Bryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner Carlos Rubinstein, 

### Commissioner Mark R. Vickery, P.G., 

### ExecutiveDirector 

# 10 FEB -8 Pli 2: 2I

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by

### Reducing andPreventing 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 ofthe 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 ofthese SIP revisions. IT, >< 

## ""' -I 

# ·= ;-:-1 :-;;::_] 

# = :;,:::: 

# -, )'.. r-'1


### ..-•,.· r 

### c.u ,. ..**,~-** );·., 

### c::; 

### _,., CJl :Z-2 iTI ;:,) 

### -o 

## <: <./) ::if: 

## rn BWS/rs 0 G) 

## c < U) U1 

### Enclosures C) 0 :::::


### cc: The Honorable Rick Perry, Governor ofTexas Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

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 OFTRAVIS

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 ofFederal Regulations § 

### 51.104.
I am the records administrator for the Air Quality Division ofthe Texas Commission on Environmental Quality.



### .

# ~**'-~1'-ti'L** D

__**DavidYY~** 

# lJ"" Director, Air Quality Division Texas Commission on Environmental QualityTexas 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 majorsources of nitrogen oxides (NOx) in the DallasFort Worth (DFW) ozone nonattainmentarea. 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 ofthis 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 OFPUBLIC HEARING ON PROPOSED REVISIONS TO 30 TAC CHAPTER 117 AND TO THE STATE IMPLEMENTATION PLAN The Texas Commission on Environmental Quality (commission) will conduct apublic hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 117, Control ofAirPollution from

· Nitrogen Compounds; SubchapterB,

Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone NonattainmentAreas; Division 4, Dallas-Fort Worth (DFW) Ozone NonattainmentArea Major Sources; Seetion J17.403(a)(J2) and to the

. state implementation plan underthe
! requirements ofTexas Health and

Safety Code, 0382.017; Texas GovernmentCode, Chapter 2001,

1 SubchapterB; and 40 Code of I Federal Regulations 051.102, ofthe

United States Environmental Protection Agency concerning state implementation plans. The proposed rulemakingwould amend 30 TAC SubchapterB, Division 4, 0117.403 (a)(12) to expand the exemption from the currentrule to include lowtemperature drying ovens and curing ovens used in wet-laid, non-woven
r fiber matmanufacturing 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-hourozone 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 recentDFW eight-hour ozone nonattainment arearulemaking UTKierChapter 117, aprovision was

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

response to commentto 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 ofthis specific operation. While the type of

. manufacturing is differentfrom that specified in the currentrule exemption, the technical feasibility issue described is similarto the issue thatis the basis ofthe current exemption in OJI7.403(a)(12). A public hearing for the proposed rulemaking and SIPrevisions 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 oforal orwritten comments by interestedpersons. Registration will begin 30 minutes prior.to the hearing. Individuals may presentoral statements wben called upon in order ofregistration. Atime limit may be established atthe hearing to assure that enough time is allowed for**ev~** interestedperson to speak There will be no discussion during the hearing; however, commission staffmembers 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 RegisterTeam, Office ofLegal Services, at (512) 239-0779. Requests shouldbe made as far in advance as possible. Comments may be submitted to Michael Panish, Texas RegisterTeam, Office ofLegal Services, Texas Commission on Environmental Quality,MC 205,P.O. Box 13087, Austin, Texas 78711-

. 3087, orfaxed to (512) 239-4808.

Electronic comments maybe 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 ProjectNumber 2009- 023-117-EN. Commentsmustbe received by September28, 2009. Copies ofthe proposed rules can be obtained from the commission's Web site athttp://www.tceq. state.tx.us/nav/rules/propose_ adopthtml. For further information, please contactBogdan 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 andPreventing Pollution


### NOTICE OF PUBLIC HEARING BYTHETEXAS 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 ofAir 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 ofTexas 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.
Theproposed rulemaking would amend 30 TAC SubchapterB, 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 ofnitrogen 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 ofthis 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 oforal orwritten comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order ofregistration. 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 ofLegal 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 mustbe 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, onAugust 12, 2009.your proposed adjustments to the etition. Requests for a contested case hearing must be submitted · writing to the Office ofthe 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 30days afterthe newspaper publication ofthis notice. Ifa he · g request is filed, the Executive Directorwill 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. 1Ifa contested case hearing is held, itwill be a legalproceeding simil 'to a civiltrial instate districtcourt. Writtenhearing requests shouldhel ubmittedto the Office ofthe Chief Clerk, MC 105, TCEQ, P.O. Box ' 087, Austin, TX 78711-3087. For information concerning the hearinQ: process, please contact the Public InterestCounsel,MC I03, atthe Slupe address. Foradditionalinformation, individualmembersof thegelltralpublicmaycontacttheDistricts Review Team, at (512) 239-469I.!j Si desea informacion en Espaiiol, puede 

### llamar al(512) 239-0200. G4neralinformationregardingTCEQ canbe 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 ofPublic Hearing on Proposed Revisions to 30 TAC Chapter 117 and to the State Implementation Plan The Texas Commission on Environmental Quality (commission) will conducta publichearingtoreceive testimonyregardingproposed**revi~** sions to 30 TAC Chapter 117, Control ofAir Pollution from Nitrogen Compounds; Subchapter B, Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment**AI~** eas; Division 4,**Dallas~**FortWorth (DFW) OzoneNonattainrnentArea Major Sources; §117.403(a)(12) and to the state hnplementation plan under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFederal Regulations §51.102, ofthe United States Environmental Protection Agency 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 usedin wet-laid,**non~woven** fiber mat manufacturing as well as low**tempera~** ture drying ovens used in mineral**wool~type** fiberglass manufacturing atmajorsourcesof nitrogenoxides (NO,)intheDFW**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, aprovisionwasaddedunder §117.403(a)(l2),inresponse to comment to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are usedbecause oftechnical feasibility issues with controllingNOx emissions from curing ovens ofthis specific operation. While the type of manufacturing is different from that specified in the current rule ex· emption, the technical feasibility issue described is similarto the issue that is the basis ofthe current exemptionin §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, at2:00 p.m. The hearingwillbe structuredforthe receipt oforal orwritten commentsbyinterestedpersons. Registration willbegin30minutespriortothehearing. Individualsmaypresentoral statements when called upon inorderofregistration. A time limitmay


## 34 TexReg 5976 August28, 2009 Texas Register be established atthe hearing to assure that enoughtime is allowed for every interested person to speak. There will be no discussion during the hearing; however, commission staffmembers 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 ofLegal 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 ofLegal Services, Texas Commission onEnvironmental 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 ofthe 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 ofPublic Hearing on Pr posed Revisions to 30 TAC Chapter 297 

## I ! The Texas Commission on Enviro ntal Quality (commission) will conducta public hearing to receive 1 stimony concerning proposed**re~** visions to 30 TAC Chapter297, erRights, Substaotive. The proposedrulemaking 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 waterrights permittingprocess!forthe use ofstatewaterfrom sedimentcontrol ponds to satisfy envirp.·nmental and safetyregulations for fire or dust suppression as**applica~le** to a surface coal mining operations. , The commission will hold a publi¢ hearing onthis proposal in Austin September 22, 2009 at 10:00 a.m.i:at the Texas Commission on**Envi~** rorunental Qnality Complex located at 12100Park 35 Circle in BuildingE, Room201S. Thehearingwillhe structuredfor thereceiptoforal or written comments by interested:persons. Registration willbegin 30 minutes priorto the hearing. Individuals may present oral statements when called upon in order ofregistration. There will be no open**dis~** cussion during_the hearing; howevet; commission staffmembers 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 applyto comments submitted: oughtheeCommentssystem. 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 AgencyF03.13. Audits. The Institute shall have the rightto 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 recinientrelatedto the erantm to nerform anaudit orotheraccountingnrocedures ofall exnenses lated directly orindirectlytothe**~** §703.14. Termination of Grants. 

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

### the contractbetween Institute and the e:rantrecinient onthe grounds thatthe recinienthas 'ailedto meet contractual obligations. 

