Measurements with a PID or FID should occur as close as possible to the remediation activity, but no further away than the closest property line. It is the commission's intent that where no controls are being used remediation stop immediately if readings exceed ESL levels. The PID and FID measurements are required to provide a practically enforceable mechanism to demonstrate compliance. If ESL levels are exceeded, it is expected that additional corrective action and control devices be used prior to resuming the remediation project to ensure that the PBR is protective.

Adopted new §106.533(i) describes all other state and federal regulatory requirements and obligations typically applicable to remediation projects and facilities. Common programs such as Voluntary Cleanup and Superfund 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 a future rulemaking. 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 also lists federal air quality requirements that may be applicable to remediation sites. Title 40 CFR Part 63, National Emissions Standards for Hazardous Air Pollutants (HAP) for Source Categores, Subpart GGGGG, National Emissions Standards for Hazardous Air Pollutants: Site Remediation (effective date October 8, 2003) has been promulgated by the EPA and will affect a small portion of remediation projects by limiting emissions of hazardous air contaminants. In response to comments received, the commission adopts this section with a reference to Subpart GGGGG and removed the paraphrased applicability.

Adopted new §106.533(j) includes administrative provisions for the operation of remediation facilities. To minimize the number of registration reviews, the commission is requiring that facilities need only notify the appropriate regional office, any local air pollution control agency having jurisdiction over the site, and the appropriate remediation program coordinator. Notifications must be in writing using the Regional Standard Permit/Permit by Rule Relocation Form, include a return receipt, and should be received by the regional office, local air pollution control programs, and remediation programs prior to facilities being constructed at the site. Advance notification is needed to ensure that if additional information is needed, or to address other concerns which may occur as a result of the project, that the regional office, local programs, or remediation coordinator have sufficient advance notice to ask questions or obtain additional information prior to commencement of activities. In response to comments received, the commission adopts this section with changes regarding specification of which parties receive the different notices/information and the timing of updates when a control device is eliminated. Also, this section was changed with regard to the language pertaining to local programs to make it consistent with §106.491.

Notifications are not subject to the requirements of §106.50 or Chapter 60. The notification of any particular remediation project is streamlined through this adoption, as owners and operators initially notify the commission regional office, local programs, and remediation coordinator when initiating pilot tests with associated facilities; follow up with detailed emissions expectations and controls for treatment; and update when the concentration of emissions decreases to allow changes or elimination of control devices. This provision is intended to simplify the associated paperwork for remediation projects under the PBR, since the previous PBR required registration whenever a new facility was constructed at a remediation project and resulted in significant unnecessary paperwork requirements. The commission also added subsection (j)(1) as an option that notifications for multiple sites which are related to a single affected property with soil or water contamination may be submitted at the same time to reduce confusion and redundancy.

To ensure a practical enforcement mechanism that is consistent with remediation programs, adopted new §106.533(j)(2) also includes 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, any local air pollution control agency having jurisdiction over the site, the appropriate remediation program coordinator. Additionally, the commission adopts this section with minor administrative changes.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted 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 adopted 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 a distance of less than 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 adopted 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 adopted rulemaking is not subject to the regulatory analysis provisions of §2001.0225(b), because the adopted rules do not meet any of the four applicability requirements. The commission invited, but received no public comment regarding the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

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

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted 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, therefore, required that goals and policies of the Texas Coastal Management Program (CMP) were considered during the rulemaking process. The commission reviewed this action for consistency and determined that the adopted rules do not impact any CMP goals or policies. The adopted 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. No comments on the consistency of this rulemaking were submitted during the comment period.

PUBLIC COMMENT

A public hearing on this proposal was held on February 26, 2004, and the public comment period closed on March 1, 2004. No comments were received at the public hearing. The commission received written comments on the rule proposal from the United States Environmental Protection Agency, Region 6 (EPA); Harris County Public Health & Environmental Services Pollution Control Division (HCPCD); the Houston Regional Group of the Sierra Club (Sierra Club); Birch & Becker, L.L.P. on behalf of Crochet Equipment Company (Crochet); H & V Equipment Services (H&V); Air Burners LLC (Air Burners); Cecil M. Hopper Contractor (Hopper); the Texas Chemical Council (TCC); Union Carbide Corporation, a subsidiary of The Dow Chemical Company (Dow); Texas Oil & Gas Association (TxOGA); and the United States Department of Energy, National Nuclear Security Administration, Pantex Site Office (Pantex).

RESPONSE TO COMMENTS

Subchapter A - General Requirements: §106.5, Public Notice

EPA supported the repeal of §106.5, but requested clarification on §106.5(a) which appears to apply to all registrations under Chapter 106, not only concrete batch plants, and requested the basis for why the public notice requirements are limited only to concrete batch plants. Additionally, if §106.5 is applicable to other PBRs, EPA requested information on how this section is used, the type of applicable registrations, if it is applicable to §106.6 and notes if §106.5 is applicable to other PBRs it should not be repealed.

The commission appreciates the support to repeal §106.5 and clarifies that the public notice requirements of §106.5 apply only to concrete batch plants and does not apply to 106.6. Under Texas Health and Safety Code, §382.058, concrete batch plant PBRs are subject to notice and opportunity for hearing provisions. The concrete batch plant PBR was the only PBR in Chapter 106 that required public notice. Section 106.5(a) specified which version of the public notice requirements for concrete batch plants was applicable. With the creation of the concrete batch plant standard permit, concrete batch plants are no longer being authorized by a PBR under Chapter 106. The public notice requirements for concrete batch plants are now contained in the standard permit; therefore, §106.5 is no longer needed.

Subchapter B - Registration Fees for New Permits by Rule: §106.50, Registration Fees for Permits by Rule

EPA commented that §106.50, when originally adopted by the commission on September 25, 2002, was submitted by the commission as a SIP revision on October 4, 2002 and amendments to this section should also be submitted as a revision to the SIP, or, as an alternative, the commission should withdraw this section as a part of the SIP submittal of October 4, 2002.

The commission appreciates EPA's comment and will reevaluate whether §106.50 should remain in the SIP. A separate rulemaking action may be used to submit the revised §106.50 as a SIP revision, or §106.50 may be withdrawn from the October 2002 SIP submittal.

Sierra Club commented that PBR fee payments should be based on the amount of materials and personnel time that it takes the commission to process a PBR and that organizations that cannot afford permit fees may not be able to operate sophisticated pollution control equipment. Sierra Club opposes fee reduction for nonprofit organizations.

