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

Protecting Texas by 

### Reducing andPreventing Pollution 

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## 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 ProtectionAgency

- 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. Ofthese, 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 As stated above, § 116.121 was repealed and readopted as new § 116.127.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) ofthe Federal Clean AirActand thus are not appropriatefor inclusion in the SIP. These SIP revisions address issues identifiedby EPAin its disapproval notice published in the 

## FederalRegisteron 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 EPAconsider, as part ofits review ofthis 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 partofthis 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 lookforward 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 ofBudget, 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 ofdocuments 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 ofAir 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 orModification; 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 meetthe 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 ofSignificant 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 ofthis 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, contactBlake Stewart at (512) 239- 6931.

# PUBLIC NOTIFICATION AND PROPOSAL

### PUBLIC NOTIFICATION

Notification to the public ofthe proposed revisions was conducted 

## by the following procedures:

I. Publication ofthe notice ofpublic hearing in the following newspapers on the dates listed: Austin American-Statesman
Fort Worth Star-Telegram Houston Chronicle 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 ofpublic hearing to the following officials and agencies:

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

### Fort Worth Public Health Department Galveston County Health District
Houston Department ofHealth and Human Services Harris County Pollution Control Department North Central Texas Council ofGovernments Houston-Galveston Area Council South East Texas Regional Planning Commission
Texas Department ofTransportation
Texas Transportation Institute Arkansas Department ofPollution Control and Ecology Louisiana Department ofEnvironmental Quality
New Mexico Air Quality Bureau Oklahoma Department ofEnvironmental Quality
U. S. Environmental Protection Agency

## EXAMPLE OF NEWSPAPER CLASSIFIED AD 

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http://www.iegaInotice.orgIpVstartelegramlShowNotiee.aspx 8/1312010COORDINATOR: 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 ofa 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 ofAir Pollution 

### by Permits for New Construction or Modification; and corresponding revisions to the 

### state implementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.0\7; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs. The revisions

### to 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 no

### tice. Specifically, those concern definitions relatedto andotherchanges 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 ofregistration. Open discussion will not be pennitted during the hearing; however, commission staffmembers 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, 20IO. Copies ofthe proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose adopt.html. For further information, please contact Blake Stew8rt, Air Permits Division, (512) 239-6931. TRD·2010D4713 Notice ofComment Period and Announcement ofPublic Meeting on Proposed Air Quality Standard Permit for Pollution Control Projects The Texas Commission on Environmental Quality (TCEQ) is providing an opportunity for public commentand 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 projectsavailable under 30 TAC §116.617, StatePollutionControl Project StandardPermit. Owners oroperators 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 ormodified 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 ofany 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 ofa 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 oforal 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 stalfwill 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 

## August27,2010 Texas Register(c) Except as noted in subsection**[~]** ofthis section reR garding NOx' the de minimis threshold test (netting) is required for all modifications to existing major sources ofVOC orNOx' unless at least one ofthe following conditions are met: (l) the proposed emissions increases associated with a project, withoutregard to decreases, is less 

### than five tons peryear (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 ofthe 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 signif R icant level stated in Table] located in the definition of major modification in §1l6.12 ofthis title and when coupled with project actual emissions decreases for the same pollutant, summed as the project net, are less 

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### 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 ofa physical change or change in method ofoperation 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 andfederal emission limitations and standards. (3) At the time the new or modified facility or facilities commence operation, the emissions increases from the new or mod

## 35 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 ofmajor 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 ofan 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 ofat least 

### 1.3 to I. (B) Major stationary sources with a PTE ofgreater

### than or equal to 100 tpy ofan applicable nonattainment pollutant can substitute BACT forLAER, 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 outweighthe environmental and social costs ofthat location.**[~]** For SOurces located in the E1 

### Paso ozone nonattainment areaas defined in 40 Code ofFederal Regulations, PIIrt 81 

### [fWH efthis 

### fl:lIe (fefatiftg t& 

### 9eftflitiefts)]. the requirements ofthis section do not apply to NOx emissions. This agency herebycertifies thattheproposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office ofthe Secretaryof State on August 13, 2010. TRD-201004711 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality EaMiest possible date ofadoption: 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 116.617to 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 Register48467). 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 ofthe 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, NonaltainmentandPrevention ofSignificantDeterioration 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 specifythat 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 majorstationary sourceto makethis requirement more consistentwith 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 AirAct (TCAA), the commission proposes to add 

### the language "oremissions 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 thatthe current regUlation lacks a provision that limits applicability of a PAL to an existing major stationary source. §116.182, Plant-wide Applicability Limit PennitApplication 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 August27,2010 35 TexReg 7699facility 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 majorsources 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 ofthe monitoring system to meet the requirements of this section is a violation ofthe 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 andAlterations In its proposed disapproval notice, the EPA requested that the state include provisions relating to the reopening ofa PAL by the 

### executive director. The commission is proposing to include a statement that acceptance of a PAL is agreement by the permit holderto 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 ofthe PAL to avoid national ambient air quality standards (NMOS) or PSD increment violation; or reduction ofthe PAL to avoid an adverse impact on a federal class I area. Additionally, the commission



## 35 TexReg 7700 August27,2010 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 StandardPermit The commission proposes to amend §116.617(a)(4) to prOVide that the existing requirements ofthat 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 forthe agency or other units ofstate 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 thatstate rules forthe SIP NSR program are at ieast as stringent as federal rules, and EPA approval ofthe 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 IMPACTANALYSIS DETERMINATION The commission reviewed the proposed rulemaking in light ofthe regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined thatthe 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 requirementto 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, asectorofthe 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 forfinal registrations underthis specific standard permtt. This is intended to facilitate asmooth transition between this section and the proposed new**non~rule** air Quality 

### standard permtt that is being concurrently proposed 

### by the com

### mission. In the September23, 2009, notice, EPA also proposed totake 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 ofthe economy, productivity, competition, jobs, the environment, orthe public hearth and safety ofthe state or a sector ofthe 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 meetany ofthe 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 ofa 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 ofthe 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 requirementsas specified by42 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 of42 USC, §741 0, and must develop programs to assure thattheirSIPs 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 necessaryto 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 August27,2010 

## 35 TexReg 7701previous 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 intentofSB 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 ofstate 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 pro

### visions 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 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. Ifeach rule proposed by the commission to meet a federal requirement was considered to be a majorenvironmental rule that exceeds federal law, then each ofthose 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 thatthe intent 

### ofSB 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 

### ofthe FCAA, and in fact creates no additional impacts since the proposed rules do notexceed the reqUirement to attain and maintain the NAAQS. Forthese 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 atthe time the legislature amends the laws Without making substantial change in the statute, the legislature is deemed 

### to have accepted the agency's interpretation." (CentralPower

### & LightCo. v. Sherp, 919 S.W2d 485, 489 (Tex. App. Austin 1995), writ denied with percuriem opinion respecting enotherissue, 960 S.W2d 617 (Tex. 1997); Bullock v. Merethon Oil Co., 798 S.W2d 353, 357 (Tex. App.



## 35 TexReg 7702 August27,2010 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/. WaterAuth. 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 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 ofthis 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 UnderTexas 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; ora 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 

### ofat least 25% in 

### the market value 

### ofthe 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 ofthe property determined as if the governmental action is in effect. The commission completed a takings impactanalysis forthe proposed rulemaking action under the Texas Government Code, §2007.043. The primary purpose of this proposed rulemakingaction, 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 mannerthat would require compensation to private real property owners underthe United States Conslilution orthe Texas Constitution. The proposal also will not affect private real property in a mannerthat 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 SUbjectto 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 SUbjectto the CMP, 

### commission rules governing air pollutantemissions 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 en

### vironment 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 feweradverse impactsto 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 atthe address listed under the SUBMITTAL OF COMMENTS section of this preamble. EFFECT ON SITES SUBJECTTO 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 ofthe 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 September20, 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 orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be pennitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior 

### to the hearing. 

### Persons who have special communication or other accommodation needs who are 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. 

## SUBCHAPTERA. 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 ofthe 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 propercontrol 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, 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 August27,2010 35 TexReg 7703concerning 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 andPrevention of Significant Deterioration Review Definitions. Unless specifically defined in the Texas Clean Air Act 

### (reAA) or in the rules ofthe commission, the terms used by the commission have the meanings commonly ascribed to them in the field ofair pollution control. 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 SignificantDeterioration 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 ofnonnal 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 unitare equivalent to the actual emissions, e.g., whenthe allowable limit is reflective ofactual 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 ofa stationary source, calculated using the maximwn rated capacity ofthe source (unless the source is subjectto federally enforceable limits that restrict the operating rate. or hours ofoperation, 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 peryear, ofa federally regulated new source review pollutant. (A) For any existing electric utility steam generating unit, baseline actual emissions means the average rate. in tons peryear, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owneroroperatorwithin the five-year period immediately preceding when the owner or operator begins actual construction ofthe project. The executive director shall allow the use ofa different time period upon a determination that it is more representative ofnormal 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 oroperator 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 under40 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 increasethatwill resultfrom the initial construction and operation ofsuch unit shallequal 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 eithermaximum hourly heat inputand maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in tenns ofweight or volume, the minimum fuel quality basedon Britishthennal units content shall be usedfor 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 ofmaterial input, or maximum rate ofproduct output. Combustion process units will typically use maximum rate of fuel input For sources having multiple endproducts andrawmaterials, the owneroroperatorshall considerthe primary productorprimary raw material when selecting a basic design parameter. The owneroropera p tor may propose an alternative basic design parameter for 

### the source's process units to the executive director ifthe owneroroperatorbelieves the basic design parameter as defined in this paragraph is not approa priate for a specific industry or type ofprocess unit. Ifthe executive director approves ofthe use ofan 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) Ifdesign 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 activ

### ity. (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 ofbuilding supports and foundations, laying ofunderground pipework, and construction ofpennanent storage structures. With respect to a change 

### in method ofoperation" this tenn refers to those on·site activities other than preparatory activities that mark the initiation ofthe change. (6) Building, structure, facility, or installation-All ofthe 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 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 "majorgroup" (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 ofcoal in the generation ofelectricity, or process steam that 

### was not in widespread use as ofNovember 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 of52.5 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 ofa major stationmy source ormajormodification, means that the owneroroperator has all necessary preconstruction approvals or pennits and either has: (A) begun, or caused to begin, a continuous program ofactual on·site construction ofthe source, to be completed within a reasonable time; or (B) enteredinto binding agreements orcontractualoblip gations, which cannotbe canceledor modified without substantial loss to the owneroroperator, 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 ofoperation (including fabrication, erection, installation, demolition, or modification ofan emissions unit) that would result in a change in actual emissions. (11) Contemporaneous period--For major sources the period between: (A) the date thatthe increase from the particularchange occurs; and (B) 60 months prior to the date that construction on the particular change commences. (12) De minimis threshold test (netting)-A method ofdetennining ifa 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 steamgenerating unit-Any steamelec· tric generating unit that is constructed for the purpose of supplying mOre than one·third ofits 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 steamto 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 pollutantfor which a national ambient 

### airquality standard has been promulgated and any constituents or precursors for such pollutants identified by the United States Environmental 

### Pro· tection Agency; (B) 

### any pollutantthat is subjectto any standardpromulgated under Federal Clean Air Act (FCAA), §III; (C) any Class 1or II substance subjectto a standardpromulgated under or established by FCAA, Title VI; or (0) any pollutant thatotherwise 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 regulatednew sourcereviewpollutantsunlessthe listedhazardous airpollutant is also regulated as aconstituentorprecursorofa 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 ofemissions ofa 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 ofany approved state implementation plan for a specific class or category offacility, unless the owneror operatorofthe 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 peryear 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 ofthis section for nonattainment areas. (17) Major stationary source--Any stationary source that emits, or has the potential to emit, a threshold quantity ofemissions or more ofany 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 ofsignificant deterioration pollutants are identified in 40 CodeofFederal Regulations (CFR) §51.166(b)(I). A sourcethat emits, orhas the potential to emitafederally regulatednew source reviewpollutant 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 ofthis definition whether it is a major stationary source, unless the souree belongs to one ofthe categories ofstationary sources listed in 40 CFR §51.165(a)(I)(iv)(C). (18) Major modifieation--As follows. (A) Any physical ehange in, orchange inthe method of operation ofa 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 deteriorationpollutants 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 ofoperation shall not include: {lj routine maintenance, repair, and replacement; m) use ofan alternative fuel or raw material hy reason ofan orderunderthe 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 ofan alternative fuel by reason ofan order or rule of42 United States Code, §7425;



## 35 TexReg 7706 AuguYl27,2010 Texas Register (iv) use ofan alternative fuel at a steam generating unit to the extent thatthe fuel is generated from municipal solid waste; (v) use of an alternative fuel or raw material by a stationary sourcethatthe source was capable ofaccommodating before December21, 1976 (unless such change would be prohibitedunder 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 ofapollutant at a site that occurs under an existing plant-wide applicability limit; (Ix) the installation, operation, cessation, orremoval ofa 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 oroperation ofapermanentcleancoal 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 ofa 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) itoccurs during the contemporaneous period; (ii) the executive directorhas notrelied 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 ofprevention 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 ofa physical change in, or change in the method ofoperation ofa stationary source only to the extentthatthe new level ofemissions 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 ofthe following conditions are met: (i) the baseline actual emission rate exceeds the new level ofemissions: (ii) it is federally enforceable at and after the timc that 

### actual constnJction on the particular change begins; (iii) the executive directorhas notrelied on it inissuing 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 oftotal actual reductions ofemissions to total emissions increases ofsuch pollutants. The minimum offset ratios are included in Table I ofthis section under the definition ofmajormodification. ]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 ofthis 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 ofa previous nonartainment or prevention ofsignificant deterioration permit. (22) Plant·wide applicability limit-An emission limitation cxpressed, in tons peryear, for a pollutant at a major stationary source, that is enforceable and established in a plant-wide applicability limit pennitunder 

### §I I6.186 ofthis titlc (relating to General and SpecialConditions). (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 inan existingflexible permitisthe date thatthe flexiblc pennit was issued. (24) Plant-wide applicability limit major modification-Any physical change in, or change in the method ofoperation 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. (25) Plant·wide applicability limit pennit-The new soW'Ce review permit that establishes the plant-wide applicability limit. (26) Plant-wide appliCability limitpollutant••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 emita pollutantunder 

### 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 ofoperation or on thc type or amount ofmaterial combusted, stored, or processed, may be treated as part ofits design only ifthe limitation or the effect it would have on emissions is federally enforceable. Secondary emissions, as defined in 40 Code ofFederal 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 ofnet 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 ofthe ten ycars following that date, ifthe 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 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 unre· lated to the particular project, including any increased utilization due to product demand growth may be excluded from the projectemission 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 ofthe 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 of40 Code ofFederal 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 August27,2010 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 underthe TWC; TWC, §5.105, concerning General Policy, which authorizes the commission by ruie to newfacility. No creditableemissionreductions shall 

### be generated from shutting down the existing facility that is replaced. A replacement fa. cility is considered an existing facility for the purpose ofdetennining federal new source review applicability. (32) Secondary emissions··Emissions that would occur as a result ofthe construction or operation ofa 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 of

### the construction oroperation ofthe major stationary source or major mod. ification. Secondary emissions do not include any emissionsthatcome directly from amobile source such as emissions from the tail pipe ofa motor vehicle, from a train, or from a vessel. (33) Significantfacility--A facility thatemitsorhasthepotential to emit a plant·wide applicability limit (PAL) pollutant in an amount that is equal to or greater

### than the significant level for thatPAL pollutant. (34) Small facility-.A facility thatemits or has the potential to emitthe 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 installationthatemitsormay emitany airpollutantsubjecttoregulation 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 aperiod 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 thatthe 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 ofadoption: 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 meth

### ods 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 autho

### rizes the commission to 

### issue preconstruction permits. The amendment and new section are also proposed under Federal Clean AirAct (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. 

### §

### II6. II5. General andSpecial Conditions. (a) General and spccial conditions. Pennits, special pennits, standard pennits, and specialexemptions may contain general and special conditions. (b) General conditions. Holders ofpennits, special pennits, standard pennits, and special exemptions shall comply with the following:



## 35 TexReg 7708 August27,2010 Texas Register(l) the general conditions contained in the permit document ifissued or amended prior to August 16, 1994; or (2) the following general conditions ifthe pennitoramendment is issued or amended on or after August 16, 1994, regardless of whether they are specifically stated within the permit document. (A) Report ofeonstrnction progress. The permit holder shall report start ofconstruction, 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 ofoperations 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 ofoperations for each unit ofphased construction, which may involve a series ofunits commencing operations at different times. (iii) Priorto operation ofthe facilities authorized by the permit. the permit holder shall identify to the Office ofPermirting[; Remediaasft,l and Registration the source or sources ofallowances 

### 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 andEnforcement prior to sampling to obtain the proper data forms and procedures. (ii) All sampling andtesting procedures must 

### be ap. proved by the executive director and coordinatedwith

### 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 ofmethods. The permit holder must demonstrate or otherwise justify the equivalency ofemission control methods, sampling or other emission testing methods, and monitoring methods proJX>sed as alternatives to methods indicated 

### inthe conditions ofthe pennit. Alternative methods shall be applied for 

### in writing and mustbe 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 withthe permit, including productionrecords 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 requestofpersonnel 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 atimely manner; (iv) comply with any additional recordkeeping requirements specified 

### in special conditions attached to thc permit; (v) retaininformation in thefile for atleasttwo 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 emissionrates. lbe total emissions of air contaminants from any ofthe sources ofemissions must not exceed the values stated on the table attached to the pennit cntitled "Emission Sources--MaximumAllowable Emission Rates." Emissions that exceed the maximum allowable emission rates are not authorized and are a violation ofthe 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 withthe Texas Clean AirAct 

### [+GAA-] 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 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 orcon· centration ofair 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 directormay 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 underChapter 106 ofthis title**(re~** latiog to Permits by Rule). (B) Such written approval may 

### be required ifthe executive director specifically finds that an increase ofaparticularpollutant could either: (i) result 

### in a significant impact on 

### the air environ· ment; or



## PROPOSED RULES August27,2010 35 

## TexReg 7709

## ill the calculated actual annual emissions. The owner or operator ofthe facility shall make the information requiredto be documented andmaintained 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 thatthe proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office olthe Secretaryof 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 of thefollowing sectionproposed for repeal willnot

### bepublished. The section may be examinedin the offices of the 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 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 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(relatingto 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- eftftis. tiHe] (relating to Prevention of Significant Deterioration Review). €II6. 127. Actual to ProjectedActual 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. andthis 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 ofthe facilities ofwhich emissions ofa 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 explanationforwhy such amountwas excluded. and any netting calculations, ifapplicable. 

## ill If projected actual emissions are used to detennine the project emission increase at a facility, the owner or operator shall monitor the emissions ofany regulated new source review pollutant that could increase as a resultof the project atthatfacility and calculate and maintain a record ofthe annual emissions from that facility. in tons per year. on a calendar year basis for: 

## ill a period offive years following resumption ofregular operations after the change; or 

## ill a period often years following resumption ofregular operations after the change ifthe project increases the design capacity orpotential to emit ofthatregulatednew source review pollutantat 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 ofeach calendar year ofwhich records must be maintained documenting the unit's annual emissions during the calendaryear that preceded submission ofthe report. 

### @ Ifthe facility isnot 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 exceedthe preconstruction projection for any facility. The report shall be submitted to the executive directorwithin 60 days afterthe end ofeach calendaryear. The report shall contain: 

## ill the name, address, and telephone number ofthe major stationary source; and



## 35 TexReg 7710 August27,2010 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 ofthe 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 autho

### rizes 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 ProjectedActualandEmissions Exclusion Test 

### for Emissions increases. This agency hereby certifies thatthe 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 ofthe 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 ofa 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 specifythe 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 et

### seq, §JJ6. J 

### 80. 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; itmay notbe issuedfor anew major stationary source as defined in 40 Code ofFederal Regulations §51.165(iv)(A). (b) The new owner ofa major stationary source shall comply with §1l6,1l0(e) ofthis title (relating to Applicability), provided 

### that



## PROPOSED RULES August27,2010 35 

## TexReg 7711all 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 ofa facility oremissions unit 

### h 6ffaei.J1ties], but priorto the transfer ofa pcnnit requiring a pennit alteration, the original PAL pennitholderremains responsible for ensuring compliance with the existing PAL pennit and all rules [BBtlfegulatisas] ofthe commission. (c) The owner ofthe 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. 

### §116.1 82. Plant-wideApplicabilityLimitPermitApplication. 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 ofall 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 owneror operator ofthe source shall indicate which, ifany, federal or state applicable requirements, emission limitations, or work practices apply to each unit; (2) calculations ofthe 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. GeneralandSpecial Condilions. (a) The plant-wide applicability limit (pAL) will impose an annual emission limitation intons peryear, that isenforceablefor all facilities oremissions 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 PALeffective 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 ofonly one pollutant The PAL must include all emissions, including fugitive emissions, to the extent quantifiable, from all facilities oremissions units at a major stationary source included inthe 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 ofthe pennit. 

### (4) Recordkecping and reporting. (A) A copy ofthe 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 owneroroperator shall retain a copy ofthe PAL permit application and any applications for revisions to the PAL, each annual certificationofcompliance under § 122.146ofthis title (relating to Compliance Certification Terms and Conditions), and the datarelied 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 ofeach reporting period that contains: (i) the identification ofowner 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 ofany 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 ofthis title (relating to Reporting Terms and Conditions); (vi) a notification ofa shutdown ofany monitoring system, whetherthe shutdown was permanentortemporary, 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 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. (5) Maintenance ofemission 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 holderwill comply with all rules and orders ofthe commission issued in conformity with the Texas Clean Air Act and the conditions precedentto the granting ofthe permit. Ifmore than one state orfederal rule or PAL permit condition is applicable, the most stringent limit or condition will govern andbe the standardby which compliance mustbe demonstrated. Acceptance includes consentto the entrance ofconunission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration ofair contaminants, including compliance with the PAL permit. (7) Effective period. A PAL is effective for ten years. (8) Absence ofmonitoring data. A source owner oroperator shall record and report maximum potential emissions without considering enforceable emission limitations oroperationalrestrictions for a facility during any period oftime thatthere 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 ofthe 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 ofthis title (relating to Renewal ofa Plant-wide Applicability Limit Pennit), the PAL shall notexpire 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 ofthis 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 ofthe 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. [Adtlmsflally, fhe iBfeffilllaofl gefterB:tetl by 

### -e mttSl meet 

### miBimWR.Jeg&l i'eqtiifemeftts

### fer. admissibility-HtajuEliet&lpFeeeediflgte eBfefeetlteFAh jlOffftit.] 

## ill**[~]** The PAL monitoring system must employ one or more ofthe 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 ofvalidating 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 pollutantthat is contained in, orcreatedby, any rawmaterial 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 oratthe facility publishes a range ofpollutantcontentfrom such material, 

### the owner oroperator 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 owneroroperator 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 orPEMS must sample, analyze, and record data at least every 15 minutes orat 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, ifappropriate, to account for the degree ofuncertainty or limitations in the factof5' development. (ii) The facility must operate within the designated range ofuse for the emission factor, ifapplicable. (iii) Iftechnically practicable, the owneroroperator ofa significant facility that relies on an emission factor to calculate PAL pollutant emissions shall conductvalidation testing to determine a



## PROPOSED RULES August 27, 

## 2010 35 

## TexReg 7713site-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) ofthis subsection and be approved by the executive director. 

