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

### Carlos Rubinstein, 

### Commissioner Toby Baker, 

### Commissioner Zak Covar, Executive Director 

# RECEIVED 12 SEP**-~** 

# PM 6: 32 PEruil-S 

# SECTION 

# TEXAS COMMISSION ON ENVIRONMENTAL

# ~~Al::lS!fb-R Protecn.'ng Texas by 

### Reducing andPreventing Pollution 

## August 29, 2012



## Mr. Samuel Coleman Acting Regional Administrator U.S. Environmental ProtectionAgency- Region 6 1445 

## Ross Avenue Dallas, Texas 75202-2733 

## Dear Mr. Coleman: 

## DocketNo. 2011-2229-RUL

91 7108 2133 3935 1971 0014



## OnJuly 25, 2012, 

## theTexas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP). The Commission adopted amendments to §§ 

## 116.12, 116.150, 116.151, 116.180, 

## and 116.186 

## of 30

## TAC Chapter 116, 

## Control ofAir Pollutionby Permits for NewConstruction or Modification. The amended sections are intendedto resolve outstanding issues relatedto the disapproval ofthe Commission's New Source Review SIP issuedbyEPAon September 23, 2009. 

## Enclosed arethe proposed revisions to the SIP, a publichearing certification, a complete record ofthe publichearing, andthe accompanying order. In addition, thehearingbook contains a copy ofa letter sentbyTCEQ Executive Director, ZakCovarto Carl Edlund dated May 3, 2012

## that addresses several issues as requestedbyEPARegion 6. I lookforwardto yourexpeditious approval ofthese SIP revisions. Sincerely,**~**

# !:.~~

# ..**~:0 Chai~3**  BWS/bc Enclosures

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is our customer service? tceq.texas.gov/customersurvey

## cc: 

## The Honorable Rick Perry, Governor ofTexas Mr. Jonathan Stinson, Office ofBudget, Planning andPolicy, Office ofthe Governor Mr. ZakCovar, Executive Director,Texas CommissiononEnvironmental Quality

## DocketNo. 2011-2229-RUL

THE STATE OF TEXAS COUN1YOFTRAVIS

This is to certifythatthe attachedelectronicfile is included andthatthe electronicfile is a true and correctcopy ofdocuments for a revisiontothe Texas State Implementation Plan, adopted onJuly 25, 2012, pursuantto 40 Code ofFederal Regulations § 

## 51.104. I amthe records administratorfor theAir Permits Division oftheTexas Commission on Environmental Quality (Commission).

### Texas Commission on Environmental Quality Public Hearing March 29, 2012
30 TAC Chapter 116 Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2012-015-116-AI New Source Review Reform Revisions

### INTRODUCTION

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

on March 29, 2012, to receive testimony regarding revisions to 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).

The amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186 address issues identified by the U.S. Environmental Protection Agency in order to facilitate approval ofthese sections as part ofthe Texas SIP. The amendments remove a reference to flexible permits in the definition of plant-wide applicability limit, add references to relevant federal terminology and rule citations, and add language stating that failure to use monitoring required in a plant-wide applicability limit permit would render that permit invalid.

The comment period closed on April9, 2012. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete record ofthe public hearing 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 Michael Wilhoit at (512) 239- 1222.Notice & Proposal

## PUBLIC NOTIFICATION

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

1. Publication ofthe notice ofpublic hearing in the following newspapers on the dates
listed:
Austin American-Statesman
Fort Worth Star-Telegram
Houston Chronicle February 27, 2012 February 27, 2012 February 27, 2012

2. Publication ofthe public hearing notice in the 

### Texas Register on March 9, 2012 (37 TexReg 1811).

3. Publication ofthe proposed rules in the 

### Texas Register on March 9, 2012 (37 TexReg 1661).

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

Speaker ofthe House Lieutenant Governor City ofEl Paso City ofVictoria Planning Department
Dallas Department ofHealth and Human Services
El 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 PollutionControl 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 February 27, 2012Notice ofPublic Hearings on a Proposed Revision to 30 TAC Chapter 114 and Revision to the State Implementation Plan The Texas Commission on Environmental Quality (commission) will conduct public hearings to receive testimony regarding a proposed amendment to 30 Texas Administrative Code (TAC) Chapter 114, Subchapter J, Division 2, Locally Enforced Motor Vehicle Idling Limitations and revision to the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code (THSC), §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs. The proposedrulemaking would implement Senate Bi11493, 82ndLegislature, 2011, amending THSC, Chapter 382, Subchapter B by adding §382.0191, which prohibits the commission from limiting the idling of a motor vehicle that has a gross vehicle weight rating greater than 14,000 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the EPA or a state environmental agency to emit no more than 30 grams of nitrogen oxides emissions per hour when idling. The commission will hold public hearings on these proposals in Austin on April 2, 2012, at 2:00p.m., in Building E, Room 201S at the commission's central office located at 12100 Park 35 Circle; and in Fort Worth on April 3, 2012, at 2:00p.m., at the Texas Commission on Environmental Quality Dallas Regional Office, 2309 Gravel Drive. The hearings are structuredfor thereceipt oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearings; however, commission staffmembers will be available to discuss the proposal 30 minutes prior to each hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearings should contact Sandy Wong, Office ofLegal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Comments may be submitted to Charlotte Hom, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at: 

### http://www5.tceq. texas.gov/rules/ecomments! File size restrictions may apply to comments being submitted via the eComments system. All comments pertaining to the rulemaking should reference Rule Project Number 2011-060-114-EN. The comment period closes April 9, 2012. Copies of the proposed rulemaking can be obtained from the commission's Web site at 

### http://www.tceq.texas.gov/nav!rules/propose_adopt.htm/. For further information, please contact Holly Brightwell, Air Quality Planning Section, at (512) 239-4905. TRD-201201124 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: February 24, 2012 

# • • • Notice ofPublic Hearing on Proposed Revisions to 30 TAC Chapter 116 and to the State Implementation Plan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposedrevisions to 30 Texas Administrative Code (TAC) Chapter 116, Control of Air Pollution by Permits for New Construction or Modification, § §116.12, 116.150, 116.151, 116.180, and 116.186, 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 ofthe United States Environmental Protection Agency (EPA) concerning SIPs. The proposedrulemaking would remove a reference to flexible permits in the definition of plant-wide applicability limit, include references to federal terminology, and state that the failure to use monitoring required in a plant-wide applicability limit permit would render that permit invalid. The commission will hold a public hearing on this proposal in Austin onMarch29, 2012, at 10:00 a.m. in BuildingERoom201S, atthe commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt oforal or written comments by interested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not be permitted during the hearing; however, commission staffmembers 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 Sandy Wong, Office ofLegal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Written comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Electronic comments may be submitted at: 

### http://www5.tceq. texas.govlru/es/ecomments! File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2012-015-116-AI. The comment period closes April 9, 2012. Copies of the proposed rulemaking can be obtained from the commission's Web site at**http://ww~.**

### tceq. texas.gov!nav/rules/propose_adopt.htm/. For further information, please contact Blake Stewart, Air Permits Division, (512) 239-6931. TRD-201201123 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: February 24, 2012 

# • • • Notice ofReceipt ofApplication and Intent to Obtain a Municipal Solid Waste Permit Proposed Permit No. 2379 APPLICATION. Liquitek, LLC (Liquitek Arlington Liquid Waste Processing Facility), P.O. Box 470383, Fort Worth, Tarrant County, Texas 76147, has applied to the Texas Commission on Environmental Quality (TCEQ) for a new Type V MSW permit to authorize a liquid waste dewatering facility. The facility is located at 408 113th Street, Arlington, Tarrant County, Texas 76011. The TCEQ received the application on January 26, 2012. The permit application is available for viewing and copying at the George W. Hawks Central Library, 101 East Abram Street, Arlington, Tarrant County, Texas 76006. The following link to an electronic map of the site or facility's general location is provided as a public courtesy and is not part of the application or notice: http://www.tceq.texas.gov/assets/publiclhb61O/index.html?lat=32.7448&lng=-97.0432&zoom=13&type=r. For exact location, refer to application. ADDITIONAL NOTICE. TCEQ's Executive Director has determined the application is administratively complete and will conduct a techni

## INADDITION March 9, 2012 37 TexReg 1811General Powers; TWC, §5.1 03, Rules; and TWC, §5.1 05, General Policy, which provide the commission with the general powers to carry out its duties and authorize the commission to propose rulemaking necessary to carry out its powers and duties underthe TWC; and TWC, §5.013, General Jurisdiction of Commission, which states the commission's authority over various statutory programs. The amendment is also proposed under Texas Health and Safety Code (THSC}, §382.017, Rules, which authorizes the commission to propose rules consistent with the policy and purposes of THSC, Chapter 382 (the Texas Clean Air Act), and to propose rules that differentiate among particular conditions, particular sources, and particular areas ofthe state. The amendment is also proposed under THSC, §382.002, Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.003, concerning Definitions; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.019, Methods Used to Control and Reduce Emissions From Land Vehicles, which provides the commission the authority to propose rules to control and reduce emissions from engines used to propel land vehicles; and THSC, §382.208, Attainment Program, which authorizes the commission to develop and implement transportation programs and other measures necessary to demonstrate attainment and protect the public from exposure to hazardous air contaminants from motor vehicles. The proposed amendment implements SB 493, which established THSC, §382.0191. §114.517. Exemptions. The provisions of §114.512 ofthis title (relating to Control Requirements for Motor Vehicle Idling) do not apply to: (1) a motor vehicle that has a gross vehicle weight rating of 14,000 pounds or less;



### Q2 [(2)] the primary propulsion engine ofa motor vehicle being used to provide air conditioning or heating necessary for employee health or safety in an armored vehicle while the employee remains inside the vehicle to guard the contents or while the vehicle is being loaded or unloaded; 

### ill [f-B] a motor vehicle forced to remain motionless because oftraffic conditions over which the operator has no control; 

## ill [8-j] a motor vehicle being used by the United States military, national guard, or reserve forces, or as an emergency or law enforcement motor vehicle; !&}**[~]** the primary propulsion engine ofa motor vehicle providing a power source necessary for mechanical operation, other than propulsion, and/or passenger compartment heating, or air conditioning; 

### [{6)] the primary propulsion engine ofa motor vehicle being operated for maintenance or diagnostic purposes; 

### ill [fA] the primary propulsion engine ofa motor vehicle being operated solely to defrost a windshield; 

### 1.21 [{&)] the primary propulsion engine ofa motor vehicle that is being used to supply heat or air conditioning necessary for passenger comfort and safetyin vehicles intended for commercial orpublic passengertransportation, orpassengertransit operations, in which case idling up to a maximum of30 minutes is allowed; 

### !.!Q) [f9j] the primary propulsion engine of a motor vehicle being used to provide air conditioning orheating necessary for employee health or safety while the employee is using the vehicle to perform an essentialjob function related to roadway construction ormaintenance; !.!!) [tw)] the primary propulsion engine ofa motor vehicle being used as airport ground support equipment; 

### ill) [fi-B] the ownerofa motor vehicle rented or leased to a person that operates the vehicle and is not employed by the owner; or i.!l)**[~}** a motor vehicle when idling is necessary to power a heater or air conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest period and is not within two miles of a facility offering external heating and air conditioning connections at a time when those connections are available. This agency hereby certifies thatthe proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on February 24, 2012. TRD-201201125 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: April 8, 2012 For further information, please call: (512) 239-0779 

# • • 

# • 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, 116.150, 116.151, 116.180, and 116.186. The proposed amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186 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 forthe Proposed Rules On June 10, 2005, the TCEQ submitted amendments to§116.12 to the EPA as revisions to the New Source Review (NSR) SIP and §116.150 as revisions to the Nonattainment New Source Review (NNSR) SIP, both adopted on May 25, 2005. On January 11, 2006, the TCEQ repealed §§116.180

- 116.183, 116.41 0, and 116.617; amended §§116.12, 116.150, 116.151, 116.160, and 116.610; and adopted new §§116.121, 116.180, 116.182, 116.184,116.186,116.188,116.190,116.192,116.194,116.196, 116.198, 116.400, 116.402, 116.404, 116.406, 116.617, and



## PROPOSED RULES March 9, 2012 37 TexReg 1661116.1200. The TCEQ submitted these to the EPA as revisions to the NSR SIP to implement EPA's NSR Reform rules which became final on December 31, 2002. On September 23, 2009, the EPA published notice of the proposed disapproval of these revisions to the Texas SIP on September 23, 2009 (74 Federal Register48467). The EPA's final disapproval notice was published September 15, 2010 (75 Federal Register56423). On February 9, 2011, in response to the EPA's final disapproval, the TCEQ repealed §116.121, adopted amendments to §§116.12, 116.115, 116.150, 116.180, 116.182, 116.186, 116.188, 116.190, 116.192, 116.601, and 116.617; and adopted new §116.127. These were published in the February 25, 2011 , issue of the Texas Register (36 TexReg 1305 and 1324). On March 11, 2011, the TCEQ submitted a revised SIP package that was based on the rule amendments, with the exception of §116.617, adopted on February 9, 2011, and addressed the issues outlined in the EPA's disapproval. On September 30, 2011, the EPA expressed its intent to propose conditional approval ofTCEQ rules implementing the changes to the NSR SIP and the NSR Reform and requested a dialog to resolve certain EPA concerns and facilitate a final approval. This rulemaking addresses those concerns. This rulemaking is at least as stringent as the federal rules it implements because it includes the applicable elements of the major NSR and plant-wide applicability limit (PAL) permit programs. The rulemaking action also ensures that the rulemaking, if adopted, will meet the requirements of Federal Clean Air Act (FCAA), §11 0 which, among other requirements, requires that the elements of the SIP be enforceable, ensure compliance, include replicable elements, and ensure accountability. The specific changes to the PAL rules meet these basic requirements. Section by Section Discussion § 116. 12, Nonattainment and Prevention ofSignificantDeterioration Review Definitions The commission proposes to amend the definition of the term "Plant-wide applicability limit" effective date in §116.12(23) to remove language that references the date that a flexible permit was issued. Since PAL permits and flexible permits are addressed by two different sets of rules in Chapter 116, it is inappropriate to reference flexible permits in the definition of the term plant-wide applicability limit effective date. The proposed change would remove this obsolete language, clarify permitting requirements and ensure consistency with federal requirements regarding NSR permits. §116.150, New Major Source or Major Modification in Ozone Nonattainment Areas The federal term "emissions unit" as defined in federal rules is similar to the term "facility" as defined in the Texas Clean AirAct (TCAA). In order to ensure clarity and consistency with federal requirements, the commission is proposing to add the language "or emissions unit" where the terms "facility" or "facilities" are used (i.e., §116.150(a), (d)(1) and (3)). § 116. 151, New MajorSource orMajorModification in NonattainmentArea Other Than Ozone The federal term "emissions unit" as defined in federal rules is similar to the term "facility" as defined in the TCAA. In order to ensure clarity and consistency with federal requirements, the commission is proposing to add the language "or emissions unit" where the terms "facility" or "facilities" are used in §116.151 (a), (c)(1) and (3)).



## 37 TexReg 1662 March 9, 2012 Texas Register In response to EPA's proposed disapproval notice published September 23, 2009, the commission's executive director submitted comments replying to EPA's solicitation from the TCEQ to comment on EPA's interpretation ofTexas law and the Texas NSR SIP with respect to the term "facility," stating that it is critical to EPA's understanding ofthe Texas Permitting Program. TCEQ's comments stated, in part, that the definition ofthe term "facility" is one ofthe cornerstones of the air permitting program in Texas under the TCAA. The comments specifically stated that the TCEQ's interpretation of Texas law differs from that of EPA In its final disapproval notice on September 15, 2010, (75 Federal Register56423), EPA carried forward text from its proposed disapproval from September23, 2009, by stating in footnote 7 on page 56433 and also on page 56438, "{i}t is our understanding of State law, that a "facility" can be an "emissions unit," i.e., any part of a stationary source that emits or may have the potential to emit any air contaminant. A "facility" also can be a piece of equipment, which is smaller than an "emissions unit." A "facility" can be a ''major stationary source" as defined by Federal law. A "facility" under State law can be more than one "major stationary source." It can include every emissions point on a company site, without limiting these emissions points to only those belonging to the same industrial grouping (SIC code)." In the same notice in footnote 15 on page 56438, EPA acknowledges that TCEQ's definition of "facility" is part ofthe approved Texas SIP. Under the TCAA in Texas Health and Safety Code (THSC), §382.003(6) and in §116.1 0(4), "facility" is defined as "a discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not considered to be a facility." A facility may constitute or contain a stationary source-a point of origin of a contaminant, as defined in THSC, §382.003(12) and in §116.10(15), a definition that is approved into the Texas SIP. As a discrete point, a facility can constitute but cannot contain a "major stationary source" as defined by federal law and in the TCEQ's SIP approved rule §116.12(17). A facility is subject to major and minor NSR requirements, depending on the facts of the specific application. The TCEQ and its predecessor agencies have consistently interpreted facility to preclude inclusion of more than one stationary source, in contrast to EPA's stated understanding. Likewise, TCEQ does not interpretfacility to include "every emissions point on a company site, even if limiting these emission points to only those belonging to the same industrial grouping (SIC code)." The federal definition of "major stationary source" in 40 Code of Federal Regulations (CFR) §51.166(b)(1 ){i)(a) is not equivalentto the state definition of"source."A "majorstationary source" can include more than one "facility" as defined under Texas law, which is consistent with EPA's interpretation of a "major stationary source" including more than one emissions unit. Under major NSR, EPA uses the term "emissions unit" (generally) when referring to part of a "stationary source;" TCEQ translates "emissions unit" to mean "facility." The commission's SIP-approved Prevention of Significant Deterioration (PSD) permitting rule in §116.160(c){3) states, "{t}he term "facility" shall replace the words "emissions unit" in the referenced sections of the CFR." The above interpretation of the term "facility" has been consistently applied by the TCEQ and its predecessor agencies for more than 30 years. The TCEQ's interpretation ofTexas statutes enacted by the Texas Legislature is addressed by the TexasCode Construction Act. More specifically, words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly, as per Texas Government Code, §311.011(b). In respons.e to the proposed disapproval, the commission proposed addmg the phrase "or emissions unit" in its PAL rules but did not do so in the nonattainment permitting rules

### becau~e of the long term use of the term in the Texas permitting rules and the approved Texas SIP, which included earlierversions ofthese rules, and because in the intervening time EPA had approved the definition of "facility" into the SIP. The proposed changes to §116.150 and §116.151 would allow EPA to approve the updated rules that implement the federal nonattainment permitting program. §116.180, Applicability The commission proposes to correct a typographical error in §116.180(a)(5) by changing a reference to the federal rules from 40 CFR §51.165(iv)(A) to 40 CFR §51.165(a)(1 )(iv)(A). Additionally, the commission is adding a reference to the federal defini**ti~n** of major stationary source in 40 CFR §51.166(b)(1 ). Adding th1s reference strengthens the TCEQ's PAL rules by limiting the applicability of a PAL to a source that conforms to the federal definition ofa majorstationary source in 40 CFR §51.166(b)(1 ). The proposed changes would clarify permitting requirements and en**s~re** consistency with federal requirements regarding NSR permits. §116.186, General and Special Conditions**T~e** commission proposes to amend §116.186(b)(9) to state that**fa~l~re** to. use the required monitoring would render the PAL permit 1nvahd. The change is proposed to ensure consistency with federal rule requirements. In both its proposed and final disapproval notices for the NSR Reform rules (as mentioned elsewhere in this preamble), the EPA stated that the specific monitoring definitions are essential for the. enforcc:ability ofand providing the means for determining compliance w1th a PAL program. EPA also specifically stated that one of the bases for disapproval of the commission's PAL rules is that the rules lacked a mandate that failure of the monitoring system to meet the requirements of this section renders a PAL**per~it** invalid. In response, the commission specifically amended 1ts PAL rules to address the monitoring systems, and also added §116.186(b}(9} specifying that failure to use a monitoring system is aviolation ofthe PAL permit. EPA did not provide**~ml!lent** on that amendment, nor §116.186(b)(9). The commiSSion understood that the proposed changes were satisfactory for SIP approval. However, §116.186(b)(9) did not address EPA's concerns•.**w~ich** were related to the installation and general use of momtonng systems rather than compliance issues such as monitoring downtime, the latter which is addressed

### i~ §116.186(b)(8). As discussed elsewhere in this preamble, EPA contacted the commission in 2011 regarding its review of the submitted rules and raised the issue of ensuring that the commission's rules adequately adopted the EPA's requirement that a**P~L** permit is inval!d if the required monitoring system is not requ1red by the perrmt nor installed by the permittee. EPA's general monitoring requirements for PAL permits are in 40 CFR §51.165(f)(12)(i)(A)- (D) and 40 CFR §51.166(w)(12)(i)(a)

- (d). Subparagraph (i) requires enforceable requirements for a monitoring system in each PAL permit that is based on sound science and meets generally acceptable scientific procedures for data quality and manipulation; those systems must be one of the four general monitoring approaches in the federal PAL rules. Clauses (D) and (d) provide that failure to use a monitoring system that meets the applicable federal rule requirements renders the PAL invalid (See discussion at 67 Federal Register80211

- 80214, December 31, 2002). Therefore, based on the text and context of both the rule and the accompanying preamble, the phrase "failure to use" in EPA's rule means a failure to install or failure to operate the prescribed monitoring device or system to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the monitoring device or system. The proposed change to 

### §116.186(b)(9) would address EPA's concern that the commission's rules fully incorporate all PAL permit requirements. Any invalidation of a PAL permit will be subject to necessary and appropriate procedures in Texas statutes and TCEQ rules. Texas Water Code (TWC), §7.302, regarding Grounds for Revocation or Suspension of Permit, provides the commission the authority to revoke and suspend or reissue a permit on prescribed grounds after notice and hearing. Prior to any invalidation of a PAL permit, the commission anticipates enforcement action that**co~ld** include a request for revocation. Generally, circumstances which could lead to invalidation (e.g., failure to install or use monitoring equipment) are not expected to occur, and thus few, ifany, revocation proceedings are anticipated. Fiscal Note: Costs to State and Local Government Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency or other units ofstate or local governments as a result of administration or enforcement of the proposed rules. In 2005 and 2006, the agency submitted new and amended rules to Chapter 116 as revisions to the NSR SIP to the EPA for approval. On September 15, 2010, EPA disapproved these SIP revisions. On March 11, 2011, the TCEQ submitted a revised SIP package that addressed the issues outlined in the EPA's disapproval. On September 30, 2011, the EPA expressed its intention to propose a conditional approval ofthe package and requested a dialog to**resol~e** certain EPA concerns regarding terminology and a typographical error to facilitate a final approval. The proposed.**amendment~** address EPA concerns by correcting typographical**e~rors,** us1ng federal terms instead of state equivalents, and removmg unnecessary date references in definitions. The proposed amendments are administrative in nature and do not change existing federal or state requirements to obtain a permit nor do**t~ey.**mandate !he use**~f** additional controls or change any**m~n!tonng** or testmg requirements. No fiscal implications are ant1c1pated for any regulated entity. State agencies or local governments that operate under an NSR permit should not experience any fiscal implications as a result of the proposed rules since despite any administrative discrepancy between state rules (which were submitted as revisions to the SIP) and the federal regulations, the proposed rules do not change existing federal or state requirements to obtain a permit nor do they mandate the use of additional controls or change any monitoring or testing requirements. The proposed amendments are administrative in nature and continue to ensure that state regulations are consistent with federal regulations so that regulated entities can more easily understand and comply with those requirements with regard to NSR permits.



## PROPOSED RULES March 9, 2012 37 TexReg 1663Public Benefits and Costs**~s.** Chamness also determined that for each year of the first**f~v~** years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be consistency between federal and state requirements, assurance that state rules for the SIP NSR program are at least as stringent as federal rules, and EPA approval of the SIP.**!h~** proposed rules**ar~** not expected to have a fiscal impact on**1~d1V1~uals** or**la~ge** .busmesses because, despite any administrative d1screpanc1es m language between state rules which were submitted as**revision~** t? the SIP, and the federal regulations, they do not change ex1st1ng federal or state requirements to obtain a permit nor do they mandate the use of additional controls or change any monitoring ortesting requirements. The proposed amendments are administrative in nature and continue to ensure that state regulations are consistent with federal regulations so th.at regulated**~ntities** can more easily understand and comply w1th those requirements with regard to NSR permits. Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules because despite any

### ad~inistrative discrepancies in language

### betwee~ state rules, wh1ch were submitted as revisions to the SIP and the federal regulations, they do not change existing

### fede~al or state**requi~~ments** to obtain a permit nor do they mandate the use 

## ?f add1t1onal controls or change any monitoring or testing**requ~rements.** The proposed rules continue to clarify state requirements and ensure consistency with federal requirements regarding NSR permits. Small Business Regulatory Flexibility Analysis The ?ommission has**revie~ed** this proposed rulemaking and de**termine~** that a small bus1ness regulatory flexibility analysis is n?t requ1red**becau~e** the proposed rules are required to comply w1th federal regulations. The agency is required to implement the proposed rules to obtain federal approval for the SIP. Local Employment Impact Statement The ?ommission has reviewed this proposed rulemaking and determmed that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect. Draft Regulatory Impact Analysis Determination The commission reviewed the proposed rulemaking in light ofthe regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a major environmental rule as defined in that statute, and in addition, if it did meet the definition would not be .subject to the requirement to prepare a regulatory' impact analys1s. 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**~n**.a material '!".ay**t~e** economy, a sector ofthe economy, productiVIty, compet1t1on, JObs, the environment, or the public health and safety ofthe state ora sector ofthe state. The specific intent of the proposed revisions is to include definitions for, and make other changes to the PAL rules to meet federal requirements.