The commission appreciates Sierra Club's comment regarding fee reduction. PBR registrations requested by nonprofit organizations do not account for a significant volume compared to the total of all PBR registrations. Also, nonprofit organizations typically do not register for PBRs that require a lengthy review. Additionally, the rule currently allows for reduced fees for other entities that may be adversely affected by permitting fees, such as municipalities. Consequently, the commission believes that reduction of fees for nonprofit organizations will not adversely affect agency resources and is an appropriate consideration of applicants that have limited resources. Finally, the commission maintains that fees associated with PBR registration are not inherently tied to the ability to operate the piece of equipment being registered. Therefore, no changes were made to §106.50 in response to this comment.

Sierra Club opposed the elimination of fees for remediation projects because large companies could use this fee elimination to avoid the costs of PBR fees that they should rightfully bear.

The commission considered this comment, but notes in §106.533, registration and review is not required for remediation projects. Instead, these facilities are only required to notify the regional office, local programs, and remediation coordinator; thus agency costs have been substantially reduced, eliminating the need for a fee to be submitted. No changes were made in response to this comment.

Subchapter V - Thermal Control Devices: §106.491, Dual Chamber Incinerators

Sierra Club cautioned the commission to work with law enforcement agencies to make sure that they comply with the law, stating that law enforcement agencies have limited knowledge about operating a sophisticated piece of air pollution control equipment like an incinerator.

The commission appreciates Sierra Club's concerns regarding the operation of incinerators. The commission believes that such units are not particularly difficult to operate and the controls are not overly sophisticated. The commission included provisions stating that instructions for operation must be posted near the equipment and determined that this is sufficient. No changes were made to this section in response to this comment.

Sierra Club supported the requirements for a continuous exhaust temperature monitor; that each registration address the appropriate charge capacity of a given model of incinerator; the material and types and amounts that will be burned; minimum incinerator stack height; minimum distance to a property line; the proper installation, calibration, and monitoring of the incinerator temperature on a continuous basis; the minimum 1,400 degree Fahrenheit temperature in the secondary chamber; and the proposed recordkeeping requirements. In addition, Sierra Club supported the prohibition of the burning of polyvinyl chloride plastics and fluoride containing materials, the limits on the number of pounds of certain drugs that can be burned at one time, and the setting of emission limits for incinerators that burn drugs.

The commission appreciates the support of the Sierra Club on these matters and requirements.

Sierra Club supported limiting opacity to 5% and recommended that an even lower opacity limit of zero be used.

The commission responds that the 5% opacity requirement is consistent with existing regulations regarding incinerators in §111.121(5) and additional restrictions beyond these requirements are not justified; therefore, no changes were made to this section in response to this comment.

Sierra Club strongly recommended that language be inserted into the rules that address the differences in charge rate and percent of material type that will go through an incinerator when determining whether the use of a stack test conducted on a different incinerator is appropriate.

The commission responds that the adopted section includes requirements that the sampled facility demonstrate equivalency with regard to all relevant operating conditions, including design, model number, burn rate, and materials in the incinerator. As these reports are submitted, they will be evaluated for compliance with these requirements. No changes to this section were made in response to this comment.

Subchapter V - Thermal Control Devices: §106.493, Direct Flame Incinerators

Sierra Club supported the elimination of PBR authorization for single-chambered incinerators.

The commission appreciates the support of this rule change.

Subchapter V - Thermal Control Devices: §106.496, Air Curtain Incinerators

Sierra Club opposed a PBR for trench burners, recommended that the PBR be eliminated, and stated that an air curtain destructor is not best available control technology (BACT). Sierra Club stated that air curtain destructors are equivalent to a single-chambered incinerator, and because the commission proposed to eliminate air authorization for single-chamber incinerators, this PBR should be eliminated as well. Sierra Club also pointed out that these devices contribute to ozone problems in areas such as Houston/Galveston, and frequently are not operated properly, causing additional nuisance concerns.

The commission encourages recycling and other methods of disposal, but realizes those methods are not always practical. Disposal on site eliminates the need to truck debris to landfills, preserving capacity and reducing emissions from trucks. Burning in a controlled situation remains the most viable option in many cases and is an important option for local governments when cleanup is required following a natural disaster. Also, to help ensure no adverse off-property effects and to reduce the potential for nuisance, this PBR includes conditions such as work practices, distance requirements, and operating time limitations. Due to the operational limitations included in this PBR, the commission does not expect the emissions from ACIs to make a significant contribution to the ozone problem in the Houston/Galveston area. Additionally, PBRs are not required to apply BACT by Texas Health and Safety Code, Chapter 382. No changes to the rules were made in response to this comment and §106.496 will not be eliminated in this action.

Crochet supported the commission's streamlining of PBR requirements and the inclusion of new aboveground burner facilities as well as efforts to minimize registration requirements and make the process more consistent and predictable for both the regulated community and the permitting and compliance programs of the commission.

The commission appreciates the support of this rule change.

HCPCD noted that the proposed changes to §106.496 address some shortcomings in the current PBR, but expressed concerns over other portions of the proposed section, including issues that need clarification from a local agency enforcement perspective. One of the general concerns is the perceived weakening of this PBR by the use of the term "must." HCPCD suggested that the term should be replaced by "shall" throughout the PBR.

Senate Bill 884, 75th Legislature, amended Government Code, §311.016 to define certain constructions, including terms such as "must" and "shall." "Shall" imposes a duty and "must" is used to create or recognize a condition precedent. The structure of the rules in this rulemaking indicates a condition precedent; that is, in order to be authorized to operate under the PBR, certain conditions must occur. No changes to the rules were made in response to this comment. Crochet and Hopper commented that the scope and uses of this PBR are unclear when referring to landfill sites. Crochet suggested alternative language for subsections (a) and (c)(2)(C) and suggested alternative language to clarify the intent and scope for the materials and uses of this section, including referencing 40 CFR §60.2245. Crochet also requested clarification of what, if any, corresponding Municipal Solid Waste (MSW) permit authorization would be required if this PBR authorizes an ACI to be located at the same site, but in an inactive portion of an MSW site. Specifically, this section would be a change to the current MSW rules and guidance and the impacts of this PBR are uncertain when considering this conflict.

The commission determined that that the routine burning of wood waste, clean lumber, and yard waste in accordance with specified time limits is acceptable under the conditions of 40 CFR §60.2245 and added this reference to the section. However, the commission determined that, due to consideration of potential landfill fires that could be caused by on-site flames or sparks, the siting of ACIs on or near a closed or operating landfill cannot be authorized except on a case-by-case MSW permitting basis when it can be demonstrated that a potential for a methane explosion and resulting landfill fire does not exist.

