PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 113. STANDARDS OF PERFORMANCE FOR HAZARDOUS AIR POLLUTANTS AND FOR DESIGNATED FACILITIES AND POLLUTANTS

SUBCHAPTER D. DESIGNATED FACILITIES AND POLLUTANTS

The Texas Commission on Environmental Quality (TCEQ or commission) adopts Subchapter D, new Division 3, §§113.2100 - 113.2174; new Division 4, §§113.2200 - 113.2261; and new Division 5, §§113.2300 - 113.2357.

New §113.2317 and §113.2352 are adopted with changes to the proposed text as published in the November 21, 2008, issue of the Texas Register (33 TexReg 9371). Sections 113.2100 - 113.2174, 113.2200 - 113.2261, and 113.2300 - 113.2316, 113.2318 - 113.2351, and 113.2353 - 113.2357 are adopted without changes to the proposed text and will not be republished.

The commission will also include these adopted rules in the accompanying Federal Clean Air Act (FCAA), §111(d)/129 State Plan.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted amendments to Chapter 113 would revise Subchapter D (Designated Facilities and Pollutants), to add new Division 3 (Emission Guidelines and Compliance Times for Small Municipal Waste Combustion Units Constructed on or Before August 30, 1999), new Division 4 (Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units that Commenced Construction On or Before November 30, 1999), and new Division 5 (Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units That Commenced Construction On or Before December 9, 2004) to incorporate the emission guidelines found in 40 Code of Federal Regulations (CFR) Part 60 (Standards of Performance for New Stationary Sources).

New Source Performance Standards and Emission Guidelines

The FCAA, §111 (Standards of Performance for New Stationary Sources) and §129 (Solid Waste Combustion) require the United States Environmental Protection Agency (EPA) to develop and adopt performance standards and other requirements for each category of solid waste incineration units. The standards are required to include emissions limitations and other requirements applicable to new units and other requirements applicable to existing units. The new source performance standards (NSPS) apply to new stationary sources in which construction begins after the NSPS is proposed or that are reconstructed or modified on or after a specified date. Emission guidelines are similar to the NSPS, except that they apply to existing sources in which construction begins on or before the date the NSPS is proposed or that are reconstructed or modified before a specified date. Unlike the NSPS, emission guidelines are not enforceable until the EPA approves a state plan or adopts a federal plan for implementing and enforcing them, and the state or federal plan becomes effective. The emission guidelines incorporated as part of this rulemaking are for certain solid waste incineration units, as specified in this preamble. Under the FCAA, §129, the NSPS and emission guidelines adopted for solid waste incineration units must meet maximum achievable control technology, or the maximum degree of reduction in emissions of air pollutants that the EPA determines is achievable, taking into consideration the cost of achieving reductions and any non-air quality health and environmental impacts and energy requirements.

Additionally, states are required under the FCAA, §129 and the emission guidelines, to adopt and submit to the EPA for approval, a state plan to implement and enforce the emission guidelines. The state plan is required to be at least as protective as the emission guidelines. The FCAA, §129 requires the EPA to develop, implement, and enforce a federal plan if a state fails to submit a satisfactory state plan. The EPA promulgated a federal plan to implement 40 CFR Part 60, Subpart BBBB for existing small municipal waste combustors on January 31, 2003, in 40 CFR Part 62, Subpart JJJ. This federal plan became effective on January 31, 2003. The EPA also promulgated a federal plan to implement 40 CFR Part 60, Subpart DDDD for existing commercial and industrial solid waste incinerators (CISWIs) on October 3, 2003, in 40 CFR Part 62, Subpart III. This federal plan became effective on November 3, 2003. While the EPA proposed a federal plan to implement 40 CFR Part 60, Subpart FFFF for other solid waste incineration (OSWI) units on December 18, 2006 (40 CFR Part 62, Subpart KKK), the EPA has not yet finalized the federal plan. Interested persons may consult the emission guidelines and proposed and final federal plans for further information concerning the requirements that are the subject of this adopted rulemaking. The commission is adopting a state plan to implement and enforce the emission guidelines that are the subject of this adopted rulemaking as part of a separate, concurrent process.

40 CFR Part 60, Subparts BBBB, DDDD, and FFFF

To meet the requirements of the FCAA, §129, the commission adopts the incorporation of three new emission guidelines into Chapter 113: 40 CFR Part 60, Subpart BBBB (Emission Guidelines and Compliance Times for Small Municipal Waste Combustion Units Constructed on or Before August 30, 1999) published in the December 6, 2000, issue of the Federal Register (65 FR 76378); Subpart DDDD (Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units that Commenced Construction On or Before November 30, 1999) published in the December 1, 2000, issue of the Federal Register (65 FR 75338); and Subpart FFFF (Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units That Commenced Construction On or Before December 9, 2004) published in the December 16, 2005, issue of the Federal Register (70 FR 74870).

Copies of these emission guidelines are available through the EPA, the commission, or online from the EPA Federal Register Web site at: http://www.epa.gov/fedrgstr/.

40 CFR Part 60, Subpart BBBB, Emission Guidelines and Compliance Times for Small Municipal Waste Combustion Units Constructed on or Before August 30, 1999

On December 6, 2000, the EPA promulgated emission guidelines for small municipal waste combustion (MWC) units constructed on or before August 30, 1999, defined as any MWC unit with a combustion design capacity of 35 to 250 tons per day. As required by the FCAA, §129, the emission guidelines establish numerical emission limits for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, sulfur dioxide, hydrogen chloride, nitrogen oxides, and carbon monoxide, in addition to other requirements.

40 CFR Part 60, Subpart DDDD, Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units that Commenced Construction On or Before November 30, 1999

On December 1, 2000, the EPA promulgated emission guidelines for CISWI units that commenced construction on or before November 30, 1999, defined as any combustion device that combusts commercial and industrial waste, as defined in this subpart. As required by the FCAA, §129, the emission guidelines establish numerical emission limits for cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, opacity, oxides of nitrogen, particulate matter, and sulfur dioxide, in addition to other requirements.

40 CFR Part 60, Subpart FFFF, Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units That Commenced Construction On or Before December 9, 2004

On December 16, 2005, the EPA promulgated emission guidelines for OSWI units that commenced construction on or before December 9, 2004, defined as either a very small MWC unit or an institutional waste incineration unit, as defined in this subpart. As required by the FCAA, §129, the emission guidelines establish numerical emission limits for cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, opacity, oxides of nitrogen, particulate matter, and sulfur dioxide, in addition to other requirements.

EPA Model Rules

In the emission guidelines for 40 CFR Part 60, Subparts BBBB, DDDD, and FFFF, the EPA included model rule language. The EPA states that the model rule is the portion of each of the emission guidelines that addresses the applicable requirements for each subpart in a standard regulation format, and that a state may either use the EPA's model rules as a part of its state plan, or may use alternative language if it is at least as protective as the model rule contained in each subpart.

To meet the federal requirements for its FCAA, §111(d)/129 State Plan, the commission opted to use the model language provided by the EPA in 40 CFR, and adopts the incorporation of the EPA rules into 30 TAC Chapter 113, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants; Subchapter D, Designated Facilities and Pollutants; new Divisions 3 - 5, with the administrative changes noted in this preamble.

SECTION BY SECTION DISCUSSION

The commission adopts various changes to the EPA model rules to be incorporated into Chapter 113 primarily to revise rule subdivision formatting and cross-references to conform with the publication requirements of the Texas Register. Throughout the rules, where appropriate, the commission also adopts additional changes to the model rule language for administrative ease and clarity, including: changing the word "Administrator" to "executive director" so that when the Chapter 113 rules and state plan are approved by the EPA, the rules reflect that the commission will enforce the rules, rather than the EPA; changing the EPA's subpart references to the appropriate TCEQ division references; defining acronyms as they are used in each section; and revising legal citations so that they will clearly identify the federal statute, such as the FCAA. Finally, the commission adopts minor spelling, capitalization, and grammatical revisions, such as the addition of "United States" before "Environmental Protection Agency" and consistent use of the term "operating permit" throughout the rules. These nonsubstantive changes conform to both Texas Register formatting requirements and agency style conventions.

Besides the general changes listed in the previous paragraph, throughout the rules, the commission also adopts specific changes that are noted in this preamble under the specific section number in which the change is adopted. The commission adopts these additional, specific changes to the EPA model rules to ensure clear understanding of the rule requirements and proper state enforcement of the rules.

Division 3, Emission Guidelines and Compliance Times for Small Municipal Waste Combustion Units Constructed on or Before August 30, 1999 (40 CFR Part 60, Subpart BBBB)

§113.2100--Definitions.

The commission adopts new §113.2100, which defines terms used in new Division 3 that are either previously undefined or are used differently by the federal emission guidelines that are the basis for the rules. The definitions are taken from 40 CFR §60.1940 (What definitions must I know?).

§113.2101--What are my requirements for meeting increments of progress and achieving final compliance?

The commission adopts new §113.2101, which specifies what must be completed for both Class I and Class II units to meet final compliance. The adopted section states that the increments of progress for Class I units include the following: final control plan, notification of retrofit contract award, initiation of onsite construction, completion of onsite construction, and final compliance. Class II units need only submit a final control plan and achieve final compliance.

§113.2102--When must I complete each increment of progress?

The commission adopts new §113.2102, which specifies that the compliance dates for each of the increments of progress for Class I and Class II units are located in Table 1 of Division 3 (§113.2174).

§113.2103--What must I include in the notifications of achievement of my increments of progress?

The commission adopts new §113.2103, which specifies that notifications demonstrating achievement of increments of progress must include three items: notification that the increment of progress has been achieved; any items required to be submitted with the increment of progress; and signature on the notification by the owner or operator.

§113.2104--When must I submit the notifications of achievement of increments of progress?

The commission adopts new §113.2104, which specifies that notifications demonstrating compliance with the increments of progress must be postmarked no later than 10 days after the compliance date for the increment.

§113.2105--What if I do not meet an increment of progress?

The commission adopts new §113.2105, which describes what notification must be submitted to the executive director if an increment of progress is not completed. The adopted section states that the notification: must be postmarked within 10 business days after the specified date in Table 1 of Division 3 (§113.2174); and must convey to the executive director that the increment was not met, contain an explanation of why the increment was not met, and contain the plan to meet the requirements of the increment. The adopted section further states that the reports must continue to be submitted each subsequent month until the increment of progress is met.

For clarification, the commission adopts the specification that monthly progress reports be due on the first day of each month.

§113.2106--How do I comply with the increment of progress for submittal of a control plan?

The commission adopts new §113.2106, which describes two items that must be completed for the control plan increment of progress. The first item is to submit the complete final control plan as specified.

In paragraph (2), the commission adopts the specification that a copy of the final control plan must be maintained at the same location as the solid waste incineration unit.

§113.2107--How do I comply with the increment of progress for awarding contracts?

The commission adopts new §113.2107, which specifies that a signed copy of the contracts awarded must be submitted to initiate onsite construction, initiate onsite installation of emission control equipment, and incorporate process changes. The adopted section further states that the copy of the contracts with notification that the increment of progress has been achieved must be submitted to comply with the increment of progress for awarding contracts.

For clarification, the commission specifies, in two locations of the section, that items for submittal must be provided to the executive director.

§113.2108--How do I comply with the increment of progress for initiating onsite construction?

The commission adopts new §113.2108, which specifies that onsite construction and installation of emission control equipment and process changes must be completed to achieve the increment of progress for initiating onsite construction.

§113.2109--How do I comply with the increment of progress for completing onsite construction?

The commission adopts new §113.2109, which specifies that onsite construction and installation of control equipment and process changes must be completed to achieve the increment of progress for completing onsite construction.

§113.2110--How do I comply with the increment of progress for achieving final compliance?

The commission adopts new §113.2110, which specifies the two items that must be completed to achieve the final compliance increment of progress. The adopted section states that this includes completion of all process changes and retrofit construction and connection of the air pollution control equipment with the MWC unit, as well as completion of process changes to the MWC unit.

