Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 101.
GENERAL AIR QUALITY RULES
Subchapter A. GENERAL RULES
30 TAC §§101.1, 101.6, 101.7, 101.11
The Texas Natural Resource Conservation Commission (TNRCC
or commission) proposes amendments to §101.1, concerning Definitions; §101.6,
concerning Upset Reporting and Recordkeeping Requirements; §101.7, concerning
Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational
Requirements; and §101.11, concerning Exemptions from Rules and Regulations;
and revisions to the State Implementation Plan (SIP). The commission also
proposes to withdraw the revisions to the SIP which included the amendments
to these rules effective August 5, 1997.
BACKGROUND AND SUMMARY OF THE FACTUAL BASE FOR THE PROPOSED RULES
On July 9, 1997, the commission adopted amendments to the sections in Chapter
101 concerning the upset, maintenance, start-up and shutdown rules that are
the subject of this proposal. These amendments modified the method by which
owners and operators of sources releasing excess emissions due to upset, maintenance,
start-up and shutdown (U/M) events would report those episodes to the commission.
The adopted amendments used the concept of a "reportable quantity" (RQ) to
govern when a source must report excess emissions due to upsets. Based on
similar rules concerning solid waste and on evaluation of the effects of emissions
of regulated compounds to the atmosphere, the amendments did not require a
report of U/M emissions below a significance threshold. The owner or operator
of the source is required to keep records of all U/M events, but is only required
to report to the commission those events where the U/M emissions equal or
exceed an RQ. This report must be submitted to the commission within 24 hours
of discovery of the event. Records of events below the RQ are maintained at
the source site and are to be made available to the commission on request.
The 1997 amendments also required that records of U/M events causing unauthorized
emissions, both reportable and not, contain specific information including
date, time, duration, substance released and quantity, cause of the event,
and actions taken to correct the situation. To gain an exemption from emission
limitations, owners or operators must first comply with this reporting requirement.
Additionally, the episode must have been reasonably avoidable, the operator
must have taken appropriate corrective actions as soon as practicable after
the onset of the event, and the operator must have minimized the emissions
to the extent practicable. Similar requirements were adopted for excess emissions
resulting from maintenance, start-up, or shutdown of a source. The commission
adopted these amendments and requested staff to examine the effectiveness
of the rules as implemented over the next two years. Additionally, the commission
submitted the rules to the United States Environmental Protection Agency (EPA)
as a revision to the SIP. The commission adopted the 1997 amendments to reduce
the number of U/M reports being submitted, through the use of RQs, allowing
concentration of staff time on the most significant or higher priority events.
While records of all events are kept on-site, the number of reports submitted
to the commission has been limited to significant events. Reporting has been
reduced by approximately 50%.
In November 1998, EPA informed the commission that the 1997 amended version
of the U/M rules could not be approved as a SIP revision and that it intended
to begin formal disapproval procedures. EPA specifically cited the reporting
requirements of the rule as being deficient. Records of events below an RQ
are not routinely submitted to the commission, but are currently maintained
at the site and submitted on request of the commission. EPA believes that
this procedure does not give the general public sufficient access to this
information, requiring them to go through the commission to obtain reports.
Secondly, EPA stated that the commission's method of exempting excess emissions
released during an U/M event did not require sufficient proof from a source
operator that the event was reasonably unavoidable. EPA stated that the commission's
rule did not place the burden of such proof on the source owner or operator
and was not specific enough as to what would constitute "reasonably unavoidable."
On January 29, 1999, the commission published in the
Texas Register
a notice of rule review of Chapter 101, as required
by the General Appropriations Act, Article IX, §167, 75th Legislature,
1997. The intent of the rule review was to determine if a need for the rules
in Chapter 101 continues to exist. In addition to other generally applicable
rules, Chapter 101 contains all the rules relating to U/M. During the public
comment period for rule review, the commission received comments from the
Texas Chemical Council (TCC) and the Texas Industrial Project (TIP) requesting
changes to the U/M rules. The agency response to these requested changes was
as follows: "The commission adopted amendments to the upset/maintenance rules
in the summer of 1997. At that adoption the commission directed the staff
to further evaluate the rules after two years. The staff has initiated that
review and will consider all comments concerning upset/maintenance and the
definition of reportable quantity as part of that review. The commission will
consider upset/maintenance rules for possible amendment, including administrative
changes, after the evaluation is completed. Rulemaking resulting from the
evaluation would likely be initiated prior to the end of calendar year 1999."
As part of this two-year review, the commission specifically instructed the
executive director to evaluate the burdens placed on the regulated community,
explain what is obtained from U/M reporting, how the data was used, and make
recommendations on the future disposition of the rule. As stated earlier,
the major impact of the 1997 amendments was a major reduction in the number
of U/M reports being submitted through the use of RQs, thus reducing the reporting
burden on the regulated community. Furthermore, the 1997 amendments allowed
the agency to concentrate its resources on the most significant or higher
priority events. However, the scope of this review was considerably changed
with EPA's pending disapproval of the U/M SIP revisions. One of EPA's major
criteria for obtaining SIP approval of the U/M rules is the reporting of all
excess emissions from U/M episodes. While this may place additional burdens
on the regulated community, EPA believes that this reporting is necessary
to provide the public access to information on emissions that affect their
communities.
SECTION BY SECTION DISCUSSION
The commission proposes to amend §§101.1, 101.6, 101.7, and 101.11
to address comments received during the rule review of Chapter 101, and EPA
comments concerning the acceptability of the rules as SIP amendments.
At the suggestion of TCC and TIP, the commission is proposing to add certain
compounds to the list of substances with an RQ of 5,000 pounds. Other TCC
and TIP suggestions received during rule review have not been proposed. The
commission addresses those comments in greater detail where specific proposals
for individual sections are described.
To address EPA concerns about insufficient public information, the commission
is proposing that the 24-hour initial notice be followed up with a written
report sent to the appropriate regional office within two weeks of the end
of the event. This will provide the regional offices information on the most
significant events that can be made available for public inspection. Facilities
must still create and maintain records of events below an RQ, but these records
will not routinely be sent to the commission. This is consistent with the
concept of an RQ which establishes a significance threshold to reduce regulatory
burden and the amount of information received by regulatory agencies.
TIP recommended either eliminating the 100-pound default RQ or raising
it to 5,000 pounds. TIP recognized that adding Texas-specific compounds to
the definition at an RQ of 5,000 pounds is also an available option. It recommend
adding butyl acrylate, ethanol, heptenes, hexanes, hexenes, isopropyl alcohol,
methyl acrylate, mineral spirits, octenes, pentanes, pentenes, and unspeciated
volatile organic compounds (VOC). TCC commented that the commission should
modify its list of RQs to contain the following general compounds with an
RQ of 5,000 pounds: butanes, pentanes, pentenes, heptenes, hexenes, octanes,
decanes, and ethanol. It also suggested that the commission raise its default
RQ from 100 pounds to 5,000 pounds. Five thousand pounds is the highest RQ
for hazardous substances on the RQ list under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). The commission's default
value of 100 pounds applies to air contaminants not found on the CERCLA hazardous
substance list or the Emergency Planning and Community Right-to-Know Act (EPCRA)
list.
The commission proposes to amend the definition of "reportable quantity"
to include the following air contaminants at an RQ of 5,000 pounds: butanes
(all isomers), pentanes (all isomers), hexanes (all isomers), octanes (all
isomers), decanes (all isomers), ethanol, isopropyl alcohol, and mineral spirits.
Since isobutylene is one of the isomers of butene, it would be deleted as
an individual compound from the RQ list. These air contaminants proposed for
inclusion under a 5,000-pound RQ are not listed in CERCLA and EPCRA lists,
but are air contaminants common to Texas industries.
The commission declines to add pentenes, hexenes, heptenes, octenes, butyl
acrylate, and methyl acrylate at an RQ of 5,000 pounds based on their potential
to emit strong odors at low concentrations. Unspeciated VOCs were not included
in the proposal to ensure that the agency will receive appropriate information
on the chemical characteristics of the releases. Unspeciated VOCs can include
significantly hazardous constituents listed in CERCLA, EPCRA, and agency permits.
