Bryan W. Shaw, Ph.D., Chainnan

Protecting Texas by Reducing and Preventing Pollution

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\(~~~) 11 MAR 16 PH 2: 1"J

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

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

Docket No. 2010-o625-RUL

~"D\\

March 11,~

Alfredo Armendariz, ph.D.

Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

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Dear Dr. Armendariz:

On February 9, 2011, the Texas Commission on Environmental Quality (Commission) adopted

revisions to the State Implementation Plan (SIP).

The Commission adopted amendments to §§ 116.12, 116.115, 116.180, 116.182, 116.186, 116.188,

116.190,116.192, 116.601, and 116.617; new § 116.127; and the repeal of § 116.121. Of these, the

amendments to §§ 116.12,116.115,116.180,116.182,116.186,116.188, 116.190, 116.192, and

116.601-and new §116.127 are submitted to EPA as revisions to the SIP.

The Commission is withdrawing from EPA consideration as revisions to the SIP §§ 116.121,

116-400,116-402,116-404 and 116-406 as adopted by the Commission on January 11, 2006,

effective on February 1,2006. As stated above, § 116.121 was repealed and readopted as new §

116.127. The other sections implement § 112(g) of the Federal Clean Air Act and thus are not

appropriate for inclusion in the SIP.

These SIP revisions address issues identified by EPA in its disapproval notice published in the

Federal Register on September 15, 2010 regarding the rules adopted by the Commission in

2006 to implement EPA's New Source Review Reform rules (NSRRR). Enclosed are the

proposed revisions to the SIP, a public hearing certification, a complete record ofthe public

hearings, and the accompanying order for the 2011 SIP revision.

The Commission also requests EPA consider, as part ofits review of this SIP submittal, the rules

amended and adopted by the commission on January 11, 2006, effective on February 1, 2006, to

implement EPA's NSRRR. Although EPA's records contain this 2006 submittal, the

Commission is supplying, as part ofthis transmittal, this previously submitted rulemaking to

ensure that EPA reviews the new submittal together with the 2006 submittal. Please note that §

116.194, adopted in January 2006, was amended as part ofthe Commission's rulemaking

P.O. Box 13087 Austin, Texas 78711-3087 Internet address; www.tceq.state.tx.us
regarding public participation in June 2010 and it is pending review by EPA as a revision to the

SIP.

I look forward to your expeditious approval ofthese SIP revisions.

Sincerely,

..WJttJ,wBryan Shaw, Ph.D.

Chairma

BWSjjbh

Enclosures
cc: The Honorable Rick Perry, Governor ofTexas

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

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality
Docket No. 201O-0625-RUL

THE STATE OF TEXAS

COUNIY OF TRAVIS

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

Texas State Implementation Plan, adopted on February 9, 2011, pursuant to 40 Code of Federal

Regulations § 51.104. I am the records administrator for Air Permits Division of the Texas

Commission on Environmental Quality (Commission).

Steve Hagle

Director, Air Permits Division

Texas Commission on Environmental Quality
Texas Commission on

Environmental Quality

Public Hearing

September 20, 2010

30 TAC Chapter 116

Control of Air Pollution by Permits

for New Construction or Modification

Rule Project No. 2010-008-116-PR

New Source Review (NSR) Reform
INTRODUCTION

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

on September 20, 2010 to receive testimony regarding revisions to 30 TAC Chapter 116, Control

ofAir Pollution by Permits for New Construction or Modification; and corresponding revisions to

the Texas state implementation plan (SIP).

This rulemaking addresses issues identified by the EPA in its September 23, 2009, proposed

disapproval notice and its September 15,2010, final disapproval notice and ensure that TCEQ

regulatory requirements regarding the NSR permitting program meet the requirements ofthe

Federal Clean Air Act (FCAA) and are approvable into the SIP.

This rulemaking includes amendments to § 116.12, Nonattainment Review Definitions; §

116.1 15, General and Special Conditions; § 116.180, Applicability; § 116.182, Plant-wide

Applicability Limit Permit Application; § 116.186, General and Special Conditions; § 116.188,

Plant-wide Applicability Limit; § 116.190, Federal Nonattainment and Prevention of Significant

Deterioration Review; § 116.192, Amendments and Alterations; § 116.601, Types of Standard

Permits; and § 116.617, State PolIution Control Project Standard Permit that are consistent with

the federal requirements for the NSR SIP. It also includes the repeal of § 116.121, Actual to

Projected Actual and Emissions Exclusion Test for Emissions Increases, and replacement of this

section in a new § 116.127.

In addition to the amended rules, the commission requests withdrawal from consideration by EPA

as revisions of the SIP the sections that reference FCAA, § 112(g) that were renumbered and

submitted to EPA in the 2006 rulemaking (§§ 116.400 - 116.406). Also the commission requests

that EPA consider § 116.151, as amended in 2006, together with the current changes. No changes
were needed to the rule, but the rule was officially disapproved by EPA and therefore

reconsideration must officially be requested. Finally, the commission requests withdrawal of §

116.121 from consideration by EPA as a revision of the SIP as adopted in 2006 because the rule

is proposed forrepeal and readopted as § 116.127, which is also proposed as a revision to the SIP.

The comment period closed on September 27, 2010. 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 infonnation, contact Blake Stewart at (512) 239-

6931.
PUBLIC 

NOTIFICATION AND 

PROPOSAL 
PUBLIC NOTIFICATION

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

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

listed:

Austin American-Statesman

Fort Worth Star-Telegram

Houston Chronicle

August 13,2010

August 13, 2010

August 13, 20I0

2. Publication ofthe public hearing notice in the Texas Register on August 27, 2010 (30

TexReg 7928).

3. Publication ofthe proposed rules in the Texas Register on August 27,2010 (30 TexReg

7703).

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

agencies:

Speaker ofthe House

Lieutenant Governor

City of El Paso

City of Victoria Planning Department

Dallas Department of Health and Human Services

EI Paso City-County Health District

Federal Highway Administration
Fort Worth Public Health Department

Galveston County Health District

Houston Department of Health and Human Services

Harris County Pollution Control Department

North Central Texas Council ofGovernments

Houston-Galveston Area Council

South East Texas Regional Planning Commission

Texas Department ofTransportation

Texas Transportation Institute

Arkansas Department of Pollution Control and Ecology

Louisiana Department ofEnvironmental Quality

New Mexico Air Quality Bureau

Oklahoma Department ofEnvironmental Quality

U. S. Environmental Protection Agency
EXAMPLE OF NEWSPAPER CLASSIFIED AD

Fort Worth Star-Telegram

August 13, 2010

Page 1 of2

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http://www.iegaInotice.orgIpVstartelegramlShowNotiee.aspx 8/1312010
COORDINATOR: Kirk Schoppe, (512) 239-0489; REGIONAL

OFFICE: 3300 North A Street, Building 4·\07, Midland, Texas

79705·5406, (432) 570·1359.

TRD·201004742

Kathleen C. Decker

Director, Uligation Division

Texas Commisskm on Environmental Quality

Filed: August 17, 2010

Notice of a Puhlic Hearing on Proposed Revisions to 30 TAC

Chapter 116 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 116, Control of Air Pollution by Permits

for New Construction or Modification; and corresponding revisions to

the state implementation plan (SIP), under the requirements of Texas

Health and Safety Code, §382.0\7; Texas Government Code, Chapter

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

the United States Environmental Protection Agency (EPA) regulations

concerning SIPs.

The revisionsto the SIP would also include the withdrawal from United

States Environmental Protection Agency (EPA) consideration as revisions to the SIP of §§116.12\, 116.400, 116.402, 116.404 and 116.406

as adopted by the commission on January 11, 2006, effective on February 1,2006.

The proposed amended, repealed, and new rules address issues identified by the EPA in its September 23, 2009, proposed disapproval notice. Specifically, those concern definitions related to and other changes

to the Plant·Wide Applicability Limit (PAL) rules to meet federal requirements, including the conditions for reopening PAL permits. The

rulemaking would also amend the standard permit rule for Pollution

Control Projects. The rulemaking would also include removing obsolete references and making non-substantive administrative changes.

The commission will hold a public hearing on this proposal in Austin

on September 20,2010, 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 or written 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 mmutes prior to the hearing.

Persons who have special communication or other accommodation

needs who are planning to attend the hearing should contact Charlotte

Hom, Ollice ofLegal Services at (512) 239·0779. Requests should be

made as far in advance as possible.

Written comments may be submitted to Natalia Henricksen, MC

205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed

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

http://www5.tceq.state.tx.us/ru/es/ecommentsl. File size restrictions may apply to comments being submitted via the eComments

system. All comments should reference Rule Project Number

20IQ-008-1I6-PR. The comment period closes September 27,

20 IO. Copies of the proposed rulemaking can be obtained from the

commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose adopt.html. For further information, please contact Blake

Stew8rt, Air Permits Division, (512) 239-6931.

TRD·2010D4713

Notice of Comment Period and Announcement of Public

Meeting on Proposed Air Quality Standard Permit for Pollution

Control Projects

The Texas Commission on Environmental Quality (TCEQ) is providing an opportunity for public comment and will conduct a public meet·

ing to receivc testimony concerning the pollution control projects air

quality standard permit proposed for issuance under the Texas Clean

Air Act, Texas Health and Safety Code, §382.05195, Standard Permit,

and 30 Texas Administrative Code (TAC) Chapter 116, Subchapter F,

Standard Permits.

PROPOSEDSTANDARDPERNUT

The proposed new air quality standard permit for pollution control

projects would replace the current standard permit (SP) for pollution

control projects available under 30 TAC §116.617, State Pollution Control Project Standard Permit. Owners or operators currently authorized

under the SP can continue to do so until the facilities are modified, ad·

ministratively incorporated, or renewed. The proposed standard permit would authorize projects undertaken voluntarily or as required by

any federal or state air staMe or rule, which reduce or maintain currently authorized emission rates for facilities authorized by a permit.

SP, or permit by rule. In a separate commission action, §116.617 will

be wnended and will be unavailable for new or modified pollution control projects upon issuance ofthis standard permit.

The New Source Review Program under 30 TAC Chapter 116, Con·

trol ofAir Pollution by Permits for New Construction or Modification,

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 mto the air ofthe state to obtain a permit in accordance

with §116.111. General Application, satisfy the de minimis criteria of

§116.119. De Minimis Facilities or Sources, or satisfy the conditions

of a standard permit, a flexible permit. or a permit by rule before any

actual work is begun on the facility.

A standard permit is subject to the procedural requirements of

§116.603, Public Participation in Issuance ofStandard Permits, which

includes a 30-day public comment period and a public meeting to

provide an additional opportunity for public comment. Any person is

entitled to submit written or vernal comments regarding the proposed

standard permit.

PUBLIC MEETING

A public meeting on the proposed standard pennit for pollution control

projects will be held in Austin, Texas. The meeting will be structured

for the receipt of oral or written comments by interested persons. In~

dividuals may present oral statements when called upon in order of

registration. Open discussion with the audience will not occur during the meeting; however, TCEQ staffwill be available to discuss the

standard permit for pollution control projects 30 minutes prior to the

meeting and stalf will also answer questions after the meeting. The

public meeting will be held on September 20, 2010 at 10:00 a.m., at

the Texas Commission on Environmental Quality. Building E, Room

201S, 12100 Park 35 Circle, Austin.

PUBLIC COMMENT AND INFORMATION

Copies of the proposed standard permit for pollution control projects may be obtained from the TCEQ Web site at

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: August 13, 2010

•• •

• • •

35 TexReg 7928 August 27,2010 Texas Register
(c) Except as noted in subsection [~] of this section reR

garding NOx' the de minimis threshold test (netting) is required for all

modifications to existing major sources ofVOC or NOx' unless at least

one ofthe following conditions are met:

(l) the proposed emissions increases associated with a

project, without regard to decreases, is less than five tons per year (tpy)

of the individual nonattainment pollutant in areas classified under

Federal Clean Air Act (FCAA), Title I, PIIrt D, Subpllrt 2 (42 USC,

§75l1) classified as Serious or Severe;

(2) the proposed emissions increases associated with a

project, without regard to decreases, is less than 40 tpy of the individual nonattainment pollutant in areas classified under FCAA, Title

I, PIIrt D, Subpllrt I (42 USC, §7502) and for those under FCAA,

Title I, PIIrt D, Subpllrt 2 (42 USC, §75II) classified as Marginal or

Moderate; or

(3) the project emissions increases are less than the signifR

icant level stated in Table] located in the definition of major modification in §1l6.12 of this title and when coupled with project actual

emissions decreases for the same pollutant, summed as the project net,

are less than or equal to zero tpy.

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ft:Etl;lire6.fet.aJ:.lHl8difieatiBHst&~majef~ef¥QGetNG.,.;

ift thatitA!&,tHHess-at-least ooeefthe falle iRg eeHditieHsis t:Itet:}

{fB the PFBJ;105Bd efllissioHs iRereases asseeiated with B jlf6jeel; _ regBFt! Ie dee..as••, is leas __'l'r Bf tlle

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ft2:t the 'JH'6ieet emissiefts mereases are less- thee the 5igfliIietlB! 1e¥e15llIte<I;" _lleeate<l ;" tlle definition Bffflllje< me<!-

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@ [fe)1 In applying the tk minimis threshold tes~ ifthe net

emissions increases are greater than the significant levels stated in Table ] located in the definition ofmajor modification in §116.12 ofthis

title, the following requirements apply.

(I) The proposed facility shall comply with the lowest

achievable emission rate (LAER) as defined in §1l6.12 of this title

for the nonattainment pollutants for which the facility is a new major

source or major modification except as provided in paragraph (3)(B)

ofthis subsection and except for existing major stationary sources that

have a potential to emit (PTE) of less than 100 tpy of the applicable

nonattainment pollutant. For these sources, best available control

technology (BACD can be substituted for LAER. LAER shall otherwise be applied to each new facility and to each existing facility at

which the net emissions increase will occur as a result of a physical

change or change in method of operation ofthe unit.

(2) All major stationary sources ovmed or operated by the

applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state must be in compliance or

on a schedule for compliance with all applicable state and federal emission limitations and standards.

(3) At the time the new or modified facility or facilities

commence operation, the emissions increases from the new or mod35 Te:cReg 7698 August 27, 2010 Texas Register

ified facility or facilities must be offset. The proposed facility shall

use the offset ratio for the appropriate nonattainment classification as

defined in §ll6.12 ofthis title and shown in Table I located in the definition of major modification in §1l6.12 ofthis title. Internal offsets

that are generated at the source and that otherwise meet all creditability criteria can be applied as follows.

(A) Major stationary sources with a PTE of less than

100 tpy of an applicable nonattainment pollutant are not required to

undergo nonattainment new SOurce review under this section., if the

project increases are offset with internal offsets at a ratio of at least

1.3 to I.

(B) Major stationary sources with a PTE ofgreater than

or equal to 100 tpy of an applicable nonattainment pollutant can substitute BACT for LAER, ifthe project increases are offset with internal

offsets at a ratio ofat least 1.3 to 1. Intemal offsets used in this manner

can also be applied to satisfy the offset requirement.

(4) In accordance with the FCAA, the pennit application

must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source. The analysis

must demonstrate that the benefits ofthe proposed location and source

configuration significantly outweigh the environmental and social costs

ofthat location.

[~] For SOurces located in the E1 Paso ozone nonattainment area as defined in 40 Code ofFederal Regulations, PIIrt 81 [fWH

efthis fl:lIe (fefatiftg t& 9eftflitiefts)]. the requirements of this section

do not apply to NOx emissions.

This agency hereby certifies thattheproposal has been reviewed

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

Filed with the Office of the Secretary of State on August 13, 2010.

TRD-201004711

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

EaMiest possible date of adoption: September 26,2010

For further inlonn_tion, ple_se call: (512) 239-6090

• • •

CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

The Texas Commission on Environmental Quality (commission or TCEO) proposes amendments to §§116.12, 116.115,

116.180,116.182,116.186,116.188,116.190, 116.192, 116.601,

and 118.617; new §116.127; and the repeal of §116.121.

The proposed amendments to §§116.12, 116.115, 116.180,

116.182, 116.188, 116.188, 116.190, 116.192, and 116.601;

and new §116.127 will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the State

Implementation Plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

On June 10, 2005, the TCEO submitted the amendment to

§116.12 to the EPA as a revision to the New Source Review

(NSR) SIP and §116.150 as a revision to the Nonattainment

New Source Review (NNSR) SIP, both adopted on May 25,
2005. On February 1, 2006, the TCEQ submitted amendments

to §§116.12, 116.121, 116.150, 116.180, 116.182, 116.184,

116.186, 116.188, 116.190, and 116.617 to the EPA as revisions

to the NSR SIP, amendments to §§101.1, 116.150, and 116.151

as revisions to the NNSR SIP, and the amendment to §116.160

as a revision to the Prevention of Si9nificant Dete~oralion (PSD)

SIP, adopted on January 11, 2006. On September 23, 2009,

the EPA published notice of the proposed disapProval of these

revisions to the Texas SIP (74 Federal Register 48467).

This rulemakin9 and the companion ruiemakin9 (Rule Project

No. 200B-030-116-PR) will address issues identified by the EPA

in its September 23, 2009, disapproval notice and ensure that

TCEQ regulatory requirements regarding the NSR pennitting

program meet the requirements of the Federal Clean Air Act

(FCAA) and are approvable into the SIP. Specificaliy, those

concern definitions lor and other changes to the Plant-Wide

Applicability Limij (PAL) rUles, and other changes to the PAL

rules to meet federal requirements, including the conditions

lor reopening PAL pennijs. The rulemaking would aiso amend

§116.617, State Poliution Control Standard Pennij, which is the

existin9 standard pennit rule, to limit when existing registrations

can be amended or renewed, and provide the deadline lor

final registrations under this specific standard pennij. This is

intended to facilitate a smooth transition between this section

and the proposed new non-rule air quality standard pennij

that is being concurrently proposed by the commission. The

amendments would also remove obsolete references and make

non-substantive administrative changes.

In the September 23, 2009 notice, EPA also proposed to take no

action on §§116.4oo - 116.406, which were included in the 2006

rulemaking. These sections are pennij requirements lor compliance with FCAA, §112(g), but they are not necessary elements

of the SIP. The rulemaking proposes the wijhdrawal from EPA

consideration as a revision to the SIP of §§116.400, 116.402,

116.404, and 116.406 as adopted by the commission on January 11, 2006, effective on February 1, 2006. No changes are

proposed to the rule text or numbering 01 these sections.

This rulemaking is at least as stringent as the federal rules and

policies being implemented because it includes the applicable

elements of the major NSR and PAL pennit programs. The rulemaking action also ensures that the rulemaking, if adopted, wili

meet the requirements of FCAA, §110 Which, among other requirements, requires that the elements of the SIP be enlorceable, ensure compliance, include replicable elements, and ensure accountability. The specific changes to the PAL rules meet

these basic requirements.

SECTION 8Y SECTION DISCUSSION

§116.12, Nonaltainment and Prevention ofSignificant Deterioration Definitions

The commission is Proposin9 to amend the definition of the

tenn baseline actual emissions. The EPA, in ijs proposed

disapproval notice, commented that this definition differed from

the federal rules because the definition did not specify that these

emissions are meant to be calculated based on the average

rate. The amendment specifying that the rate is an average

rate would be included in §116.12(3)(A), (8), (D), and (E). The

commission is also proposing to remove the term "exempted

from" §116.12(3)(E) and replace it wijh "unauthorized" since

emissions events were not exempt under 30 TAC Chapter

101, but required to be reported. The commission is also

proposing to amend the tenn net emissions increase. EPA

commented in the Technicai Support Document related to the

proposed disapproval that this definition might not match federal reqUirements lor enforceability. Additionaliy, commission

is proposing to amend the tenn projected actual emissions.

EPA also commented that the term did not include emissions

from startups, shutdowns, malfunctions and this amendment

would be Incorporated in §116.12(29). However, as stated

in the original adoption preamble lor this rule in 2006, the

commission has excluded malfunction emissions in compliance

wijh long-standing commission policy to exclude non-compliant

emissions. Further, EPA has approved the definition of baseline

emissions in other states which also exclude malfunction emissions. Therefore, the commission expects this more stringent

rule to be approvable by EPA.

§116.115, General and Special Conditions

The commission proposes to amend §116.115(b)(2)(F) wijh a

statement that emissions exceeding the maximum aliowable

emission rates established in a pennit are not authorized and

are a violation of the penni!. Additionaliy, the commission proposes to amend §116.115 wijh non-SUbstantive administrative

changes in §116.115(b)(2)(8)(iii) and (H) and (c)(2)(8)(ii)II).

§116.121, Actual to Projected Actual and Emissions Exclusion

Test for Emissions Increases

The commission proposes to repeal §116.121. The text of this

rule would be in proposed new §116.127.

§116.127, Actual to Projected Actual and Emissions Exclusion

Test for Emissions Increases

The commission proposes new §116.127 to address actual to

projected actual emissions and the emissions exclusion test for

emissions increases. There have been no changes to the language that was originally in §116.121.

§116180, Applicability

The commission proposes to remove the term account site from

§116.180(a)(1) and replace ij with the tenn existing major stationary source to make this requirement more consistent with federal

requirements. The commission also proposes to make similar

changes to §116.180(a)(3) and (4). Additionally, because the

federal tenn emissions unit is defined very simila~y to the tenn

facilijy as defined in the Texas Clean Air Act (TCAA), the commission proposes to add the language "or emissions unif' whenever

the lenn facilijy is used (i.e. §116.180(a)(3), (b) and (c)). The

commission also proposes to restrict the issuance of PAL permits to existing stationary sources in §116.180(a)(5). The EPA,

in its september 23, 2009, proposed disapproval notice stated

that the current regUlation lacks a provision that limits applicability of a PAL to an existing major stationary source.

§116.182, Plant-wide Applicability Limit Pennit Application

Since the federal tenn emissions unit is defined very simila~y

to the tenn facility as defined in the TCAA, the commission proposes to add the language "or emissions unit" when the tenn

facilijy is used in §116.182(a)(1). Also the commission proposes

to add the phrase "at a major stationary source" where appropriate to make clear that PALs are applicable to major sources

only.

§116.186, General and Special Conditions

Since the federal tenn emissions unit is defined very simila~y

to the tenn facility as defined in the TCAA, the commission proposes to add the language "or emissions unif' Where the tenn

PROPOSED RULES August 27,2010 35 TexReg 7699
facility is used in subsections (a) and (b)(1). Also the commission proposes to add the phrase "at a major stationary source"

where appropriate to make clear that PALs are applicable to major sources only. Additionally, the commission proposes to define

the term "responsible official" by referencing the definition in 30

TAC Chapter 122.

In the September 23, 2009, proposed disapproval notice, the

EPA noted that TCEO's rule lacked a mandate that failure of the

monitoring system to meet the requirements of this section is a

violation of the PAL permit. Consequently, the commission proposes to include this requirement in proposed §116.1B6(b)(9).

Existing subsection (b)(9) and (10) would be redesignated as

subsection (b}(10) and (11). In the notice, the EPA also stated

that the specific monitoring definitions: continuous emissions

monitoring system (CEMS) as defined in 40 Code of Federal

Regulations (CFR) §51.165(a)(1)(xxxi) and §51.166(b)(43);

continuous emissions rate monitoring system (CERMS) as

defined in 40 CFR §51.165(a)(1)(xxxiv) and §51.166(b)(46);

continuous parameter monitoring system (CPMS) as defined

in 40 CFR §51.165(a}(1)(xxxiii) and §51.166(b)(45); and predictive emissions monitoring system (PEMS) as defined in 40

CFR §51.165(a)(1 )(xxxii) and §51.166(b)(44) are essential for

the enforceability of and providing the means for determining

compliance with a PAls prosram. The commission is proposing to incorporate these definitions by reference in proposed

§116.1B6(c)(1). Existing subsection (c)(1) and (2) would be

redesignated as subsection (c)(2) and (3). Additionally, the

commission proposes to amend §116.1B6 with non-substantive

administrative changes.

§116.1BB, Plant-wide Applicability Limit

The commission proposes to amend §116.1 BB with non-substantive administrative changes.

§116.190, Federal Nonattainment and Prevention of Significant

Deterioration Review

Since the federal term emissions unit is defined very similarly

to the term facility as defined in the TCM, the commission proposes to add the language "or emissions unif' where the term

facility is used in subsection (a). Also the commission proposes

to add the phrase "at a major stationary" source where appropriate to make clear that PAls are applicable to major sources

only.

§116.192, Amendments and Alterations

In its proposed disapproval notice, the EPA requested that the

state include provisions relating to the reopening of a PAL by the

executive director. The commission is proposing to include a

statement that acceptance of a PAL is agreement by the permit

holder to reopening the permit in proposed subsection (c). Also,

the commission is proposing a mandatory reopening of the permit for the purposes that are stated in §116.1B6(c)(1). These

purposes include: the correction of typographical or calculation

errors; decrease of the PAL limit to reflect creditable emissions

reductions;' or revision of the permit to reflect an increase in

the PAL. Additionally, the commission is proposing to allow discretionary reopening of the permit for the purposes stated in

§116.1B6(c)(2}. These purposes include: revision of the PAL

to reflect newly applicable federal requirements; revision to the

PAL to reflect any other enforceable requirement imposed on

major stationary sources under the SIP; reduction of the PAL to

avoid national ambient air quality standards (NMOS) or PSD

increment violation; or reduction of the PAL to avoid an adverse

impact on a federal class I area. Additionally, the commission

35 TexReg 7700 August 27,2010 Texas Register

proposes to amend §116.192 with non-substantive administrative changes.

§116.601, Types of Standard Permits

The commission is proposing to remove language refening to

specific standard permits in §116.601(a)(1) in favor of a more

general statement that includes those standard permits adopted

into rule. This change will facilitate any future adoptions or repeals of standard permits that are parl of Chapter 116.

§116.617, State Pollution Control Project Standard Permit

The commission proposes to amend §116.617(a)(4) to prOVide

that the existing requirements of that paragraph will cease to be

effective on February 17, 2011. The commission is also proposing §116.617(a)(5) which provides that, notwithstanding the requirements of §116.604, on or after February 17, 2011, no new

or modified registrations will be accepted and no existing registrations will be renewed.

The EPA in its September 23,2009, proposed disapproval noted

its objections to the State Pollution Control Project Standard Permit (PCP) including: the PCP is a generic permit that can be

used at any source including major sources; it is overly broad

in that it does not specify the types of pollution control equipment it authorizes; and it allows for source specific review and

case-by-case authorization. A non-rule standard permit that can

be used for pollution control projects is concurrently proposed

by the commission. Persons who wish to have authorization for

pollution control equipment by a standard permit may use the

new non-rule standard permit for pollution control equipment if

adopted by the commission.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

has determined that, for the first five-year period the proposed

rules are in effect. no significant fiscal implications are antici~

pated for the agency or other units of state or local governments

as a result of administration or enforcement of the proposed

rules.

In 2005 and 2006, the agency submitted new and amended rules

to Chapter 116 as revisions to the NSR SIP to the EPA for approval. On SePtember 3, 2009, EPA proposed disapproval of

these SIP revisions. The proposed rules address EPA concerns

identwied in the proposed disapproval by: clarifying definitions;

removing sections in Chapter 116 from the SIP that reference

permits subject to the requirements of FCM, §112(g) and are

related to hazardous air pollutants; relocating reqUirements related to actual to projected actual emissions and the emissions

exclusion test for emissions increases; and amending the pollution control standard permit rule to limit its use since those requirements will be proposed to become part of a non-rule standard permit. No significant fiscai implications are anticipated for

any regulated entity.

State agencies or local governments that operate under an NSR

permit should not experience any fiscal implications as a resun

of the proposed rules since despite any discrepancy between

state ruies which were submitted as revisions to the SIP and

the federal regUlations, the Air Permits Division has continued

to ensure that applicants for NSR permits comply with federal

reqUirements. The proposed rules clarify federal requirements

and ensure that regulated entities are more easily able to comply

with those requirements.
PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first

five years the proposed rules are in effect, the pUblic benefit anticipated from the changes seen in the proposed rules will be

consistency between federal and state requirements, assurance

that state rules for the SIP NSR program are at ieast as stringent

as federal rules, and EPA approval of the SIP

The proposed ruies are not expected to have a significant fiscal impact on individuals or large businesses because, despite

any discrepancy between state rules which were submitted as

revisions to the SIP and the federal regulations, the Air Permits

Division has continued to ensure that applicants for NSR permits comply with federal requirements. The proposed rules clarify requirements and ensure consistency between state and federal rules. The limitalions added regarding use of the pollution

control standard permrt rule are not expected to have any fiscal

impact because the commission is expected to adopt a similar

non-rule standard permit. The cost for preparing the pollution

control standard permrt registration is minimal, and the commission is not changing the fee structure for standard permits.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules because, despite any discrepancy between state rules which were submitted

as revisions to the SIP and the federal regulations, the Air Per.

mits Division has continued to ensure that applicants for NSR

permits comply wrth federal requirements. The proposed rules

clarify state requirements and ensure consistency with federal

requirements regarding NSR permits.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

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

not required because the proposed rules are required to comply

with federal regulations. The agency is required to implement

the proposed ruies to obtain federal approval for the SIP.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and de·

termined that a local employment impact statement is not required because the proposed rules do not adverseiy affect a IGcal economy in a material way for the first five years that the

proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light ofthe

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and determined that the rulemaking does not

meet the definition of a major environmental rule as defined in

that statute, and in addition, if it did meet the definttion, would

not be subject to the requirement to prepare a regulatory impact

analysis.

A major environmental rule means a rule, the specific intent Of

which is to protect the environment or reduce risks to human

hearth from environmental exposure, and that may adversely affect in a material way the economy, a sector ofthe economy, peGductivity, competition, jobs, the environment, orthe public health

and safety of the state or a sector of the stale. The specific intent of the proposed revisions is to include definitions for and

make other changes to the PAL rules to meet federal requirements, including the conditions for reopening PAL permtts. The

rulemaking would also amend §116.617, State Pollution Control Standard Permit, which is the existing standard permit rule,

to limit when existing registrations can be amended or renewed,

and provide the deadline for final registrations underthis specific

standard permtt. This is intended to facilitate a smooth transition

between this section and the proposed new non~rule air Quality

standard permtt that is being concurrently proposed by the commission.

In the September 23, 2009, notice, EPA also proposed to take no

action on §§116.400 - 116.406, which were included in the 2006

rulemaking. These sections are permit requirements for compli.

ance wtth FCAA, §112(g), but they are not necessary elements

of the SIP. The rulemaking proposes the wtthdrawal from EPA

consideration as a revision to the SIP of §§116.400, 116.402,

116.404, and 116.406 as adopted by the commission on January

11,2006, effective on February 1, 2006. These changes will not

adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, orthe public hearth and

safety of the state or a sector of the state in a material way since

they codify the effect a federal district court ruling that has been

upheid by the United States Supreme Court in South Coast, as

discussed elsewhere in this preamble.

Additionally, even if the rules met the definition of a major environmental rule, the rulemaking does not meet any of the four applicability criteria for requiring a regUlatory impact analysis for a

major environmental rule, which are listed in Texas Government

Code, §2001.0225(a). Texas Government Code, §2001.0225,

applies only to a major environmental rule, the result of which

is to: 1) exceed a standard set by federal law, uniess the rule

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

federal law; 3) exceed a requirement of a deiegation agreement

or contract between the state and an agency or representative

of the federal government to implement a state and federal prGgram; or 4) adopt a rule solely under the general powers of the

agency instead of under a specific slate law.

The proposed rules would implement requirements of the FCAA.

Under 42 Untted States Code (USC), §741 0, each state is required to adopt and implement a SIP containing adequate PeGvisions to implement, attain, maintain and enforce the NAAQS

within the state. While 42 USC, §7410 generally does not require specific programs, methods, or emission reductions in order to meet the standard, state SIPs must include specific requirements as specified by 42 USC, §7410. The provisions ofthe

FCAA recognize that states are in the best position to determine

what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibiltty allows states, affected

industry, and the public, to collaborate on the best methods for

attaining the NAAQS for the specific regions in the state. Even

though the FCAA allows states to develop their own programs,

this flexibility does not relieve a state from developing a program

that meets the requirements of 42 USC, §7410. States are not

free to ignore the requirements of 42 USC, §741 0, and must develop programs to assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAQS

within the state. One of the requirements of 42 USC, §7410 is

for states to include programs for the regulation of the modification and construction of any stationary source wIThin the area

covered by the plan as necessary to assure that the NAAQS are

achieved, including a permtt program as required in FCAA, Parts

Cand D, or NSR. Additionally, once slates have developed SIPs,

and those plans are approved by the EPA, the FCAA prescribes,

in 42 USC, §7502(e) that the EPA, in modifying a NAAQS, shall

promulgate rules that appiy to all areas that have not attained the

PROPOSED RULES August 27,2010 35 TexReg 7701
previous NAAQS that provide for controls that are no less stringent than the controls that previously applied to the area. This

rulemaking will address those sections submitted as revisions to

the NSR SIP and subsequently were proposed for disapproval

by the EPA. Specifically, those concern definijions for and other

changes to the PAL rules, and that excess emissions are violations of the permit. The rulemaking project includes propose'

Withdrawal of sections appiicable to permits required for compliance with FCAA, §112(g) from EPA consideration as a revision

to the SIP, although there are no changes to rUle numbering or

text and thus are not open for comment.

The requirement to proVide a fiscal analysis of regulations in the

Texas Government Code was amended by Senate Bill (SB) 633

during the 75th Legislature, 1997. The intent ofSB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory lan9uage as

major environmental rules that will have a material adverse im~

pact and will exceed a requirement of state law, federal law, or a

delegated federal program, or are adopted solely under the general powers of the agency. Wrth the understandin9 that this reqUirement would seldom apply, the commission provided a cost

estimate for SB 633 that concluded ''based on an assessment of

rules adopted by the agency in the past, ij is not anticipated that

the bill will have si9nificant fiscal implications for the agency due

to its Iimijed application." The commission also noted that the

number of rules that would reqUire assessment under the provisions of the bill was not large. This conclusion was based, in

part, on the criteria set forth in the bill that exempted rules from

the full analysis unless the rule was a major environmental rule

that exceeds a federal law.

Because of the ongoing need to meet federal requirements, the

commission routinely proposes and adopts rules incorporating

or designed to satisfy specific federal requirements. The legislature Is presumed to understand this federal scheme. If each rule

proposed by the commission to meet a federal requirement was

considered to be a major environmental rule that exceeds federal

law, then each of those rules would require the full regulatory impact analysis (RIA) contemplated by SB 633. This conclusion is

inconsistent with the condusions reached by the commission in

its cost estimate and by the Legislative Budget Board (LBB) in ijs

fiscal notes. Since the legislature is presumed to understand the

fiscal impacts olthe bills ij passes, and that presumption is based

on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the

full RIA for rules that are extraordinary in nature. While the proposed rules may have a broad impact, that impact is no greater

than is necessary or appropriate to meet the requirements of the

FCAA, and in fact creates no additional impacts since the proposed rules do not exceed the reqUirement to attain and maintain

the NAAQS. For these reasons, the proposed rules fall under the

exception in Texas Government Code, §2001.0225(a), because

they are required by, and do not exceed, federal law.

The commission has consistently applied this construction to its

rules since this statute was enacted in 1997. Since that time,

the legislature has revised the Texas Government Code, but

left this proVision substantially unamended. It is presumed that

"when an agency interpretation is in effect at the time the legislature amends the laws Without making substantial change in the

statute, the legislature is deemed to have accepted the agency's

interpretation." (Central Power &Light Co. v. Sherp, 919 S.W2d

485, 489 (Tex. App. Austin 1995), writ denied with per curiem

opinion respecting enother issue, 960 S.W2d 617 (Tex. 1997);

Bullock v. Merethon Oil Co., 798 S.W2d 353, 357 (Tex. App.

35 TexReg 7702 August 27,2010 Texas Register

Austin 1990, no writ). cr. Humble Oil &Refining Co. v. Calvert,

414 S.W2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto

Ins. Co., 9 S.W3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W3d 581 (Tex. App.

Austin 2000, pet. denied); and Coastal Indus/. Water Auth. v.

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

The commission's interpretation of the RIA requirements is also

supported by a change made to the Administrative Procedure

Act (APA) by the legislature in 1999. In an attempt to limij the

number of rule challenges based upon APA requirements, the

legislature clarified that state agencies are required to meet

these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The

legislature specifically identified Texas Government Code,

§2oo1.0225 as falling under this standard. As discussed in

this analysis and elsewhere in this preamble, the commission

has substantially complied with the requirements of Texas

Government Code, §2001.0225.

The proposed rules implement reqUirements of the FCAA,

specifically to adopt and implement SIPs to attain and maintain

the NAAQS, inclUding a requirement to adopt and implement

permij programs. The specific intent of the proposed rulemaking is to address those sections submitted as revisions to the

NSR SIP and subsequently were proposed for disapproval by

the EPA. Specifically, those concern definitions for and other

changes to the PAL rules, and that excess emissions are

violations of the permij. The rulemaking would also limit when

existing pollution control standard permit registrations can be

amended or renewed, and the deadline for final registrations

under this specific standard permij. The proposed rules were

not developed solely under the general powers of the agency,

but are authorized by specific sections of Texas Heaijh and

Safety Code, Chapter 382 (also known as the Texas Clean

Air Act), and the Texas water Code, which are cited in the

STATUTORY AUTHORITY section of this preamble. Therefore,

this proposed rulemaking action is not sUbject to the regulatory

analysis provisions ofTexas Government Code, §2001.0225{b).

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

Under Texas Government Code, §2007.002(5), taking means a

governmental action that affects private real property, in whole or

in part or temporarily or permanenlly, in a manner that requires

the governmental entity to compensate the private real property

owner as proVided by the Fifth and Fourteenth Amendments to

the United States Constitution or §17 or§19, Article I, Texas Constitution; or a governmental action that affects an owner's private

real property that is the SUbject of the governmental action, in

whole or in part or temporarily or permanently, in a manner that

restricts or Iimijs the owner's right to the property that would otherwise exist in the absence of the governmental action; and is

the producing cause of a reduction of at least 25% in the market

value of the affected private real property, determined by comparing the market vaiue of the property as if the governmental

action is not in effect and the market value of the property determined as if the governmental action is in effect.

The commission completed a takings impact analysis for the proposed rulemaking action under the Texas Government Code,

§2007.043. The primary purpose of this proposed rulemaking
action, as discussed eisewhere in this preamble, is to address

those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, the proposed changes concern definitions for and other

changes to the PAL rules, limitations regarding use of pollution

control standard pennit registrations, and that excess emissions

are violations of the pennit

The proposed rules will not create any addijional burden on private real property. The proposed rules will not affect private real

property in a manner that would require compensation to private

real property owners under the United States Conslilution or the

Texas Constitution. The proposal also will not affect private real

property in a manner that restricts or limits an owner's righllo the

property that would otherwise exist in the absence of the govemmental action. Therefore, the proposed rulemaking will not

cause a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission detennined that this rulemaking action relates

to an action or actions SUbject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination Act

of 1991, as amended (Texas Natural Resources Code, §§33.201

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, conceming Consistency with the Texas Coastai Management Program. As reqUired by §281.45(a)(3) and 31 TAC

§505.11(b)(2), relating to Actions and Rules SUbject to the CMP,

commission rules governing air pollutant emissions must be consistent wijh the applicable goals and policies of the CMP. The

commission reviewed this action for consistency with the CMP

goals and policies in accordance with the rules of the Coastal

Coordination CounCil, and detennined that the action is consistent wijh the applicable CMP goals and policies.

The CMP goal applicable to this rulemaking action is the goal

to protect, preserve, and enhance the diversity, qualijy, quantity,

functions, and values of coastal natural resource areas (31 TAC

§501.12(1». The proposed rules will indirectly benefrt the environment because reduced emissions resurting from the more

stringent major source thresholds and emission offset requirements of the one-hour ozone standard 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

§501.14(q)). Therefore, in accordance with 31 TAC §505.22(e),

the commission affirms that this rulemaking action is consistent

wijh CMP goals and policies.

Written comments on the consistency of the proposed rulemaking may be submitted to the contact person at the address listed

under the SUBMITTAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 116 is an applicable requirement of Chapter 122,

Federal Operating Pennits Program. If the proposed rules are

adopted, owners or operators SUbject to the federal operabng

permit program must, consistent with the reVision process in

Chapter 122, upon the effective date of the adopted rulemaking,

revise their operating pennit to include the new Chapter 116

requirements. Additionally, sources subject to the rules may

become subject to the federal operating pennij program.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on September 20, 2010 at 10:00 a.m. in Building E, Room

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

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

oral statements when called upon in order of registration. Open

discussion will not be pennitted during the hearing; however,

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

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

Charlotte Hom, Office of Legal Services at (512) 239'{)779. Requests should be made as lar in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Patricia Duron, MC

205, Office of Legal Services, Texas Commission on EnVironmental Quality, P.O. Box 13087, Austin, Texas 78711·3087,

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

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

File size restrictions may apply to comments being submitted

via the eCommenls system. All comments should reference

Rule Project Number 201Q-008-116-PR. The comment period

closes September 27, 2010. Copies of the proposed rulemaking can be obtained from the commission's web sije at

http://www.teeq.state.tx.uslnav/rufeslpropose_adopt.htmf. For

further infonnation, please contact Blake Stewart, Air Pennits

Division, at (512) 239-6931.

SUBCHAPTER A. DEFINITIONS

30 TAC §116.12

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code (TWC),

§5.102, conceming General Powers, which provides the commission with the generai powers to carry out its duties under

the TWC; TWC, §5.103, concerning Rules, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; TWC, §5.105, conceming General

Policy, which authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas

Health and Safety Code (THSC), §382.017, conCeming RUles,

which authorizes the commission to adopt rules consistent wijh

the policy and purposes of the Texas CleanAir Act. The amendment is also proposed under THSC, §382.002, concerning

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

protection of public health, general wellare, and physical property; THSC, §382.011, conceming General Powers and Duties,

which authorizes the commission to control the qualijy of the

state's air; and THSC, §382.012, conceming State Air Control

Plan, which authorizes the commission to prepare and develop a

general, comprehensive plan for the proper control of the state's

air; THSC, §382.016, concerning Monitoring ReqUirements;

Examination of Records, which authorizes the commission to

prescribe reasonable reqUirements for measuring and monitoring the emissions of air contaminants from a source or from an

activity causing or resulting in the emission of air contaminants;

THSC, §382.021, conceming Sampling Methods and Procedures, which authorizes the commission to prescribe sampling

methods and procedures to be used in detennining violations of

and compliance with the commission's rules; THSC, §382.040,

PROPOSED RULES August 27,2010 35 TexReg 7703
concerning Documents; Public Property, which provides that all

information, documents, and data collected by the commission

in performing its duties are state property; THSC, §382.051,

conceming Permitting Authority of Commission; Rules, which

authorizes the commission to issue pennits for construction

of new facilities or modifications to existing facilities that may

emit air contaminants; THSC, §382.0511, concerning Permit

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512,

conceming Modification of Existing Facility, which prescribes

how the commission will evaluate modifications of existing

facilities; THSC, §382.0513, conceming Permit Condrtions,

which authorizes the commission to establish and enforce

permrt conditions; THSC, §382.0514, concerning Sampling,

Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal

source or facility; THSC, §382.0515, conceming Application lor

Permi~ which specifies permit application requirements; and

THSC, §382.0518, conceming Preconstruction Permrt, which

authorizes the commission to issue preconstruction permits.

The amendment is also proposed under Federal Clean Air Act

(FCAA), 42 United States Code (USC), §§7401, et seq., which

requires states to submit state implementation plan revisions

that specify the manner in which the national ambient air quality

standard will be achieved and maintained wrthin each air quality

control region of the state.

The proposed amendment implements THSC, §§382.002,

382.011, 382.012, 382.016, 382.017, 382.021, 382.040,

382.051, 382.0511- 382.0515, and 382.0518, and FCAA, 42

USC, §§7401 et seq.

§116.12. Nonattainment and Prevention ofSignificant Deterioration

Review Definitions.

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

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

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

control. The tenns in this section are applicable to permit review for

major source construction and major source modification in nonattainment areas. In addition to the terms that are defined by the TCAA, and

in §101.1 ofthis title (relating to Definitioos), the following words and

terms, when used in Chapter 116, Subchapter B, Divisions 5 and 6 of

this title (relating to Nonattainment Review Permits and Prevention of

Significant Deterioration Review); and Chapter 116. Subchapter C. Division I ofthis title (relating to Plant-Wide Applicability Limits). have

the following meanings, unless the context clearly indicates otherwise.

(1) Actual emissions--Actual emissions as of a particular

date are equal to the average rate, in tons per year. at which the unit

actually emitted the pollutant during the 24-month period that precedes the particUlar date and that is representative of normal source

operation, except that this definition shall not apply for calculating

whether a significant emissions increase has occurred, or for establishing a plant-wide applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shall apply for this purpose.

The executive director shall allow the use of a different time period

upon a determination that it is more representative of nonnal source

operation. Actual emissions shall be calculated using the unit's actual

operating hours, production rates. and types of materials processed,

stored, or comhusted during the selected time period The executive

director may preswne that the source-specific allowable emissions for

the unit are equivalent to the actual emissions, e.g., when the allowable

limit is reflective of actual emissions. For any emissions unit that has

not begun normal operations on the particular date, actual emissions

shall equal the potential to emit ofthe unit on that date.

35 TexReg 7704 August 27,2010 Texas Register

(2) Allowable emissions--The emissions rate of a stationary source, calculated using the maximwn rated capacity ofthe source

(unless the source is subject to federally enforceable limits that restrict

the operating rate. or hours of operation, or both), and thc most stringent ofthe following:

(A) the applicable standards specified in 40 Code of

Federal Regulations Part 60 or 61;

(B) the applicable state implementation plan emissions

limitation including those with a future compliance date; or

(C) the emissions rate specified as a federally enforceable pennit condition inCluding those with a future compliance date.

(3) Baseline actual emissions--The rate of emissions, in

tons per year, of a federally regulated new source review pollutant.

(A) For any existing electric utility steam generating

unit, baseline actual emissions means the average rate. in tons per year,

at which the unit actually emitted the pollutant during any consecutive

24-month period selected by the owner or operator within the five-year

period immediately preceding when the owner or operator begins actual construction ofthe project. The executive director shall allow the

use of a different time period upon a determination that it is more representative of normal source operation.

(8) For an existing facility (other than an electric utility steam generating unit), baseline actual emissions meansthe average

rate, in tons per year, at which the facility actually emitted the pollutant during any consecutive 24-month period selected by the owner or

operator within the ten-year period immediately preceding either the

date the owner or operator begins actual construction ofthe project, or

the date a complete permit application is received for a permit. The

rate shall be adjusted downward to exclude any emissions that would

have exceeded an emission limitation with which the major stationary

source must currently comply with the exception ofthose required under 40 Code ofFederal Regulations Part 63, had such major stationary

source been required to comply with such limitations during the consecutive 24-month period.

(C) For a new facility, the baseline actual emissions for

purposes ofdetermining the emissions increase that will result from the

initial construction and operation ofsuch unit shall equal zero; and for

all other purposes during the first two years following initial operation,

shall equal the unit's potential to emit.

(D) The actual~rate shall be adjusted downward

to exclude any non-eompHant emissions that oceurred during the consecutive 24-month period. For each regulated new source review pollutant, when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline actual

emissions for the facilities being changed. A different consecutive 24-

month period can be used for each regulated new source review pollutant. The average rate shall not be based on any consecutive 24-month

period for which there is inadequate information for determining annual emissions, in tons per year. and for adjusting this amount. Baseline emissions cannot occur prior to November 15, 1990.

