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TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Lommissioner

Carlos Rubinstein, Commissioner

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

Protecting Texas by Reducing and Preventing Pollution

91 7108 2133 3935 2304 8271

Docket No. 2008-1631-RUL

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Alfredo Armendariz, Ph.D.

Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

~Oll

March 11, 2efft

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 § 101.1 of 30 TAC Chapter 101, General Air Quality

Rules, and §§ 116.12 and 116.150 of 30 TAC Chapter 116, Control ofAir Pollution by Permits for

New Construction or Modification, and corresponding revisions to the state implementation

plan. The rulemaking amends definitions in Chapter 101 to remove language regarding specific

maintenance and nonattainment areas. In addition, Chapter 116 is amended to remove

language indicating that the one-hour thresholds and offsets are not effective unless the United

States Environmental Protection Agency (EPA) promulgates rules, and to add a requirement for

continued applicability of nonattainment New Source Review until the EPA approves its

removal for areas attaining the ozone national ambient air quality standard. Finally, the rule

amendments address issues identified by the EPA in its disapproval notice published in the

Federal Register on September 15, 2010

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

ofthe public hearings, and the accompanying order for this rulemaking.

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

amended and adopted by the Commission on May 25, 2005, effective on June 15, 2005.

Although EPA's records contain this 2005 submittal, the Commission is supplying, as part of

this transmittal, this previously submitted rulemaking to ensure that EPA reviews the new

submittal together with the 2005 submittal.

I look forward to your expeditious approval of these SIP revisions.

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
Sincerely,

~~t~~J.,. BWSjjbh

Enclosures
cc: The Honorable Rick Perry, Governor of Texas

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

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality
Docket No. 2010-0625-RUL

THE STATE OF TEXAS

COUN1YOFTRAVIS

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

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

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

Commission on Environmental Quality (Commission).

Steve Hagle

Director, Air Permits Division

Texas Commission on Environmental Quality
Texas Commission on

Environmental Quality

Public Hearing

September 20,2010

30 TAC Chapter 10 I

General Air Quality Rules

30 TAC Chapter 116

Control of Air Pollution by Permits

for New Construction or Modification

Rule Project No. 2008-030-116-PR

One-hour Ozone Major Source Thresholds and Emission Offsets
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 101, General

Rules and 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or

Modification; and corresponding revisions to the Texas state implementation plan (SIP).

This rulemaking would changes the defmitions of the terms maintenance area and nonattainment

area in Chapter 101 by removing language regarding specific areas and referencing the

defmitions in the federal rule. Also, it revises §116.150 to apply the requirements ofthis section

as of the date of issuance of the permit rather than the date when the permit is declared

administratively complete. The rulemaking removes language stating that one-hour ozone

thresholds and offsets will not be required unless the EPA promulgates rules. Additionally, it

adds language to Chapter 116 that makes clear that areas subject to NNSR requirements remain

so until the EPA approves removal.

The comment period closed on September 27, 201 O. All testimony and comments have been

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

hearings and is divided into the following four sections:

• Public Notification and Proposal

• Written and Oral Testimony

• Evaluation ofTestimony

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

35 Circle, Austin, Texas 78753. For further information, contact Blake 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, 20 I0

August 13, 20 I0

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

TexReg 7935).

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

7676).

4. Correspondence forwarding the notice ofpublic hearing to the following officials and

agencies:

Speaker ofthe House

Lieutenant Governor

City ofEI Paso

City of Victoria 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

Fort Worth Star-Telegram

August 13,2010

Star-Thlegram

Jt?od'-O 30-116 f)

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11/131201 0
Proposal for Decision

The State Office of Administrative Hearings issued a Proposal for De·

cision and Order to the Texas CommissLon on Environmental Quality on August 11, 2010, in the matter of the Executive Director of

the Texas Commission on Environmental Quality, Petitioner v. Jason Rustman; SOAH Docket No. 582-10-2134; TCEQ Docket No.

2008~1514-WQ-E. The eommission will consider the Administrative

Law Judge's Proposal for Decision and Order regarding the enforcement action againstJason Rustman on a date and time to be determined

hythe Office ofthe ChiefClerk in Room 20lS ofBuildingE,I2100 N.

Interstate 35, Austin, Texas. This posting is Notice of Opportunity to

Comment on the Proposal for Decision and Order. The comment period will end 30 days from date ofthis publication. Written public comments should be submitted to the Office of the Chief Clerk, MC·105,

TCEQ, P.O. Box 13087, Austin, Texas 78711-3087. If you have any

questions or need assistance, please contact Melissa Chao, Office of

the Chief Clerk, (512) 239-3300.

TRD-201004770

LaDonna Castanuala

Chief Clerk

Texas Commission on Environmental Quality

Filed: AllguB118, 2010

Public Hearing on Proposed Revisions to 30 TAC Chapters

101 and 116 and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed re·

visions to 30 Texas Administrative Code (TAC) Chapter 101, General

Air Quality Rules, §I01.1, and Chapter 116, Control ofAir Pollution hy

Permits for New Construction or Modification. §116.12 and §116.150;

and corresponding revisions to the state implementation plan (SIP), un~

derthe requirements ofTexas Health and Safety Code. §382.017; Texas

Government Code, Chapter 2001, Subchapter B; and 40 Code of Federa! Regulations §51.102 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs.

The proposed rulemaking would amend definitions in Chapter 101 to

remove language regarding specific maintenance and nonattainment areas. Additionally, the proposed rnIemaking would amend Chapter 116

to remove language indicating that the one-hour thresholds and offsets are not effectivc unless the EPA promUlgates rules. The proposed

rulemaking would also amend Chapter 116 to add a requirement for

continued applicabiJity ofnonattamment New Source Review until the

EPA approves its removal for areas attaining the ozone national ambient air quality standard. In addition, the proposed rules address issues

identified by the EPA in its September 23, 2009, disapproval notice.

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

on September 20, 2010, at 2:00 p.m. in Building E Room 201 S, at

the commission's central office located at 12100 Park 35 Circle. The

heRring is structured for the receipt of oral or written comment<; by interested persons. Individuals may present oral statements when called

upon in order of registration. Open discussion will not be permitted

during the hearing; however, commission staff members will be avail·

able to discuss the proposal 30 minutes prior to the hearing.

LeDonna Castafiuele

Chief Cieri<

Texas Commission on Environmental Quality

Filed: August 18, 2010

Waste Landfill on the southeast side ofOdem; approximately 200 feet

from the end ofCoUDty Road 49 and approximately 1.8 miles southeast

ofthe intersection ofU.S. Highway 77 and Fann-to-Market Road 631

in San Pamcio County, Texas 78370.

CITY OF HOUSTON has applied for a renewal ofTPDES Permit No.

WQOOI0495150 which authorizes the discharge of treated domestic

wastewater at a daily average flow not to exceed 700,000 gallons per

day. The facility is located approximately 600 feet east of U.S. Highway 59 at Greens Bayou Bridge on the south bank of Greens Bayou in

Harris County, Texas 77050.

CITY OF WESLACO has applied for a renewal of TPDES Pennit

No. WQOOI0619005, which authorizes the discharge of treated domestic wastewater at an annual average flow not to exceed 2,500,000

gallons per day. The facility is located at 5210 South Midway Road,

approximately 0.2 mile west and 0.6 mile north of the confluence of

the South Donna Drain and Llano Grande Lake and approximately 3.2

miles SO\lth ofthe Missouri·Pacific Railroad southwest of the City of

Weslaco in Hidalgo County, Texas 78596.

CITY OF BEASLEY has applied for a renewal ofTPDES Pennit No.

W QOO 11 45000 I, which authorizes the discharge of treated domestic

wastewater at a daily average flow not to exceed 125,000 gallons per

day. The facility is located approximately 3,000 feet east of the intersection ofU.S. Highway 59 (Southwest Freeway) and Farm·to-Market

Road 1875, approximately 3,000 feet west-southwest of the intersection ofU.S. Highway 59 and Eslieb Road, On the frontage ofEmerson

Road south ofthe City of Beasley in Fort Bend County, Texas 77417.

GALVESTON COUNTY WATER CONTROL AND IMPROVE·

MENT DISTRICT NO. 12 has applied for a renewal ofTPDES Pennit

No. WQOOI2039001, which authorizes the discharge of treated domestic wastewater at an annual average flow not to exceed 1,000,000

gallons per day. The facility is located approximately 500 feet east

of State Highway 146 and approximately 2,500 feet southeast of the

intersection of Fann-to-Market Road 518 and State Highway 146

(adjacent to 524 Cien) in Galveston County, Texas 77565.

SKYMARK DEVEWPMENT COMPANY INC has applied for a rna·

jor amendment to TPDES Permit No. WQOOl4793001 to authorize the

relocation of the facility and the point of discharge. The application

also, is a rcquest to continue authorization for the discharge oftreated

domestic wastewater at a daily average flow not to exceed 800,000 gal.

Ions per day. The facility will be located on the north side ofthe 18,200

block ofRaven Rock Lane in Fort Bend County, Texas 77469.

HAPPY HILL FARM CHILDREN'S HOME INC has applied for a

new permit, Proposed TCEQ Permit No. WQ0014976001, to authorize the disposal oftreated domestic wastewater at a daily average flow

not to exceed 20,000 gallons per day via surface irrigation of 38 acres

of non-public access agricultural land. The facility was previously

permitted under Pennit No. WQOOl1638001 which expired May I,

2009. This permit will not authorize a discharge ofpollutants into waters in the State. The wastewater treatment facility and disposal site

are located approximately 2.0 miles northeast of the intersection of

U.S. Highway 67 and State Highway 144 in Somervell County, Texas

76048.

If you need more infonnation about these permit applications Or the

permitting process, please call the TCEQ Office of Public Assistance,

Toll Free. at 1-800-687-4040. General infonnation about the TCEQ

can be found at our web site at www.TCEQ.state.tx..us. Si desea informacion en Espaftol, puede Hamar aI1-800-687-4040.

TRD-201 004768

+

+

+

+

+

+

IN ADDITION August 27, 2010 35 TexReg 7935
Public N olice

The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for

Medical Assistance, under Title XIX of the Social Security Act. The

proposed amendments are effective September 1.2010.

The first adjuslInent to the proposed rates related to the no-cost inpatient hospital rebasing initiative complies with tbe 2010-2011 General

Appropriations Act (Anicle n, mISC, Rider 68, Senate Bill 1. 8lst

Legislamre, Regular Session, 2009). This rider requires HHSC to rebase acute care bospital rates within available funds (at no additional

cost). Specifically, the legislation requires HHSC to update the payment division standard dollar amounts (PDSDAs) and diagnosis related

Notice of Correction

The Texas Health and Human Services Commission (HHSC) with~

draws its intent to submit Amendment 944, Transmittal Number TX

10--051, to the Texas State Plan for Medical Assistance, under Title

XIX of the Social Security Act, wbicb would have proposed to cover

certain pharmacy supplies as part of the borne bealth benefit that may

be provided by a licensed pbarmacy provider. llliSC intends to submit

the amendment with updated language at a later date. HHSC will notify the public when tbe amendment is finalized and will accept public

comment at that time.

Please direct questions regarding the amendment to Barbara Dean, Policy Analyst, by mail at the Texas Health and Human Services Commission. P.O. Box 13257, H-600, Austin, Texas 78711; by telepbone at

(512) 491-1I 01; by facsimile at (512) 491-1953; or by e-mail at Barbara.Dean@hhsc.state.tx.us.

TRD-201004656

Steve Aragon

Chief Counsel

Texas Health and Human Services Commission

Flied: August 11, 2010

Persons who have special communication or other accommodation

needs who are planning to attend the hearing sbould contact Cbarlotte

Hom, Office ofLegal Services at (512) 239-0779. Requests should be

made as far in advance as possible.

Written comments may be submitted to Devon Ryan, Me 205,

Office of Legal Services, Texas Commission on Environmental

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

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

http://wy..·w5.tceq.state.tx.us/ruleslecamments/. File size restrictions may apply to comments being submitted via the eComments

system. All comments should reference Rule Project Number

2008-030-116-PR. The comment period closes September 27,

2010. Copies of the proposed IUlemaking can be obtained from the

commission's Web site at http://www.tceq.state.tx.uslnavlruleslpropose_adapt.hlml. For further information, please contact Blake

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

TRD-201004712

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Flied: August 13, 2010

• • •

Texas Health and Human Services Commission

Texas Boarding House Model Standards

Introduction: The Legislature througb House Bill 216, 81st Legislature, Regular Session, 2009, crealed Health aod Safety Code Cbapter

254, Boarding Home Facilities. Section 254.003 directs the Health and

Human Services Commission (HHSC) to develop and publish model

standards for the operation ofboarding home facilities relating to: construction and remodeling ofboarding homes; sanitary and related conditions; the reporting and investigation of injuries, incidents, and unusual accidents and the establishment of policies and procedures to

ensure resident health and safety; assistance with self-administering

medication; requirements for in-service education ofthe facility's staff;

criminal history record checks; assessment and periodic monitoring to

ensure that a resident does not require personal care, nursing or other

services and is capable ofself-administering medication. The legislation further directed HHSC to make the model standards available to

local counties or municipalities tbat choose to require boarding homes

to obtain a pennit to operate the boarding home.

Definitious:

A. Boarding bome facility means an establishment that:

1. furnishes, in one or more buildings, lodging to three or more persons

with disabilities or elderly persons who are unrelated to the owner of

the establishment by blood or marriage; and

•••

group (DRG) factors with more recent cost data and to proportionately

reduce the PDSDAs within available funds.

In addition, thc Legislativc Budget Board (LBB) and the Governor's

Office informed HHSC in a letter dated May 17,2010, oftheir revision

to the Spending Reduction Plan for the 201 0-2011 Biennium submitted

by HHSC in response to the January 15, 2010. letter from the Governor, Lieutenant Governor, and Speaker requesting a spending reduction proposal. In response to this direction, llliSC proposes to adjust

payments for inpatient bospital services. The result ofthis revision is

that the payment rates for inpatient bospital services reimbursed under (DRG) prospective payment system (with the adjustments for the

no-cost rebasing) will be reduced by one percent effective September

1,2010, consistent with the May 17, 2010, direction from the LBB and

tbe Governor's Office. The rates are proposed to be effective September I, 2010.

The proposed amendment:s are estimated to result in an additional. annual aggregate expenditure reduction of $2,597,824 for the remainder of federal fiscal year (FFY) 2010, with approximately $1,842,897

in federal funds and $754,927 in State General Revenue (GR). For

FIT 2011, the estimated additional aggregate expenditure reduction

is $31, 173,~92, with approximately $19,687,871 in fede",1 funds aod

$11,486,021 in GR.

Interested panies may obtain copies of the proposed amendment by

contacting Kevin Nolting, Director ofRate Analysis for Hospital Services, by mail at the Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 85200, H-400, Austin, Texas

78708-5200; by lelepbooe at (512) 491-1348; by facsimile at (512)

491-1998; or bye-mail atKevin.Nolting@hhsc.state.tx.us. Copies of

the proposals will also be made available for public review at the local

offices ofthe Texas Department of Aging and Disability Services.

TRD·201004756

Steve Aragon

Chief Counsel

Texas Health and Human Services Commission

Filed: August 17, 2010

•• •

35 TexReg 7936 August 27,2010 Texas Register
(aHg) and Subsection (i) expire September 1, 2007. Those

subsections contain the requirement that the Division develop

a list of doctors licensed in this state who are approved by

the Division (ADL) to provide health care services under the

Ad, eligibility requirements for those doctors. and rulemaking

authority related to the ADL. Section 402.00111 provides that

the Commissioner of Workers' Compensation shall exercise all

executive authority, including rulemaking authority, under the

Labor Code. Section 402.061 provides that the Commissioner

of Workers' Compensation shall adopt rules as necessary for

the implementation and enforcement of Title 5, Labor Code.

The following statutes are affected by this proposal: 28 TAC

§180.20 and §180.26 - Labor Code §408.023(k) and §415.021.

§180.20. Commission Approved Doctor List.

§180.26. Doctor and Insurance Carrier Sanctions.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office ofthe Secretary of State on August 17, 2010.

TRD-201004760

Dirk Johnson

General Counsel

Texas Department of Insurance, Division 01 Workers' Compensation

Eartiest possible dale of adoption: September 26,2010

For further information, please call: (512) 804-4703

• • •

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 101. GENERAL AIR QUALITY

RULES

SUBCHAPTER A. GENERAL RULES

30 TAC §101.1

The Texas Commission on Environmental Quality (commission

or TCEO) proposes an amendment to §101.1.

The proposed amendment to §101.1 will be submitted to the

United States Environmental Protection Agency (EPA) as a revision"to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULE

- The EPA rules implementing the 1997 eight-hour ozone standard

did not require regulated entities to continue to use the more

stringent major source thresholds and emission offset requirements of the one-hour ozone standard that previously applied to

them when implementing New Source Review (NSR) and Title V

permitting for the 1997 eight-hour ozone standard. The EPA rule

(known as Phase I) was successfully challenged in South Coast

Air Quality Management District v. EPA (South Coast) 472 F.3d

882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying thet

the vacatur was limited to the issues on which the court granted

the petitions for review). The EPA has interpreted the court ruling as restoring NSR applicability thresholds and emission offset

requirements under the one-hour ozone standard. The South

Coast decision was upheld by the Supreme Court on January

35 TexReg 7676 August 27,2010 Texas Register

14,2008. TCEO is proposing concurrent amendments to 30 TAC

Chapter 116 that make clear that permitted facilities in areas that

are nonattainment for the one~hour ozone standard are subject

to major source thresholds and emission offsets of the one-hour

ozone standard on the effective date of the adopted rules.

In order to prevent future confusion over designations and

classifications and their related applicability thresholds and

emissions offset requirements, TCEQ is proposing changes to

the definitions in §101,1(54), concerning maintenance area,

and §101.1(70), concerning nonattainment area. Because

maintenance and nonattainment areas and their boundaries are

SUbject to change based on federal actions, this amendment will

eliminate references to specific maintenance and nonattainment

areas in favor of a more general definition that indicates the

federal regUlations that define these areas and the federally

applicable designations and classifications. In order to ensure

that the public has access to up to date information regarding

the specific descriptions of nonattainment and maintenance

areas, the commission regularly posts information regarding

the designation process for new national ambient air quality

standard (NAAOS) on the TCEO pUblic Web site.

Staff has previoUSly presented this rule amendment (RUle

Project 2008-030-116-PR) to the commission for consideration.

At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's

staff in anticipation of additional direction or action by the EPA,

because EPA continued to indicate in various federal notices its

intent to complete rulemaking regarding NSR anti-backsliding

requirements post the South Coast decision. EPA's proposed

rule to implement the 1997 8-hour ozone NAAOS revision on

subpart 1 reclassification and anti-backsliding provisions under

the former 1·hour ozone standard was published in the January

16, 2009, Federat Register, but has not yet been finalized. This

proposed rulemaking removes language regarding the exemptions from nonattainment new source review (NNSR) that were

vacated by South Coast. On September 23, 2009, the EPA

pUblished notice of the proposed disapproval of past revisions

to the Texas NNSR SIP (74 Federal Register 48467, September

23, 2009) that are related to this proposed amendment. In an

effort to ensure that TCEO regulatory requirements regarding

the NNSR permitting program meets the requirements of the

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

the commission is proposing an amendment to eliminate any

deficiencies that would prevent approval.

SECTION DISCUSSION

§101.1, Definitions

The commission proposes to amend the definition of maintenance area in §101.1(54). This amendment removes the specific descriptions of maintenance areas within the state in favor of a more general definition that makes clear that these ar·

eas are designated by federal action. Similarly, the commis·

sion proposes to amend the definition of nonattainment areas

in §1 01.1 (70) to remove all references to specific nonattainment

areas in §101.1(70)(A) - (G) and retain those parts of the definition that refer to federal regUlations and the Federal Register. These changes help ensure that When changes are made

to maintenance areas and nonattainment areas as a result of

federal action, these rules will not be rendered incorrect. Also,

for the one-hour ozone NMQS, the designations and classifica·

tions in 40 Code of Federal Regulations (CFR) Part 81 Were retained by EPA for purposes of anti-backsliding, 70 Federal Regisler 44470 (Augusl 3, 2005). Upon determination by EPA that
any requirement is no longer required for purposes of anti-backsliding, the requirement will no longer apply. Additionally, the definition of reportable quantity contains references to §1 01.1 (70) in

§1 01.1 (88)(A)(i)(I1I)(-e-), (-0-), (-w-), (-pp-), and (-zz-) that would

be incorrect based on the proposed amendment to §101.1(70).

The commission is proposing an amendment to §101.1(88) that

corrects these references.

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

rule is in effect, no fiscal implications are anticipated for the

agency or other units of state or local governments as a result

of administration or enforcement of the proposed changes to

Chapter 101.

The proposed rulemaking would amend Chapter 116 and Chapter 101 to ensure the criteria of the one-hour ozone nonattainment rules for major source emission thresholds and emission

offset requirements are properiy implemented according to the

EPA's interpretation of recent federal court decisions. The fiscal

impacts of amendments to Chapter 116 are detailed in the preamble for that proposed rule change.

This fiscal note details the fiscal impacts of the proposed amendment, which is administrative in nature. Thus, the proposed rule

is not expected to have any fiscal impacts on local governments

or other regulated entities that own or operate major emission

sources in ozone nonattainment areas of the state. The proposed amendment to Chapter 101 amends definitions so that

the chapter is updated to reflect recent federal court. decisions

that affect the ozone standards, thresholds. and emission offset requirements found in the proposed changes in Chapter 116.

The proposed rulemaking will prevent confusion among the regulated community and ensure more clarity when detennining

which ozone nonattainment standards, thresholds, and emission offsets apply when facility modifications occur and permit

reviews are conducted.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first

five years the proposed rule is in effect, the pUblic benefit anticipated from the changes seen in the proposed rule will be clarity and consistency in the imptementation of ozone standards,

thresholds, and emission offset requirements.

The proposed amendment to Chapter 101 updates definitions

in order to refiect standards from recent federal court decisions

that affect the ozone standards, thresholds, and emission offset

requirements found in the proposed changes to the companion

rulemaking for Chapter 116. The amendment is administrative

in nature and does not impose any new costs or generate cost

savings. Large businesses that own or operate major emission

sources are not expected to experience any fiscal implications

as a result of the proposed amendment to Chapter 101.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or mi·

cro·businesses as a result of the proposed rule, which is admin--

istrative in nature. Small or micro-businesses do not typically

own or operate facilities that meet the criteria for major emission

sources.

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 rule is required to protect the en·

vironment and comply with federal regulations. In addition, the

proposed rule is not expected to adversely affect a small or micro-business in a material way for the first five years that the

proposed rule is in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

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

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

proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS

The commission reviewed the proposed rulemaking in light olthe

regulatory impact analysis requirements of Texas Government

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

meet the definition of a major environmental rule as defined in

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

not be subject to the requirement to prepare a regUlatory impact

analysis.

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

which is to protect the environment or reduce risks to human

health from environmental exposure, and that may adversely af·

fect in a material way the economy, a sector of the economy, pro--

ductivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state. The specific intent of the proposed revisions are to add references to federal

regulations in certain definitions that are duplicative with federal

regulation that the state has no authority to legally change, and

to correct an inadvertent omission in the definition of Reportable

quantity. These changes will not adversely affect the economy,

a sector Or 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 since they are administrative in nature.

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

major environmental rule, which are listed in Texas Government

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

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

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

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

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

or contract between the state and an agency or representative

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

agency instead of under a specific state law.

The proposed rule would implement requirements of the FCAA.

Under 42 United States Code (USC), §7410, each state is reqUired to adopt and implement a SIP containing adequate provisions to implement, attain, maintain and enforce the NAAOS

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

the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate

in order to meet the NAAOS. This flexibility allows states, atPROPOSED RULES August 27, 2010 35 TexReg 7677
fected industry, and the pUblic, to collaborate on the best methods for attaining the NAAOS 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, §741 O. States

are not free to ignore the requirements of 42 USC, §7410, and

must develop programs to assure that their SIPS provide for implementation, attainment, maintenance. and enforcement of the

NAAOS within the state. One of the requirements of 42 USC,

§7410 is for states to revise their plans as necessary to take account revisions of the NAAOS. The proposed revisions will align

the state rules with federal requirements that the state has no

authority to change.

The requirement to provide a fiscal analysis of regulations in the

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

during the 75th Legislature, 1997. The intent ofSB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory 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 understanding that this reqUirement would seldom appty, 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 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 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 federallaw, then each of those rules would require the full regulatory

impact analysis (RIA) contemplated by SB 633. This conclusion

is inconsistent with the conclusions reached by the commission

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

in its fiscal notes. Since the legislature is presumed to understand the flscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the

LBB, the commission believes that the intent of SB 633 was only

to require the full RIA for rules that are extraordinary in nature.

While the proposed rule may have a broad impact, that impact

is no greater than is necessary or appropriate to rneet the reqUirements of the FCAA, and in fact creates no additional impacts since the proposed rule does not exceed the requirement

to attain and maintain the NAAOS. For these reasons, the pro--

posed rule falls under the exception in Texas Government Code,

§2001.0225(a), because it is required by, and does 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 Governrnent Code, but

left this provision substantially unamended. It is presumed that

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

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

interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d

35 TexReg 7678 August 27,2010 Texas Register

485, 489 (Tex. App. Austin 1995), wril denied with per curiam

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

Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App.

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

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mul. Auto

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); SOuthwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pel. denied); and Coastallndust. Water Au/h. v.

Trinity Portlend Cement Div., 563 S.W.2d 916 (Tex. 1978).)

The commission's interpretation of the RIA reqUirements is

also supported by a change made to the Texas Administrative

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

to limit the number of rule challenges based upon APA reqUirements, the legislature clarified that state agencies are required

to meet these sections of the APA against the standard of "substantial 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 proposed rule implements reqUirements of the FCAA,

specifically 42 USC, §7410. The speciflc intent of the proposed

revisions are to add references to federal regulations in certain

definitions that are duplicative with fedaral regulation that the

state has no authority to legally change, and to correct an

inadvertent omission in the definition of Reportable quantity.

The amendment was 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 Texas Clean Air Act), and the Texas Water Code, which are

cited in the STATUTORY AUTHORITY section of this proposal,

including Texas Health and Safety Code, §§382.01', 382.012,

and 382.017. Therefore, this proposed rulemaking action is not

SUbject to the regulatory analysis provisions of Texas 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 SUBMITTAL OF COMMENTS section of

this preamble.

TAKINGS IMPACT ASSESSMENT

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

governmental acUon that affects private real property, in whole or

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

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that 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 Iimils the owner's right to the property that would otherwise exist in the absence of the governmental action; and is

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

value of the affected private real property, determined by comparing the mari<et value of the property as if the governmental

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

The commission completed a takings impact analysis for the

proposed rulemaking action under Texas Government Code,

§2007.043. The primary purpose of this proposed rulemaking

action, as discussed elsewhere in this preamble, is to add
references to federal regulations in certain definitions that are

duplicative with federal regulation that the state has no authority

to legally change, and to correct an inadvertent omission in

the definition of reportable quantity. The proposed rule will

not create any additional burden on private real property. The

proposed nile will not affect private real property in a manner

that would require compensation to private real property owners

under the Unlled States Constitution or the Texas Constitution.

The proposal also will not affect private real property in a

manner that restricts or limits an owner's right to the property

that would otherwise exist in the absence of the governmental

action. Therefore, the proposed rulemaking will not cause a

taking under Texas Govemment Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this nllemaking action relates

to an action or actions SUbject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination Act

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

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP. As required

by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions

and Rules Subject to the CMP, commission niles governing air

pollutant emissions must be consistent wllh 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 determined

that the action is consistent with the applicable CMP goals and

policies.

The CMP goal applicable to this rulemaking action is the goal

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

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

§501.120)). The proposed amendment replaces existing definitions with references to federal regulations that the state has no

authority to change and correct an inadvertent omission in the

definllion of reportable quantity. The CMP policy applicable to

this nllemaking action is the policy that commission niles 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 wllh 31 TAC §505.22(e), the commission affirms

that this rulamaking action is consistant with CMP goals and policies.

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

. under the SUBMITTAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECTTO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 101, Subchapter A is an applicable requirement of 30

TAC Chapter 122, Federal Operating Permits Program, in that

the definitions in SUbchapter A are relevant in defining and understanding other applicable requirements and applicability generally. If the proposed rule is adopted, owners or operators subject to the federal operating permit program must, consistent with

the revision process in Chapter 122, upon the effective data of

the adopted rulemaking, revise their operating permit to include

any new requirements or address applicability related to the new

Chapter 101 requirements.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on September 20, 2010, at 2:00 p.m. in Building E, Room

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

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

oral statements when callad upon in order of registration. Open

discussion will not be permitted during the hearing; however,

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

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

Charlotte Hom, Office of Lagal Services at (512) 239-0779. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Writtan comments may ba submittad to Devon Ryan, MC

205, Office of Legal SeNices, Texas Commission on Environmental Quailly, P.O. Box 13087, Austin, Texas 78711-3087,

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

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

File size restrictions may apply to comments being submitted

vie the eComments system. All comments should reference

Rule Project Number 200a-030-116-PR. The comment period

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

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

further information, please contact Blake Stewart, Air Permits

Division, (512) 239-6931.

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.102,

conceming General Powers; §5.103, conceming Rules; and

§5.105 conceming General Policy, which authorize the commission to adopt niles as necessary to carry out its power and

duties under the Texas Water Code and under Texas Health

and Safety Code, Taxas Clean Air Act (TCAA), §382.017,

which provides the commission with the authority to adopt rules

consistent with the policy and purposes of the TCAA; §382.011,

concerning General Powers and Duties, which authorizes

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

§382.012, concaming State Air Control Plan, which authorizes

the commission to prepare and develop a comprehensive plan

for the proper control of the stata's air.

The proposed amendment implements Texas Water Code,

§5.103; and Texas Health and Safety Code, §382.017 and

§382.012.

§101.1. Definition.s.

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

the rules of the commission., the tenns used by the commission have

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

control. In addition to the tenns that are defined by the TCAA. the

following terms, when used in the air quality rules in this tide, have the

following meanings, unless the context clearly indicates otherwise.

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

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

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

any combination ofsources under common ownership or control and

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

or similar divisions.

PROPOSED RULES August 27,2010 35 TexReg 7679
(2) Acid gas flare--A flare used exclusively for the incineration of bydrogen sulfide and other acidic gilSes derived from natural

gas sweetening processes.

(3) Agency established facility identification number--For

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

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

or operator of a regulated entity that the emission inventory reporting

requirements of §101.10 of this title (relating to Emissions Inventory

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

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

to buildings, to which the general public has access.

(5) Background--Background concentration, the level of

air contaminants that cannot be reduced by controlling emissions from

man-made sources. It is determined by measuring levels in non-urban

areas.

. (6) Boiler-Any combustion equipment fired with solid,

liquid. and/or gaseous fuel used to produce steam or to heat water.

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

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

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

routinely stored, proeessed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within

a contiguous manufacturing complex.

(9) Carbon adsorber--An add-on control device that uses

activated carbon to adsorb volatile organic compounds from a gas

stream.

(10) Carbon adsorption system-A carbon adsorber with an

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

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

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

coatings.

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

by spraying, brusbing, flusbing, andlor immersion while maintaining

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

not included in this definition.

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

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

land, water, and air vehicles.

(14) Combustion turbine·-Any gas turbine system that is

gas andlor liquid fuel fired with or without power augmentation. This

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

at a specific minor or major source for more than 90 days in any 12-

month period. Two or more gas turbines powering one shaft will be

treated as one unit.

(IS) Commercial hazardous waste management facility--AnY hazardous waste management facility that aecepts hazardous

waste or polychlorinated biphenyl compounds for a charge, except a

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

that accepts waste only from other facilities owned or effectively

controlled by the same person.

35 TexReg 7680 August 27,2010 Texas Register

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

(17) Commercial medical waste incinerator--A facility that

accepts for incineration medical waste generated outside the property

boundaries of the facility.

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

limited to. pwnps, valves. compressors, and pressure relief valves that

has the potential to leak volatile organic compounds.

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

andlor pressure changes of produced natural gas. Once these liquids

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

are no longer considered condensates.

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

construction or demolition projects.

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

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

the atmosphere.

(22) Conveyorized degreasing--A solvent cleaning process

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

automatically provide a continuous supply of parts to be cleaned or

dried using either cold solvent or vaporized solvent.. A conveyorized

degreasing process is fully enclosed except for the conveyor inlet and

exit portals.

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

which there is a national ambient air quality standard established under

40 Code of Federal Regulations Part 50.

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

andlor condensate. after processing andlor treating in the producing operations, from storage tanks or automatic transfer facilities to pipelines

or any other fonns of transportation.

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

major stationary source or ofthe operation of any existing source that

has undergone a major modification that does not exceed the following

specified amounts.

Figure: 30 TAC §101.l(25) (No change.)

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

resulting from the functions oflife within a residence.

(27) Emissions banking-MA systemfor recording emissions

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

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

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

results in unauthorized emissions of air eontaminants from one or

more emissions points at a regulated entity.

(29) Emissions reduction credit--Any stationary source

emissions reduction that has been banked in accordance with Chapter

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

Banking and Trading).

(30) Emissions reduction credit eertificale-The certifieate

issued by the executive director that indicates the amount of qualified

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

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

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

regulation under the Federal Clean Air Act..
(32) Excess opacity event--When an opacity reading is

equal to or exceeds 15 additional percentage points above an applicable opacity limit, averaged over a six-minute period.

(33) Exempt solvent·-Those carbon compounds or mixtures of carbon compounds used as solvents that have been excluded

from the definition of volatile organic compound.

(34) External floating roof--A cover or roofin an open top

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

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

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

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

space between them.

(35) Federal motor vehicle regulation--Control ofAir Pollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of

Federal Regulations Part 85.

(36) Federally enforceable--All limitations and conditions

that are enforceable by the United States Environmental Protection

Agency administrator, including those requirements developed under

40 Code of Federal Regulations (CFR) Parts 60 and 61; requirements

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

requirements established under 40 CFR §52.21 or under regulations

approved under 40 CFR Part 51, Subpart 1, including operating permits issued under the approved program that is incorporated into the

SIP and that expressly requires adherence to any pennit issued under

sueh program.

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

device. A flare may be equipped with a radiant heat shield (with or

without a refractory I ning), but is not equipped with a flame air control damping system to control the air/fuel mixture. In addition, a flare

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

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

considered a flarc.

(38) Fuel oil--Any oil meeting the American Society for

Testing and Materials (ASTM) specifications for fuel oil in ASTM

D396-01, Standard Specifications for Fuel Oils, revised 2001. This

includes fuel oil grades I, I (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light),

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

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

through a stack, chimney, vent, or other functionally equivalent

opening designed to direct or control its flow.

(40) Garbage--Solid waste consisting ofputrescible animal

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

markets. storage facilities. and handling and sale of produce and other

food products.

(41) Gasoline--Any petroleum distillate having a Reid vapor pressure offourpounds persquare inch (27.6 kilopascals) or greater

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

(42) Hazardous wastes--Any solid waste identified orlisted

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

as amended by Resource Conservation and Recovery Act, 42 United

States Code, §§690l et seq., as amended.

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

Hot air dryers are used to deliver the heat.

(44) High-bake coatings-.Coatings designed to cure at

temperatures above 194 degrees Fahrenheit.

(45) High-volume low-pressure spray guns--Equipment

used to apply coatings by means of a spray gun that operates between

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

the air cap.

(46) Incinerator--An cnclosed combustion apparatus and

attachments that is used in the process of burning wastes for tbe primary purpose ofreducing its volume and weight by removing the combustibles ofthe waste and is equipped with a flue for conducting products of combustion to the atmosphere. Any combustion device that

bums 10% or more ofsolid waste on a total British thennal unit (Btu)

heat input basis averaged over anyone-hour period is considered to

be an incincrator. A combustion device without instrumentation or

methodology to detennine hourly flow rates ofsolid waste and bwning

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

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

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

when approved by the executive director. Devices burning untreated

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

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

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

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

applicablc pennits.

(47) Industrial boiler--A boiler located on the site ofa facility engaged in a manufacturing process where substances are transfonned into new products, including the component parts of products,

by mechanical or chemical processes.

(48) Industrial furnace--Cement kilns; lime kilns; aggregate kilns; phosphate kilns; coke ovens; blast fwnaces; smelting.

melting, Or refining furnaces, including pyrometallurgical devices

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

or foundry furnaces; titanium dioxide chloride process oxidation

reactors; methane refonning furnaces; pulping recovery fwnaces;

combustion devices used in the recovery of sulfur values from spent

sulfuric acid; and other devices the commission may list.

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

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

agricultural operations, classified as follows.

(A) Class 1 industrial solid waste orClass 1waste is any

industrial solid waste designated as Class 1 by the executive director

as any industrial solid waste or mixture ofindustrial solid wastes that

because of its concentration or physical or chemical characteristics is

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

ofsudden pressure by decomposition, heat, or other means, and may

pose a substantial present or potential danger to human health or the

environment when improperly processed, stored, transported, or otherwise managed, including hazardous industrial waste, as defined in

§335.1 and §335.505 of this title {relating to Definitions and Class I

Waste Detennination).

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

waste or combination ofindustrial solid wastes that cannot be described

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

Class 2 Waste Determination).

PROPOSED RULES August 27, 2010 35 TexReg 7681
(C) Class 3 industrial solid waste is any inert and essentially insoluble industrial solid waste, including materials such as rock,

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

3 Waste Detennination).

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

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

between the eover edge and tank shell.

(51) Leak--A volatile organic compound coneentration

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

of process fluid based on Sight, smell, or sound.

(52) Liquid fuel--A liquid combustible mixture, not derived from hazardous waste, with a heating value of at least 5,000

British thennal units per pound.

(53) Liquid-mounted seal--A primary seal mounted in continuous contact with the liquid between the tank wall and the floating

roof around the circumference ofthe tank.

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

previously designated nonattainment under the Fedeml Clean Air Act

Amendments of 1990 and subsequently redesignated to attainmentsubject to the requirement to develop a maintenance plan under 42 United

States Code. §7505a. as described in 40 Code of Federal Regulations

Part 81 and in pertinent Federal Register notices. [~falle. iBgMe

the ffioieteeHftee ftf'e&5 "Hithift the 5t&te:-]

ftA1 ¥tetefi& 92eae MaiMeftaeee kelt @ fFetIeml

fl'&l -¥ieIefi& llft<!j

ftlll GelIi& l,eot! Moffi'eB...ee Are!> t64 AA

M42B - _ ef GelIi& Eo,tside: S!afIiBg ill tlte iBIef-

...- ef Sooth _ &reel """ the feBee IiBe app"",imillelj -I-;OO4l

feet.- eftlte -1'fBIlCl'IY IiBe geiBg Bei'Ih te tlte iB'e"ee'ieB ef __&reel """ _ s-; tloFl!l,iae: PreeeeEliBg west

eft t6 the BarliBgteB Railfeed \lIestside. Aleftg the

BtlfliBglOB __te tlte feBee IiBe app"",imelelj -I-;OO4l feet

getti:lt&f!be I'fBIlCl'IY Sallthsitie. FeBee lifte appJ'eJEimatety

-I-;OO4l feet .-eftlte EJti<le I'fBIlCl'IY Ii-.t

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

implementation plan, meeting the requirements of 42 United States

Code, §7505a.

(56) Marine vessel--Any watercmft used, or capable ofbeing used, as a means oftransportation on water, and that is constructed

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

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

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

roof.

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

with special waste from health care-related facilities.

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

conducting the continuing, coopemtive, and comprehensive planning

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

35 TexReg 7682 August 27,2010 Texas Register

(60) Mobile emissions reduction credit--The credit obtained from an enforceable, pennanent, quantifiable, and surplus

(to other federal and state rules) emissions reduction generated by

a mobile source as set forth in Chapter 114, Subchapter F of this

title (relating to Vehicle Retirement and Mobile Emission Reduction

Credits), and that has been banked in accordance with Subchapter H,

Division I ofthis chapter.

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

transporting persons or property on a street or highway.

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

gasoline is dispensed to motor vehicle fuel tanks from stationary storage tanks.

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

incidental to, municipal, community, commercial, institutional, and

recreational activities, including garbage, rubbish, ashes. street cleanM

ings, dead animals, abandoned automobiles, and all other solid waste

excepl industrial solid waste.

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

structures, other appurtenances, and improvements on the land used

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

be publicly or privately owned and may consist ofseveml processing,

storage, or disposal operational units, e.g., one or more landfills. surface impoundments, or combinations of them.

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

or an excavation that receives household waste and that is not a land

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

those tenns are defined under 40 Code ofFedeml Regulations §257.2.

A municipal solid waste landfill (MSWLF) unit also may receivc other

types ofResource Conservation and Recovery Act Subtitle D wastes,

such as commercial solid waste, nonhazardous sludge. conditionally

exempt small-quantity genemtor waste, and industrial solid waste.

Such a landfill may be publicly or privately owned. An MSWLF unit

may be a new MSWLF unit, an existing MSWLF unit, or a lateml

expWlSion.

(66) National ambient air quality standard--Those standards established under 42 United States Code, §7409, including

standards for carbon monoxide, lead, nitrogen dioxide, ozone, inhalable particulate matter, and sulfur dioxide.

(67) Net ground-level concentration--The concentration of

an air contaminant as measurcd at or beyond the property boundary

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

level concentration may be determined by a measurement at or beyond

the property boundary.

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

or modification of which was commenced after March 5, 1972.

(69) Nitrogen oxides (NO,c>--The sum of the nitric oxide

and nitrogen dioxide in the flue gas or emission point, collectiveJy expressed as nitrogen dioxide.

(70) Nonattainment area-A defined region within the

state that is designated by the United States Environmental Protection

Agency (EPA) as failing to meet the national ambient air quality

standard (NAAQS or ,tandard) for a pollutant for which a ,tandard

exists. The EPA will designate the area as nonattainment under the

provisions of 42 United States Codc, §7407(d). For the official list

and boundaries of nonattainment areas, see 40 Code of Federal Regulations (CFR) Part 81 and pertinent Federal Regisler [~] notices.

The designations and classifications for the one-hour ozone NAAOS
in 40 CFR Part 81 were retained for the purpose of anti-backsliding

and upon detennination by the EPA that any requirement is no longer

required to prevent anti-backsliding. then that requirement no longer

applies. [+he relle'Niag ilre&S- eempAse the fteftattaiament iIfe8S- wftI:tffi

the ...... fe< all D&tienol _ ""' 'I'fl'lily 'la"d••ds ~IAAQS).

-EPA .fte.s. iRElieated th&l it wi-U- -FeYeke t:J:te eRe heur 626fte 5t&REiaRJ

fit .fuI.l, mehu:liHg the asseeiated eesign&tieHs ead- el&5sifieatieHs, 00-

JuRe H, _ .. eRe yeIlf fell." i.g tile effeeli¥e <IaIe eflhe

de,igaoti••, fe< lhe eight b...N,'u'.QS efJuRe H,:wG4.1

f(At baffleft ffieftoJtide (GG1. Bl Pase bG ftB8lll:tBlft

mefttMeaf%J<R §'~1394) Cl&5sifieElastl- MedeF8te GG ftefltHtainmeBt ..... with a <Iasigft ¥Blue las< _ eo a<jHflI Ia H,;t jlllflS J'Of miIHaIr. _ efEl Pesabatlrl!y.- _ eftile eily _ efElPesa> +bet

perliefteftlleGilyefElPesabatm<le<l_lhe_bylligb"'.l'.wirerft

Perliri&Bfl>;, S1>ee..a Raj..."l. Street; ReY".ld, _irerftlligb 0,

-lQ. te the SellUleFB RiHlfl:Kld tHtes, t:J:te SelHhem: PeeHie &ailfaIKlliflesirerftRe)'ft.ld, _IaIIigbno, ibl,Higb".l (j;!irerftlhe

SellUleFB Paeifie &aifl:eeElliftes. te Highway -&ftd High ft'J ~ffem.

lIigb.v.l' (j;! Ia l'ala IrIIt Ree<h B....d'd ""tile """ byl'ala IrIIt Raoe

.ff:am High Nay te t:J:te 19a!! MeRiee befdef: BeHAded 8ft t:J:te 'SBtHh

bylhe·f<",.' Me"i•• _irerftl'alaIrlltRaoe",-.H>Bfl>;,Street;

BSl:Iflded eftt:J:te west by Jlaffifla Bta:2- 8tfeet.ffem the l'eJUl:S Menciee

_ '" lIigb "'.l' -Hh1

fiB1 !fIb.lehle ~1lI1i••lat, matter \I'M,,}. El Pesa l'M.

BeBMtair.meRt &felt f!6 -FRo 5fifi9~) Classified 85- a MedeF8te .JlM'lll

fteBattaiBHleBt 6feB:" Pefflett efEJ. Pase Get:IMy that eeffiflRses t:J:te Bl

PIl9& eHy flmi.t. 'eelHtdaFies 65" they eMMe&eft }le 0 emaef +S-; +99G.f

HGt I:,ea4. No aesigluHed ftBBattainmeftt aFeBS:}

f{I)1 l'litFegen N& aesigHated nooattainmeBt

f\El e.-(••e b.er).]

f(i}- Heusteft GalvesteB :Bfa:i!:eFia fHGB)- efte heUf

ezene. fteftattaiftffleBt Mea f!6 J<R - Classified itS tl- Severe 17

ezene. Ileftattaimftent fife&; Qmsists. ef BmzeAa, QUNeluws, Felt

Bead;- Gal. estell, Hams, bibef:I:y, MeBtgemef), aBEl WaI-lef Ce\:lftties,.]

f(#J BlPll9&elle heklf~fl6ft&tt8:iRmeftl.Me&f!6

-FRo~- Classified85-a-8erieus~Bell&ttaiBfllent6feB:" CoosistsefElPesa C""!l'.]

ff#if Be&\tlft:Bftt PeR AFtltuF (BPA) eRe heH:!

aealHtair-meB:t iIf'e& t@ FR - CIBBsified iI5 tl- -8erieus ezene.

llellat'iaifm:leBt afe8";- .beftsists. efHef.EHtt, Jeft'erseR, ftBd Gfattge -GetHttie&,J

-f(Wf Dallas FeR WeFtIt eBe hetll' ezene. lleB&ttaiB:

meAt- area f6; FR - C1assifi::e:d iI5 tl- SefieH:s. Rell8ttaiftmeBt

"""" eaa.isls efGellilr, IJalIas,I:le!IIaft,tm<I_ C.lHllie,.]

W1 e.-(eight baer).]

f(i}- HGB eight hetH' -eame neBattainmeBt Me& t@

-FR- ~- Classtfied as-a Moderate -eame lleftattaiameBt MeIlo.can5ist5 ef BmzeAa, ChamBefS. Bend, Gal. esten, Hams, l.ibeFty;

Melltgemef), eftEi Wallet CeLiBties.]

f(#J BPA eight heHf e2efte fteBattBinmellt Mea t@

FR~- Classified il5a 'MargittaI fteftattainmellt ilfeir. .can- .....efHordift,JeWe".ft; tm<I Bflmge C...lies.]

ff#if Dallas Fe:FtWeFtlteight he\:lf'626fteRBRsttsill

fIleIttilf'e&t@ FR: - Classified as tl- l' federate Ilellattaill

fIleItt are&-;- efGellift; Dallas, I:le!IIaft, Ems;- Jehnsen; Kat!f-

_Parker; R••l.... 01I, ..... _ C.enli.,.]

ffW) -8aR- AfilaIlie eight heur fteftattainmellt

..... f69 FR - CI..,iRed _lhe _ 8eoft Aff Ael, 'I'it1el,Partll,SebJ'llfl+f4Hj,,;.ed_Eede,~••ft_","eat

deferred'" Se~lember'>ll; eo as e"leaded by EPA.t

HG1 St:MlH- N& desigeated Beftattaillffient ar-

(71) Non-reportable emissions event--Any emissions

event that in any 24-hour period does not result in an unauthorized

emission from any emissions point equal to or in excess of the reportable quantity as defined in this section.

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

observer.

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

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

solvent vapor used to clean or dry parts through condensation of the

hot solvent vapors on the parts.

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

process that is not conducted in a combustion unit.

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

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

at standard conditions.

(76) Particulate matter emissions--A1L finely-divided solid

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

air as measured by United States Environmental Protection Agency

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

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

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

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

implementation plan.

(77) Petroleum refinery--Any facility engaged in producing ga..o;;oline, kerosene. distillate fuel oils, residual fuel oils, lubricants,

or other products through distillation ofcrude oil. or through the redistillation. cracking, extraction, refornting, or other processing ofunfinished petroleum derivatives.

(78) PM1a--Particulate matter with an aerodynamic diameter less than or equal to a nominal ten mierometers as measured by a

reference method based on 40 Code ofFederal Regulation, (CFR) Part

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

by an equivalent method deSignated with that Part 53.

(79) PM10 emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten

micrometers emitted to the ambient air as measured by an applicable

reference method, or an equivalent or alternative method specified in

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

in an approved state implementation plan.

(80) Polychlorinated biphenyl compound-A compound

subject to 40 Code of Federal Regulations Part 761.

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

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

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

ofmanufacturing or processing that may emit smoke, particulate matter. gaseous matter, or visible emissions.

(82) Process weight per hour-"Process weight" is the total weight of all materials introduced or recirculated into any specific

process that may cause any discharge of air contaminants into the atPROPOSED RULES August 27,2010 35 TexReg 7683
mosphere. Solid fuels charged into the process will be considered as

part ofthe process weight, but liquid and gaseous fuels and combustion

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

operation from the beginning of any given process to the completion

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

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

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

period by 24.

(83) Property--All land under cornmon control or ownership coupled with all improvements 00 such land, and all fixed or movable objects on such land, or any vessel on the waters ofthis state.

(84) Reasonable further progTess-Anoual incremental reductions in emissions of the applicable air eontaminant that are sufficient to provide for attainment of the applicable national ambient air

quality standard in the designated nonattainrnent areas by the date required in the state implementation plan.

(85) Regulated entity--All regulated units, facilities, equipment, structures, or sources at one street address or location that are

owned or operated by the same person. The tenn includes any property under common ownership or conlrol identified in a permit or used

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

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

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

regulation of emissions events.

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

work area that drains solvent back into an enclosed container while

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

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

in any 24-hour period, results in an unauthorized emission from any

emissions point equal to or in excess of the reportable quantity as defined in this section.

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

(A) for individual air contaminant compounds and

specifically listed mixtures by name or Chemical Abstracts Service

(CAS) number, either:

OJ the lowest of the quantities:

(1) listed in 40 Code of Federal Regulations

(CPR) Part 302, Table 302.4, the column "final RQ";

(11) listed in 40 CFR Part 355, Appendix A, the

column "Reportable Quantity"; or

(111) listed as follows:

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

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

(BPA) ozone nonattainrnent areas as defined in paragraph 1.7.Ql

[(70lfE)(il ilIMlfHill ofthis section, where the RQ must be 100 pounds;

(-b-) bulanes (any isomer) - 5,000 pounds;

(-c-) butenes (any isomer, except 1,3-butadiene) - 5,000 pounds. except in the HOB and BPA ozone nonattainment

areas as defined in paragrapb QQl [(70lfE)(il-fHill ofthis section,

where the RQ must be 100 pounds;

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

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

(-f-) chlorodifluoromethane (HCFC-22) -

5,000 pounds;

35 TexReg 7684 August 27,2010 Texas Register

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

5,000 pounds;

(-h-) chlorofluoromethane (HCFC-31)

5,000 pounds;

(-i-) chlornpentafluoroethane (CFC-1I5)

5,000 pounds;

(-j-) 2-ehloro-l,I,I ,2~tetrafluoroethane

(HCFC-124) - 5.000 pounds;

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

(HCFC-124a) - 5.000 pounds;

(-1-) 1,1, 1,2,3,4,4,5,5,5-decafluoropentane

(HFC 43-1Ornee) - 5.000 pounds;

(-m-) decanes (any isomer) - 5,000 pounds;

(-n-) I,I-dichloro-l-fiuoroethane (HCFCl4lb) - 5,000 pounds;

(-0-) 3,3-dkhloro-l,l,2,2-pentafluoropropane (HCFC-225ca) - 5,000 pounds;

(-p-) I,3-dichloro-l,I,2,2.3-pentafluoropropane (HCFC-225eb) - 5,000 pounds;

(-q-) I,2-dichloro-l,I,2,2-tetmfluoroethane

(CFR-1l4) - 5,000 pounds;

(-r-) 1,I-dicblorotetrafluoroethane (CFC114a) - 5,000 pounds;

(-s-) I,2-dichloro-1,I,2-trifiuoroethane

(HCFC-123a) - 5,000 pounds;

(-1-) 1,I-difluoroethane (HFC-152a) - 5,000

pounds;

(-u-) difluoromethane (HFC-32) - 5,000

pounds;

(-v-) ethanol - 5,000 pounds;

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

HOB and BPA ozone nonattainrnent areas as defined in paragraph QQl

[(70l(El(i) ilIMl (Hij] ofthis section, where the RQ must he 100 pounds;

(-x-) ethylfluoride (HFC-16I) 5,000

pounds;

(-y-) 1,1,1 ,2,3,3,3-heptafluoropropane

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

(-2-) 1,1,1,3,3,3-hexalluoropropane (HFC236fa) - 5,000 pounds;

(-aa-) 1,1,I,2,3,3-hexafiuoropropane

(HFC-236ea) - 5,000 pounds;

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

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

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

(-eo-) oclanes (any isomer) - 5,000 pounds;

(-ff-) oxides of nilrogen - 200 pounds in

ozone nonattaimnent. ozone maintenance, early action compact areas,

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

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

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

Table 302.4, the column "final RQ"; .