§113.2111--What must I do if I close my municipal waste combustion unit and then restart my municipal waste combustion unit?

The commission adopts new §113.2111, which describes what must be met when an MWC unit is closed and restarted. The adopted section specifies different requirements, depending on whether the MWC unit reopens before or after the final compliance date in the state plan.

§113.2112--What must I do if I plan to permanently close my municipal waste combustion unit and not restart it?

The commission adopts new §113.2112, which states that a closure notification must be submitted by the date the final control plan is due if an MWC unit is permanently closed. The adopted section also states that if the closure date is later than 1 year after the effective date of state plan approval, the owner or operator must enter into a legally binding closure agreement with the executive director.

§113.2113--What types of training must I do?

The commission adopts new §113.2113, which describes the types of training that operators and plant personnel must receive.

§113.2114--Who must complete the operator training course? By when?

The commission adopts new §113.2114, which states the classifications of employees who must complete the operator training course and by what date. These employees include: chief facility operators, shift supervisors, and control room operators. The section specifies EPA or state-approved training courses, unless the employee has obtained full certification from the American Society of Mechanical Engineers on or before the effective date of state plan approval. The adopted section also states that if these employees have obtained provisional certification from the American Society of Mechanical Engineers on or before the effective date of state plan approval, the EPA may waive the requirement for completion of the EPA or state-approved operator training course, if requested.

§113.2115--Who must complete the plant-specific training course?

The commission adopts new §113.2115, which states the classifications of employees who must complete the plant-specific training course. These employees include: chief facility operators, shift supervisors, control room operators, ash handlers, maintenance personnel, and crane or load handlers.

§113.2116--What plant-specific training must I provide?

The commission adopts new §113.2116, which details what must be included in the plant-specific training provided to employees, and when. This includes: developing a specific operating manual for that plant; establishing a program to review the manual with people whose responsibilities affect the operation of the MWC unit; updating the manual annually; and reviewing it with staff annually.

§113.2117--What information must I include in the plant-specific operating manual?

The commission adopts new §113.2117, which details what must be included in the plant-specific operating manual for the plant, such as a summary of applicable requirements, description of the basic combustion principles that apply to MWC units, and several specific procedures.

§113.2118--Where must I keep the plant-specific operating manual?

The commission adopts new §113.2118, which specifies that the plant-specific operating manual must be maintained in an easily accessible location at the plant. The adopted section further states that the manual must be available for review or inspection by employees and the executive director.

§113.2119--What types of operator certification must the chief facility operator and shift supervisor obtain and by when must they obtain it?

The commission adopts new §113.2119, which details what types of operator certifications must be obtained and by when. The adopted section states that each chief facility operator and shift supervisor must receive certification from the American Society of Mechanical Engineers or a state certification program. The adopted section also describes the requirements and time frames for both provisional operator certification and full certification.

§113.2120--After the required date for operator certification, who may operate the municipal waste combustion unit?

The commission adopts new §113.2120, which specifies that the MWC unit cannot be operated unless one of four certified employees are on duty. These four employees include a fully certified chief facility operator, a provisionally certified chief facility operator, a fully certified shift supervisor, and a provisionally certified shift supervisor.

§113.2121--What if all the certified operators must be temporarily offsite?

The commission adopts new §113.2121, which details the three criteria that must be met if a certified operator is temporarily offsite and a provisionally certified control room operator is fulfilling the requirement. The adopted section states that these criteria are dependant upon how long the certified operator is temporarily offsite. For instance, if the certified operator is offsite for more than 2 weeks, the executive director must be notified.

For clarification, the commission adopts the word "prior" before "notice" in paragraph (3) to reflect that the provisionally certified control room operator may perform the necessary duties without first giving notice and receiving approval from the executive director. Though prior notice and approval is not necessary, in paragraph (3)(A), the owner or operator is required to follow up with a notification to the executive director, an explanation of what caused the absence of the certified operator, and what is being done to ensure that a certified operator is onsite. Paragraph (3)(B) then contains the required procedures for status reports and corrective action summaries.

In paragraph (3)(A), the commission adds clarification that the notification to the executive director must be done within 10 days after the end of the 2-week period in which a certified operator is required to be onsite. The 10-day clarification is consistent with the time period provided in §§113.2219, 113.2243, 113.2313, and 113.2341, and the commission adopts the clarification regarding the beginning of the 10-day period to clearly outline the rule requirements for regulated entities.

§113.2122--What are the operating practice requirements for my municipal waste combustion unit?

The commission adopts new §113.2122, which specifies the operating practice requirements for MWC units. These requirements include maximum loads, maximum temperatures, carbon feed rate, and total carbon usage. The adopted section states the conditions and time frames under which the MWC unit is exempt from requirements, as well as specific activities that are exempt.

For clarification, the commission modified the sentence in subsection (e)(5). This paragraph refers to both the executive director and the delegated state authority, and since the executive director is the delegated state authority for Texas, the additional wording is unnecessary.

§113.2123--What happens to the operating requirements during periods of startup, shutdown, and malfunction?

The commission adopts new §113.2123, which states that all operating requirements apply at all times except during periods of startup, shutdown, or malfunction, which must last no longer than 3 hours.

§113.2124--What pollutants are regulated by this division?

The commission adopts new §113.2124, which lists the 11 pollutants that are regulated. The groups of pollutants include: organics, metals, acid gases, and other.

§113.2125--What emission limits must I meet? By when?

The commission adopts new §113.2125, which states the emission limits for Class I and II units in Tables 2 through 5 of Division 3 (§113.2174) that must be met, as applicable, after the date the initial stack test and continuous emission monitoring system evaluation are required or completed.

§113.2126--What happens to the emission limits during periods of startup, shutdown, and malfunction?

The commission adopts new §113.2126, which states that the emission limits of Division 3 apply at all times except during periods of startup, shutdown, or malfunction, which should last no longer than 3 hours. The adopted section states that a maximum of 3 hours of test data can be dismissed from compliance calculations during periods of startup, shutdown, or malfunction.

§113.2127--What types of continuous emission monitoring must I perform?

The commission adopts new §113.2127, which specifies the four tasks that must be performed to continuously monitor emissions. These tasks include: installing a continuous emission monitoring system; operating it correctly; obtaining the minimum amount of monitoring data; and installing a continuous opacity monitoring system.

§113.2128--What continuous emission monitoring systems must I install for gaseous pollutants?

The commission adopts new §113.2128, which states that a continuous emission monitoring system must be installed, calibrated, maintained, and operated for oxygen (or carbon dioxide), sulfur dioxide, and carbon monoxide. The adopted section states that the system must meet the monitoring requirements in 40 CFR §60.13 (Monitoring requirements).

§113.2129--How are the data from the continuous emission monitoring systems used?

The commission adopts new §113.2129, which states that the data from the continuous emission monitoring systems for sulfur dioxide, nitrogen oxides, and carbon monoxide must be used to demonstrate continuous compliance with the applicable emission limit tables of Division 3 (§113.2174).

§113.2130--How do I make sure my continuous emission monitoring systems are operating correctly?

The commission adopts new §113.2130, which describes how and when to verify that continuous emission monitoring systems are operating properly. The adopted section specifies that initial, daily, quarterly, and annual evaluations must be conducted, and that the initial evaluation must be completed within 180 days after the final compliance date. Verification includes evaluating the continuous emission monitoring system, collecting data, and following quality assurance procedures in 40 CFR Part 60, Appendix F (Quality Assurance Procedures).

§113.2131--Am I exempt from any 40 Code of Federal Regulations Part 60, Appendix B or Appendix F requirements to evaluate continuous emission monitoring systems?

The commission adopts new §113.2131, which states that the accuracy tests for sulfur dioxide continuous emission monitoring systems require evaluation of oxygen (or carbon dioxide) continuous emission monitoring systems; therefore, the oxygen system (or carbon dioxide) is exempt from two specific requirements in 40 CFR Part 60.

§113.2132--What is my schedule for evaluating continuous emission monitoring systems?

The commission adopts new §113.2132, which states that annual evaluations of continuous emission monitoring systems must be conducted no more than 13 months after the previous evaluations. This adopted section also states that continuous emission monitoring systems will be evaluated daily and quarterly as specified in 40 CFR Part 60, Appendix F.

§113.2133--What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?

The commission adopts new §113.2133, which states that if carbon dioxide is monitored instead of oxygen, the relationship between oxygen and carbon dioxide must be established during the initial evaluation of the continuous emission monitoring systems by three specific procedures.

§113.2134--What is the minimum amount of monitoring data I must collect with my continuous emission monitoring systems and is the data collection requirement enforceable?

The commission adopts new §113.2134, which details what monitoring data must be collected from the continuous emission monitoring systems and how often. In addition, requirements, including notifying the executive director, are included if the minimum data requirements are not met.

§113.2135--How do I convert my 1-hour arithmetic averages into appropriate averaging times and units?

The commission adopts new §113.2135, which includes the specific equations and methods that must be used to convert 1-hour arithmetic averages into appropriate averaging times and units.

§113.2136--What is required for my continuous opacity monitoring system and how are the data used?

The commission adopts new §113.2136, which details the requirements for the continuous opacity monitoring system. The adopted section includes specific time frames, CFR cites, and table references for the opacity limit.

§113.2137--What additional requirements must I meet for the operation of my continuous emission monitoring systems and continuous opacity monitoring system?

The commission adopts new §113.2137, which requires the use of span values and applicable performance specifications in Table 8 of Division 3 (§113.2174) for the operation of continuous emission monitoring systems and continuous opacity monitoring system.

§113.2138--What must I do if any of my continuous emission monitoring systems are temporarily unavailable to meet the data collection requirements?

The commission adopts new §113.2138, which refers to Table 8 of Division 3 (§113.2174). This table provides alternate methods for collecting data when continuous emission monitoring systems are temporarily unavailable.

§113.2139--What types of stack tests must I conduct?

The commission adopts new §113.2139, which states that initial and annual stack tests must be conducted to measure emission levels of dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash.

§113.2140--How are the stack test data used?

The commission adopts new §113.2140, which requires the use of stack test results to demonstrate compliance with the applicable emission limits in Tables 2 and 4 of Division 3 (§113.2174) for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash.

§113.2141--What schedule must I follow for the stack testing?

The commission adopts new §113.2141, which requires that initial stack testing be conducted no later than 180 days after the final compliance date. The adopted section also states that annual stack tests must be conducted no later than 13 months after the previous stack test.

§113.2142--What test methods must I use to stack test?

The commission adopts new §113.2142, which describes the test methods that must be used for stack testing, including the criteria in Table 8 of Division 3 (§113.2174), number of test runs, determining diluent gas levels, calculating emission levels, and procedures for applying for an alternative method.

§113.2143--May I conduct stack testing less often?

The commission adopts new §113.2143, which allows testing less often for a Class II MWC unit for which all stack tests for a given pollutant over 3 consecutive years show compliance with the emission limit. In addition, this adopted section allows testing less often for dioxins/furans emissions for an MWC plant that meets the following two conditions: multiple MWC units are onsite that are subject to this division; and all those MWC units have demonstrated levels of dioxins/furans emissions less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, for 2 consecutive years.

§113.2144--May I deviate from the 13-month testing schedule if unforeseen circumstances arise?

The commission adopts new §113.2144, which does not allow for deviation from the 13-month testing schedules, unless the executive director has approved an alternative schedule.

§113.2145--Must I meet other requirements for continuous monitoring?

The commission adopts new §113.2145, which specifies three other operating parameters for continuous monitoring: load level, flue gas temperature, and carbon feed rate.

§113.2146--How do I monitor the load of my municipal waste combustion unit?

The commission adopts new §113.2146, which specifies two ways to monitor the load of the MWC unit. If the unit generates steam, the owner or operator must install, calibrate, maintain, and operate a steam flowmeter or a feed water flowmeter. If the unit does not generate steam or units have shared steam systems, the owner or operator must determine one or more operating parameters that can be used to continuously estimate load level and receive approval from the executive director.

§113.2147--How do I monitor the temperature of flue gases at the inlet of my particulate matter control device?