(E) The actual average emissions rate shall include

fugitive emissions to the extent quantifiable. Until March I, 2016,

emissions previously demonstrated as emissions events or historically

unauthorized and subject to reporting [eMeffiflted] under Chapter 101

of this title (relating to General Air Quality Rules) shall [may] be

included to the extent that they have been authorizedh 6f ere heiRg

a\:lth6ri2ea].
(4) Basic design parameters-For a process unit at a steam

electric generating facility, the owner or operator may select as its baw

sic design parameters either maximum hourly heat input and maximum

hourly fuel consumption rate or maximum hourly electric output rate

and maximum steam flow rate. When establishing fuel consumption

specifications in tenns of weight or volume, the minimum fuel quality

based on British thennal units content shall be used for detennining the

basic design parameters for a coal-fired electric utility steam generating unit. The basic design parameters for any process unit that is not

at a steam electric generating facility are maximum rate offuel or heat

input, maximum rate of material input, or maximum rate of product

output. Combustion process units will typically use maximum rate of

fuel input For sources having multiple end products and raw materials,

the owneror operatorshall considerthe primary product or primary raw

material when selecting a basic design parameter. The owner or operap

tor may propose an alternative basic design parameter for the source's

process units to the executive director ifthe owner or operator believes

the basic design parameter as defined in this paragraph is not approa

priate for a specific industry or type of process unit. Ifthe executive

director approves of the use of an alternative basic design parameter,

that basic design parameter shall be identified and compliance required

in a condition in a pennit that is legally enforceable.

(A) The owner or operator shall use credible infonnaw

tion, sucb as results ofhistoric maximum capability tests, design inforw

mation from the manufacturer, or engineering calculations, in establishing the magnitude ofthe basic design parameter.

(B) If design infonnation is not available for a process

unit, the owner or operator shall detennine the process unit's basic design parameter(s) using the maximum value achieved by the process

unit in the five-year period inunediately preceding the planned activity.

(C) Efficiency of a process unit is not a basic design

parameter.

(5) Begin actual construction-pIn general, initiation of

physical on-site construction activities on an emissions unit that are

of a pennanent nature. Sueh activities inelude, but are not limited

to. installation of building supports and foundations, laying of underground pipework, and construction of pennanent storage structures.

With respect to a change in method of operation" this tenn refers to

those on·site activities other than preparatory activities that mark the

initiation of the change.

(6) Building, structure, facility, or installation-All of the

pollutantwemitting activities that belong to the same industrial group-

.ing, are loeated in one or more contiguous or adjacent properties, and

are under the control of the same person (or persons under common

control). Pollutant-emitting activities are considered to be part of the

same industrial grouping ifthey belong to the same "major group" (i.e.,

that have the same two-digit code) as described in the Standard lndusw

trial Classification Manual, 1972, as amended by the 1977 supplement.

(7) Clean coal technology.aAny technology, including

technologies applied at the precombustion, combustion, or post-coma

bustion stage, at a new or existing facility that will achieve significant

reductions in air emissions of sulfur dioxide or oxides of nitrogen

associated with the utilization of coal in the generation of electricity,

or process steam that was not in widespread use as of November 15,

1990.

(8) Clean coal technology demonstration project-A

project using funds appropriated under the heading "Department of

EnergyaClean Coal Technology," up to a total amount of 52.5 billion

for commercial demonstration of clean coal technology, or similar

projects funded through appropriations for the United States Environmental Protection Agency. The federal contribution for a qualifying

project shall be at least 20% of the total cost of the demonstration

project.

(9) Commence-·As applied to construction of a major stationmy source or major modification, means that the owner or operator

has all necessary preconstruction approvals or pennits and either has:

(A) begun, or caused to begin, a continuous program

of actual on·site construction ofthe source, to be completed within a

reasonable time; or

(B) entered into binding agreements or contractual oblip

gations, which cannot be canceled or modified without substantial loss

to the owner or operator, to undertake a program ofactual construction

ofthe source to be completed within a reasonable time.

(10) Construction--Any physical change or change in the

method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a

change in actual emissions.

(11) Contemporaneous period--For major sources the period between:

(A) the date that the increase from the particular change

occurs; and

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

particular change commences.

(12) De minimis threshold test (netting)-A method of detennining if a proposed emission increase will trigger nonattaimnent

or prevention of significant deterioration review. The summation of

the proposed project emission increase in tons per year with all other

creditable source emission increases and decreases during the contem·

poraneous period is compared to the significant level for that pollutant.

Ifthe significant level is exceeded. then prevention ofsignificant deterioration and/or nonattainment review is required.

(13) Electric utility steam generating unit-Any steam elec·

tric generating unit that is constructed for the purpose of supplying

mOre than one·third of its potential electric output capacity and more

than 25 megawatts electrical output to any utility power distribution

system for sale. Any steam supplied to a steam distribution system for

the purpose ofproviding steam to a steam-electric generatorthat would

produce electrical energy for sale is ineluded in detennining the electrical energy output capaeity ofthe affected facility.

(14) Federally regulated new source review pollutant-As

defined in subparagraphs (A) - (D) ofthis paragraph:

(A) any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors

for such pollutants identified by the United States Environmental Pro·

tection Agency;

(B) any pollutant that is subject to any standard promulgated under Federal Clean Air Act (FCAA), §III;

(C) any Class 1or II substance subject to a standard promulgated under or established by FCAA, Title VI; or

(0) any pollutant that otherwise is subject to regulation

under the FCAA; except that any or all hazardous air pOllutants either

listed in FCAA, §1l2 or added to the list under FCAA, §1l2(b)(2),

which have not been delisted under FCAA, § 112(b)(3), are not regulated new source review pollutants unlessthe listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant

listed under FCAA, §I08.

PROPOSED RULES August 27, 2010 35 TexReg 7705
(15) Lowest achievable emission rateaaFor any emitting faa

cility, that rate of emissions of a contaminant that does not exceed the

amount allowable under applicable new source performance standards

promulgated by the United States Environmental Protection Agency

under 42 United States Code, §74l1, and that rcflecls the following:

(A) the most stringent emission limitation that is contained in the rules and regulations of any approved state implementation plan for a specific class or category offacility, unless the owner or

operator ofthe proposed facility demonstrates that such limitations are

not achievable; or

(B) the most stringent emission limitation that is

achieved in practice by a specific class or category of facilities,

whichever is more stringent.

(16) Major facility-Any facility that emits or has the poa

tential to emit] 00 tons per year or more ofthe plant~wide applicability

limit (PAL) pollutant in an attainment area; or any facility that emits or

has the potential to emit the PAL pollutant in an amount that is equal

to or greater than the major source threshold for the PAL pollutant in

Table 1 of this section for nonattainment areas.

(17) Major stationary source--Any stationary source that

emits, or has the potential to emit, a threshold quantity of emissions

or more of any air contaminant (including volatile organic compounds

(VOCs) for which a national ambient air quality standard has been issued. The major source thresholds are identified in Table] ofthis seca

tion for nonattainment pollutants and the major source thresholds for

prevention of significant deterioration pollutants are identified in 40

Code ofFederal Regulations (CFR) §51.166(b)(I). A source that emits,

or has the potential to emit a federally regulated new source review pollutant at levels greater than those identified in 40 CFR §51.l66(b)(I)

is considered major for all prevention ofsignificant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen

oxides is considered to be major for ozone. The fugitive emissions of

a stationary source shall not be included in detennining for any ofthe

purposes of this definition whether it is a major stationary source, unless the souree belongs to one ofthe categories of stationary sources

listed in 40 CFR §51.165(a)(I)(iv)(C).

(18) Major modifieation--As follows.

(A) Any physical ehange in, or change in the method of

operation of a major stationary source that causes a significant project

emissions increase and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary source

that is not major prior to the increase, the increase by itselfmust equal

or exeeed that specified for a major source. At an existing major staa

tionary source, the increase must equal or exceed that specified for a

major modification to be significant The major source and significant

thresholds are provided in Table I ofthis section for nonattainment pollutants. The major source and significant thresholds for prevention of

significant deterioration pollutants are identified in 40 Code ofFederal

Regulations §51.l66(b)(1) and (23), respectively.

Figure: 30 TAC §1I6.12(18)(A) (No change.)

(B) A physical change or ehange in the method of operation shall not include:

{lj routine maintenance, repair, and replacement;

m) use of an alternative fuel or raw material hy reason ofan order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by

reason ofa natural gas curtailment plan under the Federal Power Act;

(iiI) use of an alternative fuel by reason of an order

or rule of 42 United States Code, §7425;

35 TexReg 7706 AuguYl 27,2010 Texas Register

(iv) use of an alternative fuel at a steam generating

unit to the extent that the fuel is generated from municipal solid waste;

(v) use of an alternative fuel or raw material by a

stationary source that the source was capable ofaccommodating before

December 21, 1976 (unless such change would be prohibited under any

federally enforceable permit condition established after December 21,

1976) or the source is approved to use under any permit issued under

regulations approved under this chapter;

(vi) an increase in the hours of operation or in the

production rate (unless the change is prohibited under any federally

enforceable permit condition that was established after December 21,

1976);

(vii) any change in ownership at a stationary source;

(viii) any changc in emissions ofa pollutant at a site

that occurs under an existing plant-wide applicability limit;

(Ix) the installation, operation, cessation, or removal

of a temporary clean coal technology demonstration project, provided

that the project complies with the state implementation plan and other

requirements necessary to attain and maintain the national ambient air

quality standard during the projeet and after it is terminated;

(x) for prevention ofsignificant deterioration review

only, the installation or operation ofa permanent clean coal technology

demonstration projeet that constitutes re-powering, provided that the

project does not result in an increase in the potential to emit of any

regulated pollutant emitted by the unit. This exemption shall apply on

a pollutant-by-pollutant basis; or

(xi) for prevention of significant deterioration review only, the reaetivation of a elean coal-fired electric utility steam

generating unit.

(19) Necessary preconstruetion approvals or permits-Those permits or approvals required under federal air quality

control laws and regulations and those air quality control laws and

regulations that are part of the applicable state implementation plan.

(20) Net emissions inerease--The amount by which the

swn ofthe following exceeds zero: the projeet emissions inerease plus

any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases.

Baseline actual emissions shall be used to determine emissions increases and decreases.

(A) An increase or decrease in emissions is creditable

only ifthe following conditions are met:

(I) it occurs during the contemporaneous period;

(ii) the executive director has not relied on it in issua

ing a federal new source review pennit for the source and that permit

is in effect when the increase in emissions from the particular change

occurs; and

(iii) in the case of prevention ofsignificant deterioration review only, an increase or decrease in emissions ofsulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only ifit is reqUired to be

considered in calculating the amount ofmaximwn allowable increases

remaining available.

(B) An increase in emissions is creditable ifit is the result of a physical change in, or change in the method ofoperation of a

stationary source only to the extent that the new level of emissions exceeds the baseline actual emission rate. Emission increases at facilities

under a plant~wide applicability limit are not creditable.
(C) A decrease in emissions is creditable only to the ex~

tent that all of the following conditions are met:

(i) the baseline actual emission rate exceeds the new

level of emissions:

(ii) it is federally enforceable at and after the timc

that actual constnJction on the particular change begins;

(iii) the executive director has not relied on it in issuing a prevention ofsignificant deterioration or a nonattainment permit;

(iv) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the

increase from the particular change; and

(v) in the case ofnonattainment applicability analy~

sis only, thc state has not relied on the decreasc to demonstrate attain~

ment or reasonable further progress.

(D) An increase that results from a physical change at a

source occurs when the emissions unit on whicb construction occurred

becomcs operational and begins to emit a particular pollutant. Any

replacemcnt unit that requires shakedown becomes operational only

after a reasonable shakedown period, not to exceed 180 days.

(21) Offset ratio·-For the purpose of satisfying the

emissions offset reduction requiremcnts of 42 United States Code,

§7503(a)(I)(A), the emissions offset ratio is the ratio of total actual

reductions ofemissions to total emissions increases ofsuch pollutants.

The minimum offset ratios are included in Table I ofthis section under

the definition ofmajor modification. ]n order for a reduction to qualify

as an offset, it must be certified as an emission credit under Chapter

WI, Subchapter H, Division I or 4 of this title (relating to Emission

Credit Banking and [at] Trading; or Discrete Emission Credit Banking

and Trading), except as provided for in §1I6.J70(b) of this title

(relating to Applicability of Emission Reductions as Offsets). The

reduction must not have been relied on in the issuance of a previous

nonartainment or prevention ofsignificant deterioration permit.

(22) Plant·wide applicability limit-An emission limitation

cxpressed, in tons per year, for a pollutant at a major stationary source,

that is enforceable and established in a plant-wide applicability limit

pennit under §I I6.186 ofthis titlc (relating to General and Special Conditions).

(23) Plant-wide applicability limit effective date--The date

ofissuancc ofthe plant-wide applicability limit permit The plant.wide

applicability limit effectivc date for a plant~wide applicability limit es·

tab1ished in an existing flexible permit isthe date that the flexiblc pennit

was issued.

(24) Plant-wide applicability limit major modification-Any physical change in, or change in the method of operation

of the plant-wide applicability limit source that causes it to emit the

plant-wide applicability limit pollutant at a level equal to or greater

than the plant.wide applicability limit.

(25) Plant·wide applicability limit pennit-The new soW'Ce

review permit that establishes the plant-wide applicability limit.

(26) Plant-wide appliCability limit pollutant••Thc pollutant

for which a plant-wide applicability limit is cstablished at a major sta·

tionary source.

(27) Potential to emit--Thc maximum capacity ofa stationary source to emit a pollutant under its physical and operational design.

Any physical or enforceable operational limitation on the capacity of

the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on thc type or

amount ofmaterial combusted, stored, or processed, may be treated as

part ofits design only if the limitation or the effect it would have on

emissions is federally enforceable. Secondary emissions, as defined

in 40 Code of Federal Regulations §S1.16S(a)(I)(viii), do not count in

determining the potential to emit for a stationary souree.

(28) Project net--The sum of the following: the project

emissions increase, minus any sourcewide creditable emission de·

creases proposed at the source between the date of application for

the modification and the date the resultant modification begins emitting. Baselinc actual emissions shall be used to detennine emissions

increases and decreases. Increases and decreases must meet the cred·

itability criteria listed under the definition of net emissions increase in

this section.

(29) Projected actual emissions··The maximum annual

rate, in tons per year, at which an existing facility is projected to

emit a federally regulated new source review pollutant in any rolling

12-month period during the five years following the datc the facility

resumcs regular operation after the project, or in anyone of the ten

ycars following that date, if the project involves increasing the facil·

ity's design capacit)' or its potential to emit that federally regulated

new source review pollutant ]n detennining the projected actual

emissions, the owner or operator ofthc major stationary source shall

include unauthorized emissions from startup and shutdown activities:

and fugitive emissions to the extent quantifiable..;. and shall consider

illrelevant infonnation, including, but not limited to, historical

operational data, the company's own representations. the company's

expected business activity and the company's highest projections

of business activity, the company's filings with the state or federal

regulatory authorities, and compliance plans under the approved state

implementation plan.

(30) Project emissions increase··Thc sum ofemissions in·

creascs for each modified or affected facility determined using the following methods:

(A) for cxisting facilitics, the difference between the

projected actual emissions and the baseline actual cmissions. ]n calculating any increase in emissions that results from the project, that

portion of the facility's emissions following the project that the facil·

ity could have accommodated during the consecutive 24-month period

used to establish the baseline actual emissions and that are also unre·

lated to the particular project, including any increased utilization due

to product demand growth may be excluded from the project emission

increase. Thc potential to emit from the facility following completion

ofthe project may be used in lieu ofthe projected actual emission rate;

and

(B) for new facilities, the difference between the poten·

tial to emit from the facility following completion of the project and

the baseline actual emissions.

(31) Replacement facility--A facility that satisfies the fol·

lowing criteria:

(A) the facility is a reconstructed unit within the meaning of 40 Code of Federal Regulations §60.IS(b)(I), or the facility replaces an existing facility;

(B) the facility is identical to or functionally equivalent

to the replaced facility;

(C) the replacement does not alter the basic design parameters ofthe process unit;

(0) the replaced facility is pennanently removed from

the major stationary source, otherwise permanently disabled, or permancntly barred from operation by a penni! that is enforceable. lfthe

replaced facility is brought hack into operation, it shall constitute a

PROPOSED RULES August 27,2010 35 TexReg 7707
SUBCHAPTER B. NEW SOURCE REVIEW

PERMITS

DIVISION 1. PERMIT APPLICATION

30 TAC §116.115, §116.127

STATUTORY AUTHORITY

The amendment and new section are proposed under Texas

Water Code (TWC), §5.102, concerning General Powers, which

provides the commission with the general powers to carry out its

duties under the TWC; TWC, §5.1 03, concerning Rules, which

authorizes the commission to adopt rules necessary to carry out

its powers and duties under the TWC; TWC, §5.105, concerning

General Policy, which authorizes the commission by ruie to

new facility. No creditable emission reductions shall be generated from

shutting down the existing facility that is replaced. A replacement fa.

cility is considered an existing facility for the purpose of detennining

federal new source review applicability.

(32) Secondary emissions··Emissions that would occur as

a result of the construction or operation of a major stationary source

or major modification, but do not come from the source or modifica.

tion itself. Secondary emissions must be specific, well·defincd, quan·

tifiable, and impact the same general area as the stationary source or

modification that causes the secondary emissions. Secondary emis·

sions include emissions from any off·site support facility that would

not be constructed or increase its emissions, except as a result ofthe

construction or operation ofthe major stationary source or major mod.

ification. Secondary emissions do not include any emissionsthat come

directly from a mobile source such as emissions from the tail pipe ofa

motor vehicle, from a train, or from a vessel.

(33) Significant facility--A facility that emits or has the potential to emit a plant·wide applicability limit (PAL) pollutant in an

amount that is equal to or greater than the significant level for that PAL

pollutant.

(34) Small facility-.A facility that emits or has the potential

to emit the plant-wide applicability limit (PAL) pollutant in an amount

less than the significant level for that PAL pollutant.

(35) Stationary source--Any building, structure, facility, or

installation that emits or may emit any air pollutantsubjectto regulation

under 42 United States Code, §§7401 et seq.

(36) Temporary clean coal technology demonstration

project·-A clean coal technology demonstration project that is oper.

ated for a period offive years or less, and that complies with the state

implementation plan and other requiremcnts necessary to attain and

maintain the national ambient air quality standards during the project

and after it is tenninated.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office ofthe Secretary of State on August 13, 2010.

TRD-201004714

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Ear1iest possible date of adoption: September 26, 2010

For futther information, please call: (512) 239-0177

• • •

establish and approve all general policy of the commission;

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 and new section are proposed

under THSC, §382.002, concerning Policy and Purpose, which

establishes the commission's purpose to safeguard the state's

air resources, consistent with the protection of pubiic health,

general welfare, and physical properly; THSC, §382.011,

concerning General Powers and Duties, which authorizes the

commission to control the quality of the state's air; and THSC,

§382.012, concerning State Air Control Plan, which authorizes

the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC,

§382.016, concerning Monitoring Requirements; Examination

of Records, which authorizes the commission to prescribe

reasonable requirements for measuring and monitoring the

emissions of air contaminants from a source.or from an activity

causing or resulting in the emission of air contaminants; THSC,

§382.021, concerning Sampling Methods and Procedures,

which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of

and compliance with the commission's rules; THSC, §382.040,

concerning Documents; Public Properly, which provides that all

infonTlation, documents, and data collected by the commission

in perfonTling its duties are state properly; THSC, §382.051,

concerning Permitting Authority of Commission; Ruies, which

authorizes the commission to issue permits for construction

of new facilrties or modifications to existing faciiities that may

emit air contaminants; THSC, §382.0511, concerning PenTlit

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512,

concerning Modification of Existing Facility, which prescribes

how the commission will evaluate modifications of existing

facilities; THSC, §382.0513, concerning PenTlrt Conditions,

which authorizes the commission to estabiish and enforce

penTlit condrtions; THSC, §382.0514, concerning Sampling,

Monitoring, and Certification, which authorizes the commission

to require sampiing and monitoring of a penTlilled federal source

or facility; THSC, §382.0515, concerning Application for PenTlit,

which specifies penTlrt application requirements; and THSC,

§382.0518, concerning Preconstruction PenTlit, which authorizes the commission to issue preconstruction permits. The

amendment and new section are also proposed under Federal

Clean Air Act (FCAA), 42 Unrted States Code (USC), §§7401, et

seq., which requires states to submit state implementation plan

revisions that specify the manner in which the national ambient

air quality standard will be achieved and maintained within each

air quality control region of the state.

The proposed amendment and new section implement THSC,

§§382.002, 382.011, 382.012, 382.016, 382.017, 382.021,

382.040, 382.051, 382.0511, 382.0512, 382.0513, 382.0514,

and 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et

seq.

§II 6. II5. General and Special Conditions.

(a) General and spccial conditions. Pennits, special pennits,

standard pennits, and special exemptions may contain general and special conditions.

(b) General conditions. Holders of pennits, special pennits,

standard pennits, and special exemptions shall comply with the following:

35 TexReg 7708 August 27,2010 Texas Register
(l) the general conditions contained in the permit document if issued or amended prior to August 16, 1994; or

(2) the following general conditions ifthe pennit or amendment is issued or amended on or after August 16, 1994, regardless of

whether they are specifically stated within the permit document.

(A) Report of eonstrnction progress. The permit holder

shall report start of construction, construction interruptions exceeding

45 days. and completion of construction. The report shall be given

to the appropriate regional office of the commission not later than 15

working days after occurrence of the event.

(B) Start-up notification.

(i) The permit holder shall notify the appropriate air

program regional office ofthe commission prior to the commencement

of operations of facilities authorized by the permit. The notifica.

tion must be made in such a manner as to allow a representative ofthe

commission to be present at the commencement ofoperations.

(if) lbe permit holder shall provide a separate notification for the commencement of operations for each unit of phased

construction, which may involve a series of units commencing operations at different times.

(iii) Prior to operation ofthe facilities authorized by

the permit. the permit holder shall identify to the Office ofPermirting[;

Remediaasft,l and Registration the source or sources of allowances to

bc utilized for compliance with Chapter 101, Subchapter H, Division 3

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

(C) Sampling requirements.

(i) If sampling is required, the permit holder shalI

contact the commission's Office ofCompliance and Enforcement prior

to sampling to obtain the proper data forms and procedures.

(ii) All sampling and testing procedures must be ap.

proved by the executive director and coordinated with the regional representatives ofthe commission.

(iii) The permit holder is also responsible for pro~

viding sampling facilities and conducting the sampling operations or

contracting with an independent sampling consultant.

(D) Equivalency of methods. The permit holder must

demonstrate or otherwise justify the equivalency of emission control

methods, sampling or other emission testing methods, and monitoring

methods proJX>sed as alternativesto methods indicated in the conditions

ofthe pennit. Alternative methods shall be applied for in writing and

must be reviewed and approved by the executive director prior to their

use in fulfilling any requirements ofthe permit.

(E) Recordkeeping. The permit holder shall:

(i) maintain a copy ofthe permit along with records

containing the infonnation and data sufficient to demonstrate compliance with the permit, including production records and operating hours;

(ii) keep aU required records in a file at the facility

site. If, however, the facility site normally operates unattended, records

must be maintained at an office within Texas having day-to-day oper.

ational control ofthe facility site;

(iii) make the records available at the request ofpersonnel from the commission or any local air pollution control agency

having jurisdiction over the site. Upon request, the commission shall

make any such records ofcompliance available to the public in a timely

manner;

(iv) comply with any additional recordkeeping requirements specified in special conditions attached to thc permit;

(v) retain information in the file for at least two years

following the date that the information or data is obtained; and

(vi) for persons certifying and registering a federally·enforceable emission limitation in accordance with §116.611 of

this title (relating to Registration To Use a Standard Permit), retain all

records demonstrating compliance for at least five years.

(F) Maximum allowable emission rates. lbe total emissions of air contaminants from any of the sources of emissions must

not exceed the values stated on the table attached to the pennit cntitled

"Emission Sources--Maximum Allowable Emission Rates." Emissions

that exceed the maximum allowable emission rates are not authorized

and are a violation of the permit.

(G) Maintenance ofemission control. The permitted fa~

cilities shall not be operated unless all air pollution emission capture

and abatement equipment is maintained in good working order and operating properly during nonnal facility operations. The permit holder

shall provide notification for emissions events and maintenance in accordance with §§101.201, 101.211, and 101.221 ofthis title (relating to

Emissions Event Reporting and Recordkeeping Requirements; Sched·

uled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements; and Operational Requirements).

(H) Compliance with rules.

(i) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the pennit holder will

comply with all rules, regulations. and orders ofthe commission issued

in confonnity with the Texas Clean Air Act [+GAA-] and the conditions

precedent to the granting of the permit.

(ii) Ifmore than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or con·

dition shall govern and be the standard by which compliance shall be

demonstrated.

(iii) Acceptance includes consent to the entrance of

commission employecs and agents into the permitted premises at rea·

sonable times to investigate conditions relating to the cmission or con·

centration of air contaminants, including compliance with the permit.

(c) Special conditions. The holders of permits, special per.

mits, standard permits, and special exemptions shall comply with all

special conditions contained in the permit document

(1) Special conditions may be attached to a permit that are

more restrictive than the requirements ofTitlc 30 ofthe Texas Administrative Code.

(2) Special condition for written approval.

(A) The executive director may require as a special con·

dition that the permit holder obtain written approval before construct·

ing a source under:

(i) a standard pennit under Subchapter F of this

chapter (relating to Standard Permits); or

(ii) an exemption under Chapter 106 ofthis title (re~

latiog to Permits by Rule).

(B) Such written approval may be required ifthe executive director specifically finds that an increase ofa particular pollutant

could either:

(i) result in a significant impact on the air environ·

ment; or

PROPOSED RULES August 27,2010 35 TexReg 7709
ill the calculated actual annual emissions.

The owner or operator ofthe facility shall make the information required to be documented and maintained by this section available for review upon request for inspection by the executive director,

local air pollution control program. and the general public.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office olthe Secretary of State on August 13, 2010.

TRD-201004718

Robert Martinez

Diredor, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 26,2010

For further infonnation, please call: (512) 239-0177

30 TAC §1l6.121

(Editor s note: The text ofthe following section proposed for repeal

will not be published. The section may be examined in the offices ofthe

Texas Commission on Environmental Quality or in the Texas Register

office, Room 245, James Earl Rudder Building, 1019 Brazos Street,

Austin, Texas.)

STATUTORY AUTHORITY

The repeal is proposed under Texas Water Code (TWC),

§5.102, conceming General Powers, which provides the commission with the general powers to carry out its duties under

the TWC; TWC, §5.103, conceming RUles, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; TWC, §5.105, conceming General

Policy, which authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas

Health and Safety Code (THSC), §382.017, conceming Rules,

which authorizes the commission to adopt rules consistent with

the poiicy and purposes of the Texas Clean Air Act. The repeai

is also proposed under THSC, §382.002, conceming Policy

and Purpose, which establishes the commission's purpose to

safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property;

THSC, §382.011, conceming General Powers and Duties, which

authorizes the commission to control the quality of the stale's

air, and THSC, §382.0'2, concerning State Air Control Plan,

which authorizes the commission to prepare and develop a

general, comprehensive plan for the proper control of the state's

air; THSC, §382.016, concerning Monitoring Requirements;

Examination of Records, which authorizes the commission to

prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an

activity causing or reSUlting in the emission of air contaminants;

THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling

methods and procedures to be used in detennining violations of

and compliance with the commission's rules; THSC, §382.040,

conceming Documents; Public Property, which provides that all

infonnation, documents, and data collected by the commission

in perfonning its duties are state property; THSC, §382.051,

conceming Pennilling Authority of Commission; Ruies, which

authorizes the commission to issue pennits for construction

of new facilities or modifications to existing facilities that may

emit air contaminants; THSC, §382.0511, conceming Pennit

(ii) cause the facility to become subject to review

under:

(I) Subchapter C ofthis chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §ll2(g), 40 CFR Part 63»; or

(II) the provisions in Division 5 ofthis subchapter !ill~.UO_ill~.UJ eflltistille] (relating to NonatlainmentReview Pennits) and Division 6 ofthis subchapter [§§ 116.160--l-J-6.:..l.&3-

ef tftis. tiHe] (relating to Prevention of Significant Deterioration Review).

€II 6. 127. Actual to Projected Actual and Emissions Exclusion Test

for Emissions.

Ifprojected actual emissions are used or emissions are ex·

cluded from the emission increase resulting from the project, the owner

or operator shall document and maintain a record ofthe following in·

ronnation before beginning construction. and this infonnation must be

provided as part ofthe notification. certification, registration, or application submitted to the executive director to claim or apply for state

new source review authorization for the project. Ifthe emissions unit

is an existing electric utility steam generating unit. the owner or operator shall provide a copy ofthis infonnation to the executive director

before beginning actual construction:

ill a description ofthe pro;ect;

ill identification of the facilities of which emissions of a

federally regulated new source review pollutant could be affected by

the project; and

ill a description ofthe applicability test used to detennine

that the project is not a major modification for any pollutant. including the baseline actual emissions, the projected actual emissions. the

amount ofemissions excluded from the project emissions increase and

an explanation for why such amount was excluded. and any netting calculations, if applicable.

ill If projected actual emissions are used to detennine the

project emission increase at a facility, the owner or operator shall

monitor the emissions of any regulated new source review pollutant

that could increase as a result ofthe project at that facility and calculate

and maintain a record of the annual emissions from that facility. in

tons per year. on a calendar year basis for:

ill a period offive years following resumption of regular

operations after the change; or

ill a period of ten years following resumption of regular

operations after the change ifthe project increases the design capacity

or potential to emit ofthat regulated new source review pollutant at that

facility.

If the facility is an electric utility steam generating unit.

the owner or operator shall submit a report to the executive director

within 60 days after the end of each calendar year of which records

must be maintained documenting the unit's annual emissions during

the calendar year that preceded submission ofthe report.

@ Ifthe facility is not an electric utility steam generating unit,

the owner or operator shall submit a report to the executive director if

the annual emissions from the project exceed the baseline actual emis·

sions by a significant amount for that pollutant and the emissions exceed the preconstruction projection for any facility. The report shall be

submitted to the executive director within 60 days after the end ofeach

calendar year. The report shall contain:

ill the name, address, and telephone number of the major

stationary source; and

35 TexReg 7710 August 27,2010 Texas Register

• • •
SUBCHAPTER C. PLANT-WIDE

APPLICABILITY LIMITS

DIVISION 1. PLANT-WIDE APPLICABILITY

LIMITS

30 TAC §§1l6.180, 116.182, 116.186, 116.188, 116.190,

116.192

STATUTORY AUTHORITY

The amendments are proposed under Texas Vllater Code

(TWC), §5.102, conceming General Powers, which provides the

commission with the general powers to carry out its duties under

the TWC; TWC, §5.103, conceming RUles, which authoTizes

the commission to adopt nules necessary to carry out its powers

and duties under the TWC; TWC, §5.105, conceming General

Policy, which authorizes the commission by nule to establish and

approve all general policy of the commission; and under Texas

Health and Safety Code (THSC), §382.017, conceming Rules,

which authoTizes the commission to adopt rules consistent wtth

the policy and purposes of the Texas Clean Air Act. The amendments are also proposed under THSC, §382.002, concerning

Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resounces, consistent w~ the

Consolidation and Amendment, which authorizes the commission to consolidate vaTious authoTizations; THSC, §382.0512,

conceming Modification of Existing Facility, which prescribes

how the commission will evaluate modifications of existing

facilities; THSC, §382.0513, conceming Pe""~ Conditions,

which authorizes the commission to establish and enlonce

pe""~ cond~ions; THSC, §382.0514, concerning Sampling,

Monitoring, and Certification, which authorizes the commission

to require sampling and monitoTing of a pe""itted federal source

or facility; THSC, §382.0515, concerning Application lor Pe""it,

which specifies pe""it application requirements; and THSC,

§382.0518, conceming Preconstnuction Pe""~, which authorizes the commission to issue preconstruction permits. The

repeal is also proposed under Federal Clean Air Act (FCAA),

42 United States Code (USC), §§7401, et seq., which requires

states to submit state implementation plan revisions that specify

the manner in which the national ambient air quality standard

will be achieVed and maintained w~in each air quality control

region of the state.

The repeal implements THSC, §§382.002, 382.011, 382.012,

382.016, 382.017, 382.021, 382.040, 382.051, 382.0511,

382.0512, 382.0513, 382.0514, 382.0515, and 382.0518, and

FCAA, 42 USC, §§7401 et seq.

§JJ6.J2J. Actual to Projected Actual and Emissions Exclusion Test

for Emissions increases.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be w~hin the agency's legal authority to adopt.

Filed with the Office olthe Secretary of State on August 13, 2010.

TRD-201004715

Robert Martinez

Oiredor, Environmental Law Division

Texas Commission on Environmental Quality

Ear1iest possible date of adoption: September 26, 2010

For further infonnation, ptease call: (512) 239-0177

• • •

protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties,

which authorizes the commission to control the quality of the

state's air; and THSC, §382.012, conceming State Air Control

Plan, which authoTizes the commission to prepare and develop a

general, comprehensive plan for the proper control of the state's

air; THSC, §382.016, conceming MonitoTing Requirements;

Examination of Records, which authoTizes the commission to

prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an

activity causing or resulting in the emission of air contaminants;

THSC, §382.021, conceming Sampling Methods and Procedures, which authorizes the commission to prescribe sampling

methods and procedures to be used in dete""ining violations of

and compliance with the commission's rules; THSC, §382.040,

concerning Documents; Public Property, which provides that all

inlo""ation, documents, and data collected by the commission

in perfo""ing its duties are state property; THSC, §382.051,

conceming Pe""itling AuthoTity of Commission; Rules, which

authorizes the commission to issue pennits for construction

of new facilities or modifications to existing facilities that may

emit air contaminants; THSC, §382.0511, conceming Pe""tt

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512,

conceming Modification of Existing Facility, which prescribes

how the commission will evaluate modifications of existing

faciiities; THSC, §3B2.0513, conceming Pe""tt Conditions,

which authoTizes the commission to establish and enforce

pe""it conditions; THSC, §382.0514, concerning Sampling,

MonitoTing, and Certification, which authoTizes the commission

to require sampling and monitoTing of a pe""itled federal sounce

or facility; THSC, §382.0515, conceming Application for Pe""it,

which specifies pe""it application requirements; and THSC,

§3B2.0518, concerning Preconstruction Pe""it, which authonzes the commission to issue preconstnuction pe""its. The

amendments are also proposed under Federal Clean Air Act

(FCAA), 42 Untted States Code (USC), §§7401, et seq., Which

requires states to submtt state implementation plan revisions

that specify the manner in Which the national ambient air quality

standard will be achieved and maintained within each air quality

control region of the state.

The proposed amendments implement THSC, §§382,002,

382.011, 382,012, 382.016, 382.017, 382.021, 382.040,

382.051,382.0511,382.0512,382.0513,382.0514,382.0515,

and 382.0518, and FCAA, 42 USC, §§7401 etseq,

§JJ6. J80. Applicability.

(a) The following requirements apply to a plant-wide applicability limit (PAL) permit.

(1) Only one PAL may be issued for each pollutant at an

existing major stationary source [-eeeeum site].

(2) A PAL pennit may include more than one PAL.

(3) A PAL pennit may not cover facilities or emissions

units at more than one existing major stationary source.

(4) A PAL pennit may be consolidated with a new source

review permit at the existing major stationary source.

ill A PAL pennit can be issued only for an existing major

stationary source; it may not be issued for a new major stationary source

as defined in 40 Code of Federal Regulations §51.165(iv)(A).

(b) The new owner of a major stationary source shall comply

with §1l6,1l0(e) ofthis title (relating to Applicability), provided that

PROPOSED RULES August 27,2010 35 TexReg 7711
all facilities or emissions units covered by a PAL pennit change ownership at the same time and to the same person, or both the new owner

and existing pennit holder must obtain a PAL pennit alteration allocating the emission prior to the transfer ofthe permit by the commission.

After the sale of a facility or emissions unit h6f faei.J1ties], but prior to

the transfer of a pcnnit requiring a pennit alteration, the original PAL

pennit holder remains responsible for ensuring compliance with the existing PAL pennit and all rules [BBtlfegulatisas] ofthe commission.

(c) The owner of the facility, emissions unit, group offaciLities, or account or the operator ofthe facility, emissions unit group of

facilities, or account that is authorized to act for the owner is responsible for complying with this section, except as provided by subsection

(b) ofthis section.

§116.182. Plant-wide Applicability Limit Permit Application.

Any application for a new plant-wide applicability limit (pAL) permit

or PAL permit amendment must be completed and signed by an authorized representative. In order to be granted a PAL permit or PAL

permit amendment, the owner or operator ofthe proposed facility shall

submit information to the commission that demonstrates that all ofthe

following information is submitted:

(I) a list of all facilities or emissions units at a major stationary source. including their registration or pennit number to be included in the PAL, their potential to emit, and the expected maximum

capacity. In addition, the owner or operator ofthe source shall indicate

which, if any, federal or state applicable requirements, emission limitations, or work practices apply to each unit;

(2) calculations of the baseline actual emissions with supporting documentation;

(3) the calculation procedures that the pennit bolder proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month roHing total for eacb

month; and

(4) thc monitoring and recordkeeping proposed satisfy thc

requirements of §116.186 ofthis title (relating to General and Special

Conditions) for each PAL.

§116.186. General and Special Condilions.

(a) The plant-wide applicability limit (pAL) will impose an annual emission limitation in tons per year, that is enforceable for all facilities or emissions units at a major stationary source that are included in

the PAL. For eacb month during the PAL effective period after the first

12 months ofestablishing a PAL, the major stationary source owner or

operator shall demonstrate that the sum ofthe monthly emissions from

each facility under the PAL for the previous 12 consecutive months

is less than the PAL (a 12-month average, rolled monthly). For each

month during the first II months from the PAL effective date, the major

stationary source owner or operator shall demonstrate that the sum of

the preceding monthly emissions from the PAL effective date for each

facility under the PAL is less than the PAL. Each PAL must include

emissions of only one pollutant The PAL must include all emissions,

including fugitive emissions, to the extent quantifiable, from all facilities or emissions units at a major stationary source included in the PAL

that emit or have the potential to emit the PAL pollutant

(b) The following general conditions are applicable to every

PAL pennit

(1) AppLicability. This section does not authorize any facility to emit air pollutants but establishes an annual emissions level

below which new and modified facilities or emissions units will not be

SUbject to federal new source review for that pollutant.

35 TexReg 7712 August 27, 2010 Texas Register

(2) Sampling requirements. If sampling of stacks or

process vents is required, the PAL pennit hOlder shall contact the

commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data fonns and procedures. All sampling

and testing procedures must be approved by the executive director and

coordinated with the appropriate regional office of the commission.

The PAL pennit holder is also responsible for providing sampling

facilities and conducting the sampling operations or contracting with

an independent sampling consultant.

(3) Equivaleney of methods. The permit holdet shall

demonstrate the equivalency of emission control methods, sampling

or other emission testing methods, and monitoring methods proposed

as alternativcs to mcthods indicated in the cOnditions of the PAL

pennit. Alternative methods must be applied for in writing and must

be reviewed and approved by the executive director prior to their use

in fulfilling any requirements of the pennit.

(4) Recordkecping and reporting.

(A) A copy of the PAL pennit along with infonnation

and data sufficient to demonstrate continuous compliance with the

emission caps contained in the PAL permit must be maintained in a

file at the plant site and made available at thc request of personnel

from the commission Or any air pollution control program having

jurisdiction. For facilities that normally operate unattended.. this

information must be maintained at the nearest staffed location \\ithin

Texas specified by the pennit holder in the pennit application. This

infonnation must include, but is not limited to, emission cap and

individual emission limitation calculations based on a 12~month

rolling basis and production records and operating hours. Additional

recordkceping requirements may be specified in special conditions

attached to the PAL permit.

(B) The owner or operatorshall retain a copy ofthe PAL

permit application and any applications for revisions to the PAL, each

annual certification ofcompliance under §122.146 ofthis title (relating

to Compliance Certification Terms and Conditions), and the data relied

on in certifying the compliance for the duration ofthe PAL plus five

years.

(C) A semiannual report shall be submitted to the executive director within 30 days of the end of each reporting period that

contains:

(i) the identification of owner and operator and the

pennit number;

(ii) total annual emissions (in tons per year) based

on a 12-month rolling total for each month in the reporting period;

(Ui) an data relied upon, including, but not limited

to, any quality assurance or quality control data, in calculating the

monthly and annual PAL pollutant emissions;

(i1/) a list of any facilil)' modified or added to the

major stationary source during the preceding six-month period;

(1/) the number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with

zero and span calibration checks), and any corrective action taken. This

may be satisfied by referencing the PAL permit number in the semiannual report for the site submitted under §122.l45 of this title (relating

to Reporting Terms and Conditions);

(vi) a notification of a shutdown of any monitoring

system, whether the shutdown was permanent ortemporary, the reason

for the shutdown, the anticipated date that the monitoring system will

bc fully operational or replaced with another monitoring system, and

whether the emissions unit monitored by the monitoring system con-
tinued to operate, and the calculation ofthe emissions ofthe pollutant

or the number detennined by method included in the permit; and

(vii) a signed statement by the responsible official1

as defined in §122.10 ofthis title (relating to General Definitions), certifying the truth, accuracy, and completeness of the information provided in the report.

(D) The owner or operator shall submit the results of

any revalidation test or method to the executive director within three

months after completion ofsuch test or method.

(5) Maintenance of emission control. The facilities covered by the PAL permit will not be operated unless all air pollution

emission capture and abatement equipment is maintained in good

working order and operating properly during normal facility operations.

(6) Compliance with roles. Acceptance of a PAL permit

by a permit applicant constitutes an acknowledgment and agreement

that the holder will comply with all rules and orders ofthe commission

issued in conformity with the Texas Clean Air Act and the conditions

precedent to the granting ofthe permit. Ifmore than one state or federal

rule or PAL permit condition is applicable, the most stringent limit or

condition will govern and be the standard by which compliance must be

demonstrated. Acceptance includes consent to the entrance ofconunission employees and agents into the permitted premises at reasonable

times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the PAL permit.

(7) Effective period. A PAL is effective for ten years.

(8) Absence ofmonitoring data. A source owner or operator shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for

a facility during any period oftime that there is no monitoring data, unless another method for determining emissions during such periods is

specified in the PAL permit special conditions.

m Monitoring system requirements. Failure to use a monitoring system that meets the requirements ofthis section is a violation

of the PAL penniL

ill!l [t'ltl Revalidation. All data used to establish the PAL

pollutant must be revalidated through performance testing or other scientifically valid means approved by the executive director. Such testing

must occur at least once every five years after issuance ofthe PAL.

llll [t+9)] Renewal. Ifa PAL renewal application is submitted to the executive director in accordance with §116.196 of this

title (relating to Renewal of a Plant-wide Applicability Limit Pennit),

the PAL shall not expire at the end ofthe PAL effective period. It shall

remain in effect until a renewed PAL permit is issued by the executive

director or the application is voided.

(c) Each PAL pennit must include special conditions that satisfy the following requirements.

ill For the purposes of this subchapter. the definitions of

the following terms are the same as those provided in 40 Code ofFederal Regulations §51.165.

ill Continuous emission monitoring system (CEMS).

lID. Continuous emissions rate monitoring system

(CERMS).

1Q Continuous parameter monitoring system fCPMS).

@ Predictive emissions monitoring system cPEMS).

ill [fB] The PAL monitoring system must accurately detennine all emissions of the PAL pollutant in terms of mass per unit

oftime. Any monitoring system authorized for use in the PAL permit

must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. [Adtlmsflally, fhe

iBfeffilllaofl gefterB:tetl by -e mttSl meet miBimWR.Jeg&l i'eqtiifemefttsfer. admissibility-HtajuEliet&lpFeeeediflgte eBfefeetlteFAh

jlOffftit.]

ill [~] The PAL monitoring system must employ one or

more of the general monitoring approacbcs meeting the minimum requirements as described in subparagraphs (A) - (D) ofthis paragraph.

(A) An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating

or solvents shall meet the following requirements:

(0 provide a demonstrated means of validating the

pUblished content ofthe PAL pollutant that is contained or created

by, all materials used in or at the facility;

(ii) assume that the facility emits all ofthe PAL pollutant that is contained in, or created by, any raw material orfuel used in

or at the facility, ifit cannot otherwise be accounted for in the process;

and

(iii) where the vendor of a material or fuel that is

used in or at the facility publishes a range ofpollutant content from such

material, the owner or operator shall use the highest value ofthe range

to calculate the PAL pollutant emissions unless the executive director

determines that there is site-specific data or a site-specific monitoring

program to support another content within the range.

(8) An owner or operator using a CEMS [ee:mimteu.s

emissieft menitefiBg ~fG£:M&}] to monitor PAL pollutant emissions shall meet the following requirements.

(i) The CEMS must comply with applicable performance specifications found in 40 Code ofFederal Regulations Part 60,

Appendix B.

(ii) The CEMS must sample, analyze, and record

data at lcast every 15 minutes while the emissions unit is operating.

(C) An owner or operator using CPMS [eantinu.otts,af&fft£!tef mOflitoriBg {GPMSt] or PEMS [pfetlieti. e emissioft

m6flitofleg (PEMSt] to monitor PAL pollutant emissions shall

meet the following requirements.

(i) The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and thc PAL pollutant emissions across the range of

operation ofthe facility.

(ii} Each CPMS or PEMS must sample, analyze, and

record data at least every 15 minutes or at another less frequent interval

approved by the executive director, While the facility is operating.

(0) An owner or operator using emission factors to

monitor PAL pollutant emissions shall meet the following requirements.

(i) All emission factof5 must be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the

factof5' development.

(ii) The facility must operate within the designated

range ofuse for the emission factor, if applicable.

(iii) Iftechnically practicable, the owner or operator

of a significant facility that relies on an emission factor to calculate

PAL pollutant emissions shall conduct validation testing to determine a

PROPOSED RULES August 27, 2010 35 TexReg 7713
site-specific emission factor within six months ofPAL permit issuance,

unless the executive director determines that testing is not required.

(E) An alternative monitoring approach must meet the

requirements in paragraph (I) of this subsection and be approved by

the executive director.

ffi [~] Where an owner or operator of a facility cwmot

demonstrate a correlation between a monitored parameter(s) and the

PAL pollutant emissions rate at all operating points ofthe facility, the

executive director shall:

(A) establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably

estimated at such operating point(s); or

(B) determine that operation ofthe facility during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation ofthe PAL.

§ IJ6. J88. Plant-wide Applicability Limil.

The plant-wide applicability limit (PAL) is the sum ofthe baseline actual emissions of the PAL pollutant for each existing facility at the

source to be covered. The allowable emission rate may be used for

facilities that did not exist in the baseline period. Baseline actual emissions from facilities that were permanently shut down after the baseline

period must be subtracted from the baseline emissions rate.

(1) An amount equal to the applieable significant level for

the PAL pollutant may be added to the baseline actual emissions when

establishing the PAL.

(2) When establishing the PAL level fnr a PAL pollutant,

only one consecutive 24-month period must be used to determine the

baseline actual emissions for all existing facilities. However, a different consecutive 24-month period may be used for each different PAL

pollutant.

(3) The executive director shall specify a reduced PAL

level{s) in the PAL permit, to become effective on the future compliancc date{s) of any applicable federal or state regulatory requirement

[,eq.iremeRt(.)].

§JJ6.190. Federal Nonattainment and Prevention ofSignificant Deterioration Review.

(a) An increase in emissions from operational or physical

changes at a facility or emissions unit at a major stationary source covered by a plant-wide applicability limit (PAL) pennit is insignificant,

for the purposes offederal new source review under this subChapter, if

the increase does not exceed the PAL.

(b) At no time are emissions reductions ofa PAL pollutant that

occur during the PAL effective period creditable as decreases for purposes of offsets, unless the level ofthe PAL is reduced by the amount

ofsuch emissions reductions and such reductions would be creditable

in the absence ofthe PAL.