(-gg-) pemachlorofluoroethane (CFR-llI) -

5,000 pounds;

(-hh-) 1,1,1,3,3-pentafluorobulane (HFC365mfc) - 5,000 pounds;

(-ii-) peotafluoroethane (HFC-125) - 5,000

pounds;

(-ii-) 1,1,2,2,3-pentafluoroprnpane (HFC245ca) - 5,000 pounds;

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

(-Il-) 1,1.1 ,2,3-penlafluoropropane (HFC245eb) - 5,000 pounds;
(-mm-) l, 1,I ,3,3-pentafluoropropane

(HFC-245fa) - 5,000 pounds;

(-nn-) pentanes (any isomer) - 5,000 pounds;

(-00-) propane - 5,000 pounds;

(-pp-) propylene w 5,000 pounds, except in the

HGB and BPA ozone nonattainment areas as defined in paragraph QQ}

[(79)fE)(i) -ffflll ofthis section, where the RQ must be 100 pounds;

(-qq-) 1,1.2,2-terachlorodiftuoroethane (CFR

-112) - 5,000 pounds;

(-IT-) 1,1,1 ,2-tetrachlorodifluoroethane

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

(-ss-) I,I,2,2-tetraftuoroethane (HFC-l34) -

5,000 pounds;

(-tt-) 1,1,1,2-tetraftuoroethane (HFC-l34a) -

5,000 pounds;

(-uu-) I,I ,2-trichloro-l ,2,2-triftuoroethane

(CFR-Il3) - 5,000 pounds;

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

(CFC-Il3a) - 5,000 pounds;

(-ww-) I, I,I-trifluoro-2,2-dichloroethane

(HCFC-123) - 5,000 pounds;

(-xx-) 1,1,I-triftuoroethane (HFC-143a)

5,000 pounds;

(-yy-) triftuoromethane (HFC-23) - 5,000

pounds; or

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

HGB and BPA ozone nonattainment areas as defined in paragraph QQ}

[(79)(El(i) -fffllJ ofthis section, where the RQ must be 100 pounds;

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

100 pounds;

(B) for mixtures of air contaminant compounds:

0) where the relative amount of individual air contaminant compounds is knO'WII through common process knowledge or

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

contaminant compound that equals or exceeds the amount specified in

subparagraph (A) of this paragraph;

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

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

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

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

(iii) where each of the individual air contaminant

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

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

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

greater than or equal to 5,000 pounds; or

(tv) where natural gas excluding carbon dioxide,

water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen

or air emissions from crude oil are known to be in an amolmt greater

than or equal to 5,000 pounds or the associated hydrogen sulfide and

mercaptans in a total amount greater than 100 pounds, whichever

occurs first;

(C) for opacity from boilers and combustion turbines as

defined in this section fueled by natural gas, coal, lignite, wood, fuel

oil containing hazardous air pollutants at a concentration of less than

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

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

turbines described in this paragraph; or

(D) for facilities where air contaminant compounds are

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

approved by the executive director based on any relevant conditions

and a screening model. that would be reported prior to ground level

concentrations reaching at any distance beyond the closest regulated

entity property line:

(i) less than one-half of any applicable ambient air

standards: and

(if) less than two times the concentration ofapplicable air emission limitations.

(89) Rubbish-Nonputrescible solid waste, consisting of

both combustible and noncombustible waste materials. Combustible

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

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

cans, metal furniture, and like materials that will not bum at ordinary

incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees

Fahrenheit).

(90) Scheduled maintenance, startup, or shutdo'WII activity-For activities with unauthorized emissions that are expected to exceed a reportable quantity (RQ), a scheduled maintenanee, startup, or

shutdown activity is an activity that the o'WIIer or operator of the regulated entity whether perfonning or otherwise affected by the activity,

provides prior notice and a final report as required by §101.211 ofthis

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

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

RQ. For activities with unauthorized emissions that are not expected

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

shutdown activity is one that is recorded as required by §101.211 of

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

ofthis title (relating to Emissions Event Reporting and Recordkeeping

Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those that provide prior notice (ifrequired), and are

reeorded and reported as required by §101.2ll of this title.

(91) Sludge-Any solid or semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive ofthe treated effluent from a wastewater treatment plant; or air pollution control equipment.

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

incomplete combustion consisting predominately of carbon and other

combustible material and present in sufficient quantity to be visible.

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

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

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

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

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

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

Code, Chapter 26;

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

inert sol1d materials used to fill land, ifthe object ofthe fill is to make

the land suitable for the construction ofsurface improvements; or

PROPOSED RULES August 27, 2010 35 TexReg 7685
(C) waste materials that result from activities associated with the exploration, development, or production of oil or gas,

or geothennal resources, and other substance or material regulated by

the Railroad Commission of Texas Wlder Natural Resources Code,

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

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by the administrator of the United States Environa

mental Protection Agency Wlder the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, as amended

(42 Uniled Slates Code, §§690l ef seq.).

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

in equilibrium at atmospheric pressure.

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

grains of hydrogen sulfide per 100 cubic feet, or more than 30 grains

of total sulfur per 100 cubic feet.

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

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

owner, the executive director shall detennine whether mUltiple processes emitting air contaminants from a single point of emission will

be treated as a single source or as multiple sources.

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

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

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

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

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

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

pounds per square inch absolute (101.3 kiloPascals).

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

so designated by the United States Bureau of the Budget.

(100) Submerged fill pipe-A fill pipe that exlends from the

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

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

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

nonnal operation.

(101) Sulfur compounds-pAll inorganie or organic chemi·

cals having an atom or atoms ofsulfur in their chemical structure.

(102) Sulfuric acid mist/sulfuric acid--Emissions ofsulfuric acid mist and sulfuric acid are considered to be the same air contaminant calculated as HJ SO4 and must include sulfuric acid liquid mist.

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

in 40 Code of Federal Regulations Part 60, Appendix A.

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

(104) Total suspended particulate--Particulate matter as

measured by the method described in 40 Code of Federal Regulations

Part 50, Appendix B.

(105) Transfer efficiency-The amount of coating solids

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

amount of coating solids delivered to the coating application system.

(I 06) True vapor pressure--The absolute aggregate partial

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

volatile organic compounds at the temperature ofstorage, handling, or

processing.

35 TexReg 7686 August 27,2010 Texas Register

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

in a permit, rule, or order ofthe c.ommission or as authorized by Texas

Clean Air Act, §382.0518(g).

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

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

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

the type of event nonnally authorized by permit; or

(8) a maintenance activity that arises from sudden and

unforeseeable events beyond the control of the operator that requires

tbe immediate corrective action to minimize or avoid an upset or malfunction.

(109) Upset event--An unplanned and unavoidable breakdown or excursion ofa process Or operation that results in unauthorized

emissions. A maintenance, startup, or shutdown activity thal was reported under §I01.211 ofthis title (relating to Scheduled Maintenance,

Startup, and Shutdown Reporting and Recordkeeping Requirements),

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

reportable quantity due to an unplanned and unavoidable breakdown

or excursion of a process or operation is an upset event.

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

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

(Ill) Vapor combustor-A partially enclosed combustion

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

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

the device operate with an uncontrolled flame. Auxiliary fuel andlor a

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

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

ensure smokeless combustion during operation.

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

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

is boWlded by the bottom ofthe primary seal, the tank. wall, the liquid

surface, and the floating roof or cover.

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

other device used to conduct air contaminants into the atmosphere.

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

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

flame is not considered a visible emission under this definition.

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

of Federal Regulations §51.100(s), except §51.100(sX2) - (4), as

amended on November 29, 2004 (69 FR 69290).

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

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

or contained in water entering sucb tank., box, sump. or other container.

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

drainage, or recovery of such water.

This agency hereby certifies that the proposal has been reviewed

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

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

TRD-201004709
Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental auality

Earliest possible date of adoption: September 26, 2010

For further infonnation, please 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 TCEQ) proposes amendments to §116.12 and §116.150.

The proposed 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 PROPOSED RULES

On July 18, 1997, the EPA revised the ozone National Ambient Air Quality Standard (NAAQS), promulgating 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, end 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 classifying areaS only

under Part D, 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.

American Trucking Assoc., 121 S.Ct. 903 (2001)). On March

26, 2002, the D.C. Circuil Court of Appeals rejected the other

challenges 10 the eight-hour ozone NAAQS (American Trucking

Assoc. v. EPA, 283 F.3d 355 (D.C. Cir. 2002)). The EPA then

proposed and adopted implementation rules to implement the

eight-hour ozone NAAQS, addressing transition issues from the

one-hour ozone NAAQS, the revocation of the one-hour ozone

NAAQS, classification of areas for the eight-hour ozone NAAQS,

and the specification of requirements relating to SIPs. EPA fina~

ized designations for the 1997 eight-hour ozone NAAQS effective on June 15, 2004.

FCAA, §1 07 requires the EPA to designate arees nonattainment

attainment, or unclassffiable no later than one year afterthe EPA

promulgates a new or revised NAAQS. For the ozone NAAQS

FCAA, §181 further requires that each area designated nonat:

ta,"~ent shall be classified at the time of Us designation, by operallon of law, in accordance with FCAA, §181, Table 1. 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 primery 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 doser to attaining the one-hour ozone standard

would have less time to attain the standard, and additional requirements of FCAA, Part D, Subpart 2 impose specific, more

stringent requirements on areas as the classifications increase

from marginal to moderate (and the corresponding design values

are further from attainment of the one-hour ozone standard).

The EPA rules implementing the 1997 eight-hour ozone standard

~ere adopted in two phases: the Phase I Rule, 69 Federat RegIster 23951 , Apnl 30, 2004, addressed a number of implementation issues for the 1997 eight-hour ozone NAAQS, inclUding

how areas should be classified for the 1997 eight-hour ozone

NAAQS (since the classification requirements of FCAA, §181

were based on the one-hour ozone standard, the EPA needed

to propose and finalize a classification scheme appropriate for

the. eight-hour ozone standard in accord with FCAA, §181), and

which one-hour OZone standard requirements should continue to

apply under the 1997 eight-hour ozone NAAQS; and the Phase

II Rule, 70 Federal Register 71612, November 29, 2005, which

addressed additional requirements.

In EPA's Phase I Rule, one of the issues that the EPA considered was the continued applicability of control requirements

that applied in areas previously designated nonattainment for the

one-hour ozone standard. As part of the Phase I Rule, the EPA

considered several provisions of the FCAA that it stated were

evidence of Congress' intent that certain obligations continue to

epply when the EPA revises a NAAQS. The EPA stated that the

FCCA, §175A(d) provided that areas could not remove controls

that were mandated by the FCAA, Part D, SUbpart 2 even after

the area attained the NAAQS and was redesignated to attainmenl At most, a state could move FCAA, Part D, SUbpart 2

controls to the contingency plen provisions of the SIP. Another

provision that the EPA reviewed and discussed in the Phese I

Rule was FCAA, §172(e), which provides thelif the EPA revises

a NAAQS to make it be less stringent, then the EPA must promu~

gate regUlations applicable to areas that have not attained the

original NAAQS to require controls that are no less stringent than

controls that applied to areas designated nonattainment prior to

such relaxation. The EPA concluded in the Phase I Rule that "•.

. if Congress intended areas to remain SUbject to the same level

of control where a NAAQS was relaxed, they also intended that

such controls not be weakened where the NAAQS is made more

stringent .... (69 Federal Register 23972, April 30, 2004).

Based on this premise, the EPA adopted rules that provided

for certain requirements to continue to apply to areas that were

designated nonattainment for the one-hour ozone standard

depending on how they were designated for the eight-hOU;

ozone NAAQS. Areas that were designated nonattainment for

both the one-hour ozone and eight-hour ozone NAAQS were

required to continue to apply certain requirements that applied

under the one-hour ozone standard, with specific exceptions

(40 Code of Federal Regulations (CFR) §51.905(a)(1». These

requirements included reasonably available control technology

(RACT), inspection and maintenance programs (11M), major

source applicability cut-offs for purposes of RACT, rate of

progress reductions (ROP), stage II vapor recovery, clean fuelS

fleet programs, clean fuel programs for boilers, transportation

control measures, enhanced ambient monitoring requirements,

required transportation controls. vehide miles traveled requirements, and nitrogen oxides requirements (40 CFR §51.900(f).

The EPA also proVided that nonattainment area New Source

Review (NSR) requirements required by FCAA, §172(c)(5),

173, and 182 based on the area's previous one-hour ozone

NAAQS classification were no longer required elements of

an approvable SIP (40 CFR §51.905(e)(4)). The EPA also

provided that areas would no longer have to meet requirements

for confonnity, the development of maintenance plans. or the

penany fee obligation for severe areas (40 CFR §51.905).

The EPA's Phase I Rule provided that areas that were nonattainment for the one-hour ozone NAAQS were not required to

PROPOSED RULES August 27,2010 35 TexReg 7687
continue to use the more stringent major source thresholds and

emission offset requirements of the one-hour ozone standard

when implementing NsR and Title V pemnitting for the 1997

eight-hour ozone standard.

All areas in Texas designated nonattainment for the 1997 eighthour ozone NAAQS that were also designated nonattainment for

the one-hour ozone NAAQS were classified at a Riess stringent"

level. Beaumont-Port Arthur (BPA) was classified as "serious"

for the one-hour ozone NAAQS, but was dassified as "moderate" for the 1997 eight-hour ozone NAAQs. Houston-Galveston-Brazoria (HGB) was classified as "severe" for the one-hour

ozone NAAQs and originally classified as "moderate" for the

1997 eight-hour ozone NAAQs. The EPA has since reclassified

the HGB area to "severe" for the 1997 eight-hour ozone NAAQs,

pursuant to a voluntary redassification request by the Governor ofTexas. The Dallas-Fort Worth (DFW) area was classified

as "serious" for the one-hour ozone NAAQS, and was classified

as "moderate" for the 1997 eight-hour ozone NAAQs. The EI

Paso area was nonattainment for the one-hour ozone NAAQS,

classified as "serious," but designated attainment for the 1997

eight-hour ozone NAAQs.

So, for example, a regulated entity in the HGB area triggered

nonattainment review if the potential to emit was equal to or

greater than 25 tons per year (tpy) under the "severe" classification for the one-hour ozone NAAQS, but only triggered nonattainment review under the "moderate" classification for the eighthour ozone NAAQS if the potential to emit was equal to or greater

than 100 tpy. Under the existing rules, since the HGB area

has been reclassified to "severe" for the 1997 eight-hour ozone

NAAQs, regulated entities must again utilize the same major

source threshold and emission offset requirements that previously applied under the one-hour ozone standard.

After designations for the 1997 eight-hour ozone standard and

the final Phase I Rule was effective, the commission proceeded

with rulemaking to implement the requirements for the 1997

eight-hour ozone standard. The commission updated Chapter

116 to implement the changes from the Phase I Rule regarding the application of the 1997 eight-hour ozone standard for

nonattainment NsR. On May 25, 2005, the commission adopted

changes to Chapter 116, effective June 16, 2005, to provide that

for the HGB, DFW, and BPA eight-hour oZone nonattainment

areas, if the EPA promulgated rules requiring NsR pemnit

applications in those areas to be evaluated for nonattainment

NSR according to that area's one~hour ozone classification,

then each application would be evaluated in accordance with

the area's one-hour ozone classification. "Evaluation" was

specified as inclUding both the threshold for detemnining ff there

was a modification as well as the ratio of offsets required, along

with any other applicable requirement that depended upon an

area's nonattainment classification. In adopting this rule, the

commission noted that allhough the Phase I Rule prOVided for

th application of the eight-hour ozone standard for nonattainment NsR, the EPA had granted a partial reconsideration of the

Phase I Rule specifically regarding that issue, and the result

of the reconsideration could be a return to the one-hour ozone

standard for application of nonattainment NSR. Because of

this concern, the commission adopted contingency language in

§116.150, and in the table footnotes in the figure located in the

definition of major modification in §116.12. This contingency

language was adopted to be effective in the event that the EPA

completed rulemaking to require states to return to a one-hour

ozone standard trigger for federal nonattainment NSR evalua35 TexReg 7688 August 27, 2010 Texas Register

tions. In this proposal, the commission is proposing to remove

this previously adopted contingency language.

The EPA Phase I Rule, and partiCUlarly, the EPA's detemnination

that areas designated as nonattainment under the one-hour

ozone standard would no longer be subject to one-hour nonattainment NSR requirements, was successfully challenged in

South Coasf Air Qualffy Managemant District v. Environmental

Proteclion Agency, 472 F.3d BB2 (D.C. Cir. 2006) and the rule

was partially vacated and remanded to the EPA, as made clear

in its revised opinion on June B, 2007 (South Coast Air Quality

Manegement Distn'ct v. Environmental Protection Agency, 489

F.3d 1245 (D.C. Cir. 2007)). The South Coast decision was

upheld by the United States Supreme Court on January 14,

200B.

In a guidance memo issued on October 3, 2007, the EPA stated

that it interpreted the South Coast ruling as restoring NsR applicability thresholds and emission offset requirements pursuant

to classifications under the one-hour ozone standard. The EPA

also noted in this gUidance memo that they intended to conduct rulemaking to confomn the NsR regulations to the South

Coast decision. EPA stated that it intended to issue an immediately-effective final rule under the authority of the Good Cause

provision of the Federal Administrative Procedure Act to restore

the NsR applicability thresholds and emission offsets associated with designated one-hour ozone nonattainment areas, and

would begin a separate notice and comment rulemaking to address longer-term applicability of one-hour ozone NSR requirements, in particular, the conditions and mechanisms under which

those one-hour ozone NSR requirements would cease to apply

for NsR purposes. Lastly, the EPA strongly encouraged states

to comply with the South Coasl decision as quickly as possible.

Because the one-hour ozone standard has been revoked, the

EPA is no longer making redesignations or reclassifications under this standard. However, the EPA is making detemninations

under its Clean Data Policy that areas are currently attaining

the one-hour ozone NAAQS. In its proposal to detemnine that

the Southern New Jersey portion of the Philadelphia Metro

nonattainment area attained the one-hour ozone NAAQS (73

FR 42727, July 23, 200B), the EPA discussed the effect of the

D.C. Circuit Court of Appeals' decision vacating a portion of

the 1997 eight-hour ozone Phase I Implementation Rule (South

Coasl Air Qualffy Managemenf Districl v. EPA, 472 F3d BB2

(2006) and 4B9 F3d 1295 (2007»). The EPA stated: "With

respect to the challenges to the anti-backsliding provisions of

the rule, the Court vacated three provisions that would have

allowed States to remove from the SIP or to not adopt three

one-hour obligations once the one-hour ozone NAAQS was

revoked (including one-hour nonattainment NSR requirements).

fDhe three provisions noted previously. . . were vacated

by the Court. As a reSUlt, States must continue to meet the

obligations for one-hour NsR .. . . Currently, EPA is developing two proposed rules to address the Court's vacatur and

remand with respect to these three requirements. EPA will

address in this proposed rule how the one-hour obligations

that currently continue to apply under EPA's anti-backsliding

rule (as interpreted by the Court) apply where the EPA has

made a determination that the area attained the one-hour ozone

NAAQs by its attainment date." One possible outcome from the

EPA rulemaking on this issue may be to direct states that want

to remove one-hour ozone nonattainment NSR requirements

to submit SIP revisions demonstrating that removing one-hour

ozona nonattainment NSR requirements will not interfere with

attainment or maintenance of the ozone NAAQS.
Because the EPA has nol compleled any rulemaking to implement Ihe Soulh Coasl decision regarding NSR anli-backsliding,

states must decide how to implement, and give e/fect to, Ihe

court's decision. Given the uncertainty of the future EPA rulemakingI and the finality ofthe South Coast decision as of January

14,2008, the commission is proposing to remove the previously

adopted contingency language, in addition to other changes, to

clarify the requirements for nonatlainment NSR. Without effective and understandable guidance from the EPA, through rulemaking or otherwise, the commission is left to determine the

most reasonable course of action. The South Coast decision,

upheld by the United States Supreme Court, makes clear that

areas may at ignore one-hour ozone nonattainment NSR requirements.

Since the commission had previously adopted rules specifying

that sources in the SPA, HGB, and DFW nonattainment areas

should apply eight-hour ozone nonatlainment NSR requirements, the commission is now proposing to delete certain

portions of the definition in §116.12(18)(A), concerning major modification and the requirements of §116.150(d). The

commission is proposing this rulemaking to make clear that

permitted facilities in areas that were designated nonattainment

for the one-hour ozone standard are subject to the major source

thresholds and emission offsets of the one-hour ozone standard

upon the effective date of this rulemaking. Depending on the

EPA's action regarding this issue, these permitted facilities

may continue to be subject to the major source thresholds and

emission offsets of the one-hour ozone standard until the EPA

approves the removal of one-hour ozone nonattainment NSR

requirements from the SIP.

Staff has previously presented these rule amendments (Rule

Project 2008-031}-116-PR) 10 the commission for consideralion.

At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's staff

in anticipation of additional direction or action by the EPA, because EPA continued to indicate in various federal notices its intent to complete rulemaking regarding NSR anti-backsliding requirements posttha South Coasl decision. EPA's proposed rule

to implement the 1997 eight-hour ozone NAAOS revision on subpart 1 reclassification and anti-backsliding provisions under the

former one-hour ozone standard was pUblished in the January

16,2009, Fedaral Ragisler, but has not yet been finalized. This

proposed rulemaking removes language regarding the exemptions from nonatlainment new source review (NNSR) that were

vacated by South Coasl. On September 23, 2009, the EPA published notice of the proposed disapproval of past revisions to Ihe

Texas NNSR SIP (74 Fedaral Ragisler48467) that are related to

these proposed amendments. In an effort to ensure that TCEQ

regulatory requirements regarding the NNSR permitting program

meets the requirements of the FCAA and are approvable into the

SIP, "the commission is proposing the following amendments to

eliminete any deficiencies that would prevent approval.

Additionally, in order to prevent future confusion over designations and classifications and their related applicability thresholds

and emissions offset requirements, the commission is proposing

concurrant amendments to the definitions of maintenance area,

and nonatlainment area in 30 TAC Chapter 101.

SECTION BY SECTION DISCUSSION

§116.12, Nonallainmenland Prevanllon ofSignificant Delerloration Definftions

The commission is proposing to change footnote 1 to remove

the reference to the CFR and reference the definition of "nonattainment area" in 30 TAC Chapler 101.1. This reference is no

longer necessary because the definition of nonattainment is being updated and also references the appropriate part of the CFR.

The commission is also proposing to change the term -major

modification level" to "significant level" in footnote 2 in Table 1 in

§116.12(18)(A). This will ensure that the term used in the footnote matches the headin9 in the third column of the table and

help eliminate any confusion reSUlting from the use of different

terms. The commission is also proposing to remove footnotes

6 and 7 from Table 1 in §116.12(18)(A). Footnote 6 indicates

that the EPA must complete rulemaking before NSR applications are evaluated according to their one-hour classification.

However, the EPA has stated that: the Soulh Coasl decision

is se~-implementing; did not require rulemaking by the EPA to

be effective; and NSR applications should be evaluated based

upon one-hour classifications, if they are more stringent than an

area's eight-hour dasstfication. Footnote 7 states that permit applications in areas designated as nonattainment for ozone under

FCAA, Tille I, Part D, Subpart 1 (42 United States Code (USC),

§7502) will be evaluated as if that area was designated as Marginal. However, Texas does not have any areas currently des·

ignated as nonattainment for ozone under FCAA, Title I, Part

D, Subpart 1. The San Antonio area was originally designated

nonatlainment-deferred for the 1997 eight-hour ozone NAAOS,

but has since been designated attainment.

§116.150, Naw Major Source or Major Modificallon in Ozone

Nonattainment Areas

The commission proposes to amend §116.150(a) by removing

§116.150(a)(1) and (2). Subsection (a) would then be amended

to apply the requirements of this subsection as of the date of issuance of the permit and to add a requirement for continued applicability of nonattainment NSR until Ihe EPA has made a finding

of attainment; the EPA has approved the removal of nonattainment New Source Review requirements from the area; or the

EPA has determined that Prevention of Significant Deterioration

requirements apply in the area. The commission also proposes

to remove §116.150(d). Subsection (d) contains language similar to that in footnote 6 from Table 1 in §116.12(18)(A). This language indicates thaI the EPA must complete rulemaking before

NSR applications are evaluated according to their one-hour classification. However, the EPA has stated that: the South Coasl

decision is self-implementing; did not require rulemaking by the

EPA to be effective; and NSR applications should be evaluated

based upon one-hour classifications, if they are more stringent

than an area's eight-hour classification. Additionally, the netting

raquirement and exceptions in §116.150(d) are redundant of the

same requirement and exceptions in §116.150(c) and thus, unnecessary. The commission also proposes relettering the remainder of §116.150 to reflect the removal of §116.150(d) and

minor changes to references in §116.150(b) to reflect the releltering. The commission proposes a change to §116.150(e) to

reflect changes proposed in a concurrent rulemaking in Chapter

101.

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, fiscal implications, although not significant,

are anticipated for the agency. The proposed rules also have

a significant fiscal impact on some local govemments in ozone

PROPOSED RULES August 27,2010 35 TexReg 7689
non-attainment areas that own or operate facilities that may qualify as major sources of air emissions.

In May 2005, the agency adopted changes to Chapter 116 that

prOVided for the contingency of the EPA promulgating rules reqUiring major source NSR pennit applications to be evaluated according to the one-hour ozone nonattainment designations in addition to the eight-hour ozone nonattainment designations. Recent court decisions have required that both standards be evaluated. As a result, in the DFW and SPA ozone nonattainment

areas, the more stringent major source emission thresholds and

emission offset requirements of the one-hour ozone standard will

be applied when implementing pennitting requirements for Title

V pennits and NSR pennits. The proposed rules would amend

Chapter 101 and in a concurrent rulemaking, Chapter 116 to

prOVide clarity regarding NSR permit requirements in areas previously designated nonattainment under the one-hour standard

and ensure consistency with recent federal court decisions and

the EPA's position resulting from those court decisions.

The fiscal implications for the proposed changes to Chapter 101

are administrative in nature and are detailed in a separate concurrent rulemaking.

The proposed amendments to Chapter 116 elarify when nonattainment NSR reqUirements can be removed; eliminate a redundant definition; and specifically remove contingency language

regarding EPA rulemaking for the one-hour ozone thresholds

and offset emission requirements. Removal of the contingency

language will require the more stringent one-hour ozone emission thresholds and offset emission requirements to apply to facilities owned or operated by local governments that apply for

NSR penn~s. There may be as many as three eleelrical generating facilities owned by local governments in the DFW eighthour ozone nonattainment area that will be required to comply

with the one-hour ozone requirements If NSR permit requirements for modifications are needed. If facility modification is

detennined to be a major modification or a new major source

is constructed, controls complying with lowest achievable emission rale (LAER) reqUirements, rather than best available control

technology (BACT), are needed. Control costs for LAER could

range from $1,000 to $5,000 per ton for volatile organic compound (VOC) and nitrogen oxide (NO,) emissions over the costs

for BACT. In addition, emission offsets will be required. Costs

for emission credits to satisfy the offset requirements .for NOt

sources may range from $6,000 to $6,000 per ton. Costs for

VOC emission credits could range from $650 per ton to $3,000

per ton.

PUBLIC BENEFITS AND COSTS

Nina Chamness also detennined that for each year of the first

five years the proposed rules are in effeel, the public benefit anticipated from the changes seen in the proposed rules will be

more stringent NSR pennitting requirements in the DFW and

BPA ozone nonattainment areas, which will be protective of human heatth and the environment.

The proposed rules will affeel facilities of major sources of

air emissions in the DFW and SPA ozone nonattainment areas. These facilities may include electrical power generating

stations, oil refineries, pipeline transmission facilities, petrochemical plants, incinerators, stationary engines, large boilers,

and liquid or gas fired turbines. These types of facilities are

typically owned by large businesses. Major sources and major

modiflcations of these facilities in these nonattainment areas

will reqUire LAER controls, rether than BACT, when applying for

35 TexReg 7690 August 27, 2010 Texas Register

NSR permits. Control costs for LAER could range from $1,000

to $5,000 per ton for VOC and NOx amissions over the costs for

BACT. Emission offsets wUl also be required. Costs for emission

credits to satisfy the offset requirements for NOx sources may

range from $6,000 to $6,000 per ton. Costs for VOC emission

cred~ could range from $650 per ton to $3,000 per ton.

Based on past NSR pennilting activity over the past five years,

staff estimates that two facilities per year will be required to comply with the proposed rules. If LAER controls cost $5,000 per ton

per year for 50 tons of NOx and emission offsets are needed for

60 tons with a cost of $6,000 per ton per year, statewide costs

could be as much as $1,460,000 per year the first five years the

proposed rules are in effect. Total cost increases as a result of

the proposed rules for each facil~ will vary depending on the

operating conditions and management decisions governing that

facility. Depending on the unique conditions of each entity, these

cost increases could have a significant fiscal impact.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules. Small or microbusinesses do not typically own or operate facilities that would

qualify as major sources of emissions. If a small or micro-business owns or operates a major source of emissions, it could expect to incur the same costs for LAER controls or credit offsets

as those incurred by a large business.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and detennined thate small business regUlatory flexlbll~ analysis is not

required because the proposed rules are required to protect the

environment and to comply with federal regulations. In addition,

the proposed rules are not expeeled to adversely affeel a small

or micro-business in a material way for the first five years that the

proposed rules are in effect because small or micro-businesses

do not typically own or operale facilities that would be govemed

by the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affeel a local economy in a material way for the first five years thai the

proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light ofthe

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and detennined thatlhe rulemaking does not

meet the definition of a major environmental rule as defined in

that slatute, and in addition, if it did meet the definition, would

not be subjeelto the requirement to prepare a regUlatory impact

analysis.

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

Which is to protect the environment or reduce risks to human

health from environmental exposure, and that may adversely affect in a material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment, or the pUblic health

and safety of the slale or a seclDr of the slate. The specific intent

of the proposed revisions is to remove certain definitions that are

duplicative, and to remove previously adopted contingency language that would require EPA final rulemaking before NSR applications are evaluated according to the one-hour classification
of the area where the facility is located. 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 since

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

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

discussed elsewhere in this preamble.

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

major environmental rule, which are listed in Texas Government

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

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

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

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

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

or contract between the state and an agency or representative

of the federal govemmentto implement a state and federal program; or 4) adopt a rule solely under the general powers of the

agency instead of under a specific state law.

The proposed rules would implement requirements of the FCAA.

Under 42 USC, §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, at~

tain, maintain, and enforce the NAAOS wrthin the state. While

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

methods, or emission reductions in order to meet the standard,

state SIPs must include specific requirements as specified by 42

USC, §7410. The provisions of the FCAA recognize that states

are in the best position to determine what programs and controls

are necessary or appropriate in order 10 meet the NAAOS. This

flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAOS for the specific regions in the state. Even though the FCAA allows states

to devalop their own programs, this fleXibility does not relieve a

state from developing a program that meels the requirements of

42 USC, §7410. States are not free to ignore the requirements

of 42 USC, §7410, and must develop programs to assure that

their SIPs provide for implementation, attainment, maintenance,

and enforcement of the NAAOS 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 NAAOS are achieved, inclUding a permit program as required in FCAA, Parts C and D, or NSR. Additionally,

once states have developed SIPs, and those plans are approved

by the EPA, the FCAA prescribes, in 42 USC, §7502(e) that the

EPA, in modifying a NAAOS, shall promulgate rules that apply

to all areas that have not attained the previous NAAOS that provide for controls that are no less stringent than the controls that

previously applied to the area. The district court in South Coast

found that NSR was a "control," and vacated the EP.A:s Phase I

rUles that provided that the major source thresholds and offset requirements that applied as a result of an area's designation and

classHication under the one-hour ozone standard were no longer

necessary. Until the EPA completes rulemaking to further interprellhe applicability ofthe NSR permitting program in the context

of 42 USC, §7502(e) and revisions 10 the ozone NAAOS, state

rules that allow NSR review to rely upon designations and classifications for the eight-hour ozone standard in areas previously

designated nonattainment for the one-hour ozone standard conflict with the South Coast ruling.

The requirement to provide a fiscal analysis of regulations in the

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

during the 75th Legislature, 1997. The intenl of SB 633 was to require agencies to conduct a regulatory impact analysis 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. Wrth the understanding that this requirement would seldom apply, the commission proVided a cost

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

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

the bill will have significant fiscal implications for the agency due

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

number of rules that would require assessment under the pr"

visions of the bill was not large. This condusion 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 exceeded 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. rt each rule

proposad by the commission to meet a federal requirement was

considered to be a major environmental rule that exceeds federal

law, then each of those rules would require the full regulalory impact analysis (RIA) contemplatad 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 its

fiscal notes. Since the legislature is presumed to understand the

fiscal impacts of the bills it passes, and that presumption is based

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

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

than is necessary or appropriate to meet the requirements of the

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

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

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

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

The commission has consistently applied this construction to its

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

the legislature has revised the Texas Government Code, but

leflthis provision SUbstantially unamended. It is presumed that

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

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

interpretation." (Centllll Power & Ught Co. v. Shalp, 919 S.W.2d

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

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

Bullock v. Malllthon Oil Co., 798 S'w.2d 353. 357 (Tex. App.

Austin 1990, no writ). Ct. Humble Oil & Refining Co. v. Calvart,

414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto

Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Lifa Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and Coasta/lndust. Watar Auth. v.

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

The commission's interpretation of the RIA requirements is also

supported by a change made to the Administrative Procedures

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

number of rule challenges based upon APA requirements, the

legislature darified that state agencies are required to meet

PROPOSED RULES August 17,1010 35 TexReg 7691
these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The

legislature specifically identified Texas Government Code,

§2001.0225 as falling under this standard. As discussed in

this analysis and elsewhere in this preamble, the commission

has SUbstantially complied with the requirements 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

permit programs. The specific intent of the proposed rule revisions is to remove certain definitions that are duplicative, and

previously adopted contingency language that would require

EPA final rulemaking before NSR applications are evaluated

according to the one-hour classification of the area where the

facility is located, in order to avoid conflict with the South Coast

decision. The proposed amendments 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 Texas Clean Air Act), and tile Texas

Water Code, which are cited in tile STATUTORY AUTHORITY

section of this preamble, including Texas Health and Safety

Code, §§382.011, 382.012, and 382.017. Therefore, tIlis proposed rulemaking action is not subject to the regulatory analysis

provisions of Texas Government Code, §2001.0225(b).

Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the ad·

dress listed under the SUBMITIAL OF COMMENTS section of

this preamble.

TAKINGS IMPACT ASSESSMENT

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

governmental action that affects private real property, in whole or

in part or temporarily or 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

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

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

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

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

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

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

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

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

§2007.043. The primary purpose of this proposed rulemaking

action, as discussed elsewhere in this preamble, is to remove

certain definitions that are duplicative, and preViously adopted

contingency language that would require EPA final rulemaking

before NSR applications are evaluated according to the onehour classification of the area where the facility is located.

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

property in a manner that would require compensation to private

real property owners under tile United States Constitution or the

Texas Constitution. The proposal also will not affect private real

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

property that would otherwise exist in the absence of tile gov35 TexReg 7692 August 27,2010 Texas Register

ernmental action. Therefore, the proposed 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 actions subject to the Texas Coastal Management

Program (CMP) in accordance with the Coastal Coordination Act

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

ef seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281,45(a)(3) and 31 TAC

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

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

commission reviewed this action for consistency with the CMP

goals and policies in accordance with the rules of the Coastal

Coordination Council, and detennined that the action is consis--

tent with the applicable CMP goals and policies.

The CMP goal applicable to this rulemaking action is the goal

to protect, preserve, and enhance tile diversity, quality, quantity, functions, and values of coastal natural resource areas (31

TAC §501.12(1)). The proposed amendments will indirectly benefit the environment because reduced emissions resulting from

the more stringent major source thresholds and emission offset

requirements of the one-hour ozone standard ensure that there

will be fewer adverse impacts to pUblic health and the environment. The CMP policy applicable to this rulemaking action is

the policy tIlat 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 allinns tIlat tIlis rulemaking action

is consistent witll CMP goals and policies.

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

under the SUBMITIAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

Chapter 116 is an applicable requirement of 30 TAC Chapter

122, Federal Operating Pennits Program. If the proposed rules

are adopted, owners or operators subject to the federal operating permit program must, consistent with the revision process in

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

revise tIleir operating pennit to include the new Chapter 116 requirements. Additionally, sources subject to the proposed rules

may become SUbject to the federal operating pennit program.

ANNOUNCEMENT OF HEARING

The commission will hold a pUblic hearing on this proposal in

Austin on September 20. 2010, at 2:00 p.m. in Building E Room

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

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

oral statements when called upon in order of registration. Open

discussion will not be pennitted dUring the hearing; however,

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

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

Chartotte Hom, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS

Written comments may be submitted to Devon Ryan, Me

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

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

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

submitted at: http://www5.tceq.state.tx.us/rules/ecomments/.

File size restrictions may apply to comments being submitted

via the eComments system. All comments should reference

Rule Project Number 2008.{)30-116·PR. The comment period

closes September 27, 2010. Copies of the proposed rule·

making can be obtained from the commission's Web site at

http.1fwww.tceq.state./x.us/nav/rules/propose_edopt.html. For

further information, please contact Blake Stewart, Air Permits

Division, (512) 239-6931.

SUBCHAPTER A. DEFINITIONS

30 TAC §116.12

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code §5.1 02,

concerning General Powers, §5.103, concerning Rules, and

§5.105 concerning General Policy, Which authorize the commission to adopt rules as necessary to carry out its power and

duties under the Texas Water Code; Texas Health and Safety

Code, Texas Clean Air Act (TCAA), §382.017, which provides

the commission with the authority to adopt rules consistent with

the policy and purposes of the TCAA; §382.011, concerning

General Powers and Duties, which authorizes the commission

to control the quality of the state's air; §382.012, concerning

Stale Air Control Plan, which authorizes the commission to pre--

pare and develop a comprehensive plan for the proper control

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

of the Commission, which authorizes the commission to issue

permits to construct a new facility or modify an existing facility

that may emit air contaminants, and authority to adopt rules

necessary to comply with changes in federal law or regulations

applicable to permits issued under the TCAA.

The proposed amendment implements Texas Water Code,

§5.103; and Texas Health and Safety Code, §§382.017,

382.012, and 382.051.

§1l6.12. Nonattainmellt and Prevention o/Significant Deterioration

Review Definitions.

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

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

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

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

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

in § 101.] ofthis title (relating to Definitions), the following words and

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

this title (relating to Nonattainment Review Permits and Prevention of

Significant DeteriorationReview); and Chapter 116, Subchapter C. Division 1ofthis title (relating to Plant-Wide Applicability Limits), have

the following meanings. unless the context clearly indicates otherwise.

(I) Actual ernissions--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 tbat 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) of this 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 detennination that it is more representative of nonnal source

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

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

stored, or combusted during the selected time period. The executive

director may presume that the source-specific allowable emissions for

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

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

not begun normal operations on the particular date, actual emissions

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

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

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

the operating rate, or hours of operation, or both), and the most stringent of the 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 enforce·

able permit condition including those with a future compliance date.

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

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

(A) For any existing electric utility steam generating

unit, baseline actual emissions means the rate, in tons per year, at which

the unit actually emitted the pollutant during any consecutive 24-month

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

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

a different time period upon a detennination that it is more representativc of normal source operation.

(B) For an existing facility (other than an electric utility

steam generating unit), baseline actual emissions means the rate, in

tons per year, at which the facility actually emitted the pollutant during

any consecutive 24-month period selected by the owner or operator

within the ten-year period immediately preceding either the date the

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

a complete permit application is received for a permit. The rate shall be

adjusted downward to exclude any emissions that would have exceeded

an emission limitation with which the major stationary source must

currently comply with the exception of those required under 40 Code

of Federal Regulations Part 63, had such major stationary source been

required to comply with such limitations during the consecutive 24-

month period.

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

purposes ofdetermining the emissionsincrease that will result from the

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

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

shall equal the unit's potential to emit.

(D) The actual rate shall be adjusted downward to exclude any non-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 consecutive

24-month period can be used for each regulated new source review

pollutant. The rate shall not be based on any consecutive 24-month period for which there is inadequate information for detennining annual

emissions, in tons per year, and for adjusting this amount Baseline

emissions cannot occur prior to November 15, 1990.

PROPOSED RULES August 27,2010 35 TexReg 7693
(E) The actual emtsslons rate shall include fugitive

emissions to the extent quantifiable. Until March 1,2016, emissions

previously demonstrated as emissions events or historically exempted

under Chapter 101 ofthis title (relating to General Air Quality RUles)

may be included to the extent that they have been authorized, or are

being authorized.

(4) Basic design parameters--For a process unit at a steam

electric generating faCility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum

hourly fuel consumption rate or maximum hourly electric output rate

and maximum steam flow rate. When establishing fuel consumption

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

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

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

at a steam electric generating facility are maximum rate of fuel or beat

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

output. Combustion process units will typically use maximum rate of

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

the owner or operatorshall considerthe primary product or primary raw

material when selecting a basic design parameter. The owner or operator may propose an alternative basic design parameter for the source's

process units to the executive director ifthe owner or operator believes

the basic design parameter as defined in this paragraph is not appropriate for a specific industry or type of process unit. If the executive

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

that basic design parameter shall be identified and compliance required

in a condition in a pennit that is legally enforceable.

(A) The owner or Operator shall use credible infonnation. such as results ofhistoric maximum eapability tests, design information from the manufacturer, or engiileering calculations, in establishing the magnitude of the basic design parameter.

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

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

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

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

parameter.

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

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

of a pennanent nature. Such activities include, but are not limited

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

With respect to a change in method of operation, this term refers to

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

initiation of the change.

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

pollutant-emitting activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and

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

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

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

that have the same two-digiL code) as described in the Standard Industrial Classification Manual. 1972, as amended by the 1977 supplement.

(7) Clean coal technology--Any technology, including

technologies applied at the precombustion, combustion. or post-combustion stage, at a new or existing facility that will achieve significant

reductions in air emissions of sulfur dioxide or oxides of nitrogen

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

35 TexReg 7694 August 27, 2010 Texas Register

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

1990.

(8) Clean coal technology demonstration project--A

project using funds appropriated under the heading I'Department of

Energy-Clean Coal Technology," up to a total amount of $2.5 billion

for commercial demonstration of clean coal technology, or similar

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

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

project.

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

has all necessary preconstruction approvals or permits and either has:

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

of actual on-site construction of the source, to be completed within a

reasonahle time; or

(B) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial10ss

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

ofthe source to be completed within a reasonable time.

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

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

change in actual emissions.

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

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

occurs; and

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

particular ehange commences.

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

or prevention of significant deterioration review. The summation of

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

creditable source emission increases and decreases during the contemporaneous period is compared to the significant level for that pollutant.

]fthe significant level is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required.

(13) Electric utility steam generating unit--Any steam electric generating unit that is constructed for the purpose of supplying

more than one-third of its potential electric output capacity and more

than 25 megawatts electrical output to any utility power distribution

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

the purpose ofproviding steam to a steam-electric generator that 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 paragrapb:

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

for such pollutants identified by the United States Environmental Protection Agency;

(B) any pollutant that is subject to any standard promulgated under Federol Clean Air Act (FCAA), §111;

(C) any Class I or II substance subject to a standard promulgated under or established by FCAA, Title VI; or
(0) any pollutant that otherwise is subject to regulation

under the FCAA; except that any or all hazardous air JX>lIutanls either

listed in FCAA, §112 or added to the list under FCAA, §l12(b)(2),

which have not been delisted under FCAA, §1l2(b)(3), are not regulated new source review pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor ofa general pollutant

listed under FCAA, §108.

(15) Lowest achievable emission rate--For any emitting facility, that rate of emissions of a contaminant that does not exceed the

amount allowable under applicable new source perfonnance standards

promulgated by the United States Environmental Protection Agency

under 42 United States Code, §7411, and that reflects the following:

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

operator ofthe proposed facility demonstrates that sueh 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 potential to emit 100 tons per year or more ofthe plant-wide applicability

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

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

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

Table J ofthis section for nonattainment areas.

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

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

or more 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 J ofthis section for nonattainment pollutants and the major sOurce thresholds for

prevention of significant deteriomtion pollutants are identified in 40

Code ofFedernlRegulations(CFR) §51.l66(b)(1). A source thaI emits,

or has the potential to emit a federally regulated new source review pollutantatlevels greater than those identified in 40 CFR §51.166(b)(I)

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

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

a stationary source shall not be included in determining for any of the

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

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

(18) Major modification-As follows.

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

operation of a major stationary SOurce that causes a significant project

emissions inerease 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 itself must equal

or exceed that specified for a major source. At an existing major stationary source, the inerease must equal or exceed that specified for a

major modification to be significant. The major source and significant

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

significant deterioration pollutants are identified in 40 Code ofFederal

Regulations §51.166(b)(l) and (23), respectively.

Figure: 30 TAC §116.12(181(Al

[l'igufe; 3G'I'M; §116.12(18)(1.)]

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

(i) routine maintenance, repair, and replacement;

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

reason of a natural gas curtailment plan under the Federal Power Act;

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

or rule of 42 United States Code, §7425;

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

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

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

stationary source that the source was capable ofaccommodating before

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

federally enforceable permit condition established after December 21.

1976) or tbe source is approved to use under any pennit issued under

regulations approved under this ehapter;

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

produetion 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;

Ox) the installation, operation, cessation, or removal

of a temporary clean coal technology demonstration project, provided

that the project complies with the state implementation plan and other

requirements necessary to attain and maintain the national ambient air

quality standard during the project and after it is tenninated;

(x) for prevention ofsignifieant deterioration review

only, the installation or operation ofa permanent clean coal technology

demonstration project that constitutes rc-powering, provided that the

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

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

a pollutant-by-pollutant basis; or

(xi) for prevention of significant deterioration re·

view only, the reactivation of a clean coal-fired electric utility steam

generating unit.

(19) 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 ofthe applicable state implementation plan.

(20) Net emissions increase--The amount by whicb the

sum ofthe following exceeds zero: the project emissions increase plus

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

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

(A) An increase or decrease in emissions is creditable

only if the following conditions are mel:

(;) it occurs during the contemporaneous period;

(iO the executive director has not relied on it in issuing a federal new source review pennit for the source and that permit

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

occurs; and

(iii) in the case of prevention ofsignificant deterioration review only, an increase or decrease in emissions ofsulfur dioxide, partiCUlate matter, or nitrogen oxides that occurs before the appliPROPOSED RULES August 17,1010 35 TexReg 7695
cable minor source baseline date is creditable only ifit is required to be

considered in calculating the amount ofmaximum allowable increases

remaining available.

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

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

under a plant-wide applicability limit are not creditable.

(C) A decrease in emissions is creditable only to the exlent that all ofthe following conditions are met:

(i) the baseline actual emission rale exceeds the new

level of emissions;

(ii) it is enforceable at and after the time that actual

construction on the particular change begins;

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

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

increase from the particular change; and

(11 in thc case ofnonattainment applicability analysis only, the state has not relied on the decreasc to demonstrate attainment or reasonablc further progress.

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

source occurs when the emissions unit on which construction occurred

becomes operational and begins to emit a particular pollutant. Any

replacement unit that requires shakedown becomes operational only

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

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

emissions offset reduction requirements of 42 United States Code,

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

reductions ofemissions to total emissions increases ofsuch pollutants.

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

the definition ofmajor modification. In order for a reduction to qualify

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

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

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

and Trading), except as provided for in §116.170(b) of this title

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

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

nonattainment or prevention ofsignificant deterioration permit.

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

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

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

permit under §116.186 ofthis title (relating to General and Special Conditions).

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

ofissuance ofthe plant-wide applicability limit permit. The plant-Wide

applicability limit effective date for a plant-wide applicability limit established in an existing flexiblepennit is the date that the flexible permit

was issued.

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

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

plant-wide appl1cability limit pollutant at a level equal to or greater

than the plant-wide applicability limit.

(25) Plant-wide applicability limit pennit--The new source

review permit that establishes the plant-wide applicability limit.

35 TexReg 7696 August 27,2010 Texas Register

(26) Plant-wide applicability limit pollutant--The pollutant

for which a plant-wide applicability limit is established at a major stationary source.

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

Any physical or enforceable operational limitation on the capacity of

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

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

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

emissions is federally enforceable. Secondary emissions, as defined

in 40 Code ofFederal Regulations §51.165(a)(I)(viii), do not count in

delennining 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 determine emissions

increases and decreases. Increases and decreases must meet the creditability criteria listed under the definition of net cmissions incrcase 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 fivc years following the date the facility

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

years following that date, if the project involves increasing the facility's design capacity or its potential to emit that federally regulated

new source review pollutant. In detennining the projected actual

emissions, the owner or operator of the major stationary source shall

include fugitive emissions to the extent quantifiable and sball consider

all relevant 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--The sum of emissions increases for each modified or affected facility detennined using the following methods:

(A) for existing facilities, the difference between the

projected actual emissions and the baseline actual emissions. In ealculating any increase in emissions that results from the project, that

portion of the facility's emissions following the project that the facility could have accommodated during the consecutive 24-month period

used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due

to product demand growth may be excluded from the project emission

increase. The potential to emit from the facility following completion

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

and

(B) for new facilities, the difference between the potenlial to emit from the facility following completion of the project and

the baseline actual emissions.

(31) Replacement facility-A facility that satisfies the following criteria:

(A) the facil1ty is a reconstructed unit within the meaning of 40 Code ofFederal Regulations §60.15(b)(1), or the facility replaces an existing facility;
SUBCHAPTER B. NEW SOURCE REVIEW

PERMITS

DIVISION 5. NONATTAINMENT REVIEW

PERMITS

(B) the facility is identical to or functionally equivalent

to the replaced facility;

(C) the replacement does not alter the basic design pa~

rameters of the process unit;

(D) the replaced facility is permanently removed from

the major stationary source, othef"'tllise pennanently disabled, or per~

manently barred from operation by a permit that is enforceable. Ifthe

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

new facility. No creditable emission reductions shall be generated from

shutting down the existing facility that is replaced. A replacement facility is considered an existing facility for the purpose of determining

federal new source review applicability.

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

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

or major modification, but do nol come from the sourcc or modifica~

tion itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same general area as the stationary source or

modification that causes the secondary emissions. Secondary emissions include emissions from any off~site support facility that would

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

construction or operation ofthe major stationary source or major modification. Secondary emissions do not include any emissions that come

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

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

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

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

pollutant.

(34) Small facility--A facility that emits orhas the potential

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

less than the sjgnificant level for that PAL pollutant.

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

installation that emits or may emit any air pollutant subject to regulation

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

(36) Temporary clean coal technology demonstration

project--A clean coal technology demonstration project that is operated for a period offive years or less, and that complies with the state

implementation plan and other requirements necessary to attain and

maintain the national ambient air quality standards during the project

and after it is tenninated.

This agency hereby certifies that the proposal has been reviewed

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

Filed wilh the Office olthe Secretary of State on Augusl13, 2010.

TRD-201004710

Robert Martinez

Director, Environmental Law Division

Texas Commi88ion on Environmental Quality

Ear1iest possible date of adoption: September 26, 2010

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

• • •

30 TAC §1l6.150

STATUTORY AUTHORITY

The amendment is proposed under Texas Waler Code, §5.102,

concerning General Powers, §5.103, concerning Rules, and

§5.105 concerning General Policy, which authorize Ihe commission to adopt rules as necessary to carry out its power and

duties under the Texas Water Code; Texas Health and Safety

Code, Texas Clean Air Act (TCAA), §382.017, which provides

the commission with the authority to adopt rules consistent with

the policy and purposes of the TCAA; §382.011, concerning

General Powers and Duties, which authorizes the commission

to control the quality of Ihe state's air; §382.012, concerning

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

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

of the Commission, which authorizes the commission to issue

permits to construct a new facility or modify an existing facility

that may emit air contaminants, and authority to adopt rules

necessary to comply with changes in federal law or regulations

applicable to permits issued undar the TCAA.

The proposed amendment implements Texas Water Code,

§5.103; and Texas Health and Safety Code, §§382.017,

382.012, and 382.051.

§ //6./50. New Mojo,. Source or Major Modification in Ozone Nonattainment Areas.

(a) This section appliesto all new source review authorizations

for new construction or modification offacilities that will be located in

any area designated as nonattainment for ozone under 42 United States

Code (uSC). §§7407 et seq. as ofthe date of issuance of the permit,

unless: [..-.:]

ill the United States Environmental Proteetion Agency

(EPA) has made a finding of attainment;

ill the EPA has approved the removal of nonattainment

New Source Review (NSR) requirements from the area;

ill the EPA has determined that Prevention of Significant

Deterioration requirements apply in the area: or

ill the EPA detennines that nonattainment NSR is no

longer required for purposes of antibacksliding.

IfB fa< all"""Ii......fa< faeiIiIies _ wiIll>e ieeole&HI

eBYMefl designated asfteBettainmeftt fef~tIftdef e-YttiiedStatesteee W4Q+ '" _ tIR tlte .-<!ale efthis --.tlte

isstHmee date- efthe aalhefi~&lien; aBEij

ft2J fa< aIIepplieeli••, fa< faeiIiIies _ wiIll>eieeole&HI

eeuaties-fefwhtelt flBftattBHlHleBt designatieB fef~tHMIefGYSG

~et-BetFheeemes effeeti.vea.ftefthe eff'eeu'/e dele eftftis.-seetieft;

the tItHe the 8pflI]jeah6ft is- aamiHislJ'Bhvely eBmfllete.]

(b) The owner or operator of a proposed new major stationary

source, as defined in §116.12 ofthis title (relating to Nonattainment and

Prevention ofSignificant Deterioration Review Definitions) ofvolatile

organic compound (VOC) emissions or nitrogen oxides (N0x) emis~

sions, or the owner or operator of an existing stationary source ofVOC

or NOx emissions that will undergo a major modification, as defined

in §116.12 ofthis title with respect to VOC or NOx

' shall meet the re~

quirements of subsection (d)(l) • (4) [sHhseetisn te*B - (4)] of this

section, except as provided in subsection [(f)] of tbis section. Table 1, located in the definition ofmajor modification in §116.12 of this

title, specifies the various classifications of nonattainment along with

the associated emission levels that designate a major stationary source

and significant level for those classifications.

PROPOSED RULES August 27, 2010 35 TexReg 7697
CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

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

use the offset ratio for the appropriate nonattainment classification as

defined in §116.12 of this title and shown in Table I located in the definition of major modification in §116.12 of this title. Internal offsets

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

(Al Major stationary sources with, a PTE of less than

100 tpy of an applicable nonattainment pollutant are not required to

undergo nonattainment new source review under this section, if the

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

1.3 to 1.

