Kathleen Hartnett \Nhite, Chairman

Larry R. Soward, Commissioner

H. S. Buddy Garcia, Commissioner

Glenn Shankle, Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Protecting Texas by Reducing and Preventing Pollution

August 16,2007

Docket No. 2006-2026-RUL

Richard E. Greene, Regional Administrator

U.S. Environmental Protection Agency - Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

Dear Mayor Greene:

On July 25, 2007, the Texas Commission on Enviromnental Quality (Commission) adopted revisions to the

State Implementation Plan (SIP).

The Commission adopted amendments· to Sections 101.1, 101.302, 101.306, 101.350, 101.351, 101.353,

101.354, 101.360, 101.372, 101.376, 101.383, and 101.-385 and the repeal of Section 101.22 of 30 TAC

. Chapter 101, General Air Quality Rules, and corresponding· revisions to the SIP. The adoption corrects

references tosections of 30 TAC Chapter 117, Control of Air Pollution from Nitrogen Compounds, which

have changed due to the reorganization of Chapter 117, revises definitions, removes an obsolete effective

date, and correCts references to the commission.

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

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

Sincerely,

rVd1~lJ, r) '----""~athleen Hartnett White I

Chairman

KHW/rls

Enclosures

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

printed on recycled pi:lper using soy~based ink
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

August 16, 2007

Docket No. 2006-2026-RUL

THE STATE OF TEXAS

COUNTY OF TRAVIS

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

State Implementation Plan, adopted on July 25, 2007, pursuant to 40 Code of Federal Regulations § 51.104. I

am the records administrator for the General Law Division of the Texas Commission on Environmental

Quality (Commission).

Richard Hyde

Director, Air Permits Division

Texas Commission on Environmental Quality
Texas Commission on

Environmental Quality

Public Hearing

March 20, 2007

30 TAC Chapter 101

General Air Quality Rules

Rule Project No. 2006-053-101-PR
INTRODUCTION

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

Austin on March 20, 2007 to receive testimony regarding revisions to 30 TAC Chapter

101, General Air Quality Rules; and corresponding revisions to the Texas state

implementation plan (SIP).

The amendments to §§101.1, 101.302,101.306,101.350,101.351,101.353,101.354,

101.360,101.372, 101.376, 101.383, and 101.385 and the repeal of §101.22 would

correct references to sections of 30 TAC Chapter 117, Control of Air Pollution from

Nitrogen Compounds, which have changed due to the reorganization ofChapter 117.

This rulemaking would also include revisions identified during the last review ofChapter

101 including changes to the definitions of cold solvent cleaning, conveyorized

degreasing, high-volume, low-pressure spray guns, open-top vapor degreasing, standard

conditions, and visible emissions. A definition for nitrogen oxides would be added, the

definitions of hazardous waste management facility and hazardous waste management

unit would be deleted, and an obsolete effective date section would be removed.

The comment period closed on March 26, 2007. All testimony and comments have been

reviewed and seriously considered.

• Public Notification and Proposal

• Written and Oral Testimony

• Evaluation of Testimony

• StaffRecommendations

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

12100 Park 35 Circle, Austin, Texas 78753. For further information, contact Becky

Southard at (512) 239-1638.
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION

Notification to the pUblic of the proposed revisions was conducted by the

following procedures:

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

the dotes listed:

Austin American-Statesman

Fort Worth Star-Telegram

Houston Chronicle

February 12, 2007

February 12, 2007

February 12, 2007

2. Publication of the pUblic hearing notice in the Texas Register on February

23,2007 (32 TexReg 966).

3. Publication of the proposed rules in the Texas Register on February 23,

2007 (32 TexReg 713).

4. Correspondence forwarding the notice of public hearing to the following

officials and agencies:

Speaker of the House

Lieutenant Governor

City of EI Paso

City of Victoria Planning Department
Dallas Department of Health and Human Services

EI Paso City-County Health District

Federal Highway Administration

Fort Worth Public Health Department

Galveston County Health District

Houston Department of Health and Human Services

Harris County Pollution Control Department

North Central Texas Council of Governments

Houston-Galveston Area Council

South East Texas Regional Planning Commission

Texas Department of Transportation

Texas Transportation Institute

Arkansas Department of Pollution Control and Ecology

Louisiana Department of Environmental Quality

New Mexico Air Quality Bureau

Oklahoma Department of Environmental Quality

u. S. Environmental Protection Agency
EXAMPLE OF NEWSPAPER CLASSiFIED AD

Fort Worth Star-Telegram

February 12, 2007

Ad Copy:

NOTICE OF PUBLIC

HEARING BY THE TEXAS

COMMISSION ON

ENVIRONMENTAL

QUALITY

ON PROPOSED

REVISIONS TO 30 TAC CHAPTER 101 AND TO THE STATE

IMPLEMENTATION PLAN Tile Texas Commis- sion on Environmental

~i~\a'b~n~~~r-'~i~~igl?J hearing to receive

teslimony regarding proposed reViSions 10 30 Texas Adminls- lralive Code (TACl ChajJler 101. Genera AIr Qualily Rules. and 10 the slale Imple- menlalion plan (SIP). under tile reqUire- ments 01 Texas Health

and Salely Code.

1>382.017; Texas

Government . Code,

CI1apter 2001. SubgJ6~er o~; aF~de~~

;;n~~atl5',!;1,feJ!j,lldlg~ Environmenlal ProleclionAgency (EPA) regula110ns concerning SIPS.

The . proposed rulemakrng would correct re1erences 10 sections 01 30 TAC Chapler 1 17 which are chanqmg elue 10 lhe

reorganization 01

~7~gl:~ing1,],~Ltlel~~g incllJ,qe reVisions idenllHeel during the l8.s1 review 01 Cnapler

101, including ch~nges 10 liltl defl- illll0ns 01 visible

emissions. cold sol- vent . cleaning, Gonveyonzed degreeslng,

gr:~~ilgg. vaR{~h_vdo~~

~r;~y ~~kfress~~~a s\anaard condilions. A definition 10r nilrogsn oXides would be add eel, the delinilions 01 hazardous waste managen1ent faclli1y and 118zardous waste management unit

woulel be deleled. relerences 10 tile l111e

01 llle commIssion

v;,~dlldanb61)~~r~~ect~~

lective dale seclion would be ren1oved.

~~gg~~lle~\r%~nl~~I~

'r0\a:"~hSl'~6 T~8g~· "a~ 1 0'00 a.m: in Building B. Room 201 A. [II the

Texas Comnlission on EnVironmental QualJ1y

~~7W6e?:>arl~°'1~egjrcl~t Tl1e 118a"ng will be

structured lor ll1e re- ceipt 01 oral Or wri1ten comnlsnts by interest- ed persons. Registra- I,on will begin 30 Illlnu.les prior ,to lhe Ilsanng. Individuals 1l1ay present oral statements wilen called upon In order 01 reg- istration. There will be no open diSCUSSion

during the he.ari(lg- however. comlnt~Slori slaff members Will be

avaiJal)le 10 diSCUSS lhe prpposal 30 m)nUles

~nor to Ille he"nng.

a~~~~'I'f,e R~~W~~ wl~g h~ve. specu!1 commu- n1callOn Qr olher ac- commodation needs

should contact Lola

Brown. Office 01 Leqal Services. al (512) 239- 0348. Requesls should be made as 1ar in advance as possible. Comments may be

sulJIYll11ed 10 Lola

Drown, 'viC 205 Texas Register leam' OWce

¥~xasLe8~~mi~~6"~C;~~ EmMonmelltal Quality P.D. Box 13087, AUs:

lin, Texas 78711-3087 or laxed 10 (512) 239· 4808. Electronic com-

~i'j\~~ a~~l;p:~e~~: lceq .sI61e.IX. uslru lesl ecomments. The

~~~en~J:9~8o~IOS~

comments should ref- erence Rule Project Number 2006-053-101-

~l~Y~~ ~i~~eg~u:,~~ commiSSion's Web Bile al hllp/twww.tceq .s1a1e.1x.us/n av/rules

{por?7u°rft;era~?gri;;~\jg~ or ques1ions concern- Ing Ihis proposal please COnlael Becl<y Sou1hard, Air Permi1s

~63~ion, a1 (512) 239-

Issued in Austin Texas 011 February 7.' 2007..
Operational Requirements No. I. y failing to ensure that the oxidation ditch treatment unit was pro edy operated and maintained; 30

TAC §305.125(l) and (5) and T ES Permit No. WQ00115I0002,

Operational Requirements No. I by failing to ensure that the return

lines from the digester and sludg drying beds were properly operated

and maintained; 30 TAC §30 .125(1). and TWC, §26.l21(a)(l),

and TPDES Permit No. WQO 11510002, Effluent Limitations and

Monitoring Requirements No. ,by failing to prevent the discharge

of floating solids or visible foa in other than trace amounts in the

receiving stream; and 30 TAC §21.4 and §290.51 (a)(3) and TWC,

§5.702 and §26.0291, by failin to pay all outstanding consolidated

water quality fees and public he th service fees; PENALTY: $16,385;

Supplemental Environmental PI' 0ect (SEP) offset amount of $16,385

contribution to be used in the exas Association of Resource Conservation and Development Are s, Inc., Abandoned Tire Clean-Up

Project which provides the coor inated clean-up of sites where tires

have been disposed of illegally; TAFF ATTORNEY: James Biggins,

Litigation Division, MC R-12, (71 ) 422-8916; REGIONAL OFFICE:

Harlingen Regional Office, 1804 West Jefferson Avenue, Harlingen,

Texas 78550-5247, (956) 425-601 .

(7) COMPANY: The Texas L in American Conference of the

International Pentecostal Holine s Church; DOCKET NUMBER:

2005-1708-PWS-E; TCEQ ID MBER: RNI01218493; LOCATION: six miles west of Jackson ille, south of United States (US)

79, Cherokee County, Texas; T :E OF FACILITY: public water

supply system; RULES VIOLAT D: 30 TAC §290.109(c)(2)(A)(i)

and §290.122(c)(2)(B), and THSC §341.033(d), by failing to collect

and submit a routine monthly bact riological sample, and, by failing

to notify the public of the noncom iance during the month of August

2003; 30 TAC §290.109(c)(3)(A)(ii and §290.122(c)(2)(B), by failing

to take four repeat samples for ea h total coliform-positive sample

found in a month and by failing to otify the public of these noncompliances during the months of Mar h, May, and June 2004; 30 TAC

§290.J09(c)(2)(F) and §290.122(c) )(B), by failing to collect at least

five routine bacteriological sample following the month in which a

positive coliform sample was obta ed and by failing to post public

notice during the month of April 004; and 30 TAC §290.1 09(f)(3)

and §290.l22(c)(2)(B) and THSC, 341.0315(c), by failing to comply

with the maximum contaminant lev I (MCL) for coliform bacteria and

by failing to notify the public ofthi noncompliance during the months

of May and June 2004; PENALTY $2,363; STAFF ATTORNEY: Kari

Gilbreth, Litigation Division. MC 175, (512) 239-1320; REGIONAL

OFFICE: Tyler Regional Office, 2916 Teague Drive, Tyler, Texas

75701-3756, (903) 535-5100.

(8) COMPANY: Wallach Con rete, Inc; DOCKET NUMBER:

2005-0586-AIR-E; TCEQ ID NUMBERS: RNI04452560 and

RN 104452404; LOCATION: 6 2 Southeast Avenue F, Seminole,

Gaines County, (the Seminole PIa t), and 160 I West Broadway Street,

Andrews, Andrews County, Tex s (the Andrews Plant); TYPE OF

FACILITY: concrete batch pia s; RULES VIOLATED: 30 TAC

§116.110(a), and THSC, §382. 5(b) and §382.0518(a), by failing

to obtain the proper authorizatio prior to construction and operation

of two concrete batch plants; P NALTY: $20,000; STAFF ATTORNEY: Lena Roberts, Litigation ivision, MC 175, (512) 239-0019;

REGIONAL OFFICE: Midland egional Office, 3300 North A Street,

Building 4, Suite 107, Midland, xas 79705-5404, (915) 570-1359.

TRD-200700444

Mary Risner

Director, Litigation Division

Texas Commission on Environmen al Quality

Filed: February 13, 2007

32 TexReg 966 Februaryl 23, 2007 Texas Register

Notice of Public Hearing on Proposed Revisions to 30 TAC

Chapter !OJ and to the State Implementation Plan

The Texas Commission on Environmental Quality (commission) will

conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 10 I, General

Air Quality Rules, and to the state implementation plan (SIP), under

the requirements of Texas Health and Safety Code, §382.0 17; Texas

Government Code. Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.1 02 of the United States Environmental Protection Agency (EPA) regulations concerning SIPs.

The proposed rulemaking would correct references to sections of 30

TAC Chapter 117 which are changing due to the reorganization of

Chapter 117. This rulemaking would also include revisions identified

during the last review of Chapter 101, including changes to the definitions of visible emissions, cold solvent cleaning, conveyorized degreasing, open-top vapor degreasing, high-volume low-pressure spray

guns, and standard conditions. A definition for nitrogen oxides would

be added, the definitions of hazardous waste management facility and

hazardous waste management unit would be deleted, references to the

title of the commission would be corrected, and an obsolete effective

date section would be removed.

A public hearing on this proposal will be held in Austin, Texas, on

March 20, 2007, at 10:00 a.m., in BuildingB, Room 201A, at the Texas

Commission on Environmental Quality complex located at 12100 Park

35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when

called upon in order of registration. There will be no open discussion

during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons planning to attend the hearing, who have special communication or other accommodation needs, should contact Lola Brown, Office

of Legal Services, at (512) 239-0348. Requests should be made as far

in advance as possible.

Comments may be submitted to Lola Brown, MC 205. Texas Register

Team, 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

hllp://www5.tceq.stale.tx.lIs/rlilesiecomments. The comment period

closes March 26, 2007. All comments should reference Rule Project

Number 2006-053-10 I-PR. The proposed rules may be viewed on the

commission's Web site at http://wwvdceq.state.tx.lIs/navlrules/propose adopt.html. For further information or questions concerning

this proposal, please contact Becky Southard, Air Pennits Division, at

(512) 239-1638.

TRD-200700378

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: February 9, 2007

Notice of Public Meeting 0 March 29,2007, in Orange,

Texas, Concerning the Spe or Salvage Yard Proposed State

Superfund Site.

The purpose of the meeting is 0 obtain public input and information

concerning the proposed reme y for the site.

The executive director of the exas Commission on Environmental

Quality (TCEQ or commissiOl is issuing this public notice of a pro-
239-4808. Electronic comments may be submitted at

http://www5.tceq.state.tx.us/ru/es/ecommentsl. All comments

should reference Rule Project Number 2007-003-080-LS.

The comment period closes March 26, 2007. Copies of the

proposed rule can be obtained from the commission's Web site

at http://www.tceq.state.tx.us/nav/ru/es/propose_adopt.htm/.

For further information, please contact Janis Hudson,

Environmental Law Division, (512) 239-0466.

STATUTORY AUTHORITY

The amendment is proposed under Texas Water Code, §5.013,

concerning General Jurisdiction of the commission, which establishes the commission's general authority to carry out its jurisdiction; §5.102, concerning the commission's Genera) Powers, including calling and holding hearings and issuing orders; §5.1 03,

concerning Rules, which requires the commission to adopt rules

when amending any agency statement of general applicability

that describes the procedures or practice requirements of an

agency; and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its

powers and duties under the Texas Water Code; and §5.228,

which establishes the executive director's authority to participate

in contested case hearings. Additionally, the amendment is proposed under Texas Government Code, §2001.004, concerning

Requirement to Adopt Rules of Practice and Index Rules, Orders

and Decisions, which requires state agencies to adopt rules of

practice and procedure.

The proposed amendment implements Texas Water Code,

§5.228.

§80.108. Executive Director Party Status in Permit Hearings.

(a) Except to the extent superseded by subsection (b) of this

section, the executive director shall not participate as a party in the

following contested case hearings concerning pennitting matters:

(I) - (3) (No change.)

(4) an application for a pennit for a municipal solid waste

transfer facility under §330.7 [~] of this title (relating to Pennit

Required);

(5) an application for a pennit for the processing ofgrit and

grease trap waste under under §330.7 [~] of this title;

(6) - (7) (No change.)

(b) - (I) (No change.)

f!m Notwithstanding the requirements of subsections (a) and

fELof this section regarding executive director party participation, the

executive director shall participate ~rty if directed to do so by the

commission.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on February 9,

2007.

TRD-200700381

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25, 2007

For further information, please call: (512) 239-6087

CHAPTER 101. GENERAL AIR QUALITY

RULES

The Texas Commission on Environmental Quality (TCEQ

or commission) proposes amendments to §§101.1, 101.23,

101.302, 101.306, 101.350, 101.351, 101.353, 101.354,

101.360, 101.372, 101.376, 101.383, and 101.385 and the

repeal of §101.22.

The amended sections and repeal will be submitted to the United

States Environmental Protection Agency (EPA) as revisions to

the Texas State Implementation Plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE PROPOSED RULES

The commission has proposed revisions to Title 30 Texas Administrative Code (30 TAC) Chapter 117, Control of Air Pollution from

Nitrogen Compounds, as part of the SIP for the Houston-Galveston-Brazoria (HGB) and Dallas-Fort Worth (DFW) nonattainment areas. Under those revisions, Chapter 117 would be reorganized. Chapter 101, General Air Quality Rules, contains references to sections of Chapter 117 which are changing due to

the reorganization, requiring that the cited references in Chapter

101 also change. This proposal also includes revisions identified during the last review of Chapter 101, including changes to

the definitions of visible emissions, cold solvent cleaning, conveyorized degreasing, open-top vapor degreasing, high-volume

low-pressure spray guns, and standard conditions. Other proposed changes would delete the definitions of hazardous waste

management facility and hazardous waste management unit,

add a definition for nitrogen oxides, update references to include

the correct title of the commission, and remove an obsolete effective date section.

SECTION BY SECTION DISCUSSION

§101.1. Definitions.

The commission proposes to modify the opening paragraph of

this section to specify that the definitions in §101.1 apply to all

air quality rules. The commission proposes to change the definitions of cold solvent cleaning, conveyorized degreasing, and

open-top vapor degreasing by deleting the word "metal" so that

the processes also apply to cleaning non-metal parts. The commission proposes to delete the definitions of hazardous waste

management facility and hazardous waste management unit because they are not found in any of the air rules. The proposed

revision to the definition of high-volume low-pressure spray guns

specifies that the operating pressure of this equipment is measured at the air cap because this provides the most accurate

measurement. The commission proposes to add the definition

from Chapter 117 of nitrogen oxides because this is a common

term used throughout the commission's air quality rules. The

commission proposes to delete the last sentence of the definition of standard conditions that reads: "Pollutant concentrations

from an incinerator will be corrected to a condition of 50% excess air if the incinerator is operating at greater than 50% excess

air." The amount of air present in combustion is a variable and

does not qualify as a standard condition. The commission proposes to change the second sentence of the definition of visible

emissions to read: "The radiant energy from an open flame is

not considered a visible emission under this definition." Radiant

energy may manifest some visual effects but there is no air contaminant emitted.

§101.22. Effective Date.

PROPOSED RULES Febrltal]J 23,2007 32 TexReg 713
The commission proposes the repeal of this section because it

is no longer required.

§101.23. Alternate Emission Reduction ("Bubb/e") Po/icy.

The commission proposes to replace references to Texas Air

Control Board with Texas Commission on Environmental Quality (TCEQ). The commission proposes to replace the reference

to "Regulations I, II, III, V, VII, and IX" with "Chapters 111, 112,

113,115, and 117." The reference to Chapter 119 was removed

because this chapter has been repealed. The commission proposes to replace a reference to the obsolete term "board order"

with "commission order." In the last sentence of the section, the

commission proposes to replace "he" with "the executive director."

§101.302. General Provisions.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.306. Emission Credit Use.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.350. Definitions

The commission proposes replacing the definition of Houston/Galveston (HGA) ozone nonattainment area with Houston-Galveston-Brazoria (HGB) ozone nonattainment area

because the name of the nonattainment area has changed.

§101.351. Applicability.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.353. Allocation of Allowances.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.354. Allowance Deductions.

The commission proposes to repiace references to Chapter i i 7

section numbers with the newly renumbered Chapter 117 sections.

§101.360. Level of Activity Certification.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.372. General Provisions.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.376. Discrete Emission Credit Use.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.383. Genera/ Provisions.

32 TexReg 714 February 23,2007 Texas Register

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

§101.385. Recordkeeping and Reporting.

The commission proposes to replace references to Chapter 117

section numbers with the newly renumbered Chapter 117 sections.

The commission also proposes minor administrative changes to

address conformity to: Texas Register requirements and other

agency rules and guidelines.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment,

determined that, for the first five-year period the proposed rules

are in effect, no fiscal implications are anticipated forthe agency

or other units of state or local governments as a result of administration or enforcement ofthe proposed rules. The proposed rules

are administrative in nature and will amend sections of Chapter

101 to coincide correctly with proposed changes to Chapter 117.

Fiscal implications pertaining to the proposed rules for Chapter

117 can be found in that rule package.

The commission previously proposed a reorganization and

revision of Chapter 117 as part of the SIP for the HGB and DFW

nonattainment areas. This proposed revision to Chapter 117

also requires revision of Chapter 101 so that cited references

in the two chapters agree with one another. The proposed rule

changes to Chapter 101 will also revise definitions of visible

emissions, cold solvent cleaning, conveyorized degreasing,

open-top vapor degreasing, high-volume low-pressure spray

guns, and standard conditions. The proposed rules will also

delete the definitions of hazardous waste management facility

and hazardous waste management unit, add a definition for

nitrogen oxides, and make minor administrative changes to

update obsolete information contained in the current rules.

PUBLIC BENEFITS AND COSTS

Ms. Chamness also determined that for each year of the first

five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be a

more correct set of general rules governing air emiSSions that

allow the regulated community to comply with federal and state

laws with greater ease and efficiency.

The proposed rules will affect entities that must currently comply with regulations promulgated in Chapter 101. Businesses

and individuals are not expected to experience any fiscal implications as a result of the proposed rules, which make administrative changes to Chapter 101 to coincide with proposed amendments to and reorganization of Chapter 117.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules, which are administrative in nature.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the

proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light ofthe

regulatory analysis requirements of Texas Government Code,

§2001.0225, and determined that this proposal is not subject to

§2001.0225 because it does not meet the definition of a major

environmental rule as defined in that statute. A major environmental rule means a rule, the specific intent of which is to protect

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

the economy, productivity, competition, jobs, the environment, or

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

Although the specific intent is to protect the environment, these

proposed amendments are mainly an administrative action only,

to correct and update cross-references to Chapter 117, which

is being reorganized, modify certain definitions, and make other

procedural changes to Chapter 101.

Chapter 117, Control of Air Pollution from Nitrogen Compounds,

is currently proposed for reorganization. Chapter 101, General

Air Quality Rules, contains extensive references to sections of

Chapter 117 that are changing because of the reorganization.

The references contained in Chapter 101 must change accordingly. This proposal also includes revisions identified during

the last review of Chapter 101 by the executive director and

includes changes to the definitions of visible emissions, cold

solvent cleaning, conveyorized degreasing, open-top vapor degreasing, high-volume low-pressure spray guns, and standard

conditions. Other proposed changes would delete the definitions of hazardous waste management facility and hazardous

waste management unit, add a definition for nitrogen oxides,

update references to the title of the commission, and remove

an obsolete effective date section. The adopted rules will not

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, or

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

In addition, a draft regulatory impact analysis is not required because the rules do not meet any of the four applicability criteria

for requiring a regulatory analysis of a major environmental rule

as defined in the Texas Government Code. Section 2001.0225

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

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

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

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

or contract between the state and an agency or representative

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

agency instead of under a specific state law. This rulemaking

does not exceed a standard set by federal law, and the adopted

requirements are consistent with applicable federal standards.

In addition, this proposal does not exceed an express requirement of state law and is not adopted solely under the general

powers of the agency, but is specifically authorized by the provisions cited in the STATUTORY AUTHORITY section of this preamble. Finally, this rulemaking does not exceed a requirement

of a delegation agreement or contract to implement a state and

federal program.

The commission invites public comment on the draft regulatory

impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed

an analysis of whether the adopted rules are subject to Texas

Government Code, Chapter 2007. The primary purpose of the

rulemaking is to update references to sections of Chapter 117,

which is being reorganized, to modify certain definitions, and to

make other procedural changes to Chapter 101. These amendments do not affect private property in a manner that restricts

or limits an owner's right to the property that would otherwise

exist in the absence of the governmental action. Therefore, promulgation and enforcement of these proposed rules is neither a

statutory nor a constitutional taking because they do not affect

private real property. Therefore, these rules do not constitute a

taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11 (b)(2), relating

to rules subject to the Coastal Management Program, and will,

therefore, require that goals and policies of the Texas Coastal

Management Program (CMP) be considered during the rulemaking process. 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 amendments are consistent with CMP goals and

policies. The CMP goal applicable to this rulemaking action is

the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource

areas (31 TAC §501.12(1 )). The proposed rules update references and definitions. No new sources of air contaminants will

be authorized and the revisions will maintain the same level of

emissions control as previous rules. The CMP policy applicable

to this rulemaking action is the policy that the commission's rules

comply with federal regUlations in 40 Code of Federal Regulations, to protect and enhance air quality in the coastal areas (31

TAC §501.14(q)). This rulemaking action complies with 40 Code

of Federal Regulations Part 51, Requirements for Preparation,

Adoption, and Submittal of Implementation Plans. Therefore, in

accordance with 31 TAC §505.22(e), the commission affirms that

this rulemaking action is consistent with CMP goals and policies.

Written comments on the consistency of this rulemaking may be

submitted to the contact person at the address listed under the

SUBMITIAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING

PERMITS PROGRAM

The amended sections are applicable requirements under the

Federal Operating Permits Program, but no revisions to operating permits will be required.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in

Austin on March 20, 2007, at 10:00 a.m. in Building B, Room

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

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

oral statements when called upon in order of registration. There

will be no open 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

Lola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in advance as possible.

PROPOSED RULES FebrualJ7 23, 2007 32 TexReg 715
SUBMITIAL OF COMMENTS

Comments may be submitted to Lola Brown, MC 205, Office

of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to

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

http://www5.tceq.state.tx.us/ru/es/ecommentsl. All comments

should reference Rule Project Number 2006-053-1 01-PR. The

comment period closes March 26, 2007. Copies of the proposed rules can be obtained from the commission's Web site at

http://www.tceq.state.tx.us/nav/ru/es/propose_adopt.htm/. For

further information, please contact Becky Southard, Air Permits

Division, at (512) 239-1638 or Tara Capobianco, Air Permits

Division, at (512) 239-1117.

SUBCHAPTER A. GENERAL RULES

30 TAC §101.1, §101.23

STATUTORY AUTHORITY

The amended sections are proposed under Texas Water Code,

§5.103, concerning Rules, and §5.1 05, concerning General Policy, that authorize the commission to adopt rules necessary to

carry out its powers and duties under the Texas Water Code;

and under Texas Health and Safety Code (THSC), §382.017,

concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amended sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, that establishes the

commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011, concerning General Powers and

Duties, that authorizes the commission to control the quality of

the state's air; and §382.Q12, concerning State Air Control Plan,

that authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. The

amended sections are also proposed under THSC, §382.014,

concerning Emission Inventory, that authorizes the commission

to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop

an emissions inventory; and §382.051 and §382.0518, concerning Permitting Authority of Commission and Preconstruction Permit, that authorize the commission to issue preconstruction and

operating air permits. The amended sections are also proposed

under 42 United States Code, §741 O(a)(2)(A), that requires SIPs

to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction

of emission rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, and 382.017; and Senate Bill 784, 79th Legislature,

2005.

§101.1. Definitions.

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

the rules of the commission, the terms used by the commission have

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

control. In addition to the terms that are defined by the TCAA, the

following terms, when used in relation to air quality rules in this title

[ehHJ*ef], have the following meanings, unless the context clearly indicates otherwise.

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

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

Program), all sources that are aggregated as a site. For all other sources,

any combination of sources under common ownership or control and

located on one or more contiguous properties, or properties contigu32 TexReg 716 February 23,2007 Texas Register

ous except for intervening roads, railroads, rights-of-way, waterways,

or similar divisions.

(2) - (II) (No change.)

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

the parts by spraying, brushing, flushing, and/or immersion while maintaining the solvent below its boiling point. Wipe cleaning (hand cleaning) is not included in this definition.

(13)-(21) (No change.)

(22) Conveyorized degreasing--A solvent cleaning process

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

to automatically provide a continuous supply of [il'letal] parts to be

cleaned or dried using either cold solvent or vaporized solvent. A conveyorized degreasing process is fully enclosed except for the conveyor

inlet and exit portals.

(23)-(41) (No change.)

ft42i HtmlreelfS WIls{e ffi!lnttgemeflt faeility-A+J conti-guellS laOO, IDe+lIdtng s-tffic-iHfes; aprlffieflal'lGeS-; aRd ether improvements

en !-he taRd; used fef jffileessin-g-; steRng, Of ~esi-ng ef ha'i"affiou~

Wffilte;- 'File teRn ffieHl6es a flUl*ieJy Of J.*Watcly ewned hai':uffieu~

waste maoogement faei.ti.ty €flilSi.st.i.ng ef jffileessi-ng, stemge, or disposal erera-Hen/H hazafdeus WIlstemanagemeRt units suc-h !IS one Of

mere SUffaee impooMmeffiS-; J*le;r, incinemlOfS-; l~oiters, aild tndustffiH fuma€es;including eemefltk+lns-; tnjee!-ien we!h; ~aH

del'l'le waste oontainmem ea-vemtr; tand -treatment faeili+ies, Of a eomffi--

flfr!-ien ef untffi:1

ff'HjHaffiffi6US waste ffifrHftgemen\ u-ni+-A- taAdti-H; SlIrfaee irnrollfl6-mellt-; waste pHe, aet!ef; indllstfial ft:tmaee.; tne-inemtof;

eemeflt lffifl.; ffi:jeetien welt; containef, dfum-; salt deme WIls{e ooRtatnmeffi eavem, Of taRe tfeatment UR-i+; Of any ethel' stfUoture, vessel; artruftenan<Je;- Of ethel' -imprevemeflt en {ana lfSed te ffi!ll'lilg6 11iffilffieu~

WIlsteoj

[~] Hazardous wastes--Any solid waste identified

or listed as a hazardous waste by the administrator oCthe United States

Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Ac(,

42 United States Code, §§6901 et seq., as amended.

[f#j} Heatset (used in off:,et lithogiaphic priiiting)--

Any operation where heat is required to evaporate ink oil from the printing ink, Hot air dryers are used to deliver the heat.

f±B [~] High-bake coatings--Coatings designed to cure

at temperatures above 194 degrees Fahrenheit.

[t4+)] High-volume Jow-pressure spray guns--Equipment used to apply coatings by means of a spray gun that operates between 0.1 and 10.0 pounds per square inch gauge air pressure !1.1easureQ

at the air cap.

00 [f4&j] Incinerator--An enclosed combustion apparatus

and attachments that is used in the process of burning wastes for the

primary purpose of reducing its volume and weight by removing the

combustibles of the waste and is equipped with a flue for conducting

products of combustion to the atmosphere. Any combustion device

that bums 10% or more of solid waste on a total British thermal unit

(Btu) heat input basis averaged over anyone-hour period is considered

to be an incinerator. A combustion device without instrumentation or

methodology to determine hourly flow rates ofsolid waste and burning

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

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

(with closed ends) combustion unit may be considered an incinerator
when approved by the executive director. Devices buming untreated

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

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

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

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

applicable permits.

{12) [f491J Industrial boiler--A boiler located on the site

of a facility engaged in a manufacturing process where substances are

transformed into new products, including the component parts of products, by mechanical or chemical processes.

[~J Industrial fumace--Cement kilns; lime kilns;

aggregate kilns; phosphate kilns; coke ovens; blast furnaces; smelting,

melting, or refining fumaces, including pyrometallurgical devices

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

or foundry fumaces; titanium dioxide chloride process oxidation

reactors; methane reforming fumaces; pulping recovery furnaces;

combustion devices used in the recovery of sulfur values from spent

sulfuric acid; and other devices the commission may list.

{12l [~J Industrial solid waste--Solid waste resulting

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

mining or agricultural operations, classified as follows.

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

industrial solid waste designated as Class 1 by the executive director

as any industrial solid waste or mixture of industrial solid wastes that

because of its concentration or physical or chemical characteristics is

toxic, corrosive, flammable, a strong sensitizer or irritant, a generator

of sudden pressure by decomposition, heat, or other means, and may

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

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

§335.1 and §335.505 of this title (relating to Definitions and Class 1

Waste Determination).

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

waste or combination ofindustrial solid wastes that cannot be described

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

Class 2 Waste Determination).

(C) Class 3 industrial solid waste is any inert and essentially insoluble industrial solid waste, including materials such as rock,

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

3 Waste Determination).

ill} [~J Intemal floating cover--A cover or floating roof

in a fixed roof tank that rests upon or is floated upon the liquid being

contained, and is equipped with a closure seal or seals to close the space

between the cover edge and tank shell.

llU [~J Lcak--A volatile organic compound concentration greater than 10,000 parts per million by volume or the amount

specified by applicable rule, whichever is lower; or the dripping or exuding of process fluid based on sight, smell, or sound.

ill} [~J Liquid fuel--A liquid combustible mixture, not

derived from hazardous waste, with a hcating value of at least 5,000

British thermal units per pound.

012 [~J Liquid-mounted seal--A primary seal mounted

in continuous contact with the liquid between the tank wall and the

floating roof around the circumference of the tank.

[~] Maintenance area--A geographic region of the

state previously designated nonattainment under thc Federal Clean Air

Act Amendments of 1990 and subsequently redesignated to attainment

subject to the requirement to develop a maintenance plan under 42

United States Code, §7505a. The following are the maintenance areas within the state:

(A) Victoria Ozone Maintenance Area 60 (Federal

Register (FR) 12453) - Victoria County; and

. (B) Collin County Lead Maintenance Area (64 FR

55421) - Portion of Collin County. Eastside: Starting at the intersection of South Fifth Street and the fence line approximately 1,000

feet south of the Exide property line going north to the intersection of

South Fifth Street and Eubanks Street; Northside: Proceeding west

on Eubanks to the Burlington Railroad tracks; Westside: Along the

Burlington Railroad tracks to the fence line approximately 1,000 feet

south of the Exide property line; Southside: Fence line approximately

1,000 feet south of the Exide property line.

[~J Maintenance plan--A revision to the applicable state implementation plan, meeting the requirements of 42 United

States Code, §7505a.

f222 [~J Marine vessel--Any watercraft used, or capable of being used, as a means of transportation on water, and that is

constructed or adapted to carry, or that carries, oil, gasoline, or other

volatile organic liquid in bulk as a cargo or cargo residue.

@ [~J Mechanical shoeseal--A metal sheet that is held

vertically against the storage tank wall by springs or weighted levers

and is connected by braces to the floating roof. A flexible coated fabric

(envelope) spans the annular space between the metal sheet and the

floating roof.

[f6GjJ Medical waste--Waste materials identified by

the Department of State Health Services as "special waste from health

care-related facilities" and those waste materials commingled and discarded with special waste from health care-related facilities.

022 [f6BJ Metropolitan Planning Organization--That organization designated as being responsible, together with the state, for

conducting the continuing, cooperative, and comprehensive planning

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

i2Q2 [~J Mobile emissions reduction credit--The credit

obtained from an enforceable, pemlanent, quantifiable, and surplus (to

other federal and state rules) emissions reduction generated by a mobile

source as set forth in Chapter 114, Subchapter [.£ &J F of this title

([relatittg te bew .£m.i.ss.ioo Veltiele Fleet RetjtHremems aooJ Vehicle'

Retirement and Mobile Emission Reduction Credits), and that has been

banked in accordance with Subchapter H, Division I of this chapter.

i§l2 [f@jJ Motor vehicle--A self-propelled vehicle designed for transporting persons or property on a street or highway.

f..§l2 [(641J Motor vehicle fuel dispensing facility--Any site

where gasoline is dispensed to motor vehicle fuel tanks from stationary

storage tanks.

f.§l2 [f6~J Municipal solid waste--Solid waste resulting

from, or incidental to, municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes,

street cleanings, dead animals, abandoned automobiles, and all other

solid waste except industrial solid waste.

iQ12 [f66:lJ Municipal solid waste facility--AIJ contiguous

land, structures, other appurtenances, and improvements 011 the land

uscd for processing, storing. or disposing ofsolid waste. A facility may

be publicly or privately owned and may consist of several processing,

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

PROPOSED RULES FebrualJ' 23,2007 32 TexReg 717
(ii1J [f6+1] Municipal solid waste landfill--A discrete area

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

a land application unit, surface impoundment, injection well, or waste

pile, as those terms are defined under 40 Code of Federal Regulations

§257.2. A municipal solid waste landfill (MSWLF) unit also may receive other types ofResource Conservation and Recovery Act Subtitle

D wastes, such as commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generator waste, and industrial solid

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

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

expansion.

(§Q2 [f6&:j] National ambient air quality standard--Those

standards established under 42 United States Code, §7409, including

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

(§2) [f69i] Net ground-level concentration--The concentration of an air contaminant as measured at or beyond the property

boundary minus the representative concentration flowing onto a property as measured at any point. Where there is no expected influence of

the air contaminant flowing onto a property from other sources, the net

ground level concentration may be determined by a measurement at or

beyond the property boundary.

UJ§J [f7O-J] New source--Any stationary source, the construction or modification of which was commenced after March 5,

1972.

{@} Nitrogen oxides (NOJ--The sum of the nitric oxide

and nitrogen dioxide in the flue gas or emission point, collectively ex-

~sed as nitrogen dioxide.

QQ2 [f+I-1] Nonattainment area--A defined region within

the state that is designated by the United States Environmental Protcction Agency (EPA) as failing to meet the national ambient air quality standard for a pollutant for which a standard exists. The EPA will

designate the area as nonaUainment unde~ the provisions of 42 United

States Code, §7407(d). For the official list and boundaries of nonattainment areas, sec 40 Code of Federal Regulations Part 81 and pertinent Federal Register (FR) notices. The following areas comprise the

nonattainment areas within the state for all national ambient air quality

standards (NAAQS). EPA has indicated that it will revoke the one-hour

ozone standard in full, including the associated designations and classifications, on June! 5, 2005, which is one year following the effective

date of the designations for the eight-hour NAAQS ofJune 15,2004.

(A) Carbon monoxide (CO). El Paso CO nonaltainment

area (56 FR 56694)--Classified as a Moderate CO nonattainment area

with a design value less than or equal to 12.7 parts per million. Portion

ofEI Paso County. Portion ofthe city limits ofEI Paso: That portion of

the City of El Paso bounded on the north by Highway 10 from Porfirio

Diaz Street to Raynolds Street, Raynolds Street from Highway 10 to

the Southern Pacific Railroad lines, the Southern Pacific Railroad lines

from Raynolds Street to Highway 62, Highway 62 from the Southern

Pacific Railroad lines to Highway 20, and Highway 20 from Highway

62 to Polo Inn Road. Bounded on the east by Polo Inn Road from

Highway 20 to the Texas-Mexico border. Bounded on the south by

the Texas-Mexico border from Polo Inn Road to Porfirio Diaz Street.

Bounded on the west by Porfirio Diaz Street from the Texas-Mexico

border to Highway 10.

(B) Inhalable particulate malter (PM,.). EI Paso PM"

nonaltainment area (56 FR 56694)--Classified as a Moderate PM"

nonaltainment area. Portion of E1 Paso County that comprises the E1

Paso city limit boundaries as they existed on November 15, 1990.

(C) Lead. No designated nonaltainment areas.

32 TexReg 718 February 23,2007 Texas Register

(D) Nitrogen dioxide. No designated nonaltainment areas.

(E) Ozone (one-hour).

(i) Houston-Galveston-Brazoria (HGB) one-hour

ozone nonattainment area (56 FR 56694) - Classified as a Severe-17

ozone nonattainment area. Consists of Brazoria, Chambers, ForI

Bend, Galveston, Harris, Liberty, Montgomery. and Waller Counties.

(ii) E1 Paso one-hour ozone nonaltainment area (56

FR 56694) - Classified as a Serious ozone nonattainment area. Consists

of El Paso County.

(iii) Beaumont-Port Arthur (BPA) one-hollr ozonc

nonattainmenl area (69 FR 1(483) - Classified as a Serious ozone

nonattainment area. Consists of Hardin, Jefferson, and Orange Counties.

(iv) Dallas-Fort Worth one-hour ozone nonattainment area (63 FR 8128) - Classified as a Serious ozone nonattainment

area. Consists of Collin, Dallas, Denton, and Tarrant Counties.

(F) Ozone (eighl-hour).

(i) HGB eight-hour ozone nonattaiIll11l:n! area (69

FR 23936) - Classified as a Moderate ozone nonattainment area. Consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty,

Montgomery, and Waller Counties.

(ii) BPA eight-hour ozone nonattainment area (69

FR 23936) - Classified as a Marginal ozone nonattainment area. Consists of Hardin, Jefferson, and Orange Counties.

(iii) Dallas-Fort Worth eight-hour ozone nonattainment area (69 FR 23936) - Classified as a Moderate ozone nonattainment area. Consists of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties.

(iv) San Antonio eight-hour ozone nonattainment

area (69 FR 23936) - Classified under the Federal Clean Air Act, Title

I, Part D, Subpart I (42 United States Code, §7502), nonattainment

deferred to September 30, 2005, or as extended by EPA.

(G) Sulfur dioxide. No designated nonattainment areas.

Qll [f-+2j] Non-reportable emissions event--Any emissions event that in any 24-hour period does not result in an unauthorized

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

@ rf-H1] Opacity--The degree to which an emission of

air contaminants obstructs the transmission of light expressed as the

percentage oflight obstructed as measured by an optical instrument or

trained observer.

Ql) [f-747] Open-top vapor degreasing--A batch solvent

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

to create solvent vapor used to clean or dry [meta-l] parts through

condensation of the hot solvent vapors on the colder metal parts.

.cw [~] Outdoor burning--Any fire or smoke-producing

process that is not conducted in a combustion unit.

@ [f76j] Particulate matter--Any material, except uncombined water, that exists as a solid or liquid in the atmosphere or in

a gas stream at standard conditions.

@ [fHiJ Particulate matter emissions--Allfinely-divided

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

ambient air as measured by United States Environmental Protection

Agency Reference Method 5, as specified at 40 Code of Federal Regulations (CFR) Part 60, Appendix A, modified to include particulate
caught by an impinger train; by an equivalent or alternative method,

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

(77) [(-18j] Petroleum retinery--Any facility engaged in

producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of crude oil, or through

the redistillation, cracking, extraction, reforming, or other processing

of unfinished petroleum derivatives.

@} [p.9j] PM",--Particulate matter with an aerodynamic

diameter less than or equal to a nominal ten micrometers as measured

by a reference method based on 40 Code ofFederal Regulations (CFR)

Part 50, Appendix J, and designated in accordance with 40 CFR Part

53, or by an equivalent method designated with that Part 53.

ill} [f8Gj] PM", emissions--Finely-divided solid or liquid

material with an aerodynamic diameter less than or equal to a nominal

ten micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method specified

in 40 Code of Federal Regulations Part 51, or by a test method specified in an approved state implementation plan.

lliQ2 [f8-B] Polychlorinated biphenyl compound--A compound subject to 40 Code of Federal Regulations Part 761.

.@ll [f&B] Process or processes--Any action, operation, or

treatment embracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers. roasters, and

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

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

[f&B] Process weight per hour--"Process weight" is

the total weight of all materials introduced or recirculated into any specific process that may cause any discharge of air contaminants into the

atmosphere. Solid fuels charged into the process will be considered as

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

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

operation from the beginning of any given process to the completion

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

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

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

period by 24.

@ll [f&4j] Property--All land under common control or

ownership coupled with all improvements on such land, and all fixed

or movable objects on such land, or any vessel on the waters of this

state.

[(-&&j] Reasonable further progress--Annual incremental reductions in emissions of the applicable air contaminant that

are sufficient to provide for attainment of the applicable national

ambient air quality standard in the designated nonattainment areas by

the date required in the state implementation plan.

[E&6j] Regulated entity--All regulated units, facilities,

equipment, structures, or sources at one street address or location that

are owned or operated by the same person. The term includes any property under common ownership or control identified in a pennit or used

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

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

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

regulation of emissions events.

{fui} [(-&11] Remote reservoir cold solvent cleaning--Any

cold solvent cleaning operation in which liquid solvent is pumped to

a sink-like work area that drains solvent back into an enclosed container while parts are being cleaned, allowing no solvent to pool in the

work area. .

® [E&8-l] Reportable emissions event--Any emissions

event that in any 24-hour period, results in an unauthorized emission

from any emissions point equal to or in excess of the reportable

quantity as defined in this section.

@ [~] Reportable quantity (RQ)--Is as follows:

(A) for individual air contaminant compounds and

specifically listed mixtures by name or Chemical Abstracts Service

(CAS) number, either:

(i) the lowest of the quantities:

(1) listed in 40 Code of Federal Regulations

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

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

column "Reportable Quantity"; or

(Ill) listed as follows:

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

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

(BPA) ozone nonattainment areas as defined in paragraph (70)(E)(i)

and (iii) [(71)(E)(i) aml fHi1] of this section, where the RQ must be

]00 pounds;

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

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

areas as defined in paragraph (70)(E)(i) and (iii) [(7 J)(E)(i) aml fHi1]

of this section, where the RQ must be 100 pounds;

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

(-e-) l-chloro-I, I-difluoroethane (HCFCI42b) - 5,000 pounds;

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

5,000 pounds;

(-g-) l-chloro-l-fluoroethane (HCFC-151 a) -

5,000 pounds;

(-h-) chlorofluoromethane (HCFC-31)

5,000 pounds;

(-i-) chloropentafluoroethane (CFC-I ]5) -

5,000 pounds;

(-j-) 2-chloro-l.l, I,2-tetrafluoroethane

(HCFC-124) - 5,000 pounds;

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

(HCFC-124a) - 5,000 pounds;

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

(HFC 43-1 Omee) - 5,000 pounds;

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

(-n-) I, I-dichloro-l-fluoroethane (HCFC141b) - 5,000 pounds;

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

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

(-q-) I,2-dichloro-l, 1,2,2-tetrafluoroethane

(CFR-114) - 5,000 pounds;

(-r-) I,] [;]- dichlorotetrafluoroethane

(CFC-I14a) - 5,000 pounds;

(-s-) I,2-dichloro-] , I,2-trifluoroethane

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

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

pounds;

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

pounds;

PROPOSED RULES FebruQI)' 23,2007 32 TexReg 719
(-v-) cthanol - 5,000 pounds;

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

HGB and BPA ozone nonatlainment areas as defined in paragraph

(70)(E)(i) and (iii) [f1ljtr:"iti1 HflEi fi-i-B] 01' this section, where the RQ

must be 100 pounds;

(70)(E)(i) and (iii) [~aOO ft-iij] 01' this section, whcre the RQ

must be 100 pounds;

(ii) if not listed in clausc (i) of this subparagraph,

100 pounds;

(-tt-) I, I, I,2-tctrafluoroethane (HFC-134a) -

(-qq-) J , 1,2.2-terachlorodiftuorocthane (CFR

5,000 pounds;

-I 12) - 5,000 pounds;

(C) for opacity from boilers and combustion turbines as

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

oil containing hazardous air pollutants at a concentration of less than

0,02% by weight, opacity that is equal to or exceeds 15 additional percentage points above the applicable limit, averaged over a six-minute

period, Opacity is the only RQ applicable to boilcrs and combustion

turbines described in this paragraph; or

(D) for facilities where air contaminant compounds arc

measured directly by a continuous emission monitoring system providing updated readings at a minimum 15-minute interval an amount,

approved by ine cxecutive director based on any relevant conditions

and a scrcening model, that would be reported prior to ground levcl

concentrations reaching at any distance beyond the closest regulated

entity property line:

(i) less than onc-half of any applicahlc amhicnt air

(B) for mixtures of air contaminant compounds:

(i) where the relative amount of individual air contaminant compounds is known through common process knowledgc or

prior engineering analysis or testing, any amount 01' an individual air

contaminant compound that equals or exceeds the amount specificd in

subparagraph (A) of this paragraph;

(ii) where the relative amount 01' individual air contaminant compounds in subparagraph (A)(i) of this paragraph is not

known, any amount of thc mixture that cquals or cxcecds thc amount

I'or any single air contaminant compound that is present inthc mixturc

and listed in subparagraph (A)(i) of this paragraph;

(iii) where cach of the individual air contaminant

compounds listed in subparagraph (A)(i) of this paragraph arc known

to bc less than 0.02°;', by weight ofthe mixture, and each ofthe other individual air contaminant compounds covercd by subparagraph (A)(ii)

of this paragraph arc known to be less than 2,0% by weight ol'thc mixture, any total amount of the mixture of air contaminant compounds

grcater than or equal to 5,000 pounds; or

(iv) whcre natural gas excluding carbon dioxidc,

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

or air emissions from crude oil are known to be in an amount grcatcr

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

mcrcaptans in a total amount greater than 100 pounds, whichcver

occurs first;

standards; and

(ii) less than two times the concentration of applicable air emission limitations,

(HFCI ,j, I ,2,3 ,3,3-hcptall uoropropane

l, 1, l,3,3-pentaOuorobutane

pcntafluoroethanc (HFC-125) - 5,000

(-y -)

pounds;

(HFC-227ea);

5,000 pounds;

(-hh-)

365ml'c) - 5,000 pounds;

(-ii-)

pounds;

(-x-) ethylfluoride (HFC-161) 5,000

(-jj-) I, 1.2,2,3-pentafluoropropane (HFC245ca) - 5,000 pounds;

(-kk-) 1,I,2J,3-pcntafluoropropane (HFC245ca) - 5,000 pounds;

(-11-) I, 1,1 ,2,3-pentafluoropropane (HFC245eb) - 5,000 pounds;

(-mm-) t, I, I,J,J-pentafluoropropane

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

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

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

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

the HGB and BPA ozone nonattainment areas as defincd in paragraph

(70)(E)(i) and (iii) [f7l-1fL"iftlilAa fi-i-B] of this section, where thc RQ

must be 100 pounds;

(-rr-) l, I, I,2-tctrachlorodifluoroethanc

(CFC-I 12a) -5,000 pounds;

(-ss-) I, I,2,2-tetrafluoroethanc (HFC-134)

5,000 pounds;

(-z-) I, I, I,J,3,3-hexafluoropropane (HFC236I'a) - 5,000 pounds;

(-aa-) 1,I,I,2,J,J-hexafluoropropane

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

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

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

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

(-ee-) octanes (any isomer) - 5,000 pounds;

(.ff'-) oxidcs 01' nitrQgen - 200 pounds in

ozonc nonattainmcnt, ozonc maintcnance, carly action compact arcas,

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

other arcas of the statc, which should be uscd instcad 01' thc RQs I'or

nitrogen oxide and nitrogen dioxide providcd in 40 CFR !'art 302,

Table 302.4, the column "final RQ";

(-gg-) pentachlorofluoroethane (CFR-II I) -

(-uu-) I, I,2-trichloro-I,2,2-trifluoroethane

(CFR-113) - 5,000 pounds;

(-vv-) I,J, J-trichloro- 2,2,2- trilfJoroethane

(CFC-113a) - 5,000 pounds;

(-ww-) I, 1,l-trifluoro-2,2-dich loroethane

(HCFC-123) - 5,000 pounds;

(-xx-) I, I, I-trifluoroethane (HFC-143a) -