(c) A physical or operational change not causing an exceedance of a PAL is not subject to federal restrictions on relaxing

enforeeabJe emission limitations to avoid new source review.

§J16.192. Amendments and Alterations.

(a) Any increase in a plant-wide applicability limit(PAL) must

be made through amendment Amendment applications must also include the information identified in §116.182 of this title (relating to

Plant-wide Applicability Limit Pcrmit Application) for new and modified facilities contributing to the increase in emissions so as to cause

the major stationary source's emissions to equal or exceed its PAL and

are subject to the public notice requirements under §116.194 ofthis title (relating to Public Notice and Comment).

35 TexReg 7714 August 27,2010 Texas Register

(I) As part ofthis application, the major stationary source

owner or operator shall demonstrate that the sum ofthe baseline actual

emissions of the small facilities, plus the sum of the baseline actual

emissions of the significant and major facilities assuming application

of best available control technology (BACT) equivalent controls, plus

the sum of the allowable emissions of the new or modified facilities

exceeds the PAL. The level of control that would result from BACT

equivalent controls on each significant or major facility shall be determined by conducting a new BACT analysis at the time the application

is submitted, unless the facility is currently required to comply with

a BACT or lowest achievable emission rate (LAER) requirement that

was established within the preceding ten years. In such a case, the assumed control level for that emissions unit shall be equal to the level of

BACT or LAER with which that emissions unit must currently comply.

(2) The owner or operatorshall obtain a federal new source

review permit for all facilities eontributing to the increase in emissions

so as to cause the major stationary source's emissions to equal or exceed

its PAL, regardless ofthe magnitude ofthe emissions increase. These

facilities shall comply with any emissions requirements resulting from

the major new source review process.

(3) The PAL permit shall require that the increased PAL

level be effective on the day any emission unit that is part of the PAL

major modification becomes operational and begins to emit the PAL

pollutant.

(4) The new PAL shall be the sum ofthe allowable emissions for each modified or new facility, plus the sum of the baseline

actual emissions ofthe significant and major emissions units after the

application ofBACT equivalent controls as identified in paragraph (I)

ofthis subsection, plus tbe sum ofthe baseline actual emissions ofthe

small emissions units.

(b) Changes to PAL permits that do not require the PAL to be

increased must be completed through pennit alteration. Unless allowed

in the PAL pennit special conditions, the pennit holder shall submit an

alteration request prior to start of construction for physical modifications to facilities or installation of new facilities under the PAL. Approval must be received from the executive director prior to start of

operation of the facilities if the cmissions from the new or modified

facilities may exeeed 100 tons per year.

f£l Acceptance of a PAL pennit is agreement by the pennit

holder for the executive director to reopen the PAL permit consistent

with the requirements of §116.194 ofthis title for any actions in paragraphs (1) or (2) ofthis subsection.

ill During the PAL effective period. the executive director

shall reopen the PAL permit to:

@ correct typographical or calculation errors made in

setting the PAL or reflect a more aceurate detennination of emissions

used to establish the PAL;

1ID. decrease the PAL limit the owner or operator of

the major stationary source creates creditable emissions reductions

that meet the requirements of 40 Code of Federal Regulations (CFR)

§51.165(a)(3)(ii) for use as offsets; and

!Q revise the PAL to reflect an increase in the PAL provided the owner or operator complies with the requirements of40 CFR

§52.2I(aa)(ll).

ill During the PAL effective period. the executive director

may reopen the PAL permit for the following:

@ revise the PAL to reflect newly applicable federal

requirements (for example. New Source Performance Standards) with

compliance dates after the PAL effective date;
.ill2 revise the PAL to be consistent with any other rep

quirement, that is enforceable as a practical matter. and that the State

may impose on the major stationary source under the state Implemenp

tation Plan; or

19 reduce the PAL if the reviewing authority deterp

mines that a reduction is necessary to avoid causing or contributing

to a National Ambient Air Quality Standard or Prevention of Significant Deterioration increment violation. or to an adverse impact on an

air quality related value that has been identified for a Federal Class I

area by a federal land manager and for which infonnation is available

to the general public.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of Stale on August 13, 2010.

TRD-z01004717

Robert Martinez

Diredor, Environmental Law DMslon

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 26,2010

For further information, please call: (512) 239~0177

SUBCHAPTER F. STANDARD PERMITS

30 TAC §1l6.601, §1l6.617

STATUTORY AUTHORITY

The amendments are proposed under Texas waler Code

(TWC), §5.102, conceming General Powers, which provides the

commission wijh the general powers to carry out its duties under

the TWC; TWC, §5.103, conceming RUles, which authorizes

the commission to adopt rules necessary to carry out its powers

and duties under the TWC; TWC, §5.105, conceming General

Policy, which authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas

Health and Safety Code (THSC), §382.017, conceming RUles,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the Texas Clean Air Act. The amendments are also proposed under THSC, §382.002, conceming

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

protection of public health, general welfare, and physical property; THSC, §382.011, conceming General Powers and Duties,

which authorizes the commission to control the quality of the

stale's air; and THSC, §382.012, conceming State Air Control

Plan, which authorizes the commission to prepare and develop a

general, comprehensive plan for the proper control of the stale's

air, THSC, §382.016, concerning Monitoring Requirements;

Examination of Records, which authorizes the commission to

prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an

activity causing or resulting in the emission of air contaminants;

THSC, §382.021, conceming Sampling Methods and Procedures, which authorizes the commission to prescribe sampling

methods and procedures to be used in detennining violations of

and compliance with the commission's rules; THSC, §382.040,

conceming Documents; Public Property, which provides that all

infonnation, documents, and data collected by the commission

in perfonning its duties are stale property; THSC, §382.051,

concemlng Pennilting Authority of Commission; Rules, which

• • •

authorizes the commission to issue permits for construction

of new facilities or modifications to existing facilities that may

emit air contaminants; THSC, §382.0511, conceming Pennit

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512,

concerning Modification of Existing Facility, which prescribes

how the commission will evaluate modifications of existing

facllijies; THSC, §382.0513, concerning Pennit Conditions,

which authorizes the commission to establish and enforce

pennit conditions; THSC, §382.0514, conceming Sampling,

Monitoring, and Certification, which authorizes the commission to require sampling and monijoring of a pennitted federal

source or facility; THSC, §382.0515, conceming Application

for Pennit, which specifies pennit application requirements;

THSC, §382.0518, concerning Preconstruction Pennit, which

authorizes the commission to issue preconstruction permits;

and THSC, §382.05195, conceming Standard Penni!. which

authorizes the commission to issue a standard permit for new or

existing similar facilities. The amendments are also proposed

under Federal Clean Air Act (FCAA), 42 Unijed States Code

(USC), §§7401, et seq., which requires states to submij stale

implementation plan revisions that specify the manner in which

the national ambient air quality standard will be achieved and

maintained within each air qualijy control region of the state.

The proposed amendment implements THSC, §§382.002,

382.011, 382.012, 382.016, 382.017, 382.021, 382.040,

382.051, 382.0511, 382.0512, 382.0513, 382.0514, 382.0515,

382.0518, and 382.05195, and FCAA, 42 USC, §§7401 et seq.

§1l6.601. Types afStandard Permits.

(a) For the purposes ofthis chapter a standard pennit is either:

(1) one that was adopted by the commission in accordance

with Texas Government Code, Chapter 2001, Subehapter B, into this

subchapter [§§116.611, """ afthis title (reIllliftg t&

StoOOafd Pefmits. fef Pelhttien G6fltf&I. PFejeets; blstallatiea -8ftEIIef.

~fedifieatietl ef 00 aBEl Gas Faeilities; mtd Menieipal: SeHe Waste

Landfill,)]; or

(2) one that is issued by the commission in accordance with

§116.603 of this title (relating to Public Partieipation in Issuance of

Standard Permits).

(b) Any standard permit in this SUbchapter adopted by the

commission shall remain in effect until it is repealed under the APA.

Ifany adopted standard pennit is repealed and replaced, facilities may

continue to be authorized until the date of registration required by

subsection (e) ofthis section.

(c) A registration to use a standard pennit adopted by the comp

mission in this subchapter shall be renewed by the applicant under the

requirements of§1] 6.604 ofthis title (relating to Duration and Renewal

ofRegistrations to use Standard Permits) by the tenth anniversary ofthe

date ofthe original registration.

(d) If. standard permit in this subchapter adopted by the commission is repealed and replaced, with no changes, by a standard pennit

issued by the commission, any existing registration to use the repealed

standard pennit will be automatically converted to a registration to use

the new standard permit, ifthe facility continues to meet the requirements. An automatically converted registration to use astandard pennit

shall be renewed by the applicant under the requirements of §116.604

ofthis title by thc tenth anniversary ofthc date ofthe new registration.

(e) Ifa standard permit adopted by the commission in this subchapter is repealed and replaced with a standard pennit issued by the

commission, and the requiremcnts ofthc standard pennit are changed

PROPOSED RULES August 27,2010 35 TexReg 7715
in the process, persons registered to use the repealed standard permit

shall register to use the issued standard permit by the later of either

the deadline established in the issued standard permit, or the tenth anniversary ofthe original registration. The commission shall notify, in

writing, all persons registered to use the repealed standard permit of

the date by which a new registration must be submitted. Persons not

wishing to register for the issued standard permit shall have the option

of applying for or qualifying for other applicable authorizations in this

chapter or in Chapter 106 ofthis title (relating to Exemptions from Permitting).

§116.617. State Pollution Control Project Standard Permit.

(aJ Scope and applicability.

(1) lbis standard permit applics to pollution control

projects undertaken voluntarily or as required by any governmental

standard, that reduce or maintain currently authorized emission rates

for facilities authorized by a permit, standard permit, or permit by rule.

(2) The project may ioclude:

(A) the installation or replacement ofemissions control

equipment;

(8) the implementation or change to control teChniques;

or

(C) the substitution of compounds used in manufacturing processes.

(3) This standard permit must not be used to authorize the

installation of emission control equipment or the implementation of a

control technique that:

(A) constitutes the complete replacement ofan existing

production facility or reconstruction of a production facility as defined

in 40 Code ofFede",! Regulations §60.IS(b)(1) and(c); or

(B) the executive director determines there are health

effects concerns orthe potential to exceed a national ambient air quality

standard criteria pollutant or contaminant that results from an increase

in emissions ofany air contaminant until those concerns are addressed

by the registrant to the satisfaction ofthe executive director; or

(C) returns a facility or group offacilitiesto compliance

with an existing authorization or permit unless authorized by the executive director.

(4) Priorto February 17,2011, [GaIy] ocw or modified pollution control projects must meet the conditions ofthis standard permit.

All previous standard permit registrations under this section that were

authorized prior to the effective date of this rule must include the increases and decreases in emissions resulting from those projects in any

future netting calculation and all other conditions must be met upon the

ten-year anniversary and renewal of the original registration, or until

administratively incorporated into the facilities' permit, if applicable.

ill Notwithstanding the requirements of 6116.604 of this

title (relating to Duration and Renewal of Registrations to Use Standard Permits), on or after February 17, 2011. no new or modified registrations will be accepted and no existing registrations will be renewed.

(b) General requirements.

(I) Any claim under this standard permit must comply with

all applicable conditions of:

(A) §1I6.604(1) and (2) of this title (relating to Duration and Renewal ofRegistrations to Use Standard Permits);

(8) §116.60S(d)(I) and (2) ofthis title (relating to Standard Permit Amendment and Revocation);

35 TexReg 7716 August 27,2010 Texas Register

(C) §116.61O ofthis title (relating to Applicability);

(D) §1I6.611 ofthis title (relating to Registration to Use

a Standard Permit);

(E) §1I6.614 of this title (relating to Standard Permit

Fees); and

(F) §1I6.61S of this title (relating to General Conditions).

(2) Construction or implementation ofthe pollution control

project must begin within 1S months of receiving written acceptance

ofthe registration from the executive director, with one IS-month extension available, and must comply with §1I6.lIS(b)(2) and §1I6.120

ofthis title (relating to General and Special Conditions and Voiding of

Pcrmits). Any changes to allowable emission rates authorized by this

section become effective when the project is complete and operation or

implementation begins.

(3) The emissions limitations of §116.61O(a)(I) ofthis title

do not apply to this standard permit.

(4) Predictable maintenance, startup, and shutdown emissions directly associated with the pollution control projects must be

included in the representations ofthe registration application.

(5) Any increases in actual or allowable emission rates or

any increase in production capacity authorized by this section (including increases associated with recovering lost production capacity) must

occur solely as a result ofthe project as represented in the registration

application. Any increases of production associated with a pollution

control project must not be utilized until an additional authorization is

obtained. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate, which may be

recovered and used without any additional authorization.

(c) Replacement projects.

(1) The replacement of emissions control equipment or

control technique under this standard permit is not limited to the

method of control currently in place, provided that the control or

technique is at Icast as effective as the current authorized method and

all other requirements ofthis standard permit are mct.

(2) The maintenance, startup, and shutdown emissions may

be increased above currently authorized Icvels if the increase is necessary to implement thc replacement project and maintenance, startup,

and shutdown emissions were authorized for the cxisting control equipment or technique.

(3) Equipment installed under this section is subject to all

applicable testing and recordkeeping requirements ofthe original control authorization. Altcrnate, equivalent monitoring, or records may be

proposed by the applicant for review and approval ofthe executive director.

(d) Rcgistration requirements.

(1) A registration must be submitted in accordance with the

following.

(A) ]f there are no increascs in authorized emissions

of any air contaminant resulting from a replacement pollution control

project, a registration must be submitted no later than 30 days aftcr

construction or implementation begins and the registration must be accompanied by a S900 fee.

(8) If a ncw control device or technique is authorized

or ifthere are increases in authorized emissions ofany air contaminant

resulting from thc pollution control project, a registration must be submitted no later than 30 days prior to construction or implementation.
The registration must be accompanied by a $900 fee. Construction or

implementation may begin only after:

(i) no written response has been received from the

executive director within 30 calendar days ofreceipt by the Texas Commission on Environmental Quality (TCEQ); or

(ii) written acceptance of the pollution control

project has been issued by the executive direetor.

(C) Ifthere are any changes in representations to a pre~

viously authorized pollution control project standard permit for which

there are no increases in authorized emissions ofany air contaminant, a

notification or letter must be submitted no laterthan 30 days after construction or implementation ofthe change begins. No fee applies and

no response will be sent from the executive direetor.

(D) Ifthere are any changes in representations to a previously authorized pollution control project standard permit that also

increase authorized emissions ofany air contaminant resulting from the

pollution control project, a registration alteration must be submitted no

later than 30 days prior to the start of construction or implementation

of the change. The registration must be accompanied by a $450 fee,

unless received within 180 days of the original registration approval.

Construction or implementation may begin only after:

(i) no written response has been received from the

executive direetor within 30 calendar days ofreceipt by the TCEQ; or

(ii) written acceptance of the pollution control

project has been issued by the executive direetor.

(2) The registration must inelude the following:

(A) a description of process units affected by the

project;

(B) a description ofthe project;

(C) identification ofexisting permits or registrations affeeted by the project;

(D) quantification and basis of increases and/or decreases associated with the project, including identification ofaffected

existing or proposed emission points, all air contaminants, and hourly

and annual emissions rates;

(E) a description of proposed monitoring and recordkeeping that will demonstrate that the project decreases or maintains

emission rates as represented; and

(F) 8 description ofhow the standard permit will be administratively incorporated into the .existing pennit(s).

(e) Operational requirements. Upon installation ofthe pollution control project, the owner or operator shall comply with the requirements of paragraphs (I) and (2) ofthis subsection.

(l) General duty. The owner or operator must operate the

pollution control project in a manner consistent with good industry and

engineering practices and in such a way as to minimize emissions of

collateral pollutants. within the physical configuration and operational

standards usually associated with the emissions control device, strategy, or technique.

(2) Recordkeeping. The owner or operator must maintain

copies on site ofmonitoring or other emission records to prove that the

pollution control project is operated consistent with the requirements

in paragraph (1) of this subsection, and the conditions ofthis standard

permit.

(f) Incorporation ofthe standard permit into the facility authorization.

(1) Any new facilities or changes in method or control or

technique authorized by this standard permit instead ofa permit amendment under §116.110 ofthis title (relating to Applicability) at a previously pennitted or standard permitted facility must be incorporated into

that faeility's pennit when the pennit is amended or renewed.

(2) All increases in previously authorized emissions, new

facilities, or changes in method of control or technique authorized by

this standard pennit for facilities previously authorized by a pennit by

rule must comply with §106.4 ofthis title (relating to Requirements for

Permitting by Rule), except §I 06.4(8)(1) ofthis title, and §106.8 ofthis

title (relating to Recordkeeping).

This agency hereby certilies that the proposal has been reviewed

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

Filed with the Office olthe Secretary 01 Slate on August 13, 2010.

TRD-201004716

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Eartiest possible date of adoption: September 26, 2010

For further information, please call: (512) 239-01n

•• •

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 12. TEXAS BOARD OF

OCCUPATIONAL THERAPY

EXAMINERS

CHAPTER 362. DEFINITIONS

40 TAC §362.1

The Texas Board 01 Occupational Therapy Examiners proposes

an amendment to §362.1, concerning Definitions. The amendment will add a new definition lor Continuing Competency which

will be used in the rules, especially in the continuing education

chapter. The amendment also restores the alphabetic listing 01

the definitions.

John P. Maline, Executive Director 01 the Executive Council 01

Physical Therapy and Occupational Therapy Examiners, has determined that lor the first five-year period the rule is in ellect there

will be no fiscal implications lor state or local government as a

result 01 enlorcing or administering the rule.

Mr. Maline also has determined that lor each year 01 the first five

years the rule is in elle~ the public benefit anticipated as a result

01 enlorcing the rule will be the improved general understanding

lor practitioners. There will be no ellect on small businesses, and

no economic cost to persons having to comply is anticipated.

Comments on the proposed rule may be submitted to Augusta Gelfand, OT Coordinator, Texas Board 01 Occupational Therapy Examiners, 333 Guadalupe St, Suite 2-510,

Austin, Texas 76701, (512) 305-6900, or through email: augusta.gelfand@mail.capnet.state.tx.us

The amendment is proposed under the Occupational Therapy

Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code,

which provides the Texas Board 01 Occupational Therapy ExamPROPOSED RULES August 27,2010 35 TexReg 7717
Bryan W. Shaw, Ph.D, Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein. Commissioner

Marie. R. Vickery, P.G., E:csclltfve Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

P1"oteeting Te;;r.as by Reducing and Preve11tillg Pollution

NOTICE OF A PUBUC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTER116

. AND TO TIlE STATE IMPLEMENTATION PLAN

The Texas Corn.mission on Environmental Quality (commission) will conduct a public hearing to

receive testimony concerning proposed amendments to 30 TAC Chapter 116, Control of·Air

Pollution by Permits for New Construction or Modification; and corresponding revisions to the

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

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

Regulations §Sl.102 of the United States Environmental Protection Agency (EPA) regulations

concerning SIPs.

The revisions to the SIP would also include the withdrawal from EPA consideration as revisions

to the SIP of §§116.121, 116.400, 116.402, 116.404 and 116.406 as adopted by the commission on

January 11, 2006, effective on February 1, 2006.

The proposed amended, repealed, and new rules address issues identified by the EPA in its

September 23, 2009, proposed disapproval notice. Specifically, those concern definitions

related to and other changes to the Plant-Wide Applicability Limit (PAL) rules to meet federal

requirements, including the conditions for reopening PAL permits. The rulemaking would also . amend the standard permit rule for Ponution Control Projects. The rulemaking would also

include removing obsolete references and making non-substantive administrative changes.

The coIllIIlisSion will hold a public hearing on this proposal in Austin on SePtember 20, 2010, at

10:00 a.m. in Building E, Room 2015, at the commission's ceIitral office located at 12100 Park

35 Circle. The hearing will be structured for the receipt of oral or written comments by

interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may

present oral statements when called upon in order of registration. 1'he):'e will be no open

discussion during the hearingj however, commission staff members will be available to

informally discuss the proposal 30 minutes before the ·hearing Persons who have special

communication or other accommodation needs who are planning to attend the hearing should

contact Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as

far in advance as posSlble. .

Comments may.be submitted to Patricia Duron, MC 205, Office of Legal Services, Texas

Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to

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

http.Y/WWW5.tceq.state.t:x.us/rules!ecomm.ents. File size restrictions may apply to comments

submitted through the eComments system. All comments should reference Rule Project

Number 2010-008-116-PR..The comment period closes September 27, 2010. Copies of the

proposed rules can be obtained from the commissi!)n's Web site at

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

contact Blake Stewart, Air Permits Division, (512) 239-6931.

Issued inAustin, Texas, on August 11, 2010.

P.O. Box 13087 • Austin, Texas 78711-3087 •. 512-239-1000 • www.tceq.5tatC.tx.us

How is our customer service? www.tceq.snrte.tx.uslgotolcustomasurvey

prillwd ............
WRITTEN AND 

ORAL TESTIMONY 
Reference Number

W-I

W-2

W-3

INDEX OF WRITTEN TESTIMONY

Submitted By

An individual citizen

Texas Industry Project

United States Environmental Protection Agency
09/09/2010 03:15 PM

First Name: Zoe

Last Name: Nance

Company/Organization:

E-mail Address:

Street Address:

City:

State: TX

Zip Code: 76226

Phone Number:

Fax Number:

Rule: 20l0-008-ll6-PR

Comments:

Any and all existing permits and drill/well/ccf/anything to do with oil and gas

should be held accountable to the new guidelines that are currently being

written. Nothing, I repeat nothing should be grandfathered in.

It's our safety, or livelihood, and our health that TCEQ is responsible for.

And being one that suffers from health related illness related to existing pad

sites, etc. There should be no reason anybody is grandfathered in.

Otherwise, I won't get well. The same guys who are polluting now, that are

making me sick, will be allowed to continue as is, continuing my inability to

live a healthy life.

Thanks,

Zoe Nance

W-l
W-2

ABU OHABI

AUSllN

BEUING

DAllAS

DlJBAJ

HONG~ONG

HOUSTON

LONDON

MDSCON

NEWYOR~

PAlO AlTO

RIYADH

WASHINGTON Kathleen E. Weir

TEL +1 713.229.21 OB

FAX +1 71 3. 229.790B

kathleen.weirObakerboltJ.c:om

TEL +1713.229.1234

FAX +1713.229.1522

WIH'W. bak.erbolt~.com

ONE SHm PlAZA

910 LOUiSiANA

HOUSTON, IDAS

77002-4995

September 27, 2010

005580,0135

BY ELECTRONIC FILING

BAKER Bons UP

Ms. Patricia Duron, MC 205

Office of Legal Services

Texas Commission on Environmental Quality .

P.O. Box 13087

Austin, Texas 78711-3087

Re: Comments on proposed Rule Project No. 20I0-008-116-PR

Dear Patricia:

The Texas Industry Project ("TIP") appreciates the opportunity to provide

comments on Texas Commission on Environmental Quality's proposed revisions to the New

Source Review ("NSR") Refonn rules, TIP is comprised of 62 companies in the chemical,

refining, oil and gas, electronics, forest products, tenninal, electric utility, and transportation

industries with operations in Texas. TIP's comments are attached.

For further infonnation, please do not hesitate to contact me.

HOU02: 1210092.1
TEXAS INDUSTRY PROJECT

COMMENTS ON TCEQ's NSR REFORM REVISIONS

SEPTEMBER 27, 2010

RULE PROJECT No. 2010-008-116-PR

The Texas Industry Project ("TIP") appreciates the opportunity to provide

comments on Texas Commission on Environmental Quality's ("TCEQ") proposed revisions to

the New Source Review (''NSR'') Reform rules. TIP is comprised of 63 companies in the

chemical, refining, oil and gas, electronics, forest products, terminal, electric utility, and

transportation industries with operations in Texas.'

I. Summary

TIP supports revisions and clarifications to the NSR Reform rules that further the

goal of a fully federally-approved set ofregulations. TIP objects, however, to several portions of

the proposed revisions that are not needed to address EPA's concerns with the current program.

TIP's objections are detailed below.

II. Comments on Proposed Revisions

A. PAL Revisions

1. EPA's Concerns are Squarely Addressed

The proposed revisions to 30 Texas Administrative Code §§ 116.1 80, 116.1 82,

116.186, 116.192 clearly address EPA's stated bases for disapproving the existing NSR Reform

TIP members participating in these comments are: Albemarle COrPoration, ArI<ema Inc., Ascend

Perfonnance Materials LLC, BASF CorPOration, BP, Celanese Chemicals, Ltd., CenterPoint Energy Houston

Electric, LLC, Chevron COrPoration, Chevron Phillips Chemical Company LP, CITGO Petroleum COrPOration,

ConocoPhillips, DCP Midstream, LLC, Degussa Engineered Carbons, LP, Delek Refining Ltd., Dixie Chemical

Company, Inc., Dow Chemical Company, The Dynegy Inc., Eagle Rock Energy, Eastman Chemical Company, E. I.

Du Pont de Nemours & Company, Entergy Texas, EnterPrise Products Operating LLC, Exelon Power Texas,

ExxonMobil Chemical Company, Firestone Polymers, LLC, GB Biosciences COrPoration, Halliburton Company,

Huntsman COrPOration, INEOS NOVA LLC, Intercontinental Terminals Company, International Paper Company,

International Power, Kinder Morgan Liquids Tenninals, LLC, LANXESS COrPoration, LBC Houston, LP, Lyondell

Chemical Company, Marathon Petroleum Company LLC, MeadWestvaco COrPOration, Merisol USA, L.L.C., NRG

Texas Power LLC, Odfjell Terminals (Houston) LP, Oiltanking Holding USA, Inc., Pasadena Refining System, Inc.,

PL Propylene, Praxair, Inc., Rohm and Haas Texas, InCOrPorated, Shell Oil Company, Shintech, Inc., Sterling

Chemicals, Inc., Stolthaven Houston Inc., Suez Energy North America, TARGA, Temple-Inland Inc., Texas

Instruments InCOrPorated, TPC Group, Total Petrochemicals USA, Inc., Union Pacific Railroad Company, Valero

Energy COrPOration, Vopak Logistics North America, Inc., Western Refining Co., L.P.

W-2

HOU02, 1209809.4 1
Plant-wide Applicability Limit ("PAL") rules? EPA listed the following as its reasons for

disapproving the existing Texas PAL rules:

• The submittal lacks a provision that limits applicability of a PAL only to an

existing major stationary source.

• The submittal has no provisions that relate to PAL re-openings as required by

federal PAL regulations.

• There is no mandate that failure to use a monitoring system that meets the

requirements ofthe PAL rules renders the PAL permit invalid.

• The Texas submittal at 30 TAC 116.186 provides for an emissions cap that

may not account for all ofthe emissions of a pollutant at the major stationary

source.

• The submittal failed to include specific monitoring definitions for continuous

emissions monitoring systems ("CEMS"), continuous emissions rate

monitoring system ("CERMS"), continuous parameter monitoring system

("CPMS"), and predicative emissions monitoring system ("PEMS").

In response to these concerns, TCEQ has proposed the following revisions:

• Revised § 116.180(a)(5) to restrict the issuance of PAL permits to existing

stationary sources.

• Revised § 116.192 to provide for PAL permit re-openings.

• Revised § 116.186(b)(9) to state that the failure to use a monitoring system

required by the PAL rules renders the PAL permit invalid

• Revised § 116.1 86(c)(I) to incorporate by reference the federal definitions of

CEMS, CERMS, CPMS, and PMS found in 40 CFR § 51.166.

TCEQ has clearly addressed all of EPA's concerns in these proposed revisions.

Moreover, the existing regulations clearly require all facilities that emit the PAL pollutant to be

included in the PAL permit. EPA's lack of clarity on whether the Texas rules allow for emission

caps that do not include all facilities at a major source therefore lacks a basis in the rules.

2. Monitoring Definitions

TIP supports TCEQ's efforts to address EPA's concerns regarding the inclusion

of definitions for monitoring systems. However, such revisions should be done in a way to

ensure consistency across TCEQ's rules.

W-2

2 See 75 Fed. Reg. 56,433 (Sept t5, 20tO).

HOU0212098094 2
The proposed definitions in § 116.186(c)(1) depart from the definitions for the

tenns found elsewhere in the Texas rules, including those found in Chapters 117 and 115.3 For

example, § 115.725 discusses "operational parameters" and establishment of operating limits for

selected parameters as an hourly average ofthe parameters. That provision requires installation

of a "continuous monitoring" (defined in Chapter liS general provisions) system to record the

parameters but it does not use the tenn "continuous parameter monitoring system" as defined in

this rule proposal. Section 117.140(h)(2) also refers to a "continuous monitoring system."

While Chapter 117 does not define the tenn "continuous monitoring system," it does define

CEMS and PEMS differently than the language proposed here in § 116.13.

TCEQ should align all substantive definitions of these tenns with existing

definitions to avoid inconsistency and confusion among various programs and portions of the

Texas rules. This could be best accomplished if TCEQ added the proposed definitions to the

general provisions ofChapter 101.

Alternatively, TCEQ could modify existing § I 16.1 86(2)(E) in the following way:

(E) An alternative monitoring approach must meet the requirements in paragraph

(1) of this subsection and be approved by the executive director. This includes

existing CEMS. CERMS. CPMS. and PEMS previously installed that do not

specifically conform to the definitions of 40 CFR § 51.166.

B. Proposed § 116.115(b)(2)(F)

TCEQ is proposing to amend § 116.115, which addresses special and general

conditions ofNSR pennits. Specifically, the proposed amendment to § 116.115(b)(2)(F) would

state:

(2) the following general conditions if the pennit or amendment is

issued on or after August 16, 2004, regardless of whether they are specifically

stated within the pennit document.

•••

(F) Maximum allowable emission rates. The total

emissions of air contaminants from any of the sources of emissions must

not exceed the values stated on the table attached to pennit entitled

"Emission Sources--Maximum Allowable Emission Rates." Emissions

that exceed the maximum allowable emission rates are not authorized

and are a violation ofthe permit.

The proposed revision is redundant of the existing rule language that immediately precedes it.

TIP is concerned that this revision and the SIP-approved provision of the general chapter 116

pennitting rules are unrelated to the NSR refonns, do not directly address one of EPA's stated

bases for disapproval of the NSR Refonn regulations, and open a new SIP gap on the base

program rules without a clearjustification. TIP recommends that this change be omitted.

See, e.g., 30 Tex. Admin. Code § 117.10(10).

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HOUQ212Q98Q9.4 3
C. Proposed Revisions to § 116.601

TCEQ proposes to amend § 116.60I, which addresses types ofstandard permits,

by revising subsection (a)(I) to read:

(a) For the purposes ofthis chapter a standard permit is either:

(I) one that was adopted by the commission in accordance with Texas

Government Code, Chapter 200 I, Subchapter B, into this subchapter

[§§116.617, 116.620, and 116.621 of this title (relating to Standard

Permits for Pollution Control Projects; Installation and/or Modification of

Oil and Gas Facilities; and Municipal Solid Waste Landfills)]

Section 116.601 is currently SIP-approved. By revising this subsection to remove

the references to §§ 116.617, 116.620, and 116.621 and replacing those references with "into this

subchapter," TCEQ is opening this section up to a SIP gap. TIP is concerned that this revision is

unrelated to the NSR reforms, does not directly address one of EPA's stated bases for

disapproval ofthe NSR Reform regulations, and opens a new SIP gap on the base program rules

without a clearjustification. TIP recommends that this change be omitted.

D. Proposed Revision to § 116.617

In the proposed revision to § 116.617, TCEQ would insert a provision that no

new registrations for pollution control project standard permits will be accepted under the

existing rules after February 17, 20 II.

The proposed revision to § 116.617 does not address the impact of EPA's

disapproval ofthe existing pollution control project standard permit for those regulated entities

that currently hold valid authorizations under the existing regulations. TCEQ shoUld, at

minimum, confirm in the preamble to this section its view of the status of current valid

authorizations under the existing standard permit.

III. Conclusion

TIP supports revisions and clarifications to the NSR Reform rules that further the

goal of a fully federally-approved set of regulations. TIP recommends that TCEQ ensure

consistency across the rules with regard to defining monitoring systems. TIP opposes the

proposed revision to § 116.115(b)(2)(F) as redundant to existing rule language. TIP also opposes

the proposed revision to § 116.601 as creating a potential SIP gap for what is a very small

revision. Finally, TIP recommends that TCEQ address the status of the authorizations for

pollution control project standard permits in light ofEPA's disapproval ofthe existing program.

......

W-2

HOU02,1209809.4 4
bflIEDSTA1hSMFIO,II1RltAL PR01'ECTlONA~

REGION. , 445lilOSS AVENUe. Sl./fIE121)0

OAU.M. iX 152Ol!-2133

W-3

SEP 2 7 2010

Ms. 'Patricia Duron

Office ofLegal Services (Me 205)

Texas Commission on Environmental Quality

P.O. Box 13081

Austin, T.'81n-3087

RE: EPA Cil/t!l11~on Rule Project Number 20 IO-D08-1 16-PR

Dear Ms. Duron:

'Ibadk you fur providiJIg US the opportunity to review and com:meaton.the

~RvisiODSto theprovisions.forNew.Sowce Review (NSR) Reforn1 at Texas A~Code (fAC) Title 36,CbapterIii;, Control ofAir PollutionbyPcrrilitli

for NC\¥Constructit:m or ModifiCllti<Ja 1"btse proposed Changes included amendmentsto

sectionsU6.12, 116.115,1160180,116.182, 116.IlUi.1I6.188, 116.190. HU92,

116.601, and1l6,6.1;~section116.12.7,and the repealOfseclion 116.121; andtbe

proposed~~to theT_~Jmpl~l'Jan(SIP). Texaswill

submitthe~~to section$ U~I2, U6.11s.JIU80. 116.182,

116.186, 116;188i H6.19Q, HUnaDIU16.{iOl; new~J16.127tothe

~ProtectiotlA.Pr(EPAlas~to~.S~."Tbis proposed

ruJe!nakjng revi$esthe provjsiQnsfqr NSRRefOtm1Q ~'tbeconcems identified in

oor~teQiOer.1'5, 20.IO.,wSliPPlovSofthe.J>rQgram(7SPRM4). . ,,' ", , .

p~n~iJurt these co~do~ CODStitutefiDa1~ODS concerning

approvability.¢the1'evisionsto the'f~~. We are providingibese co~to

assistTcsq in1be~1opmentof~~~.
We look.forward to working with the. TexlrsQmunissi0nOll!&viroslm~

Quality(TCEQ) lIS youmove forward inteSjil(md1ng tntbese con"'teni$and fi.wmIlg.the

revisionsto the Texas SIP. Ifyou have anyquestious,please callMr;·Stank',y M. Spruiell.

ofmy slatf8t(214) 665-7212. .

:Sincerely YOlJlli;

.~.>··.. ·~i.•••.•·.~;•...••..•.....• l~~:~

!homas H. Diggs .

A$8Qciate Directoiifot Air Programll

MultimediaP~and

Permitting Division

2
Enclosure

I. 30 'fAC 116.192(a)(1)aod (4) provide that for~~ in a PAL

source the owner or operatormost establish thePALassumof'baseline actulI1

emission from small facilities, plus the sum ofbaselislCl!CtUB1 emissions uQIn

Significant and lDl\iorfacilities 1lllSUD1ing applicationofBAcreguiva1ent .

controlt, plusthe sum ofthe allowable emissions ofnew andlllOdified faci1iti~.

Because 1h\sisbased1p)n lIkderal requirement at i:lOCFR Sl.165(f)(11)(i)(B)

and 51.166(w)(U}{j)(b), TCEQ must clarify thatthe'1"ACT eqUivalent controls"

are based upon application offederal BACTas·dcfinetlln the Clean Air Act

(eM) and Prevention ofSignificant Deterioration(l'SD) rules, not the State

MinorNSR BACT} The changes indieated be10wwill adllres$ these concerns.

(1) As part ofthis application, the major stationary source owner

or operator shall demonstrate that the.wnl ofthe baseline actua1 emiasions

ofthe small facilities, plnsthe sum ofbasCllne 8CtU8l emissions ofthe

significant and majorfacilities assuming appliClltion offederal best

available control teclmology (BACT) (as iWfi"" 40 TAC

U6.l6O(cXl XA)) equivalent COII1rol$, plusthe sum of1he .allowable

emissions ofthe new or modifilld facilities exceedsthePAL. The levelo!

control that would result from thefedepdBACT eqlliwlent controls. ~baIl·

bedetemUned by. conducting anew ~BAChllalysis.the time the

application is sulmritted, UD1essthe fiIcllitYisC\4mttly~ to comply

with a fcdentI BACTorlowest achievable emissiott,.(LAER)

requirement that was estlIbJillhedwithin the ~~!O~·1II such

'case, the assumed cont:rOl1evd forthat emissionli'!P!t~~~ua1 to the

.~ offederal BACT Of.J,.AER which that emissi~wiit_currently eDmply. ... .....

.. ,..,. .....

(4)'Jbe neWl'Mf.$lIa1lbe the sum ofthe allOWllblemUssions for

each~·or newfllCiJity"plll$ the sumofthe"ineaetIJlI1 . emissioDS~~and .emissions··unUl; aftetthe~of

fudem,l BACT~~V;dentcontrOls u iden!i(tedin~O)ofthis

subsection.p1ul!theSllln oftbebase\jl:!cactua1 emisSious,ofthe1l,IDal1 ~ions.units.

2. 111 30T~C 116.t9l(c){I)(P)•.the rule must~~both 4OCl1R. SI.2l(aaXIl)

lind 51.16S(f)(1l). Thisc1JanBeis~a..,.~.~,that an increase in a PAL

triggen;apptiblbilityofPSD.NN8R, orbotlj(

3. 30 TAC 1l6.192(a)(i)JU~be n:visecHoclearly req~tbat a1lfacilitiC$

contribuUng to the ~.in emiSslO!J!i·so asto cause ·t'httmUorsllltionary

1 Sel!7SFRS642~.1It56429(~ ii 2010lllJld75fRSS978 (Septembwl~.2010l forfunher

infbnnarionOll1hebasisfottbis com.__

W-3
~'s emission5tp~QiIlOf exceed il$PAL are subject to PSDorNNSR.The

changes indicated belowWilladdress_~.

(2) The o~eror opel'llWtSltiill obtain IifedeJ:al newSDurce review

permit !JIlder"pr~#fi0 TAC116, SubchapterB,Dimlw 5lNpQ@ttairynentWeW}al!d~ 6~Of$ignifu;anf ....

Deterioration~.fOr ld1~oontribllliDg to increase in

emissio!15so astD~~~~ll()lIfCC'S t'.l1lis$jcms to eqUIIl

or exceed il$PAL,.~ltIlls~fhe~gnitudeoftbe (;ll;~cmsincrealle'

These facilities shall~.~O!lrequirement&.ting fm1lt themajornew~~~ .

4. Texas proposesto revise 30 TAC116.611 to ltiscontinue dle.P61lution ~ontrDl.

project (PCP) Standard PemUtaUthOrizati0rts.Ilndertbat -Oti~erFebruaryl?,

20n. Wewpport the proposed discontin1l3nceorthePCPS~ Permit We

also ha"e the fOllowing c01ll!l1er1tl: .

A.The propoSed.~PCP Standard Pemit doesnOtaddiessthe iss\ies.

raisl:dby EJ>A in 7S Fa 56424, at 56447, with res,J!er:t~B1Ws

disapproval oftbe1'CBQsubmitted PCPStaJldaM Permit. FurlbemJore,

although the ICEe:) is~ing ~1beuseofthispartieular

regulatory PCP StandllPi!PermitafterF~17,.201 I.itstilUs

proposing to retain a.pe.tlIlttcic·s~1ianl:ll1lpO!la PCP Standard Pmnit ifit

!died upoD it OD or~~~I1.~U;HOwever, we do want to

tnyour attentiO!lt1i~~{Jcp;PIir'!!ff;ll'@enot part ofthe federally .~Texas NSRSJI>:···· ....., c.

B.Wtlar1QiiC'wJed~~TCEQbasproposeda.tuIe Standilrd Penriiffor

.PCJI.as discussed ~.!Page 7or the~preamble. .EPA. is

this propo$Cl.iPCP~ndardPermit andwiU~!Ie~~ by file

September 21, 201~,~mmerlt deadUne inasepatlltetiiJ;ll!i. . .

2 We reeogni7Ao tbIlfT~ did1IlltideRtify30 'fA<C n6.i111 tile piov~tl>at it willSllbmit1l)

EPA*SBSIPrevi$iOl1.we.arel\'OW1!lingthese~ttl __ tl>atTcxa1!'.Ol1going~l~

of8IlY past, pl'bent, or n.-~PennitforPCl'lois~iaIentwith the basis fot"\V~-of

the pcp StaDdatd Permit in 30 T~H~.617 as $~~~.I. 2006. See ~.I;& S6434•• (September IS, 2(10) far furtbMln~O" 01\ ~~~30TAC 116.617.

2

W-3
INDEX OF ORAL TESTIMONY

Public Hearing

September 20, 2010, in Austin

TCEQ received no oral testimony for this rulemaking
- 1 -

Texas Commission on Environmental Quality

Public Hearing Registration

Date: September 20, 2010

Time: 10:00 AM

Rule Project No.: 2010-00B-116-PR

Short Tille: New Source Review Reform

Location: TCEQ Complex, 12100 Pari< 35 Circle, Building E, Room 201S, Austin, Texas

Concerning: Proposed revisions to 30 TAC Chapter 116

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony?

(Please Print) (Circle One)

ChrIs L0'1hr'J.h c.hflr -/~r}ru-. i> ulZ f Yes @

v..1"J'('.:J JiI ,("IYee No

Yes No

Yes No .

Yee No

Yes No

Yes No

Yes No
. "'.

. HEARING OFFICER REPORT

I am the hearing officer assigned to conduct the public hearing regarding 30 TAC Chapter

116, New Source Review Reform (Ru1e ProjectNo 2010-008-116-PR).

A public hearing was schedu1ed for September 20,20108110:00 am in 12100 Park 35 Circle.

Building E, Room 201S, Austin, Texas.

At 9:30 am, the room was open and TCEQ staff members were available to discuss the

proposal: At 10:00 am, TCEQ staff and a court reporter were present and ready to open

the hearing for public comment. After waiting for 15 minutes, no one had arrived to

make comments on the record. Therefore, the public hearing was not formally opened

for comment and a transciipt was not prepared.

.. It! H~MtJ:L Hearing Officer

09!zo I/O

Date signed
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality

INTEROFFICE MEMORMH>UM

To:

ThrIl:

From:

Commissioners

LaDonna Castaiiuela, Chief Clerk

Mark R Vickery, P.G., Executive Director

Richard A Hyde PE, Deputy Director "d-..vJ

Office of Permitting and Registration .

Date: January 21, 2011

Docket No.:

Subject:

2010-0625-RUL

Commission Approval for Rulemaking Adoption

Chapter 116, Control ofAir Pollution by Permits for New Construction or

Modification

New Source Review (NSR) Reform

Rnle Project No. 2010-008-116-PR

Background and reason{s) for the rulemaking:

On June 10, 2005, the TCEQ submitted amendments to 30 TAC § 116.12 to the United States

Environmental Protection Agency (EPA) as revisions to the New Source Review (NSR) State

Implementation Plan (SIP) and § 116.150 as revisions to the Nonattainment New Source Review

(NNSR) SIP, both adopted on May 25, 2005. On February 1, 2006, the TCEQ submitted

amendments to §§ 116.12. 116.121. 116.180, 116.182. 116.186.116.188,116.190,116.192, 116.601, and

116.617 to the EPA as revisions to the NSR SIP. On September 23. 2009. the EPA published notice

of the proposed disapproval of these revisions to the Texas SIP (74 Federal Register 48467,

September 23, 2009). The EPA's final disapproval notice was published September 15. 2010. This

rulemaking will address those sections submitted as revisions to the NSR SIP and subsequently

disapproved by the EPA Other changes included in this rulemaking are discussed below.

Scope ofthe rulemaking:

A) Summary ofwhatthe rulemaldngwill do:

This rulemaking and the companion rulemaking (Rule Project No. 2008-030-116-PR) addresses

issues identified by the EPA in its September 23. 2009. proposed disapproval notice and its

September 15, 2010, final disapproval notice and ensure that TCEQ regulatory requirements

regarding the NSR permitting program meet the requirements of the Federal Clean Air Act (FCAA)

and are approvable into the SIP. Specifically, those concern definitions related to and other

changes to the Plant-Wide Applicability Umit (PAL) rules to meet federal requirements, including

the conditions for reopening PAL permits. The rulemaking would also amend the standard permit

rule for pollution control projects, which is simultaneously being proposed as a non-rule standard

permit, to limit its use. The amendments would also include removing obsolete references and

making non-substantive administrative changes.

Although not a part of the rulemaking, the executive director is including a statement in the letter

transmitting the SIP revision to EPA that EPA consider § 116.151, as amended in 2006, together

with the current changes. No changes were needed to the rule. but the rule was officially

disapproved by EPA and therefore reconsideration must officially be requested.

B) Scope required by federal regulations or state statutes:

The executive director is reco=ending amendments to § 116.12, Nonattainment Review

Definitions; § 116.115. General and Special Conditions; § 116.180, Applicability; § 116.182. Plantwide Applicability Limit Permit Application; § 116.186, General and Special Conditions; § 116.188,

Plant-wide Applicability Limit; §116.1g0, Federal Nonattainment and Prevention of Significant
Commissioners

Page 2

January 21, 2011

Re: Docket No. 2010-0625-RUL

Deterioration Review; § 116.192, Amendments and Alterations; § 116.601, Types of Standard

Permits; and § 116.617, State Pollution Control Project Standard Permit that are consistent with the

federal requirements for the NSR SIP. The executive director also reco=ends repeal of § 116.121,

Actual to Projected Actual and Emissions EXclusion Test for Einissions Increases, and replacem.ent

of this section in a new § 116.127. Additionally, the executive director reco=ends withdrawal

from consideration by EPA as revisions of the SIP the sections that reference FCAA, § 112(g) that

were renumbered and submitted to EPA in the 2006 rulemaking (§§ 116.400 - 116.406). Finally,

the executive director recommends withdrawal of § 116.121 from consideration by EPA as a revision

of the SIP as adopted in 2006 because therUle is proposed for repeal and readopted as § 116.127,

which is also proposed as a revision to the SIP.

C) Additional staff recommendations that are not required by federal rule or state

statute:

Staffrecommends additional nonsubstantive administrative changes.

Stabrtory authority:

Statutory authority includes Texas Water Code, § 5.102, General Powers; § 5.103, Rules; § 5.105,

General Policy and § 7.107, Violation. Statutory Authority also includes Texas Health and Safety

Code, §§ 382.017, Rules; § 382.002,Policy and Purpose; § 382.011, General Powers alid Duties;

§ 382.012, State Air Control Plan; § 382.016, Monitoring Requirements; ExamiJiation of Records;

§ 382.021, Sampling Methods and Procedutes; § 382.040, State Air Control Plan; § 382.051,

Permitting Authority of the Commission; Rules, § 382.0511, Permit'ConsolidatiOIi- and

Amendment; § 382.0512, Modification of Existing Facility; § 382.0513, Permit COnditions;

§ 382.0514, Sampling, Monitoring, and Certification; § 382:0515, Application. for '.Permit;

§ 382.0518, Preconstruci:ion Permit; § 382.05195, Standard Permit; and § 382;655, Review and

Renewal of Construction Permit. The amendments are also proposed tinder FCAA, 42 United

States Code, §§7401, et seq., which requires states to submit state implementation plan revisions

that specify the manner in which the national ambient air quality standards will be achieved and

maintained within each air quality control region ofthe state. .