### ill The Executive Director ball notify the grant recipient in writio• ofthe 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 ofthe decision to terminate. €703.15. Multiyear Projects. 

### f!l. The Oversight Commito may grantfunds for amultiyear proiectsubiecttothereauirementtha ·allfundsforthemultivearnroiect are awarded in the state fiscal vear t the nroiect is aouroved bv the Oversight Committee. 

### ill Oulvthose funds tobee !>endedduringthefiscal vearwill be distributed to the multiyear grant recipient. .(tl Funds approvedbythe C ersightCommitteeformultiyear projects not exneuded during the fis al vear shall be maintained in an escrow accountuntil such time that efunds are distributedfor**subse~** guent years ofthe project. .@. A recinient awarded a rant for a multivear nroiect mav fulfill the certification requirements et forth in §703.11 ofthis chap.. ter (relatiozto Requirement to D01 onstrate Available Funds) on a vear-bv-vear basis at the time ofth annual nroeress review or unon a schedule establishedbvthe contra< between the Institute andthe recipient. This agency herebycertifies that

### ~proposal has been reviewed by legal counsel and found to be v.ithinthe agency's legal authority to adopt 

### ! F1led With the Office ofthe Secreii'YofState on August 17, 2009. TRD-200903609 

## I William "Bill" Gimson Executive Director Cancer Prevention and Research In ltute ofTexas**Ea~lest** possible date of adoption: 5 !ember 27, 2009 Forfurther information, please call: ( 12) 463-3190 

# + + + TITLE 30. ENVIRONMENTAL QUALITY 

## PART 

## 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 117. CONTROL OF AIR POLLUTIONFROMNITROGEN COMPOUNDS SUBCHAPTER B. COMBUSTION CONTROL AT MAJOR INDUSTRIAL, COMMERCIAL,



## 34 TexReg 5866 August28, 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-FortWorth Eight-HourOzone NonattainmentArea Sources, curing ovens used in mineralwool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The commission approved the petitionfor rulemaking on JanuarY 28, 2009, and issued an orderon February 2, 2009, directing the executive directorto examine the issues in the petition and to initiate rulemaking. This proposed rulemaking would amend Chapter 117, Subchapter B, Division 4, §117.403 forthe Dallas-FortWorth (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 cannotbecontrolled 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. Ifthe rule revision is adopted, approximately 0.1 tons perday (tpd} ofanticipated 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} IssueThe 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 requirementfor 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 sixthat "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 ofthe 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 ofNO, in the DFWeight-hourozone 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 ofstationary 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 forthe 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 ofthis 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 ofthistype 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 surplusfleettumoverreductions. This replacement will be reflected in the commission's Discrete Emissions Reduclion Credits (DERC) limit determination for2010, consistentwith 30 TAC §101.379(c)(2)(A). Conclusion Based upon all data presentiy before the commission, it has been determined thatthere are sufficientcredits 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 bythe petitionerand directed bythe commissioners atthe January 28, 2009, agenda when the commission considered and granted the petition for rulemaking. Com· ments received related to other portions ofthe 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, SubchapterB. Division 4, Dallas-FortWorth Eight-HourOzone 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 exemptedfromthe requirements ofChapter 117, Subchapter B,**D~** vision 4. The provisions of Chapter 117, Subchapter B, Division 4 exempts units where the unittype, maximum rated capacity, or specific use either cannotfeasibly 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, sothis proposed change clarifies that nitrogen-containing resins would qualify forthis 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 August28, 2009 34 TexReg 5867rule 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-hourozone nonattainment area. NO, emissions from these types ofsources 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 oroperate 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 ofonlytwo businesses in the DFW eight-hourozone nonattainment area that might benefit from the proposed rule. The proposed rule might generate savings forthese 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 asmall business regulatoryflexibility 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 lightofthe regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the proposed rule does not meet the definition ofa "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental rule" is, "a rule the specific intent ofwhich is to protect the environment or reduce rtsks to human health from environmental exposure and that mayadversely affect in a material waythe economy, asectorofthe 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



## 34TexReg 5868 August28, 2009 Texas Register a regulatory impact analysis would not be required because the proposed rulemaking does not meet any ofthe 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 byfederal law, unlessthe rule is specifically required by state law; (2) exceeds an express requirement of state law, unless the rule is specifically required byfederal law; (3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative ofthe federal government to implement a state and federal program; or (4) adopts a rule solely under the general powers of the agency instead of under a specific state law." The proposed rulemaking implements requirements ofthe Federal Clean AirAct (FCAA). Under42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the 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 ofthe 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 statefrom 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 ofthe 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 oftechnical 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 furtherthe specific intent ofproviding fair and consistent application ofSIP 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 ofSIP 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 ofthis preamble, the proposed rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, orjobs, norwill 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 ofthis preamble. Because the proposed ruiemaking is not a major environmental rule, It is not subject to a regulatory impact analysis underTexas 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, orare adopted solely underthe general powers ofthe agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application.' The commission also noted thatthe number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. 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 meetthe 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. Ifeach rule proposed for inclusion in the SIPwas considered to be a majorenvironmental 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 'Ofthe 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 greaterthan is necessaryor appropriate to meetthe requirements ofthe FCAA. Forthese re;asons, rules adopted for inclusion in the SIPfell underthe exception in Texas Government Code, §2001.0225{a}, because they are required byfederal 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 anotherissue, 960 S.W.2d 617 {Tex. 1997}; Bullock 

### v. Marathon Oil Co., 798 S.W.2d 353, 357 {Tex. App. Austin 1990, no writ}. Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W;2d 172 {Tex. 1967}; Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 {Tex. App. Austin 2000}; Southwestern Life Ins. Co. 

### v. Montemayor, 24 S.W.3d 581 {Tex. App. Austin 2000, pet. denied); and Coastallndust. WaterAuth. 

### v. Trinity Portland Cement 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 orexceed an express requirement ofstate law, since the rule is part of an overall regulatory scheme designed to meet, not exceed the relevant standard set byfederal 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 ofthefederally 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 ofthis 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 AirAct {TCAA}}, and theTexas Water Code {TWC}, which are cited in the STATUTORY AUTHORITY section ofthis preamble, including THSC, §§382.011, 382.D12, and 382.017.



## PROPOSED RULES August28, 2009 34 TexReg 5869This ruiemaking is not subject to the regulatory analysis provisions ofTexas Government Code, §2001.0225{b), forthe following reasons. The proposed rulemaklng is not a major environmental law because: 1) the specific Intent of the proposed rule is notto protectthe environment or reduce risks to human health from environmental exposure, but ratherto 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, orjobs, nor will it adversely affect in a material waythe environment, orthe public health and safety ofthe state or a sector ofthe 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 ifthe 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 ofthe DFW SIP, and as such Is designed to meet, not exceed the relevant standard set byfederal law; 2) no contract ordelegation agreement ocvers the topic that is the subject of this rulemaking; and 3) the proposed rulemaking is authorized by speclflc sections ofTHSC, Chapter382, 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 ofthe governmental action, in whole or in part ortemporarily or permanently, in a manner.that restricts or limits the owner's right to the propertythatwould otherwise exist in the absence ofthe governmental action; and {ii) is the producing cause of a reduction ofat least 25% in the market value of the affected private real property, determined by ocmparing the market value of the property as ifthe governmental action is not in effect and the marketvalue ofthe property determined as ifthe governmental action is in effect."



## 34 TexReg 5870 August28, 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 neithera statutory noraconstitutional taking ofprivate 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 limHthe owner's right to property, nordoes 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 ofthe sources ocvered by the current exemption. Therefore, the rule will not ocnstitute ataking 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 subjectto the Texas Coastal Management Program {CMP) and will, therefore, require that goals and policies ofthe 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 ofthe Coastal Coordination Council and determined thatthe 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 ofthis ruiemaking may be submitted to the ocntact person at the address listed under the SUBMITTAL OF COMMENTS section ofthis preamble. EFFECT ON SITES SUBJECTTO 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 subjectto thefederal operating permits program that electtocomply 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 oforal orwritten comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication orotheraccommodation 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 forthe 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 AirAct (TCAA), §382.017, Rules, which authorizes the commission 

### to adopt rules consistent with the policyand purposes ofthe 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 ofthe 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 orregulations applicable to permits underTHSC, 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 theprovisions ofthis division (relating to Dallas-FortWorth Eight-Hour Ozone Nonattainment Area MajorSources), exceptas specifiedin §§117.440(i), 117.445(1)(4) and(9), 117.450, and 117.454 ofthis title (relating to Contiouous Demonstration ofCompliance; 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.)