The commission adopts new §113.2147, which states that to monitor the temperature of the flue gases, a device to continuously measure the temperature must be installed, calibrated, maintained, and operated.

§113.2148--How do I monitor the injection rate of activated carbon?

The commission adopts new §113.2148, which requires that owners or operators of MWC units using activated carbon to control dioxins/furans or mercury emissions do the following: select a carbon injection system operating parameter to calculate carbon feed rate; during stack tests, determine the average carbon feed rate; and continuously monitor the selected operating parameter during all periods when the unit is operating and combusting waste.

§113.2149--What is the minimum amount of monitoring data I must collect with my continuous parameter monitoring systems and is the data collection requirement enforceable?

The commission adopts new §113.2149, which details the parameter monitoring data collection requirements. If continuous parameter monitoring is used, a 1-hour arithmetic average must be calculated with at least two data points per hour. Valid 1-hour averages for at least 75 percent of the operating hours per day for 90 percent of the operating days per calendar quarter must be obtained. The adopted section states that failure to collect the minimum data requires notification to the executive director.

§113.2150--What records must I keep?

The commission adopts new §113.2150, which states that the four types of records that must be kept are: operator training and certification; stack tests; continuously monitored pollutants and parameters; and carbon feed rate.

§113.2151--Where must I keep my records and for how long?

The commission adopts new §113.2151, which requires that all records be maintained onsite in paper copy or electronic format for at least 5 years. The adopted section states that these records must be available for submittal to the executive director or for onsite review.

§113.2152--What records must I keep for operator training and certification?

The commission adopts new §113.2152, which requires records for operator training and certification of the following six items: provisional certifications; full certifications; completion of the operator training course; reviews for plant-specific operating manuals; records of when a certified operator is temporarily offsite; and calendar dates on each record.

§113.2153--What records must I keep for stack tests?

The commission adopts new §113.2153, which requires that stack test records contain the following four items: results of stack tests for eight pollutants or parameters; test reports; maximum demonstrated load and temperature; and calendar date of each record.

§113.2154--What records must I keep for continuously monitored pollutants or parameters?

The commission adopts new §113.2154, which requires that eight records be maintained for continuously monitored pollutants or parameters. These eight records are: monitoring data; average concentrations and percent reductions; exceedances; minimum data; exclusions; drift and accuracy; relationship between oxygen and carbon dioxide; and calendar dates.

§113.2155--What records must I keep for municipal waste combustion units that use activated carbon?

The commission adopts new §113.2155, which requires five records for MWC units that use activated carbon to control dioxins/furans or mercury emissions. These five records are: average carbon feed rate; low carbon feed rates; minimum carbon feed rate data; exclusions; and calendar dates.

§113.2156--What reports must I submit and in what form?

The commission adopts new §113.2156, which states what reports must be submitted and how. These reports include initial, semiannual, and annual reports and the section states that reports must be submitted on paper, postmarked on or before the submittal dates. The section further states that the executive director must approve submission of electronic reports, and that copies of all reports must be maintained onsite for 5 years.

The commission adds, for clarification, that electronic reporting must meet the specifications of 30 TAC Chapter 19 (Electronic Reporting).

§113.2157--What are the appropriate units of measurement for reporting my data?

The commission adopts new §113.2157, which refers readers to Tables 2 through 5 of Division 3 (§113.2174) for appropriate units of measurement to be used when reporting data.

§113.2158--When must I submit the initial report?

The commission adopts new §113.2158, which requires that the initial report be submitted no later than 180 days after the final compliance date. The final compliance date is contained in Table 1 of Division 3 (§113.2174), and for both Class I and Class II units, is no later than 36 months from the date the TCEQ publishes notice in the Texas Register of state plan approval.

§113.2159--What must I include in my initial report?

The commission adopts new §113.2159, which states the seven items that must be included in the initial report. These items include the following: emission levels measured on the date of the initial evaluation of the continuous emission monitoring systems; results of initial stack tests; the test report that documents initial stack tests; the initial performance evaluation of the continuous emissions monitoring systems; the maximum demonstrated load and temperature; the average carbon feed rate recorded during the initial stack tests; and documentation of the relationship between oxygen and carbon dioxide.

§113.2160--When must I submit the annual report?

The commission adopts new §113.2160, which states that annual reports must be submitted no later than February 1 of each year that follows the calendar year in which data was collected.

To clarify and simplify the requirements of this section, the commission deletes the reference to 40 CFR Part 71, since federal requirements are contained within this part and they are not necessary for state implementation of the rules.

§113.2161--What must I include in my annual report?

The commission adopts new §113.2161, which states that a summary of data collected for all pollutants and parameters regulated must be included in the annual report. The 12 items that must be included in the summary are: the results of the annual stack test; a list of the highest average levels recorded; the highest 6-minute opacity level measured; for MWC units that use activated carbon for controlling dioxins/furans or mercury emissions, four records; the total number of days that minimum number of hours of data were not obtained; the number of hours of excluded data from the calculation of average levels; notice of intent to begin a reduced stack testing schedule for dioxins/furans; a summary of any emission or parameter level that did not meet the limits; a summary of data that gives a summary of the performance of the MWC unit; documentation of the relationship between oxygen and carbon dioxide; and documentation of periods when all certified chief facility operators and certified shift supervisors are offsite for more than 12 hours.

§113.2162--What must I do if I am out of compliance with the requirements of this division?

The commission adopts new §113.2162, which requires that a semiannual report be submitted on any recorded emission or parameter level that is out of compliance.

§113.2163--If a semiannual report is required, when must I submit it?

The commission adopts new §113.2163, which requires that the semiannual report be submitted by August 1 of the year for data collected during the first half of the calendar year. The section requires that data collected during the second half of the calendar year be submitted in the semiannual report by February 1 of the following year.

§113.2164--What must I include in the semiannual out-of-compliance reports?

The commission adopts new §113.2164, which requires that three items be included in the semiannual reports: calendar dates in which limits were exceeded, along with averaged and recorded data, the reasons for exceeding the limits, and corrective actions; if stack tests indicate that emissions are above specified limits, a copy of the test report that documents emission levels and corrective actions; and for MWC units that apply activated carbon to control dioxins/furans or mercury emissions, documentation of all dates when the 8-hour block average carbon feed rate is less than the highest carbon feed rate established during the most recent mercury and dioxins/furans stack test and documentation of each quarter when total carbon purchased and delivered to the MWC plant is less than the total required quarterly usage of carbon.

§113.2165--Can reporting dates be changed?

The commission adopts new §113.2165, which states that if the executive director agrees, semiannual and annual reporting dates may be changed. The adopted section cites 40 CFR §60.19(c) (General notification and reporting requirements) for procedures to seek approval to change a reporting date.

§113.2166--What is an air curtain incinerator?

The commission adopts new §113.2166, which defines an air curtain incinerator. The adopted section states that an air curtain incinerator operates by forcefully projecting a curtain of air across an open chamber or open pit in which combustion occurs. The rules in this division require that owners or operators of air curtain incinerators obtain a Title V permit; however, these units are only required to comply with limited requirements, as opposed to larger entities.

§113.2167--What is yard waste?

The commission adopts new §113.2167, which defines yard waste as grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs. The adopted section further states that yard waste comes from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Finally, the adopted section states that yard waste does not include construction, renovation, and demolition wastes that are exempt from the definition of "Municipal solid waste" in §113.2100, or clean wood that is exempt from the definition of "Municipal solid waste" in §113.2100.

§113.2168--What are the emission limits for air curtain incinerators that burn 100 percent yard waste?

The commission adopts new §113.2168, which states that air curtain incinerators that burn 100 percent yard waste must meet an opacity limit of 10 percent (6-minute average) and 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation. The section states that the emission limits must be met by 180 days after the final compliance date.

§113.2169--How must I monitor opacity for air curtain incinerators that burn 100 percent yard waste?

The commission adopts new §113.2169, which requires the use of EPA Reference Method 9 in 40 CFR Part 60, Appendix A (Test Methods 1 through 30B), to determine compliance with the opacity limit. The adopted section states that an initial test must also be conducted as specified in 40 CFR §60.8 (Performance tests). Annual tests must be conducted no more than 13 calendar months following the date of the previous test. As discussed in the FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT portion of the proposal preamble, there would be costs associated with training for conducting opacity testing.

§113.2170--What are the recordkeeping and reporting requirements for air curtain incinerators that burn 100 percent yard waste?

The commission adopts new §113.2170, which requires that a notice of construction be provided that includes four items: intent to construct; planned initial startup date; types of fuels to be combusted; and capacity of the incinerator. The adopted section states that records of opacity test results, as well as copies of all reports, must be maintained onsite for each incinerator for at least 5 years and that all records must be made available to the executive director or for onsite review by an inspector. The adopted section further states that all opacity test results must be submitted by February 1 of the year following the year of the test as a paper copy, unless the executive director approves electronic submission.

§113.2171--What equations must I use?

The commission adopts new §113.2171, which details the equations that must be used in Division 3. Equations are provided to calculate the following: concentration correction to 7 percent oxygen; percent reduction in potential mercury emissions; percent reduction in potential hydrogen chloride emissions; capacity of an MWC unit; capacity of a batch MWC unit; and quarterly carbon usage, for plant basis and unit basis.

§113.2172--Does this subpart require me to obtain an operating permit under Title V of the Federal Clean Air Act?

The commission adopts new §113.2172, which states that units subject to Chapter 113, Subchapter D, Division 3 on the effective date of state plan approval or later are required to apply for and obtain a Title V operating permit. Because these rules and FCAA, §111(d)/129 State Plan are not enforceable by Texas until they are approved by the EPA, the commission proposes to state that applicants are subject to Division 3 on the effective date of state plan approval, rather than on the effective date of the division, which would be 20 days after the commission files the Chapter 113 rule adoption with the Texas Secretary of State's Office. Upon state plan approval, the commission will publish notice in the Texas Register and on the TCEQ Web site, to ensure that all affected entities are notified.

This section was not included in the emission guidelines published in the December 6, 2000, issue of the Federal Register ; however, it was included in the federal plan promulgation that was published in the January 31, 2003, issue of the Federal Register (68 FR 5144), as 40 CFR Part 62, Subpart JJJ, §65.15020 (Can my small municipal waste combustion unit be exempt from this subpart?) and §62.15395 (Does this subpart require me to obtain an operating permit under title V of the Clean Air Act?). The federal plan promulgation, including this Title V requirement, became effective on December 6, 2002. Therefore, to ensure that the incorporated rules are as protective as the EPA's rules, as required by FCAA, §129, the commission included this section regarding the Title V permit requirement into its incorporation in Division 3.

In particular, the commission notes that 40 CFR §60.1555 (Are any small municipal waste combustion units exempt from my State plan?) has added some confusion to whether air curtain incinerators are obligated to apply for and obtain Title V permits, since §60.1555 provides that air curtain incinerators that burn 100 percent yard waste must only meet the requirements under §§60.1910 - 60.1930, which do not include the requirement to apply for and obtain a Title V operating permit. As noted above, the federal plan for these sources, 40 CFR Part 62, Subpart JJJ, in §62.15020, requires that air curtain incinerators that burn 100 yard waste must meet only the requirements of §§62.15365 - 62.15385 and the Title V operating permit requirements of Subpart 62.

§113.2173--When must I submit a Title V permit application for my existing small municipal waste combustion unit?

The commission adopts new §113.2173, which contains the deadlines for submitting a complete Title V permit application for existing small MWC units. The Title V application submittal date is based either on the promulgation of 40 CFR Part 60, Subpart BBBB (December 6, 2003), or the effective date of the applicable state, tribal, or federal operating permits program, whichever is later. The section also defines a "complete" Title V permit application as one that has been determined or deemed complete by the relevant permitting authority under the FCAA, §503(d) and 40 CFR §70.5(a)(2).

To clarify and simplify the requirements of this section, the commission has deleted references to 40 CFR Part 71 in subsections (a) and (c), since federal requirements are contained within this part and they are not necessary for state implementation of the rules.