The commission also believes that it is not appropriate to raise the default
RQ to 5,000 pounds from 100 pounds because certain compounds, such as dimethyl
sulfide, are potentially hazardous when released to the air in much smaller
amounts. Additionally, the 100-pound default RQ is needed to cover all potentially
problematic compounds not listed in CERCLA or EPCRA. The commission will consider
individual compounds, as submitted, for a higher RQ.
The commission proposes the correction of a formatting error in §101.1(127)(B)(i),
(ii), and (iii). The term "definition" is being replaced with the term "paragraph."
The commission also proposes the correction of a typographical error in §101.1(127)(B)(iv).
The language should have read, "where natural gas or air emissions from crude
oil are known...." This change will clarify that the intent of the language
was to allow either natural gas or air emissions from crude oil to have an
RQ of 5,000 pounds. The current definition indicates that the 5,000-pound
RQ applies to a combination of emissions from natural gas and crude oil.
TIP suggested that unauthorized emissions from flares be treated similarly
to emissions from boilers and combustion turbines. TIP stated that unauthorized
emissions from flares should be reportable in terms of how long a flare smokes
in excess of the time specified in a permit or rule.
The commission declines to propose this suggestion because the sources
are not comparable. The 15-percentage point opacity level of boilers and combustion
turbines is for units using fuels containing very low concentrations of hazardous
air pollutants (less than 0.02% by weight). Typically, it is not the flare
that will be in an upset condition (i.e., a problem with the burner tips);
instead, it is normally the process feeding the flare which will be in upset.
A facility operator should have knowledge of the compounds which are present
in the affected process, and should be able to provide a reasonable estimate
of the amounts of compounds being emitted.
TIP requested that the commission consider some mechanism to authorize
routine emissions resulting from start-up, shutdown, and maintenance (SSM).
It stated that while such emissions are episodic, the vast majority do not
pose a threat requiring immediate response, and requested the opportunity
to discuss this situation further with the staff. Additionally, the commenter
stated that the commission should consider exempting SSM emissions in compliance
with an EPA-required start-up, shutdown, and maintenance plan. TIP also requested
that the commission incorporate into the U/M rules the reduced reporting obligations
for continuous releases under CERCLA and the EPCRA because of the routine
and predictable emissions resulting from SSM.
The commission does not propose any changes to the current rule in response
to this comment. The definition of continuous release under CERCLA in 40 Code
of Federal Regulations (CFR) §302.8(b) requires that the release be "routine,
anticipated, and intermittent and incidental to normal operations...." The
same section defines "routine" as a release "that occurs during normal operating
procedures or processes." The analogous situation under the air emission rule
would be the normal operation of a pollution source with the anticipated emissions.
The commission does not require reports for normal operation of air emission
sources. The commission's rule currently does not require owner/operators
to notify the agency of emissions from SSM unless it is expected that unauthorized
emissions will be released in amounts at or above a RQ. The commission believes
that this is justified because, as with upsets, releases at or above an RQ
have the strongest potential for causing effects off property. Because the
majority of SSM emissions are predictable, the commission believes that its
current rule allows source operators to conduct maintenance with predictable
and reasonable reporting requirements.
TCC commented that the commission should delete recordkeeping requirements
for non- reportable upsets. A non-reportable upset is one that results in
a release of air contaminants less than an RQ. It commented that the current
U/M rule has been in place for over one year, and that the commission has
had adequate time to collect information regarding non-reportable upsets.
In addition, elimination of this requirement would reduce the recordkeeping
burden on industry. In a related comment, TIP suggested that the commission
should make an exception to recordkeeping for releases only slightly above
authorized amounts. It suggested that the commission either exempt from recordkeeping
amounts that are less than a certain percentage (for example, 10%) of an RQ
above an authorized emission, or set a non-recordkeeping level at less than
one pound above authorized limits for substances with an RQ at ten pounds
or higher.
The commission declines to propose the amendments as suggested by TIP and
TCC. The commission believes that establishing a "grace amount" of 10% or
some other value above an authorized limit does, in effect, establish a new
limit. This introduces an unnecessary complication in determining whether
an event should be recorded. In response to the suggestion by TCC, the commission
will continue to require that records of all unauthorized emissions be created
and maintained by the source. These records will allow the commission to identify
sources with chronic or pattern upsets.
The commission proposes an amendment to §101.6(a)(2) and (3) and also
to §101.7(b)(1) and (2) that if the cause of the upset or the type of
activity and the reason for the maintenance, startup, or shutdown are known
at the time of notifications, the owner or operator of the source must provide
that information at that time.
The commission proposes amendments to §101.6(a)(4), (b), and (e) and
to §101.7(c) which would allow any local or federal air pollution program
with jurisdiction, to review U/M records being maintained at the facility
and to request more detailed information on the event. Specifically, the term
"local" was deleted to clarify that EPA Region VI also has jurisdiction to
review such records. The term "local" remains in provisions discussing the
submission or notification of reports. Initial reporting of U/M events to
EPA Region VI is not required.
The commission proposes an amendment to §101.6(b)(5) and §101.7(c)(5)
to correctly reference that the source must report the compound descriptive
type of the individually-listed compounds or mixtures of air contaminants
for all U/M activities, not just those equal to or greater than a reportable
quantity.
To address EPA's comments on public accessability of records, the commission
proposes to add §101.6(c) and §101.7(d) that will require that records
of all U/M events at or above an RQ be submitted to the appropriate regional
offices no later than two weeks after the end of the event. This record is
in addition to the initial notification of the event. However, if the cause
of the upset or the type and reason for the maintenance, start-up, or shutdown
is known at the time that the initial notification is submitted, and all other
required information submitted at the time of the notification is correct
and no additional changes are needed, then the notification will be considered
to be the final record of the U/M event and no additional report is needed.
The commission believes that this reporting frequency will provide timely
public accessability to records of the most significant events and will not
impose an unreasonable burden on affected sources.
The proposed amendment §101.6(d) would allow boilers and combustion
turbines equipped with a continuous emission monitoring system providing updated
readings at a minimum 15-minute interval to be exempt from creating, maintaining,
and submitting records of reportable and non- reportable upsets as long as
the source is required to submit excess emission reports by another state
or federal requirement. This same language is also proposed for §101.7(e),
thus exempting the previously mentioned sources from creating, maintaining,
and submitting records of maintenance, start- up, or shutdown activities under
the same conditions. This proposed amendment results from the staff review
of the U/M rules and is consistent with the initial concept of the 1997 amendments
to reduce duplicate reporting.
TIP pointed out what appear to be typographical errors in §101.7(b)(2)(B),
now proposed as §101.7(b)(2)(C), resulting in incorrect references to
"upset" when the subject of the section is SSM. The commission proposes an
amendment to §101.7(b)(2)(B) to correct the typographical error and correctly
reference "maintenance, start-up, or shutdown" instead of "upset." The commission
also proposes an amendment to §101.7(c) to require the maintenance of
SSM records for five years. This was the commission's original intent and
would correct a typographical error referring to "maintaining records on-site
for a minimum of two years."
The commission proposes an amendment to the title of §101.11. In an
effort to better describe what the section is intended to address, the title
is being changed from "Exemptions from Rules and Regulations" to "Demonstrations."
The proposed amendments to §101.11 would satisfy EPA's second concern
for obtaining SIP approval. EPA believes that the current U/M rules are inconsistent
with EPA's policy on excess emissions resulting from upset, startup, shutdown,
and malfunctions. According to EPA's policy on excess emissions, any request
for exemption from emission limits needs to clearly state that the event was
not caused by poor or inadequate design, operation, or maintenance, and was
not of a recurring pattern indicating inadequate design, operation, or maintenance.
