Bryan W. Shaw, Ph.D., Chairman 

Buddy Garcia, Commissioner 

Carlos Rubinstein, Commissioner 

Mark R. Vickery, P.G., Executive Director 10 FEB -8 Pli 2: 2 I 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

February 2, 2010 

Docket No. 2009-0338-RUL 

Rule Project No. 2009-023-117-EN 

AI Armendariz, Ph.D, Regional Administrator 

U.S. Environmental Protection Agency- Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Dr. Armendariz: 

On January 13, 2010, the Texas Commission on Environmental Quality ("Commission") adopted revisions to 

the State Implementation Plan (SIP). 

The Commission adopted amendments to§ 117.403 in 30 TAC Chapter 117, Control of Air Pollution from 

Nitrogen Compounds; Subchapter B, Combustion Control at Major Industrial, Commercial, and Institutional 

Sources in Ozone Nonattainment Areas; Division 4, Dallas-Fort Worth (DFW) Eight-Hour Ozone 

Nonattainment Area Major Sources, and corresponding revisions to the SIP. The adopted rulemaking amends 

the major source rule for the DFW eight-hour ozone nonattainment area in Chapter 117 to expand the exemption 

from the current rule to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven 

fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass 

manufacturing. The adopted rule would also revise the rule language "nitrogen-bound chemical additives" to 

"nitrogen-containing resins, or other additives." This adopted change will clarify that nitrogen-containing resins 

would qualify for this exemption because resins might not always be considered an additive. The proposed rules 

were published in the August 28, 2009, issue of the Texas Register (33 Tex Reg 5866). 

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

hearing, and the accompanying order. I look forward to your expeditious approval of these SIP revisions. 

IT, 

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cc: The Honorable Rick Perry, Governor of Texas 

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

Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality 

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

printed on recycled paper using soy-based ink 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Docket No. 2009-0338-RUL 

THE STATE OF TEXAS 

COUNTY OF TRAVIS 

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

State Implementation Plan, adopted on January 13, 2010, pursuant to 40 Code of Federal Regulations § 51.104. 

I am the records administrator for the Air Quality Division of the Texas Commission on Environmental Quality. 

D . __ DavidYY~ ~ '-~1'-ti'L lJ"" Director, Air Quality Division 

Texas Commission on Environmental Quality 
Texas Commission on Environmental Quality 

Public Hearing 

September 17, 2009 

Concerning proposed revisions to 30 TAG 

Chapter 117, Control of Air Pollution from 

Nitrogen Compounds. 

Rule Project Number 2009-023-117-EN 
INTRODUCTION 

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

September 17, 2009, to receive testimony regarding proposed revisions to 30 TAC Chapter 117, 

Control of Air Pollution from Nitrogen Compounds. 

The adopted rulemaking exempts low-temperature drying and curing ovens used in mineral wooltupe fiberglass manufacturing and wet-laid, non-woven fiber mat manufacturing in which nitrogencontaining resins or other additives are used at major sources of nitrogen oxides (NOx) in the DallasFort Worth (DFW) ozone nonattainment area. The adopted changes expand the existing exemption 

in Section 117.403(a)(12) for similar units operated in these specific types of manufacturing in the 

1997 DFW ozone nonattainment area. 

The comment period closed on September 28, 2009. All testimony and comments have been 

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

hearing and is divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations/Order 

Additional copies of this hearing record are maintained in the TCEQ central office at 12100 Park 35 

Circle, Austin, Texas 78753. For further information, please contact Ray Schubert at (512) 239-

6615. 
PUBLIC

NOTIFICATION AND

PROPOSAL
Example of Newspaper Classified Ad 

Fort Worth Star-Telegram, August 17,2009 

NOTICE OF PUBLIC HEARING 

ON PROPOSED REVISIONS TO 

30 TAC CHAPTER 117 AND TO 

THE STATE 

IMPLEMENTATION PLAN 

The Texas Commission on 

Environmental Quality (commission) 

will conduct a public hearing to 

receive testimony regarding proposed 

revisions to 30 TAC Chapter 117, 

Control of Air Pollution from 

· Nitrogen Compounds; Subchapter B, 

Combustion Control at Major 

Industrial, Commercial, and 

Institutional Sources in Ozone 

Nonattainment Areas; Division 4, 

Dallas-Fort Worth (DFW) Ozone 

Nonattainment Area Major Sources; 

Seetion J17.403(a)(J2) and to the 

. state implementation plan under the 

! requirements of Texas Health and 

Safety Code, 0382.017; Texas 

Government Code, Chapter 2001, 1 Subchapter B; and 40 Code of 

I Federal Regulations 051.102, of the 

United States Environmental 

Protection Agency concerning state 

implementation plans. The proposed 

rulemaking would amend 30 TAC 

Subchapter B, Division 4, 0117.403 

(a)(12) to expand the exemption from 

the current rule to include lowtemperature drying ovens and curing 

ovens used in wet-laid, non-woven 

r fiber mat manufacturing as wen as 

, low temperature- drying ovens used in 

; mineral wool-type fiberglass 

manufacturing at major sources of 

nitrogen oxides (NOX) in the DFW 

eight-hour ozone nonattainment area. 

Current DIJ7.403(a)(12) exempts 

: from Chapter 117, curing ovens used 

in mineral wool-type fiberglass 

i manufacturing in which nitrogen-

. bound chemical additives are used. 

During the recent DFW eight-hour 

ozone nonattainment area rulemaking 

UTKierChapter 117, a provision was 

, added under DIJ7.403(a)(J2), in 

response to comment to exempt 

curing ovens used in mineral wooltype fiberglass manufacturing in 

which nitrogen-bound chemical 

additives are used because of 

technical feasibility issues with 

controlling NOX emissions from 

curing ovens of this specific 

operation. While the type of . 

manufacturing is different from that 

specified in the current rule 

exemption, the technical feasibility 

issue described is similar to the issue 

that is the basis of the current 

exemption in OJI7.403(a)(12). A 

public hearing for the proposed 

rulemaking and SIP revisions has 

been scheduled at the Ennis Public 

Library, 501 W. Ennis Avenue on 

September 17, 2009, at 2:00p.m. The 

hearing w.ill be structured for the 

receipt of oral or written comments 

by interested persons. Registration 

will begin 30 minutes prior .to the 

hearing. Individuals may present oral 

statements wben called upon in order 

of registration. A time limit may be 

established at the hearing to assure 

that enough time is allowed for ev~ 

interested person to speak There will 

be no discussion during the hearing; 

however, commission staff members 

will be available to discuss the 

cproposal 30 minutes before the . 

hearing. Persons who have spec1al 

communication or other 

accommodation needs who are 

planning to attend. the hearing should 

contact Charlotte Horn, Texas 

Register Team, Office of Legal 

Services, at (512) 239-0779. Requests 

should be made as far in advance as possible. Comments may be 

submitted to Michael Panish, Texas 

Register Team, Office of Legal 

Services, Texas Commission on 

Environmental Quality,MC 205,P.O. 

Box 13087, Austin, Texas 78711-

. 3087, or faxed to (512) 239-4808. 

Electronic comments may be 

submitted at www5.tceq.state. 

tx.us/rules/ecomments/. File size 

restrictions maY apply to connnents 

being submitted via the eComments 

system. All comments should 

reference Rule Project Number 2009-

023-117-EN. Comments must be 

received by September 28, 2009. 

Copies of the proposed rules can be 

obtained from the commission's Web 

site at http://www.tceq. 

state.tx. us/nav/ rules/propose_ 

adopthtml. For further information, 

please contact Bogdan Slomka, Air 

Quality Planning Section, at (512) 

239-1709. Issued in Austin, Texas, on 

August 12,2009. 
Buddy Garcia, Chairman 

Larry R. Soward, Commissioner 

Bryan W. Shaw, Ph.D., Commissioner 

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

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING 

BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 117 

AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive 

testimony regarding proposed revisions to 30 TAC Chapter 117, Control of Air Pollution from Nitrogen 

Compounds; Subchapter B, Combustion Control at Major Industrial, Commercial, and Institutional 

Sources in Ozone Nonattainment Areas; Division 4, Dallas-Fort Worth (DFW) Ozone Nonattainment 

Area Major Sources; Section 117.403(a)(12) and to the state implementation plan under the requirements 

of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 

40 Code of Federal Regulations §51.1 02, of the United States Environmental Protection Agency 

concerning state implementation plans. 

The proposed rulemaking would amend 30 TAC Subchapter B, Division 4, § 117.403(a)(l2) to expand the 

exemption from the current rule to include low-temperature drying ovens and curing ovens used in wetlaid, non-woven fiber mat manufacturing as well as low temperature drying ovens used in mineral wooltype fiberglass manufacturing at major sources of nitrogen oxides (NOx) in the DFW eight-hour ozone 

nonattainment area. Current §117.403(a)(12) exempts from Chapter 117, curing ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. During the 

recent DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, a provision was added 

under §117.403(a)(12), in response to comment to exempt curing ovens used in mineral wool-type 

fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical 

feasibility issues with controlling NOx emissions from curing ovens of this specific operation. While the 

type of manufacturing is different from that specified in the current rule exemption, the technical 

feasibility issue described is similar to the issue that is the basis of the current exemption in 

§ 117 .403(a)( 12). 

A public hearing for the proposed rulemaking and SIP revisions have been scheduled at the Ennis Public 

Library, 501 W. Ennis Avenue on September 17, 2009, at 2:00p.m. The hearing will be structured for 

the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to 

the hearing. Individuals may present oral statements when called upon in order of registration. A time 

limit may be established at the hearing to assure that enough time is allowed for every interested person to 

speak. There will be no discussion during the hearing; however, commission staff members will be 

available to discuss the proposal 30 minutes before the hearing. 

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

hearing should contact Charlotte Hom, Texas Register Team, Office of Legal Services, at (512) 239-

0779. Requests should be made as far in advance as possible. 

Comments may be submitted to Michael Parrish, Texas Register Team, Office of Legal Services, Texas 

Commission on Environmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to 
(512) 239-4808. Electronic comments may be submitted at www5.tceq.state.tx.uslrules!ecommentsl. File 

size restrictions may apply to comments being submitted via the eComments system. All comments 

should reference Rule Project Number 2009-023-117-EN. Comments must be received by September 28, 

2009. Copies of the proposed rules can be obtained from the commission's Web site at 

http:l!www.tceq.state.tx.us/nav!ruleslpropose _ adopt.html. For further information, please contact Bogdan 

Slornka, Air Quality Planning Section, at (512) 239-1709. 

Issued in Austin, Texas, on August 12, 2009. 
your proposed adjustments to the etition. Requests for a contested 

case hearing must be submitted · writing to the Office of the Chief 

Clerk at the address provided in e information section below. The 

Executive Director may approve e petition unless a written request 

for a contested case hearing is file~ within 30 days after the newspaper 

publication of this notice. If a he · g request is filed, the Executive 

Director will not approve the petiti: n and will forward the petition and 

hearing request to the TCEQ Co ' issioners for their consideration at 

a scheduled Commission meeting. 1 If a contested case hearing is held, 

it will be a legal proceeding simil ' to a civil trial in state district court. 

Written hearing requests should hel ubmitted to the Office of the Chief 

Clerk, MC 105, TCEQ, P.O. Box ' 087, Austin, TX 78711-3087. For 

information concerning the hearinQ: process, please contact the Public 

Interest Counsel, MC I 03, at the Slupe address. For additional information, individual members of the gelltral public may contact the Districts 

Review Team, at (512) 239-469I.!j Si desea informacion en Espaiiol, 

puede llamar al (512) 239-0200. G4neral information regarding TCEQ 

can be found at our web site at w+'.tceq.state.tx.us. 

TRD·200903648 ,. 

LaDonna Castanuela 

Chief Clerk ii 

Texas Commission on Environment! Quality 

Filed: August 19, 200: l 

• 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 117 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony regarding proposed revi~ 

sions to 30 TAC Chapter 117, Control of Air Pollution from Nitrogen 

Compounds; Subchapter B, Combustion Control at Major Industrial, 

Commercial, and Institutional Sources in Ozone Nonattainment AI~ 

eas; Division 4, Dallas~ Fort Worth (DFW) Ozone Nonattainrnent Area 

Major Sources; §117.403(a)(12) and to the state hnplementation plan 

under the requirements of Texas Health and Safety Code, §382.017; 

Texas Government Code, Chapter 2001, Subchapter B; and 40 Code 

of Federal Regulations §51.102, of the United States Environmental 

Protection Agency concerning state implementation plans. 

The proposed rulemaking would amend 30 TAC Subchapter B, Division 4, §117.403(a)(I2) to expand the exemption from the current 

rule to include low-temperature drying ovens and curing ovens used in 

wet-laid, non~woven fiber mat manufacturing as well as low tempera~ 

ture drying ovens used in mineral wool~type fiberglass manufacturing 

at major sources of nitrogen oxides (NO,) in the DFW eight~hour ozone 

nonattainment area. Current §117.403(a)(I2) exempts from Chapter 

117, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. During the 

recent DFW eight-hour ozone nonattainrnent area rulemaking under 

Chapter 117, a provision was added under §117.403(a)(l2), in response 

to comment to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are 

used because of technical feasibility issues with controlling NOx emissions from curing ovens of this specific operation. While the type of 

manufacturing is different from that specified in the current rule ex· 

emption, the technical feasibility issue described is similar to the issue 

that is the basis of the current exemption in §117.403(a)(12). 

A public hearing for the proposed rulemaking and SIP revisions has 

been scheduled at the Ennis Public Library, 501 W. Ennis Avenue on 

September 17, 2009, at 2:00 p.m. The hearing will be structured for the 

receipt of oral or written comments by interested persons. Registration 

will begin 30 minutes prior to the hearing. Individuals may present oral 

statements when called upon in order of registration. A time limit may 

34 TexReg 5976 August 28, 2009 Texas Register 

be established at the hearing to assure that enough time is allowed for 

every interested person to speak. There will be no discussion during 

the hearing; however, commission staff members will be available to 

discuss the proposal 30 minutes before the hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Char~ 

lotte Horn, Texas Register Team, Office of Legal Services, at (512) 

239-0779. Requests should be made as far in advance as possible. 

Comments may be submitted to Michael Parrish, Texas Register 

Team, Office of Legal Services, Texas Commission on Environmental 

Qnality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or 

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

www5.tceq.state.tx.us/rules/ecommentsl. File size restrictions may 

apply to comments being submitted via the eComments system. All 

comments should reference Rule Project Number 2009-023-117-EN. 

Comments must be received by September 28, 2009. Copies of the 

proposed rules can be obtained from the commission's Web site at 

http:llwww.tceq.state.tx.uslnavlrules/propose_adopt.html. For further 

information, please contact Bogdan Slomka, Air Qnality Planning 

Section, at (512) 239-1709. 