This section was not included in the emission guidelines published in the December 6, 2000, issue of the Federal Register ; however, it was included in the federal plan promulgation that was published in the January 31, 2003, issue of the Federal Register (68 FR 5144), as 40 CFR Part 62, Subpart JJJ, §62.15400 (When must I submit a title V permit application for my existing small municipal waste combustion unit?). The federal plan promulgation, including this Title V requirement, became effective on December 6, 2002. Therefore, to ensure that the incorporated rules are as protective as the EPA's rules, as required by FCAA, §129, the commission included this section regarding the Title V permit requirement into its incorporation in Division 3.

§113.2174--Tables Relating to Division 3.

The commission adopts new §113.2174, which contains the tables referenced in Division 3. These tables include the following: Compliance Schedules and Increments of Progress; Class I Emission Limits for Existing Small Municipal Waste Combustion Units; Class I Nitrogen Oxides Emission Limits for Existing Small Municipal Waste Combustion Units; Class II Emission Limits for Existing Small Municipal Waste Combustion Unit; Carbon Monoxide Emission Limits for Existing Small Municipal Waste Combustion Units; Requirements for Validating Continuous Emission Monitoring Systems (CEMS); Requirements for Continuous Emission Monitoring Systems (CEMS); and Requirements for Stack Tests.

Table 1 specifies the compliance schedules and increments of progress for Class I and Class II units. The emission guidelines for 40 CFR Part 60, Subpart BBBB define Class I units as small MWC units subject to the subpart that are located at MWC plants with an aggregate plant combustion capacity greater than 250 tons per day of municipal solid waste. Class II units are defined as small MWC units subject to the subpart that are located at MWC plants with aggregate plant combustion capacity less than or equal to 250 tons per day of municipal solid waste. If the owner or operator plans to achieve final compliance for a unit more than 1 year following the effective date of state plan approval, and a permit modification is not required, or more than 1 year following the date of issuance of a revised construction or operating permit if a permit modification is required, owners or operators of the units must meet the deadlines for defined increments of progress. Five increments of progress are required for Class I units, and two are required for Class II units. The last increment for both types of units is final compliance. The first increment for all units, which is submission of the final control plan, is within 60 days from the date the TCEQ publishes notice in the Texas Register of state plan approval. Class I units are required to meet three additional increments of progress before meeting the final compliance date, and these increment deadlines are: no later than 18 months from the date the TCEQ publishes notice in the Texas Register of state plan approval for Increment 2; no later than 24 months from the date the TCEQ publishes notice in the Texas Register of state plan approval for Increment 3; no later than 34 months from the date the TCEQ publishes notice in the Texas Register of state plan approval for Increment 4; and no later than 36 months from the date the TCEQ publishes notice in the Texas Register of state plan approval for Increment 5. Class II units must only meet Increment 1 and then Increment 5, or final progress. Class II units are also given no later than 36 months from the date the TCEQ publishes notice in the Texas Register of state plan approval to meet Increment 5.

To clarify and simplify the information in the tables contained in this section, the commission adopts minor formatting changes and has also deleted information that may confuse regulated entities, such as references to past federal compliance dates.

Division 4, Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units That Commenced Construction On or Before November 30, 1999 (40 CFR Part 60, Subpart DDDD)

§113.2200--Definitions.

The commission adopts new §113.2200, which defines terms used in new Division 4 that are either previously undefined or are used differently by the federal emission guidelines that are the basis for the rules. The definitions are taken from 40 CFR §60.2875 (What definitions must I know?).

For clarification, the commission adopts a modification to paragraph (14)(C), under the definition of deviation. In the portion of the sentence in paragraph (14)(C) that states ". . . regardless or whether or not such failure is permitted by this division. . .," the commission adopts insertion of the word "of." Therefore, the sentence would read as ". . .regardless of whether or not such failure is permitted by this division."

Also for clarification, the commission adopts a modification of paragraph (16), under the definition of discard. This definition includes a reference both to Division 4 and to 40 CFR Part 60, Subpart DDDD, and because the Chapter 113 rules in Division 4 are equivalent to Subpart DDDD, the additional wording is unnecessary. The definition of solid waste, paragraph (30), contains a similar reference to Subpart CCCC, and the commission also adopts the deletion of this reference, because Subpart CCCC applies to new sources, not existing sources, which is the subject of Division 4.

In the September 22, 2005, issue of the Federal Register (70 FR 55568), the EPA published amended versions of the definitions for solid waste, commercial or industrial waste, and CISWI unit. Because a federal court has issued a full vacatur of these three definitions, the versions contained in this rule package are the versions as published in the December 1, 2000, issue of the Federal Register (65 FR 75338).

§113.2201--What are my requirements for meeting increments of progress and achieving final compliance?

The commission adopts new §113.2201, which states that to achieve compliance more than 1 year following the effective date of the state plan approval, a final control plan must be submitted and final compliance must be achieved.

§113.2202--When must I complete each increment of progress?

The commission adopts new §113.2202, which states that the compliance dates for each increment of progress are established in Table 1 of Division 4 (§113.2261).

§113.2203--What must I include in the notifications of achievement of increments of progress?

The commission adopts new §113.2203, which requires that the following three items be included in the notification of achievement of increments of progress: notification that the increment of progress has been achieved; items required to be submitted with each increment of progress; and signature of the owner or operator of the unit.

§113.2204--When must I submit the notifications of achievement of increments of progress?

The commission adopts new §113.2204, which states that the notifications of achievement of increments of progress must be postmarked no later than 10 business days after the compliance date for the increment.

§113.2205--What if I do not meet an increment of progress?

The commission adopts new §113.2205, which states that a notification must be submitted to the executive director postmarked within 10 business days if an increment of progress is not met. The adopted section also states that reports must continue to be submitted until the increment of progress is met.

§113.2206--How do I comply with the increment of progress for submittal of a control plan?

The commission adopts new §113.2206, which states that to be in compliance with the increment of progress for submittal of a control plan, the final control plan must include the following: description of control devices and process changes; type of waste burned; maximum design waste burning capacity; maximum charge rate; and petition for site-specific operating limits, if applicable. In addition, a copy of the final control plan must be maintained onsite.

§113.2207--How do I comply with the increment of progress for achieving final compliance?

The commission adopts new §113.2207, which requires that all process changes and retrofit construction be completed for the final compliance of the increment of progress.

§113.2208--What must I do if I close my commercial and industrial solid waste incineration unit and then restart it?

The commission adopts new §113.2208, which states that if a CISWI unit is closed and restarted before the final compliance date, the increments of progress must be met as specified in §113.2201. The section states that if the CISWI is restarted after the final compliance date, emission control retrofits must be completed and the emission limitations and operating limits must be met on the date the unit restarts.

§113.2209--What must I do if I plan to permanently close my commercial and industrial solid waste incineration unit and not restart it?

The commission adopts new §113.2209, which states that if the owner or operator chooses to permanently close the CISWI unit rather than comply with the state plan, a closure notification must be submitted to the executive director by the date the final control plan is due.

§113.2210--What is a waste management plan?

The commission adopts new §113.2210, which states that a waste management plan is a written plan that identifies both the feasibility and the methods used to reduce or separate certain components of solid waste from the waste stream to reduce or eliminate toxic emissions from incinerated waste.

§113.2211--When must I submit my waste management plan?

The commission adopts new §113.2211, which specifies that Table 1 of Division 4 (§113.2261) contains the dates to submit the waste management plan.

§113.2212--What should I include in my waste management plan?

The commission adopts new §113.2212, which details what must be included in the waste management plan, such as consideration of the reduction or separation of waste-stream elements and any additional waste management measures. The adopted section states that measures that are considered practical and feasible, based on certain specific criteria, must be implemented.

§113.2213--What are the operator training and qualification requirements?

The commission adopts new §113.2213, which states that no CISWI unit can be operated unless a fully trained and qualified CISWI unit operator is accessible within 1 hour. The adopted section also states that operator training and qualification must be obtained through a state-approved program or an incinerator operator training course must be completed. The adopted section lists the three elements that the operator training course must include, which are: training on 11 topics as specified in this section; an examination designed and administered by the instructor; and written material covering the training course topics that can serve as a reference following completion of the course.

§113.2214--When must the operator training course be completed?

The commission adopts new §113.2214, which requires that the operator training course be completed by the later of the following: the final compliance date; six months after CISWI unit startup; or six months after an employee assumes responsibility for operating or supervising the operation of the CISWI unit.

§113.2215--How do I obtain my operator qualification?

The commission adopts new §113.2215, which states that operator qualification must be obtained by completing a training course. The adopted section also states that the qualification is valid from the date the training course is completed and the operator passes the examination successfully. As stated in §113.2216, operators must complete an annual review or refresher course to maintain qualification.

§113.2216--How do I maintain my operator qualification?

The commission adopts new §113.2216, which requires completion of an annual review or refresher course to maintain qualification. The section specifies that five topics must be included: update of regulations; incinerator operation; inspection and maintenance; malfunctions; and operating problems.

§113.2217--How do I renew my lapsed operator qualification?

The commission adopts new §113.2217, which requires completion of a standard annual refresher course or a repeat of the initial qualification requirements to renew a lapsed operator qualification. The requirement that applies is based on either a lapse of less than 3 years or 3 years or more.

§113.2218--What site-specific documentation is required?

The commission adopts new §113.2218, which requires the following for site-specific documentation: availability and accessibility of documents at the facility for all CISWI unit operators; establishment of a program for reviewing this information with each incinerator operator; and maintenance of specific CISWI unit operator information in the records.

§113.2219--What if all the qualified operators are temporarily not accessible?

The commission adopts new §113.2219, which states that a CISWI unit may be operated by other plant personnel familiar with the operation if all qualified operators are temporarily not accessible for more than 8 hours, but less than 2 weeks. The adopted section also states that if all qualified operators are not accessible for 2 weeks or more, the executive director must be notified within 10 days and a status report submitted every 4 weeks following the outlined conditions and procedures.

In paragraph (2)(A), the commission has added clarification that the notification to the executive director must be done within 10 days after the end of the 2-week period in which a certified operator is not accessible. The commission adopts the clarification regarding the beginning of the 10-day period to clearly outline the rule requirements for regulated entities, and similar clarification is added in §§113.2121, 113.2243, 113.2313, and 113.2341.

§113.2220--What emission limitations must I meet and by when?

The commission adopts new §113.2220, which requires that the emission limits specified in Table 2 of Division 4 (§113.2261) be met on the date the initial performance test is required or completed.

§113.2221--What operating limits must I meet and by when?

The commission adopts new §113.2221, which describes the operating limits based on whether a wet scrubber or fabric filter is used. In both cases, the operating limits established during the initial performance test must be met on the date the initial performance test is required or completed.

For clarification and for consistency with §113.2228, the commission has added the words "hydrogen chloride" rather than HCl in subsection (a)(4).

§113.2222--What if I do not use a wet scrubber to comply with the emission limitations?

The commission adopts new §113.2222, which requires a petition to the executive director for specific operating limits to be established during the initial performance test and continuously monitored thereafter for use of an air pollution control device other than a wet scrubber. The section states that the initial performance test must not be conducted until after the petition has been approved, and specifies five items that must be included in the petition.

§113.2223--What happens during periods of startup, shutdown, and malfunction?

The commission adopts new §113.2223, which requires that emission limitations and operating limits apply at all times except during startups, shutdowns, or malfunctions of the CISWI unit. The adopted section further states that each malfunction must last no longer than 3 hours.

§113.2224--How do I conduct the initial and annual performance test?

The commission adopts new §113.2224, which details the requirements for conducting initial and annual performance tests. The requirements include conducting a minimum of three test runs, and documenting that the waste burned during the test is representative. The adopted section specifies minimum run duration and test methods. The adopted section also includes an equation regarding the pollutant concentration that must be adjusted to 7 percent oxygen, except for opacity.

§113.2225--How are the performance test data used?

The commission adopts new §113.2225, which states that the results of the performance tests must be used to determine compliance with emission limitations in Table 2 of Division 4 (§113.2261).