## 37 TexReg 1664 March 9, 2012 Texas Register Additionally, even if the rules met the definition of a major envi**ro.nm~~tal r~le** ..the**rulem~~ing** does not meet any ofthe four ap**ph~ablhty** ?ntena for**requ1nn~** a regulatory impact analysis for a maJor environmental rule, wh1ch are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225,**~pplies** only to a major environmental rule, the result of which IS to: 1) exceed a standard set by federal law, unless the rule is**~pecifically** 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;**o~** 4) adopt a rule solely under the general powers of the agency 1nstead of under a specific state law. The proposed rules would implement requirements ofthe FCAA. Under 42 United States Code (USC), §7410, each state is req.ui_red to**~dopt** and implement a SIP containing adequate proVISions to Implement, attain, maintain, and enforce the National Ambient Air Quality Standards (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:, §741 0. The provisions of the FCAA recognize that states are m 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**~tates** 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**as~ure** that their SIPs provide for implementation, attainment, mamtenance, and enforcement of the NAAQS within the state. One ofthe requirements of42 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**nece~sary** to assure that the NAAQS are achieved, including a perm1t 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 promulgate rules that apply to all areas that have not attained the previous NAAQS that prov1de for controls that are no less stringent than the controls that previously applied to the area. This rulemaking will address those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically those concern definitions for and other changes to the PAL rules to meet federal requirements. The requirement to provide a fiscal analysis of regulations in the Tex.as Government Code was amended by Senate Bill (SB) 633 dunng the 75th Legislature, 1997. The intent ofSB 633 was tore**qui~e** agencies to conduct a regulatory impact analysis of extraord!nary**r~les.** 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 gen**er~l** 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.wi.ll have**si~ni~ica~t** fiscal implications for the agency due to 1ts hm1ted appl1cat1on. The commission also noted thatthe 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. 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 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 agencies and the Legislative Budget Board, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the proposed rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA, and in fact creates no additional impacts since the proposed rules do not exceed the requirement to attain and maintain the NAAQS. For these reasons, the proposed rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that ''when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power& LightCo. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with percuriam opinion respecting anotherissue, 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 Coastal lndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).) The commission's interpretation ofthe RIA requirements is also supported by a change made to the Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to 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 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 rulemaking is to address those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, those concern definitions for and other changes to the PAL rules to meet federal requirements. The proposed rules were not developed solely under the general powers ofthe agency, but are authorized by specific sections of THSC, Chapter 382 (also known as the TCAA), and the TWC, which are cited in the Statutory Authority section of this preamble. 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 underthe Submittal of Comments section ofthis 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 the United States Constitution or Texas Constitution §17 or §19, Article I; 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 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 governmental action is not in effect and the market value ofthe property determined as if the governmental action is in effect. The commission completed atakings impact analysis for the proposed rulemaking action under the Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to address those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, the proposed changes concern definitions for and other changes to the PAL rules to meet federal requirements. 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 underthe United States Constitution or the Texas Constitution. The proposal 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 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 subjectto the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and commission rules in 30 TAG Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAG §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



## PROPOSED RULES March 9, 2012 37 TexReg 1665Coordination 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 §501.12(1)). The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal**regula~** tions in 40 CFR to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies. Written comments on the consistency ofthe proposed rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Effect on Sites Subject to the Federal Operating Permits Program Chapter 116 is an applicable requirement of 30 TAC Chapter 122, Federal Operating Permits 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 the adopted rulemaking, revise their operating permit to include the new Chapter 116 requirements. Additionally, sources subject to the rules may become subject to the federal operating permit program. Announcement of Hearing The commission will hold a public hearing on this proposal in Austin on March 29, 2012, at 10:00 a.m. in Building E Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services, at (512) 239-1802. Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http:llwww5.tceq.texas.govlruteslecommentsl. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2012-015-116-AI. The comment period closes April 9, 2012. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www. tceq. texas. gov/navlruteslpropose_adopt.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 (TWC), §5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under



## 37 TexReg 1666 March 9, 2012 Texas Register the TWC; TWC, §5.1 03, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean AirAct The amendment is also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an activity causing or resulting in the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collected by the commission in performing its duties are state property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits for construction of new facilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will evaluate modifications of existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal source or facility; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendment is also proposed under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standard will be achieved and maintained within each air quality control region of the state. The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 382.051, 382.0511

- 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. §116.12. Nonattainment andPrevention of Significant Deterioration Review Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules ofthe commission, the terms used by the commission have the meanings commonly ascribed to them in the field ofair pollution control. The terms in this section are applicable to permit review for major source construction and major source modification in nonattain-ment areas. In addition to the terms that are defined by the TCAA, and in§ 101.1 ofthis title (relating to Definitions), the following words and terms, when used in Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattairunent Review Permits and Prevention of Significant Deterioration Review); and Chapter 116, Subchapter C,**Di~** vision 1 ofthis title (relating to Plant-Wide Applicability Limits), have the following meanings, unless the context clearly indicates otherwise. (1) Actual emissions--Actual emissions as of a particular date are equal to the average rate, in tons per year, at which the unit actually emitted the pollutant during the 24-month period that precedes the particular date and that is representative of normal source operation, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for**establish~** ing a plant-wide applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shall apply for this purpose. The executive director shall allow the use of a different time period upon a determination that it is more representative ofnormal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. The executive director may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions, e.g., when the allowable limit is reflective ofactual emissions. For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit ofthe unit on that date. (2) Allowable emissions--The emissions rate ofa station

### ary 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 ofoperation, 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. (3) Baseline actual emissions--The rate of emissions, in tons per year, ofa federally regulated new source review pollutant. (A) For any existing electric utility steam generating unit, baseline 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 ofa different time period upon a determination that it is more representative ofnormal 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 facility actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the ten-year period immediately preceding either the date the owner or operator begins actual construction ofthe project, or the date a complete permit application is received for a permit. The rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply with the exception ofthose required under 40 Code ofFederal Regulations Part 63, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. (C) For a new facility, the baseline actual emissions for purposes ofdetermining the emissions increase that will result from the initial construction and operation ofsuch unit shall equal zero; and for all other purposes during the first two years following initial operation, shall equal the unit's potential to emit. (D) The actual 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 determining annual emissions, in tons per year, and for adjusting this amount. Baseline emissions cannot occur prior to November 15, 1990. (E) The actual average emissions rate shall include fugitive emissions to the extent quantifiable. Until March I, 2016, emissions previously demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter I0I ofthis title (relating to General Air Quality Rules) shall be included to the extent that they have been authorized, or are being authorized. (4) Basic design**parameters~~For** a process unit at a steam electric generating facility, the owner or operator may select as its basic design parameters eithermaximum 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 vohune, the minimum fuel quality based on Britishthermal 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 of material input, or maximum rate of product output. Combustion process units will typically use maximum rate of fuel input. For sources havingmultiple end products and raw materials, the owneroroperatorshall considerthe primary productorprimaryraw 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 operatorbelieves the basic design parameter as defined in this paragraph is not**appro~** priate for a specific industry or type ofprocess unit. Ifthe executive director approves ofthe use ofan alternative basic design parameter, that basic design parameter shall be identified and compliance required in a condition in a permit that is legally enforceable. (A) The owner or operator shall use credible information, such as results ofhistoric maximum capability tests, design information from the manufacturer, or engineering calculations, in establishing the magnitude ofthe basic design parameter. (B) Ifdesign information is not available for a process unit, the owner or operator shall determine the process unit's basic design parameter(s) 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 ofbuilding supports and foundations, laying ofunderground pipework, and construction ofpermanent storage structures.



## PROPOSED RULES March 9, 2012 37 TexReg 1667With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities that mark the initiation ofthe change. (6) Building, structure, facility, or installation--All of the pollutant-emitting activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and are under the control ofthe same person (or persons under common control). Pollutant-emitting activities are considered to be part ofthe same industrial groupingifthey 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 ofelectricity, or process steam that was not in widespread use as ofNovember 15, 1990. (8) Clean coal technology demonstration project--A project using funds appropriated under the heading "Department of 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 ofa major stationary source ormajor modification, means that the owner oroperator has all necessary preconstruction approvals orpermits and either has: (A) begun, or caused to begin, a continuous program ofactual on-site construction ofthe source, to be completed within a reasonable time; or (B) entered into binding agreements orcontractual obligations, which cannot be canceled ormodified without substantial loss to the owner or operator, to undertake a program ofactual construction ofthe source to be completed within a reasonable time. (10) Construction--Any physical change or change in the method ofoperation (including fabrication, erection, installation, demolition, or modification ofan emissions unit) that would result in a change in actual emissions. (11) Contemporaneous period--For major sources the period between: (A) the date that the increase from the particular change occurs; and (B) 60 months prior to the date that construction on the particular change commences. ( 12) De minimis threshold test (netting)--A method ofdetermining 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 comparedto the significant level for that pollutant. Ifthe significant level is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required. (13) Electricutility steam generatingunit--Any steam electric generating unit that is constructed for the purpose of supplying more than one-third ofits potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution



## 37 TexReg 1668 March 9, 2012 Texas Register 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 Environmental Protection Agency; (B) any pollutantthat is subjectto any standard promulgated under Federal Clean Air Act (FCAA), §Ill; (C) any Class 

### Ior

### II substance subjectto a standardpromulgated 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, §112(b)(3), are not regulated new sourcereviewpollutantsunless the listedhazardous airpollutant is also regulated as a constituent orprecursorofa general pollutant listed under FCAA, §108. ( 15) Lowest achievable emission rate--For any emitting facility, that rate ofemissions ofa contaminant that does not exceed the amount allowable under applicable new source performance standards promulgated by the United States Environmental Protection Agency under 42 United States Code, §7411, and that reflects the following: (A) the most stringent emission limitation that is contained in the rules and regulations ofany approved state implementation plan for a specific class orcategory offacility, unless the owner or operator ofthe proposed facility demonstrates that such limitations are not achievable; or (B) the most stringent emission limitation that is achieved in practice by a specific class or category of facilities, whichever is more stringent. (16) Major facility--Any facility that emits or has the**po~** tential to emit 100 tons peryear ormore 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. (I7) Major stationary**source-~Any** stationary source that emits, or has the potential to emit, a threshold quantity ofemissions or more ofany air contaminant (including volatile organic compounds (VOCs)) for which a national ambient air quality standard has been issued. The major source thresholds are identified in Table I of this section for nonattainment pollutants and the major source thresholds for prevention ofsignificant deteriorationpollutants are identified in 40 Code ofFederal Regulations (CFR) §51.166(b)(I). A source thatemits, orhas the potential to emit a federally regulated new sourcereviewpollutant at levels greater than those identified in 40 CFR §51.166(b)(1) is considered major for all prevention ofsignificant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen oxides is considered to be major for ozone. The fugitive emissions of a stationary source shall not be included in detennining for any ofthe purposes ofthis definition whether it is a major stationary source, unless the source belongs to one ofthe categories of stationary sources listed in 40 CFR §51.165(a)(1)(iv)(C). ( 18) Major modification--As follows.(A) Any physical change in, or change in the method of operation ofa major stationary source that causes a significant project emissions increase and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary source that is not major prior to the increase, the increase by itselfmust equal or 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 nonattainmentpollutants. The major source and significant thresholds for prevention of significant deterioration pollutants are identified in 40 Code ofFederal Regulations §51.I66(b)(I) and (23), respectively. Figure: 30 TAC §116.12(18)(A) (No change.) (B) A physical change or change in the method ofoperation shall not include: (i) routine maintenance, repair, and replacement; (ii) use ofan alternative fuel orraw material by reason ofan order underthe Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by reason ofa natural gas curtailment plan under the Federal Power Act; (iii) use ofan alternative fuel by reason ofan order or rule of42 United States Code, §7425; (iv) use ofan 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 December2I, I976 (unless such change wouldbeprohibitedunder any federally enforceable permit condition established after December 2I, 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 2I, 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; (ix) the installation, operation, cessation, orremoval ofa temporary clean coal technology demonstration project, provided that the project complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is terminated; (x) for prevention ofsignificant deteriorationreview only, the installation oroperation ofapermanent clean coal teclmology 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 (xl) for prevention of significant deterioration review only, the reactivation of a clean coal-fired electric utility steam generating unit. (I9) Necessary preconstruction approvals or permits--Those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations that are part ofthe applicable state implementation plan. (20) Net emissions increase--The amount by which the sum ofthe following exceeds zero: the project emissions increase plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. Baseline actual emissions shall be used to determine emissions increases and decreases. (A) An increase or decrease in emissions is creditable only ifthe following conditions are met: (i) it occurs during the contemporaneous period; (ii) the executive directorhas 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 ofprevention ofsignificant deterioration review only, an increase ordecrease in emissions ofsulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only ifit is requiredto be considered in calculating the amount ofmaximum allowable increases remaining available. (B) An increase in emissions is creditable ifit is theresult ofa physical change in, or change in the method ofoperation ofa stationary source only to the extent that the new level ofemissions exceeds the baseline actual emission rate. Emission increases at facilities under a plant-wide applicability limit are not creditable. (C) A decrease in emissions is creditable only to the extent that all ofthe following conditions are met: (i) the baseline actual emission rate exceeds the new level ofemissions; (ii) it is federally enforceable at and after the time that actual construction on the particular change begins; (iii) the executive directorhas notrelied onit in issuing a prevention ofsignificant deterioration or a nonattaimnent permit; (iv) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change; and (v) in the case ofnonattaimnent applicability analysis only, the state has not relied on the decrease to demonstrate attainment or reasonable further progress. (D) An increase thatresults 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)(l)(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 ofmajormodification. In order for a reduction to qualify as an offset, it must be certified as an emission credit under Chapter I0I, Subchapter H, Division 1 or 4 ofthis title (relating to Emission Credit Banking and Trading; or Discrete Emission Credit Banking and Trading), except as provided for in §116.170(b) ofthis title (relating to Applicability ofEmission Reductions as Offsets). The reduction must not have been relied on in the issuance ofa previous nonattainment or prevention ofsignificant deterioration pennit. (22) Plant-wide applicability limit--An emission limitation expressed, in tons per year, for a pollutant at a major stationary source, that is enforceable and established in a plant-wide applicability limit



## PROPOSED RULES March 9, 2012 37 TexReg 1669permitunder§ 116.186 ofthistitle (relatingto General and Special Conditions). (23) Plant-wide applicability limit effective date--The date of issuance of the plant-wide applicability limit permit. [+he**~laffi..** wide applieability Hmit**e~** date ffiF 

### a p-1-imt-wiae 

### applicability 

### limi-t estab-1-i-sh-etl 

### in an**~** ref'FFI:it is the 

### aate that the**~­** 

### -i:ble pemtit was (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 limitpollutant--Thepollutant 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 ofoperation or on the type or amount ofmaterial combusted, stored, or processed, may be treated as part ofits design only ifthe limitation or the effect it would have on emissions is federally enforceable. Secondary emissions, as defined in 40 Code ofFederal Regulations §51.165(a)(l)(viii), do not count in determining the potential to emit for a stationary source. (28) Project net--The sum of the following: the project emissions increase, minus any sourcewide creditable emission decreases proposed at the source between the date of application for the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to determine emissions increases and decreases. Increases and decreases must meet the creditability criteria listed tmder the definition ofnet emissions increase in this section. (29) Projected actual emissions--The maximwn 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 any one of the ten years following that date, ifthe project involves increasing the facility's design capacity or its potential to emit that federally regulated new source review pollutant. In determining the projected actual emissions, the owner or operator ofthe major stationary source shall include unauthorized emissions from planned maintenance, startup, or shutdown activities, which were historically unauthorized and subject to reporting under Chapter I0I 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, butnot limited to, historical operational data, the company's own representations, the company's expected business activity and the company's hlghest projections ofbusiness activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved state implementation plan. (30) Project emissions increase--The sum ofemissions 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



### 37

## TexReg 1670 March 9, 2012 Texas Register portion ofthe facility's emissions following the project that the facility could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth may be excluded from the project emission increase. The potential to emit from the facility following completion oftheproject may be used in lieu ofthe projected actual emission rate; and (B) for new facilities, the difference betweenthe poten* tial 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 of40 Code ofFederal Regulations §60.15(b)(1), or the facility re* places 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 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 emissionreductions shallbe generated from shutting down the existing facility that is replaced. A replacement facility is considered an existing facility for the purpose ofdetermining federal new source review applicability. (32) Secondary emissions-*Emissions that would occur as a result 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, 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 ofthe construction or operation ofthe major stationary source ormajormodification. 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 orhas the potential to emit a plant-wide applicability limit (PAL) pollutant in an amount that is equal to or greaterthanthe significant level for that PAL pollutant. (34) Small facility--A facility that emits orhasthe potential to emit the plant-wide applicability limit (PAL) pollutant in an amount less than the significant level for that PAL pollutant. (35) Stationary source--Any building, structure, facility, or installationthatemits ormayemitany airpollutantsubjecttoregulation under 42 United States Code, §§740I 

### et seq. (36) Temporary clean coal technology demonstration project--A clean coal technology demonstration project that is operated for a period offive years or less, and that complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal**author~** ity to adopt. Filed with the Office of the Secretary of State on February 24, 2012. TRD-201201120 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: AprilS, 2012 For further information, please call: (512) 239-2548 

# • • • SUBCHAPTER B. NEW SOURCE REVIEW PERMITS DIVISION 5. NONATTAINMENT REVIEW PERMITS 30 TAC §116.150, §116.151 STATUTORY AUTHORITY The amendments are proposed underTexas Water Code (TWC), §5.1 02, concerning General Powers, which provides the**com~** mission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its**pow~** ers and duties under the TWC; TWC, §5.1 05, concerning**Gen~** eral Policy, which authorizes the commission by rule to**estab~** lish and approve all general policy ofthe commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules**consis~** tent with the policy and purposes of the Texas Clean Air Act. The amendments are also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the**commis~** sian's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and**physi~** cal property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.051, concerning Permitting**Au~** thority of Commission; Rules, which authorizes the commission to issue permits for construction of new facilities or**modifica~** tions to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of ExistM ing Facility, which prescribes how the commission will evaluate modifications ofexisting facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendments are also proposed under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standard will be achieved and maintained within each air quality control region of the state. The proposed amendments implement THSC, §§382.002, 382.011 I 382.012, 382.017, 382.051 I 382.05111 382.0512, 382.0513, 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. §116.150. New Major Source orMajorModification in OzoneNonattainment Areas. (a) This section applies to all new source review authorizations for new construction ormodification offacilities or emissions units that 

### will be located in any area designated as nonattainment for ozone under 42 United States Code (USC), §§7407 et seq. 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 ofattainment; (2) the EPA has approved the removal of nonattainment New Source Review lli§B}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 ofantibacksliding. (b) The owner or operator ofa proposed new major stationary source, as defined in§116.12 ofthis title (relating to Nonattainment and Prevention ofSignificantDeterioration Review Definitions) ofvolatile organic compound (VOC) emissions or nitrogen oxides 

### (NO) emissions, orthe owner or operator ofan existing stationary source ofVOC or NOx emissions that will undergo a major modification, as defined in §116.12 ofthis title with respect to VOC orNOx, shall meet therequirements ofsubsection (d)( 1) - (4) ofthis section, except as provided in subsection (e) ofthis section. Table I, located in the definition of major modification in §116.12 ofthis title, specifies the various classifications ofnonattainment 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 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) 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 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, §7511) classified as Marginal or Moderate; or (3) the project emissions increases are less than the**signif~** icant level stated in Table I located in the definition of major modification in §116.12 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 emis· sions increases are greater than the significant levels stated in Table I



## PROPOSED RULES March 9, 2012 37 TexReg 1671located in the definition ofmajor modification in §116.12 ofthis title, the following requirements apply. (1) The proposed**facility~~~~~~** with the lowest achievable emission rate as in §116.12 ofthis title for the nonattainment pollutants for which the facility .Q!**~~~~!!!!!is** a new major source or major modification except as paragraph (3)(B) ofthis subsection and except for existing major stationary sources thathave a potential to emit (PTE) oflessthan I00 tpy ofthe applicable nonattainment pollutant. For these sources, best available controltechnology (BACT) canbe substitutedfor LAER. LAER shall otherwise be applied to each new facility or emissions Wlit and to each existing facility oremissionsunit at which the net emissions increase will occur as a result ofa physical change or change in method ofoperation ofthe unit. (2) All major stationary sources 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 emissions Wlit or facilities oremissions units commence operation, the emissions increases from the new or modified facility or emissions unit or facilities or emissions units must be offset. The proposed facility or emissions unit shall use the offset ratio for the appropriate nonattainment classification as defined in §I16.12 ofthis title and shown in Table I located in the definition ofmajor modification in §116.12 ofthis title. Internal offsets that are generated at the source and that otherwise meet all creditability criteria can be applied as follows. (A) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE ofless than I00 tpy of an applicable nonattainment pollutant are not required to undergo nonattainment new source review under this section, ifthe project increases are offset with internal offsets at a ratio ofat least 1.3 to I. (B) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE ofgreater than or equal to I00 tpy ofan applicable nonattainment pollutant can substitute federal BACT (as identified in §116.I60(c)(I)(A) ofthis title (relating to Prevention of Significant Deterioration Requirements) for LAER, if the project increases are offset with internal offsets at a ratio ofat least 1.3 to I. Internal offsets used in this manner can also be applied to satisfY the 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 outweighthe environmental and social costs ofthat location. (e) For sources located in the El Paso ozone nonattainment area as defined in 40 Code ofFederal Regulations, Part 8I, the requirements ofthis section do not apply to 

### NOx emissions. §116.151. New Major Source or Major Modification in NonattainmentArea Other Than Ozone. (a) This section applies to applications for new construction or modification offacilities or emissions units located in a designated nonattainment area for an air contaminant otherthan ozone. The owner or operator of a proposed new or modified facility or emissions unit that will be a new major stationary source for that nonattainment air contaminant, or the owner or operator of an existing major stationary source that will undergo a major modification with respect to that nonattainment air contaminant, shall meet the additional requirements



## 37 TexReg 1672 March 9, 2012 Texas Register ofsubsection (c)(l)- (4) ofthis section. Table I located in the definition ofmajor modification in §116.12 ofthis title (relatingto Nonattainment and Prevention ofSignificant Deterioration Review Definitions) specifies the various classifications ofnonattainment along with the associated emission levels that designate a major stationary source. (b) The de minimis threshold test (netting) is required for all modifications to existing major sources of federally regulated new source review pollutants, unless the proposed emissions increases associated with a project, without regard to decreases, are less than the major modification threshold for the pollutant identified in Table I located in the definition ofmajor modification in §116.12 ofthis title. (c) In applying the de minimis threshold test, ifthe net emissions increases are greater than the major modification levels stated in Table I located in the definition ofmajor modification in §116.12 of this title, the following requirements apply. (1) The proposed facility or emissions unit shall comply with the lowest achievable emissionrate (LAER) as defined in §116.12 ofthis title for the nonattainment pollutants for which the facility or emissions unit is a new major source or major modification. LAER shall be applied to each new facility or emissions unit and to each existing facility oremissions unit at which the netemissions increase will occur as a result ofa physical change or change in method ofoperation 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 shall be in compliance or on a schedule for compliance with all applicable state and federal emission limits and standards. (3) At the time the new or modified facility or emissions unit or facilities or emissions units commence operation, the emission increases from the new or modified facility or emissions unit or facilities or emissions units shall be offset. The proposed facility or emissions unit shall use the offset ratio for the appropriate nonattainment classification as defined in §II6.12 ofthis title and shown in Table I located in the definition ofmajor modification in §116.12 ofthis title. (4) In accordance with the Federal Clean Air Act, the permit application shall contain an analysis ofalternative sites, sizes, production processes, and control techniques for the proposed source. The analysis shall demonstrate thatthe benefits ofthe proposed location and source configuration significantly outweigh the environmental and social costs ofthat location. This agency hereby certifies thatthe proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on February 24, 2012.**TRD~201201121** Robert Martinez Director. Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: April 8, 2012 For further information, please call: (512) 239-2548 

# • • • SUBCHAPTER C. PLANT-WIDE APPLICABILITY LIMITS

## DIVISION 1. PLANT-WIDE APPLICABILITY LIMITS 30 TAC §116.180, §116.186 STATUTORY AUTHORITY The amendments are proposed under Texas Water Code (TWC), §5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; TWC, §7.02, concerning Enforcement Authority, which provides the commission the authority to enforce the statutes under its jurisdiction; TWC, §7.301, concerning Definition, which defines terms used in Chapter 7, Subchapter G; TWC, §7.302, concerning Grounds for Revocation or Suspension of Permit, which provides the commission the authority to revoke and suspend or revoke and reissue a permit on prescribed grounds after notice and hearing; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendments are also proposed under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an activity causing or resulting in the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collected by the commission in performing its duties are state property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits for construction of new facilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will evaluate modifications of existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal source or facility; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendments are also proposed under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standard will be achieved and maintained within each air quality control region of the state. The proposed amendments implement THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 382.051, 382.0511, 382.0512, 382.0513, 382.0514, 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. §

### 116.180. Applicability. (a) The following requirements apply to a plant-wide applicability limit (PAL) permit. (1) Only one PAL may be issued for each pollutant at an existing major stationary source. (2) A PAL permit may include more than one PAL. (3) A PAL permit may not cover facilities or emissions units at more than one existing major stationary source. (4) A PAL permit may be consolidated with a new source review permit at the existing major stationary source. (5) A PAL permit can be issued only for an existing major stationary source; itmaynotbe issued for anewmajor stationary source as defined in 40 Code ofFederal Regulations §51.165(a)(l)(iv)(A) and §51.166(b)(I)**[§51.165(iY)(/'~)].** (b) The new owner ofa major stationary source shall comply with §116.110(e) ofthis title (relating to Applicability), provided that all facilities, or emissions units at a major stationary source, covered by a PAL permit change ownership at the same time and to the same person, orboth the new owner and existing permit holder must obtain a PAL permit alteration allocating the emission prior to the transfer of the permit by the commission. After the sale ofa facility, or emissions unit at a major stationary source, but prior to the transfer of a permit requiring a permit alteration, the original PAL permit holder remains responsible for ensuring compliance with the existing PAL permit and all rules ofthe commission. (c) The ownerofthe facility, emissions unit at a major stationary source, group offacilities, or account or the operator ofthe facility, emissions unit at a major stationary source, group offacilities, or account that is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) ofthis section. §

### 116.186. General andSpecial Conditions. (a) Theplant-wide applicability limit (PAL) will impose an annual emission limitation in tons per year, that is enforceable for all facilities, or emissions units at a major stationary source, that emit the PAL pollutant. For each month during the PAL effective period after the first 12 months ofestablishing a PAL, the major stationary source owner or operator shall demonstrate that the sum ofthe monthly emissions from each facility under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall demonstrate that the sum ofthe preceding monthly emissions from the PAL effective date for each facility underthe PAL is less than the PAL. Each PAL must include emissions ofonly one pollutant. The PAL must include all emissions, including fugitive emissions, to the extent quantifiable, from all facilities oremissions units at a major stationary source included in the PAL that emit orhave the potential to emit the PAL pollutant. (b) The following general conditions are applicable to every PAL permit.