The EPA policy also requires exemption requests to indicate that repairs were
made in an expeditious manner and, if a bypass of a control equipment occurred,
that the bypass was necessary to prevent loss of life, personal injury, or
severe property damage. The proposal would clarify these conditions in §101.11(a)
and (b). The intent of the proposed changes is to detail the existing terms
and conditions that a source owner or operator must demonstrate to qualify
for an exemption of otherwise unauthorized emissions. Proposed new language
in §101.11(e) would clarify the commission's existing practice of not
exempting sources from complying with federal requirements. EPA requested
language to specifically make clear that §101.11(e) is not intended to
grant waivers or exempt sources from complying with any requirement established
under a federal program. The proposed new §101.11(g) would state that
the burden of proof is placed on the owner or operator to demonstrate that
a source meets the criteria to be exempt from compliance with emission limits.
The new §101.11(h) states that emissions from upsets, maintenance,
start-ups, or shutdowns may not contribute to a condition of air pollution.
This new subsection also clarifies that the rule is not intended to limit
the commission's power to require corrective action necessary to minimize
emissions. This authority exists under Texas Health and Safety Code, Texas
Clean Air Act (TCAA), §382.085, Unauthorized Emissions Prohibited; and
Texas Water Code, §7.002, Enforcement Authority; §7.032, Injunctive
Relief; and §7.073, Corrective Action.
The agency regional staff will continue to evaluate reported upset, startup,
shutdown, and maintenance events to determine whether it would be appropriate
to visit the source site as the event is occurring. Staff will also review
previously submitted reports related to the source to determine whether there
is a pattern of events that may suggest inappropriate or inadequate responses
to previous events. Regional staff may elect to conduct a site inspection
specifically related to a source with reoccurring upsets, startups, shutdowns,
and/or maintenance or other circumstances as determined by the executive director
or other air pollution program with jurisdiction based upon the reported information.
Regional staff will review upset, startup, shutdown, and maintenance reports
prior to conducting SIP inspections. While on-site, the inspector will review
the source operator's records, which include the records of events below the
RQs. A review and evaluation of these records will allow the executive director
to identify sources with chronic pattern problems. The executive director
will request additional information from the source operator as permitted
by §101.11(g) if the executive director discovers a source that appears
to have a chronic pattern of upsets, startups, shutdowns, and/or maintenance,
they will request additional information from the source operator. The operator
will be asked to make the demonstrations found in §101.11. This demonstration
must be made in a reasonable amount of time. The executive director will evaluate
any information provided by the operator to determine whether the event(s)
meet the criteria to be exempt from compliance with emissions limits.
FISCAL NOTE
Bob Orozco, Strategic Planning and Appropriations Section, has determined
that for the first five-year period the proposed amendments are in effect
there will be no significant fiscal implications for the commission and other
units of state and local government as a result of administration or enforcement
of the proposed amendments to Chapter 101, General Rules, concerning U/M reporting.
The purpose of the proposed amendments is to revise and clarify state rules
to conform with federal regulations and policies with regard to U/M reporting.
The term "upset" generally refers to an unscheduled occurrence of a process
or operation that results in unauthorized release of emissions of air contaminants.
The proposed amendments would require records of unauthorized emissions at
or above the RQ to be maintained and reported to the commission within two
weeks of the event instead of the current practice, which requires U/M records
to be maintained on site and submitted to the commission on request. Initial
reports of upsets with emissions at or above the RQ will continue to be required
within 24 hours of discovery of the upset.
The proposed amendments would also require that any request for exemption
from emission limits needs to clearly demonstrate that the event was not caused
by poor or inadequate design, operation, or maintenance; the event was not
that of a recurring pattern indicative of inadequate design, operation, or
maintenance; the repairs were made in an expeditious manner; and, if a bypass
of control equipment occurred, the bypass was necessary to prevent loss of
life, personal injury, or severe property damage. These requirements are intended
to make state requirements conform to language in EPA requirements.
In the proposed amendments, the RQ for certain air contaminants has been
raised from the default level of 100 pounds to 5,000 pounds because these
contaminants are not listed in the CERCLA and the EPCRA. Other compounds were
retained at the default RQ because of their potential to emit strong odors
at low concentrations or because they are potentially hazardous when released
to the air in amounts smaller than 5,000 pounds. The default RQ remains at
100 pounds because certain compounds are potentially hazardous when released
into the air in small amounts.
Current rules, which allow routine emissions from maintenance, start-ups,
or shut-downs below the RQ to remain unreported, remain unchanged because
the majority of start-up, shut-down, and maintenance emissions are routine
and predictable, and should have predictable and routine reporting requirements.
The proposal retains the requirement that emissions at or above a reportable
quantity resulting from maintenance, start-ups, or shut-downs be reported
within 24 hours, but adds a requirement for a permanent record to be submitted
within two weeks after the event. The proposed amendments would allow any
air pollution program having jurisdiction to review U/M records being maintained
at a facility.
PUBLIC BENEFIT
Mr. Orozco has also determined that for each year of the first five years
the proposed amendments to Chapter 101 are in effect, the public benefit anticipated
from enforcement of and compliance with the proposed amendments will be increased
access to excess air emission data and emission-related information resulting
from upset, maintenance, startup, and shut-down operations at certain facilities
regulated by the TNRCC.
The proposed amendments are intended be consistent with federal regulations
and policies while minimizing regulatory reporting requirements. There are
no significant additional costs anticipated to any person or business as a
result of complying with the proposed amendments to Chapter 101. Since current
rules require U/M reports below the RQ to be generated and maintained on-site,
the cost of transmitting these reports to the commission's regional offices
and the Industrial Emissions Assessment Section are not anticipated to be
significant.
SMALL BUSINESS AND MICRO-BUSINESS ANALYSES
No significant adverse economic effects are anticipated to any person,
small business, or micro- business as a result of implementing the provisions
of the proposed amendments to the rules. The purpose of the proposed amendments
to Chapter 101 is to revise and clarify state rules to conform with the federal
regulations and policies regarding U/M reporting. While the proposed amendments
add the requirement to submit records of unauthorized emissions at or above
the RQ to the commission within two weeks, it is anticipated that these costs
would not be significant and would have no significant adverse economic effect
on small and micro-businesses. This proposal does not require that any new
records be created. It only requires that the information contained in those
records be transmitted to the commission. Additionally, the commission does
not anticipate that a large number of small or micro-businesses use raw material
in such quantities as to exceed a reportable quantity in the event of an upset.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking does not meet the definition of a "major environmental
rule" as defined in that statute. "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 proposal requires that records of upsets causing releases
above an RQ be submitted to the commission within two weeks of the event if
any information changes from that transmitted in the original report sent
within 24 hours of the event. These are records that are being created under
the current rule. The commission believes that the cost of transmitting these
records will not add any significant new costs above those incurred by creating
the records. This proposal would create a new reportable quantity for certain
substances, but does not authorize any new emissions of these substances;
thus, it does not cause an adverse effect on the environment or increase risks
to human health. Therefore, the rulemaking does not meet the definition of
a "major environmental rule." In addition, the proposed amendments to Chapter
101 do not meet any of the four applicability requirements of a "major environmental
rule." The proposed amendments do not exceed a standard set by federal law,
an express requirement of state law, or exceed a requirement of a delegation
agreement. The amendments are also proposed under the specific state laws
of Texas Health and Safety Code, TCAA, §§382.011, 382.012, 382.014,
382.016, 382.017, 382.025, and 382.085.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. These amendments require that records of upsets that cause
emissions at or above an RQ be submitted to the commission within two weeks
of the event. They do not restrict or limit an owner's right to their property
that would otherwise exist in the absence of governmental action and therefore
do not constitute a taking.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed this rulemaking for consistency with the Texas
Coastal Management Program (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council. The commission has determined
that this rulemaking relates to an action or actions subject to the CMP in
accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural
Resources Code, §§33.201
et seq
.),
and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning
Consistency with the Texas Coastal Management Program. For the actions in
the proposed amendments to 30 TAC Chapter 101, the commission has determined
that the rules are consistent with the applicable CMP goal expressed in 31
TAC §501.12(1) by protecting and preserving the quality and values of
coastal natural resource areas and the policy in 31 TAC §501.14(q), which
requires the commission to protect air quality in coastal areas. The commission
has determined that the specific actions detailed in previous explanations
under the headings "Explanation of Proposed Rules," "Public Benefit," "Small
Business and Micro-Business Analyses," "Draft Regulatory Impact Analysis,"
and "Takings Impact Analysis" are consistent with 40 CFR 51 (Requirements
for Preparation, Adoption, and Submittal of Implementation Plans) and will
not allow any new emissions to the atmosphere. Persons may comment on this
consistency review.
