Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Chapter 106. PERMITS BY RULE

The Texas Commission on Environmental Quality (commission) proposes the repeal of §§106.5, 106.201 - 106.203, 106.491, 106.493, 106.496, and 106.533. The commission also proposes an amendment to §106.50 and new §§106.491, 106.496, and 106.533. Repealed §106.5 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The proposed rules are intended to more effectively focus commission resources, streamline the air quality permit by rule (PBR) process, update administrative and technical requirements for certain PBRs, and address unnecessary registration and fee requirements. Where applicable, the proposed rules also incorporate, or are consistent with, state and federal air, waste, and remediation laws. The proposed rules: 1) eliminate the concrete batch plant PBR and corresponding public notice requirements; these requirements and authorizations are no longer necessary, since the standard permit for concrete batch plants was issued September 1, 2000, and all outstanding concrete batch plant registrations under Chapter 106 have been resolved; 2) reduce the PBR registration fee for nonprofit organizations and provide for the non-applicability of fees for reviews associated with the remediation of sites; 3) eliminate the single-chambered incinerator PBR to prevent inappropriate control devices from being installed at grandfathered facilities; 4) improve flexibility for law enforcement agencies that are currently precluded from using PBRs to incinerate confiscated illegal drug evidence and clarify technical requirements; 5) minimize registration requirements, establish a notification procedure, and update technical requirements in the current PBR for trench burners and aboveground air curtain incinerators; and 6) provide for a rapid authorization mechanism for remediation projects at gasoline stations and dry cleaning facilities and establish technical requirements for all facilities performing remediation activities.

SECTION BY SECTION DISCUSSION

Subchapter A - General Requirements

The commission proposes to repeal §106.5, Public Notice, as this section concerns public notice for concrete batch plants permitted under Chapter 106, and with the creation of the concrete batch plant standard permit and the repeal of the concrete batch plant permits by rule (§§106.201 - 106.203), this section is no longer needed. The public notice requirements in §106.5 had been maintained to assure that proper procedures were followed for concrete batch plant PBR registrations received prior to the effective date of the standard permit. At this time, the commission has resolved all of those outstanding authorization requests; therefore, maintenance of this section is no longer needed. This change is not connected to Senate Bill 1272, 78th Legislature, 2003.

Subchapter B - Registration Fees for New Permits by Rule

Proposed amendments to §106.50, Registration Fees for Permits by Rule, would make the fee exceptions consistent with other current laws and rules and add certain entities to the lower fee category. Proposed new subsection (a)(1)(B) adds nonprofit organizations to those who must only submit $100 for a PBR registration review. The commission is proposing this change because nonprofit organizations have limited resources and a higher fee could be detrimental to their continued operation.

Proposed subsection (b) would facilitate the appropriate exceptions from PBR fees. Proposed subsection (b)(1) specifies that the fee does not apply to a certification submitted solely for the purpose of federally enforceable limit certifications. The current wording and requirements of paragraph (1) have raised many questions and caused mis-filings by the regulated community. This clarification is intended to resolve this confusion.

Certifications to establish enforceable emission type and quantity are accepted without a fee only for facilities that have previously claimed a standard exemption or PBR. These facilities must be currently operating without modification under an applicable standard exemption or PBR and meet all Chapter 106 requirements. This certification should not be confused with a registration for construction or modification through Form PI-7, Registration for Permit by Rule.

Proposed amendments to subsection (b)(2) would broaden coverage to all remediation projects under PBR. As a part of the commission's encouragement to clean up and remediate contaminated soil and water throughout the state, these activities are exempted from fee requirements. This exception is consistent with several state and federal programs and laws, including: 1) the commission's petroleum storage tank (PST) program which remediates and reimburses certain clean-up projects; 2) superfund and voluntary clean-up programs under Texas Health and Safety Code, §361.196 and §361.611, that exempt facilities from obtaining a permit, but require them to achieve compliance with all emissions and control requirements; and 3) the dry cleaning facility remediation program under Texas Health and Safety Code, Chapter 374, as created by House Bill 1366, 78th Legislature, 2003. The portion of remediation projects that are not part of any of the previously mentioned programs is estimated to be a small portion (less than 30%) of all remediation PBR registrations (typically registered under §106.533). It is the commission's intent to further encourage cleanup of soil and water throughout Texas and exempt all facilities claiming registration under §106.533 from paying a registration fee.

Finally, new subsection (b)(3) would specify that additional fees are not required for resubmittals of PBRs due to insufficient information or updates to recently submitted PBR registrations. This exception to additional fee submittal, which allows submittals within six months of a written commission response to the initial registration without additional fees, is consistent with other air permit fees and 30 TAC §116.114, Application Review Schedule.

Subchapter H - Concrete Batch Plants

The commission proposes to repeal Subchapter H, §106.201, Permanent and Temporary Concrete Batch Plants; §106.202, Temporary Concrete Batch Plants; and §106.203, Specialty Batch Plants; as these sections are obsolete and no longer necessary due to the issuance of the Concrete Batch Plant Standard Permit (September 1, 2000), in accordance with §116.602, Issuance of Standard Permits. The public notice section in §106.5 had been maintained to assure that proper procedures were followed for concrete batch plant PBR registrations received prior to the effective date of the standard permit. At this time, the commission has resolved all of those outstanding authorization requests; therefore, maintenance of these sections is no longer needed. This change is not related to Senate Bill 1272, 78th Legislature, 2003.

Subchapter V - Thermal Control Devices

Existing §106.491, Dual Chamber Incinerators, is proposed to be repealed and replaced with a new section due to reorganization and reformatting of the administrative and technical requirements of this PBR. A new §106.491 is proposed for better readability.

Proposed new §106.491, Dual-Chamber Incinerators, would address several streamlining issues, ensure that the dual chamber incinerator PBR is protective of public health and welfare, and be a usable tool for the regulated community. As with all PBRs, this proposal is not intended to cover all possible scenarios and facility operations, but it only addresses the most common and typical equipment expected to be available in the field. Any particular facility that does not meet the PBR general or specific conditions may apply for a case-by-case air permit under Chapter 116.

Proposed new §106.491 includes updates to the technical requirements regarding emission releases and parameters, as well as the identification of additional uses for this authorization mechanism. These changes would provide additional flexibility to the regulated community by expanding the scope of this PBR to allow, as needed, the destruction of commonly confiscated illegal drug evidence. This PBR was also evaluated for consistency with other waste regulations of the EPA and commission, and it also references appropriate federal air standards. The PBR would eliminate the need for certain operators to obtain an additional waste authorization under 30 TAC §330.51, Permit Application for Municipal Solid Waste Facilities. Finally, the new section would specify the minimum necessary compliance demonstration actions and records that are needed for practical enforceability.

Proposed new §106.491(a) would expand the scope of this PBR and allow the burning of illegal drugs confiscated by federal, state, or local law enforcement agencies. This would allow law enforcement agencies to directly own and operate an incinerator, or subcontract with third parties, to allow for the secure disposal of evidence. The reason this expansion is important is to allow law enforcement agencies the opportunity to minimize current disposal costs while still complying with applicable air regulatory standards. At this time, all of these customers are required to obtain a case-by-case new source review air quality permit or use third-party off-site vendors with hazardous waste incinerator permits. When off-site vendors are used, the evidence must be accompanied by numerous officers, resulting in a significant cost ultimately to the taxpayers.

Proposed new §106.491(b) would identify all of the general and specific design requirements for incinerators under this PBR, including temperature, residence time, and burn rate. All of these technical limits are consistent with the previous version of this PBR. Unlike the previous version of this PBR, this proposal would include: 1) a requirement that the incinerator be equipped with a continuous exhaust temperature monitor to establish a practicably enforceable compliance demonstration mechanism since a constant and minimum temperature is essential to the proper performance of this type of incinerator; 2) corresponding recordkeeping requirements for this monitor; and 3) a requirement that registration claims specifically address the appropriate charge capacity of a given model of incinerator and the material types and amounts that are intended to be burned. This information is essential to determine if the model and design are appropriate and will likely meet emission standards for the intended use as each registration claim is reviewed by the commission.

Subsection (b) would also specify the minimum height of the incinerator stack to ensure effective emission dispersion and specify a minimum distance to a property line for acceptable air contaminant impacts. The stack height was based upon a review of past registrations, typical incinerator designs, and modeling results. Air dispersion models are tools used to estimate the downwind concentration of pollutants emitted by various pollution sources. The commission currently uses the Industrial Source Complex model, which is the EPA's preferred model for the new source review program. The model's predictions are conservative, based on the general assumptions used to develop the model as well as the engineering assumptions used to determine emission rates. In addition, it is generally assumed that all sources emit pollutants simultaneously at maximum rates, and during worst-case meteorological conditions. These assumptions are not expected to occur in actual operation of the sources modeled. The modeling results for this PBR evaluation indicated that impacts were very sensitive to downwash. Building downwash is an important function of estimating dispersion of emissions and predicting impacts. Buildings induce aerodynamic turbulence that can cause a pollutant emitted from a stack that is on or adjacent to the building to be mixed rapidly toward the ground (downwash), resulting in higher ground-level concentrations near the building than would otherwise occur. The downwash effect can be minimized by increasing stack height or parameters that affect plume rise, or by locating stacks away from the building.

Based on a health effects evaluation of speciated inhalable particulate matter using effects screening levels (ESLs) for the materials that are allowed to be burned (as identified in §106.491(c)(1)), and as predicted by the dispersion model, the appropriate distance limitation should be 200 feet from the point of air emissions (stack) to the property line. To ensure that all typical plant layouts would be covered by this evaluation, the commission reviewed multiple plant layouts including stand-alone units, stacks located in the center point of a structure, and stacks located on and near various structures to determine an appropriate distance with or without downwash effects. This evaluation resulted in a worst-case representative maximum ground level concentration that met all protectiveness guidelines at 200 feet from the source. No other changes are proposed for the design requirements of these facilities.

Proposed subsection (c) would outline the operational limitations of all incinerators under this PBR. This PBR would continue to authorize the disposal of waste materials generated on-site, including paper, wood, cardboard cartons, rags, garbage (animal and vegetable wastes as defined in 30 TAC §101.1(36), Garbage), and combustible floor sweepings. The commission is proposing to update the limitations on materials processed by the incinerator by prohibiting polyvinyl chloride plastics to ensure compliance with state regulatory limits for hydrogen chloride as specified in 30 TAC §111.121(a)(2), Single-, Dual-, and Multiple-Chamber Incinerators. The commission is also prohibiting materials that contain fluorides in order to meet effects screening level guidelines. Based on limited information from law enforcement agencies, drug evidence is usually separated from any packaging, including materials containing polyvinyl chloride and fluoride plastics, prior to destruction. This subsection also specifically identifies and limits the types of drugs that law enforcement agencies can incinerate to marijuana, cocaine, opiates, and methamphetamines.

Proposed subsection (c)(2) would establish burn rates and emission limits for the various drugs that are allowed for destruction, including: 1) cocaine, opiates, and methamphetamines with a burn rate of no more than four pounds per hour (lb/hr) and ten pounds in any eight-hour period with emissions limited to less than 0.04 lb/hr for each of these compounds; and 2) marijuana with a 500 lb/hr burn rate and emissions limited to no more than one lb/hr of total inhalable particulate matter (PM ₁₀ ). This emission limit classifies all particulate matter as the active ingredient tetrahydrocannibinol (THC), which is characterized as a dust or fume and not a gas. All of the proposed emission limits were based upon a comprehensive review, engineering judgment, standard emission estimation techniques, modeling, and ESL comparisons. Based upon existing PBR registrations, most incinerators using this PBR operate at 200 lb/hr of waste; however, law enforcement agencies typically would burn at maximum capacity. Therefore, the use of 500 lb/hr as the feed rate would represent the worst-case scenario. The emission rates for all contaminants were calculated using, when available, standard emission factors from Compilation of Air Pollutant Emission Factors , AP-42, Fifth Edition (when available), typical burn rates, the standard heat contents of the waste, and typical operating hours. The stack parameters were based upon typical incinerator designs used in previous PBR registrations. The proposal includes conservative emission limits since the commission does not have manufacturers' guarantees or field confirmation/emissions sampling results for drug destruction.