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 116.617; new §116.127; and the repeal 01 §116.121.

Thft proposed 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 submilted 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 submiltftd the amendment to

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

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

New Source Review (NNSR) SIP, both adopted on May 25,

(8) Major stationary sources with a PTE ofgreater than

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

offsets at a ratio of at least 1.3 to 1. Internal offsets used in this manner

can also be applied to satisfy tbe offset requirement.

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

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

must demonstrate that the benefits ofthe proposed location and source

configuration significantly outweigh the environmental and social costs

of that location.

ll1 [«1] For sources located in the EJ Paso owne nonattainment area as defined in 40 Code ofFederalRegulatioDS, Part 81 [~

ttf-this- title te gefiRitiaRs~], the requirements of this section

do not apply to NOx emissions.

This agency hftreby certifies that the proposal has been reviewed

by legal counsel and lound to be within thft agency's legal authority to adopt.

Filed wlth the Office ofthe Secretary 01 Stale on August 13, 2010.

TRD-201004711

Roben Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 26,2010

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

•••

(c) Except as noted in subsection [«1] of this section regarding NOx' the de minimis threshold test (netting) is required for all

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

one of the following conditions are met:

(1) the proposed emissions increases associated with a

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

of the individual nonattainment pollutant in areas classified under

Federal Clean Air Act (FCAA), Title I, Part D, Subpart 2 (42 USC,

§7511) classified as Serious or Severe;

(2) the proposed emissions increases associated with a

project. without regard to decreases, is less than 40 tpy of the indi~

vidual nonattainment pollutant in areas classified under FCAA, Title

I, Part D, Subpart 1 (42 USC, §7502) and for those under FCAA,

Title I, Part D, Subpart 2 (42 USC, §751I) classified as Marginal or

Moderate; or

(3) the project emissions increases are less than the significant level stated in Table I located in the definition of major modification in §116.12 of this title and when coupled with project actual

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

are less than or equal to zero tpy.

ftdt Fe£. ffte Bewlen Gal. esteR B~eFia, 'Dallas FeFl WeflI:r,

aae BeENlfftBnt PeR AFtfltIt eight h6fif MeBe R6R8ttainrnefd aFeft50 if

the HffiteEI8tales- 6ft. iFBBfBeRtaI Pfeteetisft AgeRey flfBftutlgtHeS fttlesFeEJl::I:iFing ftew SEH::H'ee :FeYiew peJ'fftit- 8fIfllieatiefts ffi these 6fe&S te :ee- e •alL,lateei fer. ftsfl&tt&illffieftt ftewSEH::H'eeRWtew aee er6:iag t&.aateBe heur 5f:&ftdeHl elB:Ssmeatieft, geept a& -BeteEi tit s\lBseetiBll f&) ttf

«tis- regaftiiftg NG,r; ffte fie. tlu=eshelel test (ftettiftg) is

~"'ilII....EIifieoli.ft'leBlIioliRgfllOje<........ef¥eGilI'NG~

tit that- aFe8-; URless at-least eRe efffte fa IIB.. iBg eSIlliitisns is met:}

ffB the- flFepsseEf emissiens ifleFeases assseiateEf with

• Jlfl'ieel, - fOg&f<! le .......e., .. less thoR /We 'JlY ef the

ifldi. idHal BBRattainmem flBllHtant; er}

the prejeet- efflissisHS iaereases are less theft the sigRifieIHlt_-..I... 'IllbIe I iooote<I ... the defiftili•• effIlOje< filediIieoIiea... ef l!lis tilIe _ wileR eeuj>Ied with Pfllieet aetual

emissistlS deere8:Ses fer. tfte-9&flle flsUttle:Itl:; 'StIftlmeEI- a&the jH6jeetfie£;

...., less thoR ill'"'l"f'l te ""'"Ijlft

@ [(ej] In applying the de minimis threshold test, if the net

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

title, the following requirements apply. >

(I) The proposed facility sball comply with the lowest

achievable emission rate (LAER) as defined in §116.12 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 (BACT) can be substituted for LAER. LAER sban otberwise be applied to each new facility and to each existing facility at

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

change or change in method of operation ofthe unit

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

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

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

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

commence operation, the emissions increases from the new or mod35 TexReg 7698 August 27, 2010 Texas Register
Figure: 30 TAC §116.12(18)(A)

TABLE I

MAJOR SOURCEIMAJOR MODlFICAnON EMISSION THRESHOLDS

POLLlITANT MAJOR SOURCE SIGNIFICANT OFFSET RA110

designationI tons/year LEVEL' minimum

tons/year

OZONE (VOC, NOX>'

I marginal 100 40 1.10 to I

n moderate 100 40 1.15 to I

ill serious 50 25 1.20 to I

IV severe 25 25 1.30 to I

CO

I moderate 100 100 1.00 to I'

n serious 50 50 1.00 to I'

So, 100 40 1.00 to I'

PM"

I moderate 100 15 1.00 to I'

II serious 70 15 1.00 to I'

NO: 100 40 1.00 to I'

Lead 100 0.6 1.00 to I'

I Texas nonattainment area designations as defined in §I01.1(70) ofthis title.

, The significant le",,1 is applicable only to existing major sources and shall be evaluated after netting,

unless the applicant chooses to apply nonattainment new source review (NNSR) directly to the project.

The appropriate netting triggers for existing major sources ofNOx and VOC are specified in §116.150 of

this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas) and for

other pollutants are equal to the significant level listed in this table.

, VOC and No" are precursors to ozone formation and should be quantified individually to determine

whether a source is subject to NNSR under §1l6.150 of this title. As specified in §1l6.150 ofthis title,

for EI Paso County, the NNSR rules apply to sources ofVOC, but not to sources ofNOx.

, The offset ratio is specified to be greater than 1.00 to I.

VOC =volatile organic compounds

NOx = oxides ofnitrogen

NO, = nitrogen dioxide

CO =carbon monoxide

SO, =sulfur dioxide

PM" =particulate matter with an aerodynamic diameter less than or equal to ten microns

, Applies to the NAAQS for nitrogen dioxide <No,).

35 TexReg 7896 August 27, 2010 Texas Register
Bryan W. Shaw, Ph.D., Chairman

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

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

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing andPreventing Pollution

PUBLIC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTERS 101AND

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 Texas Administrative Code (TAC) Chapter

101, General Air Quality Rules, §101.1, and Chapter 116, Control ofAir Pollution by Permits for

New Construction or Modification, §116.12 and §116.150; and corresponding revisions to the

state implementation plan (SIP), under the requirements ofTexas Health and Safety Code,

§382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal

Regulations §51.102 of the United States Environmental Protection Agency (EPA) regulations

concernrng SIPs.

The proposed rulemaking would amend definitions in Chapter 101 to remove language

regarding specific maintenance and nonattainment areas. Additionally, the proposed

rulemaking would amend Chapter 116 to remove language indicating that the one-hour

thresholds and offsets are not effective unless the EPA promulgates rules. The proposed

rulemaking would also amend Chapter 116 to add a requirement for continued applicability of

nonattainment New Source Review until the EPA approves its removal for areas attaining the

ozone national ambient air quality standard. In addition, the proposed rules address issues

identified by the EPA in its September 23, 2009, disapproval notice.

The commission will hold a public hearing on this proposal in Austin on September 20, 2010, at

2:00 p.m. in Building E Room 201S, at the commission's central office located at 12100 Park 35

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

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

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

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

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • Internet address: www.tceq.state.tx.us

primed on recycled paper
Persons who have special communication or other accommodation needs who are planning to

attend the hearing should contact Charlotte Hom, Office of Legal Services at (512) 239-0779.

Requests should be made as far in advance as possible.

Written comments may be submitted to Devon Ryan, Me 205, Office ofLegal Services, Texas

Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3°87, or faxed to

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

http://wwws.tceq.state.tx..us/rules/ecommentsj. File size restrictions may apply to comments

being submitted via the eComments system. All comments should reference Rule Project

Number 2008-030-n6-PR. The comment period closes September 27, 2010. Copies ofthe

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

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

contact Blake Stewart, Air Permits Division, (512) 239-6931.
WRITTEN AND 

ORAL TESTIMONY 
Reference Number

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W-Z

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INDEX OF WRITTEN TESTIMONY

Submitted By

Texas Industry Project

The United States Environmental Protection Agency

Zephyr Environmental Corp

Zephyr Environmental Corp
08/27/2010 16:53 FAX 002/005

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TEL +1 713.229.2108

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ONE SHEll PlAZA

910 LOUISIANA

HOUSTON, T!XAs BAKER BOlTSLLP 77002-4995

September 27.2010

OOSS80.013S

BY FACSIMILE

Ms, Devon Ryan. Me 205

Office ofLegal Services

Texas Commission on Environmental Quality

P_O. Box 13087 .

Austin. Texas 78711-3087

Re: Comments on proposed. Rule Project No. 2008-03Q-116-PR

Dear Devon:

The Texas Industry Project (uTIP"] appreciates the opportunity to prov:lde

c;omments on Texas Commission on Enviromnental Quality's proposed revisioDS to the

NonattaiMlent Anti-Backsliding Rules. TIP is comprised of 62 companies in the chemical,

refining. oil and gas, electronics, forest products, terminal, electric utility. and transportation

industries with opennions in Texas. TIP's comments are auaehed.

For further infonnation. please do not hesitate to contact mo.

HOU01:1210095 I
OS/27/2010 16:53 FAX

TEXAS INDUSTRY PROJECT

COMMENTS ON TCEQ'S NONATTAINMENT

ANTI-BACKSLIDING REVISIONS

SEPTEMBER 27, 2010

RULE PROJECT No. 2008-030-116-PR

I4I 003/005

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The Texas IndUstry Project ("TIP") appreciates the opportunity to comment QIl

TCEQ Rule Project 2008~30.116-PR. TIP is comprised of 63 companies In the cbemical,

refining, oil and gas, electronics, forest prodUCts, tenninal, electric utility. and transportation

industries with operations in Texas.I

L Summary

The proposal would amend sec;tjons 101.1(70). 116.12 (Table I). and 116.150 of

Title 30 ofthe Texas Administrative Code to cause nonattainmCllI New Source Review (NNSR)

requirements to apply to BtCBS designated nOnatlainment for ozone based on those areas'

classifications under the revolted I-hour ozone NAAQS.

TIP opposes the proposal. The proposal is unncoCS5ary to ensure anti-backsliding

for any Teltas ozone nonattainmcnI area, and will be superseded by a pendin& BPA rulemaking.

n. Commeots on Prop08ed Revisions

A. Area Classification Issues

The proposal is UMeces!llU)' to ensure anti-backsliding for any TeltBS ozone

nonattainment area.

TIP members participating in tb..e commenlS are: Albemarle Corporation, AI1<ema Inc.. Ascend

Perfonnll/lCCl Mcerilll. LLC. BASP CorporllliOll. BP. C.11IIICIC Chomicllli. Ltd•• CenterPoint 8nercY Houston

Electric, LLC, ChevrtII1 Corporadon, chevron Phillipl Chemicol CODIpaIIY LP. ClTOO Polrt>leum CotpOl'lllion,

conoeoPlliJIips. DCP Mldlnom, LLC, Degus.1 En,l-..cd Carbona. LP. Delok Refinlna Lid., Dixie Chemical

Compllly. !lie., Dow ChomlOlll ComJllUlY. The DyneII)' Inc., Bille Rock EllDr&)'. I!estmen Chemical ColllJlllllY. E. I.

Du Ponl de Nomours " Company. EnlllrJ)' Texu. Enterprise Produeu Oporatinll LLC. Botalon Power Tcxu,

ExxooMobil Cbemice1 CompeDY, PI_ Polym..... LLC, os BioIci..- CorporallOll, HalIlbunoD CompeDy.

Hunlllman Corponotion. INElOS NOVA LL.C. I_ntinenllli Tarmin~i Compony, In_IOIIal Paper Compony,

Imlmedonlll Power. Kinder MllfIIl/I Liquids Tcrminllll. LLC. LANXESS CorporallOll. LBC HD1IItDn. LP. Lyondoll

Chomlcal Compll/lY. Momhon Pelroleum Company LL.C, McadWcstv...Corporedon, Meriool USA. L.L.C•• NRC

T.... Power LLC. OdlJoli Tonnlllll1. (HOlll\On) LP. Olllllnklna Holdin& USA, Inc_ PelOId...a Rellnln& System, IDc~

PL Prop)llene. Prexalr. Inc.. Rohm and H... Tcxll, IncorporlUOd. Shell 011 Company. Shin,.ch. Inc.. Sterllns

Chemical., Inc., Stolthavan HOUSlon Inc.. Suez 8n""l)' North America, TARCA. Tcmpl..lnlllld Inc.. Tcxas

IIIIINmcnll Incorporeted, TPC Croup. 'rota! petrochemioals USA. Ino.. Union Pe<lflc Roliroad Compolll'. Valero

Energy Corporallon. Vopak LoalSllcs North Amerioa,lnc. Westem Rofinll1ll Co., I..P.

HOU02:12D99:liO.3 1
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1. HGB A....: Identical Clll5Slfications

The HO\lston..Qalveston-Srazoria area (HOB) is classified as a severe ozone

nonattalnment 8nl8 under bo1h the l-hour and 8-bour NAAQS. 40 C.F.R. § 81.344.

Accordingly. the rule is llnnecessary to establish a separate l-hour classification for major NSR

in HGB.

2. DFW' Area: Identical Clas.ificatioQ

The Dallas-Fan: Worth area (OFW) has a legacy olassification of$Cll'ious under the

I-hour NAAQS. .IU1d EPA has proposed to reclassifY the area to serious under the 8·hour

NAAQS. 40 C.F.R. § 81.344i 75 Ped. Reg. 47,746 (Aug. 9, 2010). Accordingly. the rule is

unnecessary to establish 8 separate l-hour classifioation for major NSR in DFW.

3. BPA Area: Attainmcot

For the Beaumont-Porl Arthur area (BPA), EPA has proposed to redesignate the

8r81l10 attainment for the 8-hour NAAQS. and to detmnine that the uea has attained the I-hour

NMQS and need not be subjcct to NNSR. 1S Fed. Reg. 21,514 (May 17. 2010). EPA's final

action. if adopted as proposed, will confirm that SPA need not impose l-hour or any ofthe antibacksliding requirem~ts.

4. EI Paso Area: Attainment

The EI Paso DTe& bas only ever been deslgnated. nonattainment for the I-hour

NAAQSJ is currently attaining both the I-hour and the i-hour NAAQS. and will be relicived of

NNSR under EPA's currmt proposal on l-bour NNSR anti-backsliding. 40 C.F.R. § 81.344; 7S

Fed. Reg. 27.514; 75 Fed. Reg. 51,960. 51,964 (Aug. 24. 2010) C'EPA has dotcnnlncd that 1~

hour nonattainmcnt major NSR should not apply to areas designated attainment for the 1991 Shour standard. regardloss of the aroa's designation for the I-hour standard at the time of

designation for the 8-hour standard.II). Like BPA, Bl Paso has now attaIned the ozone standard,

and need not retUrn 10 I-hour requircmmrts under anti-backsliding.

B. PeDdine EPA ReluiatiODB

Second. the proposal is premature in light of EPA's cWTently pendlng proposal. 10

revise its S·hour NAAQS implementation rule to speclfically require 1-bour NNSR for areas'

designated nonattalnment for the 8-hour NAAQS and to,provlde for temtination of I-hour NNSR

requirements based on 8-hour NMQS attainment. 75 Fed. Reg. 51.960 (Aug. 24. 2010). If

finalized substantially as proposed. EPA's rulcmaking would fulfill the "if' condition in footnote

6 to Table I of 30 Tex. Admin. Cod" § 116.12, causing that provision to require I-hour NNSR

undor the circumstances established by EPA'S rule. The purpose ofthe current footnote will be

served, and there will be no need to remove It and substltute other criteria than those EPA

published in a final rule. .

2
08/21/2010 16:53 FAX III 005/005

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C. Undue Hardsblp to Busln'lIelI

Third, thepropcsal could cause slllnlflcant hardship to businesses In the HOB,

DFW, BPA, and EI Paso areas that have contributed to ozone attainment. Re-lmposing I·hour

NNSR would restore stringent requiremllnts for owners and operators ofnew and modified major

statlonlllY sources. One-hour NNSR Was implemented based on oZl.1ne levels in the late 19808,

which wen: substantially higher than at the time of 8-hour NAAQS classifications nearly 20

years huer. Ozl.1ne levels today are even lower than at the time I.1f 8-hour NAAQS classifications.

causing I·hour NNSR tl.1 become Increasingly unnecessary. This dramatic improvement in

ozone levels can be credited in larie part to the efforts by the sUltll.1nary source sector to reduce

emi55ions. Rcitoring I-hour NNSR is both inequitable and unnecessary.

m. Conclusion

Fl.1r these reasons, the proposed revisions are not justified. TIP urges the

Commission not to adl.1pt the proposal.

HOU02 1~09'i5C 3 3
Ssp 27 2010 3:42PM HP LASERJET FAX

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UNIlED STATES ENVIRONMENTAL PAOTEcnoN AGENCY

REGIONS

1445 ROSS AVENUE, SUITE 1200

DALLAS, TX 76202-2733

SEP 2 7 2010

§ff 11 2000,

Ms. DevonRyan

Office ofLegal Services (MC 205)

Texas Commission onEnvironmental Qua1ity

P.O. Box 13087

Austin, TelCaS 78711-3087

RE: EPA Comments on Rule Project Ntmiber 200S-030-116-PR

Dear Ms. Ryan:

1bank you for providing us the opportunity to :revi.ew and comment on the

proposed revisions to 1he provisions for One-Hour Ozone Ma,jor Source Thresholds and

Emission Offsets at Texas Administrative Code (TAC) Title 30, Chapter 116, Control of

Air Pollution by Permits for N~ Construction or Modification, Sections 116.12 and

116.150 and the proposed associated tevisions to the Texas State Implementation Plan

(SIP). This proposed rulemaking revisesthe provisions for One-Hour Ozone Major

Sou:n:eTluesholds and Emis.'ljon Offsets to address the concerns identified in our

September 15. 2010, disapproval oftile Progmm. (75 FR 56424).

Please note 1bat these comments do not constitute final determinations concerning

approvability ofthe revisionsto the Texas SIP. We are providing these comments to

assist the Texas Commission on Environmental Quality (TCEQ) in the development of

regulatory language.
Sep 27 2010 3,42PM HP LASERJET FAX p.3

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We look forward to working with the TCEQ as you move forward inresponding

to these comments and finaliziDg the IeVisions to the Texas SIP. Ifyou have any

questions, please call Mr. StanIeyM. Spruiell ofmy staffat (214) 665-7212.

Sincme1y yours.

-==-.-JG.. - ~~ Thomas-lL Diggs

Associ!!tc: Director for Air Programs

Multimedia Planning lIDd

Permitting Division

Enclosure

2
Sep 27 2010 3:42PM HP LASERJET FAX

Enclosure

p.4

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1. Generally. most ofTCEQ's proposed changes meet federal requirements. These

revisions remove the language tbat precludes TCEQ from implementing the New

Source Review (NSR) requirements for the I-hour ozone NAAQS unless EPA

adopts roles to reinstate the I-hour NSR requirements. TCEQ makes it clearthat

NQI1pttsinmem NSR (NNSR) applies based upon the attainment status ofthe area

where the source is located on the date ofissUance Iatberthan the dAte of

submittal ofa complete pennit application. The comments below indicate items

of concc:m with the proposed IWle ProjectNo. 2008-030-1 16-PRthat TCEQ must

address to ensure that these changes will meet applicable federal. requiIements.

2. TCEQ proposes to revise 30 TAC 116.150(a) to require NNSR based upon

. nODl>ttainmem status as ofthe date ofissuance ofthe permit. It includes four

exceptions as identified in paragraphs (a)(1)-(4). We agree with these exceptions.

However, the rule must be clear that the four exceptions are effective on the date

ofissuanceofthe permit.. The change indicated below will address this concern.

(a) This section applies to all DeW source review authorizations for

new colll5truction or modification offiu:ilities that will be located in any

area designated as oonattainment for ozone UIIder 40 Unfu:d States Code

(USC), sections 7401 et seq. as ofthe date ofisswmce ofthe pc:rmit,

unless the following apply on the deofis,mwpe ofthe permit:

3. 30 TAC 116.1S0(d)(3)(A) provides that majorstationary llOUlCCS with apoteotial

to emit (PlE) less than 100 tpy ofan applicable nonattaimncnt pollutant are not

requim'l to undergo NNSR, ifthe project increases are offsetwith an internal

offsctIatio of 1.3 to 1. .This provision implements section 182(c)(7) ofthe Clean

Air Act (CAA) which includes this provision for serious and severe o:rone

oooattainment areas. This paragraph must be revised to clearly limit its'

applicability to serious and severe ozone nonattIimnent areas. The change

indicated below will address this concern.

(A) Major stationary sources located in a serious or severe ozone

nonAbjlJ11lll11t area with a PTE ofless than 100 tpy ofan applicable

nonpttainmellt pollutaIlt are not required to undergo nonattaimneat new

source review under this section, ifthe project increases are offset with an

internal offset ratio ofat 1east 1.3 to 1.
Sep 27 2010 3:42PM HP LASERJET FAX p.5

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4. 30 TAC 1I6.IS0(d)(3)(B) provides that ~orstati.oDary sources with a PlB

greater than 100 tpy ofan applicable nonattaimnent pollutant can substitute

BACT for LAER, ifthe project increases are offset with an internal offsetratio of

1.3 to 1. This provision implements section 182(c)(8) oftbe CAA which includes

this provision for serious and severe ozone nonattainmcnt areas. TCEQ must

make the changes described below:

A. This paragraph must be revised to limit its applicability to serious lIIid

severe ozone nonattainment areas.

B. Because this is a federal requiIemenl under CAA section 182(c)(B) oftbe

CAA., the role must specify that federal BACT as defined in the CAA as

used in the PSD Program should be substituted for LAER. UDder this

paragraph. not the State MinorNSR BACT.!

The changes indicated below will address these concerns.

(B) MeJor statiOnaIY somces located in a maUl! or severe ozone

nonattainrneM area"with a PTE of greater than or equal to 100 tpy of all

applicable nonattainmenl ponutant can substitute federal BACT W

identified 40 TAC 116.16Ofc)(1)(A» for LAER, ifthe project increases

are offset with an intemaI. offsct ratio ofat least 1.3 to 1. Internal offsets

used in tbis manner can also be applied to satisfy the offsetrequirement.

I See 7S FR. S6424, at S642~ (September IS, 2010) and 7S FR SS!rnl (September IS, 2010) rex- fin1ber

InJIarmauOll on 1bebasis :fur this comment.

2
consulting • training • data systems

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September 27, 2010

Mr. Devon Ryan

MC205

Office of Legal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

Re: Comments on proposed 30 'lAC Chapter 101 Changes

Rule Project Number 2008-030-116-PR

Dear Mr. Ryan

On behalf of Western Refining, I am submitting some brief comments concerning the Texas

Commission on Environmental Quality (TCEQ) proposed changes to SOTAC Chapter 116 Rule,

TCEQ Rule Project Number 2008-03D-116-PR.

We agree with the TCEQ proposed changes to 30 'lAC 116.150(a) related to the applicability of

Nonattainment New Source Review (NSR). We specifically support the addition of the

proposed language in Section 116.50(a)(1) through (4) which establishes criteria upon which

new construction and modification of facilities in an area are not subject to nonattainment NSR.

We understand that the proposed criteria includes those cases when EPA. has made a finding of

attainment, approved the removal of nonattainment NSR requirements from the area,

detennined that Prevention of Significant Deterioration (PSD) applies in the area, or determined

that nonattainment NSR is not required to assure "anti-backstldlng'.

We understand that the proposed changes are Intended to provide the regulatory language

required to allow the state's PSD program to be immediately effective in the Beaumont-Port

Arthur (sP,M area (as proposed by EPA in Federal Register dated May 17, 2010 Volume 75,

Number 94,EPA Docket 10 No.ePA~AA-2oa&-0932). We also understand that this

language is necessary to allow the state's PSD program to be immediately effective in the EI

Paso area upon EPA~ determination that EI Paso County has attained 1he revoked one-hour

ozone standard. This attainment determination for EI Paso was requested by both the TCEa

letter dated May 24, 2010 and the Greater EI Paso Chamber of Commerce June 15, 2010

comments submitted to l':5PA Docket 10 No. 1;P~...f\06..0AR":~ concerning the BPA

attainment determination.

2600 Via Fortuna, Suite 450 • Austin, Texes 7B746 • PH 512.329.5544 • FAX 512.329.8253

www,zeohyrEnY,cQm • lNWW.HazMatAcademy,coDJ
Mr. Devon Ryan

September 21,201 0

Page 2 of 2

We appreciate TCEO's effort to establish the regulatory language that provides a mechanism to

immediately establish PSD as the appropriate federal NSR permitting requirements for those

areas where EPA has made the related finding, approvals or determination. We recommend

that the final rule adoption include the proposed 116.150(a)(1)-(4) language and any other

language required by EPA in order to allow the appropriate PSD air permit requirements to be

implemented in a streamlined fashion.

We also urge TCEO to work with EPA to act expeditiously to establish the 1 hour ozone

standard attainment determination requested for EI Paso County in the June 15, 2010 Greater

EI Paso Chamber of Commerce letter and May 24, 2010 TCEOIatlar.

We appreciate the opportunity to provide these comments and TCEO's diligent efforts to assure

that all regulatory language is in place so that the appropriate PSD air permitting requirements

can be immediately effective In EI Paso County and other areas as applicable. Please feel free

to call me concerning these comments at 512-879-6618.

Sincerely,

ZEPHYR ENVIRONMENTAL COAPORlTlON

'{~) t\) \v--

Karen N.T. Olson, P.E.

Principal

Cc: Western Refining

Greater EI Paso Chamber of Commerce

Walker Williamson, TCEO
consulting • training • data systems

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September 27. 2010

Mr. Devon Ryan

MC20S

Office of Legal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

Re: Comments on proposed 30 TAC Chapter 101 Changes

TCEQ Rule Project Number 200B-030-116-PR

Dear Mr. Ryan

On behalf of Western Refining, I am submitting some brief comments concerning the Texas

Commission on Environmental Quality (TCEQ) proposed changes to 30 TAC Chapter 101 Rule,

TCEQ Rule Project Number 2008-030-116-PR.

We understand that TCEa's intends to "prevent future confusion over designations and

classifications and their related applicability thresholds and emission offsetreql,jirements· with

the proposed changes to the definition of non-attainment area (30TA0101.1('7O)lwhich remove

the specific definitions in Chapter 101 and only refer to the federal regUlation for identification of

those areas. While we support the TCea intent for clarity In the definition of federally applicable

designations and classification. we do not believe simply referencing those federal regulations

will necessarily accomplish the desired goal to prevent confusion or clalify requirements.

We understand that the commission "regularly posts information regarding the designation

process for new National ambient air quality standard (NMQS) on the TCEa public Web siteD.

However we do not believe that the existing TCea website postlngs will prevent "future

contusion-. -Future confusion" will be mitigated If. in conjunction with the proposed 101.1 (70)

definition change, the TCEa posts and maintains the necessary and current infonnation related

to designations and classifications and their related implementation and timeline requirements.

We specifically request that in the final rule adoption that TCEa provide the clarity needed by

specifying in its response to comments additional items related to nonattainment issues that will

be maintained on its public web site.'VY' specifically recommend the following items be

prOVided, in an easy access form, on TCEa public website:

2600 Via Fortuna, Suite 450 • Austin. Texas 78746 • PH 512.329.5544 • FAX 512.329.8253

www.ZeohyrEn....cQm • www.HazMatAcademy.com
Mr. Devon Ryan

September 27. 2010

Page 2 of 3

1. A specific TCEO pos~ion identified as responsible for assuring that this web page is

kept up to date for both regulatory and permitting issues (for example the Chief Engineer

or the Air Permits Division Director).

2. The web page location and responsible position (with an email address and phone

number) be identified on both the Air Pennits and Chief Engineer home page for ease of

access.

3. Before adoption of the proposed rule changes, that this web page be established and

available with complete and up-to-date information which provides a one-stop reference

to nonattainment designation, regulatory and pennitting guidance and issues. We

request that the website include at least the following:

a. The current designations and classifications for all maintenance and nonattainment areas (referred to as "all areas· in the remainder of these comments)

for all effective NMOS (including both the 1 hr and B hr ozone standard)

including the effective date of any such designation.

b. The historical designations and classification of all areas, the effective date 01

those designations changes, and the regulatory citations that established those

designation changes and effective dates.

c. Any findings, approvals, or detenninations, which clarify the non-applicability of

Nonattainment New Source Review (NSR) review (as provided for in the

proposed 116.1~19~;

d. Future proposed NMOS changes and designations (such as the pending new B

hour ozone standard) and the regulatory and air quality pennitting timelines

associated with those designation changes.

e. Identification and links to all documents supporting the infonnation summarized

on this web page.

f. Identification and links to all documents establishing air quality pennltting

reqUirements and timelines related to any NMOS change, re-designation,

finding, approvals or detenninations.

g. A Hot Line number which provides one stop access to answers related to nonattainment designation and related regulatory and air quality permitting

questions.

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Mr. Devon Ryan

September 27, 2010

Page 3 of 3

Please note that, In addition to the needed clarity concerning nonattainment designations, clarity

is needed concerning related applicable air permit requirements. Therefore, it Is absolutely

essential, in conjunction with this rule adoption, that TCEQ adopt 116 regulatory language,

consistent with the proposed 116.150(a), which provides for ,EPA findings, approvals and

determinations related to an area's nonattainment status. Separate comments are being

provided which support the proposed 116.150(a) related to nonattainment new source review

applicability.

We appreciate the opportunity to provide these comments and TCEQ's effort through Web site

references to bring clarity to this highly complex and continuously changing area of nonattainment issues. Please feel free to call me concerning these comments at 512-879-6618.

Sincerely,

ZEPHYR ENVIRONMENTAL CORPORATION

\~~~.~ Principal

Cc: Western Refining

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INDEX OF ORAL TESTIMONY

Public Hearing

September 20, 20 I0_ in Austin

TCEQ received no oral testimony for this rulemaking
()

HEARING OFFICERREPORT

I am the hearing officer assigned to conduct the public hearing regarding One-hour

Ozone Major Source Thresholds and Emission Offsets, Rule Project Number: 2008-030-

116-PR.

A public hearing was scheduled for September 20, 2010, at 2:00 p.m. in Building E

Room 201S, at the commission's central office located at 12100 Park 35 Circle, Austin,

Texas.

At 1:30 p.m., the room was open and TCEQ staffmembers were available to discuss the

proposal At 2:00 p.m., 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 transcript was not prepared.

~fficel>=

'1-'12-/0

Date signed
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality

INTEROFFICE MEMORANDUM

To:

Thru:

From:

Docket No.:

Commissioners

LaDonna Castafiuela, ChiefClerk

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

Richard A. Hyde P.E., DeputyDirector~ Office of Permitting and Registration

2008-1631-RUL

Date: January 21, 2011

Subject: Commission Approval for Adopted Rulemaking

Chapter 101, General Air Quality Rules

Chapter 116, Control ofAir Pollution by Permits for New Construction or

Modification

One-hour Ozone Major Source Thresholds and Emission Offsets

Rule Project No. 2008-030-116-PR

Background and reason(s) for the rulemaking:

In implementing the 1997 eight-hour ozone national ambient air quality standard (NAAQS) the

United States Environmental Protection Agency (EPA) finalized rules (known as the Phase I Rule)

that did not require regulated entities to continue to use the more stringent major source

thresholds and emission offset requirements ofthe one-hour ozone NAAQS that previously applied

to them when implementing new source review (NSR) and Title V permitting (referred to later in

this document as the EPA's NSR permitting anti-backsliding requirement).

The EPA's Phase I Rule for implementing the 1997 eight-hour ozone NAAQS was challenged on

several grounds, including the NSR permitting anti-backsliding requirement. The District of

Columbia Circuit Court of Appeals issued its opinion in South Coast Air Quality Management

District v. Environmental Protection Agency, on December 22, 2006, vacating the Phase I Rule,

which it later amended on June 8, 2007, to limit the vacatur to those parts of the rule that were

successfully challenged. The mandate (the order ofthe court to enforce the decision) was issued by

the court on August 29, 2007, and the United States Supreme Court denied the appeal on January

14,2008.

After the court vacated the Phase I Rule and amended its opinion providing for partial vacatur and

remand ofthe Phase I Rule, the EPA issued a guidance memo on October 3, 2007, documenting the

effect ofthe court's ruling to restore NSR applicability thresholds and emission offset requirements

under the one-hour ozone standard, and stating that it intended to undertake rulemaking to

conform its NSR rules to the court's decision. The memo also noted that while the EPA was

working on rulemaking, it strongly encouraged states to comply with the court decision "as quickly

as possible."

The EPA representatives later verbally told the TCEQ staff that the South Coast decision was selfimplementing and did not require rulemaking by the EPA to be effective. This position has been

reiterated in a letter to the TCEQ regarding the issuance of a prevention of significant deterioration

and nonattainment NSR (NNSR) air quality permit to Calpine Deer Park Energy Center,

documenting the EPA's concerns regarding the permit issued by the TCEQ, which have not yet

been resolved. However, the EPA has continued to state publicly that it is in the process of drafting

rules to address the South Coast decision, and in particular the NSR permitting anti-backsliding
Commissioners

Page 2

January 21, 2011

Re: Docket No. 2008-1631-RUL

requirement, which mayor may not include action or discussion regarding the appropriate

implementation date.

Because the one-hour ozone standard has been revoked, the EPA is no longer making

redesignations or reclassifications under this standard. However, the EPA is making

determinations under its Clean Data Policy that areas are currently attaining the one-hour ozone

NAAQS. The EPA has indicated that states must continue to meet the obligations for one-hour

NSR. Currently, the EPA is developing two proposed rules to address the Court's vacatur and

remand. These proposed rules will address how the one-hour obligations will continue to apply

under the EPA's anti-backsliding rule (as interpreted by the Court) where the EPA has made a

determination that the area attained the one-hour ozone NAAQS by its attainment date. One

possible outcome from the EPA rulemaking on this issue may be to direct states that want to

remove one-hour ozone nonattainment NSR requirements to submit state implementation plan

(SIP) revisions demonstrating that removing one-hour ozone nonattainment NSR requirements

will not interfere with attainment or maintenance ofthe ozone NAAQS. '

On June 10, 2005, the TCEQ submitted amendments to §116.12 and § 116.150 to the EPA as

revisions to the NSR SIP. On September 15, 2010, the EPA published notice of the final

disapproval of these revisions to the Texas SIP (75 Federal Register 56424), together with

proposed disapproval of rules adopted l;>y the commission which were submitted to EPA on

February 1, 2006. This rulemaldng and the companion rulemaking (Rule Project No. 2010-008-

116-PR) will address those sections submitted as revisions to the NSR SIP and subsequently

disapproved by the EPA Additionally, on October 20, 2010, EPA published a final rule to approve

the redesignation of the Beaumont-Port Arthur (BPA) 1997 eight-hour ozone nonattainment area

to attainment, and clarify EPA's previous approval of the El Paso § 110(a)(l) maintenance plan for

the 1997 eight-hour ozone standard (75 Federal Register 64675, October 20, 2010). This final rule

noted EPA's new position regarding NSR anti-backsliding and whether one-hour ozone major

source thresholds and emission offset requirements continue to apply in an area. Therefore,

although the Texas SIP has always applied PSD in an area upon redesignation, the commission is

adopting changes to 30 TAC Chapter u6 to make clear that PSD applies once an area has been

redesignated to attainment for a particular criteria pollutant. This is an issue of extreme

importance to the commission, the regulated community, and the public, and there should be no

room for ambiguity or argument. In an effort to ensure that TCEQ regulatory requirements

regarding the NNSR permitting program meet the requirements of the Federal Clean Air Act

(FCAA) and are approvable into the SIP, the commission is adopting an amendment to provide

clarity and eliminate any deficiencies that would prevent approval ofthe rule changes.

Scope ofthe rulemaking:

A) Summaryofwhat the rulemaking will do:

The rulemaking would amend the definitions in Chapter 101 to remove language regarding specific

maintenance and nonattainment areas and provide direction regarding the federal one-hour ozone

standard; amend Chapter 116 to remove language indicating that the one-hour thresholds and

offsets are not effective unless the EPA promulgates rules; and amend Chapter 116 to add a

requirement for continued applicability of one-hour NNSR until the EPA approves its removal for

areas attaining the ozone NAAQS.

B) Scope requiredbyfederal regulations orstate statutes:
Commissioners

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January 21, 2011

Re: Docket No. 2008-1631-Rill

This rulemaking would change the definitions of the terms maintenance area and nonattainment

area in Chapter 101 by removing language regarding specific areas and referencing the definitions

in the federal rule. Also, it would revise §116.150 to apply the requirements ofthis section as ofthe

date of issuance of the permit rather than the· date when the permit is declared administratively

complete. The rulemaking would remove language stating that one"hour ozone thresholds and

offsets will not be required unless the EPA promulgates rules. Additionally, it would add language

to Chapter 116 that makes clear that areas subject to NNSR requirements remain so until the EPA

approves removal.

C) Additional staffrecommendations that are not required by federal rule or state

statute:

This rulemaking would make additional nonsubstantive edits and ellanges to references.

. Statutory authority:

In addition to the general authority in Texas Water Code, -§§ 5.102,5.103, and 5.105 imd Texas

Health and Safety Code ('IHSC), § 382.002 and § 382.017, the authority is as follows: THSC,

§ 382.011, concerning General Power and Duties, which authorizes the commission to administer

the requirements of the Texas Clean Air Act '(TCAA); THSC, § 382.012, concerning State Air

Control Plan, whiell authorizes the commission to prepare and develop a general, comprehensive

plan for the control of the state air; THSC, § 382.051, concerning Permitting Authority of

Commission; Rules, which authorizes the commission to issue permits for construction of facilities

that emit air contaminants; THSC, § 382.0513, concerning Permit Conditions, which authorizes the

commission to establish and enforce permit conditions consistent with THSC, Chapter 382; THSC,

§ 382.0518, concerning Preconstruction Permit, which requires that a permit be obtained fro.m the

commission prior to new construction or modification of an existing facility; and THSC,§ 382.055,

concerning Review and Renewal of Preconstruction Permit, which provides the requirements for

renewal ofpreconstruction permits.

Effect on the:

A) Regulated community:

Due to decreased thresholds, sources may be more likely to be subject to federal NSR

nonattainment review and some may be subject to retroactive review. If a facility is required to

have a federal NSR permit, the cost 'will be approxinlately one-half million dollars or more.

B) Public:

Members of the public working or residing in nonattainment areas may benefit due to reduced

emissions resulting from more stringent permitting requirements.

C) Agency programs:

There should not be any impact on agency programs.

Stakeholder meetings:

No stakeholder meetings have been held. However, background documents related to this

rulemaking have been posted on TCEQ's external website. Also, standard notice of this action and

an opportunity for comment was provided after proposal. A public hearing on this rule proposal

was sc1leduled for September 20, 2010, however no comments were received.
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January 21, 2011

Re: Docket No. 2008-1631-RUL

Public comment:

Industry co=ented that the rulemaking was unnecessary to prevent backsliding; would be

superseded by a rulemaking from the EPA; and would create an unnecessary hardship business.

Industry also co=ented that removal ofspecific definitions and referencing federal regulations

would not accomplish the stated goal of reducing confusion over nonattainment area designations.

The EPA made several requests for specific changes in §116.150 to clarify the intent ofthe rule.

These changes are summarized in the "Significant changes from proposal" section below.

Significant changesfrom proposal:

As the result of co=ents received from the EPA on the proposal ofthese amendments staff

reco=ends changes to the following: .

§ 116.150(a)(1)-(4) to make clear that the conditions on which these exceptions are based must

.exist on the date ofissuance ofthe permit;

§ 116.150(d)(3)(A) to make clear that this exception only applies in a serious orsevere ozone

nonattainment area; and

§ 116.150(d)(3)(B) to make clear that this exception only applies in a serious or severe ozone

nonattainment area and to specifically state that the best available contr9l technology (BACT)

equivalent required by the rule is federal BACT as identified in § 116.160(c)(1)(A).

Also, as the result ofstaff co=ent on this rule, the commission is removing the language "to

prevent anti-backsliding" in § 101.(70)and replacing it with ''for the purposes of anti-backsliding"

since the intent ofthe rule is to prevent backsliding and promote anti-backsliding.

Additionally, the commission is making a change from the proposal to remove the second sentence

offootnote 3 ofTable I in § 116.12(18) regarding the El Paso ozone nonattainment area. As the

result ofthe EPA's final notice regarding the Beaumont/PortArthur ozone nonattainment area

redisignation, which clarified the EPA's approval ofthe El Paso area's eight-hour ozone

nonattainment maintenance plan, the requirement for El Paso in footnote 3 is no longer necessary.

Potential controversial concerns and legislative interest remaining after proposal

and public comment:

The EPA has proposed federal rulemaking and has redesignated the Beaumont/ Port Arthur area as

attainment for the one-hour standard reducing the likelihood of public controversy regarding these

amendments.

Does this rulemaking affect any current policies or require development ofnew

policies?

Although not an official agency policy, the Air Permits Division (APD) currently requests, that

permit applicants evaluate permitting requirements based on the one-hour ozone major sOurce

thresholds and emission offset requirements.

What are the consequencesifthis rulemaking does not go forward? Are there

alternativesto rulemaking?

Language in Chapter 116 will continue to be interpreted as limiting the TCEQ's ability to require

evaluation of NSR permit applications under the one-hour ozone standard. The EPA will continue
Commissioners

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January 21, 2011

Re: Docket No. 2008-1631-RUL

to make adverse co=ents related to specific NSR permit actions and federal delegation of NSR

permitting to the TCEQ will be jeopardized.

Key points in adoption rulemaking schedule:

Texas Register proposal publication date: August 27, 2010

Anticipated Texas Register publication date: February 25, 20111

Anticipated effective date: March 3, 2011

Six-mQnth Texas Registerfiling deadline: February 28, 2011"

Agency contacts:

Blake Stewart, Air Permits Division, 239-6931

Terry Salem, Environmental Law Division, 239-0469

Janis Hudson, Environmental Law Division, 239-0466

Devon Ryan, Texas Register Coordinator, 239- 6090

cc: ChiefClerk, 2 copies

Executive Director's Office

Susana M. Hildebrand, P.E.

Kevin Patteson.

Curtis Seaton

Ashley Morgan

Office of General Counsel

Blake Stewart

Devon Ryan "
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2008-030-n6-PR

The Texas Commission on Environmental Quality (commission, agency, or TCEQ)

adopts the amendment to §101.1.

Pagel

The amendment to §101.1 is adopted with changes to the proposed text as published in

the August 27,2010, issue ofthe Texas Register (35 TexReg 7676) and will be

republished.

The amendment to §101.1 will be submitted to the United States Environmental

Protection Agency (EPA) as a revision to the state implementation plan (SIP).

Background and Summary ofthe Factual Basis for the Rule

The EPA rules implementing the 1997 eight-hour ozone standard did not require

regulated entities to continue to use the more stringent major source thresholds and

emission offset requirements ofthe one-hour ozone standard that previously applied to

them when implementing New Source Review (NSR) and Title V permitting for the 1997

eight-hour ozone standard. The EPA rule (known as Phase I) was successfully

challenged in South CoastAir Quality Management District v. EPA (South Coast) 472

F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the vacatur was

limited to the issues on which the court granted the petitions for review). The EPA has

interpreted the court ruling as restoring NSR applicability thresholds and emission

offset requirements under the one-hour ozone standard to prevent backsliding. The
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Rule Project No. 2008-030-116-PR

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South Coast decision was upheld by the Supreme Court on January 14, 2008. TCEQ is

adopting concurrent amendments to 30 TAC Chapter 116, Control ofAir Pollution

by Permitsfor New Construction or Modification, to make clear the

applicability ofthe major source thresholds and emission offset requirements.

Additionally, in order to prevent future confusion over designations and classifications

and their related applicability thresholds and emissions offset requirements, TCEQ is

making changes to the definitions in §101.1(54), concerning maintenance area, and

§101.1(70), concerning nonattainment area. Because maintenance and nonattainment

areas and their boundaries are subject to change based only on federal actions, this

amendment will eliminate references to specific maintenance and nonattainment areas

in favor of a more general definition that indicates the federal regulations that define

these areas and the federally applicable designations and classifications. In order to

ensure that the public has access to up-to-date information regarding the specific

descriptions of nonattainment and maintenance areas, the commission regularly posts

information regarding the designation process for new National Ambient Air Quality

Standard (NAAQS) on the TCEQ public Web site.

Staff has previously presented this rule amendment (Rule Project 2008-030-116-PR) to

the commission for consideration. At the February 25, 2009, commissioner's agenda,

the commission remanded the rule project to the executive director's staffin
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Page 3

anticipation of additional direction or action by the EPA, because EPA continued to

indicate in various federal notices its intent to complete rulemaking regarding NSR antibacksliding requirements after the South Coast decision. EPA's proposed rule to

implement the 1997 eight-hour ozone NAAQS revision on subpart 1 reclassification and

anti-backsliding provisions under the former one-hour ozone standard was published in

the January 16, 2009, Federal Register, but has not yet been finalized. This rulemaking

removes language regarding the exemptions from nonattainment new source review

(NNSR) that were vacated by South Coast.

On September 23, 2009, the EPA published notice ofthe proposed disapproval of past

revisions to the Texas NNSR SIP (74 Federal Register 48467) that are related to this

rule amendment, and finalized this disapproval on September 15, 2010 (75 Federal

Register 56424). Additionally, on October 20, 2010, EPA published a final rule to

approve the redesignation ofthe Beaumont-Port Arthur (BPA) 1997 eight-hour ozone

nonattainment area to attainment, and clarify EPA's previous approval ofthe EI Paso

§1l0(a)(1) maintenance plan for the 1997 eight-hour ozone standard (see 75 Federal

Register 64675, October 20,2010). This final rule noted EPA's new position regarding

NSR anti-backsliding and whether one-hour ozone major source thresholds and

emission offset requirements continue to apply in an area. EPA noted "after final

redesignation to attainment for the 1997 eight-hour ozone standard, EPA does not

require the continued application of one-hour anti-backsliding nonattainment NSR, if
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Rule Project No. 2008-og0-116-PR

Page 4

Texas interprets its SIP as applying prevention ofsignificant deterioration (PSD) to BPA

in these circumstances" (See 75 Federal Register 64675 and 64677, October 20,2010).

The EPA also clarified that, with respect to El Paso, "EPA has had further opportunity to

consider the applicable statutory and regulatory provisions and the decision in South

Coast .... As a result, we no longer believe that the Clean Air Act requires a separate

1100) analysis to replace one-hour nonattainment NSR with PSD once an area has been

redesignated to attainment for the 1997 eight-hour ozone standard, or has an approved

110(a)(I) maintenance plan for that standard. In sum, we believe that the approach to

the nonattainment NSR/PSD transition that we are adopting here with respect to BPA

should also be extended to EI Paso. Thus, as long as the Texas NSR SIP is clear that the

PSD SIP requirements apply to an area such as EI Paso, then that is all that is required

by EPA" (See 75 Federal Register 64675, 64677, October 20, 2010). The commission

appreciates this clear statement from EPA, and agrees that the SIP should be clear on

this issue. Therefore, as discussed in this preamble, although the Texas SIP has always

applied PSD in an area upon redesignation, the commission is concurrently adopting

changes to Chapter 116 to make clear that PSD applies once an area has been

redesignated to attainment for a particular criteria pollutant.

The concurrent amendments to Chapter 116 confirm that the BPA area is no longer

subject to NNSR. As discussed previously in this preamble, on October 20, 2010, EPA

published the redesignation ofthe BPA area to attainment for the 1997 eight-hour ozone
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2008-030-n6-PR

NAAQS, and a determination that the BPA area had attained the one-hour owne

Pages

NAAQS. In this action, EPA determined that the BPA area need not be subject to NNSR

as an anti-backsliding requirement. Thus, under the amendment to §n6.1so(a)(I), the

BPA area is not subject to NNSRfor eitherthe one-hour ozone or 1997 eight-hour ozone

NAAQS. Additionally, the concurrent amendments to Chapter n6 confirm that the EI

Paso area is no longer subject to NNSR. On January 15,2009, EPA published its

approval of a maintenance plan for the EI Paso area for the 1997 eight-hour owne

standard. As discussed previously in this preamble, in EPA's October 20,2010, action

for the BPA area, EPA stated that "we no longer believe that the Clean Air Act requires a

separate BOO) analysis to replace I-hour nonattainment NSR with PSD once an area has

... an approved no(a)(I) maintenance plan for that standard" (see 75 Federal Register

64677). Taken together, these statements reflect an EPA determination that NNSR is no

longer required for purposes of anti-backsliding for the EI Paso area. Thus, under the

amendment to §n6.1so(a)(4), the EI Paso area is not subject to NNSRfor either the

one-hour ozone or 1997 eight-hour ozone NAAQS.

This is an issue of extreme importance to the commission, the regulated community,

and the public, and there should be no room for ambiguity or argument. In an effort to

ensure that TCEQ regulatory requirements regarding the NNSRpermitting program

meet the requirements ofthe Federal Clean Air Act (FCAA) and are approvable into the

SIP, the commission is adopting an amendment to provide clarity and eliminate any
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2008-030-n6-PR

deficiencies that would prevent approval ofthe rule changes.

Section Discussion

§101.1, Definitions

Page 6

The commission is amending the definition ofmaintenance area in §101.1(54). This

amendment removes the specific descriptions of maintenance areas within the state in

favor of a more general definition that makes clear that these areas are designated by

federal action. Similarly, the commission is amending the definition of nonattainment

areas in §101.1(70) to remove all references to specific nonattainment areas in

§101.1(70)(A) - (G) and retain those parts ofthe definition that refer to federal

regulations and the Federal Register. These changes help ensure that when changes are

made to maintenance areas and nonattainment areas as a result offederal action, these

rules will not be rendered incorrect. Also, for the one-hour orone NAAQS, the

designations and classifications in 40 Code of Federal Regulations (CFR) Part 81 were

retained by EPA for purposes of anti-backsliding (See 70 Federal Register 44470,

August 3, 2005). Upon determination by EPA that any requirement is no longer

required for purposes of anti-backsliding, the requirement will no longer apply. The

commission is also removing the language "to prevent anti-backsliding" and replacing it

with "for the purposes of anti-backsliding" since the intent ofthe rule is to prevent

backsliding and promote anti-backsliding. Any revision to a SIP that could interfere with

or does not comply with the FCAA and the SIP because it has the effect of making the
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Chapter 101 - General Air Quality Rules

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Page 7

approved SIP less stringent may be considered as "backsliding" from those requirements

and would not be approvable by the EPA. Additionally, the definition of reportable

quantity contains references to §101.1(70) in §101.1(88)(A)(i)(I1I)(-a-), (-c-), (-w-), (-pp-

), and (-zz-) that would be incorrect based on the amendments to §101.1(70). The

commission is amending §101.1(88) to correct these references.

Final Regulatory Impact Analysis

The commission invited public comment regarding the draft regulatory impact analysis

determination during the public comment period, but no comments were received. The

commission reviewed the rulemaking in light ofthe regulatory impact analysis

requirements ofTexas Government Code, §2001.0225, and determined that the

rulemaking does not meet the definition of a major environmental rule as defined in that

statute, and in addition, ifit did meet the definition, would not be subject to the

requirement to prepare a regulatory impact analysis.

A major environmental rule means a rule, the specific intent of which is to protect the

environment or reduce risks to human health from environmental exposure, and that

may adversely affect in a material way the economy, a sector ofthe economy,

productivity, competition, jobs, the environment, or the public health and safety ofthe

state or a sector ofthe state. The specific intent ofthe revisions are to add references to

federal regulations in certain definitions that are duplicative with federal regulation that
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2oo8-o30-n6-PR

Page 8

the state has no authority to legally change, and to correct references in the definition of

reportable quantity. These changes will not adversely affect the economy, a sector or the

economy, productivity, competition, jobs, the environment, or the public health and

safety ofthe state or a sector ofthe state in a material way because they are

administrative in nature.

Additionally, even ifthe rule met the definition of a major environmental rule, the

rulemaking does not meet any ofthe four applicability criteria for requiring a regulatory

impact analysis for a major environmental rule, which are listed in Texas Government

Code, §20010022s(a). Texas Government Code, §20010022S, applies only to a major

environmental rule, the result of which is to: 1) exceed a standard set by federal law,

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

state law, unless the rule is specifically required by federal law; 3) exceed a requirement

of a delegation agreement or contract between the state and an agency or representative

ofthe federal government to implement a state and federal program; or 4) adopt a rule

solely under the general powers ofthe agency instead of under a specific state law.

The adopted rule would implement requirements ofthe FCAA. Under 42 United States

Code (USC), §7410, each state is required to adopt and implement a SIP containing

adequate provisions to implement, attain, maintain, and enforce the NAAQS within the

state. While 42 USC, §7410 generally does not require specific programs, methods, or
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2008-030-116-PR

Page 9

emission reductions in order to meet the standard, state SIPs must include specific

requirements as specified by 42 USC, §7410. The provisions ofthe FCAA recognize that

states are in the best position to determine what programs and controls are necessary or

appropriate in order to meet the NAAQS. This flexibility allows states, affected industry,

and the public, to collaborate on the best methods for attaining the NAAQS for the

specific regions in the state. Even though the FCAA allows states to develop their own

programs, this flexibility does not relieve a state from developing a program that meets

the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42

USC, §7410, and must develop programs to assure that their SIPs provide for

implementation, attainment, maintenance, and enforcement ofthe NAAQS within the

state. One ofthe requirements of 42 USC, §7410 is for states to revise their plans as

necessary to take account revisions ofthe NAAQS. The rule revisions will align the state

rules with federal requirements that the state has no authority to change, since the

FCAA reserves all authority concerning designations and classifications for the EPA

only, in addition to correcting internal references in the rules

The requirement to provide a fiscal analysis of regulations in the Texas Government

Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent

of SB 633 was to require agencies to conduct a regulatory impact analysis 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
Texas Commission on Environmental Quality

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Page 10

requirement ofstate law, federal law, or a delegated federal program, or are adopted

solely under the general powers ofthe agency. With the understanding that this

requirement would seldom apply, the commission provided a cost estimate for SB 633

that concluded "based on an assessment ofrules 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 ofrules that would

require assessment under the provisions ofthe 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

major environmental 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 conclusions reached by the commission in its cost

estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the

legislature is presumed to understand the fiscal impacts ofthe bills it passes, and that

presumption is based on information provided by state agencies and the LBB, the

commission believes that the intent of SB 633 was only to require the full RIA for rules
Texas Commission on Environmental Quality

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Page 11

that are extraordinary in nature. While this rule 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 rule does not exceed the requirement to

attain and maintain the NAAQS. For these reasons, this rule falls under the exception in

Texas Government Code, §2001.0225(a), because it is required by, and does 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 laws without

making substantial change in the statute, the legislature is deemed to have accepted the

agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489

(Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue,

960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex.