## PROPOSED RULES March 9, 2012 37 TexReg 1673(I) Applicability. This section does not authorize any**fa~** cility to emit air pollutants but establishes an annual emissions level below which new and modified facilities, or emissions units at a major stationary source, will not be subject to major new source review for that pollutant (2) Sampling requirements. If sampling of stacks or process vents is required, the PAL permit holder shall contact the commission 1s Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate regional office of the commission. The PAL permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (3) Equivalency of methods. The permit holder shall demonstrate the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the PAL permit. Alternative methods must be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements ofthe permit. (4) Recordkeeping and reporting. (A) A copy ofthe PAL permit along with information and data sufficient to demonstrate continuous compliance with the emission caps contained in the PAL permit must be maintained in a file at the plant site and made available at the request of personnel from the commission or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information must be maintained at the nearest staffed location within Texas specified by the permit holder in the permit application. This information must include, but is not limited to, emission cap and individual emission limitation calculations based on a 12-month rolling basis and production records and operating hours. Additional recordkeeping requirements may be specified in special conditions attached to the PAL permit. (B) The owneroroperatorshall retain a copy ofthe PAL permit application and any applications for revisions to the PAL, each annual certification ofcompliance under §122.146 ofthis title (relating to Compliance Certification Terms and Conditions), and the data relied on in certifying the compliance for the duration ofthe PAL plus five years. (C) A semiannual report shall be submitted to the executive director within 30 days ofthe end ofeach reporting period that contains: (i) the identification ofowner and operator and the permit number; (ii) total annual emissions (in tons per year) based on a 12-month rolling total for each month in the reporting period; (iii) all data relied upon, including, but not limited to,

.any quality assurance or quality control data, in calculating the monthly and annual PAL pollutant emissions; (iv) a list of any facility modified or added to the major stationary source during the preceding six-month period; (v) the number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibrationchecks), and any corrective action taken. This may be satisfied by referencing the PAL permit number in the semiannual report for the site submitted under §122.145 ofthis title (relating to Reporting Terms and Conditions);



## 37 TexReg 1674 March 9, 2012 Texas Register (vi) a notification of a shutdown of any monitoring system, whetherthe shutdown was permanent ortemporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation ofthe emissions ofthe pollutant or the number determined by method included in the permit; and (vii) a signed statement by the responsible official, as defined in §122.10 ofthis title (relating to General Definitions), certifying the truth, accuracy, and completeness of the information provided in the report. (D) The owner or operator shall submit the results of any revalidation test or method to the executive director within three months after completion ofsuch test or method. (5) Maintenance of emission control. The facilities covered by the PAL permit will not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. (6) Compliance with rules. Acceptance of a PAL permit by a permit applicant constitutes an acknowledgment and agreement that the holderwill comply with all rules and orders ofthe commission issued in conformity with the Texas Clean Air Act and the conditions precedentto the granting ofthe permit. Ifmorethan one state orfederal rule or PAL permit condition is applicable, the most stringent limit or conditionwill govern and bethe standardby which compliancemustbe demonstrated. Acceptance includes consentto the entrance ofcommission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration ofair contaminants, including compliance with the PAL permit. (7) Effective period. A PAL is effective for ten years. (8) Absence ofmonitoring data. A source owner or operator shall record and report maximum potential emissions without considering enforceable emission limitations oroperational restrictions for a facility during any period oftimethat there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit special conditions. (9) Monitoring system requirements. Failure to use a monitoring system that meets the requirements ofthis section renders the 

### =::...t:..::.=:...:=.c.-=== [is a v1elatien efthe PAL permit]. (10) Revalidation. All data used to establish the PAL pol· lutant must be revalidated through performance testing or other scientifically valid means approved by the executive director. Such testing must occur at least once every five years after issuance ofthe PAL. (11) Renewal. Ifa PAL renewal application is submittedto the executive directorin accordancewith §116.196 ofthis title (relating to Renewal ofa Plant-wide Applicability Limit Permit), the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a renewed PAL permit is issued by the executive director or the application is voided. (c) Each PAL permit must include special conditions that satisfy the following requirements. (1) For the purposes ofthis subchapter, the definitions of the following terms are the same as those provided in 40 Code ofFederal Regulations §51.165.

(CERMS). (A) Continuous emission monitoring system (CEMS). (B) Continuous emissions rate monitoring system(C) Continuous parametermonitoring system (CPMS). (D) Predictive emissions monitoring system (PEMS). (2) The PAL monitoring system must accurately determine all emissions ofthe PAL pollutant in terms ofmass per unit oftime. Any monitoring system authorized for use in the PAL permit must be based on sound science and meet generally acceptable scientific**proce~** dures for data quality and manipulation. (3) The PAL monitoring system must employ one or more ofthe general monitoring approaches meeting the minimum**require~** ments as described in subparagraphs (A)- (D) ofthis paragraph. (A) An owner or operator using mass balance**calcula~** tions to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements: (i) provide a demonstrated means ofvalidating the published content ofthe PAL pollutant that is contained in, or created by, all materials used in or at the facility; (ii) assume that the facility emits all ofthe PAL pollutantthat is containedin, orcreatedby, any rawmaterial or fuel used in or at the facility, ifit cannot otherwise be accounted for in the process; and (iii) where the vendor of a material or fuel that is used in orat the facility publishes arange ofpollutantcontentfrom such material, the owner or operator shall use the highest value ofthe range to calculate the PAL pollutant emissions unless the executive director determines that there is**site~specific** data or a site-specific monitoring program to support another content within the range. (B) An owner or operator using a CEMS to monitor PAL pollutant emissions shall meet the following requirements. (i) The CEMS must comply with applicable performance specifications found in 

### 40 Code ofFederal Regulations Part 

### 60, Appendix B. (ii) The CEMS must sample, analyze, and record data at least every 

### 15 minutes while the emissions unit is operating. (C) An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements. (i) The CPMS or the PEMS must be based on**cur~** rent**site~specific** data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation ofthe facility. (ii) Each CPMS orPEMSmustsample, analyze, and record data at least every 

### 15 minutes orat another less frequent interval approved by the executive director, while the facility is operating. (D) An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements. (i) All emission factors must be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development. (ii) The facility must operate within the designated range ofuse for the emission factor, ifapplicable. (iii) Iftechnically practicable, the owner or operator of a significant facility that relies on an emission factor to calculate PAL pollutantemissions shall conductvalidation testing to determine a site-specific emission factor within sixmonths ofPALpermit issuance, unless the executive director determines that testing is not required. (E) An alternative monitoring approach must meet the requirements in paragraph (1) ofthis subsection and be approved by the executive director. ( 4) Where an owneroroperator ofa facility cannot demonstrate a correlation between amonitored parameter(s) and the PAL pollutant emissions rate at all operating points ofthe facility, the executive director shall: (A) establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or (B) determine that operation ofthe facility during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation ofthe PAL. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on February 24, 2012. TRD-201201122 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: April 8, 2012 For further information, please call: (512) 239-2548 

# • • • TITLE 34. PUBLIC FINANCE 

# PART 1. COMPTROLLER OF PUBLIC ACCOUNTS CHAPTER 3. TAX ADMINISTRATION SUBCHAPTER V. FRANCHISE TAX 34 TAC §3.587 The Comptroller of Public Accounts proposes an amendment to §3.587, concerning margin: total revenue. Subsection (e)(1) is amended to clarify that only taxes that are imposed by law on a third party, collected by a taxable entity and remitted to the taxing authority qualify as flow-through funds. Taxes imposed on the taxable entity itself do not qualify as flowthrough funds and are not allowed as a revenue exclusion. Nonsubstantive changes are made to subsection (b)(1) and (3) to improve clarity and readability. John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rule will be in effect, there will be no significant revenue impact on the state or units of local government. Mr. Heleman also has determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be by providing additional guidance for the calculation of franchise tax obligations. This rule is proposed under Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to individuals who are required to comply with the proposed rule.



## PROPOSED RULES March 9, 2012 37 TexReg 1675

### 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 

### byReducing andPreventing Pollution



## NOTICE OF PUBLIC HEARlNG ON PROPOSED REVISIONS TO 30TAC CHAPTER 116AND TO THE STATE IMPLEMENTATION PLAN
The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30Texas Administrative Code (TAC) Chapter 116, Control ofAir Pollution by Permits for New Construction or Modification, §§116.12, 116.150, 116.151, 116.180, and 116.186, and corresponding revisions to the state implementation plan (SIP) underthe requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental ProtectionAgency (EPA) concerning SIPs. The proposed rulemaking would remove a reference to flexible permits in the definition ofplant-wide applicabilitylimit, include references to federal terminology, and state that the failure to use monitoring required in a plant-wide applicability limit permit would renderthat permit invalid. The commission will hold a public hearing on this proposal inAustin on March 29, 2012, at 1o:oo a.m. in Building E Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structuredfor the receipt oforal orwritten commentsbyinterested persons. Individuals maypresent oral statements when called upon in order ofregistration. Open discussion will notbe permitted duringthe hearing; however, commission staffmembers will be available to discuss the proposal 30 minutes priorto the hearing. Persons who have special communication or other accommodation needs who are planning to attendthe hearing should contact SandyWong, Office ofLegal Services at (512) 239-1802. Requests shouldbe made as far in advance as possible. Written comments maybe submitted to Michael Parrish, MC 205, Office ofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

## http:jjwwws.tceq.texas.govjrulesjecomments/. File size restrictions may apply to commentsbeing submittedvia the eComments system. All comments should reference Rule Project Number 2012-015-116-AI. The comment period closes April9, 2012. Copies ofthe proposed rulemaking can be obtained from the commission'sWeb site at 

## http:jjwww.tceq.texas.govjnavjrulesjpropose_adopt.html. Forfurther information, please contact Blake Stewart, Air Permits Division, (512) 239-6931.

P.O. 

### Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov How is our customer service? tceq.texas.govjgotojcustomersurvey printedon recycled paper

## ADJACENT STATES MAILING LIST

Mr. Michael Vince, Administrator Air QualityAssessment Division Louisiana Department ofEnvironmental Quality Office ofEnvironmentalAssessment P.O. Box 4314 

## Baton Rouge, Louisiana 70821-4314 

## Mr. Mike Bates, Chief Air Division Arkansas Department ofEnvironmental Quality 5301 

## Northshore Drive North Little Rock, Arkansas 72118-5317 

## Mr. Eddie Terrill, Director Air Quality Division Oklahoma Department ofEnvironmental Quality P.O. Box 1677 

## Oklahoma City, Oklahoma 73101-1677 

## Ms. Mary Uhl, Bureau Chief New Mexico Environmental Department Air Quality Bureau 1301 

## Siler Road, Building B Santa Fe, New Mexico 87507

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

### Chairman Carlos Rubinstein, 

### Commissioner Toby Baker, 

### Commissioner Zal{ 

### Covar, 

### ExecutiveDirector 

# TEXAS COMMISSION ON ENVIRONMENTAL QUAUTY

Mr. Carl Edlund, P.E. Protecting Texas by 

### Reducing andPreventing Pollution 

## May3, 2012



## Director, Multimedia Planning and Permitting Division United States Environmental ProtectionAgency, Region 

## 6 1445 Ross Avenue, Suite 1200 

## Dallas, Texas 75202-2733 

## Dear Mr. Edlund:
As 

## partof

## U.S. Environmental ProtectionAgency's (EPA) review ofrules submittedbythe Texas Commission on Environmental Quality (TCEQ or Commission) to address

## the 1997 eight-hour ozone NationalAmbient

## Air Quality Standard andNew Source Review Reform 

## (NSRR) in 2006 

## and 2011, 

## you requestedTCEQ address several issues. The TCEQ responds toyourrequestin tw'o ways. First, 

## on February 22, 2012, 

## the Commissionproposedrulemakingto amend five rules to ensurethatTCEQ's NSRR

## rules are approvable asrevisions to the Texas State Implementation Plan (SIP). These rules were publishedintheMarch 

## 9, 2012 

## edition ofthe 

## Texas Register and the Commission has received comments ontheproposed rules. To expedite

. federal approval, the TCEQ requests that EPA "parallelprocess" these revisions

## totheTexas 

## SIP

in accordance 

## with 40 

## Code ofFederal Regulations (CFR) Part 51, 

## Appendix

## V. Second, we have prepared responses tothe remaining issuesfor which rulemaking 

## is not required. TheTCEQ's responses to theseissues are describedbelow. Compliance withFederal Clean

## AirAct(FCAA) § 

### 11oa) 

## Background EPAadopted its NSRRrules bypublication 

## inthe December 31, 2002 

## issue oftheFederal 

## Register. 1 

## Subsequently, the clean unit andpollution control permitportions ofthe NSRRrules were vacatedbythe D.C. Circuit Court ofAppeals. 2 

## After TCEQ adopted new and amendedru1es 

## in January 2006 

## to implementthethree surviving NSRR program components and submitted those 

## as revisions tothe Texas SIP, EPA proposed disapproval in 2oog,a

## and then tookfinal action to disapprove the rules on September 15, 2010.4 

## InAugust 2010, 

## TCEQ initiated rulemaking to address 

## EPA's proposed disapproval; thatrulemaking amended several, butnot all, ofthe

## rules which were the subject ofthe 2006 

## rulemaking. Those changes were adoptedin February 2011 

## and were submittedto EPAforapproval as part ofthe Texas SIP

## with a request that EPA also considerthe rules amended and adoptedbythe Commission onJanuary 11, 2006, 

## effective onFebruary 1, 2006.

1 

### 67

### Fed. Reg. 80186 (December31, 2002). 2

### ·New York v. United States, 413 F.3d 3 (D.C. Cir. 

### ::was). 3 

### 74Fed. Reg. 

### 48467 (September 23, 2009). 4 75 

### Fed. Reg. 

### 56424.
P.O. Box 13087 • 

### Austin, Texas 78711-3087 • 512-239-1000 • 

### tceq.texas.gov How is our customer service? tceq.texas.gov/customersurvey

### Mr. 

## Carl Edlund, P.E. EPA R6 

## for NSRR 2012 

## Page 2



## This letter supplements those three rulemakings,s and addresses EPA's concerns regarding compliancewith FCAA § 11

## oO) for thethreebasicprogram components ofNSRR: the revised baseline for determiningpre-change ·emissions, the actual-to-projected actualtestfor determiningpost-change increases, andthe Plant-wideApplicability Limit (PAL). Although EPA previously determined, as statedin the New Source Review (NSR) SupplementalAnalysis dated November 2002, 

## thattheimplementation ofthefederal NSRR rules would be environmentallybeneficialJ EPA requestedthatTCEQ

## provide an analysis ofhowTCEQ's rulemakings thatimplementthese changes meet the FCAA § 

## uoQ). 'W'hen EPA adopted its NSRR rules,6 itexpandedits demonstration requirements toinclude not justdifferent definitions but also differentprograms 

## inthe EPA's revised majorNSR regulations. Therefore, tobe approved asmeetingthe 2002 

## revised majorNSR SIP requirements, a State submitting a customizedmajorNSR SIP revision mustdemonstrate 

## why its program and definitions are atleast as stringent astherevised majorNSRbase program.? Moreover, becausethereisan existingTexasMajorNSRSIP, the submitted changes to the majorNSRSIP must meetthe anti-backsliding provisions ofthe FCAAin§ 193, 

## and meet'the requirements in§ 110(1) 

## which provides thatEPA may not approve a SIPrevision 

## ifit will interfere with any applicable requirement concerning attainment and reasonablefurther progress orany other applicablerequirement oftheAct. Furthermore, any submitted SIP revision mustmeetthe applicable SIP regulatoryrequirements and therequirementsfor SIP elementsin Section 110 

## oftheAct) andbeconsistentwith applicable statutoryand regulatory requirements. These caninclude, among otherthings, enforceability, compliance assurance, replicabilityofan element intheprogram, accountability, testmethods, andwhetherthe submittedrules arevague. There arefour fundamentalprinciplesfor therelationshipbetween the SIP and anymajorNSRpermits thatimplementthemajorNSRprogram. Thesefour principles as applied to the review ofa major orminorNSRSIPrevision include: (1) 

## thebaseline emissionsfrom a permittedsourcebe quantifiable; (2) 

## theNSRprogrambe enforceableby 

## specifying clear, unambiguous, and measurablerequirements, including a legal means for ensuring the sources are incompliance with

## the NSR program, andproviding meansto determine compliance; (3)theNSRprogram'smeasuresbereplicable

## by including sufficiently specific and objectiveprovisions sothattwo independent entities applying thepermitprogram's procedureswould obtainthesame result; and (4) the majorNSRpermitprogrambe accountable) includingmeans totrackemissions atsources resultingfrom theissuance of permits andpermit amendments. s

sIn 

### response,TCEQ 

### providedcomments. regardingEPA's 

### proposed disapprovalin 2009, 

### and 

### subsequently adopted changesto 30

### TAC § 

### 116.16o(whichwere 

### submittedto andapprovedbyEPA in 2010). 

### TCEQ 

### also adopted rules to 

### implementthe 1997 

### 8-hour ozone NationalAmbient

### Air Quality Standard (NAAQS) in 2005, 

### which EPA includedin its**~009** 

### and 2010 

### disapproval actions. TCEQ responded 

### by amending rules 

### andsubmittingthem to EPA in 2011; 

### EPA approved mostofthese changes on December 28,2011 

### (76 

### Fed. Reg. 81371). 

### Changes.to 30

### TAC § 

### 116.150 

### remain

### for EPA review 

### as part ofthe NSRRn!lemakings. 6· 

### EPA's NSRRrules werepromulgated 

### on December 31, 2002 

### (67 

### Fed. Reg. 80186) andreconsidered

### with changes 

### on November7. 2003 

### (68 

### Fed. Reg. 63021). 7 

### 67

### Fed. Reg. 

### 8o186, 

### at 80241 

### (December 31, 2002). 

### a See 

### EPA's.Aprll16, 1992, 

### "General 

### Preamble forthe Implementation ofTitle I 

### ofthe Clean AirActAmendments of 1990" (57

### Fed. Reg. 13498) (General Preamble).

### Mr. Carl Edlund, P.E. EPA R6 

### for NSRR 2012 

### Pages


## TCEQ Rules Comply with the§ 110(1) 

## of theFCAA The TCEQ's existing NSRR rules meetthe applicable SIP regulatory requirements andthe requirements for SIP elements in Section 110 

### ofthe FCAA, and are consistentwith applicable statutoryand regulatory>requirements; the sections for whichrule amendmentswere proposed onFebruary 22, 2012 

### also meetthese requirements. Therefore, TCEQ has demonstratedinthe submitted andproposedrulemakings that TCEQ's majorNSR SIP meets all requirements and is approvable as a revision tothe SIP. However, given the changes in the rules, via three rulemakings noted above, TCEQ has not accumulated data for permits issued underthe final version ofthe rules andtherefore has no historical data to perform a quantitative analysis ofemission reductions 

## to supplementthe associatedrulemaking. In addition to the SIP submittals providedto EPA in 2006 

### and 2011, 

### andthe 2012 

### proposed rules and preamble,thefollowing discussion 

## is provided to supportthe TCEQ's positionthatits NSRRrules are approvable as revisions to the Texas NSR SIP. 

## Change in whichyears can be used to establish the baseline emissions (also known as ''2 

### in 10") 

### EPA's NSRRrules changedthe calculation methodologyfor determiningbaseline actual emissionsfor use in major NSR applicabilitydeterminations. NSRR allows the use ofthe highest actual emissions from any consecutive 24-month periodwithin the previous 10

### years in place ofthe actual emissions for the twoyears prior to start-of-construction when establishing baselineemissions. This change accounts for normalbusiness cycles which produce periods of lower emissions while allowing facilities to pursue operational and physical changesin a timely manner. TCEQ included EPA's baseline determination methodin itsrules. The primarybenefit ofthe "2 

### in to" rule is allowing applicants who want to use a two-year period that is notthe two-years immediatelyprior to the submittal ofthe application. An applicant submitting a permit application underthe "2 

### in 10"

### baselineprovisions is requiredto submit emissions documentation for the 24 month period selected as representative; however, thereis no requirementto submit documentationfor the average emissionsforthetwoyears priorto the start ofconstruction unless those were the representativeyears selectedbythe applicant. Therefore, TCEQ has no data currentlyavailable which would allow a comparisonof the emission increases/decreases underthe NSRR rules to whatthose emission changeswould havebeen in the absence ofNSRR. Air Quality PermitApplications (whether only for minor sources, orwhethermajorNSR is also triggered) are reviewed under the rules in effect atthe time ofapplication submittal and, for major NSR, atpennitissuance. Therefore,TCEQ has not requestedthe additionalinformation since it wasnot required atthe time ofthe review. Adoption andimplementation ofthe "2 

### in to" baseline provisions 

## is not expectedto interfere with any applicable requirementconcerning attainment and reasonablefurther progress orany other applicable requirement ofthe

## FCAA. In addition,these rules do notchange existing requirements for obtaining offsets for nonattainmentpermitting and considering all sources for prevention ofsignificant deterioration (PSD) permitting.

9 

### TCEQ excluded malfunction emissions from baseline calculations orprojected actual emissions (as those terms are defined in 30 TAC § 

### 116.12(3)(E) and (29)), and in compliance determinations as required by§ n6.t86{a),both of which arc more stringentthan EPA's major NSR program.

### Mr. Carl Edlund, P.E. EPAR6 for 

## NSRR 2012 

### Page4

In addition, theTCEQ processesthousands ofair quality authorizations everyyear. A substantial number ofthese actions occur at sitesthat are major sources

## which usedthe "2 

### in 10"

### baselineprovisions to determine majorNSR applicability. A significant number ofthese major sources arelocated inthe Beaumont-PortArthur and Houston-Galveston-Brazoria areas and are subjecttothe stringent SIPrequirements for control ofvolatile organic compounds (VOC) andnitrogen oxides 

## (NOx) underTitle 30Texas Administrative Code (TAC) Chapters 115 and 

## 117. In addition, sourcesundergoing construction ormodificationwhich are not subject to thebest available control technology (BACT) or lowest achievable emissionrate (IAER) major NSRrequirements muststill comply

## with Texas' BACT requirementsin 

### 30 TAC 

### § 116.11t(a)(2)(C). These additional limitations assist 

## inensuringthatthereis notbacksliding from controlrequirements for VOC and

## NOx. Use of actual toprojected future actualtest for non-utility (as wellas

## utility) sources EPA's NSRRrules also allowthe use oftheprojectedfuture actual testfor non-utilitysources 

## in determiningNSR applicability. This optionwas previously allowedfor utility sources only. This changeis a voluntary**al~ernative** 

### to the actual-to-potentialto emittest. Either option maybe 

### usedwhen determiningproject increases for use in determiningtheapplicability ofmajor NSR requirements. TCEQ implementedthe EPArule. An applicantutilizingthe actual-to-projected-actualtestwould nothave submittedthe informationforthe actual topotentialto emittest sincethe informationwould beirrelevantto thereview. TCEQ has no data currentlyavailable whichwould allow a comparison ofthe emission increases/decreases under the NSRRrulestowhatthose emission changeswouldhave beenintheabsence ofNSRR. TCEQ isrelying on EPAtoprovide guidance onhowto·properly project

## future emissions, howthose emissionsshouldbetracked, andwhichtype offuture emissions canbe excludedfor anyproject. Adoption and implementation ofthe actual-to-projected-actualtestis notexpectedtointerfere



## . with any applicable requirement concerning attainment and reasonable further progress.or any

other applicable requirementofthe FCA.A. In addition, these rules do not change existing requirementsfor obtaining

## offsets for nonattainmentpermitting andconsidering all sourcesfor PSDpermitting. 

## In addition, sources undergoing construction ormodificationwhicharenot subjectto the BACT orLAER majorNSRrequiren1ents must

## stillcomply

## withTexas! 

## BActrequirementsin SIP-approved30

### TAC § 

### 116.111(a)(2)(C). Thisbackstopresultsin TCEQ's conclusionthat changes to air

### quality as a result ofimplementing NSRRshouldbeneutral

## with respect to reasonable further progress. 

## Plant-wideApplicabilityLimit' The Plant-wideApplicability Limitsets a capfor a site's emissions ofa regulated pollutant. Changes made atthe site are not subjectto majorNSR review aslong

## as the emissions ofthe regulatedpollutant remainbelowthe PAL cap. EPA's PAL rules are a voluntary optionthat provides "the abilityto managefacility-mde emissionswithouttriggeringmajor NSRreview" which

## willfacilitate the ability ofcompanies "torespond rapidlytochangingmarket

### Mr. Carl Edlund, P.E. EPA R6 for NSRR 2012 

### Pages

conditions." 10 

### EPA specifically stated thatthe PAL allows avoidance of

## the majorNSR permitting process when 

## a companymakes "alterationsto thefacility or individual emission 

## units.''u When EPA adoptedits PAL rules, 

## both its Technical Support Document12

### and

## its SupplementalAnalysis 13 

### providedEPA's technical backgroundinformation used to support the rules; AppendixAtothe SupplementalAnalysis is the report of

## the "Flexible Permit Pilot" permit. EPA

### concludedthat, overall, the use ofemission caps in PAL-type permits would actually reduce emissionsin various industrial categories for various pollutants 1

### based on the real VOC reductions achieved from three specificindustrial categories, andthus

## be environmentallybeneficial 

## in enforceable permits.14
In addition, 

## the monitoring, recordkeeping, andreporting (MRR) 

### requirements required to demonstrate compliance 

## with the PAL mayhave the addedbenefit ofoptimizing operations due to improvedmonitoring. Optimization ofoperations generallyhas an associatedreduction inair emissions which could result 

## in a modest contributiontoward reasonable further progress. The characteristics of

## PALs providebenefits toboth thepublic and the regulated entities that utilize them. These characteristics include: use ofa cap for groups ofemission sources on a pollutantspecificbasis, operational flexibility, regulatory certainty, no circumventionofmajor NSR, detailed

## MRR requirements, and environmentalbenefit. Texas 

## has had a small number of 

## sitestake advantage ofthe 

## PAL option under the federal 

## NSRR rules 1 

### andonly two were issued afterthe TCEQ adopted the n1le amendments in 2011, 

### one in Harris County and oneinJefferson County. This 

## is aninsignificant percentage ofthenumberofpermits currently authorized annuallyin Texas, whichis typically morethan**14~000** 

### permits. Because TCEQ 

## has issued only two PAL

## permits since the majority ofthe rules were adoptedbyTCEQ 1 

### no data exists·to determine whetherthe 

## PAL program**~ould** 

### adversely affect airquality.
In addition, 

## the 

## PAL for a specificpollutantisbaseduponbaseline actual emissionsfor that pollutant. Any future construction or modifications underthe 

## PAL which are not subjectto the BACf orlowest achievable emission reduction majorNSR requirements must

## still comply

## with Texas' 

## BACT requirements in 

## 30 TAC § 

### n6.111(a)(2)(C). In some cases, controls beyondthose accepted as 

## BACT for minor

## NSR maybe required to meet the 

## PAL cap. Sources under a 

## PAL located 

## inthe Beaumont-PortArthur and Houston-Galveston-Brazoria areas are also subjectto the stringentSIPrequirements under 

## 30 TAC Chapters 

## 115 and 

## 117. Thisbackstop results in TCEQ's conclusion that changes to air quality as a result ofimplementingthe 

## PALportion 

## of NSRR will be neutral in affectto air qualityreasonable further progress.

lo 

### 67

### Fed. Reg. 80186,80189 (December

### 31, 2002). tl 

### EPA's use ofthe term "facility" is understoodto mean the entire plant site. In contrast, theTexas Clean AirAct defines 

### "facility" very narrowly and it is analogous to the EPA term "emissions unit." 1101.

### Technical SupportDocumentfor the Pl'evention ofSignificant Deterioration and NonattainmentAreaNewSource Review Regulations, 

### United States EnvironmentalProtection

### Agency, Office ofAir Quality Planning and Standards (November 

### 2002). 13 

### New Source Review Improvements, SupplementalAnalysis ofthe Environmental Impact ofthe 2002 

### Final NSR Improvement Rules, United States Environmental Protection Agency (November 

### 21, 2002). l4 

### I

### d., pp. 2, 

### and 

### 6-8, and 

### AppendixA, Executive Summary, page 4·

## Mr. Carl Edlund, P.E. EPA R6 for NSRR 2012 Page6
Specific QuestionsRaisedbtL 

## EPA Region 6 

## Whether TCEQ's Plant-wideApplicabilityLimit(PAL) Permits arePracticallyEnforceable A 

## permit is practically enforceableifpermitconditions establish clearlegal obligations andallow compliancewith those obligationsto beverified. Inits final rule adopting thePAL rules, EPA's notice discusses the