## ffi**[~]** Where an owner or operator ofa 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. 

### § IJ 6. J 88. Plant-wide Applicability Limil. 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 thatdid not exist inthe baseline period. Baseline actual emissions from facilities that were permanently shut down afterthe 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) ofany applicable federal or state regulatory requirement [,eq.iremeRt(.)]. §JJ6.190. FederalNonattainment andPrevention of Significant 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 underthis subChapter, if the increase does not exceed the PAL. (b) At no time are emissions reductions ofaPALpollutantthat occur during the PAL effective period creditable as decreases for purposes ofoffsets, 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 andAlterations. (a) Anyincrease in aplant-wide applicability limit(PAL) must be made through amendment Amendment applications must also include the information identified in 

### § 116.182 ofthis 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 owneroroperator 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 ofbest available control technology (BACT) equivalent controls, plus the sum ofthe allowable emissions ofthe new or modified facilities exceeds the PAL. The level ofcontrol that would result from BACT equivalent controls on each significant or major facility shall be determined by conducting a new BACT analysis atthe 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 BACTorLAER with which thatemissions unitmustcurrently comply. (2) The owneroroperator shall obtain afederal new source review permit for all facilities eontributing to the increase in emissions so as to causethe major stationary source's emissions to equal orexceed 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 ofthe 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 ofthe 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 increasedmust be completedthroughpennit alteration. Unless allowed in the PAL pennit special conditions, the pennit holder shall submit an alteration request prior to start ofconstruction for physical modifications to facilities or installation ofnew facilities under the PAL. Approval must be received from the executive director prior to start of operation ofthe facilities ifthe cmissions from the new or modified facilities may exeeed 100 tons per year. 

## f£l Acceptance ofa 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 para

### graphs (1) or (2) ofthis subsection. 

## ill During the PALeffective 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 ofemissions 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 of40 Code ofFederal Regulations (CFR) §51.165(a)(3)(ii) for use as offsets; and 

### !Q revise the PALto reflect an increase inthe PAL provided the owneror operatorcomplies withthe 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 underthe 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 ofSignificant 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 thatthe proposal has been reviewed 

### by legal counsel and found 

### to be within the agency's legal authority to adopt. Filed with the Office ofthe Secretaryof 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 ofthe 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 authorizesthe commission 

### to prepare and develop a general, comprehensive plan for the proper control ofthe 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 ofthe 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 afStandardPermits. (a) Forthe purposes ofthis chaptera standard pennit is either: (1) one thatwas 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** 

### ef00 aBEl Gas Faeilities; mtd Menieipal: SeHe Waste Landfill,)]; or (2) onethatis issued 

### by the commission in accordance

### with § 116.603 ofthis 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 standardpennit adoptedby the comp mission 

### in this subchapter shall 

### be renewed by the applicant under the requirementsof§ 1] 6.604 ofthis title (relating to Duration andRenewal ofRegistrations to use StandardPermits) by thetenth anniversary of the date ofthe original registration. (d) If. standard permit 

### in this subchapteradopted by the commission is repealed andreplaced, with no changes, by a standardpennit 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 convertedregistrationto use astandardpennit 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 standardpermitadopted 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 August27,2010 35 TexReg 7715in the process, persons registered to use the repealed standard permit shall register to use the issued standard permit by the later ofeither 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 ofapplying for or qualifying for other applicable authorizations in this chapteror in Chapter 106 ofthis title (relating to Exemptions from Permitting). §116.617. State Pollution ControlProject StandardPermit. (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 apermit, standardpermit, orpermit by rule. (2) The project may ioclude: (A) the installation or replacement ofemissions control equipment; (8) the implementationorchangeto controlteChniques; or (C) the substitution ofcompounds used in manufacturing processes. (3) This standard permit must not be used to authorize the installation ofemission control equipment or the implementation ofa control technique that: (A) constitutes the complete replacementofan existing production facility or reconstruction ofa 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 potentialto exceeda national ambientairquality 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 afacility orgroup offacilities to compliance with an existing authorization or permit unless authorized by the executive director. (4) Priorto February 17,2011, [GaIy] ocw ormodified pollutioncontrol projects mustmeetthe conditions ofthis standard permit. All previous standard permit registrations under this section that were authorized 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 otherconditions must be metupon the ten-year anniversary and renewal ofthe original registration, or until administratively incorporated into the facilities' permit, ifapplicable. 

### ill Notwithstanding the requirements of6116.604 ofthis title (relating to Duration and Renewal ofRegistrations to Use StandardPermits), on orafterFebruary 17, 2011. no new ormodified registrations will be accepted and no existing registrations will 

### be renewed. (b) General requirements. (I) Any 

### claim underthis standard permitmustcomply with all applicable conditions of: (A) §1I6.604(1) and (2) ofthis title (relating to Duration and Renewal ofRegistrations to Use Standard Permits); (8) §116.60S(d)(I) and (2) ofthis title (relatingto Standard Permit Amendment and Revocation);



## 35 TexReg 7716 

## August27,2010 Texas Register (C) §116.61O ofthis title (relating to Applicability); (D) §1I6.611 of this title (relating toRegistrationtoUse a Standard Permit); (E) §1I6.614 ofthis title (relating to Standard Permit Fees); and (F) §1I6.61S of this title (relating to General Conditions). (2) Constructionor implementationofthe pollution control project must begin within 1S months ofreceiving 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 operationor 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 lostproduction capacity) must occur solely as a result ofthe project as represented in the registration application. Any increases ofproduction 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) Themaintenance, startup, and shutdownemissions may be increased above currently authorized Icvels ifthe increase is necessary to implementthc replacement project and maintenance, startup, and shutdownemissions were authorized for

### the cxisting controlequipment or technique. (3) Equipment installed under this section is subject to all applicable testing and recordkeeping requirements ofthe original control authorization. Altcrnate, equivalent monitoring, orrecords may be proposed by the applicant for review and approval ofthe executive director. (d) Rcgistration requirements. (1) Aregistration mustbe submitted in accordance withthe following. (A) ]f there are no increascs in authorized emissions ofany 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) Ifa 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 directorwithin 30calendardays ofreceiptby 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 aircontaminant, 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 aircontaminant resulting from the pollution control project, a registration alteration must be submitted no later than 30 days prior 

### to the start ofconstruction or implementation ofthe change. The registration must be accompanied by a $450 fee, unless received within 180 days ofthe 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 orregistrationsaffeeted 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 ofparagraphs (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 orother emission records to prove thatthe 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 orcontrol or technique authorized by this standardpermit

### instead ofa permitamendment under §116.110 ofthis title (relating to Applicability) at a previously pennitted or standard permitted facility mustbe 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 ofcontrol 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 Permittingby Rule), except §I06.4(8)(1) ofthis title, and § 106.8 of this title (relating to Recordkeeping). This agency hereby certiliesthatthe proposal has been reviewed by legal counsel and Iound 

### to bewithin the agency's legal author

### ity 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 ofadoption: September 26, 2010 Forfurther 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 lorthe first five-year period the rule is in ellectthere 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 loreach 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. Therewill 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, Chapter454, Occupations Code, which provides the Texas Board 01 Occupational Therapy Exam

## PROPOSED RULES August27,2010 35 

## TexReg 7717

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

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein. 

### Commissioner Marie. 

### R. Vickery, P.G., 

### E:csclltfveDirector 

# TEXAS COMMISSION ONENVIRONMENTAL QUALITY P1"oteeting Te;;r.as by

### Reducing andPreve11tillgPollution 

## NOTICE OFA PUBUC HEARING ONPROPOSED REVISIONS TO 30 TAC CHAPTER 116



## . AND TO TIlESTATEIMPLEMENTATIONPLAN 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 ofthe United 

## States Environmental Protection Agency (EPA) regulations concerning SIPs. The revisions to 

## the SIP would also includethe 

## withdrawal from EPA consideration as revisions to the SIP of§§116.121, 116.400, 116.402, 116.404 and 116.406 as adopted

## bythe commission on January 11, 2006, effective onFebruary 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 PALpermits. The rulemaking would 

## also

. amend the standard permit rule for Ponution Control Projects. The rulemaking would 

## also

includeremoving obsoletereferences andmaking non-substantive administrative changes. The coIllIIlisSion 

## will hold a public hearing on

## this proposalin 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 

## ofLegal 

## Services at (512) 

## 239-0779. Requests shouldbe 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 BlakeStewart, 

## Air Permits Division, (512) 239-6931. Issued

## inAustin, Texas, onAugust 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 ofLegal Services Texas Commission on Environmental Quality

. P.O. Box 13087 Austin, Texas 78711-3087 Re: 

## Comments onproposed Rule ProjectNo. 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 ONTCEQ's NSRREFORM 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 ofa 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, KinderMorgan 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., PasadenaRefining 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 ofa 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 ofa 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 ofclarity 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 ofoperating limits for selected parameters as an hourly average ofthe parameters. That provision requires installation ofa "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 ofthe 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) ofthis 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 of40 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 ifthe 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 ofair contaminants from any ofthe sources ofemissions 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 ofthe existing rule language that immediately precedes it. TIP is concerned that this revision and the SIP-approved provision ofthe general chapter 116 pennitting rules are unrelated to the NSR refonns, do not directly address one ofEPA'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 thatthis change be omitted.

See, e.g., 30 Tex. Admin. Code § 117.10(10). 

# W-2

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 200I, 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, 20II. 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./fIE 121)0 

## OAU.M. iX 152Ol!-2133 

# W-3



# SEP 2 7 

# 2010

Ms. 

# 'PatriciaDuron 

## OfficeofLegal

## Services (Me 

## 205) 

## Texas Commissionon Environmental Quality 

## P.O. Box 

## 13081 Austin, T.'81n-3087
RE: EPA**Cil/t!l11~on** 

# Rule Project Number 20I

## O-D08-1 16-PR 

## DearMs. 

## Duron: 'Ibadkyou fur 

## providiJIg US

## theopportunity to review and com:meaton.the**~RvisiODS** to 

## theprovisions.forNew.Sowce Review (NSR)

# Reforn1 at

# Texas**A~** 

## Code 

## (f

## AC) Title 36,Cbapter

## Iii;, Control ofAir

## PollutionbyPcrrilitli forNC\¥

# Constructit:m or 

## ModifiCllti<Ja 

## 1"btse

# proposedChanges included

# amendmentsto 

## sectionsU6.12, 

## 116.115,1160180,116.182, 116.IlUi.1I6.188, 116.190. 

# HU92, 116.601,

## and1l6,6.1;~section 

## 116.12.7,

# andthe

## repealOfseclion 

## 116.121; andtbe 

## proposed**~~to theT_~Jmpl~l'Jan(SIP).**  

## Texaswill 

## submit**the~~to** 

## section$**U~I2,** 

# U6.11s.JIU80. 116.182, 

# 116.186, 116;188i

# H6.19Q, HUnaDIU16.{iOl;**new~J16.127to** the

# ~ProtectiotlA.Pr(EPAlas~to~.S~."Tbis proposed ruJe!nakjng

## revi$es

# theprovjsiQnsfqr

# 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'evisions to

## the'f~~. 

## We are providingibese

## co~ to 

## assistTcsq**in1be~1opment of~~~.** 

## We look.

# forwardto working with

## the.**TexlrsQmunissi0nOll!&viroslm~** 

## Quality(TCEQ) lIS 

## youmove forward 

## in

# teSjil(md1ng tntbese con"'teni$andfi.wmIlg.the 

## revisionsto the 

## Texas SIP. Ifyou have anyquestious,please call

## Mr;·Stank',y M. Spruiell. 

# ofmy

# slatf8t(214) 665-7212.

. 

## :Sincerely YOlJlli;

# .~.> ··..

# ·~i

# .•• •.•**·.~** 

# ;•...••..•.....•**l~~:~** 

# !homas H. 

## Diggs

. 

# A$8Qciate

# DirectoiifotAir Programll 

# Multimedia**P~and**



# PermittingDivision

2

## Enclosure 

## I. 30 

## 'fAC 116.192(a)(1)aod (4) 

## providethat**for~~** 

## in a 

## PAL 

# sourcethe

## owner

# or operator

# mostestablish the

## PAL

# as sumof' baselineactulI1 

## emission from small 

## facilities, plus the 

## sumofbaselislCl!CtUB1 emissions uQIn 

## Significant andlDl\ior

## facilities 1lllSUD1ing

## applicationofBAcreguiva1ent

. controlt, 

## plusthe

# sum ofthe 

## allowableemissionsofnew 

## andlllOdified**faci1iti~.** 

## Because 1h\sisbased1p)nlIkderal 

## requirement

## at

# i:lOCFR Sl.165(f)(11)(i)(B) and 51.166(w)(U}{j)(b), TCEQ 

## mustclarifythat

## the'1"ACTeqUivalent

## controls" are based

## uponapplication of

## federalBACTas

# ·dcfinetlln the 

## Clean AirAct 

## (eM) and

## Prevention of

## Significant

## Deterioration(l'SD) rules,

## notthe 

## State 

## MinorNSR 

## BACT} 

# The changes 

## indieatedbe10wwill adllres$

## these 

## concerns. (1) As 

## part 

## ofthis application, the

## major stationary source owner or operator

## shall demonstrate 

## that the.wnl

## of

## the baseline 

## actua1 emiasions 

## ofthe small 

## facilities, 

## plns the 

## sum

# ofbasCllne8CtU8l 

## emissions ofthe significant and 

## majorfacilities assuming 

## appliClltion 

## offederal 

## best available 

## control teclmology 

## (BACT) (as 

# iWfi"" 40

## TAC U6.l6O(cXlXA)) equivalentCOII1rol$,

## plusthe sumof1he.allowable 

# emissions of

## thenew or

## modifilld

# facilities exceedsthe

## PAL. 

## The

## levelo! 

## control that

# would result 

# from the

# fedepdBACT eqlliwlent

## controls.**~baIl·** 

## bedetemUned by.

## conducting anew**~BAChllalysis.** 

## the

## time the 

## applicationis 

# sulmritted, UD1essthe**fiIcllitYisC\4mttly~** 

## to comply witha

# fcdentIBACTorlowest 

## achievable

# emissiott,.(LAER) requirement

## thatwas

# estlIbJillhedwithinthe

## ~~!O~·1II such 

## 'case, the 

# assumedcont:rOl1evdforthat**emissionli'!P!t~~~ua1** 

## to the

## .~ 

## offederal 

# BACTOf.J,.AERwhichthat**emissi~wiit_** 

## currently 

## eDmply.

... .....



# .. ,..,. ..... (4)'Jbe

## neWl'Mf.$lIa1lbethe 

## sum oftheallOWllblemUssions 

## for each**~·or** 

# newfllCiJity"plll$ 

## the sumofthe"ine

# aetIJlI1

.**emissioDS~~and** 

## .emissions··unUl;**aftetthe~** of 

## fudem,l 

# BACT**~~V;dentcontrOls** 

## u iden!i(tedin**~O)of** 

## this 

## 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** 

# anincrease 

# in a

## PAL triggen;apptiblbilityofPSD.NN8R, or

## botlj( 3. 30

## TAC**1l6.192(a)(i)JU~be** 

## n:visecHoclearly**req~tbat** 

## a1lfacilitiC$ contribuUng to 

## the**~.in** 

## emiSslO!J!i·so as to 

## cause·t'httmUorsllltionary

1

## Sel!7SFRS642~.1It56429(~ 

# ii 2010lllJld75fRSS978

## (Septembwl~.2010l forfunher infbnnarionOll1hebasisfottbiscom.

__ 

# W-3

## ~'s**emission5tp~QiIlOf** 

## exceedil$PALare subjecttoPSDorNNSR.The changes indicated

## below

# Willaddress**_~.** 

### (2) 

# The**o~eror** 

## opel'llWtSltiill obtain Ii

# fedeJ:al newSDurcereview permit**!JIlder"pr~#fi0** 

# TAC 116, SubchapterB,Dimlw**5lNpQ@ttairynentWeW}al!d~ 6~**  

## Of$ignifu;anf

.... Deterioration**~.** 

## fOr**ld1~oontribllliDg** to 

## increasein emissio!15so**astD~~~~ll()lIfCC'S** 

# t'.l1lis$jcms to

# eqUIIl orexceedil$P**AL,.~ltIlls~fhe~gnitudeoftbe (;ll;~cmsincrealle'**  

## Thesefacilities**shall~.~O!lrequirement&.ting** 

# fm1lt**themajornew~~~** 

## . 4. Texas proposes

## to revise 

## 30 TAC 1

## 16.611

# to ltiscontinuedle

# .P61lution**~ontrDl.** 

### project 

## (PCP) StandardPemUtaUthOrizati0rts.Ilndertbat

## -Oti~er 

## Februaryl?, 

## 20n. Wewpport

## the 

## proposed**discontin1l3nceorthePCPS~** 

## Permit 

## We also ha"ethefOllowing 

## c01ll!l1er1tl:

. 

## A.The

## propoSed.~ PCP StandardPemit

# doesnOtaddiess the

## iss\ies. raisl:dbyEJ>A in 

## 7S 

# Fa56424, at 

## 56447, 

# with**res,J!er:t~B1Ws** 

## disapproval

## oftbe1'CBQsubmitted

# PCPStaJldaM Permit. 

# FurlbemJore, althoughthe 

## ICEe:)**is~ing ~1beuseofthispartieular**  regulatory

## PCP 

## StandllPi!Permitafter**F~** 

## 17,.201 I.

## it 

## stilUs proposing

## toretain**a.pe.tlIlttcic·s~1ianl:ll1lpO!la** 

## PCP StandardPmnit if

## it 

# !died upoD 

## it OD

## or~~~I1.~U;HOwever, 

## we do want 

## to 

## tnyour**attentiO!lt1i~~{Jcp** 

## ;PIir'!!ff;ll'@enot part

## ofthe 

## federally**.~** 

## TexasNSRSJI>:···· ....., c.

# B.Wtlar1QiiC'wJed~**~TCEQ** 

# basproposeda.tuIe Standilrd

# Penriiffor

.PCJI.asdiscussed**~.!Page** 

## 7or**the~preamble.** 

## .

## EPA. 

# is this

## propo$Cl.iPCP~ndard 

## Permit

## andwiU**~!Ie~~** by

# file September

## 21,**201~,~mmerlt** 

# deadUne ina

# sepatlltetiiJ;ll!i.

. .

2

### We reeogni7Ao

## tbIlfT~ did 

### 1IlltideRtify30 'fA<C 

# n

# 6.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~iaIent** 

### with 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\**~~~30** 

### TAC 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: September20, 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 

# L 

# 0'1hr 'J.

# h c.hflr

# -/~r}ru-. i> 

# ulZ f Yes 

# @ v..1" J'('.:J JiI ,( "I

### Yee 

## No

Yes 

## No

Yes 

## No

. 

### Yee 

## No

Yes 

## No

Yes 

## No

Yes 

## No

# . "'.



## . HEARING OFFICERREPORT

I am 

## the hearing officer assigned to 

## conductthe public 

## hearing regarding 30 TAC Chapter 116, New Source Review Reform (Ru1e ProjectNo 2010-008-116-PR). A public hearing 

## was schedu1ed for September20,20108110:00 am in 

## 12100 Park35 Circle. BuildingE, Room 201S, Austin, Texas. At 9:30 am, 

## the room 

## was open and TCEQ staffmembers were availableto 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 transciiptwas 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, ChiefClerk MarkR Vickery, P.G., Executive Director RichardA Hyde PE, Deputy Director 

# "d-..vJ Office ofPermitting and Registration

. Date: 

## January 21, 2011

DocketNo.: Subject: 

## 2010-0625-RUL Commission Approvalfor Rulemaking Adoption Chapter 116, Control ofAir

## PollutionbyPermits for New Construction or Modification New Source Review (NSR) Reform Rnle ProjectNo. 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 EPApublished 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 disapprovedbythe EPA Other changes includedinthis rulemaking are discussedbelow. 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 meetthe requirements ofthe Federal Clean Air

## Act 

## (FCAA) and are approvable into the SIP. Specifically, those concern definitions related to and other changes to the Plant-WideApplicability 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 ofthe 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 disapprovedbyEPA andtherefore reconsiderationmust officiallybe requested. B) Scope required byfederal 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: DocketNo. 2010-0625-RUL Deterioration Review; § 116.192, Amendments and Alterations; § 116.601, Types of Standard Permits; and § 116.617, State Pollution Control Project StandardPermitthat are consistentwiththe federal requirements for the NSR SIP. The executive director also reco=ends repeal of§ 116.121, Actual to ProjectedActual and Emissions EXclusionTestfor Einissions Increases, and replacem.ent 

## ofthis section in 

## a new § 116.127. Additionally, the executive director reco=ends withdrawal from consideration by 

## EPA as revisions 

## ofthe 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 directorrecommends withdrawal of§ 116.121 from considerationbyEPAas arevision 

## ofthe SIP as adopted in 

## 2006 because therUle is proposed for repeal and readopted as § 116.127, whichis also proposed as a revisionto the SIP. 

## C) 

## Additional staffrecommendations 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 ofRecords; § 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 maintainedwithin each air quality controlregion ofthe state.
. 