# i~~(l~2~)**ilo~w~-te~m~pere~ture~~dryin~·~g=an~d** curing ovens used in mineral fiberglass manufacturing and wet-laid, non-woven in which nitrogen-containing resins. or other are used; (13)- (16) (No change.) (b) -(c) (No change.) This agency herebycertifiesthatthe proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office ofthe SecretaryofState 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 Forfurther 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, relatingtothe requirementthatcertai waterservice 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, requiresthataffected utilities prep ean emergency preparedness pian that shows that the utility as the ability to provide emergency operations and submtttha plan to the commission. TWC, §13.1396, outlines the coordinalion efforts among an affected utility, its countyjudge, and its olceofemergency management as well as each retail electric pro iderthat sells electric powerto an affected utility and each elect 'c utilitythat provides transmission and distribution service to a affected utility.



## PROPOSEDRULES August28, 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 RegisterTeam 

## Office ofLegal ServiceS (MC 205) Texas Co=issionon**EnviroJm~ental** 

## Ql!ality P.O. Box 13087 Austin, Texas 78711-3087

# ~-i.**f4'(~§h** ·. DearMr. 9"'1\.e: · . Thank you for the opportunityto conunent ontheproposed revision to 30 Texas Adi;ninistrative Code (TAC), Chapter 117, Control ofAirPollution from Nitrogen
c·.

### Co)!j]lq~~~~( 

## . : , . . ·The

## p~oposed rulemakingwould amend Chapter 117, "SubchapterB; 

## Division 4, 

## Section 17.403(a)(12). It

## appears that the revision·would exemptadditionalfacilities now . coveredunderthe currentrule. Theproposedrevision to 'Section ll-7.403(a)(12) reads "low-temperature drying and curing ovens usedinmineralwool-type :fiber.glass

. · manufacturing and wet-laid, non-woven fiber matmanufacturing in which nitrogencontaining'[bound chemical] res·ins, orotheradditives areused."

.

. Weunderstand thatTexas Govemment Code, 'Section2001;021, 

## establishes the ·procedures bywhich an interestedpersoni:naypetiti6i1.

# astate agencyfor the adoption of uuleand 30 TAC Section20.15

## ·provides suchprocedures;.however, in

## orderfor EPA tq · 

## be able to approve expansion ofan·existing .exemption .clause in a'State Implementation

. Plan (SIP) itmustbe shownthat'tb.e revision will complywith section 11

## 0(1) ofthe Cleai:J.

.AirAct, and corresponding SIP credits changes 

# aTflproperly accounted.for.

·· Weunderstand that·the Statehas included a:llO(l) demonstration in

## therevisiops to the Elalias"FortWor(hAttainment

## Demonstration·

# Sifl forthe l997:eight-hourozone standard 

## ProjectfNumber2008-016-SlP-NR. 

## Wewillprovide co:rliments.on**th~Tl**QQ) 

## demonstrationin

. · our coilimentletterfprthat

## 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. · · : - 

### . . .

·.... ·,:. 

### . ...**~:**



### . . . • 

### ...

. 

# .. 

## · · '·

. .i,., ·sincerelyyourS", ··'

,.j'.:

... : .,. 

## .'

. 

# ..**:;.:,<~**

# ..**J~·**

.. .

:.,,.,,., · i :·. •·.";_·:.·> .:·.. ,.:::.::. .. ;, ..;......,........... ··**~··;**

### ..: .. 

## GuyDoniildsen- · ...... ·.· ·· ·.:,**~** .....**_:-.~--~~:-** :: -·. ·.- ;·.**~ :~·-=** . ..:-i,-**:-:~~** .-:::.-\-

....**~.**:;:\

## :·3:r':,.· :->-·\:

....: .. ·**~** 

## :cme:t:·

...**·:=~-** 

### · .:-··. ··.-;\:': ·.: .• ·._, -. -. ·--

## ~· .AirPlal:u:ii.ngse:cii6h:';,,,.,> ':·

... _.



### . ' 

## ..

.. . · l;te;rietAddress (URL) • htlp:/twww.epa.gov

.**Recycl~'cY~e~ycl~ble**.• Printed**wit~** Vegetable Oil Based**~~~On**_Recycled**~aper** (MJnlmum**~5% Post~onsumer).**  

# W-1

I '

.**~** .



## ... .

.**~**

. .l

### 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.
Apublic hearing was scheduled for September 28, 2009 in Ennis, TX, at 2:00pm. At 1:30pm the room was open, TCEQ staffand 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 \

# '"=~-~~~ k(

# ~- 

# rv:-Q,3_/ (ll J

# -131J.

-- 

# d-.3l J 

# t?l\-'-- Yes 

# E2 0'··· 0'. \
....**~** /

# ~~ ''BV441-ll c!J72-- 8!>,-/-DL/of] 

# 6-rt.. Yes. 

# @)**c·~ ~** **C::~ae__** 

# rt2 I 

# 'osf-a**97;1·-8'7)..~** ...**~..-** '-' 

# d_36f' 

# c'-!1:: Yes("(NO) 

### '-



## ........- 

# J? l} 

# ] ot;\-:...:l_s.o 

# IV C)t 2. 

# i.f:t"l--- I I

# J-5 , r Yes 

# @

"-Q 

# Cfj;(ff 

# ;:::t4VJ !}(7-**~;;j's-~**

# 929& 

# JUCtz:·oy Yes

# ~)

- Yes No

. Yes No

·.

# EVALUATION OF

TESTIMONY

### To: ColDIIlissioners Date: December 18, 2009 Thru: · 

### LaDonna Castaiiuela; ChiefClerk MarkR. 

### Vickezy, P.G., Executive 

### Director From:

# ~usanaM. Hildebrand, P.E., ChiefEngineer
DocketNo.: 2009-0338-RUL Subject: CommissionApproval forRlll=•l<ingAdoption Chapter 117, Control ofAirPollutionfromNitrogen Compounds Exemption ofLow-TemperatureDrying and Curing 

## oVens inMineralWool-type Fiberglass Manufacturing inthe Dsllas-FortWorth (DFW) 

### OzoneNonattaimnentArea Rllle ProjectNo. 2009-023-117-EN · Backgroundandreason(s) for therulemaking: 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 onFebrualy2, 2009, directing the executive directorto 

### examine the 

### issues inthepetition and

. to

### initiaterulemaking.

The 

### adoptedrule amends Chapter 117, SubchapterB,Division4, §

### 117.403(a)(12) to 

### expandthe exemption fromthe 

### cum:ntrule to 

### include low-temperature drying ovens and curing ovens usedinwet-laid, non-woven fiber matmanufacturing, as well aslow-temperature drying ovens usedinmineral wool-type fiberglass manufacturing atmajor sources ofnitrogen oXides (NOx) 

### in

### the :OFW 1997 eight-hour ozonenonattainment 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

# ereused. In

### responseto 

### a commentfrom Owens Corning in

### the May 2007 Chapter 117rulerevisions, aprovisionwas addedllJlder §117.403(a)(12)to exempt curing oveil.s used in

### mineral wool-type fiberglass manufacturing inwhichnitrogen-bound chemical additives areusedbecause oftechnical feast'b:ility issues withcontrollingNOx emissions fromthe curing ovens ofthis specific operation. Whilethe type ofmanufacturing coveredbytheproposed amendmentis different fromthat specified inthe cumnt