Proposed subsection (c)(3) limits the supplemental fuel and covers all other products of combustion emissions. All expected air emissions were evaluated for compliance with applicable state and federal air quality standards and guidelines. Products of combustion (sulfur dioxide (SO ₂ ), nitrogen oxides (NO _x ), and carbon monoxide (CO)) were conservatively estimated using a maximum amount of fuel, and their quantities and concentrations met all applicable standards.

The pollutants of concern for this PBR are those derived from the destruction of the particular waste material being burned, consisting of speciated PM10 or volatile organic compounds (VOC). Due to the proposed focus of this rulemaking, each confiscated drug was reviewed for potential air emissions and associated impact. Marijuana emission rates were based upon the assumptions of a 20% THC and 10% cannabinol content and a 99% destruction rate efficiency. Drugs emission rates were based on the assumptions of 100% individual constituent content and a 99% destruction rate efficiency (DRE).

Subsection (c)(4) would require that the manufacturer's recommended operating instructions be posted at the incinerator and would require that the unit be operated in accordance with these instructions. These requirements have not changed from the previous version of this PBR. Finally, subsection (c)(5) would limit opacity from the incinerator stack to 5% averaged over any six-minute period as determined by EPA Test Method (TM) 9 to establish a practicably enforceable compliance demonstration mechanism. This easy-to-determine compliance demonstration is used since minimal visible emissions should occur if the incinerator is properly operated. This opacity limit constitutes a reasonable measure of best available control technology standards of the air permits program.

Proposed §106.491(d) would identify all compliance and administrative requirements for these facilities. Specifically, §106.491(d)(1) would require that each incinerator be registered prior to construction by submitting a PI-7 Form, Registration of Permit by Rule, and supporting documentation. This registration will be processed and reviewed by the Air Permits Division and an acceptance or insufficient information response will be sent to each applicant. Subsection (d)(2) would also include a streamlining measure for the commission to minimize duplication of separate media authorizations. If registered under this PBR, facilities will not be required to obtain a separate and distinct authorization under §330.51. The commission will update and modify §330.4, Permit Required, in a future rulemaking to be consistent with this streamlining measure.

Proposed §106.491(d)(3)(A) would require a compliance demonstration when destroying confiscated drugs only. To provide flexibility and the opportunity for law enforcement to combine resources and save money, this requirement is limited to at least one sample for each model of incinerator under worst-case operational and sampling conditions. If the owner or operator of an incinerator can demonstrate that previous stack sampling (properly conducted and commission-approved) on the same model showed compliance with the speciated emission limits of this PBR, that approved report will be sufficient to demonstrate compliance and a stack test will not be required on an individual basis.

Proposed §106.491(d)(3)(B) would identify potential emission compliance demonstration, sampling, monitoring, or other requirements if the facility is subject to 40 Code of Federal Regulations (CFR) Part 60, New Source Performance Standards (NSPS), Subpart CCCC, Standards of Performance for Commercial and Industrial Solid Waste Incineration Units, for which construction is commenced after November 30, 1999 or for which modification or reconstruction is commenced on or after June 1, 2000, or 40 CFR Part 60, Subpart DDDD, Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incinerator Units, that commenced construction on or after November 30, 1999. Additionally, §106.491(d)(3)(C) references the state requirements for compliance demonstrations with particulate matter standards of §111.121 and §111.125, Single-, Dual-, and Multiple-Chamber Incinerators; and Testing Requirements. As with all compliance demonstrations, sampling and monitoring of facility performance and emission rates are the responsibility of the owner or operator of the facility. The commission evaluated emissions of criteria pollutants from typical combustion control devices and determined that the national ambient air quality standards (NAAQS) would be met. Therefore, the commission did not include rule language to require additional protectiveness demonstrations from products of combustion from the fuel (NO2 , SO ₂ , CO, and VOC).

Proposed §106.491(d)(4) would require proper installation, calibration, and monitoring of the incinerator temperature on a continuous basis. This monitoring is needed to demonstrate a constant minimum temperature of 1,400 degrees Fahrenheit, which is required to ensure a sufficient DRE. If the facility is subject to an NSPS subpart, additional monitoring, sampling, and recordkeeping is required in accordance with federal regulations which vary by type of waste materials burned, along with the construction date of the incinerator.

Proposed §106.491(d)(5) would identify the minimum record retention requirements of the commission to ensure practical enforceability of this PBR. Records must include the type and amount of waste burned; fuel usage amount and type (including sulfur content for fuel oil); monitoring and testing results; hours of operation; and routine maintenance of abatement systems sufficient to demonstrate that each of the requirements previously listed are met. Such records shall be retained for a minimum rolling two-year period and comply with §106.8.

The commission proposes to repeal §106.493, Direct Flame Incinerators, as this authorization mechanism is now inappropriate due to other changes in state statutes and regulations. Specifically, this PBR was originally adopted as Standard Exemption (SE) Number 88 (effective July 15, 1988) to allow grandfathered facilities to add thermal control devices and achieve some measure of air pollution abatement. At the time of its adoption, the SE met all air quality emission control efficiency and impact guidelines. However, on May 23, 2001, the commission issued §116.617, Standard Permits for Pollution Control Projects, (effective June 1, 2001) to authorize air emission abatement equipment additions at grandfathered or permitted facilities. This standard permit was intended to provide a consistent and timely mechanism for any abatement device installation not otherwise required by a permit or PBR review. At the time, §106.493 was not repealed and remained an available authorization mechanism for certain control projects at grandfathered facilities. More recently, the 76th through the 78th Legislatures passed several statutes regarding permitting (and associated air pollution control targets) for existing grandfathered facilities. Section 106.493 may conflict with these subsequent authorizations or requirements for grandfathered facility emission controls, including consideration of potential emission impacts and additional retrofit costs that may need to be incurred by the regulated community if this authorization mechanism remains available.

Existing §106.496, Trench Burners, is proposed to be repealed and replaced with a new section due to reorganization and reformatting of the administrative and technical requirements of this PBR. These formatting changes are proposed for better customer understanding and readability.

The proposal would address several streamlining issues and would ensure that the PBR for trench burners minimizes nuisance potential and is a usable tool for the regulated community. As with all PBRs, this proposal is not intended to cover all possible scenarios and facility operations, but only addresses the most common and typical equipment expected to be available in the field. Any particular facility that does not meet the PBR general or specific conditions may apply for a case-by-case air permit. The proposed rulemaking would update the technical requirements regarding materials, emission releases, and equipment parameters; expand the scope of the PBR to include aboveground units; and eliminate unnecessary registration for relocations of portable facilities. Finally, §106.496 would specify the minimum necessary compliance demonstrations and records needed for practical enforceability.

The commission proposes new §106.496, Air Curtain Incinerators. Proposed §106.496(a) would encourage recycling of materials, including those covered under this PBR and refers to 30 TAC §332.8, Air Quality Requirements, for composting, mulching, or other processing to produce useable materials. This new subsection would further outline the purpose of this PBR to cover air curtain incinerators (ACIs) or trench burners, which are devices used primarily to burn trees and brush from land-clearing operations or right-of-way maintenance. These units are also used to minimize material sent to landfills, such as flood debris cleanup. This PBR is limited to certain specified materials, including trees, clean lumber, and brush. The sites and operations that may use this PBR include only the infrequent burning of materials from land-clearing, right-of-way maintenance, emergency clean-up operations, noncommercial industrial sites, and, in limited instances, municipal solid waste sites.

New §106.496(a) would also expand the scope of this PBR to allow both traditional trenches equipped with fan manifolds to circulate combustion air and new aboveground units that have equivalent parameters. The proposed title of this section, Air Curtain Incinerators, is the term that is commonly used to describe facilities of this type and matches the EPA NSPS nomenclature for these facility types.

Proposed new §106.496(b) would define the common terms and scope used for this PBR. These terms include: "air curtain incinerator (ACI)," "clean lumber," "emergency cleanup," "land-clearing," "municipal solid waste sites," "noncommercial industrial sites," and "site."

The primary use of this PBR is to authorize devices used to burn trees and brush from land-clearing operations before construction can start. In limited cases, similar materials are collected and destroyed by local governments and private contractors. The air pollutant of greatest concern is total suspended particulate matter and the related potential nuisance that these facilities may cause, if not operated properly. In order to accurately estimate the particulate matter emissions, the commission staff reviewed four major federal publications: Compilation of Air Pollutant Emissions Factors , Fifth Edition, AP-42 February 17, 2003; Evaluation of Emissions from the Open Burning Of Land-Clearing Debris , Lutes, Christopher C. and Kariher, Peter H., EPA, EPA/600/SR-96/128, January 1997; Development of Emissions Inventory Methods for Wildland Fires , Battyre, William and Battyre, Rebecca, EPA Research Triangle Park, N.C. 27711, Final Report, February 2002, EPA Contract No. 68-D-98-046, Work Assign 5-03; and Commercial and Industrial Solid Waste Incineration Units from the December 1, 2000 issue of the Federal Register (65 FR 232). Using factors that considered both flaming and smoldering circumstances, the commission estimated particulate matter emissions from combustion. Empirical studies, as well as two site visits with portable particulate monitors, were relied upon to develop representative emission rates and a corresponding modeled impact analysis. The equivalent emission factor used for this analysis was 14.0 pounds PM10 per ton of material burned. After review of all available information, the commission determined that nuisance should be minimized to the greatest extent possible, and the particulate matter emissions will meet all regulatory standards if the facilities are operated within certain limitations.

Proposed new §106.496(c) would include limitations and requirements for locating and operating an ACI. The ACI must be operated at least 300 feet from the closest property line and any other facility with an air permit authorization under §116.110, Applicability. This buffer zone is needed under most representative situations to ensure that the concentration of particulate matter will meet state regulations under §111.155, Ground Level Concentrations, as well as minimize the potential for nuisance smoke or ash dust during intermittent periods of start-up and shutdown. The proposed PBR also includes a limitation on the size of the trench or the box, correlating to a maximum material throughput used in emission estimates and impact analysis, as well as matching typical units observed in the field. The dimensions proposed for trenches (35-foot fan manifold) and boxes (35-foot box) correlate to the maximum material throughput reviewed for this PBR (approximately seven tons per hour). Larger facilities may not meet the general emission limits of PBRs or particulate matter regulatory concentration limits. In addition, to ensure less than 25.0 tons per year particulate matter and meet the general limit for PBRs as specified in §106.4(a)(1), facilities may operate up to a maximum of 500 hours per rolling 12-month period. After review of all currently available information, the commission determined that the nuisance potential will be minimized and the particulate matter emissions will meet all regulatory standards if the ACIs are operated within the recommended operating requirements and limitations. However, the commission is seeking any additional empirical information on the particulate matter and PM10 emission rates and factors for ACI facilities.

The proposed PBR would include operational limits for both portable and permanent ACIs in §106.496(c)(2)(B). Both types may operate only infrequently for consistency with state and federal waste regulations. Temporary facilities, usually private entities performing land-clearing and development preparation, may not be located at a site for more than 180 consecutive calendar days, and must be removed from the site within a week of ceasing operation.

Permanent facilities may be authorized under this PBR if categorized as a municipal solid waste or noncommercial industrial site. A municipal solid waste site is a site that accepts on- or off-site generated solid waste for disposal or processing. This PBR would cover municipalities or local governmental entities using these facilities for right-of-way brush maintenance or emergency clean-up operations as needed on a periodic basis at a centralized site or at collection locations. This PBR would also cover other industrial manufacturing sites i.e., cardboard, sawmills, pallet manufacturers, that need to occasionally burn on-site generated brush, wood, or lumber. These industrial sites must be noncommercial, as limited by Chapter 330, and burn only on-site generated waste that results from the processing or manufacturing of products. This definition does not include industrial sites that accept off-site generated waste for disposal or destruction. This PBR is not intended to cover commercial industrial waste sites or other uses of ACIs. Due to state and federal regulatory limitations and pending EPA guidance, these types of facilities should apply for an air permit as well as applicable waste permit(s).