PUBLIC HEARING
A public hearing on this proposal will be held in Austin on February 22,
2000, at 10:00 a.m. at the TNRCC Complex in Building E, Room 201S, located
at 12100 Park 35 Circle. The hearing will be structured for the receipt of
oral or written comments by interested persons. Individuals may present oral
statements when called upon in order of registration. There will be no open
discussion during the hearing; however, an agency staff member will be available
to discuss the proposal 30 minutes prior to the hearing and will answer questions
before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lisa Martin, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Natural Resource Conservation Commission,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 99050- 101-AI. Comments must be
received by 5:00 p.m., February 28, 2000. For further information, please
contact Keith Sheedy, P.E., of the Office of Compliance and Enforcement, at
(512) 239-1556, or Beecher Cameron, of the Regulation Development Section,
at (512) 239-1495.
STATUTORY AUTHORITY
The amendments are proposed under the Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; §382.014, which authorizes the commission to require a person whose
activities cause emissions of air contaminants to submit information to enable
the commission to develop an emission inventory; §382.016, which authorizes
the commission to prescribe reasonable requirements for the measuring and
monitoring of emissions of air contaminants; §382.017, which provides
the commission with the authority to adopt rules consistent with the policy
and purposes of the TCAA; §382.025, which authorizes the commission to
order actions indicated by the circumstances to control a condition of air
pollution; §382.085, which prohibits the unauthorized emissions of air
contaminants; and Federal Clean Air Act (FCAA), §7410(a)(F)(iii), which
requires correlation of emissions reports and emission-related data by the
state agency with any emission limitations or standards established under
the FCAA.
The proposed amendments implement §382.011, concerning General Powers
and Duties; §382.012, concerning State Air Control Plan; §382.014,
concerning Emission Inventory; §382.016, concerning Monitoring Requirements;
Examination of Records; §382.017, concerning Rules; and §382.085,
concerning Unauthorized Emissions Prohibited.
§101.1. Definitions.
Unless specifically defined in the TCAA or in the rules of the commission,
the terms used by the commission have the meanings commonly ascribed to them
in the field of air pollution control. In addition to the terms which are
defined by the TCAA, the following terms, when used in this chapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)-(81)
(No change.)
(82)
Reportable quantity (RQ) - Is as follows:
(A)
for individual air contaminant compounds and specifically
listed mixtures, either:
(i)
the lowest of the quantities:
(I)-(II)
(No change.)
(III)
listed as follows:
(-a-)
butanes (all isomers)
[
(-b-)
butenes (
all isomers,
except 1,3-butadiene)
- 5,000 pounds;
(-c-)-(-d-)
(No change.)
[
isobutylene - 5,000
pounds;]
(-e-)
[
(-f-)
[
(-g-)
[
[
isobutane - 5,000
pounds; or]
(-h-)
ethanol - 5,000 pounds;
(-i-)
isopropyl alcohol -
5,000 pounds;
(-j-)
mineral spirits - 5,000
pounds;
(-k-)
hexanes (all isomers)
- 5,000 pounds;
(-l-)
octanes (all isomers)
- 5,000 pounds; or
(-m-)
decanes (all isomers)
- 5,000 pounds
(ii)
(No change.)
(B)
for mixtures of air contaminant compounds:
(i)
where the relative amount of individual air contaminant
compounds is known through common process knowledge or prior engineering analysis
or testing, any amount of an individual air contaminant compound which equals
or exceeds the amount specified in subparagraph (A) of this
paragraph
[
(ii)
where the relative amount of individual air contaminant
compounds in subparagraph (A)(i) of this
paragraph
[
(iii)
where each of the individual air contaminant compounds
listed in subparagraph (A)(i) of this
paragraph
[
(iv)
where natural gas
or
[
(C)-(D)
(No change.)
(83)-(109)
(No change.)
§101.6. Upset Reporting and Recordkeeping Requirements.
(a)
The following requirements for reportable upsets shall
apply.
(1)
(No change.)
(2)
The notification for reportable upsets, except for
boilers or combustion turbines referenced
in §101.1 of this title
(relating to Definitions)
in the definition of reportable quantity,
shall identify:
(A)
the cause of the upset, if
known;
(B)
[
(C)
[
(D)
[
(E)
[
(F)
[
(G)
[
(3)
The notification for reportable upsets for boilers
or combustion turbines referenced in the definition of reportable quantity
shall identify:
(A)
the cause of the upset, if
known;
(B)
[
(C)
[
(D)
[
(E)
[
(F)
[
(4)
The owner or operator of a facility must report
additional or more detailed information on the upset when requested by the
executive director or any [
(5)
(No change.)
(b)
The owner or operator of a facility shall create
a final record
[
(1)-(4)
(No change.)
(5)
the compound descriptive type of the individually
listed compounds or mixtures of air contaminants [
(6)-(7)
(No change.)
(c)
For all reportable upsets,
if the information required in subsection (b) of this section differs from
the information provided in the 24-hour notification under subsection (a)
of this section, the owner or operator of the facility shall submit a copy
of the final record to the commission's regional office for the region in
which the facility is located no later than two weeks after the end of the
upset. If the owner or operator does not submit a record under this subsection,
the information provided in the 24-hour notification under subsection (a)
of this section will be the final record of the upset.
(d)
[
(e)
[
§101.7. Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements.
(a)
(No change.)
(b)
The owner or operator shall notify the commission's regional
office for the region in which the facility is located and all appropriate
local air pollution control agencies at least ten days prior to any maintenance,
start-up, or shutdown which is expected to cause an unauthorized emission
which equals or exceeds the reportable quantity in any 24-hour period. If
notice cannot be given ten days prior to any start-up, shutdown, or maintenance
which is expected to cause an unauthorized emission that will equal or exceed
a reportable quantity in any 24-hour period, notification shall be given as
soon as practicable prior to the maintenance, start-up, or shutdown. Any maintenance,
start-up, or shutdown which results in an unexpected unauthorized emission
that equals or exceeds the reportable quantity shall be considered a reportable
upset and subject to §101.6 of this title (relating to Upset Reporting
and Recordkeeping Requirements).
(1)
The notification, except for boilers and combustion turbines
referenced
in §101.1 of this title (relating to Definitions)
in the definition of reportable quantity, shall
identify
[
(A)
the type of activity and the
reason for the maintenance, start-up, or shutdown, if known;
(B)
[
(C)
[
(D)
[
(E)
[
(F)
[
(G)
[
(2)
The notification [
(A)
the type of activity and the
reason for the maintenance, start-up, or shutdown, if known;
(B)
[
(C)
[
(D)
[
(E)
[
(F)
[
(c)
The owner or operator of a facility shall create
a final record
[
(1)-(4)
(No change.)
(5)
the compound descriptive type of the individually
listed compounds or mixtures of air contaminants [
(6)
the estimated quantities for those compounds or mixtures
described in paragraph (5) of this subsection, except in the case of unauthorized
emissions determined on opacity only, where opacity
shall
[
(7)
(No change.)
(d)
For any maintenance, start-up,
or shutdown event which causes an unauthorized emission which equals or exceeds
the reportable quantity in any 24-hour period, if the information required
in subsection (c) of this section differs from the information provided under
subsection (b) of this section, the owner or operator of the facility shall
submit a copy of the final record to the commission's regional office for
the region in which the facility is located no later than two weeks after
the end of the maintenance, start-up, or shutdown event. If the owner or operator
does not submit a record under this subsection, the information provided under
subsection (b) of this section will be the final record of the maintenance,
start-up, shutdown event.
