from the facility shall not exceed 250 tons per year (tpy) ofcarbon monoxide (CO) or nitrogen oxides (NOx); or 25 tpy ofvolatile organic compounds (VOC) or sulfur dioxide (S02) or inhalable particulate matter (PM); or 15 tpv ofparticulate matter with diameters of10 microns orless (PM JO); 

## or 10 roy 

## ofparticulate matterwith diameters of2.5 microns or less (PM? 

# 52 [(PMJO)]; 

## or 25 tpy ofany 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 ofthis title (relatingto Nonattainment and PreventionofSignificant Deterioration Review Definitions), or any modification which

## Texas Commission on Environmental Quality Chapter 106

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constitutes a majormodification, as definedin §116.12 ofthis title, underthe new source review requirements ofthe Federal CleanAirAct (FCAA), Part D (Nonattainment) as amendedby the FCAAAmendments of 1990, and regulations promulgated thereunder,
must meetthe permitting requirements ofChapter 116, SubchapterB ofthis title (relating to New Source Review Permits) and cannot qualify for a permitby rule under this chapter. Persons claiming apermitby rule underthis chapter should see the requirements of§116.150 ofthis title (relating to New MajorSource or Major Modification in Ozone NonattainmentAreas) to ensure that any applicable netting requirements havebeen satisfied.

(3) Any facility or group offacilities, which constitutes a new major stationary source, as defined 

## in 40 Code ofFederal Regulations (CFR) §52.21, orany change which constitutes a major modification, as defined in 40 CFR §52.21, under the

new source review requirements ofthe FCAA, Part C (Prevention ofSignificant Deterioration) as amended by the FCAAAmendments of1990, and regulations promulgatedthereunder, must meetthe permitting requirements ofChapter 116, SubchapterB ofthis title and cannot qualify for a permitbyrule underthis chapter.

(4) Unless at least onefacility at an accounthas been subjectto public notification and commentas requiredin 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

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emissions from all facilities permittedby rule at an account shall notexceed 250 tpy of CO or NOx; or 25 tpy ofVOC orS02or PM [PMlO] ; 

## or 15 my ofPMlO: 

## or 10 tpy ofPM25;


## or 25 tpy ofany other air contaminantexcept carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.

(5) Constructionor modification ofa facility commenced on orafterthe effective date ofa revision ofthis section orthe effective date ofa revision to a specific permitby rule in this chapter must meet the revised requirements to qualify for a permit byrule.

(6) Afacility shall comply with all applicableprovisions ofthe FCAA, §111 (Federal New Source Performance Standards) and §112 (Hazardous Air Pollutants), and the new source review requirements ofthe FCAA, Part Cand Part D and regulations promulgatedthereunder.

(7) There are no permits underthe samecommission account numberthat contain a condition or conditions precluding the use ofa permitby rule underthis chapter.

## Texas Commission on Environmental Quality Chapter 106

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(8) Theproposed facility or group offacilities shall obtain allowances for NOxifthey are subjectto Chapter 101, Subchapter H, Division 3 ofthis title (relating to Mass Emissions Cap and Trade Program).

(b) No person shall circumventby artificial limitations the requirements of §1l6.1l0 ofthis title (relating to Applicability).

(c) The emissions from the facility shall complywith all rules and regulations of the commission and withthe intent ofthe Texas CleanAir Act CTCAA1, including protection ofhealth and property ofthe public, and all emissions control equipment shall be maintained in good condition and operated properly during operation ofthe facility.

(d) Facilities permittedbyrule under this chapter are not exempted from any permits or registrations requiredbylocal air pollution control agencies. Any such requirements mustbe in accordance withTCAA, §382.1l3 and any other applicable law.

### La onnaCastanuc:•. ChiefCieri< 

## r
....**~lilH""** 

## c'wifllnffiPfl1@lli!\l§HIl' 

## ORDERADOPTINGAMENDED RULES AND REVISIONS TO THE STATE IMPLEMENTATION PLAN THE STATE OF"TEXAS**COU~'TY** 

### OFTRAVIS 

## TEXAS COMMISSION ON**ENVIRONMENTJII~",,,,,rrtl!<l!1jIi.iS8trueandconectcapyofa** '''i501lllr1lMM, tit' 

### envtl1lnmonllllQualitydocument.

.," E 0" which is

### flied inJIlI'Pennanenl records

### oftheCommission.**~,""** 

### Givenun**rmY!Ill~** 

### andlhoaoloioflioeon 

# ,.", "Jh

.. 