§113.2226--How do I demonstrate initial compliance with the emission limitations and establish the operating limits?

The commission adopts new §113.2226, which requires an initial performance test to determine compliance with emission limitations and to establish operating limits. The adopted section states that the initial performance test must be conducted using the methods in Table 2 of Division 4 (§113.2261) and §113.2224.

§113.2227--By what date must I conduct the initial performance test?

The commission adopts new §113.2227, which requires that the initial performance test be conducted no later than 180 days after final compliance. The section further states that final compliance dates are specified in Table 1 of Division 4 (§113.2261).

The commission has also added language to clarify that the initial performance test must be conducted no later than 180 days after the deadline for the final compliance date.

§113.2228--How do I demonstrate continuous compliance with the emission limitations and the operating limits?

The commission adopts new §113.2228, which requires an annual performance test for particulate matter, hydrogen chloride, and opacity to determine compliance with emission limitations. The adopted section also states that the operating parameters must be continuously monitored and only the same types of waste used to establish the operating limits must be burned.

§113.2229--By what date must I conduct the annual performance test?

The commission adopts new §113.2229, which requires that the annual performance tests for particulate matter, hydrogen chloride, and opacity be conducted within 12 months following the initial performance test. The adopted section further states that subsequent annual performance tests must be conducted within 12 months following the previous one.

§113.2230--May I conduct performance testing less often?

The commission adopts new §113.2230, which allows performance testing to be conducted less often if there is test data for at least 3 years and all performance tests for the pollutant over 3 consecutive years show compliance. In addition, if the CISWI unit continues to meet the emission limitations, performance tests may be conducted every third year, but within 36 months of the previous performance test, unless there is a deviation.

§113.2231--May I conduct a repeat performance test to establish new operating limits?

The commission adopts new §113.2231, which allows a repeat performance test to establish new values for operating limits. The performance test must be repeated if the feed stream is different than the feed streams during any performance test used to demonstrate compliance.

§113.2232--What monitoring equipment must I install and what parameters must I monitor?

The commission adopts new §113.2232, which specifies that if a wet scrubber is used to comply with emission limitations, devices for monitoring the value of the operating parameters must be installed, calibrated, maintained, and operated so that the wet scrubber complies with the operating limits listed in Table 3 of Division 4 (§113.2261). The adopted section states that if a fabric filter is used, a bag leak detection system must be installed, calibrated, maintained, and continuously operated as specified in this section and if something other than a wet scrubber is used, equipment necessary to monitor compliance must be installed, calibrated, maintained, and operated.

§113.2233--Is there a minimum amount of monitoring data I must obtain?

The commission adopts new §113.2233, which requires that all monitoring be conducted at all times the CISWI unit is operating, except for monitoring malfunctions, associated repairs, and required quality assurance or quality control activities.

§113.2234--What records must I keep?

The commission adopts new §113.2234, which specifies the 13 items that must be recorded and maintained: calendar date of each record; records of various types of data; identification of calendar dates and times for which monitoring systems used to monitor operating limits were inoperative, inactive, malfunctioning, or out of control; identification of calendar dates, times, and durations of malfunctions; identification of calendar dates and times for which data show a deviation from the operating limits in Table 3 of this division (§113.2261); the results of the initial, annual, and any subsequent performance tests conducted to determine compliance with the emission limits and/or to establish operating limits, as applicable; records showing the names of CISWI unit operators who have completed review of the required site-specific documentation; records showing the names of CISWI unit operators who have completed the operator training requirements, met the criteria for qualification, and maintained or renewed qualification; for each qualified operator, a phone and pager number; records of calibration of any required monitoring devices; equipment vendor specifications and related operation and maintenance requirements for the incinerator, emission controls, and monitoring equipment; the information listed in §113.2218(a); and on a daily basis, a log of the quantity of waste burned and the types of waste burned. The section states that these records must be maintained for at least 5 years.

§113.2235--Where and in what format must I keep my records?

The commission adopts new §113.2235, which requires that records be available onsite, and in either paper or electronic format that can be printed upon request, unless an alternative format is approved by the executive director.

§113.2236--What reports must I submit?

The commission adopts new §113.2236, which states that the reporting requirements summary is contained in Table 5 of Division 4 (§113.2261).

§113.2237--When must I submit my waste management plan?

The commission adopts new §113.2237, which states that the dates for submittal of the waste management plan are located in Table 1 of Division 4 (§113.2261) for submittal of the final control plan.

§113.2238--What information must I submit following my initial performance test?

The commission adopts new §113.2238, which details the information that must be submitted no later than 60 days following the initial performance test. The adopted section states that these reports must be signed by the facilities manager.

§113.2239--When must I submit my annual report?

The commission adopts new §113.2239, which states that annual reports must be submitted no later than 12 months following the submittal of the information in §113.2238. The section also states that subsequent reports must be submitted no later than 12 months following the previous report.

§113.2240--What information must I include in my annual report?

The commission adopts new §113.2240, which details the ten items that must be included in the annual report. The ten items listed include: company name and address; statement by a responsible official, along with the official's name, title, and signature; date of report and beginning and ending dates of the reporting period; the values for the operating limits; if no deviation from any emission limitation or operating limit that applies to the owner or operator has been reported, a statement to that effect; the highest recorded 3-hour average and the lowest recorded 3-hour average, as applicable, for each operating parameter recorded by calendar year; information recorded under §113.2234(2)(F) and (3) through (5), by calendar year; if a performance test was conducted during the reporting period, the results of that test; if the requirements of §113.2230(a) or (b) were met, and a performance test was not conducted during the reporting period, a statement that the requirements of §113.2230(a) or (b) were met; and documentation of periods when all qualified CISWI unit operators were unavailable for more than 8 hours, but less than 2 weeks. The section also states that deviation reports must be submitted to record a deviation from the operating limits or the emission limitations.

§113.2241--What else must I report if I have a deviation from the operating limits or the emission limitations?

The commission adopts new §113.2241, which states that a deviation report must be submitted if any recorded 3-hour average parameter level is above the maximum operating limit or below the minimum operating limit established under this division, if the bag leak detection system alarm sounds for more than 5 percent of the operating time for the 6-month reporting period, or if a performance test was conducted that deviated from any emission limitation. The adopted section specifies that the deadline is August 1 for the first half of the calendar year, and February 1 for the second half of the calendar year.

§113.2242--What must I include in the deviation report?

The commission adopts new §113.2242, which details the six items that must be included in the deviation report: the calendar dates and times the unit deviated from the emission limitations or operating limit requirements; the averaged and recorded data; the duration and causes of each deviation from the emission limitations or operating limits and corrective actions; a copy of the operating limit monitoring date during each deviation and any test report that documents the emission levels; the dates, times, number, duration, and causes for monitoring downtime incidents; and whether each deviation occurred during a period of startup, shutdown, or malfunction, or during another period.

§113.2243--What else must I report if I have a deviation from the requirement to have a qualified operator accessible?

The commission adopts new §113.2243, which requires that if all qualified operators are not accessible for 2 weeks or more, a notification of the deviation must be submitted within 10 days and a status report must be submitted to the executive director every 4 weeks. The adopted section also states that a unit that was shut down by the executive director because of a failure to provide an accessible qualified operator requires notification to the executive director once operations resume and a qualified operator is accessible.

In subsection (a)(1), the commission has added clarification that the notification to the executive director must be done within 10 days after the end of the 2-week period in which a certified operator is not accessible. The commission adopts the clarification regarding the beginning of the 10-day period to clearly outline the rule requirements for regulated entities, and similar clarification is added in §§113.2121, 113.2219, 113.2313, and 113.2341.

§113.2244--Are there any other notifications or reports that I must submit?

The commission adopts new §113.2244, which requires that notifications or reports be submitted as required by 40 CFR §60.7 (Notification and record keeping).

§113.2245--In what form can I submit my reports?

The commission adopts new §113.2245, which allows initial, annual, and deviation reports to be submitted electronically or in paper format. The adopted section also specifies that reports must be postmarked on or before the submittal due dates.

§113.2246--Can reporting dates be changed?

The commission adopts new §113.2246, which allows semiannual or annual reporting dates to be changed if approved by the executive director. The section references 40 CFR §60.19(c) for procedures to seek approval to change a reporting date.

§113.2247--Am I required to apply for and obtain a Title V operating permit for my unit?

The commission adopts new §113.2247, which requires each CISWI unit owner or operator to obtain a Title V permit. As required by the model rule, the Title V application submittal date is based either on the promulgation of 40 CFR Part 60, Subpart DDDD (December 1, 2003), or on the effective date of the Title V permit program to which the unit is subject.

For further clarity and precision, the commission has changed the reference to the deadlines "noted above" in paragraph (2) to the deadlines noted in "this section."

§113.2248--What is an air curtain incinerator?

The commission adopts new §113.2248, which states that an air curtain incinerator operates by forcefully projecting a curtain of air across an open chamber or open pit in which combustion occurs. The adopted section further states that incinerators of this type can be constructed above or below ground and with or without refractory walls and floor.

In particular, the commission notes that 40 CFR §60.2555 (What combustion units are exempt from my State plan?) and this section have added some confusion to whether air curtain incinerators are obligated to apply for and obtain Title V permits, since both sections provide that air curtain incinerators that burn only 100 percent wood waste, 100 percent clean lumber, and 100 percent mixture of only wood waste, clean lumber, and/or yard waste must only meet the requirements under §§60.2810 - 60.2870, which do not include the requirement to apply for and obtain a Title V operating permit. However, the federal plan for these sources, 40 CFR Part 62, Subpart III, §62.14525, requires that air curtain incinerators that burn 100 percent wood waste, 100 percent clean lumber, and 100 percent mixture of only wood waste, clean lumber, and/or yard waste must meet only the requirements of §§62.14765 - 62.14825 and the Title V operating permit requirements of Subpart 62. Therefore, to further clarify the requirements for air curtain incinerators under §113.2248, the commission has added the following sentence at the end of subsection (b): "In addition, air curtain incinerators must meet the requirements of §113.2247 of this title (relating to Am I required to apply for and obtain a Title V operating permit for my unit?)."

§113.2249--What are my requirements for meeting increments of progress and achieving final compliance?

The commission adopts new §113.2249, which states that two increments of progress must be met if achieving compliance more than one year following the effective date of state plan approval: a final control plan must be submitted; and final compliance must be achieved.

§113.2250--When must I complete each increment of progress?

The commission adopts new §113.2250, which specifies that the compliance dates for each increment of progress are contained in Table 1 of Division 4 (§113.2261).

§113.2251--What must I include in the notifications of achievement of increments of progress?

The commission adopts new §113.2251, which states what must be included in the notification of achievement of increments of progress: notification of the achievement; any items required to be submitted with each increment of progress; and signature of the owner or operator of the incinerator.

§113.2252--When must I submit the notifications of achievement of increments of progress?

The commission adopts new §113.2252, which requires that the notifications of achievement of increments of progress be postmarked no later than 10 business days after the compliance date for the increment.

§113.2253--What if I do not meet an increment of progress?

The commission adopts new §113.2253, which states that if an increment of progress is not met, a notification must be submitted to the executive director postmarked within 10 business days after the date for that increment of progress. The adopted section further states that the submittal of reports must continue for each subsequent calendar month until the increment of progress is met.

§113.2254--How do I comply with the increment of progress for submittal of a control plan?

The commission adopts new §113.2254, which states that a control plan increment of progress must include submitting a final control plan and maintaining a copy onsite.

§113.2255--How do I comply with the increment of progress for achieving final compliance?

The commission adopts new §113.2255, which requires that all process changes and retrofit construction of control devices be completed for the final compliance increment of progress.

§113.2256--What must I do if I close my air curtain incinerator and then restart it?

The commission adopts new §113.2256, which states that if the incinerator is closed, but will reopen before the final compliance date, the increments of progress must be met. If the incinerator will restart after the final compliance date, emission control retrofits must be completed and emission limitations met on the date the incinerator restarts.

§113.2257--What must I do if I plan to permanently close my air curtain incinerator and not restart it?