Crochet recommended that this PBR be revised to defer to the federal rules of 40 CFR 60, Subpart CCCC requirements, an approach taken by other states and indicated in a letter to EPA, Region 6, from the commission executive director on October 15, 2002 that indicated that the MSW rules will be updated to be consistent with the NSPS requirements.

The commission responds that the purpose of the PBR is to provide a streamlined mechanism for obtaining air permitting authorization to construct ACIs, which is a separate air permitting requirement from 40 CFR Part 60, Subpart CCCC. The PBR must include a health impacts review, which is not included under 40 CFR Part 60, Subpart CCCC. While no changes to the rules are being made in response to these comments, after this rulemaking the commission plans to consider amendments to the MSW regulations concerning the use of ACIs and trench burners to conform with the regulations adopted in this rulemaking.

HCPCD and Hopper suggested alternative distance limitations. Hopper noted that 500 feet to the nearest receptor would be appropriate. HCPCD commented that the change to subsection (c)(1) will require 300 feet to the nearest property line, instead of the nearest structure and noted that while the intent appears to increase the distance to off-site receptors, there may be occasions where this change may restrict facility placement at small sites and decrease the distance to off-site receptors in order to meet these requirements. HCPCD suggested that the commission needs to provide for operators to select a location that maximizes distance to off-site receptors. HCPCD also stated its belief that the proposed distance limitation is designed to be protective of human health and welfare, but that the emissions evaluation performed was at steady-state conditions and did not fully account for the dust and smoke generated from startup and ash removal, which in HCPCD's experience, have the highest probability of a nuisance and that impacts occur well beyond 300 feet; therefore, this section as proposed is not protective. HCPCD recommended that the commission review impacts from startup and ash removal and correspondingly establish distance limitations based on this analysis, and, at a minimum, recommended the distance limitation of 1/4 mile to off-site receptors (as was required in SE Number 114 dated September 23, 1982), which in its opinion would virtually eliminate off-site impacts and nuisance violations.

The commission reviewed the emissions and predicted impacts from ACIs during active burning, as well as considered smoldering, using the most current available information to demonstrate compliance with the particulate matter property line standards of §111.155. These property line standards are intended to ensure that no nuisances occur. Based on the commission's observations of ACIs that are properly operated and in accordance with the conditions of this section, the commission is confident that these facilities will comply with all rules, regulations, and the intent of the Texas Clean Air Act (TCAA). No changes were made to the rule in response to these comments.

HCPCD requested clarification on the distance limitations in subsection (c)(1) as to whether they would apply to another ACI at the same site.

The commission amended the conditions of this section to clarify that the distance limitations apply to any ACIs, as well as any other permitted facility, located on a single site.

Crochet and Air Burners provided additional information in response to the request from the commission regarding the emission factors for particulate matter emissions generated from the operation of ACIs and expressed concerns that the information considered by the commission as described in the proposal preamble is not representative of the aboveground equipment. Crochet noted the conservative factors used to estimate worst-case emissions for traditional trench burner operations do not reflect those from aboveground units with refractory walls and floors, over-fire air curtains, and, in some cases, under-fire supplemental air to enhance complete combustion. Crochet supplied data and sampling summaries that show an emission rate of 0.71 pounds particulate matter per ton of wood (as compared to 14 pounds per ton (lb/ton) used by the commission). Air Burners supplied additional information and testing supporting an emission factor of 2.0 lbs of particulate matter per ton of material, which has been used by the State of Florida since 1986. Crochet requested that the commission consider this information and revise the PBR to have two distinct sets of requirements for the two types of ACIs.

Crochet, H&V, and Air Burners also requested that the manufactured aboveground units be evaluated using the technical information provided and allow for at least 1,000 hours of annual operation, consistent with the current §106.496 requirements. Crochet commented that the 500 hours per year restriction in subsection (c)(2)(A) is an attempt to limit ACI operations to infrequent periods so as to be consistent with state and federal waste regulations. Crochet further discussed in detail the applicability and technical requirements of underlying federal air and waste regulations, including 40 CFR §257.3-7 waste rules originally adopted in 1979 and amended in 1981; 40 CFR 60 Subpart CCCC §60.2245-2260 air rules effective June 1, 2001; and a decision by EPA regarding ACIs in West Virginia. At a minimum, Crochet stated that it is within the commission's discretion to determine the total number of operating hours allowed and still be considered infrequent. H&V also noted that the 500-hour restriction would negatively impact its customers. Finally, Crochet commented that the 500 hours per year restriction in subsection (c)(2)(A) may result in increased emissions as facilities might have to operate at higher volume rates to meet contractual deadlines and the PBR, thus being forced to burn beyond optimum parameters and not resulting in complete combustion. The commenter suggested that instead of 500 hours per year, the commission should establish performance standards, including parameters such as wood moisture.

HCPCD commented that the 500-hour operational limitation in subsection (c)(2)(A) is not reasonable considering that burning at very large development sites could not be completed in this time and it is unclear whether the same or another ACI could simply file another PBR registration to continue for another 500 hours, or, more appropriately, have to cease burning until a Chapter 116 air permit was obtained.

The commission reviewed the technical information provided by Crochet and Air Burners. This evaluation found numerous concerns and could not substantiate using the proposed emission factors. These reports had several weaknesses. Crochet's 2000 sampling report included: 1) a sampling hood which was placed on the unit and likely modified its operation and did not represent normal operation of these units; 2) the facility being sampled was burning unspecified MSW which could not be matched to the materials being proposed in this section; 3) only one test run, versus the statistical three runs required by standard EPA test methods; 4) and lack of quality assurance by any state or federal agency. Air Burner's sampling report and summary included: 1) a letter from the State of Florida in 1986 supporting an emission factor of 2.0 lb/ton but did not correlate to any specific sampling report, and was based only on an engineering judgment from an unspecified person at EPA that an unknown type of device was 80% - 90% better than the emission factor for trench burners at the time (13.0 lb/ton); and 2) the lack of sufficient supporting data or quality assurance review on the report to allow use as a stand-alone document. However, the commission also reviewed the typical operations of traditional trench burners and aboveground units. Analysis of typical operations contained a notation that these units do not operate at maximum capacity during all hours of any given day. In practice, lower throughput rates occur during approximately an hour of daily startup, there are one to two hours of reduced operation during the day, and one to two hours of reduced throughput at the end of the day. For this reason, total operating hours as listed in subsection (c)(2) are increased in all cases to 600 hours per year. In addition, the commission further reviewed design specifications of aboveground units also provided by the commenters, and based on the vertical wall containment system, refractory linings, above-fire air supply and, in some cases, under-fire air, emissions from these units should be less than the traditional trench burner designs. Based on engineering judgment, this section has been revised by adding subsection (e)(4) to allow up to 750 hours of operation per year. The commission also encourages manufacturers of this equipment to submit additional sampling data which meets the quality assurance guidelines and EPA test method specifications to support future rule changes or any case-by-case air permit for a given location and proposed operation.