TRD-200903595 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: August 14, 2009 

• • 

Notice of Public Hearing on Pr posed Revisions to 30 TAC 

Chapter 297 I 

! 

The Texas Commission on Enviro ntal Quality (commission) will 

conduct a public hearing to receive 1 stimony concerning proposed re~ 

visions to 30 TAC Chapter 297, er Rights, Substaotive. 

The proposed rulemaking would ~plement Senate Bill 1711 from the 

81st Legislature, 2009, Regular S~ssion, relating to sedhnent control 

ponds. This proposed rulemaking[iwould provide an exemption from 

the water rights permitting process !for the use of state water from sediment control ponds to satisfy envirp.· nmental and safety regulations for 

fire or dust suppression as applica~le to a surface coal mining operations. , 

The commission will hold a publi¢ hearing on this proposal in Austin 

September 22, 2009 at 10:00 a.m. i:at the Texas Commission on Envi~ 

rorunental Qnality Complex located at 12100 Park 35 Circle in Building E, Room 201 S. The hearing will he structured for the receipt of oral 

or written comments by interested:persons. Registration will begin 30 

minutes prior to the hearing. Individuals may present oral statements 

when called upon in order of registration. There will be no open dis~ 

cussion during_ the hearing; howevet; commission staff members will 

be available to informally discuss the proposal 30 minutes before the 

hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Charlotte 

Horn, Office ofLegal Services, at (512) 239-0779. 

Comments may he submitted to Devon Ryan, MC 205, Office of Legal Services, Texas Commission on Environmental 

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

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

http://www5.tceq.state.tx.uslrulesA~-comments. File size restrictions 

may apply to comments submitted: ough the eComments system. All 

comments should reference Rulei roject Number 2009-031-297-PR. 

The comment period closes Se' ember 28, 2009. Copies of the 

~ 
PUBLIC NOTIFICATION 

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

1. Publication of notice of public hearing in the following newspapers on the date listed: 

Fort Worth Star-To/egram, August 17,2009 

2. Publication of the proposed rules in the August 28, 2009, issue of the Texas Register 

(34 TexReg 5866) 

3. Publication of the Public Hearing Notice in the August 28, 2009, issue of the Texas Register 

(34 TexReg 5976) 

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

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Ennis, Mayor's Office 

City of El Paso 

City of Victoria Planning Department 

Dallas Department of Aviation 

East Texas Council of Governments 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Fort Worth Environmental Management Department 
Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Public Health and Environmental Services 

Houston-Galveston Area Council 

Ellis County Judge 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transport3.tion Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Environmental Department 

. Oklahoma Department of Environmental Quality 

U. S. Environmental Protection Agency 
F03.13. Audits. 

The Institute shall have the right to r uest and receive from the reci-pient anv and all documents and othe information related to the erant 

at anv time during or after the term f the grant. This right includes 

but is not limited to the right to revi W_ all :financial books and records 

ofthC recinientrelated to the erant m to nerform an audit or other accounting nrocedures of all exnenses lated directly or indirectly to the 

~ 

§703.14. Termination of Grants. 

f!l. The Executive Director av terminate grants prior to the 

exDiration of the contract between Institute and the e:rant recinient 

on the grounds that the recinient has 'ailed to meet contractual obligations. 

ill The Executive Director ball notify the grant recipient in 

writio• of the intent to terminate fu dine at least 30 dsys before the 

intended termination date. 

f£1 The notice shall state th reasons for termination and the 

orocedure for seeking reconsideratio of the decision to terminate. 

€703.15. Multiyear Projects. 

f!l. The Oversight Commito may grant funds for a multiyear 

proiectsubiectto the reauirementtha ·all funds for the multivearnroiect 

are awarded in the state fiscal vear t the nroiect is aouroved bv the 

Oversight Committee. 

ill Oulv those funds to bee !>ended during the fiscal vear will 

be distributed to the multiyear grant recipient. 

.(tl Funds approved by the C ersight Committee for multiyear 

projects not exneuded during the fis al vear shall be maintained in an 

escrow account until such time that e funds are distributed for subse~ 

guent years of the project. 

.@. A recinient awarded a rant for a multivear nroiect mav 

fulfill the certification requirements et forth in §703.11 of this chap.. 

ter (relatiozto Requirement to D01 onstrate Available Funds) on a 

vear-bv-vear basis at the time of th annual nroeress review or unon 

a schedule established bv the contra< between the Institute and the recipient. 

This agency hereby certifies that ~proposal has been reviewed 

by legal counsel and found to be v .ithin the agency's legal authority to adopt ! 

F1led With the Office of the Secreii'Y of State on August 17, 2009. 

TRD-200903609 I 

William "Bill" Gimson 

Executive Director 

Cancer Prevention and Research In ltute of Texas 

Ea~lest possible date of adoption: 5 !ember 27, 2009 

For further information, please call: ( 12) 463-3190 

+ + + 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 117. CONTROL OF AIR 

POLLUTION FROM NITROGEN COMPOUNDS 

SUBCHAPTER B. COMBUSTION CONTROL 

AT MAJOR INDUSTRIAL, COMMERCIAL, 

34 TexReg 5866 August 28, 2009 Texas Register 

AND INSTITUTIONAL SOURCES IN OZONE 

NONATTAINMENT AREAS 

DMSION 4. DALLAS-FORT WORTH 

EIGHT-HOUR OZONE NONATTAINMENT 

AREA MAJOR SOURCES 

30 TAC §117.403 

The Texas Commission on Environmental Quality (commission 

or agency} proposes an amendment to §117.403. 

Section 117.403 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP}. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULE 

On December 11, 2008, Elk Corporation of Texas submitted a 

petition for rulemaking requesting an amendment to §117.403, 

which currenlly exempts from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area 

Sources, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. 

The commission approved the petition for rulemaking on JanuarY 

28, 2009, and issued an order on February 2, 2009, directing the 

executive director to examine the issues in the petition and to initiate rulemaking. 

This proposed rule making would amend Chapter 117, Subchapter B, Division 4, §117.403 for the Dallas-Fort Worth (DFW} eighthour ozone nonattainment area. The proposed change will expand the exemption in §117.403(a}(12} to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drYing ovens used in mineral wool-type fiberglass manufacturing 

in which nitrogen-containing resins or other additives are used. 

The current §117.403(a}(12} only exempts curing ovens used 

in mineral wool-type fiberglass manufacturing in which nitrogenbound chemical additives are used. In response to comment by 

Owens Coming during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, a provision was 

added under §117.403(a}(12} to exempt curing ovens used in 

mineral wool-type fiberglass manufacturing in which nitrogenbound chemical additives are used because of technical lea- · 

sibility issues with controlling nitrogen oxides (NO,} emissions 

from curing ovens of this specific operation. While the type of 

manufacturing covered by this proposed rulemaking is different 

from that specified in the current rule exemption, the technical 

feasibility issue described is similar to the issue that is the basis of the current exemption in §117.403(a)(12}. The addition 

of nitrogen-bound chemical additives contributes to the creation 

of non-combustion related thermal NO, that cannot be controlled 

using the control methodologies the commission identified as appropriate for curing ovens used In mineral wool-type fiberglass 

manufacturing. In addition, the NO, emissions from curing ovens 

of this type are estimated to be a small contribution to the total 

NO, emissions from this industry. If the rule revision is adopted, 

approximately 0.1 tons per day (tpd} of anticipated NO, emission 

reduction will need to be replaced in the 2007 DFW eight-hour 

ozone attainment demonstration SIP revision. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL 

CLEAN AIR ACT, SECTION 110(1} 

Issue 
The commission provides the following information to clar· 

ify why the proposed change to expand the exemption in 

§117.403(a)(12) will not negatively impact the status of the 

state's attainment with the ozone National Ambient Air Quality 

Standard (NAAQS). 

The requirement for reasonable notice and public hearing will be 

satisfied through a public hearing scheduled for September 17, 

2009. The public comment period will begin August 28, 2009, 

and end September 28, 2009. The EPA issued draft guidance 

on June 8, 2005, titled "Demonstrating noninterference Under 

Section 110(1) of the Clean Air Act When Revising a State Implementation Plan." The guidance states on page six that "areas 

have two options available to demonstrate noninterference for 

the affected pollutant(s)." This preamble provides details of the 

identified existing measures that the commission will use to establish compliance with option one of the EPA's guidance: sub-· 

stitution of one measure by another with equivalent or greater 

emissions reduction/air quality benefits. 

Background 

On May 23, 2007, the commission adopted a new Chapter 

117, Subchapter B. Division 4, entitied DFW Eight-Hour Ozone 

Nonattainment Area Major Sources, with new emission control 

requirements for major industrial, commercial, or institutional 

(ICI) sources of NO, in the DFW eight-hour ozone nonettainment 

area. This rulemaking was part of the DFW eight-hour ozone 

attainment demonstration and the emission reductions associated with the rulemaking will help bring the DFW eight-hour 

ozone nonattalnment area into compliance with the eight-hour 

ozone NAAQS. 

The new Subchapter B, Division 4 requires owners or operators of major ICI sources of NO, in the DFW eight-hour ozone 

nonattainment araa to reduce NO, emissions from a wide vari· 

ety of stationary sources. One source category newly regulated 

under Chapter 117 during the 2007 rulemaking was curing and 

drying ovens used In mineral wool-type fiberglass manufacturing. In response to comment by Owens Coming during the comment period for the adopted rulemaking, the commission added 

a new provision under §117.403(a)(12) to exempt curing ovens 

used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of techni· 

cal feasibility Issues with controlling NO, emissions from curing 

ovens of this specific operation. · 

While the type of manufacturing covered by this proposed 

rulemaking is different from that specified by Owens Coming in 

the prior rulemaking, the petitioner's fiberglass manufacturing 

process has the same technical feasibility issue that is the basis 

of the current exemption in §117.403(a)(12). The addition of 

nitrogen-bound chemical additives contributes to the creation of 

non-combustion related thermal NO, that cannot be controlled 

using the control methodologies the commission had identified 

as appropriate for curing ovens used in mineral wool-type 

fiberglass manufacturing. In addition, the amounts of NO, from 

curing ovens of this type are estimated to be a small contribution 

to the total NO, emissions from this industry. 

If the proposed rulemaking is adopted, approximately 0.1 tpd 

NO, emission reductions will need to be replaced in the 2007 

DFW eight-hour ozone attainment demonstration SIP. The commission proposes to replace the 0.1 tpd NO, reduction with 0.1 

tpd NO, from surplus fleettumoverreductions. This replacement 

will be reflected in the commission's Discrete Emissions Reduclion Credits (DERC) limit determination for 2010, consistent with 

30 TAC §101.379(c)(2)(A). 

Conclusion 

Based upon all data presentiy before the commission, it has 

been determined that there are sufficient credits in place to offset 

the shortfall from expanding the exemption in §117.403(a)(12). 

The replacement reductions proposed by the commission in this 

rulemaking are achieved from motor vehicle fleet turnover that 

are ground-level emission sources. 

The commission Is only accepting comments regarding the specific changes proposed by the petitioner and directed by the commissioners at the January 28, 2009, agenda when the commission considered and granted the petition for rulemaking. Com· 

ments received related to other portions of the section proposed 

for amendment will not be considered and no changes will be 

made in response to such comments. 

SECTION DISCUSSION 

The proposed rulemaking would amend Chapter 117, Subchapter B. Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources. The proposed rule would expand the 

current exemption to include low-temperature drying ovens and 

curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-containing 

resins or other additives are used. 

Section 117.403, Exemptions 

Section 117.403 specifies unit types, sizes, or uses that are exempted from the requirements of Chapter 117, Subchapter B, D~ 

vision 4. The provisions of Chapter 117, Subchapter B, Division 

4 exempts units where the unit type, maximum rated capacity, or 

specific use either cannot feasibly comply with the specifications 

due to technical or economic restraints or are regulated under 

another division. 

The commission proposes to amend §117.403(a)(12) by expanding the current exemption to include low-temperature 

drying ovens and curing ovens used in wet-laid, non-woven 

fiber mat manufacturing as well as low-temperature drying 

ovens used in mineral wool-type fiberglass manufacturing. Currently, §117.403(a)(12) exempts curing ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-bound 

chemical additives are used. In response to comment during 

the 2007 revisions to Chapter 117, a provision was added 

under §117.403(a)(12) to exempt curing ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-bound 

chemical additives are used because of technical feasibility 

issues with controlling NO, emissions from curing ovens of 

this specific operation. The manufacturing process covered by 

this proposed rulemaking is different from the process covered 

by the current §117.403(a)(12) exemption, but the technical 

feasibility issue is similar. 

The proposed rule would also revise the rule language "nitrogen-bound chemical additives" to "nitrogen-containing resins, or 

other additives." Resins may not always be considered an additive, so this proposed change clarifies that nitrogen-containing 

resins would qualify for this exemption. 

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 

PROPOSED RULES August 28, 2009 34 TexReg 5867 
rule Is In effect, no significant fiscal implications are anticipated 

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

a result of administration or enforcement of the proposed rule. 

The. agency expects to use currently available resources to lm· 

plement the rule's provisions. 

Currently, §117.403 exempts from emission limits curtng ovens 

in the DFW eight-hour ozone nonattainment area that are used 

In mineral wool-type fiberglass manufacturing where nitrogen· 

bound chemical additives are used. The proposed rule would 

expand this exemption to low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturtng 

using nitrogen-containing resins or other additives in the DFW 

eight-hour ozone nonattainment area. NO, emissions from these 

types of sources are estimated to be a small contribution to the 

total NO, emissions from this industry. 

The proposed rule will have no fiscal impact on local governments since they do not own or operate these types of manufacturing facilities. 

PUBLIC BENEFITS AND COSTS 

Nina Chamness also determined that for each year of the first 

five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be fair 

and consistent application of rules in the DFW eight-hour ozone 

nonattainment area. 

Staff knows of only two businesses in the DFW eight-hour ozone 

nonattainment area that might benefit from the proposed rule. 

The proposed rule might generate savings for these businesses, 

but the amount of savings would depend on the operating environment at each business. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implications are anticipated for small or microbusinesses. The businesses affected by the proposed rule are 

not expected to be small businesses. 

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS 

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not 

required because the proposed rule does not adversely affect a 

small or micro-business in a material way for tlie first five years 

that the proposed rule Is In effect. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

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

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

proposed rule is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking in light oft he 

regulatory analysis requirements of Texas Government Code, 

§2001.0225 and determined that the proposed rule does not 

meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental 

rule" is, "a rule the specific intent of which is to protect the environment or reduce rtsks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition,'jobs, the 

environment, or the public heaHh and safety of the state or a 

sector of the state." Furthermore, while the proposed rulemak· 

ing does not constitute a major environmental rule, even if it did 

34 TexReg 5868 August 28, 2009 Texas Register 

a regulatory impact analysis would not be required because the 

proposed rulemaking does not meet any of the four applicability 

criterta for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies 

only to a major environmental rule which, "(1) exceeds a standard set by federal law, unless the rule is specifically required by 

state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds a 

requirement of a delegation agreement or contract between the 

state and an agency or representative of the federal government 

to implement a state and federal program; or (4) adopts a rule 

solely under the general powers of the agency instead of under 

a specific state law." 