Effect on the:

A) Regulated cOiiUilunity: Although the EPA has noted deviations from the fedel:'a1

requirements for the NSR SIP in state rules, theAir Permits Division (APt» has required applitants

to comply with all applicable conditions offederal NSR, and therefore, there should be no adverse

impacts associated with the resolution of these deviations. The separation of requirements to

obtain a permit to comply with FCAA, § 112(g) ofthe FCAA from SIP requirements and removal of

rules regarding FCAA, § 112(g) permitting from SIP consideration by EPA will result in no rule

cl1anges. The amendment of the pollution control standard permit rule will not result in any

adverse impacts since a new non-rule standard permit for pollution control projects has been

proposed separately and concurrently with this project.

B) Public: There will be no effect on the pUblic sirlce the APD is currently conducting reviews of

sources subject to NSR that meetfederal definitions and requirements.

C) Agency programs: There will be no effect on agency programs since the APD is currently

conducting reviews ofsources subject to NSR that meet federal definitions and requirements.

Stakeholder meetings: No· stake1lolder meetings have been held. However, background

documents related to thisrulemaking have been posted on TCEQ's external Web site. Also,

standard notice ofthis action and an opportunity for cornment have been provided.
Commissioners

Page 3

January 21,2,011

Re: Docket No. 201O-062S-RUL

Public comment:

Industry commented that the inclusion of references to federal definitions for monitoring systems

included in § 116.186(c)(1)was inconsistent with definitions found in Chapters lIS and 117.

Industry also commented that existing TCEQ regulations require all facilities that emit a PAL

pollutant be included in the PAL permit and that a rule change was unnecessary. Additionally,

industry commented that the revision to § 116.617 to limit the use ofthe pollution control standard

permit does not address EPA's disapproval ofthis authorization and the TCEQ should confirm that

existing authorizations under this section of the rule are valid. .Industry commented that several

minor changes were not part of EPA's disapproval and therefore unnecessary.

The EPA supported the discontinuation of the pollution control standard permit but noted that

many facilities may continue to rely on it and that these permits were not part of the federally

approved TCEQ NSR SIP. The EPA also acknowledged the TCEQ's development of a non-rule

pollution control standard permit. The EPA requested for specific changes in § 116.192 to clarify

the intent of the rule. These changes are summarized in the "Significant changes from proposal"

section below.

Significant changes from proposal:

As the result of comments received from the EPA on the proposal of these amendments staff

recommends changes to: § n6.192(a)(1) and (4) to specifically state that the best available control

technology (BACT) equivalent required by the rule is federal BACT; § n6.192(a)(2) to state clearly

that all facilities contributing to an increase in emissions resulting in source's emissions equaling or

exceeding its PAL are subject to PSD or NNSR; and § n6.192(c)(1)(C) to include a reference to 40

CFR § S1.l6s(f)(n).

As the result of statements made by the EPA in its final disapproval staff recommends changes to

§ n6.182(1) and § n6.186(a) (requirements relating to PAL permits) to require that all emission

units at the major stationary source that emit the PAL pollutant be included in the PAL permit

application.

The definition of baseline actual emissions has been revised to ensure clarity of what types of

emissions must be included in the baseline actual emissions calculations. This clarification also

ensures that this definition is compatible with the definition of projected actual emissions, and

therefore can be approved into the SIP. Additionally, in the definition of baseline actual emissions

the phrase "or are being authorized," relating to planned maintenance startup and shutdown (MSS)

emissions, in § n6.12(3)(E) would be retained. This phrase was proposed to be removed because

the executive director expected the commission to propose and adopt a concurrent rulemaking that

would have included mandatory authorization of MSS emissions. Since the rulemaking that

included MSS requirements has been remanded to staff, it would be inappropriate to remove the

phrase at this time.

Additionally, changes have been made to § n6.180(b) and (c) and § n6.186(b)(1) to add the phrase

"at a major stationary source" to the term "emissions unit" to ensure that the term is better

understood as the EPA generally uses the term in NSR permitting. Also, in § n6.186(b)(1) and §

n6.190(a), the word "federal" has been changed to "major" new source review to more clearly

identify the type of NSR referred to in the rule
Commissioners

Page 4

January 21, 2011

Re: Docket No. 2010-0625-RUL

Potential controversial concerns and legislative interest remaining after proposal

and public comment:

The rule changes and references to the federal regulations included in this rulemaking are reflecti'le

of the current APD policy regarding NSR, alld therefore, no controversy is expected. There is no

known legislative interest at this time.

Does this rulemaking affect any current policies or require development of new

policies?

This rulemaking will not affect any current policies nor require development of any new policies.

The APD is currently conducting reviews of sources subject to federal NSR that meet federal

definitions and requirements.

What are the consequences iftbis rulemaking does not go forWard?

If this ruleinaking does not go forward, federal SIP approval of major NSR permitting will be

jeopardized.

Are there alternativesto rulemaking?

The commission could decline to address EPA disapproval notices and wait for further EPA action.

Key points in adoption rulemaking schedule:

Texas Register proposal publication date: August 27, 2010

Anticipated Texas Register publication date: February 25, 20111

Anticipated effective date: March 3, 2011

Six-month Texas Registerfiling deadline: February 28, 2011

Agency contacts:

Blake Stewart, Air Permits Division, 239-6931

Janis Hudson, Environmental Law Division, 239-0466

Natalia Henricksen, Texas Register Coordinator, 239- 0177

cc: Chief Clerk, 2 copies

Executive Director's Office

Susana M. Hildebrand, P.E.

Kevin Patteson

Curtis Seaton

Ashley Morgan

Office ofGeneral Counsel

Blake Stewart

Natalia Henricksen
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The Texas Commission on Environmental Quality (commission, agency, or TCEQ)

adopts the amendments to §§116.12, 116.115, 116.180, 116.182, 116.186, 116.188, 116.190,

116.192, 116.601, and 116.617; new §116.127; and the repeal of §116.121.

The amendments to §§116.115, 116.188, and 116.601; new §116.127; and the repeal of

§116.121 are adopted without changes as published in the August 27, 2010, issue ofthe

Texas Register (35 TexReg 7676) and will not be republished. Sections 116.12,116.180,

116.182, 116.186, 116.190, 116.192, and 116.617 are adopted with changes to the

proposed text as published in the August 27, 2010, issue ofthe Texas Register (35

TexReg 7698) and will be republished.

The amendments to §§116.12, 116.115, 116.180, 116.182, 116.186, 116.188, 116.190,

116.192, and 116.601; and new §116.127 will be submitted to the United States

Environmental Protection Agency (EPA) as revisions to the State Implementation Plan

(SIP). The amendment to §116.617will not be submitted to EPA as a revision to the SIP.

BACKGROUND AND SUMMARY OF THE FACIUAL BASIS FOR THE ADOPTED

RULES

On June 10,2005, the TCEQ submitted the amendment to §116.12 to the EPA as a

revision to the New Source Review (NSR) SIP and §116.150 as a revision to the

Nonattainment New Source Review (NNSR) SIP, both adopted on May 25,2005. On
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February 1, 2006, the TCEQ submitted amendments to §§116.12, 116.121, 116.150,

116.180, 116.182, 116.184, 116.186, 116.188, 116.190, and 116.617 to the EPA as revisions

to the NSR SIP; amendments to §§101.1, 116.150, and 116.151 as revisions to the NNSR

SIP; and the amendment to §116.160 as a revision to the Prevention of Significant

Deterioration (PSD) SIP, adopted on January 11, 2006. On September 23, 2009, the

EPA published notice ofthe proposed disapproval ofthese revisions to the Texas SIP (74

Federal Register 48467) and on September 15, 2010, published the final disapproval of

the revisions (75 Federal Register 56424).

This rulemaking and the companion rulemaking (Rule Project No. 2008-030-116-PR)

address issues identified by the EPAin its September 15, 2010, final disapproval notice

and ensure that TCEQ regulatory requirements regarding the NSR permitting program

meet the requirements ofthe Federal Clean Air Act (FCAA) and are approvable into the

SIP. Specifically, those concern definitions for the Plant-Wide Applicability Limit (PAL)

rules and other changes to the PAL rules to meet federal requirements, including the

conditions for reopening PAL permits. The rulemaking also amends §116.617, State

Pollution Control Project Standard Permit (which is the existing standard permit rule),

to limit when existing registrations for this standard permit can be amended or renewed

and provides the deadline for final registrations under this specific standard permit.

This is intended to facilitate a smooth transition between this section and the new nonrule air quality standard permit adopted concurrently by the commission. The
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amendments would also remove obsolete references and make non-substantive

administrative changes.

EPA also disapproved §116.151 as amended in 2006, but did not provide any specific

reasons for its disapproval. In its letter transmitting this rulemaking to EPA, as

discussed earlier, the commission is requesting EPA consider §116.151 as amended in

2006 together with these current rule changes as revisions to the SIP.

In the September 15, 2010 notice, EPA also proposed to take no action on §§116-400 -

116.406, which were included in the 2006 rulemaking. These sections are permit

requirements for compliance with FCAA, §112(g), but they are not necessary elements of

the SIP. The rulemaking withdraws from EPA consideration as a revision to the SIP of

§§116-400, 116.402, 116-404, and 116.406, as adopted by the commission on January 11,

2006, effective on February 1, 2006. No changes have been made to the rule text or

numbering ofthese sections.

This rulemaking is at least as stringent as the federal rules being implemented because it

includes the applicable elements ofthe major NSR and PAL permit programs. The

rulemaking action also ensures that the rules will meet the requirements ofthe FCAA,

which requiresthat the elements ofthe SIP be enforceable, include replicable elements,

and ensure compliance and accountability. The specific changes to the PAL rules meet
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these basic requirements.

When EPA adopted the NSR reform rule amendments (67 Federal Register 80185,

December 31, 2002), it expanded its requirement for states' SIP submittals oftheir rules

that implement major NSR to require a demonstration of why both the specific major

NSR permitting program requirements, including applicable definitions, are at least as

stringent as EPA's regulations, ifstates do not adopt the specific EPA program. TCEQ's

major NSR and its PAL rules do not incorporate the EPA rules by reference but they do

include the basic elements ofthose permit programs. Therefore, this rulemaking is at

least as stringent as the federal rules being implemented. As discussed elsewhere, the

changes in this rulemaking are made to specifically address issues identified by EPA in

its September 15, 2010, disapproval notice so that the rules can be approved as revisions

to the SIP. The changes make the commission's rules as stringent as EPA's regulations.

The definitions of baseline actual emissions and projected actual emissions do not

include malfunction emissions, and thus are more stringent than EPA's definitions. In

addition, this rulemaking action also ensures that the rules will meet the requirements

ofthe FCAA, which requires that the elements ofthe SIP be enforceable, include

replicable elements, and ensure compliance and accountability.
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SECTION BY SECTION DISCUSSION

§116.12, Nonattainment and Prevention ofSignificant Deterioration Review

Definitions

The commission is adopting amendments to the definitions ofthe terms, "baseline

actual emissions," "net emissions increase," and "projected actual emissions." These

amendments resolve the EPA's objection to this section ofthe rule.

The EPA, in its final disapproval notice, commented that the definition of baseline

actual emissions differed from the federal rules because the definition did not specify

that these emissions are meant to be calculated based on the average rate. The

amendment specifying that the rate is an average rate would be included in

§116.12(g)(A), (B), (D), and (E). The commission is also removing the term "exempted

from" §116.12(g)(E) and is replacing it with "unauthorized" since emissions events were

not exempt under go TAC Chapter 101, General Air Quality Rules, but must be reported.

The commission is making changes from the proposal to §116.12(g)(E). The EPA in its

final disapproval (see September 15, 2010 (75 Federal Register 56424)) agreed that the

inclusion of emissions events in the definition of baseline actual emissions would have

the effect ofinflating the baseline and narrowing the gap between the baseline actual

emissions and the planned emission rate. The EPA noted that the current definition of

baseline actual emissions included emissions events and stated that to be approvable
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the definition would have to exclude emissions events. This is because EPA noted that

the definitions of "baseline actual emissions" and "projected actual emissions" must

both include or exclude malfunctions emissions. However, EPA's inteIJlretation

excludes the conditional language at the end ofthe paragraph which limits emissions to

those that have been or are being authorized and, therefore, EPA's statement that the

commission is including emissions events is"in error. The commission's long standing

policy is not to reward emissions from emission events, which are upset events and

unplanned maintenance, startup, and shutdown (MSS) activities. TCEQ's term

"unplanned MSS activities" substitutes for the EPA's term "unscheduled MSS. "

Unplanned MSS activities are the functional equivalent ofmalfunctions, as are all upset

emissions. EPA also objects to the use ofthe word "may," stating that it indicates

discretion without any replicable procedures for such determinations.

Consequently, §116.12(3)(E) is being reworded to make clear that MSS emissions

reported under Chapter 101 shall be included in the calculation ofbaseline actual

emissions but only to the extent that they have been authorized or are being authorized.

Because emissions events are not included, they are therefore excluded from the

calculation of baseline actual emissions. The commission does not authorize emissions

events, which are emissions from upsets and unscheduled MSS activities. While the

current text, as adopted in 2006, implemented that long standing policy, the rule text

was not written to clearly limit the inclusion of only planned MSS emissions that have
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been or are in the process of being authorized during a defined time period. These

changes ensure, first, that there is no discretion as to inclusion of only certain planned

MSS emissions (and consequently the exclusion of emissions events) in the baseline

actual emissions calculation, and second, that the definitions ofbaseline actual

emissions and projected actual emissions are compatible and are therefore approvable

as revisions to the SIP.

Additionally, the commission is making changes from the proposal by reinstating in

§n6.12(g)(E) the phrase "or are being authorized," relating to planned MSS emissions.

This phrase was proposed to be removed because the executive director expected to

recommend proposal and adoption of a concurrent rulemaking that would have

included mandatory authorization of MSS emissions. Since the rulemaking that would

have required authorization of MSS emissions has been remanded to staff, it would be

inappropriate to remove the phrase at this time. The commission's rule that provides an

incentive for authorizing planned MSS emissions, §101.222(h), provides a logical time

frame for identifying which planned MSS emissions should be included in the

calculation of baseline actual emissions, and the ending date ofthe incentive program is

used in this definition. Further, §n6.12(g)(D) provides that non-compliant emissions

are excluded. To the extent that there are planned MSS emissions that remain

unauthorized on or after March 1, 2016, those will necessarily be "non-compliant" and

therefore, no longer excluded from the excluded emissions in subparagraph (D). This is
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consistent with the commission's policy regarding authorization of planned MSS

emissions. Based on the incentive schedule in §101.222(h), the TCEQ has received

several hundred applications thusfar for authorizing planned MSS at approximately the

midway point ofthe schedule and, therefore, expects that the industries named in the

remaining portion ofthe schedule will also submit applications for authorizing planned

MSS over the next two years.

The commission is also adopting an amendment to the term "net emissions increase" in

§116.12(20). EPA commented in the Technical Support Document related to the

proposed disapproval that this definition might not match federal requirements for

enforceability because it did not include a statement that the definition was federally

enforceable. The commission is specifically adding the term "federally" to modify

"enforceable" in §116.12(20)(C)(ii).

Additionally, the commission is amending the term "projected actual emissions" in

§116.12(29) and is adopting it with changes from the proposal. The commission is

replacing the phrase "unauthorized emissions from startup and shutdown activities"

with "emissions from planned maintenance, startup, or shutdown activities, which were

historically unauthorized and subject to reporting under Chapter 101 to the extent that

they have been authorized or are being authorized." This change is necessary to ensure

that this definition is compatible with the definition of "baseline actual emissions." As
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discussed earlier, the definition of "baseline actual emissions" is being amended to

ensure that the commission's intent of what types of emissions can be included in that

calculation is clear. While the commission intended that these two definitions be

compatible when adopted in 2006, the EPA's comments indicated that may not be the

case. The EPA commented that the term "projected actual emissions" does not include

emissions from startups, shutdowns, and malfunctions. However, as stated in the

original adoption preamble for this rule in 2006, the commission excluded malfunction

emissions in compliance with long-standing commission policy to exclude noncompliant emissions. The EPA in its final disapproval (see September 15,2010 (75

Federal Register 56424)) agreed that the inclusion of emissions events, which are

similar to the federal term "malfunctions," in the definition of baseline actual emissions

would be inappropriate. Further, EPA has approved definitions in other states that also

exclude malfunctions; (see September 15, 2010 (75 Federal Register 56441)). These

amendments are necessary to ensure that both definitions are approvable as revisions to

the SIP.

§116.115, General and Special Conditions

The commission is amending §116.115(b)(2)(F) with a statement that emissions

exceeding the maximum allowable emission rates established in a permit are not

authorized and are a violation ofthe permit. Additionally, the commission is amending

§116.115 with non-substantive administrative changes in §116.115(b)(2)(B)(iii) and
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(H)(i) and (c)(2)(B)(ii)(II).

§116.121, Actual to ProjectedActual and Emissions Exclusion TestfoT Emissions

Increases

The commission repealed §116.121. The text ofthis rule has been moved to adopted new

§116.127·

§i16.127, Actual to ProjectedActual and Emissions Exclusion TestfoT Emissions

The commission is adopting §116.127 to address actual to projected actual emissions and

the emissions exclusion test for emissions increases. There have been no changes to the

language that was originally in §116.121. This new section requires documentation

associated with the projected actual emissions rates and records of compliance as

identified in the federal rule, 40 Code of Federal Regulations (CFR) §S2.21. Section

116.127(a) requires a demonstration that federal NSR does not apply be submitted with

any permit application or registration. This demonstration must be documented by

records that include a project description, the facilities affected, and a description ofthe

applicability test. Subsection (b) requires monitoring of emissions that could increase as

a result ofthe project if projected actual emissions are used to determine the project

emission increase at a facility.

Subsection (c) requires owners or operators of electric utility steam generating units to
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submit to a report to the executive director documenting the emissions for each

calendar year that records are required under the actual-to-projected actual test.

Subsection (d) requires owners or operators offacilities other than electric generating

units to submit a report to the executive director if annual emissions exceed the baseline

actual emissions by a significant amount. Subsection (e) requires records to be

maintained and made available for review.

As stated in the preamble when adopted by the commission in 2006, the commission

expects that projected actual emissions will be used extensively in registrations or

claims for non-PSD and nonattainment NSR authorizations where a maximum

allowable emission rate is not specified in the rule.

Based on the changes to the definition of projected actual emissions, discussed

elsewhere in this preamble, the commission expects that this rule is approvable as a

revision to the SIP.

§116.180, Applicability

The commission is removing the term "account site" from §116.180(a)(1) and replacing

it with the term "existing major stationary source" to make this requirement more

consistent with federal requirements. The commission is also making similar changes to

§116.180(a)(3) and (4). Additionally, because the federal term "emissions unit" is
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defined very similarly to the term "facility" as defined in the Texas Clean Air Act

(TCAA), the commission is adding the language "or emissions unit" whenever the term

facility is used (i.e., §116.180(a)(3), (b) and (c)). Additionally, the commission is making

a change from the proposal in this section and as used elsewhere in the commission's

PAL rules, by adding the phrase "at a major stationary source" to the term "emissions

unit" to ensure that the term is better understood as the EPA generally uses the term in

NSR permitting. The term "emissions unit at a major stationary source" means a single

piece of equipment; it does not necessarily have the same meaning as used in some of

the maximum achievable control technology standards in 40 CFR Part 63. The

commission is also restricting the issuance of PAL permits to existing stationary sources

in §116.180(a)(s). The EPA, in its September 15,2010, final disapproval notice stated

that the current rule lacks a provision that limits applicability of a PAL to an existing

major stationary source as required by the corresponding federal rule. This amendment

resolves the EPA's objection to this section ofthe rule.

§116.182, Plant-wide Applicability Limit PermitApplication

In its September 15, 2010, final notice of disapproval, the EPA stated that the term

facility was vague and unenforceable and that §116.182(1) might not require all facilities

emitting a PAL pollutant at a major stationary source to be included in the PAL permit

application. This amendment resolves the EPA's objection to this section ofthe rule.

Since the federal term emissions unit is defined very similarly to the term facility as
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defined in the TCAA, the commission is adding the language "or emissions unit at a

major stationary source" when the term facility is used in §n6.182(a)(I). Also, the

commission is adding the phrase "at a major stationary source" where appropriate to

make clear that PALs are applicable to major sources only. Additionally, as the result of

comments in the EPA's final disapproval (75 Federal Register 56424, September 15,

2010), the commission is adding language to require that all emission units at the major

stationary source that emit the PAL pollutant be included in the PAL permit application.

This language ensures that the rule is consistent with the federal requirement that the

TCEQ has appropriate information to review when a PAL application is submitted. This

language should also ensure approvability ofthe rule into the SIP.

§116.186, General and Special Conditions

In its September 15, 2010, final notice of disapproval, the EPA stated that the term

facility was vague and unenforceable and that §n6.186 might not require all facilities

emitting a PAL pollutant at a major stationary source to be included in the PAL permit.

This amendment resolves the EPA's objection to this section ofthe rule. Since the

federal term emissions unit is defined very similarly to the term facility as defined in the

TCAA, the TCEQ is adding the language "or emissions unit" where the term facility is

used in subsections (a) and (b)(I) and changing the word "federal" to "major" in

subsection (b)(1) to clarify the type of NSR referenced in this subsection. Also, the

commission is adding the phrase "at a major stationary source" where appropriate to
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make clear that PALs are applicable to major sources only. Also, as the result of

comments in the EPA's final disapproval (7S Federal Register S6424, September IS,

2010), the commission is adding language to require that all emission units at the major

stationary source that emit the PAL pollutant be included in the PAL permit. This

language is added to ensure approvability ofthe rule into the SIP. Additionally, the

commission is defining the term "responsible official" by referencing the definition in 30

TAC Chapter 122.

In the September IS, 2010, final disapproval notice, the EPA noted that TCEQ's rule

lacked a mandate that failure ofthe monitoring system to meet the requirements ofthis

section is a violation oftbe PAL permit. Consequently, the commission is including this

requirement as adopted §116.186(b)(g). Existing subsection (b)(g) and (10) is

redesignated as subsection (b)(1O) and (11). In the notice, the EPA also stated that the

specific monitoring definitions: continuous emissions monitoring system (CEMS) as

defined in 40 CFR §S1.16s(a)(1)(xxxi) and §S1.166(b)(43); continuous emissions rate

monitoring system as defined in 40 CFR §S1.16s(a)(1)(xxxiv) and §S1.166(b)(46);

continuous parameter monitoring system as defined in 40 CFR §S1.16s(a)(1)(xxxiii) and

§S1.166(b)(4S); and predictive emissions monitoring system (PEMS) as defined in 40

CFR §S1.16s(a)(1)(xxxii) and §S1.166(b)(44) are essential for the enforceability of and

providing the means for determining compliance with a PALs program. The commission

is incorporating these definitions by reference in adopted §116.186(c)(1). Existing
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subsection (C)(l) and (2) is redesignated as subsection (C)(2) and (3). This amendment

resolves the EPA's objection to this section ofthe rule. Additionally, the commission is

amending §116.186 with non-substantive administrative changes.

§116.188, Plant-wide Applicability Limit

The commission is amending §116.188 with non-substantive administrative changes.

§116.190, Federal Nonattainment and Prevention ofSignificant Deterioration Review

In its September 15, 2010, final notice of disapproval, the EPA stated that the term

facility was vague and unenforceable. This amendment resolves the EPA's objection to

this section ofthe rule. Since the federal term emissions unit is defined very similarly to

the term facility as defined in the TCAA, the commission is adding the language "or

emissions unit" where the term facility is used in subsection (a). Also, the commission is

adding the phrase "at a major stationary" source where appropriate to make clear that

PALs are applicable to major sources only and changing the word "federal" to "major" to

clarify the type of NSR referenced in subsection (a).

§116.192, Amendments andAlterations

In its final disapproval notice, the EPA requested that the state include provisions

relating to the reopening of a PAL by the executive director. This amendment resolves

the EPA's objection to this section ofthe rule. The commission is including a statement
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that acceptance of a PAL is agreement by the permit holder to reopening the permit in

subsection (c). Also, the commission is including a mandatory reopening ofthe permit

for the purposes that are stated in §n6.186(c)(1). These purposes include: the correction

oftypographical or calculation errors; decrease ofthe PAL limit to reflect creditable

emissions reductions; or revision ofthe permit to reflect an increase in the PAL.

Additionally, the commission is allowing discretionary reopening ofthe permit for the

purposes stated in §n6.186(c)(2). These purposes include: revision ofthe PAL to reflect

newly applicable federal requirements; revision to the PAL to reflect any other

enforceable requirement imposed on major stationary sources under the SIP; reduction

ofthe PAL to avoid national ambient air quality standards (NAAQS) or PSD increment

violation; or reduction ofthe PAL to avoid an adverse impact on a federal class I area.

As the result of comments received from the EPA on the proposed amendments the

commission is changing §n6.192(a)(1) and (4) to specifically state that the Best

Available Control Technology (BACf) equivalent required by the rule is federal BACT as

identified in §n6.160(c)(1)(a). The commission is also changing §n6.192(a)(2) to state

clearly that all facilities contributing to an increase in emissions resulting in source's

emissions equaling or exceeding its PAL are subject to appropriate PSD or NNSR

authorization to ensure that a new permit or a major modification action is obtained.

Finally, the commission is changing §n6.192(C)(1)(C) to include a reference to 40 CFR

§S1.16s(f)(n). These revisions will resolve the EPA's concerns regarding this section of
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the rule. Additionally, the commission is amending §116.192 with non-substantive

administrative changes.

§116.601, Types ofStandard Permits

The commission is removing language referring to specific standard permits in

§116.601(a)(I) in favor of a more general statement that includes those standard permits

adopted into the rule. This change will facilitate any future adoptions or repeals of

standard permits that are part of Chapter 116.

§116.617, State Pollution Control Project Standard Permit

The commission is making changes from the proposal to §1l6.617(a)(4) and (5). The

commission is amending §116.617(a)(4) to provide that the existing requirements ofthat

paragraph will cease to be effective on March 3, 2011. The commission is also including

§116.617(a)(s) which provides that, notwithstanding the requirements of §116.604, on or

after March 3, 2011, no new or modified registrations will be accepted and no existing

registrations will be renewed. The date in these revisions was changed from February 17,

2011 to March 3, 2011, to accurately reflect the effective date ofthis rule.

The EPA in its September 15,2010, final disapproval noted its objections to the State

Pollution Control Project Standard Permit (PCP) including: the PCP is a generic permit

that can be used at any source including major sources; it is overly broad in that it does
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not specify the types of pollution control equipment it authorizes; and it allows for

source specific review and case-by-case authorization. A non-rule standard permit that

can be used for pollution control projects is concurrently being issued by the

commission. Persons who wish to have authorization for pollution control equipment by

a standard permit may use the new non-rule standard permit for pollution control

equipment.

FlNAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light ofthe regulatory impact

analysis (RIA) requirements ofTexas Government Code, §2001.0225, and determined

that the rulemaking does not meet the definition of a major environmental rule as

defined in that statute and ifit did meet the definition, would not be subject to the

requirement to prepare a RIA.

A major environmental rule means a rule, the specific intent ofwhich is to protect the

environment or reduce risks to human health from environmental exposure, and that

may adversely affect in a material way the economy, a sector ofthe economy,

productivity, competition, jobs, the environment, or the public health and safety ofthe

state or a sector ofthe state. The specific intent ofthe revisions is to include definitions

for and make other changes to the PAL rules to meet federal requirements, including the

conditions for reopening PAL permits. The rulemaking would also amend §116.617,
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which is the existing standard permit rule, to limit when existing registrations can be

amended or renewed, and provide the deadline for final registrations under this specific

standard permit. This is intended to facilitate a smooth transition between this section

and the proposed new non-rule air quality standard permit.

In the September 23, 2009, notice, EPA also proposed to take no action on §§116.400 -

116.406, which were included in the 2006 rulemaking. These sections are permit

requirements for compliance with FCAA, §112(g), but they are not necessary elements of

the SIP. The rulemaking proposes the withdrawal from EPA consideration as a revision

to the SIP of §§116.400, 116-402, 116-404, and 116.406 as adopted by the commission on

January 11,2006, effective on February 1,2006.

These changes will not adversely affect the economy, a sector ofthe economy,

productivity, competition, jobs, the environment, or the public health and safety ofthe

state or a sector ofthe state in a material way because they are adopted to ensure

consistency between state and federal air quality permitting requirements and can be

approved as revisions to the Texas SIP. The rulemaking action ensures that the rules will

meet the requirements ofthe FCAA, which requires that the elements ofthe SIP are

enforceable, include replicable elements, and ensure compliance and accountability.

Specifically, the rules concern definitions for and other changes to the PAL rules,

including the conditions for reopening PAL permits, and that excess emissions are
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violations ofthe permit. The rulemaking also amends §n6.617 to limit when existing

registrations for this standard permit can be amended or renewed and provides the

deadline for final registrations under this specific standard permit. This is intended to

facilitate a smooth transition between this section and the new non-rule air quality

standard permit adopted concurrently by the commission. The amendments would also

remove obsolete references and make non-substantive administrative changes.

Additionally, even ifthe rules met the definition of a major environmental rule, the

rulemaking does not meet any ofthe four applicability criteria for requiring a RIA for a

major environmental rule, which are listed in Texas Government Code, §2001.022s(a).

Texas Government Code, §2001.022S, applies only to a major environmental rule, the

result of which is to: 1) exceed a standard set by federal law, unless the rule is

specifically required by state law; 2) exceed an express requirement ofstate law, unless

the rule is specifically required by federal law; 3) exceed a requirement of a delegation

agreement or contract between the state and an agency or representative ofthe federal

government to implement a state and federal program; or 4) adopt a rule solely under

the general powers ofthe agency instead of under a specific state law.

The rules would implement requirements ofthe FCAA. Under 42 United States Code

(USC), §741O, each state is required to adopt and implement a SIP containing adequate

provisions to implement, attain, maintain, and enforce the NAAQS within the state.
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While 42 USC, §741O, generally does not require specific programs, methods, or

emission reductions in order to meet the standard, state SIPs must include specific

requirements as specified by 42 USC, §741O. The provisions ofthe FCAA recognize that

states are in the best position to determine what programs and controls are necessary or

appropriate in order to meet the NAAQS. This flexibility allows states, affected industry,

and the public, to collaborate on the best methods for attaining the NAAQS for the

specific regions in the state. Even though the FCAA allows states to develop their own

programs, this fleXIbility does not relieve a state from developing a program that meets

the requirements of 42 USC, §741O. States are not free to ignore the requirements of42

USC, §7410, and must develop programs to assure that their SIPs provide for

implementation, attainment, maintenance, and enforcement ofthe NAAQS within the

state. One ofthe requirements of 42 USC, §741O, isfor states to include programs for the

regulation ofthe modification and construction of any stationary source within the area

covered by the plan as necessary to assure that the NAAQS are achieved, including a

permit program as required in FCAA, Parts C and D, or NSR. Additionally, once states

have developed SIPs, and those plans are approved by the EPA, the FCAA prescnbes, in

42 USC, §7502(e), that the EPA, in modifying a NAAQS, shall promulgate rules that

apply to all areas that have not attained the previous NAAQS that provide for controls

that are no less stringent than the controls that previously applied to the area. This

rulemaking will address those sections submitted as revisions to the NSR SIP and

subsequently were disapproved by the EPA. Specifically, those concern definitions for
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and other changes to the PAL rules, and that excess emissions are violations of the

permit. The rulemaking project includes the withdrawal ofsections applicable to

permits required for compliance with FCAA, §112(g), from EPA consideration as a

revision to the SIP; although, there are no changes to rule numbering or text and, thus,

are not open for comment.

The requirement to provide a fiscal analysis of regulations in the Texas Government

Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent

of SB 633 was to require agencies to conduct a RIA of extraordinary rules. These are

identified in the statutory language as major environmental rules that will have a

material adverse impact and will exceed a requirement ofstate law, federal law, or a

delegated federal program, or are adopted solely under the general powers ofthe

agency. With the understanding that this requirement would seldom apply, the

commission provided a cost estimate for SB 633 that concluded "based on an

assessment of rules adopted by the agency in the past, it is not anticipated that the bill

will have significant fiscal implications for the agency due to its limited application." The

commission also noted that the number of rules that would require assessment under

the provisions of the bill was not large. This conclusion was based, in part, on the

criteria set forth in the bill that exempted rules from the full analysis, unless the rule

was a major environmental rule that exceeds a federal law.
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Because ofthe ongoing need to meet federal requirements, the commission routinely

proposes and adopts rules incorporating or designed to satisfy specific federal

requirements. The legislature is presumed to understand this federal scheme. If each

rule proposed by the commission to meet a federal requirement was considered to be a

major environmental rule that exceeds federal law, then each ofthose rules would

require the full RIA contemplated by SB 633. This conclusion is inconsistent with the

conclusions reached by the commission in its cost estimate and by the Legislative

Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand

the fiscal impacts ofthe bills it passes, and that presumption is based on information

provided by state agencies and the LBB, the commission believes that the intent of SB

633 was only to require the full RIA for rules that are extraordinary in nature. While the

rules may have a broad impact, that impact is no greater than is necessary or

appropriate to meet the requirements ofthe FCAA, and in fact creates no additional

impacts, since the rules do not exceed the requirement to attain and maintain the

NAAQS. For these reasons, the rules fall under the exception in Texas Government

Code, §2001.o22s(a), because they are required by, and do not exceed, federal law,

including the approved SIP. In addition, these rules do not exceed any contract between

the state and a federal agency.

The commission has consistently applied this construction to its rules since this statute

was enacted in 1997. Since that time, the legislature has revised the Texas Government
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Code, but left this provision substantially unamended. It is presumed that "when an

agency interpretation is in effect at the time the legislature amends the laws without

making substantial change in the statute, the legislature is deemed to have accepted the

agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489

(Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue,

960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex.

App. Austin 1990, no writ). Cf Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172

(Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App.

Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and CoastalIndust. Water Auth. v. Trinity Portland Cement

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

The commission's interpretation ofthe RIA requirements is also supported by a change

made to the Administrative Procedure Act (APA) by the legislature in 1999. In an

attempt to limit the number of rule challenges based upon APA requirements, the

legislature clarified that state agencies are required to meet these sections ofthe APA

against the standard of "substantial compliance" (Texas Government Code, §2001.035).

The legislature specifically identified Texas Government Code, §2001.0225, as falling

under this standard. As discussed in this analysis and elsewhere in this preamble, the

commission has substantially complied with the requirements ofTexas Government

Code, §200l.0225.
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The rules implement requirements ofthe FCAA, specifically to adopt and implement

SIPs to attain and maintain the NAAQS, including a requirement to adopt and

implement permit programs. The specific intent ofthe rulemaking is to address those

sections submitted as revisions to the NSR SIP and subsequently were disapproved by

the EPA. Specifically, those concern definitions for and other changes to the PAL rules,

and that excess emissions are violations ofthe permit. The rulemaking would also limit

when existing pollution control standard permit registrations can be amended or

renewed and the deadline for final registrations under this specific standard permit. The

rules were not developed solely under the general powers ofthe agency, but are

authorized by specific sections ofTexas Health and Safety Code, Chapter 382 (also

known as the TCAA), and the Texas Water Code, which are cited in the STATUTORY

AUTHORTIY section ofthis preamble. Therefore, this rulemaking action is not subject

to the regulatory analysis provisions ofTexas Government Code, §2001.022S(b).

TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2007.002(S), taking means a governmental action

that affects private real property, in whole or in part or temporarily or permanently, in a

manner that requires the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to the United States

Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that
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affects an owner's private real property that is the subject ofthe governmental action, in

whole or in part or temporarily or permanently, in a manner that restricts or limits the

owner's right to the property that would otherwise exist in the absence ofthe

governmental action; and is the producing cause of a reduction of at least 25% in the

market value ofthe affected private real property, determined by comparing the market

value ofthe property as ifthe governmental·action is not in effect and the market value

ofthe property determined as ifthe governmental action is in effect.

The commission completed a takings impact analysis for this rulemaking action under

the Texas Government Code, §2007.043. The primary purpose ofthis rulemaking

action, as discussed elsewhere in this preamble, is to address those sections submitted

as revisions to the NSR SIP and subsequently were disapproved by the EPA. Specifically,

the changes concern definitions for and other changes to the PAL rules, limitations

regarding use of pollution control standard permit registrations, and that excess

emissions are violations ofthe permit.

The rules will not create any additional burden on private real property. The rules will

not affect private real property in a manner that would require compensation to private

real property owners under the United States Constitution or the Texas Constitution.

The proposal also will not affect private real property in a manner that restricts or limits

an owner's right to the property that would otherwise exist in the absence ofthe
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governmental action. Therefore, the rulemaking will not cause a taking under Texas

Government Code, Chapter 2007.

CONSISTENCYWITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking action relates to an action or actions

subject to the Texas Coastal Management Program (CMP) in accordance with the

Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201

etseq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning

Consistency with the Texas Coastal Management Program. As required by §281.4s(a)(3)

and 31 TAC §SOS.11(b)(2), relating to Actions and Rules Subject to the CMP,

commission rules governing air pollutant emissions must be consistent with the

applicable goals and policies ofthe CMP. The commission reviewed this action for

consistency with the CMP goals and policies in accordance with the rules ofthe Coastal

Coordination Council, and determined that the action is consistent with the applicable

CMP goals and policies.

The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and

enhance the diversity, quality, quantity, functions, and values of coastal natural resource

areas (31 TAC §S01.120)) The CMP policy applicable to this rulemaking action is the

policy that commission rules comply with federal regulations in 40 CFR to protect and

enhance air quality in the coastal areas (31 TAC §S01.14(q)). The rules will benefit the
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environment by ensuring that certain state and federal permitting requirements are

consistent to ensure protection of air quality. Therefore, in accordance with 31 TAC

§Sos.22(e), the commission affirms that this rulemaking action is consistent with CMP

goals and policies.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Chapter 116 is an applicable requirement ofChapter 122, Federal Operating Permits

Program. Owners or operators subject to the federal operating permit program must,

consistent with the revision process in Chapter 122, upon the effective date ofthe

adopted rulemaking, revise their operating permit to include the new Chapter 116

requirements. Additionally, sources subject to the rules may become subject to the

federal operating permit program.

PUBLIC COMMENT

The commission held a public hearing on September 20, 2010, and no comments were

submitted. The comment period closed on September 27, 2010. The commission

received written comments from an individual citizen, EAP, and the Texas Industry

Project (TIP).

RESPONSE TO COMMENTS

TIP supported the revisions and clarifications to Chapter 116 that further the goal of
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federally approvable rules.

The commission appreciates the TIP's support on this issue.

An individual citizen requested all existing permits, especially those related to oil and

gas facilities, be subject to the rule changes.

This rulemaking implements the applicable elements ofthe major NSR and

PAL permit programs and is at least as stringent as the federal rules and

policies. The rulemaking action also ensuresthat TCEQ rules will meet the

conditions ofFCAA, §uo, which requires that the elements ofthe SIP be

enforceable, include replicable elements, and ensure compliance and

accountability. Oil and gas facilities that are subject to the aforementioned

programs will be required to complywith these revisions.

TIP commented that new rule language in §116.115, stating that emissions exceeding the

maximum allowable emission rates are not authorized and are a violation ofthe permit,

was redundant and, therefore, unnecessary. TIP also stated that this revision was

unrelated to NSR reform and its presence in a SIP approved section ofthe rule opened a

potential SIP gap.
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The commenter is correct that this change is not directly related to EPA's

disapproval notice. However, EPA regularly comments on the lack of

similar language in permits. Therefore, this change assists with further

ensuring that the permits that are issued, which are based on these rules,

are enforceable. Both rules and permits must be enforceable for inclusion

in the SIP. Although the commission is adding this text to a SIP-approved

rule, which will now be subject to EPA review again, the commission

expectsthat any gap resulting from commission adoption ofthe rule, until

EPA review, will not result in any adverse effects. This is because the

commission is confident that permits issued prior to this rule change are

also enforceable.

TIP commented that existing TCEQ rules require all facilities that emit a PAL pollutant

be included in the PAL permit. TIP also commented that EPA's lack of clarity on

whether the Texas rules allow for emission caps that do not include all facilities at a

major source lacks basis in the rules.

Although the commission's position is that the current language in

§116.182(1) and §116.186 requires the applicant for a PAL to include all

facilities thatwould be subject to the PAL permit to be included and the

current practice ofthe Air Permit Division isto require all facilities that
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emit the PAL pollutant to be included in the PAL permit, the commission is

making further changes to this rule. The EPA in its September 15, 2010,

final disapproval notice stated that §116.186 providesfor an emission cap

that may not account for all the emissions ofa pollutant at a major

stationary source. Additionally, EPA stated that §116.182(l) requires

applicantsto submit a list offacilities to be included in the PAL, such that

not all facilities at the entire stationary source are specifically required to

be included in the PAL. Due to the continuing confusion regarding this

issue, the commission is making additional changes to the rule to add the

phrase "that emit the PAL pollutant" and to remove the phrase "to be

included in the PAL permit."

TIP commented that the inclusion of references to federal definitions for monitoring

systems included in §116.186(c)(l) is inconsistent with definitions for monitoring

systems found in other commission rules, notably those in Chapters 115 and 117. TIP

stated that TCEQ should align all substantive definitions ofthese terms with existing

definitions to avoid inconsistency and confusion among various programs and portions

ofthe Texas rules. TIP also stated that TCEQ should add the proposed definitions to the

general provisions of Chapter 101.
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The commission has not changed the rule in response to this comment. TIP

is correct that the commission referenced federal definitions of

"continuous emission monitoring system" and "continuous parameter

monitoring system" for use in §116.186(c)(1) and that the definitions in the

proposed references are not the same as the definitions of "continuous

monitoring", "CEMS", and "PEMS" in other TCEQ rule chapters such as 30

TAC Chapter 115, Control ofAir Pollution from Volatile Organic

Compounds, or Chapter 117, Control ofAir Pollution from Nitrogen

Compounds. Chapters 115 and 117 are rules intended to ensure that

reasonably available control technology (RACT) is applied to new and

existing sources in specific areas in order to help those areas achieve and

maintain attainment with the ozone NAAQS. Those chapters also contain

requirements that are more stringent than RACT as part ofthe TCEQ's

ozone NAAQS attainment demonstrations. The objectives, control

technology requirements, implementation strategy, and underlying rule

language is necessarily different when comparing a federal NSR

authorization program such as the PAL permits program, to rules such as

those in Chapters 115 and 117. The definitions are more appropriate for use

with the PAL permit program than are the existing definitions within

Chapters 115 and 117. Revising the definitions in Chapters 115 and 117, or
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establishing new definitions within Chapter 101 is beyond the scope ofthis

rulemaking.

The EPA requested that TCEQ clarify,that the references to BACT in §116.192(a) refer to

federal BACT as defined in the FCCA.

The commission agrees with the comment and is changing §116.192(a)(I)

and (4) to specifically state that the BACT equivalent required by the rule is

federal BACT as identified in §116.160(c){t)(A).

The EPA commented that §116.192(a) should be revised to clearly require all facilities

contributing to an increase in emissions resulting in source's emissions equaling or

exceeding its PAL are subject to PSD or NNSR.

The commission agrees with the comment and is changing §116.192(a)(2) to

state clearly that all facilities contributing to an increase in emissions

resulting in source's emissions equaling or exceeding its PAL are subject to

major NSR review and specify that the authorization required shall be

either a PSD or NNSR permit. This change will help ensure that this section

ofthe rule is approvable into the SIP.
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The EPA requested that §n6.192(C) reference both 40 CFR §S2.21(aa)(n) and

§S1.16s(f)(n) in order to trigger applicability of PSD and NNSR.

The commission agrees with the comment and is changing §116.192(C)(1)(C)

to include both references to the federal regulations to ensure the

commission rules include adequate references to corresponding federal

rules.

TIP commented that the revision to §n6.601 does not directly relate to one ofthe EPA's

stated bases for disapproving the rule and opens a new SIP gap.

The commission has made no changes in response to this comment. The

adopted change to the rule removes citationsto rules that are now obsolete,

because EPA has either disapproved the rule (§116.617) or the rules have

been not acted upon by EPA and, subsequently, withdrawn from EPA

consideration by the commission due to being repealed (§116.620 and

§116.621), and replaces those citations with generic language that the

commission expects to be non-controversial and, therefore, should be

approvable by EPA. While EPA did not comment in its disapproval (75

Federal Register 56423, September 15, 2010) of §116.617 that a reference to

the rule elsewhere was an issue, it is clearthat such a reference is now
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inappropriate. Further, although the commission's current practice is to

use its authority to adopt standard permits as non-rule standard permits, it

wants to retain its option to adopt standard permits as rules in Chapter 116,

Subchapter F. Any such standard permit would need to be submitted to EPA

as a SIP revision. Therefore, the resulting SIP gap is not ofsuch concern

that the commission wantsto retain a reference to rulesthat are not in the

SIP or have been repealed.

The EPA supported the discontinuation ofthe pollution control standard permit by the

commission's proposed changesto §116.617, but noted that many facilities may continue

to rely on it and that these permits were not part ofthe federally approved TCEQ NSR

SIP. The EPA also acknowledged the TCEQ's development of a non-rule pollution

control standard permit. TIP commented that the revision to §116.617 to limit the use of

the pollution control standard permit does not address EPA's disapproval ofthis

authorization and the TCEQ should confirm that existing authorizations under this

section ofthe rule are valid.

The TCEQ maintains its position that §116.617 is an efficient and legally

supportable authorization for pollution control projects in Texas. The

commission's position is that the authorizationsthat have been issued
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under §n6.617 prior to this change in the rule, and all other prior versions

ofthis standard permit, remain valid permits.

The TCEQ has proposed a new non-rule PCP standard permit and has

received commentsfrom EPA regarding that proposal. The executive

director will present his response to those comments to the commission for

consideration ofa new non-rule PCP standard permit.

The EPA commented that, although TCEQ was not submitting §116.617 as a SIP

revision, it was submitting comments on §116.617 to assure that Texas' ongoing

implementation of any pollution control standard permit was consistent with the basis

for disapproval expressed in EPA's final disapproval notice (see September 15, 2010 (75

Federal Register 56424)).

On September 23, 2009, the EPA proposed disapproval of§n6.617 (74

Federal Register 48467,), as adopted by the commission effective February

1, 2006. The amendmentsto §n6.617 were adopted in 2006 to address prior

commentsfrom EPA after the opinion ofthe District ofColumbia Circuit

Court ofAppeals in New York v. EPA (June 24, 2005), which ruled that

EPA's rules that exempted pollution control projects from PSD review by

defining "modifications" to exclude collateral emission increases associated
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with those projects did not meet the requirements ofthe FCAA. Specifically,

the amendments adopted in 2006 clarified that any project that constitutes

a new major stationary source or major modification as defined in §116.12

is subject to the requirements ofChapter 116, Subchapter B, rather than the

requirements ofChapter 116, Subchapter F. The commission appropriately

interpreted the New York opinion to apply to the PSD permitting program

and, therefore, made amendments to §116.617 to continue the program to

assist with the efficient authorization method for installation ofpollution

control equipment for projects that do not trigger federal review.

The EPA acknowledged that §116.617 (as adopted in 2006) explicitly

prohibits the use ofthe PCP Standard Permit for newmajor sources and

major modifications; thus, addressing the court's decision inNew York v.

EPA. The EPA has not adopted any rules that provide detailed requirements

for this type ofpermit, or any rules prohibiting it. In fact, the applicable

rule in 40 CFR §Sl.160 is broadly written and has been interpreted by EPA

to provide states discretion to tailor their own minor NSR permit programs.