# _dAPR 29 

# 2011 ;I,. c



## Docket No. 2010-0711-RUL 

## OnApril 20, 2011, 

## the Texas Commission on Environmental Quality (Commission), during apublic meeting, considered adoption ofamended § 101.1 

## and § 106,4. 

## The Commission adopts these amendments in § 101.1 

## in Chapter 101, 

## (General Air Quality Rules, SubchapterA, General Rules), § 106,4 

## in Chapter 106 

## (Permits By Rule, SubchapterA, 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 forparticulate matter with an aerodynamic diameterless than orequal to a nominal 10 

## micrometers (PMlO), 

## particulate mattervl'ith an aerodynamic diameterless than orequal to a nominal 2.5 

## micrometers (PM2 .S), 

## direct and secondary PM emissions; and addthe applicable significantemission thresholds for PM, PM lO, 

## and PM2
.S' 

## UnderTex. Health & 

## SafetyCodeAnn. §§ 382.011, 382.012, 

## and 382.023 

## (Vernon 2001), 

## the Commission has the authorityto control the quality ofthe state's air and to issue orders consistent withthe policies and purposes ofthe Texas Clean AirAct, Chapter 382 

## ofthe Tex. Health & 

## Safety Code. The proposedrules were publishedfor commentin the November 19, 2010 

## issue ofthe 

## Texas Register (35 

## TexReg 10147 

## and 10157)· 

## Pursuantto Tex. Health & 

## Safety CodeAnn. § 382.017 

## (Vernon 2001), 

## Tex. Gov't Code Chapter 2001 

## (Vernon 2008), 

## and 40 

## Code ofFederal Regulations § 51.102, 

## and afterproper notice, the Commission conducted a public hearingto considerthe amended rules and revisions to the SIP. Proper notice includedprominent advertisement inthe areas affected at least 30 

## days priorto the date ofthe hearing. Apublic hearing was heldin Austin on December 13, 2010. 

## The Commission circulated hearing notices ofits intendedaction to the public, includinginterestedpersons, the Regional Administratorofthe EPA, and all applicable local airpollution control agencies. The public was invitedto submitdata, views, and recoII,lmendations on the proposed amended rules and SIP revisions, either orally orin writing, atthehearings or during the commentperiod. Priorto the scheduledhearing, copies ofthe proposed, amended rules and SIP revisions were available for public inspection atthe Commission's central office and on the Commission'sWeb site. Data, views, and recommendations ofinterestedpersons regarding the proposed amendedrules and SIP revisions were submittedto the Commission during the comment period, andwere consideredby the Commission as reflected in the analysis oftestimony incorporatedby reference to this Order. The Commission finds thatthe analysis oftestimony

## includes the names ofall interested groups or associations offering comment on the proposed amended rules andthe SIP revisions andtheirposition concerningthe same.

. IT IS THEREFORE ORDERED BYTHE COMMISSION thatthe amended rules and revisions to the SIP incorporatedby reference to this Order are hereby adopted. The Commission further authorizes staffto make any non-substantive revisions to the rules necessaryto comply with Texas Registerrequirements. The adoptedrules and the preamble to the adoptedrules and the revisions to the SIP are incorporatedby reference in this Order as ifsetforth at length verbatim in this Order. IT IS FURTHERORDERED BYTHE COMMISSION that onbehalfofthe Commission, the Chairman shouldtransmit a copyofthis Order, togetherwiththe adopted rules and revisions to the SIP, to the RegionalAdministratorofEPAas aproposedrevision to the Texas SIPpursuant to the Federal Clean AirAct, codified at42 U.S. CodeAnn. §§ 

## 7401

- 7671q, as amended. This Orderconstitutes the Order ofthe CommissionrequiredbytheAdministrative Procedure Act, Tex. Gov't Code, § 

## 2001.033 (Vernon 2008). 

# Ifanyportion ofthis Orderis for any reason held tobe invalidby acourt ofcompetent jurisdiction, the invalidity ofany portion shall not affectthevalidityofthe 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 ref