The commission adopts new §113.2257, which states that if the incinerator will be closed rather than comply with the state plan, a closure notification must be submitted to the executive director by the date the final control plan is due.

§113.2258--What are the emission limitations for air curtain incinerators?

The commission adopts new §113.2258, which states that air curtain incinerators must meet an opacity limit of 10 percent (6-minute average) and 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation. The adopted section states that the requirements apply at all times except during malfunctions, and each malfunction must not exceed three hours.

§113.2259--How must I monitor opacity for air curtain incinerators?

The commission adopts new §113.2259, which requires the use of EPA Reference Method 9 in 40 CFR Part 60, Appendix A to determine compliance with the opacity limit. The adopted section states that an initial test must be conducted no later than 180 days after the final compliance date, and that annual tests must be conducted thereafter, no more than 12 calendar months following the date of the previous test.

As discussed in the FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT portion of the proposal preamble, there would be costs associated with training for conducting opacity testing.

§113.2260--What are the recordkeeping and reporting requirements for air curtain incinerators?

The commission adopts new §113.2260, which requires that records of opacity test results be maintained onsite for at least 5 years. The adopted section states that all records must be made available for submittal to the executive director or for an inspector's onsite review. Finally, the adopted section requires that an initial report be submitted no later than 60 days following the initial opacity test and that annual opacity test results be submitted within 12 months following the previous report.

§113.2261--Tables Relating to Division 4.

The commission adopts new §113.2261, which contains the tables as referenced in Division 4. The tables include the following: Increments of Progress and Compliance Schedules; Emission Limitations; Operating Limits for Wet Scrubbers; Toxic Equivalency Factors; and Summary of Reporting Requirements.

Table 1 specifies the compliance schedules and increments of progress for units subject to this division. Increment 1 is for submission of the final control plan, and the compliance date is no later than 12 months from the date the TCEQ publishes notice in the Texas Register of state plan approval. Increment 2 is for final compliance, and the compliance date is no later than 36 months from the date the TCEQ publishes notice in the Texas Register of state plan approval.

To clarify and simplify the information in the tables contained in this section, the commission adopts minor formatting changes and has also deleted information that may confuse regulated entities, such as references to past federal compliance dates.

Division 5, Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units That Commenced Construction On or Before December 9, 2004 (40 CFR Part 60, Subpart FFFF)

§113.2300--Definitions.

The commission adopts new §113.2300, which defines terms used in new Division 5 that are either previously undefined or are used differently by the federal emission guidelines that are the basis for the rules. The definitions are taken from 40 CFR §60.3078 (What definitions must I know?).

For clarification, the commission has modified paragraph (1)(C), under the definition of administrator. The commission has added that the NSPS are located within 40 CFR Part 60.

Also for clarification, the commission has modified paragraph (2), under the definition of air curtain incinerator. This definition contains a reference both to Division 5 and to 40 CFR Part 60, Subpart EEEE. The commission has deleted the subpart reference, because Subpart EEEE applies to new sources, not existing sources, which is the subject of Division 5. The definition of MWC unit, paragraph (28), contains a similar reference to Subpart EEEE, and the commission has also deleted the subpart reference.

§113.2301--When must I comply?

The commission adopts new §113.2301, which specifies the final compliance date in Table 1 of Division 5 (§113.2357), as December 16, 2010. The adopted section also states that notification of final compliance must be submitted to the executive director and postmarked within 10 business days after the final compliance date.

§113.2302--What must I do if I close my other solid waste incineration unit and then restart it?

The commission adopts new §113.2302, which requires achievement of final compliance by the date specified in Table 1 of Division 5 (§113.2357) if the OSWI unit closes and then will restart before this date. If the OSWI unit will restart after the final compliance date, an emission control retrofit must be completed and emission limitations met when the OSWI restarts.

§113.2303--What must I do if I plan to permanently close my other solid waste incineration unit and not restart it?

The commission adopts new §113.2303, which states that an OSWI unit must permanently close before the final compliance date specified in Table 1 of Division 5 (§113.2357).

§113.2304--What is a waste management plan?

The commission adopts new §113.2304, which states that a waste management plan is a written plan that identifies both the feasibility and the methods used to reduce or separate certain components of solid waste from the waste stream to reduce or eliminate toxic emissions from incinerated waste.

§113.2305--When must I submit my waste management plan?

The commission adopts new §113.2305, which requires that a waste management plan be submitted no later than 60 days following the initial performance test as specified in Table 5 of Division 5 (§113.2357).

§113.2306--What should I include in my waste management plan?

The commission adopts new §113.2306, which specifies what must be included in the waste management plan. The adopted section includes the following components: consideration of the reduction or separation of waste-stream elements; and identification of additional waste management measures and implementation of those measures that are considered practical and feasible, based on certain specific criteria.

§113.2307--What are the operator training and qualification requirements?

The commission adopts new §113.2307, which does not allow an OSWI unit to be operated unless a fully trained and qualified OSWI unit operator is accessible to the facility within 1 hour. The adopted section also states that operator training and qualification must be obtained through a state-approved program or by completing an incinerator operator training course that includes at least three of the elements listed. The elements include: training on 13 specified subjects; an examination designed and administered by the instructor; and written material covering the training course topics that may be a reference following completion of the course.

§113.2308--When must the operator training course be completed?

The commission adopts new §113.2308, which requires that the operator training be completed by the latest of the following three dates: the final compliance date as specified in Table 1 of Division 5 (§113.2357); six months after OSWI unit startup; or six months after an employee assumes responsibility for operating the OSWI unit or for supervising operation of the OSWI unit.

§113.2309--How do I obtain my operator qualification?

The commission adopts new §113.2309, which requires that operator qualification be obtained by completing a training course that satisfies certain criteria. The adopted section further states that qualification is valid from the date on which the training course is completed and the operator successfully passes the required examination. As stated in §113.2310, operators must complete an annual review or refresher course to maintain qualification.

§113.2310--How do I maintain my operator qualification?

The commission adopts new §113.2310, which states that to maintain operator qualification, an annual review or refresher course must be completed. The adopted section specifies that, at a minimum, five topics must be included: update of regulations; incinerator operation; inspection and maintenance; responses to malfunctions; and operating problems.

§113.2311--How do I renew my lapsed operator qualification?

The commission adopts new §113.2311, which states that if operator qualification lapses for less than 3 years, a standard annual refresher course must be completed. The adopted section states that if the lapse is 3 years or more, the initial qualification requirements must be repeated.

§113.2312--What site-specific documentation is required?

The commission adopts new §113.2312, which describes the site-specific documentation that is required to be in compliance. The adopted section specifies nine types of documents that must be available at the facility and readily accessible for all OSWI unit operators. The adopted section further states that a program for reviewing the information must be established with each incinerator operator by the dates specified. Finally, the adopted section includes the required training records.

§113.2313--What if all the qualified operators are temporarily not accessible?

The commission adopts new §113.2313, which states that depending on the length of time the qualified operator is not accessible, one of three criteria must be met. The criteria are: for 12 hours or less, the OSWI unit may be operated by other plant personnel familiar with the operation of the OSWI unit; for more than 12 hours, but less than 2 weeks, the OSWI unit may be operated by other plant personnel familiar with the operation of the OSWI unit; however, records of the period when the qualified operator was not accessible must be maintained and reported; for 2 weeks or more, the executive director must be notified of the deviation in writing within 10 days and status reports must be provided to the EPA every 4 weeks. The adopted section also states that status reports must outline what is being done to ensure that a qualified operator is accessible, when a qualified operator might be accessible, and contain a request for approval to continue operation.

In paragraph (3)(A), the commission has added clarification that the notification to the executive director must be done within 10 days after the end of the 2-week period in which a certified operator is not accessible. The commission adopts the clarification regarding the beginning of the 10-day period to clearly outline the rule requirements for regulated entities, and similar clarification has been added in §§113.2121, 113.2219, 113.2243, and 113.2341.

In paragraph (3)(B) and in paragraph (3)(B)(ii), the commission has changed the recipient of status reports and approval of continued operation from the EPA, as is stated in 40 CFR Part 60, Subpart FFFF, to the executive director. The commission adopts this change so that this section is consistent with §113.2121 (40 CFR §60.1685, Subpart BBBB) and with §113.2219 (40 CFR §60.2665, Subpart DDDD). The commission also adopts this change because it is appropriate that the TCEQ be informed of changes in the status of qualified operators for consistent and effective enforcement of the rules.

§113.2314--What emission limitations must I meet and by when?

The commission adopts new §113.2314, which states that the emission limitations that must be met on the date the initial performance test is required or completed are specified in Table 2 of Division 5 (§113.2357).

§113.2315--What operating limits must I meet and by when?

The commission adopts new §113.2315, which, for wet scrubbers, requires that operating limits for four operating parameters be established: maximum charge rate; minimum pressure drop across the wet scrubber; minimum scrubber liquor flow rate; and minimum scrubber liquor pH. The operating limits established during the initial performance test must be met beginning on the date 180 days after the final compliance date.

§113.2316--What if I do not use a wet scrubber to comply with the emission limitations?

The commission adopts new §113.2316, which states that if an air pollution control device other than a wet scrubber is used, or emissions are limited in some other manner to comply with the emission limitations, a petition must be submitted to the EPA for specific operating limits, the values of which are to be established during the initial performance test and then continuously monitored thereafter. The adopted section states that an initial performance test must not be conducted until after the petition has been approved by the EPA. A listing of what must be included in the petition is detailed in this section.

§113.2317--What happens during periods of startup, shutdown, and malfunction?

The commission adopts new §113.2317, which states that emission limitations and operating limits apply at all times, except during OSWI unit startups, shutdowns, or malfunctions.

For clarification, the commission has added that OSWI unit startups, shutdowns, and malfunctions must last no longer than 3 hours. This additional language will make this section consistent with similar sections in Division 3 (§113.2123) and Division 4 (§113.2223).

§113.2318--How do I conduct the initial and annual performance test?

The commission adopts new §113.2318, which requires that all performance tests be conducted using the methods and specifications listed in this section to be in compliance.

§113.2319--How are the performance test data used?

The commission adopts new §113.2319, which requires that the results of performance tests be used to demonstrate compliance with the emission limits in Table 2 of Division 5 (§113.2357).

§113.2320--How do I demonstrate initial compliance with the emission limitations and establish the operating limits?

The commission adopts new §113.2320, which requires that an initial performance test be conducted to determine compliance with the emission limitations and to establish operating limits. The adopted section states that the requirements for emission limitations and the test methods for the initial performance test are found in Table 2 of Division 5 (§113.2357).

§113.2321--By what date must I conduct the initial performance test?

The commission adopts new §113.2321, which requires that the initial performance test be conducted no later than 180 days after the final compliance date listed in Table 1 of Division 5 (§113.2357).

§113.2322--How do I demonstrate continuous compliance with the emission limitations and the operating limits?

The commission adopts new §113.2322, which requires that an annual performance test be conducted for all the pollutants in Table 2 of Division 5 (§113.2357) for each OSWI unit to determine compliance with the emission limits. The adopted section also states that to determine compliance with the carbon monoxide limits, carbon monoxide emissions and operating parameters must be continuously monitored.

§113.2323--By what date must I conduct the annual performance test?

The commission adopts new §113.2323, which requires that annual performance tests be conducted within 12 months of the initial performance test. The adopted section also states that subsequent annual performance tests must be conducted within 12 months following the previous one.

§113.2324--May I conduct performance testing less often?

The commission adopts new §113.2324, which allows performance tests to be conducted less often for a given pollutant if test data exists for at least three consecutive annual tests, and all performance tests over that period show compliance with the emission limit. The adopted section further states that if a performance test shows a deviation from an emission limitation for any pollutant, annual tests must be conducted for that pollutant until three consecutive annual performance tests for that pollutant all demonstrate compliance.

§113.2325--May I conduct a repeat performance test to establish new operating limits?

The commission adopts new §113.2325, which allows a repeat performance test to be conducted at any time to establish new operating limits. The adopted section also states that the executive director may request a repeat performance test at any time.