Proposed subsection (c)(3) would limit the daily operation of ACIs. Operation of ACIs under this PBR are limited to daylight hours when atmospheric dispersion conditions are the best. All ACIs must not begin operation earlier than one hour after sunrise, and burning must be completed on the same day not later than one hour before sunset. Material must not be added to the ACI in such a manner as to be stacked above the air curtain, and the ACI blower must remain on until enough material is consumed so that any remaining material in the trench will not cause smoke that exceeds the requirements of this section when the blower is turned off. Additionally, an operator must remain with the ACI at all times when it is operating, including when the blower is off and until all smoldering and smoke ceases. Material not being worked and material being stockpiled to be burned at a later date must be kept at least 75 feet from the trench to prevent unintentional fires. The commission determined that the nuisance potential will be minimized by adherence to these operating requirements and limitations.

Proposed new §106.496(c)(4) would prohibit visible emissions from ACIs, stockpiles, work areas, and in-plant roads associated with the facility from leaving the property for a period exceeding 30 seconds in any six-minute period as determined by EPA TM 22. This visible emissions method was chosen because it does not require annual opacity observer certification, is an easy method for operators to use to ensure compliance with air quality, and prevents nuisance conditions. Best management practices must also be used to ensure that the ACI blower is operated in a manner that would minimize smoke and prevent ash from becoming airborne.

The commission evaluated emissions of criteria pollutants from these combustion devices and determined that the NAAQS would be met. After review, particulate matter emissions were determined to be the pollutant of greatest concern. All other emissions of the products of combustion were determined to meet all applicable standards. Therefore, the commission did not include rule language to require additional protectiveness demonstrations from NO ₂ , SO ₂ , and CO.

Proposed new §106.496(c)(5) would note that authorization under this PBR covers all emissions from products of combustion.

Proposed new §106.496(c)(6) would require that, upon notification by a representative of the commission or any local air pollution control program having jurisdiction that the ACI is not complying with the conditions of this section, additional material must not be added to the ACI until the facility returns to compliance. This immediate response is necessary to resolve a potential nuisance condition as soon as possible upon notification by a delegated representative of the commission that a problem may exist.

Proposed new §106.496(d) would contain the requirements specific to ACI operations using a trench and air manifold system. The proposed PBR limits trench dimensions at all times to not more than 12 feet in width, 35 feet in length, and no less than ten feet in depth. These dimensions are included instead of the material throughput (tons per hour) in the current PBR. Due to the nature of these facilities, it is impractical for operators to demonstrate compliance with this throughput limit through detailed records. Instead, the commission evaluated the maximum trench size equivalent to a throughput of approximately seven tons per hour of material, upon which emission estimates and impacts analysis were based. These dimensions should also ensure that the combustion of the materials within the trench is maintained. The length of the trench must not exceed the length of the air blower manifold and the walls of the trench must be maintained such that they remain sufficiently vertical to maintain the air curtain, facilitating proper combustion. Also, this subsection allows ash to be left in the trench after removal of the ACI from the burn site, but the trench must be completely filled with noncombustible material and covered with soil. These requirements, which represent best management practices, are specified to ensure proper combustion, minimize smoke and dust, and prevent fire hazards.

Proposed new §106.496(e) would include the requirements for ACIs using a manufactured aboveground fire box and blower system. To ensure proper design and operation, the proposed PBR would require that the interior dimensions of the firebox not exceed eight feet in width and 35 feet in length and be no less than six feet in depth, matching the equivalent throughput of materials. The length of the air blower manifold must be approximately equal to the length of the burning area, thus ensuring proper combustion. Also, the walls of the ACI must be maintained such that they remain sufficiently vertical to maintain the air curtain and the combustion of the materials within the ACI. These requirements, which represent best management practices, are specified to ensure proper combustion, minimize smoke and dust, and prevent fire hazards.

Proposed new §106.496(f) would include the requirements for handling and disposal of the ash generated as a result of the operation of an ACI. The ash must be removed from the ACI during burning as necessary to maintain efficient combustion, and must be done in such a manner as to minimize the ash becoming airborne. All material removed from the ACI must be completely extinguished before being disposed of or placed in contact with combustible material, and must be stored in a manner that does not constitute a fire hazard or allow the material to smolder or burn outside of the ACI. The ash generated from an ACI operated under this section must be disposed of by a specified method. If the ash is buried on-site, the ash must be deed recorded and a copy of the document must be provided to the executive director as required by §330.7, Deed Recordation. The ash may also be sent to a Type I landfill, if no hot coals are present and the ash is transported in a manner to prevent it from becoming airborne. Additionally, the ash may be beneficially used if the use is determined to be acceptable by the executive director in accordance with §330.8, Notification Requirements. These requirements, which represent best management practices, are specified to minimize dust and meet state waste regulatory requirements.

Proposed new §106.496(g) would identify additional ACI requirements. Paragraphs (1) - (3) cover associated air-related requirements. This PBR does not exempt ACIs from any local government regulations or other local government requirements, permits, registrations, or other authorizations. ACIs are also not exempt from compliance with any additional state air regulations, such as 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter; or 30 TAC Chapter 117, Control of Air Pollution from Nitrogen Compounds. Since some permanent ACIs are allowed under this PBR, 40 CFR Part 60, Subpart CCCC, Standards of Performance for Commercial and Industrial Solid Waste Incineration Units, for which construction is commenced after November 30, 1999 or for which modification or reconstruction is commenced on or after June 1, 2000, might apply, along with associated opacity readings, reporting, and recordkeeping.

Proposed new §106.496(g)(4) lists the most likely applicable waste permitting requirements. ACIs located at a landfill require separate authorization by the executive director in accordance with §330.4, Permit Required, due to unique state and federal waste laws for landfills, including a review for methane generation and migration for fire safety concerns. Subsection (g)(4) also requires that below-ground ACIs or trench burners at a municipal solid waste landfill be located in undisturbed soil not previously excavated, built up, or compacted to ensure that cross-contamination does not occur. For ACIs not located at a landfill, to minimize duplicative paperwork within the commission, compliance with this PBR will serve as a commission authorization to store, process, remove, or dispose of the ash resulting from the operation of ACIs as required by §330.4(a) since the materials authorized to be burned under this section, and the resulting ash from ACIs, are categorized as municipal solid waste as defined in §330.2, Definitions.

Proposed new §106.496(g)(5) would note that nothing in this PBR removes the responsibility of the owner or operator from obtaining any necessary authorization in accordance with 30 TAC Chapter 308, Criteria and Standards for the National Pollutant Discharge Elimination System.

Proposed new §106.496(h) would include administrative provisions for the operation of an ACI under this section. To minimize the number of registrations and associated fees, multiple ACI locations for a single facility at a given site may be combined into a single registration if all operating restrictions and distance limits are met. This subsection would also address registration and notification requirements. ACIs must be initially registered with the executive director using the Core Data Form and Form PI-7. Registration reviews will include a site approval by the regional office and a compliance history evaluation in accordance with 30 TAC Chapter 60, Compliance History. The owner or operator of a portable ACI that has previously been registered with the executive director and is being relocated to a new site other than a landfill, must notify the appropriate regional office and any local air pollution control agency having jurisdiction over the site. Notifications must be in writing using the Regional Standard Permit/Permit by Rule Relocation Form, include a return receipt, and be received by the regional office at least 14 calendar days prior to relocating to a site. Notifications are not subject to the requirements of §106.50 or Chapter 60. Re-registration would also be required for all ACIs when any notice of enforcement is issued by the commission to the owner or operator of an ACI facility or every five years, whichever occurs first. Additionally, to provide fast response to local circumstances, registration is not required for any ACI used for emergency clean-up operations, except for the 14-day prior notice requirement; however, the owner or operator must meet the notification requirements of the PBR.

Proposed new §106.496(h)(4) would include recordkeeping requirements to demonstrate compliance with this section and §106.8. These requirements ensure practicably enforceable mechanisms for demonstrating compliance. The ACI must be equipped with a run time meter, and a written record or log of the hours of operation of the ACI must be maintained at the site and made available at the request of personnel from the commission or any air pollution control program having jurisdiction. This run time record or log must be organized such that compliance with the requirements of this section can be readily determined. Records must be kept to demonstrate compliance with all operational or location requirements of this section. These records must include a copy of the return receipt demonstrating notification to the appropriate regional office and local air pollution control programs having jurisdiction and plot plans showing that distance limits are met. A copy of the PBR and any operating instructions must be kept at the burn site and made available at the request of personnel from the commission or any local air pollution control program having jurisdiction. Finally, to ensure that the correct facility is registered and tracked throughout its lifetime in the State of Texas, the ACI must be clearly identified by having the regulated entity number or account number clearly visible in permanent ink or paint, or etched on the fan manifold or aboveground unit.

Subchapter X - Waste Processes and Remediation

Existing §106.533, Water and Soil Remediation, is proposed to be repealed and replaced with a new section which would reorganize and reformat the administrative and technical requirements of this PBR. These formatting changes are proposed for better customer understanding and readability.

Proposed new §106.533, Remediation, would authorize equipment that is used to reclaim or destroy chemicals that are removed from contaminated groundwater, water condensate in tank and pipeline systems, or soil. The purpose of this proposal is to address several streamlining issues and ensure that the stationary air contaminant sources associated with remediation projects have a usable PBR while ensuring protection of public health and welfare. The commission proposes updates to the technical requirements regarding emission releases and parameters. This PBR was also evaluated for consistency with other commission regulations for remediation. This proposal would specify the minimum compliance demonstration actions and records needed for practical enforceability. As with all PBRs, this proposal is not intended to cover all possible scenarios and facility operations, but only addresses the most common and typical equipment expected to be available in the field. Any particular facility that does not meet the PBR general or specific conditions may apply for a case-by-case air permit.

Proposed new §106.533 would be consistent with other related commission permitting programs and ensures that all stationary sources of air contaminants are covered in a single authorization.

Proposed new §106.533(b) would outline, in a concise format, the common terms and scope used for air authorizations associated with remediation projects to be consistent with air and remediation laws and rules. The scope of remediation facilities and activities covered under this PBR are outlined, as well as the boundaries of a site and affected property; off-site receptor; and scope of petroleum and dry cleaning compound contamination; all common terms over which questions and issues often arise during the review of these projects. This proposed subsection also defines ESLs that are used to determine acceptable emission releases for some remediation sites. The ESLs are used by the commission to evaluate the potential for effects to occur as a result of exposure to concentrations of constituents in the air. ESL updates, which are published periodically, were last revised October 1, 2003. The ESLs are based on data concerning health effects, odor nuisance potential, effects with respect to vegetation, and corrosion effects. The ESLs are not ambient air standards. If predicted or measured airborne levels of a constituent do not exceed the screening level, adverse health or welfare effects would not be expected to result. If ambient levels of constituents in air exceed the screening levels, it does not necessarily indicate a problem, but rather, triggers a more in-depth review, as would be performed under a regular air quality permit. In defining remediation for purposes of this PBR, the commission proposes clarification that this authorization covers pilot tests as well as treatment. These terms make it clear that the scope of this PBR is limited, and does not cover containment of emergency spills that are under the jurisdiction of the Railroad Commission of Texas, Texas General Land Office, EPA, or the commission. These upset conditions, with regard to the air emissions resulting from containment and immediate emergency response/treatment, are covered under the commission's air quality general rules and requirements in Chapter 101. Immediate emergency containment and removal usually occurs as soon as the spill is identified to prevent further contamination of soil or water and is typically completed within 72 hours. However, if emergency treatment is not specified by the initial governing agency, such as the Railroad Commission of Texas, the EPA, or commission, or non-emergency treatment is needed, once a facility is constructed or installed at a site, a commission air authorization is required in accordance with Texas Health and Safety Code, §382.0518; and §116.110. For those remediation facilities and activities that have insignificant air contaminant emissions, the use of this PBR is an authorization option.

Proposed new §106.533(c) would outline general requirements and limitations for the use of this PBR. The use of this PBR is limited to the location of the original soil or water contamination, and is not intended to cover the operation of a commercial or municipal collection site which may have very complex types and quantities of emissions. These larger commercial or municipal facilities are encouraged to obtain a flexible air quality permit under Chapter 116.