### erences 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 implementthose 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 ofthe 

### waterconservation plans and droughtcontingency plans "as a precondition for obtaining relief." Because the proposed rules for Chapter 35 contempiate emergency sus

### pensions 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 necessaryto carry out itsjurisdiction; 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 thatthe adoption has been reviewed by iegal counsel and found to be a valid exercise ofthe 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 changestothe proposed text as published in the November 19, 2010, issue ofthe 

### 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 nec

### essary 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 orequal 

### to a nominal 2.5 

### micrometers**(PM1.~)** 

### as an indicator. However, at that time, certain difficulties regarding implementation ofthe 

### PM u 

### 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 prOVid

### ing for PM with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM 10) 

### to be used as a surrogate for PMa 

### 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 PM". EPA published the bUlk ofthe 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 nec

### essary 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 effec

### tive 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 ofthe 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 2841and 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 PM B 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 PM 2.! 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 25 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/orammonia are asignificant 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 thatwill be able to be applied to the PM H 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 foreither PM,o or PM 2.5 in NSR 

### pennits 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 PM

.. and PM 25 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 ofthe 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 ofthe 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 ofthat pollutant as a result of the physical or operational change in the unit. Underthe PM" PSD program, these requirements will apply to direct PM" emissions; 

# sa2emissions; and NOxemissions, 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:.5attainment 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 PM 2,5 ifdirect emissions of PM 2.5 are belowthe 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 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 (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 majorsource ormajormodificationwould 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 addthe 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 PM 2,s

### emissions and the definitions for direct and secondary PM emissions which currently do not exist. The definition of PM 2,s emissions in §1 01.1 (78) has been amended to address continuing technical issues associated with the measurement of PM 2,5 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 PM 2.S' 4 micrograms per cubic meter 24-hour average, also applies to Texas PM H 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 ofa "majorenvironmental 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 ofthe 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 governmentto 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 ofthe 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, Chapter2007. The specific purpose of the rulemaking isto facilitate implementation of new federal regulations underthe NSR program. The adopted amendmentwould SUbstantially advance this stated purpose by adding definitions to Chapter 101, necessary for implementation ofthe**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 ofthe 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 furtherevaluated the adopted rule and performed an assessment of whether the adopted rule consmutes a takings underTexas Government Code, Chapter2007. The specificpurpose 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 of the PM,. regulations. 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 25% or more beyond that which would otherwise exist in the absence of the regUlations. In otherwords, 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 etseq.), and commission rules in 30 TAC Chapter281,



## ADOPTED RULES May 6. 

## 2011 36 

## TexReg 2843Subchapter 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 PM l5 

### 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 Pro

### gram 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 re

### quirements. 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 imple

### ments the new more stringent PM 2., 

### and does not take the allowed state implementation plan of 10 micrometers or less. In addition, the individual would like to see some suggested gUid

### ance in this proposed rule on fonnation of PM 2.5

### 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 PM 25" 

### 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 stringentthan the federal definitions. IfTexasexcludes 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 PM 2.S 

### precursors ifTexas has identified these substances as significant contributors to ambient PM 2S ' EPAalso noted thatthey 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 ElectricCompany (LG&E), located In Trim

### ble 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 "PM 2.5 

### 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 identi

### cal 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 or

### derto more accurately measure PM 2.5' 

### 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 PM 2.5 

### measurement approaches. There are concerns with sources being required to perform an emission test to demonstrate compliance with a PM 2.5 

### 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 ofthe 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 ofthe FCAA, the commission is adopting amendments to add specific definrtions relatedto PM 2_ 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 Register80118, December 21,2010). This adoption addresses known requirements to date in orderto meet the May 16, 2011 deadline for implementation ofthe 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 ofpublic 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 ofair 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, havethe following meanings, unless the context elearly indicates otheN·ise. (l) Account·-For those sources required to be permitted under Chapter 122 ofthis title (relating to Federal Operating Permits Program), all sourcesthatare aggregated as asite. Forall 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 gasflare--A flare used exclusively for the incineration ofhydrogen sulfide and other aeidic gases derived from natural gas sweetening proeesses. (3) Agency established facility identifieation number--For the purposes of Subchapter F ofthis 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 ofa regulated entity that the emission inventory reporting requirements of §101.10 ofthis 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 cannotbe 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 pollutantto a control device. (8) Captured facility--A manufacturing orproduction facility that generates an industrial solid waste or hazardous waste that is routinely stored. processed, or disposed ofon a shared basis in an integrated waste management unit owned, operated by, and located within a 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 adsorberwith an inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent. (ll) Coating--A material applied onto orimpregnated into a substrate forprotective, deeorative, orfunctional 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 solventto remove soils from the surfaces ofparts orto 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 boilerplant, furnace. incinerator, flare. engine, orotherdeviceor systemused 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 oris portable equipmentoperated 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 ofwaste material from retail and wholesale trade establishments. (17) Commereialmedical waste incinerator--A faeiHty that accepts for incineration medieal waste generated outside the property boundaries ofthe faeility.