The proposed rulemaking implements requirements of the Federal Clean Air Act (FCAA). Under 42 United States Code (USC), 

§7410, each state is required to adopt and implement a SIP 

containing adequate provisions to implement, attain, maintain, 

and enforce the NAAQS within the state. While 42 USC, §7 410 

generally does not require specific programs, methods, or reductions in order to meet the standard, state SIPs must include 

"enforceable emission limitations and other control measures, 

means or techniques (Including economic incentives such as 

fees, marketable permits, and auctions of emissions rights), as 

well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of 

this chapter," (meaning Chapter 85, Air Pollution Prevention and 

Control, otherwise known as the FCAA). The provisions of the 

FCAA recognize that states are in the best position to determine 

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

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

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

though the FCAA allows states to develop their own programs, 

this flexibility does not relieve a state from developing a program 

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

free to ignore the requirements of42 USC, §7410, and must develop programs and control measures to assure that their SIP 

provides for implementation, attainment, maintenance, and enforcement of the NAAQS within the state. 

The specific intent of the proposed rulemaking is to provide fair 

and consistent application of SIP rules in the DFW eight-hour 

ozone nonattainment area. The current §117.403(a)(12) exempts from Chapter 117, Subchapter B, Division 4, DFW 

Eight-Hour Ozone Nonattainment Area Major Sources, curtng 

ovens used in mineral wool-type fiberglass manufacturtng 

in which nitrogen-bound chemical additives are used. The 

exemption was added in response to comments durtng the 

2007 DFW eight-hour ozone nonattainment area rulemaking 

under Chapter 117, because of technical feasibility issues with 

controlling NO, emissions from curtng ovens of this specific 

operation. While the type of manufacturtng covered by this proposed rulemaking is different from that specified in the current 

§117.403(a)(12) rule exemption, the technical feasibility issue 

described is similar. To further the specific intent of providing fair 

and consistent application of SIP rules in the DFW eight-hour 

ozone nonattainment area, the proposed rule will broaden the 

current exemption to Chapter 117, Subchapter B, Division 4, 

Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major 

Sources, to include low-temperature drying ovens and curing 

ovens used in wet .. laid, nan·woven fiber mat manufacturing as 

well as low-temperature drying ovens used in mineral wool-type 

fiberglass manufacturing in which nitrogen-containing resins or 

other additives are used. 
The proposed rulemaklng does not constitute a major environmental rule under Texas Government Code, §2001.0225{g}{3} 

because: 1) the specific Intent of the proposed rule is not to 

protect the environment or reduce risks to human health from 

environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainmant area by providing an addHionai specific exemption for 

low-temperature drying and curing ovens used in wet-laid, nonwoven fiber mat manufacturing as well as low-temparature drying ovens used in minerai woo~type fiberglass manufacturing 

in which nitrogen-containing resins or other additives are used; 

and 2} as discussed in the FISCAL NOTE, PUBLIC BENEFITS 

AND COSTS, SMALL BUSINESS REGULATORY FLEXIBILITY 

ANALYSIS, and the LOCAL EMPLOYMENT IMPACT STATEMENT sections of this preamble, the proposed rulemaking will 

not adversely affect in a material way the economy, a sector of 

the economy, productivity, competition, or jobs, nor will the proposed rule adversely affect in a material way the environment, 

or the public health and safety of the state or a sector of the 

state, because the lost NO, emission reduction created by the 

proposed expanded exemption will be offset by NO, reductions 

from surplus fleet turnover as discussed In the BACKGROUND 

AND SUMMARY OF THE FACTUAL BASIS FOR THE PRO· 

POSED RULE section of this preamble. Because the proposed 

ruiemaking is not a major environmental rule, It is not subject 

to a regulatory impact analysis under Texas Government Code, 

§2001.0225. 

While the proposed rulemaklng does not constitute a major 

environmental rule, even if it did it would not be subject to a 

regulatory impact assessment under Texas Government Code, 

§2001.0225. The requirement to provide a fiscal analysis of 

regulations in the Texas Government Code was amended by 

Senate Bill {SB} 633 during the 75th Legislative Session, 1997. 

The intent of SB 633 was to require agencies to conduct a 

regulatory impact analysis of extraordinary rules. These are 

identified in the statutory language as major environmental 

rules that will have a material adverse impact and will exceed 

a requirement of state law, federal law, or a delegated federal 

program, or are adopted solely under the general powers of the 

agency. With the understanding that this requirement would 

seldom apply, the commission provided a cost estimate for SB 

633 that concluded: "based on an assessment of rules adopted 

by the agency in the past, it is not anticipated that the bill will 

have significant fiscal implications for the agency due to its 

limited application.' The commission also noted that the number 

of rules that would require assessment under the provisions of 

the bill was not large. This conclusion was based, in part, on 

the 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. 

The FCAA does not always require specific programs, methods, 

or reductions in order to meet the NAAQS; thus, states must 

develop programs for each nonattainment ansa to help ensure 

that those areas will meet the attainment deadlines. Because of 

the ongoing need to address nonattainment issues, and to meet 

the requirements of 42 USC, §7410, the commission routinely 

proposes and adopts SIP rules. The legislature is presumed to 

understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule 

that exceeds federal law, then every SIP rule would require the 

full Regulatory Impact Analysis {RIA} contemplated by SB 633. 

This conclusion is inconsistent with the conclusions reached by 

the commission in its cost estimate and by the Legislative Budget Board {LBB} in Hs fiscal notes. Since the legislature is presumed to understand the fiscal impacts 'Of the bills it passes and 

that presumption is based on informatioro provided by state agen· 

cies and the LBB, the commission believes that the intent of SB 

633 was only to require the full RIA for rules that are extraordinary in nature. While the SIP rules hElve a broad impact, that 

impact is no greater than is necessary or appropriate to meet the 

requirements of the FCAA. For these re;asons, rules adopted for 

inclusion in the SIP fell under the exception in Texas Government 

Code, §2001.0225{a}, because they are required by 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 & Ught Co. v. Sharp, 

919 S.W.2d 485, 489 {Tex. App. Austin 1995}, writ denied with 

per curiam opinion respecting another issue, 960 S. W.2d 617 

{Tex. 1997}; Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 

{Tex. App. Austin 1990, no writ}. Cf. Humble Oil & Refining 

Co. v. Calvert, 414 S.W;2d 172 {Tex. 1967}; Dudney v. State 

Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 {Tex. App. Austin 

2000}; Southwestern Life Ins. Co. v. Montemayor, 24 S. W.3d 

581 {Tex. App. Austin 2000, pet. denied); and Coastallndust. 

Water Auth. v. Trinity Portland Cement Piv., 563 S.W.2d 916 

{Tex. 1978). 

The commission's interpretation of the RIA requirements is 

also supported by a change made to the Texas Administrative 

Procedure Act {APA} by the legislature in 1999. In an attempt 

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

to meet these sections of the APA against the standard of 

"substantial compliance." Texas Government Code, §2001.035. 

The legislature specifically identified Texas Government Code, 

§2001.0225 as falling under this standard. The commission 

has substantially complied with the requirements of Texas 

Government Code, §2001.0225. 

Regardless of whether the proposed rulemaking constitutes 

a major environmental rule under Texas Government Code, 

§2001.0225{g}{3}, a regulatory impact analysis is not required 

because this exemption is part of the commission's SIP for 

making progress toward the attainment and maintenance of 

the eight-hour ozone NAAQS in the DFW nonattainment area. 

Therefore, the proposed rule does not exceed a standard set by 

federal law or exceed an express requirement of state law, since 

the rule is part of an overall regulatory scheme designed to 

meet, not exceed the relevant standard set by federal law • the 

NAAQS. The commission is charged with protecting air quality 

within the state and to design and submit a plan to achieve 

attainment and maintenance of the federally mandated NAAQS. 

The Third District Court of Appeals upheld this interpretation 

in Brazoria County v. Texas Comm'n on Envtl. Quality, 128 

S.W; 3d 728 {Tex. App. • Austin 2004, no writ). In addition, 

no contract or delegation agreement covers the topic that is 

the subject of this rulemaking. Finally, this rulemaking was not 

developed solely under the general powers of the agency but 

is authorized by specific sections of THSC, Chapter 382 {also 

known as the Texas Clean Air Act {TCAA}}, and the Texas Water 

Code {TWC}, which are cited in the STATUTORY AUTHORITY 

section of this preamble, including THSC, §§382.011, 382.D12, 

and 382.017. 

PROPOSED RULES August 28, 2009 34 TexReg 5869 
This ruiemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225{b), for the following reasons. The proposed rulemaklng is not a major environmental law because: 1) the specific Intent of the proposed rule 

is not to protect the environment or reduce risks to human health 

from environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone 

nonattainment area; and 2) the proposed rulemaking will not adversely affect in a material way the economy, a sector of the 

eocnomy, productivity, competition, or jobs, nor will it adversely 

affect in a material way the environment, or the public health and 

safety of the state or a sector of the state, because the lost NO, 

emission reduction created by the proposed expanded exemption will be offset by NO, reductions from surplus fleet turnover. 

Furthermore, even if the proposed rulemaking was a major environmental rule, It does not meet any of the four applicability 

criteria listed in Texas Government Code, §2001.0225 because: 

1) the proposed rulemaking is part of the DFW SIP, and as such 

Is designed to meet, not exceed the relevant standard set by federal law; 2) no contract or delegation agreement ocvers the topic 

that is the subject of this rulemaking; and 3) the proposed rulemaking is authorized by speclflc sections of THSC, Chapter 382, 

and the TWC, which are cited in the STATUTORY AUTHORITY 

section of this preamble. 

The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment 

period. Written ocmments on the draft regulatory impact analysis determination may be submitted to the contact person at the 

address listed under the SUBMITTAL OF COMMENTS section 

of this preamble. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the proposed rule and performed 

an analysis of whether the proposed rule ocnstitutes a taking 

under Texas Government Code, Chapter 2007. The commission's preliminary assessment indicates Texas Government 

Code, Chapter 2007 does. not apply because this ruiemaking 

provides for fair and ocnsistent application of SIP rules in 

the DFW eight-hour ozone nonattainment area by expanding 

the exemption from Chapter 117, Subchapter B, Division 4, 

Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major 

Sources, to include low-temperature drying ovens and curing 

ovens used in wet-laid, non-woven fiber mat manufacturing as 

well as low-temperature drying ovens used in minerai wool-type 

fiberglass manufacturing in which nttrogen-ocntaining resins or 

other additives are used. 

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

"{A) 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 Section 17 or 19, Article I, Texas Constitution; or {B) a governmental action that: {i) 

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 {ii) is the producing cause of a reduction of at 

least 25% in the market value of the affected private real property, determined by ocmparing the market value of the property 

as if the governmental action is not in effect and the market value 

of the property determined as if the governmental action is in effect." 

34 TexReg 5870 August 28, 2009 Texas Register 

The specific purpose of the proposed ruiemaking is to provide 

fair and consistent application of SIP rules in the DFW eighthour ozone nonattainment area. The current §117.403{a){12) 

exempts curing ovens used in mineral wool-type fiberglass manufacturing In which nitrogen-bound chemical addHives are used. 

The current exemption was added in response to ocmments during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117 because of technical feasibility issues with controlling NO, emissions from curing ovens of this 

specific operation. While the type of manufacturing covered by 

the proposed rule is different from that specified in the current 

§117.403{a){12) exemption, the technical feasibility issue described is similar. Therefore, the proposed rulemaking would 

advance this stated purpose by expanding the exemption from 

Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight· 

Hour Ozone Nonattalnment Area Major Sources, to include lowtemperature drying ovens and curing ovens used in wet-laid, 

non-woven fiber mat manufacturing as well as low-temperature 

drying ovens used In minerai wool-type fiberglass manufacturing 

in which nitrogen-containing resins or other additives are used. 

Promulgation and enforcement of the proposed rule would be 

neither a statutory nor a constitutional taking of private real property. Because the proposed rule promulgates an exemption, the 

rule is less burdensome, restrictive, or limiting of rights to private real property than the existing rule. Furthermore, the proposed rule will benefit the public by providing fair and ocnsistent 

application of SIP rules in the DFW ozone nonattainment area. 

The proposed rule does not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limH the owner's right to property, nor does it reduce the 

value of any private real property by 25% or more beyond that 

which would otherwise exist in the absence of the regulations. 

In other words, this rule simply expands the existing exemption 

in §117.403 to include sources that have technological feasibil· 

ity issues similar to those of the sources ocvered by the current 

exemption. Therefore, the rule will not ocnstitute a taking under 

Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PRO· 

GRAM 

The commission reviewed the proposed ruiemaking and found 

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11{b){4), relating to 

rules subject to the Texas Coastal Management Program {CMP) 

and will, therefore, require that goals and policies of the CMP be 

ocnsidered during the ruiemaking process. The commission reviewed this rulemaking for ocnsistency with the CMP goals and 

policies in acocrdance with the regulations of the Coastal Coordination Council and determined that the rulemaking will not affect 

any coastal natural resource area~ because the rules only affect 

counties outside the CMP area and is, therefore, ocnsistent with 

CMP goals and policies. 

Written comments on the ocnsistency of this ruiemaking may be 

submitted to the ocntact 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 117 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program. If the proposed 

amendment is adopted by the commission, owners or operators subject to the federal operating permits program that elect to 
comply with the §117.403(a)(12) exemption may need to revise 

their operating permit. 

ANNOUNCEMENT OF HEARING 

The commission will hold a public hearing on this proposal in 

Ennis, on September 17, 2009, at 2:00p.m. at the Ennis Public 

Library, 501 West Ennis Avenue. The hearing is structured for 

the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order 

of registration. Open discussion will not be permitted during the 

hearing; however, commission staff members will be available to 

discuss the proposal 30 minutes prior to the hearing. 

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

Joyce Spencer, Air Quality Division at (512) 239-5017. Requests 

should be made as far in advance as possible. 

SUBMITIAL OF COMMENTS 

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.state.tx.uslruleslecomments/. 

File size restrictions may apply to comments being submitted 

via the eComments system. All comments should reference 

Rule Project Number 2009-023-117-EN. The comment period closes on September 28, 2009. Copies of the proposed 

rulemaking can be obtained from the commission's Web site 

at http://www.tceq.state.tx.uslnavlru/eslpropose_adopt.html. 

For further information, please contact Bogdan J. Slomka, Air 

Quality Division, (512) 239-1709. 