### rule exemption, the-technical feasibilityissue describedis similar to

### the issuethatis thebasis ofthe currentexemptionin §117.403(a)(12). The

### additionofnitrogen-bound chemical additives contributes to

### the creation ofnon-combustion-relatedthermal NOxthat cannotbe controlledusingthe controlmethodologies the commissionhadidentified as appiopxiate for curing oyens usedin

### Inineral wool-type fiberglass manufacturing. In

### addition, the amount ofNOxfrom curing ovens of this type is estimatedtobe a 

### sxnall conttibutionto 

### the total

### NOx emissions 

### froin tbis industry. 

### Scope oftheproposedrulemaking: A) Summaryofwhat

### the

### ruJemaking will 

### do: The

### adoptedrulemaking will amend

### the major sourcerule for the DFW 1997 eight-hour ozonenonattaimnent area in 30 Texas Administrative Code (TAC) Chapter 117, SubchapterB, Division4, to 

### expandthe exemptionfromthe cum:ntruleto 

### includelow-temperature drying

### ovens andcuring ovens usedinwet-laid, non-wovenfibermatmanufacturing, as well as**low~temperature** 

### drying ovens used in

### xnineral wool-type

### Commissioners Page2 December 18, 2009 Re: DocketNo. 2009-0338-RUL fiberglass manufacturing. The adoptedrule will

### also revise therule language from "Iritrogen-bound chemical additives" to 

### "Iritrogen-containi.ngresins, or other additives." This adopted changewill 

### clarifythatIritrogencontainingresins will

### qualifyfor this exemptionbecauseresins mightnot always be considered an additive. B) 

### Scoperequired by

### federal regulations or state statutes: 

### None

. 

# ..C) 

### Additional staff

### recommendations 

### thatarenotrequiredby

### federalrule orstate

### statute: None. Statutory authority: 

### Texas GovernmentCode, §2001.021, establishes the procedures by

### which aninterestedpersonmaypetitiona 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 ofa 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, §382.002, Policy and Purpose, which establishes the commission'spurpose to 

### safegusrd the state's air

### resources, consistentwith 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 

### ofthe 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 ofthe state's air. 

### Also, 1HSC, §382.016, concerning Moni.toring 

### Requirements; Examination ofRecords, authorizes the 

### commissionto

### prescn'berequirements for owners·or operators ofsoin-ces to 

### make andmaintain

### records of emissions measurements; §382.021, concerning SamplingMethods and

### Procedures, authorizes the commissionto

### prescn'be the samplingmethods.and

### procedures; and 

### §382.051(d), concerni.ngPermitting Authority 

### ofCommission; RuJes, authorizes the commissionto 

### adoptrules as necessazy to 

### comply with changes in federal Jaw orreguJations applicable to

### permits underChapter382. Effect onthe: A) 

### Regulatedcommunity: 

### The adoptedrulemaking will

### affect owners and 

### operators oflow-temperature drying and 

### curing ovens used inmineral wool-type fiberglass manufacturing andwet-laid, non-wovenfibermatmanufacturing

### located at 

### major sources inthe DFWeight-hour ozonenonattainmentarea. In

### additionto

### the

### petitioner, one other major sourceinthe DFWeight-hour ozonenonattaimnent

## areamight alsobenefit

## fromthisproposed exemption if 

### the manufactureruses Iritrogen-containingresins or otherIritrogen-contsining additives. However, staffdoes nothave specificinformationto determine 

### whetherthe drying ovens located atthis 

### site wouJd also qualify

### for this

### revised exemption. The source categories affectedby

### thepetitioner's request are requiredto 

### complywiththe Chapter 117rulerequirements by

### March 1, 2010. B)

### Public: There 

### will

### beno impactonthepublic. C) Agencyprograms:**~.;** 

### Commissioners Page3 December 18, 2009 Re: 

### DocketNo. 2009-0338-RUL 

### There 

### areno anticipatedimpacts 

### on agencyprograms. Stakeholdermeetings: 

### 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 ofthe 

### Texas Register (33 Te:xReg 5866). The 

### commentperiod

### closed September 28, 2009.

• The 

### commission received a written 

### comment from 

### the United States Environmental Protection Agency (EPA). 

### The following is summary 

### ofthe 

### comment The 

### EPA

### providedacommenton the

### commissions' §

### 110(1) 

### demonstrationin

### its commentletterpertainingto the

### proposedDFW 1997 

### Eight-Hour OzoneAttainment

### Demonstration SJP. The commission thanks EPAfor its comment, andlooks forward to responding to any questions the EPA has concerningthe §110(1) demonstration. No change was made to the rule basedon this comment. Significantchanges fromproposal: 

### None. Potential controversial concerns and legislativeinterestremaining afterproposalandpublic comment: 

### None. Does this 

### rulemaking affect

### anycurrentpolicies orrequiredevelopment ofnewpolicies? 

### None. Whatarethe consequences ifthis 

### rulemaking does not go forward? Arethere alternatives to 

### rulemaking? ' The 

### affectedregulatedentities wouldnotbe able to use 

### low-temperature drying 

### and 

### curing ovens inmineral 

### wool-type fiberglass manufacturing andwet-laid, non-wovenfibermatmanufacturing in

### the 

### DFW ozone nonattainmentarea. The 

### operators/owners mightbe forced toreduce the

### production levels or shutdown their 

### operations altogether in

### orderto complywith Chapter 117 

### SubchapterB, 

### Division4. Key

### points inadoptionrulemaking schedule: Texas Registerproposalpublication date: August28, 2009 Anticipated Texas Registerpublication date: 

### January 29,2010 Anticipated effective date: February4, 2010 Six-month TexasRegisterfiling**deadlio~:** 

### March 

### 1,2010

### Commissioners Pagc4 December 18, 2009 Re: 

### DocketNo. 2009-0338-RUL 

### Agency contacts: Ray Schubert, RDle Project

### Manager, 239-6615, 

### AirQuality

### Division. Tucker

### Henson, StaffAttorney, 239-0946 MichaelParrish, Texas Register Coordinator, 239-2548 

### 'Attacbments (Supportinginformationincluding copies offederalregulations or state legislation if

### applicable)

cc: ChiefClerk, S

### copies Executive Director's Office SusanaM. Hildebrand, 

### P.E. KevinPatteson Curtis 

### Seaton Daniel Womack Office ofGeneral 

### Counsel 

### Ray Schubert Michael Parrish ,ill

.........:.,

### EVALUATION 

## OJI TESTIMONY

The Texas Commission onEnvironmental Quality (commission or agency) adopts the amendment to 

### §117.403 

### withoutchanges to the proposed text as published in the August 28, 2009, issue ofthe 

### Texas Register (34 TexReg 5866).

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

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

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FORTHEADOPTED
RULE On December 11, 2008, Elk Corporation ofTexas submitted a petitionfor rulemaking requesting an amendmentto §117.403, which currently exempts from Chapter 117, Subchapter B, Division 4, Dallas-FortWorthEight-Hour Ozone NonattainmentAreaMajor 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 directorto examine the issues in the petition andto initiate rulemaking.

The adopted rule will amend Chapter 117, SubchapterB, Division 4, 

### §117.403, for the DallasFortWorth (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 matmanufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containingresins orother 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 commentbyOwens 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 oftechnical feasibility issues with controlling nitrogen oxide (NOx) emissions from curing ovens ofthis specific operation. While the type ofmanufacturing covered bythis adopted rulemaking is different from that specified in the currentrule exemption, thetechnical feasibility issue described is similar tothe issue that is the basis ofthe current exemption in §117.403(a)(12). The addition ofnitrogen-bound chemical additives contributes to the creation ofnon-combustionrelated thermal NOx that cannotbe controlled using the control methodologies the commission identified as appropriate for curing

ovens used in mineral wool-type fiberglass manufacturing. In

### addition, theNOx emissions from curing ovens ofthis type are estimatedto be a small contributiontothetotal NOx emissions from this industry. If 

### the rule revision is adopted, approximately 0.1 tons per day (tpd) of anticipated NOx emissionreduction will needto bereplaced in the 2007 DFW eight-hour ozone attainment demonstration SIP revision.