## ADOPTEDRULES May 6, 2011 36 TexReg 2845(18) Component--A piece ofequipment, including, but not limited to, pumps, valves, compressors, and pressure reliefvalves that has the potential to leak volatile organic compounds. (19) Condensate·-Liquids that result from the cooling and/or pressure changes ofproduced natural gas. Once these liquids are processed at gas plants or refineries or 

### in any other manner, they are no longer considered condensates. (20) Construction-demolition waste··Waste resulting from construction Or demolition projects. (21) Control systemorcontrol device--Any part, chemieal, machine. equipment, contrivance, or combination ofsame, used to de· stroy, eliminate, reduce, or control the emission ofair contaminants to the atmosphere. (22) Conveyorizeddegreasing--A solventeleaning process that uses an automated parts handling system, typically a conveyor, to automatically provide a eontinuous supply ofparts 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 whiehthere is anational ambient air quality standard established under 40 Code ofFederal Regulations Part 50. (24) Custody transfer--The transfer ofproduced crude oil and/oreondensate, afterprocessing and/ortreating in the producingop· 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 resultofthe 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 forrecording emissions reduction credits so they may be used ortransferred 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, SubchapterH, 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 ofqualified 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 ofearbon compounds used as solvents that have been excluded from the definition ofvolatile organie eompound.



## 36 TexReg 2846 

## May 6, 

## 2011 Texas Register (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 roofedge and tank shell. A double seal consists oftwo complete and separate**closu~** 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--AlIlimitations and conditions that are enforceable by the United States Enviromnental Protection Agency administrator, including those requirements developed under 40 Code ofFederal Regulations (CFR) Parts 60 and 61; requirements within any applicable state implementation plan (SIP); and any permit requirements established under 40 CFR §52.21 or under regulations approved under 40 CFR Part 51, Subpart 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, aflare 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 consistingofputrescible animal and vegetable waste materials resulting from the handling, preparation, eooking, andconsumptionoHood, ineludingwastematerialsfrom markets, storage facilities, and handling and sale ofproduce and other food products. (41) Gasoline--Any petroleum distillate having a Reid vaporpressureoffourpoundspersquareineh(27.6 kilopascals) orgreater that is produced for use as a motor fuel. and is commonly called gasoline. (42) Hazardous wastes--Any solidwaste identifiedorlisted as ahazardous waste by the administratorofthe United StatesEnvironmental 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 offsetlithographie printing)--Any op· eration where heat is requiredto evaporate inkoil 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 ofa spray gun that operates between0.1 and 10.0 pounds per square inch gauge air pressure measured at the air cap. (46) Incinerator--An enclosed combustion apparatus and attachments that is used 