## MRR requirementsfor a PAL permit, and EPA characterizedthese requirements as addressing a numberofissues associated

## with practical enforceabilityof PALs. 15 

## EPA requestedTCEQ demonstrate thatthe**TCEQ~s** 

## PAL rules 

## will result 

## inPAL permits that are practically enforceable, because the permitprovisions specifyboth a technically accurate limitation aswell as the portionsofthe source subjecttothelimitation, thetimeperiod for thelimitation, and the methodto determine compliance, including appropriate 

## MRR requirements. TheTCEQ rules that satisfythe applicable federal PAL requirements, 

## as established 

## inEPA's rules, are as follows: Technically accurate limitation andidentification oftheportions of the source thatare subjectto the limitation. · Texas established

## its PALprogrambasedon 30TAC §§ 116.180, 116.182, n6.186(a)7 and 116.188. 

## Theserules satisfythe Federal requirements 

## in40 CFR**51.165(±)(3)(i)~** 

## (f)(4)(i)(A) & 

## (E), & 

## (f)(6)(1) and51.166(w)(3)(i), (w)(4)(i)(a) & 

## (e), & 

## (w)(6)(1), 

## andtherefore renderthe program, 

## and PAL permits issued undertheprogram, practically enforceable. 

## The timeperiod for 

## the limitation Texas rules state thatthe PALlimitmustbemeton a 12-month rolling average [30

## TAC §§ 116.182(3) and n6.186(a)]. Theserules meetthefederal requirementsin

## 40 C:FRst.165COC3)(i) and (0(4)(i)(A) & 

## (E) and 51.166(w)(3)(i) and (w)(4)(i)(a) & 

## (e), andtherefore renderthe program, and PAL permits issued undertheprogram, practicallyenforceable. The methodto determine compliance, including appropriateMRR Detailed MRRthat is consistentwith the Federal PALrequirements, and also meetthe requirementfor practical enforceability is found in 30

## TAC § 

## 116.186. Specifically, the requirements in§§ n6.186(b)(4), (b)(6) 7 

## (b)(8), (b)(9) and (c) meet40 CFR 51.16s(f)(13)-(14) and**51.166(w)(13)~(14),** 

## andtherefore render the program, andJlAL pennitsissuedunder the program7 

## practicallyenforceable. Whether 

## the TCEQ rules meet40 

## CFR 51,166(w)(7)(iv), 

## 51.165(a)(1)(xxxv)(A)(2) and(B)(1), and51.166(b)(47)(i)(a) and (ii)(a) with respect to inclusion of malfunction emissions. APAL permitlimit can begenerallyenforcedlike any 

## otherpermit**limit~** 

## andtheTCEQ has authorityto enforce 

## all permitrequirements; this authority is found inTex. Water Code, Chapter 

## 71 

## and Tex. Health & 

## Safety Code§§ 382.011,382.015,382.016,382.0515,382.0516, 382.022, 382.023, and 382.085, aswell as in certainrulesfound in30

## TAC Chapter 101, 

## SubchaptersA and F. In addition, TCEQ rule 30TAC § 

## 101.201 requires regulated entities,

l5 

### See 67Fed. Reg. 80186, 

### at 80211-80214 

### (December31, 2002).

## Mr. Carl Edlund, P.E. EPA R6 

## for NSRR 2012 

## Page7
regardless ofwhetherthey have a PAL permit, to record (andin some cases report) emissions events, which includes unscheduled maintenance, startup, and shutdown (MSS) activity emissions. Emissions from malfunctions are unauthorized emissions 

## as definedin 30

## TAC § 101.1(107);

## therefore, they are unauthorized (non-compliant) emissions. Exceedances ofa PAL limit, such as emissions from malfunctions, are unauthorized emissions and subject to enforcement. TCEQ represented to EPA Region 6 thatunscheduled MSS activityemissions are functionally equivalent to EPA's definition ofmalfunction. 16 

## Finally, PAL permits are incorporated in TCEQ's TitleVpermitsbyreference. Acitation for violating a limit in a PAL permit could be includedin an enforcement case. The TCEQ does not "reward'' non-compliancebyinclusion. Exclusion ofthese emissions when the PAL is 

## established means that TCEQ's rules are more stringentthanEPA's requirements. In addition, TCEQ does not include malfunction emissions aspartofthe calculation ofbaseline emissions orprojected actual emissions [as those terms are defined in 30

## TAC §§ 

### 116.12(3)(E) 

## and 

## (29)]. This means thatTCEQ 

## is atleast as stringent as or more stringent than EPA's requirement. Furthermore, EPAhas approved similarrules in other states. For example, South Carolina omitted the word ''malfunction" from its definitions of"baseline actual emissions" and 

## ''projected actual emissions." 17 

## In its adoption ofthese definitions, the state said this omission wasjustifiedbecause the South Carolina Department ofHealth and Environmental Control had never permittedmalfunction emissions, and concluded that therewas no advantage to including malfunction emissions in 

## either calculation. EPA concurred that omitting malfunctions does notlessen the stringency ofSouth Carolina's NSRprogram. 1B 

## Similarly, the rules adopted bythe Florida DepartmentofEnvironmental Protection19 

## do not require the inclusion ofemissions associated 

## with malfunction. Instead, Florida relies only on quantifiable emissions that can be verified, for bothprojectedactual emissions andbaseline actual emissions. Since this approach "Will notprevent malfunctions from being exceedances of applicable standards, and does not affect obligations regarding excess emissions related notifications requiredby state or federal law, EPA determined thatthis difference does not make F1orida·sprogramless stringentthan thefederal program. 20 

## TCEQ,s similar approach is therefore also more stringentthan the federal rules. 

## VVhether information generated 

## by a monitoring system required 

## by a PAL

## permitcondition can m.eet the requirements for admissibility in ajudicialproceeding Texas statutes andTCEQ rules adopted underthose statuteswhich e::,i:ablish thejurisdiction of the TCEQ, as well as pern1it conditions, require owners and operators offacilities thatmay emit air contaminants, which are authorized for construction and operation, to maintain data

16 

### Letter from John Steib, DeputyDirector, TCEQ Office ofCompliance & 

### Enforcementto John Blevins, Director, ComplianceAssurance andEnforcement Division, USEPA, Region-6 

### Dallas, Aprilq, 2007. 17 

### South Carolina 

### Code Section R61-62.1, 

### Standard 7(b)(4) and (b)(4)(i)(a), and (b)(41) 

### and (b)(41)(ii)(b), 

### and Standard 7.1(b)(2) 

### and (b)(2)(B)(i)(a), and (b)(ll) 

### and (b)(u)(B)(ii). 18 

### Proposed approval 72 

### FR 52031, 52035 

### (Sept. 12, 2007); 

### final approval 73 FR 31368 (June 2, 2008). l9 

### Florida 

### Administrative Code §62-210.200(36) 

### and (244). 20 

### Proposal 

### upproval73 Fed. Reg.1B466,**18470~71** 

### (April4, 2008); 

### approval73 Fed. Reg. 

### 36435 (June 

### 27, 2008).

### Mr. Carl Edlund, P.E. EPA R6 for NSRR 2012 

### PageS

necessaryto demonstrate compliancewiththe terms and conditions oftheir authorizations. That authority 

## is found 

## in Tex. Health 

## &Safety Code§§ 382.011, 382.012, 382.014, 382.016, 382.051, 382.0513, 382.0514, 

### and 382.0515; 

### Tex. WaterCode§§ 5.013(a)(11), 7.179, 7.180, 

### and 7.181; 

### andTCEQ 

### rules 30 

### TAC .§§ 

### 116.111, 116.115 

### (which are,forthe most part, SIP 

### approved) 

## and§§ 116.711 

### and u6.715. Additionally, theTexas Legislature

## bas providedtheTCEQ 

## with the enforcement authorityinTex. Water Code Chapter

## 7to initiate an action to enforcethe statutes within thejurisdictionofthe TCEQ, such as 30 TAC §.§ 

### 7

..179, 7.180, 

### and 7.181. 

### TheTCEQ 

### adoptedthe requirementthattheTexas Rules ofEvidence, as applied

## in nonjurycivil cases

## inthedistrict courts ofthis state, 

## befollowed in 

## all hearings.21 

### Theinitialfactor affecting admissibility 

## is relevance, andtherelevance ofofferedevidence

- evidence ofnon-compliance in 

### an enforcement 

## hearing- will supportadmissibility. ·However, 

## ifthe datais not sufficientto support admissibility, oris non-existent, thenthe executive director may pursue an enforcement actionfor failing to· maintain the data necessaryto demonstrate compliance. 

## Conclu.c;ion TCEQ remains obligated underits 

## SIP andthe FCAA

### toprevent emissionincreases dueto any relaxation in requirements. 

## Themajor NSRpermittingprogram

## will continue

## to serve

## its intended role of

## assuring new and significantly modified sources are well controlled, as 

## will the ·TCEQ's minorNSRprogram. And, although permittingis consideredtobe a control measure, 

## NSR

## is nottheprimarycontrol measureforattainmentof

## the NAAQS.

. Thisbackstopresults 

### in TCEQ's conclusionthatchanges to air

## quality as a result ofimplementing

## NSRR shouldbe 

### neutralwithrespect to attainment andmaintenance ofthe 

## NAAQS andreasonable further progress as required

## bythe FCAA. 

### I 

### am confidentthatthe proposed rule changestogether

## with the information submittedin this correspondencewill ensure SIP approval ofthe rules adoptedtoimplementNSRReform. Ifyou have anyquestions orneedfurther information, please contact SteveHagle 7 

### DeputyDirector for TCEQ Office ofAir. Sincerely,

cc: Richard Hyde, P.E., DeputyExecutive Director Ramiro Garcia Jr., DeputyDirector, Office ofCompliance and Enforcement Steve Hagle, P

## .E.: Deputy Director, Office of

## Air Caroline Sweeney, DeputyDirector, Office ofLegal Services MikeWilson, P.E., Director, AirPermitsDivision, Office ofAir

21 30TAC § 

### 80.127.Testimony

### INDEX OF WRITTEN TESTIMONY

Reference Number Submitted By

W-1 

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

# BAKER BOTTS LLP



## April 9, 2012 005580.0118 ONE SHELL PlAZA 91 0 LOUISIANA HOUSTON, TEXAS 77002·4995
TEL +1713.229.1234 FAX + 1 713.229.1522 www. bakerbotts.com

Zachary L. Craft TEL + 1 713.229.1133 ABU DHABI AUSTIN BEIJING DALlAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIYADH WASHINGTON


## Michael Parrish MC205 FAX + 1 713.229.7933 zochary.craft@bokerbotts.com 

## Office ofLegal Services Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 78711-3087 512.239.4808 (fax)
Re: TIP Comments on NSR Reform Rule Project Number 2012-015-116-AI Dear Mr. Parrish: The Texas Commission on Environmental Quality ("TCEQ") has invited public comments on the above-referenced rule project proposal. These comments are submitted on behalfofthe Texas Industry Project (''TIP"), a group of70 companies in the chemical, refining, oil and gas, electronics, forest products, terminal, electric utility, and transportation industries with operations in Texas. TIP supports TCEQ's efforts in this rule project to address EPA's concerns with 

## the Texas New Source Review (''NSR") program. TIP members are affected by virtually every aspect ofthe NSR program and share TCEQ's objective ofrevising its NSRregulations to ensure their prompt approval by EPA into the Texas State Implementation Plan ("SIP"). However, TIP also has concerns about certain features ofthe proposal that relate to Plantwide Applicability Limit (''PAL") permits. These concerns, and TIP's requested changes, are discussed below. 

## 1. "Failure to Use'' a PAL Permit Monitoring System TIP requests that TCEQ revise 30 Tex. Admin. Code § 116.186(b)(9) to add a sentence after TCEQ's proposed language, to read as follows:

HOU02:1247905.4 

## (9) Monitoring system requirements. Failure to use a monitoring system that meets the requirements of this section renders the PAL permit invalid. shall specify the monitoring systems that meet the requirements of this section and specify the data substitution methods for determining PAL pollutant emissions during monitor downtime, and such monitor downtime by itsel(shall not be considered a failure to use

## BAKER BOTTS LL.P. 

## Michael Parrish



## - 2

-

the monitoring system 

## ifcompliance with the requirements of paragraph {b)(8) above is demonstrated. Monitor downtime includes periods when quality-assured monitoring data are not available for any reason, including equipment malfunction. repair, periodic maintenance, and quality assurance activities. 

## April 9, 2012

The requested language is consistent with TCEQ's intent for the rule and its treatment ofthe issues in the preamble. See 

## 37 Tex. Reg. 1661, 1663 (Mar. 9, 2012). The requested language is important because it unambiguously forecloses the possibility that TCEQ's rule would be interpreted to require a PAL to be invalidated for a monitoring device malfunction or other downtime. Only the text of the rule that TCEQ ultimately promulgates will become part of the SIP and be enforceable through EPA administrative enforcement or in a federal court through a Federal Clean Air Act citizen suit. There can be no assurance that future enforcement or litigation decisions will be made in consultation or deference to TCEQ's position as expressed in a preamble. The requested language is also consistent with 

## the federal PAL rules and should not prevent prompt EPA SIP-approval: "[T]he phrase 'failure to use' in EPA's rule means a failure to install or failure to operate the prescribed monitoring device or system to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the 1nonitoring device or system." 37 Tex. Reg. at 1663; see also 

## 75 Fed. Reg. 56,423, 56,438 (Sept. 15, 201 0) (indicating that EPA intended to require state PAL programs to provide for "invalidating the PAL ifthere is no compliance 

## with the required monitoring" (emphasis added)). 

## 2. Distinction Between PAL Permit Monitoring and Other lVIonitoring TIP also requests that TCEQ specify the monitoring requirements that are subject to 30 Tex. Admin. Code § 116.186(b)(9) when issuing, changing, or renewing individual permits that include PALs. The permit invalidation language in the federal PAL rules should logically be construed only to apply to the minimum monitoring requirements of the PAL rules themselves, not to supplemental or non-PAL-pollutant monitoring requirements orto monitoring systems that exceed minimum PAL requirements. TIP's requested language above is consistent with this approach. Conclusion
TIP appreciates your consideration. Please do not hesitate to contact me if you have questions.

HOU02:1247905.4

## BAKER BOTTS LLP 

## Michael Parrish

HOU02:1247905.4 

### ..,


## - ,) 

## - April 9, 2012

### INDEX OF ORAL TESTIMONY Public Hearing March 29, 2012, in Austin

TCEQ received no oral testimony for this rulemaking.

## - 1 - 

# Texas Commission onEnvironmental Quality Public Hearing Registration
Date:March 29, 2012 

## Time: 10:00 

## am Rule Project No.: 2012-015-116-AI 

## ShortTitle: NSR Reform Revisions Location: BuildingE, Room 2018, 

## atthe commission's central office located at 12100 

## Park 35 Circle Concerning: The proposed revisions 30 

## TAC Chapter 

## n6, Control of Air Pollution by Permits for New Construction or Modification, and correspondingrevisions tothe stateimplementationplan. Name Representing Presenting Oral Testimony? (Please Print) (Circle One)**~---------~**

# ~No



# -------**~** Yes 

## No

# {;~**~** Yes 

## No 

# / l\JV'**~V_...** 

### Yes 

## No 

# ./\t/\**~~** Yes 

## No 

# pz \. 

# \f'l v Yes 

## No ,0\. ;' 

# / 

# NV (A).,," Yes 

## No 

# / Yes 

## No

## HEARINGOFFICERREPORT

I am the hearing officer assigned to conduct the public hearing regarding the proposed revisions 30 TAC 

## Chapter 116, 

## Control ofAir Pollution by Permits for New Construction or Modification, and corresponding revisions to the state implementation plan A 

## public hearing was scheduled for 10:00 

## a.m. on March 29, 2012, 

## inbuilding E, 

## room 2018, 

## at the commission's central office located at 12100 

## Park 35 Circle. At 9:30 

## a.m., the room was open and TCEQ staff members were available to discuss theproposal. At 1o:oo 

## a.m., TCEQ 

## staff

## and a courtreporter were present and ready to open the hearing for public comment. After waiting for ten 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.

Hearing Officer

Date signedEvaluation

# Texas Commission on Environinental Quality Interoffice Memorandum To: 

## Commissioners 

## Date: July 6, 2012 

## Thru: Bridget C. Bohac, ChiefClerk Zak Covar, Executive Director 

## From: Steve Hagle, P.E., Deputy Director Office ofAir 

## Docket No.: 2011-2229-RUL 

## Subject: CommissionApproval for RulemakingAdoption Chapter 116, Control ofAir Pollutionby Permits for New Construction or Modification New Source Review Reform Revision Rule Project No. 2012-015-116-AI 

## Background and reason(s) for the rulemaking:

On June 10, 2005, theTCEQ submitted amendments to 30TAC §116.12 to the United States Environmental ProtectionAgency (EPA) as revisions to the New Source Review (NSR) State Implementation Plan (SIP) and §116.150 as revisions to the Nonattainment New Source Review (NNSR) SIP, both adopted on May 25, 2005. On February 1, 2006, theTCEQ submitted amendmentsto §§116.12, 116.121, 116.180, 116.182, 116.186, 116.188, 116.190, 116.192, 116.601, and 116.617 to the EPA as revisions to the NSR SIP. On September 23, 2009, the EPA published notice ofthe proposed disapproval ofthese revisions to the Texas SIP (74 

## Federal Register48467, September 23, 2009). The EPA's final disapproval notice was published September 15, 2010. On March 11, 2011, the TCEQ submitted a revised SIP package amending some ofthese rules to address the issues outlined inthe EPA's disapproval. On September 30,2011, the EPA expressed its intention to propose a conditional approval ofthe package and requested a dialog to resolve certain EPA concerns andfacilitate a final approval. This rulemaking addresses those concerns. 

## Scope ofthe rulemaking: A.) 

## Summaryofwhat the rulemaking will do: • Remove obsolete language referencing flexible permits in the definition ofPlantwide applicability limit (PAL) effective date (§116.12(23)); • Include text that provides that a reference to "facility" also refers to the federal rule

term "emissions unit" where appropriate in §116.150 and § 116.151, both concerning NNSR permitting; • Include a reference to the federal definition ofmajor stationary source (40 Code of

Federal Regulations §51.166(b)(1)) and correct a typographical errorin a reference to a federal rule in §116.18o(a)(5). Note that EPA offered an alternative which was to reference the definition ofmajor stationary source in §116.12(17); however, staff believes that referencing the federal rule is adequate for SIP approval, will eliminate

## Commissioners Page 2 July 6, 2012 Re: Docket No. 2011-2229-RUL

a needto change this cross reference when any changes are made inthe future to §116.12, andwill minimize potential confusion; and • Include language in §116.186(b)(g) to indicate thatthe failure to use a monitoring

system meeting requirements renders the PAL permit invalid. B.) Scope requiredbyfederal regulations orstate statutes: 

## Staffis recommending amendments to §116.12, Nonattainment Review Definitions; §116.150, New Major Source or Major Modification in Ozone NonattainmentAreas; §116.151, New Major Source orMajor Modification in NonattainmentArea OtherThan Ozone; §116.180, Applicability; and §116.186, General and Special Conditions. C.) 

## Additional staffrecommendations that are not requiredbyfederal rule or state statute: 

## None. Statutoryauthority: 

## Statutoryauthorityincludes Texas Water Code, §5.102, General Powers; §5.103, Rules; §5.105, General Policy; §7.02, EnforcementAuthority; §7.107, Violation; §7.301 Definition; and §7.302, Grounds for Revocation or Suspension ofPermit. StatutoryAuthority also includes Texas Health and Safety Code, §382.017, Rules; §382.002, Policy and Purpose; §382.011, General Powers and Duties; §382.012, StateAir Control Plan; §382.016, Monitoring Requirements; Examination ofRecords; §382.021, Sampling Methods and Procedures; §382.040, Documents; Public Property; §382.051, PermittingAuthority ofthe Commission; Rules, §382.0511, Permit Consolidation andAmendment; §382.0512, Modification ofExisting Facility; §382.0513, Permit Conditions; §382.0514, Sampling, Monitoring, and Certification; §382.0515, Application for Permit; and §382.0518, Preconstruction Permit. The amendments are also adopted under Federal CleanAirAct, 42 United States Code, §§7401, 

## etseq., which requires statesto submit SIP revisions that specifY the mannerinwhich the national ambient air quality standardswill be achieved and maintainedwithin each air quality control region ofthe state. Effect onthe: A.) 

## Regulated community: 

## Although the EPA has noted deviations from the federal rules for the major NSR SIP in state rules, theAir Permits Division (APD) has required applicants to complywith all applicable conditions ofmajor NSR, andtherefore, there shouldbe no adverse impacts associated with the resolution ofthese deviations. B.) Public: 

## There will be no effect on the public since the APD is currently conducting reviews ofsources subject to NSR that meetfederal definitions and requirements. C.) 

## Agency programs: 

## There will be no effect on agency programs since the APD is currently conducting reviews of sources subject to NSR that meet federal definitions and requirements.

## Commissioners Page 3 July 6, 2012 Re: Docket No. 2011-2229-RUL

Stakeholdermeetings: No stakeholder meetings were held. Standard notice ofthis action and an opportunityfor commentwas provided. Public Comment: Only one commentletter was received. Texas IndustryProject requests thatthe commission addlanguage to §116.186(b)(9) that unambiguously forecloses the possibilitythat the TCEQ rule be interpreted thatthe malfunction ofa monitoring device could leadto the invalidation ofa PAL permit. Only the rule text is enforceable, andthere is no assurance that future enforcement or interpretationwill be made in deference to the commission's position, as expressed inthe preamble, that "failure to use" a monitoring system refers to installation and does not include malfunctions. The phrase "failureto use" in EPA's PALrule means a failure to install or failure to operatethe prescribedmonitoring device or systemto operate under a PAL permit, ratherthan an inadvertent malfunction ormaintenance downtime ofthe monitoring device or system. The language §116.t86(b)(9) 

## is intentionallyidenticalto that usedbyEPA 

## init PALrules andwas chosento ensurethe SIP approvabilityofthis adoption. The executive directorhas no formal indicationfrom EPAthat itwould find otherlanguage approvable and recommends adoptingthe language as proposed. SignificantChanges from Proposal: None. Potential controversial concerns and legislative interest remaining after proposal andpublic comment: None anticipated. Doesthis rulemaking affect anycurrent policies orrequire development of newpolicies? No. What are the consequences ifthis rulemaking does not go forward? 

## Ifthis rulemaking does not go forward, federal SIP approval ofmajorNSR permittingwill be jeopardized. The timing ofthis rulemaking coincides with EPA's statementtoTCEQ staff that EPA will propose a conditional approval ofall ofthe NSR Reform and NSR Nonattainmentpermitting SIP changes submittedbyTCEQ, including those that are part ofthis current rulemaking. The condition tobe satisfied is thatTCEQ adopts the amendmentswithin one year. Although the rule amendments adopted in 2011 are notthe subject oflitigation regarding EPA review ofthe rules, EPA has agreed with BCCAAppeal Group, et al, totake action on the TCEQ's 2011 rules (which includes some rules adopted or amended in 2005 and 2006) by summer 2012. TCEQ's proposal on February 22, 2012 will assist inthat effort. In addition to this rulemaking, onMay 4, 2012, the Executive Director provided a letter, atthe request ofEPA Region 6, which contained additional information regarding how the commission's rules implementing NSR Reform comply with FCAA § 110(1). The letter also addresses specific questions raised byEPA Region 6 regarding the practical enforceability ofPAL permits, TCEQ's treatment ofmalfunction emissions with regard to PAL permits, andthejudicial admissibility ofmonitoring data requiredby PAL

## Commissioners Page4 July 6, 2012 Re: Docket No. 2011-2229-RUL
permits. A copy ofthe letteris attached is provided in the backup materials for informational purposes. 

## Are there alternatives to rulemaking? The commission could decline to address the EPA's request and wait for further EPA action. 

## Keypoints inthe adoption rulemaking schedule: 

## TexasRegisterproposalpublication date: March 9, 2012 

## Anticipated 

## Texas Registerpublication date: August 10, 2012 

## AnticipatedEffective Date: August 16, 2012**Six~month** 

## TexasRegisterfiling Deadline: September 9, 2012 

## Agencycontacts: Michael Wilhoit, 239-1222, Air Permits Division Janis Hudson, 239-0466, Environmental Law Division Michael Parrish, Texas Register Coordinator, 239-2548

cc: ChiefClerk, 2 copies Executive Director's Office Susana M. Hildebrand, P.E. Anne Idsal Curtis Seaton Tucker Royall Office ofGeneral Counsel Michael Wilhoit Michael Parrish

## Texas Commission on Environmental Quality Page 1 

## Chapter 116- 

## Control ofAir PollutionbyPermits for New Construction orModification Rule Project No. 2012-015-116-AI



## The Texas Commission on Environmental Quality (commission orTCEQ) adopts amendments to §§116.12, 116.150, 116.151, 116.180, 

## and 116.186.



## Section 116.180 

## is adopted 

## with change to the proposed text as published in the March 9, 2012, 

## issue ofthe 

## Texas Register (37

## TexReg 1661). 

## Sections 116.12, 116.150, 116.151, 

## and 116.186 

## are adopted

## withoutchanges to the proposed text andwill notbe republished.

The amendments to §§116.12, 116.150, 116.151, 116.180, 

## and 116.186

## will be submittedto the United States Environmental ProtectionAgency (EPA) as revisions to the State Implementation Plan (SIP).



## Background and Summaryofthe Factual BasisfortheAdopted Rules On June 10, 2005, 

## theTCEQ submitted amendments to §116.12 

## to the EPA as revisions
to the New Source Review (NSR) SIP and §116.150 

## as revisions to the Nonattainment New Source Review (NNSR) SIP, both adopted onMay 25, 2005. 

## On January 11, 2006, 

## theTCEQ repealed §§116.180

- 116.183, 116.410, 

## and 116.617; 

## amended §§116.12, 116.150, 116.151, 116.160, 

## and 116.610; 

## and adopted new §§116.121, 116.180, 116.182, 116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196, 116.198, 116.400, 116.402, 116.404, 116-406, 116.617, 

## and 116.1200. 

## The TCEQ submittedthese to the EPA as revisions to the NSR SIP to implement EPA's NSR Reform rules which becamefinal on

## Texas Commission on Environmental Quality Page 2 

## Chapter 116- 

## Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2012-015-116-AI



## December 31, 2002. 

## On September 23, 2009, 

## the EPA published notice ofthe proposed disapproval ofthese revisions to theTexas SIP on September 23, 2009 (74 

## Federal Register 48467). 

## The EPA publishedthe final disapproval notice on September 15, 2010 (75

## Federal Register 56423).



## On February 9, 2011, 

## in response to the EPA's final disapproval, theTCEQ repealed §116.121, 

## adopted amendments to §§116.12, 116.115, 116.150, 116.180, 116.182, 116.186, 116.188, 116.190, 116.192, 116.601, 

## and 116.617; 

## and adopted new §116.127. 

## The commission published these amendments in the February 25, 2011, 

## issue oftheTexas Register (36

## TexReg 1305 

## and 1324). 

## On March 11, 2011, 

## the TCEQ submitted a revised SIP package thatwas based onthe rule amendments, with the exception of §116.617, 

## adopted on February 9, 2011, 

## and addressed the issues outlined in the EPA's disapproval. On September 30, 2011, 

## the EPA expressed its intentto propose conditional approval ofTCEQ rules implementing the changes to the NSR SIP andthe NSR Reform and requested a dialog to resolve certain EPA concerns andfacilitate a final approval. This rulemaking addresses those concerns.