Hopper commented that the operational requirements in subsection (c)(3) are reasonable for trench burning operators.

The commission appreciates the support of this rule change.

Hopper commented that the reference to an air curtain in subsection (c)(3) is misleading and impossible to actually maintain. In Hopper's experience of operating trench burners in the Houston area for over 50 years, commenting on previous versions of trench burner rules, and having five years of operation under the previous rules without violations, the current wording of the PBR will cause unnecessary violations, fines, and downtime. Hopper also provided drawings illustrating the design of various trench burner configurations.

The commission does not have any analytical data to support the comment. In addition, EPA documents and materials (including AP-42 and 40 CFR Part 60, Subpart CCCC) clearly describe an air curtain design and operation. The commission observed numerous facilities during plant trips and regional investigations, and, if run correctly, most trench burners do not have a problem maintaining compliance with the limitations as included in this section. Therefore, no changes were made in response to this comment.

HCPCD recommended that subsection (c)(3)(B) should be clarified and strengthened with regard to "burning must be completed" at the end of the day and that this condition should not simply mean that the material in the trench will not cause smoke and visible emissions as determined by modified EPA test methods, as this allows for a loophole and material may, and does, flare up and smolder throughout the night, causing nuisance conditions.

The commission considered this comment and, considering the reasonableness of completely extinguishing all materials and embers in an ACI, finds that if operators ensure that there is no flame or smoke and ensure there is no additional uncombusted fuel in or near the ACI no sustained burning is likely, and therefore no nuisance should occur. It is, however, unreasonable to expect all embers in the ACI to be completely extinguished at the end of each day. To ensure that no flame or smoke is occurring at the end of the day, the commission emphasized these requirements in subsection (c)(3)(B) and (E).

HCPCD commented that the requirements in subsection (c)(3)(E) which allow for the ACI blower to be turned off after enough material is consumed so that the remaining material will not cause smoke exceeding the limits of the modified EPA test method, creates several loopholes, including that as long as there are no visible emissions leaving the property, the ACI blower may be turned off during the day, which also stops the runtime meter and tracking of operating hours, as well as constituting outdoor burning under Chapter 111. HCPCD also commented that subsection (c)(3)(D) allows the operator to leave the site when the ACI blower is off, which would be a significant safety hazard and should be changed to require that the operator remain at the site until all fire is completely extinguished.

The commission notes that, if the facility complies with visible emission limits and no excessive smoke is occurring, then the ACI is operating correctly. If the fan is turned off, the trench burner or aboveground unit becomes open burning and does not comply with these rules. However, to specify the commission's intent, this section was modified to note that these conditions are considered effective only at the end of daily burning.

Hopper commented that the restrictions of subsection (d)(3) are not appropriate to allow for complete combustion; instead, the walls of a trench should be sloped at a ratio of 2:1 so air can enter from the ends of the pit and enhance air circulation and complete combustion.

The commission finds no technical basis for this change and is concerned that winds which occur parallel to a traditional trench burner are likely to cause excessive smoke and ash emissions if this change is made to the rule. Therefore, no changes were made to this section in response to this comment.

HCPCD recommended that subsection (f)(1)(C) be revised to address the ash handling requirements. While no visible emissions may occur, smoldering can continue in an ash pile. HCPCD suggested that this subsection be clarified to state that combustion may not continue in the ash pile. In addition, piles of ash should be allowed to be temporarily removed from the ACI to allow for active sorting and any material still smoldering can be returned to the ACI or trench so that the trench can be maintained with sufficient depth.

The commission reviewed this comment and notes that the PBR does not allow burning outside the ACI. Smoldering does continue in ash piles, and sorting is not prohibited by the PBR and is a common practice. Since excessive smoldering may be considered a nuisance, no changes were made in response to this comment.

HCPCD commented that the requirements in subsection (h)(1) which allow for multiple ACI locations at a given site under a single registration, be clarified that the cumulative total of all operations of ACIs at the site are limited to 500 hours per year. The commenter requests clarification on the commission's intent to potentially allow multiple registrations for the same site and circumvent the 500-hour limitation.

The commission appreciates this comment and notes that the intent of this PBR relies on compliance with the emission limitations of §106.4 and operating hours are cumulative for all ACIs under common control at a site during a rolling 12-month period. The PBR has been revised to emphasize that this limitation is consistent with the revised operating hours allowed (600 hours per year for trench burners and 750 hours per year for aboveground units).

HCPCD recommended that subsection (h)(2) provide for site reviews to be conducted at the discretion of both the commission's regional office and any local air pollution control program having jurisdiction over the proposed location prior to construction and operation. Under the current PBR, HCPCD conducts site reviews on all applications for trench burners in the unincorporated areas of Harris County and responds to requests for comments to the commission. HCPCD further notes that trench burners represent one of the largest nuisance generators and in 2003, HCPCD issued 75 violation notices. HCPCD stated that it is beneficial to conduct site reviews, evaluate location conditions, proactively communicate with operators, and address the nuisance potential prior to construction in an effort to protect the health and welfare of the public.

The commission responds that the rules will not be revised to require preconstruction site approval. In order to make more efficient use of resources, the commission is not requiring mandatory site reviews for all trench burner relocations. However, the purpose of requiring a 14-day advance notification prior to locating at the site is to provide regional offices and any local air pollution control agencies having jurisdiction an opportunity to conduct a site review when necessary. Subsection (h)(3)(B) is revised to emphasize this requirement. In addition, it is noted that facilities must always comply with any additional local restrictions.

HCPCD recommended the development of a specific relocation form (subsection (h)(3)) for trench burners which would replace the Core Data Form, requesting similar information as well as providing specific information regarding expected hours of operation, arrival and departure dates, site maps, and plot plans (needed to clearly identify the exact location of the proposed facility) and be submitted to the commission's regional office and any local air pollution control program with jurisdiction over the site. This information is required to perform an adequate evaluation of these portable facilities as they relocate.