As noted earlier, the conuDission's standard permit program is part ofthe

approved Texas SIP, and EPA has determined it meets 40 CFR Part SL The

commission is challenging the EPA's disapproval Of§116.617.
STAFF 

RECOMMENDATIONS
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SUBCHAPTERA:DE~ONS

§U6.12

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §S.102, concerning General

Powers, which provides the commission with the general powers to carry out its duties

under the TWC; TWC, §S.103, concerning Rules, which authorizes the commission to

adopt rules necessary to carry out its powers and duties under the TWC; TWC, §S.lOS,

concerning General Policy, which authorizes the commission by rule to establish and

approve all general policy ofthe commission; and under Texas Health and Safety Code

(THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes ofthe Texas Clean Air Act. The amendment is

also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes

the commission's purpose to safeguard the state's air resources, consistent with the

protection of public health, general welfare, and physical property; THSC, §382.011,

concerning General Powers and Duties, which authorizes the commission to control the

quality ofthe state's air; THSC, §382.012, concerning State Air Control Plan, which

authorizes the commission to prepare and develop a general, comprehensive plan for

the proper control ofthe state's air; THSC, §382.016, concerning Monitoring

Requirements; Examination ofRecords, which authorizes the commission to prescribe

reasonable requirements for measuring and monitoring the emissions of air
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contaminants from a source or from an activity causing or resulting in the emission of

air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures,

which authorizes the commission to prescribe sampling methods and procedures to be

used in determining violations of and compliance with the commission's rules; THSC,

§382.040, concerning Documents; Public Property, which provides that all information,

documents, and data collected by the commission in performing its duties are state

property; THSC, §382.051, concerning Permitting Authority ofCommission; Rules,

which authorizes the commission to issue permits for construction of new facilities or

modifications to existing facilities that may emit air contaminants; THSC, §382.o5n,

concerning Permit Consolidation and Amendment, which authorizes the commission to

consolidate various authorizations; THSC, §382.0512, concerning Modification of

Existing Facility, which prescribes how the commission will evaluate modifications of

existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes

the commission to establish and enforce permit conditions; THSC, §382.0514,

concerning Sampling, Monitoring, and Certification, which authorizes the commission

to require sampling and monitoring of a permitted federal source or facility; THSC,

§382.0515, concerning Application for Permit, which specifies permit application

requirements; and THSC, §382.0518, concerning Preconstruction Permit, which

authorizes the commission to issue preconstruction permits. The amendment is also

adopted under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et

seq., which requires states to submit state implementation plan revisions that specify
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the manner in which the national ambient air quality standard will be achieved and

maintained within each air quality control region ofthe state.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.016,

382.017, 382.021, 382.040, 382.051, 382.0511 - 382.°515, and 382.0518; and FCAA, 42

USC, §§7401 etseq.

§U6.12. Nonattainment and Prevention ofSignificant Deterioration Review

Definitions.

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

the commission, the terms used by the commission have the meanings commonly

ascribed to them in the field of air pollution control. The terms in this section are

applicable to permit review for major source construction and major source

modification in nonattainment areas. In addition to the terms that are defined by the

TCAA, and in §101.1 ofthistitle (relating to Definitions), the following words and terms,

when used in Chapter 116, Subchapter B, Divisions 5 and 6 ofthis title (relating to

Nonattainment Review Permits and Prevention of Significant Deterioration Review);

and Chapter 116, Subchapter C, Division 1ofthis title (relating to Plant-Wide

Applicability Limits), have the following meanings, unless the context clearly indicates

otherwise.
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(1) Actual emissions--Actual emissions as of a particular date are equal

to the average rate, in tons per year, at which the unit actually emitted the pollutant

during the 24-month period that precedes the particular date and that is representative

of normal source operation, except that this definition shall not apply for calculating

whether a significant emissions increase has occurred, or for establishing a plant-wide

applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual

emissions shall apply for this purpose. The executive director shall allow the use of a

different time period upon a determination that it is more representative of normal

source operation. Actual emissions shall be calculated using the unit's actual operating

hours, production rates, and types ofmaterials processed, stored, or combusted during

the selected time period. The executive director may presume that the source-specific

allowable emissions for the unit are equivalent to the actual emissions, e.g., when the

allowable limit is reflective of actual emissions. For any emissions unit that has not

begun normal operations on the particular date, actual emissions shall equal the

potential to emit ofthe unit on that date.

(2) Allowable emissions--The emissions rate of a stationary source,

calculated using the maximum rated capacity ofthe source (unless the source is subject

to federally enforceable limits that restrict the operating rate, or hours of operation, or

both), and the most stringent ofthe following:
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(A) the applicable standards specified in 40 Code of Federal

Regulations Part 60 or 61;

(B) the applicable state implementation plan emissions limitation

including those with a future compliance date; or

(C) the emissions rate specified as a federally enforceable permit

condition including those with a future compliance date.

(3) Baseline actual emissions--The rate of emissions, in tons per year,

of a federally regulated new source review pollutant.

(A) For any existing electric utility steam generating unit, baseline

actual emissions means the average rate, in tons per year, at which the unit actually

emitted the pollutant during any consecutive 24-month period selected by the owner or

operator within the five-year period immediately preceding when the owner or operator

begins actual construction of the project. The executive director shall allow the use of a

different time period upon a determination that it is more representative of normal

source operation.
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(B) For an existing facility (other than an electric utility steam

generating unit), baseline actual emissions means the average rate, in tons per year, at

which the facility actually emitted the pollutant during any consecutive 24-month

period selected by the owner or operator within the ten-year period immediately

preceding either the date the owner or operator begins actual construction ofthe

project, or the date a complete permit application is received for a permit. The rate shall

be adjusted downward to exclude any emissions that would have exceeded an emission

limitation with which the major stationary source must currently comply with the

exception ofthose required under 40 Code of Federal Regulations Part 63, had such

major stationary source been required to comply with such limitations during the

consecutive 24-month period.

(C) For a new facility, the baseline actual emissions for purposes of

determining the emissions increase that will result from the initial construction and

operation ofsuch unit shall equal zero; and for all other purposes during the first two

years following initial operation, shall equal the unit's potential to emit.

(D) The actual average rate shall be adjusted downward to exclude

any non-compliant emissions that occurred during the consecutive 24-month period.

For each regulated new source review pollutant, when a project involves multiple

facilities, only one consecutive 24-month period must be used to determine the baseline
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actual emissions for the facilities being changed. A different consecutive 24-month

period can be used for each regulated new source review pollutant. The average rate

shall not be based on any consecutive 24-month period for which there is inadequate

information for determining annual emissions, in tons per year, and for adjusting this

amount. Baseline emissions cannot occur prior to November 15, 1990.

(E) The actual average emissions rate shall include fugitive

emissions to the extent quantifiable. Until March 1, 2016, emissions previously

demonstrated as resulting from planned maintenance, startup, orshutdown activities;

historically unauthorized; and subject to reporting under Chapter 101 ofthis title

(relating to General Air Quality Rules) shall be included to the extent that they have

been authorized, or are being authorized.

(4) Basic design parameters--For a process unit at a steam electric

generating facility, the owner or operator may select as its basic design parameters

either maximum hourly heat input and maximum hourly fuel consumption rate or

maximum hourly electric output rate and maximum steam flow rate. When establishing

fuel consumption specifications in terms ofweight or volume, the minimum fuel quality

based on British thermal units content shall be used for determining the basic design

parameters for a coal-fired electric utility steam generating unit. The basic design

parameters for any process unit that is not at a steam electric generating facility are
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maximum rate offuel or heat input, maximum rate of material input, or maximum rate

of product output. Combustion process units will typically use maximum rate of fuel

input. For sources having multiple end products and raw materials, the owner or

operator shall consider the primary product or primary raw material when selecting a

basic design parameter. The owner or operator may propose an alternative basic design

parameter for the source's process units to the executive director ifthe owner or

operator believes the basic design parameter as defined in this paragraph is not

appropriate for a specific industry or type of process unit. Ifthe executive director

approves ofthe use of an alternative basic design parameter, that basic design

parameter shall be identified and compliance required in a condition in a permit that is

legally enforceable.

(A) The owner or operator shall use credible information, such as

results of historic maximum capability tests, design information from the manufacturer,

or engineering calculations, in establishing the magnitude ofthe basic design parameter.

(B) If design information is not available for a process unit, the

owner or operator shall determine the process unit's basic design parameter(s) using the

maximum value achieved by the process unit in the five-year period immediately

preceding the planned activity.
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(C) Efficiency of a process unit is not a basic design parameter.

(5) Begin actual construction--In general, initiation of physical on-site

construction activities on an emissions unit that are of a permanent nature. Such

activities include, but are not limited to, installation of building supports and

foundations, laying of underground pipework, and construction of permanent storage

structures. With respect to a change in method of operation, this term refers to those

on-site activities other than preparatory activities that mark the initiation of the change.

(6) Building, structure, facility, or installation--A1l ofthe pollutantemitting activities that belong to the same industrial grouping, are located in one or

more contiguous or adjacent properties, and are under the control ofthe same person

(or persons under common control). Pollutant-emitting activities are considered to be

part ofthe same industrial grouping ifthey belong to the same "major group" (i.e., that

have the same two-digit code) as described in the Standard Industrial Classification

Manual, 1972, as amended by the 1977 supplement.

(7) Clean coal technology--Any technology, including technologies

applied at the precombustion, combustion, or post-combustion stage, at a new or

existing facility that will achieve significant reductions in air emissions ofsulfur dioxide
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or oxides of nitrogen associated with the utilization of coal in the generation of

electricity, or process steam that was not in widespread use as of November 15, 1990.

(8) Clean coal technology demonstration project--A project using

funds appropriated under the heading "Department of Energy-Clean Coal Technology,"

up to a total amount of $2.5 billion for commercial demonstration of clean coal

technology, or similar projects funded through appropriations for the United States

Environmental Protection Agency. The federal contnbution for a qualifying projectshall

be at least 20% ofthe total cost ofthe demonstration project.

(9) Commence--As applied to construction of a major stationary source

or major modification, means that the owner or operator has all necessary

preconstruction approvals or permits and either has:

(A) begun, or caused to begin, a continuous program of actual onsite construction ofthe source, to be completed within a reasonable time; or

(B) entered into binding agreements or contractual obligations,

which cannot be canceled or modified without substantial loss to the owner or operator,

to undertake a program of actual construction ofthe source to be completed within a

reasonable time.
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(10) Construction--Any physical change or change in the method of

operation (including fabrication, erection, installation, demolition, or modification of an

emissions unit) that would result in a change in actual emissions.

(11) Contemporaneous period--For major sources the period between:

(A) the date that the increase from the particular change occurs;

and

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

change commences.

(12) De minimis threshold test (netting)--A method of determining if

a proposed emission increase will trigger nonattainment or prevention ofsignificant

deterioration review. The summation ofthe proposed project emission increase in tons

per year with all other creditable source emission increases and decreases during the

. contemporaneous period is compared to the significant level for that pollutant. Ifthe

significant level is exceeded, then prevention ofsignificant deterioration and/or

nonattainment review is required.
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(13) Electric utility steam generating unit--Any steam electric

generating unit that is constructed for the purpose ofsupplying more than one-third of

its potential electric output capacity and more than 25 megawatts electrical output to

any utility power distribution system for sale. Any steam supplied to a steam

distribution system for the purpose of providing steam to a steam-electric generator that

would produce electrical energy for sale is included in determining the electrical energy

output capacity ofthe affected facility.

(14) Federally regulated new source review pollutant--As defined

in subparagraphs (A) - (D) ofthis paragraph:

(A) any pollutant for which a national ambient air quality standard

has been promulgated and any constituents or precursors for such pollutants identified

by the United States Environmental Protection Agency;

(B) any pollutant that is subject to any standard promulgated under

Federal Clean Air Act (FCAA), §111;

(C) any Class I or II substance subject to a standard promulgated

under or established by FCAA, Title VI; or
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(D) any pollutant that otherwise is subject to regulation under the

FCAA; except that any or all hazardous air pollutants either listed in FCAA, §112 or

added to the list under FCAA, §112(b)(2), which have not been delisted under FCAA,

§112(b)(3), are not regulated new source review pollutants unless the listed hazardous

air pollutant is also regulated as a constituent or precursor of a general pollutant listed

under FCAA, §108.

(15) Lowest achievable emission rate--For any emitting facility, that

rate of emissions of a contaminant that does not exceedthe amount allowable under

applicable new source performance standards promulgated by the United States

Environmental Protection Agency under 42 United States Code, §7411, and that reflects

the following:

(A) the most stringent emission limitation that is contained in the

rules and regulations of any approved state implementation plan for a specific class or

category offacility, unless the owner or operator ofthe proposed facility demonstrates

that such limitations are not achievable; or

(B) the most stringent emission limitation that is achieved in

practice by a specific class or category offacilities, whichever is more stringent.
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(16) Major facility--Any facility that emits or has the potential to emit

100 tons per year or more ofthe plant-wide applicability limit (PAL) pollutant in an

attainment area; or any facility that emits or has the potential to emit the PAL pollutant

in an amount that is equal to or greater than the major source threshold for the PAL

pollutant in Table I ofthis section for nonattainment areas.

(17) Major stationary source--Any stationary source that emits, or has

the potential to emit, a threshold quantity of emissions or more of any air contaminant

(including volatile organic compounds (VOCS) for which a national ambient air quality

standard has been issued. The major source thresholds are identified in Table I ofthis

section for nonattainment pollutants and the major source thresholds for prevention of

significant deterioration pollutants are identified in 40 Code of Federal Regulations

(CFR) §51.166(b)(1). A source that emits, or has the potential to emit a federally

regulated new source review pollutant at levels greater than those identified in 40 CFR

§51.166(b)(1) is considered major for all prevention ofsignificant deterioration

pollutants. A major stationary source that is major for VOCS or nitrogen oxides is

considered to be major for ozone. The fugitive emissions of a stationary source shall not

be included in determining for any ofthe purposes ofthis definition whether it is a

major stationary source, unless the source belongs to one ofthe categories of stationary

sources listed in 40 CFR §51.165(a)(1)(iv)(C).
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(18) Major modification--Asfollows.

(A) Any physical change in, or change in the method of operation of

a major stationary source that causes a significant project emissions increase and a

significant net emissions increase for any federally regulated new source review

pollutant. At a stationary source that is not major prior to the increase, the increase by

itselfmust equal or exceed that specified for a major source. At an existing major

stationary source, the increase must equal or exceed that specified for a major

modification to be significant. The major source and significant thresholds are provided

in Table I ofthis section for nonattainment pollutants. The major source and significant

thresholds for prevention ofsignificant deterioration pollutants are identified in 40

Code of Federal Regulations §51.166(b)(1) and (2g),respectively.

Figure: go TAC §116.12(18)(A)

TABLE I

MAJOR SOURCE/MAJOR MODIFICATION EMISSION THRESHOLDS

POLLUTANT

designation1

MAJOR

SOURCE

tons/year

SIGNIFICANT

LEVEU

tons/year

OFFSET RATIO

minimum
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OZONE (VOC, NOX)3. 6

I marginal7

II moderate

III serious

IV severe

CO

I moderate

II serious

S02

PMIO

I moderate

II serious

NOx5

Lead

100

100

50

25

100

50

100

100

70

100

100

40

40

25

25

100

50

40

15

15

40

0.6

1.10 to 1

1.15 to 1

1.20 to 1

1.30 to 1

1.00 to 14

1.00 to 14

1.00 to 14

1.00 to 14

1.00 to 14

1.00 to 14

1.00 to 14

1 Texas nonattainment area designations are specified in 40 Code of Federal Regulations

§81.344.

2 The significant level is applicable only to existing major sources and shall be evaluated

after netting, unless the applicant chooses to apply nonattainment new source review

(NNSR) directly to the project. The appropriate netting triggers for existing major

sources of NOx and VOC are specified in §116.150 ofthis title (relating to New Major

Source or Major Modification in Ozone Nonattainment Areas) and for other pollutants

are equal to the major modification level listed in this table.

3VOC and NOx are precursors to ozone formation and should be quantified individually

to determine whether a source is subject to NNSR under §116.150 ofthis title. As
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specified in §116.150 ofthis title, for EI Paso County, the NNSR rules apply to sources of

VOC, but not to sources of NOx.

4 The offset ratio is specified to be greater than 1.00 to 1.

VOC = volatile organic compounds

NOx = oxides of nitrogen

NO. = nitrogen dioxide

CO =carbon monoxide

SO. =sulfur dioxide

PMlO = particulate matter with an aerodynamic diameter less than or equal to ten

microns

5 Applies to the NAAQS for nitrogen dioxide (NO.).

6 For the Houston-Galveston-Brawria, Dallas-Fort Worth, and Beaumont-Port Arthur

eight-hour ozone nonattainment areas, ifthe United States Environmental Protection

Agency promulgates rules requiring new source review permit applications in these

areas to be evaluated for NNSR according to that area's one-hour standard

classification, each application will be evaluated according to that area's one-hour

standard classification. Evaluation includes both the threshold for determining ifthere

is a major modification as well as the ratio of offsets required along with any other

applicable requirement that depends upon an area's nonattainment classification.

7 For areas designated as nonattainment for ozone under Federal Clean Air Act, Title I,

Part D, Subpart 1 (42 United States Code, §7502), each application will be evaluated as if

that area was designated as Marginal. Evaluation includes both the threshold for

determining ifthere is a major modification as well as the ratio of offsets required along

with any other applicable requirement that depends upon an area's nonattainment

classification.
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(B) Aphysical change or change in the method of operation shall

not include:

(i) routine maintenance, repair, and replacement;

(ii) use of an alternative fuel or raw material by reason of an

order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and

(b) (or any superseding legislation) or by reason of a natural gas curtailment plan under

the Federal Power Act;

(iii) use of an alternative fuel by reason of an order or rule of

42 United States Code, §7425;

(iv) use of an alternative fuel at a steam generating unit to

the extent that the fuel is generated from municipal solid waste;

(v) use of an alternative fuel or raw material by a stationary

source that the source was capable of accommodating before December 21, 1976 (unless

such change would be prohibited under any federally enforceable pernrit condition

established after December 21, 1976) or the source is approved to use under any permit

issued under regulations approved under this chapter;
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(vi) an increase in the hours of operation or in the

production rate (unless the change is prohibited under any federally enforceable permit

condition that was established after December 21,1976);

(vii) any change in ownership at a stationary source;

(viii) any change in emissions of a pollutant at a site that

occurs under an existing plant-wide applicability limit;

(ix) the installation, operation, cessation, or removal of a

temporary clean coal technology demonstration project, provided that the project

complies with the state implementation plan and other requirements necessary to attain

and maintain the national ambient air quality standard during the project and after it is

terminated;

(x) for prevention ofsignificant deterioration review only,

the installation or operation of a permanent clean coal technology demonstration

project that constitutes re-powering, provided that the project does not result in an

increase in the potential to emit of any regulated pollutant emitted by the unit. This

exemption shall apply on a pollutant-by-pollutant basis; or
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(xi) for prevention ofsignificant deterioration review only,

the reactivation of a clean coal-fired electric utility steam generating unit.

(19) Necessary preconstruction approvals or permits--Those

permits or approvals required under federal air quality control laws and regulations and

those air quality control laws and regulations that are part ofthe applicable state

implementation plan.

(20) Net emissions increase--The amount by which the sum ofthe

following exceeds zero: the project emissions increase plus any sourcewide creditable

contemporaneous emission increases, minus any sourcewide creditable

contemporaneous emission decreases. Baseline actual emissions shall be used to

determine emissions increases and decreases.

(A) An increase or decrease in emissions is creditable only ifthe

following conditions are met:

(i) it occurs during the contemporaneous period;
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(ii) the executive director has not relied on it in issuing a

federal new source review permit for the source and that permit is in effect when the

increase in emissions from the particular change occurs; and

(iii) in the case of prevention ofsignificant deterioration

review only, an increase or decrease in emissions ofsulfur dioxide, particulate matter, or

nitrogen oxides that occurs before the applicable minor source baseline date is

creditable only ifit is required to be considered in calculating the amount of maximum

allowable increases remaining available.

(B) An increase in emissions is creditable ifit is the result of a

physical change in, or change in the method of operation of a stationary source only to

the extent that the new level of emissions exceeds the baseline actual emission rate.

Emission increases at facilities under a plant-wide applicability limit are not creditable.

(C) A decrease in emissions is creditable only to the extent that all

ofthe following conditions are met:

(i) the baseline actual emission rate exceeds the new level of

emissions;
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(ii) it is federally enforceable at and after the time that actual

construction on the particular change begins;

(iii) the executive director has not relied on it in issuing a

prevention ofsignificant deterioration or a nonattainment permit;

(iv) the decrease has approximately the same qualitative

significance for public health and welfare as that attributed to the increase from the

particular change; and

(v) in the case of nonattainment applicability analysis only,

the state has not relied on the decrease to demonstrate attainment or reasonable further

progress.

(D) An increase that results from a physical change at a source

occurs when the emissions unit on which construction occurred becomes operational

and begins to emit a particular pollutant. Any replacement unit that requires shakedown

becomes operational only after a reasonable shakedown period, not to exceed 180 days.

(21) Offset ratio--For the purpose ofsatisfying the emissions offset

reduction requirements of 42 United States Code, §7503(a)(1)(A), the emissions offset
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ratio is the ratio oftotal actual reductions of emissions to total emissions increases of

such pollutants. The minimum offset ratios are included in Table I ofthis section under

the definition of major modification. In order for a reduction to qualify as an offset, it

must be certified as an emission credit under Chapter 101, Subchapter H, Division 1 or 4

ofthis title (relating to Emission Credit Banking and Trading; or Discrete Emission

Credit Banking and Trading), except as provided for in §116.170(b) ofthis title (relating

to Applicability ofEmission Reductions as Offsets). The reduction must not have been

relied on in the issuance of a previous nonattainment or prevention ofsignificant

deterioration permit.

(22) Plant-wide applicability limit--An emission limitation expressed,

in tons per year, for a pollutant at a major stationary source, that is enforceable and

established in a plant-wide applicability limit permit under §116.186 ofthis title

(relating to General and Special Conditions).

(23) Plant-wide applicability limit effective date--The date of

issuance ofthe plant-wide applicability limit permit. The plant-wide applicability limit

effective date for a plant-wide applicability limit established in an existing flexible

permit is the date that the flexible permit was issued.
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(24) Plant-wide applicability limit major modification--Any

physical change in, or change in the method of operation ofthe plant-wide applicability

limit source that causes it to emit the plant-wide applicability limit pollutant at a level

equal to or greater than the plant-wide applicability limit.

(2S) Plant-wide applicability limit permit--The new source review

permit that establishes the plant-wide applicability limit.

(26) Plant-wide applicability limit pollutant--The pollutant for

which a plant-wide applicability limit is established at a major stationary source.

(27) Potential to emit--The maximum capacity of a stationary source to

emit a pollutant under its physical and operational design. Any physical or enforceable

operational limitation on the capacity ofthe stationary source to emit a pollutant,

including air pollution control equipment and restrictions on hours of operation or on

the type or amount of material combusted, stored, or processed, may be treated as part

of its design only ifthe limitation or the effect it would have on emissions is federally

enforceable. Secondary emissions, as defined in 40 Code of Federal Regulations

§S1.16s(a)(1)(viii), do not count in determining the potential to emit for a stationary

source.
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(28) Project net--The sum ofthe following: the project emissions

increase, minus any sourcewide creditable emission decreases proposed at the source

between the date of application for the modification and the date the resultant

modification begins emitting. Baseline actual emissions shall be used to determine

emissions increases and decreases. Increases and decreases must meet the creditability

criteria listed under the definition of net emissions increase in this section.

(29) Projected actual emissions--The maximum annual rate, in tons

per year, at which an existing facility is projected to emit a federally regulated new

source review pollutant in any rolling 12-month period during the five years following

the date the facility resumes regular operation after the project, or in anyone ofthe ten

years following that date, ifthe project involves increasing the facility's design capacity

or its potential to emit that federally regulated new source review pollutant. In

determining the projected actual emissions, the owner or operator ofthe major

stationary source shall include unauthorized emissions from planned maintenance,

startup, orshutdown activities, which were historically unauthorized and subject to

reporting under Chapter 101 ofthis title, to the extent they have been authorized, or are

being authorized; and fugitive emissions to the extent quantifiable; and shall consider

all relevant information, including, but not limited to, historical operational data, the

company's own representations, the company's expected business activity and the

company's highest projections of business activity, the company's filings with the state
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or federal regulatory authorities, and compliance plans under the approved state

implementation plan.

(30) Project emissions increase--The sum of emissions increases for

each modified or affected facility determined using the following methods:

(A) for existing facilities, the difference between the projected

actual emissions and the baseline actual emissions. In calculating any increase in

emissions that results from the project, that portion ofthe facility's emissions following

the project that the facility could have accommodated during the consecutive 24-month

period used to establish the baseline actual emissions and that are also unrelated to the

particular project, including any increased utilization due to product demand growth

may be excluded from the project emission increase. The potential to emit from the

facility following completion ofthe project may be used in lieu ofthe projected actual

emission rate; and

(B) for new facilities, the difference between the potential to emit

from the facility following completion ofthe project and the baseline actual emissions.

(31) Replacement facility--A facility that satisfies the following criteria:
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(A) the facility is a reconstructed unit within the meaning of 40

Code of Federal Regulations §60.1S(b)(1), or the facility replaces an existing facility;

(B) the facility is identical to orfunctionally equivalent to the

replaced facility;

(C) the replacement does not alter the basic design parameters of

the process unit;

(D) the replaced facility is permanently removed from the major

stationary source, otherwise permanently disabled, or permanently barred from

operation by a permit that is enforceable. Ifthe replaced facility is brought back into

operation, it shall constitute a new facility. No creditable emission reductions shall be

generated from shutting down the existing facility that is replaced. A replacement

facility is considered an existing facility for the purpose of determining federal new

source review applicability.

(32) Secondary emissions--Emissions that would occur as a result of

the construction or operation of a major stationary source or major modification, but do

not come from the source or modification itself. Secondary emissions must be specific,

well-defined, quantifiable, and impact the same general area as the stationary source or
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modification that causes the secondary emissions. Secondary emissions include

emissions from any off-site support facility that would not be constructed or increase its

emissions, except as a result ofthe construction or operation ofthe major stationary

source or major modification. Secondary emissions do not include any emissions that

come directly from a mobile source such as emissions from the tail pipe of a motor

vehicle, from a train, or from a vessel.

(33) Significantfacility--A facility that emits or has the potential to emit

a plant-wide applicability limit (PAL) pollutant in an amount that is equal to or greater

than the significant level for that PAL pollutant.

(34) Smallfacility--A facility that emits or has the potential to emit the

plant-wide applicability limit (PAL) pollutant in an amount less than the significant

level for that PAL pollutant.

(35) Stationary source--Any building, structure, facility, or installation

that emits or may emit any air pollutant subject to regulation under 42 United States \

Code, §§7401 etseq.

(36) Temporary clean coal technology demonstration project--A

clean coal technology demonstration project that is operated for a period offive years or
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less, and that complies with the state implementation plan and other requirements

necessary to attain and maintain the national ambient air quality standards during the

project and after it is terminated.
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SUBCHAPTER B: NEW SOURCE REVIEW PERMITS

DIVISION 1: PERMIT APPLICATION

§116.115 and §116.127

STATUTORYAUTHORITY

The amendment and new section are adopted under Texas Water Code (TWC), §S.102,

concerning General Powers, which provides the commission with the general powers to

carry out its duties under the TWC; TWC, §S.lOg, concerning Rules, which authorizes

the commission to adopt rules necessary to carry out its powers and duties under the

TWC; TWC, §S.lOS, concerning General Policy, which authorizes the commission by rule

to establish and approve all general policy ofthe commission; TWC, §7.101, concerning

Violation, which prohibits violation of a statute or rule within the commission's

jurisdiction; and under Texas Health and Safety Code (THSC), §g82.017, concerning

Rules, which authorizes the commission to adopt rules consistent with the policy and

purposes ofthe Texas Clean AirAct. The amendment and new section are adopted

under THSC, §g82.002, concerning Policy and Purpose, which establishes the

commission's purpose to safeguard the state's air resources, consistent with the

protection ofpublic health, general welfare, and physical property; THSC, §g82.011,

concerning General Powers and Duties, which authorizes the commission to control the

quality ofthe state's air; THSC, §g82.012, concerning State Air Control Plan, which

authorizes the commission to prepare and develop a general, comprehensive plan for
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the proper control ofthe state's air; THSC, §382.016, concerning Monitoring

Requirements; Examination of Records, which authorizes the commission to prescribe

reasonable requirements for measuring and monitoring the emissions of air

contaminants from a source or from an activity causing or resulting in the emission of

air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures,

which authorizes the commission to prescribe sampling methods and procedures to be

used in determining violations of and compliance with the commission's rules; THSC,

§382.040, concerning Documents; Public Property, which provides that all information,

documents, and data collected by the commission in performing its duties are state

property; THSC, §382.051, concerning Permitting Authority ofCommission; Rules,

which authorizes the commission to issue permits for construction of new facilities or

modifications to existing facilities that may emit air contaminants; THSC, §382.0511,

concerning Permit Consolidation and Amendment, which authorizes the commission to

consolidate various authorizations; THSC, §382.0512, concerning Modification of

Existing Facility, which prescribes how the commission will evaluate modifications of

existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes

the commission to establish and enforce permit conditions; THSC, §382.0514,

concerning Sampling, Monitoring, and Certification, which authorizes the commission

to require sampling and monitoring of a permitted federal source or facility; THSC,

§382.0515, concerning Application for Permit, which specifies permit application

requirements; and THSC, §382.0518, concerning Preconstruction Permit, which
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authorizes the commission to issue preconstruction permits. The amendment and new

section are also adopted under Federal Clean Air Act (FCAA), 42 United States Code

(USC), §§7401, etseq., which requires states to submit state implementation plan

revisions that specify the manner in which the national ambient air quality standard will

be achieved and maintained within each air quality control region ofthe state.

The adopted amendment and new section implement THSC, §§382.002, 382.011,

382.012,382.016,382.017,382.021,382.°4°,382.°51,382.°511 - 382.°515, and

382.°518; and FCAA, 42 USC, §§7401 etseq.

§116.115. General and Special Conditions.

(a) General and special conditions. Permits, special permits, standard permits,

and special exemptions may contain general and special conditions.

(b) General conditions. Holders of permits, special permits, standard permits,

and special exemptions shall comply with the following:

(1) the general conditions contained in the permit document ifissued or

amended prior to August 16, 1994; or
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(2) the following general conditions ifthe permit or amendment is issued

or amended on or after August 16, 1994, regardless of whether they are specifically

stated within the permit document.

(A) Report of construction progress. The permit holder shall report

start of construction, construction interruptions exceeding 45 days, and completion of

construction. The report shall be given to the appropriate regional office ofthe

commission not later than 15 working days after occurrence ofthe event.

(B) Start-up notification.

(i) The permit holder shall notify the appropriate air

program regional office ofthe commission prior to the commencement of operations of

the facilities authorized by the permit. The notification must be made in such a manner

as to allow a representative ofthe commission to be present at the commencement of

operations.

(ii) The permit holder shall provide a separate notification

for the commencement of operations for each unit of phased construction, which may

involve a series of units commencing operations at different times.
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(iii) Prior to operation ofthe facilities authorized by the

permit, the permit holder shall identify to the Office of Permitting and Registration the

source or sources of allowances to be utilized for compliance with Chapter 101,

Subchapter H, Division 3 ofthis title (relating to Mass Emissions Cap and Trade

Program).

(C) Sampling requirements.

(i) Ifsampling is required, the permit holder shall contact

the commission's Office of Compliance and Enforcement prior to sampling to obtain the

proper data forms and procedures.

(ii) All sampling and testing procedures must be approved by

the executive director and coordinated with the regional representatives ofthe

commission.

(iii) The permitholder is also responsible for providing

sampling facilities and conducting the sampling operations or contracting with an

independent sampling consultant.
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(D) Equivalency of methods. The permit holder must demonstrate

or otherwise justify the equivalency of emission control methods, sampling or other

emission testing methods, and monitoring methods proposed as alteruatives to methods

indicated in the conditions ofthe permit. Alternative methods shall be applied for in

writing and must be reviewed and approved by the executive director prior to their use

in fulfilling any requirements ofthe permit.

(E) Recordkeeping. The permit holder shall:

(i) maintain a copy ofthe permit along with records

containing the information and data sufficient to demonstrate compliance with the

permit, including production records and operating hours;

(ii) keep all required records in a file at the facility site. If,

however, the facility site normally operates unattended, records must be maintained at

an office within Texas having day-to-day operational control ofthe facility site;

(iii) make the records available at the request of personnel

from the commission or any local air pollution control agency having jurisdiction over

the site. Upon request, the commission shall make any such records of compliance

available to the public in a timely manner;
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(iv) comply with any additional recordkeeping requirements

specified in special conditions attached to the permit;

(v) retain information in the file for at least two years

following the date that the information or data is obtained; and

(vi) for persons certifying and registering a federallyenforceable emission limitation in accordance with §116.611 ofthis title (relating to

Registration To Use a Standard Permit), retain all records demonstrating compliance for

at least five years.

(F) Maximum allowable emission rates. The total emissions of air

contaminants from any ofthe sources of emissions must not exceed the values stated on

the table attached to the permit entitled "Emission Sources--Maximum Allowable

Emission Rates." Emissions that exceed the maximum allowable emission rates are not

authorized and are a violation ofthe permit.

(G) Maintenance of emission control. The permitted facilities shall

not be operated unless all air pollution emission capture and abatement equipment is

maintained in good working order and operating properly during normal facility
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operations. The permit holder shall provide notification for emissions events and

maintenance in accordance with §§101.201, 101.211, and 101.221 ofthis title (relating to

Emissions Event Reporting and Recordkeeping Requirements; Scheduled Maintenance,

Startup, and Shutdown Reporting and Recordkeeping Requirements; and Operational

Requirements).

(H) Compliance with rules.

(i) Acceptance of a permit by an applicant constitutes an

acknowledgment and agreement that the permit holderwill comply with all rules,

regulations, and orders ofthe commission issued in conformity with the Texas Clean Air

Act and the conditions precedent to the granting ofthe permit.

(ii) Ifmore than one state or federal rule or regulation or

permit condition are applicable, the most stringent limit or condition shall goveru and

be the standard by which compliance shall be demonstrated.

(iii) Acceptance includes consent to the entrance of

commission employees and agents into the permitted premises at reasonable times to

investigate conditionsrelating to the emission or concentration of air contaminants,

including compliance with the permit.
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(c) Special conditions. The holders of permits, special permits, standard permits,

and special exemptions shall comply with all special conditions contained in the permit

document.

(1) Special conditions may be attached to a permit that are more restrictive

than the requirements ofTitle 30 ofthe Texas Administrative Code.

(2) Special condition for written approval.

(A) The executive director may require as a special condition that

the permit holder obtain written approval before constructing a source under:

(i) a standard permit under Subchapter F ofthis chapter

(relating to Standard Permits); or

(ii) an exemption under Chapter 106 ofthis title (relating to

Permits by Rule).

(B) Such written approval may be required ifthe executive director

specifically finds that an increase of a particular pollutant could either:
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(i) result in a significant impact on the air environment; or

(ii) cause the facility to become subject to review under:

(I) Subchapter Cofthis chapter (relating to

Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major

Sources (FCAA, §112(g), 40 CFR Part 63)); or

(II) the provisions in Division 5 ofthis subchapter

(relating to Nonattainment Review Permits) and Division 6 ofthis subchapter (relating

to Prevention of Significant Deterioration Review).

§U6.127. Actual to Projected Actual and Emissions Exclusion Test for

Emissions.

(a) Ifprojected actual emissions are used or emissions are excluded from the

emission increase resulting from the project, the owner or operator shall document and

maintain a record ofthe following information before beginning construction, and this

information must be provided as part ofthe notification, certification, registration, or

application submitted to the executive director to claim or apply for state new source

review authorization for the project. Ifthe emissions unit is an existing electric utility
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steam generating unit, the owner or operator shall provide a copy ofthis information to

the executive director before beginning actual construction:

(1) a description ofthe project;

(2) identification ofthe facilities of which emissions of a federally

regulated new source review pollutant could be affected by the project; and

(3) a description ofthe applicability test used to determine that the project

is not a major modification for any pollutant, including the baseline actual emissions,

the projected actual emissions, the amount of emissions excluded from the project

emissions increase and an explanation for why such amount was excluded, and any

netting calculations, if applicable.

(b) Ifprojected actual emissions are used to determine the project emission

increase at a facility, the owner or operator shall monitor the emissions of any regulated

new source review pollutant that could increase as a result ofthe project at that facility

and calculate and maintain a record ofthe annual emissions from that facility, in tons

per year, on a calendar year basis for:
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(1) a period offive years following resumption ofregular operations after

the change; or

(2) a period often years following resumption ofregular operations after

the change ifthe project increases the design capacity or potential to emit ofthat

regulated new source review pollutant at that facility.

(c) Ifthe facility is an electric utility steam generating unit, the owner or operator

shall submit a report to the executive director within 60 days after the end of each

calendar year of which records mustbe maintained documenting the unit's annual

emissions during the calendar year that preceded submission ofthe report.

(d) Ifthe facility is not an electric utility steam generating unit, the owner or

operator shall submit a report to the executive director ifthe annual emissions from the

project exceed the baseline actual emissions by a significant amount for that pollutant,

and the emissions exceed the preconstruction projection for any facility. The report shall

be submitted to the executive director within 60 days after the end of each calendar

year. The report shall contain:

(1) the name, address, and telephone number ofthe major stationary

source; and
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(2) the calculated actual annual emissions.

(e) The owner or operator ofthe facility shall make the information required to

be documented and maintained by this section available for review upon request for

inspection by the executive director, local air pollution control program, and the general

public.
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SUBCHAPTER B: NEW SOURCE REVIEW PERMITS

DIVISION 1: PERMITAPPLICATION

STATUfORY AUTHORITY

The repeal is adopted under Texas Water Code (TWC), §S.102, concerning General

Powers, which provides the commission with the general powers to carry out its duties

under the TWC; TWC, §S.lOg, concerning Rules, which authorizes the commission to

adopt rules necessary to carry out its powers and duties under the TWC; TWC, §S.lOS,

concerning General Policy, which authorizes the commission by rule to establish and

approve all general policy ofth,e commission; and under Texas Health and Safety Code

(THSC), §g82.017, concerning Rules, which authorizes the commission to adopt rules

consistent with the policy and purposes ofthe Texas Clean Air Act. The repeal is also

adopted under THSC, §g82.002, concerning Policy and Purpose, which establishes the

commission's purpose to safeguard the state's air resources, consistent with the

protection of public health, general welfare, and physical property; THSC, §g82.011,

concerning General Powers and Duties, which authorizes the commission to control the

quality ofthe state's air; THSC, §g82.012, concerning State Air Control Plan, which

authorizes the commission to prepare and develop a general, comprehensive plan for

the proper control ofthe state's air; THSC, §g82.016, concerning Monitoring

Requirements; Examination of Records, which authorizes the commission to prescribe
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reasonable requirements for measuring and monitoring the emissions of air

contaminants from a source or from an activity causing or resulting in the emission of

air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures,

which authorizes the commission to prescribe sampling methods and procedures to be

used in determining violations of and compliance with the commission's rules; THSC,

§382.040, concerning Documents; Public Property, which provides that all information,

documents, and data collected by the commission in performing its duties are state

property; THSC, §382.051, concerning Permitting Authority ofCommission; Rules,

which authorizes the commission to issue permits for construction of new facilities or

modifications to existing facilities that may emit air contaminants; THSC, §382.0511,

concerning Permit Consolidation and Amendment, which authorizes the commission to

consolidate various authorizations; THSC, §382.0512, concerning Modification of

Existing Facility, which prescribes how the commission will evaluate modifications of

existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes

the commission to establish and enforce permit conditions; THSC, §382.0514,

concerning Sampling, Monitoring, and Certification, which authorizes the commission

to require sampling and monitoring of a permitted federal source or facility; THSC,

§382.0515, concerning Application for Permit, which specifies permit application

requirements; and THSC, §382.0518, concerning Preconstruction Permit, which

authorizes the commission to issue preconstruction permits. The repeal is also adopted

under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et seq.,
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which requires states to submit state implementation plan revisions that specify the

manner in which the national ambient air quality standard will be achieved and

maintained within each air quality control region ofthe state.

The adopted repeal implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.017,

382.021, 382.040, 382.051, 382.0511 - 382.°515, and 382.0518; and FCAA, 42 USC,

§§7401 etseq.
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SUBCHAPTER C: PLANT-WIDE APPLICABILIlY LIMITS

DIVISION 1: PLANT-WIDE APPLICABILI1Y LIMITS

§§116.180, 116.182, 116.186, 116.188, 116.190,

116.192

STATUTORY AUTIIORITY

The amendments are adopted under Texas Water Code (TWC), §S.102, conceruing

General Powers, which provides the commission with the general powers to carry out its

duties under the TWC; TWC, §S.lOg, conceruing Rules, which authorizes the

commission to adopt rules necessary to carry out its powers and duties under the TWC;

TWC, §S.lOS, conceruing General Policy, which authorizes the commission by rule to

establish and approve all general policy ofthe commission; and under Texas Health and

SafetyCode (THSC), §g82.017, concerning Rules, which authorizes the commission to

adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The

amendments are also adopted under THSC, §g82.002, conceruing Policy and Purpose,

which establishes the commission's purpose to safeguard the state's air resources,

consistent with the protection of public health, general welfare, and physical property;

THSC, §g82.011, conceruing General Powers and Duties, which authorizes the

commission to control the quality ofthe state's air; THSC, §g82.012, conceruing State

Air Control Plan, which authorizes the commission to prepare and develop a general,

comprehensive plan for the proper control ofthe state's air; THSC, §g82.016,
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concerning Monitoring Requirements; Examination of Records, which authorizes the

commission to prescribe reasonable requirements for measuring and monitoring the

emissions of air contaminants from a source or from an activity causing or resulting in

the emission of air contaminants; THSC, §g82.021, concerning Sampling Methods and

Procedures, which authorizes the commission to prescribe sampling methods and

procedures to be used in determining violations of and compliance with the

commission's rules; THSC, §g82.040, concerning Documents; Public Property, which

provides that all information, documents, and data collected by the commission in

performing its duties are state property; THSC, §g82.0S1, concerning Permitting

Authority ofCommission; Rules, which authorizes the commission to issue permits for

construction of new facilities or modifications to existing facilities that may emit air

contaminants; THSC, §g82.0S11, concerning Permit Consolidation and Amendment,

which authorizes the commission to consolidate various authorizations; THSC,

§g82.0S12, concerning Modification of Existing Facility, which prescribes how the

commission will evaluate modifications of existing facilities; THSC, §g82.0S1g,

concerning Permit Conditions, which authorizes the commission to establish and

enforce permit conditions; THSC, §g82.0S14, concerning Sampling, Monitoring, and

Certification, which authorizes the commission to require sampling and monitoring of a

permitted federal source or facility; THSC, §g82.0S1S, concerning Application for

Permit, which specifies permit application requirements; and THSC, §g82.0S18,

concerning Preconstruction Permit, which authorizes the commission to issue
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preconstruction permits. The amendments are also adopted under Federal Clean Air Act

(FCAA), 42 United States Code (USC), §§7401, etseq., which requires states to submit

state implementation plan revisionsthat specify the manner in which the national

ambient air quality standard will be achieved and maintained within each air quality

control region ofthe state.

The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.016,

382.017,382.021,382.040,382.°51,382.°511- 382.0515, and 382.0518; and FCAA, 42

USC, §§7401 etseq.

§116.180. Applicability.

(a) The following requirements apply to a plant-wide applicability limit (PAL)

permit.

(1) Only one PAL may be issued for each pollutant at an existing major

stationary source.

(2) A PAL permit may include more than one PAL.
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(3) A PAL permit may not cover facilities or emissions units at more than

one existing major stationary source.

(4) A PAL permit may be consolidated with a new source review permit at

the existing major stationary source.

(s) A PAL permit can be issued only for an existing major stationary

source; it may not be issued for a new major stationary source as defined in 40 Code of

Federal Regulations §S1.16S(iv)(A).

(b) The new owner of a major stationary source - shall comply with §116.110(e) of

this title (relating to Applicability), provided that all facilities, or emissions units at a

major stationary source, covered by a PAL permit change ownership at the same time

and to the same person, or both the new owner and existing permit holder must obtain a

PAL permit alteration allocating the emission prior to the transfer ofthe permit by the

commission. After the sale of a facility, or emissions unit at a major stationary source,

but prior to the transfer of a permit requiring a permit alteration, the original PAL

permit holder remains responsible for ensuring compliance with the existing PAL

permit and all rules ofthe commission.
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(c) The owner ofthe facility, emissions unit at a major stationary source, group of

facilities, or account or the operator ofthe facility, emissions unit at a major stationary

source, group of facilities, or account that is authorized to act for the owner is

responsible for complying with this section, except as provided by subsection (b) ofthis

section.

§116.182. Plant-wide Applicability Limit Permit Application.

Any application for a new plant-wide applicability limit (PAL) permit or PAL

permit amendment must be completed and signed by an authorized representative. In

order to be granted a PAL permit or PAL permit amendment, the owner or operator of

the proposed facility shall submit information to the commission that demonstrates that

all ofthe following information is submitted:

(1) a list of all facilities, or emissions units at a major stationary source,

that emit the PAL pollutant, including their registration or permit number, their

potential to emit, and the expected maximum capacity. In addition, the owner or

operator ofthe source shall indicate which, if any, federal or state applicable

requirements, emission limitations, or work practices apply to each unit;
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(2) calculations ofthe baseline actual emissions with supporting

documentation;

(3) the calculation procedures that the permit holder proposes to use to

convert the monitoring system data to monthly emissions and annual emissions based

on a 12-month rolling total for each month; and

(4) the monitoring and recordkeeping proposed satisfy the requirements

of §116.186 ofthis title (relating to General and Special Conditions) for each PAL.

§116.186. General and Special Conditions.

(a) The plant-wide applicability limit (PAL) will impose an annual emission

limitation in tons per year, that is enforceable for all facilities, or emissions units at a

major stationary source, that emit the PAL pollutant. For each month during the PAL

effective period after the first 12 months of establishing a PAL, the major stationary

source owner or operator shall demonstrate that the sum ofthe monthly emissions from

each facility under the PAL for the previous 12 consecutive months is less than the PAL

(a 12-month average, rolled monthly). For each month during the first 11 months from

the PAL effective date, the major stationary source owner or operator shall demonstrate

that the sum ofthe preceding monthly emissions from the PAL effective date for each
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facility under the PAL is less than the PAL. Each PAL must include emissions of only

one pollutant. The PAL must include all emissions, including fugitive emissions, to the

extent quantifiable, from all facilities or emissions units at a major stationary source

included in the PAL that emit or have the potential to emit the PAL pollutant.

(b) The following general conditions are applicable to every PAL permit.

(1) Applicability. This section does not authorize any facility to emit air

pollutants but establishes an annual emissions level below which new and modified

facilities, or emissions units at a major stationary source, will not be subject to major

new source review for that pollutant.

(2) Sampling requirements. Ifsampling ofstacks or process vents is

required, the PAL permit holder shall contact the commission's Office of Compliance

and Enforcement prior to sampling to obtain the proper data forms and procedures. All

sampling and testing procedures must be approved by the executive director and

coordinated with the appropriate regional office ofthe commission. The PAL permit

holder is also responsible for providing sampling facilities and conducting the sampling

operations or contracting with an independent sampling consultant.
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(3) Equivalency ofmethods. The permit holder shall demonstrate the

equivalency of emission control methods, sampling or other emission testing methods,

and monitoring methods proposed as alternativesto methods indicated in the

conditions ofthe PAL permit. Alternative methods must be applied for in writing and

must be reviewed and approved by the executive director prior to their use in fulfilling

any requirements ofthe permit.

(4) Recordkeeping and reporting.

(A) A copy ofthe PAL permit along with information and data

sufficient to demonstrate continuous compliance with the emission caps contained in

the PAL permit must be maintained in a file at the plant site and made available at the

request of personnel from the commission or any air pollution control program having

jurisdiction. For facilities that normally operate unattended, this information must be

maintained at the nearest staffed location within Texas specified bythe permit holder in

the permit application. This information must include, but is not limited to, emission

cap and individual emission limitation calculations based on a 12-month rolling basis

and production records and operating hours. Additional recordkeeping requirements

may be specified in special conditions attached to the PAL permit.
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(B) The owner or operator shall retain a copy ofthe PAL permit

application and any applications for revisions to the PAL, each annual certification of

compliance under §122.146 ofthis title (relating to Compliance Certification Terms and

Conditions), and the data relied on in certifying the compliance for the duration ofthe

PAL plus five years.