### in the process ofburning wastes for the primary purpose ofreducing its volume and weight by removing the coma bustibles ofthe waste and is equipped with a flue for conducting products ofcombustion 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 ofsolid 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 ofwastewater 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 ofany rule within this title provided they are installed and operated in eompliance with the condition ofall applicable permits. (47) Industrial boiler--A boiler located on the site ofa facility engaged in a manufacturing process where substances are 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 ofindustry or manufacturing. or mining or agricultural operations, classified as follows. (A) Class 1 industrial solid waste orClass 1 waste is any industrial solid waste designated as Class 1 by the executive director as any industrial solid waste or mixture ofindustrial solid wastes that because ofits concentration orphysical 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 thc environment when improperly processed, stored, transported. or oth· envise managed, including hazardous industrial waste, as defined in §335.1 and §335.505 ofthis title (relating to Definitions and Class 1 Waste Determination). (B) Class 2 industrial solid waste is any individual solid wasteorcombinationofindustrial solidwastes thatcannotbedescribed 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 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 rooftank 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 ofprocess 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--Aprimary seal mounted in continuous contact with the liquid between the tank wall and the floating roofaround the circumference ofthe tank. (54) Maintenance area--A geographic region ofthe state previously designated nonattainment under the Federal Clean Air Act Amendments of] 990 and subsequently redesignatedto attainment subject to the requirementto develop a maintenance plan under42 United States Code, §7505a, as described in 40 Code ofFederal Regulations Part 81 and in pertinent FederalRegisternotices. (55) Maintenance plan--A revision to the applicable state implementation plan. meeting the requirements of42 United States Code, §7505a. (56) Marine vessel--Any watercraft used, or capable ofbeing used, as a means oftransportation on water. and that is constructed or adapted to 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 sheetthat is held vertically against the storage tank wall by springs or weighted levers and is connected by bracesto thefloating roof. Aflexible coated fabric (envelope) spans the annular space between the metal sheet and the floating roof. (58) Medical waste--Waste materials identified by the DepartmentofState HealthServices as "specialwaste from health care-related facilities" and those waste materials commingled and discarded with special waste from health care-related facilities. (59) Metropolitan Planning Organization--That organization designated as being responsible, together with the state, for conducting the continuing, cooperative. and comprehensive planning process under23 United States 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 ofthis chapter. (61) Motor vehicle-A self-propelled vehicle designed for transporting persons or property on a street or highway. (62) Motorvehicle 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



## ADOPTEDRULES May 

## 6, 2011 

## 36 TexReg 2847for processing, storing. or disposing of solid waste. A facility may be publiely orprivately 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 areaofland or an exeavation that receives household waste and that is not a land application unit, surface impoundment, injection well, orwaste pile, as those tenns are defined under 40 Code ofFederal Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may receive other types ofResource 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 aproperty 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 orbeyond the property boundar)'. (68) New source--Any stationar:r source, the construction or modification ofwhich was eommenced after March 5,1972. (69) Nitrogen oxides (N0l')--The sum ofthe 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 of42 United States Code, §7407(d). For the official list and boundaries ofnonattainment areas, see 40 Code ofFederal 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 ofanti-backsliding and upon detennination by the EPA that any requirement is no longerrequired forpurposes 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 ofair Contaminants obstructs the transmission oflight expressed as the percentage oflight obstrueted as measured by an optical inslrUment ortrained 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 ofthe 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 TexasRegister (75) Particulate matter--Any material, except uncombined water, thatexists as asolid orliquid in the atmosphereorin agas 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,,)-~Particulate** matter 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 orliquid material, otherthan uncombined water, emittedto the ambient air as measured by United States Environmental Protection Agency Reference Method 5, as speeified at 40 Code ofFederal 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 otherproduets througb distillation ofcrude oiL orthrough the redistillation, craeking, extraction, refonning, or other processing ofunfinished 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 ofFederal 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 ofFederal 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 ofFederal Regulations Part 761. (81) Process or processes--Any action, operation, ortreatment embracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipmentused incoIUlection therewith, andallothermethods orfonns5,000 pounds; (-h-) chlorofluoromethane (HCFC-31)

(-u-) difluoromethane (HFC·32)

- 5,000 (-i-) chloropentafluoroethane (CFC-1l5)

(HFC1.1,1.3,3-pentafluorobutane pentafluoroethane (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 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.) 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) ofthis 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 ofthe 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; ofmanufacturing or processing that may emit smoke, particulate matter, gaseous matter, or visible emissions. (82) Process weight per hour--"Proeess weight" is the total weight ofall materials introduced or recirculated into any specific process that may cause any discharge ofair contaminants into the atmosphere. Solid fuels charged into the process will be considered as partofthe 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 ofhours in one complete operation from the beginning ofan)' 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 processweight 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 ormovable objects on such land, or any vessel on the waters ofthis state. (84) Reasonable further progress--Annual incremental reductions in emissions ofthe applicable air contaminant that are sufficient to provide for attainment ofthe 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 orcontrol identified in a pennit orused in conjunction with the regulated activity at the same street address or loeation. Owners or opcrators ofpipelines, 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 ofassessment and regulation ofemissions events. (86) Remote rescrvoireold solventc1caning--Any eoldsolventcleaning operation in whieh liquidsolventispumped to asink-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 emissionsevent--Any emissions eventthat 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-halfofany applicable ambient air standards; and (ii) less than two times the concentration ofapplieable 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 ofthe 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 arethose that provide priornotice (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 treatmentplant; water supply treatmentplant, 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 ofcarbon and other combustible material and present in sufficient quantity to be visible. (93) Solid waste··Garbage, rubbish, refuse, sludge from a waste watertreatment 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 ofair contaminant compounds: (i) where the relative amount ofindividual air con· taminant compounds 