DEMONSTRATINGNONINTERFERENCEUNDERFEDERAL CLEANAIRACT, 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 impactthe status ofthe state's attainment with the ozone National Ambient AirQuality Standard (NAAQS).

The requirement for reasonable notice andpublic hearing was satisfied through a public hearing held on September 17, 2009, andthe public commentperiod, held from August 28, 2009, to September 28, 2009. The purpose ofthe hearing wasto accept written and oral comments on the



### 2

### proposed rulemaking. A written commentwas submitted bythe EPA. The EPA statedthat it will provide comment onthe commissions' 

### §110(1) demonstration in its comment letter pertainingto theproposedDFWReasonably Available Control-TechnologyUpdate, 30 Texas Administrative Code Chapter 117 Ru1e Revision Noninterference Demonstration, and Attainment Demonstration ContingencyPlan State ImplementationPlanRevision.

TheEPA issued draft guidance on June 8, 2005, titled "DemonstratingNoninterference Under Section 110(1) ofthe CleanAirActWhenRevising a State Implementation Plan." The guidance
states on page sixthat "areas have two options available to demonstrate noninterference for the affected pollutant(s)." Thispreambleprovides details ofthe identified existing measuresthatthe commission willuse to establish compliance with option one oftheEPA's guidance: substitution ofone measureby another with equivalent or greater emissions reduction/air quality benefits.



### Background
On May 23, 2007, the commission adopted a new Chapter 117, SubchapterB, Division 4, Dallas-Fort Worth Eight-Hour Ozone NonattainmentArea Major Sources, with newemission control requirements for major industrial, commercial, or institutional (ICI) sources ofNOx in the DFW 1997 eight-hour ozone nonattainment area. Thisrulemaking was part ofthe DFW 1997 eight-hour ozone attainment demonstration, andthe emission reductions associated with the rulemaking will help bringthe DFW 1997 eight-hour ozone nonattainment area into compliance withthe eight-hour ozone NAAQS.

The new SubchapterB, Division4 requires owners or operators ofmajor ICI sources ofNOxin the DFW 1997 eight-hour ozone nonattainment areatoreduce NOx emissions from a wide variety ofstationary sources. One source categorynewlyregulated under Chapter 117 during



### 3

### the 2007 rulemaking was curing and dtying ovens used in mineral wool-type fiberglass manufacturing. 

### Inresponse to comments made by Owens Corning during the commentperiod for the adoptedrulemaking 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 oftechnical feasibility issues with controlling NOx emissions from curing ovens ofthis specific operation.

Whilethetype ofmanufacturing coveredbythis adopted rulemaking is different from that specifiedby Owens Corning inthe priorrulemaking, the petitioner's fiberglass manufacturing
process has the same technical feasibility issue that is the basis ofthe current exemption in 

### §117.403(a)(12). The addition ofnitrogen-bound chemical additives contributestothe creation ofnon-combustion-related thermal NOx that cannotbe controlledusing the control methodologies the commission had identified as appropriate for curing ovens used inmineral wool-type fiberglass manufacturing. 

### In addition, the amount ofNOx from curing ovens ofthis type are estimatedto be a small contributionto the total NOx emissions from this industry.



### Ifthis rulemaking is adopted, approximately 0.1 tpd ofNOx emissionreductions will needto be replaced inthe 2007 DFW 1997 eight-hour ozone attainment demonstration SIP. The commission will replace the 0.1 tpd ofNOxreduction 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, consistentwith 30TAC §I01.379(•;)(2)(A).



### Conclusion Based upon all datapresentlybeforethe commission, ithas been determinedthatthere are sufficient c:redits inplace to offsetthe shortfall from expandingthe exemption in



### 4

### §117.403(a)(l2). The replacementreductions adoptedbythe commission in this rulemaking are achieved from motorvehicle fleet turnoverthat are ground-level emission sources.

SECTIONBY SECTION DISCUSSION The adopted rulemaking will amend Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone NonattainmentAreaMajor Sources. The adopted rule will expandthe
currentexemption 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-containingresins or other additives are used.



### Section 117.403, Exemptions Section 117.403 specifies unit types, sizes, oruses that are exempted from the requirements of Chapter 117, SubchapterB, Division4. The provisions ofChapter 117, Subchapter B, Division
4 exempts units where the unittype, maximum rated capacity, or specific use eithercannot feasibly comply with the specifications due to technical oreconomic restraints or are regulated under another division.

The commission adopts the amendment to §117.403(a)(l2) byexpanding the current exemption
to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber
matmanufacturing 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 2007revisions 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 oftechnical feasibility issues with



### 5

### controlling NOx emissions from curing ovens ofthis specific operation. The manufacturing
process covered bythisrulemaking is different from the process covered bythe current §117.403(a)(l2) exemption, butthe technical feasibility issue is similar.

The adopted rule will also revise the rule language from "nitrogen-bound chemical additives" to "nitrogen-containingresins, or other additives." Resins maynot always be considered an additive, so this adopted change clarifies thatnitrogen-containingresins will qualify for this exemption.

FINAL REGULATORY IMPACTANALYSIS DETERMINATION The commission reviewed this rulemaking in light ofthe regulatory analysis requirements of
Texas Government Code, §2001.0225 and determined thatthe adopted rule does not meetthe defmition ofa "majorenvironmental rule." Texas Government Code, §2001.0225 states that a "majorenvironmentalrule" is, "arule the specific intent ofwhich is to protectthe environment

orreduce risks to human health from environmental exposure and thatmay adversely affectin a material way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state ora sector ofthe state." Furthermore, whilethe adopted rulemaking does not constitute a major environmental rule, even ifit did, a regulatory impact analysis would notbe required because the adopted rulemaking does notmeet
any ofthe four applicability criteriafor requiring a regulatory impact analysis for a major environmental rule. Texas Health and Safety Code, §2001.0225 applies onlyto a major environmental rule which, "(1) exceeds a standard setbyfederal law, unless the rule is specificallyrequired by state law; (2) exceeds an express requirement ofstate law, unless the rule is specifically required by federal law; (3) exceeds a requirement ofa delegation agreement

or contract betweenthe state and an agency orrepresentative ofthe federal government to

6

### implement a state and federal program; or (4) adopts a rule solely underthe general powers of the agency instead ofunder a specific state law."

The adopted rulemaking implements requirements ofthe 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 ortechniques (including economic incentives such as fees, marketable permits, and auctions ofemissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate 

## to meetthe applicable requirements ofthis chapter," (meaning Chapter 85, Air

### Pollution Prevention and Control, otherwise known as the FCAA). The provisions ofthe FCAA recognize that states are in the · bestposition to determine what programs and controls are necessary or appropriate in orderto
meet the NAAQS. This flexibility allows states, affected industry, and the public 

## to collaborate

on the best methods for attaining the NAAQS 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 aprogram that meets the requirements of42 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, attainment, maintenance, and enforcement of the NAAQS within the state.

The specific intent ofthe adopted rulemaking is to provide fair and consistent application ofSIP 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
inresponse to comments during the 2007 DFW 1997 eight-hour ozone nonattainment area rulemaking under Chapter 117, because oftechnical feasibility issues with controlling NOx emissions from curing ovens ofthis specific operation. While thetype ofmanufacturing covered bythis adopted rulemaking is different from that specified in the current 

### §117.403(a)(12) rule exemption, thetechnical feasibility issue described is similar. To further the specific intent ofproviding fair andconsistent application ofSIP rules in the DFW 1997 eight-hour ozone nonattainment area, the adopted rule will broaden the current exemptionto Chapter 117, SubchapterB, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment· AreaMajor Sources to include low-temperature drying ovens and curing ovens used in wet-laid,

non-woven fiber matmanufacturing as well as low-temperature drying ovens used inmineral wool-type fiberglass manufacturing in which nitrogen-containingresins 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 ofthe adopted rule is not to protectthe environment orreduce risks to human health from environmental exposure, but ratherto provide fair and consistent application ofSIP 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 waythe economy, a sector ofthe economy, productivity, competition, orjobs, nor will the adopted rules adversely affect in a material way the environment, orthe public health and safety ofthe state or a sector ofthe state, becausethe lostNOxemissionreduction created bythis adopted expanded exemption will be offsetbyNOx reductions from surplus fleet turnover as discussed previously in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FORTHE ADOPTED RULE section. Becausethe

8

### adopted rulemaking is not a majorenvironmental rule, it is not subjectto a regulatory impact analysis under Texas Government Code, §2001.0225.