This subsection would also list the general equipment technical requirements for facilities with air contaminants, including elevated vents, visible emissions restrictions, nuisance prevention, best management practices, appropriate air pollution abatement equipment, and coordination with the commission's PST remediation and PST reimbursement programs. All of these limitations ensure minimization of pollutants that may be released into the atmosphere, proper dispersion, and appropriate and effective controls as well as consistency with requirements of applicable state and federal remediation programs. In particular, the visible emissions limitations are included to prevent contribution of dust emissions to the ambient air in unnecessary quantities, prevent potential nuisance conditions, and meet the particulate matter emission standards of §111.155 and the NAAQS. It is recognized that facility operators can only be responsible for best management practices for materials disturbed during remediation and not other facilities at the site, or off-site generated PM emissions.

A set of seven most probable scenarios for the cleanup of petroleum fuels, typical oil and gas materials, and dry cleaning compounds based on the various control options was developed and modeled to calculate predicted ground level concentrations at the minimum receptor distances. The modeling results were compared with the screening levels for benzene, gasoline, diesel fuel, crude oils, natural gas condensates, and several common dry cleaning compounds. All of these compounds meet state guidelines and standards as listed in the proposed rules. To ensure that all emissions from the remediation are authorized, the proposed rules include emission limits during pilot testing as well as treatment. Owners and operators are expected to reasonably anticipate needed control devices during pilot tests and use this equipment during these activities to minimize emissions and meet PBR limits. Where applicable, most commission remediation programs require these controls to be used during the pilot tests. The overall emission limits were evaluated for all listed control devices, as well as uncontrolled fugitive releases. Remediation activities such as land-farming and bio-remediation are considered to be uncontrolled. The commission evaluated emissions of criteria pollutants from typical combustion control devices and determined that the NAAQS would be met. Therefore, the commission did not include rule language to require additional protectiveness demonstrations from products of combustion from the fuel (NO ₂ , SO ₂ , CO).

Proposed new §106.533(d) would outline the requirements specific to sites contaminated with petroleum compounds. These sites include fuel dispensing locations, usually gas stations, and are almost always associated with remediation projects processed by the PST program and often reimbursed by the commission. It also includes fuel transfer stations for diesel locomotives and aircraft fueling. Subsection (d) also covers other petroleum-contaminated sites, such as tank farms, transfer stations, oil and gas production facilities, and affected property along pipelines. To ensure protection of public health and welfare, air emissions are limited to very small amounts. The proposed PBR was evaluated for impacts of gasoline, diesel, and kerosene-based aviation fuels, as well as common pipeline compounds, with specific emphasis on the potential benzene portion of these materials. Emissions are limited to values at or below their respective ESL guidelines. This subsection would propose to limit emissions in two circumstances: 1) for locations with an off-site receptor within 100 feet (a common occurrence); and 2) for locations with a receptor at 100 feet or beyond. In the case of less than 100 feet, an impacts evaluation determined that controls are preferred. When controlled, total petroleum hydrocarbon and benzene emissions should be one lb/hr and 0.1 lb/hr or less, respectively. In the case of non-fuel dispensing sites, petroleum liquids could contain a substantial amount of sulfur, so in these cases, hydrogen sulfide emissions are also limited to 0.1 lb/hr. In the case of uncontrolled remediation, the impacts evaluation showed that dispersion was less and emissions should be further limited to approximately 10% of the values in the controlled scenario. When located at least 100 feet from off-property structures, emissions may be greater for certain compounds in accordance with the conditions of 106.262. Since §106.262 does not have a specific listing for petroleum compounds, total petroleum hydrocarbons are limited to one lb/hr based on the impacts evaluation performed by the commission. All other specific air contaminants may have proportionally greater emissions based on the distance to the nearest off-property receptor as outlined in 106.262. This general PBR is often used as a reference for speciated air contaminant emission limits instead of repeating these stipulations in each PBR. Finally, this subsection also reminds owners and operators of the unique sampling and testing requirements under the PST remediation and PST reimbursement program.

Proposed new §106.533(e) would list the requirements specific to sites contaminated with dry cleaning compounds. These sites are usually a result of small commercial enterprises with nearby businesses and off-site receptors. The 78th Legislature, 2003, passed House Bill 1366 to facilitate the cleanup of dry cleaning sites. Although these proposed rules are not a direct result of this legislation, the commission has attempted to be consistent with its intent in this PBR. The statute is being codified and implemented by the commission in a separate rulemaking. To allow for administrative flexibility and minimize paperwork, these proposed rules note that additional technical and administrative requirements for the remediation of dry cleaning sites may be found in Texas Health and Safety Code, §§374.001 - 374.253.

To ensure protection of public health and welfare, air emissions associated with dry cleaning sites are limited to very small amounts. Since these locations are frequently located within 100 feet of an off-site receptor, the impacts evaluation reviewed the most common compounds found at dry cleaning sites. The proposed PBR limits emissions for these compounds to rates consistent with the general PBRs for speciated compounds for all distances, and matches the evaluation methods described for petroleum sites. For locations with an off-site receptor within 100 feet (a common occurrence), an impacts evaluation determined that controls are preferred. When controlled, the proposed PBR includes limits consistent with §106.261 and §106.262, and a maximum emission limit of 0.04 lb/hr or the limit in §106.261 or §106.262, whichever is larger. In the case of uncontrolled remediation, the impacts evaluation showed that dispersion was less and emissions should be further limited to approximately 10% of the values in the controlled scenario, with a maximum limit of 0.04 lb/hr of any air contaminant or the limit in §106.261 or §106.262, whichever is larger. In any case, the emission limit will not be required to be less than 0.04 lb/hr. Since many of the compounds used by dry cleaners in the past contained chlorinated compounds, thermal control devices (that would result in hydrochloric acid emissions) are not allowed, and only carbon absorption systems were evaluated and included in the proposal.

Proposed new §106.533(f) would list the requirements for all other remediation projects. The contamination at these sites can vary widely and result in both organic and inorganic air emissions. Each site under this PBR will have unique types and concentrations of air contaminants, and the emissions control devices may also vary widely. To ensure protection of public health, the technical requirements of paragraph (1) are limited by the conditions of the most stringent of §106.261, §106.262, or lower values for some compounds not currently addressed by these PBRs. Based on the impacts evaluation performed for this PBR and consistent with impacts evaluation guidelines for air permitting, the commission determined that compounds with an ESL of 2 micrograms per cubic meter (µg/m ³ ) or less should have emissions less than or equal to 0.01 lb/hr and if the ESL is between 2 and 100 µg/m ³ , emissions may be allowed up to 0.04 lb/hr. In any case, the emission limit will not be required to be less than 0.01 or 0.04 lb/hr, respectively. Based on the overall emission limits for individual air contaminants in §106.262, the proposed PBR has a maximum potential release of five tons per year of emissions. Paragraph (3) also requires a minimum distance of 100 feet to the nearest off-property structure to ensure acceptable impacts, as noted in the requirements of §106.261 and §106.262. As noted in paragraph (2), if a control device is used to achieve these emission limits, it should be properly operated and compliance demonstrated in accordance with subsection (g) of this PBR.

Proposed new §106.533(g) would cover all of the abatement devices and systems typically used at remediation projects. This list has been expanded from the available options in §106.533. The specified control devices include: 1) direct-flame combustion device (incinerator, furnace, boiler, heater, or other enclosed direct-flame device); 2) flare; 3) catalytic oxidizer; 4) internal combustion engine; and 5) carbon adsorption system (CAS). Each device listed has three different categories of requirements: design; operation; and compliance demonstrations. Most compliance testing requirements are required by other commission programs (PST, etc.), and have been coordinated with those programs to minimize duplicative and redundant requirements. When using catalytic oxidizers, internal combustion engines, and CAS devices, initial sampling is required within two hours of facility startup. This compliance demonstration is required to ensure that the abatement systems are operating within expected parameters, confirm the pilot test readings, and establish worst-case hourly emission rates for the remediation project.

Proposed new §106.533(h) would identify the compliance demonstration methods applicable to sites with fugitive emissions (typically uncontrolled) as a photo-ionization detector (PID) or a flame ionization detector (FID) used on a weekly basis. These monitors measure concentration of air contaminants (parts per million volume (ppmv)), which will be compared to an equivalent ESL limit for each air contaminant. These measurements should occur as close as possible to the remediation activity, but no further away than the closest property line.

Proposed new §106.533(i) would describe all other state and federal regulatory requirements and obligations typically applicable to remediation projects and facilities. Common programs such as Voluntary Cleanup, Superfund, and PST are referenced along with reminders that all other local, state, and federal laws and requirements must be met. Due to the passage of House Bill 1366, additional rules and requirements will be codified by the commission in 30 TAC Chapter 337. These requirements may address additional technical or administrative conditions and limitations, or may eliminate certain administrative requirements to streamline the cleanup of dry cleaning sites. Those requirements, if adopted, may supersede some or all conditions of this section and chapter and will be addressed in a separate rulemaking. This subsection would also list federal air quality requirements that may be applicable to remediation sites. Title 40 CFR Part 63, National Emissions Standards for Hazardous Air Pollutants (HAP), Subpart GGGGG, Site Remediation, has been promulgated by the EPA and will affect a small portion of remediation projects by limiting emissions of hazardous air contaminants. Subpart GGGGG specifically exempts gasoline station cleanup. In addition, sources must meet all three of the following criteria to trigger this maximum achievable emissions technology (MACT) standard, including: 1) the site is a major source of HAPs; 2) a non-remediation MACT activity is performed at the site; and 3) a remediation activity is conducted at the site. It is expected that less than 10% of all remediation projects authorized under this PBR will be applicable to this MACT standard.

Proposed new §106.533(j) would include administrative provisions for the operation of remediation facilities. To minimize the number of registration reviews, the commission is proposing that facilities need only notify the appropriate regional office and any local air pollution control agency having jurisdiction over the site. Notifications must be in writing using the Regional Standard Permit/Permit by Rule Relocation Form, include a return receipt, and be received by the regional office prior to activities occurring at the site. These notifications should also be sent to any local air pollution control program with jurisdiction over the site, and the appropriate remediation program coordinator. Notifications are not subject to the requirements of §106.50 or Chapter 60. The notification of any particular remediation project is streamlined through this proposal, as owners and operators initially notify the commission air programs when initiating pilot tests, follow-up with detailed emissions expectations and controls for initial treatment, and update only when the concentration of emissions decreases to allow changes or elimination of control devices. This proposal is intended to simplify the associated paperwork for remediation projects under the PBR.

To ensure a practical enforcement mechanism that is consistent with remediation programs, proposed new §106.533(j)(2) would also include recordkeeping requirements to demonstrate compliance with the conditions of this PBR and §106.8. In many cases, this information is required by the commission to verify control effectiveness and progress of the remediation project. These records must be organized and compiled in such a way that the requirements of this PBR can be readily determined. Records must be kept to demonstrate compliance with all operational or location requirements of this section. These records must include a copy of the return receipt demonstrating notification to the appropriate regional office and local air pollution control programs having jurisdiction, and plot plans showing that distance limits are met. A copy of this section and any operating instructions must be kept at the remediation site, or at the nearest manned location, and made available at the request of personnel from the commission or any local air pollution control program having jurisdiction.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Analyst with Strategic Planning and Appropriations, determined that for the first five-year period the proposed rules are in effect, there will be fiscal implications which are not anticipated to be significant for the agency or other units of state and local government due to implementation of the proposed rules. The commission anticipates that there will be no mandatory compliance costs for affected units of government due to implementation of this rulemaking. Several compliance options are proposed in these rules; however, units of government would only realize increased costs if they decided to purchase optional equipment that meets existing or amended PBR regulations.

The proposed rules are intended to update and repeal several existing agency PBRs, in order to streamline air quality PBR processes; update administrative and technical requirements; and address unnecessary registration and fee applicability. No significant additional costs or duties are anticipated for the commission to implement the proposed rules. However, revenues collected by the commission from PBR fees are anticipated to be reduced by at least $82,000 per year due to implementation of the proposed rules. This reduction equates to savings to owners and operators of equipment regulated by the PBRs as amended by this rulemaking. A small percentage of this savings is anticipated to be realized by units of local government.

This rulemaking repeals the general public notice requirements and PBR regulations for concrete batch plants currently included in Chapter 106. Public notice requirements, technical requirements, and operational permit requirements for these facilities are covered by the standard permit for concrete batch plants. The commission anticipates no fiscal implications for units of state and local government due to the proposed rules for concrete batch plants.