5,000 pounds;

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

pounds; or

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

HGB and BPA ozone nonattainment areas as defined in paragraph

@22 [t9lB] Rubbish--Nonputrescible solid waste, consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, fumiture, rubber, plastics, yard trimmings, leaves, and similar materials,

Noncombustible rubbish includes glass, crockery, tin cans, aluminum

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

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

Fahrenheit),

{2Q) [t9-B] Scheduled maintenance, startup, or shutdown

activity--For activities with unauthorized emissions that are expected

to exceed a reportable quantity (RQ), a scheduled maintenance, startup,

or shutdown activity is an activity that the owner or operator ofthe reg32 TexReg 720 February 23,2007 Texas Register
ulated entity whether performing or otherwise affected by the activity,

provides prior notice and a final report as required by § I0 1.211 of this

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

includes the information required in §1OJ.2ll of this title; and the actual unauthorized emissions from the activity do not exceed the emissions estimates submitted in the initial notification by more than an

RQ. For activities with unauthorized emissions that are not expected

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

shutdown activity is one that is recorded as required by §I0 1.211 of

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

of this title (relating to Emissions Event Reporting and Recordkeeping

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

recorded and reported as required by §10 1.211 of this title.

f.2..!.2 [flP-1] Sludge--Any solid or semi-solid, or liquid

waste generated from a municipal, commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive of the

treated effluent from a wastewater treatment plant; or air pollution

conlrol equipment.

f.212 f~] Smoke--Small gas-born particles resulting from

incomplete combustion consisting predominately of carbon and other

combustible material and present in sufficient quantity to be visible.

0J12 [t'M1] Solid waste--Garbage, rubbish, refuse, sludge

from a waste water treatment plant, water supply treatment plant, or

air pollution control equipment, and other discarded material, including solid, liquid, semisolid, or containerized gaseous material resulting

from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term does

not include:

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

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

Code, Chapter 26;

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

inert solid materials used to fill land, if the object of the fill is to make

the land suilable for the construction of surface improvements; or

(C) waste materials that result from activities associated with the exploration, development, or production of oil or gas,

or geothermal resources, and other substance or material regulated by

the Railroad Commission of Texas under Natural Resources Code,

§91.l 0 1, unless the waste, substance, or material results from activities

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, as amended

(42 United States Code, §§6901 el seq.).

f.2.12 [t9~] Sour crude--A crude oil that will emit a sour gas

when in equilibrium at atmospheric pressure.

.l2ll [~] Sour gas--Any natural gas containing more than

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

of total suifur per 100 cubic feet.

f.2§2 [(lhg] Source--A point of origin of air contaminants,

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

source owner, the executive director shall determine whether multiple

processes emitting air contaminants from a single point of emission

will be treated as a single source or as multiple sources.

f.212 [f9-8j] Special waste from health care-related facilities--A solid waste that if improperly treated or handled, may serve

to transmit infectious disease(s) and that is comprised ofthe following:

animal waste, bulk blood and blood products, microbiological waste,

patho logical waste, and sharps.

i.2.ID [(-991] Standard conditions--A condition at a temperature of 68 degrees Fahrenheit (20 degrees Centigrade) and a pressure

of 14.7 pounds per square inch absolute (101.3 kiloPascals). fPollCilanl

eeneentrations from atl incinerator will be eerFeC-tetl to tl eenffitten ef

~O-% a~ atf #' tfle inetnerator is epemti-ng at greater titan ~O% eliees-s air.]

f.2..2.2 [f+{l\B] Standard metropolitan statistical area--An area

consisting of a county or one or more contiguous counties that is officially so designated by the United States Bureau ofthe Budget.

(100) [(-1-{}+1] Submerged fill pipenA fill pipe that extends

from the top of a tank to have a maximum clearance ofsix inches (15.2

centimeters) from the bottom or, when applied to a tank that is loaded

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

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

liquid in normal operation.

QQl2 [~] Sulfur compounds--All inorganic or organic

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

U@ [~] Sulfuric acid mist/sulfuric acid--Emissions

of sulfuric acid mist and sulfuric acid are considered to be the same

air contaminant calculated as H,S04 and must include sulfuric acid liquid mist, sulfur trioxide, and sulfuric acid vapor as measured by Test

Method 8 in 40 Code ofFederal Regulations Part 60, Appendix A.

UQll [f-W41] Sweet crude oil and gas--Those crude petroleum hydrocarbons that are not "sour" as defined in this section.

{I 04) [~] Total suspended particulate--Particulate matter as measured by the method described in 40 Code of Federal Regulations Part 50, Appendix B.

{!@ [~] Transfer efficiency--The amount of coating

solids deposited onto the surface or a part ofproduct divided by the total

amount of coating solids delivered to the coating application syslem.

UQ§2 [~] True vapor pressure--The absolute aggregate

partial vapor pressure, measured in pounds per square inch absolute, of

all volatile organic compounds at the temperature ofstorage, handling,

or processing.

UQ7l [f-I-QS1] Unauthorized emissions--Emissions of any

air contaminant except carbon dioxide, water, nitrogen, methane,

ethane, noble gases, hydrogen, and oxygen that exceed any air emission limitation in a permit, rule, or order of the cOlmnission or as

authorized by Texas Clean Air Act, §382.0518(g).

ill~ [fUWt] Unplanned maintenance, startup, or shutdown activity--For activities with unauthorized emissions that are

expected to exceed a reportable quantity or with excess opacity, an

unplanned maintenance, startup, or shutdown activity is:

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

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

the type of event normally authorized by permit; or

(B) a maintenance activity that arises from sudden and

unforeseeable events beyond the control of the operator that requires

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

.liQ2l [fl-W)] Upset event--An [an] unplanned and unavoidable breakdown or excursion of a process or operation that

PROPOSED RULES FebruUlJI 23, 2007 32 TexReg 721
results in unauthorized emissions. A maintenance, startup, or shutdown activity that was reported under § J01.211 of this title (relating

to Scheduled Maintenance, Startup, and Shutdown Reporting and

Recordkeeping Requirements), but had emissions that exceeded

the reported amount by more than a reportable quantity due to an

unplanned and unavoidable breakdown or excursion of a process or

operation is an upset event.

QlQ) [f-!-++l] Utility boiler--A boiler used to produce electric power, steam, or heated or cooled air, or other gases or fluids for

sale.

UllJ [f-H~J Vapor combuslor--A partially enclosed combustion device used to destroy volatile organic compounds by smokeless combustion without extracting energy in the fonn of process heat

or steam. The combustion flame may be partially visible, but at no

time does the device operate with an uncontrolled flame. Auxiliary

fuel and/or a flame air control damping system that can operate at all

times to control the air/fuel mixture to the combustor's flame zone, may

be required to ensure smokeless combustion during operation.

(!lll [(-l-l-J-l] Vapor-mounted seal--A primary seal

mounted so there is an annular space underneath the seal. The annular

vapor space is bounded by the bottom of the primary seal, the tank

wall, the liquid surface, and the floating roof or cover.

LUll [f-l--I-4iJ Vent--Any duct, stack, chimney, flue, conduit, or other device used to conduct air contaminants into the atmosphere.

LU±l [f-I-l-:BJ Visible emissions--Particulate or gaseous

matter that can be detected by the human eye. The radiant energy

from an open flame is not considered [ta eel a visible emission under

this definition.

LIJi) [(--I-l.(}j] Volatile organic compound--As defined in 40

Code of Federal Regulations §51.100(s), except §51.100(s)(2) - (4), as

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

LilB [(+1--+-j] Volatile organic compound (VOC) water separator--Any tank, box, sump, or other container in which any VOC,

floating on or contained in water entering such tank, box, sump, or

other container, is physically separated and removed from such water

prior to outfall, drainage, or recovery of such water.

§IOI.23. Alternate Emission Reduction ("Bubble") Policv_

An owner or operator of any facility that is affected by any control

requirement of Chapters \11, 112, 113, 115, and 117 ofthis title (relating to Control of Air Pollution from Visible Emissions and Particulate

Matter; Control of Air Pollution from Sulfur Compounds; Standards

of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants; Control of Air Pollution from Volatile Organic

Compounds; and Control of Air Pollution from Nitrogen COll}PQl!.~

['fA-GB RegulatioflS -l-; H-; HI; ¥, ¥H; ll-fIa I*J adopted on or after March

30, 1979, may, prior to compliance with such requirement, request the

executive director to approve control of emissions from an alternate

facility or from alternate facilities located on the affected property and

owned or operated by or under the control of the owner or operator

of the affected facility in lieu of compliance with the requirement as

prescribed in the regulation, provided the alternate proposed controls

are not required by any Texas Commission on Environmental Quality (TCEQ) [:fAGBJ rule, regulation, permit condition, commission

[beafa] order, or court order. The executive director shall approve control of emissions from alternate facilities if the applicant demonstrates

that the alternate controls will yield, by the date specified in the rule,

emission reductions that are substantially equivalent to the emissions

reductions which would otherwise be required in terms of their quantity, character, air quality impacts including health and welfare effects,

32 TexReg 722 February 23,2007 Texas Register

and area affected. Facilities which receive the executive director's approval of an altemate emissions control plan will be deemed to have

complied with the otherwise applicable TCEQ [:rA-GB] rule. However,

the executive director may, after notice and opportunity for public hearing, revoke the credit or authority for alternate controls if the executive

director [he] determines that any of the prerequisites for approval of

the alternate controls are no longer met or if further emission reductions are needed to meet the intent ofthe Texas Clean Air Act.

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on February 9,

2007.

TRD-200700372

Robert Martinez

Director. Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25. 2007

For further information. please call: (512) 239-0348

30 TAC §101.22

(Editor:S note: The text ofthe following section proposed/iJr repeal

will not be published. The section may be examined in the offices o/the

Texas Commission on Environmental Quality or in the Texas Register

office. Room 245, James Earl Rudder Building. 1019 Brazos Street.

Austin.)

STATUTORY AUTHORITY

The repealed section is proposed under Texas Water Code,

§5.103, concerning Rules, and §5.105, concerning General

Policy, that authorize the commission to adopt rules necessary

to carry out its powers and duties under the Texas Water Code;

and under Texas Health and Safety Code (THSC), §382.017.

concerning Rules, that authorizes the commission to adopt

rules consistent with the policy and purposes of the Texas Clean

Air Act. The repealed section is also proposed under THSC,

§382.002, concerning Policy and Purpose, that establishes the

commission purpose to safeguard the state's air resources,

consistent with the protection of public health, general welfare,

and physical property; §382.011, concerning General Powers

and Duties, that authorizes the commission to control the quality

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

Plan, that authorizes the commission to prepare and develop a

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

The repealed section implements THSC. §§382.002, 382.011,

382.012, and 382.017; and Senate Bill 784. 79th Legislature,

2005.

§lOl.22. Effective Date_

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on February 9,

2007.

TRD-200700373
Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25, 2007

For further information, please cali: (512) 239-0348

SUBCHAPTER H. EMISSIONS BANKING

AND TRADING

DIVISION 1. EMISSION CREDIT BANKING

AND TRADING

30 TAC §101.302, §101.306

STATUTORY AUTHORITY

The amended sections are proposed under Texas Water Code,

§5,103, concerning Rules, and §5, 105, concerning General Policy, that authorize the commission to adopt rules necessary to

carry out its powers and duties under the Texas Water Code;

and under Texas Health and Safety Code (THSC), §382,017,

concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amended sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, that establishes the

commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011, concerning General Powers and

Duties, that authorizes the commission to control the quality of

the state's air; and §382.012, concerning State Air Control Plan,

that authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. The

amended sections are also proposed under THSC, §382.014,

concerning Emission Inventory, that authorizes the commission

to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop

an emissions inventory; and §382.051 and §382,0518, concerning Permitting Authority of Commission and Preconstruction Permit, that authorize the commission to issue preconstruction and

operating air permits, The amended sections are also proposed

under 42 USC, §7410(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, and 382.017; and Senate Bill 784, 79th Legislature,

2005.

§IOI.302, General Provisions.

(a) - (c) (No change.)

(d) Protocol.

(I) All generators or users of emission credits shall use a

protocol that has been submitted by the executive director to the EPA

for approval, if existing for the applicable facility or mobile source,

to measure and calculate baseline emissions. If the generator or user

wishes to deviate from a protocol submitted by the executive director,

EPA approval is required before the protocol can be used. Protocols

must be lIsed as follows.

(A) Facilities subject to the emission specifications

under §flll.-IIO, 117.210, 117.310, 117.410, 117.1010,117.1110,

117.1210.117.1310,117.2010,117.2110, or 117.3310 [f§-l++.+Q6;

+1-+.206; ef ~J of this title (relating to Emission Specifications

for Attainment Demonstration [f)emeRStfati.eas]; Emission Specifications for Eight-Hour Attainment Demonstration; and Emission

Specifications) shall quantify reductions in nitrogen oxide emissions

using the testing and monitoring methodologies identified to show

compliance with the emission specification.

(B) - (C) (No change,)

(2) - (3) (No change.)

(e) - (I) (No change.)

§IOI.306, Emission Credit Use,

(a) (No change.)

(b) Credit use calculation.

(I) - (2) (No change.)

(3) For emission credits used to comply with §§117.123.

117.223,117.320,117.323,117.423,117.1020. 117,1120, 117.1220,

or 117.3123 [f§-l~ ef~] of this title (relating to

[~ Gajr, atle] Source Cap; System Cap; and Dallas-Fon Worth

Eight-Hour Ozone Attainment Demonstration Control Requirements),

the number of emission credits needed for increasing the 30-day rolling

average emission cap or maximum daily cap should be determined according to the following equation plus an additional 10% to be retired

as an environmental contribution.

Figure: 30TAC §101.306(b)(3)

(4) (No change.)

(c) (No change.)

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on February 9,

02007.

TRD-200700374

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25, 2007

For further information, please cali: (512) 239-0348

DIVISION 3. MASS EMISSIONS CAP AND

TRADE PROGRAM

30 TAC §§101.350, 101.351, 101.353, 101.354, 101.360

STATUTORY AUTHORITY

The amended sections are proposed under Texas Water Code,

§5.103, concerning Rules, and §5.1 05, concerning General Policy, that authorize the commission to adopt rules necessary to

carry out its powers and duties under the Texas Water Code;

and under Texas Health and Safety Code (THSC), §382,017,

concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amended sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, that establishes the

commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011, concerning General Powers and

Duties, that authorizes the commission to control the quality of

PROPOSED RULES February 23, 2007 32 TexReg 723
the state's air; and §382.012, concerning State Air Control Plan,

that authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. The

amended sections are also proposed under THSC, §382.014,

concerning Emission Inventory, that authorizes the commission

to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop

an emissions inventory; §382.016, concerning Monitoring Requirements, that authorizes the commission to prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions; and §382.051 and §382.0518, concerning

Permitting Authority of Commission and Preconstruction Permit,

that authorize the commission to issue preconstruction and operating air permits. The amended sections are also proposed

under 42 USC, §741 0(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, and 382.017.

§IOI.350. Definitions.

The following words and terms, when used in this division, shall have

the following meanings, unless the context clearly indicates otherwise.

(I) - (9) (No changc.)

(10) Hotlston-Galveston-Brazoria (HCiill [Hour

ton/Ga-lvestoR EHGAi] ozone nonattainment area--As defined in

§10 1.1 of this title (rclating to Definitions).

(11) - (14) (No change.)

§IOI.351. Applicability.

(a) This division applies to all facilities which emit nitrogen

oxides (NO,) in the !:!guston- Galveston-Brazoria [HoustonlCialveston]

ozone nonattainment area, as defined in § 101.1 of this title (relating

to Definitions) which arc subject to the emission specifications under

§§LLL1J~117.12 I~0.!:-lJl20 I0 [*J+7.,-HJ6, +++.-W6, ef +J-f-4.:7-!i] 0 f

this title (relating to Emission Specifications for Attainment Demonstra1!2Jl [DemonsffatiDns] and Emission Specifications) and which arc:

(I) located at a site which meets the definition of major

source, as defined in §117.10 oflhis litle (re!ating to Definitions); t~] o!'

(2) (No change.)

(b) (No change.)

§IOI.353. AlIocation oj'AlJowances.

(a) Allowances will bc deposited into compliance accounts according to the following equation except as provided in subsection (b)

or (h) of this section.

Figure: 30 TAC §101.353(a)

(b) - (h) (No change.)

§IOI.354. Al10wance Deductions.

(a) Allowances will be deducted in tenths of a ton from a site's

compliance account for a control period based upon the monitoring

and testing protocols established in §§ 117.340, 117.1240, and 117.2035

[* 117.114, +~ami +J-7.A..79] ofthis title (relating to Continuous

Demonstration of Compliance; and Monitoring and Testing Requirements [~+estffig ilfl6 Monitoring .fer the Heuston/Galveston

Ati"afRffient Demonstration; ana Monitoring, Recordkeeping, aRfl -RepeFtiRg ReEtuirements]J.

(b) - (d) (No change.)

32 TexReg 724 February 23,2007 Texas Register

(e) Allowances shall be deducted from a site's compliance

account in an amount equal to the nitrogen oxides (NO,) emissions

increases from facilities not subject to an emission specification under

§117.310 or §117.2010 [tl-!-+.W6 ef f1--l~] of this title (relating

to Emission Specifications for Attainment Demonstration [±:lem(i!lstrati-ens]; and Emission Specifications) which result from changes

made after December 31, 2000, to facilities subject to this division

and § 117.3 I0(e)(3) [~6fIBE31]or §117.201O(Q [§-I-I-H'7~tA] of

this title. Documentation detailing these increases in NO. emissions

shall be included with the submittal of the ECT-! For~. Annual

Compliance Report.

(f) - (g) (No change.)

§I ()I. 360. Level oj'Activit)' Certijication.

(a) Thc owner or operator of any facibty subject to this division shall certify, no later than June 30, 2001, its historieallcvel oractivity by submitting to the executive director a completed ECT-3 Form,

Level of Activity Certification, along with any supporting informatioll

such as usage records, testing or monitoring data, emission factors. and

production records as follows:

(I) - (2) (No change.)

(3) for new and modified facilities not in operation prior

to January I, 1997, that arc subject to emission specifications under

.§.§117.310, J 17.1210, or 117.2010 [H117.I06, 6f H-+.4'7-!i]

ofthis title (relating to Emission Specifications for Attainmenl P~ll'1()ll::

stration [f}emenstratiens]; and Emission Specifications) that were first

adopted after April 1,2001, and either have submitted under Chapter

116 of this title an application which the executive director has determined to be administratively complete within 90 days of the effectivc

date of this emission specification, or have qualified for a permit by

rule under Chapter 106 of this title (frelating to Permits by R-u~~] and

have commenced construction within 90 days of the effective date of

the emission specification, the level of activity authorized by the executive director.

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

This agency hereby certifies that the proposal has been reviewed

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

Fiied v-Jith the Office of the Secretary of State on February 9,

2007.

TRD-200700375

Robert Martinez

Director. Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25. 2007

For further information. please call: (512) 239-0348

DIVISION 4. DISCRETE EMISSION CREDIT

BANKING AND TRADING

30 TAC §101.372, §101.376

STATUTORY AUTHORITY

The amended sections are proposed under Texas Water Code,

§5.1 03, concerning Rules, and §5.1 05, concerning General Policy, that authorize the commission to adopt rules necessary to

carry out its powers and duties under the Texas Water Code;

and under Texas Health and Safety Code (THSC), §382.017,
concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amended sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, that establishes the

commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011, concerning General Powers and

Duties, that authorizes the commission to control the quality of

the state's air; and §382.012, concerning State Air Control Plan,

that authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. The

amended sections are also proposed under THSC, §382.014,

concerning Emission Inventory, that authorizes the commission

to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop

an emissions inventory; and §382.051 and §382.0518, concerning Permitting Authority of Commission and Preconstruction Permit, that authorize the commission to issue preconstruction and

operating air permits. The amended sections are also proposed

under 42 USC, §741 0(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, and 382.017; and Senate Bill 784, 79th Legislature,

2005.

§101.372. General Provisions.

(a) - (c) (No change.)

(d) Protocol.

(I) All generators or users ofdiscrete emission credits must

use a protocol which has been submitted by the executive director to

the EPA for approval, if existing for the applicable facility or mobile

source, to measure and calculate baseline emissions. If the generator

or user wishes to deviate from a protocol submitted by the executive

director, EPA approval is required before the protocol can be used. Protocols shall be used as follows.

(A) Facilities subject to the emission specifications

under §Bill10, 117.210, 117.310, 117.410. 117.1010, 117.1110,

117.1210,117.1310, 117.2010, 117.2110. or 117.3310 [§§1l7.1O&;

6f~] of this title (relating to Emission Specifications

for Attainment Demonstration [Demonstrations]; Emission Specifications for Eight-Hour AttaiIUl1ent Demonstration; and Emission

Specifications) shall quantify reductions in NO, using the testing and

monitoring methodologies identified to show compliance with the

emission specification.

(B) Facilities subject to the requirements under

§§115.112, 115.121, 115.122,115.162,115.211, 115.212, 115.352,

115.421,115.541, or 115.542 of this title (relating to [Emission

j.fi~ aoo] Control Requirements and Emission Specifications)

shall quantify VOC reductions using the testing and monitoring

methodologies identified to show compliance with the emission

specifications or the requirements.

(C) (No change.)

(2) - (3) (No change.)

(e) - (m) (No change.)

§101.376. Discrete Emission Credit Use.

(a) - (c) (No change.)

(d) Notice of intent to use.

(I) (No change.)

(2) DERC use calculation.

(A) To calculate the amount of discrete emission credits necessary to comply with §lll1l23, 117.223, 117.320, 117.323,

117.423. 117.1020, ]]7.1120, 117.1220, 117.3020, or 117.3123

[Hl17.108, +J..+-.+3&, 6f -H~] of this title (relating to

[System 8ljT, itHe] Source Cap; System Cap; and Dallas-Fort Worth

Eight-Hour Ozone Attainment Demonstration Control Requirements),

a user may use the equations listed in those sections, or the following

equations.

(i) For the rolling average cap:

Figure: 30 TAC §I 01.376(d)(2)(A)(i)

(ii) For maximum daily cap:

Figure: 30 TAC §I01.376(d)(2)(A)(ii)

(B) - (E) (No change.)

(3) - (5) (No change.)

(e) (No change.)

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on February 9,

2007.

TRD-200700376

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25, 2007

For further information, please call: (512) 239-0348

DIVISION 5. SYSTEM CAP TRADING

30 TAC §101.383, §101.385

STATUTORY AUTHORITY

The amended sections are proposed under Texas Water Code,

§5.103, concerning Rules, and §5.105, concerning General Policy, that authorize the commission to adopt rules necessary to

carry out its powers and duties under the Texas Water Code;

and under Texas Health and Safety Code (THSC), §382.017,

concerning Rules, that authorizes the commission to adopt rules

consistent with the policy and purposes of the Texas Clean Air

Act. The amended sections are also proposed under THSC,

§382.002, concerning Policy and Purpose, that establishes the

commission purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and

physical property; §382.011, concerning General Powers and

Duties, that authorizes the commission to control the quality of

the state's air; and §382.012, concerning State Air Control Plan,

that authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air. The

amended sections are also proposed under THSC, §382.014,

concerning Emission Inventory, that authorizes the commission

to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop

an emissions inventory; and §382.051 and §382.0518, concerning Permitting Authority of Commission and Preconstruction Permit, that authorize the commission to issue preconstruction and

PROPOSED RULES February 23,2007 32 TexReg 725
operating air permits. The amended sections are also proposed

under 42 USC, §741 0(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, and 382.017; and Senate Bill 784, 79th Legislature,

2005.

§/O/.383. General Provisions.

(a) (No change.)

(b) System car limits for units within an electric rower generating system as regulated under ill1lQ2.0 r*-1-1-771-38] of lhis title

(relating [0 System Car) may be exceedcd with surrlus emission ailowables obtained for that calendar year from another source owner or

operator rartieirating in a system car.

(c) (No change.)

.\\'1 () 1.385. Recordke('IJing and Reporting.

(a) (No change.)

(b) The owner or operator of a source participating in a system

cap limit for sources subject to §117~}(llO r~H-1-'7-c~] of this title (relating to System Cap) shall submit to the executive director an annual

rerort.

(I) - (3) (No change.)

(c) (No change.)

This agency hereby certifies that the proposal has been reviewed

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

Filed with the Office of the Secretary of State on February 9,

2007.

TRD-200700377

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: March 25, 2007

For further information, please cali: (512) 239-0348

TITLE 31. NATURAL RESOURCES AND

CONSERVATION

PART 2. TEXAS PARKS AND

WILDLIFE DEPARTMENT

CHAPTER 53. FINANCE

Texas Parks and Wildlife Department (department) proposes

amendments to §§53,2, 53.5, 53.6, 53.12, and 53.13, concerning License Fees and Boat and Motor Fees, and §53.60

concerning Stamps. The proposed amendments are part of

an overall department initiative to reduce the number of types

of licenses sold by the department. By combining or replacing

certain licenses and license packages and eliminating others

that are not popular, the department will reduce administrative

costs and regulatory complexity while still offering a variety of

licenses to meet the various types of recreational demand.

32 TexReg 726 February 23, 2007 Texas Register

The proposed amendment to §53.2, concerning License Issuance Procedures, Fees, Possession and Exemption Rules,

would add a new paragraph (4) to subsection (a) to stipulate

that persons under the age of 17 are considered to be residents

for the purposes of the chapter. Under Parks and Wildlife Code,

§42.001, the commission is authorized to designate categories

of individual as residents. The proposed amendment to subsection (b)(2) would alter the license possession requirements

to acknowledge that, due to the implementation of the one-day

fishing package (which includes the saltwater stamp), the stamp

requirement is no longer universal.

The proposed amendment to §53.5, concerning Recreational

Hunting Licenses, Stamps, and Tags, would rename the Special Resident Hunting License to the Senior Resident Hunting

License, restrict its use to residents who are 65 years of age

or older, and create an additional license that is limited to persons under the age of 17. Under current rule, the Special Resident Hunting License is available to residents over the age of 65

and any person under 17 years of age, regardless of residency

status. The department wishes to be able to more accurately

track demographic trends in purchasing and use, which makes

it necessary to stratify the two age groups currently eligible to

purchase the special resident license. The price of the licenses

would remain unchanged.

The proposed amendment to §53.6, concerning Recreational

Fishing Licenses, Stamps, and Tags, would allow persons who

are legally blind to be eligible to purchase the Special Resident

Fishing License. The proposed amendment also would create a

Senior Resident Fishing License for residents who are 65 years

of age or older; create a Resident One-Day All-Water Fishing

License ($10 fee), a Nonresident One-Day All-Water Fishing license ($15 fee), rename the special license packages as senior

license packages, and would implement a fee of $3 for the Bonus

Red Drum Tag.

Under Parks and Wildlife Code, §46.004, the commission may

establish a lower fee or waive the fee or license requirement

for a resident who is blind as defined by Human Resources

Code, §94.001. The department has always allowed legally

blind persons to purchase a fishing license at a reduced cost;

however, this has never been explicitly stated by rule. The

proDosed amendment VJou!d accomclish that. The On8=Dav

All-Water license is intended to replace a variety of licenses.

To that end, the proposed amendment to subsection (c) would

also eliminate the following licenses: July and August Resident

Fishing, Day Resident Fishing, and Day Nonresident Fishing;

and the following license packages: July and August Resident

Fishing (freshwater, saltwater, all water) and both the resident

and nonresident "Day Plus" Fishing (freshwater, saltwater, all

water). The implementation of a fee for the bonus red drum tag

is necessary for the department to recoup the administrative

cost of providing anglers with the opportunity to take a red drum

in addition to the red drum allowed under a fishing license. The

proposed amendment also would eliminate obsolete references

to effective dates and make additional nonsubstantive changes

to simplify and clarify the regulations.

The proposed amendment to §53.12, concerning Commercial

Fishing Licenses and Tags, would eliminate both the Resident

and Nonresident Commercial Fishing Boat License and create a

single license for residents and nonresidents alike, which would

be called the Commercial Fishing Boat License; and the new

license would be required for any boat (resident or nonresident)

used in taking aquatic products (except menhaden, oysters,
Figure: 30 TAC §101.306(b)(3)

Calculation ofEmission Reductions Needed for System Cap or Source Cap

Where:

N = the total number of emission units in the source cap

i = each emission unit in the source cap

Hi = actual daily heat input, in million British thermal units (MMBtu) per day, as

calculated according to §§117.123(b)(1), 117.223(b)(1), 117.320(c)(1), 117.323(b)(1),

117.423(b)(1), 117.l020(c)(1), 117.1 120(c)(1), or 117.l220(c)(1) ofthis title

Ri=the facility's emission factor, in pounds (lb)/MMBtu, is defmed as in

§§117.l23(b)(1), 117.223(b)(1), 117.320(c)(I), 117.323(b)(1), 117.423(b)(1),

117.1020(c)(I), 117.1120(c)(1), or 117.1220(c)(1) ofthis title

Hn= the maximum daily heat input, in MMBtu per day, expected for an emission unit

during the use period

Rn= the maximum emission factor, in IblMMBtu, expected for an emission unit during the use period

32 TexReg 924 FebruaJJJ 23,2007 Texas Register
Figure: 30 TAC §101.353(a)

Where:

(1) A= number of allowances rounded to tenths oftons;

(2) B = the facility's baseline emission rate and is calculated as follows:

(A) For facilities in operation prior to January I, 1997:

B= (LAn *EF97) +(LA98 *EF98) +(LA99* EF99)

3(200Q

Where:

LA97 = the facility's level of activity, as certified by the executive

director for 1997;

LA98 = the facility's level of activity, as certified by the executive

director for 1998;

LA99 = the facility's level of activity, as certified by the executive

director for 1999;

EF97 = the facility's emission factor for 1997 or the emission

specifications under §§ 117.310, 117.1210, and 117.20 I0 of this title

(relating to Emission Specifications for Attainment Demonstration; and

Emission Specifications) (ESAD) whichever is higher, in pounds per unit

of activity, (not to exceed any applicable federal or state regulation, rule,

or permit limit), as certified by the executive director;

EF98 = the facility's emission factor for 1998 or the emission

specifications under ESAD, whichever is higher, in pounds per unit of

activity, (not to exceed any applicable federal or state regulation, rule, or

permit limit), as certified by the executive director;

EF99 = the facility's emission factor for 1999 or the emission

specifications under ESAD, whichever is higher, in pounds per unit of

activity, (not to exceed any applicable federal or state regulation, rule, or

permit limit), as certified by the executive director.

TABLES AND GRAPHICS February 23,2007 32 TexReg 925
(B) For existing facilities not in operation prior to January 1, 1997 and that have

been in operation less than five complete consecutive calendar years beginning

after the end ofthe adjustment period and have not established two years of

baseline data:

Where:

B LAALLOWABLE *EFALLOWABLE

2000

LAAllowable = The level of activity authorized by the executive director

until such time two consecutive calendar years of actual level of activity

data is available;

EFAllowable = The emission factor or the emission specifications under

ESAD, whichever is higher, authorized by the executive director until

such time two consecutive calendar years of actual emission data is

available.

(C) For existing facilities not in operation prior to January 1, 1997, and that have

established two consecutive calendar years of baseline data out ofthe first five

years of operation following the end ofthe adjustment period:

B = (LAYEAR -1 *EFYEAR -1) + (LA YEAR - 2*EFYEAR - 2)

2(2000)

Where:

LAYear-l = the facility's level of activity, as certified by the executive

director, for the first of any two consecutive years within the first five

years of operation;

LAYear-2 = the facility's level of activity, as certified by the executive

director, for the second of any two consecutive years within the first five

years of operation;

EFYear-l = the facility's emission factor or the emission specifications

under ESAD, whichever is higher, in pounds per unit of activity, (not to

exceed any applicable federal or state regulation, rule, or permit limit), as

certified by the executive director, for the first of any two consecutive

years within the first five years of operation;

32 TexReg 926 February 23, 2007 Texas Register
EFYear-2 = the facility's emission factor or the emission specifications

under ESAD, whichever is higher, in pounds per unit of activity, (not to

exceed any applicable federal or state regulation, rule, or permit limit), as

certified by the executive director, for the second of any two consecutive

years within the first five years of operation.

(3) X =reduction factor, where:

(A) For all boilers, auxiliary steam boilers, and stationary gas turbines (including

duct burners used in turbine exhaust ducts) within an electric power generating

system, as defined in §117.lO(l4)(A) of this title (relating to Definitions), located

in the Houston-Galveston-Brazoria nonattainment area:

(i) for January 1,2002 through March 31, 2003, X =0.00;

(ii) for April 1,2003 through March 31, 2004, X == 0.50;

(iii) on or after April I, 2004, X = 1.00;

(B) For facilities subject to the emission specifications under §117.310(a)(l)(A)

and (B), (2)(A), (5), (8)(A)(i), (8)(B), (9)(A)(ii), (10), or (11) ofthis title:

(i) for January 1,2002 through March 31, 2004, X = 0.00;

(ii) for April 1, 2004 through March 31, 2005, X = 0.47;

(iii) for April 1, 2005 through March 31,2006, X = 0.80;

(iv) for April 1,2006 through March 31, 2007, X == 0.93;

(v) on and after April 1, 2007, X = 1.00;

(C) For all other facilities:

(i) for January I, 2002 through March 31, 2004, X = 0.00;

(ii) for April 1,2004 through March 31,2005, X = 0.389;

(iii) for April 1, 2005 through March 31, 2006, X == 0.667;

(iv) for April 1, 2006 through March 31, 2007, X =0.778;

(v) on and after April 1, 2007, X = 1.00;

(D) Alternatively, facilities subject to the reduction factors under

subparagraph B of this paragraph may elect to comply with the following:

(i) for January 1,2002 through March 31, 2005, X=O.OO;

(ii) on and after April 1, 2005, X=l.OO.

TABLES AND GRAPHICS February 23,2007 32 TexReg 927
(E) Election to comply with the alternative reduction schedule under

subparagraph (D) ofthis paragraph shall be made by letter to the executive

director no later than April I, 2003.

(F) For calendar years which include two different reduction factors, the

reduction factor shall be adjusted using the appropriate ratio to reflect the number

of months covered by each reduction factor.

(4) LAHA =historical average level of activity, where:

(A) For facilities in operation on or before January I, 1997, the average level of

activity, as certified by the executive director, for 1997, 1998, and 1999; or

(B) For existing facilities which began operation after January 1, 1997, LARA is:

(i) the level of activity authorized by the executive director until such

time two consecutive calendar years of actual level of activity data is

available, beginning after the end ofthe adjustment period; or

(ii) when two complete consecutive calendar years of actual level of

activity data is available, beginning after the end ofthe adjustment

period, the level of activity becomes the average ofthe facility's actual

level of activity over those two consecutive calendar years of actual level

of activity data.

(5) EFfinal = emission factor, as listed in §§ 117.310, 117.1210, or 117.2010 ofthis title.

(6) For facilities using alternative emission specifications as allowed in §117.310(a)(l7)

or §II 7.201O(c)(6) of this title, the level of activity for any formula will be the lowest of

the level of activity as calculated in variables (2)(A), (2)(B), or the level of activity

limited by an enforceable limit or commitment necessary to qualify for an alternative

emission specification in .§117.31 0(a)(l7) or §117.201O(c)(6) ofthis title.

------------------------------------------------------

32 TexReg 928 FebrualJl 23, 2007 Texas Register
Figure: 30 TAC §101.376(d)(2)(A)(i)

Amount of DERCs N

Required = [(EH; x ER;) - (H; X R;)] x (2~OO) (tons)

Where:

d == the number of days in the use period

i == each emission unit in the source or system cap

N == the total number of emission units in the source or system cap

Hi == actual daily heat input, in million British thermal units (MMBtu) per day, as

calculated according to §§ 117.123(b)(1), 117.223(b)(1), 11 7.320(c)(1) and (2),

117.323(b)(1), 117.423(b)(1), 117.1020(c)(1), 117.1120(c)(l), 117.1220(c)(1), or

117.3020(c) ofthis title (relating to Source Cap; and System Cap) as applicable

R; == actual emission rate, in pounds (lb)/MMBtu, as defined in §§ 117.123(b)(1),

117.223(b)(1), 117.320(c)(1) and (2), 117.323(b)(1), 117.423(b)(1), 117.1020(c)(1),

117.1120(c)(1), 117.1220(c)(1), or 117.3020(c) of this title as applicable

EH; == expected new daily heat input, in MMBtu per day

ER; == expected new emission rate, in Ib/MMBtu.

TABLES AND GRAPHICS FebrualY 23, 2007 32 TexReg 929
Figure: 30 TAC §101.376(d)(2)(A)(ii)

N 1

Amount ofDERCS Required (tons)=:L[(EHMiXERi)-(HMiXRi)]--

i=1 2000

Where:

i = each emission unit in the source or system cap

N = the total number of emission units in the source or system cap

Ri = in lb/MMBtu, is defined as in §§ 117.123(b)(l), 117.223(b)(1), 117.320(c)(3),

117.323(b)(1), 117.423(b)(l), 117.1020(c)(2), 117.1120(c)(2), or 117.1220(c)(2) ofthis

title (relating to Source Cap; Emission Specifications for Attainment Demonstration; and

System Cap) as applicable

HMi = the maximum daily heat.input, in MMBtuJday, as defined in

§§117.123(b)(l), 117.223(b)(l), 117.320(c)(3), 117.323(b)(l), 117.423(b)(l),

117.1 020(c)(2), 117.1120(c)(2), or 117.1220(c)(2) ofthis title as applicable

EHMi = expected new maximum daily heat input, in MMBtu per day

ERi = expected new emission rate, in lb/MMBtu.

32 TexReg 930 FebrualJl 23, 2007 Texas Register
Kathleen Hartnett White, Chairman

Larry R. Soward, Commissioner

Martin A. Hubert, Commissioner

Glenn Shankle, Executive Director

Protecting Texas by Reducing and Preventing Pollution

NOTICE OF PUBLIC HEARING BY THE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

ON PROPOSED REVISIONS TO 30 TAC CHAPTER 101 AND

TO THE STATE IMPLEMENTATION PLAN

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

testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 101, General Air

Quality Rules, and to the state implementation plan (SIP), under the requirements of Texas Health and

Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal

Regulations §51.102 of the United States Environmental Protection Agency (EPA) regulations concerning

SIPs.

The proposed rulemaking would correct references to sections of 30 TAC Chapter 117 which are changing

due to the reorganization of Chapter 117. This rulemaking would also include revisions identified during

the last review of Chapter 101, including changes to the definitions of visible emissions, cold solvent

cleaning, conveyorized degreasing, open-top vapor degreasing, high-volume low-pressure spray guns, and

standard conditions. A definition for nitrogen oxides would be added, the definitions of hazardous waste

management facility and hazardous waste management unit would be deleted, references to the title of the

commission would be corrected, and an obsolete effective date section would be removed.

A public hearing on this proposal will be held in Austin, Texas, on March 20, 2007, at 10:00 a.m., in

Building B, Room 201A, at the Texas Commission on Environmental Quality complex located at 12100

Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested

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

when called upon in order of registration. There will be no open discussion during the hearing; however,

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

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

should contact Lola Brown, Office of Legal Services, at (512) 239-0348. Requests should be made as far in

advance as possible.

Comments may be submitted to Lola Brown, MC 205, Texas Register Team, Office of Legal Services,

Texas COlmnission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512)

239-4808. Electronic COlmnents may be submitted at http://www5.tceq.state.tx.us/rules/ecomments. The

comment period closes March 26, 2007. All comments should reference Rule Project Number 2006-053-

IOI-PR. The proposed rules may be viewed on the commission's Web site at

http://www.tceq.state.tx.us/nav/rules/propose_adopt. html. For further information or questions concerning

this proposal, please contact Becky Southard, Air Permits Division, at (512) 239-1638.

Issued in Austin, Texas, on Februal)' 7, 2007.

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

ORAL TESTIMONY 
Reference Number

W-l

W-2

INDEX OF WRITTEN TESTIMONY

Submitted Bv

The United States Environmental Protection Agency

Eternal Springs Wellness
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 6

1445 ROSS AVENUE, SUITE 1200

DALLAS, TX 75202-2733

I )

,~/

MAR 23 2007

Ms. Lola Brown

Texas Register Team (MC 205)

Office ofLegal Services

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, TX 78711-3087

RE: Rule Project Number 2006-053-101-PR

Dear Ms. Brown:

Thank you for the opportunity to review and comment on the proposed revisions

to the Texas Administrative Code (TAC) Title 30, Chapter 101 and the associated

revisions to the Texas State Implementation Plan (SIP). This proposed rulemaking

corrects cross references to sections in 30 TAC Chapter 117 that have changed as a result

ofthe Chapter 117 reorganization and includes changes to definitions and the removal of

obsolete sections. The Environmental Protection Agency (EPA) appreciates the time and

attention your staffhas devoted to processing this proposed rulemaking. In general, we

are supportive ofthis proposed rulemaking but would like to provide the following

comments for your consideration.

1. The EPA appreciates your efforts to update the defInitions and references

in Chapter 101 that are changing due to the reorganization ofChapter 117.

2. The Alternate Emission Reduction "Bubble" Policy at Chapter 101,

section 101.23 is not part ofthe federally approved regulations in the

Texas SIP. Therefore, EPA will be unable to approve the proposed

administrative changes to this section. We suggest that TCEQ clearly

identify this section and the proposed revisions as not part ofthe SIP.

Additionally, it is EPA's expectation that an alternative emission reduction

Internet Address (URL). http://Www.spa,gov

RecycledIReoyclable • Printed wnh Vegetable 011 Based Inks on ReCYCled Paper (MInimum 25% Postconsumer)
2

policy that is approved for an individual source in Texas would be

submitted as a case-specific revision to the SIP.

3. lfthe Texas Commission on Environmental Quality (TCEQ) intends to

propose the Alternate Emission Reduction Policy for inclusion in the

Texas SIP, this program would need to be developed and proposed in

accordance with EPA's guidance on economic incentive programs,

"Improving Air Quality with Economic Incentive Programs"

(January 2001, EPA-4521R-01-00l), in addition to meeting all other

applicable requirements ofthe Clean Air Act. We also strongly encourage

you to consult the Region 6 office for assistance during this rule

development process.

4. We note that the Chapter 101, Subchapter H, Division 1 Emission Credit

Banking and Trading Program applies to nonattainment areas. The

proposed revision to section 101.302(d)(l)(A) includes a citation to

section 117.3310, Emission Specifications for Eight-Hour Attainment

Demonstration for East Texas Combustion Control. The EPA believes

that the inclusion ofsection 117.3310 is incorrect since the East Texas

area is attainment for all pollutants.

5. There appears to be an inconsistency regarding the cement kilns under

section 117.3123 and the proposed revisions to section 101.306(b)(3) and

Figure 30 TAe § 101.306(b)(3). Section 101.306(b)(3) provides that

emission reduction credits can be used for compliance with the

requirements at section 117.3123, but section 11 7.3123 is not included in

the equation under Figure 30 TAC § 101.306(b)(3) "Calculation of

Emission Reductions Needed for System Cap or Source Cap".

Additionally, this same inconsistency appears in the proposed revisions to

sections 101.372(d)(1)(A), 101.376(d)(2)(A), and Figure 30 TAC §

1 (\1 ?"'/>';{A)'(")\(A)'(;\ ,,-rtho n;s"ret'" Pml'ssl'on Ct"'Q1"t Bankr;ngl '''n~ 'T',..."-l'n,, lVJ..J IU\..U \...~) J.) U.1. J. v LJI.. "" "",J.-J... ..... U . u.- ..... .LU._U.L6

Program. Please review and update the citations accordingly.

6. Section 101.306(b)(3) provides that the amount of emission credits needed

for increasing the 30-day rolling average emission cap or maximum daily

cap should be determined according to Figure 30 TAC § 101.306(b)(3).

We note that the citations to Chapter 117 in Figure 30 TAC §

101.306(b)(3) do not reference the maximum daily cap requirements.

Please review and update the citations accordingly.

7. Figure 30 TAC § 101.376(d)(2)(A)(ii) provides the calculation to

determine the number of discrete emission credits necessary to comply

with the maximum daily cap requirements in Chapter 117. We note that

sections 117.123(b)(1), 117.223(b)(1), 117.323(b)(1), and 117.423(b)(l)

refer to rolling 30-day average emission caps instead ofmaximum daily
3

caps. Please update the citations to reference the appropriate maximum

daily caps.

Thank you again for the opportunity to provide conunents. Please note that these

corrunents do not constitute final detenninations concerning approvability ofthe revisions

to the Texas SIP. We are providing these comments to assist TCEQ in the development

ofregulatory language. We look fOlWard to working with TCEQ as you move forward in

responding to these comments and finalizing the revisions to the Texas SIP. If you have

any questions, please call Ms. Adina Wiley ofmy staff at (214) 665-2115.

Sincerely yours,

ct~eobn8zJeffRobinson

Chief

Air Permits Section
02/26/2007 04:32 PM

First Name: michele

Last Name: bonilla

Company/Organization: elternal springs wellness

E-mail Address: mbonilla3@gmail.com

Street Address: 1712 fairview

City: houston

State: tx

Zip Code: 77006

Phone Number:

Fax Number:

Rule: 2006-053-101-PR

Comments:

i wanted to reference this and 2006-136114EN and tellyou that i want to be

sure that there are concrete way to achieve clean air in any proposal. i now

suffer from asthma and bronchitis die to the air quality of HOuston. As a

long time busines~ woman here, i want to continue to contribute to the economy

of Houston and do my workshopa dn businees here; yet there are so many cleaner

venues for my clientel that i am concerned about their well-being and the

economic impact on Houston. i would like to see the smog cleaned up now and

not by 2018. i have the priveledge of travel and would like to see us

implement the claifornia standards. I would like to see the VOC storage

tank/degasing regulations and rules strengthened and implemented by jan1,

2009. We are at a critical time and have been for the last 50 years, our

children and their children deserve a clean planet. i deserve to breathe and

not have to use inhalers. thank you for your consideration michele bonilla
INDEX OF ORAL TESTIMONY

Public Hearing