While this rulemaking does not constitute a major environmental law, even 

### ifit did, itwould not be subject to a regulatory impact assessment under Texas Government Code, §2001.0225. The requirement to provide a fiscal analysis ofregulations in the Texas Government Codewas 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 ofextraordinary rules. These are identified in the statutory language as majorenvironmental rules that will have a material adverse impact and will exceed a requirement ofstate law, federal law, ora delegated federal
program; or are adopted solelyunderthe general powers ofthe agency. Withthe understanding that this requirement would seldom apply, the commissionprovided a cost estimate for SB 633 that concluded: "based on an assessment ofrules adopted bythe agency in the past, it is not anticipated thatthe bill will have siguificant fiscal implications for the agency due to its limited application." The commission also noted that the number ofrules that would require assessment underthe provisions ofthe bill was not large. This conclusion was based, inpart, onthe criteria
set forth in the bill that exemptedrules 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, orreductions in orderto meet the NAAQS; thus, states must develop programs for each nonattainment areatohelp ensurethat those areas will meet the attainment deadlines. Because ofthe ongoing need to address nonattainment issues to meet therequirements of42 USC, §7410, the commission routinely
proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. 

### If
eachrule adopted for inclusion in the SIP was considered to be a majorenvironmental rule that exceeds federal law, then every SIP rule wouldrequire the full regulatory impact analysis



### 9

### contemplated by SB 633. This conclusion is inconsistent withthe conclusions reached bythe commission in its cost estimate and by the Legislative BudgetBoard (LBB) in its fiscal notes. Sincethe legislature is presumed to understandthe fiscal impacts ofthe bills it passes and that presumption is based on information providedby state agencies and the LBB, the commission believes thatthe intent ofSB 633 was onlyto require the full regulatory impact analysis for rules that are extraordinary innature. While the SIP rules have a broad impact, that impact is no greater than is necessary orappropriate to meetthe requirements oftheFCAA. Forthese

reasons, rules adopted for inclusion in the SIP fall underthe exception inTexas Government Code, §2001.0225(a), becausethey are requiredby fed;o.allaw.

The commission has consistently appliedthis construction to its rules since this statute was enacted in 1997. Since thattime, thelegislature has revised the Texas Government Code but left this provision substantially unamended. It is presumedthat, "when an agency interpretation is in effect atthe timethe legislature amends the laws withoutmaking substantial change inthe statute, the legislature is deemed to have accepted the agency's interpretation." 

### CentralPower & 

### Light Co. v. Sharp, 919 S.W.2d485, 489 (Tex. App. Austin 1995), 

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

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

### CfHumble Oil & 

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

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

### Southwestern LifeIns. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000,

### pet. denied); and 

### CoastalIndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d916 (Tex. 1978).

The commission's interpretation ofthe regulatory impact analysis requirements is also supportedby a change made to the TexasAdministrativeProcedure Act (AP A) bythe legislature in 1999. 

### In an attempt to limitthenumberofrule challenges based upon AP A

10

### requirements, the legislature clarifiedthat state agencies are required to meet these sections of the AP A againstthe 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 therequirements of§2001.0225.

Regardless ofwhetherthe adopted rulemaking constitutes a major enviromnental rule under
Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis is notrequired because this exemption is part ofthe commission's SIP for making progress toward the attaimnent and maintenance ofthe eight-hour ozone NAAQS in the DFW nonattaimnent area. Therefore, the adopted rule does not exceed a standard setby federal law or exceed an express requirement ofstate law, since they arepart ofan overall regulatory scheme designed to meet,
not exceed the relevant standard setby 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 ofthe federally mandated NAAQS. The Third District Courtof 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 ordelegation agreement covers the topic that is the subject ofthis rulemaking. Finally, this rulemaking was
not developed solely underthe general powers ofthe agency, but is authorized by specific sections ofTexas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORYAUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.Ql 1, 382.012, and 382.017.

This rulemaking is not subjectto theregulatory analysis provisions ofTexas Government Code, §2001.0225(b ), for the following reasons. The adopted rulemaking is not a major enviromnental law because:!)the specific intent ofthe adopted rule is notto protectthe enviromnent or reduce risks to human health from enviromnental exposure, butrathertoprovide fair and



### II

### consistent application ofSIP rules in the DFWeight-hour ozone nonattainment area; and 2)the adopted rulemaking will not adversely affect in a material way the economy, a sector ofthe
economy, productivity, competition, orjobs, nor will it adversely affect in a material waythe environment, orthe publichealth and safety ofthe state or a sector ofthe state, because the lost NOx emissionreduction createdbythe adopted expanded exemption will be offsetbyNOx reductions from surplus fleet turnover. Furthermore, even ifthe adopted rulemaking was a major environmental rule, it does not meet any ofthe four applicability criteria listed in Texas Government Code, §2001.0225 because: I) the adoptedrulemaking is part ofthe Dallas-Fort Worth Eight Hour OzoneNonattainment AreaAttainment Demonstration, and as such is designed to meet, not exceed the relevant standard setby federal law; 2)no contract or delegation agreement covers the topicthat is the subject ofthis rulemaking; and 3)the adopted rulemaking is authorized by specific sections ofTexas Health and Safety Code, Chapter 382 (also known as the Texas Clean AirAct), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY.

The commission invitedpublic comment regarding the draft regulatory impact analysis determination during the public commentperiod. No comments were received on the draft regulatory impact analysis.

TAKINGS IMPACTASSESSMENT The commission evaluatedthe adopted rule and performed an analysis ofwhetherthe adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The commission determined that Texas Government Code,Chapter2007 does not applybecausethis rulemaking provides for fair and consistent application ofSIP rules in the DFWeight-hour ozone nonattainment area by expandingthe exemption from Chapter 117, SubchapterB, Division4, 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 orother additives are used.

UnderTexas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in part ortemporarily orpermanently, in a mannerthat requires the governmental entityto compensate the private real property owneras provided by the Fifth and FourteenthAmendments tothe 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 ofthe governmental action, in whole or inpart ortemporarily or permanently, in a mannerthatrestricts or limits the owner's right tothepropertythat would otherwise exist in the absence ofthe governmental action; and 

### (ii) is the producing cause ofa reduction ofat least 25% in the market value ofthe affected private real property, determined by comparingthe market value ofthe property as ifthe governmental action is not in effect and the market value ofthe property determined as ifthe governmental action is in effect."

The specific purpose ofthe 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 arearulemaking under Chapter 117, because oftechnical feasibility issues with controlling NOx emissions from curing ovens ofthis specific operation. While thetype ofmanufacturing covered bythe adopted rule is different from that specified in the current §117.403(a)(l2)exemption, thetechnical feasibility issue described is similar. Therefore, the adopted rulemaking would substantially advance this statedpurpose by expanding the exemption from Chapter 117, Subchapter B, Division4,



### 13

### Dallas-Fort Worth Eight-Hour Ozone NonattainmentAreaMajor Sources, to include lowtemperature drying ovens and curing ovens used 

### inwet-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 ofthe adopted rule would be neither a statutory nor a constitutionaltaking ofprivatereal property. Becausethe adopted rule promulgates an exemption, it is less burdensome, restrictive, or limiting ofrights toprivate real propertythan the existingrule. Furthermore, the adopted rule will benefitthe public by providing fair and consistent application ofSIP rules in the DFW 1997 ozone nonattainment area. The adopted rule does not affect a landowner's rights inprivate real propertybecause this rulemaking does
not burden, restrict, or limitthe owner's right 

### to property; nor does it reduce the value ofany private real propertyby25% ormore beyond that which would otherwise exist in the absence of the regulations. 