(e)
[
(f)
[
§101.11. Demonstrations [
(a)
Upset emissions are exempt from compliance with air emission
limitations established in permits, rules, and orders of the commission, or
as authorized by
TCAA
[
(1)
the excess emissions were
caused by a sudden, unavoidable breakdown of technology, beyond the control
of the owner or operator;
(2)
the excess emissions
did not stem from any activity or event that could have been foreseen and
avoided, or planned for, and could not have been avoided by better operation
and maintenance practices;
(3)
to the maximum extent
practicable, the air pollution control equipment or processes were maintained
and operated in a manner consistent with good practice for minimizing emissions;
(4)
repairs were made in
an expeditious fashion when the operator knew or should have known that applicable
emission limitations were being exceeded. Off-shift labor and overtime must
have been utilized, to the extent practicable, to ensure that such repairs
were made as expeditiously as practicable;
(5)
the amount and duration
of the excess emissions (including any bypass) were minimized to the maximum
extent practicable during periods of such emissions;
(6)
all possible steps were
taken to minimize the impact of the excess emissions on ambient air quality;
(7)
all emission monitoring
systems were kept in operation if at all possible;
(8)
the owner or operator's
action in response to the excess emissions were documented by properly signed,
contemporaneous operation logs, or other relevant evidence; and
(9)
the excess emissions
were not part of the recurring pattern indicative of inadequate design, operation,
or maintenance.
[
the owner or operator
properly complies with the requirements of §101.6 of this title (relating
to Upset Reporting and Recordkeeping Requirements);]
[
the upset was not reasonably
avoidable; and]
[
appropriate corrective
actions were taken as soon as practicable after initiation of the upset.]
(b)
Emissions from any maintenance, start-up, or shutdown
are exempt from compliance with air emission limitations established in permits,
rules, and orders of the commission, or as authorized by
TCAA
[
(1)
the periods of excess emissions
from any maintenance, start-up, or shutdown were short and infrequent and
could not have been prevented through careful planning and design;
(2)
the excess emissions
from any maintenance, start-up, or shutdown were not part of a recurring pattern
indicative of inadequate design, operation, or maintenance;
(3)
if the excess emissions
from any maintenance, start-up, or shutdown were caused by a bypass (an intentional
diversion of control equipment), the bypass was unavoidable to prevent loss
of life, personal injury, or severe property damage;
(4)
at all times, the facility
was operated in a manner consistent with good practice for minimizing emissions;
(5)
the frequency and duration
of operation in maintenance, startup, or shutdown mode was minimized to the
maximum extent practicable;
(6)
all possible steps were
taken to minimize the impact of the excess emissions from any maintenance,
start-up, or shutdown on ambient air quality;
(7)
all emissions monitoring
systems were kept in operation if at all possible; and
(8)
the owner or operator's
action during the period of excess emissions from any maintenance, start-up,
or shutdown were documented by properly signed, contemporaneous operating
logs, or other relevant evidence.
(c)-(d)
(No change.)
(e)
Sources emitting air contaminants which cannot be controlled
or reduced due to a lack of technological knowledge may be exempt from the
applicable rules and regulations when so determined and ordered by the
commission
[
(f)
(No change.)
(g)
The owner or operator has
the burden of proof to demonstrate that the criteria identified in subsection
(a) of this section for upsets, or in subsection (b) of this section for maintenance,
start-up, or shutdown occurrences are satisfied for each occurrence of unauthorized
emissions. The executive director or any air pollution program with jurisdiction
may request documentation of the criteria in subsections (a) and (b) of this
section at their discretion. Satisfying the burden of proof is a condition
to unauthorized emissions being exempt under this section.
(h)
Upset emissions and emissions
from any maintenance, start-up, or shutdown may not cause or contribute to
a condition of air pollution. This section does not limit the commission's
power to require corrective action as necessary to minimize emissions, or
to order any action indicated by the circumstances to control the condition.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 14, 2000.
TRD-200000226
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 17, 2000
For further information, please call: (512) 239-1966
Subchapter B. MOTOR VEHICLE ANTI-TAMPERING REQUIREMENTS
30 TAC §114.21
The Texas Natural Resource Conservation Commission (commission)
proposes an amendment to §114.21 (Exclusions and Exceptions). This amendment
is proposed to Subchapter B (Motor Vehicle Anti-tampering Requirements) of
Chapter 114 (Control of Air Pollution from Motor Vehicles) and to the State
Implementation Plan (SIP). The commission proposes these revisions in order
to align the statewide anti-tampering provisions for motor vehicle air pollution
control systems with the federal requirements outlined in §203(a)(3)
of the Federal Clean Air Act (FCAA), (42 United States Code, §7522(a)(3)).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
Federal anti-tampering provisions regarding emission control equipment
on motor vehicles and motor vehicle engines prohibit any person from removing
or rendering inoperative any emission control device. The only federal exemptions
to this requirement are for vehicles used primarily for sanctioned motor sports
competition, research, or training purposes. In addition to the federally
approved exemptions, §114.21 currently allows for exemptions for vehicles
registered as farm vehicles (such as pickup trucks). In addition, exclusions
are allowed for vehicles whose owners believe the continued operation of certain
emission control equipment will result in a clear danger to persons or property.
Historically, the most common emission control equipment being addressed is
the catalytic converter. Section 114.21 was adopted in the mid-1980s in response
to reported incidents of grass fires resulting from high-operating temperatures
believed to be associated with catalytic converters.
In correspondence and discussions in April 1998, the United States Environmental
Protection Agency (EPA) requested that the commission phase out the tampering
exclusions in §114.21 within two years or face possible sanctions. This
request was based on the fact that: 1) Texas is not in compliance with Title
40 Code of Federal Regulations (CFR), Part 85 (Control of Air Pollution from
Mobile Sources), 2) Texas is the only state that offers waivers to allow removal
of catalytic converters, and 3) newer model year vehicles now have improvements
and advancements in technology in both engines and exhaust systems. These
improvements include the positioning of the catalytic converter to areas closer
to the engine compartment which provides greater ground clearance beneath
the vehicle, and new catalytic converter technologies.
As a result, the Technical Analysis Division (formerly the Air Quality
Planning and Assessment Division) completed a contract study to re-examine
the long-standing concern that hot vehicle exhaust systems, specifically the
catalytic converter, can create a potentially hazardous fire-starting situation.
The scope of the contract was to determine the risk of fire-starting with
new and emerging vehicle engine and catalytic converter technologies. The
contract awarded to Wallace Environmental Testing Laboratories, Inc. of Houston,
Texas was completed June 30, 1999. The final report submitted by Wallace Environmental
Testing Laboratories, Inc. showed that of the 11 vehicles tested, the hottest
point on the exhaust system was consistently that point closest to the engine,
with or without the catalytic converter. The study indicated that "while peak
exhaust system temperatures crossed piloted ignition thresholds for dry grass
and pine needles, catalyst removal did not reduce exhaust system temperatures."
In addition, removal of the catalytic converter did not change the location
of the hottest point on the exhaust system. It was also noted that, in all
but one vehicle, the pipe installed to replace the catalytic converter reached
a higher temperature than the converter it replaced. In some cases, these
temperatures were substantially higher. The report also quantified the effect
of the removal of the catalytic converter on a vehicle exhaust emissions.
The study showed that after the catalytic converters were removed, carbon
monoxide emissions increased by an average of 4,732%, hydrocarbons by an average
of 15,730%, and nitrogen oxides by an average of 5,070%.
SECTION BY SECTION DISCUSSION
The proposed rule would revise §114.21(a)(1) by removing the exemption
for registered farm vehicles. Section 114.21(b) would be amended by adding
the word "Control" to the phrase "DoD Privately Owned Vehicle Import Program"
before the word "Program." Section 114.21(c) would be revised by removing
the language allowing exclusions and the conditions which must be met to claim
an exclusion. In addition, new provisions are proposed in §114.21(c)
to exempt registered farm vehicles that have had their emission control equipment
modified or removed prior to June 1, 2000, and vehicles that were granted
an exclusion prior to June 1, 2000, from the requirements of §114.20
(relating to Maintenance and Operation of Air Pollution Control Systems or
Devices Used to Control Emissions from Motor Vehicles). Section 114.21(e)(2)
is proposed to be amended to correctly refer to the title of §114.50
as "Vehicle Emissions Inspection Requirements."