### is known through common process knowledge or prior engineering analysis or testing, any amount ofan individual air contaminant compound that equals or exceeds the amount specified 

### in subparagraph (A) ofthis paragraph; (jj) 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% byweightofthe mixture, and eachofthe otherin· 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 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 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) ifnot listed in clause (i) ofthis 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 ofless than (A) solid Or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial dis

## 36 TexReg 2850 May 6, 

## 2011 Texas Registercharges subject to regulation by permit issued under the Texas Water Code, Chapter 26; (B) soil, dirt, rock, sand, and othernatural orman-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 ofoil or gas, orgeothermal 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, orrepressurizing plants and is hazardous waste as defined by the administrator ofthe United States Environmental Protection Agency underthe federal Solid Waste Disposal Act, as amended by Resource Conscrvation and Recovery Act, as amended (42 United States Code, §§6901 elseq.). (94) Sourcrude-A crude oil that will emit a sourgas when in equilibrium at atmospheric pressure. (95) Sour gas-Any natural gas containing more than L.S grains ofhydrogen sulfide per 100 cubic feet, or more than 30 grains oftotal sulfur per 100 cubic feet. (96) Source--Apointoforigin ofaircontaminants, whether privately or publicly owned or operated. Upon request ofa source owner, the executive director shall determine whether multiple processes emitting air contaminants from a singlc point ofcmission 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 orhandled. may serve to transmit infectious disease(s) and that is comprised ofthe 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 ofaeounty orone or more contiguous counties that is officially so designated b)' thc United States Bureau ofthe Budget. (l00) Submergedfill pipe--A fill pipethat extends from the topofs 

### tankto have amaximum clearance ofslx inches (15.2 centimeters) from the bottomor, when applied to atankthat is loaded from the side, that has a discharge opening entirely submerged when the pipe used to withdraw liquidfrom the tankcan no longerwithdraw 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 contaminantcalculatedas H:SO. andmustinclude sulfuric acid liquidmist, sulfurtrioxide, 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 ofFederal Regulations Part 50. Appendix B. (105) Transfer efficiency--The amount of coating solids deposited onto the surface or a part ofproduct divided by the total amount ofcoating solids delivered to the coating application system. (106) True vapor pressure-The absolute aggregate partial vapor pressure, measured in pounds per square inch abSOlute, ofall volatile organic compounds at the temperature ofstorage, handling, or processing. (107) Unauthorized emissions--Emissions ofany air contaminant except carbon dioxide, water, nitrogen, methanc, ethane, noblegases, hydrogen, andoxygen thatexceedany airemission limitation in apermit., rulc, ororderofthe 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 ofnormal or routine facility operations, is unpredictable as to timing, and is not tre type ofeventnormally authorized by permit; or (B) a maintenance activit)· that arises from slidden and unforeseeable events beyond the control ofthe operator that requires the immediate corrective action to minimize or avoid an upset ormalfunction. (109) Upset event--An unplanned and unavoidable breakdown orexcursion ofaprocess oroperationthatresults inunauthorized 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 ofa process or operation is an upset event. (110) Utility boiler--A boiler used to produce electric power, steam, or heated orcooled air, orother gases or fluids for sale. (111) Vapor combustor--A partially enclosed combustion device used to destroy volatile organic compounds by smokeless combustion withoutextracting energy in the form ofprocess 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 systemthat can operate atall timesto 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 roofor cover. (113) Vent--Any duct.. stack, chimney, flue, eonduit, Or other devicc used to conduct air contaminants into the atmosphere. (114) Visible emissions--Particulate orgaseous matterthat can be detected by the human eye. The radiant enet'gy from an open flame is not considered a visible emission underthis 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, orothercontainerin which any VOC, floating on orcontaincd in waterentering such 

### tank, box, sump, orothercontainer, is physically separated and removed from such water prior to**outfal~** drainage, or recovery ofsuch water.