(C) A semiannual report shall be submitted to the executive director

within 30 days ofthe end of each reporting period that contains:

(i) the identification of owner and operator and the permit

number;

(ii) total annual emissions (in tons peryear) based on a 12-

month rolling total for each month in the reporting period;

(iii) all data relied upon, including, but not limited to, any

quality assurance or quality control data, in calculating the monthly and annual PAL

pollutant emissions;

(iv) a list of any facility modified or added to the major

stationary source during the preceding six-month period;
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(v) the number, duration, and cause of any deviations or

monitoring malfunctions (other than the time associated with zero and span calibration

checks), and any corrective action taken. This may be satisfied by referencing the PAL

permit number in the semiannual report for the site submitted under §122.145 ofthis

title (relating to Reporting Terms and Conditions);

(vi) a notification of a shutdown of any monitoring system,

whether the shutdown was permanent or temporary, the reason for the shutdown, the

anticipated date that the monitoring system will be fully operational or replaced with

another monitoring system, and whether the emissions unit monitored by the

monitoring system continued to operate, and the calculation ofthe emissions ofthe

pollutant or the number determined by method included in the permit; and

(vii) a signed statement by the responsible official, as defined

in §122.10 ofthis title (relating to General Definitions), certifying the truth, accuracy,

and completeness ofthe information provided in the report.

(D) The owner or operator shall submit the results of any

revalidation test or method to the executive director within three months after

completion ofsuch test or method.
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(5) Maintenance of emission control. The facilities covered by the PAL

permit will not be operated unless all air pollution emission capture and abatement

equipment is maintained in good working order and operating properly during normal

facility operations.

(6) Compliance with rules. Acceptance of a PAL permit by a permit

applicant constitutes an acknowledgment and agreement that the holder will comply

with all rules and orders ofthe commission issued in conformity with the Texas Clean

Air Act and the conditions precedent to the granting ofthe permit. Ifmore than one

state or federal rule or PAL permit condition is applicable, the most stringent limit or

condition will govern and be the standard by which compliance must be demonstrated.

Acceptance includes consent to the entrance of commission employees and agents into

the permitted premises at reasonable times to investigate conditions relating to the

emission or concentration of air contaminants, including compliance with the PAL

permit.

(7) Effective period. A PAL is effective for ten years.

(8) Absence ofmonitoring data. A source owner or operator shall record

and report maximum potential emissions without considering enforceable emission
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limitations or operational restrictions for a facility during any period of time that there

is no monitoring data, unless another method for determining emissions during such

periods is specified in the PAL permit special conditions.

(9) Monitoring system requirements. Failure to use a monitoring system

that meets the requirements ofthis section is a violation ofthe PAL permit.

(10) Revalidation. All data used to establish the PAL pollutant must be

revalidated through performance testing or other scientifically valid means approved by

the executive director. Such testing must occur at least once every five years after

issuance ofthe PAL.

(n) Renewal. If a PAL renewal application is submitted to the executive

director in accordance with §n6.196 ofthis title (relating to Renewal of a Plant-wide

Applicability Limit Permit), the PAL shall not expire at the end ofthe PAL effective

period. Itshall remain in effect until a renewed PAL permit is issued by the executive

director or the application is voided.

(c) Each PAL permit must include special conditions that satisfy the following

requirements.
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(1) For the purposes ofthis subchapter, the definitions ofthe following

terms are the same as those provided in 40 Code of Federal Regulations §Sl.16S.

(A) Continuous emission monitoring system (CEMS).

(B) Continuous emissions rate monitoring system (CERMS).

(C) Continuous parameter monitoring system (CPMS).

(D) Predictive emissions monitoring system (PEMS).

(2) The PAL monitoring system must accurately determine all emissions of

the PAL pollutant in terms ofmass per unit oftime. Any monitoring system authorized

for use in the PAL permit must be based on sound science and meet generally acceptable

scientific procedures for data quality and manipulation.

(3) The PAL monitoring system must employ one or more ofthe general

monitoring approaches meeting the minimum requirements as described in

subparagraphs (A) - (D) ofthis paragraph.
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(A) An owner or operator using mass balance calculations to

monitor PAL pollutant emissions from activities using coating or solvents shall meet the

following requirements:

(i) provide a demonstrated means of validating the published

content ofthe PAL pollutant that is contained in, or created by, all materials used in or

at the facility;

(ii) assume that the facility emits all ofthe PAL pollutant that

is contained in, or created by, any raw material or fuel used in or at the facility, ifit

cannot otherwise be accounted for in the process; and

(iii) where the vendor of a material or fuel that is used in or

at the facility publishes a range of pollutant content from such material, the owner or

operator shall use the highest value ofthe range to calculate the PAL pollutant

emissions unless the executive director determinesthat there is site-specific data or a

site-specific monitoring program to support another content within the range.

(B) An owner or operator using a CEMS to monitor PAL pollutant

emissions shall meet the following requirements.
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(i) The CEMS must comply with applicable performance

specifications found in 40 Code of Federal Regulations Part 60, Appendix B.

(ii) The CEMS must sample, analyze, and record data at least

every 15 minutes while the emissions unit is operating.

(C) An owner or operator using CPMS or PEMS to monitor PAL

pollutant emissions shall meet the following requirements.

(i) The CPMS or the PEMS must be based on current sitespecific data demonstrating a correlation between the monitored parameter(s) and the

PAL pollutant emissions across the range of operation ofthe facility.

(ii) Each CPMS or PEMS must sample, analyze, and record

data at least every 15 minutes or at another less frequent interval approved by the

executive director, while the facility is operating.

(D) An owner or operator using emission factors to monitor PAL

pollutant emissions shall meet the following requirements.
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(i) All emission factors must be adjusted, if appropriate, to

account for the degree of uncertainty or limitations in the factors' development.

(ii) The facility must operate within the designated range of

use for the emission factor, if applicable.

(iii) Iftechnically practicable, the owner or operator of a

significant facility that relies on an emission factor to calculate PAL pollutant emissions

shall conduct validation testing to determine a site-specific emission factor within six

months of PAL permit issuance, unless the executive director determines that testing is

not required.

(E) An alternative monitoring approach must meet the

requirements in paragraph (1) ofthis subsection and be approved by the executive

director.

(4) Where an owner or operator of a facility cannot demonstrate a

correlation between a monitored parameter(s) and the PAL pollutant emissions rate at

all operating points ofthe facility, the executive director shall:
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(A) establish default value(s) for determining compliance with the

PAL based on the highest potential emissions reasonably estimated at such operating

point(s); or

(B) determine that operation ofthe facility during operating

conditions when there is no correlation between monitored parameter(s) and the PAL

pollutant emissions is a violation ofthe PAL.

§U6.188. Plant-wide Applicability Limit.

The plant-wide applicability limit (PAL) is the sum ofthe baseline actual

emissions ofthe PAL pollutant for each existing facility at the source to be covered. The

allowable emission rate may be used for facilities that did not exist in the baseline

period. Baseline actual emissions from facilities that were permanently shut down after

the baseline period must be subtracted from the baseline emissions rate.

(1) An amount equal to the applicable significant level for the PAL

pollutant may be added to the baseline actual emissions when establishing the PAL.

(2) When establishing the PAL level for a PAL pollutant, only one

consecutive 24-month period must be used to determine the baseline actual emissions
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for all existing facilities. However, a different consecutive 24-month period may be used

for each different PAL pollutant.

(3) The executive director shall specify a reduced PAL level(s) in the PAL

permit, to become effective on the future compliance date(s) of any applicable federal or

state regulatory requirement.

§U6.190. Federal Nonattainment and Prevention ofSignificant

Deterioration Review.

(a) An increase in emissions from operational or physical changes at a facility, or

emissions unit at a major stationary source, covered by a plant-wide applicability limit

(PAL) permit is insignificant, for the purposes of major new source review under this

subchapter, ifthe increase does not exceed the PAL.

(b) At no time are emissions reductions of a PAL pollutant that occur during the

PAL effective period creditable as decreases for purposes of offsets, unless the level of

the PAL is reduced by the amount ofsuch emissions reductions and such reductions

would be creditable in the absence ofthe PAL.
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(c) A physical or operational change not causing an exceedance of a PAL is not

subject to federal restrictions on relaxing enforceable emission limitations to avoid new

source review.

§U6.192. Amendments andAlterations.

(a) Any increase in a plant-wide applicability limit (PAL) must be made through

amendment. Amendment applications must also include the information identified in

§n6.182 ofthis title (relating to Plant-wide Applicability Limit Permit Application) for

new and modified facilities contributing to the increase in emissions so as to cause the

major stationary source's emissions to equal or exceed its PAL and are subject to the

public notice requirements under §n6.194 ofthis title (relating to Public Notice and

Comment).

(1) As part ofthis application, the major stationary source owner or

operator shall demonstrate that the sum ofthe baseline actual emissions ofthe small

facilities, plus the sum ofthe baseline actual emissions ofthe significant and major

facilities assuming application offederal best available control technology (BACT) (as

identified in §n6.160(c)(1)(A) ofthis title (relating to Prevention of Significant

Deterioration Requirements)) equivalent controls, plus the sum ofthe allowable

emissions ofthe new or modified facilities exceeds the PAL. The level of control that
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would result from federal BACT equivalent controls on each significant or major facility

shall be determined by conducting a new federal BACT analysis at the time the

application is submitted, unless the facility is currently required to comply with a federal

BACT or lowest achievable emission rate (LAER) requirement that was established

within the preceding ten years. In such a case, the assumed control level for that

emissions unit shall be equal to the level offederal BACT or LAER with which that

emissions unit must currently comply.

(2) The owner or operator shall obtain a major new source review permit

under applicable provision of Subchapter B, Division 5 and Division 6 ofthis chapter

(relating to Nonattainment Review Permits; and Prevention of Significant Deterioration

Review, respectively) for all facilities contributing to the increase in emissions so as to

cause the major stationary source's emissions to equal or exceed its PAL, regardless of

the magnitude ofthe emissions increase. These facilities shall comply with any

emissions requirements resulting from the major new source review process.

(3) The PAL permit shall require that the increased PAL level be effective

on the day any emission unit that is part ofthe PAL major modification becomes

operational and begins to emit the PAL pollutant.
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(4) The new PAL shall be the sum ofthe allowable emissions for each

modified or new facility, plus the sum ofthe baseline actual emissions ofthe significant

and major emissions units after the application offederal BACT equivalent controls as

identified in paragraph (1) ofthis subsection, plus the sum ofthe baseline actual

emissions of the small emissions units.

(b) Changes to PAL permits that do not require the PAL to be increased must be

completed through permit alteration. Unless allowed in the PAL permit special

conditions, the permit holder shall submit an alteration request prior to start of

construction for physical modifications to facilities or installation of new facilities under

the PAL. Approval must be received from the executive director prior to start of

operation ofthe facilities ifthe emissions from the new or modified facilities may exceed

100 tons per year.

(c) Acceptance of a PAL permit is agreement by the permit holder for the

executive director to reopen the PAL permit consistent with the requirements of

§116.194 ofthis title for any actions in paragraphs (1) or (2) ofthis subsection.

(1) During the PAL effective period, the executive director shall reopen the

PAL permitto:
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(A) correct typographical or calculation errors made in setting the

PAL or reflect a more accurate determination of emissions used to establish the PAL;

(B) decrease the PAL limit the owner or operator ofthe major

stationary source creates creditable emissions reductions that meet the requirements of

40 Code of Federal Regulations (CFR) §S1.16s(a)(3)(ii) for use as offsets; and

(C) revise the PAL to reflect an increase in the PAL provided the

owner or operator complies with the requirements of 40 CFR §S2.21(aa)(1l) and

§S1.16S(f)(11).

(2) During the PAL effective period, the executive director may reopen the

PAL permit for the following:

(A) revise the PAL to reflect newly applicable federal requirements

(for example, New Source Performance Standards) with compliance dates after the PAL

effective date;

(B) revise the PAL to be consistent with any other requirement, that

is enforceable as a practical matter, and that the State may impose on the major

stationary source under the state Implementation Plan; or
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(C) reduce the PAL ifthe reviewing authority determines that a

reduction is necessary to avoid causing or contributing to a National Ambient Air

Quality Standard or Prevention of Significant Deterioration increment violation, or to an

adverse impact on an air quality related value that has been identified for a Federal

Qass I area by a federal land manager and for which information is available to the

general public.
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SUBCHAPrER F: STANDARD PERMITS

§116.601 and §116.617

STATUTORY AUTHORTIY

The amendments are adopted under Texas Water Code (TWC), §S.102, concerning

General Powers, which provides the commission with the general powers to carry out its

duties under the TWC; TWC, §S.lOg, concerning Rules, which authorizes the

commission to adopt ru1es necessary to carry out its powers and duties under the TWC;

TWC, §S.lOS, concerning General Policy, which authorizes the commission by rule to

establish and approve all general policy ofthe commission; and under Texas Health and

Safety Code (THSC), §g82.017, concerning Rules, which authorizes the commission to

adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The

amendments are also adopted under THSC, §g82.002, concerning Policy and Purpose,

which establishes the commission's purpose to safeguard the state's air resources,

consistent with the protection of public health, general welfare, and physical property;

THSC, §g82.011, concerning General Powers and Duties, which authorizes the

commission to control the quality ofthe state's air; THSC, §g82.012, concerning State

Air Control Plan, which authorizes the commission to prepare and develop a general,

comprehensive plan for the proper control ofthe state's air; THSC, §g82.016,

concerning Monitoring Requirements; Examination of Records, which authorizes the

commission to prescribe reasonable requirements for measuring and monitoring the
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emissions of air contaminants from a source or from an activity causing or resulting in

the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and

Procedures, which authorizes the commission to prescribe sampling methods and

procedures to be used in determining violations of and compliance with the

commission's rules; THSC, §382.040, concerning Documents; Public Property, which

provides that all information, documents, and data collected by the commission in

performing its duties are state property; THSC, §382.051, concerning Permitting

Authority of Commission; Rules, which authorizes the commission to issue permits for

construction of new facilities or modifications to existing facilities that may emit air

contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment,

which authorizes the commission to consolidate various authorizations; THSC,

§382.0512, concerning Modification ofExisting Facility, which prescribes how the

commission will evaluate modifications of existing facilities; THSC, §382.0513,

concerning Permit Conditions, which authorizes the commission to establish and

enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and

Certification, which authorizes the commission to require sampling and monitoring of a

permitted federal source or facility; THSC, §382.0515, concerning Application for

Permit, which specifies permit application requirements; THSC, §382.0518, concerning

Preconstruction Permit, which authorizes the commission to issue preconstruction

permits; and THSC, §382.05195, concerning Standard Permit, which authorizes the

commission to issue a standard permit for new or existing similar facilities. The
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amendments are also adopted under Federal Clean Air Act (FCAA), 42 United States

Code (USC), §§7401, et seq., which requires states to submit state implementation plan

revisions that specify the manner in which the national ambient air quality standard will

be achieved and maintained within each air quality control region ofthe state.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.016,

382.017,382.021,382.04°,382.°51,382.°511- 382.°515, 382.0518, and 382.°5195;

and FCAA, 42 USC, §§7401 et seq.

§116.601. Types ofStandard Permits.

(a) For the purposes ofthis chapter a standard permit is either:

(1) one that was adopted by the commission in accordance with Texas

Government Code, Chapter 2001, Subchapter B, into this subchapter; or

(2) one that is issued by the commission in accordance with §116.603 of

this title (relating to Public Participation in Issuance of Standard Permits).

(b) Any standard permit in this subchapter adopted by the commission shall

remain in effect until it is repealed under the APA. If any adopted standard permit is
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repealed and replaced, facilities may continue to be authorized until the date of

registration required by subsection (e) ofthis section.

(c) A registration to use a standard permit adopted by the commission in this

subchapter shall be renewed by the applicant under the requirements of §n6.604 ofthis

title (relating to Duration and Renewal of Registrations to use Standard Permits) by the

tenth anniversary ofthe date ofthe original registration.

(d) If a standard permit in this subchapter adopted by the commission is repealed

and replaced, with no changes, by a standard permit issued by the commission, any

existing registration to use the repealed standard permit will be automatically converted

to a registration to use the new standard permit, ifthe facility continues to meet the

requirements. An automatically converted registration to use a standard permit shall be

renewed by the applicant under the requirements of §n6.604 ofthis title by the tenth

anniversary ofthe date ofthe new registration.

(e) If a standard permit adopted by the commission in this subchapter is repealed

and replaced with a standard permit issued by the commission, and the requirements of

the standard permit are changed in the process, persons registered to use the repealed

standard permit shall register to use the issued standard permit by the later of either the

deadline established in the issued standard permit, or the tenth anniversary ofthe
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original registration. The commission shall notify, in writing, all persons registered to

use the repealed standard permit ofthe date by which a new registration must be

submitted. Persons not wishing to register for the issued standard permit shall have the

option of applying for or qualifying for other applicable authorizations in this chapter or

in Chapter 106 ofthis title (relating to Exemptions from Permitting).

§116.617. State Pollution Control Project Standard Permit.

(a) Scope and applicability.

(1) This standard permit applies to pollution control projects undertaken

voluntarily or as required by any governmental standard, that reduce or maintain

currently authorized emission rates for facilities authorized by a permit, standard

permit, or permit by rule.

(2) The project may include:

(A) the installation or replacement of emissions control equipment;

(B) the implementation or change to control techniques; or
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(C) the substitution of compounds used in manufacturing

processes.

(3) This standard permit must not be used to authorize the installation of

emission control equipment or the implementation of a control technique that:

(A) constitutes the complete replacement of an existing production

facility or reconstruction of a production facility as defined in 40 Code of Federal

Regulations §60.1S(b)(1) and (c); or

(B) the executive director determines there are health effects

concerns or the potential to exceed a national ambient air quality standard criteria

pollutant or contaminant that results from an increase in emissions of any air

contaminant until those concerns are addressed by the registrant to the satisfaction of

the executive director; or

(C) returns a facility or group offacilities to compliance with an

existing authorization or permit unless authorized by the executive director.

(4) Prior to March 3, 2011, new or modified pollution control projects

must meet the conditions ofthis standard permit. All previous standard permit
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registrations under this section that were autho~ed prior to the effective date ofthis

rule must include the increases and decreases in emissions resulting from those projects

in any future netting calculation and all other conditions must be met upon the ten-year

anniversary and renewal ofthe original registration, or until administratively

incorporated into the facilities' permit, if applicable.

(5) Notwithstanding the requirements of §116.604 ofthis title (relating to

Duration and Renewal ofRegistrations to Use Standard Permits), on or after March 3,

2011, no new or modified registrationswill be accepted and no existing registrations will

be renewed.

(b) General requirements.

(1) Any claim under this standard permit must comply with all applicable

conditions of:

(A) §116.604(1) and (2) ofthis title (relating to Duration and

Renewal of Registrations to Use Standard Permits);

(B) §116.605(d)(1) and (2) ofthis title (relating to Standard Permit

Amendment and Revocation);
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(C) §116.610 ofthis title (relating to Applicability);

(D) §116.611 ofthis title (relating to Registration to Use a Standard

Permit);

(E) §116.614 ofthis title (relating to Standard Permit Fees); and

(F) §116.615 oftIlis title (relating to General Conditions).

(2) Construction or implementation oftIle pollution control project must

begin within 18 months of receiving written acceptance ofthe registration from tIle

executive director, witIl one 18-month extension available, and must comply witIl

§116.115(b)(2) and §116.120 ofthis title (relating to General and Special Conditions and

Voiding of Permits). Any changes to allowable emission rates authorized by this section

become effective when the project is complete and operation or implementation begins.

(3) The emissions limitations of §116.61O(a)(I) oftIlis title do not apply to

tIlis standard permit.
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(4) Predictable maintenance, startup, and shutdown emissions directly

associated with the pollution control projects must be included in the representations of

the registration application.

(5) Any increases in actual or allowable emission rates or any increase in

production capacity authorized by this section (including increases associated with

recovering lost production capacity) must occur solely as a result ofthe project as

represented in the registration application. Any increases of production associated with

a pollution control project must not be utilized until an additional authorization is

obtained. This paragraph is not intended to limit the owner or operator's ability to

recover lost capacity caused by a derate, which may be recovered and used without any

additional authorization.

(c) Replacement projects.

(1) The replacement of emissions control equipment or control technique

under this standard permit is not limited to the method of control currently in place,

provided that the control or'technique is at least as effective as the current authorized

method and all other requirements ofthis standard permit are met.
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(2) The maintenance, startup, and shutdown emissions may be increased

above currently authorized levels ifthe increase is necessary to implement the

replacement project and maintenance, startup, and shutdown emissions were

authorized for the existing control equipment or technique.

(3) Equipment installed under this section is subject to all applicable

testing and recordkeeping requirements ofthe original control authorization. Alternate,

equivalent monitoring, or records may be proposed by the applicant for review and

approval ofthe executive director.

(d) Registration requirements.

(1) A registration must be submitted in accordance with the following.

(A) Ifthere are no increases in authorized emissions of any air

contaminant resulting from a replacement pollution control project, a registration must

be submitted no later than 30 days after construction or implementation begins and the

registration must be accompanied by a $900 fee.

(B) If a new control device or technique is authorized or ifthere are

increases in authorized emissions of any air contaminant resulting from the pollution
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control project, a registration must be submitted no later than 30 days prior to

construction or implementation. The registration must be accompanied by a $900 fee.

Construction or implementation may begin only after:

(i) no written response has been received from the executive

director within 30 calendar days of receipt by the Texas Commission on Environmental

Quality (TCEQ); or

(ti) written acceptance ofthe pollution control project has

been issued by the executive director.

(C) Ifthere are any changes in representations to a previously

authorized pollution control project standard permit for which there are no increases in

authorized emissions of any air contaminant, a notification or letter must be submitted

no later than 30 days after construction or implementation ofthe change begins. No fee

applies and no response will be sent from the executive director.

(D) Ifthere are any changes in representations to a previously

authorized pollution control project standard permit that also increase authorized

emissions of any air contaminant resulting from the pollution control project, a

registration alteration must be submitted no later than 30 days prior to the start of
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construction or implementation ofthe change. The registration must be accompanied by

a $450 fee, unless received within 180 days ofthe original registration approval.

Construction orimplementation may begin only after:

(i) no written response has been received from the executive

director within 30 calendar days of receipt by the TCEQ; or

(ii) written acceptance ofthe pollution control project has

been issued by the executive director.

(2) The registration must include the following:

(A) a description of process units affected by the project;

(B) a description ofthe project;

(C) identification of existing permits or registrations affected by the

project;
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(D) quantification and basis ofincreases and/or decreases

associated with the project, including identification of affected existing or proposed

emission points, all air contaminants, and hourly and annual emissions rates;

(E) a description of proposed monitoring and recordkeeping that

will demonstrate that the project decreases or maintains emission rates as represented;

and

(F) a description of how the standard permit will be

administratively incorporated into the existing permit(s).

(e) Operational requirements. Upon installation ofthe pollution control project,

the owner or operator shall comply with the requirements of paragraphs (1) and (2) of

this subsection.

(1) General duty. The owner or operator must operate the pollution control

project in a manner consistent with good industry and engineering practices and in such

a way as to minimize emissions of collateral pollutants, within the physical

configuration and operational standards usually associated with the emissions control

device, strategy, or technique.
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(2) Recordkeeping. The owner or operator must maintain copies on site of

monitoring or other emission records to prove that the pollution control project is

operated consistent with the requirements in paragraph (1) ofthis subsection, and the

conditions ofthis standard permit.

(f) Incorporation ofthe standard permit into the facility authorization.

(1) Any new facilities or changes in method of control or technique

authorized by this standard permit instead of a permit amendment under §116.110 of

this title (relating to Applicability) at a previously permitted or standard permitted

facility must be incorporated into that facility's permit when the permit is amended or

renewed.

(2) All increases in previously authorized emissions, new facilities, or

changes in method of control or technique authorized by this standard permit for

facilities previously authorized by a permit by rule must comply with §106-4 ofthis title

(relating to Requirements for Permitting by Rule), except §106-4(a)(1) ofthis title, and

§106.8 ofthis title (relating to Recordkeeping).
La DM8 castanuoIa, Chief CieI1<

ORDER ADOPTING NEW, AMENDED, AND REP~~QuaIily REVISIONS TO THE STATE IMPLEMENTATION PLAN

Docket No. .2010-0625-RUL

On February 9, 2011, the Texas Commission on Environmental Quality (Commission), during

a public meeting, considered adoption of amendments to §§ 116.12, 116.115, 116.180, 116.182, 116.186,

116.188, 116.190, 116.192, 116.601, and 116.617; new § 116.127; and the repeal of § 116.121. The

Commission adopts amendments to §§ 116.12, 116.115, 116.180, 116.182, 116.186, 116.188, 116.190,

116.192,116.601, and 116.617; new § 116.127; and the repeal of § 116.121, in Chapter 116, Control ofAir

Pollution by Permits for New Construction or Modification; and corresponding revisions to the state

implementation plan (SIP). The amendments to §§ 116.12, 116.115, 116.180, 116.182, 116.186, 116.188,

116.190, 116.192, and 116.601; and new § 116.127 are submitted to the United States Environmental

Protection Agency (EPA) as revisions to the SIP. These rules implement EPA's New Source Review

Reform rules.

On February 9, 2011, the Commission, during a public meeting, also considered the

withdrawal from EPA consideration as revisions to the SIP §§ 116.121, 116,400, 116,402, 116.404 and

116.406 as adopted by the Commission on January 11, 2006, effective on February 1, 2006. The

Commission adopted the withdrawal from EPA consideration as revisions to the SIP §§ 116.121,

116,400, 116,402, 116,404 and 116.406 as adopted by the Commission on January 11, 2006, effective

on February 1,2006. Section 116.121 was repealed and readopted as new § 116.127; the other sections

implement § 112(g) ofthe Federal Clean Air Act and thus are not appropriate for inclusion in the SIP.

Under Tex. Health & Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2001), the

Commission has the authority to control the quality of the state's air and to issue orders consistent

with the policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety

Code. The proposed rules were published for comment in the August 27, 2010 issue of the Texas

Register (35 TexReg 7676).

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code Chapter

2001 (Vernon 2008), and 40 Code of Federal Regulations § 51.102, and after proper notice, the

Commission conducted a public hearings to consider the new, amended and repealed rules and

revisions to the SIP. Proper notice included prominent advertisement in the areas affected at least 30

days prior to the dates of the hearings. A public hearing was held in Austin, Texas on September 20,

2010.

The Commission circulated hearing notices of its intended action to the public, including

interested persons, the Regional Administrator of the EPA, and all applicable local air pollution

control agencies. The public was invited to submit data, views, and recommendations on the

proposed new, amended and repealed rules and SIP revisions, either orally or in writing, at the

hearing or during the comment period. Prior to the sc1Ieduled hearing, copies of the proposed new,

amended and repealed rules and SIP were available for public inspection at the Commission's central

office and on the Commission's Web site.
Data, views, and recommendations of interested persons regarding the proposed new,

amended and repealed rules and SIP revisions were submitted to the Commission during the

comment period, and were considered by the Commission as reflected in the analysis of testimony

incorporated by reference to this Order. The Commission finds that the analysis oftestimony includes

the names of all interested groups or associations offering comment on the proposed new, amended

and repealed rules and SIP revisions and their position concerning the same.

IT IS THEREFORE ORDERED BY THE COMMISSION that the new, amended and repealed

rules and revisions to the SIP incorporated by reference to this Order are hereby adopted. The

Commission further authorizes staff to make any non-substantive revisions to the rules necessary to

comply with Texas Register requirements. The adopted rules and the preamble to the adopted rules

and the revisions to the SIP are incorporated by reference in this Order as if set forth at length

verbatim in this Order. '

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the

SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the

Federal Clean Air Act, codified at 42 U.S. Code Ann. §§ 7401 - 7671q, as amended.

This Order constitutes the Order of the Commission required by the Administrative Procedure

Act, Tex. Gov't Code, § 2001.033 (Vernon 2008).

If any portion of this Order is for any reason held to be invalid by a court of competent

jurisdiction, the invalidity of any portion shall not affect the validity ofthe remaining portions.

Issued date: FEB 14 2011

TEXAS COMMISSION ON

ENVIRONMENTAL QUALTIY

Shaw, Ph.D., Chairman
CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD-201100544

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3. 2011

Proposal publication date: August 27, 2010

For further information, please call: (512) 239-0177

The Texas Commission on Environmental Quality (commission, agency, or TCEQ) adopts the amendments to §§116.12,

116.115,116.180,116.182,116.186,116.188, 116.190, 116.192,

116.601, and 116.617; new §116.127; and the repeal of

§116.121.

The amendments to §§116.115, 116.188, 116.601; new

§116.127; and the repeal of §116.121 are adopted without

changes as published in the August 27, 2010, issue of the

Texas Register (35 TexReg 7676) and will not be republished.

Sections 116.12,116.180,116.182,116.186,116.190,116.192,

and 116.617 are adopted with changes to the proposed text as

pUblished in the August 27, 2010, issue of the Texas Register

(35 TexReg 7698) and will be repUblished.

The amendments to §§116.12, 116.115, 116.180, 116.182,

116.186, 116.188, 116.190, 116.192, and 116.601; and new

§116.127 will be submitted to the United States Environmental

Protection Agency (EPA) as revisions to the State Implementation Plan (SIP). The amendment to §116.617 wiil not be

submitted to EPA as a revision to the SIP.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

On June 10, 2005, the TCEQ submitted the amendment to

.§116.12 to the EPA as a revision to the New Source Review

(NSR) SIP and §116.150 as a revision to the Nonattainment

New Source Review (NNSR) SIP, both adopted on May 25,

2005. On February 1, 2006, the TCEQ submitted amendments

to §§116.12, 116.121, 116.150, 116.180, 116.182, 116.184,

116.186, 116.188, 116.190, and 116.617 to the EPA as revisions

to the NSR SIP; amendments to §§1 01.1, 116.150, and 116.151

as revisions to the NNSR SIP; and the amendment to §116.160

as a revision to the Prevention of Significant Deterioration (PSD)

SIP, adopted on January 11, 2006. On September 23, 2009,

the EPA pUblished notice of the proposed disapproval of these

revisions to the Texas SIP (74 Federal Register 48467) and

on September 15, 2010, published the finai disapprovai of the

revisions (75 Federal Register 56424).

This rulemaking and the companion rulemaking (Rule Project

No. 200B-030-116-PR) address issues identified by the EPA

in its September 15, 2010, final disapproval notice and ensure

that TCEQ regulatory requirements regarding the NSR penmit-

+ + +

ting program meet the requirements of the Federal Clean Air Act

(FCAA) and are approvable into the SIP. Specificaily, those concern definitions for the Plant-Wide Applicability Limit (PAL) rules

and other changes to the PAL rules to meet federal requirements,

including the conditions for reopening PAL permits. The rulemaking also amends §116.617, State Poilution Control Project

Standard Penmit (which is the eXisting standard penmit rule), to

limit when existing registrations for this standard permit can be

amended or renewed and prOVides the deadline for final registrations under this specific standard permit This is intended to

facilitate a smooth transition between this section and the new

non-rule air quality standard penmit adopted concunrently by the

commission. The amendments would also remove obsolete references and make non-substantive administrative changes.

EPA also disapproved §116.151 as amended in 2006, but did

not provide any specific reasons for its disapproval. In its letter transmitting this rulemaking to EPA, as discussed earlier, the

commission is requesting EPA consider §116.151 as amended

in 2006 together with these current ruie changes as revisions to

the SIP.

In the September 15,2010 notice, EPA also proposed to take no

action on §§116.400 - 116.406, which were included in the 2006

rulemaking. These sections are permit requirements for compliance with FCAA, §112(g), but they are not necessary elements

of the SIP. The rulemaking withdraws from EPA consideration

as a revision to the SIP of §§116.400, 116.402, 116.404, and

116.406, as adopted by the commission on January 11, 2006,

effective on February 1, 2006. No changes have been made to

the rule text or numbering of these sections.

This rulemaking is at least as stringent as the federal rules being implemented because it inciudes the applicable elements of

the major NSR and PAL permit programs. The rulemaking action also ensures that the rules will meet the requirements of

the FCAA, which requires that the elements of the SIP be enforceable, include replicable elements, and ensure compliance

and accountabilrty. The specific changes to the PAL rules meet

these basic reqUirements.

W11en EPA adopted the NSR refonm rule amendments (67 Federal Register 80185, December 31,2002), it expanded its requirement for states' SIP submittals of their rules that implement

major NSR to require a demonstration of why both the specific

major NSR penmitting program reqUirements, including applicable definitions, are at least as stringent as EPA's regulations, if

states do not adopt the specific EPA program. TCEQ's major

NSR and its PAL rules do not incorporate the EPA rules by reference but they do include the basic elements of those penmit

programs. Therefore, this rulemaking is at least as stringent as

the federal rules being implemented. As discussed elsewhere,

the changes in this rulemaking are made to specifically address

issues identified by EPA in its September 15, 2010, disapproval

notice so that the rules can be approved as revisions to the

SIP. The changes make the commission's rules as stringent as

EPA's regUlations. The definitions of baseline actual emissions

and projected actual emissions do not include malfunction emissions, and thus are more stringent than EPA's definitions. In addition, this rulemaking action also ensures that the rules will meet

the requirements of the FCAA, which requires that the elements

of the SIP be enforceable, include replicable elements, and ensure compliance and accountability.

SECTION BY SECTION DISCUSSION

ADOPTED RULES February 25, 2011 36 TexReg 1305
§116.12, Nonattainment and Prevention of Significant Deterioration Review Definitions

The commission is adopting amendments to the definitions of

the terms, "baseline actual emissions," "net emissions increase,"

and "projected actual emissions." These amendments resolve

the EPA's objection to this section of the rule.

The EPA, in tts final disapproval notice, commented that the definition of baseline actual emissions differed from the federal rUles

because the definition did not specify that these emissions are

meant to be calculated based on the average rate. The amendment specifying that the rate is an average rate would be included in §116.12(3)(A), (B), (D), and (E). The commission is

also removing the term "exempted from" §116.12(3)(E) and is

replacing it with "unauthorized" since emissions events were not

exempt under 30 TAC Chapter 101, General Air Quality Ruies,

but must be reported.

The commission is making changes from the proposal to

§116.12(3)(E). The EPA in its final disapproval (see September

15,2010 (75 Federal Register 56424)) agreed that the inclusion of emissions events in the definition of baseline actual

emissions would have the effect of inflating the baseline and

narrowing the gap between the baseline actual emissions and

the planned emission rate. The EPA noted that the current definition of baseline actual emissions included emissions events

and stated that to be approvable the definition would have to

exclude emissions events. This is because EPA noted that the

definitions of "baseline actual emissions" and "projected actual

emissions" must both include or exclude malfunctions emissions. However, EPA's interpretation excludes the conditional

language et the end of the paragraph which limits emissions to

those that have been or are being authorized and, therefore,

EPA's statement that the commission is including emissions

events is in error. The commission's long standing policy is not

to reward emissions from emission events, which are upset

events and unplanned maintenance, startup, and shutdown

(MSS) activities. TCEQ's term "unplanned MSS activities"

subst~utes for the EPA's term "unscheduied MSS." Unplanned

MSS activities are the functional equivalent of malfunctions, as

are all upset emissions. EPA also objects to the use of the word

"may," stating that it indicates discretion without any replicable

procedures for such detenninations.

Consequently, §116.12(3)(E) is being reworded to make clear

that MSS emissions reported under Chapter 101 shell be included in the calculation of baseline actual emissions but only

to the extent that they have been authorized or are being authorized. Because emissions events are not included, they are

therefore excluded from the calculation of baseline actual emissions. The commission does not authorize emissions events,

Which are emissions from upsets and unscheduled MSS activities. While the current text, as adopted in 2006, implemented

that long standing poiicy, the rule text was not written to clearly

limtt the inciusion of only planned MSS emissions that have been

or are in the process of being authorized during a defined time

period. These changes ensure, first, thatthere is no discretion as

to inclusion of only certain planned MSS emissions (and consequently the exclusion of emissions events) in the baseline actual

emissions calculation, and second, that the definitions of baseline actual emissions and projected actual emissions are compatible and are therefore approvable as revisions to the SIP.

Additionally, the commission is making changes from the proposal by reinstating in §116.12(3)(E) the phrase "or are being

authorized," reiating 10 planned MSS emissions. This phrase

36 TexReg 1306 February 25, 2011 Texas Register

was proposed to be removed because the executive director expected to recommend proposal and adoption of a concurrent

rulemaking that would have included mandatory authorization

of MSS emissions. Since the rulemaking that would have required authorization of MSS emissions has been remanded to

staff, it would be inappropriate to remove the phrase at this time.

The commission's rule that provides an incentive for authorizing

planned MSS emissions, §101.222(h), provides a logical time

frame for identifying which planned MSS emissions should be

included in the calculation of baseline actual emissions, and the

ending date of the incentive program is used in this definition.

Further, §116.12(3)(D) provides that non-compilant emissions

are excluded. To the extent that there are planned MSS emissions that remain unauthorized on or after March 1, 2016, those

will necessariiy be "non-complianf' and therefore, no longer excluded from the excluded emissions In subparagraph (D). This is

consistent wtth the commission's policy regarding authorization

of planned MSS emissions. Based on the incentive schedule in

§101.222(h), the TCEQ has received several hundred applications thus far for authorizing planned MSS at approXimately the

midway point of the schedule and, therefore, expects that the industries named in the remaining portion of the schedule will also

submit appilcations for authorizing planned MSS over the next

two years.

The commission is also adopting an amendment to the term

"net emissions increase" in §116.12(20). EPA commented in

the Technical Support Document related to the proposed disapproval that this definition might not match federal requirements

for enforceability because tt did not include a statement that

the defin~ion was federally enforceable. The commission is

specifically adding the term "federally" to modify "enforceable"

in §116.12(20)(C)(ii).

Add~ionally, the commission is amending the term "projected

actual emissions" in §116.12(29) and is adopting it with changes

from the proposal. The commission is replacing the phrase

"unauthorized emissions from startup and shutdown activities" with "emissions from planned maintenance, startup, or

shutdown actiVities, which were historically unauthorized and

subject to reporting under Chapter 101 to the extent that they

have been authorized or are being authorized." This change is

necessary to ensure that this definition is compatible with the

definition of "baseline actual emissions." As discussed earlier,

the definition of "baseline actual emissions" is being amended

to ensure that the commission's intent of what types of emissions can be included in that calculation is clear. While the

commission intended that these two definitions be compatible

when adopted in 2006, the EPA's comments indicated that may

not be the case. The EPA commented thet the term "projected

actual emissions" does not include emissions from startups,

shutdowns, and malfunctions. However, as stated in the original

adoption preamble for this rule in 2006, the commission excluded malfunction emissions in compliance with long-standing

commission policy to exclude non-compliant emissions. The

EPA in its final disapproval (see September 15, 2010 (75 Federal

Register 56424)) agreed that the inclusion of emissions events,

which are similar to the federal term "malfunctions," in the

definition of baseline actual emissions would be inappropriate.

Further, EPA has approved definitions in other states that aiso

exclude malfunctions; (see September 15, 2010 (75 Federal

Register 56441)). These amendments are necessary to ensure

that both definitions are approvable as revisions to the SIP.

§116.115, General and Special Conditions
The commission is amending §116.115(b)(2)(F) with a statement

that emissions exceeding the maximum allowable emission

rates established in a permit are not authorized and are a

violation of the penmit Additionally, the commission is amending §116.115 with non-substantive administrative changes in

§116.115(b)(2)(B)(iii) and (H)(i) and (c)(2)(B)(ii)(II).

§116.121, Acfual to Projected Actual and Emissions Exclusion

Test for Emissions Increases

The commission repealed §116.121. The text of this rule has

been moved to adopted new §116.127.

§116.127, Actual to Projected Actual and Emissions Exclusion

Test for Emissions

The commission is adopting §116.127 to address actual to

projected actual emissions and the emissions exclusion test

for emissions increases. There have been no changes to the

language that was originaliy in §116.121. This new section

requires documentation associated with the projected actual

emissions rates and records of compliance as identified in the

federal rule, 40 Code of Federal Regulations (CFR) §52.21.

Section 116.127(a) requires a demonstration that federai NSR

does not apply be submitted with any permit application or registration. This demonstration must be documented by records

that include a project description, the facilities affected, and

a description of the applicability test Subsection (b) requires

monitoring of emissions that could increase as a result of the

project if projected actual emissions are used to determine the

project emission increase at a facility.

Subsection (c) requires owners or operators of electric utility

steam generating units to submit to a report to the executive director documenting the emissions for each calendar year that

records are required under the actual-to-projected actual test.

Subsection (d) requires owners or operators of faciiities other

than electric generating units to submit a report to the executive

director if annual emissions exceed the baseline actual emissions by a significant amount. Subsection (e) requires records

to be maintained and made available for review.

As stated in the preambie when adopted by the commission in

2006, the commission expects that projected actual emissions

will be used extensively in registrations or claims for non-PSD

and nonattainment NSR authorizations where a maximum allowable emission rate is not specified in the rule.

Based on the changes to the definition of projected actual emissions, discussed elsewhere in this preamble, the commission

expects that this rule is approvable as a revision to the SIP.

§116. 180, Applicability

The commission is removing the term "account site" from

§116.180(a)(1) and replacing rt with the tenm "existing major

stationary source" to make this requirement more consistent

with federal requirements. The commission is also making

similar changes to §116.180(a)(3) and (4). Additionally, because

the federal term "emissions unit" is defined very similarly to the

tenm "facility" as defined in the Texas Clean Air Act (TCAA),

the commission is adding the language "or emissions unit "

whenever the lenm faciiity is used (Le., §116.180(a)(3), (b)

and (c». Additionally, the commission is making a change

from the proposal in this section and as used elsewhere in

the commission's PAL rules, by adding the phrase "at a major

stationary source" to the term "emissions unit" to ensure that

the tenm is better understood as the EPA generaily uses the

term in NSR permitting. The term "emissions unit at a major

stationary source" means a single piece of equipment; it does

not necessarily have the same meaning as used in some of the

maximum achievable control technology standards in 40 CFR

Part 63. The commission is also restricting the issuance of PAL

penmits to existing stationary sources in §116.180(a)(5). The

EPA, in its September 15, 2010, final disapproval notice stated

that the current rule lacks a provision that limits applicability of

a PAL to an existing major stationary source as required by the

corresponding federal rule. This amendment resolves the EPA's

objection to this section of the rule.

§116.182, Plant-wide Applicability Limit Penmit Application

In its September 15, 2010, final notice of disapproval, the EPA

stated that the tenm facility was vague and unenforceable and

that §116.182(1) might not require ali facilities emitting a PAL

pollutant at a major stationary source to be included in the PAL

penmit application. This amendment resolves the EPA's objection to this section of the rule. Since the federal term emissions

unit is defined very similarly to the tenm facility as defined in the

TCAA, the commission is adding the language "or emissions unit

at a major stationary source" when the term facility is used in

§116.182(a)(1). Aiso, the commission is adding the phrase "at

a major stationary source" where appropriate to make clear that

PALs are applicable to major sources only. Additionally, as the

result of comments in the EPA's final disapproval (75 Federal

Register56424, September 15, 2010), the commission is adding

language to require that all emission units at the major stationary

source that emit the PAL pollutant be inciuded in the PAL penmit

application. This language ensures that the rule is consistent

with the federal requirement that the TCEQ has appropriate information to review when a PAL application is submitted. This

language should also ensure approvability of the rule into the

SIP

§116.186, General and Special Conditions

In its September 15, 2010, final notice of disapproval, the EPA

stated that the tenm facility was vague and unenforceable and

that §116.186 might not require all facilities emitting a PAL pollutant at a major stationary source to be included in the PAL penmit.

This amendment resolves the EPA:s objection to this section of

the rule. Since the federal term emissions unit is defined very

similarly to the lenm facility as defined in the TCAA, the TCEQ is

adding the language "or emissions unit" where the tenm facility is

used in subsections (a) and (b)(1) and changing the word "federal" to "majo(' in subsection (b)(1) to clarify the type of NSR

referenced in this subsection. Also, the commission is adding

the phrase "at a major stationary source" where appropriate to

make clear that PALs are applicable to major sources only. Also,

as the result of comments in the EPA's final disapproval (75 Federal Register 56424, September 15, 2010), the commission is

adding language to require that all emission units at the major

stationary source that emit the PAL pollutant be included in the

PAL penmit. This language is added to ensure approvability of

the rule into the SIP. Additionally, the commission is defining the

tenm "responsible official" by referencing the definition in 30 TAC

Chapter 122.

In the September 15, 2010, final disapproval notice, the EPA

noted that TCEQ's rule lacked a mandate that failure of the

monitoring system to meet the requirements of this section is

a violation of the PAL penmit. Consequently, the commission

is including this requirement as adopted §116.186(b)(9). Existing subsection (b)(9) and (10) is redesignated as subsection

(b)(10) and (11). In the notice, the EPA aiso Slated that the

specific monitoring definitions: continuous emissions monitoring

ADOPTED RULES February 25, 2011 36 TexReg 1307
system (CEMS) as defined in 40 CFR §51.165(a)(1)(xxxi) and

§51.166(b)(43); continuous emissions rate monitoring system

as defined in 40 CFR §51.165(a)(1)(xxxiv) and §51.166(b)(46);

continuous parameter monitoring system as defined in 40

CFR §51.165(a)(1)(xxxiii) and §51.166(b)(45); and predielive

emissions monitoring system (PEMS) as defined in 40 CFR

§51.165(a)(1 )(XXXii) and §51.166(b)(44) are essential for the

enforceability of and providing the means for determining compliance with a PALs program. The commission is incorporating

these definitions by reference in adopted §116.186(c)(1). Existing subseelion (c)(1) and (2) is redesignated as subseelion (c)(2)

and (3). This amendment resolves the EPA's objeelion to this

section of the rule. Additionally, the commission is amending

§116.166 with non-substantive administrative changes.

§116. 188, Plant-wide Applicability Limit

The commission is amending §116.188 with non-substantive administrative changes.

§116.190, Federal Nonattainment and Prevention of Significant

Deterioration Review

In its September 15, 2010, final notice of disapproval, the EPA

stated that the term facility was vague and unenforceable. This

amendment resolves the EPA:s objeelion to this section of the

rule. Since the federal term emissions unit is defined very similarly to the term facility as defined in the TCAA, the commission

is adding the language "or emissions unit" where the term facility is used in subsection (a). Also, the commission is adding

the phrase "at a major stationary" source where appropriate to

make clear that PALs are applicabie to major sources only and

changing the word ''federal'' to "majo~' to clarify the type of NSR

referenced in subsection (a).

§116.192, Amendments and Alterations

In its final disapproval notice, the EPA requested that the state

include provisions relating to the reopening of a PAL by the executive direelor. This amendment resolves the EPA's objeelion to

this section of the rule. The commission is including a statement

that acceptance of a PAL is agreement by the permit hoider to

reopening the permit in subsection (c). Also, the commission is

including a mandatory reopening of the permit for the purposes

that are stated in §116.166(c)(1). These purposes inciude: the

correction of typographical or calculation errors; decrease of the

PAL limit to reflect creditable emissions reductions; or revision

of the permit to refleel an increase in the PAL. Additionally, the

commission is allowing discretionary reopening of the permit for

the purposes stated in §116.186(c)(2). These purposes include:

revision of the PAL to refleel newly applicable federal requirements; revision to the PAL to refleel any other enforceable requirement imposed on major stationary sources under the SIP;

.reduelion of the PAL to avoid national ambient air quality standards (NAAQS) or PSD increment violation; or reduction of the

PAL to avoid an adverse impact on a federal class I ares.