This rulemaking is atleast as stringent as the federal rules it implementsbecause it includes the applicable elements ofthe major NSR and plant-wide applicabilitylimit (PAL) permitprograms. The rulemaking action also ensures thatthe rulemaking, if adopted, will meet the requirements ofFederal CleanAirAct (FCAA), §110 

## which,

## Texas ComPJission on Environmental Quality Page 3 Chapter 116- 

## Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2012-015-116-AI



## among other requirements, requires thatthe elements ofthe SIP be enforceable, ensure compliance, include replicable elements, and ensure accountability. The specific changes to the PAL rules meetthese basic requirements. In addition tothis rulemaking,

onMay 4, 2012, 

## the executive director provided a letter, atthe request ofEPA Region 6, 

## which contained additional information regarding how the commission's rules implementing NSR Reform complywith FCAA, §110(1). 

## The letter also addresses specific questions raisedby EPA Region 6 regarding the practical enforceability ofPAL permits, TCEQ's treatment ofmalfunction emissions with regard to PAL permits, and thejudicial admissibility ofmonitoring data requiredby PAL permits.



## Section

## bySection Discussion §116.12,

## NonattainmentandPrevention of SignificantDeterioration Review Definitions The commission adopts the amendmentto the definition oftheterm "Plant-wide applicabilitylimit effective date" in §116.12(23) 

## to remove language that references the date that a flexible permitwas issued. Since PAL permits andflexible permits are addressedbytwo different sets ofrules in Chapter 116, 

## it is inappropriateto reference flexible permits inthe definition ofthe term PAL effective date. The change removes this obsolete language, clarifying permittingrequirements and ensuring consistencywith federal requirements regarding NSR permits.

## Texas Commission on Environmental Quality Page 4 Chapter 116 -Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2012-015-116-AI

§116.150, 

## NewMajor Source orMajorModification in Ozone NonattainmentAreas The federal term "emissions unit" as defined in federal rules is similarto the term "facility" as defined in the Texas Clean Air Act (TCAA). In orderto ensure clarity and consistencywith federal requirements, the commission is adding the language "or emissions unit" where theterms "facility" or "facilities" are used (i.e., §116.150(a), (d)(1) and (3)).

§116.151, 

## NewMajor Source orMajorModification in NonattainmentArea Other Than Ozone The federal term "emissions unit" as defined infederal rules is similartothe term "facility" as defined in the TCAA. In orderto ensure clarity and consistencywith federal requirements, the commission is addingthelanguage "or emissions unitlt where the
terms "facility" or "facilities" are used in §116.151(a), (c)(1) and (3)).

Inresponse to EPA's proposed disapproval notice published September 23, 2009, 

## the commission's executive director submitted comments replying to EPA's solicitation from theTCEQ to comment on EPA's interpretation ofTexas law andthe Texas NSR SIP with respect to the term "facility," stating that it is critical to EPA's understanding ofthe Texas Permitting Program. TCEQ's comments stated, inpart, thatthe definition ofthe
term "facility" is one ofthe cornerstones ofthe airpermittingprogramin Texas under the TCAA. The comments specifically stated thatthe TCEQ's interpretation ofTexas law

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## differs from that ofEPA.

In its final disapproval notice on September 15, 2010 (75 

## Federal Register 56423), 

## EPA carried forward text from its proposed disapproval from September 23, 2009,

## by stating infootnote 7 

## on page 56433 

## and also on page 56438, 

## "{i}t is ourunderstanding ofState law, that a "facility" canbe an "emissions unit," 

## i.e., anypart ofa stationary source that emits or mayhave the potential to emit any air contaminant. A 'facility' also canbe a piece ofequipment, which is smallerthan an "emissions unit." A 'facility' canbe a 'major stationary source' as definedby Federallaw. A 'facility' under State law canbe

more than one 'major stationary source.' 

## It can include every emissions point on a company site, without limiting these emissions points to only those belonging to the

same industrial grouping (SIC code)." Inthe same notice in footnote 15 

## on page 56438, 

## EPA acknowledges thatTCEQ's definition of "facility" is part ofthe approved Texas SIP.

Underthe TCAA in Texas Health and Safety Code (THSC), §382.003(6) 

## and in §116.10(4), 

## "facility" is defined as "a discrete or identifiable structure, device, item, equipment, orenclosure that constitutes or contains a stationary source, including appurtenances otherthan emission control equipment. A mine, quarry, well test, or road is not considered tobe a facility." A facility may constitute or contain a stationary

source-- a point oforigin ofa contaminant, as defined inTHSC, §382.003(12) 

## andin §116.10(15), 

## a definition that is approvedintotheTexas SIP. As 

## a discrete point, a

## Texas Commission on Environmental Quality Page 6 Chapter 116 -Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2012-015-116-AI
facility can constitutebut cannot contain a "major stationary source" as definedby federal law and in theTCEQ's SIP-approved §116.12(17). Afacility is subject to major and minor NSR requirements, depending onthe facts ofthe specific application.

The TCEQ and its predecessor agencies have consistently interpretedfacility to preclude inclusion ofmore than one stationary source, in contrastto EPA's statedunderstanding. Likewise, TCEQ does notinterpretfacility to include "every emissions point on a company site, even iflimitingthese emission points to only thosebelongingto the same industrial grouping (SIC code)." The federal definition of"major stationary source" in 40 Code ofFederal Regulations (CFR) §51.166(b)(1)(i)(a) includes the concept of multiple emission points andis not equivalent to the state definition of "source" which is

a single emission point. A "major stationary source" can include more than one "emission unit" which is equivalent to "facility'' underTexas law.

Under major NSR, EPA uses the term "emissions unit" (generally) when referring to part ofa "stationary source;" TCEQ translates "emissions unit" to mean "facility." The commission's SIP-approved Prevention ofSignificant Deterioration (PSD) permitting rule in §116.16o(c)(3) states, "{t}he term 'facility' shall replace the words 'emissions unit' inthe referenced sections ofthe CFR."

TCEQ and its predecessor agencies have applied this interpretation oftheterm "facility"

## Texas Commission on Environmental Quality Page 7 Chapter 116- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2012-015-116-AI

for more than 30years. TheTCEQ's interpretation ofTexas statutes enactedbythe legislature is addressed bytheTexas Code ConstructionAct (Texas Government Code, Chapter 311). More specifically, words and phrasesthat have acquired a technical or particular meaning, whetherbylegislative definition or otherwise, shall be construed accordingly underTexas Government Code, §311.011(b).

In response tothe proposed disapproval, the commission previously considered adding the phrase "or emissions unit" in its PAL rules, but did not do so in the nonattainment permittingrules because ofthelongterm use ofthe term "facility" intheTexas permittingrules and the approvedTexas SIP. EPA approvedversions ofthe nonattainment permitting rules into the SIP, including the definition of "facility."

In orderto accelerate the approval ofthe federal nonattainment permitting program, the commission proposed and is adopting the addition of"emissions unit" to §116.150 and §116.151.

§116.180,

## Applicability The commission adopts a correctionto a typographical errorin §116.18o(a)(5) by changing a reference tothe federal rules from 40 CFR §51.165(iv)(A) to40 CFR §51.165(a)(1)(iv)(A). Additionally, the commission is adding a reference to the federal definition ofmajor stationary source in 40 CFR §51.166(b)(1). Adding this reference

## Texas Commission on Environmental Quality Page 8 Chapter 116- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2012-015-116-AI
strengthensthe TCEQ's PAL rules bylimitingthe applicability ofa PAL to a source that conforms to the federal definition ofa major stationary source in 40 CFR §51.166(b)(1). The changes clarify permitting requirements and ensure consistencywith federal requirements regarding NSR permits.

§116.186, 

## General andSpecial Conditions The commission amends §116.186(b)(g) to state thatfailure to use the required monitoring would renderthe PAL permitinvalid. The commission adopts the change to

ensure consistencywith federal rule requirements.

Inbothits proposed andfinal disapproval notices for the NSR Reform rules (as mentioned elsewhere in this preamble), the EPA stated thatthe specific monitoring definitions are essential for the enforceability ofandprovidingthe means for determining compliance with a PAL program. EPA also specifically statedthat one of thebases for disapproval ofthe commission's PAL rules is thatthe ruleslacked a mandatethatfailure ofthe monitoring system to meet the requirements ofthis section renders a PAL permit invalid. Inresponse, the commission specifically amended its PAL rules to address the monitoring systems, and also added §116.186(b)(g) specifying thatfailure to use a monitoring systemis a violation ofthe PAL permit. EPA did not provide comment on that amendment, nor on §116.186(b)(g). The commission understood that the proposed changes were satisfactoryfor SIP approval. However,

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§116.186(b)(9) did not address EPA's concerns, which were related to the installation and general use ofmonitoring systems ratherthan compliance issues, such as monitoring downtime, the latterwhich is addressed in §116.186(b)(8). As 

## discussed elsewhere inthis preamble, EPA contacted the commission in 2011 regardingits review ofthe submitted rules and raised the issue ofensuring thatthe commission's rules adequately adoptedthe EPA's requirement that a PAL permit is invalid ifit does not require a monitoring system and the system is not installed.

EPA's general monitoring requirements for PAL permits are in40 CFR §51.165(t)(12)(i)(A)

- (D) and §51.166(w)(12)(i)(a)

- (d). 40 CFR §51.165(t)(12)(i) and §51.166(w)(12)(i) include requirements for a monitoring system in each PAL permitthat is based on sound science and meets generally acceptable scientific procedures for data quality and manipulation; those systems mustbe one ofthe four general monitoring approaches inthe federal PAL rules. 40 CFR §51.165(t)(12)(i)(D) and §51.166(w)(12)(i)(d) provide thatfailure to use a monitoring systemthat meets the applicable federal rule requirements renders the PAL invalid (see discussion in 67 

## Federal Register 80211

- 80214, December 31, 2002). Therefore, based onthetext and
context ofboththe rule andthe accompanying preamble, the phrase "failure to use" in EPA's rule means a failure to install orfailure to operate the prescribed monitoring device or system to operate under a PAL permit, ratherthan aninadvertent malfunction

ormaintenance downtime ofthe monitoring device or system. The change to

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## Chapter 116

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§116.186(b)(g) 

## will address EPA's concern that the commission's rules fully incorporate all PAL permit requirements.

Any invalidation ofa PAL permitwill be subjectto necessary and appropriate procedures inTexas statutes andTCEQ rules. Texas Water Code (1WC), §7.302, 

## regarding Grounds for Revocation or Suspension ofPermit, provides the commission the authority to revoke and suspend or reissue a permit onprescribed grounds after notice and hearing. Priorto anyinvalidation ofa PAL permit, the commission anticipates enforcement action that could include a request for revocation. The commission generally does not expect occurrence ofcircumstances which couldleadto invalidation (e.g., failure to install oruse monitoring equipment) andthus few, ifany, revocation proceedings.



## Final RegulatoryImpactAnalysis Determination The commission reviewed the adopted rulemaking in light ofthe regulatory impact analysis (RIA)requirements ofTexas Government Code, §2001.0225, 

## and determined that the rulemaking does not meet the definition ofa major environmental rule as defined in that statute, and in addition, ifit did meet the definition, would notbe subject
to the requirement to prepare a regulatory impact analysis.

Amajor environmental rule means a rule, the specific intent ofwhich is to protect the

## Texas Commission onEnvironmental Quality Page 11 Chapter 116- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2012-015-116-AI

environment orreduce risks to humanhealth from environmental exposure, and that
may adversely affect in a material way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe
state or a sector ofthe state. The specific intent ofthe adopted revisions is to include definitions for, and make otherchanges to the PAL rules to meet federal requirements.

Additionally, even ifthe rules met the definition ofa major environmental rule, the rulemaking does not meet any ofthefour applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed inTexas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, applies onlyto a major environmental rule, the result ofwhich is to: 1) exceed a standard setby federal law, unless the rule is specifically requiredby state law; 2) exceed an express requirement of
statelaw, unless the rule is specifically requiredbyfederal law; 3) exceed a requirement ofa delegation agreement or contractbetween the state and an agency orrepresentative ofthefederal governmentto implement a state andfederal program; or4) adopt a rule solely under the general powers ofthe agency instead ofunder a specific state law.

The adopted rules implement requirements ofthe FCAA. Under42 United States Code (USC), §7410, each state is requiredto adopt andimplement a SIP containing adequate provisions to implement, attain, maintain, and enforce the National AmbientAir Quality Standards (NAAQS) within the state. While 42 USC, §7410 generally does not require

## Texas Commission on Environmental Quality Page 12 Chapter 116- Control ofAir PollutionbyPermitsfor New Construction or Modification Rule Project No. 2012-015-116-AI
specific programs, methods, or emission reductions in orderto meet the standard, state SIPs must include specific requirements as specified by42 USC, §7410. The provisions ofthe FCAA recognize that states are inthebestpositionto determine what programs and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affected industry, and the public, to collaborate onthebest methods for attainingthe NAAQS for the specific regions inthe state. Even though the FCAA allows
states to develop their own programs, this flexibility does not relieve a statefrom developing a programthat meets the requirements of42 USC, §7410, and assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAQS within the state. One ofthe requirements of42 USC, §7410 is for statesto include programs for the regulation ofthe modification and construction ofany stationary source within the area covered bythe plan as necessaryto assure thatthe NAAQS are achieved, including a permitprogram as required in FCAA, Parts Cand D,

orNSR. Additionally, once states have developed SIPs, and those plans are approvedby the EPA, the FCAA prescribes, in 42 USC, §7502(e) thatthe EPA, in modifying a NAAQS, shall promulgate rules that apply to all areas that have not attainedthe previous NAAQS that provide for controlsthat are no less stringent thanthe controls thatpreviously applied to the area. This rulemaking addresses those sections submitted

as revisions tothe NSR SIP andwere subsequentlyproposedfor disapproval bythe EPA. Specifically, those concern definitions for and otherchanges to the PAL rules to meet federal requirements.

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The requirement to provide a fiscal analysis ofregulations intheTexas Government Code was amendedby Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent ofSB 633 was to require agencies to conduct a regulatory impact analysis of extraordinaryrules. The statutorylanguage identifies these as major environmental rules that will have a material adverse impact andwill exceed a requirement ofstate law, federal law, or a delegated federal program, or are adopted solely underthe general
powers ofthe agency. With the understandingthat this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded, "based on an assessment ofrules adoptedbythe agency inthe past, itis not anticipatedthatthebill will have significant fiscal implications for the agency due to its limited application." The commission also notedthatthe number ofrules thatwould require assessment underthe provisions ofthebill was notlarge. The commission bases this conclusion, in part, onthe criteria setforth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.

Because ofthe ongoing need to meet federal requirements, the commission routinely
proposes and adopts rules incorporating or satisfying specific federal requirements. The commission presumes thelegislature to understandthisfederal scheme. 

## Ifeach rule proposedbythe commission to meet a federal requirement was considered to be a major environmental rule that exceeds federal law, then each ofthose rules would

## Texas Commission on Environmental Quality Page 14 Chapter 116- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2012-015-116-AI
require the full RIA contemplatedby SB 633. This conclusion is inconsistentwith the conclusions reachedby the commission in its cost estimate andbythe Legislative Budget Board in its fiscal notes. Since the commission presumes the legislature to understand thefiscal impacts ofthe bills it passes, andthat presumption is based on information providedby state agencies and the Legislative Budget Board, the commissionbelieves that the intent ofSB 633 was onlyto require the full RIA for rules that are extraordinaryin nature. While the adopted rules mayhave a broad impact, that impact is no greaterthan is necessary or appropriate to meet the requirements ofthe FCAA, andin fact creates no additional impacts since the adopted rules do not exceed the requirement to attain and maintain the NAAQS. Forthese reasons, the adopted rules fall underthe exception inTexas Government Code, §2001.0225(a), because they

are requiredby, and do not exceed, federal law.

The commission has consistently applied this construction to its rules since this statute

was enactedin 1997. Since thattime, the legislature has revised theTexas Government Code, butleft this provision substantiallyunamended. It

## is presumedthat "when an agency interpretation is in effect atthe time the legislature amends the laws without making substantial change in the statute, thelegislature is deemed tohave accepted the agency's interpretation." 

## (Central Power & 

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

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

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

## Texas Commission on Environmental Quality Page 15 Chapter 116- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2012-015-116-AI
App. Austin 1990, 

## no writ). CfHumble Oil & 

## Refining Co. 

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

## Dudney v. State Farm Mut.AutoIns. 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. WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978)).

The commission's interpretation ofthe RIA requirements is also supportedby a change made to theAdministrative ProcedureAct (APA) bythe legislature in 1999. In an attempt to limit the number ofrule challengesbased uponAPA requirements, the legislature clarified that state agencies are requiredto meetthese sections oftheAPA against the standard of"substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identifiedTexas Government Code, §2001.0225 as falling underthis standard. As 

## discussed inthis analysis and elsewhere in this preamble, the commission has substantially complied with the requirements ofTexas Government Code, §2001.0225.

The adopted rules implement requirements ofthe FCAA, specifically to adopt and implement SIPs to attain and maintain the NAAQS, including a requirement to adopt andimplement permitprograms. The specific intent ofthe rulemaking is to address those sections submitted as revisions to the NSR SIP and subsequentlywere proposed for disapproval by the EPA. Specifically, those concern definitions for and other

## Texas Commission on Environmental Quality Page 16 Chapter 116- Control ofAir PollutionbyPermits for New Construction orModification Rule Project No. 2012-015-116-AI
changes to the PAL rules to meetfederal requirements. The adopted rules were not developed solely under the general powers ofthe agency, but are authorizedby specific sections ofTHSC, Chapter 382 (also known as theTCAA), andthe TWC, which are cited inthe StatutoryAuthority section ofthis preamble. Therefore, this rulemaking action is
not subject to the regulatory analysis provisions ofTexas Government Code, §2001.0225(b).



## TakingslrnpactAssessrnent UnderTexas Government Code, §2007.002(5), taking means a governmental action that affects private real property, inwhole orin part ortemporarily orpermanently, in a

mannerthat requires the governmental entityto compensate the private real property

owner as providedbythe Fifth and FourteenthAmendments to the United States Constitution orTexas Constitution §17 or §19, Article I; or a governmental action that affects an owner's private real propertythat is the subject ofthe governmental action, in whole orinpart ortemporarily orpermanently, in a mannerthat restricts orlimits the owner's right to the propertythatwould otherwise exist inthe absence ofthe governmental action; and is the producing cause ofa reduction ofatleast 25% inthe marketvalue ofthe affected private real property, determinedbycomparingthe market value ofthe property as ifthe governmental action is notin effect and the market value ofthe property determined as ifthe governmental action is in effect.

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The commission completed a takings impact analysis for this rulemaking underthe Texas Government Code, §2007.043. The primarypurpose ofthis rulemaking, as discussed elsewhere inthis preamble, is to address those sections submitted as revisions
to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, the changes concern definitions for and other changes to the PAL rules to
meet federal requirements.

The adopted rules will not create any additional burden on private real property. The adopted rules will not affect private real propertyin a mannerthatwould require compensationtoprivate real property owners underthe United States Constitution or theTexas Constitution. This adoption also will not affect private real propertyin a

mannerthat restricts orlimits an owner's right to the propertythat would otherwise exist inthe absence ofthe governmental action. Therefore, the rulemakingwill not

cause a taking underTexas Government Code, Chapter 2007.

Consistencywiththe CoastalManagement Program 

## The commission determinedthatthis rulemaking action relates to an action or actions subject to theTexas Coastal Management Program (CMP) in accordance with the Coastal CoordinationAct of 1991, as amended (Texas Natural Resources Code, §§33.201


## etseq.), and commission rules in 30TAC Chapter 281, Subchapter B, concerning Consistencywith the Texas Coastal Management Program. As 

## requiredby §281.45(a)(3)

## Texas Commission on Environmental Quality Page 18 Chapter 116- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2012-015-116-AI

and 31 TAC §505.11(b)(2), relating to Actions andRules Subject to the CMP, commission rules governing airpollutant emissions mustbe consistent with the applicable goals and policies ofthe CMP. The commission reviewed this action for consistencywith the CMP goals and policies in accordance with the rules ofthe Coastal Coordination Council, and determined thatthe action is consistent with the applicable CMP goals and policies.

The CMP goal applicable tothis rulemaking action is the goal toprotect, preserve, and enhance the diversity, quality, quantity, functions, andvalues ofcoastal natural resource

areas (31 TAC §501.12(1)). The CMP policy applicable to this rulemaking action is the policy that commission rules complywith federal regulations in 40 CFR to protect and enhance airquality in the coastal areas (31 TAC §501.14(q)). Therefore, in accordance with 31 TAC §505.22(e), the commission affirms thatthis rulemaking action is consistent with CMP goals and policies.

Effect on Sites Subject to the Federal OperatingPermits Program 

## Chapter 116 is an applicable requirement of30TAC Chapter 122, Federal Operating Permits Program. Owners oroperators subject to the federal operating permitprogram must, consistent with the revision process in Chapter 122, upon the effective date ofthe adopted rulemaking, revise their operatingpermitto include the new Chapter 116 requirements. Additionally, sources subjectto the rules maybecome subject to the

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## federal operating permit program.



## Public Comment The commission held a public hearing on the proposal inAustin on March 29, 2012. 

## The following persons submitted comments during the public comment period which closed onApril 9, 2012: 

## Baker Botts, L.L.P. onbehalfofthe Texas Industry Project (TIP).



## Responseto Comments TIP requests that the commission addlanguage to §116.186(b)(g) 

## that unambiguously forecloses the possibilitythatthe TCEQ rule be interpreted as the malfunction ofa monitoring device could lead to the invalidation ofa PAL permit. TIP requested additional rule text stating that monitor downtime includes periods when qualityassured monitoring data is not available for anyreason, including equipment malfunction, repair, periodic maintenance, and quality assurance activities. TIP stated thatthe requested language is consistentwith the federal PAL rules and should not prevent prompt EPA approval. TIP further stated only the rule text is enforceable, and there is no assurance thatfuture enforcement orinterpretationwill deferto the commission's position, as expressed in the preamble, that "failure to use" a monitoring system refers to installation and does notinclude malfunctions.

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## The commissionhas not changedthe rule in response to this comment. EPAcontactedthe commissionin 2011 

## regarding its review ofthe submitted PALrules andraisedthe issue ofensuringthat the commission's rules adequatelyadoptedthe EPA's requirement that a PALpermit is invalidif the required monitoring system is notrequiredbythe permit norinstalled bythe permittee. As 

## thoroughlydiscussed elsewhere inthis preamble, the phrase "failureto use" in EPA's PALrule means a failure to install orfailure
to operatetheprescribedmonitoring device or system to operateunder a PALpermit, ratherthan aninadvertent malfunction ormaintenance downtime ofthe monitoring device or system. The language in §116.186(b)(9) 

## is intentionallyidenticalto thatusedbyEPAin its PALrules andwas chosento ensurethe SIP approvabilityofthis adoption. The commissionhas no formal indicationfrom EPAthatitwouldfind any other language approvable otherthanthatproposed, andthe commissionis adoptingthat language. Further, the suggestedlanguage isbroaderthan that inEPA's preamble, which TIP cites in its comments.

Inthe context ofan enforcementmatter orlitigation regarding compliance with §116.186(b)(9), 

## shouldtherebe a question ofwhetherthe commission is enforcingthe rule inharmonywith this adoption preamble, the parties

can consultthepreambleto ensurethat enforcement orlitigation decisions

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## appropriatelytake into considerationthe commission's position onthis rule language as expressed in the preamble.

TIP also requestedthatthe commission specify monitoring requirements that are subject to §116.186(b)(9) when issuing, changing, or reviewing individual permitsthat include PALs. The permitinvalidation language inthefederal PAL rule shouldbe construed to applyto only to the minimum monitoring requirements ofthe PAL rules and notto supplemental non-PAL pollutant monitoring requirements orto systems exceeding minimum PAL requirements.



## The commission'spermitswill specifymonitoringrequirementsthat meet applicablerules, including §tt6.t86, 

## for PALpermits, as well as anyother monitoringrequirements necessaryfor compliancewith the FCAA, TCAA, theTexas SIP, and the rules ofthe commission. The commenteris correct that the criteriafor permitinvalidation islimitedto those monitoring systems installedto meetthe minimum PALrequirements. No changewas madeto the rules inresponse to this comment.Recommendation

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## SUBCHAPTERA: DEFINITIONS
§116.12



## STATUTORYAUfHORl1Y The amendment is adopted underTexas Water Code (TWC), §5.102, 

## concerning General Powers, which provides the commissionwith the general powers to carry out its duties underthe TWC; TWC, §5.103, 

## concerning Rules, which authorizes the commission to adopt rules necessaryto carry out its powers and duties underthe TWC; TWC, §5.105, 

## concerning General Policy, which authorizes the commission byrule to establish and
approve all general policy ofthe commission; andunderTexas Health and Safety Code (THSC), §382.017, 

## concerning Rules, which authorizes the commission to adopt rules consistent with the policy andpurposes oftheTexas CleanAir Act. The amendmentis also adopted underTHSC, §382.002, 

## concerning Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air resources, consistentwith the protection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

## concerning General Powers and Duties, which authorizes the commission to controlthe quality ofthe state's air; andTHSC, §382.012, 

## concerning StateAir Control Plan, which authorizes the commission to prepare and develop a general, comprehensive planfor the proper control ofthe state's air; THSC, §382.016, 

## concerning Monitoring Requirements; Examination ofRecords, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions ofair

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## contaminants from a source orfrom an activity causing orresulting in the emission of air contaminants; THSC, §382.021, 

## concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures tobe used in determiningviolations ofand compliance with the commission's rules; THSC, §382.040, 

## concerning Documents; Public Property, which provides that all information, documents, and data collectedbythe commission in performingits duties are state property; THSC, §382.051, 

## concerning PermittingAuthority ofCommission; Rules, which authorizes the commissionto issue permits for construction ofnewfacilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, 

## concerning Permit Consolidation andAmendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, 

## concerning Modification of Existing Facility, which prescribes how the commission will evaluate modifications of existing facilities; THSC, §382.0513, 

## concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0514, 

## concerning Sampling, Monitoring, and Certification, which authorizes the commission
to require sampling and monitoring ofa permittedfederal source orfacility; THSC, §382.0515, 

## concerningApplication for Permit, which specifies permit application requirements; andTHSC, §382.0518, 

## concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendment is also adopted underFederal CleanAir Act (FCAA), 42 

## United States Code (USC), §§7401, 

## et
seq., 

## which requires states to submit state implementation plan revisions that specify

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## the mannerinwhich the National AmbientAir Quality Standardwill be achieved and maintainedwithin each air quality control region ofthe state.