STATUTORY AUTHORITY 

This rulemaking is proposed under the authority of the following: Texas Government Code, §2001.021, Petition for the Adoption of Rules, which authorizes an interested person to petition 

a state agency for the adoption of a rule; Texas Water Code 

(TWC), §5.102, General Powers, §5.103, Rules, and §5.105, 

General Policy (these provisions authorize the commission to 

adopt rules necessary to carry out Its powers and duties under 

the TWC); Texas Health and Safety Code (THSC), Texas Clean 

Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the 

TCAA; 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, §382.011, General Powers and 

Duties, which authorizes the commission to control the quality 

of the state's air; and THSC, TCAA, §382.012, State Air Control 

Pian, which authorizes the commission to prepare and develop 

a general, comprehensive plan for the control of the state's air. 

The amendment is also proposed underTHSC, §382.016, Monitoring Requirements; Examination of Records, which authorizes 

the commission to prescribe requirements for owners or operators of sources to make and maintain records of emissions 

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

methods and procedures; and THSC, §382.051 (d), Permitting 

Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits under THSC, Chapter 382. 

The proposed amendment implements THSC, §§382.002, 

382.011, 382.o12, 382.016,382.021, and 382.051(d). 

§117.403. Exemptions. 

(a) Units exempted from the provisions ofthis division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources), except as specified in §§117.440(i), 117.445(1)(4) and(9), 

117.450, and 117.454 of this title (relating to Contiouous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; Initial Control Plan Pmcedures; and Final Control Plan 

Procedures. for Attainment Demonstration Emission Specifications), 

include tbe following: 

(!)-(II) (No change.) 

mineral i~~(l~2~) ilo~w~-te~m~pere~ture~~dryin~·~g=an~d fiberglass manufacturing and curing wet-laid, ovens non-woven used in 

in which nitrogen-containing resins. or other are used; 

(13)- (16) (No change.) 

(b) -(c) (No change.) 

This agency hereby certifies that the proposal has been reviewed 

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

Filed with the Office ofthe Secretary of State on August 14, 2009. 

TRD-200903594 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Earliest possible date of.adoption: September 27, 2009 

For further Information, please call: (512) 239-2548 

• • 

CHAPTER 290. PUBLI DRINKING WATER 

SUBCHAPTER D. R ES AND 

REGULATIONS FOR P LIC WATER 

SYSTEMS 

30 TAC §§290.38, 290.39, 290. - 290.47 

The Texas Commission on nvironmental Quality (TCEQ, 

agency, or commission) propos s to amend §§290.38, 290.39, 

and 290.44- 290.47. 

BACKGROUND AND SUMMA Y OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

In 2009, the 81st Legislature pa sed Senate Bill (SB) 361, relating to the requirement that certai water service providers ensure 

emergency operations during a, extended power outage. SB 

361 amends Texas Water Code (TWC), Chapter 13, by adding 

§13.1395, Standards of Emerg ncy Operation, and §13.1396, 

Coordination of Emergency O~rations. TWC, §13.1395, requires that affected utilities prep e an emergency preparedness 

pian that shows that the utility as the ability to provide emergency operations and submtt tha plan to the commission. TWC, 

§13.1396, outlines the coordinalion efforts among an affected 

utility, its county judge, and its olce of emergency management 

as well as each retail electric pro ider that sells electric power to 

an affected utility and each elect 'c utility that provides transmission and distribution service to a affected utility. 

PROPOSED RULES August 28, 2009 34 TexReg 5871 
WRITTEN AND 

ORAL TESTIMONY
Reference Number 

W-1 

INDEX OF WRITTEN TESTIMONY 

Submitted By 

Guy Donaldson, United States 

Environmental Protection Agency 
~~f-0 sr,..,.~ 

p ·-. ...... u 

~ <~Zlffi -~ ~ 

~ & ~.{PR01,P' 

Michael Parrish 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202·2733 

Texas Register Team 

Office ofLegal ServiceS (MC 205) 

Texas Co=ission on EnviroJm~ental Ql!ality 

P.O. Box 13087 

Austin, Texas 78711-3087 

~-i. f4'(~§h ·. 

Dear Mr. 9"'1\.e: · . 

Thank you for the opportunity to conunent on the proposed revision to 30 Texas 

Adi;ninistrative Code (TAC), Chapter 117, Control of Air Pollution from Nitrogen 

c·. Co)!j]lq~~~~( . : , . . 

·The p~oposed rulemakingwould amend Chapter 117, "Subchapter B; Division 4, 

Section 17.403(a)(12). It appears that the revision·would exempt additional facilities now . 

covered under the currentrule. The proposed revision to 'Section ll-7.403(a)(12) reads 

"low-temperature drying and curing ovens used in mineral wool-type :fiber.glass . 

· manufacturing and wet-laid, non-woven fiber mat manufacturing in which nitrogencontaining '[bound chemical] res·ins, or other additives are used." . 

. We understand that Texas Govemment Code, 'Section 2001;021, establishes the 

·procedures by which an interested person i:nay petiti6i1. a state agency for the adoption of 

uule and 30 TAC Section 20.15 ·provides such procedures;. however, in order for EPA tq · 

be able to approve expansion of an ·existing .exemption .clause in a 'State Implementation . 

Plan (SIP) it must be shown that'tb.e revision will comply with section 11 0(1) of the Cleai:J. 

. Air Act, and corresponding SIP credits changes aTfl properly accounted. for. 

·· We understand that·the Statehas included a:llO(l) demonstration in the revisiops 

to the Elalias"FortWor(h Attainment Demonstration· Sifl for the l997:eight-hour ozone standard 

ProjectfNumber 2008-016-SlP-NR. We will provide co:rliments. on th~Tl QQ) demonstration in . · our coiliment letter fprthat particular SIP revision. ;·, ~ :: . ,: . ';~ . . :,: . ' ·• . . i'• • • i· . 

· ; We appreciEtte the opportunity to conunent 9~ the propo~ed·rule revisions. If yo~. 

haye ai;l y questions ;a:bout .this letter, please contact )),1r. Alan Sharat (214} 665-6691. · · : - . . . 

· .... ·,:. 

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INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

No oral testimony was received pertaining to this proposal. 
HEARING OFFICER REPORT 

I am the hearing officer assigned to conduct the public hearing regarding proposed 

revisions to 30 TAC Chapter 117 and to the State Implementation Plan, TCEQ Rule 

Project No. 2009-023-117-EN. 

A public hearing was scheduled for September 28, 2009 in Ennis, TX, at 2:00pm. 

At 1:30pm the room was open, TCEQ staff and a court reporter were present and ready 

to open the heari~ for public comment. After waiting for 90 minutes, no one had 

alTived to make comments on the record. Therefore, the public hearing was not formally 

opened for comment and no ti·anscript was prepared. 

09/JS/2009 

Date signed 
- l - ~---- ~ 

-~- ----

Texas Commission on Environmental Quality 

Public Hearing Registration 

Date: September 17, 2009 

Time: 2:00 PM 

Rule Project No.: 2009-023-117-EN 

Short Title: Exemption of Low Temperature Drying and Curing Ovens in the DFW Ozone Nonallainment Area ~ 

Location: Ennis Public Library, 501 W. Ennis Avenue 

Concerning: Proposed Revisions to 30 TAC Chapter 117 and to the State Implementation Plan 

Name and Phone No. or E-mail Address Representing Presenting Oral Testimony? 

' (Please Print) (Circle One) 

k!!Z87 E!< rcf2>o?v '1' 7 ?_ -fi'n -2)7/ E/1< Yes a 

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Yes No 

·. 
EVALUATION OF

TESTIMONY
To: ColDIIlissioners Date: December 18, 2009 

Thru: · LaDonna Castaiiuela; Chief Clerk 

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

From: ~usanaM. Hildebrand, P.E., ChiefEngineer 

Docket No.: 2009-0338-RUL 

Subject: Commission Approval for Rlll=•l<ing Adoption 

Chapter 117, Control of Air Pollution from Nitrogen Compounds 

Exemption of Low-Temperature Drying and Curing oVens in Mineral Wool-type 

Fiberglass Manufacturing in the Dsllas-Fort Worth (DFW) Ozone Nonattaimnent Area 

Rllle Project No. 2009-023-117-EN · 

Background and reason(s) for the rulemaking: 

On December 11, 2008, Elk COiporation of Texas submltted a petition for rulemaking . requesting an 

amendment to Chapter· 117, Subchapter B, Division 4, to exempt curing ovens used in mineral wool-type 

fiberglass manufacturing where Ditrogen-bollJld chemical additives are used in the DFW 1997 eight-hour 

ozone nonattaimnent area. The commission approved the petition for rulemaking on January 28, 2009, and 

issued an order on Februaly 2, 2009, directing the executive director to examine the issues in the petition and 

. to initiate rulemaking. 

The adopted rule amends Chapter 117, Subchapter B, Division 4, § 117 .403(a)(12) to expand the exemption 

from the cum:nt rule to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven 

fiber mat manufacturing, as well as low-temperature drying ovens used in mineral wool-type fiberglass 

manufacturing at major sources of nitrogen oXides (NOx) in the :OFW 1997 eight-hour ozone nonattainment 

area. The cum:nt § 117.403(a)(12) exempts from Chapter 117, curing ovens used in mineral wool-type · 

fiberglass manufacturing where nitrogen-bound chemical additives ere used. In response to a comment from 

Owens Corning in the May 2007 Chapter 117 rule revisions, a provision was added llJlder § 117 .403(a)(12) to 

exempt curing oveil.s used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical 

additives are used because of technical feast'b:ility issues with controlling NOx emissions from the curing 

ovens of this specific operation. While the type of manufacturing covered by the proposed amendment is 

different from that specified in the cumnt rule exemption, the-technical feasibility issue described is similar 

to the issue that is the basis of the current exemption in §117.403(a)(12). The addition of nitrogen-bound 

chemical additives contributes to the creation of non-combustion-related thermal NOx that cannot be 

controlled using the control methodologies the commission had identified as appiopxiate for curing oyens 

used in Inineral wool-type fiberglass manufacturing. In addition, the amount ofNOx from curing ovens of 

this type is estimated to be a sxnall conttibution to the total NOx emissions froin tbis industry. 

Scope of the proposed rulemaking: 

A) Summary of what the ruJemaking will do: 

The adopted rulemaking will amend the major source rule for the DFW 1997 eight-hour ozone nonattaimnent 

area in 30 Texas Administrative Code (TAC) Chapter 117, Subchapter B, Division 4, to expand the 

exemption from the cum:nt rule to include low-temperature drying ovens and curing ovens used in wet-laid, 

non-woven fiber mat manufacturing, as well as low~temperature drying ovens used in xnineral wool-type 
Commissioners 

Page2 

December 18, 2009 

Re: Docket No. 2009-0338-RUL 

fiberglass manufacturing. The adopted rule will also revise the rule language from "Iritrogen-bound chemical 

additives" to "Iritrogen-containi.ng resins, or other additives." This adopted change will clarify that Iritrogencontaining resins will qualify for this exemption because resins might not always be considered an additive. 

B) Scope required by federal regulations or state statutes: 

None . .. 

C) Additional staff recommendations that are not required by federal rule or state statute: 

None. 

Statutory authority: 

Texas Government Code, §200 1.021, establishes the procedures by which an interested person may petition a 

state agency for the adoption of a rule and 30 TAC §20.15 provides Such procedures specific to the 

commission. 

The following provisions authorize the commission to adopt rules necessary to caxry out its powers and 

duties: Texas Government Code, §2001.021, Petition for the Adoption of Rules, which authorizes an 

interested person to petition a state agency for the adoption of a rule; Texss Water Code (TWC), §5.102, 

General Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorize the commission to 

adopt rules necessai:y to caxry out its powers and duties under the TWC); Texas Health and Safety Code 

(THSC), Texas Clean Air Act (I'CAA), §382.017, ·Rules, which authorizes the commission to adopt rules 

consistent with the policy and purposes of the TCAA; 1HSC, §3 82.002, Policy and Purpose, which 

establishes the commission's purpose to safegusrd the state's air resources, consistent with the protection of 

public health, general wel.fiu:e, and physical property; THSC, §382.011, General Powers and Duties, which 

authorizes the commission to control the quality of the state's air; and 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. 

Also, 1HSC, §382.016, concerning Moni.toring Requirements; Examination of Records, authorizes the 

commission to prescn'be requirements for owners ·or operators of soin-ces to make and maintain records of 

emissions measurements; §382.021, concerning Sampling Methods and Procedures, authorizes the 

commission to prescn'be the sampling methods. and procedures; and §382.051(d), concerni.ng Permitting 

Authority of Commission; RuJes, authorizes the commission to adopt rules as necessazy to comply with 

changes in federal Jaw or reguJations applicable to permits under Chapter 382. 

Effect on the: 

A) Regulated community: 

The adopted rulemaking will affect owners and operators oflow-temperature drying and curing ovens used 

in mineral wool-type fiberglass manufacturing and wet-laid, non-woven fiber mat manufacturing located at 

major sources in the DFW eight-hour ozone nonattainment area. In addition to the petitioner, one other 

major source in the DFW eight-hour ozone nonattaimnent area might also benefit from this proposed 

exemption if the manufacturer uses Iritrogen-containing resins or other Iritrogen-contsining additives. 

However, staff does not have specific information to determine whether the drying ovens located at this site 

wouJd also qualify for this revised exemption. The source categories affected by the petitioner's request are 

required to comply with the Chapter 117 rule requirements by March 1, 2010. 

B) Public: 

There will be no impact on the public. 

C) Agency programs: 
~.; 

Commissioners 

Page3 

December 18, 2009 

Re: Docket No. 2009-0338-RUL 

There are no anticipated impacts on agency programs. 

Stakeholder meetings: 

None. 

Public comment: 

A public hearing for tbis rulemaking was scheduled on September 17,2009, in Ennis. The hearing was not 

officially op~ed because no one wanted to present oral testimony. The proposed rules published in the 

August 28, 2009, issue of the Texas Register (33 Te:xReg 5866). The comment period closed September 28, 

2009. 

• The commission received a written comment from the United States Environmental Protection 

Agency (EPA). The following is summary of the comment 

The EPA provided a comment on the commissions' § 11 0(1) demonstration in its comment letter pertaining to 

the proposed DFW 1997 Eight-Hour Ozone Attainment Demonstration SJP. The commission thanks EPA for 

its comment, and looks forward to responding to any questions the EPA has concerning the §11 0(1) 

demonstration. No change was made to the rule based on this comment. 

Significant changes from proposal: 

None. 

Potential controversial concerns and legislative interest remaining after proposal and public comment: 

None. 

Does this rulemaking affect any current policies or require development of new policies? 

None. 