§113.2326--What continuous emission monitoring systems must I install?

The commission adopts new §113.2326, which requires that continuous emission monitoring systems be installed, calibrated, maintained, and operated for carbon monoxide and oxygen. The adopted section states that each continuous emission monitoring system must be in compliance with 40 CFR §60.13.

§113.2327--How do I make sure my continuous emission monitoring systems are operating correctly?

The commission adopts new §113.2327, which details the four requirements for ensuring that the continuous emission monitoring systems are operating correctly. The adopted section specifies evaluation and quality assurance procedures that must be followed.

For clarification in subsection (c), the commission has specified that the reference to EPA Method 3 or 3A is located in 40 CFR Part 60, Appendix A.

§113.2328--What is my schedule for evaluating continuous emission monitoring systems?

The commission adopts new §113.2328, which requires that annual evaluations of the continuous emission monitoring systems be conducted no more than 12 months after the previous evaluation. The adopted section also states that daily and quarterly evaluations must be conducted in accordance with 40 CFR Part 60, Appendix F.

§113.2329--What is the minimum amount of monitoring data I must collect with my continuous emission monitoring systems, and is the data collection requirement enforceable?

The commission adopts new §113.2329, which details the minimum amount of monitoring data that is required to be collected from the continuous emission monitoring systems to be in compliance. The adopted section also states that a failure to obtain the minimum required data is a deviation from the data collection requirement. The adopted section further references Table 4 in Division 5 (§113.2357) for alternatives if continuous emission monitoring systems are temporarily unavailable to meet the data collection requirements.

§113.2330--How do I convert my 1-hour arithmetic averages into the appropriate averaging times and units?

The commission adopts new §113.2330, which requires the use of equations in 30 TAC §113.2356 (What equations must I use?) to calculate emissions at 7 percent oxygen and the 12-hour rolling averages for concentrations of carbon monoxide.

§113.2331--What operating parameter monitoring equipment must I install, and what operating parameters must I monitor?

The commission adopts new §113.2331, which specifies required procedures for using a wet scrubber or a method or air pollution control device other than a wet scrubber to comply with the emission limitations.

§113.2332--Is there a minimum amount of operating parameter monitoring data I must obtain?

The commission adopts new §113.2332, which requires that monitoring be conducted at all times the OSWI unit is operating, except for monitor malfunctions, associated repairs, and required quality assurance or control activities. The adopted section states that valid data must be obtained for at least 75 percent of the operating hours per day for at least 90 percent of the operating days per calendar quarter and that to not obtain the minimum data is a deviation.

§113.2333--What records must I keep?

The commission adopts new §113.2333, which lists the 14 items that must be maintained for a period of at least 5 years: the calendar date of each record; several types of records as specified in the section; an identification of calendar dates and times for which continuous emission monitoring systems or monitoring systems used to monitor operating limits were inoperative, inactive, malfunctioning, or out of control; an identification of calendar dates, times, and durations of malfunctions; an identification of calendar dates and times for which monitoring data show a deviation from the carbon monoxide emissions limit in Table 2 of this division (§113.2357) or a deviation from the operating limits in Table 3 of this division (§113.2357) or a deviation from other operating limits established under §113.2316; calendar dates when continuous monitoring systems did not collect the minimum amount of data required under §113.2329 and §113.2332; for carbon monoxide continuous emissions monitoring systems, documentation of the results of the daily drift tests and quarterly accuracy determinations; records of the calibration of any monitoring devices required under §113.2331; the results of the initial, annual, and any subsequent performance tests conducted to determine compliance with the emission limits and/or to establish operating limits, as applicable; records showing the names of OSWI unit operators who have completed review of the information in §113.2312(a) as required by §113.2312(b); records showing the names of the OSWI unit operators who have completed the operator training requirements under §113.2307, met the criteria for qualification under §113.2309, and maintained or renewed their qualification under §113.2310 or §113.2311; for each qualified operator, the phone and/or pager number at which the operator can be reached; equipment vendor specifications and related operation and maintenance requirements for the incinerator, emission controls, and monitoring equipment; and the information listed in §113.2312(a).

§113.2334--Where and in what format must I keep my records?

The commission adopts new §113.2334, which requires that records be maintained on site for at least 2 years. The adopted section states that the records may be maintained off site for the remaining 3 years, and that all records must be in paper or electronic format that can be printed upon request, unless an alternative format has been approved by the executive director.

For clarification, the commission has stated at the beginning of subsection (a) that each record must be maintained for at least 5 years. This additional language ensures that there is no conflict with the requirements of §113.2333.

§113.2335--What reports must I submit?

The commission adopts new §113.2335, which states that reporting requirements are located in Table 5 of Division 5 (§113.2357).

§113.2336--What information must I submit following my initial performance test?

The commission adopts new §113.2336, which states that the following information must be submitted no later than 60 days following the initial performance test: the complete test report; values for the site-specific operating limits; and the waste management plan.

§113.2337--When must I submit my annual report?

The commission adopts new §113.2337, which requires that the annual report be submitted no later than 12 months following the submission of information required in §113.2336. The adopted section further states that subsequent reports must be submitted no more than 12 months following the previous report.

§113.2338--What information must I include in my annual report?

The commission adopts new §113.2338, which lists the 10 items that are required to be included in the annual report to be in compliance: company name and address; statement by the owner or operator certifying the truth, accuracy, and completeness of the report; the date of the report and beginning and ending dates of the reporting period; the values for the operating limits; if no deviation from any emission limitation or operating limit that applies to the owner or operator has been reported, a statement that there was no deviation from the emission limitations or operating limits during the reporting period; the highest recorded 12-hour average and the lowest recorded 12-hour average, as applicable, for carbon monoxide emissions and the highest recorded 3-hour average and the lowest recorded 3-hour average, as applicable, for each operating parameter recorded for the calendar year being reported; information recorded under §113.2333(2)(F) and (3) through (5) for the calendar year being reported; if a performance test was conducted during the reporting period, the results of that test; if the requirements of §113.2324(a) or (b) were met, and a performance test was not conducted during the reporting period, a statement that the requirements of §113.2324(a) or (b) were met, and therefore, a performance test was not required during the reporting period; and documentation of periods when all qualified OSWI unit operators were unavailable for more than 12 hours, but less than 2 weeks.

To clarify and simplify the requirements of this section, the commission has deleted the reference to 40 CFR Part 71 in paragraph (2), since federal requirements are contained within this part and they are not necessary for state implementation of the rules.

§113.2339--What else must I report if I have a deviation from the operating limits or the emission limitations?

The commission adopts new §113.2339, which requires that a deviation report be submitted if any recorded 3-hour average parameter level is above the maximum operating limit or below the minimum operating limit, if any recorded 12-hour average carbon monoxide emission rate is above the emission limitation, if the control device was bypassed, or if a performance test was conducted that showed a deviation from any emission limitation. The adopted section also states that the deviation report must be submitted by August 1 of the year the data was collected during the first half of the calendar year (January 1 to June 30), and by February 1 of the following year for data collected during the second half of the calendar year (July 1 to December 31).

§113.2340--What must I include in the deviation report?

The commission adopts new §113.2340, which details the seven items that must be included in deviation reports for any pollutant or operating parameter that deviated from the emission limitations or operating limits: the calendar dates and times the unit deviated from the emission limitations or operating limit requirements; the averaged and recorded data for those dates; durations and causes of each deviation from the emission limitations or operating limits and your corrective actions; a copy of the operating limit monitoring data during each deviation and any test report that documents the emission levels; the dates, times, number, duration, and causes for monitor downtime incidents; whether each deviation occurred during a period of startup, shutdown, or malfunction, or during another period; and the dates, times, and durations of any bypass of the control device.

§113.2341--What else must I report if I have a deviation from the requirement to have a qualified operator accessible?

The commission adopts new §113.2341, which states that if all qualified operators are not accessible for 2 weeks or more, a notification of deviation must be submitted within 10 days and a status report must be submitted to the EPA every 4 weeks. In addition, the adopted section states that a request must be submitted to the EPA to continue operation of the OSWI unit. The adopted section further states that the EPA must be notified once a qualified operator is accessible and operations have resumed if the unit was shut down by the EPA due to a failure to provide an accessible qualified operator.

In subsection (a)(1), the commission has added clarification that the notification to the executive director must be done within 10 days after the end of the 2-week period in which a certified operator is required to be onsite. The commission adopts the clarification regarding the beginning of the 10-day period to clearly outline the rule requirements for regulated entities, and similar clarification has been added in §§113.2121, 113.2219, 113.2243, and 113.2313.

In subsection (a)(2), subsection (a)(2)(C), and in subsection (b), the commission has changed the recipient of status reports and approval of continued operation from the EPA, as is stated in 40 CFR Part 60, Subpart FFFF, to the executive director. The commission adopts this change so that this section is consistent with §113.2243 (40 CFR §60.2785, Subpart DDDD). The commission also adopts this change because it is appropriate that the TCEQ be informed of changes in the status of qualified operators for consistent and effective enforcement of the rules.

§113.2342--Are there any other notifications or reports that I must submit?

The commission adopts new §113.2342, which requires that the notifications in 40 CFR §60.7 also be submitted.

§113.2343--In what form can I submit my reports?

The commission adopts new §113.2343, which requires that initial, annual, and deviation reports be submitted electronically or in paper format, postmarked on or before the submittal due dates.

§113.2344--Can reporting dates be changed?

The commission adopts new §113.2344, which states that if the executive director agrees, the semiannual and annual reporting dates may be changed. The adopted section references 40 CFR §60.19(c) for the required procedures to seek approval to change a reporting date.

§113.2345--Am I required to apply for and obtain a Title V operating permit for my unit?

The commission adopts new §113.2345, which states that unless you meet the requirements for an exemption in 40 CFR §60.2993 (Are any combustion units excluded from my State plan?), if you are subject to an applicable EPA-approved and effective FCAA, §111(d)/129 state or tribal plan or an applicable and effective federal plan, you are required to apply for and obtain a Title V operating permit. The rules in this division require that owners or operators of air curtain incinerators obtain a Title V permit; however, these units are only required to comply with limited requirements, as opposed to larger entities.

§113.2346--When must I submit a Title V permit application for my existing unit?

The commission adopts new §113.2346, which provides the specific dates that a Title V permit application must be submitted for existing units: 12 months after the effective date of any applicable EPA-approved FCAA, §111(d)/129 state or tribal plan; 12 months after the effective date of any applicable federal plan; or December 16, 2008, whichever is earlier. Because there is currently no approved state or federal plan, December 16, 2008, is the required submission date for federal operating permit applications.

To clarify and simplify the requirements of this section, the commission has deleted references to 40 CFR Part 71 in subsections (a), (c), and (d), since federal requirements are contained within this part and they are not necessary for state implementation of the rules.

§113.2347--What are the requirements for temporary-use incinerators and air curtain incinerators used in disaster recovery?

The commission adopts new §113.2347, which states that temporary-use incinerators and air curtain incinerators used in disaster recovery are exempt from Division 5 if they follow certain requirements. The adopted section defines a disaster or emergency as a tornado, hurricane, flood, ice storm, high winds, or act of bioterrorism, and specifies that the exclusion only applies in an area declared a State of Emergency. The adopted section specifies the periods of time and required notifications for the exclusion from the rules in Division 5.

§113.2348--What is an air curtain incinerator?

The commission adopts new §113.2348, which states that an air curtain incinerator operates by forcefully projecting a curtain of air across an open, integrated combustion chamber (fire box) or open pit or trench (trench burner) in which combustion occurs. The adopted section also states that air curtain incinerators used to burn only 100 percent wood waste, clean lumber, yard waste, or a mixture of the three materials are required to meet only the requirements in §§113.2348 - 113.2355.

For clarification, the commission has modified the wording in subsection (a), which contains a reference both to Division 5 and to 40 CFR Part 60, Subpart EEEE. The commission has deleted the subpart reference, because Subpart EEEE applies to new sources, not existing sources, which is the subject of Division 5.