March 20, 2007, in Austin

No orals comments were received for the proposed rulemaking.
EVALUATION OF 

TESTIMONY 
Texas Commission on Environmental Quality__ INTEROFFICE MEMORANDUM

To:

Thru:

From:

Docket No.:

Subject:

Commissioners

LaDOlm<J CastaflUela, Chief Clerk

GleIm Shankle, Executive Director

Dan Eden, Deputy Director

Office of Permitting, Remediation, and Registration

2006-2026-RUL

Commission Approval for Rulemaking Adoption

Chapter 101, General Air Quality Rules

General Air Rules Citations

Rule Project No. 2006-053-101-PR

Date: July 6, 2007

Reasons for the rule pacl-age:

• Under what authority are we adopting these changes? Texas Water Code, §5.102, General

Powers, §5.103, Rules, and §5.105, General Policy; and Texas Health and Safety Code,

§382.002, Policy and Purpose, §382.011, General Powers and Duties, §382.012, State Air Control

Plan, §382.014, Emission Inventory, §382.016, Monitoring Requirements; Examination of

Records, §382.017, Rules, §382.051, Permitting Authority of Commission; Rules, and 42 United

States Code (USC), §741O(a)(2)(A), that requires state implementation plans (SIPs) to include

enforceable measures or techniques including economic incentives such as fees, marketable

permits, and auction of emission rights.

• Is this rulemaking required by federal rule or state statute? Cross-referencing revisions to

Chapter 101 were driven by the reorganization of Chapter 117, which also includes new sections

which are part of the federalJy required SIP. This ru1emaking is not required by state statute.

• Are there any legal deadlines by which these rules must be adopted or effecthe? No, but the

changes to Chapter 101 are intended to be effective as soon as possible after tbe cbanges

to Chapter 117 become effe~tive.

• What issue(s) or problem(s) are we trying to solve? Chapter 101 contains references to sections

of Chapter 1] 7 whicb are changing due to the reorganization for Chapter 117, requiring that the

cited references in Chapter 101 also change. This rule pacblge also includes revisions identified

during the last quadrennial review of Chapter 101.

• Why is it important that we do this rule p3ckage? Updating Chapter 101 will provide a more

correct and less confusing set of general rules for the regulated community and the agency.

• Other important background or historical information. None.

St:Ope of' the rulemaking:

The amendments would update the cross-references to Chapter 117 and make minor revIsIOns and

corrections (see staff recommendations).
Commissioners

Page 2

July 6, 2007

Re: Docket No. 2006-2026-RUL

Changes required by f~deral rule: Cross-referencing reVISIOns to Chapter 101 were driven by the

reorganization of Chapter 117 whicl] also includes new sections which are part of the federally required

SIP.

• Changes required by state statute: None.

• Staff recommendations that are not expressly required by federal rule or state statute:

Specifying that the definitions in §101.J apply to alJ air quality rules.

Changing definitions of cold solvent cleaning, conveyorized degreasing, and open-top

vapor degreasing by deleting the word "metal" so that the definition also applies to

cleaning non-metal parts.

Deleting definitions for hazardous waste management facility and hazardous waste

management unit as they are no longer used in the rules.

Revising the definition of high-volume, low-pressure spray guns to specify that the

operating pressure of this equipment is measured at the air cap.

Adding the Chapter 117 definition for nitrogen oxides.

Changing the definition for standard conditions by deleting the last sentence, "Pollutant

concentrations from an incinerator will be corrected to a condition of 50 percent excess air if

the incinerator is operating at greater than 50 percent excess air."

Updating the second sentence of the definition of visible emissions to read as fo]Jows:

"The radiant energy from an open flame is not considered a visible emission under this

definition," adding the word "not."

Repealing §101.22, Effective Date.

Impact on the regulated community:

• Who will be affect~d? Owners and operators of facilities su~ject to Chapter 101.

• Does it create a group of affected persons who were not affected previously? No.

• Will there be a fiscal impact? No.

lmpact on the public:

• Who wiJJ be affected'! N/A.

• Does it create a group of afTectecl persons who were not affected previously'! No.

• Will there be a riscal impact? No.

Impact 011 agency pl'()gnullS:

TIle changes to Chapter 101 will serve to more correctly reference the updated Chapter 117 and update the

definitions portion of the rule.
Commissioners

Page 3

July 6, 2007

Re: Docket No. 2006-2026-RUL

Stakeholder meetings:

• Have any stakeholder meetings been held? No.

• With whom? N/A.

• What were the general sentiments'! N/A.

• Were any changes made in response to stalceholder concerns? N/A.

Policy issues:

• What policy issues are affected'! None.

• Are any policies that are not currently based on rule being made into a rule? No.

• What are the consequences if this rulemaking is not approved to go forward? Chapter 101

would be inaccurate and difficult to cross-reference with Chapter 117.

• Are there aJternatives? No.

Potentially controversial matters: None.

Key points in adoption rulemaking schedule:

•

•

•

Texas Register publication date:

Anticipated effective date:

Six-month adoption deadline:

02123/07

08/l6/07

08123107

Public comment:

No comments were made al the public hearing. The United States Environmental Protection Agency (EPA)

and one organization provided written comments. The organization's comments did no! pertain to the rule

revision, but some of EPA's comments resulted in reference changes within the rule.

Significant changes from proposal:

EPA's concerns were generally dealing with references that were unrelated to the Chapter 117

reorganization. EPA also commented about inconsistencies in some sections of Subch8pter I-1 between the

cit8tioll references and the corresponding figures. The rule has been revised to correct these references.

There was one comment from EPA which asked for clarification as to whether or not a section was parl of

the SIP. The response to this commenl clarifies that §101 .23 is not part of tbe federally approved

regulations in the Tex.as SIP. The Commission currently applies the conditions of this section ei ther

lbrougll other rules of tbe commission or through individual permits. The Executive Director recommends

that tIle proposed amendments to §J 01.23 not be adopted.
Commissioners

Page 4

July 6,2007

Re: Docket No. 2006-2026-RUL

Agenc)' contacts:

Becky Southard, Rule Project Manager, 239-1638, Air Permits Division

Tim Eubank, Staff Attorney, 239-1976

Patricia Duron, Texas Register Coordinator, 239-6087

Attaclm1ents

cc: Chief Clerk, 5 copies

Executive Director's Office

David C. Schanbacher, P.E.

Jason Skaggs

Ashley K. Wadick

Becky Walker

Office of Genera] Counsel

Bec.l)' Southard

Patricia Duron

cc (without attachments):

Tim Eubank, Staff Attorney

Debi Dyer, Program Office Liaison

Tara Capobianco, Division Liaison

Booker Harrison, OL5 Liaison

Russ Kimble, OLS
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-101-PR

The Texas Commission on Environmental Quality (TCEQ or commission) adopts amendments to

Page I

§§10l.l, 101.302,101.306,101.350,101.351,101.353,101.354,101.360, 101.372,101.376,101.383,

and 101.385 and the repeal of § 101.22. Sections 101.1,101.302,101.306, 101.354,and 101.376 are

adopted with changes to the proposed text as published in the February 23, 2007 issue of the Texas

Register. Sections 101.22,101.350,101.351,101.353,101.360,101.372,101.383, and 101.385 are

adopted without changes to the proposed text and will not be republished.

The commission does not adopt the proposed amendments to §10 1.23 as published in the February 23,

2007, issue of the Texas Register.

The amended §§101.1, 101.302, 101.306, 101.350, 101.351,101.353,101.354,101.360,101.372,

101.376, 101.383, and 101.385 and the repeal of §101.22 will be submitted to the United States

Environmental Protection Agency (EPA) as revisions to the Texas State Implementation Plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The commission has adopted revisions to 30 Texas Administrative Code (30 TAC) Chapter 117, Control

of Air Pollution from Nitrogen Compounds, as part of the SIP for the Houston-Galveston-Brazoria (HGB)

and Dallas-Fort W0l1h nonattainment areas. Under those revisions, Chapter 117 was reorganized.

Chapter 101, General Air Quality Rules, contains references to sections of Chapter 117 which have

changed due to the reorganization, requiring that the cited references in Chapter 101 also change. This

adoption also includes revisions identified during the last quadrennial review ofChapter 10 I, including

changes to the definitions of cold solvent cleaning, conveyorized degreasing, high-volume low-pressure

spray guns. open top vapor degJ'easing, standard conditions, and visible emissions. Other changes include
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-10 I-PR

Page 2

the deletion of the definitions of hazardous waste management facility and hazardous waste management

unit, the addition of a definition for nitrogen oxides, and the removal of an obsolete effective date section.

EPA comments dealing with some references unrelated to the Chapter 117 reorganization, resulted in

some changes.

SECTION B YSECTION DfSCUSSJON

§1 ()1.1. Definitio/ls.

The commission adopts the modification ofthe opening paragraph of this section to specify that the

definitions in §101.1 apply to all air quality rules. The commission adopts the changes to the definitions

of cold solvent cleaning, conveyorized degreasing, and open-top vapor degreasing by deleting the word

"metal" so that the processes also apply to cleaning non-metal parts. The adopted amendment deletes the

definitions of hazardous waste management facility and hazardous waste management unit because

references to these definitions are not found in any of the air rules. The adopted revision to the definition

of high-volume low-pressure spray guns specifies that the operating pressure of this equipment is

measured at the air cap because this provides the most accurate measurement. The commission adopts

the addition of the definition of nitrogen oxides from Chapter 117 because this is a common term used

throughout the commission's air quality rules. The adopted amendment deletes the last sentence of the

definition of standard conditions that reads: "Pollutant concentrations from an incinerator will be

corrected to a condition of 50% excess air if the incinerator is operating at greater than 50e

X, excess air."

The amount of air present in combustion is variable and does not qualify as a standard condition. The

commission adopts the change in the second sentence of the definition of visible emissions to read: "The

radiant energy from an open flame is not considered a visible emission under this definition." Radiant

energy may manifest some visual effects but there is no air contaminant emitted.
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-10 I-PR

§101.22. Effective Date.

The commission adopts the repeal of this section because it is no longer required.

S~'1 01.302. General Provisions.

Page 3

The commission adopts the references to the newly renumbered Chapter 117 sections. The section has

been revised since proposal due to a comment submitted by the EPA to remove the reference to

§117.3310, Emission Specifications for Eight-Hour Attainment Demonstration, from §101.302(d)(1 )(A)

since the East Texas area is attainment for all pollutants.

§101.306. Emission Credit Use.

The commission adopts the references to the newly renumbered Chapter 117 sections. The section has

been revised since proposal to remove the reference to §117.3123 from §101.306(b)(3) because the rule

does not require it to be referenced in the equation under Figure 30 TAC §10 1.306(b)(3). Also,

references to maximum daily cap and references to emission credits that are to be used for compliance

with the requirements ono TAC Chapters 114, Control of Air Pollution from Motor Vehicles, Chapter

115, Control of Air Pollution from Volatile Organic Compounds (VOCs), or Chapter 117 or other

programs, were added to this section since proposal due to a comment submitted by the EPA.

§101.350. Definitions.

The commission adopts the replacement of the definition of Houston/Galveston (HGA) ozone

nonattainment area with HGB ozone nonattainment area because the name of the nonattainment area has

changed.
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-10 I-PR

§]()1.351. Appficahi/ity.

Page 4

The commission adopts the replacement of references to Chapter 117 section numbers with the newly

renumbered Chapter I 17 sections.

§lOl.353. Allocation ofA Ilowan ces.

The commission adopts the replacement of references to Chapter I 17 section numbers with the newly

renumbered Chapter 117 sections. This section has been changed since proposal to add references to

sections dealing with Initial Demonstration of Compliance. These changes were unrelated to the

comments submitted by EPA.

§lOl.354. Allowance Deductions.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly

renumbered Chapter 117 sections.

§lOl.360. Level ofActivity Cert!!teation.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly

renumbered Chapter 117 sections.

§lOJ.372. General Provisions.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly

renumbered Chapter 117 sections.
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-l0l-PR

§101.376. Discrete Emission Credit Use.

Page 5

The commission adopts the replacement ofreferences to Chapter 117 section numbers with the newly

renumbered Chapter 117 sections. This section has been changed since proposal due to a comment

submitted by the EPA to correctly reference maximum daily caps instead ofrolling 30-day average

emIssion caps.

§101.383. General Provisions.

The commission adopts the replacement ofreferences to Chapter 117 section numbers with the newly

renumbered Chapter 117 sections.

§101.385. Recordkeeping and Reporting.

The commission adopts the replacement ofreferences to Chapter 117 section numbers with the newly

renumbered Chapter 117 sections.

The commission also adopts minor administrative changes to address conformity to Texas Register

requirements and other agency rules and guidelines.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory impact analysis requirements

ofTexas Government Code, §200l.0225, and determined that this adoption is not subject to §200l.0225

because it does not meet the definition of a major environmental rule as defined in that statute. A "major

environmental rule" means a rule, the specific intent of which is to protect the environment or reduce

risks to human health from environmental exposure and that may adversely affect in a material way the
Texas Commission on Environmental Quality

Chapter 101 - General Air Qua lity Rules

Rule Project No. 2006-053-10 I-PR

Page 6

economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a

sector of the state. Although the ultimate intent is to protect the environment, these adopted amendments

are mainly the result of an administrative action only, to correct and update cross-references to Chapter

117, which has been reorganized, modify certain definitions, and make other procedural changes to

Chapter 101 .

Chapter 117, Control of Air Pollution from NitTogen Compounds, has been reorganized. Chapter 101,

General Air Quality Rules, contains extensive references to sections of Chapter 117 that were renumbered

because of the reorganization. The references contained in Chapter 101 must change accordingly. This

adoption also includes revisions identified during the last quadrennial review of Chapter 101 by the

executive director and includes changes to the definitions of visible emissions, cold solvent cleaning,

conveyorized degreasing, open- top vapor degreasing, high-volume low-pressure spray guns, and standard

conditions. Other adopted changes include deleting the definitions of hazardous waste management

facility and hazardous waste management unit, adding a definition for nitrogen oxides, and removing an

obsolete effective date section. The adopted rules will not adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state.

In addition, a regulatory impact analysis is not required because the rules do not meet any of the four

applicability criteria for requiring a regulatory impact analysis of a major environmental rule as defined in

the Texas Government Code. Section 2001.0225 applies only to a major environmental rule, the result of

which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law;

2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3)
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-101-PR

exceed a requirement of a delegation agreement or contract between the state and an agency or

Page 7

representative ofthe federal government to implement a state and federal program; or 4) adopt a rule

solely under the general powers ofthe agency instead of under a specific state law. This rulemaking does

not exceed a standard set by federal law, and the adopted requirements are consistent with applicable

federal standards. In addition, this adoption does not exceed an express requirement of state law and is

not adopted solely under the general powers ofthe agency, but is specifically authorized by the provisions

cited in the STATUTORY AUTHORITY section ofthis preamble. Finally, this rulemaking does not

exceed a requirement of a delegation agreement or contract to implement a state and federal program.

The commission solicited comments on the draft regulatory impact analysis detern1ination and no

comments were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed an analysis of whether the adopted rules

are subject to Texas Government Code, Chapter 2007. The primary purpose ofthe rulemaking is to

update references to sections of Chapter 117, which has been reorganized, to modify certain definitions,

and to make other procedural changes to Chapter 101. These amendments do not affect private property

in a manner that restricts or limits an owner's right to the propeliy that would otherwise exist in the

absence of the governmental action. Promulgation and enforcement ofthese adopted rules is neither a

statutory nor a constitutional taking because they do not affect private real property. Therefore, these

rules do not constitute a taking under Texas Government Code, Chapter 2007.
Texas Commission on EnvIronmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-10 I-PR

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

Page 8

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in

the Coastal Coordination Act Implementation Rules, 31 TAC §SOS .11 (b)(2), relating to rules subject to

the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal

Management Program (CMP) be considered during the rulemaking process. 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 amendments are consistent with CMP goals and

policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance

the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC

§50 1.l2( 1)). The adopted rules update references and definitions. No new sources of air contaminants

will be authorized and the revisions will maintain the same level of emissions control as previous rules.

The CMP policy applicable to this rulemaking action is the policy that the commission's rules comply

with federal regulations In 40 Code of Federal Regulations, to protect and enhance air quality in the

coastal areas (31 TAC §501.l4(q)). This rulemaking action complies with 40 Code of Federal

Regulations Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans.

Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is

consistent with CMP goals and policies.

The commission solicited comments on the consistency of this rulemaking, but no comments on the CMP

were received.
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-101-PR

PUBLIC COMMENT

Page 9

A public hearing on the proposal was held in Austin on March 20, 2007 at the TCEQ. No comments

were received at the public hearing. The commission received written comments from the EPA and

Eternal Springs Wellness during the public comment period, which closed on March 26,2007.

EPA suggested modifications to the adopted rules as stated in the RESPONSE TO COMMENTS section

of this preamble, and commented that they appreciate efforts made to update definitions and references in

Chapter 101 that are changing due to the reorganization of Chapter 117.

RESPONSE TO COMMENTS

Eternal Springs Wellness commented that they oppose delaying the plan until 2018 and would like to see

cleaner air now. Eternal Springs Wellness commented that they would like to see the implementation of

California standards and VOC storage tank/degassing regulations strengthened and implemented by

January 1, 2009.

The commission appreciates the commenters' interest in air quality. The comments do not relate to

the proposed Chapter 10] revisions, and no changes to the rule have been made in response to

them.

EPA noted that since §101.23 IS no longer part of the federally approved regulations in the Texas SIP,

they would be unable to approve the proposed administrative changes to this section.
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Project No. 2006-053-10 I-PR

Page 10

The commission agrees that §101.23 is not part of the federally approved regulations in the Texas

SIP. The commission applies the conditions of this section either through other rules of the

commission or throngh individual permits, and the proposed amendments to §101.23 have not been

adopted.

EPA noted that, to be included in the Texas SIP, the Alternate Emission Reduction Policy would need to

be developed in accordance with EPA's guidance on economic incentive programs, as well as meet

applicable Clean Air Act requirements.

The commission is not currently considering whether to adopt any rules regarding an alternate

emission reduction policy.

EPA commented that § I0 1.302(d)( I)(A) incorrectly references §117.3310, since emission reduction

credits (ERCs) only apply to nonattainment areas.

The rule has been revised to remove the reference to §117.3310.

EPA commented that there is an lIlconsistency in §10 1.306(b)(3) with Figure 30 TAC §101.306(b)(3) and

§101.376(d)(2) with Figure 30 TAC §101.376(d)(2)(A). Sections 101.306(b)(3) and 101.376(d)(2) allow

the use of credits for compliance with §117.3123 but the section is not included in the figures Figure: 30

TAC §101.306(b)(3) and Figure: 30 TAC §I01.376(d)(2)(A).
Texas Commission on Environmental Quality

Chapter 101 - General Air Quality Rules

Rule Proj ect No. 2006-053-10 I-PR

The rule has been revised to remove the reference to §117.3123 from §101.306(b)(3). Section

Page II

117.9800 allows ERCs and discrete emission reduction credits (DERCs) to be used for alternative

compliance with §117.3123. However, the equation to determine compliance to the source cap in

§117.3123 is different from the equations in Figure 30 TAC §101.306(b)(3) and Figure 30 TAC

§101.376(d)(2)(A)(i). For compliance with §117.3123, the equations in §117.3123 are required to be

used in place of Figure 30 TAC §101.306(b)(3) or Figure 30 TAC §101.376(d)(2)(A)(i).

EPA commented that Figure 30 TAC §101.306(b)(3) does not reference the maximum daily cap

requirements found in §10 1.306(b)(2).

The rule has been revised to include references to both the 30-day rolling average and the

maximum daily cap average requirements for system caps and source caps.

EPA commented that Figure 30 TAC §101.376(d)(2)(A)(ii) incorrectly references §§ 117.123(b)(1),

117.223(b)( 1), 117.323(b)( 1), and 117.423(b)( 1), which refer to rolling 30-day average emission caps

instead of maximum daily caps.

The rule has been revised to change the citations to §§117.123(b)(2), 117.223(b)(2), 117.323(b)(2)

and 117.423(b)(2).
STAFF 

RECOMMENDATIONS
CHAPTER 101: GENERAL AIR QUALITY RULES

SUBCHAPTER A: GENERAL RULES

§101.1

§101.1. Definitions.

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

commission, the terms used by the commission have the meanings commonly ascribed to them in the

field of air pollution control. In addition to the terms that are defined by the TCAA, the following terms,

when used in the air quality rules in this title, have the following meanings, unless the context clearly

indicates otherwise.

(1) Account--For those sources required to be permitted under Chapter 122 ofthis title

(relating to Federal Operating Permits Program), all sources that are aggregated as a site. For all other

sources, any combination of sources under common ownership or control and located on one or more

contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way,

waterways, or similar divisions.

(2) Acid gas flare--A flare used exclusively for the incineration of hydrogen sulfide and

other acidic gases derived from natural gas sweetening processes.

(3) Agency established facility identification nnmber--For the purposes of Subchapter

F ofthis chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown

Activities), a unique alphanumeric code required to be assigned by the owner or operator of a regulated

entity that the emission inventory repOliing requirements of §101.10 ofthis title (relating to Emissions

Inventory Requirements) are applicable to each facility at that regulated entity.
(4) Ambient air--That portion of the atmosphere, external to buildings, to which the

general public has access.

(5) Background--Background concentration, the level of air contaminants that cannot be

reduced by controlling emissions from man-made sources. It is determined by measuring levels in 110nurban arcas.

(6) BoiJer--Any combustion equipment fired with solid, liquid, and/or gaseous fuel used

to produce steam or to heat water.

(7) Capture system--All equipment (including, but not limited to, hoods, ducts, fans,

booths, ovens, dryers, etc.) that contains, collects, and transports an air pollutant to a control device.

(8) Captured facility--A manufacturing or production facility that generates an industrial

solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an

Il1tegrated waste management unit owned, operated by, and located within a contiguous manufacturing

complex.

(9) Carbon adsorber--An add-on control device that uses activated carbon to adsorb

volatile organic compounds from a gas stream.

(10) Carbon adsorption system--A carbon adsorber with an inlet and outlet for exhaust

gases and a system to regenerate the saturated adsorbent.
(11) Coating--A material applied onto or impregnated into a substrate for protective,

decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes,

sealants, adhesives, thinners, diluents, inks, maskants, and temporary protective coatings.

(12) Cold solvent cleaning--A batch process that uses liquid solvent to remove soils

from the surfaces of parts or to dry the parts by spraying, brushing, flushing, and/or immersion while

maintaining the solvent below its boiling point. Wipe cleaning (hand cleaning) is not included in this

definition.

(13) Combustion unit--Any boiler plant, furnace, incinerator, flare, engine, or other

device or system used to oxidize solid, liquid, or gaseous fuels, but excluding motors and engines used in

propel1ing land, water, and air vehicles.

(14) Combustion turbine--Any gas turbine system that is gas and/or liquid fuel fired

with or without power augmentation. This unit is either attached to a foundation or is portable equipment

operated at a specific minor or major source for more than 90 days in any 12-month period. Two or more

gas turbines powering one shaft will be treated as one unit.

(15) Commercial hazardous waste management facility--Any hazardous waste

management facility that accepts hazardous waste or polychlorinated biphenyl compounds for a charge,

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

from other facilities owned or effectively control1ed by the same person.

(16) Commercial incillerator--An incinerator used to dispose of waste material from

retail and wholesale trade establishments.
(17) Commercial medical waste incinerator--A facility that accepts for incineration

medical waste generated outside the property boundaries ofthe facility.

(18) Component--A piece of equipment, including, but not limited to, pumps, valves,

compressors, and pressure relief valves that has the potential to leak volatile organic compounds.

( 19) Condensate--Liqulds that result from the cooling and/or pressure changes of

produced natural gas. Once these liquids are processed at gas plants or refineries or in any other manner,

they are no longer considered condensates.

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

projects.

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

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

contam1l1ants to the atmosphere.

(22) Conveyorized degreasing--A solvent cleaning process that uses an automated parts

handling system, typically a conveyor, to automatically provide a continuous supply of parts to be cleaned

or dried using either cold solvent or vaporized solvent. A conveyorized degreasing process is fully

enclosed except for the conveyor inlet and exit portals.

(23) Criteria pollutant or standard--Any pollutant for which there is a national ambient

air quality standard established under 40 Code of Federal Regulations Part 50.
(24) Custody transfer--The transfer of produced crude oil andlor condensate, after

processing and/or treating in the producing operations, from storage tanks or automatic transfer facilities

to pipelines or any other forms of transportation.

(25) De minimis impact--A change in ground level concentration of an air contaminant

as a result ofthe operation of any new major stationary source or ofthe operation of any existing source

that has undergone a major modification that does not exceed the following specified amounts.

Figure: 30 TAC §101.1(25)

AIR CONTAMINANT ANNUAL 24-HOUR 8-HOUR 3-HOUR I-HOUR

Inhalable Particulate Matter (PMIO) 1.0 I1g/m3 5 I1g/m3

Sulfur Dioxide I.Ol1g/m3 5 ~lg/m3 25 ~lg/m3

Nitrogen Dioxide 1.0 ~lg/m3

Carbon Monoxide 0.5 mg/m3 2 mg/m3

(26) Domestic wastes--The garbage and rubbish nOffi1ally resulting from the functions of

life within a residence.

(27) Emissions banking--A system for recording emissions reduction credits so they

may be used or transferred for future use.

(28) Emissions evcllt--Any upset event or unscheduled maintenance, startup, or

shutdown activity, fi'om a common cause that results in unauthorized emissions of air contaminants fi'om

one or more emissions points at a regulated entity.
(29) Emissions reduction credit--Any stationary source emissions reduction that has

been banked in accordance with Chapter 101, Subchapter H, Division 1 of this title (relating to Emission

Credit Banking and Trading).

(30) Emissions reduction credit certificate--The certificate issued by the executive

director that indicates the amount of qualified reduction available for use as offsets and the length of time

the reduction is eligible for use.

(31) Emissions unit--Any part of a stationary source that emIts, or would have the

potential to emit, any pollutant subject to regulation under the Federal Clean Air Act.

(32) Excess opacity event--When an opacity reading is equal to or exceeds 15 additional

percentage points above an applicable opacity limit, averaged over a six-minute period.

(33) Exempt solvent--Those carbon compounds or mixtures of carbon compounds used

as solvents that have been excluded from the definition of volatile organic compound.

(34) External floating roof--A cover or roof in an open top tank that rests upon or is

floated upon the liquid being contained and is equipped with a single or double seal to close the space

between the roof edge and tank shell. A double seal consists of two complete and separate closure seals,

one above the other, containing an enclosed space between them.

(35) Federal motor vehicle regulation--Control of Air Pollution from Motor Vehicles

and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85.
(36) Federally enforceable--All limitations and conditions that are enforceable by the

United States Environmental Protection Agency administrator, including those requirements developed

under 40 Code of Federal Regulations (CFR) Parts 60 and 61; requirements within any applicable state

implementation plan (SIP); and any permit requirements established under 40 CFR §52.2l or under

regulations approved under 40 CFR Part 51, Subpart 1, including operating permits issued under the

approved program that is incorporated into the SIP and that expressly requires adherence to any permit

issued under such program.

(37) Flare--An open combustion unit (i.e., lacking an enclosed combustion chamber)

whose combustion air is provided by uncontrolled ambient air around the flame, and that is used as a

control device. A flare may be equipped with a radiant heat shield (with or without a refractory lining),

but is not equipped with a flame air control damping system to control the air/fuel mixture. In addition, a

flare may also use auxiliary fuel. The combustion flame may be elevated or at ground level. A vapor

combustor, as defined in this section, is not considered a flare.

(38) Fuel oiJ--Any oil meeting the American Society for Testing and Materials (ASTM)

specifications for fuel oil in ASTM D396-01, Standard Specifications for Fuel Oils, revised 2001. This

includes fuel oil grades 1, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light), 4, 5 (Light), 5 (Heavy), and 6.

(39) Fugitive emission--Any gaseous or particulate contaminant entering the atmosphere

that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening

designed to direct or control its flow.
(40) Garbage--Solid waste consisting of putrescible animal and vegetable waste

materials resulting from the handling, preparation, cooking, and consumption of food, including waste

materials from markets, storage facilities, and handling and sale of produce and other food products.

(41) Gasoline--Any petroleum distillate having a Reid vapor pressure of four pounds per

square inch (27.6 kilopascals) or greater that is produced for use as a motor fuel, and is commonly called

gasoline.

(42) Hazardous wastes--Any solid waste identified or listed as a hazardous waste by the

admll1lstrator of the United States Environmental Protection Agency under the federal Solid Waste

Disposal Act, as amended by Resource Conservation and Recovery Act, 42 United States Code, §§690 I

e! seq.. as amended.

(43) Heatset (used in offset lithographic printing)--Any operation where heat is

required to evaporate ink oil from the printing ink. Hot air dryers are used to deliver the heat.

(44) High-bake coatings--Coatings designed to cure at temperatures above 194 degrees

Fahrenheit.

(45) High-volume low-pressure spray guns--Equipment used to apply coatings by

means of a spray gun that operates between 0.1 and 10.0 pounds per square inch gauge air pressure

measured at the air cap.

(46) Incinerator--An enclosed combustion apparatus and attachments that is used in the

process of burning wastes for the primary purpose ofreducing its volume and weight by removing the
combustibles of the waste and is equipped with a flue for conducting products of combustion to the

atmosphere. Any combustion device that bums 10% or more ofsolid waste on a total British thermal unit

(Btu) heat input basis averaged over anyone-hour period is considered to be an incinerator. A combustion

device without instrumentation or methodology to determine hourly flow rates ofsolid waste and burning

1.0% or more of solid waste on a total Btu heat input basis averaged annually is also considered to be an

incinerator. An open-trench type (with closed ends) combustion unit may be considered an incinerator

when approved by the executive director. Devices burning untreated wood scraps, waste wood, or sludge

from the treatment of wastewater from the process mills as a primary fuel for heat recovery are not

included under this definition. Combustion devices permitted under this title as combustion devices other

than incinerators will not be considered incinerators for application of any rule within this title provided

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

(47) Industrial boiJer--A boiler located on the site of a facility engaged in a

manufacturing process where substances are transformed into new products, including the component

parts of products, by mechanical or chemical processes.

(48) Industrial furnace--Cement kilns; lime kilns; aggregate kilns; phosphate kilns; coke

ovens; blast furnaces; smelting, melting, or refining furnaces, including pyrometallurgical devices such as

cupolas, reverberator furnaces, sintering machines, roasters, or foundry furnaces; titanium dioxide

chloride process oxidation reactors; methane reforming furnaces; pulping recovery furnaces; combustion

devices used in the recovery of sulfur values from spent sulfuric acid; and other devices the commission

may list.

(49) Industrial solid waste--Solid waste resulting from, or incidental to, any process of

industry or manufacturing, or mining or agricultural operations, classified as follows.
(A) Class 1 industrial solid waste or Classl waste is any industrial solid waste

designated as Class 1 by the executive director as any industrial solid waste or mixture of industrial solid

wastes that because of its concentration or physical or chemical characteristics is toxic, corrosive,

flammable, a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, or other

means, and may pose a substantial present or potential danger to human health or the environment when

improperly processed, stored, transported, or otherwise managed, including hazardous industrial waste, as

defined in §335.1 and §3J5.505 of this title (relating to Definitions and Class I Waste Determination).

(B) Class 2 industrial solid waste is any individual solid waste or combination of

industrial solid wastes that cannot be described as Class 1 or Class 3, as defined in §335.506 ofthis title

(relating to Class 2 Waste Determination).

(C) Class 3 industrial solid waste is any inert and essentially insoluble industrial

solid waste, including materials such as rock, brick, glass, dirt, and certain plastics and rubber, etc., that

are not readdy decomposable as defined in §335.507 ofthis title (relating to Class 3 Waste

Determination).

(50) Internal floating cover--A cover or floating roof in a fixed roof tank that rests upon

or is floated upon the liquid being contained, and is equipped with a closure seal or seals to close the

space between the cover edge and tank shell.

(51) Leak--A volatile organic compound concentration greater than 10,000 parts per

million by volume or the amount specified by applicable rule, whichever is lower; or the dripping or

exuding of process fluid based on sight, smell, or sound.
(52) Liquid fuel--A liquid combustible mixture, not derived from hazardous waste, with

a heating value of at least 5,000 British thermal units per pound.

(53) Liquid-mounted seal--A primary seal mounted in continuous contact with the

liquid between the tank wall and the floating roof around the circumference ofthe tank.

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

nonattainment under the Federal Clean Air Act Amendments of 1990 and subsequently redesignated to

attainment subject to the requirement to develop a maintenance plan under 42 United States Code,

§7505a. The following are the maintenance areas within the state:

(A) Victoria Ozone Maintenance Area 60 (Federal Register (FR) 12453) -

Victoria County; and

(B) Collin County Lead Maintenance Area (64 FR 55421) - Portion of Collin

County. Eastside: Starting at the intersection of South Fifth Street and the fence line approximately 1,000

feet south ofthe Exide property line going nOlih to the intersection of South Fifth Street and Eubanks

Street; Northside: Proceeding west on Eubanks to the Burlington Railroad tracks; Westside: Along the

Burlington Railroad tracks to the fence line approximately 1,000 feet south ofthe Exide property line;

Southside: Fence line approximately 1,000 feet south of the Exide property line.

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

the requirements of 42 United States Code, §7505a.
(56) Marine vessel--Any watercraft used, or capable of being used, as a means of

transportation on water, and that is constructed or adapted to carry, or that carries, oil, gasoline, or other

volatile organic liquid in bulk as a cargo or cargo residue.

(57) Mechanical shoe seal--A metal sheet that is held vertically against the storage tank

wall hy springs or weighted levers and is connected by braces to the floating roof. A flexible coated fabric

(envelope) spans the annular space between the metal sheet and the floating roof.

(58) Medical waste--Waste materials identified hy the Department of State Health

Services as "special waste from health care-related facilities" and those waste materials commingled and

discarded with special waste from health care-related facilities.

(59) Metropolitan Planning Organization--That organization designated as heing

responsible, together with the state, for conducting the continuing, cooperative, and comprehensive

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

(60) Mobile emissions reduction credit--The credit obtained from an enforceable,

permanent, quantifiable, and surplus (to other federal and state rules) emissions reduction generated by a

mobile source as set forth in Chapter 114, Subchapter F of this title (relating to Vehicle Retirement and

Mobile Emission Reduction Credits), and that has been hanked in accordance with Subchapter H,

Division 1 of this chapter.

(61) Motor vehicle--A self-propelled vehicle designed for transporting persons or

property on a stTeet or highway.
(62) Motor vehicle fuel dispensing facility--Any site where gasoline is dispensed to

motor vehicle fuel tanks from stationary storage tanks.

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

community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, street

cleanings, dead animals, abandoned automobiles, and all other solid waste except industrial solid waste.

(64) Municipal solid waste facility--A11 contiguous land, structures, other

appurtenances, and improvements on the land used for processing, storing, or disposing of solid waste. A

facility may be publicly or privately owned and may consist of several processing, storage, or disposal

operational units, e.g., one or more landfills, surface impoundments, or combinations ofthem.

(65) Municipal solid waste landfill--A discrete area ofland or an excavation that

receives household waste and that is not a land application unit, surface impoundment, injection well, or

waste pile, as those terms are defined under 40 Code of Federal Regulations §257.2. A municipal solid

waste landfill (MSWLF) unit also may receive other types ofResource Conservation and Recovery Act

Subtitle D wastes, such as commercial solid waste, nonhazardous sludge, conditionally exempt smallquantity generator waste, and industrial solid waste. Such a landfill may be publicly or privately owned.

An MSWLF unit may be a new MSWLF unit, an existing MSWLF unit, or a lateral expansion.

(66) National ambient air quality standard--Those standards established under 42

United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, ozone,

inhalable particulate matter, and sulfur dioxide.
(67) Net ground-level concentration--The concentration of an air contaminant as

measured at or beyond the property boundary minus the representative concentration flowing onto a

property as measured at any point. Where there is no expected influence of the air contaminant flowing

onto a property from other sources, the net ground level concentration may be determined by a

measurement at or beyond the property boundary.

(68) Ncw sourcc--Any stationary source, the construction or modification of which was

commenced after March 5, 1972.

(69) Nitrogen oxides (NOx)--The sum of the nitrIC oxide and nitrogen dioxide m the flue

gas or emission point, collectively expressed as nitrogen dioxide.

(70) Nonattainment area--A defined region within the state that is designated by the

United States Environmental Protection Agency (EPA) as failing to meet the national ambient air quality

standard for a pollutant for which a standard eXists. The EPA will designate the area as nonattainment

under the provisions of 42 United States Code, §7407(d). For the official list and boundaries of

nonattamment areas, see 40 Code of Federal Regulations Part 81 and pertinent Federal Register (FR)

notices. The following areas comprise the nonattainment areas within the state for all national ambient all'

quality standards (NAAQS). EPA has indicated that it will revoke the one-hour ozone standard in full,

including the associated designations and classifications, on June 15,2005, which is one year following

the effective date ofthe designations for the eight-hour NAAQS ofJune 15,2004.

(A) Carbon monoxide (CO). EI Paso CO nonattainment area (56 FR 56694)--

Classified as a Moderate CO nonattainment area with a design value less than or equal to 12.7 parts per

million. Portion of E1 Paso County. Portion ofthe city limits ofEI Paso: That portion of the City of El
Paso bounded on the north by Highway 10 from Porfirio Diaz Street to Raynolds Street, Raynolds Street

from Highway 10 to the Southern Pacific Railroad lines, the Southern Pacific Railroad lines from

Raynolds Street to Highway 62, Highway 62 from the Southern PacifIc Railroad lines to Highway 20, and

Highway 20 from Highway 62 to Polo Inn Road. Bounded on the east by Polo Inn Road from Highway

20 to the Texas-Mexico border. Bounded on the south by the Texas-Mexico border from Polo Inn Road to

Porfirio Diaz Street. Bounded on the west by Porfirio Diaz Street from the Texas-Mexico border to

Highway 10.

(B) Inhalable particulate matter (PM10)' El Paso PM10 nonattainment area (56 FR

56694)--Classified as a Moderate PM10 nonattainment area. Portion of El Paso County that comprises the

EI Paso city limit boundaries as they existed on November 15, 1990.

(C) Lead. No designated nonattainment areas.

(D) Nitrogen dioxide. No designated nonattainment areas.

(E) Ozone (one-hour).

(i) Houston-Galveston-Brazoria (HGB) one-hour ozone nonattainment

area (56 FR 56694) - Classified as a Severe-17 ozone nonattainment area. Consists ofBrazoria,

Chambers, Fort Bend, Galveston, Harris, LibeIiy, Montgomery, and Waller Counties.

(ii) El Paso one-hour ozone nonattainl11ent area (56 FR 56694) -

Classified as a Serious ozone nonattainment area. Consists of El Paso County.
(iii) Beaumont-Port Arthur (BPA) one-hour ozone nonattainment area

(69 FR 16483) - Classified as a Serious ozone nonattainment area. Consists of Hardin, Jefferson, and

Orange Counties.

(iv) Dallas-Fort Worth one-hour ozone nonattainment area (63 FR 8128)

- Classified as a Serious ozone nonattainment area. Consists of Collin, Dallas, Denton, and Tarrant

Counties.

(F) Ozone (eight-hour).

(i) HGB eight-hour ozone nonattainment area (69 FR 23936) - Classified

as a Moderate ozone nonattainment area. Consists of Brazoria, Chambers, Fort Bend, Galveston, Harris,

Libeliy, Montgomery, and Waller Counties.

(ii) BPA eight-hour ozone nonattainment area (69 FR 23936) -

Classified as a Marginal ozone nonattainment area. Consists of Hardin, Jefferson, and Orange Counties.

(iii) Dallas-Fort Worth eight-hour ozone nonattainment area (69 FR

23936) - Classified as a Moderate ozone nonattainment area. Consists of Collin, Dallas, Denton, Ellis,

Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties.

(iv) San Antonio eight-hour ozone nonattainment area (69 FR 23936) -

Classified under the Federal Clean Air Act, Title I, Part D, Subpart 1 (42 United States Code, §7502),

nonattainment deferred to September 30,2005, or as extended by EPA.

(G) Sulfur dioxide. No designated nonattainment areas.
(71) Non-reportable emissions event--Any emissions event that in any 24-hour period

does not result in an unauthorized emission from any emissions point equal to or in excess ofthe

reportable quantity as defined in this section.

(72) Opacity--The degree to which an emission of air contaminants obstructs the

transmission of light expressed as the percentage of light obstructed as measured by an optical instrument

or trained observer.

(73) Open-top vapor degreasing--A batch solvent cleaning process that is open to the

air and that uses boiling solvent to create solvent vapor used to clean or dry parts through condensation of

the hot solvent vapors on the parts.

(74) Outdoor burning--Any fire or smoke-producing process that is not conducted in a

combustion unit.

(75) Particulate matter--Any material, except uncombined water, that exists as a solid

or liquid in the atmosphere or in a gas stream at standard conditions.

(76) Particulate matter emissions--All finely-divided solid or liquid material, other than

uncombined water, emitted to the ambient air as measured by United States Environmental Protection

Agency Reference Method 5, as specified at 40 Code of Federal Regulations (CFR) Part 60, Appendix A,

modified to include particulate caught by an impinger train; by an equivalent or alternative method, as

specified at 40 CFR Part 51; or by a test method specified in an approved state implementation plan.
(77) Petroleum retinery--Any facility engaged in producing gasoline, kerosene,

distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of crude oil, or

through the redistillation, cracking, extraction, reforming, or other processing of unfinished petroleum

derivatives.

(78) PMw--Particulate matter with an aerodynamic diameter less than or equal to a

nominal ten micrometers as measured by a reference method based on 40 Code of Federal Regulations

(CFR) Part 50, Appendix J, and designated in accordance with 40 CFR Part 53, or by an equivalent

method designated with that Part 53

(79) PMlO emissions--Finely-divided solid or liquid material with an aerodynamic

diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an

applicable reference method, or an equivalent or alternative method specified in 40 Code of Federal

Regulations Part 51, or by a test method specified in an approved state implementation plan.

(80) Polychlorinated biphcnyl compound--A compound subject to 40 Code of Federal

Regu lations Part 761.

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

commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters,

and equipment used in connection therewith, and all other methods or forms of manufacturing or

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

(82) Process weight pcr hour--"Process weight" is the total weight of all materials

introduced or recirculated into any specific process that may cause any discharge of air contaminants into

the atmosphere. Solid fuels charged into the process will be considered as part of the process weight, but
liquid and gaseous fuels and combustion air will not. The "process weight per hour" will be derived by

dividing the total process weight by the number of hours in one complete operation from the beginning of

any given process to the completion thereof, excluding any time during that the equipment used to

conduct the process is idle. For continuous operation, the "process weight per hour" will be derived by

dividing the total process weight for a 24-hour period by 24.

(83) Property--Allland under common control or ownership coupled with all

improvements on such land, and all fixed or movable objects on such land, or any vessel on the waters of

this state.

(84) Reasonable further progress--Annual incremental reductions in emissions·ofthe

applicable air contaminant that are sufficient to provide for attainment of the applicable national ambient

air quality standard in the designated nonattainment areas by the date required in the state implementation

plan.

(85) Regulated entity--All regulated units, facilities, equipment, structures, or sources at

one street address or location that are owned or operated by the same person. The tern1 includes any

property under common ownership or control identified in a permit or used in conjunction with the

regulated activity at the same street address or location. Owners or operators of pipelines, gathering lines,

and flowlines under common ownership or control in a particular county may be treated as a single

regulated entity for purposes of assessment and regulation of emissions events.

(86) Remote reservoir cold solvent cleaning--Any cold solvent cleaning operation in

which liquid solvent is pumped to a sink-like work area that drains solvent back into an enclosed

container while parts are being cleaned, allowing no solvent to pool in the work area.