## Effectonthe: A) Regulated cOiiUilunity: 

## Although the EPA has noted deviations from the fedel:'a1 requirements forthe 

## NSR SIP in 

## staterules, the

## AirPermits Division (APt» has required applitants to comply with all applicable conditions offederal NSR, and therefore, there shouldbe 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 FCAAfrom 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 andconcurrentlywiththis project. B) Public: There 

## will be no effect on the pUblic sirlce the APD is currently conducting reviews of sources subjectto 

## NSRthat meetfederal definitions andrequirements. C) 

## Agency programs: There 

## will be no effect on agency programs since the APD is currently conductingreviews ofsources subjectto 

## NSRthatmeetfederal definitions andrequirements. 

## Stakeholder meetings: No· stake1lolder meetings have been held. However, background documents related to thisrulemaking have been posted on TCEQ's external Web site. Also, standardnotice ofthis action and an opportunityforcornmenthavebeenprovided.

## Commissioners Page 3 January 21,2,011 

## Re: Docket No. 201O-062S-RUL

Public comment: 

## Industry commented that the inclusion ofreferences 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 andthe TCEQ should confirm that existing authorizations under this section ofthe rule are valid.

.Industry commented that several minorchanges were notpart ofEPA's disapproval andtherefore 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 ofthe 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 ofthe rule. These changes are summarized in the "Significant changes from proposal" sectionbelow. 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 contributingto an increase in emissions resulting in source's emissions equaling or exceeding its PAL are subjectto PSD or NNSR; and § 

## n6.192(c)(1)(C) to include a reference to 40 CFR § 

## S1.l6s(f)(n). As 

## the result ofstatements made by the EPA in its final 

## disapproval staffrecommends 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 ofbaseline 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 ofbaseline actual emissions the phrase "or arebeing 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 expectedthe 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 atthis time. Additionally, changes have been made to § 

## n6.180(b) and (c) and § 

## n6.186(b)(1) to addthe 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 identifythe type ofNSRreferredto inthe rule

## Commissioners Page 4 January 21, 2011 

## Re: DocketNo. 2010-0625-

## RUL 

## Potential controversial concerns and legislative interest remaining after proposal andpublic comment: Therule changes andreferences to the federal regulations includedinthis rulemaking are reflecti'le ofthe current APD policy regarding NSR, alld therefore, no controversy is expected. There is no knownlegislativeinterestatthis 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 ofany new policies. The APD is currently conducting reviews of sources subject to federal NSR that meet federal definitions andrequirements. 

## What 

## arethe consequences 

## iftbis rulemakingdoes not goforWard? 

## If this 

## ruleinaking does not go forward, federal SIP approval of 

## major NSR permitting 

## will be jeopardized. Are 

## there 

## alternatives to rulemaking? The commission could decline to address EPA disapproval notices andwaitforfurther EPAaction. 

## Keypoints in adoption rulemakingschedule: Texas Register

## proposalpublicationdate: August 27, 2010 

## Anticipated Texas Register

## publication date: February 25, 20111 

## Anticipated effective date: March 3, 2011 

## Six-month Texas Register

## filing deadline: February28, 2011 

## Agency contacts: Blake Stewart, Air 

## Permits Division, 239-6931 

## Janis Hudson, EnvironmentalLaw Division, 239-0466 

## Natalia Henricksen, Texas Register Coordinator, 239- 0177



## cc: ChiefClerk, 2 

## copies ExecutiveDirector's 

## Office Susana M. Hildebrand, P.E. Kevin Patteson Curtis Seaton 

## Ashley Morgan Office ofGeneral Counsel Blake Stewart NataliaHenricksen

## Texas Commission on Environmental Quality Page 1 Chapter 116

- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2010-008-116-PR

The Texas Commission on Environmental Quality (commission, agency, orTCEQ) 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 

## withoutchanges as published intheAugust 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 proposedtext as published in theAugust 27, 2010, issue ofthe 

## TexasRegister(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 submittedto the United States Environmental Protection Agency (EPA) as revisions to the State Implementation Plan (SIP). The amendmentto §116.617will notbe submittedto EPA as a revision to the SIP.

BACKGROUND AND SUMMARY OFTHE FACIUALBASIS FORTHEADOPTED RULES OnJune 10,2005, the TCEQ submittedthe 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

## Texas Commission on Environmental Quality

. Page 2 Chapter 116

- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2010-008-116-PR

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 116.617to the EPA as revisions
to the NSR SIP; amendments to §§101.1, 116.150, and 116.151 as revisions to the NNSR SIP; andthe amendment to §116.160 as a revision to the Prevention ofSignificant Deterioration (PSD) SIP, adopted onJanuary 11, 2006. On September 23, 2009, the EPApublished notice ofthe proposed disapproval ofthese revisions to theTexas SIP (74 

## FederalRegister48467) and on September 15, 2010, publishedthe final disapproval of the revisions (75 

## FederalRegister56424).

This rulemaking and the companion rulemaking (Rule ProjectNo. 2008-030-116-PR) address issues identifiedby the EPAin its September 15, 2010, final disapproval notice and ensure thatTCEQ regulatory requirements regardingthe NSRpermittingprogram
meetthe requirements ofthe Federal Clean AirAct 

## (FCAA) and are approvable into the SIP. Specifically, those concern definitions for the Plant-WideApplicabilityLimit (PAL) rules and other changes to the PALrules to meetfederal requirements, including the conditions for reopening PALpermits. The rulemaking also amends §116.617, State Pollution Control Project Standard Permit (which 

## is the existing standardpermit rule),
to limitwhen existing registrations forthis standard permit canbe amended or renewed andprovides the deadline forfinal registrations underthis specific standardpermit. This is intendedto facilitate a smooth transitionbetween this section and the new nonrule air quality standardpermit adopted concurrentlybythe commission. The

## Texas Commission on Environmental Quality Page 3 Chapter 116

- Control of

## Air Pollutionby Permits for New Construction or Modification Rule ProjectNo. 201O-008-116-PR

amendments would also remove obsolete references and make non-substantive administrative changes.

EPA also disapproved §116.151 as amended in 2006, but did notprovide any specific

reasons for its disapproval. 

# In its lettertransmitting this rulemakingto EPA, as discussed earlier, the commission is requesting EPA consider §116.151 as amended in 2006 togetherwith these current rule changes as revisions to the SIP.



# In the September 15, 2010 notice, EPAalso proposedto 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), butthey are notnecessary 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 adoptedbythe commission on January 11, 2006, effective on February 1, 2006. No changes havebeen made to the rule text or numbering ofthese sections.

This rulemaking is atleast as stringent as the federal rules being implemented because it includes the applicable elements ofthe majorNSR and PALpermitprograms. The rulemaking action also ensures thatthe rules will meetthe requirements ofthe FCAA, which requires that the elements ofthe SIP be enforceable, include replicable elements, and ensure compliance and accountability. The specific changes to the PALrules meet

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these basic requirements.

When EPA adoptedthe NSRreform rule amendments (67 FederalRegister 80185, December31, 2002), it expanded its requirementfor states' SIP submittals oftheirrules thatimplement majorNSRto require a demonstration ofwhyboththe specific major NSRpermitting program requirements, including applicable definitions, are atleast as stringent as EPA's regulations, ifstates do not adoptthe specific EPAprogram. TCEQ's majorNSR andits PALrules do notincorporate the EPArules by reference butthey do include the basic elements ofthose permitprograms. Therefore, this rulemaking is at least as stringent as the federal rulesbeing implemented. As 

## discussed elsewhere, the changes inthis rulemaking are made to specifically address issues identifiedby EPAin its September 15, 2010, disapproval notice so thatthe rules canbe approved as revisions
to the SIP. The changes make the commission's rules as stringentas EPA's regulations. The definitions ofbaseline actual emissions and projected actual emissions do not include malfunction emissions, and thus are more stringentthan EPA's definitions. In addition, this rulemaking action also ensures that the rules will meetthe requirements ofthe FCAA, whichrequires thatthe elements ofthe SIPbe enforceable, include replicable elements, and ensure compliance and accountability.

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SECTION BY SECTION DISCUSSION §116.12, 

## NonattainmentandPrevention of SignificantDeteriorationReview Definitions The commission is adopting amendments to the definitions ofthe terms, "baseline actual emissions," "net emissions increase," and "projectedactual emissions." These amendments resolve the EPA's objectionto this section ofthe rule.

The EPA, in its final disapproval notice, commentedthatthe definition ofbaseline actual emissions differed from the federal rulesbecausethe definition did not specify that these emissions are meant to be calculatedbased onthe average rate. The amendment specifying thatthe rate is an average ratewouldbe 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 itwith "unauthorized" since emissions events were not exempt undergo TAC Chapter 101, GeneralAir QualityRules, but mustbereported.

The commission is making changes from the proposal to §116.12(g)(E). The EPAin its final disapproval (see September 15, 2010 (75 

## FederalRegister56424)) agreedthat the inclusion ofemissions events in the definition ofbaseline actual emissions would have the effect ofinflating the baseline and narrowing the gap betweenthe baseline actual emissions andthe planned emission rate. The EPAnotedthatthe current definition of baseline actual emissions included emissions events and statedthattobe approvable

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the definition wouldhave to exclude emissions events. This is because EPA notedthat the definitions of"baseline actual emissions" and "projected actual emissions" must both include orexclude malfunctions emissions. However, EPA's inteIJlretation excludes the conditional language atthe end ofthe paragraph which limits emissions to those thathavebeen or are being authorized and, therefore, EPA's statementthatthe commission is including emissions events is"in error. The commission's long standing policy is notto reward emissions from emission events, which are upset events and unplanned maintenance, startup, and shutdown (MSS) activities. TCEQ's term "unplanned MSS activities" substitutes forthe EPA's term "unscheduledMSS. " UnplannedMSS activities are the functional equivalent ofmalfunctions, as are all upset emissions. EPAalso 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 clearthat MSS emissions reportedunderChapter 101 shallbe included in the calculation ofbaseline actual emissions butonly to the extentthattheyhave been authorized or arebeing authorized. Because emissions events are not included, they are therefore excludedfrom the calculation ofbaseline actual emissions. The commission does not authorize emissions events, which are emissions from upsets andunscheduledMSS activities. While the
currenttext, as adopted in 2006, implementedthatlong standing policy, the rule text

was not writtento clearly limitthe inclusion ofonly planned MSS emissions thathave

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been or are in the process ofbeing authorized during a defined time period. These changes ensure, first, thatthere is no discretion as to inclusion ofonly certain planned MSS emissions (and consequently the exclusion ofemissions events) inthe baseline actual emissions calculation, and second, thatthe 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 proposalby reinstating in §n6.12(g)(E) the phrase "or arebeing authorized," relating to plannedMSS emissions. This phrase was proposedto be removed because the executive directorexpectedto recommendproposal and adoption ofa concurrentrulemaking that wouldhave included mandatory authorization ofMSS emissions. Since the rulemaking that would have required authorization ofMSS emissions has been remanded to staff, itwouldbe inappropriateto remove the phrase atthis time. The commission's rule thatprovides an incentivefor authorizing plannedMSS emissions, §101.222(h), provides alogical time frame for identifying whichplannedMSS emissions shouldbeincludedin the calculation ofbaseline actual emissions, and the ending date ofthe incentive program is used inthis definition. Further, §n6.12(g)(D) provides that non-compliant emissions

are excluded. To the extentthatthere are planned MSS emissions that remain unauthorized on orafterMarch 1, 2016, those will necessarilybe "non-compliant" and therefore, no longer excludedfrom the excluded emissions in subparagraph (D). This is

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consistent with the commission's policyregarding authorization ofplannedMSS emissions. Based onthe incentive schedule in §101.222(h), the TCEQ has received several hundred applications thus far for authorizing plannedMSS at approximatelythe midwaypoint ofthe schedule and, therefore, expects thatthe industries named inthe remaining portion ofthe schedule will also submit applications for authorizing planned MSS overthe nexttwo years.

The commission is also adopting an amendmentto the term "net emissions increase" in §116.12(20). EPA commentedin the Technical Support Documentrelatedto the proposed disapproval thatthis definition might notmatchfederal requirements for enforceabilitybecause itdid notinclude a statementthatthe 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) andis adopting itwith 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 subjectto reporting under Chapter 101 to the extent that theyhavebeen authorized or are being authorized." This change is necessaryto ensure thatthis 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 amendedto

ensure thatthe commission's intentofwhattypes ofemissions canbe included in that calculation is clear. While the commission intendedthatthesetwo definitions be compatible when adopted in 2006, the EPA's comments indicatedthat may notbe the

case. The EPA commentedthatthe term "projected actual emissions" does not include emissions from startups, shutdowns, and malfunctions. However, as statedinthe original adoption preambleforthis rule in 2006, the commission excluded malfunction emissions in compliance with long-standing commission policyto exclude noncompliant emissions. TheEPAin its final disapproval (see September 15,2010 (75 

## FederalRegister56424)) agreedthatthe inclusion ofemissions events, which are similarto the federal term "malfunctions," in the definition ofbaseline actual emissions wouldbe inappropriate. Further, EPAhas approved definitions in other states that also exclude malfunctions; (see September 15, 2010 (75 

## FederalRegister56441)). These amendments are necessaryto ensure thatboth definitions are approvable as revisions to the SIP.

§116.115, 

## General andSpecial Conditions The commission is amending §116.115(b)(2)(F) with a statementthat emissions exceeding the maximum allowable emission rates established in a permit are not authorized and are aviolation 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 

## ProjectedActualandEmissions Exclusion TestfoTEmissions Increases The commission repealed §116.121. The text ofthis rule has been movedto adopted new §116.127·



## §i16.127, Actual to 

## ProjectedActualandEmissionsExclusion TestfoTEmissions The commission is adopting §116.127to address actual to projected actual emissions and the emissions exclusion testfor 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 ofcompliance as identified in 

## the federal rule, 40 Code ofFederal Regulations (CFR) §S2.21. Section 116.127(a) requires a demonstration that federal NSRdoes not applybe submitted with
any permit application orregistration. This demonstration must be documentedby records thatinclude a project description, the facilities affected, and a description of

## the applicability test. Subsection (b) 

## requires monitoring ofemissions that couldincrease as

a result oftheproject ifprojected actual emissions are used to determine the project emission increase at a facility.

Subsection (c) requires owners oroperators ofelectric utility steamgenerating units to

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submit to areportto the executive director documenting the emissions for each calendaryear thatrecords are required underthe actual-to-projected actual test. Subsection (d) requires owners or operators offacilities otherthan electric generating units to submit a reportto the executive directorifannual emissions exceedthe baseline actual emissions by a significant amount. Subsection (e) requires records to be maintained and made available for review.

As 

## statedin the preamble when adoptedby 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 ofprojected 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 itwith the term "existing major stationary source" to make this requirement more consistentwith 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 similarlyto the term "facility" as defined in the Texas CleanAirAct (TCAA), the commission is adding the language "oremissions unit" wheneverthe term facilityis used (i.e., §116.180(a)(3), (b) 

## and (c)). Additionally, the commission is making

a changefrom theproposal in this section and as used elsewherein the commission's PALrules, by adding thephrase "at a major stationary source" to the term "emissions unit" to ensure that the term is better understood as the EPA generally uses the termin NSRpermitting. The term "emissions unit at a major stationary source" means a single piece ofequipment; it does not necessarilyhave the same meaning as used in some of the maximum achievable control technology standards in 40 CFRPart 63. The commissionis also restricting the issuance ofPALpermits to existing stationary sources in §116.180(a)(s). The EPA, in its September 15,2010, final disapproval notice stated thatthe currentrule lacks a provisionthat limits applicability ofa PALto 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-wideApplicabilityLimitPermitApplication
In 

## its September 15, 2010, final notice ofdisapproval, the EPA stated that the term facilitywas vague and unenforceable and that §116.182(1) might not require all facilities emitting a PALpollutant at a major stationary source to be includedin the PALpermit application. This amendment resolves the EPA's objection to this section ofthe rule. Sincethe federal term emissions unit is defined very similarlyto 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 termfacility is usedin §n6.182(a)(I). Also, the commission is adding the phrase "at a major stationary source" where appropriate to make clearthat PALs are applicable to major sources only. Additionally, as the resultof
comments in the EPA's final disapproval (75 FederalRegister

## 56424, September 15, 2010), the commission is adding language to require that all emission units atthe major stationary source that emitthe PALpollutantbe includedinthe PALpermitapplication. This language ensures that the rule is consistentwith the federal requirementthatthe TCEQ has appropriate information to reviewwhen a PAL application is submitted. This language should also ensure approvability ofthe rule into the SIP.

§116.186, 

## General andSpecial Conditions 

## Inits September 15, 2010, final notice ofdisapproval, the EPA stated thatthe term facility was vague and unenforceable andthat §n6.186 might not require all facilities emitting a PALpollutantat a major stationary source to be included inthe PALpermit. This amendment resolves the EPA's objection to this section ofthe rule. Sincethe federal term emissions unit is defined very similarly to the term facility as defined inthe TCAA, the TCEQ is adding the language "oremissions unit" where the termfacility is used in subsections (a) and (b)(I) and changing the word "federal" to "major" in subsection (b)(1) to clarifythetype ofNSRreferenced in this subsection. Also, the commission is adding the phrase "at a major stationary source" where appropriate to

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make clearthat PALs are applicableto major sources only. Also, as the result of
comments in the EPA's final disapproval (7S FederalRegisterS6424, September IS, 2010), the commission is adding language to require that all emission units at the major stationary source that emit the PALpollutantbe included in the PALpermit. This language is 

## added to ensure approvability ofthe rule into the SIP. Additionally, the commission is defining the term "responsible official" byreferencing the definition in 30 TAC Chapter 122.

In 

## the September IS, 2010, final disapproval notice, the EPA notedthat TCEQ's rule lacked a mandate that failure ofthe monitoring system to meetthe requirements ofthis section is aviolation oftbe PALpermit. Consequently, the commission is includingthis 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 EPAalso statedthatthe 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 in40 CFR §S1.16s(a)(1)(xxxiii) and §S1.166(b)(4S); andpredictive emissions monitoring system (PEMS) as defined in 40 CFR §S1.16s(a)(1)(xxxii) and §S1.166(b)(44) are essential forthe enforceability ofand providing the means for determining compliance with a PALs program. The commission is incorporatingthese 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 objectionto this section ofthe rule. Additionally, the commission is amending §116.186 with non-substantive administrative changes.

§116.188, 

# Plant-wideApplicabilityLimit The commission is amending §116.188 with non-substantive administrative changes.

§116.190, 

# FederalNonattainmentandPrevention of SignificantDeteriorationReview Inits September 15, 2010, final notice of

## disapproval, the EPA statedthatthe term facility was vague and unenforceable. This amendment resolves the EPA's objection to this section ofthe rule. Since the federal term emissions unitis defined very similarly to the termfacility as definedin the TCAA, the commission is addingthelanguage "or emissions unit" where the termfacility is used in subsection (a). Also, the commission is adding the phrase "at a major stationary" source where appropriate to make clearthat PALs are applicable to major sources only and changing the word "federal" to "major" to clarifythe type ofNSR 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 ofa PALbythe executive director. This amendmentresolves the EPA's objectionto this section ofthe rule. The commission is including a statement

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that acceptance ofa PALis agreementbythe permitholderto 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 PALlimitto reflect creditable emissions reductions; or revision ofthe permitto reflect an increase in the PAL. Additionally, the commission is allowing discretionary reopening ofthe permit for the purposes statedin §n6.186(c)(2). These purposes include: revision ofthe PALto reflect newly applicable federal requirements; revision to the PALto reflect any other enforceable requirement imposed on major stationary sources underthe SIP; reduction ofthe PALto avoid national ambient air quality standards (NAAQS) or PSD increment violation; or reduction ofthe PALto avoid an adverse impacton afederal class I area.

As 

## the result ofcomments receivedfrom the EPAon the proposed amendments the commission is changing §n6.192(a)(1) and (4) to specifically state thatthe Best Available ControlTechnology (BACf) equivalentrequiredbythe 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 subjectto appropriate PSD orNNSR 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 of StandardPermits The commission is removing language referring to specific standardpermits in §116.601(a)(I) in favor ofa more general statementthatincludes those standardpermits adoptedinto the rule. This change will facilitate anyfuture adoptions or repeals of standard permits that are part ofChapter 116.

§116.617, 

# State Pollution ControlProjectStandardPermit The commission is making changes from the proposal to §1l6.617(a)(4) and (5). The commissionis amending §116.617(a)(4) to provide thatthe 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 afterMarch 3, 2011, no new or modified registrations will be accepted and no existing registrations willbe renewed. The date in these revisions was changedfrom February 17, 2011 to March 3, 2011, to accurately reflectthe effective date ofthis rule.

The EPA inits September 15,2010, final disapproval notedits objections to the State Pollution Control Project Standard Permit (PCP) including: the PCP is a generic permit that canbe used at any source including major sources; it is overlybroadin thatit does

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not specifythe types ofpollution control equipment it authorizes; andit allows for

source specific review and case-by-case authorization. Anon-rule standardpermitthat

can be usedfor pollution control projects is concurrentlybeing issuedbythe commission. Persons who wish to have authorizationfor pollution control equipmentby

a standardpermit may use the new non-rule standard permit for pollution control equipment.

FlNAL REGULATORY IMPACTANALYSIS DETERMINATION The commissionreviewed the proposed rulemaking in light ofthe regulatory impact analysis (RIA) requirements ofTexas Government Code, §2001.0225, and determined thatthe rulemaking does not meet the definition ofa majorenvironmental rule as defined inthat statute and ifit did meetthe definition, would notbe subjectto the requirementto prepare a RIA.



## Amajorenvironmentalrule means arule, the specific intent ofwhich is to protectthe environment orreduce risks to human health from environmental exposure, and that may adversely affect in a material waythe economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe
state or a sectorofthe state. The specific intent ofthe revisions is to include definitions for and make other changes to the PALrules to meetfederal requirements, including the conditions for reopening PALpermits. Therulemaking would also amend §116.617,

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whichis the existing standard permitrule, to limitwhen existing registrations can be amended orrenewed, and provide the deadline forfinal registrations underthis specific standardpermit. This is intendedto facilitate a smoothtransitionbetweenthis section and the proposed new non-rule air quality standard permit.

In the September 23, 2009, notice, EPA also proposedto 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 thewithdrawal from EPA consideration as arevision
to the SIP of§§116.400, 116-402, 116-404, and 116.406 as adoptedby the commission on January 11,2006, effective on February 1,2006.