The commission responds that adopted §106.496(h) requires that 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 Chapter 60. 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. On this form, the commission requests information such as arrival and departure dates, distance to property lines, site maps and plot plans, and other important design and operating information in order for regional and local programs to perform any reviews as needed. No change has been made to the rules in response to this comment.

HCPCD requested that the notification requirements in subsection (h)(3) clearly require the 14-day advanced notification to be sent to any local air pollution control program with jurisdiction over that site.

The commission revised subsection (h)(3)(B) to clearly state the requirement that the notification must be received by both the regional office and air pollution control agency having jurisdiction 14 days prior to locating on the site.

HCPCD noted significant concerns over runtime meter record requirements of subsection (h)(4)(A). HCPCD expressed concerns that frequent relocation of these units will not result in clear records for any specific site and that these meters may be zeroed during any specific project and the logs altered.

The commission partially revised the rule in response to this comment. The requirement to have a runtime meter is meant to provide an indicator by which field investigators may determine compliance with requirements of this PBR and §106.8 clearly requires maintenance of all records sufficient to demonstrate compliance with the PBR for at least two years. The development of PBR conditions of any authorization cannot be based on an assumption of noncompliance. Therefore, the commission has not changed the rule regarding runtime meter compliance demonstrations. However, it is noted that once a portable facility moves to another site, the proposal did not address where records would be available for compliance demonstrations. The commission has added a requirement that records be kept at a central location for up to two years for portable facilities.

HCPCD expressed concerns over requirements listed in subsection (h)(4)(C) in that, although operating instructions must be kept at the burn site, there is no requirement that operators have knowledge of these instructions.

The commission revised the rule in response to this comment. It is reasonable to require that operating personnel be familiar with the basic operation of the machine and that the operating instructions be available to the operator for reference.

Subchapter X - Waste Processes and Remediation: §106.533, Remediation

Sierra Club supported the strengthening of the PBR for remediation activities.

The commission appreciates this support.

TxOGA requested confirmation that subsection (b)(5) be clarified to note that stockpiles of contaminated, remediated materials/soils, surface impoundments, or the use of handheld tools or mobile equipment used on these stockpiles or impoundments does not require an authorization under Chapters 106 or 116 unless one or more stationary facilities are constructed at the site for the remediation of these affected sources. TxOGA stated that this interpretation is considered vital to the continuing efforts to protect groundwater, further contamination, and provide a reasonable alternative to otherwise very large costs to both industry and the state, which would have no appreciable benefits, especially at the thousands of petroleum production and transportation sites with minor spills and which follow the clean-up procedures of the RRC. Further, TxOGA commented that if it is determined necessary to require PBR authorization of small spills at oil and gas sites where no other stationary facilities are constructed to address remediation, the commission should establish a new subsection (e) specifically addressing the unique issues related to these activities.

The commission responds that although the rule is not changed in response to this comment, the commission agrees that the items listed by TxOGA are not considered facilities and do not require separate authorization.

Pantex recommended that the definitions in subsection (b)(4) identify what an ESL is and how it will be used for purposes of this PBR.

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. To emphasize this use, the commission revised subsection (b)(4).

Dow commented that the term "remediation facility" in subsection (b)(5) is adequate to include all remediation equipment and sources related to a remediation facility at a site.

The commission appreciates this comment.

Pantex requested clarification with regard to whether facilities as defined in subsection (b)(5) include wellheads and/or subsurface portions of an extraction well.

The commission notes that the Texas Health and Safety Code, §382.003, definition of "facility" specifically excludes well tests, which would include pilot tests on wells, but not any additional control devices added for the pilot testing. However, the emissions from an extraction well used during the clean-up remediation project is considered a facility, not a well test, as defined in §106.533(b)(5). The commission revised the PBR in response to this comment to provide better understanding of the scope of this PBR.

TxOGA recommended that a qualifier of "normally occupied" be added to the definition of "Off-site receptor" in subsection (b)(6) to clarify the intent and increase understanding of the requirements of this section.

The commission agrees that structures must be regularly occupied to be considered for impacts review. This PBR is revised to reference normally occupied structures.

Pantex commented that the term "site" is defined in other commission regulations and asked why an additional definition is included in subsection (b)(9) and, if there are distinctions from other uses of this term, that a different word be used to avoid confusion.

The commission revised the rule in response to the comment and removed the definition of site as it is redundant.

Pantex suggested that subsection (b) include a definition of "breakthrough" for clarity and understanding of the performance requirements of the CAS system referred to in subsection (g)(5)(C)(i).

The commission revised the rule in response to this comment. Subsection (g)(5)(C)(i) states that "Breakthrough is defined as a measured VOC concentration of 100 parts per million by volume (ppmv) in the outlet of the initial canister" and is unique to CAS systems.

Pantex commented that subsection (c)(2) should be changed to refer to "affected property," rather than "site," to assure that emissions requirements of this PBR are not extended to non-remediation-related operations which may be occurring on the same site. Pantex also commented that subsection (c)(3) should be changed to refer to "facility," rather than "site," to assure that emissions requirements of this PBR are not extended to non-remediation-related operations which may be occurring at a contiguous property.

The commission revised subsection (c)(1) of the rule in response to this comment to specify that this section only applies to the remediation project on an affected property on the originating site and any nearby sites which may have been directly affected by contamination.

Pantex commented that subsection (c)(8) should be changed to not use the undefined term "property" as this is confusing and it is not clear whether this subsection refers to "affected property" or "site."

The commission changed this subsection, renumbered as subsection (c)(9), in response to this comment to use the word site, consistent with definitions in Chapters 116 and 122. In addition, the commission added to subsection (j)(1) an option that notifications for multiple sites that are related to a single affected property with soil or water contamination may be submitted at the same time to reduce confusion and redundancy.

Pantex commented that the format of subsection (c)(8) should be changed from a long, confusing sentence to a bulleted or list format for better understandability.

The commission agrees with the commenter and changed the rule to reflect this comment.

TxOGA suggested deletion of subsection (c)(8) entirely as the requirement of limiting opacity from the operations listed in this subsection is very restrictive and is not practically attainable in many locations, especially in South Texas and West Texas where high winds are prevalent. To meet this requirement, the addition of moisture or dust suppressants would inhibit bioremediation and natural attenuation. In addition, the proposed specification that continuous compliance by the test method that would require continuous monitoring by a very inflexible methodology is completely impractical. TxOGA also commented that this requirement is redundant with subsection (c)(5) which is intended to prevent nuisance conditions.