The proposed rules are also intended to repeal §106.493. The commission determined that standard permits are more appropriate authorization mechanisms for these incinerators. This PBR was developed to allow grandfathered facilities that add thermal control devices to achieve some measure of air pollution abatement. However, §106.493 may conflict with subsequent grandfathered facility permit regulations mandated by the 76th through the 78th Legislatures. The commission anticipates that there will be increased costs to owners or operators that apply for authorization to operate this type of equipment in the future. Under the current PBR, the registration fee is $450. If the rules are approved, owners and operators will have to apply for a standard permit. The permit fee in this case will increase to $900, which is a $450 increase per permit. Based on an average of 15 applications for this PBR per year, the total registration fee increase due to implementation of the proposed rules will be approximately $6,750 (15 x $450). Additionally, these sites will have to provide for public notice, which usually costs between $500 to $5,000 per permit application. Based on 15 claims per year, this increased cost due to public notice would range from $7,500 to $75,000. The commission anticipates that no units of state or local government will be affected by the proposed changes to this PBR. All of the affected sites are anticipated to be large businesses.

In addition to increased registration fees and public notice costs, owners and operators of direct flame incinerators that apply for permit amendments, or seek authorizations for new facilities via a standard permit, will be required to purchase, install, and operate more effective pollution abatement systems to meet the stricter permit requirements of a standard permit. Pre-existing sites will not have to upgrade their equipment, unless modifications are made to affected abatement equipment covered by the original PBR. Prices for abatement systems that meet current best available control technology standards for facilities requiring a new source review permit can be as high as approximately $400,000, depending on flow rate needed, retention time, and temperature requirements. Abatement equipment required by the standard permit under §116.617 would probably cost approximately $200,000 more than systems currently authorized by §106.493. This increased cost could be reduced to a great degree by modifying the control device and replacing refractory materials only. Depending on the types of refractory materials used, the cost of the modification may be as low as $5,000 - $10,000.

This rulemaking also amends four other sections within the Chapter 106 PBR rules. The amendment of §106.50 concerns fees charged for PBR authorizations, §106.491 covers dual-chamber incinerators, §106.496 concerns air curtain incinerators, while §106.533 affects remediation at gasoline stations and dry cleaning facilities.

The proposed amendments to §106.50 would allow nonprofit organizations to qualify for a reduced fee when required to register for a PBR, and would exempt remediation activities from PBR fees. The proposed rules would reduce the PBR fee for nonprofit organizations, such as the Society for Prevention of Cruelty to Animals seeking a PBR to use animal incinerators, from $450 down to $100 per PBR application. The commission anticipates that approximately 20 nonprofit organizations will benefit from this fee reduction annually, resulting in savings to affected nonprofit organizations, and revenue losses to the commission of up to $7,000 per year.

The commission proposes to discontinue all PBR registration fees (which range from $100 to $450) for PBR remediation activities. Only new sites, or existing sites that apply for a new authorization, would be affected by this rule change. The commission anticipates that the total cost savings to businesses performing these cleanups, and revenue loss to the agency, will be approximately $20,000. This savings would depend on the number of firms that apply for affected remediation PBRs following implementation of the proposed rules. The commission estimates that there are approximately 400 existing sites that could potentially benefit from the proposed rules; however, very few are anticipated to be units of local government. The commission anticipates that the majority of entities that would benefit by these proposed rules would be small and micro-businesses involved in the cleanup of these sites. The proposed rules would replace §106.491 with updated rule language to improve flexibility for the regulated community. The primary purpose for proposing new §106.491 is to provide more options for the disposal of illegal drug evidence seized by law enforcement agencies in Texas. Currently, law enforcement agencies are required to store confiscated illegal drug evidence until such time as they are able to contract with a private company to destroy these materials in an incinerator or boiler that is permitted for hazardous materials burning. Law enforcement agencies are currently not allowed to own or operate their own incinerators under this PBR to perform this disposal. Every disposal activity requires the law enforcement agency or the responsible disposal contractor to submit a case-by-case new source review permit. This provision can be very time-consuming. The proposed rules would allow law enforcement agencies the option of owning and operating an incinerator or to subcontract with a third party to secure disposal of evidence using dual-chamber incinerators that would qualify to be authorized under a PBR instead of a permit. This is anticipated to provide a more flexible and timely alternative for disposing of seized illegal drugs. Additionally, there would be a reduction in permit fees and public notice costs for the entity applying for the PBR (law enforcement agency or contractor). The one-time PBR fees would be reduced to $100 or $450 ($100 for units of government and $450 for contractors) instead of a minimum of $900, plus there would be no public notice costs (which can range from $500 - $5,000 per permit). Another potential cost savings would be reduced chain-of-custody and security at the disposal sites, if disposal is performed at the law enforcement agency. The total cost savings from reduced permit fees/public notice costs is unknown at this time, because the commission does not know how many law enforcement agencies or contractors would choose to apply for this updated PBR.

The proposed rules will require the new incinerator models that are used to destroy drugs to be tested to demonstrate compliance with updated regulations. An incinerator stack may have to be taller than existing models, and continuous temperature monitors will be required to ensure compliance with emission regulations. The commission estimates the new incinerators will cost $40,000 up to $1 million, depending on size, temperature, and other technical specifications and available abatement systems. This cost is similar to existing incinerators used to destroy confiscated drugs. However, the incinerators that are chosen by law enforcement agencies could reasonably be expected to be at the lower end of the cost range. Within 180 days, all facilities processing confiscated drugs must provide sampling to the commission to demonstrate compliance with the emission limits of the PBR. It is estimated that once testing is completed on a certain incinerator model, this could be used to demonstrate compliance for similar models used by other facilities. The commission estimates that the testing costs will range between $10,000 to $25,000 per test. The owner/operator may conduct a test or the manufacturer may test and establish data in lieu of testing for that particular model, in which case the purchasers of that model would not be required to conduct compliance tests. The continuous exhaust monitors will cost between $1,000 to $6,000, with minimal annual operating costs. Law enforcement agencies and subcontractors would only be affected by these costs if they voluntarily choose to seek authorization to dispose of seized illegal drugs under the updated PBR. Otherwise, they could continue to operate under existing regulations. The costs for incinerator purchase, testing, and monitoring would be offset to some degree by the elimination of costs associated with using off-site vendors to destroy confiscated drug evidence.

The commission proposes to repeal §106.496 and replace it with updated rule language that is intended to update technical requirements regarding emission releases and equipment parameters to ensure consistency with waste permitting restrictions, expand the scope of the PBR to include aboveground units, and eliminate unnecessary registration for relocation of portable facilities. Additionally, these rules specify the minimum necessary compliance demonstrations and records needed for practical enforceability. The primary fiscal impacts anticipated as a result of updates to this PBR are the following: 1) facilities would be allowed to use aboveground systems; 2) run time meters would be required on new equipment or new authorizations; and 3) the registration of each new site would be eliminated.

The proposed new §106.496 authorizes facilities to use aboveground systems instead of the traditional fan manifold, which is placed over an open below-ground trench. Both of these are devices that are used primarily to burn trees and brush from land-clearing operations or right-of-way maintenance. Aboveground units are slightly more efficient and more versatile because of the ability to easily move to another location. This section does not require the use of aboveground units; it only provides for the option. The commission estimates that the cost of an aboveground unit would probably be approximately 25% greater than fan manifold units (approximately $50,000 to $100,000 more per unit). The installation of run-time meters is not expected to cost more than $200 per facility. The commission estimates that the majority of the affected equipment is already equipped with these meters.

The commission anticipates that the proposed rules will result in cost savings to owners and operators of affected air curtain incinerators (previously trench burners) due to reduced registration costs. Currently, the commission requires a separate registration for each new site. Since this equipment is portable, the commission receives approximately 600 registrations per year with an average fee of $100 per registration. The new PBR would require an initial registration only, and subsequent sites would only need a notification sent to the appropriate commission regional office. Re-registration (and fee) would only be required if a notice of enforcement is issued, or every five years, whichever occurs first. The commission estimates that the number of registrations for this PBR will be reduced from 600 to 60 per year. This will result in a cost savings for the businesses and revenue loss to the agency of approximately $55,000 per year. The commission anticipates that perhaps 50 of the yearly 600 registration requests are submitted by units of local government. The cost saving for units of local government are not anticipated to be significant due to the reduced number of registrations that are required to be submitted to the commission.

The proposed rules would repeal §106.533 and replace it with updated rule language to ensure consistency with state and federal remediation regulations, eliminate some registration requirements, ensure the protection of public health, minimize the potential for nuisance, and provide for a reasonable demonstration of compliance. Proposed §106.533 would require updates to emission limitations. These changes are anticipated to result in increased costs, depending on the type and amount of contamination. The proposed PBR would also include numerous compliance demonstrations via stack sampling, and readings by PID and FID, in conjunction with a flow meter. The PID and FID equipment would have to perform weekly control device checks, which is estimated to result in increased annual costs ranging from $3,000 to $10,000 per site. For example, this equipment will be used for sampling on specific control devices, internal combustion engines, and CAS. However, most of these sites already perform these tests, so the commission anticipates that there will not be significant increased costs due to this requirement. These amendments would affect all sites using equipment affected by the updated PBR. The commission anticipates that no units of state or local government would be affected by these proposed rules.

The current remediation PBR restricts remediation activities at gasoline stations and dry cleaning facilities to having a minimum distance of 100 feet from other structures. The revisions would eliminate this distance limit, thus allowing more remediation projects for gasoline stations and dry cleaning facilities to meet the PBR requirements, instead of being required to obtain a case-by-case air permit. For those sites that would now be eligible for the PBR instead of the air permit, the permit fees would be reduced to $100 instead of a minimum of $900, plus there would be no public notice costs, which can range from $500 - $5,000 per permit. This would only apply to new or amended sites that apply for the PBR following implementation of the proposed rules. There are currently over 400 gasoline stations and approximately 1,000 dry cleaning sites that are being remediated statewide. The commission anticipates that the majority of new or amended sites would be eligible to apply for the PBR, in lieu of a permit, due to implementation of the proposed rules. There may be a very small number of refueling sites that would be owned and operated by units of government.

PUBLIC BENEFIT AND COSTS

Mr. Davis also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from enforcement of, and compliance with, the proposed rules would be the potential increased environmental protection since the proposed rules are intended to ensure that facilities are using the most up-to-date emission controls, and the requirements to demonstrate compliance with agency regulations.

Cost savings are anticipated for individuals and businesses resulting from the enforcement of, or compliance with, the proposed rules, though the savings are not considered significant. For those owners and operators that choose to pursue compliance options that are proposed under §106.491 and §106.496, there will be potential increased equipment and monitoring costs in order to comply with these optional compliance regulations. Additionally, there will be costs for grandfathered facilities that apply for a permit amendment that is currently authorized under the §106.493 PBR, or that seek authorizations for new sites via a standard permit. All of these increased costs could be significant; however, they are optional and only would affect individuals and businesses if they choose to pursue these compliance options.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated as a result of implementation of the proposed rules for small or micro-businesses that are affected by the proposed rules, which are intended to update, and in some cases repeal, several existing agency PBRs found in Chapter 106.

Cost savings are anticipated for small and micro-businesses resulting from the enforcement of, or compliance with, the proposed rules, though the savings are not considered significant. For those owners and operators that choose to pursue compliance options proposed under §106.491 and §106.496, there will be potential increased equipment and monitoring costs in order to comply with these optional compliance regulations. All of these increased costs could be significant; however, they are optional and only affect small businesses and micro-businesses if they choose to pursue these compliance options.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed these proposed rules 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 of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rules do not meet the definition of a "major environmental rule." Major environmental rule means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. These proposed rules eliminate obsolete rules; address the need for a reduced PBR registration fee for nonprofit organizations and the nonapplicability of fees for reviews associated with the Voluntary Cleanup Program and Superfund projects; eliminate a PBR to prevent inappropriate control devices from being installed at grandfathered facilities; address the problem of law enforcement agencies that are currently precluded from using a PBR to incinerate confiscated illegal drug evidence; minimize registration requirements by replacing the current PBR for trench burners; and address the need for a rapid authorization mechanism for remediation projects at gasoline stations and dry cleaning facilities that have less than a distance of 100 feet to the nearest off-property structure by replacing the current PBR. Certain aspects of this rulemaking are intended to protect the environment or reduce risks to human health from environmental exposure. However, the proposed rules generally tend to improve regulatory flexibility and reduce costs to regulated facilities and are therefore unlikely to adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs. Because this rulemaking 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, the rulemaking does not fit the definition of a major environmental rule.