App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172

(Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App.

Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and CoastalIndust. Water Auth. v. Trinity Portland Cement

Div., 563 S.W.2d 916 (Tex. 1978).)
Texas Commission on Environmental Quality

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The commission's interpretation ofthe RIA requirements is also supported by a change

made to the .Texas Administrative Procedure Act (APA) by the legislature in 1999. In an

attempt to limit the number ofrule challenges based upon APA requirements, the

legislature clarified that state agencies are required to meet these sections ofthe APA

against the standard of "substantial compliance" (Texas Government Code, §2001.03S).

The legislature specifically identified Texas Government Code, §2001.022S asfalling

under this standard. As discussed in this analysis and elsewhere in this preamble, the

commission has substantially complied with the requirements ofTexas Government

Code, §2001.022S.

The rule implements requirements ofthe FCAA, specifically 42 USC, §741O. The specific

intent ofthe revisions is to add references to federal regulations in certain definitions

that are duplicative with federal regulation that the state has no authority to legally

change, and to correct an inadvertent omission in the definition of reportable quantity.

The amendment was not developed solely under the general powers ofthe agency, but is

authorized by specific sections ofTexas Health 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, including Texas Health and Safety

Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking action is not subject

to the regulatory analysis provisions ofTexas Government Code, §2001.022S(b).
Texas Commission on Environmental Quality

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No comments were received on the RIA.

Taking Impact Assessment

Page 13

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 pennanently, in a

manner that requires the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to the United States

Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that

affects an owner's private real property that is the subject ofthe governmental action, in

whole or in part or temporarily or pennanently, in a manner that restricts or limits the

owner's right to the property that would otherwise exist in the absence ofthe

governmental action; and is the producing cause of a reduction of at least 25% in the

market value ofthe affected private real property, detennined by comparing the market

value ofthe property as ifthe governmental action is not in effect and the market value

ofthe property detennined as ifthe governmental action is in effect.

The commission completed a takings impact analysis for the rulemaking action under

Texas Government Code, §2007.043. The primary purpose ofthis rulemaking action, as

discussed elsewhere in this preamble, is to add references to federal regulations in

certain definitions that are duplicative with federal regulation that the state has no
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Page 14

authority to legally change, and to correct an inadvertent omission in the definition of

reportable quantity. The rule will not create any additional burden on private real

property. The rule will not affect private real property in a manner that would require

compensation to private real property owners under the United States Constitution or

the Texas Constitution. This rule also will not affect private real property in a manner

that restricts or limits an owner's right to the property that would otherwise exist in the

absence ofthe governmental action. Therefore, the rulemaking will not cause a taking

under Texas Government Code, Chapter 2007.

Consistencywith the Coastal Management Program

The commission determined that this rulemaking action relates to an action or actions

subject to the Texas Coastal Management Program (CMP) in accordance with the

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

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning

Consistency with the Texas Coastal Management Plan. As required by §281.4s(a)(3) and

31 TAC §soS.n(b)(2), relating to Actions and Rules Subject to the CMP, commission

rules governing air pollutant emissions must be consistent with the applicable goals and

policies ofthe CMP. The commission reviewed this action for consistency with the CMP

goals and policies in accordance with the rules of the Coastal Coordination Council, and

determined that the action is consistent with the applicable CMP goals and policies.
Texas Commission on Environmental Quality

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Page 15

The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and

enhance the diversity, quality, quantity, functions, and values of coastal natural resource

areas (31 TAC §S01.12(l)). The amendment replaces existing definitions with references

to federal regulations that the state has no authority to change and correct an

inadvertent omission in the definition ofreportable quantity. The CMP policy applicable

to this rulemaking action is the policy that commission rules comply with federal

regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC

§S01.32). Therefore, in accordance with 31 TAC §Sos.22(e), the commission affirms that

this rulemaking action is consistent with CMP goals and policies.

Effect on Sites Subject to the Federal Operating Permits Program

Chapter 101, Subchapter A is an applicable requirement of 30 TAC Chapter 122, Federal

Operating Permits Program, in that the definitions in Subchapter A are relevant in

defining and understanding other applicable requirements and applicability generally.

Owners or operators subject to the federal operating permit program must, consistent

with the revision process in Chapter 122, upon the effective date ofthe adopted

rulemaking, revise their operating permit to include any new requirements or address

applicability related to the new Chapter 101 requirements.

Public Comment

The commission held a public hearing on September 20, 2010, in Austin and no
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comments were submitted at the hearing. The comment period closed on September 27,

2010. The commission received written comments from the Texas Industry Project

(TIP) and Zephyr Environmental Corp. (ZEC).

Response to Comments

TIP commented that this rulemaking was unnecessary to ensure anti-backsliding for any

Texas ozone nonattainment area, because it would be superseded by a pending EPA

rulemaking, and because it would create an undue hardship for businesses.

The commission respectfully disagrees with the comments. Due to EPA's

inconsistent positions on anti-backsliding requirements and failure to

complete rulemaking to fully implement the D.C. Circuit's opinion in South

Coast v. EPA, as discussed earlier in this preamble, there has been

confusion and concern regarding anti-backsliding requirements, as

reflected in other comments received on this rulemaking. This rulemaking

is necessary to remove prior adopted rule language that conflicted with

then-applicable EPA guidance regarding applicability ofmajor source

thresholds and emission offset requirements. The commission constantly

strivesfor clarity in its rules, in order for all interested persons to both

understand and implement commission rules appropriately under state

law. As discussed earlier in this preamble, EPA has issued a final rule
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redesignating the BPA area as attainment for the 1997 eight-hour ozone

standard, and discussing NSR requirementsthat apply in the BPA area as of

October 20, 2010, (75 Federal Register 64675). While thisfinal rule

provides additional guidance regarding EPA's opinions concerning antibacksliding requirements, this rule does not have general applicability, and

therefore, does not resolve these issues statewide, as assumed by the

cODlDlenter. Regarding the commenter's concern that the rule, ifadopted,

would create an undue hardship for business, the commenter provided no

information to support either the type orscope ofhardship. No changes

were made to the rule in response to these comments.

Zephyr commented that removal ofspecific definitions and referencing federal

regulations would not accomplish the stated goal ofreducing confusion over

nonattainment area designations and classifications and their related applicability

thresholds and emission offset requirements.

The cODlDlission appreciatesthe coDlDlents, and notesthat the removal of

the specific definitions to reference the applicable federal regulation is only

one element ofthe commission's proposed strategy for clarity regarding

anti-backsliding requirements. As stated elsewhere in this preamble, the

coDlDlission is adopting rule changes to both Chapters 101 and 116 to
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provide clarity regarding the applicability thresholds and emission offset

provisions.

Zephyr also commented that the current TCEQ Web site postings were inadequate to

prevent confusion over nonattainment area designations and classifications, requested

that the TCEQ specify in this response to comments additional items related to

nonattainment issues that would be included on the website, and requested specific

items, such as "links to all documents establishing air quality permitting requirements."

The commission appreciates the comment, and will consider how to better

provide information on these issues to the public.
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The Texas Commission on Environmental Quality (commission or TCEQ) is adopting

the amendments to §n6.12 and §n6.150.

Sections n6.12 and n6.150 are adopted with changes to the proposed text as published

in the August 27, 2010, issue ofthe Texas Register (35 TexReg 7676) and will be

republished.

The adopted amendments to §n6.12 and §n6.150 will be submitted to the United States

Environmental Protection Agency (EPA) as revisions to the state implementation plan

(SIP).

Background and Summary ofthe Factual Basis for the Adopted Rules

On July 18, 1997, the EPA revised the ozone National Ambient Air Quality Standard

(NAAQS), promulgating 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 eighthour 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 classifying areas only under Part D, Subpart 1 ofthe

Federal Clean Air Act (FCAA) Amendments of 1990 and remanding other issues to the

District of Columbia (D.C.) Circuit Court ofAppeals (Whitman v. American Trucking
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Assoc., 121 S.Ct. 903 (2001)). On March 26, 2002, the D.C. Circuit Court ofAppeals

rejected the other challenges to the eight-hour ozone NAAQS (American Trucking

Assoc. v. EPA, 283 F.3d 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 owne NAAQS, the revocation ofthe one-hour owne NAAQS,

classification of areas for the eight-hour ozone NAAQS, and the specification of

requirements relating to SIPs. EPA finalized designations for the 1997 eight-hour ozone

NAAQS effective on June 15, 2004.

FCAA, §107 requires the EPA to designate areas nonattainment, attainment, or

unclassifiable no later than one year after the 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 ofits designation, by operation oflaw, in

accordance with Table 1ofthat 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 ofthe 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 would have less time to attain the standard, and additional requirements
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of FCAA, Part D, Subpart 2 impose specific, more stringent requirements on areas as the

classifications increase from marginal to moderate (and the corresponding design values

are further from attainment ofthe one-hour ozone standard).

The EPA rules implementing the 1997 eight-hour ozone standard were adopted in two

phases: the Phase I Rule, 69 Federal Register 23951, April 30, 2004, addressed a

number of implementation issues for the 1997 eight-hour ozone NAAQS, including how

areas should be classified for the 1997 eight-hour ozone NAAQS (since the classification

requirements of FCAA, §181 were based on the one-hour ozone standard, the EPA

needed to propose and finalize a classification scheme appropriate for the eight-hour

ozone standard in accord with FCAA, §181), and which one-hour ozone standard

requirements should continue to apply under the 1997 eight-hour ozone NAAQS; and

the Phase II Rule (70 Federal Register 71612, November 29,2005), which addressed

additional requirements.

In EPA's Phase I Rule, one ofthe issues that the EPA considered was the continued

applicability of control requirements that applied in areas previously designated

nonattainment for the one-hour ozone standard. As part ofthe Phase I Rule, the EPA

considered several provisions ofthe FCAA that it stated were evidence of Congress'

intent that certain obligations continue to apply when the EPA revises a NAAQS. The

EPA stated that the FCCA, §17sA(d) provided that areas could not remove controls that
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were mandated by the FCAA, Part D, Subpart 2 even after the area attained the NAAQS

and was redesignated to attainment. At most, a state could move FCAA, Part D, Subpart

2 controls to the contingency plan provisions ofthe SIP. Another provision that the EPA

reviewed and discussed in the Phase I Rule was FCAA, §172(e), which providesthat if

the EPA revises a NAAQS to make it be less stringent, then the EPA must promulgate

regulations applicable to areas that have not attained the original NAAQS to require

controls that are no less stringent than controls that applied to areas designated

nonattainment prior to such relaxation. The EPA concluded in the Phase I Rule that "if

Congress intended areas to remain subject to the same level of control where a NAAQS

was relaxed, they also intended that such controls not be weakened where the NAAQS is

made more stringent" ((see 69 Federal Register 23972), April 30, 2004).

Based on this premise, the EPA adopted rules that provided for certain requirements to

continue to apply to areas that were designated nonattainment for the one-hour ozone

standard, depending on how they were designated for the eight-hour ozone NAAQS.

Areas that were designated nonattainment for both the'one-hour ozone and eight-hour

ozone NAAQS were required to continue to apply certain requirements that applied

under the one-hour ozone standard, with specific exceptions (40 Code of Federal

Regulations (CFR) §Sl.90s(a)(1)). These requirements included reasonably available

control technology (RACT), inspection and maintenance programs (11M), major source

applicability cut-offs for purposes of RACT, rate of progress reductions (ROP), stage II
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vapor recovery, clean fuels fleet programs, clean fuel programs for boilers,

transportation control measures, enhanced ambient monitoring requirements, required

transportation controls, vehicle miles traveled requirements, and nitrogen oxides

requirements (40 CFR §S1.900(t)). The EPA also provided that nonattainment area New

Source Review (NSR) requirements required by FCAA, §§172(C)(S), 173, and 182 based

on the area's previous one-hour ozone NAAQS classification were no longer required

elements of an approvable SIP (40 CFR §S1.90s(e)(4)). The EPA also provided that

areas would no longer have to meet requirements for conformity, the development of

maintenance plans, or the penalty fee obligation for severe areas (40 CFR §S1.90S).

The EPA's Phase I Rule provided that areas that were nonattainment for the one-hour

ozone NAAQS were not required to continue to use the more stringent major source

thresholds and emission offset requirements of the one-hour ozone standard when

implementing NSR and Title V permitting for the 1997 eight-hour ozone standard.

All areas in Texas designated nonattainment for the 1997 eight-hour ozone NAAQS that

were also designated nonattainment for the one-hour ozone NAAQS were classified at a

"less stringent" level. Beaumont-Port Arthur (BPA) was classified as "serious" for the

one-hour ozone NAAQS, but was classified as "moderate" for the 1997 eight-hour ozone

NAAQS. Houston-Galveston-Brazoria (HGB) was classified as "severe" for the one-hour

ozone NAAQS and originally classified as "moderate" for the 1997 eight-hour ozone
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NAAQS. The EPA has since reclassified the HGB area to "severe" for the 1997 eight-hour

ozone NAAQS, pursuant to a voluntary reclassification request by the Governor of

Texas. The Dallas-Fort Worth (DFW) area was classified as "serious" for the one-hour

ozone NAAQS, and was classified as "moderate" for the 1997 eight-hour ozone NAAQS.

The El Paso area was nonattainment for the one-hour ozone NAAQS, classified as

"serious," but designated attainment for the 1997 eight-hour ozone NAAQS.

So, for example, a regulated entity in the HGB area triggered nonattainment review if

the potential to emit was equal to or greater than 25 tons per year (tpy) under the

"severe" classification for the one-hour ozone NAAQS, but only triggered nonattainment

review under the "moderate" classification for the eight-hour ozone NAAQS ifthe

potential to emit was equal to or greater than 100 tpy. Under the existing rules, since the

HGB area has been reclassified to "severe" for the 1997 eight-hour ozone NAAQS,

regulated entities must again utilize the same major source threshold and emission

offset requirements that previously applied under the one-hour ozone standard.

After designations for the 1997 eight-hour ozone standard and the final Phase I Rule

were effective, the commission proceeded with rulemaking to implement the

requirements for the 1997 eight-hour ozone standard. The commission updated Chapter

116 to implement the changes from the Phase I Rule regarding the application ofthe

1997 eight-hour ozone standard for nonattainment NSR On May 25, 2005, the
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commission adopted changes to Chapter 116, effective June 16, 2005, to provide that for

the HGB, DFW, and BPA eight-hour ozone nonattainment areas, ifthe EPA

promulgated rules requiring NSR permit applications in those areas to be evaluated for

nonattainment NSR according to that area's one-hour ozone classification, then each

application would be evaluated in accordance with the area's one-hour ozone

classification. "Evaluation" was specified as including both the threshold for

determining ifthere was a modification as well as the ratio of offsets required, along

with any other applicable requirement that depended upon an area's nonattainment

classification. In adopting this rule, the commission noted that although the Phase I

Rule provided for the application ofthe eight-hour ozone standard for nonattainment

NSR, the EPA had granted a partial reconsideration ofthe Phase I Rule specifically

regarding that issue, and the result ofthe reconsideration could be a return to the onehour ozone standard for application of nonattainment NSR. Because ofthis concern, the

commission adopted contingency language in §116.150, and in the table footnotes in the

figure located in the definition of major modification in §116.12. This contingency

language was adopted to be effective in the event that the EPA completed rulemaking to

require states to return to a one-hour ozone standard trigger for federal nonattainment

NSR evaluations. In this rulemaking, the commission is removing this previously

adopted contingency language.

The EPA Phase I Rule, and particularly the EPA's determination that areas designated as
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nonattainment under the one-hour ozone standard would no longer be subject to onehour nonattainment NSR requirements, was successfully challenged in South Coast Air

Quality Management District v. Environmental Protection Agency, 472 F.3d 882 (D.C.

Cir. 2006) and the rule was partially vacated and remanded to the EPA, as made clear in

its revised opinion on June 8,2007 (South Coast Air Quality Management District v.

Environmental Protection Agency, 489 F.3d 1245 (D.C. Cir. 2007)). The South Coast

decision was upheld by the United States Supreme Court on January 14, 2008.

In a guidance memo issued on October 3, 2007, the EPA stated that it interpreted the

South Coast ruling as restoring NSR applicability thresholds and emission offset

requirements pursuant to classifications under the one-hour ozone standard. The EPA

also noted in this guidance memo that it intended to conduct rulemaking to conform the

NSR regulations to the South Coast decision. EPA stated that it intended to issue an

immediately-effective final rule under the authority ofthe "Good Cause" provision of the

Federal Administrative Procedure Act to restore the NSR applicability thresholds and

emission offsets associated with designated one-hour ozone nonattainment areas, and

would begin a separate notice and comment rulemaking to address longer-term

applicability of one-hour ozone NSR requirements, in particular, the conditions and

mechanisms under which those one-hour ozone NSR requirements would cease to apply

for NSR purposes. Lastly, the EPA strongly encouraged states to comply with the South

Coast decision as quickly as possible.
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Because the one-hour ozone standard has been revoked, the EPA is no longer making

redesignations or reclassifications under this standard. However, the EPA is making

determinations under its Clean Data Policy that areas are currently attaining the onehour ozone NAAQS. In its proposal to determine that the Southern New Jersey portion

ofthe Philadelphia Metro nonattainment area attained the one-hour ozone NAAQS (see

73 Federal Register 42727, July 23, 2008), the EPA discussed the effect ofthe D.C.

Circuit Court ofAppeals' decision vacating a portion ofthe 1997 eight-hour ozone Phase

I Implementation Rule (South Coast Air Quality Management District v. EPA, 472 F3d

882 (2006) and 489 F3d 1295 (2007)). The EPA stated: "With respect to the challenges

to the anti-backsliding provisions ofthe rule, the Court vacated three provisions that

would have allowed States to remove from the SIP or to not adopt three one-hour

obligations once the one-hour ozone NAAQS was revoked (including one-hour

nonattainment NSR requirements). {T}he three provisions noted previously ... were

vacated by the Court. As a result, States must continue to meet the obligations for onehour NSR .... Currently, EPA is developing two proposed rules to address the Court's

vacatur and remand with respect to these three requirements. EPA will address in this

proposed rule how the one-hour obligations that currently continue to apply under

EPA's anti-backsliding rule (as interpreted by the Court) apply where the EPA has made

a determination that the area attained the one-hour ozone NAAQS by its attainment

date." One possible outcome from the EPA rulemaking on this issue may be to direct
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states that want to remove one-hour ozone nonattainment NSR requirements to submit

SIP revisions demonstrating that removing one-hour ozone nonattainment NSR

requirements will not interfere with attainment or maintenance ofthe ozone NAAQS.

Because the EPA has not completed any rulemaking to implement the South Coast

decision regarding NSR anti-backsliding, states must decide how to implement, and give

effect to, the court's decision. Any revision to a SIP that could interfere with or does not

comply with the FCAA and the SIP because it has the effect ofmaking the approved SIP

less stringent may be 'considered as "backsliding" from those requirements and would

not be approvable by the EPA. Given the uncertainty ofthe future EPA rulemaking, and

the finality ofthe South Coast decision as ofJanuary 14, 2008, the commission is

removing the previously adopted contingency language, in addition to other changes, to

clarify the requirements for nonattainment NSR Without effective and understandable

guidance from the EPA, through rulemaking or otherwise, the commission is left to

determine the most reasonable course of action. The South Coast decision, upheld by

the United States Supreme Court, makes clear that areas may not ignore one-hour ozone

nonattainment NSR requirements.

The commission had previously adopted rules specifying that sources in the BPA, HGB,

and DFW nonattainment areas should apply eight-hour ozone nonattainment NSR

requirements. The commission is now deleting certain portions ofthe definition in
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§116.12(18)(A), concerning major modification and the requirements of §116.150(d).

This rulemaking makes clear that permitted facilities in areas that were designated

nonattainment for the one-hour ozone standard are subject to the major source

thresholds and emission offsets ofthe one-hour ozone standard upon the effective date

ofthis rulemaking unless one ofthe four exceptions identified in §116.150(a) apply.

Staff has previously presented these rule amendments (Rule Project 2008-030-116-PR)

to the commission for consideration. At the February 25, 2009 , commissioner's agenda,

the commission remanded the rule project to the executive director's staff in

anticipation of additional direction or action by the EPA, because EPA continued to

indicate in various federal notices its intent to complete rulemaking regarding NSR antibacksliding requirements in response to the South Coast decision. EPA's proposed rule

to implement the 1997 eight-hour ozone NAAQS revision on subpart 1 reclassification

and anti-backsliding provisions under the former one-hour ozone standard was

published in the January 16, 2009, Federal Register, but has not yet been finalized. This

rulemaking removes language regarding the exemptions from nonattainment new

source review (NNSR) that were vacated by South Coast.

On September 23, 2009, the EPA published notice ofthe proposed disapproval of past

revisions to the Texas NNSR SIP (74 Federal Register 48467, September 23,2009) that

are related to these amendments, and finalized this disapproval on September 15, 2010
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(74 Federal Register 56424). EPA disapproved the changes the commission made to

several sections of Chapter 116. Two ofthese changes were the changes that the

commission adopted to §116.12 and §1l6.150 to implement the Phase I rule

implementing the 1997 eight-hour ozone standard, discussed earlier in this preamble,

which the commission proposed to change as part ofthis action. As discussed further in

the Section by Section Discussion section ofthis preamble, the commission is adopting

changes to these sectionsto remove the disapproved language and to assure that NNSR

permitting requirements are clear.

Additionally, on October 20, 2010, EPA published a final rule to approve the

redesignation ofthe BPA 1997 eight-hour ozone nonattainment area to attainment, and

clarify EPA's previous approval ofthe EI Paso Section 1l0(a)(1) maintenance plan for the

1997 eight-hour ozone standard (75 Federal Register 64675, October 20, 2010). This

final rule noted EPA's new position regarding NSR anti-backsliding and whether onehour ozone major source thresholds and emission offset requirements continue to' apply

in an area. EPA noted "after final redesignation to attainment for the 1997 eight-hour

ozone standard, EPA does not require the continued application of one-hour antibacksliding nonattainment NSR, ifTexas interprets its SIP as applying PSD to BPA in

these circumstances (see 75 Federal Register 64675 and 64677, October 20, 2010). The

EPA also clarified that, with respect to El Paso, "EPA has had further opportunity to

consider the applicable statutory and regulatory provisions and the decision in South
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Coast .... As a result, we no longer believe that the Clean Air Act requires a separate

Section 1100) analysis to replace one-hour nonattainment NSR with prevention of

significant deterioration (PSD) once an area has been redesignated to attainment for the

1997 eight-hour ozone standard, or has an approved Section 11o(a)(l) maintenance plan

for that standard. In sum, we believe that the approach to the nonattainment NSR/PSD

transition that we are adopting here with respect to BPA should also be extended to EI

Paso. Thus, as long as the Texas NSR SIP is clear that the PSD SIP requirements apply to

an area such as EI Paso, then that is all that is required by EPA" (see 75 Federal Register

64675 and 64677, October 20,2010). The commission appreciates this clear statement

from EPA, and agrees that the SIP should be clear on this issue. Therefore, as discussed

in this preamble, although the Texas SIP has always applied PSD in an area upon

redesignation, the commission is concurrently adopting changes to Chapter 116 to make

clear that PSD applies once an area has been redesignated to attainment for a particular

criteria pollutant.

The amendments confirm that the BPA area is no longer subject to NNSR As discussed

previously in this preamble, on October 20,2010, EPA published the redesignation of

the BPA area to attainment for the 1997 eight-hour ozone NAAQS, and a determination

that the BPA area had attained the one-hour ozone NAAQS. In this action, EPA

determined that the BPA area need not be subject to NNSR as an anti-backsliding

requirement. Thus, under the amendment to §116.150(a)(1), the BPA area is not subject
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to NNSR for either the one-hour ozone or 1997 eight-hour ozone NAAQS. Additionally,

the amendments confirm that the EI Paso area is no longer subject to NNSR. On

January 15, 2009, EPA published its approval of a maintenance plan for the EI Paso area

for the 1997 eight-hour ozone standard. As discussed previously in this preamble, in

EPA's October 20,2010, action for the BPAarea, EPA stated that "we no longer believe

that the Clean Air Act requires a separate noO) analysis to replace I-hour

nonattainment NSR with PSD once an area has ... an approved no(a)(l) maintenance

plan for that standard" (see 75 Federal Register 64677). Taken together, these

statements reflect an EPA determination that NNSR is no longer required for purposes

of anti-backsliding for the EI Paso area. Thus, under the amendment to §n6.150(a)(4),

the E1 Paso area is not subject to NNSR for either the one-hour ozone or 1997 eight-hour

ozone NAAQS.

This is an issue of extreme importance to the commission, the regulated community and

the public, and there shoilld be no room for ambiguity or argument. In an effort to

ensure that TCEQ regu1atory requirements regarding the NNSR permitting program are

clear, meet the requirements ofthe FCAA, and are approvable into the SIP, the

commission is adopting the following amendments to eliminate any deficiencies that

would prevent approval ofthe rille changes.

Additionally, in order to prevent future confusion over designations and classifications
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and their related applicability thresholds and emissions offset requirements, the

commission is adopting concurrent amendments to the definitions of maintenance area,

and nonattainment area in 30 TAC Chapter 101, General Air Quality Rules.

Section by Section Discussion

§116.12, Nonattainment and Prevention o/Significant Deterioration Definitions

The commission is changing footnote 1in Table I, paragraph (18)(A) to remove the

reference to the CFR and replace it with a reference the definition of "Nonattainment

area" in 30 TAC §101.1. This reference is no longer necessary because the definition of

nonattainment is being updated and also references the appropriate part ofthe CFR.

The commission is also changing the term "major modification level" to "significant

level" in footnote 2 in Table 1in §116.12(18)(A). This will ensure that the term used in

the footnote matches the heading in the third column ofthe table and help eliminate any

confusion resulting from the use of different terms. The commission is also removing

footnotes 6 and 7 from Table 1in §n6.12(18)(A).

The commission is making a change from the proposal to remove the second sentence of

footnote 3 ofTable I in §116.12(18) regarding the El Paso ozone nonattainment area. As

the result ofthe EPA's final notice regarding the Beaumont/Port Arthur ozone

nonattainment area redisignation (see 75 Federal Register 64675, October 20,2010),

which clarified the EPA's approval ofthe E1 Paso area's eight-hour ozone nonattainment
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maintenance plan, the requirement for EI Paso in footnote 3 is no longer necessary.

Footnote 6 indicates that the EPA must complete rulemaking before NSR applications

are evaluated according to their one-hour classification. However, the EPA has stated

that: the South Coast decision is self-implementing; did not require rulemaking by the

EPA to be effective; and NSR applications should be evaluated based upon one-hour

classifications, ifthey are more stringent than an area's eight-hour classification, and

has specifically disapproved footnote 6 (see 75 Federal Register56424, September 15,

2010). Footnote 7 states that permit applications in areas designated as nonattainment

for ozone under FCAA, Title I, Part D, Subpart 1(42 United States Code (USC), §7502)

will be evaluated as ifthat area was designated as Marginal. However, Texas does not

have any areas currently designated as nonattainment for ozone under FCAA, Title I,

Part D, Subpart 1. The San Antonio area was originally designated nonattainmentdeferred for the 1997 eight-hour ozone NAAQS, but has since been designated

attainment.

§116.150, New Major Source or Major Modification in Ozone NonattainmentAreas

The commission is amending §n6.150(a) by removing §n6.150(a)(I) and (2).

Subsection (a) would then be amended to apply the requirements ofthis subsection as of

the date of issuance ofthe permit and to add a requirement for continued applicability

of NNSR until the EPA has made a finding of attainment; the EPA has approved the
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removal of nonattainment NSR requirements from the area; the EPA has determined

that PSD requirements apply in the area; or that nonattainment NSR is no longer

required for the purposes of antibacksliding.

The commission is also removing §n6.150(d) from the rule. Subsection (d) contains

language similar to that in footnote 6 to Table 1in §n6.12(18)(A). This language

indicates that the EPA must complete rulemaking before NSR applications are evaluated

according to their one-hour classification. However, the EPA has stated that: the South

Coast decision is self-implementing; did not require rulemaking by the EPA to be

. effective; and NSR applications should be evaluated based upon one-hour

classifications, ifthey are more stringent than an area's eight-hour classification, and

has specifically disapproved §n6.150(d) and similar language in footnote 6 (see 75

Federal Register 56424, September 15, 2010). Additionally, the netting requirement and

exceptions in §n6.150(d) are redundant to the same requirement and exceptions in

§n6.150(c) and thus, unnecessary. The commission is also renumbering the remainder

of §n6.150 to reflect the removal of §n6.150(d) and minor changes to references in

§n6.150(b) to reflect the renumbering. The commission is changing §n6.150(e) to

reflect changes in a concurrent rulemaking in Chapter 101.

As the result of comments received on the proposal ofthese amendments the

commission is changing: §n6.150(a)(I) - (4) to make clear that the conditions on which
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these exceptions are based must exist on the date ofissuance ofthe permit;

§116.150(d)(3)(A) to make clear that this exception only applies in a serious or severe

ozone nonattainment area; and §116.150(d)(3)(B) to make clear that this exception only

applies in a serious or severe ozone nonattainment area and to specifically state that the

best available control technology (BACT) equivalent required by the rule is federal BACT

as identified in §116.16o(c)(1)(A).

Final Regulatory Impact Analysis Determination

The commission reviewed the adopted rulemaking in light ofthe regulatory impact

analysis requirements ofTexas Government Code, §2001.0225, and determined that the

rulemaking does not meet the definition of a major environmental rule as defined in that

statute, and in addition, ifit did meet the definition, would not be subject to the

requirement to prepare a regulatory impact analysis.

A major environmental rule means a rule, the specific intent of which is to protect the

environment or reduce risks to human health from environmental exposure, and that

may adversely affect in a material way the economy, a sector ofthe economy,

productivity, competition, jobs, the environment, or the public health and safety ofthe

state or a sector ofthe state. The specific intent ofthe revisions is to remove certain

definitions that are duplicative, and to remove previously adopted contingency language

that would require EPA final rulemaking before NSR applications are evaluated
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according to the one-hour classification ofthe area where the facility is located. These

changes will not adversely affect the economy, a sector ofthe economy, productivity,

competition, jobs, the environment, or the public health and safety ofthe state or a

sector ofthe state in a material way since they codify the effect a federal district court

ruling that has been upheld by the United States Supreme Court in South Coast, as

discussed elsewhere in this preamble.

Additionally, even ifthe rules met the definition of a major environmental rule, the

rulemaking does not meet any ofthe four applicability criteria for requiring a regulatory

impact analysis for a major environmental rule, which are listed in Texas Government

Code, §2001.022s(a). Texas Government Code, §2001.022S, applies only to a major

environmental rule, the result of which is to: 1) exceed a standard set by federal law,

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

state law, unless the rule is specifically required by federal law; 3) exceed a requirement

of a delegation agreement or contract between the state and an agency or representative

ofthe federal government to implement a state and federal program; or 4) adopt a rule

solely under the general powers ofthe agency instead of under a specific state law.

The adopted rules would implement requirements ofthe FCAA. Under 42 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. While 42 USC,
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§741O generally does Rot require specific programs, methods, or emission reductions in

order to meet the standard, state SIPs must include specific requirements as specified by

42 USC, §741O. The provisions ofthe FCAA recognize that states are in the best position

to determine what programs and controls are necessary or appropriate in order to meet

the NAAQS. This flexibility allows states, affected industry, and the public to collaborate

on the best methods for attaining the NAAQS for the specific regions in the state. Even

though the FCAA allows states to develop their own programs, this flexibility does not

relieve a state from developing a program that meets the requirements of 42 USC,

§741O. States are not free to ignore the requirements of 42 USC, §741O, and must

develop programs to assure that their SIPs provide for implementation, attainment,

maintenance, and enforcement ofthe NAAQS within the state. One ofthe requirements

of42 USC, §741O is for states to include programs for the regulation ofthe modification

and construction of any stationary source within the area covered by the plan as

necessary to assure that the NAAQS are achieved, including a permit program as

required in FCAA, Parts Cand D, or NSR. Additionally, once states 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 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. The district court in South Coast

found that NSR was a "control," and vacated the EPA's Phase I rules that provided that

the major source thresholds and offset requirements that applied as a result of an area's
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designation and classification under the one-hour ozone standard were no longer

necessary. Until the EPA completes rulemaking to further interpret the applicability of

the NSR permitting program in the context of 42 USC, §7502(e) and revisions to the

ozone NAAQS, state rules that allow NSR review to rely upon designations and

classifications for the eight-hour ozone standard in areas previously designated

nonattainment for the one-hour ozone standard conflict with the South Coast ruling.

The requirement to provide a fiscal analysis of regulations in the Texas Government

Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent

of SB 633 was to require agencies to conduct a regulatory impact analysis of

extraordinary rules. These are identified in the statutory language as major

environmental rules that will have a material adverse impact and will exceed a

requirement ofstate law, federal law, or a delegated federal program, or are adopted

solely under the general powers ofthe agency. With the understanding that this

requirement would seldom apply, the commission provided a cost estimate for SB 633

that concluded ''based on an assessment ofrules 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 ofrules that would

require assessment under the provisions ofthe 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 exceeded a federal law.
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Because ofthe ongoing need to meet federal requirements, the commission routinely

proposes and adopts rules incorporating or designed to satisfy specific federal

requirements. The legislature is presumed to understand this federal scheme. Ifeach

rule proposed by the commission to meet a federal requirement was considered to be a

major environmental rule that exceeds federal law, then each ofthose rules would

require the full regulatory impact analysis (RIA) contemplated by SB 633. This

conclusion is inconsistent with the conclusions reached by the commission in its cost

estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the

legislature is presumed to understand the fiscal impacts ofthe bills it passes, and that .

presumption is based on information provided by state agencies and the LBB, the

commission believes that the intent of SB 633 was only to require the full RIA for rules

that are extraordinary in nature. While the adopted 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 adopted rules fall

under the exception in Texas Government Code, §20010022s(a), because they are

required by, and do not exceed, federal law, including the 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
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was enacted in 1997. Since that time, the legislature has revised the Texas Government

Code, but left this provision substantially unamended. It is presumed that "when an

agency interpretation is in effect at the time the legislature amends the laws without

making substantial change in the statute, the legislature is deemed to have accepted the

agency's interpretation" (Central Power & Light Co. v. Sharp, 919 S.W.2d 485,489

(Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue,

960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d353, 357 (Tex.

App. Austin 1990, no writ). Cf Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172

(Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App.

Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App.

Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement

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

The commission's interpretation ofthe RIA requirements is also supported by a change

made to the Administrative Procedure Act (APA) by the legislature in 1999. In an

attempt to limit the number of rule challenges based upon APA requirements, the

legislature clarified that state agencies are required to meet these sections ofthe APA

against the standard of "substantial compliance" (see Texas Government Code,

§2001.035). The legislature specifically identified Texas Government Code, §2001.0225

as falling under this standard. As discussed in this analysis and elsewhere in this

preamble, the commission has substantially complied with the requirements ofTexas
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Government Code, §2001.022S.

The adopted rules implement requirements ofthe FCAA, specifically to adopt and

implement SIPs to attain and maintain the NAAQS, including a requirement to adopt

and implement permit programs. The specific intent ofthe adopted rule revisions is to

remove certain definitions that are duplicative, and previously adopted contingency

language that would require EPA final rulemaking before NSR applications are

evaluated according to the one-hour classification ofthe area where the facility is

located, in order to avoid conflict with the South Coast decision. These amendments

were not developed solely under the general powers ofthe agency, but are authorized by

specific sections ofTexas Health and Safety Code, Chapter 382 (also known as the Texas

Clean Air Act), and the Texas Water Code, which are cited in the Statutory Authority

section ofthese rules, including Texas Health and Safety Code, §§382.011, 382.012, and

382.017. Therefore, this rulemaking action is not subject to the regulatory analysis

provisions ofTexas Government Code, §2001.022S(b).

Takings Impact Assessment

Under Texas Government Code, §2007.002(S), taking means a governmental action that

affects private real property, in whole or in part or temporarily or permanently, in a

manner that requires the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to the United States
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Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that

affects an owner's private real property that is the subject ofthe governmental action, in

whole or in part or temporarily or permanently, in a manner that restricts or limits the

owner's right to the property that would otherwise exist in the absence ofthe

governmental action; and is the producing cause of a reduction of at least 25% in the

market value ofthe affected private real property, determined by comparing the market

value ofthe property as ifthe governmental action is not in effect and the market value

ofthe property determined as ifthe governmental action is in effect.

The commission completed a takings impact analysis for the adopted rulemaking action

under the Texas Government Code, §2007.043. The primary purpose ofthis rulemaking

action, as discussed elsewhere in this preamble, is to remove certain definitions that are

duplicative, and previously adopted contingency language that would require EPA final

rulemaking before NSR applications are evaluated according to the one-hour

classification ofthe area where the facility is located.

The adopted rules will not create any additional burden on private real property. The

rules will not affect private real property in a manner that would require compensation

to private real property owners under the United States Constitution or the Texas

Constitution. This rulemaking also will not affect private real property in a manner that

restricts or limits an owner's right to the property that would otherwise exist in the
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absence ofthe 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 actions

subject to the Texas Coastal Management Program (CMP) in accordance with the

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

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning

Consistency with the Texas Coastal Management Program. As required by §281.4s(a)(3)

and 31 TAC §SOS.11(b)(2), relating to Actions and Rules Subject to the CMP,

commission rules governing air pollutant emissions must be consistent with the

applicable goals and policies ofthe CMP. The commission reviewed this action for

consistency with the CMP goals and policies in accordance with the rules ofthe Coastal

Coordination Council, and determined that the action is consistent with the applicable

CMP goals and policies.

The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and

enhance the diversity, quality, quantity, functions, and values of coastal natural resource

areas (31 TAC §S01.120)). These amendments will indirectly benefit the environment

because reduced emissions resulting from the more stringent major source thresholds

and emission offset requirements ofthe one-hour ozone standard ensure that there will
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Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

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be fewer adverse impacts to public health and the environment. The CMP policy

applicable to this rulemaking action is the policy that commission rules comply with

federal regulations in 40 CFR to protect and enhance air quality in the coastal areas (31

TAC §SOl.14(q)). Therefore, in accordance with 31 TAC §Sos.22(e), the commission

affirms that this rulemaking action is consistent with CMP goals and policies.

Effect on Sites Subject to the Federal Operating Permits Program

Chapter 116 is an applicable requirement of 30 TAC Chapter 122, Federal Operating

Permits Program. Owners and operators subject to the federal operating permit

program must, consistent with the revision process in Chapter 122, upon the effective

date ofthe adopted rulemaking, revise their operating permit to include the new

Chapter 116 requirements. Additionally, sources subject to the adopted rules may

become subject to the federal operating permit program.

Public Comment

The commission held a public hearing on September 20, 2010. The comment period

closed on September 27, 2010. The commission received comments from The United

States Environmental Protection Agency (EPA), the Texas Industry Project (TIP), and

Zephyr Environmental Corp. (ZEC).

RESPONSE TO COMMENTS
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The EPA commented that most ofTCEQ's proposed changes meet federal requirements.

The EPA also stated that TCEQ makes it clear that NNSR applies based on the

attainment status of the area where the source is located on the date of permit issuance

rather than the date ofsubmittal of a complete permit application.

The commission appreciates the EPA's support.

The EPA commented that the exceptions to the requirement for NNSR based on

nonattainment status on the date of issuance ofthe permit in §U6.150(a)(1-4) must also

exist on the date of issuance ofthe permit in order to apply.

The commission agrees with this comment and is making changes to

§116.150(a)(1) - (4) to make clear that the conditions on which these

exceptions are based must exist on the date ofissuance ofthe permit.

The EPA also commented that the exception in §U6.150(d)(3)(A) that allows major

stationary sources with a potential to emit less than 100 tpy to forego NNSR ifthe

project increases are offset by a ratio of 1.3 to 1 only applies in serious or severe ozone

nonattainment areas.

The commission agrees with this comment and is changing
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§116.150(d)(g)(A) to make clear that this exception only applies in a serious

or severe ozone nonattainment area.

The EPA commented that the exception in §116.150(d)(3)(B) that allows major·

stationary sources with a potential to emit greater than 100 tpy to substitute BACT for

lowest achievable emissions rate is limited to serious and severe ozone nonattainment

area and must specify the federal definition of BACT rather than the state BACT for

minor sources.

The commission agrees with this comment and is changing

§116.150(d)(g)(B) to make clear that this exception only applies in a serious

or severe ozone nonattainment area. Additionally, the commission is

changing §116.150(d)(g)(B) to specifically state that the BACf equivalent

required by the rule is federal BACf as identified in §116.16o(c)(l)(A).

TIP commented that this rulemaking was unnecessary: to ensure anti-backsliding for

any Texas ozone nonattainment area; because it would be superseded by a pending EPA

rulemaking; and because it would create an undue hardship for business.

The commission respectfully disagrees with the comments. Due to EPA's

inconsistent positions on anti-backsliding requirements and failure to
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complete rulemaking to fully implement the D.C. Circuit's opinion in South

Coast v. EPA, as discussed earlier in this preamble, there has been

confusion and concern regarding anti-backsliding requirements, as

reflected in other comments received on this rulemaking. The rulemaking

was necessary to remove prior adopted rule language that conflicted with

then-applicable EPA guidance regarding applicability ofmajor source

thresholds and emission offset requirements. The commission constantly

strivesfor clarity in its rules, in order for all interested persons to both

understand and implement commission rules appropriately under state

law. As discussed earlier in this preamble, EPA has issued a final rule

redesignating the BPA area as attainmentfor the 1997 eight-hour ozone

standard, and discussing NSR requirements that apply in the BPA area as of

October 20,2010, (75 Federal Register 64675). While this final rule

provides additional guidance regarding EPA's opinions concerning antibacksliding requirements, this rule does not have general applicability, and

therefore, does not resolve these issues statewide, as assumed by the

commenter. Additionally, as discussed elsewhere in this preamble, EPA

specifically disapproved the rule language currently in effect regarding antibacksliding in §116.1O(18) and §116.150(d). Regarding the commenters

concern that the rule, ifadopted, would create an undue hardship for

business, the commenter provided no information to support eitherthe
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type or scope of hardship. No changes were made to the rules as a result of

these comments.

Zephyr commented that it supported the changes to §116.150(a)(1) - (4) and TCEQ's

efforts to obtain a one-hour ozone attainment designation from the EPA for El Paso

County.

The commission appreciates Zephyr's support.
STAFF 

RECOMMENDATIONS
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2008-030-116-PR

SUBCHAPTERA: GENERAL RULES

§101.1

Statutory Authority

The amendment is adopted under Texas Water Code, §S.102, concerning General

Powers; §S.103, concerning Rules; and §S.lOS concerning General Policy, which

Page 19

authorize the commission to adopt rules as necessary to carry out its power and duties

under the Texas Water Code and under Texas Health and Safety Code, §382.017, which

provides the commission with the authority to adopt rules consistent with the policy and

purposes ofthe Texas Clean Air Act, §382.011, concerning General Powers and Duties,

which authorizes the commission to control the quality ofthe state's air; and §382.012,

concerning State Air Control Plan, which authorizes the commission to prepare and

develop a comprehensive plan for the proper control ofthe state's air.

The adopted amendment implements Texas Water Code, §S.103; and Texas Health and

Safety Code, §382.017 and §382.012.

§101.1. Definitions.

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

commission, the terms used by the commission have the meanings commonly ascnbed
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Chapter 101 - General Air Quality Rules

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Page 20

to them in the field of air pollution control. In addition to the terms that are defined by

the TCAA, the following terms, when used in the air quality rules in this title, have the

following meanings, unless the context clearly indicates otherwise.

(1) Account--For those sources required to be permitted under Chapter

122 ofthis title (relating to Federal Operating Permits Program), all sources that are

aggregated as a site. For all other sources, any combination ofsources under common

ownership or control and located on one or more contiguous properties, or properties

contiguous except for intervening roads, railroads, rights-of-way, waterways, or similar

divisions.

(2) Acid gas tlare--A flare used exclusively for the incineration of

hydrogen sulfide and other acidic gases derived from natural gas sweetening processes.

(g) Agency established facility identification nwnber--For the

purposes of Subchapter F ofthis chapter (relating to Emissions Events and Scheduled

Maintenance, Startup, and Shutdown Activities), a unique alphanumeric code required

to be assigned by the owner or operator of a regulated entity that the emission inventory

reporting requirements of §101.1O ofthis title (relating to Emissions Inventory

Requirements) are applicable to each facility at that regulated entity.
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Page 21

(4) Ambient air--That portion ofthe atmosphere, external to buildings,

to which the general public has access.

(5) Background--Background concentration, the level of air

contaminants that cannot be reduced by controlling emissions from man-made sources.

It is determined by measuring levels in non-urban areas.

(6) Boiler--Any combustion equipment fired with solid, liquid, and/or

gaseous fuel used to produce steam or to heat water.

(7) Capture system--All equipment (including, but not limited to, hoods,

ducts, fans, booths, ovens, dryers, etc.) that contains, collects, and transports an air

pollutant to a control device.

(8) Captured facility--A manufacturing or production facility that

generates an industrial solid waste or hazardous waste that is routinely stored,

processed, or disposed of on a shared basis in an integrated waste management unit

owned, operated by, and located within a contiguous manufacturing complex.

(9) Carbon adsorber--An add-on control device that uses activated

carbon to adsorb volatile organic compounds from a gas stream.
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Page 22

(10) Carbon adsorption system--A carbon adsorber with an inlet and

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

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

protective, decorative, or functional purposes. Such materials include, but are not

limited to, paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and

temporary protective coatings.

(12) Cold solvent cleaning--A batc1l process that uses liquid solvent to

remove soils from ilie surfaces of parts or to dry ilie parts by spraying, brushing,

flushing, and/or immersion while maintaining the solvent below its boiling point. Wipe

cleaning (hand cleaning) is not included in this definition.

(13) Combustion unit--Any boiler plant, furnace, incinerator, flare,

engine, or other device orsystem used to oxidize solid, liquid, or gaseous fuels, but

excluding motors and engines used in propelling land, water, and air vehicles.

(14) Combustion turbine--Any gas turbine system iliat is gas and/or

liquid fuel fired with or without power augmentation. This unit is eiilier attached to a

foundation or is portable equipment operated at a specific minor or major source for
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Page 23

more than 90 days in any 12-month period. Two or more gas turbines powering one

shaft will be treated as one unit.

(15) Commercial hazardous waste managementfacility--Any

hazardous waste management facility that accepts hazardous waste or polychlorinated

biphenyl compounds for a charge, except a captured facility that disposes only waste

generated on-site or a facility that accepts waste only from other facilities owned or

effectively controlled by the same person.

(16) Commercial incinerator--An incinerator used to dispose ofwaste

material from retail and wholesale trade establishments.

(17) Commercial medical waste incinerator--A facility that accepts

for incineration medical waste generated outside the property boundaries ofthe facility.

(18) Component--A piece of equipment, including, but not limited to,

pumps, valves, compressors, and pressure relief valves that has the potential to leak

volatile organic compounds.
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Page 24

(19) Condensate--Liquids that result from the cooling and/or pressure

changes of produced natural gas. Once these liquids are processed at gas plants or

refineries or in any other manner, they are no longer considered condensates.

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

construction or demolition projects.

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

equipment, contrivance, or combination ofsame, used to destroy, eliminate, reduce, or

control the emission of air contaminants to the atmosphere.

(22) Conveyorized degreasing--A solvent cleaning process that uses an

automated parts handling system, typically a conveyor, to automatically provide a

continuous supply of parts to be cleaned or dried using either cold solvent or vaporized

solvent. A conveyorized degreasing process is fully enclosed except for the conveyor inlet

and exit portals.

(23) Criteria pollutant orstandard--Any pollutant for which there is a

national ambient air quality standard established under 40 Code of Federal Regulations

Partso.
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Page 25

(24) Custody transfer--The transfer of produced crude oil and/or

condensate, after processing and/or treating in the producing operations, from storage

tanks or automatic transfer facilities to pipelines or any other forms oftransportation.

(25) De minimis impact--A change in ground level concentration of an

air contaminant as a result ofthe operation of any new major stationary source or ofthe

operation of any existing source that has undergone a major modification that does not

exceed the following specified amounts.

Figure: 30 TAC §101.1(25) (No change.)

I

AIR CONTAMINANT

IEJ~E:JEJEJ

ISulfur

(PM

Inhalable

lO)

Dioxide

Particulate Matter

11

B6DDD

1•

0 ~g/m311 5 ~/m3 ICJI25 ~g/m3 10

INitrogen Dioxide 1/ 1

•

0~g/m3ICJI ICJO I",",,00 Moo,",,'" IDDQJDB
Texas Commission on Environmental Quality

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Page 26

(26) Domestic wastes--The garbage and rubbish normally resulting

from the functions oflife within a residence.

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

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

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

startup, or shutdown activity, from a common cause that results in unauthorized

emissions of air cont;uninantsfrom one or more emissions points at a regulated entity.

(29) Emissions reduction credit--Any stationary source emissions

reduction that has been banked in accordance with Chapter 101, Subchapter H, Division

1 ofthis title (relating to Emission Credit Banking and Trading).

(30) Emissions reduction credit certificate--The certificate issued by

the executive director that indicates the amount of qualified reduction available for use

as offsets and the length of time the reduction is eligible for use.

(31) Emissions unit--Any part of a stationary source that emits, or would

have the potential to emit, any pollutant subject to regulation under the Federal Clean

Air Act.
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Page 27

(g2) Excess opacity event--When an opacity reading is equal to or

exceeds 15 additional percentage points above an applicable opacity limit, averaged over

a six-minute period.

(gg) Exempt solvent--Those carbon compounds or mixtures of carbon

compounds used as solvents that have been excluded from the definition of volatile

organic compound.

(g4) External floating roof--A cover or roofin an open top tank that

rests upon or is floated upon the liquid being contained and is equipped with a single or

double seal to close the space between the roof edge and tank shell. A double seal

consists oftwo complete and separate closure seals, one above the other, containing an

enclosed space between them.

(g5) Federal motor vehicle regulation--Control ofAir Pollution from

Motor Vehicles and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85.

(g6) Federally enforceable--Alllimitations and conditions that are

enforceable by the United States Environmental Protection Agency administrator,

including those requirements developed under 40 Code of Federal Regulations (CFR)
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Page 28

Parts 60 and 61; requirements within any applicable state implementation plan (SIP);

and any permit requirements established under 40 CFR §52.21 or under regulations

approved under 40 CFR Part 51, Subpart 1, including operating permits issued under the

approved program that is incorporated into the SIP and that expressly requires

adherence to any permit issued under such program.

(g7) Flare--An open combustion unit (Le., lacking an enclosed

combustion chamber) whose combustion air is provided by uncontrolled ambient air

around the flame, and that is used as a control device. A flare may be equipped with a

radiant heat shield (with or without a refractory lining), but is not equipped with a flame

air control damping system to control the air/fuel mixture. In addition, a flare may also

use auxiliary fuel. The combustion flame may be elevated or at ground level. A vapor

combustor, as defined in this section, is not considered a flare.

(g8) Fuel oil--Any oil meeting the American Society for Testing and

Materials (ASTM) specifications for fuel oil in ASTM Dg96-0l, Standard Specifications

for Fuel Oils, revised 2001. This includes fuel oil grades 1, 1 (Low Sulfur), 2, 2 (Low

Sulfur), 4 (light), 4, 5 (light), 5 (Heavy), and 6.
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(39) Fugitive emission--Any gaseous or particulate contaminant

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entering the atmosphere that could not reasonably pass through a stack, chimney, vent,

or other functionally equivalent opening designed to direct or control its flow.

(40) Garbage--Solid waste consisting ofputrescible animal and vegetable

waste materials resulting from the handling, preparation, cooking, and consumption of

food, including waste materials from markets, storage facilities, and handling and sale of

produce and other food products.

(41) Gasoline--Any petroleum distillate having a Reid vapor pressure of

four pounds per square inch (27.6 kilopascals) or greater that is produced for use as a

motor fuel, and is commonly called gasoline.

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

hazardous waste by the administrator ofthe United States Environmental Protection

Agency under the federal Solid Waste Disposal Act, as amended by Resource

Conservation and Recovery Act, 42 United States Code, §§6901 etseq., as amended.

(43) Heatset (used in offsetlithographic printing)--Any operation

where heat is required to evaporate ink oil from the printing ink. Hot air dryers are used

to deliver the heat.
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(44) High-bake coatings--Coatings designed to cure at temperatures

above 194 degrees Fahrenheit.

(45) High-volume low-pressure spray guns--Equipment used to

apply coatings by means of a spray gun that operates between 0.1 and 10.0 pounds per

square inch gauge air pressure measured at the air cap.