These changes will not adversely affectthe economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe
state ora sector ofthe state in a material waybecausethey are adoptedto ensure consistencybetween state and federal air quality permittingrequirements and canbe 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 PALpermits, and that excess emissions are

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violations ofthe permit. The rulemaking also amends §n6.617 to limitwhen existing registrations for this standardpermit canbe amended orrenewed andprovides the deadline for final registrations underthis specific standardpermit. This is intendedto facilitate a smoothtransitionbetween this section andthe new non-rule air quality standard permit adopted concurrentlyby the commission. The amendments would also

remove obsolete references and make non-substantive administrative changes.

Additionally, even ifthe rules metthe definition ofa major environmental rule, the rulemaking does notmeet any ofthe four applicability criteriafor requiring a RIAfor 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 ofwhich is to: 1) exceed a standard setby 

## federal law, unless the rule is specifically requiredby state law; 2) exceed an express requirement ofstatelaw, unless the rule is specifically requiredbyfederal law; 3) exceed a requirement ofa delegation agreement orcontractbetween the state and an agency orrepresentative ofthe federal government to implement a state and federal program; or4) adopt a rule solely under the generalpowers ofthe agency instead ofunder a specific statelaw.

The rules wouldimplement requirements ofthe FCAA. Under42 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 notrequire specific programs, methods, or emission reductions in orderto meetthe standard, state SIPs must include specific requirements as specifiedby 42 USC, §741O. The provisions ofthe FCAArecognize that
states are in thebestposition to determine what programs and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affectedindustry, and the public, to collaborate onthe best methods for attainingthe NAAQS forthe specific regions in the state. Even though the FCAAallows states to develop their own programs, this fleXIbility does notrelieve a statefrom developing a programthat meets the requirements of42 USC, §741O. States are notfree to ignore the requirements of42 USC, §7410, and must develop programs to assure thattheir SIPs provide for implementation, attainment, maintenance, and enforcement ofthe NAAQS within the
state. One ofthe requirements of42 USC, §741O, isfor states to includeprograms forthe regulation ofthe modification and construction ofany stationary source within the area coveredbythe plan as necessaryto assure thatthe NAAQS are achieved, including a permitprogram as required in FCAA, Parts C and D, orNSR. Additionally, once states have developed SIPs, and those plans are approvedbythe EPA, the FCAAprescnbes, in 42 USC, §7502(e), thatthe EPA, in modifying a NAAQS, shall promulgate rules that applyto all areas thathave not attained theprevious NAAQS that providefor controls that are no less stringentthan the controls thatpreviously appliedto the area. This rulemaking will address those sections submitted as revisions to the NSR SIP and subsequently were disapprovedby the EPA. Specifically, those concern definitions for

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and other changes to the PAL rules, and that excess emissions areviolations ofthe permit. The rulemaking project includes the withdrawal ofsections applicableto 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 ortext and, thus,

are not openfor comment.

The requirement to provide a fiscal 

## analysis ofregulations 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 RIAofextraordinary rules. These are identifiedinthe statutorylanguage as major environmental rules thatwill have a material adverse impact and will exceed a requirement ofstatelaw, federal law, or a delegatedfederal program, or are adopted solelyunderthe 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 ofrules adoptedby the agencyin the past, itis not anticipatedthatthe bill will have significant fiscal implications for the agency due to its limited application." The commission also noted thatthe number ofrules thatwould require assessmentunder the provisions ofthe bill was notlarge. This conclusion was based, in part, onthe criteria setforth 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 understandthis federal scheme. If

## each rule proposedbythe commissionto meet a federal requirementwas consideredto be a major environmental rule that exceeds federal law, then each ofthose rules would require the full RIA contemplatedby SB 633. This conclusion is inconsistent with the conclusions reachedby the commission in its cost estimate andbythe Legislative Budget Board (LBB) in its fiscal notes. Sincethe legislature is presumedto understand the fiscal impacts ofthe bills itpasses, and thatpresumption is basedon information providedby state agencies and the LBB, the commissionbelieves thatthe intent ofSB 633 was onlyto require the full RIAfor rules that are extraordinary in nature. While the rules mayhave a broad impact, that impact is no greaterthan is necessary or appropriate to meetthe requirements ofthe FCAA, and infact creates no additional impacts, sincethe rules do not exceedthe requirementto attain and maintain the NAAQS. Forthese reasons, the rules fall underthe exceptioninTexas Government Code, §2001.o22s(a), becausethey are requiredby, and do not exceed, federal law, includingthe approved SIP. In addition, these rules do not exceed any contractbetween the state and a federal agency.

The commissionhas consistently applied this constructionto its rules sincethis statute

was enacted in 1997. Sincethattime, the legislaturehas revised the Texas Government

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Code, butleft this provision substantiallyunamended. Itis presumed that "when an agencyinterpretation is in effect atthe time the legislature amends thelaws without making substantial change in the statute, the legislature is deemed to have acceptedthe agency's interpretation." 

# (Central Power& 

# LightCo. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), 

# writdeniedwithpercuriam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

# Bullockv. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no 

# writ). CfHumble Oil& 

# Refining Co. 

# v. Calvert, 414 S.W.2d 172 (Tex. 1967); 

# Dudney v. State FarmMut. AutoIns. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); 

# Southwestern LifeIns. Co. v. Montemayor, 24 S.W.3d581 (Tex. App. Austin 2000,

# pet. denied); and 

# CoastalIndust. WaterAuth. v. Trinity PortlandCement Div., 563 S.W.2d 916 (Tex. 1978).)

The commission's interpretation ofthe RIA requirements is also supportedby a change made to theAdministrative Procedure Act (APA) by the legislature in 

## 1999. In an attemptto limitthe number ofrule challenges based uponAPArequirements, the legislature clarifiedthat state agencies are required to meetthese sections ofthe APA againstthe standard of"substantial compliance" (Texas Government Code, §2001.035). The legislature specificallyidentifiedTexas Government Code, §2001.0225, as falling underthis standard. As 

## discussed inthis analysis and elsewhere in this preamble, the commissionhas substantially compliedwith the requirements ofTexas Government Code, §200l.0225.

## Texas Commission on Environmental Quality Page 2S Chapter 116

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Therules implementrequirements ofthe FCAA, specificallyto adopt andimplement SIPs to attain and maintain the NAAQS, including a requirement to adopt and implementpermit programs. The specific intent ofthe rulemaking is to address those sections submitted as revisions to the NSR SIP and subsequentlywere disapprovedby the EPA. Specifically, those concern definitions for and other changes to the PALrules, and that excess emissions are violations ofthe permit. The rulemaking would also limit when existing pollution control standard permitregistrations canbe amended or renewed andthe deadline for final registrations underthis specific standardpermit. The rules were not developed solely underthe general powers ofthe agency, but are authorizedby specific sections ofTexas Health and Safety Code, Chapter 382 (also known as the TCAA), and the TexasWater Code, which are cited inthe STATUTORY AUTHORTIY section ofthis preamble. Therefore, this rulemaking action is not subject
to the regulatory analysis provisions ofTexas Government Code, §2001.022S(b).

TAKINGS IMPACTASSESSMENT UnderTexas Government Code, §2007.002(S), taking means a governmental action that affects private real property, in whole or inpart or temporarily orpermanently, in a

mannerthatrequires the governmental entityto compensatethe private real property

owner as provided by the Fifth and FourteenthAmendments 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 propertythat is the subject ofthe governmental action, in whole or in part ortemporarily or permanently, in a mannerthat restricts orlimits the owner's right to the propertythat would otherwise exist inthe absence ofthe governmental action; and is the producing cause ofa reduction ofatleast 25% inthe marketvalue ofthe affectedprivate real property, determinedby comparing the market value ofthe property as ifthe governmental·action is not in effect andthe marketvalue 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. Theprimarypurpose ofthis rulemaking action, as discussed elsewherein this preamble, is to address those sections submitted

as revisions to theNSR SIP and subsequentlywere disapproved bythe EPA. Specifically, the changes concern definitions for and otherchanges to the PALrules, limitations regarding use ofpollution control standard permit registrations, andthat excess emissions are violations ofthe permit.

Therules will not create any additional burden on private real property. Therules will
not affect private real property in a mannerthat would require compensation to private real property owners underthe United States Constitution ortheTexas Constitution. Theproposal also will not affect private real propertyin a mannerthat restricts or limits

an owner's rightto the propertythat would otherwise exist inthe absence ofthe

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governmental action. Therefore, the rulemaking will not cause ataking under Texas Government Code, Chapter 2007.

CONSISTENCYWITH THE COASTALMANAGEMENT PROGRAM The commission determinedthatthis rulemaking actionrelates to an action or actions subjectto 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 commissionrules in 30TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As 

## requiredby §281.4s(a)(3) and 31 TAC §SOS.11(b)(2), relating to Actions and Rules Subject to the CMP, commissionrules governing air pollutant emissions mustbe consistent with the applicable goals and policies ofthe CMP. The commission reviewed this action for consistencywiththe CMP goals and policies in accordance with the rules ofthe Coastal Coordination Council, and determined thatthe action is consistentwith the applicable CMP goals andpolicies.

The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values ofcoastal natural resource

areas (31 TAC §S01.120)) The CMP policyapplicable to this rulemaking action is the policythat commission rules comply with federal regulations in 40 CFRto protect and enhance air qualityin the coastal areas (31 TAC §S01.14(q)). The rules will benefitthe

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environmentby ensuring thatcertain state andfederal permitting requirements are consistentto ensure protection ofair quality. Therefore, in accordance with 31 TAC §Sos.22(e), the commission affirms that this rulemaking action is consistentwith CMP goals andpolicies.

EFFECT ON SITES SUBJECTTO THE FEDERAL OPERATING PERMITS PROGRAM Chapter 116 is an applicable requirement ofChapter 122, Federal Operating Permits Program. Owners or operators subjectto the federal operating permitprogram must, consistentwith the revision process in Chapter 122, upon the effective date ofthe adopted rulemaking, revise their operating permitto include the new Chapter 116 requirements. Additionally, sources subjectto the rules maybecome subjectto the federal operating permitprogram.

PUBLIC COMMENT The commission held a public hearing on September20, 2010, and no comments were submitted. The commentperiod closed on September27, 2010. The commission received written comments from an individual citizen, EAP, and the Texas Industry Project (TIP).

RESPONSE TO COMMENTS TIP supportedthe revisions and clarifications to Chapter 116 that further the goal of

## Texas Commission on Environmental Quality Page 29 Chapter 116

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federally approvable rules.



# The commission appreciates the TIP's support onthis issue.

An 

## individual citizen requested all existing permits, especiallythose relatedto oil and gas facilities, be subject to the rule changes.



# This rulemaking implements the applicable elements ofthe majorNSR and PALpermitprograms and is atleast as stringent as the federal rules and policies. The rulemaking action also ensuresthatTCEQ rules will meetthe conditions ofFCAA, §uo, which requires thatthe elements ofthe SIPbe enforceable, includereplicable elements, and ensure compliance and accountability. Oil and gas facilities that are subjectto the aforementioned programswill be requiredto complywiththeserevisions.

TIP commented that new rule language in §116.115, statingthat emissions exceeding the maximum allowable emissionrates are not authorized and are a violation ofthe permit,

was redundant and, therefore, unnecessary. TIP also statedthat this revision was unrelatedto NSRreform and its presence in a SIP approved section ofthe rule opened a potential SIP gap.

## Texas Commission on Environmental Quality Page 30 Chapter 116

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The commenteris correctthatthis change is not directly related to EPA's disapproval notice. However, EPAregularly comments on the lackof similar language in permits. Therefore, this 

## change assists with further ensuring thatthe permits that are issued, which are based on these rules,

are enforceable. Both rules andpermits mustbe enforceable for inclusion in the SIP. Although the commissionis adding this textto a SIP-approved rule, which will now be subjectto EPAreview again, the commission expects that any gap resultingfrom commission adoption ofthe rule, until EPAreview, will notresultin any adverse effects. 

## This is because the commission is confident thatpermits issuedpriorto this rule change are also enforceable.



## TIP commented that existing TCEQ rules require all facilities that emit a PALpollutant be included in 

## the PAL permit. TIP also commented that EPA's lackofclarity on whether the Texas rules allowfor emission caps that do not include all facilities at a major source lacks basis in the rules.

Although the commission's position is thatthe currentlanguage in §116.182(1) and §116.186 requires the applicant for a PALto include all facilities thatwould be subjectto the PALpermitto be included and the
currentpractice ofthe Air Permit Division is to require all facilities that

## Texas Commission on Environmental Quality Page 31 Chapter 116

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# emitthe PAL pollutantto be included inthe PALpermit, the commission is making further changes to this 

# rule. The EPAin its September 15, 2010, 

# final disapproval notice statedthat §116.186 

# providesfor an emission cap thatmaynot accountfor all the emissions ofa pollutantata major stationary source. Additionally, EPA statedthat §116.182(l) 

# requires applicants to submit a list offacilities to be included in the PAL, suchthat
not allfacilities atthe entire stationarysource are specificallyrequiredto be included inthe PAL. Dueto the continuing confusion regardingthis 

# issue, the commissionis making additional changes to the rule to addthe phrase "thatemitthe PALpollutant" andto remove the phrase "to be included in the PAL permit."

TIP commentedthatthe inclusion ofreferences to federal definitions for monitoring systems included in §116.186(c)(l) is inconsistentwith definitions for monitoring systems found in other commission rules, notably those in Chapters 115 and 117. TIP stated thatTCEQ should align all substantive definitions ofthese terms with existing definitions to avoid inconsistency and confusion amongvarious programs and portions ofthe Texas rules. TIP also statedthatTCEQ should add the proposeddefinitions to the generalprovisions ofChapter 101.

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# The commission has not changedthe rule in response to this comment. TIP is correctthat the commissionreferencedfederal definitions of "continuous emissionmonitoring system" and "continuous parameter monitoring system" for use in §116.186(c)(1) andthatthe definitions inthe proposed references are notthe same as the definitions of"continuous monitoring", "CEMS", and "PEMS" in otherTCEQ rule chapters such as 30 TAC Chapter 115, Control of

# Air Pollutionfrom Volatile Organic Compounds, or Chapter 117, Control of 

# Air Pollution from Nitrogen Compounds. Chapters 115 and 117 are rules intendedto ensure that reasonably available controltechnology (RACT) is applied to new and existing sources in specific areas in orderto help those areas achieve and maintain attainmentwith the ozone NAAQS. Those chapters also contain requirements that are more stringentthan RACT as part ofthe TCEQ's

ozone NAAQS attainment demonstrations. The objectives, control technology requirements, implementation strategy, andunderlying rule language is 

# necessarily different when comparing a federal NSR authorization program such as the PALpermits program, to rules such as those in Chapters 115 and 117. The definitions are moreappropriate for use with the PALpermitprogramthan are the existing definitions within Chapters 115 and 117. Revisingthe definitions in Chapters 115 and 117, or

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## establishingnew definitions within Chapter 101 is beyond the scope 

# ofthis rulemaking.

The EPArequested thatTCEQ clarify,thatthe references to BACTin §116.192(a) referto 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 requiredbythe rule is federal BACT as identified in §116.160(c){t)(A).

The EPA commentedthat §116.192(a) shouldbe revisedto clearlyrequire all facilities contributing to an increase in emissions resulting in source's emissions equaling or exceeding its PAL are subjectto PSD orNNSR.



## The commission agrees with the comment and is changing §116.192(a)(2) to state clearly that

# all facilities contributingto an increase in emissions resulting in source's emissions equaling or exceedingits PAL are subjectto major NSRreview and specifythatthe authorization required 

# shallbe either a PSD orNNSRpermit. This change will 

## help ensure that 

# this section 

# ofthe rule is approvable into the SIP.

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The EPA requestedthat §n6.192(C) referenceboth 40 CFR §S2.21(aa)(n) and §S1.16s(f)(n) in orderto trigger applicability ofPSD and NNSR.



# The commission agrees with the comment andis changing §116.192(C)(1)(C)


# to includeboth references to the federal regulations to ensurethe commission rules include adequate references to corresponding federal rules.

TIP commentedthatthe revision to §n6.601 does not directly relate to one ofthe EPA's statedbases for disapproving the rule and opens a new SIP gap.



# The commissionhas made no changes in response to this comment. The adopted changeto the rule removes citations to rules that are now obsolete, becauseEPA

# has either disapprovedthe rule (§116.617) 

# or the rules have beennot acted upon byEPA and, subsequently, withdrawnfrom EPA considerationbythe commission due to being repealed (§116.620 

# and §116.621), 

# andreplaces those citations with generic languagethatthe commission expects to be non-controversial and, therefore, shouldbe approvable by

# EPA. WhileEPA did not commentin its disapproval (75 

# FederalRegister56423, 

# 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 currentpractice is 

## to

use its authorityto adopt standardpermits as non-rule standardpermits, it
wants to retain its option to adopt standardpermits as rules in Chapter 116, SubchapterF. Any such standard permit would needto be submittedto EPA

as a SIP revision. Therefore, the resulting SIP gap is 

## not ofsuch concern thatthe commission wants to retain a reference to rules that are notin the SIP orhave been repealed.

The EPA supported the discontinuation ofthe pollution control standard permitbythe commission's proposed changesto §116.617, butnotedthat many facilities may continue
to rely on itand that these permits were not part ofthe federally approved TCEQ NSR SIP. The EPA also acknowledgedthe TCEQ's development ofanon-rule pollution control standard permit. TIP commentedthatthe revision to §116.617to limitthe use of the pollution control standardpermit does not address EPA's disapproval ofthis authorization and the TCEQ should confirm that existing authorizations underthis section ofthe rule are valid.



## The TCEQ 

## maintains its positionthat §116.617 is 

## an efficient and legally supportable authorizationfor pollution controlprojects in Texas. The commission's position is thatthe authorizations thathavebeen issued

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under §n6.617

## priorto this 

## change in the rule, and all 

## otherpriorversions ofthis standardpermit, remain validpermits.

The TCEQ has proposed a new non-rule PCP standardpermit andhas received comments from EPAregarding thatproposal. The executive directorwill presenthis 

## response to those comments to the commissionfor consideration ofa new non-rule PCP standardpermit.

The EPA commentedthat, althoughTCEQ was not submitting §116.617 as a SIP revision, it was submitting comments on §116.617to assure thatTexas' ongoing implementation ofany pollution control standardpermitwas consistentwith the basis for disapproval expressedin EPA's final disapproval notice (see September 15, 2010 (75 FederalRegister56424)).

On September 23, 2009, 

## the EPAproposed disapproval of§n6.617 

## (74 Federal Register 48467,), as adoptedbythe commission effectiveFebruary 1, 2006. 

## The amendments to §n6.617 

## were adoptedin 2006 

## to address prior
comments from EPAafterthe opinion ofthe District ofColumbia Circuit Court ofAppeals in 

## New York v. EPA (June 24, 2005), 

## which ruledthat EPA's rules that exemptedpollution controlprojects from PSD review by defining "modifications" to exclude collateral emission increases associated

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# with those projects did notmeetthe requirements ofthe FCAA. Specifically, the amendments adoptedin 2006 clarifiedthat any projectthat constitutes

a newmajor stationary source ormajormodification as definedin §116.12 is 

# subjectto the requirements ofChapter 116, SubchapterB, ratherthan the requirements ofChapter 116, SubchapterF. The commission appropriately interpretedthe

# New York opinionto apply to the PSD permittingprogram and, therefore, made amendments to §116.617to continue theprogramto assistwith the efficientauthorization methodfor installation ofpollution control equipmentfor projects thatdo nottriggerfederal review.

The EPA acknowledgedthat §116.617 (as adopted in 2006) explicitly prohibits the use ofthe PCP StandardPermitfor newmajor sources and majormodifications; thus, addressing the court's decisionin

# New York v. EPA. 

# The EPAhas not adopted any rules thatprovide detailedrequirements for this 

# type ofpermit, or any rules prohibitingit. Infact, the applicable rule in40 CFR §Sl.160 is

# broadlywritten andhas been interpretedby 

# EPA
to provide states discretionto tailor their own minorNSRpermitprograms. As 

# notedearlier, the conuDission's standardpermitprogram is 

# part ofthe approvedTexas SIP, andEPAhas determinedit meets 40 CFRPart SL The commission is 

# challengingthe EPA's disapproval Of§116.617.

# STAFF RECOMMENDATIONS

## Texas Commission on Environmental Quality Page 38 Chapter 116

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## §U6.12



## STATUTORYAUTHORITY The amendmentis adoptedunderTexas WaterCode (TWC), §S.102, concerning General Powers, whichprovides the commission with the general powers to carry

## outits duties underthe TWC; TWC, §S.103, concerning Rules, which authorizes the commissionto adopt rules necessaryto carry

## outits powers and duties underthe TWC; TWC, §S.lOS, concerning General Policy, which authorizes the commissionbyrule to establish and approve all general policy ofthe commission; and underTexas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commissionto adoptrules consistentwith thepolicyandpurposes ofthe Texas Clean

## AirAct. The amendmentis also adopted underTHSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguardthe state's 

## airresources, consistentwiththe protection ofpublichealth, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commissionto control the quality ofthe state's air; THSC, §382.012, concerning State

## Air Control Plan, which authorizes the commissionto prepare and develop a general, comprehensive planfor the proper control ofthe state's 

## air; THSC, §382.016, concerning Monitoring Requirements; Examination ofRecords, which authorizes the commissionto prescribe reasonable requirements for measuring and monitoring the emissions ofair

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contaminants from a source or from an activity causing orresulting in the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commissionto prescribe sampling methods andprocedures to be used in determining violations ofand compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, whichprovides that all information, documents, and data collectedby the commissioninperforming its duties are state property; THSC, §382.051, concerning Permitting Authority ofCommission; Rules, which authorizes the commission to issue permits for construction ofnew facilities or modifications to existing facilities thatmay emit aircontaminants; 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 PermitConditions, which authorizes the commissionto establish and enforcepermit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission
to require sampling and monitoring ofa permittedfederal source or facility; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; andTHSC, §382.0518, concerning Preconstruction Permit, which authorizes the commissionto issue preconstruction permits. The amendment is also adopted under Federal CleanAirAct (FCAA), 42 United States Code (USC), §§7401, et 

# seq., which requires states to submit state implementation planrevisions that specify

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the mannerin which the national ambient airquality standardwill be achieved and maintained within each air quality control region ofthe state.