In addition, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The proposed rulemaking is not subject to the regulatory analysis provisions of §2001.0225(b), because the proposed rules do not meet any of the four applicability requirements. The commission invites public comment regarding the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission completed a takings impact assessment for the proposed rules. Promulgation and enforcement of the rules will not burden private real property. The proposed rules will 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 a governmental action. Therefore, the proposed rules do not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found the rules are 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 action for consistency and determined that the proposed rules do not impact any CMP goals or policies. The proposed rules are intended to more effectively focus commission resources, streamline the air quality PBR process, update administrative and technical requirements for certain PBRs, and address unnecessary registration and fee applicability of PBRs. The commission invites public comment regarding the CMP.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin on February 26, 2004 at 2:00 p.m. in Building F, Room 2210, at the commission's central office, located at 12100 Park 35 Circle. The hearing will be 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, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Joyce Spencer, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Project Number 2003-030-106-AI. Copies of the proposed rules can be obtained from the commission's Web site at http://www.tnrcc.state.tx.us/oprd/rules/propadop.html . Comments must be received by 5:00 p.m. on March 1, 2004. For further information, please contact Debra Barber, Office of Environmental Policy, Analysis, and Assessment, at (512) 239-0412.

The commission is specifically soliciting comments, including technical information and empirical data, regarding the limits in proposed §106.491.

The commission is requesting comments by law enforcement on the size and type of incinerator, operating parameters, expected or monitored emissions, compliance demonstrations, and registration requirements for proposed §106.491.

The commission is seeking any additional empirical information on the PM and PM ₁₀ emission rates and factors for ACI facilities under proposed §106.496. If sampling or monitoring data is received and reviewed by the commission, the commission may be able to consider revisions to the proposed standard permit.

The commission is seeking comments on the inclusion of other appropriate control devices that may be commonly used in the field to specify in §106.533. The commission is specifically soliciting comments on the common availability of thermal control devices equipped with scrubbers to control chlorinated compound emissions to a 95% DRE for remediation at dry cleaner sites.

The commission is requesting feedback on the relative accuracy and cost of the sampling methods and instruments, particularly PIDs and FIDs, for character and quantity of emissions for compliance demonstrations under §106.533.

Subchapter A. GENERAL REQUIREMENTS

30 TAC §106.5

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of 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 repeal is proposed under THSC, Texas Clean Air Act (TCAA), §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed repeal implements TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051, and 382.05196.

§106.5.Public Notice.

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 January 15, 2004.

TRD-200400245

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017

30 TAC §106.50

STATUTORY AUTHORITY

The amendment is proposed under THSC, TCAA, §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed amendment implements TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051, and 382.05196.

§106.50.Registration Fees for Permits by Rule.

(a) A registrant who submits a permit by rule (PBR) registration for review by the commission shall remit one of the following fees with the PI-7 registration form:

(1) $100 for:

(A) small businesses, as defined in Texas Government Code, §2006.001; [ and ]

(B) non-profit organizations; and

(C) [ (B) ] municipalities, counties, and independent school districts with populations or districts of 10,000 or fewer residents, according to the most recently published census; or

(2) (No change.)

(b) This fee does not apply to:

(1) a certification [ PI-7 registration ] submitted solely for the purpose of establishing a federally enforceable emissions limit under §106.6 of this title (relating to Registration of Emissions); [ or ]

(2) a remediation project conducted under §106.533 of this title (relating to Remediation); or [ Water and Soil Remediation) which is reimbursable by the commission. ]

(3) resubmittal of previously reviewed registrations, if received within six months of a written response on the original action.

(c) - (d) (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 January 15, 2004.

TRD-200400246

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017

30 TAC §§106.201 - 106.203

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of 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 repeals are proposed under THSC, TCAA, §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed repeals implement TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051, and 382.05196.

§106.201.Permanent and Temporary Concrete Batch Plants.

§106.202.Temporary Concrete Batch Plants.

§106.203.Specialty Batch Plants.

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 January 15, 2004.

TRD-200400247

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017

30 TAC §§106.491, 106.493, 106.496

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of 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 repeals are proposed under THSC, TCAA, §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed repeals implement TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051, and 382.05196.

§106.491.Dual Chamber Incinerators.

§106.493.Direct Flame Incinerators.

§106.496.Trench Burners.

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 January 15, 2004.

TRD-200400248

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017

30 TAC §106.491, §106.496

STATUTORY AUTHORITY

The new sections are proposed under THSC, TCAA, §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed new sections implement TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051, and 382.05196.

§106.491.Dual-Chamber Incinerators.

(a) Applicability. This section authorizes dual-chambered incinerators that burn only waste generated on-site, or illegal drugs confiscated by federal, state, or local law enforcement agencies. Incinerators used in the processing or recovery of materials or to dispose of pathological waste as defined in §106.494 of this title (relating to Pathological Waste Incinerators), hospital waste, infectious waste, hazardous waste, or radioactive waste are not authorized by this section.

(b) Design requirements. The incinerator must meet the following design requirements.

(1) The incinerator shall be equipped with an afterburner automatically controlled to operate with a minimum temperature of 1,400 degrees Fahrenheit, equipped with a continuous exhaust temperature monitor, and designed and operated with a minimum gas retention time of 0.5 seconds.

(2) The manufacturer's rated capacity (burn rate) shall be 500 pounds per hour or less. Each claim under this section shall address the model of incinerator and specify the types and amounts of waste to be destroyed for determination of a specific unit's appropriate capacity.

(3) Stacks shall comply with the following:

(A) height at least 15 feet from the ground;

(B) height at least six feet above the peak of the highest structure within 150 feet;

(C) located at least 200 feet from nearest property line; and

(D) have unobstructed vertical discharge when the incinerator is operated. Properly installed and maintained spark arresters are not considered obstructions.

(c) Operational limits. The incinerator shall meet the following operational conditions.

(1) This facility shall be used solely for the disposal of waste materials generated on-site and only one of the following:

(A) paper, wood, cardboard cartons, rags, garbage (animal and vegetable wastes as defined in Chapter 101 of this title (relating to General Air Quality Rules)), and combustible floor sweepings; containing overall not more than 10% treated papers, plastic, or rubber scraps. Plastics containing polyvinyl chloride or polyvinyl fluoride are prohibited. Neither garbage content nor moisture content shall exceed 50% and noncombustible solids shall not exceed 10% of total weight; or

(B) drugs confiscated by law enforcement, limited to marijuana, cocaine, opiates, and methamphetamines.

(2) The incinerator shall be operated with the following limits:

(A) cocaine, opiates, and methamphetamines are limited to a burn rate of no more than four pounds per hour (lb/hr) and ten pounds in any eight-hour period. Emissions shall not exceed 0.04 lb/hr for each of these compounds; and

(B) marijuana is limited to a burn rate of no more than 500 lb/hr. Emissions shall not exceed 1.0 lb/hr total inhalable particulate matter (PM ₁₀ ).

(3) Fuel for the incinerator shall be limited to sweet natural gas, liquid petroleum gas, Number 2 fuel oil with less than 0.5% sulfur by weight, or electric power. Products of fuel combustion (sulfur dioxide, nitrogen oxides, and carbon monoxide) and volatile organic compounds are authorized, if the facility is operated in compliance with this section.

(4) The manufacturer's recommended operating instructions shall be posted at the incinerator, and the unit shall be operated in accordance with these instructions. The incinerator shall be operated in accordance with manufacturer's specifications and maintained in good working order.

(5) Visible emissions shall not exceed an opacity of 5.0% averaged over any six-minute period as determined by the United States Environmental Protection Agency Test Method 9.

(d) Compliance and administrative requirements.

(1) Registration. Before construction begins, the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration using Form PI-7, Registration for Permit by Rule.

(2) Waste regulations. Compliance with this section serves as a commission authorization under §330.51 of this title (relating to Permit Application for Municipal Solid Waste Facilities).

(3) State and federal air compliance demonstrations.

(A) Emission limits. Within 180 days of operation, all facilities processing confiscated drugs must provide sampling to demonstrate compliance with the emission limits of this section. Similar facility sampling may be used if the owner or operator provides documentation, including model number, burn rate, materials burned, and all relevant operating conditions, that demonstrates the previously-sampled incinerator is equivalent to the facility to be authorized under this section.

(B) Federal requirements. Registrations shall address the applicability of 40 Code of Federal Regulations (CFR) Part 60, New Source Performance Standards (NSPS), Subpart CCCC, Standards of Performance for Commercial and Industrial Solid Waste Incineration Units, for which construction is commenced after November 30, 1999; or for which modification or reconstruction is commenced on or after June 1, 2000; or 40 CFR 60, Subpart DDDD, Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incinerator Units, that commenced construction on or after November 30, 1999. If determined to be applicable, commercial and industrial solid waste incinerators shall demonstrate compliance with these federal regulations, including initial stack sampling, opacity readings, reporting, and recordkeeping.

(C) State air regulations. Upon the request of the executive director, a designated representative of the commission, or a local air pollution control agency with jurisdiction over the site, compliance with §111.121 and §111.125 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators; and Testing Requirements) shall be demonstrated.

(4) Monitoring. Incinerator operators/owners shall install, calibrate, maintain, and operate a monitoring device that continuously measures and records the temperature of the exhaust gas of the incinerator, in addition to any monitoring required by an appropriate NSPS subpart.

(5) Recordkeeping. Records shall be kept of the type and amount of waste charged/burned; type and amount of fuel usage, including sulfur content for fuel oil; monitoring and testing results; hours of operation; and routine maintenance of abatement systems sufficient to demonstrate each of the requirements listed previously are met. Such records shall be retained for a minimum rolling two-year period and comply with §106.8 of this title (relating to Recordkeeping).

§106.496.Air Curtain Incinerators.

(a) Applicability. The commission encourages the recycling of the materials specified in this section. Composting, mulching, or other processing to produce a useable material can be authorized by §332.8 of this title (relating to Air Quality Requirements). This section authorizes any air curtain incinerator used for the burning of trees, clean lumber, and brush from land-clearing, right-of-way maintenance, emergency clean-up operations, noncommercial industrial sites, and municipal solid waste sites, if operated in accordance with this section.

(b) Scope and terms. The following terms apply only to this section.

(1) Air curtain incinerator (ACI)--An incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor.

(2) Clean lumber--Wood or wood products that have been cut or shaped and includes wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate, copper arsenate, pentachlorophenol, or creosote.

(3) Emergency cleanup--The removal and disposal of wastes resulting from events such as high winds, floods, and other events of nature that are necessary to protect public health and safety.

(4) Land-clearing--The removal of trees, brush, and other vegetative matter from agriculture, forest management, or land development.

(5) Municipal solid waste sites--Landfills that may burn on- or off-site generated waste as specifically authorized by the executive director under §330.4 of this title (relating to Permit Required).

(6) Noncommercial industrial sites--Locations at which on-site generated waste resulting from the processing or manufacturing of products may be burned. This definition does not include sites that accept off-site generated waste for disposal or destruction.

(7) Site--One or more contiguous or adjacent properties that are under common control of the same person, or persons under common control.

(c) Operational limits.

(1) Distance limitations. The ACI must be operated at least 300 feet from the closest property line and any other facility with an air permit authorization under §116.110 of this title (relating to Applicability).

(2) Facility locations. ACIs may not be operated at a given site more than the following.

(A) All facilities may operate up to a total of 500 hours in any rolling 12-month period.

(B) Portable facilities temporarily located at a site may operate up to 180 consecutive calendar days or 500 hours, whichever occurs first. The ACI must be removed from the site after ceasing operation.

(C) Permanent facilities may process materials for municipal solid waste or noncommercial industrial sites only.

(3) Daily operation.

(A) Daily burning must not commence earlier than one hour after sunrise.

(B) Burning must be completed on the same day, not later than one hour before sunset.

(C) Material must not be added to the ACI in such a manner as to be stacked above the air curtain.

(D) An operator must remain with the ACI at all times when it is operating.