§113.2349--When must I comply if my air curtain incinerator burns only wood waste, clean lumber, and yard waste?

The commission adopts new §113.2349, which requires air curtain incinerators that burn only wood waste, clean lumber, and yard waste to comply with the final compliance date listed in Table 1 of Division 5 (§113.2357). The adopted section states that notification to the executive director is required and must be postmarked within 10 business days after the final compliance date.

§113.2350--What must I do if I close my air curtain incinerator that burns only wood waste, clean lumber, and yard waste and then restart it?

The commission adopts new §113.2350, which states that if the incinerator is closed, but will reopen before the final compliance date, the final compliance date specified in Table 1 of Division 5 (§113.2357) must be met. If the incinerator is closed, but will restart after the final compliance date, the emission limitations must be met on the date the incinerator restarts operation.

§113.2351--What must I do if I plan to permanently close my air curtain incinerator that burns only wood waste, clean lumber, and yard waste and not restart it?

The commission adopts new §113.2351, which states that if the incinerator is permanently closed and will not restart, the unit must be closed before the final compliance date listed in Table 1 of Division 5 (§113.2357).

§113.2352--What are the emission limitations for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?

The commission adopts new §113.2352, which states that within 180 days after the final compliance date in Table 1 of Division 5 (§113.2357), air curtain incinerators that burn only wood waste, clean lumber, and yard waste must meet an opacity limit of 10 percent (6-minute average) and 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation.

Upon adoption, for clarification, the commission has added in subsection (b) that malfunctions must last no longer than 3 hours. This additional language will make this section consistent with similar sections in Division 3 (§113.2123), Division 4 (§113.2223), and Division 5 (§113.2317).

§113.2353--How must I monitor opacity for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?

The commission adopts new §113.2353, which requires the use of EPA Reference Method 9 in 40 CFR Part 60, Appendix A, to determine compliance with the opacity limit. An initial test would be conducted within 180 days after the final compliance date, and annual tests conducted thereafter. As discussed in the FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT portion of the proposal preamble, there would be costs associated with training for conducting opacity testing.

§113.2354--What are the recordkeeping and reporting requirements for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?

The commission adopts new §113.2354, which requires that records of results of all initial and annual opacity test results, as well as a copy of the initial and annual reports, be maintained for at least 5 years. The adopted section also states that records of results must be kept in either paper copy or computer-readable format that can be printed upon request, and that all records must be made available to the executive director or for an inspector's review. The adopted section further states that an initial report must be submitted no later than 60 days following the initial opacity test and annual opacity test results must be submitted within 12 months following the previous report. As specified in the adopted section, initial and annual opacity test reports must be submitted as electronic or paper copy on or before the applicable submittal date.

§113.2355--Am I required to apply for and obtain a Title V operating permit for my air curtain incinerator that burns only wood waste, clean lumber, and yard waste?

The commission adopts new §113.2355, which specifies that if the air curtain incinerator is subject to Division 5, an application for a Title V operating permit must be submitted. 40 CFR §60.2993 contains a listing of types of units that are excluded from the requirements of the state plan, as long as the owner or operator meets the requirements of 40 CFR §60.2993.

§113.2356--What equations must I use?

The commission adopts new §113.2356, which contains the two equations that must be used in Division 5. The equations are for determining the following: pollutant concentration adjusted to 7 percent oxygen and average carbon monoxide pollutant rate for each 12-hour period.

For clarification and for consistency with the equation contained within subsection (a), the commission has used the word "oxygen," rather than using O₂ in subsection (d).

§113.2357--Tables Relating to Division 5.

The commission adopts new §113.2357, which contains the tables relating to Division 5. The tables are as follows: Compliance Schedule; Emission Limitations; Operating Limits for Incinerators and Wet Scrubbers; Requirements for Continuous Emission Monitoring Systems (CEMS); and Summary of Reporting Requirements.

Table 1 specifies the compliance schedule for units subject to this division. Final compliance is required by December 16, 2010.

To clarify and simplify the information in the tables contained in this section, the commission adopts minor formatting changes and has also deleted information that may confuse regulated entities, such as references to past federal compliance dates.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a major environmental rule as defined in that statute, and in addition, if it did meet the definition, would not be subject to the requirement to prepare a regulatory impact analysis.

A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, 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 specific intent of these rules is to adopt emission guidelines for existing certain solid waste incineration units mandated by 42 United States Code (USC), and required to be included in operating permits by 42 USC, §7661a, as specified elsewhere in this preamble. These sources are required to comply with the emission guidelines whether or not the commission adopts the emission guidelines or takes delegation from the EPA, due to the federal plans that are adopted by the EPA to implement and enforce the emission guidelines if states do not adopt state plans to do so. As discussed in the FISCAL NOTE portion of the proposal preamble, the adopted rules are not anticipated to add any significant additional costs to affected individuals or businesses beyond what is already required to comply with these federal standards on 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.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

Under 42 USC, §7661a, states are required to have federal operating permit programs that provide authority to issue permits and assure compliance with each applicable standard, regulation, or requirement under the FCAA, including emission guidelines, which are required under 42 USC, §7429. Similar to requirements in 42 USC, §7410, regarding the requirement to adopt and implement plans to attain and maintain the national ambient air quality standards, states are not free to ignore requirements in 42 USC, §7661a, and must develop and submit programs to provide for operating permits for major sources that include all applicable requirements of the FCAA. Additionally, states are required by 42 USC, §7429 to adopt and implement plans to implement and enforce emission guidelines.

The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th legislative session. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.

Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule proposed by the commission to meet a federal requirement was considered to be a major environmental rule that exceeds federal law, then each of those rules would require the full regulatory impact analysis contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the Legislative Budget Board, the commission believes that the intent of SB 633 was only to require the full regulatory impact analysis for rules that are extraordinary in nature. While the adopted rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA, and in fact creates no additional impacts since the adopted rules do not modify the federal emission guidelines in any substantive aspect, but merely provide for minor administrative changes as described elsewhere in this preamble. For these reasons, the adopted rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law.

The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue , 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co. , 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co. , 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div. , 563 S.W.2d 916 (Tex. 1978).)

The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act by the legislature in 1999. In an attempt to limit the number of rule challenges based upon Administrative Procedure Act requirements, the legislature clarified that state agencies are required to meet these sections of the Administrative Procedure Act against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. As discussed in this analysis and elsewhere in this preamble, the commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

The adopted rules implement requirements of the FCAA. The emission guidelines being incorporated into state law are federal standards that are required by 42 USC, §7429, required to be included in permits under 42 USC, §7661a, adopted with only minor administrative changes, and will not exceed any standard set by state or federal law. These rules are not an express requirement of state law. The adopted rules do not exceed a requirement of a delegation agreement or a contract between state and federal government, as the EPA will delegate implementation and enforcement of the emission guidelines to Texas if this rulemaking is adopted. The new rules were not developed solely under the general powers of the agency, but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this adopted rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b).

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. The commission did not receive any comments.

TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2007.002(5), taking means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.

The commission completed a takings impact analysis for the adopted rulemaking action under the Texas Government Code, §2007.043. The primary purpose of this rulemaking action, as discussed elsewhere in this preamble, is to adopt emission guidelines for certain solid waste incineration units, as specified elsewhere in this preamble, mandated by 42 USC, §7429 and required to be included in operating permits by 42 USC, §7661a and facilitate implementation and enforcement of the emission guidelines by the state. The adopted rules will not create any additional burden on private real property. Under federal law, the affected industries will be required to comply with the emission guidelines regardless of whether the commission or the EPA is the agency responsible for implementation of the emission guidelines. The adopted rules will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adoption also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the adopted rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that the adoption is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §505.22, and found the adopted rulemaking is consistent with the applicable CMP goals and policies.

CMP goals applicable to the adopted rules are to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. The CMP policy applicable to the adopted rules is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC §501.32). These rules are consistent because the emission guidelines incorporated through this rulemaking implement state rules that are as strict as the minimum emission guidelines found in 40 CFR Part 60, Subparts BBBB, DDDD, and FFFF.

Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rules are consistent with these CMP goals and policies and because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas.

The commission invited public comment regarding the consistency with the coastal management program during the public comment period. The commission did not receive any comments.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Chapter 113 is an applicable requirement under 30 TAC Chapter 122 (Federal Operating Permits Program). Owners or operators subject to the federal operating permit program must, consistent with the revision process in Chapter 122, upon the effective date of the adopted rulemaking, revise their operating permit to include the new Chapter 113 requirements. Additionally, sources subject to the emission guidelines may become subject to the federal operating permit program.

PUBLIC COMMENT

The commission held a public hearing on the proposed Chapter 113 rules and FCAA, §111(d)/129 State Plan in Austin, Texas, on January 5, 2009. The comment period closed January 7, 2009. The commission received one written comment on the proposed rulemaking, and it was from the U.S. Environmental Protection Agency (EPA).

RESPONSE TO COMMENTS

The EPA commented that it strongly supports the proposed rule revision and the EPA also stated that it believes the Chapter 113 amendments to be in compliance with 40 CFR Part 60, Subparts BBBB, DDDD, and FFFF.

The commission appreciates the EPA's support of the proposed rules and state plan.

DIVISION 3. EMISSION GUIDELINES AND COMPLIANCE TIMES FOR SMALL MUNICIPAL WASTE COMBUSTION UNITS CONSTRUCTED ON OR BEFORE AUGUST 30, 1999

30 TAC §§113.2100 - 113.2174

STATUTORY AUTHORITY

The new sections are adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act. The new sections are also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants; and §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the Texas Clean Air Act. The new sections are also adopted under the Texas Water Code, §7.002, Enforcement Authority, which authorizes the commission to institute legal proceedings to compel compliance; §7.032, Injunctive Relief, which provides that injunctive relief may be sought by the executive director; and §7.302, Grounds for Revocation or Suspension of Permit, which provides authority to the commission to revoke or suspend any air quality permit.

The adopted new sections implement Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.016, 382.017, and 382.051.

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 April 24, 2009.

TRD-200901535

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2009

Proposal publication date: November 21, 2008

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

30 TAC §§113.2200 - 113.2261

STATUTORY AUTHORITY

The new sections are adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act. The new sections are also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants; and §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the Texas Clean Air Act. The new sections are also adopted under the Texas Water Code, §7.002, Enforcement Authority, which authorizes the commission to institute legal proceedings to compel compliance; §7.032, Injunctive Relief, which provides that injunctive relief may be sought by the executive director; and §7.302, Grounds for Revocation or Suspension of Permit, which provides authority to the commission to revoke or suspend any air quality permit.

The adopted new sections implement Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.016, 382.017, and 382.051.

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 April 24, 2009.

TRD-200901536

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2009

Proposal publication date: November 21, 2008

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

30 TAC §§113.2300 - 113.2357

STATUTORY AUTHORITY

The new sections are adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act. The new sections are also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants; and §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the Texas Clean Air Act. The new sections are also adopted under the Texas Water Code, §7.002, Enforcement Authority, which authorizes the commission to institute legal proceedings to compel compliance; §7.032, Injunctive Relief, which provides that injunctive relief may be sought by the executive director; and §7.302, Grounds for Revocation or Suspension of Permit, which provides authority to the commission to revoke or suspend any air quality permit.

The adopted new sections implement Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.016, 382.017, and 382.051.

§113.2317.What happens during periods of startup, shutdown, and malfunction?

The emission limitations and operating limits apply at all times except during other solid waste incineration unit startups, shutdowns, or malfunctions, which must last no longer than 3 hours.

§113.2352.What are the emission limitations for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?

(a) Within 180 days after your final compliance date in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5), you must meet the two limitations specified in paragraphs (1) and (2) of this subsection.

(1) The opacity limitation is 10 percent (6-minute average), except as described in paragraph (2) of this subsection.

(2) The opacity limitation is 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation.

(b) The limitations in subsection (a) of this section apply at all times except during malfunctions, which must last no longer than 3 hours.

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 April 24, 2009.

TRD-200901537

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: May 14, 2009

Proposal publication date: November 21, 2008

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