(87) Reportable emissions event--Any emissions event that in any 24-hour period,

results in an unauthorized emission from any emissions point equal to or in excess ofthe reportable

quantity as defined in this section.

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

(A) for individual air contaminant compounds and specifically listed mixtures by

name or Chemical Abstracts Service (CAS) number, either:

(i) the lowest ofthe quantities:

(I) listed in 40 Code of Federal Regulations (CFR) Part 302,

Table 302.4, the column "final RQ";

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

"Reportable Quantity"; or

(Ill) listed as follows:

(-a-) acetaldehyde - 1,000 pounds, except in the

Houston-Galveston-Brazoria (HGB) and Beaumont-Port Arthur (BPA) ozone nonattainment areas as

defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ mllst be 100 pounds;

(-b-) butanes (any isomer) - 5,000 pounds;
(-c-) butenes (any isomer, except 1,3-butadiene) - 5,000

pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (70)(E)(i) and

(iii) of this section, where the RQ must be 100 pounds;

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

(-e-) l-chloro-l, l-difluoroethane (HCFC-142b) - 5,000

pounds;

(-f-) chlorodifluoromethane (HCFC-22) - 5,000 pounds;

(-g-) l-chloro-I-fluoroethane (HCFC-15Ia) - 5,000

pounds;

(-h-) chlorofluoromethane (HCFC-31) - 5,000 pounds;

(-i-) chloropentafluoroethane (CFC-115) - 5,000 pounds;

(-j-) 2-chloro-l, 1,1 ,2-tetrafluoroethane (HCFC-124) -

5,000 pounds;

(-k-) l-chloro-I,1,2,2 tetTafluoroethane (HCFC-124a)-

5,000 pounds;

(-1-) 1, U ,2,3,4,4,5,5,5-decafluoropentane (HFC 43-

10mee) - 5,000 pounds;
pounds;

225ca) - 5,000 pounds;

225cb) - 5,000 pounds;

5,000 pounds;

pounds;

5,000 pounds;

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

(-n-) I,I-dichloro-I-fluoroethane (HCFC-14Ib) - 5,000

(-0-) 3,3-dichloro-l, I,2,2-pentafluoropropane (HCFC-

(-p-) I,3-dichloro-l, I,2,2,3-pentafluoropropane (lICFC-

(-q-) 1,2-dichloro-I,1 ,2,2-tetrafluoroethane (CFR-114)-

(-r-) 1,1- dichlorotetTafluoroethane (CFC-114a) - 5,000

(-s-) I,2-dichloro-l, I,2-trifluoroethane (HCFC-123a) -

(-t-) I, I-difluoroethane (HFC-152a) - 5,000 pounds;

(-u-) difluoromethane (HFC-32) - 5,000 pounds;
(-v-) ethanol- 5,000 pounds;

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

BPA ozone nonattainment areas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ

must be 100 pounds;

(-x-) ethylfluoride (HFC-161) - 5,000 pounds;

(-y -) 1,1,1,2,3,3,3-heptat1uoropropane (HFC-227ea);

(-z-) 1,1,1,3,3,3-hexat1uoropropane (HFC-236fa) - 5,000

pounds;

(-aa-) 1,1,1,2,3,3-hexat1uoropropane (HFC-236ea)-

5,000 pounds;

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

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

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

(-ee-) octanes (any isomer) - 5,000 pounds;
(-ff-) oxides of nitrogen - 200 pounds in ozone

nonattainment, ozone maintenance, early action compact areas, Nueces County, and San Patricio County,

and 5,000 pounds In all other areas ofthe state, which should be used instead of the RQs for nitTogen

oxide and nitrogen dioxide provided in 40 CFR Part 302, Table 302.4, the column "final RQ";

(-gg-) pentachlorot1uoroethane (CFR-l !!) - 5,000

pounds;

(-hh-) 1, 1,1 ,3,3-pentafluorobutane (HFC-3G5mfc) -

5,000 pounds;

(-il-) pentafluoroethane (HFC-125) - 5,000 pounds;

(-jj-) 1,1 ,2,2,3-pentafluoropropane (HFC-245ca) - 5,000

pounds;

(-kk-) 1,1 ,2,3,3-pentalluoropropane (HFC-245ea) -

5,000 pounds;

(-11-) 1,1,1 ,2,3-pentafluoropropane (HFC-245eb) - 5,000

pounds;

(-mm-) 1,1,1 ,3,3-pentafluoropropane (HFC-245fa) -

5,000 pounds;

(-nn-) pentanes (any isomer) - 5,000 pounds;
(-00-) propane - 5,000 pounds;

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

BPA ozone nonattainment areas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ

must be 100 pounds;

(-qq-) 1,1,2,2-terachlorodifluoroethane (CFR -112)-

5,000 pounds;

(-rr-) 1,1,l,2-tetrachlorodifluoroethane (CFC-112a)-

5,000 pounds;

(-ss-) 1,1 ,2,2-tetrafluoroethane (HFC-134) - 5,000

pounds;

(-tt-) 1,1,1 ,2-tetrafluoroethane (HFC-134a) - 5,000

pounds;

(-uu-) 1,1 ,2-trichloro-l ,2)-trifluoroethane (CFR-I13) -

5,000 pounds;

(-vv-) 1,1,I-trichloro- 2,2,2- trilfloroethane (CFC- 113a)

- 5,000 pounds;
(-ww-) 1,1,I-trifluoro-2,2-dichloroethane (HCFC-123)-

5,000 pounds;

(-xx-) 1, I, I-trifluoroethane (HFC-143a) - 5,000 pounds;

(-yy-) tri nuoromethane (HFC-23) - 5,000 pounds; or

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

BPA ozone nonattainment areas as defined in paragraph (70)(E)(i) and (iii) ofthis section, where the RQ

must be 100 pounds;

(ii) ifnot listed in clause (i) of this subparagraph, 100 pounds;

(B) for mixtures of air contaminant compounds:

(i) where the relative amount of Individual air contaminant compounds is

known through common process knowledge or prior engineering analysis or testing, any amount of an

individual air contaminant compound that equals or exceeds the amount specified in subparagraph (A) of

this paragraph;

(ii) where the relative amount of indivIdual air contaminant compounds

in subparagraph (A)(i) ofthis paragraph is not known, any amount of the mixture that equals or exceeds

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

subparagraph (A)(i) of this paragraph;
(iii) where each of the individual air contaminant compounds listed in

subparagraph (A)(i) ofthis paragraph are known to be less than 0.02% by weight of the mixture, and each

ofthe other individual air contaminant compounds covered by subparagraph (A)(ii) ofthis paragraph are

known to be less than 2.0% by weight ofthe mixture, any total amount ofthe mixture of air contaminant

compounds greater than or equal to 5,000 pounds; or

(iv) where natural gas excluding carbon dioxide, water, nitrogen,

methane, ethane, noble gases, hydrogen, and oxygen or air emissions from crude oil are known to be in an

amount greater than or equal to 5,000 pounds or the associated hydrogen sulfide and mercaptans in a total

amount greater than 100 pounds, whichever occurs first;

(C) for opacity from boilers and combustion turbines as defined in this section

fueled by natural gas, coal, lignite, wood, fuel oil containing hazardous air pollutants at a concentration of

less than 0.02% by weight, opacity that is equal to or exceeds 15 additional percentage points above the

applicable limit, averaged over a six-minute period. Opacity is the only RQ applicable to boilers and

combustion turbines described in this paragraph; or

(D) for facilities where air contaminant compounds are measured directly by a

continuous emission monitoring system providing updated readings at a minimum IS-minute interval an

amount, approved by the executive director based on any relevant conditions and a screening model, that

would be reported prior to ground level concentrations reaching at any distance beyond the closest

regulated entity property line:

(i) less than one-half of any applicable ambient air standards; and
(ii) less than two times the concentration of applicable air emission

limitations.

(89) Rubbish--Nonputrescible solid waste, consisting of both combustible and

noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior,

furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish

includes glass, crockery, tin cans, aluminum cans, metal furniture, and like materials that will not burn at

ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).

(90) Scheduled maintenance, startup, or shutdown activity--For activities with

unauthorized emissions that are expected to exceed a reportable quantity (RQ), a scheduled maintenance,

startup, or shutdown activity is an activity that the owner or operator ofthe regulated entity whether

performing or otherwise affected by the activity, provides prior notice and a final report as required by

§ I0 1.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and

Recordkeeping Requirements); the notice or final report includes the information required in § 101.211 of

this title; and thc actual unauthorized cmissions from the activity do not exceed the emissions estimates

submitted in the initial noti fication by more than an RQ. For activities with unauthorized emissions that

are not expected to, and do not, exceed an RQ, a scheduled maintenance, startup, or shutdown activity is

one that is recorded as requ ired by § 101.21 I of this title. Expected excess opacity events as described in

§I01.20 I(e) of this title (relating to Emissions Event Reporting and Recordkeeping Requirements)

resulting from scheduled maintenance, startup, or shutdown activities are those that provide prior notice

(if required), and are recorded and reported as required by § 1OJ .211 ofthis title.
(91) Sludge--Any solid or semi-solid, or liquid waste generated from a municipal,

commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive ofthe

treated effluent from a wastewater treatment plant; or air pollution control equipment.

(92) Smoke--Small gas-born particles resulting from incomplete combustion consisting

predominately of carbon and other combustible material and present in sufficient quantity to be visible.

(93) Solid waste--Garbage, rubbish, refuse, sludge from a waste water treatment plant,

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

solid, liquid, semisolid, or containerized gaseous material resulting from industrial, municipal,

commercial, mining, and agricultural operations and from community and institutional activities. The

term does not include:

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

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

Water Code, Chapter 26;

(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used

to fill land, if the object ofthe fiJ] is to make the land suitable for the construction ofsurface

improvements; or

(C) waste materials that result from activities associated with the exploration,

development, or production of oil or gas, or geothermal resources, and other substance or material

regulated by the Railroad Commission of Texas under Natural Resources Code, §91.1 0I, unless the

waste, substance, or material results from activities associated with gasoline plants, natural gas liquids
processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste as defined

by the administrator of the United States Environmental Protection Agency under the federal Solid Waste

Disposal Act, as amended by Resource Conservation and Recovery Act, as amended (42 United States

Code, §§690 I et seq.).

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

atmospheric pressure.

(95) Sour gas--Any natural gas containing more than 1.5 grains of hydrogen sulfide per

100 cubic feet, or more than 30 grains oftotal sulfur per 100 cubic feet.

(96) Source--A point of origin of air contaminants, whether privately or publicly owned

or operated. Upon request of a source owner, the executive director shall determine whether multiple

processes emitting air contaminants from a single point of emission will be treated as a single source or as

multiple sources.

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

treated or handled, may serve to transmit infectious disease(s) and that is comprised of the following:

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

(98) Standard conditions--A condition at a temperature of 68 degrees Fahrenheit (20

degrees Centigrade) and a pressure of 14.7 pounds per square inch absolute (101.3 kiloPascals).

(99) Standard metropolitan statistical area--An area consisting of a county or one or

more contiguous counties that is officially so designated by the United States Bureau of the Budget.
(100) Submerged fill pipe--A fill pipe that extends from the top of a tank to have a

maximum clearance ofsix inches (15.2 centimeters) from the bottom or, when appl ied to a tank that is

loaded from the side, that has a discharge opening entirely submerged when the pipe used to withdraw

liquid from the tank can no longer withdraw liquid in normal operation.

(101) Sulfur compounds--All inorganic or organic chemicals having an atom or atoms

ofsulfur in their chemical structure.

(102) Sulfuric acid mist/sulfuric acid--Emissions ofsulfuric acid mist and sulfuric acid

are considered to be the same air contaminant calculated as H2S04 and must include sulfuric acid liquid

mist, sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8 in 40 Code of Federal

Regulations Part 60, Appendix A.

(103) Sweet crude oil and gas--Those crude petroleum hydrocarbons that are not "sour"

as defined in this section.

(104) Total suspended particulate--Particulate matter as measured by the method

described in 40 Code of Federal Regulations Part 50, Appendix B.

(105) Transfer efficiency--The amount of coating solids deposited onto the surface or a

part of product divided by the total amount of coating solids delivered to the coating application system.
(106) True vapor pressure--The absolute aggregate partial vapor pressure, measured in

pounds per square inch absolute, of all volatile organic compounds at the temperature of storage,

handling, or processing.

(107) Unauthorized emissions--Emissions of any air contaminant except carbon dioxide,

water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen that exceed any air emission

limitation in a pennit, rule, or order ofthe commission or as authorized by Texas Clean Air Act,

§382.0518(g).

(108) Unplanned maintenance, startup, or shutdown activity--For activities with

unauthorized emissions that are expected to exceed a reportable quantity or with excess opacity, an

unplanned maintenance, startup, or shutdown activity is:

(A) a startup or shutdown that was not part of nonnal or routine facility

operations, is unpredictable as to timing, and is not the type of event nonnally authorized by pennit; or

(B) a maintenance activity that arises from sudden and unforeseeable events

beyond the control ofthe operator that requires the immediate corrective action to minimize or avoid an

upset or malfunction.

(109) Upset event--An unplanned and unavoidable breakdown or excursion of a process

or operation that results in unauthorized emissions. A maintenance, startup, or shutdown activity that was

reported under §I01.211 ofthis title (relating to Scheduled Maintenance, Startup, and Shutdown

Reporting and Recordkeeping Requirements), but had emissions that exceeded the reported amount by
more thana reportable quantity due to an unplanned and unavoidable breakdown or excursion of a

process or operation is an upset event.

(110) Utility boiler--A boiler used to produce electric power, steam, or heated or cooled

air, or other gases or fluids for sale.

(II I) Vapor combustor--A partially enclosed combustion device used to destroy volatile

organic compounds by smokeless combustion without extracting energy in the form of process heat or

steam. The combustion flame may be partially visible, but at no time does the device operate with an

uncontrolled flame. Auxiliary fuel and/or a flame air control damping system that can operate at all times

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

combustion during operation.

(112) Vapor-mounted seal--A primary seal mounted so there is an annular space

underneath the seal. The annular vapor space is bounded by the bottom ofthe primary seal, the tank wall,

the liquid surface, and the floating roof or cover.

(113) Vent--Any duct, stack, chimney, flue, conduit, or other device used to conduct air

contaminants into the atmosphere.

(114) Visible emissions--Particulate or gaseous matter that can be detected by the human

eye. The radiant energy from an open flame is not considered a visible emission under this definition.

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

§51.100(s), except §51.100(s)(2) - (4), as amended on November 29, 2004 (69 FR 69290).
Ll.lQ) Volatile organic compound (VOC) water separator--Any tank, box, sump, or

other container in which any vae, floating on or contained in water entering such tank, box, sump, or

other container, is physically separated and remov.ed from such water prior to outfall, drainage, or

recovery ofsuch water.
SUBCHAPTER H: EMISSIONS BANKING AND TRADING

DIVISION 1: EMISSION CREDIT BANKING AND TRADING

§101.302, §101.306

§10 1.302. General Provisions.

(a) Applicable pol1utants. Reductions of criteria pol1utants, excluding lead, or precursors of

criteria poIIutants for which an area is designated nonattainment, may qualify as emission credits.

Reductions of one pol1utant may not be used to meet the requirements for another pol1utant, unless urban

airshed modeling demonstrates that one ozone precursor may be substituted for another, subject to

executive director and United States Environmental Protection Agency (EPA) approval.

(b) Eligible generator categories. The following categories are eligible to generate emission

credits:

(1) facilities, including area sources;

(2) mobile sources; and

(3) any facility, including area sources, or mobile source associated with actions by

federal agencies under §I 01.30 ofthis title (relating to Conformity of General Federal Actions to State

Implementation Plans).

(c) Emission credit requirements.
(1) Emission reduction credits are certified reductions that meet the following

requirements:

(A) reductions must be enforceable, permanent, quantifiable, real, and surplus;

(B) the certified reduction must be surplus at the time it is created, as well as

when it is used;

(C) in order to become certified, the reduction must have occurred after the most

recent year of emissions inventory used in the state implementation plan (SIP); and

(D) the facility's annual emissions prior to the reduction strategy must have been

reported or represented in the emissions inventory lIsed in the SIP.

(2) Mobile emission reduction credits are certified reductions that meet the following

requirements:

(A) reductions must be enforceable, permanent, quantifiable, real, and surplus;

(B) the certified reduction must be surplus at the time it is created, as well as

when it is used;

(C) in order to become certified, the reduction must have occurred after the most

recent year of emissions inventory used in the SIP;

(D) the mobile source's annual emissions prior to the emission credit application

must have been represented in the emissions inventory used in the SIP; and
(E) the mobile sources must have been included in the attainment demonstration

baseline emissions inventory.

(3) Emission reductions from a facility or mobile source that are certified as emission

credits under this division cannot be recertified in whole or in part as credits under another division within

this subchapter.

(d) Protocol.

(1) All generators or users of emission credits shall use a protocol that has been submitted

by the executive director to the EPA for approval, if existing for the applicable facility or mobile source,

to measure and calculate baseline emissions. Ifthe generator or user wishes to deviate from a protocol

submitted by the executive director, EPA approval is required before the protocol can be used. Protocols

must be used as follows.

(A) Facilities subject to the emission specifications under §§ I J7.110, 117.210,

117.310,117.410,117.1010,117.1110,117.1210, 117.1310, 117.201O,orl17.21100fthistitle(relating

to Emission Specifications for Attainment Demonstration; Emission Specifications for Eight-Hour

Attainment Demonstration; and Emission Specifications) shall quantify reductions in nitrogen oxide

emissions using the testing and monitoring methodologies identified to show compliance with the

emission specification.

(B) Facilities subject to the requirements under §§ 115.112, 115.121, 115.122,

115.162, 115.211, 115.212, 115.352, 115.421, 115.541, or 115.542 ofthis title (relating to Control

Requirements; and Emission Specifications) shall quantify volatile organic compound reductions using
the testing and monitoring methodologies identified to show compliance with the emission specifications

or requirements.

(C) Ifthe executive director has not submitted a protocol for the applicable

facility or mobile source to the EPA for approval, the following requirements apply:

(i) the amount of emission credits from a facility or mobile source, in

tons per year, wi1l be determined and certified based on quantification methodologies at least as stringent

as the methods used to demonstrate compliance with any applicable requirements for the facility or

mobile source;

(ii) the generator sha11 co11ect relevant data sufficient to characterize the

facility's or mobile source's emissions ofthe affected pollutant and the facility's or mobile source's

activity level for a11 representative phases of operation in order to characterize the facility's or mobile

source's baseline emissions;

(iii) facilities with continuous emissions monitoring systems or

predictive emissions monitoring systems in place shall use this data in quantifying actual emissions;

(iv) the chosen quantification protocol must be made available for public

comment for a period of30 days and must be viewable on the commission's Web site;

(v) the chosen quantification protocol and any comments received during

the public comment period shall be submitted to the EPA for a 45-day adequacy review; and
(vi) quantification protocols shall not be accepted for use with this

division if the executive director receives a letter objecting to the use ofthe protocol from the EPA during

the 45-day adequacy review or the EPA adopts disapproval ofthe protocol in the Federal Register.

(2) In the event that the monitoring and testing data required under paragraph (1) of this

subsection is missing or unavailable, the facility may report actual emissions for that period oftime using

these listed methods in the following order of preference to determine actual emissions:

(A) continuous monitoring data;

(B) periodic monitoring data;

(C) testing data;

(D) manufacturer's data;

(E) EPA Compilation ofAir Pollution Emission Factors (AP-42), September

2000; or

(F) material balance.

(3) When quantifying actual emissions in accordance with paragraph (2) ofthis

subsection, the generator shall use the most conservative method for replacing the missing data, submit

the justification for not using the methods in paragraph (1) of this subsection, and submit the justification

for the method used.
(e) Credit certification.

(l) The amount of emission credits in tons per year will be determined and certified, to

the nearest tenth of a ton per year.

(2) Applications for certification will be reviewed in order to determine the credibility of

the reductions. Reductions determined to be creditable will be certified by the executive director.

(3) The applicant will be notified in writing ifthe executive director denies the emission

credit application. The applicant may submit a revised application in accordance with the requirements of

this division.

(4) If a facility's or mobile source's actual emissions exceed its allowable emission limit,

reductions of emissions exceeding the limit may not be certified as emission credits.

(5) Applications for certification of emission credit from reductions quantified under

subsection (d)(l)(C) of this section may only be approved upon completion of the public comment period.

(f) Geographic scope. Except as provided in §101.305 ofthis title (relating to Emission

Reductions Achieved Outside the United States), only emission reductions generated in nonattainment

areas can be certified. An emission credit must be used in the nonattainment area in which it is generated

unless the user has obtained prior written approval of the executive director and the EPA; and
(l) a demonstration has been made and approved by the executive director and the EPA

to show that the emission reductions achieved in another county or state provide an improvement to the

air quality in the county of use; or

(2) the emission credit was generated in a nonattainment area that has an equal or higher

nonattainment classification than the nonattainment area of use, and a demonstration has been made and

approved by the executive director and the EPA to show that the emissions from the nonattainment area

where the emission credit is generated contribute to a violation ofthe national ambient air quality

standard in the nonattainment area of use.

(g) Recordkeeping. The generator shall maintain a copy of all notices and backup information

submitted to the registry for a minimum of five years. The user shall maintain a copy of all notices and

backup information submitted to the credit registry from the beginning ofthe use period and for at least

five years after. The user shall also make such records available upon request to representatives ofthe

executive director, EPA, and any local enforcement agency. The records must include, but not necessarily

be limited to:

(l) the name, emission point number, and facility identification number of each facility or

any other identifying number for each mobile source using emission credits;

(2) the amount of emission credits being used by each facility or mobile source; and

(3) the specific number, name, or other identification of emission credits used for each

facility or mobile source.
(h) Public information. All information submitted with notices, reports, and trades regarding the

nature, quantity, and sales price of emissions associated with the use, generation, and transfer of an

emission credit is public information and may not be submitted as confidential. Any claim of

confidentiality for this type of information, or failure to submit all information, may result in the rejection

of the emission credit application. All nonconfidential notices and information regarding the generation,

availability, use, and transfer of emission credits shall be immediately made available to the public.

(i) Authorization to emit. An emission credit created under this division is a limited authorization

to emit the pollutants identified in subsection (a) ofthis section, unless otherwise defined, in accordance

with the provisions ofthis section, 42 United States Code, §§740l et ~eq., and Texas Health and Safety

Code, Chapter 382, as well as regulations promulgated thereunder. An emission credit does not constitute

a property right. Nothing in this division may be construed to limit the authority ofthe commission or the

EPA to terminate or limit such authorization.

U) Program participation. The executive director has the authority to prohibit an organization

from participating in emission credit trading either as a generator or user, if the executive director

determines that the organization has violated the requirements ofthe program, or abused the privileges

provided by the program.

(k) Compliance burden. Users may not transfer their compliance burden and legal responsibilities

to a third-party participant. Third-party participants may only act in an advisory capacity to the user.

(I) Credit ownership. The owner ofthe initial emission credit certificate shall be the owner or

operator ofthe facility or mobile source creating the emission reduction. The executive director may

approve a deviation from this subsection considering factors such as, but not limited to:
(1) whether an entity other than the owner or operator of the facility or mobile source

incurred the cost ofthe emission reduction strategy; or

(2) whether the owner or operator of the facility or mobile source lacks the potential to

generate 11 10 ton of credit.

§101.306. Emission Credit Use.

(a) Uses for emission credits. Unless precluded by a commission order or a condition or

conditions within an authorization under the same commission account number, emission credits may be

used as the following:

(1) offsets for a new source, as defined in §101.1 of this title (related to Definitions), or

major modification to an existing source;

(2) mitigation offsets for action by federa I agencies under §101.30 ofth is title (relating to

Conformity of General Federal Actions to State Implementation Plans);

(3) an alternative means of compliance with volatile organic compound and nitrogen

oxides reduction requirements to the extent allowed in Chapters 114, 115, and 117 of this title (relating to

Control of Air Pollution from Motor Vehicles; Control of Air Pollution from Volatile Organic

Compounds; and Control of Air Pollution from Nitrogen Compounds);
(4) reductions certified as emission credits may be used in netting by the original

applicant, if not used, sold, reserved for use, or otherwise relied upon, as provided in §116.150 of this title

(relating to New Major Source or Major Modification in Ozone Nonattainment Areas);

(5) an annual allocation of allowances as provided in §101.356 and §101.399 of this title

(relating to Allowance Banking and Trading);

(6) compliance with motor vehicle fleet requirements to the extent allowed by §114.201

of this title (relating to Mobile Emission Reduction Credit Program); or

(7) compliance with other requirements as allowable within the guidelines of local, state,

and federal laws.

(b) Credit use calculation.

(1) The number of emission credits needed by the user for offsets shall be determined as

provided in §116.150 ofth is title.

(2) For emission credits used in compliance with Chapters 114, 115, or 117 ofthis title,

the number of emission credits needed should be determined according to the following equation plus an

additional 10% to be retired as an environmental contribution.

Figure: 30 TAC §10 1.306(b)(2)

Calculation of Emission Credits Needed
Where:

A = maximum projected annual activity level during use period

EFp = projected emission rate per unit of activity during use period

EF, = emission rate per unit of activity required by Chapter 114, 115, or

117
(3) For emission credits used to comply with §§ 117.123, 117.223, 117.320,

117.323, 117.423, 117.1020, 117.1120, or 117.1220 ofthis title (relating to Source Cap; and

System Cap), the number of emission credits needed for increasing the 30-day rolling average

emission cap or maximum daily cap should be determined according to the following equation

plus an additional 10% to be retired as an environmental contribution.

Figure: 30 TAC §I01.306(b)(3)

Calculation of Emission Reductions Needed for System Cap or Source Cap

Where:

N = the total number of emission units in the source cap

i =each emission unit in the source cap

Hi = actual daily heat input, in million British thermal units (MMBtu) per

day, as calculated according to §§ 117.123(b)( 1) or (2),

117.223(b)(1) or (2), 117.320(c)(I) - (3), 117.323(b)(1) or (2),

117.423(b)(1) or (2), 117.1 020(c)(1) or (2), 117.1120(c)(1) or

(2), or 117.1220(c)( 1) or (2) ofthis title

Ri= the facility's emission factor, in pounds (lb)/MMBtu, is defined as in

§§ 117.123(b)(1) or (2), 117.223(b)( I) or (2), 117.320(c)(1) -

(3), 117.323(b)(1) or (2), 117.423(b)(1) or (2), 117.1020(c)(1)

or (2), 117.1120(c)( I) or (2), or 117 .1220(c)(1) or (2) ofthis

title

HII = the maximum daily heat input, in MMBtu per day, expected for an

emission unit during the use period

RII = the maximum emission factor, in Ib/MMBtu, expected for an

emission unit during the use period

(4) Emission credits used for compliance with any other applicable program

should be detennined in accordance with the requirements ofthat program and must contain at
least 10% extra to be retired as an environmental contribution, unless otherwise specified by that

program.

(c) Notice of intent to use emission credits.

(1) For emission credits which are to be used as offsets in a New Source Review

permit in accordance with Chapter 116 ofthis title (relating to Control of Air Pollution by Permits

for New Construction or Modification), the emission credits must be identified prior to permit

issuance. Prior to construction, the offsets must be provided through submittal of a completed

EC-3 Form, Notice of Intent to Use Emission Credits, along with the original emission credit

certifi cate.

(2) For emission credits that are to be used for compliance with the requirements

of Chapters I 14, 115, or 117 ofthis title or other programs, the user must submit a completed EC3 Form along with the original emission credit certificate, at least 90 days prior to the planned use

of the emission credit. Emission credits may be used only after the executive director grants

approval of the notice of intent to use. The user must also keep a copy of the emission credit

certificate, the notice, and all backup in accordance with § I01.302(g) ofthis title (relating to

General Provisions).

(3) If the executive director denies the facility or mobile source's use of emission

credits, any affected person by the executive director's decision may file a motion for

reconsideration within 60 days of the denial. Notwithstanding the applicability provisions of

§50.3 I(c)(7) ofth is title (relating to Purpose and Applicability), the requirements of §50.39 of

this title (relating to Motion for Reconsideration) shall apply. Only an affected person may file a

motion for reconsideration.
SUBCHAPTER H: EMISSIONS BANKING AND TRADING

DIVISION 3: MASS EMISSIONS CAP AND TRADE PROGRAM

§§101.350, 101.351, 101.353, 101.354, 101.360

§101.350. Definitions.

The following words and terms, when used in this division, shall have the following

meanings, unless the context clearly indicates otherwise.

(1) Adjustment period--A period of time, beginning on the first day of operation

of a facility and ending no more than 180 consecutive days later, used to make corrections and

adjustments to achieve normal technical operating characteristics ofthe facility.

(2) Allowance--The authorization to emit one ton of nitrogen oxides, expressed

in tenths of a ton, during a control period.

(3) Authorized account representative--The responsible person who is

authorized, in writing, to transfer and otherwise manage allowances.

(4) Banked allowance--An allowance which is not used to reconcile emissions

in the designated year of allocation, but which is carried forward for up to one year and noted in

the compliance or broker account as "banked."

(5) Broker--A person not required to participate in the requirements ofthis

division who opens an account under this division for the purpose of banking and trading

allowances.
(6) Broker account--The account where allowances held by a broker are

recorded. Allowances held in a broker account may not be used to satisfy compliance

requirements for this division.

(7) Compliance account--The account where allowances held by a facility or

multiple facilities at a single site are recorded for the purposes of meeting the requirements ofthis

division.

(8) Control period--The I2-month period beginning January I and ending

December 31 of each year. The initial control period begins January 1,2002.

(9) Existing Facility--A new or modified facility that either has submitted an

application for a permit under Chapter 116 ofthis title (relating to Control of Air Pollution by

Permits for New Construction or Modification) which the executive director has determined to be

administratively complete before January 2,200 I, or has qualified for a permit by rule under

Chapter 106 of this title (relating to Permits by Rule) and commenced construction before

January 2, 2001.

(10) Houston-Galveston-Brazoria (HGB) ozone nonattainment area--As

defined in §101.1 ofthis title (relating to Definitions).

(11) Level of activity--The amount of activity at a facility measured in temlS of

production, fuel use, raw materials input, or other similar units.
(12) Person--For the purpose of issuance of allowances under this division, a

person includes an individual, a partnership of two or more persons having a joint or common

interest, a mutual or cooperative association, or a corporation.

(13) Site--As defined in § 122.1 0 ofthis title (relating to General Definitions).

(14) Uncontrolled design capacity--The maximum capacity of a facility to emit

a pollutant without regard to any enforceable or physical operational limitations including air

pollution control equipment.

§101.351. Applicability.

(a) This division applies to all facilities which emit nitrogen oxides (NOx) in the

Houston- Galveston-Brazoria ozone nonattainment area, as defined in §101.1 ofthis title (relating

to Definitions) which are subject to the emission specifications under §§ 117.31 0, 117.1210, or

117.20 I0 ofthis title (relating to Emission Specifications for Attainment Demonstration and

Emission Specifications) and which are:

(1) located at a site which meets the definition of major source, as defined in

§ I 17.10 ofthis title (relating to Definitions); or

(2) located at a site where they collectively have an uncontrolled design capacity

to emit ten tons or more per year ofNOx.

(b) A site which met the definition of major source as of December 31, 2000 shall always

be classified as a major source for purposes ofthis chapter. A site which did not meet the
definition ,of major source (i.e., was a minor source, or did not yet exist) on December 31, 2000,

but which at any time after December 31, 2000 becomes a major source, shall from that time

forward always be classified as a major source for purposes ofthis chapter.

§101.353. Allocation of AHowances.

(a) Allowances will be deposited into compliance accounts according to the following

equation except as provided in subsection (b) or (h) ofthis section.

Figure: 30TAC §I01.353(a)

Where:

(1) A= number of allowances rounded to tenths oftons;

(2) B = the facility's baseline emission rate and is calculated as follows:

(A) For facilities in operation prior to January 1, 1997:

B=(LAn *EF97) +(LAY8 *EF98) +(LA99 *EF99)

3(200C)

Where: LA97 = the facility's level of activity, as certified by the

executive director for 1997;

LA98 = the facility's level of activity, as certified by the

executive director for 1998;

LA99 = the facility's level of activity, as celtified by the
executive director for 1999;

EF97 = the faci Iity's emission factor for 1997 or the

emission specifications under §§ 117.31 0, 117.1210, and

117.2010 ofthis title (relating to Emission Specifications

for Attainment Demonstration; and Emission

Specifications) (ESAD) whichever is higher, in pounds

per unit of activity, (not to exceed any applicable federal

or state regulation, rule, or permit limit), as certified by

the executive director;

EF98 = the facility's emission factor for 1998 or the

emission specifications under ESAD, whichever is

higher, in pounds per unit of activity, (not to exceed any

applicable federal or state regulation, rule, or pennit

limit), as certified by the executive director;

EF99 = the facility's emission factor for 1999 or the

emission specifications under ESAD, whichever is

higher, in pounds per unit of activity, (not to exceed any

applicable federal or state regulation, rule, or pennit

limit), as certified by the executive director.

(B) For existing facilities not in operation prior to January 1, 1997 and

that have been in operation less than five complete consecutive

calendar years beginning after the end ofthe adjustment period and

have not established two years of baseline data:

Where:

B LAALLOWABLE * EFALLOWABLE

2000

LAAllowable = The level of activity authorized by the executive

director until such time two consecutive calendar years

of actual level of activity data is available;

EFAllowable = The emission factor or the emission

specifications under ESAD, whichever is higher,

authorized by the executive director until such time two

consecutive calendar years of actual emission data is

available.

(C) For existing facilities not in operation prior to January 1, 1997, and

that have established two consecutive calendar years of baseline

data out ofthe first five years of operation following the end ofthe

adjustment period:
B =(LA YEAR - 1*

EFYEAR - 1) + (LA YEAR - 2*EFYEAR - 2)

2(2000)

Where: LA Year-I = the facility's level of activity, as certified by the

executive director, for the first of any two consecutive

years within the first five years of operation;

LA Year-2 = the facility's level of activity, as certified by

the executive director, for the second of any two

consecutive years within the first five years of operation;

EF Year-I = the facility's emission factor or the emission

specifications under ESAD, whichever is higher, in

pounds per unit of activity, (not to exceed any applicable

federal or state regulation, rule, or permit limit), as

certified by the executive director, for the first of any

two consecutive years within the first five years of

operation;

EF Year-2 = the facility's emission factor or the emission

specifications under ESAD, whichever is higher, in

pounds per unit of activity, (not to exceed any applicable

federal or state regulation, rule, or permit limit), as

certified by the executive director, for the second of any

two consecutive years within the first five years of

operation.

(3) X = reduction factor, where:

(A) For all boilers, auxiliary steam boilers, and stationary gas turbines

(including duct burners used in turbine exhaust ducts) within an

electric power generating system, as defined in §117.1 O( 14)(A) of

this title (relating to Definitions), located in the Houston-GalvestonBrazoria nonattainment area:

(i) for January 1,2002 through March 31, 2003, X = 0.00;

(ii) for April 1, 2003 through March 31, 2004, X = 0.50;

(iii) on or after April 1,2004, X = 1.00;

(B) For facilities subject to the emission specifications under

§117.31 O(a)(1 )(A) and (B), (2)(A), (5), (8)(A)(i), (8)(B), (9)(A)(ii),

(10), or (11) ofthis title:

(i) for January 1,2002 through March 31, 2004, X = 0.00;

(ii) for April 1, 2004 through March 31,2005, X = 0.47;
(iii) for April 1,2005 through March 31, 2006, X =0 0.80;

(iv) for April 1,2006 through March 31, 2007, X =0 0.93;

(v) on and after April 1, 2007, X = 1.00;

(C) For all other facilities:

(i) for January 1,2002 through March 31, 2004, X '" 0.00;

(ii) for April 1,2004 through March 31, 2005, X =0 0.389;

(iii) for April 1,2005 through March 31, 2006, X =0 0.667;

(iv) for April I, 2006 through March 31, 2007, X '" 0.778;

(v) on and after April 1, 2007, X =0 1.00;

(D) Alternatively, facilities subject to the reduction factors under

subparagraph B ofthis paragraph may elect to comply with the

following:

(i) for January 1,2002 through March 31,2005, X=O.OO;

(ii) on and after April 1,2005, X=l.OO.

(E) Election to comply with the alternative reduction schedule under

subparagraph (D) ofthis paragraph shall be made by letter to the

executive director no later than April 1,2003.

(F) For calendar years which include two different reduction factors, the

reduction factor shall be adjusted using the appropriate ratio to

reflect the number ofmonths covered by each reduction factor.

(4) LAHA =0 historical average level of activity, where:

(A) For facilities in operation on or before January 1, 1997, the average

level of activity, as certified by the executive director, for 1997,

1998, and 1999; or

(B) For existing facilities which began operation after January 1,1997,

LAHA is:

(i) the level of activity authorized by the executive director until

such time two consecutive calendar years of actual level of

activity data is available, beginning after the end of the

adjustment period; or

(ii) when two complete consecutive calendar years of actual level of

activity data is available, beginning after the end of the
adjustment period, the level of activity becomes the average of

the facility's actual level of activity over those two consecutive

calendar years of actual level of activity data.

(5) EFfillal = emission factor, as listed in §§ 117.310, 117.1210, or 117.2010 ofthis

title.

(6) For facilities using alternative emission specifications as allowed in

§117.31 O(a)(l7) or §II 7.20 I O(c)(6) ofthis title, the level of activity for any

formula will be the lowest ofthe level of activity as calculated in variables

(2)(A), (2)(B), or the level of activity limited by an enforceable limit or

commitment necessary to qualify for an alternative emission specification in

§117.31 O(a)( 17) or §117.201 0(c)(6) ofthis title.

(b) For a new and/or modified facility that has submitted, under Chapter 116 of this title

(relating to Control of Air Pollution by Permit for New Construction ofModification), an

application which the executive director has not determined to be administratively complete

before January 2, 200 I, or has qualified for a permit by rule under Chapter 106 ofthis title

(relating to Permits by Rule) and has not commenced construction before January 2, 2001,

allowances for each control period or the annual allocation rights shall be acquired from facilities

already participating under this division, or in

accordance with § I 0l.356(g) of this title (relating to Allowance Banking and Trading).

(c) If actual emissions of nitrogen oxides during a control period exceed the amount of

allowances held in a compliance account on March 1 following the control period, allowances for

the next control period will be reduced by an amount equal to the emissions exceeding the

allowances in the compliance account plus an additional 10%. This does not preclude additional

enforcement action by the executive director.

(d) Allowances will be allocated by the executive director, who will deposit allowances

into
each compliance account:

(1) initially, by January 1,2002; and

(2) subsequently, by January I of each following year.

(e) The annual deposit for any control period may be adjusted by the executive director to

reflect new or existing state implementation plan requirements.

(f) Allowances may be added or deducted by the executive director from compliance

accounts following the review of reports required under §101.359 of this title (relating to

Reporting).

(g) The owner or operator of a facility may, due to extenuating circumstances, request a

baseline period more representative of normal operation as determined by the executive director.

Applications for extenuating circumstances must be submitted by the owner or operator of the

facility to the executive director:

(1) no later than June 30,2001 to request an alternative three consecutive

calendar year period for facilities in operation prior to January 1, 1997;

(2) no later than 90 days after completion of the baseline period to request up to

two

additional calendar years to establish a baseline period for facilities whose baseline as described

by variable (2)(C) listed in the figure contained in subsection (a) ofthis section is not complete by

June 30, 200 I; or
(3) at any time as authorized by the executive director.

(h) Allowances calculated under subsection (a) ofthis section will continue to be based

on historical activity levels, despite subsequent reductions in activity levels. If allowances are

being allocated based on allowables and the facility does not achieve two complete consecutive

calendar years of actual level of activity data, then allowances will not continue to be allocated if

the facility ceases operation or is not built.

§101.354. Allowance Deductions.

(a) Allowances will be deducted in tenths of a ton from a site's compliance account for a

control period based upon the monitoring and testing protocols established in §§] J7.335,

] 17.340, 117.1235, ] 17.1240, and 117.2035 ofthis title (relating to Initial Demonstration of

Compliance; Continuous Demonstration ofCompliance; and Monitoring and Testing

Requirements).

(b) In the event that the monitoring and testing data required under subsection (a) ofthis

section is missing or unavailable, the facility may report actual emissions for that period oftime

usmg

the following equation or other listed methods in the following order to determine actual

emISSIOns:

continuous monitoring data; periodic monitoring data; testing data; manufacturer's data, and EPA

Compilation ofAir Pollution Emission Factors (AP-42), September 2000. When reporting actual

emissions as required under this subsection, the facility must also submit the justification for not

usmg
the methods in subsection (a) of this section and the justification for the method used.

Figure: 30 TAC § 101.354(b) (No change.)
Where:

A LA Cp

* EF Cp

2000

A = Allowances to be subtracted from the compliance account in tenths of tons

LAcp = the level of activity during the control period

EFcp = the emission factor for the control period in Ib of nitrogen oxides (NOx)

per unit of activity

(c) Ifthe protocol used to show compliance with this section differs from the protocol

used by

the commission to establish the allocation of allowances under §] 01.353 ofthis title (relating to

Allocation of Allowances), the executive director may recalculate the number of allowances

allocated

per year for consistency between the methods.

(d) When deducting allowances from a site's compliance account for a control period, the

executive director will deduct the allowances beginning with the most recently allocated

allowances

before deducting banked allowances.

(e) Allowances shall be deducted from a site's compliance account in an amount equal to

the nitrogen oxides (NOx) emissions increases fr0111 facilities not subject to an emission

specification under §117.3 10 or §I 17.20 I0 ofthis title (relating to Emission Specifications for

Attainment Demonstration; and Emission Specifications) which result from changes made after
December 31,2000, to facilities subject to this division and §117.3 1O(e)(3) or §117.201 O(n of

this title. Documentation detailing these increases in NOx emissions shall be included with the

submittal ofthe ECT-I Form, Annual Compliance Report.

(f) Allowances allocated in accordance with the variables in (a)(2)(B) listed in the figure

contained in §I0 1.353(a) ofthis title may only be used by the facility for which they were

allocated and

may not be used by other facilities at the same site during the same control period.

(g) On March I after every control period, a site shall hold a quantity of allowances in its

compliance account that is equal to or greater than the total NOx emissions emitted during the

pnor

control period.

§101.360. Level of Activity Certification.

(a) The owner or operator of any facilitY subject to this division shall certify, no later than

June 30, 200 I, its historical level of activity by submitting to the executive director a completed

ECT-3 Form, Level of Activity Certification, along with any supporting information such as

usage records, testing or monitoring data, emission factors, and production records as follows:

(I) for facilities in operation prior to January 1, 1997, the level of activity

averaged over 1997, 1998, and 1999;

(2) for new and modified facilities not in operation prior to January 1, 1997 and

either have submitted, under Chapter 116 of this title (relating to Control of Air Pollution by

Permits for New Construction or Modification), an application which the executive director has
determined to be administratively complete before January 2, 2001, or have qualified for a permit

by rule under Chapter 106 ofthis title (relating to Permits by Rule) and have commenced

construction before January 2, 2001, the level of activity authorized by the executive director; and

(3) for new and modified facilities not in operation prior to January 1, 1997, that

are subject to emission specifications under §§ 117.310, 117.1210, or 117.20 I0 ofthis title

(relating to Emission Specifications for Attainment Demonstration; and Emission Specifications)

that were first adopted after April 1, 2001, and either have submitted under Chapter 116 of this

title an application which the executive director has determined to be administratively complete

within 90 days ofthe effective date ofthis emission specification, or have qualified for a permit

by rule under Chapter 106 ofthis title and have commenced construction within 90 days ofthe

effective date of the emission specification, the level of activity authorized by the executive

director.

(b) The owner or operator of any facility subject to this division who has certified a

facility's

allowable level of activity under subsection (a)(2) of this section shall:

(1) certify no later than 90 days from the end ofthe fifth year of operation the

actual level of activity and actual emission factors for the two complete consecutive calendar years

chosen as a baseline by submitting to the executive director a completed ECT-3 Form, Level of

Activity Certification, along with any supporting information such as usage records, testing or

monitoring data, and production records; and

(2) receive no benefit of allowances allocated based on actual operation until

January 1 of the control period following the certification in paragraph (l) of this subsection.
(c) Owners or operators of a site or facility that becomes subject to this division on or

after April 1, 2001 shall certify the level of activity, as determined by the executive director, in