No changes were made in response to this comment. The commission disagrees that the visible emission standard is not practically attainable because other similar types of facilities in South and West Texas are subject to the same standard. The commission included this requirement and it is expected that compliance with subsection (c)(9) will reduce the likelihood of a violation of subsection (c)(5) and §101.4 occurring. By specifying EPA TM 22, which is a visible emissions test, not an opacity test, this subsection provides a clearly identifiable standard by which the operators and commission field investigators can determine the compliance status of the facilities.

Pantex commented that subsection (d)(1)(B) uses the term "uncontrolled," which should be clearly defined and this subsection should address what emission limits would be applicable if the site has a combination of remediation projects with emission control devices and some without.

The commission revised all applicable references in this rule to specify that certain requirements apply when a control device is not used. In addition, the commission added specific criteria by which an operator can determine when controls can be removed from remediation facilities in subsection (c)(3).

TxOGA recommended revising subsection (d)(1) - (3) to eliminate the different requirements for sites contaminated only with petroleum compounds and imposition of different emission limits for locations with receptors within 100 feet and depending on whether a control device is used. TxOGA suggested that a more reasonable approach would be to establish only emission limits as listed for the proposed controlled scenario, with the understanding that controls would not be needed if the limits can otherwise be achieved, which is consistent with the approach taken in subsection (f). Dow, TCC, and Pantex also commented that subsections (d), (e), and (f) should be changed to address each remediation project, and not an entire site. Dow and TCC commented that the proposed requirements of subsection (f) would limit all remediation activities at a contiguous property (site), and the emission limits are not appropriate for a combination of remediation activities occurring at different locations at a large site, thus substantially limiting the available uses of this PBR and will force an owner/operator to obtain a permit or permit amendment that should be able to be authorized under PBR. TCC further commented that the PBR limits should consider appropriate distance and emission limits for each remediation activity to ensure protectiveness, but include consideration for multiple remediation actions at a large site to create the most reasonable and efficient method to authorize these facilities.

The commission revised the PBR to specify that facilities, or groups of facilities, must be separated from each other by at least 100 feet to ensure acceptable impacts. However, the rule has also been changed to allow multiple facilities, or groups of facilities on a single site, to have separate and distinct emission limits. This definition was included in subsection (c)(5) and all subsequent subsections were renumbered. The new term is also used throughout the PBR.

TxOGA recommended that the TPH limits be deleted in subsection (d)(1) - (3), as the primary contaminant of concern is benzene and the limits are adequate without also requiring operators to determine TPH emissions. The proposed TPH limit of 1.0 lb/hr corresponds to 8,760 pounds per year or 42 barrels of condensate. If a spill of this size occurred, the RRC would require completion of land treatment within one year and the proposed limitation would thus discourage conventional land treatment and require more expensive processing, such as incineration, with potentially higher overall air emissions.

No changes were made in response to this comment. The use of a TPH limit allows the rule to be simpler than using speciated multiple air contaminants of concern which may occur in substantially different proportions based on the type of petroleum which has contaminated the soil or water. If this combined term is not used, each potential constituent would need to be separately listed in the PBR.

TxOGA noted that subsection (d)(3) appears to be intended to remind the regulated community of unique sampling and testing requirements of the PST remediation and reimbursement programs. However, the regulatory language could be clarified to make that intent more apparent from a reading of the regulations.

The commission agrees with TxOGA and changed the language to be specific to only PST sites.

Pantex questioned why subsection (g)(2)(C) includes a visible emissions limit for flares, but there are no similar limits for other combustion devices. In addition, §111.111 should be checked for applicability to other devices covered in this PBR and a reference included in subsection (c)(8).

The commission agrees with this comment and added opacity restrictions and compliance with the particulate matter standards, as listed in Chapter 111 for all control devices in subsection (g) for consistency.

Pantex commented that the requirements for catalytic oxidizers (CatOx) and internal combustion engines (ICE) maintaining records of "performance" should be changed to "effectiveness" as that term is used earlier in these subsections.

The commission agrees with changing the term "performance" to "effectiveness" and revised the rule accordingly.

Pantex commented that subsection (g)(3) - (5) appears to have inconsistent requirements for various control devices. Additionally, the CAS requirements for weekly monitoring to determine breakthroughs are inconsistent with the CatOx and ICE devices and there is no specificity of the records which must be maintained for the CAS, unlike the CatOx and ICE systems. Finally, Pantex commented that for clarity all recordkeeping requirements should be organized together in this subsection, rather than refer to another subsection of this PBR.

The commission reviewed in detail the compliance demonstration frequency for CAS, CatOx, and ICE and notes that the rule requires for all of these facilities to be maintained to demonstrate a minimum of initial effectiveness, and weekly confirmation of continuing proper operation. Also, the commission reviewed the recordkeeping requirements of subsection (j)(2) and decided to keep these specifications together at the end of the PBR instead of repeating them in each paragraph for individual control devices, which would result in substantial redundancy. No changes were made in response to this comment.

TxOGA recommended deleting all of subsection (h) and noted that operators should have the option of using data from flame ionization detectors (FIDs) or photoionization detectors (PIDs) where necessary, but recognize that these instruments do not provide direct measurements of all specific air contaminants of concern. If it is determined that some concentration at the nearest property line is necessary for uncontrolled projects, any such requirement should be cost-effective and performance-based. While the proposed compliance methods are inappropriate uses of FIDs/PIDs and ESLs, as well as prohibitively expensive, it does not take into account background concentrations from nearby permitted facilities, nor does the proposal consider reduced monitoring over time as emissions decrease during remediation.

The commission responds that PID/FID measurements are required to provide a practically enforceable mechanism to demonstrate compliance and the use of PID/FID instruments is likely to be more cost-effective than other types of monitoring.

Pantex suggested that subsection (h) be clarified as to what actions are needed if a PID or FID reading is above an ESL and if the remediation activities at that point are unauthorized and all activity halted.

The commission responds that remediation where no controls are being used should stop immediately if readings exceed ESL levels. If these levels are exceeded, additional corrective action and control devices must be used prior to resuming the remediation project. The commission revised the rule to reflect this comment.