## ADOPTED RULES May 6,2011 36 

## TexReg 2851This agency hereby certifiesthatthe adoption has been reviewed by legal counsel and found to 

### be a valid exercise ofthe 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 withoutchangeto the proposed text as published in the November 19, 2010, issue ofthe 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 adoptsthe amendmentto §1 06.4to addressthe 

### 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 NationalAmbientAirQuality Standards (NAAQS) for PM to add new standards for PM" as an indicator. However, at that time. certain difficulties regarding 

### implementation ofthe PM B 

### 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 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 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 ele

### ments 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 December20,2010 forthe 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 al

### lowing 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 allowsapplicants for proposed new majorsources 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-yeartransition period for revising the SIP and for use ofthe 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 30TAC 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 ofsuch pollutant when identified for regulation by the EPA. TCEQ rules outline the requirements for both majorand minor NSR programs under 30 TAC §116.110, Applicability. This section requires any person who plansto 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 majorand minor NSR. Minor NSR sources are required to comply**w~h** §116.111 except §116.111(a)(2)(H) and (I), which only applyto major NSR (Nonattainment and PSD). For precursors, EPA provided some clarification regarding reg

### ulation 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 provi

### sions. 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 PM 2,s 

### concentrations in all areas and thus, have tenned these pollutants 

### "presumed in," meaning requiring regulation as a precursor for PM 2.5• 

### Conversely, the final rule does not require regUlation of VOC or ammonia as a precursor to PM 2.5 

### 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 Registeris 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 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 B 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 PM 2! regulations stating it will not require states to address condensable PM in establishing enforceable emissions limits for either PM 10 or**PM1~** in NSR penn its 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 PM 1.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 PM 2S . 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. Underthe 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 PM H concentrations in that area; and to 

## vac if identified by a state as a precursor in the PM H attainment area where the source is located. Although EPA has specified that direct emissions of PM 15 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 PM 2 ! if direct emissions of PM1! are below the PM" SER. Therefore, it is presumed that BACT for direct PM" will apply only ifdirect PM 2,! 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 §106.4, Requirements 

### for Permitting byRule The commission adopts the amendmentto §1 06.4 to address the applicable significantemission thresholds established by EPAfor PM, PM,o' and PM.!. The significant emission threshold for PM is 25 tons peryear (tpy), PM" is 15tpy, 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 underthis chapter, not currently operating authorized facilities understandard 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 of Texas Government Code, §2001.0225 and determined thatthe adopted rule does not meet the definition ofa "majorenvironmental 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 underthe 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



## ADOPTEDRULES May 6, lOll 

## 36 

## TexReg 1853known as the Texas Clean AirAct orTCAA), 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 PM 231 and provides a 

### basis for regulation of PM 2 , 

### emissions when the use of PM 10 

### as a surrogate for PM 2,5 

### 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 commis

### sion'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 forTexas, is tasked with implementing the newfederal regulations in accordance with 40 CFR §51.166 and FCAA, §107(d)(1)(A)(ii) or (iii). Nevertheiess, the commission furtherevaluated the adopted rUle and per/onmed an assessment of whetherthe rule constitutes a takings underTexas Government Code, Chapter2007. 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, 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 limitthe 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 otherwords, the rule does not affect private prop

### erty in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a govern

### mental action. Consequently, this rulemaking action does not meet the definition of a takings underTexas 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 etseq.), and commission rules in 30 TAC Chapter281, 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 ofcoastal 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 airquality 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 Pro

### gram 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 re

### quirements. 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 imple

### ments 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,~'** 

### WhileThe adopted amendment implements THSC, §§382.002, 382.003,382.011,382.012,382.051,382.0513, and 3820514. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe 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(35TexReg 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 orderto more accurately measure PM 2 " 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 PM 1 , 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 PM 2_,· 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 PM 15. 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 PM u 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 Register80118, 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 ofpublic 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; §382.051, 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