FISCAL NOTE
Bob Orozco, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed amendments
are in effect, there will be no significant fiscal implications for units
of state and local government as a result of administration or enforcement
of the proposed amendments.
Federal anti-tampering provisions regarding emission control equipment
on motor vehicles and motor vehicle engines prohibit any person from removing
or rendering inoperative any emission control device. The proposed amendments
to Chapter 114 would make this chapter conform with federal regulations by
repealing the current state exemptions for farm vehicles and repealing the
exemption for vehicles whose owners allege that the continued operation of
certain emission control equipment will result in a clear danger to persons
or property. Recent research and testing by Wallace Environmental Testing
Laboratories, Inc. has indicated that these exemptions are no longer useful
nor necessary. The EPA has requested that the commission phase out the state
tampering exemptions or face possible sanctions. Sanctions may include the
loss of significant federal funding for transportation projects provided to
nonattainment areas.
The proposed amendments would, however, allow existing exempt registered
farm vehicles that have had their emission control equipment modified or removed
prior to June 1, 2000 to maintain their exemptions. In addition, other vehicles
that were granted an exemption prior to June 1, 2000 from the requirements
in Chapter 114, may maintain their exemption until such time as the vehicle
is sold. When an exempted vehicle is sold, it is the seller's responsibility
to bring the vehicle back to its original certified emission control configuration
prior to sale. In most situations, the catalytic converter has to be re-installed
to bring a vehicle back to its original configuration. The cost of re-installing
the catalytic converter is approximately $100 to $250 per converter depending
on the vehicle make, model, etc. According to agency records, 832 vehicles
have been granted exemptions and the agency has been notified of 37 vehicles
that have re-installed the catalytic converter. The provision requiring the
vehicle to be configured to its original emission control configuration exists
in the current rule and has not changed so there is no fiscal implication
attributable to the proposed amendments.
PUBLIC BENEFIT
Mr. Orozco has also determined that for each year of the first five years
the proposed amendments to Chapter 114 are in effect, the public benefit anticipated
from enforcement of and compliance with the proposed amendments will be potentially
improved air quality associated with eliminating the option to remove catalytic
convertors from motor vehicles, potential reductions in emissions of carbon
monoxide, hydrocarbons, nitrogen oxides, and potential reductions in ozone.
The intent of the proposed amendments to Chapter 114 is to make state rules
conform to federal regulations by repealing the current state exemption for
farm vehicles and the exclusion for vehicles whose owners allege that the
continued operation of certain emission control equipment will result in a
clear danger to persons or property. Recent research and testing by Wallace
Environmental Testing Laboratories, Inc. has indicated that these exemptions
are no longer useful nor necessary. The EPA has requested that the commission
phase out the tampering exemptions or face possible sanctions.
The proposed amendments apply to persons in Texas owning or operating a
motor vehicle or motor vehicle engine who maintain or request an exemption
from the rules regarding a system or device used to control emissions from
the motor vehicle in compliance with federal motor vehicle rules. Specifically,
the amendments apply to registered farm vehicles and vehicles whose owners
allege that the continued operation of certain emission control equipment
will result in a clear danger to persons or property. There are no significant
fiscal implications anticipated to individuals or businesses as a result of
administration or enforcement of the proposed amendments because vehicles
which hold an exemption prior to June 1, 2000 will be allowed to maintain/continue
their exemption until such time as they sell the vehicle.
SMALL BUSINESS AND MICRO-BUSINESS ANALYSES
There are no anticipated fiscal implications to small businesses and micro-businesses
as a result of implementing the proposed amendments. The proposed amendments
to Chapter 114 repeal the current state exemptions for farm vehicles and the
exemption for vehicles whose owners allege that the continued operation of
certain emission control equipment will result in a clear danger to persons
or property. Recent research and testing by Wallace Environmental Testing
Laboratories, Inc. has indicated that these exemptions are no longer useful
nor necessary. The EPA has requested that the commission phase out the tampering
exemption or face possible sanctions.
The proposed amendments allow existing exempt registered farm vehicles
that have had their emission control equipment modified or removed prior to
June 1, 2000 to maintain their exemptions. In addition, other vehicles that
were granted an exemption prior to June 1, 2000 from the requirements in Chapter
114, may maintain their exemption until such time as the vehicle is sold.
When an exempted vehicle is sold, it is the seller's responsibility to bring
the vehicle back to its original certified emission control configuration
prior to sale. In most situations, the catalytic converter has to be re- installed
to bring a vehicle back to its original configuration. The cost of re-installing
the catalytic converter is approximately $100 to $250 per converter depending
on the vehicle make, model, etc. According to agency records, 832 vehicles
have been granted exemptions and the agency has been notified of 37 vehicles
that have re-installed the catalytic converter. The provision requiring the
vehicle to be configured to its original emission control configuration exists
in the current rule, §114.20(c), and has not changed so there is no fiscal
implication attributable to the proposed amendments.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code §2001.0225, and has determined
that the rulemaking does not meet the definition of a "major environmental
rule" as defined in that statute. "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 proposed amendments to Chapter 114 repeal certain exemptions
while allowing existing exemptions until the vehicle is sold. The proposed
amendments do not impose additional fiscal requirements to existing requirements
and may have the positive effect of preventing the cost of removing pollution
control devices on certain motor vehicles. The proposed amendments are not
anticipated to have an adverse affect in a material way 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. In addition, §2001.0225
only applies to a major environmental rule, the result of which is to: 1)
exceed a standard set by federal law, unless the rule is specifically required
by state law; 2) exceed an express requirement of state law, unless the rule
is specifically required by federal law; 3) exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program or; 4) adopt
a rule solely under the general powers of the agency instead of under a specific
state law. This rulemaking does not meet any of these four applicability requirements
of a "major environmental rule." Specifically, the proposed amendments do
not exceed federal standards but were developed to make state rules conform
to federal regulations. This proposal does not exceed an express requirement
of state law nor exceed a requirement of a delegation agreement. The proposed
amendments were not developed solely under the general powers of the agency
but were specifically developed to make state rules conform to federal regulations.
The commission invites public comment on the draft regulatory impact analysis.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this rule in
accordance with Texas Government Code, §2007.043. The following is a
summary of that assessment. The specific purpose of the rulemaking is to remove
specific exemptions and exclusions relating to the removal of air pollution
control systems (catalytic converters) from motor vehicles and does not create
a burden on private real property. Therefore, this revision will not constitute
a takings under Texas Government Code, Chapter 2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that this rulemaking relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource
Code, §§33.201
et seq.
), and the
commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the Texas Coastal Management Program. As required by 31 TAC §505.11(b)(2)
and 30 TAC §281.45(a)(3), relating to actions and rules subject to the
CMP, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission has reviewed
this action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council, and has determined that
the action is consistent with the applicable CMP goals and policies. The CMP
policy applicable to this rulemaking action is the policy (31 TAC §501.14(q))
that commission rules comply with federal regulations at 40 CFR 51 (Requirements
for Preparation, Adoption, and Submittal of Implementation Plans) and 40 CFR
85 (Control of Air Pollution from Mobile Sources) to protect and enhance air
quality in the coastal are (31 TAC §501.14(q)). The effect of the proposed
rules will be to make the state rules, which are currently less stringent
than the federal rules, essentially equivalent to the federal rules found
in 40 CFR 85. No new sources of air contaminates will be authorized by the
proposed rule amendments, and emissions from mobile sources will be reduced
as a result of not allowing vehicles to remove emissions control equipment.
Therefore, in compliance with 31 TAC §505.22(e), the commission affirms
that this rulemaking is consistent with CMP goals and policies.