(46) Incinerator--An enclosed combustion apparatus and attachments

that is used in the process of burning wastes for the primary purpose of reducing its

volume and weight by removing the combustibles of the waste and is equipped with a

flue for conducting products of combustion to the atmosphere. Any combustion device

that bums 10% or more ofsolid waste on a total British thermal unit (Btu) heat input

basis averaged over anyone-hour period is considered to be an incinerator. A

combustion device without instrumentation or methodology to determine hourly flow

rates ofsolid waste and burning 1.0% or more ofsolid waste on a total Btu heat input

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

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

the executive director. Devices burning untreated wood scraps, waste wood, or sludge

from the treatment ofwastewater from the process mills as a primary fuel for heat

recovery are not included under this definition. Combustion devices permitted under
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this title as combustion devices oilier ilian incinerators will not be considered

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incinerators for application of any rule within this title provided they are installed and

operated in compliance with the condition of all applicable permits.

(47) Industrial boiler--A boiler located on the site of a facility engaged

in a manufacturing process where substances are transformed into new products,

including the component parts of products, by mechanical or chemical processes.

(48) Industrial furnace--Cement kilns; lime kilns; aggregate kilns;

phosphate kilns; coke ovens; blast furnaces; smelting, melting, or refining furnaces,

including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering

machines, roasters, or foundry furnaces; titanium dioxide chloride process oxidation

reactors; methane reforming furnaces; pulping recovery furnaces; combustion devices

used in the recovery ofsulfur values from spent sulfuric acid; and other devices the

commission may list.

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

to, any process ofindustry or manufacturing, or mining or agricultural operations,

classified as follows.
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(A) Class 1industrial solid waste or Class 1waste is any industrial

solid waste designated as Class 1by the executive director as any industrial solid waste

or mixture of industrial solid wastes that because ofits concentration or physical or

chemical characteristics is toxic, corrosive, flammable, a strong sensitizer or irritant, a

generator ofsudden pressure by decomposition, heat, or other means, and may pose a

substantial present or potential danger to human health or the environment when

improperly processed, stored, transported, or otherwise managed, including hazardous

industrial waste, as defined in §335.1 and §335.505 ofthis title (relating to Definitions

and Class 1Waste Determination).

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

combination ofindustrial solid wastes that cannot be described as Class 1or Class 3, as

defined in §335.506 ofthis title (relating to Class 2 Waste Determination).

(C) Class 3 industrial solid waste is any inert and essentially

insoluble industrial solid waste, including materials such as rock, brick, glass, dirt, and

certain plastics and rubber, etc., that are not readily decomposable as defined in

§335.507 ofthis title (relating to Class 3 Waste Determination).
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(50) Internal floating cover--A cover or floating roofin a fixed roof

tank that rests upon or is floated upon the liquid being contained, and is equipped with a

closure seal or seals to close the space between the cover edge and tank shell.

(51) Leak--A volatile organic compound concentration greater than

10,000 parts per million by volume or the amount specified by applicable rule,

whichever is lower; or the dripping or exuding of process fluid based on sight, smell, or

sound.

(52) Liquid fuel--A liquid combustible mixture, not derived from

hazardous waste, with a heating value of at least 5,000 British thermal units per pound.

(53) Liquid-mounted seal--A primary seal mounted in continuous

contact with the liquid between the tank wall and the floating roof around the

circumference ofthe tank.

(54) Maintenance area--A geographic region ofthe state previously

designated nonattainment under the Federal Clean Air Act Amendments of 1990 and

subsequently redesignated to attainment subject to the requirement to develop a

maintenance plan under 42 United States Code, §7505a, as described in 40 Code of

Federal Regulations Part 81and in pertinent Federal Register notices.
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(55) Maintenance plan--A revision to the applicable state

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implementation plan, meeting the requirements of42 United States Code, §7505a.

(56) Marine vessel--Anywatercraft used, or capable of being used, as a

means oftransportation on water, and that is constructed or adapted to carry, or that

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

(57) Mechanicalshoe seal--A metal sheet that is held vertically against

the storage tank wall by springs or weighted levers and is connected by braces to the

floating roof. A flexible coated fabric (envelope) spans the annular space between the

metal sheet and the floating roof.

(58) Medical waste--Waste materials identified by the Department of

State Health Services as "special waste fromhealth care-related facilities" and those

waste materials commingled and discarded with special waste from health care-related

facilities.

(59) Metropolitan Planning Organization--That organization

designated as being responsible, together with the state, for conducting the continuing,

cooperative, and comprehensive planning process under 23 United States Code (USC),

§134 and 49 USC, §1607.
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(60) Mobile emissions reduction credit--The credit obtained from an

enforceable, permanent, quantifiable, and surplus (to other federal and state rules)

emissions reduction generated by a mobile source as set forth in Chapter 114,

Subchapter F ofthis title (relating to Vehicle Retirement and Mobile Emission

Reduction Credits), and that has been banked in accordance with Subchapter H,

Division 1ofthis chapter.

(61) M~tor vehicle--A self-propelled vehicle designed for transporting

persons or property on a street or highway.

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

is dispensed to motor vehicle fuel tanks from stationary storage tanks.

(63) Municipal solid waste--Solid waste resulting from, or incidental

to, municipal, community, commercial, institutional, and recreational activities,

including garbage, rubbish, ashes, street cleanings, dead animals, abandoned

automobiles, and all other solid waste except industrial solid waste.

(64) Municipal solid waste facility--All contiguous land, structures,

other appurtenances, and improvements on the land used for processing, storing, or
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disposing ofsolid waste. A facility may be publicly or privately owned and may consist of

several processing, storage, or disposal operational units, e.g., one or more landfills,

surface impoundments, or combinations ofthem.

(65) Municipal solid waste landfill--A discrete area ofland or an

excavation that receives household waste and that is not a land application unit, surface

impoundment, injection well, or waste pile, as those terms are defined under 40 Code of

Federal Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may

receive other types of Resource Conservation and Recovery Act Subtitle D wastes, such

as commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity

generator waste, and industrial solid waste. Such a landfill may be publicly or privately

owned. An MSWLF unit may be a new MSWLF unit, an existing MSWLF unit, or a

lateral expansion.

(66) National ambient air quality standard--Those standards

established under 42 United States Code, §7409, including standards for carbon

monoxide, lead, nitrogen dioxide, ozone, inhalable particulate matter, and sulfur

dioxide.

(67) Net ground-level concentration--The concentration of an air

contaminant as measured at or beyond the property boundary minus the representative
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concentration flowing onto a property as measured at any point. Where there is no

expected influence ofthe air contaminant flowing onto a property from other sources,

the net ground level concentration may be determined by a measurement at or beyond

the property boundary.

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

modification ofwhich was commenced after March 5,1972.

(69) Nitrogen oxides (NOX)--The sum ofthe nitric oxide and nitrogen

dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.

(70) Nonattainment area--A defined region within the state that is

designated by the United States Environmental Protection Agency (EPA) as failing to

meet the national ambient air quality standard (NAAQS or standard) for a pollutant for

which a standard exists. The EPA will designate the area as nonattainment under the

provisions of 42 United States Code, §7407(d). For the official list and boundaries of

nonattainment areas, see 40 Code of Federal Regulations (CFR) Part 81 and pertinent

Federal Register notices. The designations and classifications for the one-hour owne

national ambient air quality standard in 40 CFR Part 81 were retained for the purpose of

anti-backsliding and upon determination by the EPA that any requirement is no longer

required for purposes of anti-backsliding, then that requirement no longer applies.
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(71) Non-reportable emissions event--Any emissions event that in

any 24-hour period does not result in an unauthorized emission from any emissions

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

(72) Opacity--The degree to which an emission of air contaminants

obstructs the transmission oflight expressed as the percentage oflight obstructed as

measured by an optical instrument or trained observer.

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

that is open to the air and that uses boiling solvent to create solvent vapor used to clean

or dry parts through condensation ofthe hot solvent vapors on the parts.

(74) Outdoor burning--Any fire or smoke-producing process that is not

conducted in a combustion unit.

(75) Particulate matter--Any material, except uncombined water, that

exists as a solid or liquid in the atmosphere or in a gas stream at standard conditions.

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

material, other than uncombined water, emitted to the ambient air as measured by

United States Environmental Protection Agency Reference Method 5, as specified at 40
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Code of Federal Regulations (CFR) Part 60, Appendix A, modified to include particulate

caught by an impinger train; by an equivalent or alternative method, as specified at 40

CFR Part 51; or by a test method specified in an approved state implementation plan.

(77) Petroleum refinery--Any facility engaged in producing gasoline,

kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through

distillation of crude oil, or through the redistillation, cracking, extraction, reforming, or

other processing of unfinished petroleum derivatives.

(78) PM1O--Particulate matter with an aerodynamic diameter less than or

equal to a nominal ten micrometers as measured by a reference method based on 40

Code ofFederal Regulations (CPR) Part 50, Appendix J, and designated in accordance

with 40 CFR Part 53, or by an equivalent method designated with that Part 53.

(79) PM.o emissions--Finely-divided solid orliquid material with an

aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the

ambient air as measured by an applicable reference method, or an equivalent or

alternative method specified in 40 Code of Federal Regulations Part 51, or by a test

method specified in an approved state implementation plan.
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(80) Polychlorinated biphenyl compound--A compound subject to

40 Code of Federal Regulations Part 761.

(81) Process or processes--Any action, operation, or treatment

embracing chemical, commercial, industrial, or manufacturing factors such as

combustion units, kilns, stills, dryers, roasters, and equipment used in connection

therewith, and all other methods or forms ofmanufacturing or processing that may emit

smoke, particulate matter, gaseous matter, or visible emissions.

(82) Process weight per hour--"Process weight" is the total weight of

all materials introduced or recirculated into any specific process that may cause any

discharge of air contaminants into the atmosphere. Solid fuels charged into the process

will be considered as part ofthe process weight, but liquid and gaseous fuels and

combustion air will not. The "process weight per hour" will be derived by dividing the

total process weight by the number ofhours in one complete operation from the

beginning of any given process to the completion thereof, excluding any time during that

the equipment used to conduct the process is idle. For continuous operation, the

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

hour period by 24.
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(83) Property--Allland under common control or ownership coupled

with all improvements on such land, and all fixed or movable objects on such land, or

any vessel on the waters ofthis state.

(84) Reasonable further progress--Annual incremental reductions in

emissions ofthe applicable air contaminant that are sufficient to provide for attainment

ofthe applicable national ambient air quality standard in the designated nonattainment

areas by the date required in the state implementation plan.

(85) Regulated entity--All regulated units, facilities, equipment,

structures, or sources at one street address or location that are owned or operated by the

same person. The term includes any property under common ownership or control

identified in a permit or used in conjunction with the regulated activity at the same

street address or location. Owners or operators of pipelines, gathering lines, and

flowlines under common ownership or control in a particular county may be treated as a

single regulated entity for purposes of assessment and regulation of emissions events.

(86) Remote reservoir cold solvent cleaning--Any cold solvent

cleaning operation in which liquid solvent is pumped to a sink-like work area that drains

solvent back into an enclosed container while parts are being cleaned, allowing no

solvent to pool in the work area.
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(87) Reportable emissions event--Any emissions event that in any 24-

hour period, results in an unauthorized emission from any emissions point equal to or in

excess of the reportable quantity as defined in this section.

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

(A) for individual air contaminant compounds and specifically

listed mixtures by name or Chemical Abstracts Service (CAS) number, either:

(i) the lowest ofthe quantities:

(I) listed in 40 Code of Federal Regulations (CFR)

Part 302, Table 302.4, the column "final RQ";

(II) listed in 40 CFR Part 355, Appendix A, the

column "Reportable Quantity"; or

(III) listed as follows:
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(-a-) acetaldehyde -1,000 pounds, except in the

Houston-Galveston-Brazoria (HGB) and Beaumont-Port Arthur (BPA) owne

nonattainment areas as defined in paragraph (70) ofthis section, where the RQ must be

100 pounds;

(-b-) butanes (any isomer) - 5,000 pounds;

(-c-) butenes (any isomer, except 1,3-

butadiene) - 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as

defined in paragraph (70) ofthis section, where the RQ must be 100 pounds;

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

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

- 5,000 pounds;

(-f-) chlorodifluoromethane (HCFC-22) - 5,000

pounds;

(-g-) 1-chloro-l-fluoroethane (HCFC-151a)-

5,000 pounds;
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(-h-) chlorotluoromethane (HCFC-31) - 5,000

pounds;

(-i-) chloropentatluoroethane (CFC-115)-

5,000 pounds;

(-j-) 2-chloro-l,I,I,2-tetratluoroethane (HCFC124) - 5,000 pounds;

(-k-) l-chloro-l,I,2,2 tetrafluoroethane (HCFC124a) - 5,000 pounds;

(-1-) 1,1,1,2,3,4,4,5,5,5-decat1uoropentane (HFC

43-10mee) - 5,000 pounds;

(-m-) decanes (any isomer) - 5,000 pounds;

(-n-) 1,I-dichloro-l-tluoroethane (HCFC-141b)-

5,000 pounds;
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(-0-) g,g-c!ichloro-1,1,2,2-pentafluoropropane

(HCFC- 225ca) - 5,000 pounds;

(-p-) 1,g-c!ichloro-1,1,2,2,g-pentafluoropropane

(HCFC-225cb) - 5,000 pounds;

(-q-) 1,2-dichloro-1,1,2,2-tetrafluoroethane

(CFR-114) - 5,000 pounds;

(-r-) 1,1- dichlorotetrafluoroethane (CFC-114a)

- 5,000 pounds;

{-s-) 1,2-c!ichloro-1,1,2-trifluoroethane (HCFC12ga) - 5,000 pounds;

(-t-) 1,1-c!ifluoroethane (HFC-152a) - 5,000

pounds;

(-u-) c!ifluoromethane (HFC-g2) - 5,000

. pounds;
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(-v-) ethanol- 5,000 pounds;

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

HGB and BPA ozone nonattainment areas as defined in paragraph (70) ofthis section,

where the RQ must be 100 pounds;

(-x-) ethylfluoride (HFC-161) - 5,000 pounds;

(-y-) 1,1,1,2,3,3,3-heptafluoropropane (HFC227ea) - 5,000 pounds;

(-z-) 1,1,1,3,3,3-hexafluoropropane (HFC236fa) - 5,000 pounds;

(-aa-) 1,1,1,2,3,3-hexafluoropropane (HFC236ea) - 5,000 pounds;

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

(-cc-) isopropyl alcohol - 5,000 pounds;
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(-dd-) mineral spirits - 5,000 pounds;

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(-ee-) octanes (any isomer) - 5,000 pounds;

(-ff-) oxides of nitrogen - 200 pounds in ozone

nonattainment, ozone maintenance, early action compact areas, Nueces County, and

San Patricio County, and 5,000 pounds in all other areas ofthe state, which should be

used instead ofthe RQs for nitrogen oxide and nitrogen dioxide provided in 40 CFR Part

302, Table 302.4, the column "final RQ";

(-gg-) pentachlorofluoroethane (CFR-lll) -

5,000 pounds;

(-hh-) 1,1,1,3,3-pentafluorobutane (HFC365mfc) - 5,000 pounds;

(-ii-) pentafluoroethane (HFC-125) - 5,000

pounds;

(-jj-) 1,1,2,2,3-pentafluoropropane (HFC245ca) - 5,000 pounds;
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(-kk-) 1,1,2,3,3-pentatluoropropane (HFC245ea) - 5,000 pounds;

(-ll-) 1,1,1,2,3-pentatluoropropane (HFC245eb) - 5,000 pounds;

(-mm-) 1,1,1,3,3-pentatluoropropane (HFC245fa) - 5,000 poun9s;

(-nn-) pentanes (any isomer) - 5,000 pounds;

(-00-) propane - 5,000 pounds;

(-pp-) propylene - 5,000 pounds, except in the

HGB and BPA ozone nonattainment areas as defined in paragraph (70) of this section,

where the RQ must be 100 pounds;

(-qq-) 1,1,2,2-terachlorodifluoroethane (CFR112) - 5,000 pounds;
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(-rr-) 1,1,1,2-tetrachlorodifluoroethane (CFC112a) -5,000 pounds;

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

5,000 pounds;

(-tt-) 1,1,1,2-tetrafluoroethane (HFC-134a) -

5,000 pounds;

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

(CFR-l13) - 5,000 pounds;

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

(CFC- l13a) - 5,000 pounds;

(-ww-) 1,1,I-trifluoro-2,2-dichloroethane

(HCFC-123) - 5,000 pounds;

(-xx-) 1,1,I-trifluoroethane (HFC-143a) - 5,000

pounds;
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(-yy-) trifluoromethane (HFC-23) - 5,000

pounds; or

(-'Cl-) toluene - 1,000 pounds, except in the

HGB and BPA ozone nonattainment areas as defined in paragraph (70) ofthis section,

where the RQ must be 100 pounds;

(ii) if not listed in clause (i) ofthis subparagraph, 100

pounds;

(B) for mixtures of air contaminant compounds:

(i) where the relative amount ofindividual air contaminant

compounds is known through common process knowledge or prior engineering analysis

or testing, any amount of an individual air contaminant compound that equals or

exceeds the amount specified in subparagraph (A) ofthis paragraph;

(ii) where the relative amount ofindividual air contaminant

compounds in subparagraph (A)(i) ofthis paragraph is not known, any amount ofthe

mixture that equals or exceeds the amount for any single air contaminant compound

that is present in the mixture and listed in subparagraph (A)(i) ofthis paragraph;
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(iii) where each ofthe individual air contaminant compounds

listed in subparagraph (A)(i) ofthis paragraph are known to be lessthan 0.02% by

weight ofthe mixture, and each ofthe other individual air contaminant compounds

covered by subparagraph (A)(ii) ofthis paragraph are known to be less than 2.0% by

weight ofthe mixture, any total amount ofthe mixture of air contaminant compounds

greater than or equal to 5,000 pounds; or

(iv) where natural gas excluding carbon dioxide, water,

nitrogen, methane, ethane, noble gases, hydrogen, and oxygen or air emissions from

crude oil are known to be in an amount greater than or equal to 5,000 pounds or the

associated hydrogen sulfide and mercaptans in a total amount greater than 100 pounds,

whichever occurs first;

(C) for opacity from boilers and combustion turbines as defined in

this section fueled by natural gas, coal, lignite, wood, fuel oil containing hazardous air

pollutants at a concentration ofless than 0.02% by weight, opacity that is equal to or

exceeds 15 additional percentage points above the applicable limit, averaged over a sixminute period. Opacity is the only RQ applicable to boilers and combustion turbines

described in this paragraph; or
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(D) for facilities where air contaminant compounds are measured

directly by a continuous emission monitoring system providing updated readings at a

minimum 1s-minute interval an amount, approved by the executive director based on

any relevant conditions and a screening model, that would be reported prior to ground

level concentrations reaching at any distance beyond the closest regulated entity

property line:

(i) less than one-half of any applicable ambient air standards;

and

(ii) lessthan two times the concentration of applicable air

emission limitations.

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

combustible and noncombustible waste materials. Combustible rubbish includes paper,

rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and

similar materials. Noncombustible rubbish includes glass, crockery, tin cans, aluminum

cans, metal furniture, and like materials that will not burn at ordinary incinerator

temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).
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(90) Scheduled maintenance, starhtp, orshutdown aetivity--For

activities with unauthorized emissions that are expected to exceed a reportable quantity

(RQ), a scheduled maintenance, startup, or shutdown activity is an activity that the

owner or operator ofthe regulated entity whether performing or otherwise affected by

the activity, provides prior notice and a final report as required by §101.211 of this title

(relating to Scheduled Maintenance, Startup, and Shutdown Reporting and

Recordkeeping Requirements); the notice or final report includes the information

required in §101.211 ofthis title; and the actual unauthorized emissions from the activity

do not exceed the emissions estimates submitted in the initial notification by more than

an RQ. For activities with unauthorized emissions that are not expected to, and do not,

exceed an RQ, a scheduled maintenance, startup, or shutdown activity is one that is

recorded as required by §101.211 ofthis title. Expected excess opacity events as

described in §101.201(e) of this title (relating to Emissions Event Reporting and

Recordkeeping Requirements) resulting from scheduled maintenance, startup, or

shutdown activities are those that provide prior notice (ifrequired), and are recorded

and reported as required by §101.211 ofthis title.

(91) Sludge--Any solid or semi-solid, or liquid waste generated from a

municipal, commercial, or industrial wastewater treatment plant; water supply

treatment plant, exclusive ofthe treated effluent from a wastewater treatment plant; or

air pollution control equipment.
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(92) Smoke--Small gas-born particles resulting from incomplete

Page 54

combustion consisting predominately of carbon and other combustible material and

present in sufficient quantity to be visible.

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

treatment plant, water supply treatment plant, or air pollution control equipment, and

other discarded material, including solid, liquid, semisolid, or containerized gaseous

material resulting from industrial, municipal, commercial, mining, and agricultural

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

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

dissolved material in irrigation return flows, or industrial discharges subject to

regulation by permit issued underthe Texas Water Code, Chapter 26;

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

materials used to fill land, ifthe object ofthe fill is to make the land suitable for the

construction ofsurface improvements; or

(C) waste materialsthat result from activities associated with the

exploration, development, or production of oil or gas, or geothermal resources, and
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other substance or material regulated by the Railroad Commission ofTexas under

Natural Resources Code, §91.101, unless the waste, substance, or material results from

activities associated with gasoline plants, natural gas liquids processing plants, pressure

maintenance plants, or repressurizing plants and is hazardous waste as defined by the

administrator ofthe United States Environmental Protection Agency under the federal

Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, as

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

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

equilibrium at atmospheric pressure.

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

hydrogen sulfide per 100 cubic feet, or more than 30 grains oftotal sulfur per 100 cubic

feet.

(96) Source--A point of origin of air contaminants, whether privately or

publicly owned or operated. Upon request of a source owner, the executive director shall

determine whether multiple processes emitting air contaminants from a single point of

emission will be treated as a single source or as multiple sources.
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(97) Special waste from health care-related facilities--A solid waste

that ifimproperly treated or handled, may serve to transmit infectious disease(s) and

that is comprised ofthe following: animal waste, bulk blood and blood products,

microbiological waste, pathological waste, and sharps.

(98) Standard conditions--A condition at a temperature of 68 degrees

Fahrenheit (20 degrees Centigrade) and a pressure of 14.7 pounds per square inch

absolute (101.3 kiloPascals).

(99) Standard metropolitan statistical area--An area consisting of a

county or one or more contiguous counties that is officially so designated by the United

States Bureau ofthe Budget.

(100) Submerged fill pipe--A fill pipe that extends from the top of a

tank to have a maximum clearance ofsix inches (15.2 centimeters) from the bottom or,

when applied to a tank that is loaded from the side, that has a discharge opening entirely

submerged when the pipe used to withdraw liquid from the tank can no longer withdraw

liquid in normal operation.

(101) Sulfur compounds--All inorganic or organic chemicals having an

atom or atoms ofsulfur in their chemical structure.
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(102) Sulfuric acid mist/sulfuric acid--Emissions ofsulfuric acid mist

and sulfuric acid are considered to be the same air contaminant calculated as H2 S04 and

must include sulfuric acid liquid mist, sulfur trioxide, and sulfuric acid vapor as

measured by Test Method 8 in 40 Code of Federal Regulations Part,6o, Appendix A.

(103) Sweet crude oil and gas--Those crude petroleum hydrocarbons

that are not "sour" as defined in this section.

(104) Total suspended partieulate--Particulate matter as measured by

the method descnbed in 40 Code of Federal Regulations Part 50, Appendix B.

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

the surface or a part of product divided by the total amount of coating solids delivered to

the coating application system.

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

pressure, measured in pounds persquare inch absolute, of all volatile organic

compounds at the temperature ofstorage, handling, or processing.
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(107) Unauthorized emissions--Emissions of any air contaminant

except carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and

oxygen that exceed any air emissionlimitation in a permit, rule, or order ofthe

commission or as authorized by Texas Clean Air Act, §382.0518(g).

(108) Unplanned maintenance, startup, or shutdown activity--

For activities with unauthorized emissions that are expected to exceed a reportable

quantity or with excess opacity, an unplanned maintenance, startup, or shutdown

activity is:

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

facility operations, is unpredictable as to timing, and is not the type of event normally

authorized by permit; or

(B) a maintenance activity that arises from sudden and

unforeseeable events beyond the control ofthe operator that requires the immediate

corrective action to minimize or avoid an upset or malfunction.

(109) Upset event--An unplanned and unavoidable breakdown or

excursion of a process or operation that results in unauthorized emissions. A

maintenance, startup, or shutdown activity that was reported under §101.211 ofthis title
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(relating to Scheduled Maintenance, Startup, and Shutdown Reporting and

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Recordkeeping Requirements), but had emissions that exceeded the reported amount by

more than a reportable quantity due to an unplanned and unavoidable breakdown or

excursion of a process or operation is an upset event.

(110) Utility boiler--A boiler used to produce electric power, steam, or

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

(111) Vapor combustor--A partially enclosed combustion device used to

destroy volatile organic compounds by smokeless combustion without extracting energy

in the form of process heat or steam. The combustion flame may be partially visible, but

at no time does the device operate with an uncontrolled flame. Auxiliary fuel and/or a

flame air control damping system that can operate at all times to control the air/fuel

mixture to the combustor's flame zone, may be required to ensure smokeless

combustion during operation.

(112) Vapor-mounted seal--A primary seal mounted so there is an

annular space underneath the seal. The annular vapor space is bounded by the bottom

ofthe primary seal, the tank wall, the liquid surface, and the floating roof or cover.
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(l1g) Vent--Any duct, stack, chimney, flue, conduit, or other device used

to conduct air contaminants into the atmosphere.

(114) VISible emissions--Particulate or gaseous matter that can be

detected by the human eye. The radiant energy from an open flame is not considered a

visible emission under this definition.

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

Regulations §S1.100(s), except §S1.100(S)(2) - (4), as amended on November 29,2004

(69 FR 69290).

(116) Volatile organic compound (VOC) water separator--Any

tank, box, sump, or other container in which anyVOC, floating on or contained in water

entering such tank, box, sump, or other container, is physically separated and removed

from such water prior to outfall, drainage, or recovery ofsuch water.
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SUBCHAPTER A: DEFINITIONS

§116.12

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code §5.102, concerning General

Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, which

authorize the commission to adopt rules as necessary to carry out its power and duties

under the Texas Water Code; Texas Health and Safety Code, §382.017, which provides

the commission with the authority to adopt rules consistent with the policy and

purposes ofthe Texas Clean Air Act (TCAA); §382.on, concerning General Powers and

Duties, which authorizes the commission to control the quality ofthe state's air;

§382.012, concerning State Air Control Plan, which authorizes the commission to

prepare and develop a comprehensive plan for the proper control ofthe state's air; and

§382.051, concerning Permitting Authority ofthe Commission, which authorizes the

commission to issue permits to construct a new facility or modify an existing facility that

may emit air contaminants, and authority to adopt rules necessary to comply with

changes in federal law or regulations applicable to permits issued under the TCAA.

The amendment implements Texas Water Code, §5.103; and Texas Health and Safety

Code, §§382.017, 382.012, and 382.051.
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§116.12. Nonattainment and Prevention of Significant Deterioration Review Definitions.

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

commission, the terms used by the commission have the meanings commonly ascribed

to them in the field of air pollution control. The terms in this section are applicable to

permit review for major source construction and major source modification in

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

§101.1 ofthis title (relating to Definitions), the following words and terms, when used in

Chapter 116, Subchapter B, Divisions 5 and 6 ofthis title (relating to Nonattainment

Review Permits and Prevention of Significant Deterioration Review); and Chapter 116,

Subchapter C, Division 1ofthis title (relating to Plant-Wide Applicability Limits), have

the following meanings, unless the context clearly indicates otherwise.

(1) Actual emissions--Actual emissions as of a particular date are equal to

the average rate, in tons per year, at which the unit actually emitted the pollutant during

the 24-month period that precedes the particular date and that is representative of

normal source operation, except that this definition shall not apply for calculating

whether a significant emissions increase has occurred, or for establishing a plant-wide

applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual

emissions shall apply for this purpose. The executive director shall allow the use of a

different time period upon a determination that it is more representative of normal
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source operation. Actual emissions shall be calculated using the unit's actual operating

hours, production rates, and types of materials processed, stored, or combusted during

the selected time period. The executive director may presume that the source-specific

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

allowable limit is reflective of actual emissions. For any emissions unit that has not

begun normal operations on the particular date, actual emissions shall equal the

potential to emit ofthe unit on that date.

(2) Allowable emissions--The emissions rate of a stationary source,

calculated using the maximum rated capacity ofthe source (unless the source is subject

to federally enforceable limits that restrict the operating rate, or hours of operation, or

both), and the most stringent ofthe following:

(A) the applicable standards specified in 40 Code of Federal

Regulations Part 60 or 61;

(B) the applicable state implementation plan emissions limitation

including those with a future compliance date; or

(C) the emissions rate specified as a federally enforceable permit

condition including those with a future compliance date.
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(3) Baseline actual emissions--The rate of emissions, in tons per year, of a

federally regulated new source review pollutant.

(A) For any existing electric utility steam generating unit, baseline

actual emissions means the rate, in tons per year, at which the unit actually emitted the

pollutant during any consecutive 24-month period selected by the owner or operator

within the five-year period immediately preceding when the owner or operator begins

actual construction ofthe project. The executive director shall allow the use of a

different time period upon a determination that it is more representative of normal

source operation.

(B) For an existing facility (other than an electric utility steam

generating unit), baseline actual emissions means the rate, in tons per year, at which the

facility actually emitted the pollutant during any consecutive 24-month period selected

by the owner or operator within the ten-year period immediately preceding either the

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

complete permit application is received for a permit. The rate shall be adjusted

downward to exclude any emissions that would have exceeded an emission limitation

\\ith which the major stationary source must currently comply with the exception of

those required under 40 Code of Federal Regulations Part 63, had such major stationary
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source been required to comply with such limitations during the consecutive 24-month

period.

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

determining the emissions increase that will result from the initial construction and

operation ofsuch unit shall equal zero; and for all other purposes during the first two

years following initial operation, shall equal the unit's potential to emit.

(D) The actual rate shall be adjusted downward to exclude any noncompliant 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 consecutive 24-month period can

be used for each regulated new source review pollutant. The 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 emissions rate shall include fugitive emissions to the

extent quantifiable. Until March 1, 2016, emissions previously demonstrated as

emissions events or historically exempted under Chapter 101 ofthis title (relating to
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General Air Quality Rules) may be included to the extent that they have been authorized,

or are being authorized.

(4) Basic design parameters--For a process unit at a steam electric

generating facility, the owner or operator may select as its basic design parameters

either maximum hourly heat input and maximum hourly fuel consumption rate or

maximum hourly electric output rate and maximum steam flow rate. When establishing

fuel consumption specifications in terms ofweight or volume, the minimum fuel quality

based on British thermal units content shall be used for determining the basic design

parameters for a coal-fired electric utility steam generating unit. The basic design

parameters for any process unit that is not at a steam electric generating facility are

maximum rate offuel or heat input, maximum rate ofmaterial input, or maximum rate

of product output. Combustion process units will typically use maximum rate offuel

input. For sources having multiple end products and raw materials, the owner or

operator shall consider the primary product or primary raw material when selecting a

basic design parameter. The owner or operator may propose an alternative basic design

parameter for the source's process units to the executive director ifthe owner or

operator believes the basic design parameter as defined in this paragraph is not

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

approves ofthe use of an alternative basic design parameter, that basic design parameter
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shall be identified and compliance required in a condition in a permit that is legally

enforceable.

(A) The owner or operator shall use credible information, such as

results of historic maximum capability tests, design information from the manufacturer,

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

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

owner or operator shall determine the process unit's basic design parameter(s) using the

maximum value achieved by the process unit in the five-year period immediately

preceding the planned activity.

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

(5) Begin actual construction--In general, initiation of physical on-site

construction activities on an emissions unit that are of a permanent nature. Such

activities include, but are not limited to, installation of building supports and

foundations, laying of underground pipework, and construction of permanent storage

structures. With respect to a change in method of operation, this term refers to those onsite activities other than preparatory activities that mark the initiation ofthe change.
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(6) Building, structure, facility, or installation--All ofthe pollutantemitting activities that belong to the same industrial grouping, are located in one or

more contiguous or adjacent properties, and are under the control ofthe same person

(or persons under common control). Pollutant-emitting activities are considered to be

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

have the same two-digit code) as described in the Standard Industrial Classification

Manual, 1972, as amended by the 1977 supplement.

(7) Clean coal technology--Any technology, including technologies applied

at the precombustion, combustion, or post-combustion stage, at a new or existing

facility that will achieve significant reductions in air emissions of sulfur dioxide or

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

or process steam that was not in widespread use as of November 15, 1990.

(8) Clean coal technology demonstration project--A project using funds

appropriated under the heading "Department of Energy-Clean Coal Technology," up to a

total amount of $2.5 billion for commercial demonstration of clean coal technology, or

similar projects funded through appropriations for the United States Environmental

Protection Agency. The federal contribution for a qualifying project shall be at least 20%

ofthe total cost ofthe demonstration project.
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(9) Commence--As applied to construction of a major stationary source or

major modification, means that the owner or operator has all necessary preconstruction

approvals or permits and either has:

(A) begun, or caused to begin, a continuous program of actual onsite construction of the source, to be completed within a reasonable time; or

(B) entered into binding agreements or contractual obligations,

which cannot be canceled or modified without substantial loss to the owner or operator,

to undertake a program of actual construction of the source to be completed within a

reasonable time.

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

operation (including fabrication, erection, installation, demolition, or modification of an

emissions unit) that would result in a change in actual emissions.

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

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

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

change commences.

(12) De minimis threshold test (netting)--A method of determining if a

proposed emission increase will trigger nonattainment or prevention ofsignificant

deterioration review. The summation of the proposed project emission increase in tons

per year with all other creditable source emission increases and decreases during the

contemporaneous period is compared to the significant level for that pollutant. Ifthe

significant level is exceeded, then prevention ofsignificant deterioration and/or

nonattainment review is required.

(13) Electric utility stearn generating unit--Any stearn 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. Any stearn supplied to a steam distribution system

for the purpose of providing stearn to a stearn-electric generator that would produce

electrical energy for sale is included in determining the electrical energy output capacity

ofthe affected facility.

(14) Federally regulated new source review pollutant--As defined in

subparagraphs (A) - (D) ofthis paragraph:
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(A) any pollutant for which a national ambient air quality standard

has been promulgated and any constituents or precursors for such pollutants identified

by the United States Environmental Protection Agency;

(B) any pollutant that is subject to any standard promulgated under

Federal Clean Air Act (FCAA), §111;

(C) any Class I or II substance subject to a standard promulgated

under or established by FCAA, Title VI; or

(D) any pollutant that otherwise is subject to regulation under tlle

FCAA; except that any or all hazardous air pollutants either listed in FCAA, §112 or

added to tlle list under FCAA, §112(b)(2), which have not been delisted under FCAA,

§112(b)(3), are not regulated new source review pollutants unless tlle listed hazardous

air pollutant is also regulated as a constituent or precursor of a general pollutant listed

under FCAA, §108.

(15) Lowest achievable emission rate--For any emitting facility, that rate of

emissions of a contaminant tllat does not exceed tlle amount allowable under applicable
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new source performance standards promulgated by the United States Environmental

Protection Agency under 42 United States Code, §7411, and that reflects the following:

(A) the most stringent emission limitation that is contained in the

rules and regulations of any approved state implementation plan for a specific class or

category offacility, unless the owner or operator ofthe proposed facility demonstrates

that such limitations are not achievable; or

(B) the most stringent emission limitation that is achieved in

practice by a specific class or category offacilities, whichever is more stringent.

(16) Major facility--Any facility that emits or has the potential to emit 100

tons per year or more ofthe plant-wide applicability limit (PAL) pollutant in an

attainment area; or any facility that emits or has the potential to emit the PAL pollutant

in an amount that is equal to or greater than the major source threshold for the PAL

pollutant in Table I ofthis section for nonattainment areas.

(17) Major stationary source--Any stationary source that emits, or has the

potential to emit, a threshold quantity of emissions or more of any air contaminant

(including volatile organic compounds (VOCs) for which a national ambient air quality

standard has been issued. The major source thresholds are identified in Table I ofthis
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section for nonattainment pollutants and the major source thresholds for prevention of

significant deterioration pollutants are identified in 40 Code of Federal Regulations

(CFR) §S1.166(b)(1). A source that emits, or has the potential to emit a federally

regulated new source review pollutant at levels greater than those identified in 40 CFR

§S1.166(b)(1) is considered major for all prevention ofsignificant deterioration

pollutants. A major stationary source that is major for VOCs or nitrogen oxides is

considered to be major for ozone. The fugitive emissions of a stationary source shall not

be included in determining for any ofthe purposes ofthis definition whether it is a

major stationary source, unless the source belongs to one ofthe categories ofstationary

sources listed in 40 CFR §S1.16s(a)(1)(iv)(C).

(18) Major modification--As follows.

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

a major stationary source that causes a significant project emissions increase and a

significant net emissions increase for any federally regulated new source review

pollutant. At a stationary source that is not major prior to the increase, the increase by

itself must equal or exceed that specified for a major source. At an existing major

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

modification to be significant. The major source and significant thresholds are provided

in Table I ofthis section for nonattainment pollutants. The major source and significant
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thresholds for prevention ofsignificant deterioration pollutants are identified in 40

Code of Federal Regulations §51.166(b)(1) and (23), respectively.

Figure: 30 TAC §n6.12(18)(A)

TABLE I

MAJOR SOURCE/MAJOR MODIFICATION EMISSION THRESHOLDS

POLLUTANT MAJOR SIGNIFICANT OFFSET RATIO

designation' SOURCE LEVEL> minimum

tons/year tons/year

OZONE (VOC, NOx)3

I marginal 100 40 1.10 to 1

II moderate 100 40 1.15 to 1

III serious 50 25 1.20 to 1

IV severe 25 25 1.30 to 1

CO

I moderate 100 100 1.00 to 14
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II serious 50 50 1.00 to 14

S02 100 40 1.00 to 14

PMlO

I moderate 100 15 1.00 to 14

II serious 70 15 1.00 to 14

NO,s 100 40 1.00 to 14

Lead 100 0.6 1.00 to 14

1 Texas nonattainment area designations as defined in §101.1(70) ofthis title.

2The significant level is applicable only to existing major sources and shall be evaluated

after netting, unless the applicant chooses to apply nonattainment new source review

(NNSR) directly to the project. The appropriate netting triggers for existing major

sources of NOx and VOC are specified in §116.150 ofthis title (relating to New Major

Source or Major Modification in Ozone Nonattainment Areas) and for other pollutants

are equal to the significant level listed in this table.

3 VOC and NOx are precursors to ozone formation and should be quantified individually

to determine whether a source is subject to NNSR under §116.150 ofthis title.

4The offset ratio is specified to be greater than 1.00 to 1.
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VOC =volatile organic compounds

NOx = oxides of nitrogen

N02=nitrogen dioxide

CO =carbon monoxide

S02 =sulfur dioxide

PMlO = particulate matter with an aerodynamic diameter less than or equal to ten

microns

5 Applies to the NAAQS for nitrogen dioxide (N02).

(B) A physical change or change in the method of operation shall

not include:

(i) routine maintenance, repair, and replacement;

(ii) use of an alternative fuel or raw material by reason of an

order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and

(b) (or any superseding legislation) or by reason of a natural gas curtailment plan under

the Federal Power Act;
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(iii) use of an alternative fuel by reason of an order or rule of

42 United States Code, §742S;

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

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

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

source that the source was capable of accommodating before December 21, 1976 (unless

such change would be prohibited under any federally enforceable 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 change in emissions of a pollutant at a site that

occurs under an existing plant-wide applicability limit;
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(ix) the installation, operation, cessation, or removal of a

temporary clean coal technology demonstration project, provided that the project

complies with the state implementation plan and other requirements necessary to attain

and maintain the national ambient air quality standard during the project and after it is

terminated;

(x) for prevention ofsignificant deterioration review only,

the installation or operation of a permanent clean coal technology demonstration

project that constitutes re-powering, provided that the project does not result in an

increase in the potential to emit of any regulated pollutant emitted by the unit. This

exemption shall apply on a pollutant-by-pollutant basis; or

(xi) for prevention ofsignificant deterioration review only,

the reactivation of a clean coal-fired electric utility stearn generating unit.

(19) Necessary preconstruction approvals or permits--Those permits or

approvals required under federal air quality control laws and regulations and those air

quality control laws and regulations that are part ofthe applicable state implementation

plan.
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(20) Net emissions increase--The amount by which the sum ofthe

following exceeds zero: the project emissions increase plus any sourcewide creditable

contemporaneous emission increases, minus any sourcewide creditable

contemporaneous emission decreases. Baseline actual emissions shall be used to

determine emissions increases and decreases.

(A) An increase or decrease in emissions is creditable only ifthe

following conditions are met:

(i) it occurs during the contemporaneous period;

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

federal new source review permit for the source and that permit is in effect when the

increase in emissions from the particular change occurs; and

(iii) in the case of prevention ofsignificant deterioration

review only, an increase or decrease in emissions ofsulfur dioxide, particulate matter, or

nitrogen oxides that occurs before the applicable minor source baseline date is

creditable only if it is required to be considered in calculating the amount of maximum

allowable increases remaining available.
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(B) An increase in emissions is creditable ifit is the result of a

physical change in, or change in the method ofoperation of a stationary source only to

the extent that the new level of emissions exceeds the baseline actual emission rate.

Emission increases at facilities under a plant-wide applicability limit are not creditable.

(C) A decrease in emissions is creditable only to the extent that all

ofthe following conditions are met:

(i) the baseline actual emission rate exceeds the new level of

emissions;

(ii) it is enforceable at and after the time that actual

construction on the particular change begins;

(iii) the executive director has not relied on it in issuing a

prevention ofsignificant deterioration or a nonattainment permit;

(iv) the decrease has approximately the same qualitative

significance for public health and welfare as that attributed to the increase from the

particular change; and
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(v) in the case of nonattainment applicability analysis only,

the state has not relied on the decrease to demonstrate attainment or reasonable further

progress.

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

occurs when the emissions unit on which construction occurred becomes operational

and begins to emit a particular pollutant. Any replacement unit that requires shakedown

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

(21) Offset ratio--For the purpose ofsatisfying the emissions offset

reduction requirements of 42 United States Code, §7503(a)(1)(A), the emissions offset

ratio is the ratio oftotal actual reductions of emissions to total emissions increases of

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

the definition 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 1or 4

ofthis title (relating to Emission Credit Banking or Trading; or Discrete Emission Credit

Banking and Trading), except as provided for in §116.170(b) ofthis title (relating to

Applicability ofEmission Reductions as Offsets). The reduction must not have been

relied on in the issuance of a previous nonattainment or prevention ofsignificant

deterioration permit.
Texas Commission on Environmental Quality Page 53

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-o30-116-PR

(22) Plant-wide applicability limit--An emission limitation expressed, in

tons per year, for a pollutant at a major stationary source, that is enforceable and

established in a plant-wide applicability limit permit under §116.186 ofthis title (relating

to General and Special Conditions).

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

the plant-wide applicability limit permit. The plant-wide applicability limit effective date

for a plant-wide applicability limit established in an existing flexible permit is the date

that the flexible permit was issued.

(24) Plant-wide applicability limit major modification--Any physical

change in, or change in the method of operation ofthe plant-wide applicability limit

source that causes it to emit the plant-wide applicability limit pollutant at a level equal

to or greater than the plant-wide applicability limit.

(25) Plant-wide applicability limit permit--The new source review permit

that establishes the plant-wide applicability limit.

(26) Plant-wide applicability limit pollutant--The pollutant for which a

plant-wide applicability limit is established at a major stationary source.
Texas Commission on Environmental Quality Page 54

Chapter 116 - Control ofAir pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-030-116-PR

(27) Potential to emit--The maximum capacity of a stationary source to

emit a pollutant under its physical and operational design. Any physical or enforceable

operational limitation on the capacity ofthe stationary source to emit a pollutant,

including air pollution control equipment and restrictions on hours of operation or on

the type or amount of material combusted, stored, or processed, may be treated as part

ofits design only ifthe limitation or the effect it would have on emissions is federally

enforceable. Secondary emissions, as defined in 40 Code of Federal Regulations

§51.165(a)(1)(viii), do not count in determining the potential to emit for a stationary

source.

(28) Project net--The sum ofthe following: the project emissions increase,

minus any sourcewide creditable emission decreases proposed at the source between the

date of application for the modification and the date the resultant modification begins

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

decreases. Increases and decreases must meet the creditability criteria listed under the

definition of net emissions increase in this section.

(29) Projected actual emissions--The maximum annual rate, in tons per

year, at which an existing facility is projected to emit a federally regulated new source

review pollutant in any rolling 12-month period during the five years following the date

the facility resumes regular operation after the project, or in anyone ofthe ten years
Texas Commission on Environmental Quality Page 55

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2008-030-116-PR

following that date, if the project involves increasing the facility's design capacity or its

potential to emit that federally regulated new source review pollutant. In determining

the projected actual emissions, the owner or operator ofthe major stationary source

shall include fugitive emissions to the extent quantifiable and shall consider all relevant

information, including, but not limited to, historical operational data, the company's

own representations, the company's expected business activity and the company's

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

regulatory authorities, and compliance plans under the approved state implementation

plan.

(30) Project emissions increase--The sum of emissions increases for each

modified or affected facility determined using the following methods:

(A) for existing facilities, the difference between the projected actual

emissions and the baseline actual emissions. In calculating any increase in emissions

that results from the project, that portion ofthe facility's emissions following the project

that the facility could have accommodated during the consecutive 24-month period used

to establish the baseline actual emissions and that are also unrelated to the particular

project, including any increased utilization due to product demand growth may be

excluded from the project emission increase. The potential to emit from the facility
Texas Commission on Environmental Quality Page 56

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2008-030-116-PR

following completion ofthe project may be used in lieu ofthe projected actual emission

rate; and

(B) for new facilities, the difference between the potential to emit

from the facility following completion ofthe project and the baseline actual emissions.

(31) Replacement facility--A facility that satisfies the following criteria:

(A) the facility is a reconstructed unit within the meaning of 40

Code of Federal Regulations §60.15(b)(1), 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 of

the process unit;

(D) the replaced facility is permanently removed from the major

stationary source, otherwise permanently disabled, or permanently barred from

operation by a permit that is enforceable. Ifthe replaced facility is brought back into

operation, it shall constitute a new facility. No creditable emission reductions shall be
Texas Commission on Environmental Quality Page 57

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-030-116-PR

generated from shutting down the existing facility that is replaced. A replacement

facility is considered an existing facility for the purpose of determining federal new

source review applicability.

(32) Secondary emissions--Emissions that would occur as a result ofthe

construction or operation of a major stationary source or major modification, but do not

come from the source or modification itself. Secondary emissions must be specific, welldefined, quantifiable, and impact the same general area as the stationary 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 directly from a mobile source such as emissions from the tail pipe of a motor

vehicle, from a train, or from a vessel.

(33) Significant facility--A facility that emits or has the potential to emit a

plant-wide applicability limit (PAL) pollutant in an amount that is equal to or greater

than the significant level for that PAL pollutant.
Texas Commission on Environmental Quality Page 58

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-o30-n6-PR

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

plant-wide applicability limit (PAL) pollutant in an amount lessthan the significant level

for that PAL pollutant.

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

emits or may emit any air pollutant subject to regulation under 42 United States Code,

§§7401 etseq.

(36) Temporary clean coal technology demonstration project--A clean coal

technology demonstration project that is operated for a period offive years or less, and

that complies with the state implementation plan and other requirements necessary to

attain and maintain the national ambient air quality standards during the project and

after it is terminated.
Texas Commission on Environmental Quality Page 59

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-030-116-PR

SUBCHAPTER B: NEW SOURCE REVIEW PERMITS

DIVISION 5: NONATTAINMENT REVIEW PERMITS

§U6.150

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code, §5.102, concerning General

Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, which

authorize the commission to adopt rules as necessary to carry out its power and duties

under the Texas Water Code; Texas Health and Safety Code, §382.017, which provides

the commission with the authority to adopt rules consistent with the policy and

purposes ofthe Texas Clean Air Act (TCAA); §382.011, concerning General Powers and

Duties, which authorizes the commission to control the quality ofthe state's air;

§382.012, concerning State Air Control Plan, which authorizes the commission to

prepare and develop a comprehensive plan for the proper control ofthe state's air; and

§382.051, concerning Permitting Authority of the Commission, which authorizes the

commission to issue permits to construct a new facility or modify an existing facility that

may emit air contaminants, and authority to adopt rules necessary to comply with

changes in federal law or regulations applicable to permits issued under the TCAA.

The adopted amendment implements Texas Water Code, §5.103; and Texas Health and

Safety Code, §§382.017, 382.012, and 382.051.
Texas Commission on Environmental Quality Page 60

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2008-030-1l6-PR

§116.150. New Major Source or Major Modification in Ozone Nonattainment

Areas.

(a) This section applies to all new source review authorizations for new

construction or modification offacilities that will be located in any area designated as

nonattainment for ozone under 42 United States Code (USC), §§7407 etseq. as ofthe

date ofissuance ofthe permit, unless the following apply on the date ofissuance ofthe

permit:

(1) the United States Environmental Protection Agency (EPA) has made a

finding of attainment;

(2) the EPA has approved the removal of nonattainment New Source

Review requirements from the area;

(3) the EPA has determined that Prevention of Significant Deterioration

requirements apply in the area; or

(4) the EPA determines that nonattainment NSR is no longer required for

purposes of antibacksliding.
Texas Commission on Environmental Quality Page 61

Chapter 116 - Control ofAir pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-030-116-PR

(b) The owner or operator of a proposed new major stationary source, as defined

in §116.12 ofthis title (relating to Nonattainment and Prevention of Significant

Deterioration Review Definitions) of volatile organic compound (VOC) emissions or

nitrogen oxides (NOx) emissions, or the owner or operator of an existing stationary

source ofVOC or NOx emissions tlIat will undergo a major modification, as defined in

§116.12 oftlIis title with respect to VOC or NOx, shall meet tlIe requirements of

subsection (d)(l) - (4) ofthis section, except as provided in subsection (e) oftlIis section.

Table I, located in the definition of major modification in §116.12 oftlIis title, specifies

the various classifications of nonattainment along witlI the associated emission levels

tlIat designate a major stationary source and significant level for those classifications.

(c) Except as noted in subsection (e) ofthis section regarding NOx, the de

minimis threshold test (netting) is required for all modifications to existing major

sources ofVOC or NOx, unless at least one ofthe following conditions are met:

(1) tlIe proposed emissions increases associated with a project, witlIout

regard to decreases, is less tlIan five tons per year (tpy) ofthe individual nonattainment

pollutant in areas classified under Federal Clean Air Act (FCAA), Title I, Part D, Subpart

2 (42 USC, §7511) classified as Serious or Severe;
Texas Commission on Environmental Quality Page 62

Chapter n6 - Control of Air Pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-o30-n6-PR

(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, Part D, Subpart 1 (42 USC, §7502) and for those

under FCAA, Title I, Part D, Subpart 2 (42 USC, §75n) classified as Marginal or

Moderate; or

(3) the project emissions increases are less than the significant level stated

in Table I located in the definition of major modification in §n6.12 ofthis title and when

coupled with project actual emissions decreases for the same pollutant, summed as the

project net, are less than or equal to zero tpy.

(d) In applying the de minimis threshold test, ifthe net emissions increases are

greater than the significant levels stated in Table I located in the definition of major

modification in §n6.12 ofthis title, the following requirements apply.

(1) The proposed facility shall comply with the lowest achievable emission

rate (LAER) as defined in §n6.12 ofthis 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) ofless than 100 tpy ofthe applicable nonattainment pollutant.

For these sources, best available control technology (BACT) can be substituted for
Texas Commission on Environmental Quality Page 63

Chapter 116 - Control of Air Pollution by Permits for New Construction or Modification

Rule Project No. 2008-030-1l6-PR

LAER. LAER shall otherwise be applied to each new facility and to each existing facility

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

in method of operation ofthe unit.

(2) All major stationary sources owned or operated by the applicant (or by

any person controlling, controlled by, or under common control with the applicant) in

the state must be in compliance or on a schedule for compliance with all applicable state

and federal emission limitations and standards.

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

operation, the emissions increases from the new or modified facility or facilities must be

offset. The proposed facility shall use the offset ratio for the appropriate nonattainment

classification as defined in §1l6.l2 ofthis title and shown in Table I located in the

definition of major modification in §116.l2 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 located in a serious or severe ozone

nonattainment area with a PTE ofless than 100 tpy ofan applicable nonattainment

pollutant are not required to undergo nonattainment new source review under this
Texas Commission on Environmental Quality Page 64

Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2oo8-o30-116-PR

section, ifthe project increases are offset with internal offsets at a ratio of at least 1.3 to

1.

(B) Major stationary sources located in a serious or severe ozone

nonattainment area with a PTE of greater than or equal to 100 tpy of an applicable

nonattainment pollutant can substitute federal BACT (as identified in §116.160(c)(1)(A)

ofthis title (relating to Prevention of Significant Deterioration Requirements) for LAER,

ifthe project increases are offset witll internal offsets at a ratio of at least 1.3 to 1.

Internal offsets used in this manner can also be applied to satisfy tlle offset requirement.

(4) In accordance witll the FCAA, the permit application must contain an

analysis of alternative sites, sizes, production processes, and control techniques for tlle

proposed source. The analysis must demonstrate iliat the benefits ofthe proposed

location and source configuration significantly outweigh the environmental and social

costs oftllat location.

(e) For sources located in tlle EI Paso ozone nonattainment area as defined in 40

Code ofFederal Regulations, Part 81, the requirements ofthis section do not apply to

NOx emissions.
LalJ<"""'C8sl&nuela, CIIioICIoIl<

ORDERADOPTING AMENDED Ruul~issionanEnvh"'dilentalQuallty

REVISIONS TO THE STATE IMPLEMENTATION PLAN

DocketNo. 2oo8-1631-RUL

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

a public meeting, considered adoption of amended § 101.1 of 30 TAC Chapter 101, General Air Quality

Rules, and §§ 116,12 and 116.150 of 30 TAC Chapter 116, Control of Air Pollution by Permits for New

Construction or Modification; and corresponding -revisions to the state implementation plan (SIP).