What are the consequences if this rulemaking does not go forward? Are there alternatives to 

rulemaking? ' 

The affected regulated entities would not be able to use low-temperature drying and curing ovens in mineral 

wool-type fiberglass manufacturing and wet-laid, non-woven fiber mat manufacturing in the DFW ozone 

nonattainment area. The operators/owners might be forced to reduce the production levels or shut down their 

operations altogether in order to comply with Chapter 117 Subchapter B, Division 4. 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: August 28, 2009 

Anticipated Texas Register publication date: January 29,2010 

Anticipated effective date: February 4, 2010 

Six-month Texas Register filing deadlio~: March 1,2010 
Commissioners 

Pagc4 

December 18, 2009 

Re: Docket No. 2009-0338-RUL 

Agency contacts: 

Ray Schubert, RDle Project Manager, 239-6615, Air Quality Division. 

Tucker Henson, Staff Attorney, 239-0946 

Michael Parrish, Texas Register Coordinator, 239-2548 

'Attacbments 

(Supporting information including copies of federal regulations or state legislation if applicable) 

cc: Chief Clerk, S copies 

Executive Director's Office 

Susana M. Hildebrand, P.E. 

Kevin Patteson 

Curtis Seaton 

Daniel Womack 

Office of General Counsel 

Ray Schubert 

Michael Parrish 

,ill ......... :., 
EVALUATION OJI TESTIMONY 

The Texas Commission on Environmental Quality (commission or agency) adopts the 

amendment to § 117.403 without changes to the proposed text as published in the August 28, 

2009, issue of the Texas Register (34 TexReg 5866). 

The amendment will be submitted to the United States Environmental Protection Agency (EPA) 

as a revision to the state implementation plan (SlP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED 

RULE 

On December 11, 2008, Elk Corporation of Texas submitted a petition for rulemaking 

requesting an amendment to § 117.403, which currently exempts from Chapter 117, Subchapter 

B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, curing 

ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical 

additives are used. The commission approved the petition for rulemaking on January 28, 2009, 

and issued an order on February 2, 2009, directing the executive director to examine the issues 

in the petition and to initiate rulemaking. 

The adopted rule will amend Chapter 117, Subchapter B, Division 4, § 117.403, for the DallasFort Worth (DFW) 1997 eight-hour ozone nonattainment area. The adopted change will expand 

the exemption in § 117.403(a)(12) to include low-temperature drying ovens and curing ovens 

used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens 

used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other 

additives are used. The current §117.403(a)(12) only exempts curing ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. In 

1 
response to comment by Owens Coming during the 2007 DFW 1997 eight-hour ozone 

nonattainment area rulemaking under Chapter 117, a provision was added under 

§ 117.403(a)(l2) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in 

which nitrogen-bound chemical additives are us~:d because of technical feasibility issues with 

controlling nitrogen oxide (NOx) emissions from curing ovens of this specific operation. While 

the type of manufacturing covered by this adopted rulemaking is different from that specified in 

the current rule exemption, the technical feasibility issue described is similar to the issue that is 

the basis of the current exemption in §117.403(a)(12). The addition of nitrogen-bound chemical 

additives contributes to the creation of non-combustion related thermal NOx that cannot be 

controlled using the control methodologies the commission identified as appropriate for curing 

ovens used in mineral wool-type fiberglass manufacturing. In addition, the NOx emissions from 

curing ovens of this type are estimated to be a small contribution to the total NOx emissions 

from this industry. If the rule revision is adopted, approximately 0.1 tons per day (tpd) of 

anticipated NOx emission reduction will need to be replaced in the 2007 DFW eight-hour ozone 

attainment demonstration SIP revision. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIR ACT, 

SECTION 110(1) 

Issue 

The commission provides the following information to clarify why the adopted change to 

expand the exemption in §117.403(a)(l2) will not negatively impact the status of the state's 

attainment with the ozone National Ambient Air Quality Standard (NAAQS). 

The requirement for reasonable notice and public hearing was satisfied through a public hearing 

held on September 17, 2009, and the public comment period, held from August 28, 2009, to 

September 28, 2009. The purpose of the hearing was to accept written and oral comments on the 

2 
proposed rulemaking. A written comment was submitted by the EPA. The EPA stated that it 

will provide comment on the commissions' § 11 0(1) demonstration in its comment letter 

pertaining to the proposed DFW Reasonably Available Control-Technology Update, 30 Texas 

Administrative Code Chapter 117 Ru1e Revision Noninterference Demonstration, and 

Attainment Demonstration Contingency Plan State Implementation Plan Revision. 

The EPA issued draft guidance on June 8, 2005, titled "Demonstrating Noninterference Under 

Section 110(1) of the Clean Air Act When Revising a State Implementation Plan." The guidance 

states on page six that "areas have two options available to demonstrate noninterference for the 

affected pollutant( s ). " This preamble provides details of the identified existing measures that the 

commission will use to establish compliance with option one of the EPA's guidance: 

substitution of one measure by another with equivalent or greater emissions reduction/air 

quality benefits. 

Background 

On May 23, 2007, the commission adopted a new Chapter 117, Subchapter B, Division 4, 

Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, with new emission 

control requirements for major industrial, commercial, or institutional (ICI) sources ofNOx in 

the DFW 1997 eight-hour ozone nonattainment area. This rulemaking was part of the DFW 

1997 eight-hour ozone attainment demonstration, and the emission reductions associated with 

the rulemaking will help bring the DFW 1997 eight-hour ozone nonattainment area into 

compliance with the eight-hour ozone NAAQS. 

The new Subchapter B, Division 4 requires owners or operators of major ICI sources ofNOx in 

the DFW 1997 eight-hour ozone nonattainment area to reduce NOx emissions from a wide 

variety of stationary sources. One source category newly regulated under Chapter 117 during 

3 
the 2007 rulemaking was curing and dtying ovens used in mineral wool-type fiberglass 

manufacturing. In response to comments made by Owens Corning during the comment period 

for the adopted rulemaking in 2007, the commission added a new provision under 

§ 117.403(a)(l2) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in 

which nitrogen-bound chemical additives are used because of technical feasibility issues with 

controlling NOx emissions from curing ovens of this specific operation. 

While the type of manufacturing covered by this adopted rulemaking is different from that 

specified by Owens Corning in the prior rulemaking, the petitioner's fiberglass manufacturing 

process has the same technical feasibility issue that is the basis of the current exemption in 

§ 117 .403(a)(12). The addition of nitrogen-bound chemical additives contributes to the creation 

of non-combustion-related thermal NOx that cannot be controlled using the control 

methodologies the commission had identified as appropriate for curing ovens used in mineral 

wool-type fiberglass manufacturing. In addition, the amount ofNOx from curing ovens of this 

type are estimated to be a small contribution to the total NOx emissions from this industry. 

If this rulemaking is adopted, approximately 0.1 tpd ofNOx emission reductions will need to be 

replaced in the 2007 DFW 1997 eight-hour ozone attainment demonstration SIP. The 

commission will replace the 0.1 tpd ofNOx reduction with 0.1 tpd ofNOx from surplus fleet 

turnover mductions. This replacement will be reflected in the commission's Discrete Emissions 

Reduction Credits (DERC) limit determination for 2010, consistent with 30 TAC 

§I 01.379(•;)(2)(A). 

Conclusion 

Based upon all data presently before the commission, it has been determined that there are 

sufficient c:redits in place to offset the shortfall from expanding the exemption in 

4 
§ 117.403(a)(l2). The replacement reductions adopted by the commission in this rulemaking are 

achieved from motor vehicle fleet turnover that are ground-level emission sources. 

SECTION BY SECTION DISCUSSION 

The adopted rulemaking will amend Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth 

Eight-Hour Ozone Nonattainment Area Major Sources. The adopted rule will expand the 

current exemption to include low-temperature drying ovens and curing ovens used in wet-laid, 

non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are 

used. 

Section 117.403, Exemptions 

Section 117.403 specifies unit types, sizes, or uses that are exempted from the requirements of 

Chapter 117, Subchapter B, Division 4. The provisions of Chapter 117, Subchapter B, Division 

4 exempts units where the unit type, maximum rated capacity, or specific use either cannot 

feasibly comply with the specifications due to technical or economic restraints or are regulated 

under another division. 

The commission adopts the amendment to §117.403(a)(l2) by expanding the current exemption 

to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber 

mat manufacturing as well as low-temperature drying ovens used in mineral wool-type 

fiberglass manufacturing. Currently, §117.403(a)(12) exempts curing ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. In 

response to comment during the 2007 revisions to Chapter 117, a provision was added under 

§ 117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in 

which nitrogen-bound chemical additives are used because of technical feasibility issues with 

5 
controlling NOx emissions from curing ovens of this specific operation. The manufacturing 

process covered by this rulemaking is different from the process covered by the current 

§ 117.403(a)(l2) exemption, but the technical feasibility issue is similar. 

The adopted rule will also revise the rule language from "nitrogen-bound chemical additives" to 

"nitrogen-containing resins, or other additives." Resins may not always be considered an 

additive, so this adopted change clarifies that nitrogen-containing resins will qualify for this 

exemption. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed this rulemaking in light of the regulatory analysis requirements of 

Texas Government Code, §200 1.0225 and determined that the adopted rule does not meet the 

defmition of a "major environmental rule." Texas Government Code, §2001.0225 states that a 

"major environmental rule" is, "a rule the specific intent of which is to protect the environment 

or reduce risks to human health from environmental exposure and that may adversely affect in a 

material way the economy, a sector of the economy, productivity, competition, jobs, the 

environment, or the public health and safety of the state or a sector of the state." Furthermore, 

while the adopted rulemaking does not constitute a major environmental rule, even if it did, a 

regulatory impact analysis would not be required because the adopted rulemaking does not meet 

any of the four applicability criteria for requiring a regulatory impact analysis for a major 

environmental rule. Texas Health and Safety Code, §2001.0225 applies only to a major 

environmental rule which, "(1) exceeds a standard set by federal law, unless the rule is 

specifically required by state law; (2) exceeds an express requirement of state law, unless the 

rule is specifically required by federal law; (3) exceeds a requirement of a delegation agreement 

or contract between the state and an agency or representative of the federal government to 

6 
implement a state and federal program; or ( 4) adopts a rule solely under the general powers of 

the agency instead of under a specific state law." 

The adopted rulemaking implements requirements of the Federal Clean Air Act (FCAA). Under 

42 United States Code (USC), §7410, each state is required to adopt and implement a SIP 

containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within 

the state. While 42 USC, §7410 generally does not require specific programs, methods, or 

reductions in order to meet the standard, state SIPs must include "enforceable emission 

limitations and other control measures, means or techniques (including economic incentives 

such as fees, marketable permits, and auctions of emissions rights), as well as schedules and 

timetables for compliance as may be necessary or appropriate to meet the applicable 

requirements of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control, 

otherwise known as the FCAA). The provisions of the FCAA recognize that states are in the · 

best position to determine what programs and controls are necessary or appropriate in order to 

meet the NAAQS. This flexibility allows states, affected industry, and the public to collaborate 

on the best methods for attaining the NAAQS for the specific regions in the state. Even though 

the FCAA allows states to develop their own programs, this flexibility does not relieve a state 

from developing a program that meets the requirements of 42 USC, §7410. States are not free to 

ignore the requirements of 42 USC, §7410, and must develop programs and control measures to 

assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of 

the NAAQS within the state. 

The specific intent of the adopted rulemaking is to provide fair and consistent application of SIP 

rules in the DFW 1997 eight-hour ozone nonattainment area. The current§ 117.403(a)(l2) 

exempts from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone 

Nonattainment Area Major Sources, curing ovens used in mineral wool-type fiberglass 

7 
manufacturing in which nitrogen-bound chemical additives are used. The exemption was added 

in response to comments during the 2007 DFW 1997 eight-hour ozone nonattainment area 

rulemaking under Chapter 117, because of technical feasibility issues with controlling NOx 

emissions from curing ovens of this specific operation. While the type of manufacturing 

covered by this adopted rulemaking is different from that specified in the current 

§ 117 .403( a)( 12) rule exemption, the technical feasibility issue described is similar. To further 

the specific intent of providing fair and consistent application of SIP rules in the DFW 1997 

eight-hour ozone nonattainment area, the adopted rule will broaden the current exemption to 

Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment· 

Area Major Sources to include low-temperature drying ovens and curing ovens used in wet-laid, 

non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are 

used. 

The adopted rulemaking does not constitute a major environmental rule under Texas 

Government Code, §2001.0225(g)(3) because: 1) the specific intent of the adopted rule is not to 

protect the environment or reduce risks to human health from environmental exposure, but 

rather to provide fair and consistent application of SIP rules in the DFW 1997 eight-hour ozone 

nonattainment area; and 2) as discussed previously and in the rule proposal, the adopted 

rulemaking will not adversely affect in a material way the economy, a sector of the economy, 

productivity, competition, or jobs, nor will the adopted rules adversely affect in a material way 

the environment, or the public health and safety of the state or a sector of the state, because the 

lost NOx emission reduction created by this adopted expanded exemption will be offset by NOx 

reductions from surplus fleet turnover as discussed previously in the BACKGROUND AND 

SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE section. Because the 

8 
adopted rulemaking is not a major environmental rule, it is not subject to a regulatory impact 

analysis under Texas Government Code, §2001.0225. 

While this rulemaking does not constitute a major environmental law, even if it did, it would not 

be subject to a regulatory impact assessment under Texas Government Code, §2001.0225. The 

requirement to provide a fiscal analysis of regulations in the Texas Government Code was 

amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent ofSB 633 was 

to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are 

identified in the statutory language as major environmental rules that will have a material 

adverse impact and will exceed a requirement of state law, federal law, or a delegated federal 

program; or are adopted solely under the general powers of the agency. With the understanding 

that this requirement would seldom apply, the commission provided a cost estimate for SB 633 

that concluded: "based on an assessment of rules adopted by the agency in the past, it is not 

anticipated that the bill will have siguificant fiscal implications for the agency due to its limited 

application." The commission also noted that the number of rules that would require assessment 

under the provisions of the bill was not large. This conclusion was based, in part, on the criteria 

set forth in the bill that exempted rules from the full analysis unless the rule was a major 

environmental rule that exceeds a federal law. 

The FCAA does not always require specific programs, methods, or reductions in order to meet 

the NAAQS; thus, states must develop programs for each nonattainment area to help ensure that 

those areas will meet the attainment deadlines. Because of the ongoing need to address 

nonattainment issues to meet the requirements of 42 USC, §7410, the commission routinely 

proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If 

each rule adopted for inclusion in the SIP was considered to be a major environmental rule that 

exceeds federal law, then every SIP rule would require the full regulatory impact analysis 

9 
contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the 

commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. 

Since the legislature is presumed to understand the fiscal impacts of the bills it passes and that 

presumption is based on information provided by state agencies and the LBB, the commission 

believes that the intent of SB 633 was only to require the full regulatory impact analysis for 

rules that are extraordinary in nature. While the SIP rules have a broad impact, that impact is no 

greater than is necessary or appropriate to meet the requirements of the FCAA. For these 

reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government 

Code, §2001.0225(a), because they are required by fed;o.allaw. 