The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 382.051, 382.0511- 382.0515, 

## and 382.0518, 

## and FCAA, 42 

## USC, §§7401 

## etseq.

§116.12. 

## Nonattainment and Prevention ofSignificantDeterioration Review Definitions.

Unless specifically defined inthe Texas Clean AirAct (TCAA) orinthe rules of the commission, the terms usedbythe commission have the meanings commonly ascribed totheminthefield ofairpollution control. The terms inthis section are applicable to permit review for major source construction and major source modification in nonattainment areas. In addition to thetermsthat are definedbythe TCAA, and in §101.1 

## ofthis title (relating to Definitions), the following words andterms, when used in Chapter 116, 

## Subchapter B, 

## Divisions 5 

## and 6 

## ofthis title (relatingto Nonattainment Review Permits and Prevention ofSignificant Deterioration Review); and Chapter 116, 

## Subchapter C, Division 1 

## ofthis title (relating to Plant-Wide Applicability Limits), have the following meanings, unless the context clearly indicates otherwise.

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(1) Actual emissions--Actual emissions as ofa particular date are equal to the average rate, in tons peryear, at which the unit actually emittedthe pollutant during the 24-month periodthat precedes the particulardate and that is representative of normal source operation, except thatthis definition shall not apply for calculating whether a significant emissions increase has occurred, orfor establishing a plant-wide applicability limit. Instead, paragraph (3) ofthis section relating tobaseline actual emissions shall apply for this purpose. The executive director shall allow the use ofa different time period upon a determination thatit is more representative ofnormal

source operation. Actual emissions shallbe calculated using the unit's actual operating hours, production rates, andtypes ofmaterials processed, stored, or combustedduring the selected time period. The executive director may presume thatthe source-specific allowable emissions for the unit are equivalent to the actual emissions, e.g., when the allowable limit is reflective ofactual emissions. For any emissions unit thathas not begun normal operations onthe particular date, actual emissions shall equal the potential to emit ofthe unit on that date.

(2) 

## Allowable emissions--The emissions rate ofa stationary source, calculated using the maximum rated capacity ofthe source (unless the source is subject to federally enforceable limits that restrict the operatingrate, orhours ofoperation, orboth), and the most stringent ofthe following:

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(A) the applicable standards specified in 40 Code ofFederal Regulations Part 6o or 61;

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

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

(3) Baseline actual emissions--The rate ofemissions, intons peryear, ofa federally regulated new source review pollutant.

(A) For any existing electric utility steam generating unit, baseline actual emissions meansthe average rate, intons peryear, atwhich the unit actually emittedthe pollutant during any consecutive 24-month period selected by the owner or operatorwithin the five-year periodimmediatelypreceding when the owner oroperator begins actual construction ofthe project. The executive director shall allow the use ofa different time periodupon a determination thatit is more representative ofnormal

source operation.

## Texas Commission on Environmental Quality Page 27 Chapter 116- Control ofAir PollutionbyPermits for New Construction or Modification Rule Project No. 2012-015-116-AI
(B) For an existing facility (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons peryear, at which the facility actually emittedthe pollutant during any consecutive 24-month period selectedbythe owner oroperatorwithin the ten-year period immediately preceding eitherthe date the owner or operatorbegins actual construction ofthe project, orthe date a complete permit application is received for a permit. The rate shall be adjusted downward to exclude any emissions thatwould have exceeded an emission limitation with which the major stationary source must currentlycomply with the exception of those required under40 Code ofFederal Regulations Part 63, had such major stationary

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

(C) For a newfacility, thebaseline actual emissions for purposes of determining the emissions increase thatwill resultfrom the initial construction and operation ofsuch unit shall equal zero; andfor all otherpurposes duringthe first two years following initial operation, shall equal the unit's potential to emit.

(D) The actual average rate shallbe adjusted downward to exclude
any non-compliant emissions that occurred during the consecutive 24-monthperiod. For each regulated new source review pollutant, when a project involves multiple facilities, only one consecutive 24-month period mustbe used to determine thebaseline

## Texas Commission on Environmental Quality Page 28 Chapter 116- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2012-015-116-AI

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 notbebased on any consecutive 24-monthperiod for which there is inadequate information for determining annual emissions, intons peryear, andfor adjusting this
amount. Baseline emissions cannot occurpriorto November 15, 1990.

(E) The actual average emissions rate shall include fugitive emissions to the extent quantifiable. Until March 1, 2016, emissions previously demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter 101 ofthis title (relating to General Air Quality Rules) shall be includedto the extent thattheyhave been authorized, or are being authorized.

(4) Basic design parameters--For a process unit at a steam electric generatingfacility, the owner oroperator may select as its basic design parameters either maximum hourly heat input and maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steamflow rate. When establishing fuel consumption specifications in terms ofweight orvolume, the minimumfuel 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. Thebasic design parameters for any process unit thatis not at a steam electric generating facility are

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## maximum rate offuel orheat input, maximum rate ofmaterial input, or maximumrate ofproduct 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 primaryproduct orprimaryraw material when selecting a basic design parameter. The owner or operator may propose an alternativebasic design parameterfor the source's process units to the executive director ifthe owner or operatorbelieves thebasic design parameter as defined inthis paragraph is not appropriate for a specific industry ortype ofprocess unit. Ifthe executive director
approves ofthe use ofan alternativebasic design parameter, thatbasic design parameter shall be identified and compliance required in a condition in a permitthat is legally enforceable.

(A) The owner oroperator shall use credible information, such as results ofhistoric maximum capability tests, design information from the manufacturer,

orengineering calculations, in establishing the magnitude ofthebasic design parameter.

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

owner or operator shall determine the process unit'sbasic design parameter(s) using the maximum value achieved bythe process unit in the five-year period immediately precedingthe planned activity.

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## (C) Efficiency ofa process unit is not a basic design parameter.

(5) Begin actual construction--In general, initiation ofphysical on-site construction activities on an emissions unit that are ofa permanent nature. Such activities include, but are not limited to, installation ofbuilding supports and foundations, laying ofunderground pipework, and construction ofpermanent storage
structures. With respect to a change in method ofoperation, this term refers to those on-site activities otherthan preparatory activities that markthe initiation ofthe change.

(6) Building, structure, facility, orinstallation--All ofthe pollutantemitting activities thatbelongto the same industrial grouping, are located in one or

more contiguous or adjacent properties, and are underthe control ofthe same person (or persons under common control). Pollutant-emitting activities are considered to be part ofthe same industrial grouping iftheybelongto the same "majorgroup" (i.e., that have the same two-digit code) as described inthe Standard Industrial Classification Manual, 1972, 

## as amendedbythe 1977 

## supplement.

(7) 

## Clean coal technology--Any technology, including technologies applied
atthe precombustion, combustion, orpost-combustion stage, at a new or existing facility thatwill achieve significant reductions in air emissions ofsulfur dioxide or

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## oxides ofnitrogen associated with the utilization ofcoal in the generation ofelectricity,

orprocess steamthatwas not in widespread use as ofNovember 15, 1990.



## (8) Clean coal technology demonstration project--A project using funds appropriated underthe heading "Department ofEnergy-Clean Coal Technology," up to a total amount of $2.5

## billion for commercial demonstration ofclean coal technology, or similar projects funded through appropriations for the United States Environmental ProtectionAgency. The federal contributionfor a qualifying project shall be atleast 20% 

## ofthetotal cost ofthe demonstration project.

(g) Commence--As applied to construction ofa major stationary source or major modification, means thatthe owner or operator has all necessary preconstruction approvals orpermits and eitherhas:

(A) begun, or caused tobegin, a continuous program ofactual onsite construction ofthe source, tobe completedwithin a reasonable time; or

(B) entered intobinding agreements or contractual obligations, which cannotbe canceled ormodified without substantial loss to the owner oroperator,
to undertake a program ofactual construction ofthe sourceto be completed within a reasonable time.

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(10) 

## Construction--Anyphysical change or change inthe method of operation (includingfabrication, erection, installation, demolition, or modification ofan emissions unit) thatwould result in a change in actual emissions.

(11) 

## Contemporaneous period--For major sources the periodbetween:

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

(B) 

## 6o months prior to the date that construction onthe particular change commences.

(12) 

## De 

## minimis threshold test (netting)--A method ofdetermining ifa proposed emission increase will trigger nonattainment orprevention ofsignificant deterioration review. The summation ofthe proposed project emission increase intons peryearwith all othercreditable source emission increases and decreases during the contemporaneous period is comparedto the significantlevel for that pollutant. Ifthe significantlevel is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required.

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## (13) 

## Electric utility steamgenerating unit--Any steam electric generating unit thatis constructed for the purpose ofsupplying more than one-third ofits potential electric output capacity and more than 25 

## megawatts electrical outputto any utility
power distribution systemfor sale. Any steam supplied to a steamdistribution system for the purpose ofproviding steamto a steam-electric generatorthatwould produce electrical energy for sale is included in determiningthe electrical energy output capacity ofthe affected facility.

(14) 

## Federallyregulated new source review pollutant--As defined in subparagraphs (A)

- (D) ofthis paragraph:

(A) any pollutantfor which a national ambient air quality standard hasbeenpromulgated and any constituents orprecursors for such pollutants identified bythe United States Environmental ProtectionAgency;

(B) any pollutant that is subjectto any standardpromulgated under Federal Clean Air Act (FCAA), §111;



## (C) any Class I or II substance subject to a standardpromulgated under or establishedby FCAA, Title VI; or

## Texas Commission on Environmental Quality Page 34 

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(D) 

## any pollutantthat otherwise is subjectto regulation underthe FCAA; except that any or all hazardous airpollutants either listed in FCAA, §112 

## or addedto the list under FCAA, §112(b)(2), 

## which have notbeen delisted under FCAA, §112(b)(3), 

## are not regulated new source review pollutants unless the listed hazardous air pollutant is also regulated as a constituent orprecursor ofa general pollutant listed under FCAA, §1o8.

(15) 

## Lowest achievable emission rate--For any emitting facility, thatrate of emissions ofa contaminant that does not exceed the amount allowable under applicable

new source performance standards promulgatedby the United States Environmental ProtectionAgency under 42 

## United States Code, §7411, 

## andthatreflects the following:

(A) the most stringent emission limitation that is contained in the rules and regulations ofany approved state implementationplanfor 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 practiceby a specific class or category offacilities, whichever is more stringent.

## Texas Commission on Environmental Quality Page 35 Chapter 116- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2012-015-116-AI
(16) Majorfacility--Any facility that emits orhas the potential to emit 100
tons peryear or more ofthe plant-wide applicabilitylimit (PAL) pollutantin an attainment area; or any facility that emits orhas the potential to emitthe PAL pollutant in an amount that is equal to orgreaterthanthe major source threshold for the PAL pollutant in Table I ofthis section for nonattainment areas.

(17) 

## Major stationary source--Any stationary source that emits, orhasthe potentialto emit, a threshold quantity ofemissions or more ofany air contaminant (includingvolatile organic compounds (VOCs)) for which a national ambient air quality standardhas been issued. The major source thresholds are identified inTable I ofthis sectionfor nonattainmentpollutants andthe major source thresholds for prevention of significant deterioration pollutants are identified in 40 Code ofFederal Regulations (CFR) §51.166(b)(1). A source that emits, orhas the potential to emit a federally regulated new source review pollutant atlevels greaterthanthose identified in40 CFR §51.166(b)(1) is considered majorfor all prevention ofsignificant deterioration pollutants. Amajor stationary source that is majorfor VOCs ornitrogen oxides is consideredtobe majorfor ozone. The fugitive emissions ofa stationary source shall not be included in determiningfor any ofthe purposes ofthis definition whetheritis a major stationary source, unless the source belongs to one ofthe categories ofstationary

sources listed in 40 CFR §51.165(a)(1)(iv)(C).

## Texas Commission on Environmental Quality Page 36 Chapter 116- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2012-015-116-AI
(18) Major modification--As follows.

(A) Any physical change in, orchange in the method ofoperation of

a major stationary source that causes a significant project emissions increase and a significant net emissions increase for anyfederally regulated new source review pollutant. At a stationary source that is not major prior tothe increase, the increase by itselfmust equal or exceed that specified for a major source. At an existing major stationary source, the increase must equal orexceed that specified for a major modification to be significant. The major source and significant thresholds are provided inTable I ofthis section for nonattainmentpollutants. The major source and significant thresholds for prevention ofsignificant deterioration pollutants are identified in 40 Code ofFederal Regulations §51.166(b)(1) and (23), respectively.

Figure: 30 TAC §116.12(18)(A) (No change to thefigure as itcurrently exists inTAC.)

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

(i) 

## routine maintenance, repair, andreplacement;

## Texas Commission on Environmental Quality Page 37 Chapter 116- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2012-015-116-AI
(ii) use ofan alternative fuel orraw materialbyreason ofan orderunderthe Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) 

## (or any superseding legislation) orbyreason ofa natural gas curtailment planunder the Federal PowerAct;

(iii) use ofan alternative fuel by reason ofan order orrule of 42 United States Code, §7425;

(iv) use ofan alternative fuel at a steam generating unit to the extent thatthe fuel is generated from municipal solid waste;

(v) use ofan alternative fuel orraw materialby a stationary

source that the source was capable ofaccommodatingbefore December 21, 1976 (unless such change would beprohibitedunder anyfederally enforceable permit condition established after December 21, 1976) orthe source is approved to use under anypermit issued underregulations approvedunderthis chapter;

(vi) an increase inthe hours ofoperation orinthe production rate (unless the change is prohibitedunder anyfederally enforceable permit condition thatwas established after December 21, 1976);

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## (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 applicabilitylimit;

(ix) the installation, operation, cessation, orremoval ofa temporary clean coal technology demonstration project, provided thatthe project complies with the state implementationplan and otherrequirements necessary to attain and maintain the national ambient air quality standardduring the project and afterit is terminated;

(x) for prevention ofsignificant deterioration review only, the installation or operation ofa permanent clean coal technology demonstration project that constitutes re-powering, provided thatthe project does not result in an increase inthe potential to emit ofany regulated pollutant emittedbythe unit. This exemption shall apply on a pollutant-by-pollutantbasis; or

(xi) for prevention ofsignificant deterioration review only, the reactivation ofa clean coal-fired electric utility steam generatingunit.

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## (19) 

## Necessary preconstruction approvals orpermits--Those permits or approvals required underfederal air quality control laws and regulations andthose air quality control laws and regulations that are partofthe applicable state implementation plan.

(20) 

## Net emissions increase--The amountbywhich the sum ofthe following exceeds zero: the project emissions increase plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. Baseline actual emissions shallbe usedto determine emissions increases and decreases.

(A) An 

## increase or decrease in emissions is creditable only ifthe following conditions are met:

(i) it occurs duringthe contemporaneous period;

(ii) the executive director has not relied on it in issuing a federal new source review permitfor the source andthat permitis in effect when the increase in emissions from the particular change occurs; and

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## (iii) in the case ofprevention ofsignificant deterioration review only, an increase ordecrease in emissions ofsulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor sourcebaseline date is creditable only if

## it is required to be considered in calculating the amount ofmaximum allowable increases remaining available.

(B) An 

## increase in emissions is creditable ifit is the result ofa physical change in, orchange in the method ofoperation ofa stationary source onlyto the extentthatthe new level ofemissions exceeds the baseline actual emission rate. Emission increases atfacilities under a plant-wide applicabilitylimit are not creditable.

(C) A decrease in emissions is creditable only to the extent that all ofthe following conditions are met:

(i) thebaseline actual emission rate exceeds the newlevel of emissions;

(ii) it is federally enforceable at and after the time that actual construction on the particular change begins;

## Texas Commission on Environmental Quality Page 41 Chapter 116- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2012-015-116-AI
(iii) the executive director has notrelied on it in issuing a prevention ofsignificant deterioration or a nonattainment permit;

(iv) the decrease has approximatelythe same qualitative significance for publichealth and welfare as that attributed to the increase from the particular change; and

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

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

occurs when the emissions unit on which construction occurredbecomes operational andbegins to emit a particularpollutant. Any replacement unitthat requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

(21) Offset ratio--Forthe purpose ofsatisfying the emissions offset reduction requirements of42 United States Code, §7503(a)(1)(A), the emissions offset ratio is the ratio oftotal actual reductions ofemissions to total emissions increases of such pollutants. The minimum offset ratios are included inTable I ofthis section under the definition ofmajor modification. In orderfor a reduction to qualify as an offset, it

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mustbe certified as an emission credit under Chapter 101, Subchapter H, Division 1or 4 ofthistitle (relatingto Emission Credit Banking andTrading; or Discrete Emission Credit Banking andTrading), 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 inthe issuance ofa previous nonattainment orprevention ofsignificant deterioration permit.

(22) Plant-wide applicabilitylimit--An emissionlimitation expressed, in
tons peryear, for a pollutant at a major stationary source, that is enforceable and established in a plant-wide applicabilitylimit permit under §116.186 ofthis title (relatingto General and Special Conditions).

(23) Plant-wide applicabilitylimit effective date--The date ofissuance of the plant-wide applicabilitylimitpermit. [The plant-wide applicabilitylimit effective date for a plant-wide applicabilitylimit established in an existing flexible permit is the date thatthe flexible permitwas issued.]

(24) Plant-wide applicabilitylimit major modification--Anyphysical change in, or change inthe method ofoperation ofthe plant-wide applicabilitylimit

source that causes it to emit the plant-wide applicabilitylimit pollutant at a level equal
to orgreaterthan the plant-wide applicabilitylimit.

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(25) Plant-wide applicability limit permit--The new source review permit that establishes the plant-wide applicabilitylimit.

(26) Plant-wide applicabilitylimit pollutant--The pollutantfor which a plant-wide applicabilitylimit is established at a major stationary source.

(27) Potential to emit--The maximum capacity ofa stationary source to emit a pollutantunderits 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 ofoperation or on the type or amount ofmaterial combusted, stored, orprocessed, maybe treated as part ofits design only ifthe limitation orthe effect itwould have on emissions is federally enforceable. Secondary emissions, as defined in40 Code ofFederal Regulations §51.165(a)(1)(viii), do not count in determining the potential to emitfor a stationary

source.

(28) Project net--The sum ofthe following: theproject emissions increase, minus any sourcewide creditable emission decreases proposed atthe source between the date ofapplication for the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to determine emissions increases and

## Texas Commission on Environmental Quality Page 44 Chapter 116- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2012-015-116-AI

decreases. Increases and decreases must meet the creditability criteria listed underthe definition ofnet emissions increase inthis 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-monthperiod during the five years following the date thefacility resumes regular operation after the project, or in any one ofthe tenyears following that date, ifthe project involves increasing thefacility's design capacity orits potential to emit that federally regulated new source review pollutant. Indetermining theprojected actual emissions, the owner oroperator ofthe major stationary source shall include unauthorized emissions from planned maintenance, startup, or shutdown activities, which were historically unauthorized and subject to reportingunder Chapter 101 ofthis title, to the extenttheyhave been authorized, or arebeing authorized; and fugitive emissions to the extent quantifiable; and shall consider all relevant information, including, butnotlimited to, historical operational data, the company's own representations, the company's expectedbusiness activity and the company's highest projections ofbusiness activity, the company's filings with the state orfederal regulatory authorities, and compliance plans underthe approved state implementation plan.

(30) Project emissions increase--The sum ofemissions increases for each modified or affected facility determinedusing the following methods:

## Texas Commission on Environmental Quality Page 45 Chapter 116- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2012-015-116-AI
(A) for existing facilities, the difference between the projected actual emissions andthe baseline actual emissions. In calculating any increase in emissions that results from the project, that portion ofthe facility's emissions following the project that thefacility could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions andthat are also unrelatedto the particularproject, including anyincreased utilization due to product demand growth
maybe excluded from the project emission increase. The potentialto emitfrom the facility following completion ofthe project maybe 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 andthe baseline actual emissions.

(31) Replacementfacility--A facility that satisfies the following criteria:

(A) the facility is a reconstructed unitwithin the meaning of40 Code ofFederal Regulations §60.15(b)(1), orthefacility replaces an existing facility;

(B) thefacility is identical to orfunctionally equivalent to the replaced facility;

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

(D) the replaced facility is permanentlyremoved from the major stationary source, otherwise permanently disabled, orpermanentlybarredfrom operation by a permitthatis enforceable. 

## Ifthe replaced facility isbroughtbackinto operation, it shall constitute a newfacility. No creditable emission reductions shall be generated from shutting down the existing facility that is replaced. Areplacement facility is considered an existing facility for the purpose ofdeterminingfederal new

source review applicability.

(32) 

## Secondary emissions--Emissions that would occur as a result ofthe construction oroperation ofa major stationary source ormajor modification, but do not

come from the source ormodification itself. Secondaryemissions mustbe specific, welldefined, quantifiable, andimpact the same general area as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any off-site supportfacility thatwould notbe constructed orincrease its emissions, except as a result ofthe construction or operation ofthe major stationary

source ormajor modification. Secondary emissions do not include any emissions that

come directlyfrom a mobile source such as emissions from the tail pipe ofa motor vehicle, from a train, orfrom a vessel.

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## (33) Significantfacility--A facility that emits orhas the potentialto emit a plant-wide applicabilitylimit (PAL) pollutant in an amountthat is equal to or greater thanthe significant level for that PAL pollutant.

(34) Small facility--A facility that emits or has the potential to emitthe plant-wide applicability limit (PAL) pollutant in an amount less thanthe significant level for that PAL pollutant.

(35) Stationary source--Anybuilding, structure, facility, orinstallationthat emits or may emit any air pollutant subjectto regulation under 42 

## United States Code,
§§7401 

## et seq.

(36) Temporary clean coal technology demonstration project--A clean coal technology demonstration project thatis operatedfor a period offive years orless, and that complies with the state implementation plan and other requirements necessaryto attain and maintain the national ambient air quality standards during the project and afteritis terminated.

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## SUBCHAPTERB: NEW SOURCE REVIEW PERMITS DIVISION 5: NONATTAINMENT REVIEW PERMITS §116.150, §116.151



## STATUTORYAUTHORITY The amendments are adopted underTexas Water Code (TWC), §5.102, 

## concerning General Powers, which provides the commission with the general powers to carry out its duties underthe TWC; TWC, §5.103, 

## concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties underthe TWC; TWC, §5.105, 

## concerning General Policy, which authorizes the commissionby rule to establish and approve all general policy ofthe commission; and underTexas Health and Safety Code (THSC), §382.017, 

## concerning Rules, which authorizes the commission to adopt rules consistent with thepolicy andpurposes ofthe Texas Clean Air Act. The amendments are also adopted underTHSC, §382.002, 

## concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's airresources, consistent with the protection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

## concerning General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; andTHSC, §382.012, 

## concerning StateAir Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the propercontrol ofthe state's air; THSC, §382.051, 

## concerning PermittingAuthority ofCommission; Rules, which authorizes the

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## commission to issue permitsfor construction ofnew facilities ormodifications to existing facilities that may emit air contaminants; THSC, §382.0511, 

## concerning Permit Consolidation andAmendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, 

## concerningModification ofExisting Facility, which prescribes howthe commission will evaluate modifications ofexisting facilities; THSC, §382.0513, 

## concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0515, 

## concerningApplication for Permit, which specifies permit application requirements; and THSC, §382.0518, 

## concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendments are also adopted under Federal Clean AirAct (FCAA), 42 

## United States Code (USC), §§7401, 

## etseq., which requires states to submit state implementation plan revisions that specify the mannerinwhich the national ambient air quality standardwill be achieved and maintainedwithin each air quality control region ofthe state.

The adopted amendments implementTHSC, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.0511, 382.0512, 382.0513, 382.0515, 

## and 382.0518, 

## and FCAA, 42 

## USC, §§7401 

## etseq.

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§tt6.150. 

## New Major Source orMajorModification in Ozone Nonattainment Areas.

(a) This section applies to all new source review authorizations for new construction or modification offacilities oremissions units that will be located in any

area designated as nonattainmentfor ozone under 42 United States Code (USC), §§7407


## etseq. as ofthe date ofissuance ofthe permit, unless the following apply onthe date of issuance ofthe permit:

(1) the United States Environmental ProtectionAgency (EPA) has made a finding ofattainment;

(2) the EPA has approved the removal ofnonattainment New Source Review CNSR) requirements from the area;

(3) the EPA has determined that Prevention ofSignificant Deterioration requirements apply inthe area; or

(4) the EPA determinesthat nonattainment NSR is no longer required for
purposes ofantibacksliding.

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## (b) 

## The owner or operatorofa 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 (NOx) emissions, orthe owner oroperator ofan existing stationary

source ofVOC orNOx emissions that will undergo a major modification, as defined in §116.12 

## ofthistitle with respect toVOC or NOx, shall meetthe requirements of subsection (d)(l)- (4) ofthis section, except as provided in subsection (e) ofthis section. Table I, located inthe definition ofmajor modification in §116.12 

## ofthis title, specifies the various classifications ofnonattainment along with the associated emission levels that designate a major stationary source and significantlevel 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 orNOx, unless at least one ofthe following conditions are met:

(1) 

## the proposed emissions increases associated with a project, without regard to decreases, is less thanfive tons peryear (tpy) ofthe individual nonattainment pollutant in areas classified underFederal CleanAirAct (FCAA), Title I, Part D, Subpart
2 (42 

## USC, §7511) 

## classified as Serious or Severe;

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## (2) 

## the proposed emissions increases associated with a project, without regardto decreases, is less than 40 

## tpy ofthe individual nonattainment pollutant in

areas classified under FCAA, Title I, Part D, Subpart 1 (42 

## USC, §7502) 

## andfor those under FCAA, Title I, Part D, Subpart 2 (42 

## USC, §7511) 

## classified as Marginal or Moderate; or

(3) the project emissions increases are less thanthe significant level stated inTable I located in the definition ofmajor modification in §116.12 

## ofthis title and when coupledwith project actual emissions decreases for the same pollutant, summed as the project net, are less than orequal to zero tpy.

(d) In applying the de minimis thresholdtest, ifthe net emissions increases are greaterthanthe significant levels statedinTable I located in the definition ofmajor modification in §116.12 

## ofthis title, the following requirements apply.

(1) 

## The proposedfacility or emissions unit shall comply with the lowest achievable emission rate (LAER) as defined in §116.12 

## ofthis title for the nonattainment pollutantsfor which the facility oremissions unit is a new major source ormajor modification except as provided in paragraph (3)(B) ofthis subsection and except for existing major stationary sources thathave a potential to emit (PTE) ofless than 100

## tpy ofthe applicable nonattainment pollutant. Forthese sources, best available control

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## technology (BACT) canbe substitutedfor lAER. lAER shall otherwise be applied to each newfacility or emissions unit and to each existing facility oremissions unit at which the net emissions increase will occur as a result ofa physical change orchange in method ofoperation ofthe unit.

(2) 

## All major stationarysources owned or operatedbythe applicant (orby
any person controlling, controlledby, orunder common control with the applicant) in the state mustbe in compliance or on a schedule for compliance with all applicable state andfederal emission limitations and standards.