accordance with subsections (a) and (b) ofthis section. Such certification shall be submitted no

later than 90 days from the date the site or facility becomes subject to this division or no later

than 90 days from the effective date of this rule, whichever is later.
SUBCHAPTER H: EMISSIONS BANKING AND TRADING

DIVISION 4: DISCRETE EMISSION CREDIT BANKING AND TRADING

§101.372, §101.376

§101.372. General Provisions.

(a) Applicable pollutants. Reductions of volatile organic compounds (VOC), nitrogen

oxides (NOx), carbon monoxide (CO), sulfur dioxide (S02) and particulate matter with an

aerodynamic diameter of less than or equal to a nominal ten microns (PMIO) may qualify as

discrete emission credits as appropriate. Reductions of other criteria pollutants are not creditable.

Reductions of one pollutant may not be used to meet the reduction requirements for another

pollutant, unless urban airshed modeling demonstrates that one may be substituted for another

subject to approval by the executive director and the United States Environmental Protection

Agency (EPA).

(b) Eligible generator categories. Eligible categories include the following:

(1) facilities (including area sources);

(2) mobile sources; or

(3) any facility, including area sources, or mobile source associated with actions

by federal agencies under §101.30 of this title (relating to Conformity of General Federal Actions

to State Implementation Plans).

(c) Discrete emission credit requirements.
(I) To be creditable as a discrete emission reduction credit (DERC), an emission

reduction must meet the following:

(A) the reduction be real, quantifiable, and surplus at the time the

discrete emission credit is generated;

(B) the reduction must have occurred after the most recent year of

emissions inventory used in the state implementation plan (SIP) for all applicable pollutants; and

(C) the facility's annual emissions prior to the reduction strategy must

have been reported or represented in the emissions inventory used for the SIP.

(2) To be creditable as a mobile discrete emission reduction credit (MDERC), an

emission reduction must meet the following:

(A) the reduction must be real, quantifiable, and surplus at the time it is.

created;

(B) the reduction must have occurred after the most recent year of

emissions inventory used in the SIP for all applicable pollutants;

(C) the mobile source's emissions must have been represented in the

emissions inventory used for the SIP; and
(D) the mobile sources must have been included in the attainment

demonstration baseline emissions inventory. If a mobile reduction implemented is not in the

baseline for emissions, this reduction does not constitute a discrete emission reduction.

(3) Emission reductions from a facility or mobile source which are certified as

discrete emission credits under this division cannot be recertified in whole or in part as emission

credits under another division within this subchapter.

(d) Protocol.

(I) All generators or users of discrete emission credits must use a protocol which

has been submitted by the executive director to the EPA for approval, if existing for the;'i .

applicable facility or mobile source, to measure and calculate baseline emissions. Ifthe generator

or user wishes to deviate from a protocol submitted by the executive director, EPA approval is

required before the protocol can be used. Protocols shall be used as follows.

(A) Facilities subject to the emission specifications under §§ 117.110,

117.210,117.310,117.410,117.1010,117.1110,117.1210, 117.1310, 117.2010, 117.211O,or

117.3310 ofthis title (relating to Emission Specifications for Attainment Demonstration;

Emission Specifications for Eight-Hour Attainment Demonstration; and Emission Specifications)

shall quantify reductions in NO, using the testing and monitoring methodologies identified to

show compliance with the emission specification.

(B) Fac ilities subj ect to the requirements under §§115.112, I ] 5.12] ,

115.122,115.162,115.211,115.212,115.352, 115.421, 115.541, or 115.542 of this title (relating

to Control Requirements; and Emission Specifications) shall quantify VOC reductions using the
testing and monitoring methodologies identified to show compliance with the emission

specifications or the requirements.

(C) If the executive director has not submitted a protocol for the

applicable facility or mobile source to the EPA for approval, the following applies:

(i) the amount of discrete emission credits from a facility or

mobile source, in tons, will be determined and certified based on quantification methodologies at

least as stringent as the methods used to demonstrate compliance with any applicable

requirements for the facility or mobile source;

(ii) the generator must collect relevant data sufficient to

characterize the facility's or mobile source's emissions of the affected pollutant and the facility's

or mobile source's activity level for all representative phases of operation in order to characterize

the facility's or mobile source's baseline emissions;

(iii) facilities with continuous emissions monitoring systems or

predictive emissions monitoring systems in place shall use this data in quantifying actual

emlsslOns;

(iv) the chosen quantification protocol shall be made available

for public comment for a period of30 days and shall be viewable 011 the commission's Web site;

(v) the chosen quantification protocol and any comments

received during the public comment period shall, upon approval by the executive director, be

submitted to the EPA for a 45-day adequacy review; and
(vi) quantification protocols shall not be accepted for use with .

this division (relating to Discrete Emission Credit Banking and Trading) ifthe executive director

receives a letter objecting to the use ofthe protocol from the EPA during the 45-day adequacy

review or the EPA proposes disapproval ofthe protocol in the Federal Register.

(2) In the event that the monitoring and testing data required under paragraph (1)

ofthis subsection is missing or unavailable, the facility may report actual emissions for that

period oftime using these listed methods in the following order of preference to determine actual

emIsSIOns:

(A) continuous monitoring data;

(B) periodic monitoring data;

(C) testing data;

(D) manufacturer's data;

(E) EPA Compilation ofAir Pollution Emission Factors (AP-42),

September 2000; or

(F) material balance.

(3) When quantifying actual emissions in accordance with paragraph (2) ofthis

subsection, the generator shall use the most conservative method for replacing the missing data,
submit the justification for not using the methods in paragraph (I) of this subsection, and submit

the justification for the method used.

(e) Credit certification.

(I) The amount of discrete emission credits shall be rounded down to the nearest

tenth of a ton when generated and shall be rounded up to the nearest tenth of a ton when used.

(2) Applications for certification will be reviewed in order to determine the

credibility of the reductions. Reductions determined to be creditable will be certified by the

executive director.

(3) The applicant will be notified in writing if the executive director denies the

discrete emission credit notification. The applicant may submit a revised discrete emission credit

notification in

accordance with the requirements ofthis division.

(4) Ifa facility's or mobile source's emission's exceed its allowable emission

limit, the amount of emissions exceeding the limit may not be certified as discrete emission

credits.

(f) Geographic scope. Except as provided in paragraph (7) of this subsection and

§101.375 ofthis title (relating to Emission Reductions Achieved Outside the United States), only

emission reductions generated in the State of Texas may be creditable and used in the state with

the following limitations.
(1) VOC and NOx discrete emission credits generated in an ozone attainment area

may be used in any county or portion of a county designated as attainment or unclassified, except

as specified in paragraphs (4) and (5) ofthis subsection and may not be used in an ozone

nonattainment area.

(2) VOC and NOx discrete emission credits generated in an ozone nonattainment

area may be used either in the same ozone nonattainment area in which they were generated, or in

any county or portion of a county designated as attainment or unclassified.

(3) VOC and NOx discrete emission credits generated in an ozone nonattainment

area may not be used in any other ozone nonattainment area, except as provided in this

subsection.

(4) VOC discrete emi,ssion credits are prohibited from use within the covered

attainment counties, as defined in §115,10 ofthis title (relating to Definitions), if generated

outside ofthe covered attainment counties. VOCdiscrete emission credits generated in a

nonattainment area may be used in the covered attainment counties, except those generated in EI

Paso.

(5) NOx discrete emission credits are prohibited from use within the covered

.attainment counties, as defined in §115.10 ofthis title, if generated outside of the covered

attainment counties. NOx discrete emission credits generated in a nonattainment area, except

those generated in EI Paso, may be used in the covered attainment counties.

(6) CO, 802, and PMIQ discrete emission credits must be used in the same

metropolitan statistical area (as defined in Office ofManagement and Budget Bulletin Number
93-17 entitled "Revised Statistical Definitions for Metropolitan Areas" dated June 30, 1993) in

which the reduction was generated.

(7) VOC and NOx discrete emission credits generated in other counties, states, or

emission reductions in other nations may be used in any attainment or nonattainment county

provided a demonstration has been made and approved by the executive director and the EPA, to

show that the emission reductions achieved in the other county, state, or nation improve the air

quality in the county where the credit is being used.

(g) Ozone season. In areas having an ozone season of less than 12 months (as defined in

40 Code of Federal Regulations Part 58, Appendix D) VOC and NOx discrete emission credits

generated outside the ozone season may not be used during the ozone season.

(h) Recordkeeping. The generator must maintain a copy of all notices and backup

information submitted to the registry for a minimum of five years, following the completion of

the generation period. The user must maintain a copy of all notices and backup information

submitted to the registry for a minimum of five years, following the completion ofthe use period.

Other relevant reference material or raw data must also be maintained on-site by the participating

facilities or mobile sources. The user must also maintain a copy ofthe generator's notice and

backup information for a minimum of fi ve years after the use is completed. The records shall

include, but not necessarily be limited to:

(1) the name, emission point number, and facility identification number of each

facility or any other identifying number for mobile sources using discrete emission credits;
(2) the amount of discrete emission credits being used by each facility or mobile

source; and

(3) the specific number, name, or other identification of discrete emission credits

used for each facility or mobile source.

(i) Public information. All information submitted with notices, reports, and trades

regarding the nature, quantity of emissions, and sales price associated with the use or generation

of discrete emission credits is public information and may not be submitted as confidential. Any

claim of confidentiality for this type of information, or failure to submit all information may

result in the rejection ofthe discrete emission reduction application. All nonconfidential notices

and information regarding the generation, use, and availability of discrete emission credits may

be obtained from the registry.

(j) Authorization to emit. A discrete emission credit created under this division is a

limited authorization to emit the specified pollutants in accordance with the provisions ofthis

section, the Federal Clean Air Act, and the Texas Clean Air Act, as well as regulations

promulgated thereunder. A discrete emission credit does not constitute a property right. Nothing

in this division should be construed to limit the authority ofthe commission or the EPA to

terminate or limit such authorization.

(k) Program participation. The executive director has the authority to prohibit a company

from participating in discrete emission credit trading either as a generator or user,if the executive

director determines that the company has violated the requirements of the program or abused the

privileges provided by the program.
(I) Compliance burden and enforcement.

(I) The user is responsible for assuring that a sufficient quantity of discrete

emission credits are acquired to cover the applicable facility or mobile source's emissions for the

entire use period.

(2) The user is in violation of this section if the user does not possess enough

discrete emission credits to cover the compliance need for the use period. If the user possesses an

insufficient quantity of discrete emission credits to cover its compliance need, the user will be out

of compliance for the entire use period. Each day the user is out of compliance may be considered

a violation.

(3) Users may not transfer their compliance burden and legal responsibilities to a

third-party participant. Third-party participants may only act in an advisory capacity to the user.

(m) Credit ownership. The owner ofthe initial discrete emission credit certificate shall be

the owner or operator ofthe facility or mobile source creating the emission reduction. The

executive director may approve a deviation from this subsection considering factors such as, but

not limited to:

(I) whether an entity other than the owner or operator ofthe facility or mobile

source incurred the cost ofthe emission reduction strategy; or

(2) whether the owner or operator ofthe facility or mobile source lacks the

potential to generate one tenth of a ton of credit.
§101.376. Discrete Emission Credit Use.

(a) Requirements to use discrete emission credits. Discrete emission credits may be used

ifthe following requirements are met.

(1) The user shall have ownership of a sufficient amount of discrete emission

credits before the use period for which the specific discrete emission credits are to be used.

(2) The user shall hold sufficient discrete emission credits to cover the user's

compliance obligation at all times.

(3) The user shall acquire additional discrete emission credits during the use

period if it is detennined the user does not possess enough discrete emission credits to cover the

entire use period. The user shall acquire additional credits as allowed under this section prior to

the shortfall, or be in violation ofthis section.

(4) Facility or mobile source operators may acquire and use only discrete

emission credits listed on the "registry.

(b) Use of discrete emission credits. With the exception of uses prohibited in subsection

(c) ofthis section or precluded by commission order or condition within an authorization under

the same commission account number, discrete emission credits may be used to meet or

demonstrate compliance with any facility or mobile regulatory requirement including the

following:

(1) to exceed any allowable emission level, if the following conditions are met:
(A) in ozone nonattainment areas, permitted facilities may use discrete

emission credits to exceed permit allowables by no more than ten tons for nitrogen oxides or five

tons for volatile organic compounds in a 12-month period as approved by the executive director.

This use is limited to one exceedance, up to 12 months within any 24-month period, per use

strategy. The user shall demonstrate that there will be no adverse impacts from the use of discrete

emission credits at the levels requested; or

(B) at permitted facilities in counties or portions of counties designated

as attainment or unclassified, discrete emission credits may be used to exceed permit allowables

by values not to exceed the prevention ofsignificant deterioration significance levels as provided

in 40 Code of Federal Regulations (CFR) §52.21 (b)(23), as approved by the executive director

prior to use. This use is limited to one exceedance, up to 12 months within any 24-month period,

per use strategy. The user shall demonstrate that there will be no adverse impacts from the use of

discrete emission credits at the levels requested;

(2) as new source review (NSR) permit offsets, if the following requirements are

met:

(A) the user shall obtain the executive director's approval prior to the use

ofspecific discrete emission credits to cover, at a minimum, one year of operation ofthe new or

modified facility in the NSR permit;

(B) the amount of discrete emission credits needed for NSR offsets

equals the quantity of tons needed to achieve the maximum allowable emission level set in the

user's NSR permit. The user shall also purchase and retire enough discrete emission credits to
meet the offset ratio requirement in the user's ozone nonattainment area. The user shall purchase

and retire either the environmental contribution of 10% or the offset ratio, whichever is higher;

and

(C) the NSR permit must meet the following requirements:

(i) the permit must contain an enforceable requirement that the

facility obtain at least one additional year of offsets before continuing operation in each

subsequent year;

(ii) prior to issuance ofthe permit the user shall identify the

discrete emission credits; and

(iii) prior to start of operation the user shall submit a completed

DEC-2 Form, Notice ofIntent to Use Discrete Emission Credits, along with the original

certificate;

(3) to comply with the Mass Emissions Cap and Trade Program requirements as

provided in §101.356(g) ofthis title (relating to Allowance Banking and Trading); or

(4) to comply with Chapters 114, 115, and 117 ofthis title (relating to Control of

Air Pollution from Motor Vehicles; Control of Air Pollution from Volatile Organic Compounds;

and Control of Air Pollution from Nitrogen Compounds), as allowed.

(c) Discrete emission credit use prohibitions. A discrete emission credit may not be used

under this division:
(I) before it has been acquired by the user;

(2) for netting to avoid the applicability of federal and state NSR requirements;

(3) to meet (as codified in 42 United States Code (USC), Federal Clean Air Act

(FCAA)) requirements for:

(A) new source performance standards under FCAA, §III (42 USC,

§7411);

(B) lowest achievable emission rate standards under FCAA, §I73(a)(2)

(42 USC, §7503(a)(2));

(C) best available control technology standards under FCAA, § I65(a)(4)

(42 USC, §7475(a)(4)) or Texas Health and Safety Code, §382.0518(b)(l);

(D) hazardous air pollutants standards under FCAA, §112 (42 USC,

§7412), including the requirements for maximum achievable control technology;

(E) standards for solid waste combustion under FCAA, §129 (42 USC,

§7429);

(F) requirements for a vehicle inspection and maintenance program

under FCAA, § I82(b)(4) or (c)(3) (42 USC, §7511 a(b)(4) or (c)(3));
(G) ozone control standards set under FCAA, §l83(e) and (t) (42 USC,

§7511 bee) and (t);

(H) clean-fueled vehicle requirements under FCAA, §246 (42 USC,

§7586);

(1) motor vehicle emissions standards under FCAA, §202 (42 USC,

§752l );

(J) standards for non-road vehicles under FCAA, §213 (42 USC, §7547);

(K) requirements for reformulated gasoline under FCAA, §2l1 (k) (42

USC, §7545); or

(L) requirements for Reid vapor pressure standards under FCAA,

§2l ](11) and (i) (42 USC, §7545(h) and (i»;

(4) to allow an emissions increase of an air contaminant above a level authorized

in a permit or other authorization that exceeds the limitations of §106.261 or §106.262 ofthis title

(re]ating to Facilities (Emission Limitations); and Facilities (Emission and Distance Limitations))

except as approved by the executive director and the United States Environmental Protection

Agency. This paragraph does not apply to limit the use of discrete emission reduction credits

(DERC) or mobile discrete emission reduction credits in lieu of allowances under §10 1.356(h) of

this title;
(5) to authorize a facility whose emissions are enforceably limited to below

applicable major source threshold levels, as defined in §122.1 0 of this title (relating to General

Definitions), to operate with actual emissions above those levels without triggering applicable

requirements that would otherwise be triggered by such major source status; or

(6) to exceed an allowable emission level where the exceedance would cause or

contribute to a condition of air pollution as determined by the executive director.

(d) Notice of intent to use.

(1) A completed DEC-2 Form, signed by an authorized representative of the

applicant shall be submitted to the executive director in accordance with the following

requirements.

(A) Discrete emission credits may be used only after the applicant has

submitted the notice and received executive director approval.

(B) The application must be submitted at least 45 days prior to the first

day of the use period if the discrete emission credits were generated from a facility, 90 days if the

discrete emission credits were generated from a mobile source, and every 12 months thereafter

for each subsequent year ifthe use period exceeds 12 months.

(C) A copy ofthe application shall also be sent to the federal land

manager 30 days prior to use if the user is located within 100 kilometers of a Class I area, as

listed in 40 CFR Part 81 (2001).
(D) The application must include, but is not limited to, the following

infonnation for each use:

(i) the applicable state and federal requirements that the discrete

emission credits will be used to comply with and the intended use period;

(ii) the amount of discrete emission credits needed;

(iii) the baseline emission rate, activity level, and total emissions

for the applicable facility or mobile source;

(iv) the actual emission rate, activity level, and total emissions

for the applicable facility or mobile source;

(v) the most stringent emission rate and the most stringent

emission level for the applicable facility or mobile source, considering all applicable regulatory

requirements;

(vi) a complete description of the protocol, as submitted by the

executive director to the United States Environmental Protection Agency for approval, used to

calculate the amount of discrete emission credits needed;

(vii) the actual calculations perfom1ed by the user to determine

the amount of discrete emission credits needed;
(viii) the date that the discrete emission credits were acquired or

wiII be acquired;

(ix) the discrete emission credit generator and the original

certificate of the discrete emission credits acquired or to be acquired;

(x) the price of the discrete emission credits acquired or the

expected price of the discrete emission credits to be acquired, except for transfers between sites

under common ownership or control;

(xi) a statement that due diligence was taken to verify that the

discrete emission credits were not previously used, the discrete emission credits were not

generated as a result of actions prohibited under this regulation, and the discrete emission credits

will not be used in a manner prohibited under this regulation; and

(xii) a certification of use, that must contain certification under

penalty oflaw by a responsible official ofthe user of truth, accuracy, and completeness. This

certification must state that based on information and belief formed after reasonable inquiry, the

statements and information in the document are true, accurate, and complete.

(2) DERC use calculation.

(A) To calculate the amount of discrete emission credits necessary to

complywith§§117.123, 117.223, ]]7.320,117.323,117.423, 117.lO20, 117.]120, 117.1220,or

117.3020 ofthis title (relating to Source Cap; and System Cap), a user may use the equations

listed in those sections, or the following equations.
Required

(tons)

(i) For the rolling average cap:

Figure: 30 TAC §101.376(d)(2)(A)(i)

Amount of DERCs N

= [(EHi X ER,) -(Hi X R;)] x ( 2~OOJ

Where:

d = the number of days in the use period

i = each emission unit in the source or system cap

N = the total number of emission units in the source or system cap

Hi = actual daily heat input, in million British thermal units (MMBtu) per day, as

calculated according to §§ 117.123(b)(I), 117.223(b)(]), 117.320(c)( I) and (2),

117.323(b)(I), 117.423(b)(l), 117.I020(c)(1), 117.1120(c)(1), 117.1220(c)(1),

or 117.3020(c) ofthis title (relating to Source Cap; and System Cap) as

applicable

R; = actual emission rate, in pounds (Ib)/MMBtu, as defined in §§ 117.123(b)(I),

117.223(b)(1), 117.320(c)(1) and (2), 117.323(b)(I), 117.423(b)(1),

117.1020(c)(1), 117.1120(c)(1), 1I7.1220(c)(1), or 117.3020(c) ofthis title as

applicable

EH; = expected new daily heat input, in MMBtu per day

ER; = expected new emission rate, in Ib/MMBtu.

(ii) For maximum daily cap:

Figure: 30 TAC §101.376(d)(2)(A)(ii)
N 1

Amount ofDERCS Required (tons) = I [(EHMiXERi)- (HMiXRi)]--

i=1 2000

Where:

i = each emission unit in the source or system cap

N = the total number of emission units in the source or system cap

R;= in Ib/MMBtu, is defined as in §§117.123(b)(2), I 17.223(b)(2),

117.320(c)(3), 117.323(b)(2), 117.423(b) (2), 117.1020(c)(2), 117.1 120(c)(2), or

117.1220(c)(2) ofthis title (relating to Source Cap; and System Cap) as

applicable

HMi = the maximum daily heat input, in MMBtu/day, as defined in

§§ 117. 123(b)(2), 117.223(b)(2), 117.320(c)(3), 117.323(b)(2), 117 .423(b)(2),

117.1 020(c)(2), 117.1120(c)(2), or 117.1220(c)(2) of this title as applicable

EHMi.= expected new maximum daily heat input, in MMBtu per day

ERi = expected new emission rate, in Ib/MMBtu.

(B) The amount of discrete emission credits needed to demonstrate

compliance or meet a regulatory requirement is calculated as follows.

Figure: 30 TAC § I01.376(d)(2)(B)

(ELA) x (EER - RER) = discrete emission credits needed

Where:

ELA = expected level of activity

EER = expected emission rate per unit activity

RER = regulatory emission rate per unit activity.
(C) The amount of discrete emission credits needed to exceed an

allowable emissions level is calculated as follows.

Figure: 30 TAC §] 01.376(d)(2)(C)

Where:

(ELA - PLA) x (PER) =discrete emission credits needed

ELA = expected level of activity

PLA = permitted level of activity

PER = permitted emission rate per unit activity

(D) The user shall retire] 0% more discrete emission credits than are

needed, as calculated in this paragraph, to ensure that the facility or mobile source environmental

contribution retirement obligation will be met.

(E) Ifthe amount of discrete emission credits needed to meet a regulatory

requirement or to demonstrate compliance is greater than ten tons, an additional 5.0% ofthe

discrete emission credits needed, as calculated in this paragraph, must be acquired to ensure that

sufficient discrete emission credits are available to the user with an adequate compliance margin.

(3) A user may submit a notice late in the case of an emergency, but the notice

must be submitted before the discrete emission credits can be used. The user shall include a

complete description ofthe emergency situation in the notice of intent to use. All other notices

submitted less than 45 days prior to use, or 90 days prior to use for a mobile source, will be

considered late and in violation.
(4) The user is responsible for detennining the credits it will purchase and

notifying the executive director ofthe selected generating facility or mobile source in the notice

of intent to use. Ifthe generator's credits are rejected or the notice of generation is incomplete,

the use of discrete emission credits by the user may be delayed by the executive director. The user

cannot use any discrete emission credits that have not been certified by the executive director.

The executive director may reject the use of discrete emission credits by a facility or mobile

source ifthe credit and use cannot be demonstrated to meet the requirements ofthis section.

(5) If the facility is in an area with an ozone season less than 12 months, the user

shall calculate the amount of discrete emission credits needed for the ozone season separately

from the non-ozone season.

(e) Notice of use.

(I) The user shall calculate:

(A) the amount of discrete emission credits used, including the amount of

discrete emission credits retired to cover the environmental contribution, as described in

subsection (d)(2 )(C) of this section, associated with actual use; and

(B) the amount of discrete emission credits not used, including the

amount of excess discrete emission credits that were purchased to cover the environmental

contribution, as described in subsection (d)(2)(C) ofthis section, but not associated with the

actual use, and available for future use.

(2) DERC use is calculated by the following equations.
(A) The amount of discrete emission credits used to demonstrate

compliance or meet a regulatory requirement is calculated as follows.

Figure: 30 TAC §101.376(e)(2)(A)

(ALA) x (AER - RER) := discrete emission credits used

Where:

ALA := actual level of activity

AER = actual emission rate per unit activity

RER = regulatory emission rate per unit activity

(B) The amount of discrete emission credits used to comply with permit

allowables is calculated as follows.

Figure: 30 TAC §101.376(e)(2)(B)

(ALA - PLA) x (AER) = discrete emission credits used

Where:

ALA = actual level of activity

PLA = permitted level of activity

AER = permitted emission rate per unit activity

(3) A DEC-3 Form, Notice of Use of Discrete Emission Credits, shall be

\

submitted to the commission in accordance with the following requirements.

(A) The notice must be submitted within 90 days after the end ofthe use

period.
(B) The notice must be submitted within 90 days ofthe conclusion of

each 12-month use period, if applicable.

(C) The notice is to be used as the mechanism to update or amend the

notice of intent to use and must include any information different from that reported in the notice

of intent to use, including, but not limited to, the following items:

(i) purchase price ofthe discrete emission credits obtained prior

to the current use period, except for transfers between sites under common ownership or control;

(ii) the actual amount of discrete emission credits possessed

during the use period;

(iii) the actual emissions during the use period for volatile

organic compounds and nitrogen oxides;

(iv) the actual amount of discrete emission credits used;

(v) the actual environmental contribution; and

(vi) the amount of discrete emission credits available for future

use.

(4) Discrete emission credits that are not used during the use period are surplus

and remain available for transfer or use by the holder. In addition, any portion ofthe calculated

environmental contribution not attributed to actual use is also available.
(5) The user is in violation ofthis section ifthe user submits the report of use

later than the allowed 90 days following the conclusion ofthe use period.
SOBCHAPTER H: EMISSIONS BANKING AND TRADING

DIVISION 5: SYSTEM CAP TRADING

§101.383, §101.385

§101.383. General Provisions.

(a) System cap limits may be exceeded with surplus emission allowables obtained for that

day from another source owner or operator participating in a system cap. The owner or operator

may exceed the:

(1) maximum daily cap with one-day surplus emission allowables generated on

the same day; and

(2) rolling 30-day average daily system cap emission limitation with surplus

emission allowables generated over the same period.

(b) System cap limits for units within an electric power generating system as regulated

under §117.3020 ofthis title (relating to System Cap) may be exceeded with surplus emission

allowables obtained for that calendar year from another source owner or operator participating in

a system cap.

(c) The cap requirements ofChapter 117 ofthis title (relating to Control of Air Pollution

from Nitrogen Compounds) continue to apply, except as modified in subsections (a) and (b) of

this section.

§101.385. Recordkeeping and Reporting.
(a) The owner or operator of a source in an ozone nonattainment area participating with

this division shall submit to the executive director a quarterly report.

(I) Each quarterly report will be based on a three-calendar month period

beginning on January 1 of each year.

(2) The report shall be submitted within 30 days following the end of the

quarterly period.

(3) The report shall detail the following:

(A) the daily nitrogen oxides (NOx) emissions from each source along

with supporting calculations for the maximum daily cap and the rolling 30-day average system

cap emission limitation;

(B) all emission trades conducted under this division during the reported

time period including the trade date or period, quantity traded, and trading participants.

(b) The owner or operator of a source participating in a system cap limit for sources

subject to §117.3020 of this title (relating to System Cap) shall submit to the executive director an

annual report.

(l) Each annual report will be based on a l2-month calendar period beginning on

January I of each year.
(2) The report shall be submitted within 30 days following the end ofthe annual

period.

(3) The report shall detail the following:

(A) the annual NOx emissions from each source along with supporting

calculations; and

(B) all emissions trades conducted under this division during the reported

time period including trade date, quantity traded, and trade participants.

(c) The owner or operator of any system participating in this division shall report within

48 hours to the executive director any time that the system exceeded its daily or rolling 30-day

average system cap emission limitation, or within 30 days any time that the system exceeded its

annual system cap, and did not obtain surplus emission allowables for that time period. This

report shall include:

(I) cause of the exceedence with supporting data;

(2) date or period of exceedence;

(3) amount of exceedence with data to demonstrate the amount of emissions in

excess ofthe applicable limit; and

(4) number of surplus emission allowables traded on the date of or during the

period of the exceedence.
TEXAS COMMISSION ON ENVIRONMENTAa~~JIMS ._ Ihereby ce~lbat Ihi& is <! lrur; cno correet copy ata

;,::;;f'h'l E f)~'j.' . Texas Commission on Environmental QualitYdOcUIIft.

C°,;-, which is filed in the poonanent records ofItIeComnIIIIIaIL if ~~ Given u my hand and the seal of office on

(,, / . AUG 032001

La CastanueIa. ChiefClerk

Texas Commission on Environmental Quality

ORDER ADOPTING AMENDED AND REPEALED RULES AND

REVISIONS TO THE STATE IMPLEMENTATION PLAN

Docket No. 2006-2026-RUL

On July 25, 2007, the Texas Commission on Environmental Quality (COlmnission), during a public

meeting, considered adoption of amendments to Sections 101.1, 101.302, 101.306, 101.350, 101.351,

101.353, 101.354, 101.360, 101.372, 101.376, 101.383, and 101.385 and the repeal of Section 101.22 of 30

TAC Chapter 101. The Commission adopts these amendments and repeal, in Chapter 101, General Air

Quality Rules; and corresponding revisions to the state implementation plan (SIP). The amended sections

§§101.1, 101.302, 101.306, 101.350, 101.351, 101.353, 101.354, 101.360, 101.372, 101.376, 101.383, and

101.385 and the repeal of §101.22 will be submitted to the United States Enviromnental Protection Agency

(EPA) as revisions to the Texas State Implementation Plan (SIP). The adoption corrects references to sections

of 30 TAC Chapter 117, Control of Air Pollution from Nitrogen Compounds, which have changed due to the

reorganization of Chapter 117, revises definitions, removes an obsolete effective date, and corrects references

to the commission.

Under Tex. Health & Safety Code AIm. §§ 382.011, 382.012, and 382.023 (Vemon 2001), the

Commission has the authority to control the quality of the state's air and to issue orders consistent with the

policies and purposes of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The

proposed rules were published for comment in the February 23, 2007 issue of the Texas Register (32 TexReg

713).

Pursuant to Tex. Health & Safety Code Ann. § 382.017 (Vernon 2001), Tex. Gov't Code Chapter

2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations § 51.102, and after proper

notice, the Commission conducted a public hearing to consider the amended and repealed rules and revisions

to the SIP. Proper notice included prominent advertisement in the areas affected at least 30 days prior to the

date of the hearing. A public hearing was held in Austin, TX on March 20, 2007.

The Commission circulated hearing notices of its intended action to the public, including interested

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The

public was invited to submit data, views, and recOlmnendations on the proposed amended and repealed rules

and SIP revisions, either orally or in writing, at the hearing or during the comment period. Prior to the

scheduled hearing, copies of the proposed amended and repealed rules and SIP revisions were available for

public inspection at the Commission's central office and on the Commission's Web site.

Data, views, and recOlmnendations of interested. persons regarding the proposed amended and

repealed rules and SIP revisions were submitted to the Commission during the comment period, and were

considered by the Commission as reflected in the analysis of testimony incorporated by reference to this
Docket No. 2006-2026-RUL

[, ~. Data, views, ar:tc:l,'r~cc>mmenclations of interested persons regarding the proposed amended and

repealed r~les and SIP revisions 'were submitted to the Commission during the comment period, and were

considered by the ConimissiQll' as retlected in the analysis of testimony incorporated by reference to this

Order. The Commission finds that the analysis of testimony includes the names of all interested groups or

associations offering comment on the proposed amended and repealed rules and the SIP revisions and their

position concerning the same.

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended and repealed rules and

revisions 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 rules necessary to comply with Texas Register

requirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP are

incorporated by reference in this Order as if set forth at length verbatim in this Order.

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the

Chairman should transmit a copy of this Order, together with the adopted rules and revisions to the SIP, to

the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air

Act, § 110, codified at 42 U.S. Code Ann. §§ 7401 - 7671q, as amended.

This Order constitutes the Order of the Commission required by the Administrative Procedure Act,

Tex. Gov't Code, § 2001.033 (Vernon 2000 & Vernon Supp. 2005).

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction,

the invalidity of any portion shall not affect the validity of the remaining portions.

Date issued: AUG 022001 TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

)

I

/ J" ~"'-~ /. . / ( '-. ' .•..r-) ,

'---~ \{tLO(YJLQA/L/

ttllleen Hartnett White, Chairman
In 2003, the 78th Texas Legislature enacted HB 3459, adding

TEC, §7.027 (renumbered to §7.028 in subsequent legislative

session), which limits compliance monitoring by the state. TEC,

§7.028, gives the board of trustees of a school district or the governing body of an open-enrollment charter school the primary responsibility for ensuring that the district or school complies with

all applicable requirements of state educational programs. As a

consequence of TEC, §7.028, activities relating to provisions under TEC, §37.008(m), including rulemaking requirements, were

suspended.

In addition to TEC, §7.028, TEC, §37.008(m-1), was added and

directs the commissioner to identify districts that indicate high

risk of data and compliance violations. As a result of these two

legislative requirements, the TEA developed a new agency-wide

Performance-Based Monitoring (PBM) system. This new monitoring system replaced the former process outlined in the rule

being repealed and includes a data validation component.

The adopted repeal of 19 TAC Chapter 97, Subchapter CC,

§97.1021, implements these legislative changes.

The public comment period on the proposal began June 1, 2007,

and ended July 1,2007. No public comments were received.

The repeal is adopted under the Texas Education Code (TEC),

§7.028, which establishes a limitation on compliance monitoring (inclUding suspension of rulemaking requirements under

TEC, §37.008(m)) and TEC, §37.008(m-1), which directs the

commissioner to identify districts that indicate a high risk of

data and compliance violations. As a result of TEC, §7.028

and §37.008(m-1), the TEA developed a new agency-wide

Performance-Based Monitoring system that includes a data

validation component.

The repeal implements the TEC, §7.028 and §37.008(m-1).

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on July 26, 2007.

TRD-200703247

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: August 15, 2007

Proposal publication date: June 1, 2007

For further information, please call: (512) 475-1497

• • •

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

CHAPTER 101. GENERAL AIR QUALITY

RULES

The Texas Commission on Environmental Quality (TCEQ

or commission) adopts amendments to §§101.1, 101.302,

101.306, 101.350, 101.351, 101.353, 101.354, 101.360,

101.372, 101.376, 101.383, and 101.385 and the repeal of

§101.22. Sections 101.1,101.302,101.306,101.353,101.354,

and 101.376 are adopted with changes to the proposed text as

published in the February 23,2007, issue of the Texas Register.

Sections 101.22,101.350,101.351,101.360,101.372, 101.383,

and 101.385 are adopted without changes to the proposed text

and will not be republished.

The commission does not adopt the proposed amendment to

§101.23 as pUblished in the February 23,2007, issue of the

Texas Register.

The amended §§101.1, 101.302, 101.306,101.350,101.351,

101.353, 101.354, 101.360, 101.372, 101.376, 101.383, and

101.385 and the repeal of §1 01.22 will be submitted to the United

States Environmental Protection Agency (EPA) as revisions to

the Texas State Implementation Plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

The commission has adopted revisions to 30 TAC Chapter 117,

Control of Air Pollution from Nitrogen Compounds, as part of the

SIP for the Houston-Galveston-Brazoria (HGB) and Dallas-Fort

Worth nonattainment areas. Under those revisions, Chapter 117

was reorganized. Chapter 101, General Air Quality Rules, contains references to sections of Chapter 117 which have changed

due to the reorganization, requiring that the cited references

in Chapter 101 also change. This adoption also includes revisions identified during the last quadrennial review of Chapter

101, including changes to the definitions of cold solvent cleaning, conveyorized degreasing, high-volume low-pressure spray

guns, open top vapor degreasing, standard conditions, and visible emissions. Other changes include the deletion of the defi-

. nitions of hazardous waste management facility and hazardous

waste management unit, the addition of a definition for nitrogen

oxides, and the removal of an obsolete effective date section.

EPA comments dealing with some references unrelated to the

Chapter 117 reorganization, resulted in some changes.

SECTION BY SECTION DISCUSSION

§101.1. Definitions.

The commission adopts the modification of the opening paragraph ofthis section to specify that the definitions in §101.1 apply

to all air quality rules. The commission adopts the changes to the

definitions of cold solvent cleaning, conveyorized degreasing,

and open-top vapor degreasing by deleting the word "metal" so

that the processes also apply to cleaning non-metal parts. The

adopted amendment deletes the definitions of hazardous waste

management facility and hazardous waste management unit because references to these definitions are not found in any of the

air rules. The adopted revision to the definition of high-volume

low-pressure spray guns specifies that the operating pressure of

this equipment is measured at the air cap because this provides

the most accurate measurement. The commission adopts the

addition of the definition of nitrogen oxides from Chapter 117 because this is a common term used throughout the commission's

air quality rules. The adopted amendment deletes the last sentence of the definition of standard conditions that reads: "Pollutant concentrations from an incinerator will be corrected to a condition of 50% excess air if the incinerator is operating at greater

than 50% excess air." The amount of air present in combustion

is variable and does not qualify as a standard condition. The

commission adopts the change in the second sentence of the

definition of visible emissions to read: "The radiant energy from

an open flame is not considered a visible emission under this

definition." Radiant energy may manifest some visual effects but

there is no air contaminant emitted.

ADOPTED RULES August 10,2007 32 TexReg 4985
§101.22. Effective Date.

The commission adopts the repeal of this section because it is

no longer required.

§101.302. General Provisions.

The commission adopts the references to the newly renumbered

Chapter 117 sections. The section has been revised since proposal due to a comment submitted by the EPA to remove the reference to §117.3310, Emission Specifications for Eight-Hour Attainment Demonstration, from §1 01.302(d)(1 HA) since the East

Texas area is attainment for all pollutants.

§101.306. Emission Credit Use.

The commission adopts the references to the newly renumbered

Chapter 117 sections. The section has been revised since proposal to remove the reference to §117.3123 from §1 01.306(b)(3)

because the rule does not require it to be referenced in the equalion under Figure 30 TAC §101.306(b)(3). Also, references to

maximum daily cap and references to emission credits that are to

be used for compliance with the requirements of 30 TAC Chapters 114, Control of Air Pollution from Motor Vehicles, Chapter

115, Control of Air Pollution from Volatile Organic Compounds

(VOCs), or Chapter 117 or other programs, were added to this

section since proposal due to a comment submitted by the EPA.

§101.350. Definitions.

The commission adopts the replacement of the definition of

Houston/Galveston (HGA) ozone nonattainment area with HGB

ozone nonattainment area because the name of the nonattainment area has changed.

§ 101.351. Applicability.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections.

§101.353. Allocation ofAllowances.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections. This section has been changed since proposal to add

references to sections dealing with Initial Demonstration of Compliance. These changes were unrelated to the comments submitted by EPA.

§101.354. Allowance Deductions.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections.

§101.360. Level ofActivity Certification.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections.

§101.372. General Provisions.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections.

§101.376. Discrete Emission Credit Use.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections. This section has been changed since proposal due to a

32 TexReg 4986 August 10, 2007 Texas Register

comment submitted by the EPA to correctly reference maximum

daily caps instead of rolling 30-day average emission caps.

§101.383. General Provisions.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections.

§101.385. Recordkeeping and Reporting.

The commission adopts the replacement of references to Chapter 117 section numbers with the newly renumbered Chapter 117

sections.

The commission also adopts minor administrative changes to

address conformity to Texas Register requirements and other

agency rules and guidelines.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light oUhe

regulatory impact analysis requirements of Texas Government

Code, §2001.0225, and determined that this adoption is not subject to §2001.0225 because it does not meet the definition of a

major environmental rule as defined in that statute. A "major environmental rule" means a rule, the specific intent of which is to

protect the environment or reduce risks to human health from

environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state ora sector

of the state. Although the ultimate intent is to protecLthe environment, these adopted amendments are mainly the result of

an administrative action only, to correct and update cross-references to Chapter 117, which has been reorganized, modify certain definitions, and make other procedural changes to Chapter

101.

Chapter 117, Control of Air Pollution from Nitrogen Compounds,

has been reorganized. Chapter 101, General Air Quality Rules,

contains extensive references to sections of Chapter 117 that

were renumbered because of the reorganization. The references contained in Chapter 101 must change accordingly.

This adoption also includes revisions identified during the last

quadrennial review of Chapter 101 by the executive director and

includes changes to the definitions of visible emissions, cold

solvent cleaning, conveyorized degreasing, open-top vapor degreasing, high-volume low-pressure spray guns, and standard

conditions. Other adopted changes include deleting the definitions of hazardous waste management facility and hazardous

waste management unit, adding a definition for nitrogen oxides,

and removing an obsolete effective date section. The adopted

rules will not adversely affect in a material way the economy,

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

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

sector of the state.

In addition, a regulatory impact analysis is not required because

the rules do not meet any of the four applicability criteria for

requiring a regulatory impact analysis of a major environmental rule as defined in the Texas Government Code. Section

2001.0225 applies only to a major environmental rule, the result

of which is to: 1) exceed a standard set by federal law, unless

the rule is specifically required by state law; 2) exceed an

express requirement of state law, unless the rule is specifically

required by federal law; 3) exceed a requirement of a delegation

agreement or contract between the state and an agency or

representative of the federal government to implement a state

and federal program; or 4) adopt a rule solely under the general
powers of the agency instead of under a specific state law. This

rulemaking does not exceed a standard set by federal law, and

the adopted requirements are consistent with applicable federal

standards. In addition, this adoption does not exceed an express requirement of state law and is not adopted solely under

the general powers of the agency, but is specifically authorized

by the provisions cited in the STATUTORY AUTHORITY section

of this preamble. Finally, this rulemaking does not exceed a

requirement of a delegation agreement or contract to implement

a state and federal program.

The commission solicited comments on the draft regulatory impact analysis determination and no comments were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed

an analysis of whether the adopted rules are subject to Texas

Government Code, Chapter 2007. The primary purpose of the

rulemaking is to update references to sections of Chapter 117,

which has been reorganized, to modify certain definitions, and to

make other procedural changes to' Chapter 101. These amendments do not affect private property in a manner that restricts

or limits an owner's right to the property that would otherwise

exist in the absence of the governmental action. PromUlgation

and enforcement of these adopted rules is neither a statutory

nor a constitutional taking because they do not affect private real

property. Therefore, these rules do not constitute a taking under

Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found

the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating

to rules subject to the Coastal Management Program, and will,

therefore, require that goals and policies of the Texas Coastal

Management Program (CMP) be considered during the rulemaking process. 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 amendments are consistent with CMP goals and

policies. The CMP goal applicable to this rulemaking action is

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

quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The adopted rules update references