EPA commented that §106.533(i)(5) summarizes the applicability of 40 CFR 63, National Emission Standards for Hazardous Air Pollutants, Subpart GGGGG, Site Remediation, but noted that since the language is not exactly the same as the federal rules, suggested that the commission only reference 40 CFR §63.7881, Am I Subject to this Subpart?, to avoid any confusion.

The commission agrees and revised the rule to reference, rather than paraphrase, 40 CFR Part 63, Subpart GGGGG.

TxOGA and Pantex expressed concerns regarding the notification requirements of subsection (j). Pantex commented that the use of the term "executive director" is confusing and if the commission intends that these notifications are to be sent only to the regional offices, the rule should be clarified. TxOGA suggested amending subsection (j) to require notification to be submitted within ten days after remediation begins, instead of prior to beginning facility construction. TxOGA expressed a belief that these requirements, including emissions estimates, control device determinations, and performance expectations, would create unnecessary delays, that remediation should occur as soon as practicable, and this may conflict with RRC requirements. Pantex requested that the commission consider reducing the number and type of notifications that must be made for this PBR. TxOGA also commented that no additional notification or registration should be required between well-testing and full-scale remediation activities beginning, and that the need for a return receipt of PBR notification should be an option, not a requirement.

The commission revised the rule in response to these comments to specify which divisions of the commission should be notified of a remediation project. In addition, it is critical that the appropriate regional office, local program, and appropriate remediation coordinator are notified not only when assessment of a remediation site begins, but when full-scale cleanup will occur, with expected emissions and control devices, as well as any facility or abatement system changes. These requirements are consistent with the definition of construction of a new facility and modification of an existing facility, including change in method of control. Advance notification is needed to ensure that if additional information is needed, or to address other concerns which may occur as a result of the project, that the regional office, local program, or remediation coordinator have sufficient advance notice to ask questions or obtain additional information prior to commencement of activities. In addition, a notification enables the applicants to begin remediation projects more quickly than if a registration were required.

Pantex noted that the form referenced in subsection (j)(1) cannot be found on the commission's Web pages, was concerned that the form and instructions will not match those of this rule, and requested the opportunity to review this form for additional concerns and comments.

No changes were made in response to this comment. The form is currently under development.

Subchapter A. GENERAL REQUIREMENTS

30 TAC §106.5

STATUTORY AUTHORITY

The repeal is adopted under Texas Health and Safety Code, 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 2004.

TRD-200403832

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 30, 2004

Proposal publication date: January 30, 2004

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

Subchapter B. REGISTRATION FEES FOR NEW PERMITS BY RULE

30 TAC §106.50

STATUTORY AUTHORITY

The amendment is adopted under Texas Health and Safety Code, 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 2004.

TRD-200403833

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 30, 2004

Proposal publication date: January 30, 2004

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

Subchapter H. CONCRETE BATCH PLANTS

30 TAC §§106.201 - 106.203

STATUTORY AUTHORITY

The repeals are adopted under Texas Health and Safety Code, 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 2004.

TRD-200403834

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 30, 2004

Proposal publication date: January 30, 2004

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

Subchapter V. THERMAL CONTROL DEVICES

30 TAC §§106.491, 106.493, 106.496

STATUTORY AUTHORITY

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 2004.

TRD-200403835

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 30, 2004

Proposal publication date: January 30, 2004

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

30 TAC §106.491, §106.496

STATUTORY AUTHORITY

The new sections are adopted under Texas Health and Safety Code, 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.

§106.491.Dual-Chamber Incinerators.

(a) Applicability. This section authorizes dual-chamber 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 must 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) must be 500 pounds per hour or less. Each claim under this section must 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 must 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;

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

(1) This facility must 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 may exceed 50% and noncombustible solids may not exceed 10% of total weight; or

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

(2) The incinerator must 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 must 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 must not exceed 1.0 lb/hr total inhalable particulate matter (PM ₁₀ ).

(3) Fuel for the incinerator must 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 must be posted at the incinerator, and the unit must be operated in accordance with these instructions. The incinerator must be operated in accordance with the manufacturer's specifications and maintained in good working order.

(5) Visible emissions must 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 must be registered with the commission's Office of Permitting, Remediation, and Registration using Form PI-7, Registration for Permits 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 must address the applicability of 40 Code of Federal Regulations (CFR) Part 60, Standards of Performance for New Stationary Sources (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, 2001 (as published in the December 1, 2000 issue of the Federal Register ); or 40 CFR Part 60, Subpart DDDD, Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units, that Commenced Construction On or Before November 30, 1999 (as published in the December 1, 2000 issue of the Federal Register ). If determined to be applicable, commercial and industrial solid waste incinerators must 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 having 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) must 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 must 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 must 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 as referenced in 40 Code of Federal Regulations §60.2245, 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. These industrial sites must be noncommercial, as limited by §335.2(d)(1) of this title (relating to Permit Required), and burn only on-site generated waste that results from the processing or manufacturing of products, and do 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.

(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), or any ACI operating under this section.

(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 600 hours in any rolling 12-month period.

(B) Portable facilities temporarily located at a site may operate up to 180 consecutive calendar days or 600 hours, whichever occurs first. The ACI must be removed from the site after ceasing operation.

(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. At the end of the burn, embers must not be flaming or smoking, and no additional fuel may be added to the ACI.

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

(E) The ACI blower must remain on at the end of daily burning until enough material is consumed so that any remaining material in the trench does not flame or 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 or firebox.

(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) Firebox burning. An ACI operation using a manufactured aboveground container and blower system must meet the following requirements and operational limits.

(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.

(4) Firebox facilities, which are equipped with refractory walls and above-fire air supply, may operate up to a total of 750 hours in any rolling 12-month period.

(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.

(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 must address the applicability of 40 Code of Federal Regulations (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, 2001 (as published in the December 1, 2000 issue of the Federal Register ). If determined to be applicable, commercial and industrial solid waste incinerators must demonstrate compliance with this federal regulation, 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 ACIs at a given site may be combined into a single registration if individual ACI locations at the site are in compliance with all design requirements and operating restrictions. Operations for all ACIs under common control at a given site must cumulatively meet the annual hourly limitations as listed.

(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 shall 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, shall 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 and any local air pollution control agency having jurisdiction over the site 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 shall, 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. For portable facilities, once relocated to a new site, records must be maintained at a central location for a two-year rolling period.

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

(D) The ACI must 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 2004.

TRD-200403836

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 30, 2004

Proposal publication date: January 30, 2004

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

Subchapter X. WASTE PROCESSES AND REMEDIATION

30 TAC §106.533

STATUTORY AUTHORITY

The repeal is adopted under Texas Health and Safety Code, 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 2004.