(3) At the time the new ormodified facility or emissions unit orfacilities or emissions units commence operation, the emissions increases from the new ormodified facility oremissions unit orfacilities oremissions units mustbe offset. The proposed facility oremissions unit shall use the offset ratio for the appropriate nonattainment classification as defined in §116.12 

## ofthis title and shown inTable I locatedinthe definition ofmajor modification in §116.12 

## ofthis title. Internal offsets that are generated at the source andthat otherwise meet all creditability criteria canbe 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

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pollutant are not required to undergo nonattainment new source review underthis section, ifthe project increases are offset with internal offsets at a ratio ofatleast 1.3 to 1.

(B) Major stationary sourceslocated in a serious or severe ozone nonattainment area with a PTE ofgreaterthan or equal to 100 tpy ofan applicable nonattainment pollutant can substitute federal BACT (as identified in §116.16o(c)(1)(A) ofthis title (relatingto Prevention ofSignificant Deterioration Requirements) for LAER, ifthe project increases are offset with internal offsets at a ratio ofatleast 1.3 to 1. Internal offsets used in this manner can also be applied to satisfythe offset requirement.

(4) In accordance with the FCAA, the permit application must contain an analysis ofalternative sites, sizes, production processes, and control techniques for the proposed source. The analysis must demonstrate thatthebenefits ofthe proposed location and source configuration significantly outweigh the environmental and social
costs ofthatlocation.

(e) Forsources located inthe El Paso ozone nonattainment area as defined in 40 Code ofFederal Regulations, Part 81, the requirements ofthis section do not apply to NOx emissions.

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§tt6.151. 

## New Major Source orMajorModificationinNonattainmentArea OtherThan Ozone.

(a) This section applies to applications for new construction or modification of facilities or emissions units located in a designated nonattainment area for an air contaminant otherthan ozone. The owner oroperator ofa proposed new or modified facility oremissions unit thatwill be a new major stationary source for that nonattainment air contaminant, orthe owner oroperator ofan existing major stationary

source thatwill undergo a major modification with respect to that nonattainment air contaminant, shall meet the additional requirements ofsubsection (c)(1)- (4) ofthis section. Table I located inthe definition ofmajor modification in §116.12 ofthis title (relatingto Nonattainment and Prevention ofSignificant Deterioration Review Definitions) specifies the various classifications ofnonattainment along with the associated emission levels that designate a major stationary source.

(b) 

## The 

## de minimis threshold test (netting) is required for all modifications to existing major sources offederally regulated new source review pollutants, unless the proposed emissions increases associated with a project, without regard to decreases, are less thanthe major modification threshold for thepollutantidentified inTable I located inthe definition ofmajor modification in §116.12 ofthis title.

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## (c) In applying the 

## de minimisthreshold test, ifthe net emissions increases are greaterthanthe major modification levels stated inTable I located inthe definition of major modification in §116.12 

## ofthis title, the following requirements apply.

(1) 

## The proposed facility or emissions unit shall comply with thelowest achievable emission rate (LAER) as defined in §116.12 

## ofthis title for the nonattainment pollutants for which the facility or emissions unit is a new major source ormajor modification. LAER shall be applied to each new facility or emissions unit andto each existing facility oremissions unit atwhich the net emissions increase will occur as a result ofa physical change or change in method ofoperation ofthe unit.

(2)

## All major stationary sources owned or operatedbythe applicant (orby
any person controlling, controlledby, orunder common control with the applicant) in the state shallbe in compliance oron a schedule for compliance with all applicable state andfederal emissionlimits and standards.

(3) At thetime the new ormodified facility or emissions unit orfacilities or emissions units commence operation, the emission increases from the new ormodified facility oremissions unit orfacilities oremissions units shall be offset. The proposed facility oremissions unit shall use the offset ratio for the appropriate nonattainment

## Texas Commission on Environmental Quality Page 57 

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## classification as defined in §116.12 

## ofthis title and shown in Table I locatedin the definition ofmajor modification in §116.12 

## ofthis title.

(4) In accordance with the Federal Clean Air Act, the permit application shall contain an analysis ofalternative sites, sizes, production processes, and control techniques for the proposed source. The analysis shall demonstrate that thebenefits of the proposed location and source configuration significantly outweigh the environmental and social costs ofthatlocation.

## Texas Commission onEnvironmental Quality Page 58 

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## SUBCHAPTERC: PLANT-WIDEAPPLICABILITYLIMITS DIVISION t: 

## PLANT-WIDEAPPLICABILITYLIMITS §tt6.t8o, §116.186



## STATUTORYAUTHORITY The amendments are adopted underTexas Water Code (TWC), §5.102, 

## concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, 

## concerning Rules, which authorizes the commission to adopt rules necessary to carry outits powers and duties underthe TWC; TWC, §5.105, 

## concerning General Policy, which authorizes the commissionby rule to establish and approve all general policy ofthe commission; TWC, §7.02, 

## concerning EnforcementAuthority, which provides the commission the authority to enforce the
statutes underitsjurisdiction; TWC, §7.301, 

## concerning Definition, which defines terms used in Chapter 7, 

## Subchapter G; TWC, §7.302, 

## concerning Grounds for Revocation or Suspension ofPermit, which provides the commission the authorityto revoke and suspend orrevoke and reissue a permit onprescribed grounds after notice and hearing; andunderTexas Health and Safety Code (THSC), §382.017, 

## concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean AirAct. The amendments are also adopted underTHSC, §382.002, 

## concerning Policy and Purpose, which establishes the commission's purpose to safeguardthe state's air resources, consistent with the protection ofpublic health, general welfare, andphysical property; THSC, §382.011, 

## concerning General Powers and

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## Duties, which authorizes the commission to control the quality ofthe state's air; and THSC, §382.012, 

## concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air; THSC, §382.016, 

## concerning Monitoring Requirements; Examination ofRecords, which authorizes the commission to prescribe reasonable requirements for measuring and monitoringthe emissions ofair contaminants from a source orfrom an activity causing orresulting in the emission ofair contaminants; THSC, §382.021, 

## concerning Sampling Methods and Procedures, which authorizes the commissionto prescribe sampling methods and procedures tobe used in determiningviolations ofand compliance with the commission's rules; THSC, §382.040, 

## concerning Documents; Public Property, which provides that all information, documents, and data collectedby the commission in performing its duties are state property; THSC, §382.051, 

## concerning PermittingAuthority ofCommission; Rules, which authorizes the commission to issue permitsfor construction ofnewfacilities ormodifications to existing facilities that may emit air contaminants; THSC, §382.0511, 

## concerning Permit Consolidation and Amendment, which authorizes the commission to consolidatevarious authorizations; THSC, §382.0512, 

## concerning Modification ofExisting Facility, which prescribes how the commission will evaluate modifications ofexisting facilities; THSC, §382.0513, 

## concerning Permit Conditions, which authorizes the commissionto establish and enforce permit conditions; THSC, §382.0514, 

## concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring ofa

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## permitted federal source orfacility; THSC, §382.0515, 

## concerning Application for Permit, which specifies permit application requirements; andTHSC, §382.0518, 

## concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendments are also adopted under Federal Clean AirAct (FCAA), 42 

## United States Code (USC), §§7401, 

## etseq., which requires statesto submit
state implementationplan revisions that specify the mannerin which the national ambient air quality standardwill be achieved and maintained within each air quality control region ofthe state.

The adopted amendments implementTHSC, §§382.002, 382.011, 382.012, 382.016,

382.0515, 

## and 382.0518, 

## and FCAA, 42 

## USC, §§7401 

## etseq.

§tt6.t8o. 

## Applicability.

(a) The following requirements apply to a plant-wide applicability limit (PAL) permit.

(1) 

## Only one PAL maybe issued for each pollutant at an existing major stationary source.

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(2) A PAL permit may include more than one PAL.

(3) A PAL permit may not cover facilities or emissions units at more than

one existing major stationary source.

(4) A PAL permit may be consolidated with a new source review permit at the existing major stationary source.

(5) A PAL permit canbe issued only for an existing major stationary
source; it may notbe issued for a new major stationarysource as defined in 40 Code of Federal Regulations §51.165(a)(1)Civ)(A) and §51.166(b)C1)(i) [§51.165(iv)(A)].

(b) 

## The new owner ofa major stationary source shall complywith §116.110(e) of this title (relating to Applicability), provided that all facilities, or emissions units at a major stationary source, covered by a PAL permit change ownership at the same time andtothe same person, orboththe new owner and existing permit holder must obtain a PAL permit alteration allocating the emission priorto the transfer ofthe permitbythe commission. After the sale ofa facility, or emissions unit at a major stationary source, butpriortothe transfer ofa permit requiring a permit alteration, the original PAL permitholderremains responsible for ensuring compliance with the existing PAL permit and all rules ofthe commission.

## Texas Commission on Environmental Quality Page 62 Chapter 116- Control ofAir PollutionbyPermits for New Construction orModification Rule Project No. 2012-015-116-AI
(c) The owner ofthe facility, emissions unit at a major stationary source, group of facilities, or account orthe operator ofthe facility, emissions unit at a major stationary
source, group offacilities, or account that is authorized to act for the owner is responsible for complying with this section, except as providedby subsection (b) 

## ofthis section.

§116.186. 

## General and Special Conditions.

(a) The plant-wide applicability limit (PAL) will impose an annual emission limitation intons peryear, thatis enforceable for all facilities, oremissions units at a major stationary source, that emit the PAL pollutant. For each month duringthe PAL effective period after the first 12 months ofestablishing a PAL, the major stationary

source owner or operator shall demonstrate thatthe sum ofthe monthly emissions from each facility underthe PAL for the previous 12 consecutive months is less thanthe PAL (a 12-month average, rolled monthly). For each month duringthe first 11 monthsfrom the PAL effective date, the major stationary source owner oroperator shall demonstrate thatthe sum ofthe precedingmonthly emissions from the PAL effective date for each facility underthe PAL is less thanthe PAL. Each PAL must include emissions ofonly

one pollutant. The PAL must include all emissions, includingfugitive emissions, to the
extent quantifiable, from all facilities or emissions units at a major stationary source included in the PAL that emit orhave the potential to emitthe PAL pollutant.

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## (b) 

## The following general conditions are applicable to every PAL permit.

(1) 

## Applicability. This section does not authorize any facility to emit air pollutants but establishes an annual emissions level below which new and modified facilities, or emissions units at a major stationary source, will not be subject to major

new source review for that pollutant.

(2) 

## Sampling requirements. Ifsampling ofstacks orprocessvents is required, the PAL permitholder shall contactthe commission's Office ofCompliance and Enforcement priorto sampling to obtainthe proper data forms andprocedures. All sampling andtesting procedures mustbe approvedby the executive director and coordinated with the appropriate regional office ofthe commission. The PAL permit holder is also responsible for providing samplingfacilities and conductingthe sampling operations orcontractingwith anindependent sampling consultant.

(3) Equivalency ofmethods. The permit holder shall demonstrate the equivalency ofemission control methods, sampling orotheremission testing methods, and monitoring methods proposed as alternatives to methods indicated inthe conditions ofthe PAL permit. Alternative methods mustbe applied for in writing and

## Texas Commission on Environmental Quality Page 64 Chapter 116- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2012-015-116-AI

mustbe reviewed and approvedbythe executive director priorto their use in fulfilling
any requirements ofthe permit.

(4) Recordkeeping andreporting.

(A) A copy ofthe PAL permit along with information and data sufficient to demonstrate continuous compliance with the emission caps contained in the PAL permit mustbe maintained in a file atthe plant site and made available atthe request ofpersonnel from the commission or any air pollution control programhaving jurisdiction. Forfacilities that normally operate unattended, this information mustbe maintained atthe nearest staffed location within Texas specifiedbythe permit holder in the permit application. This information mustinclude, butis not limited to, emission
cap andindividual emission limitation calculationsbased on a 12-monthrolling basis and production records and operating hours. Additional recordkeeping requirements
maybe specified in special conditions attached to the PAL permit.

(B) The owner or operator shall retain a copy ofthe PAL permit application and any applications for revisions to the PAL, each annual certification of compliance under §122.146 ofthis title (relating to Compliance Certification Terms and Conditions), andthe data relied on in certifying the compliance for the duration ofthe PAL plus five years.

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## (C) A 

## semiannual report shall be submittedto the executive director within 30 

## days ofthe end ofeach reporting period that contains:

(i) 

## the identification ofowner and operator andthe permit number;

(ii) 

## total annual emissions (in tons peryear) based on a 12- 

## month rolling total for each monthinthe reportingperiod;

(iii) all data relied upon, including, but not limitedto, any quality assurance orquality control data, in calculatingthe monthly and annual PAL pollutant emissions;

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

(v) the number, duration, and cause ofany deviations or monitoring malfunctions (otherthanthe time associated with zero and span calibration checks), and any corrective action taken. This maybe satisfiedby referencing the PAL

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## permit number in the semiannual report for the site submittedunder §122.145 

## ofthis title (relatingto ReportingTerms and Conditions);

(vi) a notification ofa shutdown ofany monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date thatthe monitoring system will befully operational orreplaced with another monitoring system, and whetherthe emissions unit monitored bythe monitoring system continued to operate, andthe calculation ofthe emissions ofthe pollutant orthe number determinedbymethodincluded inthe permit; and

(vii) a signed statementby the responsible official, as defined in §122.10 

## ofthis title (relating to General Definitions), certifying the truth, accuracy, and completeness ofthe information provided inthe report.

(D) The owner or operator shall submitthe results ofany revalidation test or method to the executive directorwithin three months after completion ofsuch test ormethod.

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

## Texas Commission on Environmental Quality Page 67 Chapter 116- 

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## equipmentis maintained in good working order and operatingproperly during normal facility operations.

(6) Compliance with rules. Acceptance ofa PAL permitby a permit applicant constitutes an acknowledgment and agreement thatthe holder will comply with all rules and orders ofthe commission issued in conformity with theTexas Clean Air Act andthe conditions precedenttothe granting ofthe permit. Ifmore than one
state orfederal rule or PAL permit condition is applicable, the most stringentlimit or condition will govern andbethe standardby which compliance mustbe demonstrated. Acceptance includes consent to the entrance ofcommission employees and agents into the permittedpremises at reasonable times to investigate conditions relating tothe emission or concentration ofair contaminants, including compliance with the PAL permit.

(7) Effective period. A PAL is effective for tenyears.

(8) Absence ofmonitoring data. A source owner oroperator shall record and report maximumpotential emissions without considering enforceable emission limitations oroperational restrictions for a facility during anyperiod oftime thatthere is no monitoring data, unless another methodfor determining emissions during such periods is specified in the PAL permit special conditions.

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## (g) Monitoring system requirements. Failure to use a monitoring system that meets the requirements ofthis section renders the PAL permitinvalid [is a violation ofthe PAL permit].

(10) 

## Revalidation. All data usedto establish the PAL pollutant mustbe revalidated through performance testing or other scientificallyvalid means approvedby the executive director. Such testing must occur atleast once every five years after issuance ofthe PAL.

(11) 

## Renewal. Ifa PAL renewal application is submittedto the executive directorin accordance with §116.196 

## ofthis title (relatingto Renewal ofa Plant-wide Applicability Limit Permit), the PAL shall not expire atthe end ofthe PAL effective period. It 

## shall remain in effect until a renewed PAL permit is issued by the executive director orthe application isvoided.

(c) Each PAL permit must include special conditions that satisfythefollowing requirements.

(1) 

## Forthe purposes ofthis subchapter, the definitions ofthe following
terms are the same as those provided in 40 

## Code ofFederal Regulations §51.165.

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## (A) Continuous emission monitoring system (CEMS).

(B) Continuous emissions rate monitoring system (CERMS).

(C) Continuous parametermonitoring system (CPMS).

(D) Predictive emissions monitoring system (PEMS).

(2) 

## The PAL monitoring system must accurately determine all emissions of the PAL pollutant interms ofmass perunit oftime. Any monitoring system authorized for use in the PAL permit mustbe based on sound science and meet generally acceptable scientific procedures for data quality and manipulation.

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

- (D) ofthis paragraph.

(A) An owner or operatorusing massbalance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meetthe following requirements:

## Texas Commission on Environmental Quality Page 70 Chapter 116- 

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## (i) provide a demonstrated means ofvalidating the published
content ofthe PAL pollutantthat is containedin, or createdby, all materials used in or
at the facility;

(ii) assume that the facility emits all ofthe PAL pollutantthat is contained in, or createdby, any raw material orfuel used in or at the facility, ifit
cannot otherwisebe accounted for intheprocess; and

(iii) where thevendorofa material or fuel that is used in or
at the facility publishes a range ofpollutant contentfrom such material, the owner or operator shall use the highestvalue ofthe range to calculate the PAL pollutant emissions unless the executive director determines that there is site-specific data or a site-specific monitoring programto support another contentwithin the range.

(B) 

### An 

## owneror operatorusing a CEMS to monitor PAL pollutant emissions shall meetthe following requirements.

(i) The CEMS must complywith applicable performance specifications found in 40 Code ofFederal Regulations Part 6o,Appendix B.

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## (ii) The CEMS must sample, analyze, and record data atleast
every 15 

## minutes while the emissions unit is operating.

(C) An 

## owner or operatorusing CPMS or PEMS to monitor PAL pollutantemissions shall meetthe following requirements.

(i) The CPMS orthe PEMS mustbebased on current sitespecific data demonstrating a correlationbetweenthe monitored parameter(s) andthe PAL pollutant emissions across the range ofoperation ofthe facility.

(ii) 

## Each CPMS or PEMS must sample, analyze, and record data atleast every 15 

## minutes or at anotherless frequent interval approvedbythe executive director, while the facility is operating.

(D) An owner or operatorusing emission factors to monitor PAL pollutant emissions shall meetthe following requirements.

(i) All emission factors mustbe adjusted, ifappropriate, to
account for the degree ofuncertainty orlimitations inthe factors' development.

## Texas Commission onEnvironmental Quality Page 72 

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## (ii) The facility must operate within the designated range of

use for the emission factor, ifapplicable.

(iii) 

## Iftechnically practicable, the owner or operator ofa significant facility that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emissionfactor within six months ofPAL permit issuance, unless the executive director determines thattesting is
notrequired.

(E) An 

## alternative monitoring approach must meet the requirements in paragraph (1) 

## ofthis subsection andbe approved bythe executive director.

(4) Where an owner oroperator ofa facility cannot demonstrate a correlationbetween a monitored parameter(s) andthe PAL pollutant emissions rate at all operating points ofthe facility, the executive director shall:

(A) establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

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## (B) determine that operation ofthe facility during operating conditions when there is no correlationbetween monitoredparameter(s) and the PAL pollutant emissions is a violation ofthe PAL.

### THE STATE OF TEXAS COUNTY OF TRAVIS 

# TEXAS 

# COMMISSION ON**ENVIRri\~~Jf\W~ft ~U~f>TT,-true**  and correc.t copy of a

### 'Te~Eff'Corrim1ss~ ont:nv1ronmental Quality document,**~'l.'E** Op 

### which is filed in the permanent records ofthe Commission. f.<./ "(1'1 

### Given u.nder 

### my hand and the seal of office on

# ~~**~** 

# /!:YAc;&4C&Jov 

# AUG 08 

# 2012**"~** Bridget C. &ohac, Chief Clerk 

## ORDERADOPTIN&as Commission on Environmental Quality 

## REVISIONS TO THE STATE IMPLEMENTATION PLAN



## Docket No. 2011-2229-RUL On July 25, 2012, the Texas Commission on Environmental Quality (Commission), during a public meeting, considered adoption ofamendments to§ 116.12, Nonattainment and Prevention ofSignificant Deterioration Review Definitions; § 

## 116.150, New Major Source or Major Modification in Ozone NonattainmentAreas;§ 116.151, New Major Source or Major Modification in NonattainmentArea OtherThan Ozone; § 116.180, Applicability; and § 116.186, General and Special Conditions and revisions to the state implementationplan (SIP). The Commission adopts these amendments and corresponding revisions to the SIP. Under Tex. Health & 

## Safety Code Ann. §§ 382.011, 382.012, and 382.023 (Vernon 2008), the Commission has the authorityto control the quality ofthe state's air andto issue orders consistent with thepolicies andpurposes ofthe Texas Clean Air Act, Chapter 382 ofthe Tex. Health &

## Safety Code. Notice ofthe proposed adoption was publishedfor commentin the March 9, 2012 issue ofthe 

# Texas Register (37 TexReg 1661). Pursuantto 40 Code ofFederal Regulations § 51.102 and after proper notice, the Commission conducted a public hearing to consider the amendedrules and revisions to the SIP. Proper notice includedprominent advertisementin the areas affected atleast 30 days priorto the date ofthe hearing. Apublichearing was held inAustin on March 29, 2012. The Commission circulatedhearingnotices ofits intended actionto the public, including interested persons, the Regional Administrator ofthe EPA, and all applicable local air pollution control agencies. The public was invitedto submitdata, views, and

. recommendations onthe proposed amendments and SIP revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled hearing, copies ofthe proposed amendments and SIP revisions were available for public inspection atthe Commission's central office and on the Commission's Web site. Data, views, andrecommendations ofinterested persons regarding the proposed amendments and SIP revisions were submittedto the Commission during the comment period, andwere consideredbythe Commission as reflected in the analysis oftestimony incorporatedbyreference to this Order. The Commission finds that the analysis oftestimony includes the names ofall interested groups or associations offering comment on the proposed amendments andthe SIP revisions andtheir position concerning the same. IT IS THEREFORE ORDERED BY THE COMMISSION thatthe amended rules and revisions to the SIP incorporatedby reference to this Order are hereby adopted. The adopted rules andthe revisions to the SIP are incorporatedby reference in this Order as ifset forth at length verbatim in this Order.

## IT IS FURTHER ORDERED BY THE COMMISSION that onbehalfofthe Commission, the**Chainna~ s~ould**  

## transmit a copy ofthis Order, together with the adopted amendments and reyisions

# td,**th.~** 

## SIP, to the Regional Administrator ofEPA as a proposedrevision to the Texas SIP pursuantt6the Federal Clean Air Act, codified at 42 U.S. Code Ann.§§ 7401- 7671q, as amended. This Order constitutesthe Order ofthe Commission requiredbytheAdministrative ProcedureAct, Tex. Gov't Code,§ 2001.033 (Vernon 2008). Ifany portion ofthis Orderis for any reason heldtobe invalidby a court ofcompetent jurisdiction, the invalidity ofany portion shall not affect thevalidity ofthe remaining portions.

Date issued: 

# AUG 07 2012 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

haw, Ph.D., Chairmaningmethods approved by the executive director and in accordance with the appropriate procedures oftheTCEQ Sampling Procedures Manual. All units required to be equippedwith an oxidation catalyst control device must also be retested after every 16,000 hours ofoperation. (4) Except for rich-bum engines equipped with oxidation" reduction (three-way) catalysts, and units required to be equipped with an oxidation catalyst under subsection (d)(3) or (4) ofthis section, the uncontrolled source must demonstrate compliance with the emission standards in subsection (d) ofthis section. (t) Recordkeeping. In addition to the minimum records**re~** quired by §106.8 of this title (relating to Recordkeeping), the owner or operator must keep the following records: (1) For the life ofthe CHP unit, the registration application and any additional representations made during the approval process to obtain the registration; and (2) The owner oroperatormustkeep the following records for at leasttwo years and make them availableto the TCEQ or any local pollution control program withjurisdiction upon request: (A) A record of every one-week period of operation where the CHP unit did not comply with subsection (c)(2) of this section; (B) All monitoring and testing data generated in compliance with subsection (e) ofthis section and in a format that shows the emission standards have been met; (C) Records ofCHPunit operation sufficientto demonstrate compliance with any applicable hour-based requirements ofsubsection (e) ofthis section; (D) Records of maintenance described in subsection (g)(2) ofthis section; and (E) Records ofthenumber ofhours that any emergency fuel is used under subsection (c)(8) ofthis section, and the reason why operating on an emergency fuel is necessary. (g) Planned Maintenance, Startup, and Shutdown. (1) ThisPBR authorizes all emissions from planned startup and shutdown activities associated with facilities that are authorized by this section. (2) This PBR authorizes emissions from the tollowing planned maintenance activities associated with facilities authorized by this section: routine maintenance including, but not limited to, filter changes, oxygen sensor replacements, overhauls, lubricant changes, spark plug changes, and emission control system maintenance. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of State on July 27, 2012. TRD-201203901 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: August 16, 2012 Proposal publication date: March 9, 2012 For further information, please call: (512) 239-2141 

# • • • CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION The Texas Commission on Environmental Quality (commission or TCEQ) adopts amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186. Section 116.180 is adopted with change to the proposed text as published in the March 9, 2012, issue of the Texas Register(37 TexReg 1661). Sections 116.12, 116.150, 116.151, and 116.186 are adopted without changes to the proposed text and will not be republished. The amendments to §§116.12, 116.150, 116.151, 116.180, and 116.186 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 June 10, 2005, the TCEQ submitted amendments to §116.12 to the EPA as revisions to the New Source Review (NSR) SIP and §116.150 as revisions to the Nonattainment New Source Review (NNSR) SIP, both adopted on May 25, 2005. On January 11, 2006, the TCEQ repealed §§116.180- 116.183, 116.410, and 116.617; amended §§116.12, 116.150, 116.151, 116.160, and 116.610; and adopted new §§116.121, 116.180, 116.182, 116.184,116.186,116.188,116.190,116.192,116.194,116.196, 116.198, 116.400, 116.402, 116.404, 116.406, 116.617, and 116.1200. The TCEQ submitted these to the EPA as revisions to the NSR SIP to implement EPA's NSR Reform rules which became final on December 31, 2002. On September 23, 2009, the EPA published notice of the proposed disapproval of these revisions to the Texas SIP on September 23, 2009 (74 Federal Register48467). The EPA published the final disapproval notice on September 15, 2010 (75 Federal Register56423). On February 9, 2011, in response to the EPA's final disap· proval, the TCEQ repealed §116.121, adopted amendments to §§116.12, 116.115, 116.150, 116.180, 116.182, 116.186, 116.188, 116.190, 116.192, 116.601, and 116.617; and adopted new §116.127. The commission published these amendments in the February 25, 2011, issue ofthe Texas Register(36 TexReg 1305 and 1324). On March 11, 2011, the TCEQ submitted a revised SIP package that was based on the rule amendments, with the exception of §116.617, adopted on February 9, 2011, and addressed the issues outlined in the EPA's disapproval. On September 30, 2011, the EPA expressed its intent to propose conditional approval of TCEQ rules implementing the changes to the NSR SIP and the NSR Reform and requested a dialog to resolve certain EPA concerns and facilitate a final approval. This rulemaking addresses those concerns. This rulemaking is at least as stringent as the federal rules it implements because it includes the applicable elements of the major NSR and plant-wide applicability limit (PAL) permit programs. The rulemaking action also ensures that the rulemaking, if adopted, will meet the requirements of Federal Clean Air Act (FCAA), §110 which, among other requirements, requires that the elements of the SIP be enforceable, ensure compliance, include replicable elements, and ensure accountability. The specific changes to the PAL rules meet these basic requirements. In addition to this rulemaking, on May 4, 2012, the executive director provided a letter, at the request of EPA Region 6, which contained additional information regarding how the com

## ADOPTEDRULES August 10,2012 37 TexReg 6049mission's rules implementing NSR Reform comply with FCAA, §11 0(1). The letter also addresses specific questions raised by EPA Region 6 regarding the practical enforceability of PAL permits, TCEQ's treatment of malfunction emissions with regard to PAL permits, and the judicial admissibility of monitoring data required by PAL permits. Section by Section Discussion §116.12, Nonattainment and Prevention ofSignificant Deterioration Review Definitions The commission adopts the amendment to the definition of the term "Plant-wide applicability limit effective date" in §116.12(23) to remove language that references the date that a flexible permit was issued. Since PAL permits and flexible permits are addressed by two different sets of rules in Chapter 116, it is inappropriate to reference flexible permits in the definition ofthe term PAL effective date. The change removes this obsolete language, clarifying permitting requirements and ensuring consistency with federal requirements regarding NSR permits. §116.150, New Major Source or Major Modification in Ozone Nonattainment Areas The federal term "emissions unit" as defined in federal rules is similar to the term "facility" as defined in the Texas Clean AirAct (TCAA). In order to ensure clarity and consistency with federal requirements, the commission is adding the language "or emissions unit" where the terms "facility" or "facilities" are used (i.e., §116.150(a), (d)(1) and (3)). § 116. 151, New MajorSource orMajorModification in NonattainmentArea Other Than Ozone The federal term ''emissions unit" as defined in federal rules is similarto the term "facility" as defined in the TCAA. In orderto ensure clarity and consistency with federal requirements, the commission is adding the language "or emissions unit" where the terms "facility" or "facilities" are used in §116.151(a), (c)(1) and (3)). In response to EPA's proposed disapproval notice published September 23, 2009, the commission's executive director submitted comments replying to EPA's solicitation from the TCEQ to comment on EPA's interpretation of Texas law and the Texas NSR SIP with respect to the term "facility," stating that it is critical to EPA's understanding ofthe Texas Permitting Program. TCEQ's comments stated, in part, that the definition of the term "facility" is one ofthe cornerstones ofthe air permitting program in Texas under the TCAA. The comments specifically stated that the TCEQ's interpretation ofTexas law differs from that of EPA. In its final disapproval notice on September 15, 2010 (75 Federal Register56423), EPA carried forward text from its proposed disapproval from September 23, 2009, by stating in footnote 7 on page 56433 and also on page 56438, "{i}t is our understanding of State law, that a "facility" can be an "emissions unit," i.e., any part of a stationary source that emits or may have the potential to emit any air contaminant. A "facility" also can be a piece of equipment, which is smaller than an "emissions unit." A "facility" can be a "major stationary source" as defined by Federal law. A "facility" under State law can be more than one "major stationary source." It can include every emissions point on a company site, without limiting these emissions points to only those belonging to the same industrial grouping (SIC code)." In the same notice in footnote 15 on page 56438, EPA acknowledges that TCEQ's definition of "facility" is part of the approved Texas SIP.