and definitions. No new sources of air contaminants will be authorized and the revisions will maintain the same level of emissions control as previous rules. The CMP policy applicable to

this rulemaking action is the policy that the commission's rules

comply with federal regulations in 40 Code of Federal Regulations, to protect and enhance air quality in the coastal areas (31

TAC §501.14(q)). This rulemaking action complies with 40 Code

of Federal Regulations Part 51, Requirements for Preparation,

Adoption, and Submittal of Implementation Plans. Therefore, in

accordance with 31 TAC §505.22(e), the commission affirms that

this rulemaking action is consistent with CMP goals and policies.

The commission solicited comments on the consistency of this

rulemaking, but no comments on the CMP were received.

PUBLIC COMMENT

A public hearing on the proposal was held in Austin on March 20,

2007 at the TCEQ. No comments were received at the public

hearing. The commission received written comments from the

EPA and Eternal Springs Wellness during the public comment

period, which closed on March 26, 2007.

EPA suggested modifications to the adopted rules as stated in

the RESPONSE TO COMMENTS section of this preamble, and

commented that they appreciate efforts made to update definitions and references in Chapter 101 that are changing due to the

reorganization of Chapter 117.

RESPONSE TO COMMENTS

Eternal Springs Wellness commented that they oppose delaying

the plan until 2018 and would like to see cleaner air now. Eternal

Springs Wellness commented that they would like to see the implementation of California standards and VOC storage tank/degassing regulations strengthened and implemented by January

1, 2009.

RESPONSE

The commission appreciates the commenters' interest in air

quality. The comments do not relate to the proposed Chapter

101 revisions, and no changes to the rule have been made in

response to them.

EPA noted that since §1 01.23 is no longer part of the federally

approved regUlations in the Texas SIP, they would be unable to

approve the proposed administrative changes to this section.

RESPONSE

The commission agrees that §101.23 is not part of the federally approved regulations in the Texas SIP. The commission applies the conditions of this section either through other rules of

the commission or through individual permits, and the proposed

amendments to §101.23 have not been adopted.

EPA noted that, to be included in the Texas SIP, the Alternate

Emission Reduction Policy would need to be developed in accordance with EPA's guidance on economic incentive programs,

as well as meet applicable Clean Air Act requirements.

RESPONSE

The commission is not currently considering whether to adopt

any rules regarding an alternate emission reduction policy.

EPA commented that §1 01.302(d)(1 )(A) incorrectly references

§117.3310, since emission reduction credits (ERCs) only apply

to nonattainment areas.

RESPONSE

The rule has been revised to remove the reference to §117.3310.

EPA commented that there is an inconsistency in §1 01.306(b)(3)

with Figure 30 TAC §101.306(b)(3) and §101.376(d)(2) with

Figure 30 TAC §101.376(d)(2)(A). Sections 101.306(b)(3) and

101.376(d)(2) allow the use of credits for compliance with

§117.3123 but the section is not included in the figures Figure:

30 TAC §1 01.306(b)(3) and Figure: 30 TAC §101.376(d)(2)(A).

RESPONSE

The rule has been revised to remove the reference to §117.3123

from §101.306(b)(3). Section 1179800 allows ERCs and discrete emission reduction credits (DERCs) to be used for alternative compliance with §117.3123. However, the equation to determine compliance to the source cap in §117.3123 is different from

the equations in Figure 30 TAC §101.306(b)(3) and Figure 30

TAC §101.376(d)(2)(A)(i). For compliance with §117.3123, the

equations in §117.3123 are reqUired to be used in place of Figure

30 TAC §101.306(b)(3) or Figure 30 TAC §101.376(d)(2)(A)(i).

ADOPTED RULES August 10,2007 32 TexReg 4987
EPA commented that Figure 30 TAC §101.306(b)(3) does

not reference the maximum daily cap requirements found in

§1 01 .306(b)(2).

RESPONSE

§/Of. f. Definitions.

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

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

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

control. In addition to the terms that are defined by the TCAA, thc

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

following meanings, unless the context clearly indicates otherwise.

The rule has been revised to include references to both the 30-

day rolling average and the maximum daily cap average requirements for system caps and source caps.

EPA commented that Figure 30 TAC §1 01.376(d)(2)(A)(ii) incorrectly references §§117.123(b)(1), 117.223(b)(1), 117.323(b)(1),

and 117.423(b)(1), which refer to rolling 30-day average emission caps instead of maximum daily caps.

RESPONSE

30 TAC §101.1

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC),

§5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.103, concerning Rules, that

authorizes the commission to adopt rules necessary to carry

out its powers and duties under the Texas Water Code; TWC,

§5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the

commission; and under Texas Health and Safety Code (THSC),

§382.017, concerning Rules, that authorizes the commission

to adopt rules consistent with the policy and purposes of the

Texas Clean Air Act. The amended section is also adopted

under THSC, §382.002, concerning Policy and Purpose, that

establishes the commission's purpose to safeguard the state's

air resources, consistent with the protection of public health,

general welfare, and physical property; §382.011, concerning

General Powers and Duties, that authorizes the commission

to control the quality of the state's air; and §382.012, concerning State Air Control Plan, that authorizes the commission to

prepare and develop' a general, comprehensive plan for the

proper control of the state's air. The amended section is also

adopted under §382.016, concerning Monitoring Requirements;

Examination of Records, that authorizes the commission to

prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions; and §382.051, concerning

Permitting Authority. of Commission; Rules, that authorizes

the commission to issue permits and adopt rules necessary

for permits issued under THSC, Chapter 382. The amended

section is also adopted under the Federal Clean Air Act, 42

United States Code, §§7401 - 7671q.

The amended section implements THSC, §§382.002, 382.011,

382.012, 382.016, 382.017, and 380.051.

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

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

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

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

coatings.

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

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

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

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

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

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

a contiguous manufacturing complex.

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

activated carbon to adsorb volatile organic compounds from a gas

stream.

(2) Acid gas flare--A flare used exclusively for the incineration of hydrogen sulfIde and other acidic gases derived from natural

gas sweetening processes.

(3) Agency established facility identification number--For

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

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

or operator of a regulated entity that the emission inventory reporting

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

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

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

to buildings, to which the general public has access.

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

air contaminants that cannot be reduced by controlling emissions from

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

areas.

(I) Account--For those sources required to be pennilted

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

Program), all sources that are aggregated as a site. For all other sources,

any combination of sources under common ownership or control and

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

or similar divisions.

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

by spraying, brushing, flushing, and/or immersion while maintaining

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

not included in this definition.

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

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

land, water, and air vehicles.

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

gas and/or liquid fuel fired with or without power augmentation. This

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

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

GENERAL RULES

revised to change the citations

117.223(b)(2), 117.323(b)(2) and

The rule has been

to §§117.123(b)(2),

117.423(b)(2).

SUBCHAPTER A.

32 TexReg 4988 August 10,2007 Texas Register
month period. Two or morc gas turbines powering one shaft wi II be

treated as one unit.

(15) Commercial hazardous wastc management facility--Any hazardous waste management facility thaI accepts hazardous

waste or polychlorinated biphenyl compounds for a charge, except a

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

that accepts waste only from other facilities owned or effectively

controlled by the same person.

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

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

accepts for incineration medical waste generated outside the property

boundaries of the facility.

(18) Component--A piece of equipment, including, but not

limited to, pumps, valves, compressors, and pressure relief valves that

has the potential to leak volatile organic compounds.

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

and/or pressure changes of produced natural gas. Once these liquids

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

are no longer considered condensates.

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

construction or demolition projects.

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

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

the atmosphere.

(22) Conveyorized degreasing--A solvent cleaning process

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

automatically provide a continuous supply of parts to be cleaned or

dried using either cold solvent or vaporized solvent. A conveyorized

degreasing process is fully enclosed except for the conveyor inlet and

exit portals.

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

which there is a national ambient air quality standard established under

40 Code of Federal Regulations Part 50.

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

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

or any other forms of transportation.

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

maior stationary source or of the operation of any existing source that

has undergone a major modification that does not exceed the following

specified amounts.

Figure: 30 TAC § I0 1.1 (25) (No change.)

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

resulting from the functions of life within a reSidence.

(27) Emissions banking--A system for recording emissions

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

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

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

results in unauthorized emissions of air contaminants from one or

more emissions points at a regulated entity.

(29) Emissions reduction credit--Any stationary source

emissions reduction that has been banked in accordance with Chapter

101, Subchapter H, Division I of this title (relating to Emission Credit

Banking and Trading).

(30) Emissions reduction credit cerlilicatc--The certificate

issued by the executive director that indicates the amount of qualified

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

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

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

regulation under the Federal Clean Air Act.

(32) Excess opacity event--When an opacity reading is

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

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

from the definition of volatile organic compound.

(34) External 110ating roof--A cover or roof in an open top

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

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

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

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

space between them.

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

Federal Regulations Part 85.

(36) Federally enforceable--Alllimitations and conditions

that are enforceable by the United States Environmental Protection

Agency administrator, including those requirements developed under

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

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

requirements established under 40 CFR §52.21 or under regulations

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

SIP and that expressly requires adherence to any pennit issued under

such program.

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

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

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

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

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

considered a flare.

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

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

0396-0 I, Standard Specifications for Fuel Oils, revised 200 I. This

includes fuel oil grades I, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light).

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

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

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

opening designed to direct or control its Ilow.

(40) Garbage--Solid waste consisting ofputrescible animal

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

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

food products.

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

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

ADOPTED RULES August 10,2007 32 TexReg 4989
(42) Hazardous wasles--Any solid waste identified or listed

as a hazardous wasle by the adminislrator ofthe Uniled States Environmental Protection Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, 42 United

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

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

Hot air dryers are used 10 deliver the heat.

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

temperatures above 194 degrees Fahrenheit.

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

used 10 apply coatings by means of a spray gun that operates between

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

the air cap.

(46) Incinerator--An enclosed combustion apparatus and

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

burns 10% or more ofsolid waste on a total British thennalunit (Btu)

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

be an incineralor. A combustion device without instrumentation or

methodology to detennine hourly flow rates ofsolid waste and burning

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

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

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

when approved by the executive director. Devices burning untreated

wood scraps, wasle wood, or sludge from the trealment of wastewater

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

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

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

applicable pennits.

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

by mechanical or chemical processes.

(48) Industrial furnace--Cement kilns; lime kilns; aggregate kilns; phosphate kilns; coke oveus; blast furnaces; smelting,

melting, or refining furnaces, including pyrometallurgical devices

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

or foundry furnaces; titanium dioxide chloride process oxidation

reactor~; methane refonning furnaces; pulping recovery furnaces;

combustion devices used in the recovery of sulfur values from spent

sulfuric acid; and other devices the commission may list.

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

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

agricultural operations, classified as follows.

(A) Class I industrial solid waste or Class I waste is any

industrial solid waste designated as Class 1 by the executive director

as any industrial solid waste or mixture of·industrial solid wastes that

because of its concentration or physical or chernical characteristics is

toxic, corrosive, flammable, a strong sensitizer or irritant, a generator

of sudden pressure by decomposition, heat, or other means, and may

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

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

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

Waste Determination).

32 TexReg 4990 August 10,2007 Texas Register

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

wasle or combination ofindustrial solid wastes that cannot be described

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

Class 2 Waste Detennination).

(C) Class 3 industrial solid waste is any inert and essentially insoluble industrial solid waste, including materials such as rock,

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

3 Waste Determination).

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

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

between the cover edge and tank shell.

(51) Leak--A volatile organic compound concentration

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

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

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

British thennal units per pound.

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

roof around the circumference of the tank.

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

previously designated nonattainment under the Federal Clean Air Act

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

States Code, §7505a. The following are the maintenance areas within

the state:

(A) Victoria Ozone Maintenance Area 60 (Federal

Register (FR) 12453) - Victoria County; and

(B) Collin County Lead Maintenance Area (64 FR

55421) - Portion of Collin County. Eastside: Starting at the intersection of South Fifth Street and the fence line approximately 1,000

feet south of the Exide property line going north to the intersection of

South Fifth Street and Eubanks Street; Northside: Proceeding west

on Eubanks to the Burlington Railroad tracks; Westside: Along the

Burlington Railroad tracks to the fence line approximately 1,000 feet

south of the Exide property line; Southside: Fence line approximately

1,000 feet south of the Exide property line.

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

implementation plan, meeting the requirements of 42 United States

Code, §7505a.

(56) Marine vessel--Any watercraft used, or capable of being used, as a means of transportation on water, and that is constructed

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

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

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

roof.

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

with special waste from health care-related facilities.

(59) Metropolltau Planning Organization--That organization designated as being responsible, together with the state, for
conducting thc continuing, cooperative, and comprchensive planning

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

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

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

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

titlc (relating to Vehicle Retirement and Mobilc Emission Reduction

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

Division I of this chapter.

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

transporting persons or property on a street or highway.

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

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

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

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

recreational activities, including garbage, rubbish, asbes, street cleanings, dead animals, abandoned automobiles, and all other solid waste

except industrial solid waste.

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

structures, otber appurtenances, and improvements on the land used

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

bc publicly or privately owned and may consist of several processing,

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

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

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

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

those terms are defined under 40 Code of Federal Regulations §257.2.

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

types of Resource Conservation and Recovery Act Subtitle 0 wastes,

such as commercial solid waste, nonhazardous sludge, conditionally

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

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

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

expansion.

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

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

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

an air contaminant as measured at or beyond the property boundary

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

level concentration may be determined by a measurement at or beyond

the property boundary.

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

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

(69) Nitrogen oxides (NO)--The sum of the mtric oxide

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

(70) Nonattainment area--A defined region within the

state that is designated by the United States Environmental Protection Agency (EPA) as failing to meet the national ambient air

quality standard for a pollutant for which a standard exists. The EPA

will designate the area as nonatlainment under the provisions of 42

United States Code, §7407(d). For the official list and boundaries of

nonattainment areas. see 40 Code of Federal Regulations Part 81 and

pertinent Federal Register (FR) notices. Th~ following areas comprise

the nonattainment areas within the state for all national ambient air

quality standards (NAAQS). EPA has indicated lhat it will revoke the

one-hour ozone standard in full, including the associated designations

and classifications, on June 15,2005, which is one year fol]owing the

effective date of the designations for the eight-hour NAAQS of June

15,2004.

(A) Carbon monoxide (CO). E] Paso CO nonatlainment

arca (56 FR 56694)--Classified as a Moderate CO nonattainment area

wilh a design value less than or equal to 12.7 parts per million. Portion

ofEI Paso County. Portion ofthe city limits ofE] Paso: That portion of

the City of EI Paso bounded on the north by Highway 10 from Porfirio

Diaz Street to Raynolds Street, Raynolds Street from Highway 10 to

the Southern Pacific Railroad lines, the Southern Pacific Railroad lines

from Rayno\ds Street to Highway 62, Highway 62 from the Southern

Pacific Railroad lines to Highway 20, and Highway 20 from Highway

62 to Polo Inn Road. Bounded on the cast by Polo Inn Road from

Highway 20 to the Texas-Mexico border. Bounded on the south by

the Texas-Mexico border from Polo Inn Road to Porflrio Diaz Street.

Bounded on the west by Porfirio Diaz Street from the Texas-Mexico

border to Highway 10.

(B) Inhalable particulale matter (PM,,). El Paso PM",

nonattainment area (56 FR 56694)--Classified as a Moderate PM",

nonattainmenl area. Portion of El Paso County that comprises the EI

Paso city limit boundaries as they existed on November 15, 1990.

(C) Lead. No designated nonattainmenl areas.

(D) Nitrogen dioxide. No designated nonattainment areas.

(E) Ozone (one-hour).

(i) Houston-Galveston-Brazoria (HGB) one-hour

ozone nonattainment area (56 FR 56694) - Classified as a Severe-I 7

ozone nonattainment area. Consists of Brazoria, Chambers, Fort

Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties.

(ii) El Paso one-hour ozone nonattainment area (56

FR 56694) - Classified as a Serious ozone nonattainment area. Consists

of EI Paso County.

(iii) Beaumont-Port Arthur (BPA) one-hour ozone

nonattainment area (69 FR 16483) - Classified as a Serious ozone

nonattainment area. Consists of Hardin, Jefferson, and Orange Counties.

(iv) Dallas-Fort Worth one-hour ozone nonatlainment area (63 FR 8128) - Classified as a Serious ozone nonattainment

area. Consists of Collin, Dallas, Denton, and Tarrant Counties.

(F) Ozone (eight-hour).

(i) HGB eight-hour ozone nonattainment area (69

FR 23936) - Classified as a Moderate ozone nonattainment area. Consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty,

Monlgomery, and Waller Counties.

(ii) BPA eight-hour ozone nonattainment area (69

FR 23936) - Classified as a Marginal ozone nonattainment area. Consists of Hardin, Jefferson, and Orange Counties.

(iii) Dallas-Fort Worth eight-hour ozone nonattainment area (69 FR 23936) - Classified as a Moderate ozone nonattainment area. Consists of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties.

(iv) San Antonio eight-hour ozone nonattainmenl

area (69 FR 23936) - Classified under the Federal Clean Air Act, Tit]e

ADOPTED RULES August 10,2007 32 TexReg 4991
I, Part D, Subpart I (42 United States Code, §7502), nonatlainment

deferred to September 30, 2005, or as extended by EPA.

(G) Sulfur dioxide. No designated nonattainment areas.

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

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

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

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

observer.

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

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

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

hot solvent vapors on the parts.

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

process that is not conducted in a combustion unit.

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

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

at standard conditions.

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

orliquid material, other than uncombined water, emitted to the ambient

air as measured by United States Environmental Protection Agency

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

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

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

at 40 CFR Part 5 I; or by a test method specified in an approved statc

implementation plan.

(77) Petroleum refinery--Any facility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants,

or other products through distillation of cmde oil, or through the redistillation, cracking, extraction, reforming, or other processing of unfinished petroleum derivatives.

(78) PM",--Particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers as measured by a

reference method based on 40 Code ofFederal Regulations (CFR) Part

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

by an equivalent method designated with that Part 53.

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

micrometers emitted to the ambient air as measured by an applicable

reference method, or an equivalent or altemative method specified in

40 Codc of Federal Regulations Part 51, or by a test method specified

in an approved state implementation plan.

(80) Polychlorinated biphenyl compound--A compound

subject to 40 Code of Federal Regulations Parl 761.

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

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

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

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

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

proces; that may cause any discharge of air contaminants into the atmosphere. Solid fuels charged into the process wi II be considered as

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

air will not. The "process weight per hour" will be derived by divicl32 TexReg 4992 August 10,2007 Texas Register

ing the total process weight by the number of hours in one complete

operation from the beginning of any given process to the completion

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

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

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

period by 24.

(83) Property--AII land under common control or ownership coupled with all improvements on such land, and all fixed or movable objects on such land, or any vessel on the waters of this state.

(84) Reasonable further progress--Annual incremental reductions in emissions of the applicable air contaminant that are sufficient to provide for attainment of the applicable national ambient air

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

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

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

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

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

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

regulation of emissions events.

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

work area that drains solvent back into an enclosed container while

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

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

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

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

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

(A) for individual air contaminant compounds and

specifically listed mixtures by name or Chemical Abstracts Service

(CAS) number, either:

(i) the lowest ofthe quantities:

(1) listed in 40 Code of Federal Reglilations

(CFR) Part 302, Table 302.4, the column "fmal RQ";

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

column "Reportable Quantity"; or

(JJl) listed as follows:

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

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

(BPA) ozone nonattainment areas as defined in paragraph (70)(E)(i)

and (iii) of this section, where the RQ must be 100 pounds;

(-b-) butanes (any isomer) - 5,000 pounds:

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

areas as defmed in paragraph (70)(E)(i) and (iii) of this section, where

the RQ must be 100 pounds;

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

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

(-f-) cblorodifluoromethane (HCFC-22) -

5,000 pounds;

(-g-) I-cbloro-I-fluoroethune (HCFC-151 a) -

5,000 pounds;

(-h-) chlorofluoromethane (HCFC-31)

5,000 pounds;
(-i-) chloropcntalluoroethane (CFC-115)

5,000 pounds;

(-j-) 2-chloro-l, 1,1 ,2-tctralluoroethane

(HCFC-124) - 5,000 pounds;

(-k-) l-chloro-I,I,2,2 tetralluoroethane

(HCFC-124a) - 5,000 pounds;

(-1-) 1, I, 1,2,3,4,4,5,5,5-deca11uoropcntanc

(HFC 43-IOmee) - 5,000 pounds;

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

(-n-) I,l-dichloro-I-Iluorocthanc (HCFC141b) - 5,000 pounds;

(-0-) 3,3-dichloro-l, I,2,2-pentalluoropropane (HCFC-225ca) - 5,000 pounds;

(-p-) I,3-dichloro-l, I,2,2,3-pentalluoropropane (HCFC-225cb) - 5,000 pounds;

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

(CFR-114) - 5,000 pounds;

(-r-) I, I-dichlorotctrafluoroethane (CFC114a) - 5,000 pounds;

(-s-) I,2-dichloro-l, 1,2-trilluoroethane

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

(-t-) 1, I-dilluoroethane (HFC-152a) - 5,000

pounds;

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

pounds;

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

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

HOB and BPA ozone nonallainment areas as defined in paragraph

(70)(E)(i) and (iii) of this section, where the RQ must be 100 pounds;

(-x-) ethylfluoride (HFC-161) 5,000

pounds;

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

(HFC-227ea);

(-z-) I, I, I,3,3,3-hexafluoropropane (HFC236fa) - 5,000 pounds;

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

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

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

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

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

(-ee-) octanes (any isomer) - 5,000 pounds;

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

ozone nonallainment, ozone maintenance, early action compact areas,

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

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

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

Table 302.4. the column "final RQ";

(-gg-) pentachlorofluoroethane (CFR-III) -

5,000 pounds;

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

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

pounds;

(-jj-) I, 1,2,2,3-pentafluoropropane (HFC245ca) - 5,000 pounds;

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

(-11-) I, I, I,2,3-pentafluoropropane (HFC245eb) - 5,000 pounds;

(-mlll-) I, I, I,3,3-pentafluoropropane

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

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

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

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

the HOB and BrA ozone nonallainment areas as defined in paragraph

(70)(E)(i) and (iii) of this section, where the RQ must be 100 pounds;

(-qq-) I, I,2,2-terachloroditluoroethane (CFR

-112) - 5,000 pounds;

(-rr-) I, I, I,2-tetrachlorodilluoroetllane

(CFC-112a) -5.0nO pounds;

(-ss-) I, I,2,2-tetralluoroethane (HFC-134)

5,000 pounds;

(-tt-) 1,1,1,2-tctrafluoroethane (HFC-134a)-

5,000 pounds;

(-uu-) 1,1 ,2-trichloro-1 ,2,2-trilluorocthane

(CFR-113) - 5,000 pounds;

(-vv-) I, I, l-trichloro-2,2,2-triI1l0roethane

(CFC-113a) - 5,000 pounds;

(-ww-) I, I, l-tritluoro-2,2-dichlorocthane

(HCFC-123) - 5,000 pounds;

(-xx-) I,I,I-trilluoroethane (HFC-143a)

5,000 pounds;

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

pounds; or

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

HOB and BPA ozone nonattainment areas as defined in paragraph

(70)(E)(i) and (iii) of this section, where the RQ must be 100 pounds;

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

100 pounds;

(B) for mixtures of air contaminant compounds:

(i) where the relative amount of individual air contaminant compounds is known through common process knowledge or

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

contaminant compound that equals or exceeds the amount specified in

subparagraph (A) of this paragraph;

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

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

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

and listed in subparagraph (A)(i) of this paragraph;

(iii) where each of the individual air contaminant

compounds listed in subparagraph (A)(i) of this paragraph are known

to be less tllan 0.02°;(, by weight ofthe mixture, and each ofthc otller individual air contaminant compounds covered by subparagraph (A)(ii)

of this paragraph are known to be less than 2,0% by weight ofthe mixture, any total amount of the mixture of air contaminant compounds

greater than or equa I to 5,000 pounds; or

(ill) where natural gas excluding carbon dioxide,

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

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

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

mercaptans in a total amount greater than 100 pounds, whichever

occurs first;

(C) for opacity from boilers and combustion turbines as

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

oil containing hazardous air pollutants at a concentration of less than

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

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

turbines described in this paragraph; or

(D) for facilities where air contaminant compounds are

measured directly by a continuous emission monitoring system providing updated readings at a minimum 15-minute interval an amount,

ADOPTED RULES August 10,2007 32 TexReg 4993
approved by the executive director based on any relevant conditions

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

concentrations reaching at any distance beyond the closest regulated

entity property line:

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

standards; and

(ii) less than rwo times the concentration of applicable air emission limitations,

(89) Rubbish--Nonputrescible solid waste, consisting of

both combustible and noncombustible waste materials, Combustible

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

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

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

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

Fahrenheit),

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

shutdown activity is an activity that the owner or operator of the regulated entity whether performing or otherwise affected by the activity,

provides prior notice and a final report as required by § 101,211 of this

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

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

RQ, For activities with unauthorized emissions that are not expected

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

shutdown activity is one that is recorded as required by § I0 1.211 of

this title, Expected excess opacity events as described in § I0 1.20 I(e)

of this title (relating to Emissions Event Reporting and Recordkeeping

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

recorded and reported as required by §101.211 of this title,

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

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

incomplete combustion consisting predominately of carbon and other

combustible material and present in sufficient quantity to be visible.

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

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

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

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

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

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

Code, Chapter 26;

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

inert solid materials used to fill land, if the object of the fill is to make

the land suitable for the construction ofsurface improvements; or

(C) waste materials that result from activities associated with the exploration, development. or production of oil or gas,

32 TexReg 4994 August 10, 2007 Texas Register

or geothermal resources, and other substance or material regulated by

the Railroad Commission of Texas under Natural Resources Code,

§91, 101, unless the waste, substance, or material results from activities

associated with gasoline plants, natural gas liquids processing plants,

pressure maintenance plants, or repressurizing plants and is hazardous

waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act,

as amended by Resource Conservation and Recovery Act, as amended

(42 United States Code, §§6901 el seq.),

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

in equilibrium at atmospheric pressure.

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

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

of total sulfur per 100 cubic feet.

(96) Source--A point of origin of air contaminants, whether

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

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

be treated as a single source or as multiple sources,

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

solid waste that if improperly treated or handled, may serve to transmit

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

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

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

68 degrees Fahrenheit (20 degrees Centigrade) and a pressureof 14.7

pounds per square inch absolute (101.3 kiloPascals),

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

so designated by the United States Bureau of the Budget.

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

top of a tank to have a maximum clearance ofsix inches (J 5.2 centimeters) from the bottom or, when applied to a tank that is loaded from the

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

used to withdraw liquid from the tank canno longer withdraw liquid in

normal operation,

(10 I) Sulfur compounds--All inorganic or organic chemicals having an atom or atoms of sulfur in their chemical structure,

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

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

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

(J 03) Sweet crude oil and gas--Those crude petroleum hydrocarbons that are not "sour" as defined in this section,

(104) Total suspended partieu late--Particulate matter as

measured by the method described in 40 Code of Federal Regulations

Part 50, Appendix B.

(105) Transfer efficiency--The amount of coating solids

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

amount of coating solids delivered to the coating application system,

(106) True vapor pressure--The absolute aggregate partial

vapor pressure, measured in pounds per square inch absolute. of all

volatile organic compounds at the temperature ofstorage, handling, or

processing.

(107) Unauthorized emissions--Emissions of any air contaminant except carbon dioxide, water, nitrogen, methane. ethane, no-
Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: August 16, 2007

Proposal publication date: February 23, 2007

For further information, please call: (512) 239-60B7

Filed with the Office of the Secretary of State on JUly 27, 2007.

TRD-2007032BB

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: August 16. 2007

Proposal publication date: February 23, 2007

For further information, please call: (512) 239-60B7

SUBCHAPTER H. EMISSIONS BANKING

AND TRADING

DIVISION 1. EMISSION CREDIT BANKING

AND TRADING

30 TAC §101.302, §101.306

STATUTORY AUTHORITY

The amended sections are adopted under Texas Water Code

(TWC), §5.1 02, concerning General Powers, that provides the

commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.103, concerning Rules, that

30 TAC §101.22

STATUTORY AUTHORITY

The repealed section is adopted under Texas Water Code

(TWC), §5,1 02, concerning General Powers, that provides the

commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.1 03, concerning Rules, that

authorizes the commission to adopt rules necessary to carry

out its powers and duties under the Texas Water Code; TWC,

§5.1 05, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the

commission; and under Texas Health and Safety Code (THSC),

§382.017, concerning Rules, that authorizes the commission

to adopt rules consistent with the policy and purposes of the

Texas Clean Air Act. The repealed section is also adopted

under THSC, §382.002, concerning Policy and Purpose, that

establishes the commission's purpose to safeguard the state's

air resources, consistent with the protection of pUblic health,

general welfare, and physical property; §382.011, concerning

General Powers and Duties, that authorizes the commission to

control the quality of the state's air; and §382.012, concerning

State Air Control Plan, that authorizes the commission to pre-

.pare and develop a general, comprehensive plan for the proper

control of the state's air.

The repealed section implements THSC, §§382.002, 382.011,

382.012, and 382.017.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

•

•

•

• •

•

ble gases, hydrogen, and oxygen that exceed any air emission limitation

in a permit, rule, or order ofthe commission or as authorized by Texas

Clean Air Act, §382.0518(g).

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

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

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

the type of event normally authorized by pennit; or

(B) a maintenance activity that arises from sudden and

unforeseeable events beyond the control of the operator that requires

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

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

emissions. A maintenance, startup, or shutdown activity that was reported under § I0 1.211 ofthis title (relating to Scheduled Maintenance,

Startup, and Shutdown Reporting and Recordkeeping Requirements),

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

rcportable quantity due to an unplanned and unavoidable breakdown

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

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

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

(Ill) Vapor eombustor--A partially enclosed combustion

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

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

the device operate with an uncontrolled flame. Auxiliary fuel and/or a

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

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

ensure smokeless combustion during operation.

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

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

is bounded by the bottom of the priinary seal, the tank wall, the liquid

surface, and the 110ating roof or cover.

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

other device used to conduct air contaminants into the atmosphere.

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

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

Harne is not considered a visible emission under this definition.

(J 15) Volatile organic eompound--As defined in 40 Code

of Federal Regulations §5 I.I OO(s), except §51.l 00(s)(2) - (4), as

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

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

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

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

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

drainage, or recovery of such water.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

Filed with the Office of the Secretary of State on JUly 27,2007.

TRD-2007032B7

ADOPTED RULES August 10,2007 32 TexReg 4995
authorizes the commission to adopt rules necessary to carry

out its powers and duties under the Texas Water Code; TWC,

§5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the

commission; and under Texas Health and Safety Code (THSC),

§382.017, concerning Rules, that authorizes the commission to

adopt rules consistent with the policy and purposes of the Texas

Clean Air Act. The amended sections are also adopted under

THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general

welfare, and physical property; §382.011, concerning General

Powers and Duties, that authorizes the commission to control

the quality of the state's air; and §382.D12, concerning State

Air Control Plan, that authorizes the commission to prepare and

develop a general, comprehensive plan for the proper control

of the state's air. The amended sections are also adopted underTHSC, §382.014, concerning Emission Inventory, that authorizes the commission to require a person whose activities cause

air contaminant emissions to submit information to enable the

commission to develop an emissions inventory; and §382.016,

concerning Monitoring Requirements; Examination of Records,

that authorizes the commission to prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions. The amended sections are also adopted under 42 United

States Code, §7410(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012,382.014,382.016, and 382.017.

§IOI.302. General Provisions.

(a) Applicable pollutants. Reductions of criteria pollutants,

excluding lead, or precursors of criteria pollutants for which an area is

. designated nonattainrnent, may qualitY as emission credits. Reductions

of one pollutant may not be used to meet the requirements for another

pollutant, unless urban airshed modeling demonstrates that one ozone

precursor may be substituted for another, subject to executive director

and United States Environmental Protection Agency (EPA) approval.

(b) Eligible generator categories. The following categories are

eligible to generate emission credits:

(I) facilities, including area sources;

(2) mobile sources; and

(3) any facility, including area sources, or mobile sourcc

associated with actions by federal agencies under § I0 1.30 of this title

(relating to Conformity of General Federal Actions to Stale Implementation Plans).

(c) Emission credit requirements.

(I) Emission reduction credits are certified reductions that

meet the following requirements:

(A) reductions must be enforceable, permanent, quantifiable, real, and surplus;

(B) the certified reduction must bc surplus at the time It

is created, as well as when it is used;

(C) in order to become certified, the reduction must

have occurred after the most recent year of emissions inventory used

in the state implementation plan (SIP); and

32 TexReg 4996 August 10,2007 Texas Register

(D) the facility's annual emissions prior to the reduction strategy must have been reported or represented in the emissions

inventory used in the SIP.

(2) Mobile emission reduction credits are certified reductions that meet the following requirements:

(A) reductions must be enforceable, permanent, quantifiable, real, and surplus;

(B) the certified reduction must be surplus at the time it

is created, as well as when it is used;

(C) in order to become certified, the reduction must

have occurred after the most recent year of emissions inventory used

in the SIP;

(D) the mobile source's annual emissions prior to the

emission credit application must have been represented in the emissions inventory used in the SIP; and

(E) the mobile sources must have been included in the

attainment demonstration baseline emissions inventory.

(3) Emission reductions from a facility or mobile source

that are certified as emission credits under this division cannot be recertified in whole or in part as credits under another division within this

subchapter.

(d) Protocol.

(I) All generators or users of emission credits shall use a

protocol that has been submitted by the executive director,to the EPA

for approval, if existing for the applicable facility or mobile source,

to measure and calculate baseline emissions. If the generator or user

wishes to deviate from a protocol submitted by the executive director,

EPA approval is required before the protocol can be used. Protocols

must be used as follows.

(A) Facilities subject to the emission specifications

under §§117.1JO, 117.210, 117.310, lJ7.410, 117.1010, 117.JIIO,

117.1210, 117.1310, 117.2010, or 117.2110 of this title (relating

to Emission Specifications for Attainment Demonstration; Emission Specifications for Eight-Hour Attainment Demonstration; and

Emission Specifications) shall quantify reductions in nitrogen oxide

emissions using the testing and monitoring methodologies identified

to show compliance with the emission specification.

(B) Facilities subject to the requirements under

§§115.112, 115.121, 115.122, 115.162, 115.211, 115.212, 115.352,

115.421, 115.541, or 115.542 of this title (relating to Control Requirements; and Emission Specifications) shall quantify volatile organic

compound reductions using the testing and monitoring methodologies

identified to show compliance with the emission specifications or

requirements.

(C) Ifthe executive director has not submittecl a protocol for the applicable facility or mobile source to the EPA for approval,

the following requirements apply:

(i) the amount of emission credits from a facility or

mobile source, in tons per year, will be determined and certified based

on quantification methodologies at least as stringent as the methods

used to demonstrate compliance with any applicable requirements for

the facility or mobile source;

(ii) the generator shall collect relevant data sufficient to characterize the facility's or mobile source's emissions of the

affccted pol.lutant and the facility's or mobile source's activity level

for all representative phases of operation in order to characterizc the