The rulemaking amends definitions in Chapter 101 to remove language regarding specific

maintenance and nonattainment areas. In addition, Chapter 116 is amended to remove language

indicating that the one-hour thresholds and offsets are not effective unless the United States

Environmental Protection Agency (EPA) promulgates rules, and to add a requirement for continued

applicability of nonattainment New Source Review until the EPA approves its removal for areas

attaining the ozone national ambient air quality standard. Under Tex. Health & Safety Code Ann. §§

382.011, 382.012, and 382.023 (Vernon 2001), the Commission has the authority to control the

quality of the state's air and to issue orders consistent with the policies and purposes of the Texas

Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed rules were published for

comment in the August 27, 2010 issue ofthe Texas Register (35 TexReg 7676).

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code Chapter

2001 (Vernon 2008), and 40 Code of Federal Regulations § 51.102, and after proper notice, the

Commission conducted a public hearing to consider the amended rules and revisions to the SIP.

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date

of the hearing. A public hearing was held in Austin, Texas on September 20, 2010.

The Commission circulated hearing notices of its intended action to the public, including

interested persons, the Regional Administrator of the EPA, and all applicable local air pollution

control agencies. The public was invited to submit data, views, and recommendations on the

proposed amended rules and SIP revisions, either orally or in writing, at the hearing or during the

comment period. Prior to the scheduled hearing, copies of the proposed amended rules and SIP

revisions were available for public inspection at the Commission's central office and on the

Commission's Web site.

Data, views, and recommendations of interested persons regarding the proposed amended

rules and SIP revisions were submitted to the Commission during the comment period, and were

considered by the Commission as reflected in the analysis of testimony incorporated by reference to

this Order. The Commission finds that the analysis of testimony includes the names of all interested

groups or associations offering comment on the proposed amended rules and SIP revisions and their

position concerning the same.
IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions

to the SIP jncorporated by reference to this Order are hereby adopted. The Commission further

. authorizess~'to make any non-substantive revisions to the rules necessary to comply with Texas

Register requirements. The adopted rules and the preamble to the adopted rules and the revisions to

the SIP a,re incorporated by reference in this Order as ifset forth at length verbatim in this Order.

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the

SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the

Federal Clean Air Act, codified at 42 U.S. Code Ann. §§ 7401 - 7671q, as amended.

This Order constitutes the Order ofthe Commission required by the Administrative Procedure

Act, Tex. Gov't Code, § 2001.033 (Vernon 2008).

If any portion of this Order is for any reason held to be invalid by a court of competent

jurisdiction, the invalidity of any portion shall not affect the validity ofthe remaining portions.

Issued date: FEB 14 2011

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY
effect at the lime such plans were delivered, issued for delivery,

or renewed.

Comment: One commenter requested that §21.2401 (3) be

revised to more clearly indicate effectiveness and applicability

dates of any provisions of Public Law 111-148, the Patient

Protection and Affordable Care Act of 2010 applicable to coverage for mental health and substance use disorder benefits,

as well as any such federal regulations promulgated pursuant

to the provisions of the Act, by stating that such provisions

ere applicable to and effective for coverage to group health

plans delivered, issued for delivery, or renewed for a plan year

beginning on or after the effective date provided in the Act or in

such federal regulations.

Agency Response: The Department agrees that clarification of

the applicability date of the amended sections to coverage issued or renewed on or after such date is helpfu1. Because the

Department has changed paragraphs (1) and (2) to indicate a

date certain for applicability of the amended sections in response

to and connection with other comments on §21.2401 relating to

clear statement of applicability date, paragraph (3) has been removed.

NAMES OF THOSE COMMENTING FOR AND AGAINST THE

SECTIONS.

For: None.

Against: None.

Neither for nor against, with changes: Texas Association of

Health Plans.

STATUTORY AUTHORITY. The amendments are adopted under the Insurance Code Chapters 843, 846, 1251 and 1501, and

§36.001. Chapter 843 addresses health maintenance organizations. Section 843.151 provides that the Commissioner may

adopt reasonable rules as necessary and proper to meet the

requirements of federal law and regulations. Chapter 846 relates to certain mUltiple employer welfare arrangements. Section

846.005 requires the Commissioner to adopt ruies necessary to

meet the minimum requirements of federal law and regulations.

Chapter 1251 addresses group and blanket health insurance.

Section 1251.008 provides that the Commissioner may adopt

rules necessary to administer the chapter. Chapter 1501 implements provisions regarding small and large employers which

were necessary to comply with the federal requirements contained in the federal Health Insurance Portability and Accountability.Act of 1996 (HIPAA). Section 1501.010 requires the Commissioner to adopt rules necessary to impiement Chapter 1501,

and to meet the minimum requirements of federal law, including regulations, which for small and large employer health pian

. issuers are contained in HIPAA and in regulations adopted by

federal agencies to implement HIPAA. Section 36.001 provides

that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the

Texas Department of Insurance under the Insurance Code and

other laws of this state.

§21.2401. Purpose and Scope.

The purpose of this subchapter is to coordinate the requirements of

Texas law with federal law requiring parit)· between certain mental

health or substance use disorder benefits and medical/surgical benefits.

(1) This subchapter applies to health plan issuers providing. as allowed by law, coverage to group health plans for both medical/surgical benefits and mental health Or substance use disorder ben36 TexReg 1294 February 25, 2011 Texas Register

efits. which is delivered. issued for delivery. or renewed on or after

March I. 20 II.

(2) Coverage to group health plans delivered, issued for delivery.. or renewed prior to March 1,2011 is subject to the provisions of

this subchapter in effect at the time such plans were delivered. Issued

for delivery. or renewed.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 10,

2011.

TRD-201100534

Gene C. Jannon

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: March 2, 2011

Proposal publication date: December 3, 2010

For further information, please call: (512) 463-6327

• • •

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 101. GENERAL AIR QUALITY

RULES

SUBCHAPTER A. GENERAL RULES

30 TAC §101.1

The Texas Commission On Environmental Quality (commission,

agency, or TCEQ) adopts the amendment to §101.1.

The amendment to §101.1 is adopted with changes to the proposed text as published in the August 27, 2010, issue of the

Texas Register (35 TexReg 7676) and will be republished.

The amendmentto §101.1 will be submitted to the United States

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

implementation plan (SIP).

Background and Summary of the Factual Basis for the Rule

The EPA rules implementing the 1997 eight-hour ozone standard

did not require regulated entities to continue to use the more

stringent major source thresholds and emission offset requirements of the one-hour ozone standard that previously applied to

them when implementing New Source Review (NSR) and Title

V permitting for the 1997 eight-hour ozone standard. The EPA

rule (known as Phase I) was successfUlly challenged in South

Coast Air Quality Management District v. EPA (South Coast)

472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the vacatur was limited to the issues on which the court

granted the petitions for review). The EPA has interpreted the

court ruling as restoring NSR applicability thresholds and emission offset requirements under the one-hour ozone standard to

prevent backsliding. The South Coast decision was upheld by

the Supreme Court on January 14, 2008. TCEQ is adopting concurrent amendments to 30 TAC Chapter 116, Controi 01Air Pollution by Permits for New Construction or Modification, to make
clear the applicability of the major source thresholds and emission offset requirements.

Additionally, in order to prevent future confusion over designations and classifications and their related applicability thresholds

and emissions offset requirements, TCEQ is making changes to

the definitions in §101.1(54), concerning maintenance area, and

§101.1(70), conceming nonattainment area. Because maintenance and nonattainment areas and their boundaries are subject to change based oniy on federal actions, this amendment

will eliminate references to specific maintenance and nonattainment areas in favor of a more general definition that indicates

the federal regulations that define these areas and the federally

applicable designations and classifications. In order to ensure

that the public has access to up-to-date information regarding

the specific descriptions of nonattainment and maintenance areas, the commission regularly posts information regarding the

designation process for new National Ambient Air Quality Standard (NAAQS) on the TCEQ public Web site.

Staff has previousiy presented this ruie amendment (RUle

Project 2008-03Q-116-PR) to the commission for consideration.

At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's

staff in anticipation of additional direction or action by the EPA,

because EPA continued to indicate in various federal notices its

intent to complete rulemaking regarding NSR anti-backsliding

requirements after the South Coast decision. EPA's proposed

rule to implement the 1997 eight-hour ozone NAAQS revision

on subpart 1 reclassification and anti-backsliding provisions

under the former one-hour ozone standard was published in

the January 16, 2009, Federal Register, but has not yet been

finalized. This ruiemaking removes language regarding the

exemptions from nonattainment new source review (NNSR) that

were vacated by South Coast.

On September 23, 2009, the EPA published notice of the

proposed disapproval of past revisions to the Texas NNSR

SIP (74 Federal Register 48467) that are related to this rule

amendment, and finalized this disapproval on September 15,

2010 (75 Federal Register 56424). Addrtionally, on October 20,

2010, EPA published a final rule to approve the redesignation

of the Beaumont-Port Arthur (BPA) 1997 eight-hour ozone

nonattainment area to attainment, and clarify EPA's previous approval of the EI Paso §110(a)(1) maintenance plan forthe 1997

eight-hour ozone standard (see 75 Federal Register 84675,

October 20, 2010). This final rule noted EPA:s new position

regarding NSR anti-backsliding and whether one-hour ozone

major source thresholds and emission offset requirements

continue to apply in an area. EPA noted "after final redesignation to attainment for the 1997 eight-hour ozone standard,

EPA does not require the continued appiication of one-hour

anti-backsliding nonattainment NSR, if Texas interprets its SIP

as applying prevention of significant deterioration (PSD) to

BPA in these circumstances" (See 75 Federal Register 64675

and 84677, October 20, 2010). The EPA also clarified that,

with respect to EI Paso, "EPA has had further opportunity to

consider the appiicable statutory and regulatory provisions and

the decision in South Coast.... As a resul\, we no longer believe

that the Ciean Air Act requires a separate 110(1) analysis to

replace one-hour nonattainment NSR with PSD once an area

has been redesignated to attainment for the 1997 eight-hour

ozone standard, or has an approved 110(a)(1) maintenance

pian for that standard. In sum, we believe that the approach

to the nonattainment NSRJPSD transition that we are adopting

here with respect to BPA shOUld also be extended to EI Paso.

Thus, as iong as the Texas NSR SIP is ciear that the PSD SIP

requirements apply to an area such as EI Paso, then that is

all that is required by EPA" (See 75 Federal Register 84675,

84677, October 20, 2010). The commission appreciates this

clear statement from EPA, and agrees that the SIP shOUld be

clear on this issue. Therefore, as discussed in this preamble,

although the Texas SIP has always appiied PSD in an area

upon redesignation, the commission is concurrently adopting

changes to Chapter 116 to make clear that PSD applies once

an area has been redesignated to attainment for a particular

criteria poliutant.

The concurrent amendments to Chapter 116 confirm that the

BPA area is no longer subject to NNSR. As discussed previously

in this preamble, on October 20, 2010, EPA pUblished the redesignation of the BPA area to attainment for the 1997 eight-hour

ozone NAAQS, and a determination that the BPA area had attained the one-hour ozone NAAQS. In this action, EPA determined that the BPA area need not be SUbject to NNSR as an

anti-backsliding requirement. Thus, under the amendment to

§116.150(a)(1), the BPA area is not subject to NNSR for either

the one-hour ozone or 1997 eight-hour ozone NAAQS. Additionally, the concurrent amendments to Chapter 116 confirm that the

Ei Paso area· is no longer SUbject to NNSR. On January 15, 2009,

EPA published rts approval of a maintenance plan for the EI

Paso area for the 1997 eight-hour ozone standard. As discussed

previousiy in this preamble, in EPA:s October 20, 2010, action

for the BPA area, EPA stated that ''we no ionger believe that

the Clean Air Act requires a separate 110(i) anaiysis to replace

1-hour nonattainment NSR with PSD once an area has...an approved 110(a)(1) maintenance plan for that standard" (see 75

Federal Register 84677). Taken together, these statements reflect an EPA determination that NNSR is no longer required for

purposes of anti-backsliding for the EI Paso area. Thus, under

the amendment to §116.150(a)(4), the EI Paso area is not subject to NNSR for either the one-hour ozone or 1997 eight-hour

ozone NAAQS.

This is an issue of extreme importance to the commission, the

regulated community, and the pUblic, and there should be no

room for ambiguity or argument. In an effort to ensure that

TCEQ reguiatory requirements regarding the NNSR permitting

program meet the requirements of the Federal Clean Air Act

(FCAA) and are approvable into the SIP, the commission is

adopting an amendment to provide clarity and eliminate any

deficiencies that would prevent approval of the rule changes.

Section Discussion

§101.1, Definitions

The commission is amending the definition of maintenance area

in §101.1(54). This amendment removes the specific descriptions of maintenance areas within the state in favor of a more

general definition that makes clear that these areas are designated by federal action. Similar1y, the commission is amending

the definition of nonattainment areas in §101.1(70) to remove

all references to specific nonattainment areas in §101.1(70)(A)

- (G) and retain those parts of the definition that refer to federal

reguiations and the Federal Register. These changes help ensure that when changes are made to maintenance areas and

nonattainment areas as a result of federal action, these rules

will not be rendered incorrect. Also, for the one-hour ozone

NAAQS, the designations and classifications in 40 Code of Federal RegUlations (CFR) Part 81 were retained by EPA for purposes of anti-backsliding (See 70 Federal Register 44470, August 3, 2005). Upon determination by EPA that any requirement

ADOPTED RULES February 25, 2011 36 TexReg 1295
is no longer required for purposes of anti-backsliding, the requirement will no longer apply. The commission is also removing

the language 'to prevent anti-backsliding" and replacing it with

"for the purposes of anti-backsliding" since the intent of the rule

is to prevent backsliding and promote anti-backsliding. Any revision to a SIP that could interfere with or does not comply with

the FCM and the SIP because it has the effect of making the

approved SIP less stlingent may be considered as "backsliding"

from those requirements and would not be approvable by the

EPA. Additionally, the definition of reportable quantity contains

references to §1011 (70) in §1011 (88)(A)(i)(I1I)(-a-), (-c-), (-w-),

(-pp-), and (-zz-) that would be incorrect based on the amendments to §101.1(70). The commission is amending §101.1(88)

to correct these references.

Final Regulatory Impact Analysis

The commission invited public comment regarding the draft regulatory impact analysis detennination during the public comment

period, but no comments were received. The commission reviewed the rulemaking in light of the regulatory impact analysis

requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a

major environmental rule as defined in that statute, and in addition, if it did meet the definition, would not be subject to the

requirement to prepare a regulatory impact analysis.

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

which is to protect the environment or reduce risks to human

health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state. The specific Intent

of the revisions are to add references to federal regulations in

certain definitions that are duplicative with federal regulation that

the state has no authority to legally change, and to correct references in the definition of reportable quantity. These changes will

not adversely affect the economy, a sector or 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 administrative in nature.

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

major environmental rule, which are listed in Texas Government

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

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

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

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

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

or contract between the state and an agency or representative

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

agency instead of under a specific state law.

The adopted rule would implement requirements of the FCM.

Under 42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS

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

the FCM recognize that states are in the best position to determine what programs and controls are necessary or appropriate

36 TexReg 1296 February 25, 2011 Texas Register

in order to meet the NMOS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NMOS for the specific regions in the state.

Even though the FCM allows states to develop their own programs, this flexibility does not relieve a state from developing a

program that meets the requirements of 42 USC, §7410. States

are not free to ignore the requirements of 42 USC, §7410, and

must develop programs to assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the

NMOS within the state. One of the requirements of 42 USC,

§7410 is for states to revise their plans as necessary to take account revisions of the NAAQS. The rule revisions will align the

state rules with federal requirements that the state has no authority to change, since the FCAA reserves all authority concerning

designations and classifications for the EPA only, in addition to

correcting internal references in the rules

The requirement to provide a fiscal analysis of regulations in the

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

during the 75th LegiSlature, 1997. The intent of SB633 was to require agencies to conduct a regUlatory impact analysis 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 understanding that this requirement would seldom apply, the commission prOVided a cost

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

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

the bill will have significant fiscal implications for the agency due

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

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

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

the full analysis unless the rule was a major environmental rule

that exceeds a federal law.

Because of the ongoing need to meet federal requirements, the

commission routinely proposes and adopts rules incorporating

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

proposed by the commission to meet a federal requirement was

considered to be a major environmental rule that exceeds federal

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

inconsistent with the 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 presumpnon is based

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

the full RIA for rules that are extraordinary in nature. While this

rule may have a broad impact, that impact is no greater than is

necessary or appropriate to meet the requirements of the FCM,

and in fact creates no additional impacts since the rUle does not

exceed the requirement to attain and maintain the NAAQS. For

these reasons, this rule falls under the exception in Texas Government Code, §2001.0225(a), because It is required by, and

does 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 laws without making substantial change in the

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

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

485, 489 (Tex. App. Austin 1995), writ denIed with per curiam

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

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

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

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

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

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

Trinity Portland Cement Div., 563 S.W2d 916 (Tex. 1978).)

The commission's interpretation of the RIA requirements is

also supported by a change made to the Texas Administrative

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

to limit the number of rUle challenges based upon APA requirements, the legislature clarified that state agencies are required

to meet these seetons of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035).

The legislature specifically identified Texas Government Code,

§2001.0225 as falling under this standard. As discussed in

this analysis and elsewhere in this preamble, the commission

has SUbstantially complied With the requirements of Texas

Government Code, §2001.0225.

The rule implements requirements of the FCAA, specifically 42

USC, §7410. The specific intent of the revisions is to add references to federal regulations in certain definitions that are duplicative With federal regulation thet the state has no authority to legally change, and to correct an inadvertent omission in

the definition of reportabie quantity. The amendment was not

developed soleiy under the general powers of the agency, but

is authorized by specific seetons of Texas Health and Safety

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

the Texas water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including Texas Health and

Safety Code, §§382.011, 382.012, and 382.017. Therefore, this

rulemaking action is not subject to the regulatory analysis prOVisions of Texas Government Code, §2001.0225(b).

No comments were received on the RIA.

Taking Impact Assessment

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

governmental aelion that affects private real property, in whole or

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

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that 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 limits the owner's right to the property that would othelWise exist in the absence of the governmental action; and is

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

value of the affected private real property, determined by comparing the mar1<et vaiue of the property as if the governmental

action is not in effect and the mar1<et value of the property determined as if the governmental action is in effect.

The commission completed a takings impact analysis for the

rulemaking action under Texas Government Code, §2007.043.

The primary purpose of this ruiemaking action, as discussed

eisewhere in this preamble, is to add references to federal regulations in certain definitions that are duplicative with federal regulation that the state has no authority to iegally change, and to

correct an inadvertent omission in the definition of reportable

quantity. The rule will not create any additional burden on private real property. The rule will not affect private real property in

a manner that would require compensation to private real property owners under the United States Constitution or the Texas

Constitution. This rule also will not affect private real property in

a manner that restricts or limits an owner's right to the property

that wouid otherwise exist in the absence of the govemmentai

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

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

Subchapter S, concerning Consistency with the Texas Coastal

Management Plan. As required by §281.45(a)(3) and 31 TAC

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

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

commission reviewed this action for consistency with the CMP

goals and policies in accordance with the rUles of the Coastal

Coordination Council, and determined that the action is consistent with the applicabie CMP goals and poiicies.

The CMP goal applicable to this rulemaking action is the goal

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

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

§501.12(1)). The amendment replaces existing definibons wtth

references to federal regulabons that the state has no authority

to change and correct an inadvertent omission in the definition of

reportable quantity. The CMP policy applicable to this ruiemaking action is the poiicy that commission rules comply wtth federal

regulations in 40 CFR, to protect and enhance air quality in the

coastai areas (31 TAC §501.32). Therefore, in accordance with

31 TAC §505.22(e), the commission affirms that this ruiemaking

action is consistent with CMP goals and policies.

Effect on Sites SUbject to the Federal Operating Permits Program

Chapter 101, Subchapter A is an applicable requirement of 30

TAC Chapter 122, Federal Operating Permits Program, in that

the definitions in Subchapter A are relevant in defining and understanding other applicable requirements and applicability generally. Owners or operators subject to the federal operating permit program must, consistent with the revision process in Chapter 122, upon the effeetve date of the adopted rulemaking, revise

their operating permtt to include any new requirements or address applicability reiated to the new Chapter 101 requirements.

Public Comment

The commission held a public hearing on September 20, 2010,

in Austin and no comments were submitted at the hearing. The

comment period closed on September 27,2010. The commission received written comments from the Texas Industry Project

(TIP) and Zephyr Environmental Corp. (ZEC).

Response to Comments

TIP commented that this rulemaking was unnecessary to ensure anti-backsliding for any Texas ozone nonattainment area,

ADOPTED RULES February 25, 2011 36 TexReg 1297
because it would be superseded by a pending EPA rulemaking,

and because it would create an undue hardship for businesses.

The commission respectfully disagrees with the comments. Due

to EPA's inconsistent positions on anti-backsliding requirements

and failure to complete rulemaking to fully implement the D.C.

Circuit's opinion in South Coast v. EPA, as discussed earlier in

this preamble, there has been confusion and concern regarding

anti-backsliding requirements, as reflected in other comments

received on this rulemaking. This rulemaking is necessary to remove prior adopted rule language that conflicted with then-applicable EPA guidance regarding applicability of major source

thresholds and emission offset requirements. The commission

constantly strives for clarity in its rules, in order for all interested

persons to both understand and implement commission rules

appropriately under state law. As discussed earlier in this preamble, EPA has issued a final rule redesignating the SPA area

as attainment for the 1997 eight-hour ozone standard, and discussing NSR requirements that apply in the SPA area as of October 20,2010, (75 Federal Register64675). While this final rule

provides additional guidance regarding EPA's opinions concerning anti·backsliding requirements, this rule does not have general applicability, and therefore, does not resolve these issues

statewide, as assumed by the commenter. Regarding the commenter's concern that the rule, if adopted, would create an undue

hardship for business, the commenter provided no information to

support either the type or scope of hardship. No changes were

made to the rule in response to these comments.

Zephyr commented that removal of specific definitions and referencing federal regulations would not accomplish the stated

goal of reducing confusion over nonattainment area designations and classifications and their related applicability thresholds

and emission offset requirements.

The commission appreciates the comments, and notes that the

removal of the specific definitions to reference the applicable federal regulation is only one element of the commission's proposed

strategy for clarity regarding anti-backsliding requirements. As

stated elsewhere in this preamble, the commission is adopting

rule changes to both Chapters 101 and 116 to provide clarity

regarding the applicability thresholds and emission offset provisions.

Zephyr also commented that the current TCEQ Web site postings were inadequate to prevent confusion over nonattainment

area designations and classifications, requested that the TCEQ

specify in this response to comments additional items related to

nonattainment issues that would be included On the website, and

requested specific items, such as "links to all documents establishing air quality permitting requirements."

The commission appreciates the comment, and will consider

how to better provide information on these issues to the public.

Statutory Authority

The amendment is adopted under Texas water Coda, §5.102,

concerning General Powers; §5.103, concerning Rules; and

§5.105 concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and

duties under the Texas Water Code and under Texas Health and

Safety Code, §382.017, which prOVides the commission with the

authority to adopt rules consistent With the policy and purposes

of the Texas Clean Air Act, §382.011, concerning General

Powers and Duties, Which authorizes the commission to control

the quality of the state's air; and §382.012, concerning State

36 TexReg 1298 February 25, 2011 Texas Register

Air Control Plan, which authorizes the commission to prepare

and develop a comprehensive plan for the proper control of the

state's air.

The adopted amendment implements Texas Water Code,

§5.103; and Texas Health and Safety Code, §382.017 and

§382.012.

§101.1. D~finjtiom.

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

the rules of the commission. the tenns used by the commission have

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

control. In addition to the tenns that are defined by the TCAA. the

following tenns. when used in the air quality rules in this title, have the

following meanings, unless the context clearly indicates otherwise.

(1) Aecount--For those sources required to be pennitted

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

Program), all sources that are aggregated as a site. For all other sources,

any combination ofsources under common ownership or control and

located on one Or more contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, waterways.

or similar divisions.

(2) Acid gas flare-~A flare used exelusively for the incineration of hydrogen sulfide and other aeidic gases derived from natural

gas sweetening processes.

(3) Agency established facility identification number--For

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

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

or operator of a regulated entity that the emission inventory reporting

requirements of §l 01.1 0 of this title (relating to Emissions Inventory

Requirements) are applicable to each facilil)' at that regulated entity.

(4) Ambient air--That portion ofthe atmosphere, external

to buildings. to which the general public has access.

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

air contaminants that cannot be reduced by controlling emissions from

man-made sources. It is detennined by measuring levels in non-urban

areas.

(6) Boiler--Any combustion equipment fired with solid,

liquid, and/or gaseous fuel used to produce steam or to heat water.

(7) Capture s)'stem-·AlI equipment (including. but not limited to, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains,

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

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

routinely stored. processed. or disposed ofon a shared basis in an integrated waste management unit O\"'Iled, operated by, and located within

a contiguous manufacturing complex.

(9) Carbon adsorber~·An add-on control device that uses

acth:ated carbon to adsorb volatile organic compounds from a gas

stream.

(10) Carbon adsorption s)'stem--A carbon adsorber wlth an

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

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

a substrate for protective. decorative. Or functional purposes. Such materials include, but are not limited to, paints. varnishes, sealants, adhesi....'es, thinners, diluents. inks. maskants. and temporal')' protective

coatings.
(12) Cold solven1 eleaning--A batch process that uses liquid solvent to remove soils from the surfaces of parts or to dry the parts

by spraying, brushing, flushing, anellor immersion while maintaining

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

not included in this definition.

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

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

land. water, and air vehicles.

(14) Combustion turbine--Any gas turbine system that is

gas anellor liquid fuel fired with or without power augmentation. This

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

at a specific minor or major source for more than 90 days in any 12-

month period. Two or more gas turbines powering one shaft will be

treated as one unit.

(15) Commercial hazardous waste management faeility--Any hazardous waste management facility that accepts hazardous

waste or polychlorinated biphenyl compounds for a charge, except a

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

that accepts waste only from other facilities owned or effectively

controlIed by the same person.

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

(17) Commercial medical waste incinerator--A facility that

accepts for incineration medical waste generated outside the property

boundaries of the facility.

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

limited to, pumps, valves, compressors, and pressure relief valves that

has the potential to leak volatile organic compounds.

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

anellor pressure changes of produced natural gas. Once these liquids

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

are no longer considered condensates.

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

construction or demolition projects.

(21) Controlsystem or control device--Any part, chemical,

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

the atmosphere.

(22) Conveyorized degreasing-A solvent cleaning process

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

automatically provide a continuous supply of parts to be cleaned or

dried using either cold solvent or vaporized solvent. A conveyorized

degreasing process is fully enclosed except for the conveyor inlet and

exit portals.

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

which there is a national ambient air quality standard established under

40 Code of Federal Regulations Part 50.

(24) Custod)' transfer--The transfer of produced crude oil

anellor condensate, after processing anellor treating in the producing operations, from storage tanks or automatic transfer facilities to pipelines

or any other forms of transportation.

(25) De minimis impact--A change in ground level concentmtion of an air contaminant as a result of the operation of any new

major stationary source or ofthe operation of any existing source that

bas undergone a major modification that does not exceed the following

specified amounts.

Figure: 30 TAC §101.1(25) (No change.)

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

resulting from the functions of life within a residence.

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

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

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

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

results in unauthorized emissions of air contaminants from one or

more emissions points at a regulated entity.

(29) Emissions reduction credit--Any stationary source

emissions reduction that has been banked in accordancc with Chapter

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

Banking and Trading).

(30) Emissions reduction credit certificate--The certificate

issued by the executive director that indicates the amount of qualified

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

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

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

regulation under the Federal Clean Air Act.

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

equal to or cxceeds 15 additional percentage points above an applica·

ble opacity limit, averaged over a six-minute period.

(33) Exempt solvent--Those carbon compounds or mixtures of carbon compounds used as solvents that have been excluded

from the definition of volatile organic compound.

(34) External floating roof--A cover or roof in an open top

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

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

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

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

space between them.

(35) Federal motor vehicle regulation--Controi of Air Pollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of

Federal Regulations Part 85.

(36) Federally enforceable--Alllimitations and conditions

that are enforceable by the United States Environmental Protection

Agency administrator, including those requirements developed under

40 Code of Federal Regulations (CFR) Parts 60 and 61~ requirements

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

requirements established under 40 CFR §52.21 or under regulations

approved under 40 CFR Part 51, SUbpart I, including operating permits issued under the approved program that is incorporated into the

SIP and that expressly requires adherence to any permit issued under

such program.

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

device. A flare may be equipped with a radiant heat shield (with or

without a refractoT)' lining), but is not equipped with a flame air control damping system to control the air!fuel mixture. In addition, a flare

may also use auxiliElr)" fuel. The combustion flame may be elevated or

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

considered a flare.

(38) Fuel oil--Any oil meeting the American Society for

Testing and Materials (ASTM) specifications for fuel oil in ASTM

D396-01, Standard Specifications for Fuel Oils, revised 2001. This

includes fuel oli grades I, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light),

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

ADOPTED RULES February 25, 2011 36 TexReg 1299
(39) Fugitive emission--Any gaseous or particulate contaminant entering the atmosphere that could not reasonably pass

through a stack, chimney, vent, or other functional!) equivalent

opening designed to direct or control its flow.

(40) Garbage-~Solid waste consisting ofputrescible animal

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

markets. storage facilities, and handling and sale of produce and other

food products.

(41) Gasoline~-Any petroleum distillate having a Reid vapor pressure offour pounds persquare inch (27.6 kilopascals) or greater

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

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

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

as amended by Resource Consenration and Recovery" Act, 42 United

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

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

Hot air dryers are used to deliver the heat.

(44) High~bak.e coatings~~Coatings designed to cure al

temperatures above 194 degrees Fahrenheit.

(45) High-volume low-pressure spray guns--Equipment

used to apply coatings by means of a spray gun that operates between

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

the air cap.

(46) Incinerator--An enclosed eombustion apparatus and

attachments that is used in the process of burning wastes for the primar)" purpose ofredueing its volume and weight by removing the combustibles ofthe waste and is equipped with a flue for conducting products of combustion to the atmosphere. Any combustion device that

bums] 0% or more ofsolid waste on a total British thennal unit (Btu)

heat input basis averaged over any one~hour period is considered to

be an incinerator. A combustion device without instrumentation or

methodology to detennine hourly flow rates ofsolid waste and burning

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

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

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

when approved by the executive direetor. Devices burning untreated

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

from the process mills as a primary fuel for heat recovery' are not in~

cluded under this definition. Combustion devices pennitted under this

title as combustion devices other than incinerators will not be considered incinerators for applieation of an)" -rule within this title provided

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

applicable pennits.

(47) Industrial boiler~-A boiler located on the site of a fa~

cility engaged in a manufacturing process where substances are trans~

fonned into new produets, including the component parts of products,

by mechanical or chemical processes.

(48) Industrial furnace~~Cement kilns; lime kilns; aggre~

gate kilns; phosphate kilns: coke ovens; blast furnaces; smelting,

melting. or refining furnaces, including pyrometallurgical devices

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

or foundry furnaces; titanium dioxide ehloride process oxidation

reactors: methane refonning furnaces; pulping recovery furnaces;

combustion devices used in the recovel)' of sulfur values from spent

sulfuric acid; and other devices the commission may list.

36 TexReg 1300 February 25, 2011 Texas Register

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

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

agricultural operations. classified as follows.

(A) Class 1 industrial solid waste or Class 1 waste is an)

industrial solid waste designated as Class I by the exeeutive director

as any industrial solid waste or mixture of industrial solid wastes that

because of its concentration or physical or chemical characteristics is

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

of sudden pressure by decomposition, heat, or other means, and may

pose a substantial present or potential danger to human health or the

environment when improperly processed, stored, transported, or olbef\\,ise managed, including hazardous industrial waste, as defined in

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

Waste Determination).

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

waste or combination ofindustrial solid wastes that eannot be described

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

Class 2 Waste Determination).

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

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

3 Waste Determination).

(50) Internal floating co\'er~-A cover or floating roof in a

fixed roof tank that rests upon or is floated upon the liquid being con~

tained, and is equipped with a closure seal or seals to close the space

between the cover edge and tank shell.

(51) Leak.~·A volatile organic compound concentration

greater than ]0.000 parts per million by volume or the amount speci~

fied by applieable rule, whichever is lower: or the dripping Or exuding

of process fluid based on sight, smell, or sound.

(52) Liquid fuel~~A liquid combustible mixture, not derived from hazardous waste, with a heating value of at least 5,000

British thermal Wlits per pound.

(53) Liquid~mounted seal~~A primary seal mounted in continuous contact with the liquid between the tank wall and the floating

roof around the circumference ofthe tank.

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

previous!)' designated nonattainment under the Federal Clean Air Act

Amendments of 1990 and SUbsequently redesignated to attaimnent subjeet to the requirement to develop a maintenanee plan under 42 United

States Code. §7505a as deseribed in 40 Code of Federal Regulations

Part 8land in pertinent Federal Register notices.

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

implementation plan, meeting the requirements of 42 United States

Code, §7505a.

(56) Marine \'essel~~Any watereraft used, or capable ofbe~

ing used, as a means oftransportation on water, and that is constructed

or adapted to earry, or that carries, oil. gasoline, or other volatile or~

ganic liquid in bulk as a cargo or cargo residue.

(57) Mechanical shoe seal~~A metal sheet that is held verti~

cally against the storage tank wall by springs or weighted levers and is

connected by braces to the floating roof. A flexible coated fabric (envelope) spans the annular spaee between the metal sheet and the floating

roof.

(58) Medical waste~~Waste materials identified by the De~

partmentofState Health Services as "special waste from health care~re~
lated facilities" and those waste materials commingled and discarded

with special waste from health care~related facilities.

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

conducting the continuing, cooperative, and comprehensive planning

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

(60) Mobile emissions reduction credit~-The credit obtained from an enforceable, pennanent, quantifiable, and surplus

(to other federal and state rules) emissions reduction generated by

a mobile source as set forth in Chapter 1l4, Subchapter F of this

titlc (relating to Vehicle Retirement and Mobile Emission Reduction

Credits), and that has been banked in accordance with Subchapter H,

Division 1 ofthis chapter.

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

transporting persons or property on a street or highway.

(62) Motor vehicle fuel dispensing faci1ity~~Any site where

gasoline is dispensed to motor vehicle fuel tanks from stationary storage tanks.

(63) Municipal solid waste~~Solid waste resulting from, or

incidental to, municipal, community, commercial, institutional, and

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

except industrial solid waste.

(64) Munieipal solid waste facility~~Al1 contiguous land,

structures, other appurtenances, and improvements on the land used

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

be publicly or privately owned and may consist ofseveral proeessing,

storage, or disposal operational units, e.g., one or more landfills, SUTface impoundments, or combinations ofthem.

(65) Municipal solid waste landfill~~A discrete area ofland

or an excavation that receives household waste and that is not a land

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

those terms are defined under 40 Code of Federal Regulations §257.2.

A municipal solid waste landfill (MSWLF) unit also may receive other

types of Resource Conservation and Recovery Act Subtitle D waste~

such as commercial solid waste, nonhazardous sludge, conditionally

exempt sman~quantity generator waste, and industrial solid waste.

Such a landfill may be pUblicly or privately owned. An MSWLF unit

may be a new MSWLF unit, an existing MSWLF unit, Or a lateral

expansion.

(66) National ambient air quality standard~~Those stan~

dards established undcr 42 United States Code, §7409, including

standards for carbon monoxide, lead, nitrogen dioxide, OZOne, inhal~

able particulate matter, and sulfur dioxide.

(67) Net ground~level concentration~~The concentration of

an air contaminant as measured at or beyond the property boundat')·

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

level concentration may be detennined by a measurement at or beyond

the property boundary.

(68) New source~~Any station8l)' source, the construction

or modification of which was commenced after March 5,1972.

(69) Nitrogen oxides (NOX)~~The sum ofthe nitric oxide

and nitrogen dioxide in the flue gas or emission point, collectively ex~

pressed as nitrogen dioxide.

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

statc that is designated by thc United States Environmental Protection

Agency (EPA) as failing to meet the national ambient air quality

standard (NAAQS or standard) for a pollutant for which a standard

exists. The EPA will designate the area as nonattainment under

the provisions of 42 United States Code. §7407(d). For the official

list and boundarie:s of nonattainment areas, see 40 Code of Federal

Regulations (CFR) Part 81 and pertinent Federal Register notices.

The designations and classifications for the one-hour ozone national

ambient air quality standard in 40 CFR Part 81 were retained for the

purpose of anti~backslidingand upon determination by the EPA that

any requirement is no longer required for purposes ofanti~backslidlng,

then that requirement no longer applies.

(71) Non~reportable emissions event~-Any emissions

event that in any 24-hour period does not result in an unauthorized

emission from any emissions point equal to or in excess of the re~

portable quantity as defined in this section.

(72) Opacity~~ The degree to which an emission of air con~

taminants obstructs the transmission oflight expressed as the percentage oflight obstructed as measured by an optical instrument or trained

observer.

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

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

solvent vapor used to clean or dry parts through condensation of the

hot solvent vapors on the parts.

(74) Outdoor hurning~~Any fire or smoke~producing

process that is not conducted in a combustion unit.

(75) Particulate matter~~An)' material, except uncombined

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

at standard conditions.

(76) Particulate matter emissions-~AIl finely·divided solid

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

air as measured by United States Environmental Protection Agency

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

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

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

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

implementation plan.

(77) Petroleum refinery~~Any facility engaged in produc~

ing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants,

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

(78) PM1o-Particu]ate matter with an aerodynamic diame~

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

reference method based on 40 Code ofFederal Regulations (CFR) Part

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

by an equivalent method designated with that Part 53..

(79) PM,. emissions~~Finely~divided solid Or liquid mate~

rial with an aerodynamic diameter less than or equal to a nominal ten

micrometers emitted to the ambient air as measured by an applicable

reference method Or an equivalent or alternative method specified in

40 Code of Federal Regulations Part 5], or by a test method specified

in an approved state implementation plan:

(80) Polychlorinated biphenyl compound~-A compound

subject to 40 Code of Federal Regulations Part 761.

(81) Process or processes~~Any action, operation, or treat~

ment cmbracing chemical, commercial, industrial, or manufacturing

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

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

ADOPTED RULES February 25, 2011 36 TexReg 1301
(-h-) chlorofluOTomethane (HCFC-31)

(-i-) chloropentafluoroethane (CFC-115)

(-g-) l-chloro-l-fluOToethane (HCFC-15 Ja) -

(-u-) difluoromethane (HFC-32) - 5,000

l,l,I,3,3-pentafluorobutane (HFCpentafluoroethane (HFC-125) - 5,000

earbon monoxide - 5,000 pounds:

]-chloro-I.I-difluoroethane (HCFCehlorodifluoromethane (HCFC-22) -

(-ij-) 1,1,2,2,3-pentafluoropropane (HFC245ca) - 5.000 pounds;

pounds;

(-hh-)

365mfc) • 5.000 pounds;

(-li-)

(-y-) 1,1,1 ,2,3,3,3-heptafluoropropane

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

(-z-) 1,1,I,3,3,3-hexafluompropane (HFC236fa) - 5.000 pounds;

(·aa-) 1,1,1,2,3,3-hexafluoropropanc

(HFC-236ea) - 5,000 pounds:

(-bb-) hexanes (any isomcr) - 5,000 pounds;

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

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

(-ee-) octanes (any isomer)· 5,000 pounds;

(-tT-) oxides of nitrogen - 200 pounds in

ozone; nonattainment ozonc maintenance, early action compact areas,

Nueces County. and San Patricio County, and 5.000 pounds in all

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

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

Table 302.4. the column "final RQ";

(-gg-) pentachlorofluoroethane (CFR-Ill) -

pounds;

(-v-) ethanol- 5,000 pounds;

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

HGB and BPA ozone nonattainment areas as defined in paragraph (70)

ofthis section. where the RQ must be ]00 pounds:

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

pounds:

5,000 pounds;

pounds;

(-j-) 2-chloro-] ,I,1,2-tetraftuoroethane

(HCFC-124) - 5.000 pounds;

(-k-) ]-chloro-].1,2,2 tetrafluoroethane

(HCFC-124a) - 5,000 pounds;

(-1-) 1.I,l,2,3A,4,5,5.5-decafluOTopentane

(HFC 43·IOmee) - 5,000 pounds;

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

(-n-) I,I-dichlom-l-fluoroethane (HCFC141b) - 5,000 pounds;

(-0-) 3,3-dichloro-l,1,2,2-pentafluoro.

propane (HCFC-225ca) - 5.000 pounds;

(-p-) 1,3-dichloro-Ll ,2,2,3-pentafluompropane (HCFC-225cb) - 5,000 pounds;

(-q-) ],2-dichloro-l.1 ,2,2-tetrafluoroethane

(CFR-1l4) - 5.000 pounds;

(-r-) 1.1-dichlorotetrafluoroethane (CFC114a) - 5.000 pounds;

(-s-) ] ,2-dichloro~ 1.1,2-trifluoroethane

(HCFC-123a) - 5,000 pounds;

(+) I,I-difluoroethane (HFC-152a) - 5,000

5,000 pounds:

5,000 pounds;

5.000 pounds;

5.000 pounds:

(-d-)

(-e-)

142b) - 5.000 pounds:

(-f-)

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

(A) for individual air contaminant compounds and

specifically listed mixtures by name or Chemical Abstracts Service

(CAS) number. either:

(I) the lowest of the quantities:

(/) listed in 40 Code of Federal Rcgulations

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

(ll) listed in 40 CFR Part 355, Appendix A, the

column "Reportable Quantity"; or

(Ill) listcd as follows:

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

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

(BPA) ozone nonattainment areas as defined in paragraph (70) ofthis

section, where the RQ mus! be 100 pounds:

(·b-) butanes (any isomer) - 5,000 pounds;

(-c-) butenes (any isomer, except 1,3-butadiene) - 5,000 pounds, except in the HGB and BPA ozone nonattainment

areas as dcfined in paragraph (70) ofthis section, where the RQ must

be 100 pounds:

ofmanufacturing or proeessing that may emit smoke. particulate matter, gaseous matter. or visible emissions.

(82) Proeess weight per hour--"Process weight" is the total weight of all materials introduced or recirculated into any specific

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

part ofthe process weight, but liquid and gaseous fuels and combustion

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

operation from the beginning of any given process to the completion

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

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

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

period by 24.

(83) Property--All land under eommon control or ownership eoupled with all improvements on such land, and all fixed or movable o~jects on such land, or any vessel on the waters ofthis state.

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

quality standard in the designated nonattainment areas by thc date required in the state implementation plan.

(85) Regulated entity--All regulated units. facilities. equipment, structures, or sources at one street address or location that are

o\.\'I1cd or operated by the same person. The tenn includes any property under common ownership or control identified in a permit or used

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

location. Owners or operators of pipelines, gathering line~ and flowlines under common o\.\'I1ership or control in a particular count)' may

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

regulation of emissions events.

(86) Remote reservoir cold solvent c1eaning--Any cold solvent cleaning operation in which liquid solvent is pumped to a sink-like

work area that drains solvent back into an enclosed container while

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

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

in any 24-hour pcriod, results in an unauthorized emission from any

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

36 TexReg 1302 February 25,2011 Texas Register
(-yy-) trifluorometbane (HFC-Z3) - 5,000

5,000 pounds;

pounds; or

100 pounds;

0.02% by weight, opacity that is equal to or exceeds 15 additional per~

centage points above the applicable limit averaged over a six-minute

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

turbines described in this paragraph: or

(D) for facilities where air contaminant compounds are

measured directly by a continuous emission monitoring system pro~

viding updated readings at a minimum 15-minute interval an amount,

approved by the executive director based on any relevant conditions

and a screening model, that would be reported prior to ground level

concentrations reaching at any distance beyond the closest rcgulated

entity property line:

(i) less than one~ha1f of any applicable ambient air

standards: and

(if) less than two times the conccntration ofapplicable air emission limitations.

(89) Rubbish~~Nonputrescible solid waste, consisting of

both combustible and noncombustible waste materials. Combustible

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

rubber, plastics, yard trimmings, leaves, and similar materials. Non~

combustiblc rubbish includes glass, crockery, tin eans. aluminum

cans, metal furniture, and like materials that will not bum at ordinary

incinerator temperatures 0,600 degrees Fahrenheit to 1.800 degrees

Fahrenheit).

(90) Schcduled maintenance, startup, or shutdown activ~

ity--For activities with unauthorized emissions that are expected to ex~

ceed a reportable quantity (RQ), a scheduled maintenance, startup, or

shutdown activity is an activity that the owner or operator ofthc reg.

ulated entity whether performing or otherwise affected by the activity,

providcs prior notice and a final report as required by §101.211 ofthis

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

includes thc information required in §101.211 of this title; and the ac~

tual unauthorized emissions from the activity do not exceed the emissions estimates submittcd in the initial notifieation by more than an

RQ. For activities with unauthorized emissions that are not expected

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

shutdown activity is one that is recorded as required by §101.211 of

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

ofthis title (relating to Emissions Event Reporting and Recordkeeping

Requirements) resulting from scheduled maintcnance, startup, or shutdown activities are those that provide prior notice (ifrequired), and are

recorded and reported as required by §10 1.211 ofthis title.

(91) Siudge--Any solid or serni·solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treat~

ment plant; water supply treatment plant, exclusive ofthe treated effiuent from a wastewater treatment plant; Or air pollution control equipment.

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

incomplete combustion consisting predominately of carbon and other

combustible material and present in sufficient quantity to be \'isible,

(93) Solid wastc--Garbage, rubbish, refusc, sludge from a

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

liquid, semisolid, or containerized gaseous material resulting from in·

dustrial, municipal, commercial, mining, and agrieultural operations

and from community and institutional aetivities. The tenn does not include:

(-tt-) I, I, I,Z-1etrafluoroetbane (HFC-134a) -

5,000 pounds;

5,000 pounds;

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

HOB and BPA ozone nonattainment areas as defined in paragraph (70)

ofthis section, where the RQ must be 100 pounds;

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

(-kk-) I,I,Z,3,3-pentafluoropropane (lIfeZ45ea) - 5,000 pounds;

(-11-) 1,I,I,Z,3-pentafluoropropane (lIfeZ45eb) - 5,000 pounds;

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

(HFC-Z45fa) - 5,000 pounds;

(-no-) pentanes (any isomer) - 5,000 pounds;

(-00-) propane - 5,000 pounds;

(~pp-) propylene - 5,OOOpounds, except in the

HOB and BPA ozone nonattainment areas as defined in paragraph (70)

ofthis section, where the RQ must be 100 pounds;

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

(CFR-llZ) - 5,000 pounds;

(-rr-) 1,1,1.2-tetrachlorodifluoroethane

(CFC-IIZa) - 5,000 pounds;

(-,,-) I,I,Z,Z-tetrafluoroetbane (HFC-134)

(B) for mixtures of air contaminant compounds:

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

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

contaminant eompound that equals or exceeds the amount specified in

subparagraph (A) of tbis paragrapb;

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

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

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

and listed in subparagraph (A)(i) oftbis paragrapb;

(iii) where each of the individual air contaminant

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

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

ofthis paragraph are known to be less than 2.0% by weight ofthe mix~

ture.. any total amount of thc mixture of air contaminant compounds

greater than or equal to 5,000 pounds: or

Oll) where natural gas excluding carbon dioxide,

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

or air emissions from crude oil are known to be in an amount greater

than or equal to 5.000 pounds or the associated hydrogen sulfide and

mercaptans in a total amount greater than 100 pounds, whichever

occurs first:

(-uu-) 1,1 ,2-trichloro-1 ,2,2-trifluoroethane

(CFR-1l3) - 5,000 pounds;

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

(CFC-113a) - 5,000 pounds;

(-ww-) l,l,l-trifluoro-2,2-dichloroethane

(IICFC-IZ3) - 5,000 pounds;

(-xx-) I,I,I-trifluoroethane (HFC-143a)

(C) for opacity from boilers and combustion turbines as

defined in this section fueled by natural gas, coal, lignite, wood, fuel

oil containing hazardous air pollutants at a concentration of less than

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

solid or dissolved material in irrigation return flows, or industrial disADOPTED RULES February 25, 2011 36 TexReg 1303
charges subjecr to regulation by pennit issued under the Texas Water

Code, Chapter 26:

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

inert solid material~ used to fill land, if the obiect ofthe fill is to make

the land suitable for the construction ofsurface improvements: or

(e) waste materials that resull from activities associated with the exploration, developmenl, or production of oil or gas,

or geothennal resources. and other substance or material regulated by

the Railroad Commission of Texas under Natural Resources Code,

§91.1 01. unless the waste, substance, or material results from aetivities

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by the administrator of the United States Environ·

mental Proteetion Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, as amended

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

(94) Sour crude··A erude oil that will emit a sour gas when

in equilibrium at annospherie pressure.

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

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

oftotal sulfur per 100 eubic feet.

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

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

owner, the executive director shall determine whether multiple pro·

cesses emitting air eontaminants from a single point of emission will

be trealed as a single source or as multiple sources.

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

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

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

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

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

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

pounds per square ineh absolute (101.3 kiloPascals).

(99) Standard metropol1tan statistieal area--An area consisting ofa county or one or more contiguous counties that is offieially

so designated by the United States Bureau of the Budget.

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

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

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

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

nonnal operation.

(101) Sulfur eompounds--AII inorganic or organie chemicals having an atom or atoms ofsulfur in their chemical strueture.

(J 02) Sulfuric acid mist/sulfurie acid--Emissions ofsulfuric acid mist and sulfuric acid are considered to be the same air contaminant calculated as H,SO. and must include sulfuric acid liquid mist,

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

in 40 Code of Federal Regulations Part 60. Appendix A.

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

(104) Total suspended particulate--Particulate matter as

measured by the method described in 40 Code of Federal Regulations

Part 50. Appendix B.

36 TexReg 1304 February 25, 2011 Texas Register

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

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

amount of coating solids delivered to the coating application system.

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

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

volatile organic compounds at the temperature ofstorage. handling, or

processing.

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

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

Clean Air Aet §382.0518(g).

(108) Unplanned maintenanee. startup. or shutdown aetiyity--For actiYities with unauthorized emissions that are expected to exceed a reportable quantity or with excess opacit)·, an unplanned maintenance. startup_ or shutdown actiYit)· is:

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

-or routine facility operations_ is unpredictable as to timing, and is not

the t)'pe of event nonnally authorized by permit: or

(B) a maintenance activit}, that arises from sudden and

unforeseeable events beyond the control of the operator that requires

the immediate corrective action to minimize or avoid an upset or malfunction.

(109) Upset event--An unplanned and unavoidable breakdown Or excursion ofa process or operation that results in unauthorized

emissions. A maintenance, startup, or shutdovm actiYit), that was re~

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

Startup, and Shutdown Reporting and Recordkeeping Requirements),

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

reportable quantity due to an unplanned and unavoidable breakdown

or excursion of a process or operation is an upset event.

(110) Utilit)· boiler--A boiler used to produce electric

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

(111) Vapor eombustor-~A partially enclosed combustion

device used to destroy volatile organic compounds by smokeless com~

bustion without extracting energy in the fonn ofprocess heat or steam.

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

the device operate with an uncontrolled flame. Auxiliary fuel and/or a

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

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

ensure smokeless combustion during operation.

(112) Vapor-mounted seal--A prim8I)' seal mounted so

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

is bounded by the bottom ofthe prim8I)' seaL the tank wall, the liquid

surface, and the floating roof or eover.

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

other deviee used to conduct air contaminants into the atmosphere.

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

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

flame is not considered a visible emission under this definition.

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

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

amended on November 29, 2004 (69 FR 69290).

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

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

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

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

drainage, or reeovery of such water.
CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary Of State on February 11,

2011.

TRD-201100544

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal publication date: August 27, 2010

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

The Texas Commission on Environmental Quality (commission, agency, or TCEQ) adopts the amendments to §§116.12,

116.115,116.180,116.182,116.186,116.188, 116.190, 116.192,

116.601, and 116.617; new §116.127; and the repeal of

§116.121.

The amendments to §§116.115, 116.188, 116.601; new

§116.127; and the repeal of §116.121 are adopted without

changes as pubiished 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 repubiished.

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 Environmentai

Protection Agency (EPA) as revisions to the State Implementation Plan (SIP). The amendment to §116.617 will 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 NSRSIP; amendmentsto§§101.1, 116.150, and 116.151

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

as a revision to the Prevention of Significant Deterioration (PSD)

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

the EPA published notice of the proposed disapproval of these

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

on September 15, 2010, published the final disapproval of the

revisions (75 Federal Register 58424).

This rulemaking and the companion rulemaking (Rule Project

No. 2008-030-116-PR) address issues identified by the EPA

in its September 15, 2010, final disapproval notice and ensure

that TCEQ regulatory requirements regarding the NSR penmit-

• • •

ting program meet the requirements of the Federal Clean Air Act

(FCAA) and are approvabie into the SIP. Specifically, those concern definitions for the Plant-Wide Applicability Limit (PAL) ruies

and other changes to the PAL rules to meet federal requirements,

induding the condftions for reopening PAL permits_ The rulemaking also amends §116.617, State Pollution Controi Project

Standard Penmit (Which is the existing standard penmit ruie), to

limit when existing registrations for this standard permit can be

amended or reneWed and prOVides the deadline lor 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 concurrentiy 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 rule changes as revisions to

the SIP.

In the September 15, 2010 notice, EPA also proposed to take no

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

rUlemaking. These sections are permit requirements for compliance with FCAA, §112(g), but they are not necessary elements

of the SIP. The rulemaking withdraws from EPA consideration

as a revision to the SIP of §§116.400, 116.402, 116.404, and

116.406, as adopted by the commission on January 11, 2006,

effective on February 1, 2006. No Changes have been made to

the ru Ie text or numbering of these sections.

This ruiemaking is at least as stringent as the federal rules being implemented because it includes the applicable elements of

the major NSR and PAL penmrt programs. The rulemaking action also ensures that the rules will meet the requirements of

the FCAA, which requires that the elements of the SIP be enforceable, include replicable elements, and ensure compliance

and accountability. The specific changes to the PAL rules meet

these basic requirements.