As the result of comments received from the EPA on the proposed amendments the commission is changing §116.192(a)(1)

and (4) to specifically state that the Best Available Control

Technology (BACT) equivalent required by the rule is federal

BACT as identified in §116.160(c)(1)(a). The commission is

also changing §116.192(a)(2) to state cleariy that all facilities

contributing to an increase in emissions resulting in source's

emissions equaling or exceeding its PAL are subject to appropriate PSD or NNSR authorization to ensure that a new permit or

a major modification action is obtained. Finally, the commission

is changing §116.192(c)(1)(C) to inciude a reference to 40 CFR

36 TexReg 1308 February 25, 2011 Texas Register

§51.165(f)(11). These revisions will resolve the EPA's concems

regarding this seelion of the rule. Additionally, the commission

is amending §116.192 w~h non-substantive administrative

changes.

§116.601, Types of Standard Permits

The commission is removing language referring to specific standard permits in §116.601(a)(1) in favor of a more general statement that includes those standard permits adopted into the ruie.

This change will facilitate any future adoptions or repeals of standard permits that are pari of Chapter 116.

§116.617, State Pollution Control Project Standard Permit

The commission is making changes from the proposal

to §116.617(a)(4) and (5). The commission is amending

§116.617(a)(4) to provide that the existing requirements of that

paragraph wiil cease to be effeelive on March 3, 2011. The

commission is also including §116.617(a)(5) which provides

that, notw~hstanding the requirements of §116.604, on or after

March 3, 2011, no new or modified registrations will be accepted

and no existing registrations will be renewed. The date in these

revisions was changed from February 17, 2011 to March 3,

2011, to accurately refleel the effective date of this rUle.

The EPA in its September 15, 2010, final disapproval noted its

objections to the State Pollution Control Projeel Standard Perm~ (PCP) including: the PCP is a generic permit that can be

used at any source including major sources; it is overly broad

in that it does not specify the types of pollution control equipment it authorizes; and it allows for source specific review and

case-bY-case authorization. A non-ruie standard permit that can

be used for pollution control projects is concurrently being issued

by the commission. Persons who wish to have authorizabon for

pollution control equipment by a standard permit may use the

new non-rule standard permit for pollution control equipment.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of

the regulatory impael analysis (RIA) requirements of Texas Government Code, §2001.0225, and determined that the rulemaking

does not meet the definition of a major environmental rule as defined in that statute and if it did meet the definition, would not be

subjeel to the requirement to prepare a RIA.

A major environmental rule means 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 affeel in a material way the economy, a seelor of the economy, prodUelivity, competition, jobs, the environment, or the public hea~h

and safety of the state or a seelor of the state. The specific intent of the revisions is to include definitions for and make other

changes to the PAL rules to meet federal requirements, including

the conditions for reopening PAL permits. The rulemaking would

also amend §116.617, which is the existing standard permit rule,

to limit when existing registrations can be amended or renewed,

and provide the deadiine for final registrations under this specific

standard permit. This is intended to faciiltate a smooth transition

between this section and the proposed new non-rule air quality

standard permit.

In the September 23,2009, notice, EPA also proposed to take no

action on §§116.400 - 116.406, which were included in the 2006

rulemaking. These sections are permit requirements for compliance with FCAA, §112(g), but they are not necessary elements

of the SIP. The rulemaking proposes the withdrawal from EPA

consideration as a revision to the SIP of §§116.400, 116.402,
116.404, and 116.406 as adopted by the commission on January 11, 2006, effective on February 1, 2006.

These changes will not adversely affect the economy, a sector of

the economy, productivity, competition, jobs, the environment, or

the public health and safety of the state or a sector of the state

in a material way because they are adopted to ensure consistency between state and federal air quality permitting requirements and can be approved as revisions to the Texas SIP. The

rulemaking action ensures that the rules will meet the requirements of the FCAA, which requires that the elements of the SIP

are enforceable, include replicable elements, and ensure compliance and accountability. Specifically, the rules concern definitions for and other changes to the PAL rules, including the conditions for reopening PAL permits, and that excess emissions are

violations of the penmil. The rulemaking also amends §116.617

to limit when existing registrations for this standard permit can

be amended or renewed and provides the deadline for final registrations under this specific standard permit. This is intended to

facilitate a smooth transition between this section and the new

non-rule air quality standard permit adopted concurrently by the

commission. The amendments would also remove obsolete references and make non-substantive administrative changes.

Additionally, even if the rules met the definition of a major

environmental rule, the rulemaking does not meet any of the

four applicability criteria for requiring a RIA for a major environmental rule, which are listed in Texas Government Code,

§2001.0225(a). Texas Government Code, §2001.0225, applies

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

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

of slate law, unless the rule is specifically required by federal

law; 3) exceed a requirement of a delegation agreement or

contract between the state and an agency or representative

of the federal government to implement a slate and federal

program; or 4) adopt a rule solely under the general powers of

the agency instead of under a specific state law.

The .rules would implement nequirements of the FCAA. Under

42 United Slates Code (USC), §7410, each state is nequired to

adopt and implement a SIP conlaining adequate provisions to

implement, attain, maintain, and enforce the NMOS within the

slate. While 42 USC, §7410, generally does not require specific programs, methods, or emission reductions in order to meet

the standard, state SIPs must include specific requirements as

specified by 42 USC, §7410. The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in orderto meet

the NAAQS. This flexibility allows states, affected industry, and

the public, to collaborate on the best methods for attaining the

NAAQS lor the specific regions in the slate. Even though the

FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets

the requirements of42 USC, §7410. States are not free to ignore

the requirements of42 USC, §7410, and must develop programs

to assure that their SIPs provide for implementation, attainment,

maintenance, and enforcement of the NAAQS within the state.

One of the requirements of 42 USC, §7410, is for states to include programs for the regUlation of the modification and construction of any stationary source within the area covered by the

plan as necessary to assure that the NMOS are achieved, induding a penmit program as required in FCAA, Parts C and D, or

NSR. Additionally, once slates have developed SIPs, and those

plans are approved by the EPA, the FCAA prescribes, in 42 USC,

§7502(e), that the EPA, in modifying a NAAQS, shall promUlgate

ruies that apply to all areas that have not attained the previous

NAAQS that provide for controls that are no less stringent than

the controls that previously applied to the area. This rulemaking

will address those sections submitted as revisions to the NSR

SIP and subsequently were disapproved by the EPA. Specifically, those concern definitions for and other changes to the PAL

rules, and that excess emissions are violations of the permit. The

rulemaking project includes the withdrawal of sections applicabie to permits required for compliance with FCAA, §112(g), from

EPA consideration as a revision to the SIP; although, there are

no changes to rule numbering or text and, thUS, are not open for

comment.

The requirement to provide a fiscal analysis of regulations in the

Texas Government Code was amended by Senate Biil (SB) 633

dunng the 75th LegiSlature, 1997. The intent of SB 633 was to

require agencies to conduct a RIA of extraordinary rules. These

are identified in the statutory language as major environmental

rules that will have a material adverse impact and will exceed

a requirement of state law, federal law, or a delegated federal

program, or are adopted solely under the general powers of the

agency. With the underslanding that this requirement would seidom apply, the commission provided a cost estimate for SB 633

that concluded "based on an assessment of rules adopted by

the agency in the past, it is not anticipated that the bill will have

significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules

that would require assessment under the provisions of the bill

was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis,

unless the rule was a major environmental rule that exceeds a

federal law.

Because of the ongoing need to meet federal requirements, the

commission routinely proposes and adopts rules incorporating

or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each

rule proposed by the commission to meet a federal requirement

was considered to be a major environmental rule that exceeds

federal law, then each of those ruies would require the fuil RIA

contemplated by SB 633. This condusion is inconsistent with

the conclusions reached by the commission in its cost estimate

and by the Legislative BUdget Board (LBB) in its fiscal notes.

Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on

inlonmation provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require

the full RIA lor rules that are extraordinary in nature. While the

rules may have a broad impact, that impact is no greater than is

necessary or appropriate to meet the requirements of the FCAA,

and in fact creates no additional impacts, since the rules do not

exceed the requirement to attain and maintain the NAAQS. For

these reasons, the rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by,

and do not exceed, federal law, including the approved SIP. In

addition, these rules do not exceed any contract between the

state and a federal agency.

The commission has consistently applied this construction to its

rUles since this statute was enacted in 1997. Since that time,

the legislature has revised the Texas Government Code, but

left this provision substantially unamended. It is presumed that

''when an agency interpretation is in effect at the time the legislature amends the iaws without making substantial change in the

Slatute, the legislature is deemed to have accepted the agency's

interpretation." (Central Power & Light Co. v. Sharp, 919 S.W2d

ADOPTED RULES February 25,2011 36 TexReg 1309
485, 489 (Tex. App. Austin 1995), writ denied with per curiam

opinion respecting another issue, 960 S.W2d 617 (Tex. 1997);

Bullock v. Marathon Oil Co., 798 S.W2d 353, 357 (Tex. App.

Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert,

414 S.W2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto

Ins. Co., 9 S.W3d 8B4, 893 (Tex. App. Ausbn 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W3d 581 (Tex. App.

Austin 2000, pet. denied); and Coastal Indus/. Water Auth. v.

Trinity Portland Cement Div., 563 S.W2d 916 (Tex. 1978).)

The commission's interpretation of the RIA requirements is also

supported by a change made to the Administrative Procedure

Act (APA) by the iegislature in 1999. In an attempt to limit the

number of rule challenges based upon APA requirements, the

legislature clarified that state agencies are required to meet

these sections of the APA against the standard of "substanbal compliance" (Texas Government Code, §2001.035). The

legislature specifically identified Texas Govemment Code,

§2001.0225, as falling under this standard. As discussed in

this analysis and elsewhere in this preamble, the commission

has substantially complied with the requirements of Texas

Govemment Code, §2001.0225.

The nules implement requirements of the FCAA, specifically to

adopt and impiement SIPs to attain and maintain the NAAOS, including a requirement to adopt and implement perm~ programs.

The specific intent of the rulemaking is to address those sections

submitted as revisions to the NSR SIP and subsequently were

disapproved by the EPA. Specifically, those concern definitions

tor and other changes to the PAL rUies, and that excess emissions are violations of the permit. The ruJemaking would also

limit when existing pollution control standard permit registrations

can be amended or renewed and the deadline for final regis-

!rabons under this specific standard permit. The rules were not

developed solely under the general powers of the agency, but

are authorized by specific sections of Texas Health and Safety

Code, Chapter 382 (also known as the TCAA), and the Texas

Water Code, which are cited in the STATUTORY AUTHORITY

section of this preamble. Therefore, this rulemaking action is

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

TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2007.002(5), taking means a

governmental action that affects private real property, in whole or

in part or temporarily or permanently, in a manner that requires

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

the Un~ed States Constitution or§17 or§19, Article I, Texas Constitution; or a govemmental action that affects an owner's private

real property that is the subject of the governmental action, in

whole or in part or temporarily or permanently, in a manner that

resmcts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is

the producing cause of a reduction of at least 25% in the mar1<et

vaiue of the affected private real property, determined by comparing the market value of the property as if the governmentai

action is not in effect and the mar1<et value of the property determined as if the governmental action is in effect.

The commission completed a takings impact analysis for

this rulemaking action under the Texas Government Code,

§2007.043. The primary purpose of this rulemaking action, as

discussed elsewhere in this preamble, is to address those sections submitted as revisions to the NSR SIP and subsequently

were disapproved by the EPA. Specifically, the changes concern

36 TexReg 1310 February 25, 2011 Texas Register

definitions for and other changes to the PAL rUles, limitations

regarding use of pollution control standard permit registrations,

and that excess emissions are violations of the permit.

The rules will not create any additional burden on private real

property. The ruies will not affect private real property in a

mannerthat would require compensation to private real property

owners under the United States Constitution or the Texas Consbtution. The proposal also will not affect private reai property in

a manner that restricts or limits an owner's right to the property

that would otherwise exist in the absence of the governmental

action. Therefore, the rulemaking will not cause a taking under

Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking action relates

to an action or aebons SUbject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination Act

of 1991, as amended (Texas Naturai Resources Code, §§33.201

et seq.), and commission ruies in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC

§505.11(b)(2), relating to Actions and Rules SUbject to the CMP,

commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The

commission reviewed this action for consistency with the CMP

goals and poiicies in accordance with the rules of the Coastai

Coordination CounCil, and determined that the action is consistent with the applicable CMP goals and policies.

The CMP goai applicable to this nuiemaking action is the goal

to protect preserve, and enhance the diversity, quality, quanbty, funebons, and vaiues of coastal natural resource areas (31

TAC §501.12(1) The CMP policy applicabie to this rulemaking

action is the policy that commission rules comply with federal

reguiations in 40 CFR to protect and enhance air quality in the

coastal areas (31 TAC §501.14(q)). The nules will benefit the environment by, ensuring that certain state and federal permitting

requirements are consistent to ensure protection of air quality.

Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP

goais and policies.

EFFECT ON SITES SUBJECTTO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 116 is an applicabie requirement of Chapter 122, Federal Operating Permits Program. Owners or operators subject to

the federal operating permit program must, consistent with the

revision process in Chapter 122, upon the effective date of the

adopted nulemaking, revise their operating permit to include the

new Chapter 116 requirements. Additionaliy, sources SUbject to

the nules may become subject to the federal operating perm~

program.

PUBLIC COMMENT

The commission held a public hearing on September 20,2010,

and no comments were submitted. The comment period closed

on September 27,2010. The commission received written comments from an individual cibzen, EAP, and the Texas Industry

Project (TIP).

RESPONSE TO COMMENTS

TIP supported the revisions and clarifications to Chapter 116 that

further the goal of federally approvable ruies.
The commission appreciates the TIP's support on this issue.

An individual citizen requested all existing permits, especially

those related to oil and gas facilities, be subject to the rule

changes.

This rulemaking implements the applicable elements of the major NSR and PAL permit programs and is at least as stringent as

the federal rUles and policies. The rulemaking action also ensures that TCEQ rules will meet the conditions of FCAA, §110,

which requires that the elements of the SIP be enforceable, include replicable elements, and ensure compliance and accountability. Oil and gas facilities that are sUbject to the aforementioned programs will be required to comply with these revisions.

TIP commented that new rule language in §116.115, stating that

emissions exceeding the maximum allowable emission rates are

not authorized and are a violation of the permit, was redundant

and, therefore, unnecessary. TIP also stated that this revision

was unrelated to NSR reform and its presence in a SIP approved

section of the rule opened a potential SIP gap.

The commenter is correct that this change is not directly related

to EPA's disapproval notice. However, EPA regularly comments

on the lack of similar language in permits. Therefore, this change

assists with further ensuring that the permits that are issued,

which are based on these rules, are enforceable. Both rules and

permits must be enforceable for inclusion in the SIP. Although

the commission is adding this text to a SIP-approved rule, which

will now be subject to EPA review again, the commission expects that any gap resulting from commission adoption of the

rule, until EPA review, will not result in any adverse effects. This

is because the commission is confident that permits issued prior

to this rule change are also enforceable.

TIP commented that existing TCEQ rules require all facilities that

emit a PAL pollutant be included in the PAL permit. TIP also

commented that EPA's lack of clarity on whether the Texas rules

allow for emission caps that do not include all facilities at a major

source lacks basis in the rules.

Although the commission's position is that the current language

in §116.182(1) and §116.166 requires the applicant for a PALlo

include all facilities that would be subject to the PAL permit to

be included and the current practice of the Air Permit Division is

to require all facilities that emit the PAL pollutant to be included

in the PAL permit, the commission is making further changes to

this rule. The EPA in its September 15, 2010, final disapproval

notice stated that §116.166 provides for an emission cap that

may not account for all the emissions of a pollutant at a major

stationary source. Additionally, EPA stated that §116.162(1) requires applicants to submit a list of facilities to be included in the

PAL, such that not all facilities at the entire stationary source are

specifically required to be included in the PAL. Due to the continuing confusion regarding this issue, the commission is making

additional changes to the rule to add the phrase "that emit the

PAL pollutanf' and to remove the phrase "to be included in the

PAL permit."

TIP commented that the inclusion of references to federal definitions for monitoring systems included in §116.166(c)(1) is inconsistent with definitions for monitoring systems found in other

commission rules, notably those in Chapters 115 and 117. TIP

stated that TCEQ should align all substantive definitions of these

terms with existing definitions to avoid inconsistency and confusion among various programs and portions of the Texas rules.

TIP also stated that TCEQ should add the proposed definitions

to the general provisions of Chapter 101.

The commission has not changed the rule in response to this

comment. TIP is correct that the commission referenced federal

definitions of "continuous emission monitoring system" and "continuous parameter monitoring system" for use in §116.166(c)(1)

and that the definitions in the proposed references are not the

same as the definitions of "continuous monitoring", "CEMS", and

"PEMS" in other TCEQ rule chapters such as 30 TAC Chapter

115, Control ofAir PolluUon from Volatile Organic Compounds, or

Chapter 117, Control of Air Pollution from Nitrogen Compounds.

Chapters 115 and 117 are rules intended to ensure that reasonably available control technology (RACT) is applied to new and

existing sources in specific areas in order to help those areas

achieve and maintain attainment with the ozone NMOS. Those

chapters also contain requirements that are more stringent than

RACT as part of the TCEQ's ozone NAAQS attainment demonstrations. The objectives, control technology requirements, implementation strategy, and underlying rule language is necessarily different when comparing a federal NSR authorization program such as the PAL permits program, to rules such as those in

Chapters 115 and 117. The definitions are more appropriate for

use with the PAL permit program than are the existing definitions

within Chapters 115 and 117. Revising the definitions in Chapters 115 and 117, or establishing new definitions within Chapter

101 is beyond the scope of this rulemaking.

The EPA requested that TCEQ clarify that the references to

BACT in §116.192(a) refer to federal BACT as defined in the

FCCA.

The commission agrees with the comment and is changing

§116.192(a)(1) and (4) to specifically state that the BACT

equivalent required by the rule is federal BACT as identified in

§116.160(c)(1 )(A).

The EPA commented that §116.192(a) should be revised to

clearly require all facilities contributing to an increase in emissions resulting in source's emissions equaling or exceeding its

PAL are subject to PSD or NNSR.

The commission agrees with the comment and is changing

§116.192(a)(2) to state clearly that all facilities contributing to an

increase in emissions resulting in source's emissions equaling

or exceeding its PAL are subject to major NSR review and

specify that the authorization required shall be either a PSD or

NNSR permit. This change will help ensure that this section of

the rule is approvable into the SIP.

The EPA requested that §116.192(c) reference both 40 CFR

§52.21 (aa)(11) and §51.165(f)(11) in order to trigger applicability

of PSD and NNSR.

The commission agrees with the comment and is changing

§116.192(c)(1)(C) to include both references to the federal

regUlations to ensure the commission rules include adequate

references to corresponding federal rules.

TIP commented that the revision to §116.601 does not directiy

relate to one of the EPA's stated bases for disapproving the rule

and opens a new SIP gap.

The commission has made no changes in response to this comment. The adopted change to the rule removes citations to rules

that are now obsoiete, because EPA has either disapproved the

rule (§116.617) or the rules have been not acted upon by EPA

and, subsequently, withdrawn from EPA consideraUon by the

commission due to being repealed (§116.620 and §116.621),

and replaces those citations with generic language that the commission expects to be non-controversial and, therefore, should

ADOPTED RULES February 25, 2011 36 TexReg 1311
be approvable by EPA. While EPA did not comment in its disapproval (75 Federal Register 56423, September 15, 2010) of

§116.617 that a reference to the rule elsewhere was an issue, it

is clear that such a reference is now inappropriate. Further, although the commission's current practice is to use its authority

to adopt standard permits as non-rule standard permits, it wants

to retain its option to adopt standard permits as rules in Chapter

116, Subchapter F. Any such standard permit would need to be

submitted to EPA as a SIP revision. Therefore, the resulting SIP

gap is not of such concern that the commission wants to retain a

reference to rules that are not in the SIP or have been repeaied.

The EPA supported the discontinuation of the pollution control

standard permit by the commission's proposed changes to

§116.617, but noted that many tacil~ies may continue to rely on

it and that these permits were not part of the federally approved

TCEQ NSR SIP. The EPA also acknowledged the TCEQ's

develOPl11ent of a non-rule pollution control standard perm~.

TIP commented that the revision to §116.617 to limit the use of

the pollution control standard. permit does not address EPA's

disapproval of this authorization and the TCEQ should confirm

that existing authorizations under this section of the rule are

valid.

The TCEQ maintains its pos~ion that §116.617 is an efficient and

legally supportable authorization for pollution control projects in

Texas. The commission's position is that the authorizations that

have been issued under§116.617 prior to this change in the rule,

and all other prior versions of this standard permit, remain valid

permits.

The TCEQ has proposed a new non-rule PCP standard permit

and has received comments from EPA regarding that proposal.

The executive director will present his response to those comments to the commission for consideration of a new non-rule

PCP standard perm~.

The EPA commented thal, although TCEQ was not submitting

§116.617 as a SIP revision, it was submitting comments on

§116.617 to assure that Texas' ongoing implementation of any

pollution control standard permit was consistent with the basis

for disapproval expressed in EPA's final disapproval notice (see

September 15, 2010 (75 Federal Register 56424)).

On September 23, 2009, the EPA proposed disapproval of

§116.617 (74 Federal Register 46467,), as adopted by the

commission effective February 1, 2006. The amendments to

§116.617 were adopted in 2006 to address prior comments from

EPA after the opinion of the District of Columbia Circuit Court of

Appeals in New York v. EPA (June 24, 2005), which ruied that

EPA's rules that exempted pollution control projects from PSD

review by defining "modifications" to exclude collateral emission

increases associated with those projects did not meet the requirements of the FCAA. Specifically, the amendments adopted

in 2006 clarified that any project that constitutes a new major

stationary source or major modification as defined in §116.12

is subject to the requirements of Chapter 116, Subchapter B,

rather than the requirements of Chapter 116, Subchapter F.

The commission appropriately interpreted the New York opinion

to apply to the PSD permitting program and, therefore, made

amendments to §116.617 to continue the program to assist With

the efficient authorization method for installation of pollution

control equipment tor projects that do not trigger federal review.

The EPA acknowledged that §116.617 (as adopted in 2006) explicitly prohib~ the use of the PCP Standard Permit for new major sources and major modifications; thus, addressing the court's

36 TexReg 1312 February 25, 2011 Texas Register

decision in New York v. EPA. The EPA has not adopted any

rules that provide detailed requirements for this type of permit,

or any rules prohibiting it. In fact, the appiicabie rule in 40 CFR

§51.160 is broadly written and has been interpreted by EPA to

provide states discretion to tailor their own minor NSR permit

programs. As noted earlier, the commission's standard permit

program is part olthe approved Texas SIP, and EPA has determined it meets 40 CFR Part 51. The commission is challenging

the EPA's disapproval of §116.617.

SUBCHAPTER A. DEFINITIONS

30 TAC §116.12

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC),

§5.102, concerning General Powers, Which provides the commission with the general pciwers to carry out its duties under

the TWC; TWC, §5.103, concerning Rules, which authorizes the

commission to adopt rules necessary to carry out its powers and

duties under the TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas

Hea~h 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's purpose

to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property;

THSC, §382.011, concerning General Powers and Duties, which

authorizes the commission to control the quality of the state's air;

THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive pian for the proper control of the state's air; THSC,

§382.016, concerning Monitoring ReqUirements; Examination of

Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions

of air contaminants from a source or from an activity causing or

resulting in the emission of air contaminants; THSC, §382.021,

concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance

with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collected by the commission in performing

its duties are stale property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the

commission to issue permits for construction of new facilities

or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and

Amendment, which authorizes the commission to consolidate

various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will

evaluate modifications of existing tacilities; THSC, §382.0513,

concerning Permit Conditions, Which authorizes the commission

to establish and enforce permit conditions; THSC, §382.0514,

concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a

permitted federal source or tacility; THSC, §382.0515, concerning Appiication tor Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction

Permit, which authorizes the commission to issue preconstruction permits. The amendment is also adopted under Federai

Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et
seq., which requires states to submit state implementation plan

revisions that specify the manner in which the national ambient

air quality standard will be achieved and maintained within each

air quality control region of the state.

The adopted amendment implements THSC, §§382.002,

382.011, 382.012, 382.016, 382.017, 382.021, 382.040,

382.051, 382.0511 - 382.0515, and 382.0518; and FCAA, 42

USC, §§7401 et seq.

§116.12. /I;onattainmenl and Prevention a/Significant Deterioration

Review Dt;finitions.

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

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

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

control. The terms in this seetion are applieable to permit revie\\' for

major SQuree construction and major source modifieation in nonattainment areas. In addition to the terms that are defined by the TCAA, and

in §101.1 ofthis title (relating to Definitions), the following words and

terms. when used in Chapter 116. Subchapter B, Divisions 5 and 6 of

this title (relating to Nonattainment Review Permits and Prevention of

Significant Deterioration Review); and Chapter] ]6, Subchapter C, Division 1 ofthis title (relating to Plant-Wide Applicability Limits), hav~

the following meanings, unless the context clearly indicates otherwise.

(]) Actual emissions--Actual emissions as of a partieular

date are equal to the average rate, in tons per year, at which the unit

actually emitted the pollutant during the 24-month period that precedes the particular date and that is representative of normal source

operation, except that this definition shall not apply for calculating

whether a significant emissions increase has occurred, or for establishing a plant-wide applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shall apply for this purpose.

The executive director shall allow the use of a different time period

upon a determination that it is more representative of normal source

operation. Actual emissions shall be calculated using the unit's actual

operating hours, production rates, and types of materials processed,

stored, or combusted during the selected time period. The executive

director may presume that the source-specific allowable emissions for

the unit are equivalent to the actual emissions, e.g., when the allowable

limit is reflective of actual emissions. For any emissions unit that has

not begun normal operations on the particular date, actual emissions

shall equal the potential to emit ofthe unit on that date.

(2) Allowable emissions·-The emissions rate of a stationary source, caleulated using the maximum rated capacity ofthe source

(unless the source is su~iect to federally enforceable limits that restriet

the operating rate, or hours of operation, or both), and the most stringent of the following:

(A) the applicable standards speeified in 40 Code of

Federal Regulations Part 60 or 61;

(B) the applieable state implementation plan emissions

limitation including those with a future compliance date; or

(C) the emissions rate specified as a federally enforceable permit condition including those with a future compliance date.

(3) Baseline actual emissions--The rate of emissions, in

tons per year, of a federally regulated new source review pollutant.

(A) For any existing electric utility steam generating

unit, baseline aetual emissions means the average rate, in tons per year,

at which the unit actually emitted the pollutant during any consecutive

24-month periOd selected by the oVt'Tler or operator within the five-year

period immediate1)-' preceding when the owner or operator begins actual construction ofthe projeet. The executive director shall allow the

use of a different time period upon a determination that it is more representative of normal source operation.

(B) For an existing facility (other than an electrie utility steam generating unit), baseline actual emissions means the average

rate, in tons per year, at which the facility actually emitted the pollutant during any consecutive 24-month period selected by the oVt'lJ.er or

operator within the ten-year period immediately preceding either the

date the oVt'lJ.er or operator begins actual construction ofthe project, or

the date a complete permit application is received for a pennit. The

rate shall be adjusted downward to exclude any emissions that would

have exceeded an emission limitation with which the major stationary

source must currently comply with the exception ofthose required under 40 Code of Federal Regulations Part 63, had such major stationary

souree been required to comply with such limitations during the consecutive 24-month period.

(C) For a new facility, the baseline actual emissions for

purposes ofdetermining the emissions increase that will result from the

initial construction and operation ofsuch unit shall equal zero; and for

all other purposes during the first two years foHowing initial operation,

shall equal the unit's potential to emit.

(D) The actual average rate shall be adjusted doVt'lJ.ward

to exclude any non-compliant emissions that occurred dUring the consecutive 24-month period. For each regulated new source review pollutant, when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline actual

emissions for the facilities being changed. A different conseeutive 24-

month period can be used for each re gulated new source review pollutant. The average rate shall not be based on any conseeutive 24-month

period for which there is inadequate information for determining annua] emissions, in tons per year, and for adjusting this amount. Baseline emissions cannot occur prior to November 15, 1990.

(E) The actual average emissions rate shall include

fugitive emissions to the extent quantifiable. Until March 1,20]6,

emissions previously demonstrated as resulting from planned maintenanee, startup. or shutdown activities; historically unauthorized; and

subject to reporting under Chapter] 0] ofthis title (relating to General

Air Quality Rules) shall be included to the extent that they have been

authorized.

(4) Basic design parameters--For a process unit at a steam

electrie generating faeility, the OVtner or operator may seleet as its basic design parameters either maximum hourly heat input and maximum

hourly fuel consumption rate or maximum hourly electric output rate

and maximum steam flow rate. When establishing fuel consumption

specifications in terms of weight or volume, the minimum fuel quality

based on British thermal units content shall be used for determining the

basie design parameters for a coal-fired electric utility steam generating unit. The basic design parameters for any proeess unit that is not

at a steam electrie generating facility are maximum rate offuel or heat

input, maximum rate of material input, or maximum rate of product

output. Combustion process units will typieally use maximum rate of

fuel input. For sources having multiple end products and raw materials,

the owner or operator shall consider the primary product or primary raw

material when selecting a basic design parameter. The oVtner or operator may propose an alternative basic design parameter for the source's

process units to the executive director ifthe owner or operator believes

the basic design parameter as defined in this paragraph is not appropriate for a specific induSlt)· or type of process unit. If the executive

director approves of the use of an alternative basic design parameter,

that basic design parameter shall be identified and compliance required

in a condition in a permit that is legal!)' enforeeable.

ADOPTED RULES February 25, 2011 36 TexReg 1313
(A) The owner or operator shall use credible information, sueh as results ofhistoric maximum capability tests. design information from the manufacturer, or engineering calculations, in esta~

lishing the magnitude of the basic design parameter.

(B) If design information is not available for a process

unit, the owner or operator shall detennine the process unit's basic design parameter(s) using the maximum value achieved by the process

unit in the five-year period immediately preceding the planned activit)'.

(C) Efficiency of a process unit is not a basic design

parameter.

(5) Begin actual construction--In general, initiation of

physical on-site construction activities on an emissions unit that are

of a pennanent nature. Such activities include, but are not limited

to, installation of building supports and foundations, laying of underground pipewor~ and construction of pennanent storage structures.

With respect to a change in method of operation, this term refers to

those on-site activities other than preparatory activities that mark the

initiation ofthe change.

(6) Building, structure, facility, or installation--All of the

pollutant-emitting activities that belong to the same industrial grouping. are located in one or more contiguous or adjacent properties, and

are under the control of the same person (or persons under common

control). Pollutant-emitting activities are considered to be part ofthe

same industrial grouping ifthey belong to the same "major group" (Le.,

that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement.

(7) Clean coal technology--Any technology, including

technologies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant

reductions in air emissions of sulfur dioxide or oxides of nitrogen

associated with the utilization of coal in the generation of electricity,

or process steam that Was not in widespread use as of November 15,

1990.

(8) Clean coal technology demonstration project--A

projeet using funds appropriated undcr the heading "Department of

Energy-Clean Coal Technology," up to a total amount of $2.5 billion

for commercial demonstration of clean coal technology, or similar

projeets funded through appropriations for the United States Environmental Protection Agency. The federal eontribution for a qUalif)fing

project shall be at least 20% of the total cost of the demonstration

project.

(9) Commence--As applied to construetion of a major station8l')· source or major modification, means that the owner or operator

has all necess8J')· preconstruction approvals or permits and either has:

(A) begun, or caused to begin, a continuous program

of actual on-site construction ofthe source, to be completed within a

reasonable time; or

(B) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss

to the owner or operator. to undertake a program ofactual construction

of the source to be completed within a reasonable time.

(10) Construction--Any physical change or change in the

method of operation (including fabrication. erection, installation, demolition. or modification of an emissions unit) that would result in a

ehange in actual emissions.

(11) Contemporaneous period--For major sources the period between:

(A) the date that the increase from the particular change

occurs: and

(B) 60 months prior to the date that construetion on the

partieular change commences.

(12) De minimis threshold test (netting)--A method of determining if a proposed emission increase will trigger nonattainment

or prevention of significant deterioration review. The summation of

the proposed project emission increase in tons per year with all other

ereditable source emission increases and decreases during the contemporaneous period is compared to the significant level for that pollutant.

Ifthe significant level is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required.

(13) Electric utility steam generating unit--Any steam electric generating unit that is constructed for the purpose of supplying

more than one-third of its potential electric output capacity and more

than 25 megawatts electrical output to any utility power distribution

system for sale. An)' steam supplied to a steam distribution system for

the purpose ofproviding steam to a steam-electric generatorthat would

produce electrical energy for sale is included in determining the electrical energy output capacity ofthe affeeted facility.

(14) Federally regulated new source review pollutant--As

defined in subparagraphs (A)· (D) ofthis paragraph:

(A) any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors

for such pollutants identified by the United States Environmental Protection Agency;

(B) any pollutant that is subject to any standard promulgated under Federal Clean Air Act (FCAA), §Ill;

(C) any Class lor II substance subject to a standard promulgated under or established by FCAA, Title VI; or

(D) any pollutant that otherwise is subjeet to regulation

under the FCAA; except that any or all hazardous air pollutants either

listed in FCAA, §112 or added to the list under FCAA, §112(b)(2),

which have not been delisted under FCAA, §112(b)(3), are not regulated new source review pollutants unlessthe listed hazardous air poilu·

tant is also regulated as a constituent or precursor ofa general pollutant

listed under FCAA, § I08.

(15) Lowest achievable emission rate--For any emitting fa·

eility, that rate of emissions of a contaminant that does not exceed the

amount allowable under applicable new source performance standards

promulgated by the United States Environmental Proteetion Agency

under 42 United States Code, §7411, and that reflects the following:

(A) the most stringent emission limitation that is contained in the roles and regulations of any approved state implementation plan for a specific class or category offacility, unless the owner or

operator ofthe proposed facility demonstrates that such limitations are

not achievable; or

(B) tbe most stringent emission limitation that is

achieved in practice by a specific class or eategory of faeilities,

whichever is more stringent

(16) Major faeility--Any facility that emits or has the potential to emit 100 tons per year or more ofthe plaot.wide applicability

limit (PAL) pollutant in an attainment area; or any facility that emits or

. has the potential to emit the PAL pollutant in an amount that is equal

to or greater than the major source threshold for the PAL pollutant in

Table 1 ofthis section for nonattainment areas.

(17) Major stationary source--Any stationaI)' source that

emits, or has the potential to emit, a threshold quantity of emissions

36 TexReg 1314 February 25, 2011 Texas Register
Or more of any air eontaminanl (including volatile organic compounds

(VOCs) for which a national ambient air quality standard has been issued. The major source thresholds are identified in Table I ofthis section for nonattainrnent pollutants and the major source thresholds for

prevention of significant deterioration pollutants are identified in 40

Code ofFederal Regulations (CFR) §5 J.l66(b)(l). A source that emits.

or hasthe potential to emit a federally regulated new source review pollutant at levels greater than those identified in 40 CFR §51.166(b)(l)

is considered major for all prevention ofsignificant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen

oxides is considered to be major for oZOne. The fugitive emissions of

a stationary source shall not be included in determining for any of the

purposes ofthis definition whether it is a major stationary source, unless the source belongs to one of the categories of stationary sources

listed in 40 CFR §5J.l65(a)(I)(iv)(C).

(18) Major modification--As follows.

(A) Any physical change in, or change in the method of

operation of a major stationaI)' source that causes a significant project

emissions increase and a significant net emissions increase for any federall) regulated new source review pollutant. At a statioDl!I)' source

that is not major prior to the increase, the increase by itself must equal

or exceed that specified for a major source. At an existing major stationary source, the increase must equal or exceed that specified for a

major modification to be-significant. The major source and significant

thresholds are provided in Table I ofthis section for nonattainment pollutants. The major source and significant thresholds for prevention of

significant deterioration pollutants are identified in 40 Code ofFederal

Regulations §5 J.l66(b)(l) and (23), respectively.

Figure: 30 TAC §1l6.12(l8)(A)

(B) A physical change or ehange in the mcthod of operation shall not include:

(ij routine maintenance, repair, and replaeement;

(ii) use of an alternative fuel or raw material by rcason ofan order under the Encrgy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by

reason of a natural gas curtailment plan Wlder the Federal Power Act;

(iii) use of an alternative fuel by reason of an order

or rule of 42 United States Code, §7425;

(iv) use of an alternative fuel at a steam generating

unit to the extent that the fuel is generated from municipal solid waste;

(v) use of an alternative fuel or raw material by a

stationary source that the source was capable ofaccommodating before

December 21, ]976 (unless such change would bc prohibited under any

federally enforceable permit condition established after December 21,

]976) or the source is approved to use under any permit issued under

regulations approved under this chapter;

(vI) an inerease in the hours of operation or in the

production rate (unless the change is prohibited under any federally

enforceable permit condition that was established after December 21,

1976):

(vii) any change in ownership at a stationary source;

(viii) any change in emissions of a pollutant at a site

that occurs under an existing plant-wide applicability limit;

(u) the installation, operation, cessation, or removal

of a temporaJ) clean coal technology demonstration project. provided

that the project complies with the state implementation plan and other

requirements necessary to attain and maintain the national ambient air

quality standard during thc project and after it is terminated;

(x) for prevention ofsignificant deterioration review

only. the installation or operation ofa permanent clean eoal technology

demonstration project that constitutes re-powering. provided that the

project does not result in an increase in the potential to emit of any

regulated pollutant emitted by the unit. This exemption shall apply on

a pollutant-by-pollutant basis; Or

(xi) for prevention of significant deterioration re~

view only, the reactivation of a clean coal-fired electric utility steam

generating unit.

(19) NecessaJ)' preconstruction approvals or permits--Those permits or approvals required Wlder fcderal air quality

control laws and regulations and those air quality control laws and

regulations that are part ofthe applicablc state implementation plan.

(20) Net emissions increase-~The amount by which the

sum ofthe following exceeds zero: the project emissions increase plus

any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases.

Baseline actual emissions shall be used to determine emissions in·

creases and decreases.

(A) An increase or decrease in emissions is creditable

only ifthe following conditions are met:

(i) it occurs during the contemporaneous period;

(Ii) the executive director has not relicd on it in issuing a federal new source review permit for the source and that permit

is in effect when the increase in emissions from the particular changc

occurs: and

(iii) in the case of prevention ofsignificant deterioration review only, an increase or decrease in emissions ofsulfur dioxide, particulate matter, or nitrogen oxides that occurs beiore the applicable minor source baseline date is creditable only ifit is rcquired to be

considercd in calculating the amount ofmaximum allowable increases

remaining available.

(B) An increase in emissions is creditable ifit is the result of a physical change in, or change in thc method ofoperation of a

stationaJ)' source only to the extent that the new level of emissions exceeds the baselinc actual emission rate. Emission increases at facilities

under a plant~wide applicability limit are DOt creditable.

(C) A deerease in emissions is creditable only to the extent that all of the following conditions are met:

(i) the baseline actual emission rate exceeds the new

levcl of emissions;

(ii) it is federally enforceable at and after the time

that aetual construction on the particular change begins;

(iii) the executive director has not relied on it in issuing a prevention ofsignificant deterioration or a nonattainment pennit;

(iv) the decrease has approximately the same quali·

tatiye significanec for public health and welfare as that attributed to the

incrcase from the particular change; and

(v) in the case of nonattainment applicability analysis only, the state has not relied on the decrease to demonstrate attainment or reasonable further progress.

(D) An increase that results from a physieal change at a

source occurs when the cmissions unit on whieh construction occurred

becomes operational and begins to emit a particular pollutant. Any

replacement unit that requires shakedown becomes operational only

after a reasonablc shakedoVtn period, DOt to exceed] 80 days.

ADOPTED RULES February 25,2011 36 TexReg 1315
(21) Offset ratio--For the purpose of satisfying the

emissions offset reduction requirements of 42 United States Code,

§7503(a)(I)(A), the emissions offset ratio is the ratio of total actual

reductions of emissions to total emissions increases ofsueh pollutants.

The minimum offset ratios are included in Table I ofthis section under

the definition ofmajor modification. In order for a reduction to qualify

as an offset, it must be certified as an emission credit under Chapter

101, Subchapter H, Division 1 or 4 of this title (relating to Emission

Credit Banking and Trading; or Discrete Emission Credit Banking and

Trading), exeept as provided for in §l16.170(b) ofthis title (relating to

Applicability ofEmission Reductions as Offsets). The reduction must

not have been relied on in the issuance of a previous nonattainment or

prevention ofsignificant deterioration pennit.

(22) Plant-wide applicability limit--An emission limitation

expressed, in tons per year, for a pollutant at a major stationary source,

that is enforceable and established in a plant-wide applieability limit

permit under §116.186 ofthis title (relating to General and Special Conditions).

(23) Plant·wide applicability limit effective date-·The date

ofissuancc ofthe plant-wide applicability limit permit. The plant-wide

applicability limit effective date for a plant-wide applicability limit established in an existing flexible pennit isthe date that the flexible pennit

was issued.

(24) Plant-wide applicability limit major modifieation--Any physical change in, or change in the method of operation

of the plant-wide applicability limit source that causes it to emit the

plant-wide applicability limit pollutant at a level equal to or greater

than the plant-wide applicability limit.

(25) Plant-wide applieability limit permit--The new source

review permit that establishes the plant·wide applicability limit

(26) Plant-wide applicability limit pollutant--The pollutant

for which a plant·wide applicability limit is established at a major stationary source.

(27) Potential to emit-The maximum capaeity ofa stationary source to emit a pollutant under its physical and operational design.

Any physical or enforceable operational limitation on the capacity of

the stationary source to emit a pollutant, including air pollution eontrol equipment and restrictiom on hours of operation or On the type or

amOunt ofmaterial combusted. stored, Or processed, rna)' be treated as

part of its design only ifthe limitation or the effect it would have on

emissions is federally enforceable. Seeondary emissions, as defined

in 40 Code ofFedeTal Regulations §51.165(a)(I)(viii), do not count in

determining the potential to emit for a stationary source.

(28) Project net--The sum of the following: the project

emissions increase, minus any sourcewide creditable emission decreases proposed at the source between the date of application for

the modification and the date the resultant modification begins emit·

ting. Baseline actual emissions shall be used to detennine emissions

increases and decreases. Inereases and deereases must meet the creditability criteria listed under the definition of net em issjons increase in

this section.

(29) Projected actual emissions--The maximum annual

rate, in tons per year, at which an existing facility is projected to

emit a federally regulated new source review pollutant in any rolling

12-month period during the five years following the date the facility

resumes regular operation after the projeet, or in anyone of the ten

years following that date, if the project involves increasing the facility's design capacity Or its potential to emit that federally regulated

new source review pollutant. In detennining the projected actual

emissions, the owner or operator of the major stationary source shall

36 TexReg 1316 February 25, 2011 Texas Register

include unauthorized emissions from planned maintenance, startup, or

shutdown activities, which were historically unauthorized and subject

to reporting under Chapter 101 of this title. to the extent they have

been authorized. or are being authorized; and fugitive emissions to

the extent quantifiable; and shall consider all relevant information,

ineluding. but not limited to, historical operational data, the company's

own representations, the company's expected business activity and

the company's highest projections of business activity, the company's

filings with the state or federal regulatory authorities, and compliance

plans under the approved state implementation plan.

(30) Project emissions inerease~-The sum of emissions inereases for each modified or a.ffected facility detennined using the following methods:

(A) for existing facilities, the difference between the

projected actual emissions and the baseline actual emissions. In caleulating any increase in emissions that results from the projcct, that

portion ofthe facility's emissions following the project that the facil·

ity could have accommodated during the consecutive 24·month period

used to establish the baseline actual emissions and that are also unrelated to the partieular project, including any increased utilization due

to product demand growth may be excluded from the project emission

increase. The potential to emit from the facility following completion

ofthe project may be used in lieu ofthe projected actual emission rate;

and

(8) for new facilities, the difference between the potential to emit from the facility following completion of the project and

the baseline actual emissions.

(31) Replacement facility~-A facility that satisfies the fol·

lowing criteria:

(A) the facility is a reconstructed unit within the meaning of 40 Code of Federal Regulations §60.15(b)(I), or the facility replaces an existing facility;

(8) the facility is identical to or functionally equivalent

to the replaced facility;

(C) the replacement does not alter the basic design parameters of the process unit;

(D) the replaced facility is pennanently removed from

the major stationary source, otherwise permanently disabled, or permanently barred from operation by a pennit that is enforceable. Ifthe

replaced facility is brought back into operation, it shall constitute a

new facility. No creditable emission reductions shall be generated from

shutting down the existing facility that is replaced. A replacement facility is comidered an existing facility for the purpose of determining

federal new source review applicability.

(32) Secondary emissions-Emissions that would oceur as

a result of the construction or operation of a major stationary source

or major modification, but do not come from the source or modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same generaJ area as the stational')' source or

modification that causes the secondary emissions. Secondary emissions include emissions from any off·site support facility that would

not be constructed or increase its emissions, except as a result of the

construction or operation ofthe major stationary source or major modification. Secondary emissions do not include any emissions that come

direetly from a mobile source sueh as emissions from the tail pipe of a

motor vehicle, from a train, or from a vessel.

(33) Significant faeility·-A facility that emits or has the potential to emit a plant-wide applicability limit (PAL) pollutant in an
SUBCHAPTER B. NEW SOURCE REVIEW

PERMITS

DIVISION 1. PERMIT APPLICATION

30 TAC §116.115, §1I6.127

STATUTORY AUTHORITY

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD-201,00539

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal pUblication date: August 27, 2010

For further infonnation, please call: (512) 239-0177

amount that is equal to or greater than the significant level for that PAL

pollutant.

(34) Small facility--A facility that emits or has the potential

to emit the plant-wide applicability limit (PAL) pollutant in an amount

less than the significant level for that PAL pollutant.

(35) Stationary source--Any building, structure, facility, or

installation that emits or may emit any air pollutant subject to regulation

under 42 United States Code, §§7401 et seq.

(36) Temporary clean coal technology demonstration

project--A clean coal technology demonstration project that is operated for a period offive years or less, and that complies with the state

implementation plan and other requirements necessary to attain and

maintain the national ambient air quality standards during the project

and after it is tcnninated.

The amendment and new section are adopted under Texas

Water Code (TWC), §5.1 02, concerning General Powers, which

provides the commission with the general powers to carry out its

duties under the TWC; TWC, §5.103, concerning Rules, which

authorizes the commission to adopt rules necessary to carry out

its powers and duties under the TWC; TWC, §5.1 05, concerning

General Policy, which authorizes the commission by rule to

establish and approve all general policy of the commission;

TWC, §7.101, concerning Violation, which prohibits violation of

a statute or rule within the commission's jurisdiction; 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 and new section are adopted under THSC,

§382.002, conceming Policy and Purpose, which establishes

the commission's purpose to safeguard the state's air resources,

consistent with the protection of public health, general welfare,

and physical property; THSC, §382.011, concerning General

Powers and Duties, which authorizes the commission to control

the quality of the state's air; THSC, §382.012, concerning State

Air Control Plan, which authorizes the commission to prepare

and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.018, concerning Monitoring

Requirements; Examination of Records, which authorizes the

•• •

commission to prescribe reasonable requirements for measuring

and monitoring the emissions of air contaminants from a source

or from an activity causing or resulting in the emission of air

contaminants; THSC, §382.021, concerning Sampling Methods

and Procedures, which authorizes the commission to prescribe

sampling methods and procedures to be used in determining violations of and compliance with the commission's rules; THSC,

§382.040, conceming Documents; Public Property, which provides that all information, documents, and data collected by the

commission in periorming its duties are state property; THSC,

§382.051, concerning Permitting Authority of Commission;

Rules, which authorizes the commission to issue permits for

construction of new facilities or modifications to existing facilities

that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes

the commission to consolidate various authorizations; THSC,

§382.0512, concerning Modification of Existing Facility, which

prescribes how the commission will evaluate modifications of

eXisting facilities; THSC, §382.0513, conceming Permit Conditions, which authorizes the commission to establish and enforce

permit conditions; THSC, §382.0514, conceming Sampling,

Monitoring, and Certification, which authorizes the commission

to require sampling and monitoring of a permitted federal source

or facility; THSC, §382.0515, concerning Application for Permit,

which specifies permrt application reqUirements; and THSC,

§382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The

amendment and new section are also adopted under Federal

Clean Air Act (FCAA), 42 United States Code (USC), §§7401, el

seq., which requires states to submit state implementation plan

revisions that specify the manner in which the national ambient

air quality standard will be achieved and maintained within each

air quality control region of the state.