facility's or mobile source's baseline emissions;
(iii) facilities with continuous emissions monitoring

systems or predictive emissions monitoring systems in place shall use

this data in quantifying actual emissions;

(iv) the chosen quantilication protocol must be made

availablc for public comment for a period of30 days and must be viewable on the commission's Web site;

(v) the chosen quantification protocol and any comments received during the public comment period shall be submitted to

the EPA for a 45-day adequacy review; and

(vi) quantification protocols shall not be accepted

for use with this division if the executive director receives a letter

objecting to the use of the protocol from the EPA during the 45-day

adequacy review or the EPA adopts disapproval of the protocol in the

Federal Register.

(2) In the event that the monitoring and testing data required under paragraph (I) of this subsection is missing or unavailable,

the facility may report actual emissions for that period of time using

these listed methods in the following order of preference to determine

actual emissions:

(A) continuous monitoring data;

(B) periodic monitoring data;

(C) testing data;

(D) manufacturer's data;

(E) EPA Compilation ofAir Pollution Emission Factors

(AP-42), September 2000; or

(F) material balance.

(3) When quantifying actual emissions in accordance with

paragraph (2) of this subsection, the generator shall use the most conservative method for replacing the missing data, submit the justification

for not using the methods in paragraph (1) ofthis subsection. and submit the justifIcatioll for the method used.

(e) Credit certification.

(I) The amount of emission credits in tons per year will be

detennined and certified, to the nearest tenth of a ton per year.

(2) Applications for certification will be reviewed in order

to determine the credibility of the rcductions. Reductions determined

to be creditable will be certified by the executive director.

(3) The applicant will be notified in writing if the executive director denies the emission credit application. The applicant may

submit a revised application in accordance with the requirements of

this division.

(4) If a facility's or mobile source's actual emissions exceed its allowable emission limit, reductions of emissions exceeding

the limit may not be certified as emission credits.

(5) Applications for certification of emission credit from

reductions quantified under subsection (d)(1 )(C) of this section may

only be approved upon completion of the public comment period.

(f) Geographic scope. Except as provided in §101.305 ofthis

title (relating to Emission Reductions Achieved Outside the United

States), only emission reductions generated in nonattainment areas can

be certified. An emission credit must be used in the nonattainment area

in which it is generated unless the user has obtained prior written approval of the executive director and the EPA; and

(I) a demonstration has been made and approved by the

executive director and the EPA to show that the emission reductions

achieved in another county or state provide an improvement to the air

quality in the county of use; or

(2) the emission credit was generated in a nonattainment

area that has an equal or higher nonattainment classification than the

nonattainment area of use, and a demonstration has been made and approved by the executive director. and the EPA to show that the emissions from the nonattainment area where the emission credit is generated contribute to a violation of the national ambient air quality standard in the nonattainment area of use.

(g) Recordkeeping. The generator shall maintain a copy of all

notices and backup infonnation submitted to the registry for a minimum of five years. The user shall maintain a copy of all notices and

backup information submitted to the credit registry from the beginning

of the use period and for at least five years after. The user shall also

make such records available upon request to representatives of the executive director, EPA, and any local enforccment agency. The records

must include, but not necessarily be limited to:

(I) the name, emission point number, and facility identification number of each facility or any other identifying number for each

mobile source using emission crcdits;

(2) the amount of emission credits being used by each facility or mobile source; and

(3) the specific number, name, or other identification of

emission credits used for each facility or mobile source.

(h) Public information. All infonnation submitted with notices, reports, and trades regarding the nature, quantity, and sales price

of emissions associated with the use, generation, and transfer of an

emission credit is public information and may not be submitted as confidential. Any claim of confidentiality for this type of information, or

failure to submit all infonnation, may result in the rejection ofthe emission credit application. All nonconfidential notices and information regarding the generation, availability, use, and transfer of emission credits shall be immediately made available to the public.

(i) Authorization to emit. An emission credit created under

this division is a limited authorization to emit the pollutants identified in

subsection (a) of this section, unless otherwise defined, in accordance

with the provisions of this section, 42 United States Code, §§740 I et

seq., and Texas Health and Safety Code, Chapter 382, as well as regulations promulgated thereunder. An emission credit does not constitute

a property right. Nothing in this division may be construed to limit the

authority of the commission or the EPA to terminate or limit such authorization.

(i) Program participation. The executive director has the authority to prohibit an organization from participating in emission credit

trading either as a generator or user, if the executive director determines

that the organization has violated the requirements of the program, or

abused the privileges provided by the program.

(k) Compliance burden. Users may not transfer their compliance burden and legal responsibilities to a third-party participant.

Third-party participants may only act in an advisory capacity to the

user.

(1) Credit ownership. The owner of the initial emission credit

certificate shall be the owner or operator ofthe facility or mobile source

creating the emission reduction. The executive director may approve

a deviation from thiS subsectIOn conSidering factors such as, but not

limited to:

(I) whether an entity other than the owner or operator of

the facility or mobile source lI1curred the cost ofthe emission reduction

strategy; or

ADOPTED RULES August 10,2007 32 TexReg 4997
This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

DIVISION 3. MASS EMISSIONS CAP AND

TRADE PROGRAM

30 TAe §§101.350, 101.351, 101.353, 101.354,101.360

STATUTORY AUTHORITY

Filed with the Office of the Secretary of State on july 27,2007.

TRD-200703289

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: August 16, 2007

Proposal publication date: February 23, 2007

For further infonnation, please call: (512) 239-6087

issuance. Prior to construction, the offsets must be provided through

submittal ofa completed EC-3 Form, Notice ofTntent to Use Emission

Credits. along with the origlll<ll emission credit certificate.

(2) For emission credits that are to be used for compliance

with the requirements of Chapters 114, J15, or 117 ofthis title or other

programs, the user must submit a completed EC-3 Form along with the

original emission credit certificate, at least 90 days prior to thc planned

use ofthe emission credit. Emission credits may be used only after the

executive director grants approval of the notice of intent to use. The

user must also keep a copy ofthe emission credit certificate, the notice,

and all backup in accordance with § I0 1.302(g) of this title (relating to

General Provisions).

(3) If the executive director denies the facility or mobile

source's use of emission credits, any affected person by the executive director's decision may file a motion for reconsideration within

60 days of the denial. Notwithstanding the applicability provisions of

§50J J(c)(7) of this title (relating to Purpose and Applicability), the

requirements of §50J9 of this title (relating to Motion for Reconsideration) shall apply. Only an affected person may iile a motion for

reconsideration.

•••

The amended sections are adopted under Texas Water Code

(TWC), §5.102, concerning General Powers, that provides the

commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.103, concerning Rules, that

authorizes the commission to adopt rules necessary to carry

out its powers and duties under the Texas Water Code; TWC,

§5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the

commission; and under Texas Health and Safety Code (THSC),

§382.017, concerning Rules, that authorizes the commission to

adopt rules consistent with the policy and purposes of the Texas

Clean Air Act. The amended sections are also adopted under

THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general

welfare, and physical property; §382.0 11, concerning General

Powers and Duties, that authorizes the commission to control

the quality of the state's air; and §382.012, concerning State

Air Control Plan, that authorizes the commission to prepare and

develop a general, comprehensive plan for the proper control

of the state's air. The amended sections are also adopted un-

(5) an annual allocation of allowances as provided in

§IOI.356 and §101.399 of this title (relating to Allowance Banking

and Trading);

(6) compliance with motor vehicle fleet requirements to the

extent allowed by §114.20 I of this title (relating to Mobile Emission

Reduction Credit Program); or

(7) compliance with other requirements as allowable

within the guidelines of local, state, and federal laws.

(b) Credit use calculation.

(I) The number of emission credits needed by the user for

offsets shall be determined as provided in §116.150 of this title.

(2) For emission credits used in compliance with Chapters

114, 115, or 117 of this title, the number of emission credits needed

should be detennined according to the following equation plus an additional 10% to be retired as an environmental contribution.

Figure: 30 TAC §101.306(b)(2) (No change.)

(3) For emission credits used to comply with §§ 117.123,

JI7.223, 117.320, 117.323, 117.423, 117.1020.117.1120,or 117.1220

of this title (relating to Source Cap; and System Cap), the number of

emission credits needed for increasing the 30-day rolling average emission cap or maximum daily cap should be detennined according to the

following equation plus an additional 10% to be retired as an environmental contribution.

Figure: 30 TAC § J0 1.306(b)(3)

(4) Emission credits used for compliancc with any other

applicable program should bc determined in accordance with the requirements of that program and must contain at least 10% extra to be

retired as an environmental contribution. unless otherwise specified by

that program.

(c) Notice of intent to use emission credits.

(I) For emission credits which are to be used as offsets in a

New Source Review permit in accordance with Chapter J j 6 ofthis title

(relating to Control of Air Pollution by Permits for New Construction

or ModifIcation). the emission credits must be identified prior to permit

(2) whether the owner or operator ofthe facility or mobile

source lacks the potential to generate 1/1 0 ton of credit.

§IOI.306. Emission Credit Use.

(a) Uses for emission credits. Unless precluded by a commission order or a condition or conditions within an authorization under

the same commission account number, emission credits may be used

as the following:

(J) offsets for a new source, as defined in § I0 1.1 ofthis title

(related to Definitions), or major modification to an existing source;

(2) mitigation offsets for action by federal agencies under

§l 01.30 ofthis title (relating to Confonnity ofGeneral Federal Actions

to State Implementation Plans);

(3) an alternative means of compliance with volatile organic compound and nitrogen oxides reduction requirements to the

extent allowed in Chapters 114, 115, and J J7 of this title (relating to

Control ofAir Pollution from Motor Vehicles; Control ofAir Pollution

from Volatile Organic Compounds; and Control of Air Pollution from

Nitrogen Compounds);

(4) reductions certified as emission credits may be used in

netting by the original applicant, if not used, sold, reserved for use, or

otherwise relied upon, as provided in §116.150 of this title (relating

to New Major Source or Major Modification in Ozone Nonatlainment

Areas);

32 TexReg 4998 August 10, 2007 Texas Register
der THSC, §382.014, concerning Emission Inventory, that authorizes the commission to require a person whose activities cause

air contaminant emissions to submit into'rmation to enable the

commission to develop an emissions inventory; and §382.016.

concerning Monitoring Requirements; Examination of Records,

that authorizes the commission to prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions. The amended sections are also adopted under 42 United

States Code, §7410(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012,382.014,382.016, and 382.017.

.1"/0/.353. Allocation ofAIIowances.

(a) Allowances will be deposited into compliancc accounts according to the following equation except as provided in subsection (b)

or (h) of this section.

Figure: 30 TAe §101.353(a)

(b) For a new and/or modified facility that has submitted, under Chapter 116 of this title (relating to Control of Air Pollution by

Permit for New Construction of Modification), an application which

the executive director has not determined to be administratively completc before January 2, 200 I, or has qualified for a permit by rule under Chapter 106 of this title (relating to Permits by Rule) and has not

commenced construction before January 2, 200 I, allowances for each

control period or the annual allocation rights shall be acquired from facilities already participating under this division, or in accordance with

§ 10 1.356(g) of this title (relating to Allowance Banking and Trading).

(c) If actual emissions of nitrogen oxides during a control period exceed the amount of allowances held in a compliance account on

March I following the control period, allowances for the next control

period will be reduced by an amount equal to the cmissions exceeding the allowances in the compliance account plus an additional 10°1<0.

This does not preclude additional enforcement action by the executive

director.

(d) Allowances will be allocated by the executive director,

who will deposit allowances into each compliance account:

(1) initially, by January 1,2002; and

(2) subsequently, by January I of each following year.

(e) The annual deposit for any control period may be adjusted

by the executive director to reflect new or existing state implementation

plan requirements.

(f) Allowances may be added or deducted by the executive director from compliance accounts following the rcview of reports required under § 101.359 of this title (relating to Reporting).

(g) The owner or operator of a facility may, due to extenuating

circumstances, request a baseline period more representative of normal

operation as detennined by the executive director. Applications for

extenuating circumstances must be submitted by the owner or operator

of the facility to the executive director:

(I) no later than June 30, 2001 to request an altemative

three consecutive calendar year period for facilities in operation prior

to.lanuary I, 1997;

(2) no later than 90 days after completion of the baseline

period to request up to two additional calendar years to establish a baseline pcriod for facilities whose baseline as described by variable (2)(C)

listed in the figure contained in subsection (a) ofthis section is nol completc by .lune 30, 200 I; or

(3) at any time as authorized by the executivc director.

(h) Allowances calculated under subsection (a) of this section

will continue to be based on historical activity levels, despite subsequent reductions in activity levels. If al.lowances are being allocated

based on allowables and the facility does not achieve two complete consecutive calendar years of actual level of activity data, then allowances

will not continue to be allocated if thc facility ceases operation or is not

built.

§/0/.354. Allowance Deductions.

(a) Allowances will be deducted in tenths of a ton from a site's

compliance account for a control period based upon the monitoring

and testing protocols established in §§117.335, 117.340, 117.1235,

117.1240, and 117.2035 of this title (relating to Initial Demonstration

of Compliance; Continuous Demonstration of Compliance; and

Monitoring and Testing Requirements).

(b) In the event that the monitoring and testing data required

under subsection (a) of this section is missing or unavailable, the facility may report actual emissions for that period of time using the following equation or other listed methods in the following order to determine actual emissions: continuous monitoring data; periodic monitoring data; testing data; manufacturer's data, and EPA Campilation of

Ai,. Pollutioll Emission Factors (AP-42), September 2000. When reporting actual emissions as required under this subsection, the facility

must also submit the justification for not using the methods in subsection (a) of this section and the justification for the method used.

Figure: 30 TAC §101.354(b) (No change.)

(c) If the protocol used to show compliance wi th this section

differs from the protocol used by the commission to establish the allocation of allowances under § I01.353 of this title (relating to Allocation

of Allowances), the executive director may recalculate the number of

allowances allocated per year for consistency between the methods.

(d) When deducting allowances from a site's compliance account for a control period, the executive director will deduct the allowances beginning with the most recently allocated allowances before

deducting banked allowances.

(e) Allowances shall be deducted from a site's compliance account in an amount equal to the nitrogen oxides (NO) emissions increases from facilities not subject to an emission specification under

§ /17.31 0 or § 117.201 0 ofthis title (relating to Emission Specifications

for Attainment Demonstration; and Emission Specifications) which result from changes made after December 31,2000, to facilities subject

to this division and §117.310(e)(3) or §I J7.2010(f) of this title. Documentation detailing these increases in NO, emissions shall be included

with the submittal of the ECT-I Form, Annual Compliance Report.

(f) Allowances allocated in accordance with the variables in

(a)(2)(B) listed in the figure contained in § 10 1.353(a) of thiS title may

only be used by the facility for which they were allocated and may

not be used by other facilities at the same site during the same control

period.

(g) On March 1 after every control period, a site shall hold

a quantity of allowances in its compliance account that is equal to or

greater than the total NO, emissions emitted during the prior control

period.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

ADOPTED RULES August 10,2007 32 TexReg 4999
DIVISION 4. DISCRETE EMISSION CREDIT

BANKING AND TRADING

30 TAC §101.372, §101.376

STATUTORY AUTHORITY

Filed with the Office of the Secretary of State on July 27, 2007.

TRD-200703290

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: August 16, 2007

Proposal publication date: February 23,2007

For further information, please call: (512) 239-6087

• • •

(3) The user shall acquire additional discrete emission

credits during the use period if it is detennined the user does not

possess enough discrete emission credits to cover the entire use period.

The user shall acquire additional credits as allowed under this section

prior to the shortfall, or be in violation of this section.

(4) Facility or mobile source operators may acquire and use

only discrete emission credits listed on the registry.

(b) Use of discrete emission credits. With the exception of

uses prohibited in subsection (c) of this section or precluded by commission order or condition within an authorization under the same commission account number, discrete emission credits may be used to meet

or demonstrate compliance with any facility or mobile regulatory requirement including the following:

(I) to exceed any allowable emission level, ifthe following

conditions are met:

The amended sections are adopted under Texas Water Code

(TWC), §5.102, concerning General Powers, that provides the

commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.103, concerning Rules, that

.authorizes the commission to adopt rules necessary to carry

out its powers and duties under the Texas Water Code; TWC,

§5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the

commission; and under Texas Health and Safety Code (THSC),

§382.017, concerning Rules, that authorizes the commission to

adopt rules consistent with the policy and purposes of the Texas

Clean Air Act. The amended sections are also adopted under

THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general

welfare, and physical property; §382.011, concerning General

Powers and Duties, that authorizes the commission to control

the quality of the state's air; and §382.012, concerning State

Air Control Plan, that authorizes the commission to prepare and

develop a general, comprehensive plan for the proper control

of the state's air. The amended sections are also adopted under THSC, §382.014. concerning Emission Inventory, that authorizes the commission to require a person whose activities cause

air contaminant emissions to submit information to enable the

commission to develop an emissions inventory; and §382.016,

concerning Monitoring Requirements; Examination of Records,

that authorizes the commission to prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions. The amended sections are also adopted under 42 United

States Code, §7410(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, 382.014, 382.016, and 382.017.

§J01.376. Discrele Emissioll Credit Use.

(a) Requirements to use discrete emission credits. Discrete

emission credits may be used if the following requirements are met.

(I) The user shall have ownership of a sufficient amount of

discrete emission credits before the use period for which the specific

discrete emission credits are to be used.

(2) The user shall hold sufficient discrete emission credits

to cover the user's compliance obligation at all times.

32 TexReg 5000 August 10, 2007 Texas Register

(A) in ozone nonattainment areas, pennitted facilities

may lise discrete emission credits to exceed pennit allowables by no

more than ten tons for nitrogen oxides or fIve tons for volatile organic

compounds in a 12-month period as approved by the executive director.

This use is limited to one exceedance, up to 12 months within any

24-month period, per use strategy. The user shall demonstrate that there

will be no adverse impacts from the use of discrete emission credits at

the levels requested; or

(B) at permitted facilities in counties or portions of

counties designated as attainment or unclassified, discrete emission

credits may be used to exceed pennit allowables by values not to

exceed the prevention of significant deterioration significance levels

as provided in 40 Code of Federal Regulations (CFR) §52.21(b)(23),

as approved by the executive director prior to use. This use is limited

to one exceedance, up to 12 luonths within any 24-month period,

per use strategy. The user shall demonstrate that there will be no

adverse impacts from the use of discrete emission credits at the levels

requested;

(2) as new source review (NSR) pennit offsets, if the following requirements are met:

(A) the user shall obtain the executive director's approval prior to the use of specific discrete emission credits to cover,

at a minimum, one year of operation of the new or modified facility in

the NSR permit;

(B) the amount of discrete emission credits needed for

NSR offsets equals the quantity oftons needed to achieve the maximum

allowable emission level set in the user's NSR pennit. The user shall

also purchase and retire enough discrete emission credits to meet the

offset ratio requirement in the user's ozone nonattainment area. The

user shall purchase and retire either the environmental contribution of

10% or the offset ratio, whichever is higher; and

(C) the NSR pennit must meet the following requirements:

(i) the pennit must contain an enforceable requirement that the facility obtain at least one additional year of offsets before continuing operation in each subsequent year;

(ii) prior to issuance of the permit the user shall identify the discrete emission credits; and

(iiI) prior to starl of operation the user shall submit

a completed DEC-2 Form, Notice of Intent to Use Discrete Emission

Credits. along with the original certificate;
(3) to comply with the Mass Emissions Cap and Trade Program requirements as provided in §101.356(g) of this titlc (relating 10

Allowance Banking and Trading); or

(4) to comply with Chapters 114, 115, and 117 of this title

(relating to Control of Air Pollution from Motor Vchicles; Control of

Air Pollution from Volatile Organic Compounds; and Control of Air

Pollution from Nitrogen Compounds), as allowed.

(c) Discrete emission crcdituse prohibitions. A discretc emission credit may not be used under this division:

(I) before it has been acquircd by thc user;

(2) for nelting to avoid the applicability of federal and state

NSR requirements;

(3) to meet (as codined in 42 United States Code (USC),

Federal Clean Air Act (FCAA)) requirements for:

(A) tlew source performance standards under FCAA,

§lll (42USC,§7411);

(B) lowest achicvable emission rate standards under

FCAA, § 173(a)(2) (42 USC, §7503(a)(2));

(C) best available control technology standards under

FCAA, §165(a)(4) (42 USC, §7475(a)(4)) or Texas Health and Safety

Code, §382.0518(b)(I);

(D) hazardous air pollutants standards under FCAA,

§112 (42 USC, §7412), including the requirements for maximum

achievable control technology;

(E) standards for solid waste combustion under FCAA,

§129 (42 USC, §7429);

(F) requirements for a vehicle inspection and mamtenance program under FCAA, §182(b)(4) or (c)(3) (42 USC,

§751Ia(b)(4) or (c)(3));

(G) ozone control standards set under FCAA, § I83(e)

and (f) (42 USC, §751Ib(e) and (f));

(H) clean-fueled vehicle requirements under FCAA,

§246 (42 USC, §7586);

(I) motor vehicle emissions standards under FCAA,

§202 (42 USC, §7521);

(1) standards for non-road vehicles under FCAA, §213

(42 USC, §7547);

(K) requirements for refonnulated gasoline under

FCAA, §211 (k) (42 USC, §7545); or

(L) requirements for Reid vapor pressure standards under FCAA, §211 (h) and (i) (42 USC, §7545(h) and (i));

(4) to allow an emissions increase of an air contaminant

above a level authorized in a pennit or other authorization that exceeds the limitations of § I06.261 or § I06.262 of this title (relating

to Facilities (Emission Limitations); and Facilities (Emission and Distance Limitations)) except as approved by the executive director and

the United States Environmental Protection Agency. This paragraph

does not apply to limit the use of discrete emission reduction credits

(DERC) or mobile discrete emission reduction credits in lieu of allowances under § I01.356(h) of this title;

(5) to authorize a facility whose emissions are enforceably

limited to below applicable major source threshold levels. as defined

in §122.10 of this title (relating to General Definitions). to operate with

actual emissions above those levels without triggering applicable requirements that would otherwise bc triggered by such major source

status; or

(6) to exceed an allowable emission level where the exceedanee would cause or contribute to a condition of air pollution as

detennined by the executive director.

(d) Notice of intent to use.

(I) A comp leted DEC-2 Form, signed by an authorized

representative of the applicant shall bc submilled to the executive director in accordance with the following requirements.

(A) Discrete emission credits may be used only aftcr

the applicant has submilled the notice and received executive director

approval.

(B) The application must be submilted at least 45 days

prior to the first day of the use period if the discrete emission credits

were generated from a facility, 90 days if the discrete emission credits

were generated from a mobile source, and every 12 months thcreafter

for each subsequent year if the use period exceeds 12 months.

(C) A copy of the application shall also be sent to thc

federal land manager 30 days prior to usc if the user is located within

100 kilometers of a Class I area, as listed in 40 CFR Part 81 (200 I).

(D) The application must include, but is not limited to,

the following infonnation for each use:

(i) the applicable state and federal requirements that

the discrete emission credits will be used to comply with and the intended use period;

(ii) the amount of discrete emission credits needed;

(iii) the baseline emission rate, activity level, and total emissions for the applicable facility or mobile source;

(iv) the actual emission rate, activity level, and total

emissions for the applicable facility or mobile source;

(v) the most stringent emission rate and the most

stringent emission level for the applicable facil ity or mobile source,

considering all applicable regulatory requirements;

(vi) a complete description of the protocol, as submilled by the executive director to the United States Environmental

Protection Agency for approval, used to calculate the amount of discrete emission credits needed;

(vii) the actual calculations performed by the user to

detennine the amount of discrete emission credits needed;

(viii) the date that the discrete emission credits were

acquired or will be acquired;

(ix) the discrete emission credit generator and the

original certificate of the discrete emission credits acquired or to be

acquired;

(x) the price ofthe discrete emission credits acquired

or the expected price of the discrete emission credits to be acquired,

except for transfers between sites under common ownership or control;

(xi) a statement that due diligence was taken to verify that the discrete emission credits were not previously used, the discrete emission credits were not generated as a result of actions prohibited under this regulation, and the discrete emission credits will not be

used in a manner prohibited under this regulation; and

('iii) a certification of use, that must contain certifIcation under penalty oflaw by a responsible official ofthe user oftruth,

accuracy, and completeness. This certification must state that based on

ADOPTED RULES August 10,2007 32 TexReg 5001
used;

chased to cover the environmental contribution, as described in subsection (d)(2)(C)of this section, but not associated with the actual use,

and available for future use.

Filed with the Office of the Secretary of State on July 27, 2007.

TRD-200703291

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: Augus! 16. 2007

Proposal pUblication date: February 23, 2007

For further information, please call: (512) 239-6087

(\I) the actual environmental contribution; and

(vi) the amount of discrete emission credits available for future use.

(4) Discrete emission credits that are not used during the

use period are surplUS and remain available for transfer or use by the

holder. In addition, any portion of the calculated environmental contribution not attributed to actual use is also available.

(5) The useris in violation ofthis section if the user submits

the report of use later than the allowed 90 days following the conclusion

of the use period.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

• • •

(2) DERC use is calculated by the following equations.

(A) The amount of discrete emission credits used to

demonstrate compliance or meet a regulatory requirement is calculated

as follows.

Figure: 30 TAC § I 01.376(e)(2)(A) (No change.)

(B) The amount of discrete emission credits used to

comply with permit allowables is calculated as follows.

Figure: 30 TAC § I 01.376(e)(2)(B) (No change.)

(3) A DEC-3 Form, Notice of Use of Discrete Emission

Credits, shall be submitted to the commission in accordance with the

following requirements.

(A) The notice mLlst be submitted within 90 days after

the end of the use period.

(B) The notice must be submitted within 90 days orthe

conclusion of each 12-month usc period, if applicable.

(C) The notice is to be used as the mechanism to update

or amend the notice of intent to use and must include any infonnation

different from that reported in the notice of intent to use, including, but

not limited to, the following items:

(i) purchase price of the discrete emission credits

obtained prior to the current use period, except for transfersibetween

sites under common ownership or control;

(ii) the actual amount of discrete emission credits

possessed during the LIse period;

(iii) the actual emissions during the use period for

volatile organic compounds and nitrogen oxides;

(i\l) the actual amount of discrete emission credits

information and belief fonned after reasonable inquiry, the statements

and infonnation in the document are true, accurate, and complete.

(2) DERC use calculation.

(A) To calculate the amount of discrete emission credits necessary to comply with §§J 17.123, 117.223, 117.320, 117.323,

117.423,117.1020,117.1120, 117.1220,01' I 17.3020 of this title (relating to Source Cap; and System Cap), a user may use the equations

listed in those sections, or the following equations.

(i) For the rolling average cap:

Figure: 30 TAC §J0I.376(d)(2)(A)(i)

(ii) For maximum daily cap:

Figure: 30 TAC § I01.376(d)(2)(A)(ii)

(B) The amount of discrete emission credits needed to

demonstrate compliance or meet a regulatory requirement is calculated

as follows.

Figure: 30 TAC § I01.3 76(d)(2)(B) (No change.)

(C) The amount of discrete emission credits necded to

exceed an allowable emissions level is calculated as follows.

Figure: 30 TAC §101.376(d)(2)(C) (No change.)

(D) The user shall retire 10% more discrete emission

credits than are needed, as calculated in this paragraph, to ensure that

the facility or mobile source environmental contribution retirement

obligation will be mel.

(E) lfthe amount of discrete emission credits needed to

meet a regulatory requirement or to demonstrate compliance is greater

than ten tons, an additional 5.0% of the discrete emission credits

needed, as calculated in this paragraph, must be acquired to ensure

that sufficient discrete emission credits are available to the user with

an adequate compliance margin.

(3) A user may submit a notice late in the case of an emergency, but the notice must be submitted before the discrete emission

credits can be used. The LIseI' shall include a complete description of

the emergency situation in the notice ofintent to use. All other notices

submitted less than 45 days prior to use, or 90 days prior to use for a

mobile source, will be considered late and in violation.

(4) The user is responsible for detennining the credits it

will purchase and notifying the executive director of the selected generating facility or mobile source III the notice of intent to use. If the

generator's credits are rejected or the notice of generation is incomplete, the use of discrete emission credits by the user may be delayed

by the executive director. The user cannot use any discrete emission

credits that have not been certified by the executive director. The executive director may reject the use of discrete emission credits by a

facility or mobile source if the credit and use cannot be demonstrated

to meet the requirements of this section.

(5) If the facility is in an area with an ozone season less

than 12 months, the user shall calculate the amount of discrete emission credits needed for the ozone season separately from tile non-ozone

season.

(e) Notice of use.

(I) The user shall calculate:

(A) the amount of discrete emission credi ts used, including the amount of discrete emission credits retired to cover the environmental contribution, as described in subsection (d)(2)(C) of this

section, associated with actual use; and

(B) the amount of discrete emission credits not used,

including the amount of excess discrete emission credits that were pur32 TexReg 5002 August 10,2007 Texas Register
CHAPTER 305. CONSOLIDATED PERMITS

The Texas Commission on Environmental Quality (TCEQ

or commission) adopts amendments to §§305.69, 305.175,

305.571, and 305.572. Section 305.69 is adopted with changes

to the proposed text as published in the March 9, 2007, issue

of the Texas Register (32 TexReg 1203). Sections 305.175,

305571, and 305.572 are adopted without changes to the

proposed text, and will not be republished.

Filed with the Office of the Secretary of State on July 27,2007.

TRD-200703292

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: August 16,2007

Proposal publication date: February 23, 2007

For further information, please call: (512) 239-6087

DIVISION 5. SYSTEM CAP TRADING

30 TAC §10t.383, §101.385

STATUTORY AUTHORITY

The amended sections are adopted under Texas Water Code

(TWC), §5.102, concerning General Powers, that provides the

commission with the general powers to carry out its duties under

the Texas Water Code; TWC, §5.103, concerning Rules, that

authorizes the commission to adopt rules necessary to carry

out its powers and duties under the Texas Water Code; TWC,

§5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the

commission; and under Texas Health and Safety Code (THSC),

§382.017, concerning Rules, that authorizes the commission to

adopt rules consistent with the policy and purposes of the Texas

Clean Air Act. The amended sections are also adopted under

THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general

welfare,and physical property; §382.011, concerning General

Powers and Duties, that authorizes the commission to control

the quality of the state's air; and §382.012, concerning State

Air Control Plan, that authorizes the commission to prepare and

develop a general, comprehensive plan for the proper control

of the state's air. The amended sections are also adopted under THSC, §382.014, concerning Emission Inventory, that authorizes the commission to require a person whose activities cause

air contaminant emissions to submit information to enable the

commission to develop an emissions inventory; and §382.016,

concerning Monitoring Requirements; Examination of Records,

that authorizes the commission to prescribe reasonable requirements for the measuring and monitoring of air contaminant emissions. The amended sections are also adopted under 42 United

States Code, §7410(a)(2)(A), that requires SIPs to include enforceable measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission

rights.

The amended sections implement THSC, §§382.002, 382.011,

382.012, 382.014, 382.016, and 382017.

This agency hereby certifies that the adoption has been reviewed

by legal counsel and found to be a valid exercise of the agency's

legal authority.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS

FOR THE ADOPTED RULES

The federal hazardous waste program is authorized under

§3001 of the Resource Conservation and Recovery Act (RCRA)

of 1976, 42 United States Code, §6921 et seq. States may

obtain authorization from the United States Environmental

Protection Agency (EPA) to administer the hazardous waste

program at the state level. State authorization is a rulemaking

process through which EPA delegates the primary responsibility of implementing the RCRA hazardous waste program to

individual states in lieu of EPA. This process ensures national

consistency and minimum standards while providing fleXibility

to states in implementing rules. State RCRA programs must

always be at least as stringent as the federal requirements.

Since the beginning of the federal hazardous waste program,

the State of Texas has continuously exercised its prerogative to

participate in the EPA's authorization program. Texas received

authorization of its hazardous waste "base program" under the

RCRA on December 26, 1984. Texas received authorization for

revisions to its base hazardous waste program for RCRA Clusters I and lion February 17, 1987. Texas submitted further revisions to its hazardous waste program and received final authorization of RCRA Clusters III through X on March 15, 1990; July

23, 1990; October 21, 1991; December 4, 1992; June 27, 1994;

November 26, 1997; October 18, 1999; September 11, 2000;

and June 14, 2005.

To maintain authorization, the commission must adopt regulations that meet the minimum standards of federal programs

administered by EPA. Because the federal regulations undergo

regular revision, the commission adopts new regulations to meet

the changing federal regulations. The commission must adopt

rule amendments that implement certain mandatory revisions

to the federal hazardous waste program, which were made by

EPA after June 30, 2000. In order for the State of Texas to

maintain its RCRA authorization and continue to receive federal

funding for the program, the mandatory federal rule changes in

RCRA Clusters XI, XII, XIII, and XV must be incorporated into

state rules.

This adopted rulemaking includes the mandatory parts of RCRA

Clusters XI, XII, XIII, and XV. Establishing equivalency with federal regulations will enable the State of Texas to increase its

level of authorization to operate aspects of the federal hazardous

waste program in lieu of the EPA. Additionally, the timely adoption of these federal rules allows the commission to continue

receiving special project funding through the EPA Performance

Partnership Grant.

The Hazardous Waste Combustion Maximum Achievable

Control Technology (MACT) regulations are multi-media at the

federal and state level, affecting both air quality and hazardous

waste management. The TCEQ has already adopted certain

parts of Title 40 Code of Federal RegUlations (CFR) Part 63,

SUbpart EEE (i.e., the Hazardous Waste Combustion MACT

rules) prior to this adopted rulemaking under air quality regulations at Title 30, Texas Administrative Code (TAC), Chapter

113. This adopted rulemaking includes other parts of the federal

combustion MACT program, which are codified at 40 CFR Parts

264, 265, 266, and 270. The adopted rule changes related to air

quality are necessary to be consistent with previously adopted

federal requirements.

• ••

ADOPTED RULES August 10,2007 32 TexReg 5003
Figure: 30 TAC §101.306(b)(3)

Calculation of Emission Reductions Needed for System Cap or Source Cap

Where:

N = the total number of emission units in the source cap

i = each emission unit in the source cap

HI = actual daily heat input, in million British thermal units (MMBtu) per day, as calculated

according to §§ 117.123(b)(I) or (2), 117.223(b)(I) or (2), 117.320(c)(I) - (3), 117.323(b)(1) or

(2), 117.423(b)(1) or (2), 117.1020(c)(l) or (2), 117.1120(c)(I) or (2), or 117.1220(c)(l) or (2)

of this title

R; = the facility's emission factor, in pounds (lb)/MMBtu, is defined as in §§117.123(b)(l) or

(2), 117.223(b)(l) or (2), 117.320(c)(I) - (3), 117.323(b)(1) or (2), 117.423(b)(1) or (2),

117.1020(c)(1) or (2), 117.1120(c)(1) or (2), or 117.1220(c)(1) or (2) ofthis title

Hn = the maximum daily heat input, in MMBtu per day, expected for an emission unit during the

use period

Rn =the maximum emission factor, in IblMMBtu, expected for an emission unit during the use

period

32 TexReg 5040 August 10,2007 Texas Register
Figure: 30 TAC §101.353(a)

Where:

(1) A= number of allowances rounded to tenths oftons;

(2) B = the facility's baseline emission rate and is calculated as follows:

(A) For facilities in operation prior to January 1, 1997:

B= (LAn *EF97) +(L/!Jg *EF98) +(LA99* EF99)

3(200Q

Where: LA97 =the facility's level of activity, as certified by the

executive director for 1997;

LA98 = the facility's level of activity, as certified by the

executive director for 1998;

LA99 =the facility's level of activity, as certified by the

executive director for 1999;

EF97 = the facility's emission factor for 1997 or the emission

specifications under §§117.31O, 117.1210, and 117.2010 ofthis

title (relating to Emission Specifications for Attainment

Demonstration; and Emission Specifications) (ESAD) whichever

is higher, in pounds per unit of activity, (not to exceed any

applicable federal or state regulation, rule, or permit limit), as

certified by the executive director;

EF98 = the facility's emission factor for 1998 or the emission

specifications under ESAD, whichever is higher, in pounds per

unit of activity, (not to exceed any applicable federal or state

regulation, rule, or permit limit), as certified by the executive

director;

EF99 = the facility's emission factor for 1999 or the emission

'specifications under ESAD, whichever is higher, in pounds per

unit of activity, (not to exceed any applicable federal or state

regulation, rule, or permit limit), as certified by the executive

director.

rior to January 1, 1997 and that have

TABLES AND GRAPHICS August 10, 2007 32 TexReg 5041
been in operation less than five complete consecutive calendar years

beginning after the end ofthe adjustment period and have not established

two years of baseline data:

B = LAALLOWABLE*EFALLOWABLE

2000

Where: LAAlIowable = The level of activity authorized by the executive

director until such time two consecutive calendar years of actual

level of activity data is available;

EFAllowable = The emission factor or the emission specifications

under ESAD, whichever is higher, authorized by the executive

director until such time two consecutive calendar years of actual

emission data is available.

(C) For existing facilities not in operation prior to January 1, 1997, and that have

established two consecutive calendar years ofbaseline data out ofthe first

five years of operation following the end ofthe adjustment period:

B = (LA YEAR -1 *EFYEAR -1) + (LA YEAR - 2*EFYEAR - 2)

2(2000)

Where: LA Year-l == the facility's level of activity, as certified by the

executive director, for the first of any two consecutive years

within the first five years of operation;

LAYear-2 == the facility's level of activity, as certified by the

executive director, for the second of any two consecutive years

within the first five years of operation;

EF Yea,-\::: the facility's emission factor or the emission

specifications under ESAD, whichever is higher, in pounds per

unit of activity, (not to exceed any applicable federal or state

regulation, rule, or pennit limit), as certified by the executive

director, for the first of any two consecutive years within the first

five years of operation;

EF Year-2::: the facility's emission factor or the emission

specifications under ESAD, whichever is higher, in pounds per

unit of activity, (not to exceed any applicable federal or state

regulation, rule, or permit limit), as certified by the executive

director, for the second of any two consecutive years within the

first five years ofoperation.

32 TexReg 5042 August 10, 2007 Texas Register
(3) X - reduction factor, where:

(A) For all boilers, auxiliary steam boilers, and stationary gas turbines (including

duct burners used in turbine exhaust ducts) within an electric power

generating system, as defined in §117.1 0(14)(A) ofthis title (relating to

Defmitions), located in the Houston-Galveston-Brazoria nonattainrnent area:

(i) for January 1,2002 through March 31,2003, X = 0.00;

(ii) for April 1, 2003 through March 31,2004, X = 0.50;

(iii) on or after April 1, 2004, X = 1.00;

(B) For facilities subject to the emission specifications under §117.31 O(a)(1)(A)

and (B), (2)(A), (5), (8)(A)(i), (8)(B), (9)(A)(ii), (10), or (11) ofthis title:

(i) for January 1,2002 through March 31, 2004, X = 0.00;

(ii) for April 1, 2004 through March 31, 2005, X = 0.47;

(iii) for April 1, 2005 through March 31, 2006, X = 0.80;

(iv) for April 1, 2006 through March 31, 2007, X = 0.93;

(v) on and after April I, 2007, X = 1.00;

(C) For all other facilities:

(i) for January 1, 2002 through March 31, 2004, X = 0.00;

(ii) for April 1,2004 through March 31,2005, X = 0.389;

(iii) for April 1,2005 through March 31,2006, X = 0.667;

(iv) for April 1, 2006 through March 31,2007, X = 0.778;

(v) on and after April 1, 2007, X = 1.00;

(D) Alternatively, facilities subject to the reduction factors under subparagraph B

ofthis paragraph may elect to comply with the following:

(i) for January 1,2002 through March 31, 2005, X=O.OO;

(ii) on and after April 1,2005, X=1.00.

(E) Election to comply with the alternative reduction schedule under

subparagraph (D) ofthis paragraph shall be made by letter to the executive

director no later than April 1,2003,

(F) For calendar years which include two different reduction factors, the

reduction factor shall be ad'usted usin the a ro riate ratio to reflect the

TABLES AND GRAPHICS AllgllSl10,2007 32 TexReg 5043
number ofmonths covered by each reduction factor.

(4) LAHA = historical average level ofactivity, where:

(A) For facilities in operation on or before January 1, 1997, the average level of

activity, as certified by the executive director, for 1997, 1998, and 1999; or

(B) For existing facilities which began operation after January 1,1997, LAHA is:

(i) the level of activity authorized by the executive director until such time

two consecutive calendar years of actual level of activity data is

available, beginning after the end ofthe adjustment period; or

(ii) when two complete consecutive calendar years of actual level of activity

data is available, beginning after the end ofthe adjustment period, the

level of activity becomes the average of the facility's actual level of

activity over those two consecutive calendar years of actual level of

activity data.

(5) EFfinal =emission factor, as listed in §§ 117.310, 117.1210, or 117.2010 ofthis title.

(6) For facilities using alternative emission specifications as allowed in §117.31 0(a)(17)

or §117.20 IO(c)(6) ofthis title, the level of activity for any formula will be the lowest

ofthe level of activity as calculated in variables (2)(A), (2)(B), or the level of activity

limited by an enforceable limit or commitment necessary to qualify for an alternative

emission specification in §11 7.3 IO(a)(17) or §117.201 O(c)(6) of this title.

32 TexReg 5044 August 10,2007 Texas Register
Figure: 30 TAC §10 1.376(d)(2)(A)(i)

Amount of DERCs N

Required = I [(EH; X ERi)- (Hi x Ri)] x (~) ;=1 2000

(tons)

Where:

d = the number of days in the use period

i =each emission lUlit in the source or system cap

N =the total number of emission lUlits in the source or system cap

Hi = actual daily heat input, in million British thermallUlits (MMBtu) per day, as

calculated according to §§117.123(b)(1), 117.223(b)(1), 117.320(c)(l) and (2),

117.323(b)(1), 117.423(b)(1), 117.l020(c)(1), 117.1 120(c)(1), 117.1 220(c)(1), or

117.3020(c) ofthis title (relating to Source Cap; and System Cap) as applicable

Ri =actual emission rate, in pounds (lb)/MMBtu, as defined in §§117.l23(b)(1),

117.223(b)(l), 117.320(c)(l) and (2), 117.323(b)(l), 117.423(b)(1), 117.l020(c)(1),

117.1120(c)( 1), 117.1220(c)(1), or 117.3020(c) of this title as applicable

EH; =expected new daily heat input, in MMBtu per day

ERj =expected new emission rate, in IbIMMBtu.

TABLES AND GRAPHICS August 10,2007 32 TexReg 5045
Figure: 30 TAC §101.376(d)(2)(A)(ii)

N 1

Amount ofDERCS Required (tons) = L [(EHMiXERi)- (HMiXRi)J-- 2000

Where:

i =each emission unit in the source or system cap

N = the total number of emission units in the source or system cap

Rj = in 1b/MMBtu, is defined as in §§ 117.123(b)(2), 117.223(b)(2), 117.320(c)(3),

117.323(b)(2), 117.423(b) (2), 117.1020(c)(2), 117.1120(c)(2), or 117.1220(c)(2) ofthis

title (relating to Source Cap; and System Cap) as applicable

HMi = the maximum daily heat input, in MMBtuiday, as defined in

§§117.123(b)(2), 117.223(b)(2), 117.320(c)(3), 117.323(b)(2), 117.423(b)(2),

117.1020(c)(2), 117.1120(c)(2), or 117.1220(c)(2) of this title as applicable

EHMi = expected new maximum daily heat input, in MMBtu per day

ERi = expected new emission rate, in IblMMBtu.

Figure 1: 30 TAC Chapter 290--Preamb1e

Estimated Agency Costs to Implement Stage 2 Drinking Water Rules

2007 2008 2009 2010 2011 Total Costs

GWR $317,778 $317,778 $389,644 $862,400 $862,400 $2,750,000

LT2 154,489 161,822 161,822 161,822 161,822 801,777

DBP2 964,283 920,446 1,464,703 92,828 74,570 3,516,830

Total

Costs $1,436,550 $1,400,046 $2,016,169 $1,117,050 $1,098,792 $7,068,607

32 TexReg 5046 August 10, 2007 Texas Register