Interested persons may submit comments on the consistency of the proposed
rules with the CMP during the public comment period.
PUBLIC HEARING
A public hearing on this proposal will be held in Austin on February 22,
2000, at 2:00 p.m., in Building F, Room 3202A at the Texas Natural Resource
Conservation Commission Complex, located at 12100 Park 35 Circle. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not occur during the hearing; however, an agency staff member
will be available to discuss the proposal 30 minutes before the hearing and
will answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Angela Slupe, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
99066-114-AI. Comments must be submitted no later than 5:00 p.m. on February
28, 2000. For further information, please contact Alan Henderson at (512)
239-1510 or Bob Reese at (512) 239-1439.
STATUTORY AUTHORITY
The amendment is proposed under the Texas Health and Safety Code, Texas
Clean Air Act (TCAA), §382.011, which authorizes the commission to control
the quality of the state's air; §382.012, which authorizes the commission
to prepare and develop a general, comprehensive plan for the control of the
state's air; §382.017, which authorizes the commission to adopt rules
consistent with the policy and purposes of the TCAA; §382.019, which
authorizes the commission to adopt rules to control and reduce emissions from
engines used to propel land vehicles; and §382.039, which authorizes
the commission to develop and implement transportation programs and other
measures necessary to demonstrate attainment and protect the public from exposure
to hazardous air contaminants from motor vehicles.
This amendment implements TCAA, §382.012, relating to State Air Control
Plan; §382.019, relating to Methods Used to Control and Reduce Emissions
from Land Vehicles; and §382.039, relating to Attainment Program.
§114.21. Exemptions [
(a)
The following exemptions shall apply to specified motor
vehicles or motor vehicle engines
.
[
(1)
Motor vehicles or motor vehicle engines which are [
(2)
(No change.)
(b)
Vehicles belonging to members of the U.S. Department of
Defense (DoD) participating in the DoD Privately Owned Vehicle Import
Control
Program or other persons being transferred to a foreign country
are exempt from the provisions of §114.20(a), (b), and (d) of this title
if the following conditions are met
.
[
(1)-(4)
(No change.)
(c)
Motor vehicles are exempt from the provisions of §114.20(a),
(b), and (d) of this title if the following conditions apply:
[
(1)
the motor vehicles are registered as farm vehicles
with the Vehicle Titles and Registration Division of the Texas Department
of Transportation, are intended solely or primarily for use on a farm or ranch,
and their air pollution control devices or systems were removed or made inoperable
prior to June 1, 2000; or
[
(2)
the motor vehicles were granted an exemption
from the provisions of §114.20(a) and (b) of this title by the Texas
Natural Resource Conservation Commission (commission) or its predecessor agency
prior to June 1, 2000.
[
[
[
[
[
[
[
[
(A)
[
(B)
[
[
The applicant shall
comply with all special provisions and conditions specified by the executive
director in the exclusion.]
(d)
(No change.)
(e)
Federal, state, and local agencies or their agents which
sell abandoned, confiscated, or seized vehicles and any commercial vehicle
auction facilities are exempt from the provisions of §114.20(c) of this
title if the following conditions are met.
(1)
The
Texas Department of Public Safety (DPS)
[
(2)
All potential buyers of the vehicle must be informed
that deficiencies may be present in the vehicle pollution control systems
on the vehicle. The buyer must also be informed of the liabilities to the
buyer under §114.20 of this title and §114.50 of this title (relating
to
Vehicle Emissions
Inspection Requirements) of operating the
vehicle prior to the adequate restoration of all pollution control systems
or devices on the vehicle as originally equipped. The seller of the vehicle
shall provide to the buyer a written acknowledgment of the receipt of this
information which must be signed by the buyer prior to completion of the sales
transaction. The seller shall retain a copy of this signed acknowledgment
and shall make it available, upon request.
(f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 14, 2000.
TRD-200000230
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: February 28, 2000
For further information, please call: (512) 239-4712
The Texas Natural Resource Conservation Commission (commission) proposes
amendments to §§331.9, 331.11, 331.131, 331.132, and 331.133, Underground
Injection Control.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Chapter 331, relating to Underground Injection Control, regulates all injection
wells and activities related to injection wells regulated by the commission
under Texas Water Code, Chapter 27. The proposed amendments to Subchapter
A, General Provisions, will clarify authorization by rule requirements related
to Class V injection wells. The proposed amendments to Subchapter H, Standards
for Class V Wells, will update construction and closure standards to those
standards and practices currently accepted as being more protective of groundwater.
The proposed changes to Chapter 331 will also ensure consistency with drilling
standards associated with similar well types adopted by the Texas Department
of Licensing and Regulation (TDLR), which regulates the conduct of licensed
well drillers.
SECTION BY SECTION DESCRIPTION
The proposed amendment to §331.9(a) adds a reference to closure standards
for Class V injection wells authorized under this rule. The current language
in §331.9(a) refers to closure standards in §331.46 which are appropriate
for Class I injection wells. The proposed amendment to §331.9(a) will
state that the appropriate closure standards for Class V injection wells are
located in §331.133.
The proposed amendment to §331.9(b)(2)(E) prohibits injection into
Class V wells unless the construction standards in Subchapter H, and in the
case of aquifer storage wells, both Subchapters H and K, are met.
Proposed new §331.11(a)(4)(B) will clarify that closed loop injection
wells are contained within the Class V category. Under §331.11(a)(4),
Class V wells are any injection well that is not a Class I, III, or IV, under
the jurisdiction of the commission. This section provides several examples
of Class V wells, but it does not specifically list closed loop injection
wells (a vertical closed water circulating loop capable of absorbing or rejecting
heat as part of heat pump system), even though this type of well is also a
Class V well (as provided under 40 Code of Federal Regulations §144.3
and §144.6). Amending §331.11(a)(4) to include closed loop injection
wells will provide additional protection of groundwater resources because
the commission can ensure that this type of well is constructed and closed
in accordance with the standards in Subchapter H.
The commission is also proposing amendments to Subchapter H, §§331.131-331.133,
relating to Standards for Class V Wells. The proposed amendment to §331.131,
Applicability, replaces the agency name "Texas Water Commission" with "commission."
The proposed amendment also adds language that references Subchapter K, Additional
Requirements for Class V Aquifer Storage Wells, to the applicable sections
in Subchapter H. It also clarifies that aquifer storage wells must also comply
with Subchapter K.
Several amendments to §331.132, relating to Construction Standards,
are being proposed to provide clarification for the regulated community and
update the standards to currently accepted well construction that are consistent
with existing well drilling standards for water well drillers. With the transfer
of the licensing and regulation of water well drillers and pump installers
from the commission to the TDLR in 1997, some of the construction standards
for Class V injection wells that were contained within the commission rules
regulating drillers were inadvertently repealed by the commission when the
rules governing the licensing of drillers were repealed as part of the transfer
of the program. The construction standards proposed in §331.132 clarify
that these construction standards for the design and closure of Class V injection
wells are part of the commission's underground injection control program and
not just a requirement for drillers.
The proposed amendment to §331.132(a) provides authorization to the
executive director to approve alternative standards to those contained in §331.132.
Proposed changes to §331.132(a) also require all Class V wells to be
installed by a driller licensed by the TDLR. As a result of this proposed
amendment, all Class V wells are to be installed by a licensed professional.
The use of a licensed water well driller, who is trained and experienced in
current well construction practices, will help ensure the proper construction
of these wells and should ensure that the necessary level of groundwater protection
is maintained once the well is put into operation.
The proposed amendments to §331.132(b) provide clarification for the
regulated community on the reporting requirements related to the construction
and operation of a Class V injection well. Except for closed loop injection
and air conditioning return flow wells, new §331.132(b)(1)(A) provides
that prior to construction of the well, the owner/operator must submit all
information required under §331.10(a) to the executive director. Except
for closed loop injection wells and air conditioning return flow wells, proposed §331.132(b)(1)(B)
provides that after completion of construction, a report to the executive
director must be submitted on the state well report form which is provided
by the TDLR. This subparagraph has also been modified to provide for submission
of this form within 30 days from the date the well construction is completed.