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

enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left 

this provision substantially unamended. It is presumed that, "when an agency interpretation is in 

effect at the time the legislature amends the laws without making substantial change in the 

statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & 

Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam 

opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 

798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf Humble Oil & Refining Co. v. 

Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 

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

App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement 

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

The commission's interpretation of the regulatory impact analysis requirements is also 

supported by a change made to the Texas Administrative Procedure Act (AP A) by the 

legislature in 1999. In an attempt to limit the number of rule challenges based upon AP A 

10 
requirements, the legislature clarified that state agencies are required to meet these sections of 

the AP A against the standard of "substantial compliance." The legislature specifically identified 

Texas Government Code, §200 1.0225 as falling under this standard. The commission has 

substantially complied with the requirements of §2001.0225. 

Regardless of whether the adopted rulemaking constitutes a major enviromnental rule under 

Texas Government Code, §200 1.0225(g)(3), a regulatory impact analysis is not required 

because this exemption is part of the commission's SIP for making progress toward the 

attaimnent and maintenance of the eight-hour ozone NAAQS in the DFW nonattaimnent area. 

Therefore, the adopted rule does not exceed a standard set by federal law or exceed an express 

requirement of state law, since they are part of an overall regulatory scheme designed to meet, 

not exceed the relevant standard set by federal law- the NAAQS. The commission is charged 

with protecting air quality within the state and with designing and submitting a plan to achieve 

attainment and maintenance of the federally mandated NAAQS. The Third District Court of 

Appeals upheld this interpretation in Brazoria County v. Texas Comm'n on Envtl. .Quality, 128 

S.W. 3d 728 (Tex. App. -Austin 2004, no writ). fu addition, no contract or delegation 

agreement covers the topic that is the subject of this rulemaking. Finally, this rulemaking was 

not developed solely under the general powers of the agency, but is authorized by specific 

sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air 

Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of 

this preamble, including Texas Health and Safety Code, §§382.Ql 1, 382.012, and 382.017. 

This rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, 

§200 1.0225(b ), for the following reasons. The adopted rulemaking is not a major enviromnental 

law because:!) the specific intent of the adopted rule is not to protect the enviromnent or 

reduce risks to human health from enviromnental exposure, but rather to provide fair and 

II 
consistent application of SIP rules in the DFW eight-hour ozone nonattainment area; and 2) the 

adopted rulemaking will not adversely affect in a material way the economy, a sector of the 

economy, productivity, competition, or jobs, nor will it adversely affect in a material way the 

environment, or the public health and safety of the state or a sector of the state, because the lost 

NOx emission reduction created by the adopted expanded exemption will be offset by NOx 

reductions from surplus fleet turnover. Furthermore, even if the adopted rulemaking was a 

major environmental rule, it does not meet any of the four applicability criteria listed in Texas 

Government Code, §2001.0225 because: I) the adopted rulemaking is part of the Dallas-Fort 

Worth Eight Hour Ozone Nonattainment Area Attainment Demonstration, and as such is 

designed to meet, not exceed the relevant standard set by federal law; 2) no contract or 

delegation agreement covers the topic that is the subject of this rulemaking; and 3) the adopted 

rulemaking is authorized by specific sections of Texas Health and Safety Code, Chapter 382 

(also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the 

STATUTORY AUTHORITY. 

The commission invited public comment regarding the draft regulatory impact analysis 

determination during the public comment period. No comments were received on the draft 

regulatory impact analysis. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rule and performed an analysis of whether the adopted 

rule constitutes a taking under Texas Government Code, Chapter 2007. The commission 

determined that Texas Government Code, Chapter 2007 does not apply because this rulemaking 

provides for fair and consistent application of SIP rules in the DFW eight-hour ozone 

nonattainment area by expanding the exemption from Chapter 117, Subchapter B, Division 4, 

Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low12 
temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat 

manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass 

manufacturing in which nitrogen-containing resins or other additives are used. 

Under Texas Government Code, §2007.002(5), taking means: "(A) 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 Section 17 or 19, 

Article I, Texas Constitution; or (B) a governmental action that: (i) 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 (ii) 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 of the property determined as if the governmental action is in effect." 

The specific purpose of the adopted rulemaking is to provide fair and consistent application of 

SIP rules in the DFW 1997 eight-hour ozone nonattaimnent area. The current§ 117.403(a)(l2) 

exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogenbound chemical additives are used. The current exemption was added in response to comments 

during the 2007 DFW 1997 eight-hour ozone nonattainment area rulemaking under Chapter 

117, because of technical feasibility issues with controlling NOx emissions from curing ovens 

of this specific operation. While the type of manufacturing covered by the adopted rule is 

different from that specified in the current § 117.403(a)(l2) exemption, the technical feasibility 

issue described is similar. Therefore, the adopted rulemaking would substantially advance this 

stated purpose by expanding the exemption from Chapter 117, Subchapter B, Division 4, 

13 
Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include lowtemperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat 

manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass 

manufacturing in which nitrogen-containing resins or other additives are used. 

Promulgation and enforcement of the adopted rule would be neither a statutory nor a 

constitutional taking of private real property. Because the adopted rule promulgates an 

exemption, it is less burdensome, restrictive, or limiting of rights to private real property than 

the existing rule. Furthermore, the adopted rule will benefit the public by providing fair and 

consistent application of SIP rules in the DFW 1997 ozone nonattainment area. The adopted 

rule does not affect a landowner's rights in private real property because this rulemaking does 

not burden, restrict, or limit the owner's right to property; nor does it reduce the value of any 

private real property by 25% or more beyond that which would otherwise exist in the absence of 

the regulations. In other words, these rules simply expand the existing exemption in § 117.403 to 

include sources that have technological feasibility issues similar to those of the sources covered 

by the current exemption. Therefore, the adopted rule does not constitute a taking under Texas 

Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found it is a rulemaking identified in the 

Coastal Coordination Act Implementation Rules, 31 TAC §505.ll(b)(4), relating to rules 

subject to the Coastal Management Program, and will, therefore, require that goals and policies 

of the Texas Coastal Management Program (CMP) be considered during the rulemaking 

process. 

14 
The commission reviewed this rulemaking for consistency with the CMP goals and policies in 

accordance with the regulations of the Coastal Coordination Council and determined that the 

rulemaking is procedural in nature and will have no substantive effect on commission actions 

subject to the CMP and is, therefore, consistent with CMP goals and policies. 

The commission invited public comment regarding the consistency with the CMP during the 

public comment period. No comments were received concerning the CMP. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

Chapter 117 is an applicablerequirement under 30 TAC Chapter 122, Federal Operating 

Permits Program. If the amendment is adopted by the commission, owners or operators subject 

to the federal operating permits program that elect to comply with the § 117.403(a)(12) 

exemption may need to revise their operating permit. 

PUBLIC COMMENT 

A public hearing was scheduled September 17, 2009, at 2:00p.m., in Ennis, Texas. No oral 

comments were received. The comment period closed on September 28, 2009. A written 

comment was received from the EPA. 

RESPONSE TO COMMENT 

The EPA stated that it will provide comment on the commission §II 0(1) demonstration in its 

comment letter pertaining to the proposed Dallas-Fort Worth (DFW) Reasonably Available 

Control-Technology Update, 30 Texas Administrative Code Chapter 117 Rule Revision 

Noninterference Demonstration, and Attainment Demonstration Contingency Plan State 

Implementation Plan Revision. 

15 
The commission thanks the EPA for its comment and looks forward to responding to any 

questions the EPA has concerning the §110(1) demonstration. No change was made to the 

rule based on this comment. 

STATUTORY AUTHORITY 

The amendment is adopted under the authority of the following: Texas Government Code, 

§2001.021, Petition for the Adoption of Rules, which authorizes an interested person to petition 

a state agency for the adoption of a rule; Texas Water Code (TWC), §5.102, General Powers, 

§5.103, Rules, and §5.105, General Policy (these provisions authorize the commission to adopt 

rules necessary to carry out its powers and duties under the TWC); Texas Health and Safety 

Code (THSC), Texas Clean Air Act (TCAA), §382.ot 7, Rules, which authorizes the 

commission to adopt rules consistent with the policy and purposes of the TCAA; THSC, 

§3 82.002, 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.ot I, General Powers and Duties, which authorizes the 

commission to control the quality of the state's air; and THSC, TCAA, §382.ot2, State Air 

Control Plan, which authorizes the commission to prepare and develop a general, 

comprehensive plan for the control of the state's air. 

The amendment is also adopted under THSC, §382.016, Monitoring Requirements; 

Examination of Records, which authorizes the commission to prescribe requirements for owners 

or operators of sources to make and maintain records. of emissions measurements; THSC, 

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

sampling methods and procedures; and THSC, §382.051 (d), Permitting Authority of 

Commission; Rules, which authorizes the commission to adopt rules as necessary to comply 

with changes in federal law or regulations applicable to permits under THSC, Chapter 382. 

16 
The adopted amendment implements THSC, §§382.002, 382.QII, 382,012, 382.016, 382.021, 

and 382.05l(d). 

17 
STAFF

RECOMMENDATIONS
SUBCHAPTER B: COMBUSTION CONTROL AT MAJOR INDUSTRIAL, COMMERCIAL, 

AND INSTITUTIONAL SOURCES IN OZONE NONATTAINMENT AREAS 

DMSION 4: DALLAS-FORT WORTH EIGHT-HOUR OZONE NONATTAINMENT AREA 

MAJOR SOURCES 

§117.403 

§ 117.403. Exemptions. 

(a) Units exempted from the provisions of this division (relating to Dallas-Fort Worth Eight-Hour 

Ozone Nonattainment Area Major Sources), except as specified in §§117.440(i), 117.445(f)(4) and (9}, 

117.450, and 117.454 of this title (relating to Continuous Demonstration of Compliance; Notification, 

Recordkeeping, and Reporting Requirements; Initial Control Plan Procedures; and Final Control Plan 

Procedures for Attainment Demonstration Emission Specifications}, include the following: 

(1) industrial, commercial, or institutional boilers or process heaters with a maximum 

rated capacity equal to or less than: 

(A) 2.0 million British thermal units per hour (MMBtulhr) for boilers; and 

(B) 5.0 MMBtulhr for process heaters; 

(2) heat treating furnaces and reheat furnaces with a maximum rated capacity less than 20 

MMBtulhr; 

1 
(3) flares, incinerators with a maximum rated capacity less than 40 MMBtulhr, pulping 

liquor recovery furnaces, sulfur recovery units, sulfuric acid regeneration units, molten sulfur oxidation 

furnaces, and sulfur plant reaction boilers; 

(4) dryers, heaters, or ovens with a maximum capacity ofS.O MMBtulhr or less; 

(5) any dryers, heaters, or ovens frred on fuels other than natural gas. This exemption 

does not apply to gas-frred curing ovens used for the production of mineral wool-type or textile-type 

fiberglass; 

(6) any glass, fiberglass, and mineral wool melting furnaces with a maximum rated 

capacity of 2.0 MMBtulhr or less; 

(7) stationary gas turbines and stationary internal combustion engines, that are used as 

follows: 

(A) in research and testing; 

(B) for purposes of performance verification and testing; 

(C) solely to power other engines or gas turbines during startups; 

(D) exclusively in emergency situations, except that operation for testing or 

maintenance purposes is allowed for up to 100 hours per year, based on a rolling 12-month average. Any 

new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after June 1, 

2 
2007, is ineligible for this exemption. For the purposes of this subparagraph• the terms "modification" and 

"reconstruction" have the meanings defined in § 116.10 of this title (relating to General Defmitions) and 

40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), respe1;tively, and the term 

"relocated" means to newly install at an account, as defined in§ 101.1 of this title (relating to Definitions), 

a used engine from anywhere outside that account; 

(E) in response to and during the existence of any officially declared disaster or 

state of emergency; 

(F) directly and exclusively by the owner or operator for agricultural operations 

necessary for the growing of crops or raising of fowl or animals; or 

(G) as chemical processing gas turbines; 

(8) any stationary diesel engine placed into service before June 1, 2007, that: 

(A) operates less than 100 hours per year, based on a rolling 12-month average; 

and 

(B) has not been modified, reconstructed, or relocated on or after June 1, 2007. 

For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings 

defmed in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term 

"relocated" means to newly install at an account, as defmed in §101.1 of this title, a used engine from 

anywhere outside that account; 

3 
(9) any new, modified, reconstructed, or relocated stationary diesel engine placed into 

servic1' on or after June 1, 2007, that: 

(A) operates less than I 00 hours per year, based on a rolling 12-month average, 

in other than emergency situations; and 

(B) meets the corresponding emission standard for non-road engines listed in 40 

CFR §89.112(a), Table 1 (October 23, 1998), and in effect at the time of installation, modification, 

reconstruction, or relocation. For the purposes of this parll;graph, the terms "modification" and 

"reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 

1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of 

this title, a used engine from anywhere outside that account; 

(10) boilers and industrial furnaces that were regulated as existing facilities by 40 CFR 

Part 266, Subpart H, as was in effect on June 9, 1993; 

(II) brick or ceramic kilns with a maximum rated capacity less than 5. 0 MMBtulhr; 

(12) low-temperature drying and curing ovens used in mineral wool-type fiberglass 

manufacturing and wet-laid, non-woven fiber mat manufacturing in which nitrogen-containing resins, or 

other additives are used; 

(13) stationary, gas-fired, reciprocating internal combustion engines with a horsepower 

(hp) rating less than 50 hp; 

4 
(14) electric arc melting furnaces used in steel production; 

(15) forming ovens and forming processes used in mineral wool-type fiberglass 

manufacturing; and 

( 16) natural gas-fired heaters used exclusively for providing comfort heat to areas 

designed for human occupancy. 

(b) Increment of progress exemptions. 

(1) Stationary, reciprocating internal combustion engines with a maximum rated capacity 

less than 300 horsepower are exempt from the emission specifications in § 117.410(a) of this title (relating 

to Emission Specifications for Eight-Hour Attainment Demonstration). 

(2) The emission specifications in § 117.41 O(a) of this title no longer apply to any 

stationary, reciprocating internal combustion engine subject to the emission specifications of§ 117.41 O(b) 

of this title after the compliance date specified in § 117 .9030(b) of this title (relating to Compliance 

Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources) .. 

(3) Stationary engines that are demonstrated to operate less than 850 hours per year, 

based on a rolling 12-month average are exempt from the emission specifications in §117.410(a) of this 

title. 

(c) Emergency fuel oil firing exemption for gas-fired boilers. The emission specifications in 

§ 117 .410(b )(1) and (d) of this title do not apply to gas-fired boilers during periods that the owner or 

5 
operator is required to frre fuel oil on an emergency basis due to natural gas curtailment or other 

emergency, provided: 

(I) the fuel oil ftring occurs during the months ofNovember, December, January, or 

February; and 

(2) the fuel oil ftring does not exceed a total of 72 hours in any calendar month specified 

in paragraph (1) of this subsection. 