(E) The ACI blower must remain on until enough material is consumed so that any remaining material in the trench will not cause smoke that exceeds the requirement of this section when the blower is turned off.

(F) Material not being worked, and material being stockpiled to be burned at a later date, must be kept at least 75 feet from the trench.

(4) Visible emissions.

(A) Visible emissions from an ACI, stockpiles, work areas, and any in-plant roads associated with the facility must not leave the property for a period exceeding 30 seconds in any six-minute period as determined by United States Environmental Protection Agency Test Method 22.

(B) Best management practices must be used to ensure that the ACI blower is operated in a manner to minimize smoke and ash becoming airborne.

(5) Emissions from products of combustion. Products of combustion (sulfur dioxide, nitrogen oxides, and carbon monoxide) and volatile organic compounds are authorized if the facility is operated in compliance with this section.

(6) Compliance. Upon notification by a representative of the commission or any local air pollution control program having jurisdiction that the ACI is not complying with the conditions of this section, additional material must not be added to the ACI until the facility returns to compliance.

(d) Trench burning. An ACI operation using a trench and air manifold system must meet the following conditions.

(1) At all times, trench dimensions must not exceed 12 feet in width, 35 feet in length, and be no less than ten feet in depth, such that the combustion of the materials within the trench is maintained.

(2) The length of the trench must not exceed the length of the air blower manifold.

(3) The walls of the trench must be maintained such that they remain sufficiently vertical to maintain the air curtain.

(4) Upon removal of the ACI from the burn site, ash may be left in the trench, subject to the conditions of this section, and the trench must be completely filled with incombustible material and covered with soil.

(e) Fire box burning. An ACI operation using a manufactured aboveground container and blower system must meet the following requirements.

(1) The interior dimensions of the firebox must not exceed eight feet in width, 35 feet in length, and be no less than six feet in depth.

(2) The walls of the ACI must be maintained such that they remain sufficiently vertical to maintain the air curtain and the combustion of the materials within the ACI.

(3) The air blower manifold length must be equal to the length of the burning area.

(f) Ash processing.

(1) Handling. All ash generated as a result of the operation of an ACI must be handled in accordance with the following requirements:

(A) ash must be removed from the ACI during burning as necessary to maintain efficient combustion;

(B) ash must be removed from the ACI in such a manner as to minimize the ash becoming airborne; and

(C) all material removed from the ACI must be completely extinguished before being disposed of or placed in contact with combustible material, and must be stored in a manner that does not constitute a fire hazard or allow the material to smolder or burn outside of the ACI.

(2) Disposal. The ash generated from an ACI operated under this section must be disposed of by one of the following methods:

(A) buried on-site in an ACI trench, if deed recorded and a copy of the document is provided to the executive director as required by §330.7 of this title (relating to Deed Recordation);

(B) sent to a Type I landfill, if the ash is containerized and no hot coals are present; or

(C) beneficially used, if the use is determined to be acceptable by the executive director in accordance with §330.8 of this title (relating to Notification Requirements).

(g) Other requirements.

(1) Local restrictions. This section does not exempt ACIs from any local government regulations or other local government requirements, permits, registrations, or other authorizations required by local authorities.

(2) State air regulations. This section does not exempt ACIs from compliance with any additional state air regulations.

(3) Federal air requirements. Registrations for permanent ACIs shall address the applicability of 40 Code of Federal Regulations (CFR) 60, Subpart CCCC, Standards of Performance for Commercial and Industrial Solid Waste Incineration Units. If determined to be applicable, commercial and industrial solid waste incinerators shall demonstrate compliance with these federal regulations, including initial stack sampling, opacity readings, reporting, and recordkeeping.

(4) State waste regulations.

(A) Landfill sites:

(i) ACIs located at a landfill require separate authorization by the executive director in accordance with §330.4 of this title (relating to Permit Required); and

(ii) below-ground ACIs must be located in undisturbed soil not previously excavated, built up, compacted, or used in any type of active landfill operation.

(B) Ash disposal. For materials authorized to be burned under this section and the resulting ash from ACIs, categorized as municipal solid waste as defined in §330.2 of this title (relating to Definitions), compliance with this section serves as a commission authorization to store, process, remove, and/or dispose of the ash resulting from the operation of ACIs as required by §330.4(a) of this title.

(5) State water regulations. Nothing in this section removes the responsibility of the owner/operator from obtaining any necessary authorization under Chapter 308 of this title (relating to Criteria and Standards for the National Pollutant Discharge Elimination System).

(h) Administrative.

(1) Multiple locations at a single site. Multiple ACI locations for a single facility at a given site may be combined into a single registration if all operating restrictions are complied with for individual ACI locations at the site.

(2) Registration.

(A) ACIs must be initially registered with the executive director using the core data form and Form PI-7.

(B) Re-registration is required when any notice of enforcement is issued by the commission, or delegated representative, to the owner or operator of an ACI facility or every five years, whichever occurs first.

(C) Any ACI used for emergency clean-up operations does not require registration, but the owner or operator must meet the notification requirements of this section except for the 14-day prior notice requirement.

(D) Registration reviews will include site approval and a compliance history evaluation in accordance with Chapter 60 of this title (relating to Compliance History).

(3) Notification. Notifications are not subject to the requirements of §106.50 of this title (relating to Registration Fees for Permits by Rule) or Chapter 60 of this title.

(A) The owner or operator of an ACI that has previously been registered with the executive director in accordance with this section and is being relocated to a new site, other than a landfill, must notify the appropriate regional office and any local air pollution control agency having jurisdiction over the site.

(B) Notifications must be in writing using the regional standard permit/permit by rule relocation form, include a return receipt, and be received by the regional director at least 14 calendar days prior to locating at the site.

(4) Records. To demonstrate compliance with this section and §106.8 of this title (relating to Recordkeeping), owners or operators of ACIs must, at a minimum, meet the following requirements.

(A) The ACI must be equipped with a run time meter. A written record or log of the hours of operation of the ACI must be maintained at the site and made available at the request of personnel from the commission or any air pollution control program having jurisdiction. This run time record or log must be organized such that compliance with the requirements of this section can be readily determined.

(B) Records must be kept to demonstrate compliance with all operational or location requirements of this section. These records must include a copy of the return receipt demonstrating notification to the appropriate regional office and local air pollution control programs having jurisdiction, and plot plans showing distance limits are met.

(C) A copy of this section and any operating instructions must be kept at the burn site and made available at the request of personnel from the commission or any local air pollution control program having jurisdiction.

(D) The ACI shall be clearly and permanently marked with the regulated entity (preferred) or account identification number on the fan manifold or aboveground unit.

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 January 15, 2004.

TRD-200400249

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017

30 TAC §106.533

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of 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 repeal is proposed under THSC, TCAA, §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed repeal implements TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051 and 382.05196.

§106.533.Water and Soil Remediation.

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 January 15, 2004.

TRD-200400250

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017

30 TAC §106.533

STATUTORY AUTHORITY

The new section is proposed under THSC, TCAA, §382.011, which authorizes the commission to administer the requirements of the TCAA; §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state air; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; §382.057, which authorizes the commission to exempt from permitting, changes within any facility which would not make a significant contribution of air contaminants to the atmosphere; §382.051, which authorizes the commission to issue permits for construction of facilities which emit air contaminants; and §382.05196, which authorizes the commission to adopt permits by rule for types of facilities which would not make a significant contribution of air contaminants to the atmosphere.

The proposed new section implements TCAA, §§382.011, 382.012, 382.017, 382.057, 382.051, and 382.05196.

§106.533.Remediation.

(a) Applicability. Equipment used to extract, handle, process, condition, reclaim, or destroy contaminants for the purpose of remediation is permitted by rule, provided that all the following conditions of this section are satisfied.

(b) Scope. The following terms apply to this section.

(1) Affected property--The entire area, including on-site and off-site and including all environmental media, that contains releases of chemicals of concern.

(2) Affected sources--Include, but are not limited to, stockpiles of contaminated/remediated materials/soils and surface impoundments.

(3) Dry cleaning compounds--Include the following chlorinated and non-chlorinated dry cleaning solvents used in the cleaning of garments or other fabrics:

(A) perchloroethylene, also known as tetrachloroethylene, and its degradation products, including trichloroethylene, 1,2-dichloroethylene, and vinyl chloride;

(B) petroleum-based solvents such as Stoddard Solvent, naphtha, and other petroleum distillates;

(C) hydrocarbons and synthetic hydrocarbons such as DF-2000TM fluid, EcoSolv ^TM , PureDryTM , or the equivalent;

(D) silicone-based solvents containing decamethylcyclopentasiloxane; and

(E) other nonaqueous solvents such as carbon tetrachloride, dipropylene glycol tertiary butyl ether, 1,1,1-trichloroethane, and 1,1,2-trichloro-1,1,2-trifluoroethane.

(4) Effects screening levels (ESLs)--Used by the commission to evaluate the potential for effects that may occur as a result of exposure to concentrations of constituents in the air. ESL updates, published periodically, were last revised October 1, 2003.

(5) Facility--A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source. Once a remediation facility is at a site, all remediation equipment and related sources are covered by this section. Facilities include, but are not limited to, control devices, tanks, containers, liquid separators, material transfer systems, vacuum pumps, and associated components and connecting piping.

(6) Off-site receptor--Any recreational area, residence, commercial/industrial facility, or other structure not occupied or used solely by the owner or operator of the facilities or the owner of the property upon which the facilities are located. Measurements of distances to determine compliance with this distance restriction shall be taken toward structures that are in use as of the date that a notification is filed with the commission.

(7) Petroleum compounds--Solids, liquids, or gases produced from natural formations of crude oil, tar sands, shale, coal and natural gas; or refinery fuel products (which may contain additives).

(8) Remediation--An act or process taken to reduce or eliminate contaminants in the environment. This process may include, but is not limited to, assessment or treatment activities such as air, soil, or water sampling, or pilot tests, treatment, or post-clean-up activities that use facilities.

(9) Site--One or more contiguous or adjacent properties that are under common control of the same person, or persons under common control.

(c) General requirements. The following general requirements apply to this section.

(1) Applicability. This section covers only remediation performed at the affected property or site where the original contamination occurred, or at a nearby site secondarily affected by the contamination. This section does not cover any treatment facility where materials are brought in from another site. Such treatment facilities are subject to §116.110 of this title (relating to Applicability) and must obtain an air new source review permit.

(2) Contaminants. The identification of the contaminants at a site shall be accomplished using the methodology specified by the applicable remediation program and the United States Environmental Protection Agency (EPA) or commission-approved method.

(3) Controls. The selection of appropriate equipment for remediation and control of a site, at a minimum, shall meet the methodology approved by the applicable remediation program (e.g., Petroleum Storage Tank (PST) Program, Voluntary Cleanup Program, Superfund, etc.).

(4) Elevated vents. The height of any vents associated with the remediation shall be at least ten feet above ground level.

(5) Nuisance. The handling, processing, and stockpiling of any materials associated with facilities under this section shall not cause a nuisance as defined in §101.4 of this title (relating to Nuisance).

(6) Operations. Wherever this section specifies that an action be performed periodically (e.g., weekly), the requirement applies only when the equipment is in operation for that period.

(7) Spills. Air emissions resulting from emergency containment and removal of soil or water from spills must comply with Chapter 101 of this title (relating to General Air Quality Rules) and are not authorized by this section.

(8) Visible emissions. The handling, processing (screening, crushing, etc.), groundwater air stripping, and stockpiling of contaminated soil and the handling, stockpiling, in-situ chemical oxidation of groundwater and soils and conditioning (adding moisture) of remediated soil shall be controlled such that there are no visible emissions leaving the property for a period exceeding 30 seconds in any six-minute period as determined by EPA Test Method 22.

(d) Requirements for sites contaminated only with petroleum compounds. For the remediation of sites contaminated only with petroleum compounds, the following requirements shall be met.