The adopted amendmentimplements 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 et

# seq.

§U6.12. Nonattainment 

# and Prevention 

# ofSignificantDeterioration Review Definitions.

Unless specifically definedinthe Texas CleanAirAct (TCAA) orinthe rules of the commission, the terms used bythe commissionhave the meanings commonly ascribedto themin the field ofairpollution control. The terms inthis section are applicableto permitreview for major source construction and major source modification in nonattainment areas. In addition to the terms that are definedby the TCAA, and in 

## §101.1 ofthis title (relating to Definitions), the following words and terms, when used in Chapter 116, SubchapterB, Divisions 5 and 6 ofthis title (relating to Nonattainment Review Permits and Prevention ofSignificantDeterioration Review); and Chapter 116, Subchapter C, Division 1 ofthis title (relating to Plant-Wide Applicability Limits), have the following meanings, unless the context clearlyindicates otherwise.

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(1) 

# Actual emissions--Actual emissions as ofaparticulardate are equal
to the average rate, intons peryear, at which the unit actually emittedthe pollutant during the 24-monthperiod that precedes the particulardate and that is representative ofnormal source operation, except thatthis definition shall not applyfor calculating whether a significant emissions increasehas occurred, orfor establishing aplant-wide applicabilitylimit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shall applyfor this purpose. The executive director shall allow the use ofa different time periodupon a determination thatitis more representative ofnormal

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 selectedtime 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 ofactual emissions. Forany emissions unitthathas not begun normal operations onthe particular date, actual emissions shall equal the potential to emit ofthe unit onthat date.

(2) 

# Allowable emissions--The emissions rate ofa stationary source, calculatedusing the maximum rated capacity ofthe source (unless the source is subject
to federally enforceablelimits that restrict the operating rate, orhours ofoperation, or both), and the most stringent ofthe following:

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(A) the applicable standards specifiedin 40 Code ofFederal Regulations Part 60 or 61;

(B) the applicable state implementationplan emissions limitation including those with a future compliance date; or

(C) the emissions rate specified as a federally enforceable permit condition including thosewith afuture compliance date.

(3) 

## Baseline actual emissions--The rate ofemissions, intons peryear, ofafederally regulated new source review pollutant.

(A) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons peryear, at which the unit actually emittedthe pollutant during any consecutive 24-month period selectedbythe owner or operator within the five-year periodimmediatelypreceding when the owner or operator begins actual construction ofthe project. The executive director shall allow the use ofa differenttime periodupon a determinationthat it is more representative ofnormal

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, intons peryear, at which the facility actually emitted the pollutant during any consecutive 24-month period selectedbythe owner or operator within the ten-yearperiodimmediately preceding eitherthe date the owner or operator begins actual construction ofthe project, orthe date a complete permit application is received for apermit. 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 complywith the exception ofthose required under 40 Code ofFederal Regulations Part 63, had such major stationary sourcebeen required to complywith suchlimitations during the consecutive 24-monthperiod.

(C) For a new facility, the baseline actual emissions for purposes of determining the emissions increase that will resultfrom the initial construction and operation ofsuch unit shall equal zero; and for all other purposes during thefirst two years following initial operation, shall equal the unit's potential to emit.

(D) The actual average rate shall be adjusted downwardto exclude
any non-compliant emissions that occurred duringthe consecutive 24-monthperiod. For each regulated new source review pollutant, when a projectinvolves multiple facilities, onlyone consecutive 24-month period mustbe used to determine the baseline

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actual emissions forthe facilities being changed. Adifferentconsecutive 24-month period canbe usedfor each regulated new source review pollutant. The averagerate shall notbebasedon any consecutive 24-monthperiodfor whichthere is inadequate informationfor determining annual emissions, intons peryear, andfor adjusting this
amount. Baseline emissions cannot occurpriorto November 15, 1990.

(E) The actual average emissions rate shall includefugitive emissions to the extent quantifiable. Until March 1, 2016, emissions previously demonstrated as resulting from plannedmaintenance, startup, or shutdown activities; historically unauthorized; and subjectto reporting underChapter 101 ofthis title (relating to General Air Quality Rules) shallbeincludedto the extentthattheyhave been authorized, or are being authorized.

(4) 

# Basic design parameters--For a process unit at a steam electric generatingfacility, the owner oroperator may select as its basic design parameters eithermaximumhourlyheatinput and maximumhourlyfuel consumption rate or maximumhourly electric outputrate and maximum steam flow rate. When establishing fuel consumption specifications in terms ofweightorvolume, the minimum fuel quality based on Britishthermal units content shall beusedfor determining thebasic design parameters for a coal-fired electric utility steamgenerating unit. Thebasic design parameters for any process unitthatis not at a steam electric generatingfacility are

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maximum rate offuel orheat input, maximum rate ofmaterial input, ormaximum rate ofproduct output. Combustionprocess units will typically use maximum rate offuel input. For sources having multiple end products and raw materials, the owner or operator shall considerthe primaryproduct orprimary raw material when selecting a basic design parameter. The owner or operatormay propose an alternative basic design parameterfor the source's process units to the executive director ifthe owner or operatorbelieves the basic design parameter as defined in this paragraph is not appropriate for a specific industry or type ofprocess unit. If

## the executive director
approves ofthe use ofan alternative basic design parameter, thatbasic design parameter shall be identified and compliance required in a conditionin a permit that is legally enforceable.

(A) 

## The owneror operator shall use credible information, such as results ofhistoric maximum capabilitytests, design information from the manufacturer,

or engineering calculations, in establishingthe magnitude ofthebasic design parameter.

(B) Ifdesign information is not available for a process unit, the

owner or operator shall determine the process unit's basic design parameter(s) usingthe maximumvalue achieved bythe process unit in thefive-yearperiod immediately preceding the planned activity.

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(C) Efficiency ofaprocess unit is 

## not abasic design parameter.

(5) Begin actual construction--In general, initiation ofphysical on-site construction activities on an emissions unitthat are ofa permanentnature. Such activities include, but are notlimitedto, installation ofbuilding supports and foundations, laying ofunderground pipework, and construction ofpermanent storage structures. With respect to a change in method ofoperation, this term refers to those on-site activities other than preparatory activities that markthe initiation ofthe 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 adjacentproperties, and are underthe control ofthe same person (or persons under common control). Pollutant-emitting activities are consideredto be part ofthe same industrial grouping iftheybelong to the same "majorgroup" (i.e., that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amendedbythe 1977 supplement.

(7) Clean coal technology--Anytechnology, including technologies applied atthe precombustion, combustion, or post-combustion stage, at a new or existing facility thatwill achieve significantreductions in air emissions ofsulfur dioxide

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or oxides ofnitrogen associated withthe utilization ofcoalinthe generation of electricity, orprocess steamthat was not in widespreaduse as ofNovember 15, 1990.

(8) Clean coal technology demonstration project--Aprojectusing funds appropriated underthe heading "Department ofEnergy-Clean CoalTechnology," up to atotal amount of$2.5 billionfor commercial demonstration ofclean coal technology, or similarprojects funded through appropriations for the United States Environmental ProtectionAgency. The federal contnbutionfor a qualifying project shall be atleast 20% ofthe total costofthe demonstrationproject.

(9) Commence--As appliedto construction ofa major stationary source

or major modification, means thatthe owner or operatorhas all necessary preconstruction approvals orpermits and eitherhas:

(A) begun, orcausedto begin, a continuous program ofactual onsite construction ofthe source, to be completedwithin a reasonable time; or

(B) entered intobinding agreements or contractual obligations, which cannotbe canceled or modified without substantialloss to the owneror operator,
to undertake aprogram ofactual construction ofthe sourceto be completedwithin a reasonable time.

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(10) 

## Construction--Anyphysical change or changein the method of operation (including fabrication, erection, installation, demolition, or modification ofan emissions unit) thatwould resultin a change in actual emissions.

(11) Contemporaneousperiod--For major sources the periodbetween:

(A) the date thatthe increase from theparticular change occurs; and

(B) 60 months priorto the date that construction on the particular change commences.

(12) De 

# minimis threshold test (netting)--Amethod ofdetermining if

aproposed emission increase will trigger nonattainment or prevention ofsignificant deteriorationreview. The summation ofthe proposedprojectemission increase in tons peryearwith all other creditable source emission increases and decreases during the



# . contemporaneous periodis comparedto the significantlevel for thatpollutant. If

## the significantlevel is exceeded, thenprevention ofsignificant deterioration and/or nonattainmentreview is required.

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(13) Electric utility steamgenerating unit--Any steam electric generating unitthat is constructed forthe purpose ofsupplying more than one-third of its potential electric output capacity and more than 25 megawatts electrical outputto anyutility powerdistribution system for sale. Any steam suppliedto a steam distribution systemforthe purpose ofproviding steamto a steam-electric generatorthat wouldproduce electrical energy for saleis included in determining the electrical energy outputcapacity ofthe affected facility.

(14) Federallyregulatednew source reviewpollutant--As defined in subparagraphs (A)

- 

## (D) ofthis paragraph:

(A) 

## any pollutantfor which a national ambient air quality standard has been promulgated and any constituents orprecursors for suchpollutants identified bythe United States Environmental ProtectionAgency;

(B) any pollutantthat is subject to any standardpromulgatedunder Federal CleanAirAct (FCAA), §111;

(C) any Class I or II substance subject to a standardpromulgated underor establishedby FCAA, TitleVI; or

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(D) any pollutant that otherwiseis subject to regulation underthe FCAA; exceptthat any or all hazardous airpollutants eitherlistedin FCAA, §112 or addedto the list under FCAA, §112(b)(2), whichhave notbeen delistedunderFCAA, §112(b)(3), are not regulated new source reviewpollutants unless the listedhazardous airpollutant is also regulated as a constituent orprecursorofa generalpollutantlisted under FCAA, §108.

(15) 

## Lowest achievable emission rate--For any emitting facility, that
rate ofemissions ofa contaminantthat does not exceedthe amount allowable under applicable new source performance standards promulgatedbythe United States Environmental ProtectionAgency under 42 United States Code, §7411, andthat reflects the following:

(A) 

## the most stringent emission limitationthat is containedinthe rules andregulations ofany approved state implementationplan for a specific class or category offacility, unless the owner or operator ofthe proposedfacility demonstrates that suchlimitations are not achievable; or

(B) the most stringent emission limitationthat is achieved in practicebya specific class or category offacilities, whicheveris more stringent.

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(16) 

## Majorfacility--Any facility that emits orhas the potential to emit 100 tons peryear ormore ofthe plant-wide applicabilitylimit (PAL) pollutantin an attainment area; or anyfacility that emits orhas the potential to emitthe PALpollutant in an amount that is equal to orgreaterthan 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, orhas the potential to emit, a threshold quantity ofemissions ormore ofany air contaminant (including volatile organic compounds (VOCS) for which a national ambient airquality standardhas been issued. The major source thresholds are identifiedin Table I ofthis section for nonattainment pollutants andthe major source thresholds for prevention of significant deterioration pollutants are identified in 40 Code ofFederal Regulations (CFR) §51.166(b)(1). A source that emits, orhas the potential to emit a federally regulated new source review pollutant atlevels greaterthan those identified in 40 CFR §51.166(b)(1) is consideredmajorfor all prevention ofsignificant deterioration pollutants. A major stationary source that is majorfor VOCS ornitrogen oxides is considered to be major for ozone. The fugitive emissions ofa stationary source shall not be includedin determining for any ofthe purposes ofthis definition whether it is a major stationary source, unless the source belongs to one ofthe categories ofstationary

sources listed 

## in 40 CFR §51.165(a)(1)(iv)(C).

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(18) 

## Major 

# modification--Asfollows.

(A) Anyphysical change in, or change in the method ofoperation of

a major stationary source that causes a significantproject emissions increase and a significant net emissions increase for anyfederally regulated new source review pollutant. At a stationary source that is 

## not majorpriorto the increase, the increaseby itselfmust equal or exceed that specifiedfor a major source. At an existing major stationary source, the increase must equal or exceedthat specifiedfor a major modification to be significant. The major source and significant thresholds are provided inTable I ofthis section for nonattainment pollutants. The major source and significant thresholds for prevention ofsignificant deteriorationpollutants are identified in 40 Code ofFederal Regulations §51.166(b)(1) and (2g),respectively.

Figure: go TAC §116.12(18)(A)



# TABLEI
MAJOR SOURCE/MAJORMODIFICATION EMISSIONTHRESHOLDS 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



## 1.00to 14 

## 1.00 to 14


### 1.00 

## to 14 

## 1.00 to 1 4

1 

## Texas nonattainment area designations are specified in 40 Code ofFederal Regulations §81.344.

2 

## The significantlevel is applicable onlyto existing major sources and shallbe evaluated after netting, unless the applicant chooses to applynonattainmentnew source review (NNSR) directlyto theproject. The appropriate netting triggers for existing major sources ofNOx andVOC are specified 

## in §116.150 ofthis title (relating to New Major Source orMajor Modification in Ozone NonattainmentAreas) and for otherpollutants are equal to the major modification level listed in this table. 3VOC and NOx are precursors to ozoneformation and shouldbe quantifiedindividually to determine whether a source is subjectto NNSRunder §116.150 ofthis title. As

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specifiedin §116.150 ofthis title, for EI Paso County, the NNSRrules apply to sources of VOC, but not to sources ofNOx.

4 

## The offsetratio is specifiedto be greaterthan 1.00 to 1. VOC = 

## volatile organic compounds NOx = 

## oxides ofnitrogen NO. = 

## nitrogen dioxide CO 

# =carbon monoxide SO. 

# =sulfur dioxide PMlO 

## = 

## particulate matterwith an aerodynamic diameterless than or equal to ten microns

5

## Applies to the NAAQS for nitrogen dioxide (NO.).

6 

## Forthe Houston-Galveston-Brawria, Dallas-FortWorth, and Beaumont-PortArthur eight-hour ozone nonattainment areas, ifthe United States Environmental Protection Agencypromulgates rules requiring new source reviewpermit applications inthese areas to be evaluatedforNNSR according to that area's one-hour standard classification, each application will be evaluated according to that area's one-hour standard classification. Evaluationincludes both the thresholdfor determining ifthere is a major modification as well as the ratio ofoffsets required alongwith any other applicable requirementthat depends upon an area's nonattainment classification.

7 

## For areas designated as nonattainment for ozone underFederal CleanAirAct, Title I, Part D, Subpart 1 (42 United States Code, §7502), each application willbe evaluated as if that areawas designated as Marginal. Evaluationincludes both the thresholdfor determining ifthere is a majormodification as well as the ratio ofoffsets required along with any otherapplicable requirementthat depends upon an area's nonattainment classification.

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(B) Aphysical change or change inthe method ofoperation shall
notinclude:

(i) 

## routine maintenance, repair, and replacement;

(ii) 

## use ofan alternativefuel orraw materialbyreason ofan order underthe Energy Supply and Environmental CoordinationActof1974, §2(a) and (b) 

## (orany superseding legislation) orbyreason ofa natural gas curtailmentplan under the Federal PowerAct;

(iii) 

## use ofan alternative fuel byreason ofan order orrule of 42 United States Code, §7425;

(iv) use ofan alternative fuel at a steamgenerating unitto the extentthatthefuel is generated from municipal solidwaste;

(v) use ofan alternativefuel orraw materialby a stationary

source that the source was capable ofaccommodating before December 21, 1976 (unless such change wouldbeprohibited under any federally enforceable pernrit condition established after December 21, 1976) orthe sourceis approvedto use under any permit issued under regulations approved underthis chapter;

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(vi) an increase in the hours ofoperation orinthe production rate (unless the changeis prohibited under any federally enforceablepermit conditionthat was established after December 21,1976);

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

(viii) any change in emissions ofa pollutant at a sitethat

occurs under an existing plant-wide applicabilitylimit;

(ix) 

## the installation, operation, cessation, orremoval ofa temporary clean coal technologydemonstrationproject, providedthat the project complies withthe state implementation plan and otherrequirements necessaryto attain and maintain the national ambient air quality standard during theproject and afterit is terminated;

(x) for prevention ofsignificant deterioration review only, the installation oroperation ofa permanent clean coal technology demonstration projectthat constitutes re-powering, providedthatthe project does not result in an increaseinthe potential to emit ofanyregulatedpollutant emitted by

## the unit. This exemption shall apply on a pollutant-by-pollutantbasis; or

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(xi) 

# for prevention ofsignificant deterioration review only, the reactivation ofa clean coal-fired electric utility steam generating unit.

(19) Necessary preconstruction approvals orpermits--Those permits or approvals required underfederal airquality controllaws and regulations and those airquality control laws and regulations that are part ofthe applicable state implementationplan.

(20) Net emissions increase--The amount bywhich 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 shallbe usedto determine emissions increases and decreases.

(A) An 

# increase ordecrease in emissions is creditable onlyifthe following conditions are met:

(i) 

# it occurs during the contemporaneous period;

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(ii) the executive directorhas notrelied on it in issuing a federal new source review permitfor the source and thatpermitis in effectwhen the increase in emissions from the particular change occurs; and

(iii) in the case ofprevention 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 ifitis required to be consideredin calculating the amount ofmaximum allowable increases remaining available.

(B) An 

## increase in emissions is creditable if

## it is the result ofa physical change in, or change in the method ofoperation ofa stationary source onlyto the extentthatthe new level ofemissions exceeds the baseline actual emission rate. Emission increases at facilities under a plant-wide applicabilitylimit are not creditable.

(C) Adecrease in emissions is creditable onlyto the extentthat all ofthe following conditions are met:

(i) thebaseline actual emissionrate exceeds the new level of emissions;

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(ii) it is federally enforceable at and afterthe time that actual construction onthe particular changebegins;

(iii) the executive directorhas not relied onit in issuing a prevention ofsignificant deterioration or a nonattainmentpermit;

(iv) the decrease has approximatelythe same qualitative significancefor public health and welfare as that attributedto the increasefrom the particular change; and

(v) in the case ofnonattainment applicability analysis only, the statehas not relied onthe decrease to demonstrate attainment orreasonable further progress.

(D) An increasethatresults from aphysical change at a source

occurs when the emissions unit on which construction occurredbecomes operational andbegins to emita particularpollutant. Any replacement unitthatrequires shakedown becomes operational only after areasonable shakedownperiod, notto exceed 180 days.

(21) Offset 

## ratio--Forthe purpose ofsatisfying the emissions offset reduction requirements of42 United States Code, §7503(a)(1)(A), the emissions offset

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ratio is the ratio oftotal actual reductions ofemissions to total emissions increases of suchpollutants. The minimum offsetratios are included inTable I ofthis section under the definition ofmajor modification. In orderfor areduction to qualify as an offset, it
mustbe certified as an emission creditunder Chapter 101, SubchapterH, Division 1 or4 ofthis title (relating to Emission Credit Banking andTrading; orDiscrete Emission Credit Banking andTrading), exceptas provided for in §116.170(b) ofthis title (relating
to Applicability ofEmission Reductions as Offsets). The reduction must nothave been relied on in 

## the issuance ofa previous nonattainment orprevention ofsignificant deterioration permit.

(22) Plant-wide 

# applicabilitylimit--An emission limitation expressed, intons peryear, for a pollutant at a major stationary source, thatis enforceable and established in a plant-wide applicabilitylimitpermit under §116.186 ofthis title (relating to General and SpecialConditions).

(23) Plant-wide 

# applicabilitylimit effective date--The date of issuance ofthe plant-wide applicabilitylimitpermit. Theplant-wide applicabilitylimit effective date for a plant-wide applicabilitylimit established in an existing flexible permitis the date thatthe flexible permit was issued.

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(24) Plant-wide applicabilitylimitmajormodification--Any physical changein, or change in 

# the method ofoperation oftheplant-wide applicability limit sourcethat causes itto emit the plant-wide applicabilitylimitpollutant at alevel equal to or greaterthan the plant-wide applicabilitylimit.

(2S) Plant-wide applicabilitylimitpermit--The new source review permitthat establishes the plant-wide applicabilitylimit.

(26) Plant-wide applicability limitpollutant--Thepollutantfor which aplant-wide applicabilitylimitis established at amajor stationary source.

(27) Potentialto emit--The maximum capacityofa stationary sourceto emit apollutantunder its physical and operational design. Anyphysical or enforceable operationallimitation onthe capacity ofthe stationary sourceto emit apollutant, including airpollution control equipment and restrictions onhours ofoperation or on thetype or amount ofmaterial combusted, stored, orprocessed, maybetreated as part ofits design onlyifthe limitation or the effectit wouldhave on emissions is federally enforceable. Secondaryemissions, as defined in 40 Code ofFederal Regulations §S1.16s(a)(1)(viii), do not countin determining the potentialto emitfor 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 ofapplication forthe modification andthe date the resultant modificationbegins emitting. Baseline actual emissions shall be usedto determine emissions increases and decreases. Increases and decreases must meet the creditability criterialisted underthe definition ofnet emissions increase in this section.

(29) Projected

# actual emissions--The maximum annual rate, in tons peryear, atwhich an existing facility is projected to emit a federally regulatednew

source reviewpollutantin anyrolling 12-month period during the five years following the date the facility resumes regular operation afterthe project, orin anyone ofthe ten years following that date, ifthe projectinvolves increasing the facility's design capacity

orits potential to emit that federally regulated new source reviewpollutant. In determining the projected actual emissions, the owner or operator ofthe major stationary source shall includeunauthorized emissions from planned maintenance, startup, or shutdown activities, which were historicallyunauthorized and subject to reporting under Chapter 101 

## ofthis title, to the extenttheyhave been authorized, or are being authorized; and fugitive emissions to the extent quantifiable; and shall consider all relevant information, including, but not limitedto, historical operational data, the company's own representations, the company's expectedbusiness activity andthe company's highestprojections ofbusiness activity, the company's filings withthe state

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orfederal regulatory authorities, and compliance plans underthe approved state implementation plan.

(30) 

# Project emissions increase--The sumofemissions increases for each modified or affectedfacility determined using the following methods:

(A) 

## for existingfacilities, the difference betweenthe projected actual emissions and the baseline actual emissions. In calculating anyincrease in emissions that results from the project, that portion ofthe facility's emissions following the projectthat the facility couldhave accommodated during the consecutive 24-month period usedto establish thebaseline actual emissions and that are also unrelatedto the particularproject, including any increasedutilization due to product demand growth maybe excluded from the project emission increase. Thepotentialto emit from the facility following completion ofthe project maybe usedin lieu ofthe projected actual emission rate; and

(B) for newfacilities, the differencebetween the potential to emit from the facilityfollowing completion ofthe project and thebaseline actual emissions.