When EPA adopted the NSR refonm ruie amendments (67 Federal Register 80185, December 31,2002), it expanded its requirement for states' SIP submittais oltheir rules that impiement

major NSR to require a demonstration of why both the specific

major NSR penmitting program requirements, inciuding applicabie 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 addres~ issues identified by EPA in its September 15, 2010, disapproval

notice so that the rules can be approved as revisions to the

SIP. The changes make the commission's rules as stringent as

EPA's regulations. The definitions of baseline actual emissions

and projected actual emissions do not include malfunction emissions, and thus are more stringent than EPA's definitions. In addition, this rulemaking action also ensures that the rules will meet

the requirements of the FCAA, which requires that the elements

of the SIP be enforceable, include replicable elements, and ensure compliance and accountability.

SECTION BY SECTION DISCUSSION

ADOPTED RULES February 25, 2011 36 TexReg 1305
CHAPTER 116. CONTROL OF AIR

POLLUTION BY PERMITS FOR NEW

CONSTRUCTION OR MODIFICATION

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

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 Register (35 TexReg 7687) and will be republished.

The adopted amendments to §116.12 and §116.150 will be submilted to the United States Environmental Protection Agency

(EPA) as revisions to the state impiementation 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), promUlgating 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 ultimateiy,

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 classifying areas only

under Part D, 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.

American Trucking Assoc., 121 S.Ct. 903 (2001)). On March

26, 2002, the D.C. Circuit Court of Appeals rejected the other

challenges to the eight-hour ozone NAAQS (American Trucking

Assoc. v. EPA, 283 F.3d 355 (D. C. Cir. 2002)). The EPA then

proposed and adopted implementation rules to implement the

eight-hour ozone NAAQS, addressing transition issues from the

one-hour ozone NAAQS, the revocation of the one-hour ozone

NAAQS, classification of areas for the eight-hour ozone NAAQS,

and the specification of requirements reiating to SIPs. EPA finalized designations for the 1997 eight-hour ozone NAAQS effective on June 15, 2004.

FCAA, §107 requires the EPA to designate areas nonaltainment,

attainment, or unclassifiable no later than one year after the 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 law, in accordance with Table 1 of that section. FCAA,

§181, Table 1prescribes 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

(ii) written acceptance of the pollution control

project has been issued by the executive dircctor.

(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 permits Or registrations affected by the project:

(D) quantification and basis of increases and/or decreases associated with the prQjecl. including identification of affected

existing or proposed emission points. all air contaminants, and hourly

and annual emissions rates;

(E) a description of proposed monitoring and recordkeeping that will demonstrate that the project decreases or maintains

emission rates as represented: and

(F) a description ofhow the standard pennit will be ad¥

ministratively incorporated into the existing pennit(s).

(e) Operational requirements. Upon installation of the pollution control project. the owner or operator shall comply with the requirements of paragraphs (1) and (2) ofthis subsection.

(1) General duty. The o""ner or operator must operate the

pollution control project in a manner consistent with good industrJ and

engineering practices and in such a way as to minimize emissions of

collateral pollutants, within the physical configuration and operational

standards usually associated with the emissions control device, strategy. or technique.

(2) Recordkeeping. The owner or operator must maintain

copies on site ofmonitoring or other emission records to prove that the

pollution control project is operated consistent with the requirements

in paragraph (1) ofthis subsection, and the conditions ofthis standard

pennit.

(f) Incorporation ofthe standard pennit into the facility authorization.

(1) Any new faeilities or changes in method of control or

technique authorized by this standard permit instead ofa pennit amendment under §116.110 ofthis ritle (relating to Applicability) at a previously pennitted orstandard pennitted facility must be incorporated into

that facility's pennit when the pennit is amended or renewed.

(2) All inereases in previously authorized emissions, new

facilities, or changes in method of control or technique authorized by

this standard permit for facilities previously authorized by a pennit by

rule must comply with §106.4 ofthis title (relating to Requirements for

Permitting by Rule). except §l 06.4(a)(I) afthis title, and §106.8 afthis

title (relating to Recordkeeping).

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of Slate On February 11,

2011.

TRD-201100543

36 TexReg 1324 February 25, 2011 Texas Register

• • •
would haile less time to attain the standard, and additional requirements 01 FCAA, Part D, Subpart 2 impose specific, more

stringent requirements on areas as the classifications increase

from marginal to moderate (and the corresponding design values

are further from attainment of the one-hour ozone standard).

The EPA rules implementing the 1997 eight-hour ozone standard

were adopted in two phases: the Phase I Rule, 69 Federal Register 23951, April 30, 2004, addressed a number 01 implementation issues lor the 1997 eight-hour ozone NAAQS, includin9

how areas should be classilied lor the 1997 eight-hour ozone

NAAQS (since the classification requirements 01 FCAA, §181

were based on the one-hour ozone standard, the EPA needed

to propose and finalize a classification scheme appropriate for

the eight-hour ozone standard in accord with FCAA, §181), and

which one-hour ozone standard requirements should continue to

apply under the 1997 eight-hour ozone NAAQS; and the Phase

II Rule (70 Federal Regisler71612, November 29,2005), which

addressed additional requirements.

In EPA's Phase I Rule, one 01 the issues that the EPA considered was the continued applicability 01 control requirements

that applied in areas preViously designated nonattainmentforthe

one-hour ozone standard. As part 01 the Phase I Rule, the EPA

considered several prOVisions of the FCAA that it stated were

evidence 01 Congress' intent that certain obligations continue to

apply when the EPA revises a NAAQS. The EPA stated that the

FCCA, §175A(d) provided that areas could not remove controls

that were mandated by the FCAA, Part D, Subpart 2 even after

the area attained the NAAQS and was redesignated to attainment. At most, a state could move FCAA, Part D, Subpart 2

controls to the contingency plan provisions 01 the SIP. Another

provision that the EPA reviewed and discussed in the Phase I

Rule was FCAA, §172(e), which provides that ilthe EPA revises

a NAAQS to make it be less s!Tingen!. then the EPA must promUlgate regulations applicable to areas that have not attained the

original NAAQS to require controls that are no less stringent than

controls that applied to areas designated nonattainment prior to

such relaxation. The EPA concluded in the Phase I Rule that

"if Congress intended areas to remain SUbject to the same level

01 control where a NAAQS was relaxed, they also intended that

such controis not be weakened where the NAAQS is made more

stringenr' «see 69 Federal Register 23972), April 30, 2004).

Based on this premise, the EPA adopted rules that provided

lor certain requirements to continue to apply to areas that were

designated nonattainment for the one-hour ozone standard,

depending on how they were designated lor the eight-hour

ozone NAAQS. Areas that were designated nonattainment for

both the one-hour ozone and eight-hour ozone NAAQS were

required to continue to apply certain requirements that applied

under the one-hour ozone standard, with specific exceptions

(40 Code 01 Federal RegUlations (CFR) §51.905(a)(1)). These

requirements included reasonably available control technology

(RACT), inspection and maintenance programs (11M), major

source applicability cut-ofts lor purposes 01 RACT, rate 01

progress reductions (ROP), stage II vapor recovery, clean fuels

fleet programs, clean luel programs lor boilers, transportation

cont~ol measures, enhanced ambient monitoring requirements,

required transportation controls, vehicle miles traveled requirements, and nitrogen oxides requirements (40 CFR §51.900(f).

The EPA also prOVided that nonattainment area New Source

Review (NSR) reqUirements required by FCAA, §§172(c)(5),

173, and 182 based on the area's previous one-hour ozone

NAAQS classification were no longer required elements of

an approveble SIP (40 CFR §51.905(e)(4)). The EPA also

prOVided that areas would no longer have to meet requirements

lor conlonmity, the development 01 maintenance plans, or the

penalty lee obligation lor severe areas (40 CFR §51.905).

The EPA's Phase I Ruie provided that areas that were nonattainment for the one-hour ozone NAAQS were not required to

continue to use the more stringent major source thresholds and

emission offset requirements of the one-hour ozone standard

when implementing NSR and Title V penmittin9 for the 1997

eight-hour ozone standard.

All areas in Texas designated nonattainment lor the 1997 eighthour ozone NAAQS that were also designated nonattainment for

the one-hour ozone NAAQS were classified at a "less stringent"

level. Beaumont-Port Arthur (BPA) was classified as "serious"

lor the one-hour ozone NAAQS, but was classified as "moderate" lor the 1997 ei9ht-hour ozone NAAQS. Houston-Galveston-Brazoria (HGB) was classified as "severe" for the one-hour

ozone NAAQS and originally classified es "moderate" lor the

1997 eight-hour ozone NAAQS. The EPA has since reclassified

the HGB area to "severe" lorthe 1997 eight-hour ozone NAAQS,

pursuant to a voluntary reclassification request by the Governor 01 Texas. The Dallas-Fort Worth (DFW) area was classified

as "serious" for the one-hour ozone NAAQS, and was classified

as "moderate" lor the 1997 eight-hour ozone NAAQS. The EI

Paso area was nonattainment for the one-hour ozone NAAQS

classified as "serious," but designated attainment lor the 1997

eight-hour ozone NAAQS.

So, lor example, a regulated entity in the HGB area triggered

nonattainment review if the potential to emit was equal to or

greater than 25 tons per year (tpy) under the "severe" Classification lor the one-hour ozone NAAQS, but only triggered nonattalnment review underthe "moderate" classification for the eighthour ozone NAAQS ilthe potential to emit was equal to or greater

than 100 tpy. Under the existing rules, since the HGB area

has been reclassified to "severe" lor the 1997 eight-hour ozone

NAAQS, regUlated entities must again utilize the same major

source threshold and emission offset requirements that previously applied under the one-hour ozone standard.

After designations lor the 1997 eight-hour ozone standard and

the final Phase 1Rule were effective, the commission proceeded

with rulemaking to implement the reqUirements lor the 1997

eight-hour ozone standard. The commission updated Chapter

116 to implement the changes from the Phase I Rule regarding the application 01 the 1997 eight-hour ozone standard lor

nonattainment NSR On May 25, 2005, the commission adopted

changes to Chapter 116, effective June 16, 2005, to prOVide that

lor the HGB, DFW, and BPA eight-hour ozone nonattainment

areas, .if the EPA promUlgated rules requiring NSR penmit

applications In those areas to be evaluated lor nonal1ainment

NSR according to that area's one-hour ozone classification

then each application would be evaluated in accordance with

the area's one-hour- ozone classification. "Evaluation" was

specified as including both the threshold lor detenmining il there

w~s a modification well as the ratio of offsets required, along

With any other applicable reqUirement that depended upon an

area's. n~nattainment classification. In adopting this rule, the

commission noted that although the Phase I Rule provided lor

the application 01 the eight-hour ozone standard lor nonattainment NSR, the EPA had 9ranted a partiel reconsideration 01 the

Phase I Rule specifically regarding that issue and the result

of the reconsideration could be a return to the ~ne-hour ozone

standard lor application 01 nonattainment NSR Because 01

this concern, the commission adopted contingency language in

ADOPTED RULES February 25, 2011 36 TexReg 1325
§116.150, and in the table footnotes in the figure located in the

definition of major modification In §116.12. This contingency

language was adopted to be effeelive in the event that the

EPA completed rulemaking to require states to return to a

one-hour ozone standard trigger for federal nonattainment NSR

evaluations. In this rulemaking, the commission is removing this

previously adopted contingency language.

The EPA Phase I Rule, and particularly the EPA:s determination

that areas designated as nonattainment under the one-hour

ozone standard would no longer be subject to one-hour nonattainment NSR requirements, was successfully challenged in

South Coast Air Quality Management District v. Envirenmentai

Prelection Agency, 472 F.3d 882 (D.C. Cir. 2006) and the rule

was partially vacated and remanded to the EPA, as made clear

In its revised opinion on June 8, 2007 (Soulh Coast Air Qualify

Management Dislnct v Envirenmental Prelection Agency, 489

F.3d 1245 (D.C. Cir 2007)). The South Coast decision was

upheld by the United States Supreme Court on January 14,

2008.

In a guidance memo issued on OelOber 3, 2007, the EPA stated

that it interpreted the South Coast ruling as restoring NSR applicability thresholds and emission offset requirements pursuant

to classifications under the one-hour ozone standard. The EPA

also noted in this guidance memo that it intended to conduct rulemaking to conform the NSR regulations to the South Coast decision. EPA stated that it intended to issue an immediately-effective final rule under the authority of the "Good Cause" provision of the Federal Administrative Procedure Act to restore

the NSR applicability thresholds and emission offsets associated with designated one-hour ozone nonattainment areas, and

would begin a separate notice and comment rulemaking to address longer-term applicability of one-hour ozone NSR requirements, in particUlar, the conditions and mechanisms under which

those one-hour ozone NSR requirements would cease to apply

for NSR purposes. Lastly, the EPA strongly encouraged states

to comply with the South Coast decision as quickly as possible.

Because the one-hour ozone standard has been revoked, the

EPA is no longer making redesignations or reclassifications under this standard. However, the EPA is making determinations

under its Clean Data Policy that areas are currently attaining the

one-hour ozone NAAQS. In its proposal to detenmine that the

Southern New Jersey portion of the Philadelphia Metro nonattainment area attained the one-hour ozone NAAQS (see 73 Federal Regisler42727, July 23, 2008), the EPA discussed the effeel of the D.C. Circuit Court of Appeals' decision vacating a portion of the 1997 eight-hour ozone Phase I Implementation Rule

(South Coast Air Qua/ily Management District v. EPA, 472 F3d

882 (2006) and 489 F3d 1295 (2007)). The EPA stated: 'With

respeelto the challenges to the anti-backsliding provisions of the

rule, the Court vacated three previsions that would have allowed

States to remove from the SIP or to not adopt three one-hour

obligations once the one-hour ozone NAAOS was revoked (including one-hour nonattainment NSR requirements). mhe three

provisions noted previously. . were vacated by the Court. As a

result, States must continue to meet the obligations for one-hour

NSR .. Currently, EPA is developing two proposed rules to

address the Court's vacatur and remand with respect to these

three requirements. EPA will address in this proposed rUle how

the one-hour obligations that currently continue to apply under

EPA's anti-backsliding rule (as interpreted by the Court) apply

where the EPA has made a determination that the area attained

the one-hour ozone NAAQS by its attainment date." One possible outcome from the EPA rulemaking on this issue may be

36 TexReg 1326 February 25, 2011 Texas Register

to direct states that want to remove one-hour ozone nonattainment NSR requirements to submit SIP revisions demonstrating

that removing one-hour ozone nonattainment NSR requirements

will not interfere with attainment or maintenance of the ozone

NAAOS.

Because the EPA has not completed any rulemaking to implementthe South Coast decision regarding NSR anti-backsliding,

states must deCide how to implement, and give effect to, the

court's decision. Any revision to a SIP that could interfere with

or does not comply with the FCAA and the SIP because it has

the effeel of making the approved SIP less stringent may be considered as "backsliding" from those requirements and would not

be approvable by the EPA. Given the uncertainty of the future

EPA rulemaking, and the finaiity of the South Coast decision as

of January 14, 2008, the commission is removing the previously

adopted contingency language, in addition to other changes, to

clarify the requirements for nonattainment NSR. Without effective and understandable guidance from the EPA, through rulemaking or otherwise, the commission is left to determine the

most reasonable course of action. The South Coast decision,

upheld by the United States Supreme Court, makes clear that

areas may not ignore one-hour ozone nonattainment NSR requirements.

The commission had preViously adopted rules specifying that

sources in the BPA, HGB, and DFW nonattainment areas should

apply eight-hour ozone nonattainment NSR requirements. The

commission is now deleting certain portions of the definition in

§116.12(18)(A), concerning major modification and the requirements of §116.150(d). This rulemaking makes clear that permitted facilities in areas that were designated nonattainment for the

one-hour ozone standard are SUbject to the major source thresholds and emission offsets of the one-hour ozone standard upon

the effective date of this rulemaking unless one of the four exceptions identified in §116.150(a) apply.

Staff has previously presented these rule amendments (Rule

Projeel2008-030-116-PR) to the commission for consideration.

At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's staff

in anticipation of additional direction or aelion by the EPA, because EPA continued to indicate in various federal notices its

intent to complete rulemaking regarding NSR anti-backsliding

requirements in response to the South Coast decision. EPA's

proposed rule to implement the 1997 eight-hour ozone NAAQS

revision on subpart 1 reclassification and anti-backsliding provisions under the former one-hour ozone standard was published

in the January 16, 2009, Federal Register, but has not yet been

finalized. This rulemaking removes language regarding the exemptions from nonattainment new source review (NNSR) that

were vacated by South Coast.

On September 23, 2009, the EPA published notice of the proposed disapproval of past revisions to the Texas NNSR SIP (74

Federal Register 48467, September 23, 2009) that are related

to these amendments, and finalized this disapproval on September 15, 2010 (74 Federal Register 56424). EPA disapproved the

changes the commission made to several sections of Chapter

116. Two of these changes were the changes that the commission adopted to §116.12 and §116.150 to implement the Phase

i rule implementing the 1997 eight-hour oZOne standard, discussed ear1ier in this preamble, which the commission proposed

to change as part of this action. As discussed further in the Section by Section Discussion section of this preamble, the commission is adopting changes to these sections to remove the
disapproved language and to assure that NNSR permitting requirements are clear.

Additionally, on October 20, 2010, EPA published a final rule

to approve the redesignation of the SPA 1997 eight-hour ozone

nonattainment area to attainment, and clarify EPA's previous approval of the EI Paso Section 110(a)(1) maintenance plan for

the 1997 eight-hour ozone standard (75 Federal Register64675,

October 20, 2010). This final rule noted EPl':s new position regarding NSR anti-backsliding and Whether one-hour ozone major source thresholds and emission offset requirements continue

to apply in an area. EPA noted "after final redesignation to attainment for the 1997 eight-hour ozone standard, EPA does not

require the continued application of one-hour anti-backsliding

nonattainment NSR, if Texas interprets its SIP as applying PSD

to BPA in these circumstances (see 75 Federal Register 64675

and 64677, October 20,2010). The EPA also clarified that, with

respect to EI Paso, "EPA has had further opportunity to consider

the applicable statutory and regulatory provisions and the decision in South Coast. As a result, we no longer believe

that the Clean Air Act requires a separate Section 110(1) analysis to replace one-hour nonattainment NSR with prevention of

significant deterioration (PSD) once an area has been redesignated to attainment for the 1997 eight-hour ozone standard, or

has an approved Section 110(a)(1) maintenance plan for that

standard. In sum, we believe that the approach to the nonattainment NSRJPSD transition that we are adopting here with respect

to BPA shOUld also be extended to EI Paso. Thus, as long as the

Texas NSR SIP is clear that the PSD SIP requirements apply to

an area such as EI Paso, then that is all that is required by EPA"

(see 75 Federal Register 64675 and 64677, October 20, 2010).

The commission appreciates this clear statement from EPA, and

agrees that the SIP should be dear on this issue. Therefore, as

discussed in this preamble, although the Texas SIP has always

applied PSD in an area upon redesignation, the commission is

concurrentiy adopting changes to Chapter 116 to make clearthat

PSD applies once an area has been redesignated to attainment

for a particuiar criteria pollutant.

The amendments confirm that the BPA area is no longer suI>-

ject to NNSR. As discussed previously in this preamble, on October 20, 2010, EPA published the redesignation of the BPA

area to attainment for the 1997 eight-hour ozone NAAOS, and

a determination that the BPA area had attained the one-hour

ozone NAAOS. In this action, EPA determined that the BPA area

need not be subject to NNSR as an anti-backsliding requirement.

Thus, under the amendment to §116.150(a)(1), the BPA area

is not SUbject to NNSR for either the one-hour ozone or 1997

eight-hour ozone NAAOS. Additionally, the amendments confirm

that the EI Paso area is no longer SUbject to NNSR. On January

15, 2009, EPA published its approval of a maintenance plan for

the EI Paso area for the 1997 eight-hour ozone standard. As discussed preViously in this preamble, in EPl':s October 20, 2010,

action for the BPA area, EPA stated that "we no longer believe

that the Ciean Air Act requires a separate 110(1) analysis to replace 1-hour nonattainment NSR with PSD once an area has.

an approved 110(a)(1) maintenance pian for that standard" (see

75 Federal Register 64677). Taken together, these statements

reflect an EPA determination that NNSR is no longer required for

purposes of anti-backsliding for the EI Paso area. Thus, under

the amendment to §116.150(a)(4), the EI Paso area is not subject to NNSR for either the one-hour ozone or 1997 eight-hour

ozone NAAQS.

This is an issue of extreme importance to the commission, the

regulated community and the public, and there should be no

room for ambiguity or argument. In an effort to ensure that

TCEO regulatory requirements regarding the NNSR permitting

program are clear, meet the requirements of the FCAA, and

are approvable into the SIP, the commission is adopting the

following amendments to eliminate any deficiencies that would

prevent approval of the rule changes.

Additionally, in order to prevent future confusion over designations and classifications and their related applicability thresholds

and emissions offset requirements, the commission is adopting

concurrent amendments to the definitions of maintenance area,

and nonattainment area In 30 TAC Chapter 101, General Air

Quality Rules.

Section by Section Discussion

§116.12, Nonattalnment and Prevention of Significant Deterioration Review Definitions

The commission is changing footnote 1 in Table I, paragraph

(18)(A) to remove the reference to the CFR and replace it with

a reference the definition of "Nonattainment area" in 30 TAC

§101.1. This reference is no longer necessary because the definition of nonattainment is being updated and also references the

appropriate part of the CFR. The commission is also changing

the term "major modification level" to "significant level" in footnote 2 in Table 1 in §116.12(18)(A). This will ensure that the term

used in the footnote matches the heading in the third coiumn of

the table and help eliminate any confusion resulting from the use

of different terms. The commission is also removing footnotes 6

and 7 from Table 1 in §116.12(18)(A).

The commission is making a change from the proposal to remove the second sentence of footnote 3 oITable I in §116.12(18)

regarding the EI Paso ozone nonattainment area. As the result of the EPA's finai notice regarding the Beaumont/Port Arthur

ozone nonattainment area redisignation (see 75 Federal Register64675, October 20, 2010), which clarified the EPA's approval

of the El Paso area's eight-hour ozone nonattainment maintenance plan, the requirement for EI Paso in footnote 3 is no longer

necessary.

Footnote 6 indicates that the EPA must complete rulemaking before NSR applications are evaluated according to their one-hour

classification. However, the EPA has stated that: the South

Coast decision is self-impiementing; did not require rulemakjng by the EPA to be effective; and NSR applications should be

evaluated based upon one-hour classifications, if they are more

stringent than an area's eight-hour classification, and has specifically disapproved footnote 6 (see 75 Federal Register 56424,

September 15, 2010). Footnote 7 states that permit applications

in areas designated as nonattainment for ozone under FCAA,

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

will be evaluated as if that area was designated as Marginal.

However, Texas does not have any areas currently designated

as nonattainment for ozone under FCAA, TItle I, Part D, Subpart

1. The San Antonio area was originally designated nonattainment-<leferred for the 1997 eight-hour ozone NAAOS, but has

since been designated attainment.

§116.150, New Major Source or Major Modification in Ozone

Nonattainment Areas

The commission is amending §116.150(a) by removing

§116.150(a)(1) and (2). SUbsection (a) would then be amended

to apply the requirements of this subsection as of the date of

issuance of the permit and to add a requirement for continued

applicability of NNSR until the EPA has made a finding of atADOPTED RULES February 25,2011 36 TexReg 1327
tainment; the EPA has approved the removal of nonattainment

NSR requirements from the area; the EPA has determined that

PSD requirements apply in the area; or that nonattainment NSR

is no ionger required for the purposes of antibacksliding.

The commission Is also removing §116.150(d) from the rule.

Subsection (d) contains language similar to that in footnote

6 to Table 1 in §116.12(18)(A). This language Indicates that

the EPA must compiete rulemaking before NSR applications

are evaluated according to their one-hour classification. However, the EPA has stated that: the South Coast decision is

self-implementing; did not require ruiemaking by the EPA to

be effective; and NSR applications shouid be evaluated based

upon one-hour classifications, if they are more stringent than an

area's eight-hour classification, and has specifically disapproved

§116.150(d) and similar language in footnote 6 (see 75 Federal

Register 56424, September 15, 2010). Additionally, the netting

requirement and exceptions in §116.150(d) are redundant to

the same requirement and exceptions in §116.150(c) and thus,

unnecessary. The commission is also renumbering the remainder of §116.150 to reflect the removal of §116.150(d) and minor

changes to references in §116.150(b) to reflect the renumbering.

The commission is changing §116.150(e) to reflect changes in

a concurrent rulemaking in Chapter 101.

As the result of comments received on the proposal of these

amendments the commission is changing: §116.150(a)(1) - (4)

to make clear that the conditions on which these exceptions

are based must exist on the date of issuance of the penmit;

§116.150(d)(3)(A) to make clear that this exception only applies in a serious or severe ozone nonattainment area; and

§116.150(d)(3)(B) to make clear that this exception only applies

in a serious or severe ozone nonattainment area and 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).

Final Regulatory Impact Analysis Detenmination

The commission reviewed the adopted ruiemaking in light of the

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and detenmined thatthe ruiemaking does not

meet the definition of a major environmental rule as defined in

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

not be subject to the requirement to prepare a regUlatory impact

analysis.

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

which is to protect the environment or reduce risks to human

health from environmental exposure, and that may adverseiy affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the pUblic health

and safety of the state or a sector of the state. The specific intent

of the revisions is to remove certain definitions that are duplicative, and to remove previously adopted contingency language

that would require EPA final rulemaking before NSR applications

are evaluated according to the one-hour classification of the area

where the faciiity is located. 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 since they codify the effect a federal district court ruling that has been upheid by

the United States Supreme Court in South Coast, as discussed

elsewhere in this preamble.

Additionally, even if the rules met the definition of a major environmental rule, the rulemaking does not meet any of the four ap36 TexReg 1328 February 25, 2011 Texas Register

plicabiiity 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 ruie, the result of which

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

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

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

or contract between the state and an agency or representative

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

agency instead of under a specific state law.

The adopted rules wouid implement requirements of the FCAA.

Under 42 USC, §7410, each state is required to adopt and impiement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While

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

methods, or emission reductions in order to meet the standard,

state SIPs must include specific requirements as specified by 42

USC, §7410. The provisions of the FCAA recognize that states

are in the best position to determine what programs and controls

are necessary or appropriate in order to meet the NAAQS. This

flexibility aliows states, affected industry, and the public to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states

to develop their own programs, this flexibility does not relieve a

state from developing a program that meets the requirements of

42 USC, §7410. States are not free to ignore the requirements

of 42 USC, §7410, and must develop programs to assure that

their SIPs provide for implementation, attainment, maintenance,

and enforcement of the NAAQS within the state. One of the requirements of 42 USC, §7410 is for states to include programs

for the regulation of the modification and construction of any stationary source within the area covered by the plan as necessary

to assure that the NAAQS are achieved, including a penmit program as required in FCAA, Parts C and D, or NSR. Additionally,

once states have developed SIPs, and those plans are approved

by the EPA, the FCAA prescribes, in 42 USC, §7502(e) that the

EPA, in modifying a NAAQS, shall promuigate rules that apply

to all areas that have not attained the previous NAAQS that provide for controls that are no less stringent than the controls that

previously applied to the area. The district court in South Coast

found that NSR was a "control," and vacated the EPA's Phase I

rules that provided that the major source thresholds and offset requirements that applied as a result of an area's designation and

classification under the one-hour ozone standard were no longer

necessary. Until the EPA completes rulemaking to further interpret the applicability of the NSR penmitting program in the context

of 42 USC, §7502(e) and revisions to the ozone NAAQS, state

rules that allow NSR review to rely upon designations and classifications for the eight-hour ozone standard in areas previously

designated nonattainment for the one-hour ozone standard conflict with the South Coast ruling.

The requirement to provide a fiscal analysis of regulations in the

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

during the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis 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 understanding that this requirement would seldom apply, the commission provided a cost
estimate for SB 633 that concluded "based on an assessment of

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

the bill will have significant fiscal implications for the agency due

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

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

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

the full analysis unless the rule was a major environmental rule

that exceeded 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 iaw, then each of those rules wouid require the full reguiatory

impact analysis (RIA) contemplated by SB 633. This conclusion

is inconsistent with the conclusions reached by the commission

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

in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bilis it passes, and that presumption is based on information provided by state agencies and the

LBB, the commission believes that the intent of SB 633 was only

to require the fuli RIA for ruies that are extraordinary in nature.

While the adopted rules may have a broad impact, that impact

is no greater than is necessary or appropriate to meet the requirements of the FCM, and in fact creates no additional impacts since the rules do not exceed the requirement to attain and

maintain the NMOS. For these reasons, the adopted ruies fall

under the exception in Texas Govemment Code, §2001.0225(a),

because they are required by, and do not exceed, federal law, including the SIP. In addrtion, these rules do not exceed any contract between the state and a federal agency.

The commission has consistently applied this construction to its

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

the legislature has revised the Texas Government Code, but

left this provision SUbstantially unamended. It is presumed that

"When an agency interpretation is in effect at the time the legislature amends the laws without making sUbstantiai change in the

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

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

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

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

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

Austin 1990, no wn't). Cf. Humbte Oil & Reffning Co. v. Calvert,

414 S.W2d 172 (Tex. 1967); Dudney v. Stale 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 Indust. Water Auth. v.

Tnnily 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 legislature in 1999. In an attempt to limit the

number of rule challenges based upon APA requirements, the

iegislature clarified that state agencies are required to meet

these sections of the APA against the standard of "substantial

compliance" (see Texas Govemment Code, §2001.035). The

iegislature specifically identified Texas Government Code,

§2001.0225 as falling under this standard. As discussed in

this analysis and elsewhere in this preamble, the commission

has substantially complied with the requirements of Texas

Govemment Code, §2001.0225.

The adopted rules implement requirements of the FCM, specifically to adopt and implement SIPs to attain and maintain the

NMOS, inclUding a requirement to adopt and implement permrt programs. The specific intent of the adopted rule revisions

is to remove certain definitions that are duplicative, and previously adopted contingency language that would require EPA final rulemaking before NSR applications are evaiuated according to the one-hour classification of the area where the facility

is located, in order to avoid conflict with the South Coast decision. These amendments 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 Texas Clean Air Act), and the Texas Water Code,

which are cited in the Statutory Authority section of these rules,

inclUding Texas Health and Safety Code, §§382.011, 382.012,

and 382.017. Therefore, this rulemaking action is not subject to

the regUlatory analysis provisions of Texas Govemment Code,

§2001.0225(b).

Takings Impact Assessment

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

govemmental action that affects private reai property, in whole or

in part or temporarily or pennanently, in a manner 1hat requires

the governmental entity to compensate the private real property

owner as provided by the Fifth and Fourteenth Amendments to

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

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

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

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

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

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

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

The commission completed a takings impact analysis for the

adopted rulemaking action under the Texas Govemment Code,

§2007.043. The primary purpose of this rulemaking action, as

discussed elsewhere in this preamble, is to remove certain definitions that are duplicative, and previously adopted contingency

language that would require EPA final rulemaking before NSR

applications are evaiuated according to the one-hour classification of the area where the facility is located.

The adopted rules will not create any additional burden on private real property. The rules will not affect private real property in

a manner that woLild require compensation to private real property owners under the United States Consmution or the Texas

Consmution. This rulemaking also will not affect private real

property in a mannerthat 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 detennined that this rulemaking action relates

to an action or actions subject to the Texas Coastai Management

Program (CMP) in accordance with the Coastal Coordination Act

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

et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, conceming 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,

ADOPTED RULES February 25, 2011 36 TexReg 1329
commission rules governing air pOllutant emissions must be consistent with the applicable goals and policies of the CMP. The

commission reviewed this action for consistency with the CMP

goals and policies in accordance with the rules of the Coastal

Coordination Council, and detennined that the action is consistent with the applicable CMP goals and policies.

The CMP goal applicable to this rulemaking action is the goal

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

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

§501.12(1)). These amendments will indirectly benefit the environment because reduced emissions resulting from the more

stringent major source thresholds and emission offset requirements of the one-hour ozone standard ensure that there will be

fewer adverse impacts to public health and the environment. The

CMP policy applicable to this rulemaking action is the policy that

commission rules comply with federal regulations in 40 CFR to

protect and enhance air quality in the coastal areas (31 TAC

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

the commission affinns that this rulemaking action is consistent

with CMP goals and policies.

Effect on Sites Subject to the Federal Operating Penmits Program

Chapter 116 is an applicable requirement of 30 TAC Chapter

122, Federal Operating Penmits Program. Owners and operators sUbject to the federal operating penmit program must, consistent with the revision process in Chapter 122, upon the effective date of the adopted rulemaking, revise their operating permit to include the new Chapter 116 requirements. Additionally,

sources subject to the adopted rules may become subject to the

federal operating penmit program. .

PUblic Comment

The commission held a pUblic hearing on September 20,2010.

The comment period closed on September 27, 2010. The

commission received comments from The United States Environmental Protection Agency (EPA), the Texas Industry Project

(TIP), and Zephyr Environmental Corp. (ZEG).

RESPONSE TO COMMENTS

The EPA commented that most of TCEQ's proposed changes

meet federal requirements. The EPA also stated that TCEQ

makes it clear that NNSR applies based on the attainment status of the area where the source is located on the date of penmit

issuance rather than the date of submittal of a complete penmit

application.

The commission appreciates the EPA's support.

The EPA commented that the exceptions to the requirement for

NNSR based on nonattainment status on the date of issuance

of the penmit in §116.150(a)(1-4) must also exist on the date of

issuance of the penmit in order to apply.

The commission agrees with this comment and is making

changes to §116.150(a)(1) - (4) to make clear that the conditions

on which these exceptions are based must exist on the date of

issuance of the permit.

The EPA also commented that the exception in

§116.150(d)(3)(A) that allows major stationary sources with a

potential to emit less than 100 tpy to forego NNSR if the project

increases are offset by a ratio of 1.3 to 1 only applies in serious

or severe ozone nonattainment areas.

36 TexReg 1330 February 25, 2011 Texas Register

The commission agrees with this comment and is changing

§116.150(d)(3)(A) to make clear that this exception only applies

in a serious or severe ozone nonattainment area.

The EPA commented that the exception in §116.150(d)(3)(B) that

allows major stationary sources with a potential to emit greater

than 100 tpy to sUbstitute BACT for lowest achievable emissions

rate is limited to serious and severe ozone nonattainment area

and must specify the federal definition of BACT rather than the

state BACT for minor sources.

The commission agrees with this comment and is changing

§116.150(d)(3)(B) to make clear that this exception only applies

in a serious or severe ozone nonattainment area. Additionally,

the commission is changing §116.150(d)(3)(B) to specifically

state that the BACT equivalent required by the rule is federal

BACT as identified in §116.160(c)(1)(A).

TIP commented that this rulemaking was unnecessary: to ensure anti-backsliding for any Texas ozone nonattainment area;

because it would be superseded by a pending EPA rulemaking;

and because it would create an undue hardship for business.

The commission respectfully disagrees with the comments. Due

to EPA's inconsistent positions on anti-backsliding requirements

and failure to complete rulemaking to fully implement the D.C.

Circuit's opinion in South Coast v. EPA, as discussed earlier in

this preamble, there has been confusion and concern regarding

anti-backsliding requirements, as reflected in other comments

received on this rUlemaking. The rulemaking was necessary to

remove prior adopted rule language that conflicted with then-applicable EPA guidance regarding applicability of major source

thresholds and emission offset requirements. The commission

constantly strives for clarity in its rules, in order for all interested

persons to both understand and implement commission rules

appropriately under state law. As discussed earlier in this preamble, EPA has issued a final rule redesignating the BPA area

as attainment for the 1997 eight-hour ozone standard, and discussing NSR requirements that apply in the BPA area as of October 20, 2010, (75 Federal Register 64675). While this final

rule provides additional guidance regarding EPA's opinions concerning anti-backsliding requirements, this rule does not have

general applicability, and therefore, does not resolve these issues statewide, as assumed by the commenter. Additionally, as

discussed elsewhere in this preamble, EPA specifically disapproved the rule language currently in effect regarding anti-backsliding in §116.10(18) and §116.150(d). Regarding the commenters concern that the rule, if adopted, would create an undue

hardship for business, the commenter provided no infonnation to

support either the type or scope of hardship. No changes were

made to the rules as a result of these comments.

Zephyr commented that it supported the changes to

§116.150(a)(1) - (4) and TCEQ's efforts to obtain a one-hour

ozone attainment designation from the EPA for EI Paso County.

The commission appreciates Zephyr'S support.

SUBCHAPTER A, DEFINITIONS

30 TAC §116.12

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code §5.102,

conceming General Powers, §5.103, concerning Rules, and

§5.105 concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and

duties under the Texas Water Code; Texas Health and Safety
Code, §382.017, which provides the commission with the authority to adopt rules consistent with the poiicy and purposes of

the Texas Clean Air Act (TCAA); §382.011, concerning General

Powers and Duties, which authorizes the commission to control

the quaiity of the state's air; §382.012, concerning Stale Air

Control Plan, which authorizes the commission to prepare and

develop a comprehensive plan for the proper control of the

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

Commission, which authorizes the commission to issue permits

to construct a new facility or modify an existing facility that may

emit air contaminants, and authority to adopt rules necessary to

comply with changes in federal law or regUlations applicable to

penmits issued under the TCAA.

The amendment implements Texas \Nater Code, §5.103; and

Texas Health and Safety Code, §§382.017, 382.012, and

382.051.

§1/6./2. Nonatta;nment and Prevention a/Significant Deterioration

Review Definitions.

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

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

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

control. The tenns in this section are applicable to pennit reviev.' for

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

in §101.J ofthis title (relating to Definitions), thc following words and

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

this title (relating to Nonattainment Reviev.·' Permits and Prevention of

Significant Deterioration Review); and Chapter 116, Subchapter C, Di·

vlsion 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 pre·

cedes 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) of this section relating to baseline actual emissions shaH apply for this purpose.

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

upon a determination that it is more representative of normal source

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

operating hoW'S, production rates. and types of materials processed,

stored, or combusted during the selected time period. The executive

director may presume that the source-specific allowable emissions for

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

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

not begun normal operations on thc particular date, actual emissions

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

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

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

the operating rate, or hours of operation, or both), and the most strin~

gent of the following:

(A) the applicable standards speeified in 40 Code of

Federal RegUlations Part 60 or 61;

(B) thc applicablc 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 eompliance date.

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

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

(A) For any existing electric utilit)' steam generating

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

at which the unit actually emitted the pollutant during any consecutive

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

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

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

(B) For an existing facility (other than an electric utility steam generating unit), baseline actual emissions means the average

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

operator within the ten-year period immediately preceding either the

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

the dale a complete permit application is reccived 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 un·

der 40 Code of Federal Regulations Part 63, had such major stationary

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

(C) For a new facility, thc baseline actual emissions for

purposes ofdetermining the emissions increase that will result from the

initial construction and operation ofsuch unit shall equal zero; and for

all other purposes during the first two years following initial operation,

shall equal the unit's potential to emit.

(D) The actual average rate shall be adjusted downward

to exclude any non-compliant emissions that occurred during the consecutive 24-month period. For each regulated new source review pollutant. when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline 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 detennining 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 thc extent quantifiable. Until.March I, 2016,

emissions previously demonstrated as resulting from planned mainte~

nance, startup, or shutdown activities; historically unauthorized; and

subject to reporting under Chapter 101 ofthis title (relating to General

Air Qualit), Rules) shall be ineluded to the extent that they have been

authorized.

(4) Basic design parameters--For a proeess unit at a steam

electric generating facilit)', the owner or operator may select as its basic design parameters eithcr maximum hourly heat input and maximum

hourly fuel consumption rate or maximum hourly electric output rate

and maximum stcam flow rate. When establishing fuel consumption

specifieations in terms of weight or volume. the minimum fuel quality

based on British thermal units cOntent shall be used for dctermining the

basic design parameters for a coal-fired electric utility steam gencrating unit. Thc basic design parameters for any process unit that is not

at a steam electric generating facility are maximum rate of fuel or heat

input, maximum rate of material input or maximum rate of product

output. Combustion process units will typically use maximum rate of

fucl input. For sources having multiplc end products and raw materials,

the owncr or operatorshall consider the primary product or primary raw

material when selccting a basie design parameter. The owner or opera~

ADOPTED RULES February 25, 2011 36 TexReg 1331
tor may propose an alternative basic design parameter for the source's

process units to the executive director ifthe owner or operator believes

the basic design parameter as defined in this paragraph is nol appropriate for a specific industry or type of process unit. If the executive

director approves of the use of an alternative basic design parameter,

that basic design parameter shall be identified and complianee required

in a condition in a permit that is legally enforceable.

(A) The owner or operator shall use credible information, such as results of historic maximum capability tests, design information from the manufacturer, or engineering calculations. in establishing the magnitude ofthe basic design parameter.

(B) If design information is not available for a process

unit, the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the proeess

unit in the five-year period immediately preeeding the planned activity.

(C) Efficiency of a process unit is not a basic design

parameter.

(5) Begin actual construction-In general, initiation of

physical on-site construction activities on an emissions unit that are

of a permanent nature. Such activities include, but are not limited

to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures.

With respect to a change in method of operation, this term refers to

those on-site activities other than preparator)' activities that mark the

initiation ofthe change.

(6) Building, structure. facility, or installation--All of the

pollutant-emitting activities that belong to the same industrial grouping. are located in one or more contiguous or adjacent properties. and

are under the control of the same person (or persons under common

control). Pollutant-emitting activities are considered to be part ofthe

same industrial grouping ifthey belong to the same "major group" (i.e.,

that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement.

(7) Clean coal technology--Any technology, including

technOlogies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant

reductions in air emissions of sulfur dioxide or oxides of nitrogen

associated with the utilization of coal in the generation of electricity,

or process steam that was not in widespread use as of November 15,

1990.

(8) Clean coal technology demonstration projeet--A

project using funds appropriated under the beading "Department of

Energy-Clean Coal Technology," up to a total amount of $2.5 billion

for commercial demonstration of clean coal technology, or similar

projects funded through appropriations for the United States Environmental Protection Agency. The federal contribution for a qualifying

project shall be at least 20% of the total cost of the demonstration

project.

(9) Comrnence--As applied to construction of a major stationW')' source or major modification, means that the owner or operator

has all necessary preconstruction approvals or permits and either has:

(A) begun, or caused to begin, a continuous program

of actual on-site construction ofthe source, to be completed within a

reasonable time: or

(B) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss

to the ovmer or operator, to undertake a program ofactual construction

ofthe source to be completed within a reasonable time.

36 TexReg 1332 February 25, 2011 Texas Register

(1 0) Construction~-Any physical ehange or change in the

method of operation (including fabrication., erection. installation, demolition, or modification of an emissions unit) that would result in a

change in actual emissions.

(11) Contemporaneous period--For major sourees the period between:

(A) the date that the increase from the particular change

oceurs: and

(B) 60 months prior to the date that construction on the

partieular change Commences.

(12) De minimis thresoold test (netting)--A method of determining if a proposed emission increase will trigger nonattainment

or prevention of significant deterioration review. The summation of

the proposed project emission increase in tons per year with all other

creditable source emission increases and decreases during the contemporaneous period is compared to the significant level for that pollutant,

Ifthe significant level is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required.

(13) Electric utility steam generating unit~-Any steam electric generating unit that is constructed for the purpose of supplying

more than one·third of its potential electric output capacity and more

than 25 megawatts electrical output to any utility power distribution

system for sale. Any steam supplied to a steam distribution system for

the purpose ofproviding steam to a steam-electric generator that would

produce electrical energy for sale is included in determining the electrical energy output capacity ofthe affected facility.

(14) Federally regulated new source review pollutant--As

defined in subparagraphs (A) • (D) ofthis paragraph:

(A) any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors

for such pollutants identified by the United States Envirorunental Pro·

tection Agency;

(B) any pollutant that is subject to any standard promulgated under Federal Clean Air Act (FCAA), §Ill;

(C) any Class I or II substance subject to a standard promulgated under or established by FCAA, Title VI; or

(D) any pollutant that otherwise is subject to regulation

under the FCAA; except that any or all hazardous air pollutants either

listed in FCAA, §112 or added to the list under FCAA, §112(b)(2),

which have not been delisted under FCAA, §1l2(b)(3), are not regulated new source review pollutants unless the listed hazardous air poIlu·

tant is also regulated as a constituent or precursor ofa general pollutant

listed under FCAA, §108.

(15) Lowest achievable emission rate--For any emitting faciIit)', that rate of emissions of a contaminant that does not exceed the

amount allowable under applicable new source performance standards

promulgated by the United States Environmental Protection Agenc)

under 42 United States Code, §74II, and that reflects the following:

(A) the most stringent emission limitation that is con·

tained in the rules and regulations of any approved state implementation plan for a specific class or category offacilit)·, unless the owner or

operator ofthe proposed facility demonstrates that such limitations are

not achievable; or

(B) the most stringent emission limitation that is

achieved in practice by a specific class or category of facilities,

whichever is more stringent.
(16) Major facility--An)' faeiHty that emits or has the potential to emit 100 tons per year or more ofthe plant-wide applicability

limit (PAL) pollutant in an attainment area: or any facility that emits or

has the potential to emit the PAL pollutant in an amount that is equal

to Or greater than the major souree threshold for the PAL pollutant in

Table I ofthis section for nonattainrnent areas.

(17) Major stationary souree--Any stationary source that

emits, or has the potential to emit. a threshold quantity of emissions

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 I ofthis section for nonattainrnent pollutants and the major source thresholds for

prevention of significant deterioration pollutants are identified in 40

Code ofFederal Regulations (CFR) §51.166(b)(I). A source that emits,

or has the potential to emit a federally rcgulated new source review pollutant at levels greater than those identified in 40 CFR §51.166(b)(I)

is considered major for all prevention of significant 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 source belongs to one of the categories of stationary sources

listed in 40 CFR §51.165(a)(I)(iv)(C).

(18) Major modification--As follows.

(A) Any physical change in, or change in the method of

operation of a major stationary source that causes a significant project

emissions increase and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary source

that is not major prior to the increase, the increase by itself must equal

or exceed that specified for a major source. At an existing major stationary source, the increase must equal or exceed that specified for a

major modification to be significant. The major source and significant

thresholds are provided in Table I ofthis section for nonattainment pollutants. The major source and significant thresholds for prevention of

significant deterioration pollutants are identified in 40 Code of Federal

Regulations §51.166(b)(I) and (23), respectively.

Figure: 30 TAC §1I6.12(18)(A)

(B) A physical change or change in the method of operation shall not include:

(i) routine maintenance, repair, and replacement;

(ii) use of an alternative fuel or raw material by reason ofan order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by

reason of a natural gas curtailment plan under the Federal Power Act;

(iiI) use of an alternative fuel by reason of an order

or rule of 42 United States Code, §7425;

(Iv) use of an alternative fuel at a steam generating

unit to the extent that the fuel is generated from municipal solid waste;

tv) use of an alternative fuel or raw material by a

stationary source that the source was capable ofaccommodating before

December 21, 1976 (unless such change would be prohibited under any

federally enforceable pennit condition established after December 21,

1976) or the source is approved to use under any pennit 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 pennit condition that was established aftcr December 21.-

1976);

(Vii) any change in ownership at a stationary source;

(viii) any ehange in emissions of a pollutant at a site

that occurs under an existing plant-wide applieability limit;

(ix) the installation, operation, cessation, or removal

of a temporary elean coal technology demonstration projeet, provided

that the project complies with the state implementation plan and other

requirements necessary to attain and maintain the national ambient air

quality standard during the project and after it is tenninated;

(x) for prevention ofsignifieant deterioration reviey,

onl)~ the installation or operation ofa pennanent clcan coal technology

demonstration project that constitutes re-powering, provided that the

project does not result in an increase in the potential to emit of any

regulated pollutant emitted by the unit. This exemption shall apply on

a pollutant-by-pollutant basis; or

(xi) for prevention of significant deterioration review only, the reactivation of a clean coal-fired electric utility steam

generating unit.

(19) Necessary preconstruction approvals or permits--Those pennits or approvals required under federal air quality

control laws and regulations and those air quality control laws and

regulations that are part ofthe applicable state implementation plan.

(20) Net emissions increase--The amount by which the

sum ofthe following exceeds zero: the project emissions increase plus

any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases.

Baseline actual emissions shall be used to detennine emissions increases and decreases.

(A) An increase or decrease in emissions is creditable

only ifthe following conditions are met:

(i) it occurs during the contemporaneous period;

(ii) the executive director has not relied on it in issuing a federal new source review pennit for the source and that pennit

is in effect when the increase in emissions from the particular change

occurs; and

(iii) in the case of prevention ofsignifican1 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 ofmaximum allowable increases

remaining availablc.

(B) An increase in emissions is creditable ifit is the result ofa physical ehange in, or change in the method ofoperation ofa

stationary souree only to the extent that the new level of emissions exceeds the baseline actual emission rate. Emission increases at facilities

under a plant-wide applicabilit)' limit are not creditable.

(C) A decrease in emissions is creditable only to the extent that all ofthe following conditions are met:

fi) the baseline actual emission rate exceeds the new

level of emissions:

00 it is federally enforceable at and after the time

that actual construction on the particular change begins;

(iii) the executive director has not relied on it in issuing a prevention ofsignificant deterioration or a nonattainment pennit;

(TV) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the

increase from the particular change: and

ADOPTED RULES February 25, 2011 36 TexReg 1333
(v) in the case of nonattainment applicabilit) analysis only. the state has not relied on the decrease to demonstrate attainment or reasonable further progress.

(D) An increase that results {Tom a physical change at a

source occurs when the emissions unit on which construction occurred

becomes operational and begins to emit a particular pollutant. An)

replacement unit that requires shakedown beeomes operational only

after a reasonable shakedown period. not to exeeed 180 days.

(21) Offset ratio·-For the purpose of satisfying the

emissions offset reduction requirements of 42 United States Code,

§7503(a)(1 )(A). the emissions offset ratio is the ratio of total actual

reductions ofemissions to total emissions increases ofsuch pollutants.

The minimum offset ratios are included in Table I ofthis seetion 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

]01, Subchapter H, Division] or 4 ofthis title (relating to Emission

Credit Banking and Trading; or Discrete Emission Credit Banking and

Trading), except as provided for in §116.170(b) ofthis title (relating to

Applicabilit)' ofEmission Reductions as Offsets). Th~ reduction must

not have been relied on in the issuance of a previous nonattainment or

prevention of significant deterioration permit.

(22) Plant-wide applicability limit--An emission limitation

expressed. in tons per year, for a pollutant at a major stationary source.

that is enforceable and established in a plant-wide applicability limit

pennit under §] 16.] 86 ofthis title (relating to General and Special Conditions).

(23) Plant-wide applicability limit effective date--The date

ofissuance ofthe plant.wide applicability limit permit~ The plant·wide

applicabilit), limit effeetive date for a plant-wide applieability limit established in an existing flexible permit is the date that the flexible permit

was issued.

(24) Plant-wide applicability limit major modifica·

tion--An)' physical change in. or change in the method of operation

of the plant-wide applicability limit source that eauses it to emit the

plant-wide applicability limit pollutant at a level equal to or greater

than the plant-wide applicabilit), limit.

(25) Plant-wide applicabilit)" limit permit-·The new source

review permit that establishes the plant-wide applicabilit)' limit.

(26) Plant-wide applicability limit pollutant--The pollutant

for which a plant-wide applicabilit), limit is established at a major statiOIUlT)' source.

(27) Potential to emit--The maximum eapacit)' ofa stationary source to emit a pollutant under its physical and operational design.

Any physical or enforceable operational limitation on the capacity of

the stationaJ)' source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or

. amount ofmaterial combusted, stored, or processed, may be treated as

part of its design only if the limitation or the effeet it would have on

emissions is federally enforceable. Secondw): emissions, as defined

in 40 Code of Federal Regulations §5].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 sourcewitle creditable emission decreases proposed at the source between the date of application for

the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to detennine emissions

increases and decreases. Increases and decreases must meet the creditabilit)· criteria listed under the definition ofnet emissions increase in

this section.

36 TexReg 1334 February 25, 2011 Texas Register

(29) Projected actual emissions--The maximum annual

rate. in tons per year. at which an existing facility is projected to

emit a federall)' regulated new source review pollutant in any rolling

l2-month period during the five years following the date the facility

resumes regular operation aftcr the project, or in an)" one of the ten

years following that date. if the project involves increasing the facility's design capacity or its potential to emit that federally regulated

new soUrce review pollutant. In determining the projected actual

emissions. the O'WTler or operator of the major stationaJ)" source shall

include unauthorized emissions from planned maintenance. startup, or

shutdo\\TI activities, which were historically unauthorized and subject

to reporting under Chapter 101 of this title, to the extent they have

been authorized, or are being authorized; and fugitive emissions to

the extent quantifiable; and shall consider all relevant information,

including, but not limited to. historical operational data. the company's

own representations. the company's expeeted 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--The sum of emissions increases for each modified or affected facility determined using the following methods:

(A) for existing facilities. the difference between the

projected actual emissions and the baseline actual emissions. In calculating an)' increase in emissions that results from the project, that

portion of the facility's emissions following the project that the facility could have accommodated during the consecutive 24-month period

used to establish the baseline actual emissions and that are also unrelated to the partieular project, including any increased utilization due

to product demand grov.1h may be excluded from the projeet emission

increase. The potential to emit from the facility following completion

of the project may be used in lieu ofthe projected acrual emission rate;

and

(B) for new faeilities. the difference bemeen the potential to emit from the facilit)' following completion of the project and

the baseline actual emissions.

(3 l) Replacement facility--A facilit)· that satisfies the following criteria: .

(A) the facility is a reconstructed unit within the meaning of 40 Code of Federal Regulations §60.15(b)(1), 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;

(D) the replaced facilit)' is pennanentl)' removed from

the major stationary souree, otherwise pennanently disabled, or permanently barred from operation by a permit that is enforceable. lfthe

replaced facilit)' is brought back into operation, it shall constitute a

new facility. No creditable emission reductions shall be generated from

shutting do'Yt'Il the existing facilit)' that is replaced. A replacement facHit), is considered an existing facility for the purpose of detennining

federal new souree review applicabilit)'.