## 37 Tex:Reg 6050 August 10, 2012 Texas Register Under the TCAA in Texas Health and Safety Code (THSC), §382.003(6) and in §116.1 0(4), "facility" is defined as "a discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not considered to be a facility." A facility may constitute or contain a stationary source- a point of origin of a contaminant, as defined in THSC, §382.003(12) and in §116.10(15), a definition that is approved into the Texas SIP. As a discrete point, a facility can constitute but cannot contain a "major stationary source" as defined by federal law and in the TCEQ's SIP-approved §116.12(17). A facility is subject to major and minor NSR requirements, depending on the facts of the specific application. The TCEQ and its predecessor agencies have consistently interpreted facility to preclude inclusion of more than one stationary source, in contrast to EPA's stated understanding. Likewise, TCEQ does not interpretfacility to include "every emissions point on a company site, even if limiting these emission points to only those belonging to the same industrial grouping (SIC code)." The federal definition of "major stationary source" in 40 Code of Federal Regulations (CFR) §51.166(b)(1 )(i)(a) includes the concept of multiple emission points and is not equivalent to the state definition of "source" which is a single emission point. A "major stationary source" can include more than one "emission unit" which is equivalent to "facility" under Texas law. Under major NSR, EPA uses the term "emissions unit" (generally) when referring to part of a "stationary source;" TCEQ translates "emissions unit" to mean "facility." The commission's SIP-approved Prevention of Significant Deterioration (PSD) permitting rule in §116.160(c)(3) states, "{t}he term 'facility' shall replace the words 'emissions unit' in the referenced sections ofthe CFR." TCEQ and its predecessor agencies have applied this interpretation of the term "facility" for more than 30 years. The TCEQ's interpretation ofTexas statutes enacted by the legislature is addressed by the Texas Code Construction Act (Texas Government Code, Chapter 311 ). More specifically, words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly under Texas Government Code, §311.011 (b). In response to the proposed disapproval, the commission previously considered adding the phrase "or emissions unit" in its PAL rules, but did not do so in the nonattainment permitting rules because of the long term use of the term "facility" in the Texas permitting rules and the approved Texas SIP. EPA approved versions ofthe nonattainment permitting rules into the SIP, including the definition of "facility." In order to accelerate the approval ofthe federal nonattainment permitting program, the commission proposed and is adopting the addition of"emissions unit" to §116.150 and §116.151. §116.180, Applicability The commission adopts a correction to a typographical error in §116.180(a)(5) by changing a reference to the federal rules from 40 CFR §51.165(iv)(A) to 40 CFR §51.165(a)(1 )(iv)(A). Additionally, the commission is adding a reference to the federal definition of major stationary source in 40 CFR §51.166(b)(1 ). Adding this reference strengthens the TCEQ's PAL rules by limiting the applicability of a PAL to a source that conforms to the federal definition of a major stationary source in 40 CFR §51.166(b)( 1).The changes clarify permitting requirements and ensure**consis~** tency with federal requirements regarding NSR permits. §116.186, General and Special Conditions The commission amends §116.186(b)(9) to state that failure to use the required monitoring would render the PAL permit invalid. The commission adopts the change to ensure consistency with federal rule requirements. In both its proposed and final disapproval notices for the NSR Reform rules (as mentioned elsewhere in this preamble), the EPA stated that the specific monitoring definitions are essential for the enforceability of and providing the means for determining compliance with a PAL program. EPA also specifically stated that one of the bases for disapproval of the commission's PAL rules is that the rules lacked a mandate that failure of the**mon~** itoring system to meet the requirements of this section renders a PAL permit invalid. In response, the commission specifically amended its PAL rules to address the monitoring systems, and also added §116.186(b)(9) specifying that failure to use a**moni~** taring system is aviolation ofthe PAL permit. EPA did not provide comment on that amendment, nor on §116.186(b)(9). The**com~** mission understood that the proposed changes were**satisfac~** tory for SIP approval. However, §116.186(b)(9) did not address EPA's concerns, which were related to the installation and**gen~** eral use of monitoring systems rather than compliance issues, such as monitoring downtime, the latter which is addressed in §116.186(b)(8). As discussed elsewhere in this preamble, EPA contacted the commission in 2011 regarding its review of the submitted rules and raised the issue of ensuring that the commission's rules adequately adopted the EPA's requirement that a PAL permit is invalid if it does not require a monitoring system and the system is not installed. EPA's general monitoring requirements for PAL permits are in 40 CFR §51.165(f)(12)(i)(A)- (D) and §51.166(w)(12)(i)(a)- (d). 40 CFR §51.165(f)(12)(i) and §51.166(w)(12)(i) include requirements for a monitoring system in each PAL permit that is based on sound science and meets generally acceptable scientific procedures for data quality and manipulation; those systems must be one ofthe four general monitoring approaches in the federal PAL rules. 40 CFR §51.165(f)(12)(i)(D) and §51.166(w)(12)(i)(d) provide that failure to use a monitoring system that meets the applicable federal rule requirements renders the PAL invalid (see discussion in 67 Federal Register80211- 80214, December 31, 2002). Therefore, based on the text and context of both the rule and the accompanying preamble, the phrase "failure to use" in EPA's rule means a failure to install or failure to operate the prescribed monitoring device or system to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the monitoring device or system. The change to §116.186(b)(9) will address EPA's concern thatthe commission's rules fully incorporate all PAL permit requirements. Any invalidation of a PAL permit will be subject to necessary and appropriate procedures in Texas statutes and TCEQ rules. Texas Water Code (TWC), §7.302, regarding Grounds for Revocation or Suspension of Permit, provides the commission the authority to revoke and suspend or reissue a permit on prescribed grounds after notice and hearing. Prior to any invalidation of a PAL permit, the commission anticipates enforcement action that could include a request for revocation. The commission generally does not expect occurrence of circumstances which could lead to invalidation (e.g., failure to install or use monitoring equipment) and thus few, if any, revocation proceedings. Final Regulatory Impact Analysis Determination The commission reviewed the adopted rulemaking in light ofthe regulatory impact analysis (RIA) requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meetthe definition ofa 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 ofthe economy, productivity, competition, jobs, the environment, or the public health and safety ofthe state or a sector ofthe state. The specific intent of the adopted revisions is to include definitions for, and make other changes to the PAL rules to meet federal requirements. Additionally, even if the 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, §2001.0225(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 ofthe 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 rules implement requirements of the FCAA. Under42 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 National Ambient Air Quality Standards (NAAQS) within the state. While 42 USC, §7410 generally does not require specific programs, methods, or emission reductions in order to meet the standard, state SIPs must include specific requirements as specified by 42 USC, §7410. The provisions ofthe FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meetthe NAAQS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NAAQS forthe 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 0, and 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 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 NAAQS, shall promulgate rules that apply to all areas that have not attained the previous NAAQS that provide for controls that are no less stringent than the controls that previously applied to the area. This rulemaking addresses those sections submitted as revisions to the NSR SIP and were subsequently proposed for disapproval



## ADOPTEDRULES August 10, 2012 37 TexReg 6051by the EPA. Specifically, those concern definitions for and other changes to the PAL rules to meet federal requirements. The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent ofSB 633was torequire agencies to conduct a regulatory impact analysis of extraordinary rules. The statutory language identifies these as major environmental rules that will have a material adverse impact and will exceed a requirement ofstate law, federal law, ora 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. The commission bases this conclusion, 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 satisfying specific federal requirements. The commission presumes the legislature 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 of those rules would require the full RIA contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board in its fiscal notes. Since the commission presumes the legislature to understand the fiscal impacts ofthe bills it passes, and that presumption is based on information provided by state agencies and the Legislative Budget Board, 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 of the FCAA, and in fact creates no additional impacts since the adopted rules do not exceed the requirement to attain and maintain the NAAQS. Forthese reasons, the adopted rules fall under the exception in Texas Government Code, §2001.0225(a}, because they are required by, and do not exceed, federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power

### & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995}, writ denied with per curiam opinion respecting anotherissue, 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 Coastallndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978)}.



## 37 TexReg 6052 August 10, 2012 Texas Register 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 legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §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 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 of the rulemaking is to address those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, those concern definitions for and other changes to the PAL rules to meet federal requirements. The adopted rules were not developed solely under the general powers of the agency, but are authorized by specific sections of THSC, Chapter 382 (also known as the TCAA}, and the TWC, which are cited in the Statutory Authority section ofthis preamble. Therefore, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b). Takings Impact Assessment Under Texas Government Code, §2007.002(5), taking means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Texas Constitution §17 or §19, Article I; 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 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 governmental action is not in effect and the market value ofthe property determined as ifthe governmental action is in effect. The commission completed a takings impact analysis for this rulemaking underthe Texas Government Code, §2007.043. The primary purpose of this rulemaking, as discussed elsewhere in this preamble, is to address those sections submitted as revisions to the NSR SIP and subsequently were proposed for disapproval by the EPA. Specifically, the changes concern definitions for and other changes to the PAL rules to meet federal requirements. The adopted rules will not create any additional burden on private real property. The adopted rules will not affect private real property in a mannerthatwould require compensation to private real property owners underthe United States Constitution or the Texas Constitution. This adoption also will not affect private real property in a mannerthat restricts or limits an owner's right to the property thatwould otherwise exist in the absence ofthe governmental action. Therefore, the rulemaking will not cause a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management ProgramThe 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 TAG Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAG §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 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 TAG §501.12(1)). 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 TAG §501.14(q)). Therefore, in accordance with 31 TAC §505.22(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 TAG Chapter 122, Federal Operating Permits Program. Owners or operators subject to the federal operating permit program must, consistent with the revision process in Chapter 122, upon the effective date of the adopted rulemaking, revise their operating permit to include the new Chapter 116 requirements. Additionally, sources subject to the rules may become subject to the federal operating permit program. Public Comment The commission held a public hearing on the proposal in Austin on March 29, 2012. The following persons submitted comments during the public comment period which closed on April9, 2012: Baker Botts, L.L.P. on behalf ofthe Texas Industry Project (TIP). Response to Comments TIP requests that the commission add language to §116.186(b)(9) that unambiguously forecloses the possibility that the TCEQ rule be interpreted as the malfunction of a monitoring device could lead to the invalidation of a PAL permit. TIP requested additional rule text stating that monitor downtime includes periods when quality-assured monitoring data is not available for any reason, including equipment malfunction, repair, periodic maintenance, and quality assurance activities. TIP stated that the requested language is consistent with the federal PAL rules and should not prevent prompt EPA approval. TIP further stated only the rule text is enforceable, and there is no assurance that future enforcement or interpretation will defer to the commission's position, as expressed in the preamble, that "failure to use" a monitoring system refers to installation and does not include malfunctions. The commission has not changed the rule in response to this comment. EPA contacted the commission in 2011 regarding its review ofthe submitted PAL rules and raised the issue of ensuring that the commission's rules adequately adopted the EPA's requirement that a PAL permit is invalid if the required monitoring system is not required by the permit nor installed by the permittee. As thoroughly discussed elsewhere in this preamble, the phrase "failure to use" in EPA's PAL rule means a failure to install or failure to operate the prescribed monitoring device or system to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the monitoring device or system. The language in §116.186(b)(9) is intentionally identical to that used by EPA in its PAL rules and was chosen to ensure the SIP approvability of this adoption. The commission has no formal indication from EPA that it would find any other language approvable other than that proposed, and the commission is adopting that language. Further, the suggested language is broader than that in EPA's preamble, which TIP cites in its comments. In the context of an enforcement matter or litigation regarding compliance with §116.186(b)(9), should there be a question of whether the commission is enforcing the rule in harmony with this adoption preamble, the parties can consult the preamble to ensure that enforcement or litigation decisions appropriately take into consideration the commission's position on this rule language as expressed in the preamble. TIP also requested that the commission specify monitoring requirements that are subject to §116.186(b)(9) when issuing, changing, or reviewing individual permits that include PALs. The permit invalidation language in the federal PAL rule should be construed to apply to only to the minimum monitoring requirements of the PAL rules and not to supplemental non-PAL pollutant monitoring requirements or to systems exceeding minimum PAL requirements. The commission's permits will specify monitoring requirements that meet applicable rules, including §116.186, for PAL permits, as well as any other monitoring requirements necessary for compliance with the FCAA, TCAA, the Texas SIP, and the rules ofthe commission. The commenter is correct that the criteria for permit invalidation is limited to those monitoring systems installed to meet the minimum PAL requirements. No change was made to the rules in response to this comment. 

## SUBCHAPTER A. DEFINITIONS 30 TAC §116.12 STATUTORY AUTHORITY The amendment is adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the lWC; lWC, §5.1 05, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The amendment is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control ofthe state's air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitor

## ADOPTED RULES August 10, 2012 37 TexReg 6053ing the emissions of air contaminants from a source or from an activity causing or resulting in the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collected by the commission in performing its duties are state property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits for construction of new facilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will evaluate modifications of existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal source or facility; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendment is also adopted under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401 et seq., which requires states to submit state implementation plan revisions that specify the manner in which the National Ambient Air Quality Standard will be achieved and maintained within each air quality control region of the state. The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 382.051, 382.0511

- 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of State on July 27, 2012. TRD-201203894 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: August 16, 2012 Proposal publication date: March 9, 2012 For further information, please call: (512) 239-2548 

# • • • SUBCHAPTER B. NEW SOURCE REVIEW PERMITS DIVISION 5. NONATTAINMENT REVIEW PERMITS 30 TAC §116.150, §116.151 STATUTORY AUTHORITY The amendments are adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under



## 37 TexReg 6054 August 10, 2012 Texas Register the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes ofthe Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits for construction of new facilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will evaluate modifications of existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendments are also adopted under Federal Clean Air Act (FCAA), 42 United States Code (USC), §§7401 et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standard will be achieved and maintained within each air quality control region ofthe state. The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.0511, 382.0512, 382.0513, 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office ofthe Secretary of State on July 27, 2012. TRD-201203895 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: August 16, 2012 Proposal publication date: March 9, 2012 For further information, please call: (512) 239-2548 

# • • • SUBCHAPTER C. PLANT-WIDE APPLICABILITY LIMITS DIVISION I. PLANT-WIDE APPLICABILITY LIMITS 30 TAC §116.180, §116.186STATUTORY AUTHORITY The amendments are adopted under Texas Water Code (TWC), §5.1 02, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.1 03, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; TWC, §5.1 05, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission; TWC, §7.02, concerning Enforcement Authority, which provides the commission the authority to enforce the statutes under its jurisdiction; TWC, §7.301, concerning Definition, which defines terms used in Chapter 7, Subchapter G; TWC, §7.302, concerning Grounds for Revocation or Suspension of Permit, which provides the commission the authority to revoke and suspend or revoke and reissue a permit on prescribed grounds after notice and hearing; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The amendments are also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants from a source or from an activity causing or resulting in the emission of air contaminants; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures to be used in determining violations of and compliance with the commission's rules; THSC, §382.040, concerning Documents; Public Property, which provides that all information, documents, and data collected by the commission in performing its duties are state property; THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits for construction of new facilities or modifications to existing facilities that may emit air contaminants; THSC, §382.0511, concerning Permit Consolidation and Amendment, which authorizes the commission to consolidate various authorizations; THSC, §382.0512, concerning Modification of Existing Facility, which prescribes how the commission will evaluate modifications of existing facilities; THSC, §382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforce permit conditions; THSC, §382.0514, concerning Sampling, Monitoring, and Certification, which authorizes the commission to require sampling and monitoring of a permitted federal source or facility; THSC, §382.0515, concerning Application for Permit, which specifies permit application requirements; and THSC, §382.0518, concerning Preconstruction Permit, which authorizes the commission to issue preconstruction permits. The amendments are also adopted under Federal Clean AirAct (FCAA), 42 United States Code (USC), §§7401 et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standard will be achieved and maintained within each air quality control region of the state. The adopted amendments implement THSC, §§382.002, 382.011, 382.012, 382.016, 382.017, 382.021, 382.040, 382.051' 382.0511' 382.0512, 382.0513, 382.0514, 382.0515, and 382.0518, and FCAA, 42 USC, §§7401 et seq. §116.180. Applicability. (a) The following requirements apply to a plant-wide applicability limit (PAL) permit. (1) Only one PAL may be issued for each pollutant at an existing major stationary source. (2) A PAL permit may include more than one PAL. (3) A PAL permit may not cover facilities or emissions units at more than one existing major stationary source. (4) A PAL permit may be consolidated with a new source review permit at the existing major stationary source. (5) A PAL pennit can be issued only for an existing major stationary source; itmay notbe issued for a newmajor stationary source as defined in 40 Code ofFederal Regulations §5 I.l65(a)(l)(iv)(A) and §51.166(b)(l)(i). (b) The new owner ofa major stationary source shall comply with §116.110(e) ofthis title (relating to Applicability), provided that all facilities, or emissions units at a major stationary source, covered by a PAL permit change ownership at the same time and to the same person, or both the new owner and existing permit holder must obtain a PAL permit alteration allocating the emission prior to the transfer of the pennit by the commission. After the sale ofa facility, or emissions unit at a major stationary source, but prior to the transfer of a permit requiring a permit alteration, the original PAL permit holder remains responsible for ensuring compliance with the existing PAL permit and all rules ofthe commission. (c) The owner ofthe facility, emissions unit at a major stationary source, group offacilities, or account or the operator ofthe facility, emissions unit at a major stationary source, group offacilities, or account that is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) ofthis section. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of State on July 27, 2012. TRD-201203896 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: August 16, 2012 Proposal publication date: March 9, 2012 For further information, please call: (512) 239-2548 

# • • • CHAPTER285. ON-SITE SEWAGE FACILITIES The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §285.11 and §285.21; and adopts new §285.38. Sections 285.11 and 285.21 are adopted without changes to the proposed text as published in the February 24, 2012, issue ofthe Texas Register (37 TexReg 1174) and will not be republished.



## ADOPTED RULES August 10, 2012 37 TexReg 6055Livingston, Polk County; TYPE OF FACILITY: individual; RULE VIOLATED: 30 TAC §30.5(a), by failing to obtain a required occupational license; PENALTY: $175; ENFORCEMENT**COORDI~** NATOR: Heather Podlipny, (512) 239"2603; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas 77703"1830, (409) 898-3838. (26) COMPANY: Monarch Utilities I LP.; DOCKET NUMBER: 2011-2189-MWD-E; IDENTIFIER: RN102287513; LOCATION: Montgomery County; TYPE OF FACILITY: wastewater treatment plant; RULE VIOLATED: TWC, §26.121(a)(l), 30 TAC §305.125(4), and Texas Pollutant Discharge Elimination System (TPDES) Permit Number WQ0012587001, Permit Conditions Number 2.g., by failing to prevent the unauthorized discharge of wastewater from the collection system into or adjacent to water in the state; and 30 TAC §305.125(1) and (5) and TPDES Permit Number WQ0012587001, Operational Requirements Number 4, by failing to maintain adequate safeguards to prevent the discharge ofuntreated or inadequately treated wastes during electrical power failures; PENALTY: $25,800; ENFORCEMENT COORDINATOR: Jennifer Graves, (956) 430-6023; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1486, (713) 767-3500. (27) COMPANY: Najera, Felipe; DOCKET NUMBER: 2012-1445- AIR-E; IDENTIFIER: RN106104110; LOCATION: Palestine, An· derson County; TYPE OF FACILITY: outdoor burning; RULE VIOLATED: 30 TAC §111.20I, by failing to comply with the outdoor burning rules ofTexas which state that no person may cause, suffer, allow or permit any outdoor burning within the State ofTexas, except as provided by this subchapter or by orders or permits ofthe commission; PENALTY: $875; ENFORCEMENT COORDINATOR: Heather Podlipny, (512) 239-2603; REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535-5100. (28) COMPANY: Tommy Haltom; DOCKET NUMBER: 2012- 0409-AIR-E; IDENTIFIER: RN105818843; LOCATION: Marshall, Harrison County; TYPE OF FACILITY: air curtain incinerator; RULE VIOLATED: 30 TAC §112.143(4) and §122.146(1) and (2), Texas Health and Safety Code, §382.085(b), Federal Operating Permit Number 03241/General Operating Permit Number 518, Terms and Conditions (b)(3)(D)(i) and (ii), by failing to submit an Annual Compliance Certification within 30 days after the end ofthe certification period; PENALTY: $2,000; ENFORCEMENT COORDINATOR: Audra Benoit, (409) 899-8799; REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535-5100. (29) COMPANY: Tyler Pounds Regional Airport; DOCKET NUMBER: 2012-1488-WQ-E; IDENTIFIER: RN103183695; LOCATION: Tyler, Smith County; TYPE OF FACILITY: airport; RULE VIOLATED: 30 TAC §281.25(a)(4), by failing to obtain a Multi-Sector General Permit (stormwater); PENALTY: $875; ENFORCEMENT COORDINATOR: Harvey Wilson, (512) 239-0321; REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535"5100. (30) COMPANY: Victoria County Water Control and Improvement DistrictNumber2; DOCKET NUMBER: 2012-0913-MWD-E; IDENTIFIER: RN10161233l; LOCATION: Placedo, Victoria County; TYPE OF FACILITY: wastewater treatment plant; RULE VIOLATED: 30 TAC §305.125(1) and (17) and §319.7(d) and Texas Pollutant Discharge Elimination System (TPDES) Permit Number WQOOI2743001, Monitoring and Reporting Requirements Number 1, by failing to submit the discharge monitoring reports for the monitoring periods ending January, 2011

- December 31, 2011, by the 20th day ofthe following month; 30 TAC §305.125(1) and (17) and TPDES Permit Number WQ0012743001, Sludge Provisions, by failing to submit a complete sludge report for the monitoring period ending July 31, 2011; and 30 TAC §205.6 and TWC §5.702, by failing to pay outstanding public health service fees for TCEQ Financial Account Number 92350006 for the 2012 fiscal year; PENALTY: $18,360; ENFORCEMENT COORDINATOR: Jennifer Graves, (956) 430-6023; REGIONAL OFFICE: 6300 Ocean Drive, Suite 1200, Corpus Christi, Texas 78412-5503, (361) 825-3100. TRD-201204272 Kathleen C. Decker Director, Litigation Division Texas Commission on Environmental Quality Filed: August 14, 2012 

# • • Correction ofError 

# •

The Texas Commission on Environmental Quality (TCEQ) adopted amendments to 30 TAC §§116.12, 116.150, 116.151, 116.180, and 116.186, concerning Control ofAir Pollutionby Permits for New Construction or Modification, in the August I0, 2012, issue ofthe 

### Texas Register (37 TexReg 6049). An error occurs in the rule preamble on page 6049, second colunm, third line from the bottom. The date "May 4, 2012" is wrong. The correct date is "May 3, 2012". The corrected sentence reads as follows: "In addition to this rulemaking, on May 3, 2012, the executive director provided a letter, at the request ofEPA Region 6, which contained additional information

...." TRD-201204267 

# • • • Enforcement Orders An agreed order was entered regarding Sugartree, Inc., Docket No. 2011-1921-WR-E on July 27, 2012 assessing $1,500 in administrative penalties with $300 deferred. Information concerning any aspect of this order may be obtained by contacting Heather Brister, Enforcement Coordinator at (254) 761-3034, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087. An agreed order was entered regarding Naomi Hagerman dba tOOth Meridian Stop, Docket No. 2011-2153-PST-E on July 27, 2012 assessing $6,230 in administrative penalties with $1,246 deferred. Information concerning any aspect ofthis order may be obtained by contacting Clinton Sims, Enforcement Coordinator at (512) 239-6933, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087. An agreed order was entered regarding Aksons Enterprise, Inc. dba Yonkers, Docket No. 2011-2255-PST-E on July 27, 2012 assessing $2,500 in administrative penalties with $500 deferred. Information concerning any aspect ofthis order may be obtained by contacting StephenThompson, Enforcement Coordinator at (512) 239- 2558, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087. An agreed order was entered regarding Johan Gerrit Koke dba Blue Jay Dairy, Docket No. 2011-2270-AGR-E on July 27, 2012 assessing $4,480 in administrative penalties with $896 deferred. Information concerning any aspect of this order may be obtained by contacting Heather Brister, Enforcement Coordinator at (254) 761-3034, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.



## INADDITION August24, 2012 37 TexReg 6799