(31) 

# Replacement facility--A facilitythat satisfies the following criteria:

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(A) 

## the facility is a reconstructedunitwithin the meaning of40 Code ofFederal Regulations §60.1S(b)(1), orthe facility replaces an existing facility;

(B) the facility is identical to orfunctionally equivalentto the replacedfacility;

(C) the replacement does not alterthe basic design parameters of the process unit;

(D) the replacedfacility is permanentlyremovedfrom the major stationary source, otherwise permanently disabled, orpermanentlybarredfrom operationby a permitthat is enforceable. If

## the replacedfacility is broughtbackinto operation, it shall constitute a new facility. No creditable emission reductions shall be generatedfrom shutting down the existing facility that is replaced. Areplacement facility is considered an existing facility for the purpose ofdetermining federal new

source review applicability.

(32) Secondary 

## emissions--Emissions that would occur as a result of the construction or operation ofa major stationary source or major modification, but do
notcomefromthe source or modification itself. Secondary emissions mustbe specific, well-defined, quantifiable, andimpactthe 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 facilitythat would notbe constructed or increase its emissions, except as aresultofthe construction or operation ofthe major stationary

source or major modification. Secondary emissions do notinclude any emissions that

come directly from a mobile source such as emissions from the tail pipe ofa motor vehicle, from atrain, or from a vessel.

(33) Significant

# facility--A facility that emits or has the potential to emit

aplant-wide applicability limit (PAL) pollutantin an amountthatis equal to orgreater than the significant levelfor that PALpollutant.

(34) Small

# facility--A facility that emits or has the potentialto emitthe plant-wide applicability limit (PAL) pollutantin an amountless thanthe significant level for that PALpollutant.

(35) Stationary source--Anybuilding, structure, facility, or installation that emits or may emit any air pollutant subjectto regulation under 42 United States \ 

## Code, §§7401 

# etseq.

(36) Temporary clean coal technology demonstration project--A clean coaltechnology demonstration projectthat is operated for aperiod offive years or

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less, and that complies withthe stateimplementation plan and otherrequirements necessary to attain and maintain the national ambient air quality standards during the project and afteritis terminated.

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SUBCHAPTERB: NEW SOURCE REVIEWPERMITS DIVISION 1: 

## PERMITAPPLICATION §116.115 

# and §116.127



## STATUTORYAUTHORITY The amendment and new section are adopted underTexas Water Code (TWC), §S.102, concerning General Powers, which provides the commission with the generalpowers to carry 

## out its duties underthe TWC; TWC, §S.lOg, concerning Rules, which authorizes the commission to adopt rules necessary to carry 

## out its powers and duties underthe TWC; TWC, §S.lOS, concerning General Policy, which authorizes the commissionbyrule
to establish and approve all general policy ofthe commission; TWC, §7.101, concerning Violation, which prohibits violation ofa statute orrule within the commission's jurisdiction; and underTexas Health and Safety Code (THSC), §g82.017, concerning Rules, which authorizes the commissionto adopt rules consistent with the policy and purposes ofthe Texas Clean Air

## Act. The amendment and new section are adopted underTHSC, §g82.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air

## resources, consistentwith the protection ofpublic health, general welfare, andphysical 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 StateAir 

## Control Plan, which authorizes the commissionto prepare and develop a general, comprehensiveplanfor

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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 ofair contaminants from a source orfrom an activitycausing 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 tobe used in determining violations ofand compliance withthe commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collectedbythe commission in performing its duties are state property; THSC, §382.051, concerning PermittingAuthority ofCommission; Rules, which authorizes the commission to issue permits for construction ofnew facilities or modifications to existingfacilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation andAmendment, which authorizes the commission to consolidatevarious authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission

# will evaluatemodifications of existingfacilities; THSC, §382.0513, concerning PermitConditions, which authorizes the commissionto establish and enforcepermit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission
to require sampling and monitoring ofa permittedfederal source orfacility; 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 commissionto issue preconstruction permits. The amendment and new section are also adopted under Federal CleanAirAct (FCAA), 42 United States Code (USC), §§7401, 

# etseq., whichrequires states to submit state implementation plan revisions that specifythe mannerin whichthe national ambient airquality standardwill be achieved and maintained within each airquality control region ofthe state.

The adopted amendment and new sectionimplement 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 ofpermits, specialpermits, standard permits, and special exemptions shall comply withthe following:

(1) the general conditions contained in the permit document ifissued or amended priorto August 16, 1994; or

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(2) the following general conditions ifthe permit or amendmentis issued

oramended on or afterAugust 16, 1994, regardless ofwhetherthey are specifically statedwithin the permit document.

(A) Reportofconstruction progress. The permit holder shallreport
start ofconstruction, constructioninterruptions exceeding 45 days, and completion of construction. The report shall be givento the appropriate regional office ofthe commission notlaterthan 15 working days afteroccurrence ofthe event.

(B) Start-up notification.

(i) 

## Thepermitholder shall notify the appropriate air program regional office ofthe commissionprior to the commencement ofoperations of the facilities authorizedbythe permit. The notification mustbe made in such a manner

as to allow arepresentative ofthe commission to bepresent atthe commencementof operations.

(ii) Thepermit holder shall provide a separatenotification for the commencement ofoperations for each unit ofphased construction, which may involve a series ofunits commencing operations at differenttimes.

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(iii) 

## Prior to operation ofthe facilities authorizedbythe permit, the permitholder shallidentifyto the Office ofPermitting and Registration the

source or sources ofallowances tobe utilizedfor compliance with Chapter 101, 

## Subchapter H, Division 3 ofthis title (relatingto Mass Emissions Cap andTrade Program).

(C) Samplingrequirements.

(i) 

## Ifsampling is required, thepermitholder shall contact the commission's Office ofCompliance and Enforcementpriorto sampling to obtainthe proper data forms andprocedures.

(ii) 

## All sampling and testing procedures mustbe approvedby the executive director and coordinatedwith the regional representatives ofthe commission.

(iii) 

## Thepermitholder is also responsible for providing sampling facilities and conducting the sampling operations or contractingwith an independent sampling consultant.

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(D) Equivalencyofmethods. The permitholdermust demonstrate

orotherwisejustifythe equivalency ofemissioncontrol methods, sampling orother emission testing methods, and monitoring methods proposed as alteruatives to methods indicatedin the conditions ofthe permit. Alternative methods shallbe appliedfor in writing and mustbe reviewed and approvedbythe executive directorpriorto theiruse infulfilling anyrequirements ofthe permit.

(E) Recordkeeping. Thepermitholder shall:

(i) maintain a copyofthe permit along with records containing the information and data sufficientto demonstrate compliance with the permit, including production records and operating hours;

(ii) 

## keep all requiredrecords in a file atthe facility site. If, 

## however, the facility site normally operates unattended, records mustbe maintained at

an office within Texas having day-to-day operational control ofthe facility site;

(iii) 

## make the records available at the request ofpersonnel from the commission or anylocal airpollution control agencyhavingjurisdiction over the site. Upon request, the commission shall make any such records ofcompliance available to the public in atimely manner;

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(iv) complywith any additional recordkeeping requirements specified in special conditions attachedto the permit;

(v) retain information in the file for atleasttwo years following the date thatthe information ordata 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 compliancefor
atleastfive years.

(F) 

## Maximum allowable emission rates. The total emissions ofair contaminants from any ofthe sources ofemissions mustnot exceedthe values stated on the table attached to the permit entitled "Emission Sources--MaximumAllowable Emission Rates." Emissions that exceedthe maximum allowable emission rates are not authorized and are aviolation ofthe permit.

(G) Maintenance ofemission control. The permitted facilities shall
notbe operated unless all airpollution emission capture and abatement equipment is maintainedin good working order and operating properly during normal facility

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operations. Thepermitholder shall provide notificationfor emissions events and maintenance in accordance with §§101.201, 101.211, and 101.221 ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements; ScheduledMaintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements; and Operational Requirements).

(H) Compliancewith rules.

(i) 

## Acceptance ofa permit by 

## an applicant constitutes an acknowledgment and agreementthatthepermit holder

# will complywith all rules, regulations, and orders ofthe commission issued in conformitywith the Texas CleanAir Act andthe conditions precedentto the granting ofthe permit.

(ii) If

## more than one state orfederal rule orregulation or permit condition are applicable, the most stringentlimit orcondition shall goveru and bethe standardbywhich compliance shall be demonstrated.

(iii)

## Acceptanceincludes consentto the entrance of commission employees and agents into thepermittedpremises atreasonable times to investigate conditionsrelating to the emission or concentration ofaircontaminants, including compliance withthe permit.

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(c) Special conditions. The holders ofpermits, special permits, standard permits, and special exemptions shall complywith all special conditions contained inthe permit document.

(1) 

## Special conditions maybe attached to apermit 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 conditionthat thepermitholder obtain written approval before constructing a source under:

(i) 

## a standard permit under SubchapterF ofthis chapter (relating to Standard Permits); or

(ii) 

## an exemption underChapter 106 ofthis title (relating to Permitsby Rule). (B) Such written approval maybe required ifthe executive director specificallyfinds that an increase ofa particularpollutant could either:

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(i) result in a significantimpact onthe air environment; or

(ii) 

## cause the facility tobecome subjectto review under:

(I) 

## Subchapter Cofthis chapter (relating to HazardousAir Pollutants: Regulations Governing Constructedor ReconstructedMajor Sources (FCAA, §112(g), 40 CFRPart 63)); or

(II) the provisions in Division 5 ofthis subchapter (relating to Nonattainment Review Permits) and Division 6 ofthis subchapter (relating
to Prevention ofSignificant Deterioration Review).



# §U6.127. Actualto ProjectedActual and Emissions ExclusionTestfor Emissions.

(a) If

## projected actual emissions are used or emissions are excludedfrom the emission increase resulting from the project, the owner oroperator shall document and maintain a record ofthe following informationbeforebeginning construction, and this information mustbe provided as part ofthe notification, certification, registration, or application submittedto the executive director to claim or apply for state new source review authorization for the project. If

## the emissions unitis an existing electric utility

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steam generating unit, the owner or operator shall provide a copy ofthis informationto the executive directorbeforebeginning actual construction:

(1) 

## a description ofthe project;

(2) identification ofthe facilities ofwhich emissions ofa federally regulated new source reviewpollutant couldbe affectedbythe project; and

(3) a description ofthe applicability testused to determine thattheproject is 

## not a majormodification for anypollutant, including thebaseline actual emissions, the projected actual emissions, the amount ofemissions excluded fromthe project emissions increase and an explanation for why such amountwas excluded, and any netting calculations, ifapplicable.

(b) 

## Ifprojected actual emissions are used to determine the project emission increase at a facility, the owner or operator shall monitorthe emissions ofany regulated

new source reviewpollutant that could increase as a result ofthe project at that facility and calculate and maintain a record ofthe annual emissions from that facility, intons peryear, on a calendaryear 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 projectincreases the design capacity orpotential to emit ofthat regulated new source review pollutant atthatfacility.

(c) If

## the facility is an electric utility steam generating unit, the owneroroperator shall submit a reportto the executive directorwithin 60 days afterthe end ofeach calendaryear ofwhich records mustbe maintained documenting the unit's annual emissions duringthe calendaryearthatpreceded submission ofthe report.

(d) 

## Ifthefacility is not an electric utility steam generating unit, the owner or operator shall submit a reportto the executive director if

## the annual emissions from the project exceedthebaseline actual emissionsby a significant amountfor that pollutant, and the emissions exceed the preconstruction projectionfor anyfacility. The report shall be submittedto the executive directorwithin 60 days afterthe end ofeach calendar
year. The report shall contain:

(1) 

## the name, address, and telephone number ofthe major stationary
source; and

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(2) the calculatedactual annual emissions.

(e) The owneroroperator ofthe facility shall make the information requiredto be documented and maintainedby this section available for review upon requestfor inspection bythe executive director, local airpollution control program, and the general public.

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SUBCHAPTER B: NEW SOURCE REVIEW PERMITS 

## DIVISION 1: 

## PERMIT

## APPLICATION

STATUfORYAUTHORITY 

## The repeal is adopted underTexas Water Code (TWC), §S.102, concerning General Powers, whichprovides the commission with the general powers to carry out its duties underthe TWC; TWC, §S.lOg, concerning Rules, which authorizes the commission to adopt rules necessaryto carry out its powers and duties under the TWC; TWC, §S.lOS, concerning General Policy, which authorizes the commissionby rule to establish and
approve all general policy ofth,e commission; andunderTexas Health and Safety Code (THSC), §g82.017, concerning Rules, which authorizes the commission to adopt rules consistentwith the policy andpurposes ofthe Texas CleanAir

## Act. The repeal is also adopted underTHSC, §g82.002, concerning Policyand Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection ofpublic health, general welfare, andphysical 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 AirControl Plan, which authorizes the commissionto prepare and develop a general, comprehensive plan for the proper control ofthe state's air; THSC, §g82.016, concerning Monitoring Requirements; Examination ofRecords, which authorizes the commission to prescribe

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reasonable requirements for measuring and monitoring the emissions ofair contaminants from a source orfrom an activity causing or resulting in the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commissionto prescribe sampling methods andprocedures to be usedin determiningviolations ofand compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, whichprovides that all 

## information, documents, and data collectedbythe commission inperforming its duties are state property; THSC, §382.051, concerning PermittingAuthority ofCommission; Rules, which authorizes the commission to issuepermits for construction ofnew facilities or modifications to existing facilities thatmay emit aircontaminants; THSC, §382.0511, concerning PermitConsolidation and Amendment, which authorizes the commissionto consolidatevarious 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 commissionto establish and enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission
to require sampling and monitoring ofa permitted federal source or facility; THSC, §382.051 5, concerning Application for Permit, which specifies permit application requirements; andTHSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstructionpermits. The repeal is also adopted underFederal CleanAirAct (FCAA), 42 United States Code (USC), §§7401, et

# seq.,

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whichrequires states to submit stateimplementation planrevisions that specifythe

mannerin which the national ambient airquality 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; andFCAA, 42 USC, §§7401 et

# seq.

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## Permits for New Construction or Modification Rule Project No. 2010-oo8-116-PR

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SUBCHAPTER C: PLANT-WIDE APPLICABILIlY LIMITS DIVISION 1: 

## PLANT-WIDE APPLICABILI1YLIMITS §§116.180, 116.182, 116.186, 116.188, 116.190, 116.192



## STATUTORYAUTIIORITY The amendments are adopted underTexas Water Code (TWC), §S.102, conceruing General Powers, which provides the commission withthe general powers to carry outits duties under the TWC; TWC, §S.lOg, conceruing Rules, which authorizes the commissionto adopt rules necessary to carry out its powers and duties underthe TWC; TWC, §S.lOS, conceruing General Policy, which authorizes the commissionbyrule to establish and approve all generalpolicy ofthe commission; and underTexas Health and SafetyCode (THSC), §g82.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy andpurposes ofthe Texas CleanAirAct. The amendments are also adopted underTHSC, §g82.002, conceruing Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air resources, consistentwiththe protection ofpublic health, general welfare, and physical property; THSC, §g82.011, conceruing General Powers and Duties, which authorizes the commissionto control the qualityofthe state's air; THSC, §g82.012, conceruing State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensiveplan for the propercontrol ofthe state's air; THSC, §g82.016,

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concerning Monitoring Requirements; Examination ofRecords, which authorizes the commissionto prescribe reasonable requirements for measuring and monitoring the emissions ofair contaminants from a source orfrom an activity causing or resulting in the emission ofair contaminants; THSC, §g82.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determiningviolations ofand compliance with the commission's rules; THSC, §g82.040, concerning Documents; Public Property, which provides that all information, documents, and data collectedbythe commission in performing its duties are stateproperty; THSC, §g82.0S1, concerning Permitting Authority ofCommission; Rules, which authorizes the commissionto issue permits for construction ofnew 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 ofExisting Facility, whichprescribes how the commission will evaluate modifications ofexistingfacilities; 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 ofa permittedfederal source orfacility; THSC, §g82.0S1S, concerningApplicationfor Permit, which specifiespermit application requirements; andTHSC, §g82.0S18, concerning Preconstruction Permit, which authorizes the commissionto issue

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preconstruction permits. The amendments are also adopted under Federal CleanAirAct (FCAA), 42 United States Code (USC), §§7401, 

# etseq., whichrequires states to submit
state implementation plan revisions that specifythe manner in whichthe national ambient air quality standardwill be achieved and maintained within each air quality control region ofthe state.

The adopted amendments implementTHSC, §§382.002, 382.011, 382.012, 382.016, 382.017,382.021,382.040,382.°51,382.°511- 382.0515, and 382.0518; andFCAA, 42 USC, §§7401 

# etseq.

§116.180. Applicability.

(a) The following requirements apply to aplant-wide applicabilitylimit (PAL) permit.

(1) Only one PAL maybeissuedfor eachpollutant at an existing major stationary source.

(2) APALpermit may include more than one PAL.

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(3) APALpermit may not coverfacilities oremissions units at more than

one existing major stationary source.

(4) APALpermit maybe consolidatedwith a new source review permit at the existing major stationary source.

(s) 

## APALpermit canbe issued onlyfor an existing major stationary
source; it may notbe issuedfor a new major stationary source as definedin40 Code of Federal Regulations §S1.16S(iv)(A).

(b) 

## The new owner of

## a major stationary source - shall complywith §116.110(e) of this title (relating to Applicability), providedthat all facilities, or emissions units at a major stationary source, coveredby a PALpermit change ownership atthe same time andto the sameperson, orboththe new owner and existing permitholder must obtain a PALpermit alteration allocating the emission priorto the transfer of

## the permitbythe commission. Afterthe sale ofa facility, or emissions unit at a major stationary source, butpriortothetransfer ofapermit 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 accountor the operator ofthe facility, emissions unit at a major stationary
source, group offacilities, or accountthat is authorizedto actfor the owner is responsible for complying with this section, except as providedby subsection (b) 

## ofthis section.

§116.182. Plant-wideApplicability Limit PermitApplication.



## Any application for a newplant-wide applicabilitylimit (PAL) permitor PAL permit amendment mustbe completed and signedby an authorized representative. 

# In orderto be granted a PALpermit or PALpermit amendment, the owneroroperatorof theproposedfacility shall submit informationto the commissionthat demonstrates that all ofthe following informationis submitted:

(1) 

## a list ofall facilities, oremissions units at a major stationary source, that emit the PALpollutant, including their registration orpermitnumber, their potentialto emit, and the expected maximum capacity. In addition, the owner or operatorofthe source shall indicate which, ifany, federal or state applicable requirements, emission limitations, orworkpractices applyto each unit;

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(2) calculations ofthebaseline actual emissions with supporting documentation;

(3) the calculationprocedures that the permitholderproposes to use to
convertthe monitoring system datato monthly emissions and annual emissions based

on a 12-monthrolling total for each month; and

(4) the monitoring and recordkeeping proposed satisfythe 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 applicabilitylimit (PAL) will impose an annual emission limitationin tons peryear, that is enforceable for all facilities, or emissions units at a major stationary source, that emitthe PALpollutant. For each month during the PAL effectiveperiod afterthe first 12 months ofestablishing a PAL, the major stationary

source owner or operator shall demonstrate that the sum ofthe monthly emissions from each facility underthe PALfor 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 thatthe sum ofthe preceding monthly emissions from the PAL effective date for each

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facility underthe PALis less than the PAL. Each PALmust include emissions ofonly

one pollutant. The PALmust include all emissions, including fugitive emissions, to the
extentquantifiable, from all 

## facilities or emissions units at a major stationarysource included 

# in the PALthat emitorhave the potential to emit the PAL pollutant.

(b) 

## The following general conditions are applicable to everyPALpermit.

(1) 

## Applicability. This section does not authorize any facility to emit air pollutantsbut establishes an annual emissions levelbelow which new and modified facilities, oremissions units at a major stationary source, will notbe subject to major

new source review forthat pollutant.

(2) Sampling requirements. If

## sampling ofstacks orprocess vents is required, the PAL permitholder shall contact the commission's Office ofCompliance and Enforcement priorto sampling to obtainthe proper dataforms and procedures. All sampling and testing procedures mustbe approvedbythe executive director and coordinatedwith the appropriate regional office ofthe commission. The PALpermit holderis also responsible for providing sampling facilities and conducting the sampling operations orcontracting with an independent sampling consultant.

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(3) Equivalency ofmethods. Thepermitholder shall demonstrate the equivalency ofemission control methods, sampling or otheremission testing methods, and monitoring methods proposed as alternativesto methods indicatedin the conditions ofthe PAL permit. Alternative methods mustbe applied forin writing and
mustbe reviewed and approvedby the executive directorpriorto theiruse in fulfilling any requirements ofthe permit.

(4) Recordkeeping and reporting.

(A) 

## Acopy ofthe PALpermit along with information and data sufficient to demonstrate continuous compliance with the emission caps contained in the PALpermitmustbe maintained in a file atthe plant site and made available at the request ofpersonnel from the commission or any airpollution control programhaving jurisdiction. Forfacilities that normally operate unattended, this information mustbe maintained atthe nearest staffed location within Texas specifiedbythe permitholder in the permit application. This informationmustinclude, but is not limitedto, emission cap and individual emissionlimitation calculationsbased on a 12-monthrollingbasis andproductionrecords and operating hours. Additional recordkeeping requirements maybe specified in special conditions attachedto the PALpermit.

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(B) The owner or operator shall retain a copy ofthe PALpermit application and any applications for revisions to the PAL, each annual certification of compliance under §122.146 ofthis title (relating to Compliance CertificationTerms and Conditions), and the data relied onin certifying the compliance for the duration ofthe PALplus five years.