The adopted amendment and new section implement THSC,

§§382.002, 382.011, 382.012, 382.018, 382.017, 382.021,

382.040, 382.051, 382.0511 - 382.0515, and 382.0518; and

FCAA, 42 USC, §§7401 et seq.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD-20'100540

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal publication date: August 27, 2010

For further information, please call: (512) 239-0177

30 TAC §1I6.121

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code (TWC), §5.102,

concerning General Powers, which provides the commission

with the general powers to carry out its duties under the TWC;

TWC, §5.103, concerning Rules. which authorizes the commission to adopt rules necessary to carry out its powers and duties

under the TWC; TWC, §5.1 05, concerning General Policy, which

• • •

ADOPTED RULES February 25, 2011 36 TexReg 1317
Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal publication date: AUQust 27, 2010

For further information, please call: (512) 239-0177

SUBCHAPTER C. PLANT-WIDE

APPLICABILITY LIMITS

DIVISION I. PLANT-WIDE APPLICABILITY

LIMITS

30 TAC §§116.180, 116.182, 116.186,116.188, 116.190,

116.192

STATUTORY AUTHORITY

The amendments are adopted under Texas Water Code (TWC),

§5.102, concerning General Powers, which provides the commission w~h the general powers to carry out its duties under

the TWC; TWC, §5.1 03, concerning Rules, which authorizes the

commission to adopt rules necessary to carry out its powers and

duties under the TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and

approve all general policy of the commission; and under Texas

Health and Safety Code (THSC), §382.017, concerning Rules,

which authorizes the commission to adopt rules consistent with

the policy and purposes of the Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose

to safeguard the state's air resources, consistent w~h the protection of public health, general welfare, and physical property;

THSC, §382.011, concerning General Powers and Duties, which

authorizes the commission to control the qual~ of the state's air;

THSC, §382.012, concerning State Air Control Plan, Which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC,

§382.016, concerning Monitoring Requirements; Examination of

Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions

of air contaminants from a source or from an activity causing or

resulting in the emission of air contaminants; THSC, §382.021,

concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance

w~h the commission's rules; THSC, §382.040, concerning Documents; Public Property, Which provides that all information, documents, and data collected by the commission in performing

its duties are state property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the

commission to issue permits for construction of new facilities

or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and

Amendment, which authorizes the commission to consolidate

various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will

evaluate modifications of existing facilities; THSC, §382.0513,

concerning Permit Conditions, which authorizes the commission

to establish and enforce permit conditions; THSC, §382.0514,

concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a

permitted federal source or facility; THSC, §382.0515, concemauthorizes the commission by rule to establish and approve

all general policy of the commission; 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 repeal

is also adopted under THSC, §382.002, concerning Policy

and Purpose, which establishes the commission's purpose to

safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property;

THSC, §382.011, concerning General Powers and Duties,

which authorizes the commission to control the quality of the

state's air; THSC, §382.012, concerning State Air Control Plan,

which authorizes the commission to prepare and develop a

general, comprehensive plan for the proper control of the state's

air; THSC, §382.016, concerning Monitoring Requirements;

Examination of Records, which authorizes the commission to

prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an

activity causing or resulting in the emission of air contaminants;

THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling

methods and procedures to be used in determining violations of

and compliance with the commission's rules; THSC, §382.040,

concerning Documents; PUblic Property, which provides that all

information, documents, and data COllected by the commission

in performing its duties are state property; THSC, §382.051,

concerning Permitting Authority of Commission; Rules, which

authorizes the commission to issue permits for construction

of new facilities or modifications to existing facilities that may

emit air contaminants; THSC, §382.0511, concerning Perm~

Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512,

concerning Modification of Existing Facility, which prescribes

how the commission will evaluate modifications of existing

facilities; THSC, §382.0513, concerning Permit Conditions,

which authorizes the commission to establish and enforce

permit conditions; THSC, §382.0514, concerning Sampling,

Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal

source or facility; THSC, §382.0515, concerning Application for

Permit, which specifies permit application requirements; and

THSC, §382.0518, concerning Preconstruction Permit, which

authorizes the commission to issue preconstruction permits.

The repeal is aiso adopted under Federal Clean Air Act (FCAA),

42 United States Code (USC), §§7401, et seq., which requires

states to subm~ state implementation plan revisions that specify

the manner in which the national ambient air quality standard

will be achieved and maintained within each air quality control

region of the state.

The adopted repeal implements THSC, §§382.002, 382.011,

. 382.012, 382.016, 382.017, 382.021, 382.040, 382.051,

382.0511 - 382.0515, and 382.0518; and FCAA, 42 USC,

§§7401 et seq.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Fiied with the Office of the secretary of State on February 11,

2011.

TRD-2011 00541

36 TexReg 1318 February 25, 2011 Texas Register

• • •
ing Application for Permit, which specifies permit application requiremenls; and THSC, §382.0518, concerning Preconstruction

Permit, which authorizes the commission to issue preconstruction permils. The amendments are also adopted under Federal

Clean Air Act (FCM), 42 United States Code (USC), §§7401, et

seq., which requires states to submit state implementation plan

revisions that specify the manner in which the national ambient

air quality standard will be achieved and maintained within each

air quality control region of the state.

The adopted amendments implement THSC, §§382.002,

382.011, 382.012, 382.016, 382.017, 382.021, 382.040,

382.051, 382.0511 - 382.0515, and 382.0518; and FCM, 42

USC, §§7401 et seq.

§ JJ 6. J80. Applicability.

(a) The following requirements apply to a plant-wide applicabilj~' limit (PAL) pennit.

(1) Only one PAL may be issued for each pollutant at an

existing ma:ior stational)' source.

(2) A PAL permit may include more than one PAL.

(3) A PAL permit may not cover facilities or emissions

units at more than one existing major station8I)' source.

(4) A PAL permit may be consolidated with a new source

review permit at the existing major stationary: source.

(5) A PAL permit can be issued only for an existing major

stationary: source; it may not be issued for a new major stational'): source

as defined in 40 Code of Federal Regulations §51.165(iv)(A).

(b) The new O'oVIler of a major stationary source shall eomply

with §1l6.110(e) of this title (relating to Applieability), provided that

all facilities, or emissions units at a major stationary source, covered

b:y a PAL permit change ownership at the same time and to the same

person, or both the new owner and existing permit holder must obtain

a PAL permit alteration allocating the emission prior to the transfer of

the permit by the commission, After the sale of a facility, or emissions

unit at a major stationary source, but prior to the transfer of a permit

requiring a permit alteration, the original PAL permit holder remains

responsible for ensuring compliance with the existing PAL permit and

all rules of the commission.

(c) The owner ofthe facility, emissions unit at a major stationary source, group of facilities, or account or the operator of the facility, emissions unit at a major stationary source, group of facilities. or

account that is authorized to act for the o'oVIler is responsible for complying with this section, except as provided by subsection (b) of this

section.

§116.182. Plant-wide Applicability Limit Permit Application.

Any application for a new plant-wide applicability limit (PAL) permit

or PAL permit amendment must be eompleted and signed by an authorized representative. In order to be granted a PAL permit or PAL

permit amendment, the O'oVIler or operator ofthe proposed facility shall

submit information to the cotnmission that demonstrates that all ofthe

following infonnation is submitted:

(1) a list of all facilities, or emissions units at a major stational')' source, that emit the PAL pollutant, including their registration

or permit number, their potential to emit, and the expected maximum

capacity. In addition, the O'oVIler or operator ofthe source shall indicate

which, if any, federal or state applicable requirements, emission limitations, or work practices apply to eaeh unit;

(2) calculations ofthe baseline actual emissions with supporting documentation;

(3) the calculation procedures that the permit holder pro~

poses to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each

month; and

(4) the monitoring and recordkeeping proposed satisfy the

requirements of §116:186 ofthis title (relating to General and Special

Conditions) for each PAL.

§116.186. General and Special Conditions.

(a) The plant-wide applicability limit (PAL) will impose an annual emission limitation in tons per year, that is enforceable for all facilities, or emissions units at a major stational'): source, that emit the

PAL pollutant. For each month during the PAL effective period after

the first 12 months of establishing a PAL, the major stationary source

owner or operator shall demonstrate that the sum ofthe monthly emissions from each facility under the PAL for the previous l2 consecutive

months is less than the PAL (a 12-month average, rolled monthly), For

each month during the first 11 months from the PAL effective date, the

major stationary source owner or operator shall demonstrate that the

sum of the preceding monthly emissions from the PAL effective date

for eaeh facility under the PAL is less than the PAL. Each PAL must in·

clude emissions ofonly one pollutant. The PAL must include all emissions. including fugitive emissions, to the extent quantifiable, from all

facilities or emissions units at a major stationary: source included in the

PAL that emit or have the potential to emit the PAL pollutant.

(b) The following general conditions are applicable to ever)'

PAL pennit.

(1) Applicability. This section does not authorize any facility to emit air pollutants but establishes an annual emissions level

below which new and modified facilities, or emissions units at a major

stational'): source, will not be subject to major new source review for

that pollutant.

(2) Sampling requirements. If sampling of stacks or

process vents is required, the PAL permit holder shall contact the

commission's Office of Complianee and Enforcement prior to sampling to obtain the proper data forms and procedures. All sampling

and testing procedures must be approved by the executive director and

coordinated with the appropriate regional office of the commission.

The PAL permit holder is also responsible for providing sampling

facilities and eonducting the sampling operations or contracting with

an independent sampling consultant.

(3) Equivalency of methods. The permit holder shall

demonstrate the equivalency of emission control methods, sampling

or other emission testing methods, and monitoring methods proposed

as alternatives to methods indicated in the conditions of the PAL

permit. Alternative methods must be applied for in writing and must

be reviewed and approved b:y tbc executive director prior to their use

in fulfilling any requirements of the permit.

(4) Recordkeeping and reporting.

(A) A copy of the PAL permit along with information

and data sufficient to demonstrate eontinuous compliance with the

emission eaps contained in the PAL permit must be maintained in a

file at the plant site and made available at the request of personnel

from the commission or an)' air pollution control program having

jurisdiction. For facilities that normally operate unattended, this

information must be maintained at the nearest staffed location within

Texas specified by the pennit holder in the permit application. This

information must inelude, but is not limited to, emission eap and

individual emission limitation calculations based on a 12·month

rolling basis and production records and operating hours. Additional

ADOPTED RULES February 25, 2011 36 TexReg 1319
recordkeeping requirements may be specified in special conditions

attached to the PAL pennit.

(B) The owner or operator shall retain a copy ofthe PAL

permit application and any applieations for revisions to the PAL. each

annual certification of compliance under §122.146 ofthis title (relating

to Compliance Certification Tenns and Conditions), and the data relied

on in certifying the complianct: for the duration of the PAL plus five

years.

(C) A semiannual report shall be submitted to the executive director within 30 days ofthe end of each reporting period that

contains:

(i) the identification of owner and operator and 'the

permit number;

(jj) total annual emissions (in tons per year) based

on a 12·month rolling total for each month in the reporting period;

(iii) all data relied upon, including, but not limited

to, any quality assurance or quality control data, in calculating the

monthly and annual PAL pollutant emissions;

(iv) a list of any facility modified or added to the

major stationary source during the preceding six-month period;

(v) the number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with

zero and span calibration checks), and any corrective action taken. This

may be satisfied by referencing the PAL permit number in the semiannual report for the site submitted under §122.145 ofthis title (relating

to Reporting Tenns and Conditions);

(vi) a notification of a shutdown of any monitoring

system, whether the shutdown was permanent or temporary, the reason

for the shutdown. the anticipated date that the monitoring system will

be fully operational or replaced with another monitoring system. and

whether the emissions unit monitored by the monitoring system continued to operate, and the calculation ofthe emissions ofthe pollutant

or the number determined by method included in the pennit; and

(vii) a signed statement by the responsiblc official,

as defined in §122.10 ofthis titlc (relating to General Definitions), cer·

tifying the truth, accuracy, and completeness of thc information provided in the report.

(D) The owner or operator shall submit the results of

any revalidation test or method to the executive director within three

months after completion ofsuch test or method.

(5) Maintenance of emission control. The facilities covered by the PAL permit will not be operated unless all air pollution

emission capture and abatement equipment is maintained in good

working order and opemting properly during normal facility operations.

(6) Compliance with rules. Acceptance of a PAL pennit

by a pennit applicant constitutes an acknowledgment and agreement

that the holder will comply with all rules and orders ofthe commission

issued in conformity with the Texas Clean Air Act and the conditions

precedent to the granting ofthe pennit Ifmore than one state or fedcral

rule or PAL permit condition is applicable, the most stringent limit or

condition will govern and be the standard by which compliance must be

demonstrated. Acceptance includes consent to the cntrance ofcommission employees and agents into the permitted premiscs at reasonable

times to investigate conditions relating to the emission or concentration of air contaminants. including compliance with the PAL permit.

(7) Effective period. A PAL is cffective for tcn years.

36 TexReg 1320 February 25, 2011 Texas Register

(8) Absence ofmonitoring data. A source owner or opera·

tor shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for

a facility during any period oftime that there is no monitoring data, unless another method for detennining emissions during such periods is

specified in the PAL permit special conditions.

(9) Monitoring system requirements. Failure to use a monitoring system that meets the requirements ofthis section is a violation

of the PAL permit.

(10) Revalidation. All data used to establish the PAL pollutant must be revalidated through performance testing or other scientifically valid means approved by the executive director. Such testing

must occur at least once every five years after issuance ofthe PAL.

(11) Renewal. Ifa PAL renewal application is submitted to

the executive director in accordance with §116.196 ofthis title (relating

to Rcnewal of a Plant-wide Applicability Limit Pennit), the PAL shall

not expire at the end of the PAL effective pcriod. It shall remain in

effect until a renewed PAL pennit is issued by the executive director

or the application is voided.

(c) Each PAL pennit must include special conditions that satisfy the following requirements.

(I) For the purposes of this subchapter, the definitions of

the following tenns are the same as those provided in 40 Code of Federal Regulations §51.165.

(A) Continuous emission monitoring system (CEMS).

(B) Continuous emissions rate monitoring systcm

(CERMS).

(C) Continuous parameter monitoring system (CPMS).

(0) Predictive emissions monitoring system (PEMS).

(2) The PAL monitoring system must accurately detennine

all emissions of the PAL pollutant in terms of mass per unit of time.

Any monitoring system authorized for use in the PAL permit must be

based on sound scienec and mect genemlly acceptable seientific procedures for data quality and manipulation.

(3) The PAL monitoring system must employ one or more

of the general monitoring approaches meeting the minimum requirements as described in subparagraphs (A) - (D) ofthis paragraph.

(A) An oy,.ner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating

or solvents shall meet the following requirements:

(i) provide a demonstrated means of validating the

published content ofthe PAL pollutant that is contained in, or created

by, all materials used in or at the facility;

(ii) assume that the facility emits all ofthc PAL pollutant that is contained in, or created by, any raw material or fuel used in

or at thc facility, ifit cannot otherwise be accounted for in the process;

and

(iii) where the vendor of a material or fuel that is

used in or atthc facility publishes a range ofpoUutant content from such

material, the owncr or operator shall use the highest valuc ofthe range

to calculatc the PAL pollutant emissions unless the executive director

detennines that there is site-specific data or a site-specific monitoring

program to support another content within the range.

(B) An owner or operator using a CEMS to monitor

PAL pollutant emissions shall meet the following requirements.
0) The CEMS must comply with applicable perfor~

mance specifications found in 40 Code ofFederal Regulations Part 60.

Appendix B.

(ii) The CEMS must sample, analyze, and record

data at least every 15 minutes while the emissions unit is opemting.

(C) An owner or opemtor using CPMS or PEMS to

monitor PAL pollutant emissions shaH meet the following requirements.

(i) The CPMS or the PEMS must be based on eurrent site-speeific data demonstrating a eorrelation between the monitored parameter(s) and the PAL pollutant emissions across the range of

opemtion of the faeility.

(ii) Eaeh CPMS or PEMS must sample, analyze, and

record data at least every 15 minutes or at another less frequent interval

approved by the exeeutive director, while the faeility is opemting.

(D) An owner or operator using emission factors to

monitor PAL pollutant emissions shall meet the following requircments.

(i) All emission faetors must be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the

factors' development.

(ii) The faeility must opemte within the designated

range of use for the emission factor, if applieable.

(iii) Iftechnieally practieable, the owner or opemtor

of a signifieant faeilil)' that relies on an emission factor to calculate

PAL pollutant emissions shall conduct validation testing to detennine a

site-specific emission factor within six months ofPAL permit issuance,

unless the executive director detennines that testing is not required.

(E) An alternative monitoring approach must meet the

requirements in paragraph (1) of this subsection and be approved by

the executive director.

(4) Where an owner or operator ofa facilil)' cannot demonstrate a correlation between a monitored parameter(s) and the PAL pollutant emissions rate at all opemting points ofthe facility. the executive

director shall:

(A) establish default value(s) for detennining compliance with the PAL based on the highest potential emissions reasonably

estimated at such operating point(s); or

(B) detennine that opemtion of the facility during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation ofthe PAL.

§1l6.190. Federal."lonatfainment and Prevention o/Significant Deterioration Review.

(a) An inerease in emissions from opemtional or physical changes at a facilil)', or emissions unit at a major stationary

source, covered by a plant-wide applicabilil)' limit (PAL) permit is

insignificant, for the purposes of major new source review under this

subchapter, ifthe increase does not exceed the PAL.

(b) At no time are emissions reductions ofa PAL pollutant that

occur during the PAL cffective period creditable as dcereases for purposes of offsets, unless the level of the PAL is reduced by the amount

ofsuch emissions reductions and such reductions would be creditable

in the absence of the PAL.

(c) A physical or operational change not causing an exceedance of a PAL is not subject to federal restrietions on relaxing

enforceable emission limitations to avoid new source review.

§1 J6.192. Amendments and Alterations.

(a) Any increase in a plant-wide applicabilil)' limit (PAL) must

be made through amendment. Amendment applications must also include the information identified in §116.l82 of this title (relating to

Plant~wide Applicabilil)' Limit Pennit Application) for new and mod~

ified faeilities eontributing to the inerease in emissions so as to cause

the major stationary source's emissions to equal or exceed its PAL and

are sUbject to the public notice requirements under 116.194 ofthis title (relating to Publie Notice and Comment).

(1) As part ofthis applieation, the ma:.ior stationary souree

owner or operator shall demonstrate that the sum of the baseline aetual emissions of the small faeilities, plus the sum of the baseline actual emissions ofthe significant and major facilities assuming application offederal best available control technology (BACT) (as identified

in §116.160(c)(1 )(A) of this title (relating to Prevention of Significant

Deteriomtion Requirements» equivalent controls, plus the sum of the

allowable emissions ofthe new or modified facilities exceeds the PAL.

The level of eontrol that would result from federal BACT equivalent

controls on eaeh significant or major facilil)' shall be determined by

eondueting a new fedeml BACT analysis at the time the application

is submitted, unless the facility is eurrently required to comply with a

federal BACT or lowest achievable emission rate (LAER) requirement

that was established within the preceding ten years. In such a case, the

assumed control level for that emissions unit shall be equal to the level

of fedeml BACT or LAER with whieh that emissions unit must currently comply.

(2) The ov.ller or operator shall obtain a major new source

review pennit under applicable provision of Subchapter B, Division 5

and Division 6 ofthis chapter (relating to Nonattainrnent Review Permits; and Prevention ofSignificant Deterioration Review, respeetively)

for all facilities eontributing to the increase in emissions SO as to cause

the major stationary source's emissions to equal or exceed its PAL, regardless of the magnitude of the emissions increase. These facilities

shall comply with any emissions requirements resulting from the major new source review process.

(3) The PAL pennit shall require that the increased PAL

level be effective on the day any emission unit that is part ofthe PAL

major modification becomes operational and begins to emit the PAL

pollutant.

(4) The new PAL ~hall be the sum ofthe allowable emissions for each modified or new facilil)', plus the sum of the baseline

aetual emissions ofthe significant and major emissions units after the

application of federal BACT equivalent controls as identified in paragraph (1) ofthis subsection, plus the sum ofthc baseline actual emissions of the small emissions units.

(b) Changes to PAL pemits that do not require the PAL to be

increased must be completed through pennit alteration. Unless allowed

in the PAL pennit special conditions, the penni! holder shall submit an

alteration request prior to start of eonstroetion for physieal modifications to facilities or installation of new facilities under the PAL. Approval must be received from the executive director prior to start of

operation of the facilities if the emissions from the new or modified

facilities may exceed 100 tons per year.

(c) Acceptance of a PAL pennit is agreement by the pennit

holder for the executive director to reopen the PAL pemit consistent

with the requirements of §116.194 ofthis title for any actions in paragraphs (l) or (2) ofthis subsection.

(1) During the PAL effective period, the executive director

shall reopen the PAL pennit to:

ADOPTED RULES Fehruary 25, 20U 36 TexReg 1321
(A) correct typographical or calculation errors made in

setting the PAL or reflect a more accuratc detennination of emissions

used to establish the PAL;

(B) decrease the PAL limit the owner or operator of

the major stationary source creates creditable emissions reductions

that meet the requirements of 40 Code of Federal Regulations (CFR)

§51.165(a)(3)(ii) for use as offsets; and

(C) revise the PAL to reflect an increase in the PAL provided the owner or operator complies with the requirements of 40 CFR

§52.21(aa)(11) and §51.165(f)(lI).

(2) During the PAL effective period, the executive director

may reopen the PAL pennit for the following:

(A) revise the PAL to reflect newly applicable federal

requirements (for example, New Source Perfonnance Standards) with

compliance dates after the PAL effective date;

(B) revise the PAL to be consistent with any other requirement, that is enforceable as a practical matter, and that the State

may impose On the major stationlll')' SOurce under the state Implementation Plan; or

(C) reduce the PAL if the reviewing authority deter~

mines that a reduction is necessary to avoid causing or contributing

to a National Ambient Air Quality Standard or Prevention of Signifi~

cant Deterioration increment violation, or to an adverse impact on an

air quality related value that has been identified for a Federal Class I

area by a federal land manager and for which infonnation is available

to the general public.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD-201100542

Robert Martinez

Director, Environmental Law DiVision

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal publication date: August 27,2010

For further infonnation, please call: (512) 239-0177

• • •

SUBCHAPTER F. STANDARD PERMITS

30 TAC §116.601, §116.617

STATUTORY AUTHORITY

The amendments are adopted under Texas water Code (TWC).

§5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under

the TWC; TWC, §5.103. concerning Rules. which authorizes the

commission to adopt rules necessary to carry out its powers and

duties under the TWC; TWC, §5.105. conceming General Policy. which authorizes the commission by ruie to establish and

approve all general policy of the commission; and under Texas

Hea~h 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 amendments are also adopted underTHSC. §382.002. concerning PolIcy and Purpose. which estabiishes the commission's purpose

36 TexReg 1322 February 25, .lOlJ Texas Register

to safeguard the slate's air resources. consistent with the protection of public health, general welfare. and physical property;

THSC, §382.011, concerning General Powers and Duties. which

authorizes the commission to control the quality of the state's air;

THSC, §382.012, concerning State Air Control Pian, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper controi of the state's air; THSC,

§382.016, concerning Monitoring Requirements; Examination of

Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions

of air contaminants from a source or from an activity causing or

resulting in the emission of air contaminants; THSC, §382.021,

conceming Sampling Methods and Procedures, which authe>-

rizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance

with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all informabon, documents, and data collected by the commission in performing

its duties are state property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the

commission to issue permits for construction of new facilities

or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, conceming Perm~ Consolidation and

Amendment, which authorizes the commission to consolidate

various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will

evaluate mod~ications of existing facilities; THSC, §382.0513,

concerning Permit Conditions, which authorizes the commission

to establish and enforce permit cond~ions; THSC, §382.0514,

conceming Sampling, Monitoring, and Certification, which authorizes the commission to reqUire sampling and monitoring of

a permitted federal source or facility; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruclion permits; and THSC, §382.05195, concerning Standard

Permit, which authorizes the commission to issue a standard

permit for new or existing similar facilities. The amendments are

aiso adopted under Federal Clean Air Act (FCAA), 42 United

States Code (USC), §§7401, et seq., which reqUires states to

submit state impiementation plan revisions that specify the manner in which the nationai ambient air quality standard will be

achieved and maintained within each air quality control region

of the state.

The adopted amendment implements THSC, §§382.002,

382.011, 382.012, 382.016, 382.017, 382.021, 382.040,

382.051,382.0511 - 382.0515,382.0518, and 382.05195; and

FCAA, 42 USC, §§7401 et seq.

§116.617. State Pollution Control Project Standard Permit.

(a) Scope and applicability.

(l) This standard pennit applies to pollution control

projects undertaken voluntarily or as required by any governmental

standard, that reduce or maintain currently authorized emission rates

for facilities authorized by a permit, standard pennit, or pennit by rule.

(2) The project may include:

(A) the installation or replacement ofemissions control

equipment;

(B) the implementation or change to control techniques;

or

(C) the substitution of compounds used in manufacturing proeesses.
(3) This standard permit must not be used to authorize thc

installation of emission control equipment or the implementation of a

control technique that:

(A) constitutes thc complete replacement ofan existing

production facility or reconstruction of a production facil itl' as defined

in 40 Code ofFederal Rcgulatioos §60.15(b)(I) and (c): or

(B) the cxecutive director determines there are health

effects concerns or the potential to exceedanational ambient airquality

standard criteria pollutant or contaminant that results from an increase

in emissions of any air contaminant until thosc concerns are addressed

by the registrant to the satisfaction ofthe executive director; or

(C) returns a facility or group offacilitiesto compliance

with an existing authorization or permit unless authorized by the executive director.

(4) Prior to March 3, 2011, new or modified pollution control projects must meet the conditions ofthis standard permit. All previous standard permit registrations under this section that were authorized prior to the effective date of this rule must include the increases

and decreases in emissions resulting from those projects in any future netting calculation and all other conditions must be met upon the

ten-year anniversBJ')' and renewal of the original registration, or until

administratively incorporated into the facilities· permit, if applicable.

(5) Notwithstanding the requirements of §116.604 of this

title (relating to Duration and Renewal ofRegistrations to Use Standard

Permits), on or after March 3, 2011, no new or modified registrations

will be accepted and no existing registrations will be renewed.

(b) General requirements.

(I) Any claim underihis standard permit must comply with

all applieable conditions of:

(A) §116.604(1) and (2) of this title (relatiog to Duration and Renewal of Registrations to Use Standard Permits);

(8) §116.605(d)(I) and (2) ofthis title (relatiog to Standard Permit Amendment and Revocation);

(C) §1I6.610 ofthis title (relating to Applicability):

(D) §116.611 ofthis title (relating to Registration to Use

a Standard Permit);

(E) §1l6.614 of this title (relating to Standard Pennit

Fees); and

(F) §1l6.615 of this title (relatiog to General Cooditions).

(2) Construction Or implementation ofthe pollution control

project must begin within 18 months of receiving written acceptance

ofthe registration from the executive director, with one 18-month extension available. and must comply with §1I6.115(b)(2) and §116.120

ofthis title (relating to General and Special Conditions and Voiding of

Permits). An)' changes to allowable emission rates authorized by this

section become effective when the project is complete and operation or

implementation begins.

(3) The emissions limitations of §116.610(a)(1) ofthis title

do not apply to this standard permit.

(4) Predictable maintenance, startup, and shutdown emissions directly associated with the pollution control projects must be

included in the representations of the registration application.

(5) Any increases in actual or allowable emission rates or

any increase in production capacity authorized by this section (ineluding increases associated with recovering lost production capaeity) must

occur solely as a result ofthe project as represented in the registration

application. Any increases of production associated with a pollution

control project must not be utilized until an additional authorization is

obtained. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate, which may be

recovered and used without any additional authorization.

(c) Replacement projects.

(1) The replacement of emissions control equipment or

control technique undcr this standard permit is not limited to the

method of control currently in place, provided that the control or

techniquc is at least as effective as the current authorized method and

all other requirements ofthis standard permit are met.

(2) The maintenance, startup, and shutdov.n emissions may

be increased above currently authorized levels if the increase is necessary to implement the replacement project and maintenance, startup,

and shutdown emissions were authorized for the existing control equip.

ment or technique.

(3) Equipment installed under this section is subject to all

applicable testing and recordkeeping requirements ofthe original control authorization. Alternate, equivalent monitoring, or records may be

proposed by the applicant for review and approval ofthe executive director.

(d) Registration requirements.

(1) A registration must be submitted in accordance with the

foUowing.

(A) If there are no increases in authorized emissions

of any air eontaminant resulting from a replacement pollution control

project. a registration must be submitted no later than 30 days after

construction or implementation begins and the registration must be accompanied by a $900 fee.

(B) If a new control device or technique is authorized

or ifthere are increases in authorized emissions ofany air contaminant

resulting from the pollution control project. a registration must be submitted no later than 30 days prior to construction or implementation.

The registration must be accompanied by a $900 fee. Construction or

implementation may begin only after:

(i) no written response has been received from the

executive director within 30 calendar days ofreceipt by the Texas Commission on Environmental Quality (TCEQ); or

(ij) written acceptance of the pollution control

project has been issued by the executive director.

(C) lfthere are any changes in representations to a previOUSly authorized pollution control project standard permit for which

there are no increases in authorized emissions ofany air contaminant, a

notification or letter must be submitted no later than 30 days after con·

struction or implementation ofthe change begins. No fee applies and

no response will be sent from the executive director.

(D) Ifthere are any changes in representations to a previously authorized pollution control project standard permit that also

increase authorized emissions ofany air contaminant resulting from the

pollution eontrol projeet. a registration a1te~ation must be submitted no

later than 30 days prior to the start of construction or implementation

of the Change. The registration must be aceompanied by a $450 fee,

unless received within 180 days of the original registration approval.

Construction or implementation may begin only after:

(i) no ...vritten response has been received from the

executive director within 30 calendar days ofreceipt by the TCEQ: or

ADOPTED RULES February 25, 2011 36 TexReg 1323
riO written acceptance of the pollution control

project has been issued by the executive director.

(2) The registration must include the following:

(A) a description of process units affected by the

project~

(B) a description of the project;

(C) identification ofexisting pennits or registrations affected by the project;

(D) quantification and basis of increases and/or decreases associated with the project, including identification ofaffected

existing or proposed emission points, all air contaminants, and hourly

and annual emissions rates;

(E) a description of proposed monitoring and recordkeeping that will demonstrate that the project decreases or maintains

emission rates as represented; and

(F) a description of how the standard pennit will be administratively incorporated into the existing pennit(s).

(e) Operational requirements. Upon installation ofthe poUu·

tion control project, the Omler or operator shall comply with the requirements of paragraphs (1) and (2) ofthis subseetion.

(I) General duty. The Omler or operator must operate the

pollution control project in amanner consistent with good industry and

engineering practices and in such a way as to minimize emissions of

collateral pollutants, within the physical configuration and operational

standards usually associated with the emissions control device, strategy. or technique.

(2) Recordkeeping. The owner or operator must maintain

copies on site ofmonitoring or other emission records to prove that the

pollution control project is operated consistent with the requirements

in paragraph (I) ofthis subsection, and the conditions ofthis standard

pennit.

(f) Incorporation ofthe standard pennit into the facility authorization.

(I) Any new facilities or changes in method of control or

teehnique authorized by this standard pennit instead ofapermit amendment under §l 16.110 ofthis title (relating to Applicability) at a previ.

ously pennitted or standard permitted facility must be incorporated into

that facilit)·'s penni! when the pennit is amended Or renewed.

(2) All increases in previously authorized emissions, new

facilities, or changes in method of control or technique authorized by

this standard permit for facilities previously authorized by a pennit by

rule must comply with §I 06.4 ofthis title (relating to Requirements for

Pennitting by Rule), except §106.4(a)(I) ofthis title, and §106.8 ofthis

title (relating to Recordkeeping).

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD-201100543

36 TexReg 1324 February 25, 2011 Texas Register

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal publication date: August 27, 2010

For further infonnation, please call: (512) 239-0177

• • •

CHAPTER 116, CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

The Texas Commission on Environmental Quality (commission

orTCEQ) is adopting the amendments to §116.12 and §116.150.

Sections 116.12 and 116.150 are adopted with changes to the

proposed text as published in the August 27, 2010, issue of the

Texas Regisfer (35 TexReg 7687) and will be republished.

The adopted amendments to §116.12 and §116.150 will be submitted to the United States Environmental Protection Agency

(EPA) as revisions to the state implementation plan (SIP).

Background and Summary of the Factual Basis for the Adopted

Rules

On July 18, 1997, the EPA revised the ozone National Ambient Air Quality Standard (NAAQS), promuigating an ozone standard of 0.08 parts per million (ppm) measured over an eight-hour

period (the eight-hour ozone NAAQS or standard) (62 Federal

Register 38856, July 18, 1997). Different groups and states

challenged the final eight-hour ozone NAAQS, and ultimately,

the United States Supreme Court upheld the EPA's action setting the NAAQS, but found that the EPA had incorrectly implemented the eight-hour ozone NAAQS by ciassifying areas only

under Part 0, Subpart 1 of the Federal Clean Air Act (FCAA)

Amendments of 1990 and remanding other issues to the District of Columbia (D,C.) Circuit Court of Appeals (Whitman v.

Ametican Trucking Assoc" 121 S,C!. 903 (2001)). On March

26, 2002, the D.C. Circuit Court of Appeals rejected the other

challenges to the eight-hour ozone NAAQS (Ametican Trucking

Assoc. v. EPA, 283 F3d 355 (D.C, Cir. 2002)). The EPA then

proposed and adopted implementation rules to implement the

eight-hour ozone NAAQS, addressing transition issues from the

one-hour ozone NAAQS, the revocation of the one-hour ozone

NAAQS, classification of areas for the eight-hour ozone NAAQS,

and the specification of requirements relating to SIPs. EPA finalized designations for the 1997 eight-hour ozone NAAQS effective on June 15, 2004.

FCAA, §107 requires the EPA to designate areas nonattainment,

attainment, or unclassifiable no laterthan one year afterthe EPA

promulgates a new or revised NAAQS. For the ozone NAAQS,

FCAA, §181 further requires that each area designated nonattainment shall be classified at the time of its designation, by operation of iaw, in accordance w~h Table 1 of that section. FCAA,

§181, Table 1 prescribes the area class (ranging from marginal to

extreme), the design value range (measured in ppm and in measurements relating to the one-hour ozone standard), and the primary standard attainment date (ranging from three years to 20

years after November 15, 1990, the effective date of the 1990

Amendments to the FCAA). Other specifics and exceptions are

also provided in FCAA, §181. The classification scheme implemented by the United States Congress proVided that areas with

design values closer to attaining the one-hour ozone standard
• ••

Correction ofError

The Texas Commission on Environmental Quality (TCEQ) adopted

amendments to 30 TAC §§lJ6.12, 116.115.116.180,116.182, 116.186,

116.188.116.190, 116.192,116.601, and 116.617; new §1l6.127: and

reeport, Brazoria County: TYPE OF FACILITY: polyethylene plan

R LE VIOLATED: 30 TAC §101.20(l) and §116.115(c). THS ,

§3 .085(b), 40 CFR §60.18(c)(2), and NSR Pennit Number 4.

SC umbers I and 4(B), by failing to keep emissions capture and

abate ent equipment in operation when emissions were rou d to

it and y failing to prevent unauthorized emissions during event

lasting minutes: PENALTY: $10.000; SEP offset amount 0 $4.000

applied t Brazoria County - Brazoria County Vehicle and uipment

Program; NFORCEMENT COORDINATOR: Heather Podlipny,

(512) 239- 03: REGIONAL OFFICE: 5425 Polk Aven e. Suite R

Houston, Te 77023-1486, (713) 767-3500.

(29) COMP : United Structures of Arne' a, Incorporated; DOC T NUMBER: 2010-1598-AIR-E; IDENTIFIER:

RNlO0219708; OCATlON: Houston, Harris ount)·; TYPE

OF FACILITY: tal coating: RULE VIOLA : FOP Number

0-01107, GTC STC Number 7, 30 ~C §§122.143(4),

122.145(2)(A) and ( , and 122.146(1), and T C, §382.085(b), by

failing to submit an ual compliance certi cation and deviation

report within 30 days a r the end ofthe repo ing period and include

all instances of deviatio ; FOP Number 0 1107, STC Number 4,

NSR Pennit Number 185 7, SC Numbers C, 9F, and 9H, 30 TAC

§.ll6.115(c) and §122.143( , and THSC §382.085(b), by failing to

produce monthly reports th demonstr e the emissions from each

Emission Point Number. the c tings'V. C content, and the coatings'

hazardous air pollutant content; OP mber 0-01107, STC Number

3.A.(iv)l, 30 TAC §122.143(4), d SC, §382.085(b), by failing to

conduct quarterly opacity readin . 30 TAC §122.142(b)(2)(A) and

THSC, §382.085(b), by failing to . elude the applicability of 40 CPR

Part 63, Subpart MMMM in FO umber 0-01107; FOP Number

0-01107, STC Number 4, NS e 't Number 18557, SC Number

3.B., 40 CPR §63.391O(b) an (c),3 TAC §§113.960, 116.115(c),

and 122.143(4), and THSC, ,382.085 ), by failing to submit an

initial notification and initi compliance eport for 40 CPR Part 63,

Subpart MMMM; and FOR umber 0-01 07, STC Number 4, NSR

Permit Number 18557, S Number 3.B., 0 CPR §63.3920(a). 30

TAC §§l 13.960, 116.115 ), and 122.143(4), d THSC, §382.085(b),

by failing to submit mi-annual complian reports for 40 CFR

Part 63, Subpart ; PENALTY: $66,0 ; ENFORCEMENT

COORDINATOR: ecca Johnson.. (361) 82 3420; REGIONAL

OFFICE: 5425 Pol Avenue, Suite H, Houston, exas 77023-1486,

(713) 767-3500.

(30) COMP ast Company,

L.P.; DOC NUMBER: 20 I0-1476-AIR-E; ENTIFIER:

RNI0593315 LOCATION: Krum, Denton Count)· TYPE OF

FACILITY: rage tanks related to oil and gas produ ion; RULE

VIOLATE. 30 TAC §1l6.110(a) and THSC, §382. 18(a) and

§382.085( , by failing to obtain permit authorization; NALTY:

$9,000: ORCEMENT COORDINATOR: HeatherPodli y, (512)

239-260 ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth,

Texas 118-6951, (817) 588-5800.

TRD· 01100732

Kat een C. Decker

Di etor, Litigation Division

1i xas Commission on Environmental Quality

iled: February 22, 2011

very 60 days to ensure that the rectifier and other system componentp

operating properly: 30 TAC §334.50(b)(I)(A) and the Co ,

§2 .3475(c)(I), by failing to monitor the USTs for releases: 30 C

§33 .50(b)(2)(A)(i)(1ll) and the Code, §26.3475(a), by faili to

test e line leak detecto rs at least once per year for perfo ance

and 0 rational reliability: 30 TAC §334.50(b)(2)(B) and thc ode,

§26.34 5(b), by failing to provide proper release detection or the

suction iping associated with the USTs; 30 TAC §334.50(d) )(B)(ii)

and the ode, §26.3475(c)(I), by failing to provide releas detection

for the U T system by failing to conduct reconciliation inventory

control at ast once each month, sufficiently accurat to detect a

release as s II as the sum of 1.0% ofthe total substance ow-through

for the man plus 130 gallons: and 30 TAC §334.50( )(1 )(B)(iii)(f)

and the Code, §26.3475(c)(I), by failing to record iny, ntory volume

measurement f4 the regulated substance inputs, with awals, and the

amount still re . ing in the tank each operating ay; PENALTY:

$4,996; ENFOR EMENT COORDINATOR: EI a Maske, (512)

239-0789; REG! AL OFFICE: 2309 Gravel rive, Fort Worth,

Texas 76118-695], 817) 588-5800.

(24) COMPANY: MBLEWOOD UTILI & WATER SUPPLY CORPORATIO ; DOCKET NUMBE 2010-1727-UTL-E:

IDENTIFIER: RNI02 79370; LOCATION: arris County: TYPE

OF FACILITY: PWS; ULE VIOLATED: 30 TAC §290.39(0)(l),

§291.162(a) and G) an the Code, §13. 95(b)(2), by failing to

adopt and submit to the xecutive direc r for approval an emergency preparedness plan t at demonstr es the facility's ability to

provide emergency operatio s; PENAL : M20; ENFORCEMENT

COORDINATOR: Katy Sch ann, 12) 239-2602; REGIONAL

OFFICE: 5425 Polk Avenue, uite Houston, Texas 77023-1486,

(713) 767·3500.

(25) COMPANY: Steubing F , Limited; DOCKET NUMBER:

2010-1 761-EAQ·E; IDENTIFIE : RN I05929160; LOCATION:

San Antonio, Bexar County; E OF FACILITY: construction

site; RULE VIOLATED: 30 T , 13.4(a)(I), by failing to obtain

approval of a water pollution tern t plan prior to beginning a regulated activity over the Edwar Aqui r Recharge Zone; PENALTY:

$750; ENFORCEMENT RDIN TOR: Jordan Jones, (512)

239-2569; REGIONAL OF ICE: 1425 Judson Road, San Antonio,

Texas 78233-4480, (210) 4 0-3096.

(26) COMPANY: Sunbe Fresh Water S ply District; DOCKET

NUMBER: 2010-2046- WD-E; IDENTI R: RNI02075413; LOCATION: Harris Coun ; TYPE OF FACILI : wastewater treatment

plant; RULE VIOLA: D: the Code, §26.121(a 30 TAC §305.125(1),

and TPDES Permit umber WQ001179100I, Effluent Limitations

and Monitoring Re irements Number I, by fi ing to comply with

pennitted effluent itations for NH;N, and flo PENALTY: $970;

ENFORCEMEN COORDINATOR: Thomas J ehB, P.G., (512)

239-2576; REG NAL OFFICE: 5425 Polk Avenu , Suite H, Houston. Texas 770 -1486, (713) 767·3500.

(27) COMP

DOCKET NUMBER: 2010-1833-UTL-E; ENTIFIER:

RNI02690 4; LOCATION: Huffman, Harris Count) TYPE OF

FACILITY. PWS; RULE VIOLATED: 30 TAC §2 0.39(0)(1),

§291.162 ) and (j) and the Code, §13.1395(b)(2). by fair to adopt

and sub it to the executive director for approval an e ergency

prepare. ess plan that demonstrates the facility's ability to rovide

emerg cy operations; PENALTY: $436; ENFORC NT

COO INATOR: Amanda Henry, (713) 767-3672; REGI NAL

OFF: CE: 5425 Polk Avenue, Suite H, Houston.. Texas 77023- 486.

(71 ) 767-3500.

( ) COMPANY: The Dow Chemical Company: DOCKET NU -

ER: 2010-1781-AIR-E; IDENTIFIER: RNlOO225945; LOCATIO

36 TexReg 1590 March 4, 2011 Texas Register
d order was entered regarding Oscar Palacios dba Tre PalaPit, Docket No. 2010-0013-MSW-E on February 14, OIl

g $7,500 in administrative penalties.

Inti ation concerning any aspect of this order may be obtained

co !acting Stephanie 1. Frazee, StaffAttorney at (512) 239-3400, Tex

mmission on Environmental Quality. P.O. Box 13087, Austin, Tex

711-3087.

Information concerning any

contacting Anna M. Tread

Texas Commission on E

Austin, Texas 78711-3087

An agreed order was tered regarding

TOOL, INC., Docket N . 2009·2004-MLMc

assessing S13,490 in inistrative penalties.

Information conce . g any aspect of this order

contacting Laurenc' Fasoyiro, Staff Attorney

Texas Commissio on Environmental Quality,

Austin, Texas 787. 1·3087.

An agreed order as entered regarding Cit)' of Dallas

Docket No.2 -2053-WQ-E on February 14,2011

in administrat' e penalties.

Information ncerning any aspect of this order may be

contacting y L. Mitchell, StaffAttorney at(512) 239-3 00, Texas

Commissi n on Environmental Quality, P.O. Box 13087, Aus' Texas

78711-3 7.

n agreed order was entered regarding BASF Catalysts LLC, Dock

. 2009-1271-AlR-E on February 14. 20ll assessing $4,365 in'

mi istrative penalties with $873 deferred.

Info ation concerning any aspect of this order may be ob ned

by c tacting Nadia Hameed,. Enforcement Coordinator at 713)

767-3 9. Texas Commission on Environmental Quality, P.. Box

13087, ustin, Texas 78711-3087.

An agree order was entered regarding City ofOakwood. D cket No.

2009-130 MWD-E on February 14,2011 assessing $5,37 in administrative pe hies.

Information neerning any aspect of this order may b obtained by

contacting M hall Coover, Staff Attorney at (512) 2 -0620, Texas

Commission on nvironmental Quality, P.O. Box 1308 , Austin, Texas

78711-3087.

An agreed order entered regarding David L. S effield dba Texas

Landing Utilities, ocket No. 2009-1556-PWS on February 14,

2011 assessing $273' administrative penalties tb $54 deferred.

Information concernin an)' aspect of this ord may be obtained by

contacting Andrea Lin n-Mgbeoduru, Enfo ement ·Coordinator at

(512) 239-1482, Texas ommission On Env' omental Quality, P.O.

Box 13087, AuStin, Texa 787ll-3087.

. An agreed order was ente regarding FI Community Water Supply

Corporation, Docket No. 09-1652-P S-E on February 14, 2011

assessing $1,510 in admini tive pen es.

Information concerning any ct of is order may be obtained by

contacting TammyL.Mitehell,S iT omeyat(512)239-3400, Texas

Commission on Environmental Q r , P.O. Box 13087, Austin, Texas

78711-3087.

•

• • •

the repeal of§ 116.121 in the February 25. 201 L issue ofthe Texas Register (36 TexReg 1305).

In the Same issue, TCEQ adopted separate rulemaking actions for 30

TAC §116.12 and §1l6.150, which appear on page 1324.

Due to errors in the rule text submitted by TCEQ, the phrase ". or are

being authorized" was omitted from §116.12(3)(E) on both page 1313

and page 1331.

The corrected subparagraph reads as follows:

"(E) The actual average emissions rate shall include fugitive emissions

to the extent quantifiable. Until March I, 2016, emissions previously

demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter 101 ofthis title (relating to General Air Quality Rules)

shall be included to the extent that they have been authorized,. or are

being authorized."

TRD·201100758

"Where:

"n = total number fVOC species in process stre

"ESL. = the efli ts screening level in J.lglm3 for the c

evaluated (pu tShed in the most recent edition ofthe

"t:, = the w . ht fraction ofthe appropriate VOC species

all other C in process stream."

Th Texas Commission on Environmental Quality (TCEQ) adopte e

repe of30 TAC §106.352 and new §106.352 in the February 18, OIl,

issue the Texas Register (36 TexR.eg 943).

TAC §106.352(m) was published in the on-line (lition of

the Texas egister, but was omitted from the print Texas gister because ofth ength ofthe tables.

On page 340 e on-line graphic, Table 9, first colum , the tenth row

should read:

"Instrument monit . g is notrequired when the a

sure or vapor press is less than 0.044 psia at

process operating te rature. "

INADDITION March 4, 2011 36 Tex.Reg 1591