### In otherwords, these rules simply expand the existing exemption in §117.403 to include sources that have technological feasibility issues similarto those ofthe sources covered by 

### the current exemption. Therefore, the adopted rule does notconstitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITHTHE COASTALMANAGEMENTPROGRAM The commissionreviewed the adopted rulemaking and found it is a rulemaking identified in the Coastal Coordination ActImplementation Rules, 31 TAC §505.ll(b)(4), relating 

### to rules subjectto the Coastal Management Program, and will, therefore, require that goals andpolicies ofthe Texas Coastal Management Program (CMP) be considered during the rulemaking
process.

14

### The commissionreviewed this rulemaking for consistency with the CMP goals and policies in accordance withthe regulations ofthe Coastal Coordination Council and determined thatthe rulemaking is procedural in nature and willhave no substantive effect on commission actions subjectto the CMP and is, therefore, consistent with CMP goals and policies.

The commission invitedpublic comment regarding the consistency withthe CMP during the public commentperiod. No comments werereceived concerningthe CMP.

EFFECTON SITES SUBJECTTO THE FEDERAL OPERATING PERMITS PROGRAM Chapter 117 is an applicablerequirement under 30 TAC Chapter 122, Federal Operating Permits Program. 

### If the amendment is adoptedbythe commission, owners or operators subject
to the federal operating permits program thatelectto comply withthe 

### §117.403(a)(12) exemptionmayneed torevise their operating permit.

PUBLIC COMMENT
A public hearing was scheduled September 17, 2009, at2:00p.m., inEnnis, Texas. No oral
comments were received. The commentperiod closed on September 28, 2009. A written
commentwas received from the EPA.

RESPONSE TO COMMENT The EPA statedthat itwill provide comment on the commission §II0(1) demonstration in its
comment letterpertainingto theproposed Dallas-FortWorth (DFW) Reasonably Available Control-TechnologyUpdate, 30 Texas Administrative Code Chapter 117 Rule Revision NoninterferenceDemonstration, and AttainmentDemonstration ContingencyPlan State Implementation Plan Revision.

15

### The commission thanks the EPAfor its comment and looks forward to responding to any questions the EPA has concerning the §110(1) demonstration. No change was madeto the
rule based on this comment.

STATUTORYAUTHORITY The amendment is adopted underthe authority ofthe following: Texas Government Code, §2001.021, Petition for the Adoption ofRules, which authorizes an interested person to petition

a state agency for the adoption ofa rule; Texas WaterCode (TWC), §5.102, General Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorize the commissionto adopt rules necessary to carry out its powers and duties underthe TWC); Texas Health and Safety Code (THSC), Texas CleanAirAct (TCAA), §382.ot7, Rules, which authorizes the commissionto adopt rules consistent withthe policy and purposes ofthe TCAA; THSC, §3 82.002, Policy and Purpose, which establishes the commission's purpose to safeguard the
state's airresources, consistent with the protection ofpublic health, general welfare, and physical property; THSC, §382.otI, General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; and THSC, TCAA, §382.ot2, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive planfor the control ofthe state's air.

The amendment is also adopted under THSC, §382.016, Monitoring Requirements; Examination ofRecords, which authorizes the commission to prescribe requirements for owners

or operators ofsourcesto make andmaintainrecords. ofemissions measurements; THSC, §382.021, SamplingMethods and Procedures, which authorizes the commissionto prescribe samplingmethods and procedures; and THSC, §382.051(d), PermittingAuthority of Commission; Rules, which authorizes the commissionto adopt rules as necessary to comply with changes in federal laworregulations 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 MAJORINDUSTRIAL, COMMERCIAL, AND INSTITUTIONAL SOURCES IN OZONE NONATTAINMENTAREAS DMSION4: DALLAS-FORT WORTH EIGHT-HOUR OZONE NONATTAINMENT AREA MAJOR SOURCES §117.403



### §117.403. Exemptions.

(a) Units exempted from the provisions ofthis division (relating to Dallas-Fort Worth Eight-Hour Ozone NonattainmentAreaMajor Sources), except as specified in §§117.440(i), 117.445(f)(4) and (9}, 117.450, and 117.454 ofthis title (relatingto Continuous Demonstration ofCompliance; Notification, Recordkeeping, andReporting Requirements; Initial ControlPlan Procedures; and Final Control Plan Procedures for AttainmentDemonstration Emission Specifications}, include the following:



### (1) industrial, commercial, or institutional boilers orprocess heaters with a maximum rated capacity equalto or less than:

(A) 2.0 million British thermal units perhour (MMBtulhr) for boilers; and

(B) 5.0 MMBtulhr for process heaters;

(2) heat treating furnaces andreheat furnaces with a maximum rated capacity less than 20 MMBtulhr;



### 1

### (3) flares, incinerators with a maximum rated capacity less than 40 MMBtulhr, pulping liquorrecovery furnaces, sulfurrecovery units, sulfuric acidregeneration units, molten sulfur oxidation furnaces, and sulfur plantreaction boilers;

(4) dryers, heaters, orovens with a maximum capacity ofS.O MMBtulhr or less;

(5) any dryers, heaters, or ovens frred on fuels otherthan natural gas. This exemption does not applyto gas-frred curing ovens used for theproduction ofmineral wool-type ortextile-type fiberglass;

(6) any glass, fiberglass, and mineral wool melting furnaces with a maximum rated capacity of2.0 MMBtulhr or less;

(7) stationary gas turbines and stationary internal combustion engines, that are used as follows:

(A) inresearch and testing;

(B) for purposes ofperformance verification andtesting;

(C) solelyto power otherengines orgas turbines during startups;



### (D) exclusively in emergency situations, exceptthat operation for testing or maintenance purposes is allowed for up to 100hours peryear, based on a rolling 12-month average. Any

new, modified, reconstructed, orrelocated stationary diesel engine placed into service on orafterJune 1,


### 2

### 2007, is ineligible for this exemption. Forthe purposes ofthis subparagraph• theterms "modification" and "reconstruction" havethe meanings defined in §116.10 ofthis title (relatingto General Defmitions) and 40 Code ofFederal Regulations (CFR) §60.15 (December 16, 1975), respe1;tively, andthe term "relocated" meansto newly install at an account, as defined in§101.1 ofthis title (relating to Definitions),

a used engine from anywhere outside that account;

(E) inresponse to and during the existence ofany officially declared disaster or
state ofemergency;

(F) directly and exclusively bythe owner or operatorfor agricultural operations
necessary for the growing ofcrops orraising offowl or animals; or

(G) as chemical processing gas turbines;

(8) any stationary diesel engine placed into service beforeJune 1, 2007, that:

(A) operates less than 100 hours peryear, based on a rolling 12-month average; and

(B) has notbeen modified, reconstructed, orrelocated on or after June 1, 2007.
Forthe purposes ofthis subparagraph, the terms "modification" and "reconstruction" have the meanings defmed in §116.10 ofthis title and 40 CFR §60.15 (December 16, 1975), respectively, andtheterm "relocated" meansto newly install at an account, as defmed in §101.1 ofthis title, a used engine from anywhere outsidethat account;

3

### (9) any new, modified, reconstructed, orrelocated stationary diesel engine placed into servic1' on orafterJune 1, 2007, that:

(A) operates less than I00 hours peryear, based on a rolling 12-month average, in otherthan 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 ofinstallation, modification, reconstruction, orrelocation. Forthe purposes ofthis parll;graph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 ofthis 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 thatwere regulated as existing facilities by40 CFR
Part266, Subpart 

### H, as was in effect onJune 9, 1993;

(II)brick orceramic 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 inmineral wool-type fiberglass manufacturing; and

(16)natural gas-fired heaters used exclusively for providing comfortheatto areas designed for human occupancy.

(b) Increment ofprogress exemptions.

(1) Stationary, reciprocating internal combustion engines with a maximumrated capacity less than 300 horsepower are exempt from the emission specifications in §117.410(a) ofthis title (relating
to Emission Specifications for Eight-HourAttainmentDemonstration).