(32) Secondary emissions--Emissions that would oecur as

a result of the construction or operation of a major stationary source

or major modification, but do not come from the Source or modification itself. Secondary emissions must be specific, well-defined. quantifiable, and impact the same genera] area as the stationaJ)' source or

modification that causes the secondary emissions. Secondary emis~

sions include emissions from any off-site support facility that would
This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD-201100545

Robert Martinez

Diredor, Environmental Law Division

Texas Commission on Environmental Quality

Effedive date: March 3, 2011

Proposal publication date: August 27,2010

For further information, please call: (512) 239-0177

not be constructed or increase its emissions. except as a result of the

construction or operation ofthe major stationary source or major mod~

ification. Secondary emissions do not include any emissions that come

directly from a mobile source such as emissions from the tail pipe of a

motor vehicle, from a train, or from a vessel.

(33) Significant facility··A facility that emits or has the potential to emit a plant-wide applicability limit (PAL) pollutant in an

wnount that is equal to or greaterthan the significant level for that PAL

pollutant.

(34) Small facility--A facility that emits or has the potential

to emit the plant-wide applicability limit (PAL) pollutant in an wnount

less than the significant level for that PAL pollutant.

(35) Stationary sourcc--Any building. structure, facility, or

installation that emits ormay emit any air pollutant subject to regulation

under 42 United States Code, §§7401 et seq.

(36) Temporary clean coal technology demonstration

project··A clean coal technology demonstration project that is operated for a period offive years or less, and that complies with the state

implementation plan and othcr requirements necessary to attain and

maintain the national wnbient air quality standards during the project

and after it is terminated.

SUBCHAPTER B. NEW SOURCE REVIEW

PERMITS

DIVISION 5. NONATTAINMENT REVIEW

PERMITS

30 TAC §1l6.150

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code, §5.102,

conceming General Powers, §5.103, concerning Rules, and

§5.105 conceming General Policy, which authorize the commission to adopt rules as necessary to carry out its power and

duties under the Texas water Code; Texas Health and Safety

Code, §382.017, which provides the commission with the authority to adopt rUles consistent with the pOlicy and purposes of

the Texas Clean Air Act (TCM); §382.011, concerning General

Powers and Duties, which authorizes the commission to control

the quality of the state's air; §382.012, conceming State Air

Control Plan, which authorizes the commission to prepare and

develop a comprehensive plan for the proper control of the

state's air; and §382.051, concerning Permitting Authority of the

Commission, which authorizes the commission to issue permits

to construct a new facility or modify an existing facility that may

• • •

emit air contaminants, and authority to adopt rules necessary to

comply with changes in federal law or regulations applicable to

permits issued under the TCM.

The adopted amendment implements Texas water Code,

§5.103; and Texas Health and Safety Code, §§382.017,

382.012, and 382.051.

§116.150. 1\'ew Major Source or Major Modification in Ozone !\'onaftainment Areas.

(a) This section applies to all new source rcview authorizations

for new construction or modification offacilities that will be located in

any area designated as nonattainment for ozone under 42 United States

Code (USC), §§7407 et seq. as of the datc of issuance of the permit,

unless the following apply on the date of issuancc ofthe permit:

(1) the Unitcd States Environmental Protection Agency

(EPA) has made a finding of attainment;

(2) the EPA has approved the removal of nonattainment

New Source Review requirements from the area;

(3) the EPA has detcnnined that Prevention of Significant

Deterioration requirements apply in the area; or

(4) the EPA determines that nonattainment NSR is no

longer required for purposes of antibacksliding.

(b) The owncr or operator of a proposed new major stationary

source. as defincd in §116.12 ofthis title (relating to Nonattainment and

Prevention ofSignificant Deterioration Review Definitions) of"olatile

organic compound (VOC) emissions or nitrogen oxides (NO) cmissions, or the owncr or operator ofan existing stationary source ofVOC

or NO" emissions that will undergo a major modification, as defined

in §116.12 ofthis title with respect to VOC or NO", shall mect the requirements ofsubsection (d)(I) - (4) ofthis section, except as provided

in subsection (e) of this section, Table I, located in the definition of

major modification in §116.12 of this title, specifics the various classifications of nonattainment along with the associated emission levels

that designate a major stationary source and significant level for those

classifications.

(c) Except as noted in subsection (e) ofthis section regarding

NO", the dc minimis threshold test (netting) is required for all modifications to existing major sources of VOC or NO", unless at least one

ofthe following conditions are met:

(I) thc proposed emissions increases associated with a

project, without regard to decreases, is less than five tons per year (tpy)

of thc individual nonattainment pollutant in areas classified under

Federal Clean Air Act (FCAA), Title I, Part D. Subpart 2 (42 USC,

§7511) classified as Serious or Severe;

(2) the proposed emissions increascs associatcd with a

project. without regard to decreases, is less than 40 tpy of thc individual nonattainment pollutant in areas classified under FCAA, Title

I, Part D. Subpart I (42 USC. §7502) and for those under FCAA.

Title I, Part D, Subpart 2 (42 USC, §7511) classified as Marginal or

Moderate~ or

(3) the project emissions increases arc less than the significant level stated in Table I located in thc definition of major modification in §116.12 of this title and when coupled with project actual

emissions decreases for the same pollutant, summed as the project net,

are less than or equal to zero tpy.

(d) In applying the de minimis threshold test, if the net emis·

sions increases are greater than the significant levels stated in Tablc I

located in the definition of major modification in §116.12 of this title,

the following requirements apply.

ADOPTED RULES February 25, 2011 36 TexReg 1335
(1) The proposed facility shall comply with the lowest

achievable emission rate (LAER) as defined in § 116.] 2 of this title

for the nonattainment pollutants for which the faeility is a new major

souree or major modifieation exeept as provided in paragraph (3)(B)

ofthis subsection and exeept 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 (BACT) can be substituted for LAER. LAER shall otherwise be applied to each new facility and to each existing facility at

which the net emissions increase will occur as a result of a physical

change or changc in method of operation ofthe unit.

(2) All major stationary sources owned or operated by the

applicant (or by any person eontrolling, controlled by, or under common control with the applicant) in the state must be in compliance or

on a schedule for compliance with all applicable state and federal emission limitations and standards.

(3) At the time the new or modified facility or faeilities

commence operation, the emissions increases from the new or modified facility Or faeilities must be offset. The proposed facility shall

use the offset ratio for the appropriate nonattainrnent classification as

defined in §116.12 ofthis title and shown in Table I located in the definition of major modification in §116.12 of this 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 located in a serious or severe ozone nonattainment area with a PTE of less than 100 tpy of an

applicable nonattainment pollutant are not required to undergo nOnattainmcnt new source review under this section. ifthe project increases

are offset with internal offsets at a ratio of at least 1.3 to 1.

(B) Major stationary sources located in-a serious or severe ozone nonattainment area with a PTE of greater than or equal to

IOOtpy ofan applicable nonattainrnent pollutant can substitute federal

BACT (as identified in §116.160(c)(l)(A) of thistitle (relating to Pre·

vention of Significant Deterioration Requirements) for LAER. if thc

project increases are offset with internal offsets at a ratio of at least 1.3

to I. internal offsets used in this manner can also be applied to satis£)

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. Thc analysis

must demonstrate that the benefits ofthe proposed location and source

configuration significantly outweigh the environmental and social costs

ofthat location.

(e) For sources located in the EI Paso ozone nonattainment

area as defined in 40 Code ofFederal Regulations, Part 81, the requirements of this section do not apply to NO:" emissions.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on February 11,

2011.

TRD·2011 00546

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

36 TexReg 1336 February 25, 2011 Texas Register

• • •

TITLE 31. NATURAL RESOURCES AND

CONSERVATION

PART 1. GENERAL LAND OFFlCE

CHAPTER 7. SURVEYING

31 TAC §§7.1 - 7.4, 7.6, 7.7

The General Land Office (GLO) adopts the repeal of certain sections in Title 31, Part 1, Chapter 7 of the Texas Administrative

Code. The sections repealed are §7.1, relating to Forms,§7.2,

relating to Coastal Lands, §7.3, relating to Deeds ofAcqUittance,

§7.4, relating to Corrected Patents, §7.6, relating to Surveyor's

Maps or Plats, and §7.7, relating to Surveyor's Reports, General.

These sections are repealed without changes to the proposal as

published in the December 10, 2010, issue of the Texas Regis·

ter (35 TexReg 10904) and will not be republished. The repeal

results from the quadrennial reView of Chapter 7, reqUired by

Texas Government Code §2001.039.

BACKGROUND AND ANALYSIS OF REPEALED SECTIONS

Following the publication of its Notice of Intent to Review in the

June 25,2010, issue of the Texas Regis/er (35 TexReg 5583),

the GLO reviewed all rules in Chapter 7 and determined that

some of these rules should be modified. In order to accomplish the modification of these rules, the GLO determined that

the rules to be modified should be repealed and, immediately

thereafter, replacement rules should be adopted in their place.

Therefore, concurrently with this repeal of §§7.1 ·7.4,7.6, and

7.7, the GLO is adopting new §§7.1 - 7.4, 7.6, and 7.7 that will

replace the repeaied sections. The sections to be adopted have

been modified to make the rules more clear and comprehensible to the public and to the GLO. Additionally, the sections to be

adopted have been modified to more accurately reflect the current practices and policies of the GLO.

REASONED JUSTIFICATION FOR REPEAL

The public will benefit from the repeal olthese sections because

the adoption of the new rules to replace the repealed sections

will streamline the various processes related to surveying public

lands and provide the pUblic with a clearer understanding of the

policies and procedures of the GLO related thereto.

ENVIRONMENTAL REGULATORY ANALYSIS

The GLO evaluated the repeal of these sections in light of the

regulatory analysis reqUirements of Texas Government Code

§2001.0225 and determined that the action is not SUbject to

§2001.0225 because it does not exceed express requirements

of state law and does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental

rule" means a rule of which the specific intent is to protect the

environment or reduce risks to human health from environmental exposure and that may adversely affect the economy,

a sector of the economy, productivity, competition, jobs, the

environment, or public health and safety of the state or a sector

of the state. The repeal of these sections is not anticipated to

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, or

the public health and safety of the state or a sector of the state.

PUBLIC COMMENT REQUEST

No comments were received on the repealed sections.
7ABLES&=====================

gRAPHICS Graphic images included in roles are published separately in this tables and graphics

section. Graphic images are arranged in this section in the following order: Title Number,

Part Number, Chapter Number and Section Number.

Graphic images are indicated in the text ofthe emergency, proposed, and adopted roles by the following tag: the word "Figure"

followed by the TAC citation, role number, and the appropriate subsection, paragraph, subparagraph, and so on.

TABLES AND GRAPHICS February 25, 2011 36 Tex.Reg 1347
Figure: 30 TAC §116.12(18XA)

TABLE I

MAJOR SOURCEIMAJOR MODmCATION EMISSION THRESHOLDS

POllUTANT MAJOR SOURCE SIGNIFICANT OFFSET RATIO

designationI tons!year LEVEL2 taos1year minimum

OZONE (VOC, NOx)'

Imargina1 100 40 1.10 to I

Dmoderate 100 40 1.15 to I

IDserious SO 2S 1.20 to I

IV severe 25 25 1.30 to I

CO

I moderate 100 100 1.00 to I"

Dserious SO SO 1.00 to I"

100 40 l.OOto I"

PM,.

I moderate 100 IS l.OOto I"

Dserious 70 IS 1.00 to I"

NO: 100 40 l.OOto I"

Lead 100 0.6 l.OOto I"

I Texas nonatlainment area designations as defined in §101.1(70) ofthis title.

2 The significant level is applicable only to existing major sources and shall be evaluated after netting,

unleas the applicant chooses to apply nonattainment new source review (NNSR) directly to the

project. The appropriate netting triggers for existing major sources of NOx and VOC are specified in

§116.1SO of this title (relating to New Major Source or Major Modification in Ozone Nonattainment

Areas) and for other pollutants are equal to the significant level listed in this table.

, VOC and NOx are precursors to ozone formation and should be quantified individually to determine

whether a source is subject to NNSR under §116.1SO ofthis title.

36 TexReg 1348 February 25, 2011 Texas Register
• ••

Correction ofError

The Texas Commission on Environmental Quality (TCEQ) adopted

amendments to 30 TAC §§Jl6.12, 116.1 I5.116.180,116.182, 116.186,

116.188. Jl6.190. 116.192,116.601, and Jl6.6J7; new §116.127: and

reeport, Brazoria County: TYPE OF FACILITY: polyethylene plan

R LE VIOLATED: 30 TAC §101.20(l) and §Jl6.115(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:

RN100219708; OCATlON: Houston, Harris oun!)'; 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.Jl5(c) and §122.143( • and THSC §382.085(b), by failing to

produce monthly reports th demonstr e the emissions from each

Emission Point Number. the c tings'V. C content, and the coatings'

hazardous air pollutant content; OP mber 0-01107, STC Number

3.A.(iv)l, 30 TAC §122.143(4), d SC, §382.085(b), by failing to

conduct quarterly opacity readin . 30 TAC §122.142(b)(2)(A) and

THSC, §382.085(b), by failing to . elude the applicability of 40 CPR

Part 63, Subpart MMMM in FO umber 0-01107; FOP Number

0-01107, STC Number 4, NS e 't Number 18557, SC Number

3.B., 40 CPR §63.391O(b) an (c),3 TAC §§Jl3.960, Jl6.115(c),

and 122.143(4), and THSC, ,382.085 ), by failing to submit an

initial notification and initi compliance eport for 40 CPR Part 63,

Subpart MMMM; and FOR umber 0-01 07, STC Number 4, NSR

Permit Number 18557, S Number 3.B., 0 CPR §63.3920(a), 30

TAC §§l 13.960, 116.115 ), and 122.143(4), d THSC, §382.085(b),

by failing to submit mi-annual complian reports for 40 CFR

Part 63, Subpart ; PENALTY: $66,0 ; ENFORCEMENT

COORDINATOR: ecca Johnson, (361) 82 3420; REGIONAL

OFFICE: 5425 Pol Avenue, Suite H, Houston, exas 77023-1486,

(713) 767-3500.

(30) COMP ast Company,

L.P.; DOC NUMBER: 20 I0-1476-AIR-E; ENTIFlER:

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 OFFlCE: 2309 Gravel Drive, Fort Worth,

Texas 118-6951, (817) 588-5800.

TRD· 01100732

Kat een C. Decker

Di etor, Litigation Division

1i xas Commission on Environmental Quality

iled: February 22, 2011

very 60 days to ensure that the rectifier and other system componentp

operating properly: 30 TAC §334.50(b)(I)(A) and the Co ,

§2 .3475(c)(I), by failing to monitor the USTs for releases: 30 C

§33 .50(b)(2)(A)(i)(1ll) and the Code, §26.3475(a), by faili to

test e line leak detecto rs at least once per year for perfo ance

and 0 rational reliability: 30 TAC §334.50(b)(2)(B) and thc ode,

§26.34 5(b), by failing to provide proper release detection or the

suction iping associated with the USTs; 30 TAC §334.50(d) )(B)(ii)

and the ode, §26.3475(c)(I), by failing to provide releas detection

for the U T system by failing to conduct reconciliation inventory

control at ast once each month, sufficiently accurat to detect a

release as s II as the sum of 1.0% ofthe total substance ow-through

for the man plus 130 gallons: and 30 TAC §334.50( )(1 )(B)(iii)(f)

and the Code, §26.3475(c)(I), by failing to record iny, ntory volume

measurement f4 the regulated substance inputs, with awals, and the

amount still re . ing in the tank each operating ay; PENALTY:

$4,996; ENFOR EMENT COORDINATOR: EI a Maske, (512)

239-0789; REG! AL OFFICE: 2309 Gravel rive, Fort Worth,

Texas 76118-695], 817) 588-5800.

(24) COMPANY: MBLEWOOD UTILI & WATER SUPPLY CORPORATIO ; DOCKET NUMBE 2010-1727-UTL-E:

IDENTIFIER: RNI02 79370; LOCATION: arris County: TYPE

OF FACILITY: PWS; ULE VIOLATED: 30 TAC §290.39(0)(l),

§291.162(a) and G) an the Code, §13. 95(b)(2), by failing to

adopt and submit to the xecutive direc r for approval an emergency preparedness plan t at demonstr es the facility's ability to

provide emergency operatio s; PENAL : M20; ENFORCEMENT

COORDINATOR: Katy Sch ann, 12) 239-2602; REGIONAL

OFFICE: 5425 Polk Avenue, uite Houston, Texas 77023-1486,

(713) 767·3500.

(25) COMPANY: Steubing F , Limited; DOCKET NUMBER:

2010-1 761-EAQ·E; IDENTIFIE : RN I05929160; LOCATION:

San Antonio, Bexar County; E OF FACILITY: construction

site; RULE VIOLATED: 30 T . 13.4(a)(I), by failing to obtain

approval of a water pollution tern t plan prior to beginning a regulated activity over the Edwar Aqui r Recharge Zone; PENALTY:

$750; ENFORCEMENT RDIN TOR: Jordan Jones, (512)

239-2569; REGIONAL OF ICE: 1425 Judson Road, San Antonio,

Texas 78233-4480, (210) 4 0-3096.

(26) COMPANY: Sunbe Fresh Water S ply District; DOCKET

NUMBER: 2010-2046- WD-E; IDENTI R: RNI02075413; LOCATION: Harris Coun ; TYPE OF FACILI : wastewater treatment

plant; RULE VIOLA: D: the Code, §26.121(a 30 TAC §305.125(1),

and TPDES Permit umber WQ001179100I, Effluent Limitations

and Monitoring Re irements Number I, by fi ing to comply with

pennitted effluent itations for NH;N, and flo PENALTY: $970;

ENFORCEMEN COORDINATOR: Thomas J chB, 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 Coun!) TYPE OF

FACILITY. PWS; RULE VIOLATED: 30 TAC §2 0.39(0)(1),

§291.l62 ) 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 faeili!)" s abili!)' to rovide

emerg cy operations; PENALTY: $436; ENFORC NT

COO INATOR: Amanda Henry, (713) 767-3672; REGI NAL

OFF: CE: 5425 Polk Avenue, Suite H, Houston. Texas 77023- 486.

(71 ) 767-3500.

( ) COMPANY: The Dow Chemical Company: DOCKET NU -

ER: 2010-1781-AIR-E; IDENTIFIER: RNlOO225945; LOCATIO

36 TexReg 1590 March 4, 2011 Texas Register
d order was entered regarding Oscar Palacios dba Tre PalaPit, Docket No. 2010-0013-MSW-E on February 14, OIl

g $7,500 in administrative penalties.

Inti ation concerning any aspect of this order may be obtained

co !acting Stephanie 1. Frazee, StaffAttorney at (512) 239-3400, Tex

mmission on Environmental Quality, P.O. Box 13087, Austin, Tex

711-3087.

Information concerning any

contacting Anna M. Tread

Texas Commission on E

Austin, Texas 78711-3087

An agreed order was tered regarding

TOOL, INC., Docket N . 2009-2004-MLMc

assessing S13,490 in inistrative penalties.

Information conce . g any aspect of this order

contacting Laurenc' Fasoyiro, Staff Attorney

Texas Commissio on Environmental Quality,

Austin, Texas 787. 1·3087.

An agreed order as entered regarding Cit)' of Dallas

Docket No.2 -2053-WQ-E on February 14,2011

in administrat' e penalties.

Information ncerning any aspect of this order may be

contacting y L. Mitchell, StaffAttorney at(512) 239-3 00, Texas

Commissi n on Environmental Quality, P.O. Box 13087, Aus' Texas

78711-3 7.

n agreed order was entered regarding BASF Catalysts LLC, Dock

. 2009-1271-AlR-E on February 14. 20ll assessing $4,365 in'

mi istrative penalties with $873 deferred.

Info ation concerning any aspect of this order may be ob ned

by c tacting Nadia Hameed,. Enforcement Coordinator at 713)

767-3 9. Texas Commission on Environmental Quality, P.. Box

13087, ustin, Texas 78711-3087.

An agree order was entered regarding City ofOakwood. D cket No.

2009-130 MWD-E on February 14,2011 assessing $5,37 in administrative pe hies.

Information neerning any aspect of this order may b obtained by

contacting M hall Coover, Staff Attorney at (512) 2 -0620, Texas

Commission on nvironmental Quality, P.O. Box 1308 , Austin, Texas

78711-3087.

An agreed order entered regarding David L. S effield dba Texas

Landing Utilities, ocket No. 2009-1556-PWS on February 14,

2011 assessing $273' administrative penalties tb $54 deferred.

Information concernin an)' aspect of this ord may be obtained by

contacting Andrea Lin n-Mgbeoduru, Enfo ement ·Coordinator at

(512) 239-1482, Texas ommission On Env' omental Quality, P.O.

Box 13087, AuStin, Texa 787ll-3087.

. An agreed order was ente regarding FI Community Water Supply

Corporation, Docket No. 09-1652-P S-E on February 14, 2011

assessing $1,510 in admini tive pen es.

Information concerning any ct of is order may be obtained by

contacting TammyL.MiteheIl,S iT omeyat(512)239-3400, Texas

Commission on Environmental Q r , P.O. Box 13087, Austin, Texas

78711-3087.

•

• • •

the repeal of§ 116.121 in the February 25. 201 L issue ofthe Texas Register (36 TexReg 1305).

In the Same issue, TCEQ adopted separate rulemaking actions for 30

TAC §116.12 and §1l6.150, which appear on page 1324.

Due to errors in the rule text submitted by TCEQ, the phrase ". or are

being authorized" was omitted from §116.12(3)(E) on both page 1313

and page 1331.

The corrected subparagraph reads as follows:

"(E) The actual average emissions rate shall include fugitive emissions

to the extent quantifiable. Until March I, 2016, emissions previously

demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter 101 ofthis title (relating to General Air Quality Rules)

shall be included to the extent that they have been authorized,. or are

being authorized."

TRD·201100758

"Where:

"n = total number fVOC species in process stre

"ESL. = the efli ts screening level in J.lglm3 for the c

evaluated (pu tShed in the most recent edition ofthe

"t:, = the w . ht fraction ofthe appropriate VOC species

all other C in process stream."

Th Texas Commission on Environmental Quality (TCEQ) adopte e

repe of30 TAC §106.352 and new §106.352 in the February 18, OIl,

issue the Texas Register (36 TexR.eg 943).

TAC §106.352(m) was published in the on-line (lition of

the Texas egister, but was omitted from the print Texas gister because ofth ength ofthe tables.

On page 340 e on-line graphic, Table 9, first colum , the tenth row

should read:

"Instrument monit . g is notrequired when the a

sure or vapor press is less than 0.044 psia at

process operating te rature. "

INADDITION March 4, 2011 36 Tex.Reg 1591
RECEIVED /,;(~ 70 "l Bryan WShaw, Ph,D" Chairman P't cq\~," r'~l-'L

Buddy Garcia, Commissioner t~ I' f{~ ,'" I'i~,/~'1 E:; t t WAY 3I pw 2: 13

Carlos Rubinstein, Commissioner \:: ~, ' ~' n n

Mark R. Vickery, P,G" Execullve Director 11 JU~1 7\ 4B _______yo EXTERNAL AFFAIRS DIVISION

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing andPreventing Pollution

6RA..!.."n-;c:-.' 6EN ..

6DRA....tJ~'''<;1 10 6WQ.. ..

6MD....•..•...••6SF...•.•••...••...•.

60EJ.....••..•••6RC.••••'" •••.....•.

6PD.otis'..:~d ...6XA."~I...••.••.••

May 26, 2011

Docket No. 2008-1631-RUL

91 7108 2133 3934 5803 4585

Alfredo Armendariz, Ph.D.

Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Dr. Armendariz:

On February 9,2011, the Texas Commission on Environmental Quality (Commission) adopted

revisions to the State Implementation Plan (SIP) and amendments to § 101.1 of 30 TAC Chapter

101, General Air Quality Rules, and §§ 116.12 and 116.150 of 30 TAC Chapter 116, Control ofAir

Pollution by Permits for New Construction or Modification, and corresponding revisions to the

state implementation plan. The commission mailed this SIP revision request to you for your

consideration on March 11, 2011.

The commission staff recently became aware of an inadvertent error in the adoption of

amendments to § 101.1 of 30 TAC Chapter 101, General Air Quality Rules. The error occurred in

both the proposal, which was noticed in the August 27,2010 issue ofthe Texas Register (35

TexReg 7676, 7686), and in the adoption, which was noticed in the February 25, 2011, issue of

the Texas Register (36 TexReg 1294, 1304). The commission inadvertently included incorrect

language in § 101.1(115), which was not being proposed for changes~

The language of § 101.1 used for the proposed and adopted amendment did not include updated

changes to § 101.1(115), as on file with the secretary ofstate (SOS). The incorrect text states:

"(115) Volatile organic compound-As defined in 40 Code of Federal Regulations § 51.100(S)(2)

- (4), as amended on November 24,2004 (69 FR 69290)". The correct text, on file with the

SOS, states: "(115) Volatile organic compound-As defined in 40 Code of Federal Regulations

§ 51.100(s)(2) - (4), as amended on January 21,2009 (74 FR 3441).

The commission submitted an error correction notice to the Texas Register on April 13, 2011, to

make clear that the commission did not provide notice of, nor take comment on, changes to the

text of § 101.1(115), and did not intend to make changes to the official text. This notice was

published in the April 22, 2011 issue ofthe Texas Register (36 TexReg 2623).

P,O, Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
Enclosed are copies ofboth the April 13, 2011 letter requesting the error correction notice and

the April 22, 2011 published notice to be added to the record for the March 11, 2011 SIP

submittal. I look forward to your expeditious approval ofthese SIP revisions.

Sincerely,

~o::~.~ Chairman

BWSjTGS

Enclosures
cc: The Honorable Rick Perry, Governor of Texas

Mr. Toby Baker, Office of Budget, Planning and Policy, Office of the Governor

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental

Quality
Bryan W. Shaw, Ph.D., Chainnan

Buddy Garcia, Commissioner

Carlos Rubinstein, Commissioner

MarkR Vickery, P.G.,ErecutiueDirector

TExAs COMMISSION ON ENVIRONMENTAL QUALI1Y

Protecting Texas by Reducing and Preventing Pollution

April 13, 2011

Mr. Dan Procter

Director, Texas Register

Office ofthe Secretary of State

P.O. Box 13824

Austin, Texas 78711-3824

Dear Mr. Procter:

The Texas Commission on Environmental Quality (commission) respectfully requests that the

following error submitted be memorialized. The error as submitted by the commission occurred

in both the proposal, which was noticed in the August 27, 2010, issue of the Texas Register (3S

TexReg 7676, 7686), and in the adoption, which was noticed in the February 2S, 2011, issue of

the Texas Register (36 TexReg 1294, 1304). As part ofthis ruJemaking, the commission

inadvertently included incorrect language in §lOl.1(l1S), whichwas not being proposed for

changes.

On 3S TexReg 7686 of the proposal and on 36 TexReg 1304 ofthe adoption, the language of

§101.1 used for the adopted amendment did not include updated changesto §101.1(l1S), as on

file with the secretary ofstate (SOS). The incorrect text states: "(l1S) Volatile organic

compound--As defined in 40 Code of Federal Regulations §Sl.1oo(s), except §S1.100(S)(2) - (4),

as amended on November 29,2004 (69 FR 69290)". The correct text, onffie With the SOS,

states: "(l1S) Volatile organic compound-As defined in 4Q. Code of Federal Regulations

§Sl.loo(s), except §S1.100(S)(2) - (4), as amended on January 21,2009 (74 FR 3441).

The commission submits this correction notice to make clear that the commission did not

provide notice of, nor take co=ent on, changes to the text of §101.1(l1S), and did not intend to

make changes to the official text of §101.1(l1S). This notice is provided to ensure that the public

is notified ofthis inadvertent error as submitted by the co=ission, and that the text of

§lOl.1(l1S) remains as it existed on file with the secretary ofstate, and not as represented in the

adopted rule published in the TexasRegister on February 2S, 2011 (36 TexReg 1304).

I have enclosed a copy ofthe publications that have been marked to show the error. Please call

me at 239-6087 ifyou have any questions. Thank you for your help and immediate attention to

the correction of error. .

Respectfully,

I(f(}:fJu1MJ .dVwiru

Patricia Duron

TR-SOS Liaison

PD/sw

Enclosure

P.O. Box 13087 • Austin, Texas 78711-3087 • 5'2-239-1000 • tceq.texas.goy

How is our customer service? tceq.texas.gov/goto/customersurvey

prinled on recycled paper
Dne - how) Ei9hf-hwr ruJ~· C~CfJ8-{j?iJ- !IfIrPI?.)

7ltC ~la.1

(C) waste materials that result from activities associated with the exploration, dl!velopment, or production of oil or gas,

or geothermal rcsowces. and other substance or material regulated by

the Railroad Commission of Texas under Natural Resources Code,

§91.101, unless the waste, substance, ormaterial results from activities

associated with gasoline plants, natural gas liquids processing plants,

pressure mainteIW1ce plants, or repressurizing plants and is hIlzardous

waste as defined by the administrator of the United States EnvironmentaJ Protection Agency under the federal Solid Waste Disposal. Act,

as amended by Resource Conservation and Recovery Act, as amended

(42 United Sl3leS Code, §§6901 et seq.).

(94) Sour crude--A crude oil that will emit a sour gas when

in equilibrium at atmospheric pressure.

(95) Sam gas-Any natural gas conmining more than 1.5

grains of hydrogen sulfide per 100 cubic fee'"., or more than 30 grains

oftata! sulfur per 100 cubic feet.

(96) Source-A point oforigin ofair contaminants, whether

privately or publicly ovroed or operated. Upon request of a source

owner, the executive director shall determine whether multiple pro--

cesSe6 emitting air contaminants from a single point of emission will

be treated as a single source or as nrultiple aources.

(97) Special waste from health care-related facilities-A

solid waste that ifimproperly treated or handled, may serve to transmit

infectious disease(s) and that i5 comprised of the following: .animal

waste, bulk blood and blood products, microbiological waste, pathological waste, and sh",!,s.

(98) Standard conditions-A condition at a temperature of

68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7

. pOlDlds per square inch .absolute (101.3 kiloPascals).

(99) Standard metropolitan statistical area-An area consisting of a county or one or more contiguous counties that is officially

so designated by the United States Bureau .ofthe Budget.

(100) SUbmerged fill pipe-A fill pipe that extends ftnm the

top ofa tank to have a maximum clearance ofsix inches (15.2 centimeters) from the bottom. or, when applied to a tank that is loaded from ,the

side, that has a discharge opening entirely submerged when the pipe

used to withdraw liquidftom the tank can no longer withdrnw liquid in

normal operation.

(101) Sulfur compounds--All inorganic or organic chemicals ba,ring aD atom or atoms of sulfur in their chemical structure.

(102) Sulfuric a.cid misVsulfuric a.cid-Emissions of sulfuric a.cid mist and sulfuric a.cid are considered to be the same air contaminant calculated"as SO, and must include sulfuric acid liquid mist,

sulfur trioxide, aDd sulfuric acid vapor as measured by Test Method 8

in 40 Code ofFederal Regulations Part 60, Appendix A.

(103) Sweet crude oil and gas--Those erode petroleum hydrocarbons that are not 'Isour" as defined iD this section.

(104) Total suspended particulate--Particulate matter as

measured by the method described in 40 Code ofFederal Regulations

Part 50, Appendix B.

(105) Transfer efficiency-The amount of coating solids

deposited onto the sUIface or a part of product divided by the tow

amount of coating solids delivered to the coating application system.

(106) True vapor pressure-The absolute aggregate partial

vapor pressure, measured in pounds per square inch absolute, of all

volatile organic compounds at the temperature ofstorage, handling, or

processing.

35 TexReg 7686 August 27,2010 Texas Register

(107) Unautht:lrized cmissiODS-Emissions of any air con~

taminant except carbon dioxide, water, nitrogen,. methane, ethane, noble gases, hydrogen, and oxygen that exceed any air emission limitation

in a permit, rule, or order ofthe commission or as authorized by Texas

Clean Air Act, §382.0518(g).

(108) Unplanned maintenance, startup, or shutdown a.ctiv·

ity_wFor activities with unauthorized emissions that are expected to exceed a reportable'q1lllI\tity or with excess opacity, an unplanned main·

tenance, startup, or shutdown activity is:

(A) a startup or shutdown that was not part ofnonnal

or routine facility operations, is Wlpredietable as to timing, lID.d is not

the type of event normally authorized by permit; or

(B) a maintenance activity that arises from sudden and

umoreseeable events beyond ,the control of the operator that requires

the immediate corrective action to minimize or avoid an upset or malftmction.

(109) Upset event-An unplOnned and unavoidable break- .

do'WD. or excursion ofa process or operation that results in unauthorized

emissions. A mainteIUlDce, startup, or shutdown activity that was reported lDlder §101.211 oftbis title (relating to Scheduled Maintenance,

Startup, and Shutdown Reporting and Recor<!keeping Requirements),

but had emissions that exceeded the reported. amount by more than a

reportable quantity due to an unplanned and unavoidable breakdown

or excuniion of a process or operation is an upset event "

(11 0) Utility boiler-A boiler used to produce electric

power, steam, or heated or cooled air, or other gases or fluids for sale.

(111) Vapor combustor-A partially enclosed combustion

device used to destroy volatile organic compounds by smokeless com·

bustion 'Without 'extracting energy in the form ofprocess heat or steam.

The combustion flame may be partially visible, but at DO time does

the device operate with an uncontrolled fla.IiJ.e. Auxiliary fuel and/or a

flame air control damping system that can operate at all times to control

the air/fuel mixture to the combustor's flame zone, may be required to

ensure smokeless combustion during operation.

(112) Vapor-mounted seal-A primary seal mounted so

there is an annular spa.ce im.derneath the seal. The annular vapor space

is hounded by the bottom ofthe primary seal, ,the tank wall, the liquid

surface, and the floating roof or cover.

(113) Vent-Any "duct, stack, chimney, flue, conduit, or

other device used to CODduct air cODtmninaDts into the atmosphere.

(114) Visible emissions-Particulate or gaseow matter that

can be detected by the hmnan eye. The radiaIlt eoergy from all open

flame is not ponsidered a visible .emission under this defmition. , reel

(115) Volatile organic compound-As defined in 40 co~e'{JC,DrtJQ of Federal Regulations §51.1 OO(s), except §51.100(s)(2) - (4), as ;.~..

amended on November 29, 2004 (69 FR 69290). m ....

(116) Volatile orgsnic compolDld (VOC) water separator- shluJd

Any tank, box, sump, or other container in which any VOC, floating on be : or contained in water entering such tank. box, sump, or other container,

is physically separated and removed from such water prior to outfall,.

drainage, or recovery ofsuch Water.

This agency hereby certifies that the proposal has been reviewed

by legal counsel and found to be Within the agency's legal authority to adopt.

Filad witt1 tha Offica ofthe Sacretary of State on August 13, 201 O.

TRD-201004709 ",., as omerded on :Janu!lr~ a~ ~01l

('lit FR 8*+0. II
AcJcpI70n of One-hour/ £151r1--hour rW&n::JI:./rs (8aJ8-D?£J-lib-PIZ.)

3D -rAe.. $)01. J

charges subject to ~gulatiOD by permit issued under the Texas Water

Code, Chapter 26;

(8) soil, dirt. rock, sand, and other natural orman-made

inen solid materials used to fill land, ifthe object ofthe fill is to make

the land suitable for the construction ofsurface improvements; or

(C) waste materials that result from activities associated with the exploration, development, or production of oil Or gas,

or geothermal resources, and other substance or material regulated by

the Railroad Commission of Texas under Natu:ra1 Resources Code,

§91.l 01, unless the waste, substance, or material results from activities

associated with gasoline plants, naturaJ gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by -the administrator of the United States Environ~

mental Protection Agency under the federal Solid Waste Disposal Act:,.

as amended by Resource Conservation and Recovery Act, as amended

(42 United Stan:s Code, ·§§690J ef seq.).

(94) Sourcrode-A crude oil thatwill emit a sour gas when

in equilibriwn at atmospheric pressure.

(95) Sour gas-Any namral gas containing more than 1.5

grains of hydrogen sulfide per 100 cubic feet. or more than 30 grains

oftotal sulfur per 100 cubic feet.

(96) Soun:e--A point oforigin ofair contaminants, whether

privately or publicly owned or operated. Upon request of a source

owner, the executive director shall detemrlne whether multiple pro-"

cesses emitting air contaminants from a single point of emission will

be treated as a single source or as multiple sources.

(97) Special waste from bealth care-related facilities--A

solid waste that if.ini.properly treated or handled, may serve to transmit

infectious disease(s) and that is comprised of the follo'Wing: animal

waste, bulk. blood and blood products, microbiologicaJ waste, patho·

logical waste, and sheups.

(98) STandard conditions--A condition at a tempC= of

68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7

pounds per square incb absolute (101.3 kiloPascals).

(99) Standard metropoliTan statistical area-An area consisting ofa county or one ormore contiguous counties that is officially

so designated by the United States Burea.u ofthe Budget.

(100) Submerged:fill pipe-A:fill pipe that exteudsfrom the

top ofa tank to have amaximum clearance ofsix inches (15.2 centime~

ters) from the bottom or, when applied to a tank that is loaded from the

side, that has a discharge opening entirely sUbmerged when the pipe

used to withdraw liquid from the tank can no longer withdraw liquid in

normal operation.

(101) Sulfur compounds-·All inorganic or organic chemicals having an atom or B10ms of sulfur in their chemical structure.

(102) Sulfuric acid mist/sulfuric acid-Emissions ofsulfuric acid mist and sulfuric acid are considered to be the same air con·

taminant calculated as aSO, and must include sulfuric acid liquid mist,

sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8

in 40 Code ofFederaj Regulations Pan 60, Appendix A.

(103) Sweet crude oil and gas-Those crude petroleum hy·

drocarbons thm are not "sour" as defined in this section.

(104) ToUli suspended particuiate-Particulate matter as

measured by the method described in 40 Code ofFederal Regulations

Pan 50, Appendix B.

36 TexReg 1304 February 25, 2011 Texas Register

(lOS) Transfer efficiency-The amount of coating solids

deposited onto the surface or a part of product divided b)' the total

amount of coating solids delivered to the coating application system.

(l06) True vapor pressure--The absolute aggregate partial

vapor pressure, measured in pounds per square inch absolute, of all

volatile organic compolmds at the temperature ofstorage, handling, or

processing.

(107) Unauthorized emissions-~Emissions of any air contaminant except carbon dioxide, water, nitrogen. methane, ethane, noble gases, hydrogen, andoxygen tbatcxceedany air emissionlimitalion

in a pennit, rule, or order ofthe commission or as authorized by Texas

Clean Air Act, §382.05l8(g).

(l08) Unplanned maintenance, startup, or shutdown activity-For activities with unauthorized emissionsthat are expected to ex·

ceed a reportable qu.an:tity or with excess opacity, an unplanned maintenance, startup, or shutdown aCtivity is:

(A) a startup or shutdown that was not part of normal

or routine facility operations, is unpredictable as to timing, and is not

the type of event normally authorized b)' pennit; or

(8) a maintenance activity tha.t arises from sudden and

unforeseeable events b~ond the control ofthe operator that requires

the immediate corrective action to minimize or avoid an upset or malfunction.

(109) Upset evcut-An unplanned and unavoidable breakdown or excursion ofaprocess or operation thatresultsin unauthorized

emissions. A maintenance, startup, or shutdown activity that was re·

ported under §101.211 ofthis title (relating 10 Scheduied Maintenance,

Startup, and Shutdown Reporting and Recordkeeping Requiremeuts).

but bad emissions that exceeded the reported amount by more than .a

reportable quantity due to an unplanned and unavoidable breakdown

or excursion of a process Or operation is an upset event

(110) Utility boiler--A boiler used to produce electric

power, steam, or heated or cooled air, or other gases or fluids for sale.

(Ill) Vapor eotobustor--A partially enclosed combustiou

device used to destroy volatile organic compounds by smokeless combumon without extracting energy in. the form. ofprocess heat or steam.

The ,combustion flame ma)' be partially visible, but at no time does

the device operate with an uncontrolled flame. Auxiliary fuel andJor a

flame air control damping S)·stemthat can operare B1 all timesto control

the air/fuel mixture to the combustor's flame zone, may. be required to

ensure smokeless combustion during operation.

(112) Vapor-mounted seal--A primary seal mounted so

there is an annular space underneath the seal. The annular vapor space

is bounded by the bottom ofthe primary seal, the tank wall, the liquid

surface, and the floating roof or cover.

(113) Vent··Any duct, stack, chimne)', flue, conduit, or

other device used to conduct air contaminants into the annosphere.

(114) Visible emissions--Particulate or gaseous matter that

can be detected by the human eye. The radiant energy from an open

flame is not considered a visible emission under this definition. i(lCDtTe:.t

(115) Volatile organic compound-As defined in 40 CoO§- 1()J19IlO~e of Fedetlll Re8ulations §51.1 OO(s), except §51.100(s)(2) . (4), as L" '~I~

amended on November 29, 2004 (69 FR 69290). ;:lI.L""'.

(116) Volatile organic compound (VOC) water separB1or- be,

Any tank., box, sump, or other container in which any VOC, floating on

is

or

physically

cont.ained in

separB1cd

wB1er entering

and removed

such tank,

from

box,

such

sump,

water

or

prior

other

to

corrta.iner,

outfall,

1

drainage, or recoverv ofsuch water.

",., a~ ame:.,detl on .:JOnu0"!j Ji/J,9,[Xj1 ('14- FR ~I)."
This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority

Filed w~h the Office of the Secretary of Stale on Februery 11,

2011.

TRD-2011 00544

R.obert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: March 3, 2011

Proposal pUblication date: Augusl2.7, 2.010

For further information, please call: (512) 239-0177

The Texas Commission on E vironmental Quality (commission, agency, or TCEQ) adop the amendments to §§116.12,

116.115,116.160,116.162,116. 86,116.186,116.190,116.192,

116.801, and 116.617; new 116.127; and the repeal 01

§116.121.

The amendments to §§116.. 15, 116,188, 116,601; new

§116,127; and the repeal of 116.121 are adopled without

changes as published in the ugust 27, 2010, issue 01 the

Texas Register (35 TexRe9 76 ) and will not be republished.

Sections 116.12, 116.180, 116. 2,116.186,116.190,116.192,

and 116.617 are adopted with anges to the proposed text as

published in the AU9ust 27, 20 0, issue of the Texes Register

(35 TexReg 7696) and will be r ublished.

The amendments to §§116,1 116.115, 116.160, 116.162,

116.166, 116.166, 116.190, 11 .192, and 116,601; and new

§116.127 will be submitted to Un~d Stales Environmental

Protection Agency (EPA) as re isions to the Stale Implementation Plan (SIP). The amend ent to §116.617 will not be

submitted to EPA as a revision the SIP.

BACKGROUND AND SUMMA Y 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 revisi n to the New Source Review

(NSR) SIP and §116.150 as a revision to the Nonattainment

New Source Reviaw (NNSR) IP, both adopted on May 25,

2005. On February 1, 2006, th TCEQ sUbmitted amendments

to §§116.12, 116.121, 116.15 , 116.180, 116,182, 116.184,

116,186, 116,188, 116,190, and 16,617to the EPA as revisions

to the NSR SIP; amendments to §101.1, 116.150, and 116.151

as revisions to the NNSR SIP; a d the amendment to §116,160

as a revision to the Prevention a Significant Delerioration (PSD)

SIP, adopted on January 11, 2 06. On September 23, 2009,

the EPA published notice of the roposed disapproval of these

revisions to the Texas SIP (74 Faderal Register 48467) and

on September 15, 201 D, publls d tha final disapproval of the

revisions (75 Federal Register 5 424).

This rulemaking and the camp nion rulemaking (Rule Project

No. 200B-030-116-PR) addres issues identified by tha EPA

in its Septembar 15, 2010, final disapproval notice and ensure

that TCEQ regUlatory requirem ts regarding the NSR perm~-

+

CHAPTER 116. CO

POLLUTION BY PE

CONSTRUCTION OR

+

OL OF AIR

TS FOR NEW

DIFICATION

ting program meet the requirema' ts of the Federal Clean Air Act

(FCAA) and are approvable into e SIP. Specifically, those concern definitions for the Plant-Wid Applicability Limit (PAL) rules

and other changes to the PAL rul to meetlederal requirements,

including the conditions for reo ning PAL permits. The rulemaking also amends §116.617, tate Pollution Control Project

Standard Permii (Which is the e isting standard permit rUle), to

limit when existing registrations r this standard permit can be

amended or renewed and provi as the deadline for final registrations under this specffic stan rd penntl This is intended to

facilitate a smooth transition be een this section and the new

non-rule air qual~ standard pe it adopted concurrently by the

commission. The amendments auld also remove obsolete references and make non-substant e administrative changes.

EPA alse disapproved §116.151 es amended in 2006, but did

not prOVide any specific reason for its disapprovel. In its Jetter transmitting 1his rulemaking t EPA, as discussed earlier, the

commission is requesting EPA nsider §116.151 as amended

in 2006 together with these au nt rule changes as revisions to

the SIP.

In the September 15, 2010 noti ,EPA also proposed to take no

ection on §§116.400 -116.406, hich were included in the 2006

ruiemaking. These sections are ermit requirements for complience with FCM §112(g), but yare not necessary elements

of the SIP. The rulemaking w· raws from EPA consideration

as a revision to the SIP of§§1 6.400, 116.402, 116.404, and

116,406, as adopted by the co mission on January 11, 2006,

effective on February 1, 2006, a changes have been made to

the rule text or numbering of til se sections.

This rulemaking is at least as Ingent as the federal rules being implemented because Incl des the applicable elements of

the major NSR and PAL permit programs, The rulemaking action also ensures that the rul will meet the requirements of

the FCAA, which requires that he elements of the SIP be enforceable, include replicable el ments, and ensure compliance

and accountabil~. The specifi changes to the PAL rules meet

these basic requirements.

When EPA edopted the NSR rm ruie amendments (67 Fedaral Registar 60165, Decemb 31, 2002), expanded its requirement for states' SIP submi als of their rules that implement

major NSR to require a demon tretton of why both the specifiC

major NSR permitting program qUirements, including applicable definitions, are at least as 'ngent as EPA:s regulations, if

states do not adopt the specifi EPA program. TCEQ's major

NSR and its PAL rules do not i corponale the EPA rules by reference but they do include the basic elements of those permit

programs. Therefore, this rule aking is at least as stringent as

the lederal rules being implem nted. As discussed elseWhere,

the changes in this rulemaking re made to specifically address

issues identified by EPA in eptember 15, 2010, disapproval

notice so that the rules can approved as revisions to the

SIP. The changes make the co mission's rules as stringent as

EP~s regulations. The definiti ns of baseline actual emissions

and projected actual emissions 0 not include malfunction emissions, and thus are more string nt than EP~s definitions. In addition, this rulemaking action al 0 ensures that the rules will meet

the requirements of the FCAA, hich requires that the elements

01 the SIP be enforceable, incl de replicable elements, and ensure compliance and accounta i1ity.

SECTION BY SECTION DISC SSION

ADOPTED RULES February 25, 2011 36 Tex.Reg 1305
liliplclItcntB:tiefl PlaFi

~J6tjee of 8 Pttelie Iieariflg eli Prepeseel Re\ isiBRS 1:B tAe State

:Gorrection, ,ofJError

The Texas Commission on Environmental Quality (TCEQ) adopted an

amendment to 30 TAC §JOJ.I in the February 25. 201l, issue of the

Texas Register (36 TexReg 1294). TCEQ submitted the wrong definition text for paragraph (115). The definition of "Volatile organic

compound" that appears on page 1304 reflects an earlier version ofthe

paragraph that was superseded in 20 1O. In consequenee. that incorrect

language was incorporated into the Texas Administrative Code.

The definition in paragraph (11 j) should read as follows:

"( 115) Volatile organic compound--As defined in 40 Code of Federal

Regulations ~j 1.1 OO(s). excepl ~51.1 00(s)(2) - (4 l. as amendcd on January 2 L 2009 (74 FR 3441),"

The correct definition will be restored to the Texas Administrative Code

on-line.

• • •

The Texas Commission on vironmental Quali .. (TCEQ) will conduct a public bearing to re ive comments co cerning revisions to

the state implementation pia (SIP). under the r quirements of Texas

Health and Safety Code, ~38 .011 and ~382.013: and 40 Code of Federal Regulations ~51.l 02 of he United States E vironrnental Protection Agency regulations con ming. SIPs.

The proposed revision wo Id incorporate a

transport for the 2008 lead ational Ambient ir Quality Standard

(NAAQSl. The proposal wo Id meet the require ents of'the Federal

Clean Air Acl. §11O(a)(2)(D (i). relating to the i terstate transport of

lead under the 2008 lead N OS. These revisio s reference existing

control strategi,es to reduce the concentration f lead. as well as

dispersion modeling ofmajo lead sources in Te s. Additionally. the

revision verifies that the Pre ention of Signific t Deterioration and

Nonattainment New Source Review pennitting programs are being

implemented in Texas and t t lead is nol consi ered a visibility-impairing pollutant.

A public hearing on this pro osal will be held i Austin on May 17,

2011. at 10:00 a.m.. at the T EQ headquarters, 1 100 Park 35 Circle.

Building F, Room 2210. The hearing will be stru tured for the receipt

of oral or written comments by interested perso s. Individuals may

present oral statements when ailed upon in order fregistration. There

will be no open discussion ring the hearing; h wever. TCEQ staff

will be available to discuss th proposal 30 minute prior to the bearing.

Persons who have special c mmunication or 0 er aeeommodation

needs who are planning 10 a end the hearing sh uld contaet Shelley

Naik with the Air Quality ivision at (512) 2 9-1536. Requests

should be made as far in adv ce as possible.

Comments may be submitte to Shelley Naik, C 206, Air Quality

Division, Chief Engineer's Office. Texas Co mission on Environmental Quality, P.O. Bo 13087, Austin, as 78711~3087, or

faxed to (512) 239-5687. EI etronic comments ay be submitted at

ww\\'5.tceq.texas.gov/rulesle ommentsl. File size restrietions may apply to comments being submi ed via the eComme ts system. All eomments pertaining to the Lead ransport Plan for th 2008 Lead NAAQS

SIP revision should refere ce Project Number 2011-00S-SIP-NR.

The comment period closes on May 23, 2011. Copies of the proposed SIP revision can be btained from the CEQ's Web site at

http://wv..VI·.tceq.texas.gov/i 1ementation/air/sip exas~sip/criteria-pollutants.lsip-Iead. For f her infonnation, pl ase eontaet Shelley

Naik, Air Quality Planning S etion. (512) 239-15 6.

TRD-201101382

Robert Martinez

Director, Environmental Law ivision

Texas Commission on Enviro mental Quality

Filed: April 12, 2011

Notice of Opportunity to omment on Agre d Orders of

Administrative Enforcem nt Actions

The Texas Commissioll on E vironmental Quality (YCEO or commis~

sion) staff is providing an op ortunit)' for written public comment on

the lisled Agreed Order~ (A s) in accordance wit Texas Waler Code

(TWC). p.075. TWC. p. 75 requires that bd re the commission

ma~ approve the ADs. the c mmission shall allo the public an opportunity to submit written mments 011 the pro osed AOs. TWC.

~7 .075 requires that notice of he opportunity 10 co ment must be published in the Texas Register 0 later than the 30th day before the dale

on which the public commen period closes. whic in thi~ case is May

23,2011. TWC. ~7.075 als( requires thaI the co nmission promptly

consider any written comme s received and that t e commission may

•

•

•

•

•

•

birds. insects and heavy a contaminants: 30 TAC ~290.46(m). by

failing to initiate maintena ce and housekeeping pr ctices to ensure

the good working condition and general appearance fthe facility and

its equipment PENALlY '1.022: ENFORCEME T COORDINATOR: Stephen Thompson, (5121 239-2558: REGI NAL OFFICE:

3870 Eas[ex Freeway, Beau ont. Texas 77703-J892. (409) 898-3838.

(28) COMPANY: USGreen ech, LLC dba USGree tech: DOCKET

NUMBER: 2010-1894-1 W-E: IDENTIFIER: RNI04360144:

LOCATION: Brady, McCul och County: TYPE OF ACILIn': manufacture of inti1! material d/or colored sand: RU E VIOLATED:

30 TAC ~335.4, by failing t manage industrial haz rdous waste in a

manner to prevent the disch rge or imminent threat r discharge into

or adjacent to waler in the tate: 30 TAC ~335.9(a) 1l. by failing to

maintain records of industri I hazardous waste activO ies: PENALTY:

$2,100: ENFORCEMENT COORDINATOR: Mi e Pace, (817)

588-5933: REGIONAL 0 FICE: 622 South Oak , Suite K, San

Angelo, Texas 76903-7013, 325) 655-9479,

(29) COMPANY: Vopak Tenninal Galena Par. Incorporated:

DOCKET NUMBER: 201 0-1 843-IWD-E; IDENTIFIER:

RN103137790: LOCATI N: Galena Park. arris County~

TYPE OF FACILITY: sp ial warehousing and torage; RULE

VIOLATED: TWC, §26,12 (a), 30 TAC §305,12 (I), and Texas

Pollutant Discharge Elimin tion System (TPDES) Pennit Number

WQOOO 1662000, Effl uent L mitation and Monitori g Requirements

Number 1 for Outfall 002, by failing to comply with pennitted

effluent limits: TWC, §26,1 I(a), 30 TAC §305,12 I), and TPDES

Pennit Number WQOOOl662 00. Effluent Limitatio and Monitoring

Requirements Number 1 for Outfall 002. by failing to comply with

permitted effluent limits: NALTY:: $17,640; E FORCEMENT

COORDINATOR: Jeremy scobar, (361) 825-34 : REGIONAL

OFFICE: 5425 Polk Avenue Suite H, Houston. Te as 77023-1486,

(713) 767-3500,

TRD-201101381

Kathleen C. Decker

Director, Litigation Division

Texas Commission on Enviro ental Quality

Filed: April 12, 2011

TRD-201101405

IN ADDITION April 22, 2011 36 TexReg 2623