6 
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

ORDER ADOPTING AMENDED RULE AND 

REVISION TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2009-0338-RUL 

On January 13, 2010, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended 30 TAC § 117.403 and corresponding revisions to the state 

implementation plan (SIP). The Commission adopts· these amendments to§ 117.403 in Chapter 117, Control of 

Air Pollution from Nitrogen Compounds; Subchapter B, Combustion Control at Major Industrial, Commercial, 

and Institutional Sources in Ozone Nonattainment Areas; Division 4, Dallas-Fort Worth (DFW) Eight-Hour 

Ozone Nonattainment Area Major Sources, and corresponding revisions to the SIP. Under Tex. Health & 

Safety Code Ann. §§ 382.011, 382.Dl2, and 382.023 (Vernon 2001), the Commission has the authority to 

control the quality of the state's air and to issue orders consistent with the policies and purposes of the Texas 

Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed rule was published for comment 

in the August 28, 2009 issue of the Texas Register (33 Tex Reg 5866). 

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code, Chapter 2001 

(Vernon 2008) and 40 Code of Federal Regulations § 51.102, and after proper notice, the Commission 

conducted a public hearing to consider the amended rule and revision to the SIP. Proper notice included 

prominent advertisement in the areas affected at least 30 days prior to the date of the hearing. A public hearing 

was held in Ennis on September 17, 2009, at 2:00p.m. at the Ennis Public Library. 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the United States Environmental Protection Acency (EPA), and all 

applicable local air pollution control agencies. The public was invited to submit data, views, and 

recommendations on the proposed amended rule and SIP revision, either orally or in writing, at the hearing or 

during the comment period. Prior to the scheduled heating, copies of the proposed amended rule and SIP 

revision were available for public inspection at the Commission's central office and on the Commission's Web 

site. 

Data, views, and recommendations of interested persons regarding the proposed amended rules and SIP 

revisions were submitted to the Commission during the comment period, and were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The Commission 

finds that the analysis of testimony includes the names of all interested groups or associations offering it's 

comment on the proposed amended rules and the SIP revisions and their position concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rule and revision to the SIP 

incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff to make 

any non-substantive revisions to the rule necessary to comply with Texas Register requirements. The adopted 

rule and the preamble to the adopted rule and the revision to the SIP are incorporated by reference in this Order 

as if set forth at length verbatim in this Order. 
IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commis:;ion, the 

Chairman should transmit a copy of this Order, together with the adopted rule, to the Regional Administrator of 

EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, codified at 42 U.S. Code 

Ann. §§ 7401 - 767lq, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, Tex. 

Gov't Code, § 2001.033 (Vernon 2008). 

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, the 

invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: JAN 15 2 Q 10 TEXAS COMMISSION ON 

ONMENTALQU 

ClA\.W 

Bry haw, Ph.D., Chairman 
G) Providing false c!mu;cates of completion or any other false 

infonnation to the Board m result in denial of the applicant's exam· 

ination application and may suit in additional disciplinary action, as 

provided by the Plumbing ·cense Law, Board Rules or other laws of 

this state. 

This agency hereby certifi s thatthe adoption has been reviewed 

by legal counsel and fou to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of e Secretary of State on January 15, 

2010. 

TRD-201 000163 

Robert L. Maxwell 

Executive Director 

Texas State Board of Plum ng Examiners 

Effective date: February 4, 010 

Proposal publication date: ctobar 30, 2009 

For further information, plea e call: (512) 936-5224 

• • • 

TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 117. CONTROL OF AIR 

POLLUTION FROM NITROGEN COMPOUNDS 

SUBCHAPTER B. COMBUSTION CONTROL 

AT MAJOR INDUSTRIAL, COMMERCIAL, 

AND INSTITUTIONAL SOURCES IN OZONE 

NONATTAINMENTAREAS 

DIVISION 4. DALLAS-FORT WORTH 

EIGHT-HOUR OZONE NONATTAINMENT 

AREA MAJOR SOURCES. 

30 TAC §117.403 

The Texas Commission on Environmental Quality (commission 

or agency) adopts the amendment to §117.403 without changes 

to the proposed text as published in the August 28, 2009, issue 

of the Texas Register (34 TexReg 5866). 

The amendment will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULE 

On December 11, 2008, Elk Corporation of Texas submitted a 

petition for rulemaking requesting an amendment to §117.403, 

which currently exempts from Chapter 117, Subchapter B, Div~ 

sion 4, Dallas-Fort Worth Eight-Hour Ozone NonattainmentArea 

Major Sources, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives 

are used. The commission approved the petition for rulemaking 

on January 28, 2009, and issued an order on February 2, 2009, 

directing the executive director to examine the issues in the petttion and to initiate rulemaking. 

The adopted rule will amend Chapter 117, Subchapter B, Div~ 

sion 4, §117.403, for the Dallas-Fort Worth (DFW) 1997 eighthour ozone nonattainment area. The adopted change will expand the exemption in §117.403(a)(12) to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven 

fiber mat manufacturing as well as low-temperature drying ovens 

used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used. The current §117.403(a)(12) only exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound 

chemical additives are used. In response to comment by Owens 

Corning during the 2007 DFW 1997 eight-hour ozone nonattainment area rulemaking under Chapter 117, a provision was 

added under §117.403(a)(12) to exempt curing ovens used in 

mineral wool-type fiberglass manufacturing in which nitrogenbound chemical additives are used because of technical feasibility issues with controlling nitrogen oxide (NO,) emissions from 

curing ovens of this specific operation. While the type of manufacturing covered by this adopted rulemaking is different from 

that specified in the current rule exemption, the technical feasibility issue described is similar to the issue that is the basis of 

the current exemption in §117.403(a)(12). The addition of nitrogen-bound chemical additives contributes to the creation of 

non-combustion related thermal NO, that cannot be controlled 

using the control methodologies the commission identified as appropriate for curing ovens used in mineral wool-type fiberglass 

manufacturing. In addition, the NO, emissions from curing ovens 

of this type are estimated to be a small contribution to the total 

NO, emissions from this industry. If the rule revision is adopted, 

approximately 0.1 tons per day (tpd) of anticipated NO, emission 

reduction will need to be replaced in the 2007 DFW eight-hour 

ozone attainment demonstration SIP revision. 

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL 

CLEAN AIR ACT, SECTION 110(1) 

Issue 

The commission provides the following information to clarify why 

the adopted change to expand the exemption in §117.403(a)(12) 

will not negatively impact the status of the state's attainment with 

the ozone National Ambient Air Quality Standard (NAAQS). 

The requirement for reasonable notice and public hearing was 

satisfied through a public hearing held on September 17, 2009, 

and the public comment period, held from August 28, 2009, to 

September 28, 2009. The purpose of the hearing was to accept 

written and oral comments on the proposed rulemaking. A written comment was submitted by the EPA. The EPA stated that it 

will provide comment on the commissions' §11 0(1) demonstration 

in its comment letter pertaining to the proposed DFW Reasonably Available ControHechnology Update, 30 Texas Administrative Code Chapter 117 Rule Revision Noninterference Demonstration, and Attainment Demonstration Contingency Plan State 

Implementation Plan Revision. 

The EPA issued draft guidance on June 8, 2005, tiHed "Demonstrating Noninterference Under Section 11 0(1) of the Clean Air 

Act When Revising a State Implementation Plan." The guidance 

states on page six that "areas have two options available to 

demonstrate noninterference for the affected pollutant(s)." This 

preamble provides details ofthe identified existing measures that 

the commission will use to establish compliance with option one 

of the EPA:s guidance: substitution of one measure by another 

with equivalent or greater emissions reduction/air quality benefits. 

ADOPTED RULES January 29, 2010 35 TexReg 649 
Background 

On May 23, 2007, the commission adopted a new Chapter 

117, Subchapter B. Division 4, Dallas-Fort Worth Eight-Hour 

Ozone Nonattainment Area Major Sources, with new emission control requirements for major industrial, commercial, or 

institutional (ICI) sources of NO, in the DFW 1997 eight-hour 

ozone nonattainment area. This rulemaking was part of the 

DFW 1997 eight-hour ozone attainment demonstration, and the 

· emission reductions associated with the rulemaking will help 

bring the DFW 1997 eight-hour ozone nonattainment area into 

compliance with the eight-hour ozone NAAQS. 

The new Subchapter B, Division 4 requires owners or operators of major ICI sources of NO, in the DFW 1997 eight-hour 

ozone nonattainment area to reduce NO, emissions from a wide 

variety of stationary sources. One source category newly regUlated under Chapter 117 during the 2007 rulemaking was curing and drying ovens used in mineral wool-type fiberglass manufacturing. In response to comments made by Owens Corning 

during the comment period for the adopted rulemaking in 2007, 

the commission added a new provision under§117.403(a)(12) to 

exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used 

because oflechnical feasibility issues with controlling NO, emissions from curing ovens of this specific operation. 

While the type of manufacturing covered by this adopted rule- . making is different from that specified by Owens Corning in 

the prior rulemaking, the petitioner's fiberglass manufacturing 

process has the same lechnical feasibility Issue that is the basis 

of the current exemption in §117.403(a)(12). The addition of 

nitrogen-bound chemical addttives contribules to the creation of 

non-combustion-related thermal NO, that cannot be controlled 

using the control methodologies the commission had identified 

as appropriate for curing ovens used in mineral wool-type fiberglass manufacturing. In addition, the amount of NO, from curing 

ovens of this type are estimated to be a small contribution to the 

total NO, emissions from this industry. 

If this rulemaking is adopled, approximalely 0.1 tpd of NO, emission reductions will need to be replaced in the 2007 DFW 1997 

eight-hour ozone attainment demonstration SIP. The commission will replace the 0.1 tpd of NO, reduction with 0.1 tpd of 

NO, from surplus fleet turnover reductions. This replacement 

will be reflected in the commission's Discrete Emissions Reduction Credits (DERC) limit determination for 2010, consistent with 

30 TAC §101.379(c)(2)(A). 

Conclusion 

Based upon all data presently before the commission, it has 

been determined that there are sufficient credits in place to offset 

the shortfall from expanding the exemption in §117.403(a)(12). 

The replacement reductions adopted by the commission in this 

rulemaking are achieved from motor vehicle fleet turnover that 

are ground-level emission sources. 

SECTION BY SECTION DISCUSSION 

The adopled rulemaking will amend Chapter 117, Subchapter B, 

Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment 

Area Major Sources. The adopted rule will expand the current 

exemption to include low-lemperature drying ovens and curing 

ovens used in wet-laid, non-woven fiber mat manufacturing as 

well as low-temperature drying ovens used in mineral wool-type 

fiberglass manufacturing in which nitrogen-containing resins or 

other additives are used. 

35 TexReg 650 January 29, 2010 Texas Register 

Section 117.403, Exemptions 

Section 117.403 specifies unit types, sizes, or uses that are exempted from the requirements of Chapler 117, Subchapter B, Division 4. The provisions of Chapter 117, Subchapter B, Division 

4 exempts units where the unit type, maximum rated capacity, or 

specific use etther cannot feasibly comply with the specifications 

due to technical or economic restraints or are regulated under 

another division. · 

The commission adopts the amendment to §117.403(a)(12) by 

expanding the current exemption to include low-temperature 

drying ovens and curing ovens used in wet-laid, non-woven 

fiber mat manufacturing as well as low-temperature drying 

ovens used In mineral wool-type fiberglass manufacturing. Currently, §117.403(a)(12) exempts curing ovens used in ·mineral 

wool-type fiberglass manufacturing in which nitrogen-bound 

chemical additives are used. In response to comment during 

the 2007 revisions to Chapter 117, a provision was added 

under §117.403(a)(12) to exempt curing ovens used in mineral 

wool-type fiberglass manufacturing in which nitrogen-bound 

chemical additives are used because of technical feasibility 

issues with controlling NO, emissions from curing ovens of this 

specific operation. The manufacturing process covered by this 

rulemaking is different from the process covered by the current 

§117.403(a)(12) exemption, but the lechnical feasibiltty issue is 

similar. 

The adopted rule will also revise the rule language from "nitrogen-bound chemical additives" to "nitrogen-containing resins, or 

other additives." Resins may not always be considered an additive, so this adopted change clarifies that nitrogen-containing 

resins will qualify for this exemption. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed this rulemaking in light of the regulatory analysis requirements of Texas Government Code, 

§2001.0225 and determined that the adopted rule does not meet 

the definition of a "major environmental rule." Texas Government 

Code, §2001.0225 states that a "major environmental rule" is, 

"a rule the specific intent of which is to protect the environment 

or reduce risks to human health from environmental exposure 

and that may adversely affect in a material way the economy, 

a sector of the economy, productivity, competition, jobs, the 

environment, or the public health and safety of the state or a 

sector of the state." Furthermore, while the adopted rulemaking 

does not constitule a major environmental rule, even if it did, a 

regulatory impact analysis would not be required because the 

adopted rulemaking does not meet any of the four applicabiltty 

criteria for requiring a regulatory impact analysis for a major 

environmental rule. Texas Health and Safety Code, §2001.0225 

applies tmly to a major environmental rule which, "(1) exceeds 

a standard set by federal law, unless the rule is specifically 

required by state law; (2) exceeds an express requirement 

of state law, unless the rule is specifically required by federal 

law; (3) exceeds a requirement of a delegation agreement or 

contract between the state and an agency or representative 

of the fnderal government to implement a state and federal 

program. or (4) adopts a rule solely under the general powers 

of the agency instead of under a specific state law." 