(2) The emission specifications in §117.41O(a) ofthis title no longer apply to any stationary, reciprocating internal combustion engine subjectto the emission specifications of§117.41O(b) ofthis title after the compliance date specified in §117.9030(b) ofthis title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment AreaMajor Sources)

..

(3) Stationary engines that are demonstrated to operate less than 850 hours peryear, based on a rolling 12-month average are exemptfrom the emission specifications in §117.410(a) ofthis title.

(c) Emergency fuel oil firing exemption for gas-fired boilers. The emission specifications in §117.410(b)(1) and (d) ofthis title do not applyto gas-fired boilers during periods thatthe owneror 

### 5

### operator is required to frre fuel oil on an emergencybasis due tonatural gas curtailment orother
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 of72 hours in any calendarmonth specified
inparagraph (1) ofthis 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 ofthe 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 ofinterested 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 ifset 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 ofthis 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 ofthe Commission required bythe Administrative Procedure Act, Tex. Gov't Code, § 

### 2001.033 (Vernon 2008). If any portion ofthis Order is for any reason held to be invalid by a court ofcompetentjurisdiction, the invalidity ofany portion shall not affect the validity ofthe remaining portions.

Date issued: 

# JAN 

# 15 2 Q



# 10 TEXAS COMMISSION ON ONMENTALQU 

# ClA\.W Bry haw, Ph.D., ChairmanG) Providing false c!mu;cates ofcompletion or any otherfalse infonnation to the Board m result in denial ofthe applicant's exam· ination application and may suit in additional disciplinary action, as provided by the Plumbing ·cense Law, Board Rules orother laws of this state. This agency hereby certifi sthatthe adoption has been reviewed by legal counsel and fou 

### to be avalid exercise ofthe 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 Forfurther information, plea e call: (512) 936-5224 

# • • 

# • TITLE 30. ENVIRONMENTAL QUALITY 

## PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 117. CONTROL OF AIR POLLUTION FROMNITROGEN COMPOUNDS SUBCHAPTERB. COMBUSTION CONTROL ATMAJOR 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 withoutchanges to the proposed text as published in the August 28, 2009, issue of the Texas Register(34 TexReg 5866). The amendmentwill 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-FortWorth 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 directorto 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 usingthe control methodologiesthe 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. Ifthe rule revision is adopted, approximately 0.1 tons perday (tpd) ofanticipated 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 impactthe status ofthe state's attainmentwith 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 September28, 2009. The purpose ofthe hearing was to accept written and oral comments on the proposed rulemaking. Awritten comment was submitted by the EPA. The EPA stated that it will provide comment on the commissions' §110(1) demonstration in its comment letter pertaining to the proposed DFW ReasonablyAvailable ControHechnology Update, 30Texas 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 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 ofthe identified existing measuresthat 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.



## ADOPTEDRULES January 29, 2010 35 TexReg 649Background 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 nonattainmentarea to reduce NO, emissions from awide 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 ofthis 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 ofthis type are estimated 

### to be a small contribution to the total NO, emissions from this industry. Ifthis 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 thatthere 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 mineralwool-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 ofChapler 117, Subchapter B, Division 4. The provisions ofChapter 117, Subchapter B, Division 4exempts unitswhere the unittype, maximum rated capacity, or specific use etthercannot 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 ofthis 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 thatthe adopted rule does not meet the definition of a"majorenvironmental 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 ofthe 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 ofthe agency instead of under a specific state law." The adooted rulemaking implements requirements of the Federal Clea1n AirAct (FCAA). Under42 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 maybe necessary or appropriate to meet the applicable requirements of this chapter," (meaning Chapter85, 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 astate from developing aprogram that meets the requirements of42 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 ofthe 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 ofthis

### 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 furtherthe**speci~c** intent of**providi~g** fair and consistent application of SIP rules mthe DFW 1997 eight-hourozone nonattainmentarea 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 ofthe 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 ofSIP rules inthe DFW 1997eight-hourozone 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 ofthe economy productivity, competition, orjobs, norwill the adopted rules adversely affect in a material way the environment, or the public health and safety ofthe state or a sector ofthe 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 notsubject

### to a regulatory impact analysis underTexas 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 rementto provide afiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 duringthE1 75th Legislature, 1997. The intentofSB 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 11/ill exceed a requirement ofstate law, federal law, or a delegated federal program; orare adopted solely underthe 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 thatthe.b1Uwdl have**Sl!lnl~cant**fiscal Implications forthe agency due 

### to its hm1ted application." The commission also noted that the number of rules that would require assessment under the provisions ofthe bill was not large. This conclusion was based in part, on the

### ~riteriaset 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 notalways require specific programs methods or reductions in order to meet the NAAQS; thus, states must develop programs for each nonattainment area to help ensure thatthose areas will meetthe attainment deadlines. Because of the ongoing need to address nonattainment issues 

### to meet the requirements of42 USC, §7410, the commission routinely proposes and adopts SIP rules. The legislature is presumed 

### to understand this federal scheme. Ifeach 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 inconsistentwith the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB} in its fiscal notes. Since the legislature is presumed 

### to understand the fiscal impacts ofthe bills it passes and that presumption is based on information provided bystate agencies and the LBB, the commission believes thatthe 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 greaterthan is necessary or appropri, ate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall underthe 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 mthe 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 percuriam 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



## ADOPTEDRULES January 

## i9, 2010 35 Tex.Reg 651581 (Tex. App. Austin 2000, pet. denied); and Coastallndust. WaterAuth. 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 attemptto limitthe number of rule challenges based upon APA requirement;, the legislature clarified that state agencies are required to me1etthese sections ofthe 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 ofan 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 ofthe federally mandated NAAQS. The Third District Court of Appeals upheld this interpretation in Brazoria Countyv. 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 ofTexas Government Code, §2001.0225(b), forthe followIng reasons. The adopted rulemaking is notamajorenvironmental law because: 1) the specific intent of the adopted rule is not to protectthe environment or reduce risks to human health from environmental exposure, but rather to provide fair and consistent application ofSIP 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 ofthe economy productivity, competition, or jobs, nor will it adversely affect

### i~ a material way the environment or the public health and safety ofthe 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 ifthe adopted rulemaking was a majorenvironmental rule, tt does not meet any ofthe 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 ordelegation 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 Impactanalysis 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, Chapter2007. The commission determined thatTexas Government Code Chapter2007 does not appl¥ because this rulemaking

### provid~s forfair and consistent application ofSIP rules 10the DFWeight-hourozone 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 bythe 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 ofthe governmental action, in whole or in part ortemporarily or permanently, in a mannerthat restricts or limits the owner's right to the propertythatwould otherwise exist in the absence ofthe governmental action; and (ii) isthe producing cause of a reduction ofat least 25% in the market value ofthe affected private real property, determined by comparing the market value ofthe property as ifthe governmental action is notin effect and the marketvalue ofthe property determined as ifthe governmental action is-in ef

### fect'' The specific purpose ofthe 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 mineralwool-type fiberglass manufacturing in which nttrogen-bound chemical addttives are used. The currentexemption 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 NonattainmentArea

### 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 ofthe 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 limitthe owner's rightto property; nordoes it reduce the value of any private real property by 25% or more beyond that which would otherwise exist inthe absence ofthe 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 ofthe 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 ofthe 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 subjectto 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 SUBJECTTO THE FEDERAL OPERATING PERMITS PROGRAM Chapter 117 is an applicable requirement under30TAC Chapter 122, Federal Operating Permits Program. Ifthe 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 September28, 2009. Awrittan 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 letterpertaining 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 questionsthe 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 forthe 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 AirAct (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistentwith the policy and purposes ofthe 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 ofthe 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 ofthe state's air. The amendment is also adopted 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 applicableto permits underTHSC, Chapter 382. The adopted amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.021, and 382.051(d). This agency herebycertifiesthatthe adoption has been reviewed by legal counsel and found to be avalid exercise ofthe 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 behalfofthe 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 forthe Eld rly (PACE), without changes to the pro

### ADOPTEDRULES January 29, 2010 35 TexReg 653