(C) Asemiannual report shallbe submitted to the executive director within 30 days ofthe end ofeach reporting periodthat contains:

(i) the identification ofowner 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 limitedto, any quality assurance orquality control data, in calculating the monthly and annual PAL pollutant emissions;

(iv) a list ofanyfacility modified or addedto the major stationary source during the preceding six-month period;

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(v) the number, duration, and cause ofany deviations or monitoring malfunctions (otherthan the time associated with zero and span calibration checks), and any corrective action taken. This maybe satisfied byreferencing the PAL permit numberin the semiannual reportforthe site submitted under §122.145 ofthis title (relating to Reporting Terms and Conditions);

(vi) a notification ofa shutdown ofany monitoring system, whetherthe shutdown was permanent ortemporary, the reason for the shutdown, the anticipated date that the monitoring systemwill befully operational orreplaced with another monitoring system, and whetherthe emissions unit monitoredbythe monitoring system continued to operate, and the calculation ofthe emissions ofthe pollutant orthe number determinedby method included inthe permit; and

(vii) 

## a signed statementbythe responsible official, as defined in §122.10 ofthis title (relating to General Definitions), certifyingthe truth, accuracy, and completeness ofthe informationprovidedin the report.

(D) The owneroroperator shall submitthe results ofany revalidation test or methodto the executive directorwithinthree months after completion ofsuchtest or method.

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(5) Maintenance ofemission control. The facilities coveredbythe PAL permitwill notbe operated unless all air pollution emission capture and abatement equipmentis maintained in 

## good working order and operating properly during normal facility operations.

(6) Compliance with rules. Acceptance ofaPALpermitby apermit applicant constitutes an acknowledgment and agreementthatthe holderwill comply with all rules and orders ofthe commission issuedin conformitywith the Texas Clean AirAct and the conditions precedentto the granting ofthe permit. 

## Ifmore than one state orfederal rule or PALpermit condition is applicable, the most stringentlimit or condition will govern andbe the standardby which compliance mustbe demonstrated. Acceptance includes consentto the entrance ofcommission employees and agents into the permittedpremises atreasonable times to investigate conditions relating to the emission or concentration ofair contaminants, including compliance withthe PAL permit.

(7) Effective period. APAL is effectivefor ten years.

(8) Absence ofmonitoring data. A source owner or operator shall record andreport maximum potential emissions without considering enforceable emission

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limitations or operational restrictions for a facility during anyperiod of

## time thatthere is no monitoring data, unless another methodfor determining emissions during such periods is specified in the PALpermit special conditions.

(9) Monitoring systemrequirements. Failureto use a monitoring system that meets the requirements ofthis section is a violation ofthe PALpermit.

(10) 

## Revalidation. All data usedto establish the PALpollutantmustbe revalidatedthroughperformance testing or other scientificallyvalid means approvedby the executive director. Such testing must occur atleast once everyfive years after issuance ofthe PAL.

(n) Renewal. If

## a PAL renewal application is submittedto 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 atthe end ofthe PAL effective period. It 

## shall remain in effect until arenewed PALpermitis issuedbythe executive director or the application is voided.

(c) Each PALpermit mustinclude special conditions that satisfythe following requirements.

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(1) Forthe purposes ofthis subchapter, the definitions ofthe following
terms are the same as those providedin 40 Code ofFederal 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 PALmonitoring system must accurately determine all emissions of the PALpollutant interms ofmass per unit oftime. Any monitoring system authorized for use in 

## the PALpermit must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation.

(3) The PALmonitoring system must employ one ormore ofthe general monitoring approaches meeting the minimum requirements as described in subparagraphs (A)

- (D) ofthis paragraph.

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(A) An 

## owneroroperatorusing mass balance calculations to monitor PALpollutantemissions from activities using coating or solvents shall meetthe following requirements:

(i) provide a demonstratedmeans ofvalidating the published
content ofthe PALpollutant that is contained in, orcreatedby, all materials used in or at the facility;

(ii) assume thatthe facility emits all ofthe PALpollutantthat is contained in, orcreatedby, any raw material orfuel used in oratthe facility, 

## ifit
cannot otherwisebe accounted for inthe process; and

(iii) where the vendorofa material orfuel thatis used in or atthe facility publishes a range ofpollutant content from such material, the owneror operator shall use the highestvalue ofthe rangeto calculate the PAL pollutant emissions unless the executive directordeterminesthatthere is site-specific data or a site-specific monitoring programto support anothercontentwithin the range.

(B) An 

## owneroroperator using a CEMS to monitorPALpollutant emissions shall meet the following requirements.

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(i) The CEMS must complywith applicable performance specifications found in 40 Code ofFederal Regulations Part 60, Appendix B.

(ii) The CEMS must sample, analyze, andrecord data atleast
every 15 minutes while the emissions unit is operating.

(C) An 

## owneror operatorusing CPMS orPEMS to monitorPAL pollutant emissions shall meetthe following requirements.

(i) The CPMS orthe PEMS mustbebased on current sitespecific data demonstrating a correlationbetween the monitored parameter(s) and the PALpollutantemissions across the range ofoperation ofthe facility.

(ii) Each CPMS orPEMS must sample, analyze, and record data atleast every 15 minutes orat anotherless frequent interval approved bythe executive director, while the facility is operating.

(D) An 

## owneror operatorusing emission factors to monitor PAL pollutant emissions shall meetthe following requirements.

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(i) All emission factors mustbe adjusted, if

## appropriate, to
accountfor the degree ofuncertainty orlimitations in thefactors' development.

(ii) The facility mustoperate within the designated range of

usefor the emission factor, ifapplicable.

(iii) 

## If

## technicallypracticable, the owneroroperatorofa significantfacility that relies on an emissionfactorto calculate PALpollutant emissions shall conductvalidation testing to determine a site-specific emissionfactor within six months ofPALpermitissuance, unless the executive directordetermines thattesting is
not required.

(E) An 

## alternative monitoring approach mustmeetthe requirements in paragraph (1) 

## ofthis subsection andbe approvedbythe executive director.

(4) Where an owneroroperator ofafacility cannot demonstrate a correlationbetween a monitoredparameter(s) and the PALpollutant emissions rate at all operating points ofthe facility, the executive director shall:

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(A) 

## establish defaultvalue(s) for determining compliance withthe PALbased on the highestpotential emissions reasonably estimated at such operating point(s); or

(B) determine that operation ofthe facility during operating conditions when there is no correlationbetween monitored parameter(s) andthe PAL pollutant emissions is aviolation ofthe PAL.

§U6.188. Plant-wideApplicability Limit.



## Theplant-wide applicabilitylimit (PAL) is the sum ofthe baseline actual emissions ofthe PALpollutant for each existing facility atthe source to be covered. The allowable emission rate may be usedforfacilities that did not existinthe baseline period. Baseline actual emissions from facilities that were permanently shutdown after the baseline period mustbe subtractedfrom the baseline emissions rate.

(1) 

## An 

## amount equal tothe applicable significantlevelforthe PAL pollutant may be addedto thebaseline actual emissionswhen establishing the PAL.

(2) When establishing the PALlevel for a PALpollutant, only one consecutive 24-month period mustbeusedto determine thebaseline actual emissions

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for all existing facilities. However, a different consecutive 24-month period maybe 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 thefuture compliance date(s) ofany applicable federal or state regulatoryrequirement.



# §U6.190. FederalNonattainment and Prevention 

# ofSignificant Deterioration Review.

(a) An increase in emissions from operational orphysical changes at a facility, or emissions unit at a major stationary source, coveredby a plant-wide applicability limit (PAL) permitis insignificant, for the purposes ofmajor new source reviewunderthis subchapter, ifthe increase does not exceed thePAL.

(b) 

## At no time are emissions reductions ofa PALpollutant that occurduring the PAL effective period creditable as decreases for purposes ofoffsets, unless the level of the PAL is reduced bythe amount ofsuch emissions reductions and such reductions wouldbe creditable in the absence ofthe PAL.

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(c) Aphysical oroperational change not causing an exceedance ofa PALis not subjectto federal restrictions onrelaxing enforceable emissionlimitations to avoid new

sourcereview.

§U6.192. 

## Amendments 

## andAlterations.

(a) Any increase in a plant-wide applicability limit (PAL) mustbe made through amendment. Amendment applications must also include the information identified in §n6.182 ofthis title (relating to Plant-wideApplicability Limit PermitApplication) for

new and modifiedfacilities contributing to the increasein emissions so as to causethe major stationary source's emissions to equal orexceed its PAL and are subjectto 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 thatthe sum ofthebaseline 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 (relatingto Prevention ofSignificant Deterioration Requirements)) equivalent controls, plus the sum ofthe allowable emissions ofthe new ormodified facilities exceeds the PAL. The level ofcontrol that

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wouldresultfrom federal BACT equivalent controls on each significant or major facility shall be determinedby conducting a new federal BACT analysis atthe time the application is submitted, unless the facility is currentlyrequired to comply with a federal BACT orlowest achievable emission rate (LAER) requirementthatwas established within the preceding ten years. In 

## such a case, the assumed control level forthat emissions unit shall be equal to the level offederal BACT orLAERwith which that emissions unit must currently comply.

(2) The owner or operator shall obtain a major new source review permit under applicable provision ofSubchapter B, Division 5 and Division 6 ofthis chapter (relating to Nonattainment Review Permits; and Prevention ofSignificantDeterioration Review, respectively) for all facilities contributing to the increasein emissions so as to

cause the major stationary source's emissions to equal orexceed 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 PALpermit shall requirethatthe increased PALlevel be effective

onthe day any emission unitthat is part ofthe PALmajor modificationbecomes operational andbegins to emitthe PALpollutant.

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(4) The new PAL shallbe the sum ofthe allowable emissions for each modified or newfacility, plus the sum ofthebaseline actual emissions ofthe significant and majoremissions units afterthe application offederal BACTequivalentcontrols as identifiedin paragraph (1) ofthis subsection, plus the sum ofthebaseline actual emissions ofthe small emissions units.

(b) 

## Changes to PALpermits thatdo not require the PALtobe increased mustbe completedthrough permitalteration. Unless allowed in the PALpermit special conditions, the permitholder shall submit an alteration requestpriorto start of construction for physical modifications to facilities orinstallation ofnew facilities under the PAL. Approval mustbe received from the executive directorpriorto start of operation ofthe facilities ifthe emissions from the new or modified facilities may exceed 100 tons peryear.

(c) Acceptance ofa PALpermitis agreementbythe permitholderfor the executive directorto reopen the PALpermit consistentwith 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 PALpermitto:

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(A) 

## correct typographical or calculation errors made in setting the PAL or reflect a more accurate determination ofemissions usedto establishthe PAL;

(B) decrease the PALlimitthe owner or operator ofthe major stationary source creates creditable emissions reductions that meetthe requirements of 40 Code ofFederal Regulations (CFR) §S1.16s(a)(3)(ii) for use as offsets; and

(C) revise the PALto reflect an increase in the PAL providedthe

owner or operator complies with the requirements of40 CFR §S2.21(aa)(1l) and §S1.16S(f)(11).

(2) During the PAL effective period, the executive director may reopen the PALpermitfor the following:

(A) 

## revise the PALto reflectnewly applicable federal requirements (for example, New Source Performance Standards) with compliance dates afterthe PAL effective date;

(B) revise the PALto be consistentwith any otherrequirement, that is enforceable as apractical matter, andthatthe State may impose onthe major stationary source underthe state Implementation Plan; or

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(C) 

## reduce the PALifthereviewing authority determines that a reduction is necessaryto avoid causing or contributingto a NationalAmbientAir Quality Standard or Prevention ofSignificantDeterioration incrementviolation, or to an adverse impact on an air quality relatedvaluethathasbeen identifiedfor a Federal Qass I areaby a federal land manager andfor which information is availableto the general public.

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# SUBCHAPrERF: STANDARD PERMITS §116.601 

# and §116.617



## STATUTORYAUTHORTIY The amendments are adoptedunderTexas Water Code (TWC), §S.102, concerning General Powers, which provides the commission with the general powers to carry out its duties underthe TWC; TWC, §S.lOg, concerning Rules, which authorizes the commissionto adoptru1es necessaryto carry out its powers and duties underthe TWC; TWC, §S.lOS, concerning General Policy, which authorizes the commission by

## rule to establish and approve 

## all general policy ofthe commission; andunderTexas Health and Safety Code (THSC), §g82.017, concerning Rules, which authorizes the commission to adoptrules consistentwith the policy andpurposes oftheTexas CleanAir

## Act. The amendments are also adopted underTHSC, §g82.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air resources, consistentwith the protection ofpublic health, general welfare, andphysical property; THSC, §g82.011, concerning General Powers and Duties, which authorizes the commissionto 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, comprehensiveplan for the proper control ofthe state's air; THSC, §g82.016, concerning Monitoring Requirements; Examination ofRecords, which authorizes the commissionto prescribe reasonable requirements for measuring and monitoring the

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emissions ofair contaminants from a source orfrom an activity causing orresulting in the emission ofair contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commissionto prescribe sampling methods and procedures to be usedin determiningviolations ofand compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collectedbythe commission in performing its duties are state property; THSC, §382.051, concerning Permitting Authority ofCommission; Rules, which authorizes the commissionto issue permits for construction ofnew facilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation andAmendment, which authorizes the commissionto consolidate various authorizations; THSC, §382.0512, concerning Modification ofExisting Facility, which prescribes how the commission will evaluate modifications ofexisting 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 ofa permittedfederal source orfacility; THSC, §382.0515, concerning Applicationfor Permit, which specifies permit application requirements; THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commissionto issue preconstruction permits; andTHSC, §382.05195, concerning StandardPermit, which authorizes the commissionto issue a standardpermitfor new or existing similarfacilities. The

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amendments are also adopted under Federal CleanAirAct (FCAA), 42 United States Code (USC), §§7401, 

# etseq., which requires states to submit state implementation plan revisions that specifythe manner in which the national ambient air quality standard will be achieved and maintained within each air quality control region ofthe state.

The adopted amendmentimplements 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 

# etseq.

§116.601. Types ofStandard Permits.



## (a) Forthe purposes ofthis chapter a standard permit is either:

(1) one thatwas adoptedbythe commission in 

## accordance with Texas Government Code, Chapter 2001, Subchapter B, into this subchapter; or

(2) onethat is issuedbythe commissionin accordance with §116.603 of this title (relating to Public Participation in 

## Issuance ofStandard Permits).

(b) 

## Any standard permitinthis subchapter adoptedbythe commission shall remain in 

## effectuntil itis repealed under the AP A. 

## Ifany adopted standardpermitis

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repealed and replaced, facilities may continueto be authorized until the date of registration requiredby subsection (e) ofthis section.

(c) Aregistration to use a standardpermit adoptedbythe commission in 

## this subchapter shallbe renewedbythe applicant underthe requirements of§n6.604 ofthis title (relating to Duration and Renewal ofRegistrations to use Standard Permits) bythe tenth anniversaryofthe date ofthe original registration.

(d) If

## a standardpermitinthis subchapter adoptedby the commissionis repealed and replaced, with no changes, by a standard permitissuedby the commission, any existing registrationto use the repealed standard permitwillbe automatically converted
to aregistration to use the new standardpermit, ifthe facility continues to meet the requirements. An 

## automatically converted registration to use a standardpermit shallbe renewedby the applicant underthe requirements of§n6.604 ofthis titlebythe tenth anniversaryofthe date ofthe new registration.

(e) If

## a standardpermit adoptedbythe commissioninthis subchapteris repealed andreplacedwith a standardpermitissuedbythe commission, andthe requirements of the standardpermitare changed in 

## the process, persons registeredto use the repealed standardpermit shall register to use the issued standardpermitbythe later ofeitherthe deadline established in the issued standardpermit, orthe tenth anniversaryofthe

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## Chapter 116

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original registration. The commission shall notify, in writing, all persons registeredto

use the repealed standardpermit ofthe date bywhich a new registration must be submitted. Persons notwishing to registerforthe issued standardpermit shall have the option ofapplying for or qualifying for other applicable authorizations inthis 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 standardpermit applies to pollution control projects undertaken voluntarily or as required by anygovernmental standard, that reduce ormaintain currently authorized emission rates for facilities authorizedby apermit, standard permit, or permitby rule.

(2) Theprojectmay include:

(A) the installation orreplacement ofemissions control equipment;

(B) the implementation or change to control techniques; or

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(C) the substitution ofcompounds usedin manufacturing processes.

(3) This standardpermitmust notbe usedto authorize the installation of emission control equipment orthe implementation ofa control technique that:

(A) constitutes the complete replacementofan existing production facility orreconstruction ofa productionfacility as defined in 40 Code ofFederal Regulations §60.1S(b)(1) and (c); or

(B) the executive director determines there are health effects

concerns orthe potentialto exceed a national ambient air quality standard criteria pollutant orcontaminantthat results from an increase in emissions ofany air contaminant until those concerns are addressed bythe registrantto the satisfaction of the executive director; or

(C) returns a facility orgroup offacilities to compliance with an existing authorization orpermit unless authorizedby the executive director.

(4) Priorto March 3, 2011, new or modifiedpollution control projects
mustmeetthe conditions ofthis standardpermit. All previous standard permit

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registrations underthis section thatwere**autho~ed** 

## priorto the effective date ofthis rule must include the increases and decreases in emissions resulting from those projects in anyfuture netting calculation and all other conditions mustbe met upon the ten-year anniversary and renewal ofthe original registration, oruntil administratively incorporatedintothe facilities' permit, ifapplicable.

(5) Notwithstanding the requirements of§116.604 ofthis title (relating to Duration and Renewal ofRegistrations to Use StandardPermits), on or after March 3, 2011, no new ormodifiedregistrationswill be accepted and no existing registrations will be renewed.

(b) 

## General requirements.

(1) Any claim underthis standardpermitmust complywith all applicable conditions of:

(A) 

## §116.604(1) and (2) ofthis title (relating to Duration and Renewal ofRegistrations to Use Standard Permits);

(B) §116.605(d)(1) and (2) ofthis title (relatingto 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 orimplementation oftIle pollution controlproject must begin within 18 months ofreceiving written acceptance ofthe registration from tIle executive director, witIl one 18-month extension available, and must complywitIl §116.115(b)(2) and §116.120 ofthis title (relating to General and Special Conditions and Voiding ofPermits). Any 

## changes to allowable emission rates authorizedbythis section become effective when the project is complete and operation orimplementationbegins.

(3) The emissions limitations of§116.61O(a)(I) oftIlis title do not applyto tIlis standardpermit.

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(4) Predictable maintenance, startup, and shutdown emissions directly associated with the pollution control projects mustbe included inthe representations of the registration application.

(5) Any increases in actual or allowable emissionrates or any increase in production capacity authorizedby this section (including increases associatedwith recovering lost production capacity) mustoccur solely as aresult ofthe projectas represented in the registration application. Any increases ofproduction associatedwith

a pollution controlproject mustnotbe utilizeduntil an additional authorization is obtained. This paragraphis not intendedto limit the owner or operator's abilityto

recoverlost capacity causedby a derate, which may be recovered and used without any additional authorization.

(c) Replacementprojects.

(1) The replacement ofemissions control equipment or controltechnique underthis standard permit is notlimitedto the method ofcontrol currentlyin place, providedthatthe control or'technique is atleast as effective as the current authorized method and all otherrequirements ofthis standard permit are met.

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(2) The maintenance, startup, and shutdown emissions maybe increased above currently authorizedlevels ifthe increase is necessaryto implementthe replacement project and maintenance, startup, and shutdown emissions were authorized for the existing control equipment ortechnique.

(3) Equipmentinstalled underthis section is subjectto all applicable testing and recordkeeping requirements ofthe original control authorization. Alternate, equivalent monitoring, or records may be proposedby the applicant for review and approval ofthe executive director.

(d) Registration requirements.

(1) 

## Aregistration mustbe submitted in accordance withthe following.

(A) If

## there are no increases in authorized emissions ofany air contaminantresulting from a replacementpollution control project, a registration must be submitted no laterthan 30 days afterconstruction orimplementationbegins and the registrationmustbe accompanied by a $900 fee.

(B) If

## a new control device ortechnique is authorized orifthere are increases in authorized emissions ofany air contaminantresulting from the pollution

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control project, aregistration mustbe submittedno laterthan 30 days priorto construction orimplementation. The registration mustbe accompaniedby a $900 fee. Construction or implementation maybegin only after:

(i) 

## no written response has been receivedfrom the executive directorwithin 30 calendar days ofreceiptbythe Texas Commission on Environmental Quality (TCEQ); or

(ti) 

## written acceptance ofthe pollution control projecthas been issuedbythe executive director.

(C) If

## there are any changes in representations to a previously authorizedpollution control project standard permit for whichthere are no increases in authorized emissions ofany air contaminant, a notification orletter mustbe submitted

no laterthan 30 days after construction or implementation ofthe changebegins. No fee applies and no response will be sentfrom the executive director.

(D) If

## there are any changes in representations to a previously authorizedpollution control project standardpermitthat also increase authorized emissions ofany air 

## contaminant resulting from the pollution controlproject, a registration alteration mustbe submitted no laterthan 30 days priorto the start of

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construction orimplementation ofthe change. Theregistration mustbe accompaniedby

a $450 fee, unless received within 180 days ofthe original registration approval. Construction orimplementation maybegin onlyafter:

(i) no written response hasbeen received from the executive directorwithin 30 calendar days ofreceiptbytheTCEQ; or

(ii) written acceptance ofthe pollution control projecthas been issuedbythe executive director.

(2) The registration must includethe following:

(A) a description ofprocess units affectedbythe project;

(B) a description ofthe project;

(C) identification ofexisting permits orregistrations affectedbythe project;

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(D) quantification andbasis ofincreases and/or decreases associatedwith the project, including identification ofaffectedexisting orproposed emission points, all air contaminants, andhourly and annual emissions rates;

(E) a description ofproposedmonitoring andrecordkeepingthat will demonstrate thatthe project decreases or maintains emissionrates as represented; and

(F) a description ofhow the standardpermitwillbe administratively incorporated into the existing permit(s).

(e) Operational requirements. Upon installation ofthepollution control project, the owneror operator shall complywiththe requirements ofparagraphs (1) 

## and (2) of this subsection.

(1) 

## General duty. The owner or operator must operatethe pollution control project in a manner consistentwith good industry and engineering practices andin such

a way as to minimize emissions ofcollateralpollutants, within the physical configuration and operational standards usually associated withthe emissions control device, strategy, ortechnique.

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(2) Recordkeeping. The owner oroperatormust maintain copies on site of monitoring or otheremission records to prove thatthe pollution controlproject is operated consistentwith the requirements in paragraph (1) ofthis subsection, and the conditions ofthis standard permit.