TRD-200403837

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 30, 2004

Proposal publication date: January 30, 2004

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

30 TAC §106.533

STATUTORY AUTHORITY

The new section is adopted under Texas Health and Safety Code, 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.

§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;

(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)--Values 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. The ESLs are based on data concerning health effects, odor nuisance potential, effects with respect to vegetation, and corrosion effects. ESL updates, which are 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, but do not include below-ground pilot wells or well tests when no additional aboveground equipment is used. An extraction well used during a remediation project is considered a facility, not a well test.

(6) Off-site receptor--Any recreational area, residence, commercial/industrial facility, or other normally occupied structures not used solely by the owner or operator of the facilities or the owner of the site upon which the facilities are located. Measurements of distances to determine compliance with this distance restriction must 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.

(1) Applicability. This section covers only remediation performed at the affected property on a given 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 or facilities unrelated to remediation. 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 must 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, at a minimum, must meet the methodology approved by the applicable remediation program (e.g., Petroleum Storage Tank (PST) Program, Voluntary Cleanup Program, Superfund, etc.). Use of any control device may be discontinued when the influent concentrations show that the facility can meet the appropriate emission limits without controls.

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

(5) Multiple facilities at a site. There may be multiple remediation facilities at a site. However, each remediation facility must be separated from all other remediation facilities by a distance of at least 100 feet. Any individual facilities not separated by this distance must be combined and treated as a single facility for purposes of meeting the conditions of this section.

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

(7) 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.

(8) 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.

(9) Visible emissions. Compliance with this requirement will be determined by use of EPA Test Method 22, found in 40 Code of Federal Regulations, Part 60, Appendix A, as published in the February 12, 1999 issue of the Federal Register . There will be no visible emissions leaving the site for a period exceeding 30 seconds in any six-minute period from the following operations:

(A) handling, processing (screening, crushing, etc.), groundwater air stripping, and stockpiling of contaminated soil;

(B) handling, stockpiling, and in-situ chemical oxidation of groundwater and soils; and

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

(1) For facilities 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 each facility must meet the following emission limits:

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

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

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

(B) when a control device is not used, the total emissions from each facility must meet the following emission limits:

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

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

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

(2) For facilities 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 to which the agency's PST remediation and/or reimbursement requirements are applicable, 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 must be met.

(1) For facilities with an off-site receptor within 100 feet, emissions of each individual compound from each facility must 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 a control device is not used, 10% of the values determined by subparagraph (A) of this paragraph;

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

(2) For facilities with equal to or greater than 100 feet to the nearest off-site receptor, emissions of each individual compound from each facility must meet the emissions and distance requirements of §106.261 and §106.262 of this title. The maximum emission rate limit for any individual compound must be 0.04 lb/hr, regardless of the 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 (CAS) that meets the requirements of subsection (g) of this section may 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 and affected properties. For the remediation of sites not covered by subsections (d) or (e) of this section, the following requirements must be met.

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

(A) Hourly emissions of each individual organic and inorganic compound from each facility (other than products of combustion) must 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 is on the ESL list, effective October 1, 2003, with 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 0.01 lb/hr.

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

(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 each facility must be located at least 100 feet from any off-site receptor.

(g) Control devices. When a control device is used at a facility, 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, and all control devices must comply with applicable opacity restrictions in Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter).

(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 must be automatically controlled to maintain a minimum temperature of 1,400 degrees Fahrenheit or higher in the combustion chamber (secondary chamber, if dual-chamber) 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-chamber) must be installed and maintained. Records of temperature data must be maintained.

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

(A) Design requirements.

(i) The flare must 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 (as published in the October 17, 2000 issue of the Federal Register .

(ii) The flare must 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 may liquids be burned in the flare.

(C) Compliance demonstrations. Visible emissions must 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 must be at least 90% for the contaminants at the site.

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

(C) Compliance demonstrations. An evaluation of oxidizer effectiveness must 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 effectiveness must 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 must be at least 99% for the contaminants at the site.

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

(C) Compliance demonstrations. An evaluation of engine effectiveness must 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 effectiveness must be maintained.

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

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

(B) Operational restrictions. The CAS must 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 must be switched to the second canister immediately. Within four hours of detection of breakthrough, a fresh canister must be placed as the new final polishing canister. Sufficient fresh activated carbon canisters must be maintained at the site to ensure fresh polishing canisters are installed within four hours of detection of breakthrough.

(i) The CAS must be sampled initially (within two hours of startup) and periodically to determine breakthrough. Breakthrough is defined as a measured VOC concentration of 100 parts per million by volume (ppmv) in the outlet of the initial canister. The sampling point must be at the outlet of the initial canister, but before the inlet to the second or final polishing canister. Sampling must be performed while venting maximum emissions to the CAS (e.g., during loading of tank trucks, during tank filling, during process venting). The CAS must 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 must 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 when no control device is used for 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. Measurement should occur as close as possible to the remediation activity, but no further away than the nearest property line. The concentration measured must be equal to or less than the specific air contaminant's ESL. If an ESL is exceeded, remediation must cease until corrective action restores the concentration to below ESL values. The conversion from PID and FID devices to ESLs must use the following formula.

Figure: 30 TAC §106.533(h)

(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 must 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 must 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, National Emission Standards for Hazardous Air Polluntants: Site Remediation, effective October 8, 2003.

(j) Administrative requirements.

(1) Notification. Before starting remediation (pilot test or treatment), the owner or operator shall notify the commission in writing using the Standard Permit/Permit by Rule Relocation Form. Notifications for multiple sites that are part of the same affected property may be submitted at the same time in accordance with the following requirements.

(A) The notification is 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 (relating to Compliance History).

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

(C) Pilot test notifications must be received by those listed in subparagraph (B) of this paragraph prior to commencement of activities.

(D) Updated or additional notification must be received by those listed in subparagraph (B) of this paragraph prior to commencement of treatment activities and must contain specific information concerning the basis (measured or calculated) for the expected emissions from the facility. The notification must 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 those listed in subparagraph (B) of this paragraph 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 must 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 over the site.

(B) The following minimum records of sampling or monitoring must 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) a record of the return receipt demonstrating notification to the appropriate regional office, local air pollution control programs having jurisdiction over the site, and appropriate remediation program.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2004.

TRD-200403860

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: July 4, 2004

Proposal publication date: January 30, 2004

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