(1) For locations with an off-site receptor within 100 feet:

(A) if a control device meeting the conditions of subsection (g) of this section is used, the total emissions from all point sources must meet the following emission limits:

(i) total petroleum hydrocarbons shall not exceed 1.0 pound per hour (lb/hr);

(ii) the benzene component shall not exceed 0.1 lb/hr; and

(iii) the hydrogen sulfide component (for non fuel-dispensing sites) shall not exceed 0.1 lb/hr; and

(B) if remediation is uncontrolled, the total emissions from all point sources must meet the following emission limits:

(i) the total petroleum hydrocarbons shall not exceed 0.1 lb/hr;

(ii) the benzene component shall not exceed 0.01 lb/hr; and

(iii) the hydrogen sulfide component (for non fuel-dispensing sites) shall not exceed 0.01 lb/hr.

(2) For locations with equal to or greater than 100 feet to the nearest off-site receptor, emissions from all point sources are limited to the following:

(A) total petroleum hydrocarbons are limited to 1.0 lb/hr;

(B) the benzene component must meet the emissions and distance requirements of §106.262 of this title (relating to Facilities (Emission and Distance Limitations));

(C) the hydrogen sulfide component (for non fuel-dispensing sites) must meet the emissions and distance requirements of §106.262 of this title;

(3) For all sites regulated by this section and as required by the agency's PST remediation and/or reimbursement requirements, sampling and lab analysis of influent and effluent vapors must be performed at least monthly to demonstrate compliance with the control equipment efficiency and/or emission rate limits of this section, and with any related PST requirements, unless an alternative evaluation method is approved by the applicable agency remediation program.

(e) Requirements for sites contaminated only with dry cleaning compounds. For the remediation of sites contaminated only with dry cleaning compounds, the following requirements shall be met.

(1) For locations with an off-site receptor within 100 feet, emissions of each individual compound from all point sources shall meet the following emission limits:

(A) if a control device meeting the requirements of subsection (g) of this section is used, §106.261 of this title (relating to Facilities (Emission Limitations)) or §106.262 of this title (assuming 100 feet), whichever is more stringent;

(B) if remediation is uncontrolled, 10% of the values determined by subparagraph (A) of this paragraph;

(C) the maximum allowable emission rate limit for any individual compound shall be 0.04 lb/hr, regardless of control method unless §106.261 or §106.262 of this title specify a higher emission rate.

(2) For locations with equal to or greater than 100 feet to the nearest off-site receptor, emissions of each individual compound from all point sources shall meet the emissions and distance requirements of §106.261 and §106.262 of this title. The maximum emission rate limit for any individual compound shall be 0.04 lb/hr, regardless of control method unless §106.261 or §106.262 of this title specify a higher emission rate.

(3) If a control device is needed to meet the emission limits of this section, only a carbon adsorption system that meets the requirements of subsection (g) of this section shall be used.

(4) Additional technical and administrative requirements for the remediation of dry cleaning sites may be found in Texas Health and Safety Code, §§374.001 - 374.253.

(f) Requirements for all other sites. For the remediation of sites not covered by subsections (d) or (e) of this section, the following requirements shall be met.

(1) The site-wide emission rates are limited to the following requirements.

(A) Hourly emissions of each individual organic and inorganic compound from all point sources (other than products of combustion) shall meet the most stringent of the following:

(i) §106.261 of this title;

(ii) §106.262 of this title; or

(iii) if not specifically listed in §106.262 of this title and the ESL list effective date October 1, 2003 has a short-term ESL for the compound of less than or equal to 100 micrograms per cubic meter (µg/m3 ) but greater than or equal to 2 µg/m ³ , emissions may not exceed 0.04 lb/hr. If the short-term ESL for the compound is less than 2 µg/m ³ , emissions may not exceed 0.01lb/hr.

(B) Total annual emissions of each organic or inorganic compound are limited to five tons per year.

(2) If a control device is needed to meet the emissions limits of this section, the device must satisfy the appropriate conditions listed under subsection (g) of this section.

(3) All emission points and area sources associated with the remediation shall be located at least 100 feet from any off-site receptor.

(g) Control devices. When a control device is used at a site, the device must satisfy one of the following conditions. If a thermal control device is used, the products of fuel combustion (nitrogen oxides, sulfur dioxide, carbon monoxide, volatile organic compounds (VOC), or total inhalable particulate matter) are authorized if the facility is operated in compliance with this section.

(1) Direct-flame combustion. The vapors may be burned in a direct-flame combustion device (incinerator, furnace, boiler, heater, or other enclosed direct-flame device) that meets the following requirements.

(A) Design requirements. Each direct-flame combustion device shall be automatically controlled to maintain a minimum temperature of 1,400 degrees Fahrenheit or higher in the combustion chamber (secondary chamber, if dual-chambered) and have a gas retention time of 0.5 second or greater.

(B) Operational restrictions. The temperature of the device must be maintained at a minimum of 1,400 degrees Fahrenheit.

(C) Compliance demonstrations. Continuous temperature monitors to record the temperature of the combustion chamber (secondary chamber, if dual-chambered) shall be installed and maintained. Records of temperature data shall be maintained.

(2) Flare. The vapors may be burned in a flare that meets the following requirements.

(A) Design requirements.

(i) The flare shall be equipped with a flare tip designed to provide good mixing with air, flame stability, and meet the most stringent of either §106.492 of this title (relating to Flares); or 40 Code of Federal Regulations (CFR) §60.18, General Control Device Requirements.

(ii) The flare shall be equipped with a continuously burning pilot or other automatic ignition system that assures gas ignition and provides immediate notification of appropriate personnel when the ignition system ceases to function.

(B) Operational restrictions. Under no circumstances shall liquids be burned in the flare.

(C) Compliance demonstrations. Visible emissions shall not be permitted for more than five minutes in any two-hour period.

(3) Catalytic oxidizer. The vapors may be burned in a catalytic oxidizer that meets the following requirements.

(A) Design requirements. The design destruction efficiency of the catalytic oxidizer shall be at least 90% for the contaminants at the site.

(B) Operational restrictions. The appropriate catalyst shall be used depending on type of contaminants in accordance with the manufacturer's guidelines.

(C) Compliance demonstrations. An evaluation of oxidizer effectiveness shall be made initially (within two hours of startup), and at least weekly, using a portable flame ionization detection (FID) or photo-ionization detector (PID) in conjunction with a flow meter to determine the quantity of carbon compounds in the inlet and outlet of the catalytic oxidizer and to demonstrate compliance with the emission rate limits of this section. The FID or PID instrument chosen must be capable of properly detecting the types of contaminants present. Records of oxidizer performance shall be maintained.

(4) Internal combustion engine. The vapors may be burned in an internal combustion engine that meets the following requirements.

(A) Design requirements. The design destruction efficiency of the internal combustion engine shall be at least 99% for the contaminants at the site.

(B) Operational restrictions. Chlorinated or sulfur compounds should not be burned in these facilities.

(C) Compliance demonstrations. An evaluation of engine effectiveness shall be made initially (within two hours of startup) and at least weekly, using a PID or FID in conjunction with a flow meter to determine the quantity of carbon compounds in the inlet gas stream and the engine exhaust, and to demonstrate compliance with the emission rate limits of this section. The FID or PID instrument chosen must be capable of properly detecting the types of contaminants present. Records of engine performance shall be maintained.

(5) Carbon adsorption system. The vapors may be routed through a carbon adsorption system (CAS) consisting of at least two activated carbon canisters that are connected in series. The system shall meet the following additional requirements.

(A) Design requirements. Prior to the use of a CAS at a site, there shall be a demonstration that activated carbon is an appropriate choice for control of the contaminants at the site.

(B) Operational restrictions. The CAS system should be operated to minimize breakthrough and maintain compliance with the emission limits of this section. When the VOC breakthrough is detected in the outlet of the initial canister, the waste gas flow shall be switched to the second canister immediately. Within four hours of detection of breakthrough, a fresh canister shall be placed as the new final polishing canister. Sufficient fresh activated carbon canisters shall be maintained at the site to ensure fresh polishing canisters are installed within four hours of detection of breakthrough.

(C) Compliance demonstrations.

(i) The CAS shall be sampled initially (within two hours of startup) and periodically to determine breakthrough. Breakthrough is defined as a measured VOC concentration of 50 parts per million by volume (ppmv) in the outlet of the initial canister. The sampling point shall be at the outlet of the initial canister, but before the inlet to the second or final polishing canister. Sampling shall be performed while venting maximum emissions to the CAS (e.g., during loading of tank trucks, during tank filling, during process venting). The CAS shall be monitored on a weekly basis or 20% of the design carbon replacement interval, whichever is less.

(ii) An FID or PID instrument capable of properly detecting the types of contaminants present shall be used for VOC sampling.

(iii) At dry cleaning remediation sites, additional sampling to determine total organics and speciated chlorinated compounds is required initially (within two hours of startup) and at least monthly.

(h) Fugitive emissions and uncontrolled remediation. In the cases where emission releases are not directly emitted from a control device or stack which can be sampled, compliance must be demonstrated by the use of a PID or FID initially and at least on a weekly basis. The FID or PID instrument chosen must be capable of properly detecting the types of contaminants present. The concentration measured must be equal to or less than the specific air contaminant's ESL. Measurement should occur as close as possible to the remediation activity, but no further away than the nearest property line.

(i) Other regulatory requirements.

(1) Voluntary Cleanup Program. A state or local permit is not required for remediation conducted on a site as part of a voluntary cleanup. A voluntary cleanup shall be coordinated with ongoing federal and state hazardous waste programs. The persons conducting a voluntary cleanup shall comply with any federal or state standard, requirement, criterion, or limitation that the remediation would otherwise be subject if a permit were required (see Texas Health and Safety Code, §361.611).

(2) Superfund Cleanup Program. A state or local permit is not required for remediation conducted on a site as part of a Superfund project. A Superfund project shall be coordinated with ongoing federal and state hazardous waste programs. The persons conducting a cleanup shall comply with any federal or state standard, requirement, criterion, or limitation that the remediation would otherwise be subject if a permit were required (see Texas Health and Safety Code, §361.196).

(3) Local restrictions. This section does not exempt these facilities from any local government regulations or other local government requirements, permits, registrations, or other authorizations required by local authorities.

(4) State regulations. This section does not exempt remediation equipment from any additional state regulations.

(5) Federal air regulations. Compliance with all applicable federal requirements must be satisfied, including air standards and requirements for hazardous air pollutants under 40 CFR Part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories, Subpart GGGGG, Remediation. To be applicable to this standard, also known as the maximum achievable control technology (MACT) standard, sources must meet all of the following criteria:

(A) the site is not a gasoline dispensing location;

(B) the site is a major source of hazardous air pollutants;

(C) a non-remediation MACT activity is performed at the site; and

(D) a remediation activity is conducted at the site.

(j) Administrative requirements.

(1) Notification. Before starting remediation (pilot test or treatment), the facility shall notify the commission in writing using the Standard Permit/Permit by Rule Relocation Form.

(A) The notification is not subject to the requirements of §106.50 of this title (relating to Registration Fees for Permits by Rule).

(B) Notifications must be sent to the appropriate commission regional office, any local air pollution control program with jurisdiction, and appropriate remediation program. Notifications must include a return receipt of delivery.

(C) Pilot test notifications shall be received by the executive director prior to commencement of activities.

(D) Updated or additional notification shall be received by the executive director prior to commencement of treatment activities and shall contain specific information concerning the basis (measured or calculated) for the expected emissions from the facility. The notification shall also explain details as to why the control device can be expected to perform as represented.

(E) Any remediation project that changes or eliminates a represented control device during the lifetime of the project must update the executive director by filing an amended notification as soon as practicable after the change and after confirmation with the appropriate remediation program.

(2) Records. To demonstrate compliance with this section and with §106.8 of this title (relating to Recordkeeping), owners and operators of remediation equipment must, at a minimum, meet the following requirements.

(A) Records required by this section shall be maintained at the site or at the nearest staffed location, and made available upon request to personnel from the commission or any local agency having jurisdiction.

(B) The following minimum records of sampling or monitoring shall be maintained:

(i) sample time and date;

(ii) monitoring results (ppmv);

(iii) corrective action taken, including the time and date of the action;

(iv) process operations occurring at the time of sampling;

(v) records of compliance with the emission rate limits of this section;

(vi) a record of the demonstration that the chosen control method is an appropriate choice for the site; and

(vii) record of the return receipt demonstrating notification to the appropriate regional office and local air pollution control programs having jurisdiction.

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 January 15, 2004.

TRD-200400251

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: February 29, 2004

For further information, please call: (512) 239-5017