(f) 

## Incorporation ofthe standard permitinto the facility authorization.

(1) Any new facilities or changes in method ofcontrol ortechnique authorizedby this standard permit instead ofa permit amendment under §116.110 of this title (relating to Applicability) at a previouslypermitted or standard permitted facility mustbe incorporatedinto that facility's permitwhen the permit is amended or renewed.

(2) Allincreases inpreviously authorized emissions, new facilities, or changes in method ofcontrol ortechnique authorizedbythis standardpermitfor facilities previously authorizedby a permitby rule must complywith §106-4 ofthis title (relating to Requirements for Permittingby Rule), except §106-4(a)(1) ofthis title, and §106.8 ofthis title (relating to Recordkeeping).La DM8

### castanuoIa, ChiefCieI1< 

## ORDERADOPTING NEW, 

## AMENDED, AND

# REP~~QuaIily REVISIONS TO THE STATE IMPLEMENTATION PLAN



## DocketNo. .2010-0625-RUL 

## On February 9, 2011, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamendments 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; andthe 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 CleanAirAct 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 ofthe state's air and to issue orders consistent with the policies and purposes ofthe 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). Pursuantto 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 ofthe hearings. Apublic 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 ofthe proposed new, amended and repealed rules and SIP were available for public inspection at the Commission's central office and onthe 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 incorporatedby reference to this Order. The Commission finds thatthe analysis oftestimony includes the names ofall interested groups or associations offering comment on the proposed new, amended and repealed rules and SIP revisions and theirposition 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 staffto make any non-substantive revisions to the rules necessary to comply with 

## Texas Registerrequirements. 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 ofthe Commission, the Chairman should transmit a copy ofthis 

## Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air

## Act, codified at42 U.S. Code Ann. §§ 

## 7401

- 7671q, as amended. This Order constitutes the Order ofthe Commission required by theAdministrative 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 ofanyportion shall not affect thevalidity 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 thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe 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 Register56424). 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 ofthe Federal Clean Air Act (FCAA) and are approvable into the SIP. Specificaily, those concern definitions for the Plant-Wide Applicability Limit (PAL) rules and otherchanges to the PAL rules to meetfederal 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 ac

### tion also ensures that the rules will meet the requirements of the FCAA, which requires that the elements of the SIP be en

### forceable, 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 stringentthan 

### EPA's definitions. In addition, this rulemaking action also ensuresthatthe rules will meet the requirements of the FCAA, which requires that the elements of the SIP be enforceable, include replicable elements, and en

### sure compliance and accountability. SECTION BY SECTION DISCUSSION



## ADOPTED RULES February 25, 

## 2011 36 

## TexReg 1305

### §116.12, NonattainmentandPrevention ofSignificantDeteriora

### tion Review Definitions The commission is adopting amendments to the definitions of theterms, "baseline actual emissions," "netemissions 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 thatthe 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 defi

### nition 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 ofthe 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 au

### thorized. 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 limttthe 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 conse

### quently the exclusion ofemissions 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 atthis 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 ofthe schedule and, therefore, expects that the in

### dustries named in the remaining portion ofthe 

### schedule will also submit appilcations for authorizing planned MSS overthe 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 ex

### cluded 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 Register56424)) 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 Register56441)). These amendments are necessary to ensure that both definitions are approvable as revisions to the SIP. 

### §116.115, General and Special ConditionsThe 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 similarchanges 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 ApplicabilityLimit PenmitApplication 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 majorstationary 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 ata majorstationary 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 "oremissions 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 ofcomments 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 1307system (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 ad

### ministrative 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 andAlterations 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 ofthe 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 oftypographical 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 subjectto 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 ofa more general statement that includes those standard permits adopted into the ruie. This change will facilitate any future adoptions or repeals ofstandard 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 ofthis rUle. The EPA in its September 15, 2010, final disapproval noted its objections to the State Pollution Control Projeel Standard Per**m~** (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 permitthat 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 thatthe rulemaking does not meet the definition of a majorenvironmental 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 ofthe economy, prodUelivity, competition, jobs, the environment, orthe 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 meetfederal 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 forfinal registrations underthis 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, oremission 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 mustdevelop 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 bythe 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 thatexcess emissions areviolations ofthe 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 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, §2001.0225(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." (CentralPower& LightCo. v. Sharp, 919 S.W2d



## ADOPTED RULES February 25,2011 36 

## TexReg 1309485, 489 (Tex. App. Austin 1995), writ denied with percuriam opinion respecting anotherissue, 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/. WaterAuth. 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 ofthe rulemaking isto 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 emis

### sions 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; ora 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 oth

### erwise 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 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 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 ofthe 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 SUbjectto 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 pollutantemissions 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 oroperators subjectto 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, in

### clude 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 ofsimilar 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 con

### tinuing 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 in

### consistent 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 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 demon

### strations. The objectives, control technology requirements, implementation strategy, and underlying rule language is necessarily differentwhen 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 1311be 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 ofsuch 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 ofthe 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 priorto 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 Register56424)). 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 ofthe 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 deter

### mined 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 com

### mission 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 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 au

### thorizes 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 pro

### cedures 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 Per

### mitting 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 howthe 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 ofa 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, 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 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 andPrevention a/SignificantDeterioration Review Dt;finitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules ofthe eommission, the terms used by the commission have the meanings commonly ascribed to them in the field ofair 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 SignificantDeterioration 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 ofa 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, orfor 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 ofnormal 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 ofactual 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 ofa 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 ofoperation, or both), and the most stringent ofthe 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, ofa 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 ofa different time period upon a determination that it is more representative ofnormal 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 ofFederal 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 regulated 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 ofweight 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 ofmaterial input, or maximum rate ofproduct output. Combustion process units will typieally use maximum rate of fuel input. For sources having multiple endproducts andraw materials, the owneroroperator shall considerthe primary productorprimary raw material when selecting a basic design parameter. The oVtner oroperator may propose an alternative basic design parameter for the source's process units to the executive director ifthe owner oroperator believes the basic design parameter as defined in this paragraph is not appropriate for a specific induSlt)· or type ofprocess unit. Ifthe executive director approves ofthe use ofan 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 ofthe basic design parameter. (B) Ifdesign 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 ofbuilding supports and foundations, laying ofunderground**pipewor~** and construction of pennanent storage structures. With respect to a change in method ofoperation, 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 ofthe 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 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" (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 ofcoal in the generation ofelectricity, or process steam that Was not in widespread use as ofNovember 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 ofa major station8l')· source ormajor modification, means thatthe owner or operator has all necess8J')· preconstruction approvals or permits and either has: (A) begun, or caused to begin, a continuous program ofactual on-site construction ofthe source, to be completed within a reasonable time; or (B) entered into binding agreements orcontractual obligations, which cannot be canceled or modified without substantial loss to the owneror 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 ofoperation (including fabrication. erection, installation, demolition. or modification ofan 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 ofdetermining ifa 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 ofits 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 airquality standard has been promulgated and any constituents or precursors for such pollutants identified by the United States Environmental Protection Agency; (B) any pollutantthat is subjectto any standard promulgated under Federal Clean Air Act (FCAA), §Ill; (C) any Class lorII 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 regulatednew sourcereviewpollutants unlessthe listed hazardous airpoilu· tant is also regulated as a constituent or precursor ofa general pollutant listed under FCAA, § I08. (15) Lowestachievable emissionrate--For any emitting fa· eility, that rate ofemissions ofa 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 ofany 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 peryear or more ofthe plaot.wide applicability limit (PAL) pollutant in an attainment area; orany 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 ofemissions



## 36 TexReg 

## 1314 February 

## 25, 2011 Texas RegisterOr more ofany 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 ofFederalRegulations (CFR) §5 J.l66(b)(l). A source thatemits. or hasthe potentialto emit a federally regulatednew 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 ofthe purposes ofthis definition whether it is a major stationary source, unless the source belongs to one ofthe categories ofstationary 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 ofa 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 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 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 ofoperation shall not include: (ij routine maintenance, repair, and replaeement; (ii) use ofan alternative fuel or raw material by rcason ofan orderunderthe Encrgy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by reason ofa natural gas curtailment plan Wlder the Federal Power Act; (iii) use ofan alternative fuel by reason ofan order or rule of42 United States Code, §7425; (iv) use ofan alternative fuel at a steam generating unitto the extent thatthe fuel is generated from municipal solid waste; (v) use of an alternative fuel or raw material by a stationary source thatthe source was capable ofaccommodating before December21, ]976 (unless such change wouldbc prohibited underany 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 ofa pollutant at a site that occurs under an existing plant-wide applicability limit; (u) the installation, operation, cessation, orremoval ofa 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 oroperation ofapermanent 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 ofa 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 ofprevention 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 ofa physical change in, or change 

### in thc method ofoperation ofa stationaJ)' source only to the extent that the new level ofemissions exceeds the baselinc actual emission rate. Emission increases at facilities under a**plant~wide** applicability limit are DOt creditable. (C) A deerease inemissions is creditable only to the extent that all ofthe following conditions are met: (i) the baseline actual emission rate exceeds the new levcl ofemissions; (ii) it is federally enforceable at and after the time that aetual construction on the particular change begins; (iii) the executive director has notrelied onit in issuing a prevention ofsignificant deterioration or anonattainment pennit; (iv) the decrease has approximately the same quali· tatiye significanec for public health and welfare as that attributedto the incrcase from the particular change; and (v) in the case ofnonattainment 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 whenthe cmissions uniton 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 ofemissions 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 ofthis 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 ofa previous nonattainment or prevention ofsignificant deterioration pennit. (22) Plant-wide applicability limit--An emission limitation expressed, in tons peryear, for a pollutant at a major stationary source, that is enforceable and established in a plant-wide applieability limit permitunder §116.186 of this title (relating to General and Special Conditions). (23) Plant·wide applicability limit effective date-·The date ofissuancc ofthe plant-wide applicability limitpermit. The plant-wide applicability limit effective date for a plant-wide applicability limit established in an existingflexible pennitisthe date thatthe flexible pennit was issued. (24) Plant-wide applicability limit major modifieation--Any physical change in, or change in the method ofoperation 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. (25) Plant-wide applieability limitpermit--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 itsphysical 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 ofoperation or On the type or amOunt ofmaterial combusted. stored, Or processed, rna)' be treated as part ofits 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 ofnet emissjons 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, ifthe 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 ofthe 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 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, 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 ofbusiness 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 ofemissions 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 betweenthe potential to emit from the facility following completion ofthe 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 of40 Code ofFederal Regulations §60.15(b)(I), orthe 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 ofthe 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 shallbe generated from shutting down the existing facility that is replaced. A replacement facility is comidered an existing facility for the purpose ofdetermining federal new source review applicability. (32) Secondary emissions-Emissions that would oceur as a result ofthe construction or operation ofa 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 ofthe 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 ofa motor vehicle, from a train, or from a vessel. (33) Significantfaeility·-A facility thatemits orhas 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 thatthe 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 amountthat is equal to or greater than the significant level for that PAL pollutant. (34) Small facility--A facility thatemits orhas the potential to emitthe 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 installationthatemits ormay emitany airpollutant subjectto 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 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 thatthe 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 1317Robert 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 underTexas 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 ofthe Texas Clean AirAct. The amendments are also adopted underTHSC, §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~** ofthe state's air; THSC, §382.012, concerning State Air Control Plan, Which au

### thorizes 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 autho

### rizes 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 Modifica

### tion of Existing Facility, which prescribes howthe 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 au

### thorizes the commission to require sampling and monitoring of a permitted federal source or facility; THSC, §382.0515, concem

### 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 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 forthe 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 Proce

### dures, 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 thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe 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. §JJ6. J 80. Applicability. (a) The following requirements apply to a plant-wide applica**bilj~'** 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; itmay not beissued fora new major stational'): source as defined in 40 Code ofFederal Regulations §51.165(iv)(A). (b) The new O'oVIler ofa major stationary source shall eomply with §1l6.110(e) ofthis 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 ofa facility, or emissions unit at a major stationary source, but prior to the transfer ofa 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. (c) The owner ofthe facility, emissions unit at a major stationary source, group offacilities, or account or the operator ofthe facility, emissions unit at a major stationary source, group offacilities. or account that is authorized to act for the o'oVIler is responsible for complying with this section, except as provided by subsection (b) ofthis section. §116.182. Plant-wide Applicability LimitPermitApplication. 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 oroperator ofthe proposed facility shall submit information to the cotnmission that demonstrates that all ofthe following infonnation is submitted: (1) a list ofall facilities, or emissions units at a major stational')' source, that emitthe PAL pollutant, including their registration or permit number, their potential to emit, and the expected maximum capacity. In addition, the O'oVIler or operatorofthe source shall indicate which, ifany, 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 andSpecial Conditions. (a) The plant-wide applicability limit (PAL) will impose an annual emission limitation in tons peryear, 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 ofestablishing a PAL, the major stationary source owner oroperator 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 ofthe 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 oremissions units at a major stationary: source included inthe 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 ofthe 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 ofthe permit. (4) Recordkeeping and reporting. (A) A copy ofthe 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 1319recordkeeping requirements may be specified in special conditions attached to the PAL pennit. (B) The owneroroperator shall retain acopy ofthePAL permit application and any applieations for revisions to the PAL. each annual certification ofcompliance under § 122.146 ofthis title (relating to Compliance Certification Tenns and Conditions), and the data relied on in certifying the complianct: for the duration ofthe PAL plus five years. (C) A semiannual report shall be submitted to the executive director within 30 days ofthe end ofeach reporting period that contains: (i) the identification ofowner 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 calibrationchecks), and any corrective actiontaken. 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 ofa shutdown ofany monitoring system, whetherthe shutdown was permanent ortemporary, 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 ofthc 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 ofemission 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 thatthe holderwill comply with all rules and orders ofthe commission issued in conformity with the Texas Clean Air Act and the conditions precedentto the granting ofthe pennit Ifmore thanone state or fedcral rule or PAL permit condition is applicable, the most stringent limit or condition will govern andbethe standard by which compliancemustbe demonstrated. Acceptance includes consentto the cntrance ofcommission employees and agents into the permitted premiscs at reasonable times to investigate conditions relating to the emission or concentration ofair 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 oroperational restrictions for a facility during any period oftime thatthere 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 amonitoring 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. (11) Renewal. Ifa PAL renewal application is submitted to the executive directorin accordance with §116.196ofthis title (relating to Rcnewal ofa Plant-wide Applicability Limit Pennit), the PAL shall not expire at the end ofthe 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 ofthis subchapter, the definitions of the following tenns are the same as those provided in 40 Code ofFederal 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 PALmonitoring system must accurately detennine all emissions ofthe PAL pollutant in terms ofmass per unit oftime. 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 ofthe 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 ofvalidating the published content ofthe PAL pollutant that is contained in, or created by, all materials used in or at the facility; (ii) assume thatthe facility emits all ofthc PAL pollutantthatis contained in, orcreated by, any raw material or fuel used in or atthc facility, ifit cannot otherwise be accounted for in the process; 

### and (iii) where the vendor of a material or fuel that is used in oratthc facility publishes arange ofpoUutantcontentfrom such material, the owncror 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 ofthe faeility. (ii) Eaeh CPMS orPEMS must sample, analyze, and record data at leastevery 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, ifappropriate, to account for the degree of uncertainty or limitations in the factors' development. (ii) The faeility must opemte within the designated range ofuse for the emission factor, ifapplieable. (iii) Iftechnieally practieable, the owner oropemtor ofa signifieant faeilil)' that relies on an emission factor to calculate PALpollutantemissions shall conductvalidationtesting to detennine a site-specific emission factorwithin six months ofPAL permit issuance, unless the executive director detennines thattesting 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 owneroroperatorofafacilil)' cannotdemonstrate a correlation between a monitored parameter(s) andthe 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 ofthe 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 andPrevention 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 ofmajor new source review under this subchapter, ifthe increase does not exceed the PAL. (b) Atno time are emissions reductions ofa PAL pollutantthat occur during the PAL cffective period creditable as dcereases for purposes ofoffsets, 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 restrietions on relaxing enforceable emission limitations to avoid new source review. 

### §1 J 

### 6.192. Amendments andAlterations. (a) Any increase in aplant-wide applicabilil)' limit (PAL) must be made through amendment. Amendment applications must also include the information identified in §116.l82 ofthis 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 ofthe baseline aetual emissions ofthe small faeilities, plus the sum ofthe baseline actual emissions ofthe significant and major facilities assuming application offederal best available control technology (BACT) (as identified in §116. 160(c)(1 )(A) ofthis title (relating to Prevention ofSignificant Deteriomtion Requirements» equivalent controls, plus the sum ofthe 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 offedeml 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 ofSubchapter B, Division 5 and Division 6 ofthis chapter (relating to Nonattainrnent Review Permits; andPrevention ofSignificantDeteriorationReview, 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 ofthe magnitude ofthe 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 ofthe baseline aetual emissions ofthe significant and major emissions units after the application offederal BACT equivalent controls as identified in paragraph (1) ofthis subsection, plus the sum ofthc baseline actual emissions ofthe small emissions units. (b) Changes to PAL pemits that do not require the PAL to be increasedmustbe completedthrough pennitalteration. Unless allowed in the PAL pennit special conditions, the 

### penni! holder shall submit an alteration request prior to start ofeonstroetion 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 ofthe facilities ifthe 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 ofemissions 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 of40 Code ofFederal Regulations (CFR) §51.165(a)(3)(ii) for use as offsets; and (C) revise the PALto reflect an increase in the PAL provided the owner oroperator complies with the requirements of40 CFR §52.21(aa)(11) and §51.165(f)(lI). (2) During the PAL effectiveperiod, 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 thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe 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 underTexas 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 ofthe 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 ofthe 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 howthe 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 ControlProject StandardPermit. (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 orreplacementofemissions control equipment; (B) the implementationorchange to control techniques; or (C) the substitution ofcompounds used in manufacturing proeesses.(3) This standard permit must not be used to authorize thc installation ofemission control equipment or the implementation ofa control technique that: (A) constitutes thc complete replacement ofan existing production facility or reconstruction ofa production facilitl' as defined in 40 Code ofFederal Rcgulatioos §60.15(b)(I) and (c): or (B) the cxecutive director determines there are health effects concerns orthepotential to exceedanational ambientairquality standard criteria pollutant or contaminant that results from an increase in emissions ofany air contaminant until thosc concerns are addressed by the registrant to the satisfaction ofthe executive director; or (C) returns afacility orgroup offacilities to compliance with an existing authorization or permit unless authorized by the executive director. (4) Priorto 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 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 anniversBJ')' and renewal ofthe original registration, or until administratively incorporated into the facilities· permit, ifapplicable. (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 registrations will be accepted and no existing registrations will be renewed. (b) General requirements. (I) Any claim underihis standard permitmust comply with all applieable conditions of: (A) §116.604(1) and (2) ofthis title (relatiog to Duration and Renewal ofRegistrations 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 of this title (relating to Registration to Use a Standard Permit); (E) §1l6.614 ofthis title (relating to Standard Pennit Fees); and (F) §1l6.615 of this title (relatiog to General Cooditions). (2) ConstructionOr implementation ofthe pollutioncontrol project must begin within 18 months ofreceiving 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 ofthe registration application. (5) Any increases 

### in actual or allowable emission rates or any increase in production capacity authorized by this section (ineluding increases associated withrecovering lostproduction capaeity) must occur solely as a result ofthe project as represented in the registration application. Any increases ofproduction 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.nemissions may be increased above currently authorized levels ifthe increase is necessary to implement the replacement project and maintenance, startup, and shutdown emissions were authorizedfor 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, orrecords may be proposed by the applicant for review and approval ofthe executive director. (d) Registration requirements. (1) Aregistration must be submitted in accordance withthe foUowing. (A) If there are no increases in authorized emissions ofany 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) Ifa 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 executivedirectorwithin 30calendardays ofreceiptby theTexas 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 aircontaminant, a notification or lettermust 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 authorizedemissions ofany aircontaminantresulting from the pollution eontrol projeet. a registration**a1te~ation** must be submitted no later than 30 days prior to the start ofconstruction or implementation ofthe Change. 

### The registration must be aceompanied by a $450 fee, unless received within 180 days ofthe 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 ofthe project; (C) identification ofexisting pennits orregistrations 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 ofproposed monitoring and recordkeeping that will demonstrate that the project decreases or maintains emission rates as represented; and (F) a description ofhow 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 ofparagraphs (1) and (2) ofthis subseetion. (I) General duty. The Omler or operator must operate the pollution control project in amannerconsistentwith 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 orotheremission records to prove thatthe 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 ofcontrol or teehniqueauthorized by this standardpennit insteadofapermitamendment under §l 16.110 ofthis title (relating to Applicability) at a previ. ously pennittedorstandardpermitted 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 ofcontrol or technique authorized by this standard permit for facilities previously authorized by a pennit by rule must comply with §I06.4 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 thatthe adoption has been reviewed by legal counsel and found to 

### be a valid exercise ofthe 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 ofareas forthe eight-hourozone 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 EPAto designate areas nonattainment, 

### attainment, or unclassifiable no laterthan one yearafterthe 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 ofthat 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 of40 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: 20I0-1476-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 detectors 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 ofa 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 : wastewatertreatment 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 Registerd 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 ofthis order may be obtained co !acting Stephanie 1. Frazee, StaffAttorney at(512) 239-3400, Tex mmission onEnvironmental 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 ofthis order contacting Laurenc' Fasoyiro, Staff Attorney Texas Commissio on Environmental Quality, Austin, Texas 787. 1·3087. An agreed order as entered regarding Cit)' ofDallas Docket No.2 -2053-WQ-E on February 14,2011 in administrat' e penalties. Information ncerning any aspect ofthis order may be contacting y L. Mitchell, StaffAttorney at(512) 239-3 00, Texas Commissi n onEnvironmental 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 ofthis order may b obtained by contacting M hall Coover, StaffAttorney at (512) 2 -0620, Texas Commissionon 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 ofthis 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 onEnvironmental Q 

## r , P.O. Box 13087, Austin, Texas 78711-3087. 

# •

• 

# • • the repeal of§ 116.121 in the February 25. 201 L issue ofthe TexasRegister (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 TexasCommissiononEnvironmental Quality (TCEQ) adopte e repe of30 TAC §106.352 andnew §106.352 inthe 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. Onpage 340 e on-line graphic, Table 9, first colum , the tenth row should read: "Instrumentmonit . g is notrequiredwhenthe a sure or vapor press is less than 0.044 psia at process operating te rature. "



## INADDITION March 4, 

## 2011 36 

## Tex.Reg 1591