The adooted rulemaking implements requirements of the Federal Clea1n Air Act (FCAA). Under 42 Untted States Code (USC), 

§7410, oach state is required to adopt and implement a SIP 

containir1g adequate provisions to implement, attain, maintain, 

and enforce the NAAQS within the state. While 42 USC, §7410 
gem~rally. does not require specific programs, methods, or reductions 1n order to meet the standard, state SIPs must include 

"enforceable emission limitations and other control measures 

means or techniques (including economic incentives such as 

fees, marketable permits, and auctions of emissions rights), as 

well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of 

this chapter," (meaning Chapter 85, Air Pollution Prevention and 

Control, otherwise known as the FCAA). The provisions of the 

FCAA recognize that states are in the best position to determine 

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

industry, and the public to collaborate on the best m~thods for 

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

th?ugh !he FCAA allows .states to develop their own programs, 

thiS flexibility does not relieve a state from developing a program 

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

free to ignore the requirements of42 USC, §7410, and must develop programs and control measures to assure that their SIPs 

provide for implementation, attainmen~ maintenance and enforcement of the NAAQS within the state. ' 

The specific intent of the adopted rulemaking is to provide fair and consistent application of SIP rules in the DFW 

1997 eight-hour ozone nonattainment area. The current 

§1HA03(a)(12) exempts from Chapter 117, Subchapter B, 

DIVISion 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment 

Area Major Sources, curing ovens used in mineral wool-type 

fiberglass manufacturing in which nitrogen-bound chemical 

additives are used. The exemption was added in response 

to comments dunng the 2007 DFW 1997 eight-hour ozone 

nonattainment area rulemaking under Chapter 117 because of 

technical feasibility issues with controlling NO em'issions from 

curing ovens of this spe~lfic operation. While ihe type of manufactunng covered by thiS adopted rulemaking is different from 

that specified in the current §117.403(a)(12) rule exemption, 

the techmcal feas1b1hty 1ssue descnbed is similar. To further the 

speci~c intent of providi~g fair and consistent application of SIP 

rules m the DFW 1997 eight-hour ozone nonattainment area the 

adopted rule will ~':O~den the current exemption to Chapter 117, Subcha~ter B, DIVISion 4, Dallas-Fort Worth Eight-Hour Ozone 

Nonattamment Area Major Sources to include low-temperature 

drying ovens and curing ovens used in wet-laid non-woven fiber 

mat ~anufacturing as well as low-temperau;re drying ovens 

used 1n mmeral. wool-!ype fiberglass manufacturing in which 

mtrogen-contam1ng resms or other additives are used. · 

The adopted rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) 

because: 1) the specific intent of the adopted rule is not to protect the environment or reduce risks to human health from environmental exposure, but rather to provide fair and consistent 

application of SIP rules in the DFW 1997 eight-hour ozone nonatteinment area; and 2} as discussed previously and in the rule 

proposal, the adopted rulemaking will not adversely affect in a 

matenal way the economy, a sector of the economy productivity, competition, or jobs, nor will the adopted rules adversely affect in a material way the environment, or the public health and 

safety of the state or a sector of the state because the lost NO 

~mission reduction created by this adopted expanded exemP:: 

!ion Will be offset by NO, reductions from surplus fleet turnover 

as discussed previously in the BACKGROUND AND SUMMARY 

OF THE FACTUAL BASIS FOR THE ADOPTED RULE section. 

Because the adopted rulemaking is .not a major environmental 

rule, it is not subject to a regulatory impact analysis under Texas 

Government Code, §2001.0225. 

While thi!i rulema~ing. does not constitute a major environmental law, even If 11 d1d, 11 would not be subject to a regulatory impact assEtssment under Texas Government Code, §2001.0225. 

The requ1 rement to provide a fiscal analysis of regulations in the 

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

during thE1 75th Legislature, 1997. The intent of SB 633 was to re- qui~ agencies to conduct a regulatory impact analysis of extraord!nary rules. These are identified in the statutory language as 

major environmental rules that will have a material adverse impact and 1

1/ill exceed a requirement of state law, federal law, or a 

delegated federal program; or are adopted solely under the general powers of the agency. With the understanding that this requi!"Bment would seldom apply, the commission provided a cost 

estimate for SB 633 that concluded: "based on an assessment 

of rules ado~rted by the agency in th~ past, it is not anticipated 

that the. b1Uwdl have Sl!lnl~cant fiscal Implications for the agency 

due to its hm1ted application." The commission also noted that 

the number of rules that would require assessment under the 

provisions of the bill was not large. This conclusion was based 

in part, on the ~riteria set forth in the bill that exempted rules froni 

the full analysis unless the rule was a major environmental rule 

that exceeds a federal law. 

The FCAA does not always require specific programs methods 

or reductions in order to meet the NAAQS; thus, states must 

develop programs for each nonattainment area to help ensure 

that those areas will meet the attainment deadlines. Because of 

the ongoing need to address nonattainment issues to meet the 

requirements of 42 USC, §7 410, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule adopted for inclusion 

1n the SIP was considered to be a major environmental rule that 

exceeds federal law, then every SIP rule would require the full 

regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board 

(LBB} in its fiscal notes. Since the legislature is presumed to 

understand the fiscal impacts of the bills it passes and that presumption is based on information provided by state agencies and 

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

only to require the full regulatory impact analysis for rules that 

are extraordinary in nature. While the SIP rules have a broad 

impact, that impact is no greater than is necessary or appropri, 

ate to meet the requirements of the FCAA. For these reasons, 

rules adopted for inclusion in the SIP fall under the exception in 

Texas Government Code, §2001.0225(a), because they are required by 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 

m the statute, the legislature is deemed to have accepted the 

agency's interpretation." Central Power & Ught Co. v. Sharp, 

919 S.W.2d 485, 489 (Tex. App. Austin 1995}, writ denied with 

per curiam opinion respecting another issue, 960 S.W.2d 617 

(Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 

(Tex. App. Austin 1990, no writ). Cf. Humble Oil & Reflning 

Co. v. Calvert, 414 .S.W.2d 172 (Tex. 1967); Dudney v. State 

Farm Mut. Auto Ins. Co., 9 S.W.3d 864, 893 (Tex. App. Austin 

2000); Southwestern Ute Ins. Co. v. Montemayor, 24 S.W.3d 

ADOPTED RULES January i9, 2010 35 Tex.Reg 651 
581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. 

Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 

(Tex. 1978). 

The commission's intei'Pretation of the regulatory impact analysis requirements is also supported by a change made to the 

Texas Administrative Procedure Act (APA) by the legislature in 

1999. In an attempt to limit the number of rule challenges based 

upon APA requirement;, the legislature clarified that state agencies are required to me1et these sections of the APA against the 

standard of"substantial compliance." The legislature specifically 

identified Texas Government Code, §2001.0225 as falling under 

this standard. The commission has substantially complied with 

the requirements of §2001.0225. 

Regardless of whether the adopted rulemaking constitutes 

a major environmental rule under Texas Government Code, 

§2001.0225(g)(3), a regulatory impact analysis is not required 

because this exemption is part of the commission's SIP for 

making progress toward the attainment and maintenance of 

the eight-hour ozone NAAQS in the DFW nonattainment area. 

Therefore, the adopted rule does not exceed a standard set 

by federal law or exceed an express requirement of state law 

since they are part of an overall regulatory scheme designed t~ meet not exceed the relevant standard set by federal law - the 

NAAQS. The commission is charged with protecting air quality 

within the state and with designing and submitting a plan to 

achieve attainment and maintenance of the federally mandated 

NAAQS. The Third District Court of Appeals upheld this interpretation in Brazoria County v. Texas Comm'n on Envtl. Quality, 

128 S.W. 3d 728 (Tex. App. -Austin 2004, no wrif). In addition, 

no contract or delegation agreement covers the topic that is 

the subject of this rulemaking. Finally, this rulemaking was not 

developed solely under the general powers of the agency but 

is authorized by specific sections of Texas Health and Safety 

Code, Chapter 382 (also kno~n as the Texas Clean Air Act), 

and the Texas Water Code, wh1ch are cited in the STATUTORY 

AUTHORITY section of this preamble, including Texas Health 

and Safety Code, §§382.011, 382.012, and 382.017. 

This rulemaking is not subject to the regulatory analysis prov~ 

s1ons of Texas Government Code, §2001.0225(b), for the followIng reasons. The adopted rulemaking is not a major environmental law because: 1) the specific intent of the adopted rule is not 

to protect the environment or reduce risks to human health from 

environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area; and 2) the adopted· rulemaking will hot adversely 

affect in a material way the economy, a sector of the economy 

productivity, competition, or jobs, nor will it adversely affect i~ a material way the environment or the public health and safety 

of the state or a sector of the state, because the lost NO emission reduction created by the adopted expanded exemption will 

be offset by NO, reductions from surplus fleet turnover. Furthermore, even if the adopted rulemaking was a major environmental 

rule, tt does not meet any of the four applicability criteria listed in 

Texas G_ovemment Code, §2001.0225 because: 1) the adopted· 

rulemakmg IS part of the Dallas-Fort Worth Eight Hour Ozone 

No~attamment Area Attainment Demonstration, and as such is 

des1gned to meet, not exceed the relevant standard set by federal law; 2) no contract or delegation agreement covers the topic 

that _is the subject of this rulemaking; and 3) the adopted rulemaking 1s authonzed by specific sections of Texas Health and 

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

Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY 

35 TexReg 652 January 29, 2010 Texas Register 

The commission invited public comment regarding the draft regulatory Impact analysis detennination during the public comment 

penod. No comments were received on the draft regulatory impact analysis. 

TAKINGS IMPACT ASSESSMENT 

The commission evaluated the adopted rule and performed an 

analysis of whether the adopted rule constitutes a taking under 

Texas Government Code, Chapter 2007. The commission determined that Texas Government Code Chapter 2007 does not appl¥ because this rulemaking provid~s for fair and consistent application of SIP rules 10 the DFW eight-hour ozone nonattainment 

area by ex~anding the exemption from Chapter 117, Subchapter B, DIVISion 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying 

ovens and curing ovens used in wet-laid, non-woven fiber mat 

manufacturing as well as low-temperature drying ovens used in 

mmer~l. wool-type fiberglass l!'anufacturing in which nttrogencontalmng resms or other additives are used. 

~nder Texas Government Code, §2007.002(5), taking means: 

'(A) a goyernmental action that affects private real property, in 

whol~ or 1n part or temporanly 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 Section 17 or 19 Article I, Texas Constitution; or (B) a governmental action that (i) 

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 (ii) 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 

of the property determined as if the governmental action is-in effect'' 

The specific purpose of the adopted rulemaking is to provide fair 

and consistent application of SIP rules in the DFW 1997 eighthour ozone nonattainment area. The current §117.403(a)(12) 

exempts cUiing ovens used in mineral wool-type fiberglass manufacturing in which nttrogen-bound chemical addttives are used. 

The current exemption was added in response to comments during the 2007 DFW 1997 eight-hour ozone nonattainment area 

rulemaking under Chapter 117, because of technical feasibility issues with controlling NO, emissions from curing ovens of 

this specific operation. While the type of manufacturing covered 

by the adopted rule is different from that specified in the current ~117.403~a)_(12) exemption, the technical feasibility issue 

descnbed IS s1m1lar. Therefore, the adopted rulemaking would 

substantially advance th1s stated purpose by expanding the exemption from Chapter 117, Subchapter B, Division 4 Dallas-Fort 

Worth Eight-Hour Ozone Nonattainment Area Majo~ Sources, to 

mclude low-temperature drying ovens and curing ovens used in 

wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives 

are used. 

Promulgation and enforcement of the adopted rule would be neither a statutory nor a constitutional taking of private real property. Because the adopted rule promulgates an exemption, it is 

less burdensome, restrictive, or limiting of rights to private real 

property than the existing rule. Furthermore, the adopted rule 

will benefrt the public by providing fair and consistent applica-
tion of SIP rules in the DFW 1997 ozone nonattainment area. 

The adopted rule does not affect a landowner's rights in private real property because this rulemaking does not burden, restrict, or limit the owner's right to property; nor does it reduce the 

value of any private real property by 25% or more beyond that 

which would otherwise exist in the absence of the regulations. In 

other words, these rules simply expand the existing exemption 

in §117.403 to include sources that have technological feaslbi~ 

ity issues similar to those of the sources covered by the current 

exemption. Therefore, the adopted rule does not constitute a 

taking under Texas Government Code, Chapter 2007. 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found it 

is a rulemaking identified in the Coastal Coordination AcUmplementation Rules, 31 TAC §505.11(b)(4), relating to rules subject 

to the Coastal Management Program, and wm, therefore, require 

that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process. 

The commission reviewed this rulemaking for consistency with 

the CMP goals and policies in accordance with the regulations of 

the Coastal Coordination Council and determined that the rulemaking is procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, 

consistent with CMP goals and policies. 

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received concerning the CMP. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

Chapter 117 is an applicable requirement under 30 TAC Chapter 

122, Federal Operating Permits Program. If the amendment is 

adopted by the commission, owners or operators subject to the 

federal operating permits program that elect to comply with the 

§117.403(a)(12) exemption may need to revise their operating 

permit. 

PUBLIC COMMENT 

A public hearing was scheduled September 17, 2009, at 2:00 

p.m., in Ennis, Texas. No oral comments were received. The 

comment period closed on September 28, 2009. A writtan comment was received from the EPA. 

RESPONSE TO COMMENT 

The EPA stated that it will provide comment on the commission §11 0(1) demonstration in its comment letter pertaining to the 

proposed Dallas-Fort Worth (DFW) Reasonably Available Control-Technology Update, 30 Texas Administrative Code Chapter 117 Rule Revision Noninterference Demonstration, and Attainment Demonstration Contingency Plan State Implementation 

Plan Revision. 

The commission thanks the EPA for its comment and looks forward to responding to any questions the EPA has concerning the 

§ 11 0(1) demonstration. No change was made to the rule. based 

on this comment. 

STATUTORY AUTHORITY 

The amendment is adopted under the authority of the following: Texas Government Code, §2001.021, Petition for the Adoption of Rules, which authorizes an interested person to petition 

a state agency for the adoption of a rule; Texas Water Code 

(TWC), §5.102, General Powers, §5.103, Rules, and §5.105, 

General Policy (these provisions authorize the commission to 

adopt rules necessary to carry out its powers and duties under 

the TWC); Texas Health and Safety Code (THSC), Texas Clean 

Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the 

TCAA; THSC, §382.002, Policy and Purpose, which establishes 

the commission's purpose to safeguard the state's air resources, 

consistent wtlh the protection of public health, general welfare, 

and physical property; THSC, §382.011, General Powers and 

Duties, which authorizes the commission to control the quality 

of the state's air; and THSC, TCAA, §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. 

The amendment is also adopted under THSC, §382.016, Monitoring Requirements; Examination of Records, which authorizes 

the commission to prescribe requirements for owners or operators of sources to make and maintain records of emissions 

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

methods and procedures; and THSC, §382.051 (d), Permitting 

Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits under THSC, Chapter 382. 

The adopted amendment implements THSC, §§382.002, 

382.011, 382.012, 382.016, 382.021, and 382.051(d). 

This agency hereby certifies that the adoption has been reviewed 

by legal counsel and found to be a valid exercise of the agency's 

legal authority. 

Filed with the Office of the Secretary of State on January 15, 

2010. 

TRD-201000159 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: February 4, 2010 

Proposal publication date: August 28, 2009 

For further information, please call: (512) 239-6090 

• 

TITLE 40. SOC 

TANCE 

• • 

SERVICES AND ASSIS· 

PART 1. DEP TMENT OF AGING 

AND DISABIL TY SERVICES 

CHAPTER 60. ONTRACTING TO PROVIDE 

PROGRAMS OF LL-INCLUSIVE CARE FOR 

THE ELDERLY ( 'ACE) 

40 TAC §60.12 

The Health and Huma Services Commission (HHSC), on behalf of the Department f Aging and Disabiltly Services (DADS), 

adopts an amendment §60.12, concerning client eligibiltly criteria, in Chapter 60, C ntracting 1o Provide Programs of All-Inclusive Care for the Eld rly (PACE), without changes to the proADOPTED RULES January 29, 2010 35 TexReg 653