A proposed new §331.132(b)(2) addresses reporting requirements for
closed loop injection wells and air conditioning return flow wells. The paragraph
requires no reporting prior to construction and requires the submittal of
the state well report form to the executive director within 30 days from the
date the well construction is complete. Information on any additives, constituents,
or fluids other than potable water that are used in the closed loop system
must be reported in the water quality section on the state well report form.
A proposed new §331.132(c)(2) is added to address the general sealing
of the annular space and casing for injection wells and the filling of the
top of the well bore for closed loop injection wells. Proposed amendments
to §331.132(d) provide standards for surface completion for all types
of wells except for below grade closed loop inject wells, which are required
to follow the provisions in §331.132(c)(2). Proposed amendments to §331.132(d)(2)
provide standards for completion at the top of the casing. The provisions
related to flood elevation have been moved to new §331.132(g) and the
provisions related to capping or completion to prevent pollutants from entering
the well, formerly in §331.132(g), have been moved to §331.132(d)(2).
Provisions under §331.132(e) have been moved to §331.132(d). Provisions
related to the use of a pitless adaptor, which is a sanitary underground discharge
assembly providing a watertight subsurface connection for buried pump discharge
or suction lines, are proposed for deletion because this technology is not
applicable to Class V injection wells.
A proposed new §331.132(e) clarifies the construction standards for
wells utilizing a steel sleeve or PVC sleeve. The proposed new §331.132(f)
clarifies and consolidates all the standards for the placement of Class V
injection wells in flood-prone areas and specifies that a Class V injection
well should not be located in areas subject to flooding. If a well must be
placed in a flood-prone area, the proposed subsection provides for appropriate
and more stringent construction standards. For the purpose of this subsection,
a flood-prone area is defined as that area within the 100-year flood plain
as determined on the Federal Emergency Management Agency (FEMA) Flood Hazard
Maps for the National Flood Insurance Program. If FEMA has conducted a flood
insurance study of the area, and has mapped the 50-year flood plain, then
the smaller geographic areas within the 50-year boundary are considered to
be flood prone.
A proposed new §331.132(g) clarifies and consolidates other protective
measures that must be taken when a well is installed. These measures prohibit
the commingling of water from different zones of water quality, which causes
degradation of any aquifer containing fresh water and requires zones containing
undesirable groundwater be sealed off and confined to the zone of origin.
The proposed amendments to §331.132(g)(2) clarify that undesirable groundwater
is water that is injurious to human health and the environment or water that
can cause pollution to land or other waters and the well should be constructed
so that the undesirable groundwater is isolated from any underground source
of drinking water and confined to the zone of origin.
The proposed amendments to §331.133(a) clarify that it is the responsibility
of the owner/operator of a Class V injection well to properly plug the well
when its use is permanently discontinued or the well is abandoned. The proposed
amendment to §331.133(b) provides for the method that will be used to
pressure fill the well with cement. The proposed amendments to §331.133(c)
clarify that an alternative method to subsection (b) for well closure can
be used as long as the well is not completed through a zone or zones containing
undesirable groundwater. Proposed amendments to §331.133(d) clarify that
an alternative method to subsection (b) for well closure can be used for plugging
Class V injection wells that have encountered undesirable groundwater. A proposed
modification in subsection (d) changes the recommended bentonite grout weight
from 9.5 pounds per gallon to 9.1 pounds per gallon. This change in grout
weight reflects a change in well plugging technology and common practice which
is equally effective in preventing groundwater contamination.
FISCAL NOTE
Bob Orozco, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed amendments
are in effect, there will be no significant adverse fiscal implications for
the commission and other units of state or local government as a result of
administration or enforcement of the proposed amendments.
The purpose of the proposed amendments to Chapter 331, Underground Injection
Control, is to clarify existing rules and definitions, update references,
clarify and update Class V injection well standards to currently accepted
well construction and closure standards, and to provide conformity with standards
for drillers installing similar well types adopted by the TDLR. A Class V
injection well is, generally, a well for injecting nonhazardous fluids into
or above formations that contain underground sources of drinking water. The
proposed amendments also clarify that it is the responsibility of the owner/operator
of a Class V injection well to properly plug a well when its use is permanently
discontinued or the well is abandoned. The proposed amendments will add closed
loop injection wells to the list of injection wells included in the definition
of a Class V well and provide construction standards for these wells that
are consistent with standards promulgated by TDLR. The proposed amendments
also provide authorization to the executive director to approve alternative
standards to those contained in the rules and requires all Class V wells to
be installed by a driller licensed by the TDLR. The proposed amendments will
also clarify that TDLR provides the state well report form formerly provided
by the commission and the deadline by which the form must be filed with the
commission.
PUBLIC BENEFIT
Mr. Orozco has also determined that for each year of the first five years
the proposed amendments to Chapter 331 are in effect, the public benefit anticipated
from enforcement of and compliance with the proposed amendments will be clarification
and updating of standards and requirements that provide necessary, reasonable,
and adequate protection of groundwater and are consistent with standards promulgated
by TDLR for drillers installing similar type wells.
There are no significant adverse economic impacts anticipated to any person
or business required to comply with the sections as proposed. The proposed
amendments to Chapter 331 clarify existing rules and definitions, clarify
and update Class V injection well standards, conform to currently accepted
well construction and closure standards, and are consistent with current standards
for drillers installing similar well types adopted by the TDLR.
SMALL BUSINESS AND MICRO-BUSINESS ANALYSES
No significant adverse economic effects are anticipated to any person,
small business, or micro- business as a result of implementing the provisions
of the proposed amendments to Chapter 331 of the rules. The intent of the
proposed amendments to Chapter 331 is to clarify existing rules and definitions,
clarify and update Class V injection well standards to currently accepted
well construction and closure standards, and provide consistency with standards
for drillers installing similar well types adopted by the TDLR. Since the
proposed standards are consistent with those required by TDLR for licensed
water well drillers, adoption of the proposed amendments should have no significant
fiscal impact.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
"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 proposed rules
are intended to protect the environment and reduce risks to human health from
environmental exposure. Although certain standards have been revised, the
proposed amendments reflect what is considered to be current well drilling
practice and is not anticipated to have an adverse effect 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. In
addition, §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. The proposed amendments do not
exceed a standard set by federal law, exceed an express requirement of state
law, nor exceed a requirement of a delegation agreement. The proposed amendments
were not developed solely under the general powers of the agency, but are
proposed under authority of Chapter 27 of the Texas Water Code, which authorizes
the commission to regulate injection wells. The state standards do not exceed
the standard set by federal law because federal regulations, required under
Title 42 Public Health and Welfare, §330h(b)(1), contain the minimum
requirements and restrictions on a state injection well program and include
requirements that prohibit injection which is not authorized by permit or
rule and require that no state program which provides for authorization of
underground injection by rule may promulgate rules which endanger drinking
water sources.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules
pursuant to Texas Government Code, §2007.043. Promulgation and enforcement
of these rules will not affect private real property because the rulemaking
clarifies the definition of a Class V well to include a closed loop injection
well. The rulemaking also proposes clearer guidance for the construction and
closure standards for Class V wells under the jurisdiction of the commission.
Private property is not affected or burdened by these rules because the
rules do not restrict or limit an owner's right to property that would otherwise
exist in the absence of the proposed changes. In other words, a property owner
may still use his property in any manner he wishes, in accordance with applicable
state law and rules of the commission.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
This rulemaking is not subject to the Texas Coastal Management Plan (CMP).
The rulemaking proposes clearer guidance for the construction and closure
of Class V wells under the jurisdiction of the commission. The executive director
has reviewed the rulemaking and found that the proposed rules and rule changes
do not govern specific actions identified in the CMP as being subject to consistency
with the CMP, including air pollution emissions, on-site sewage disposal systems,
or underground storage tanks expressly identified under Coastal Coordination
Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and
Rules Subject to the CMP. Neither do the proposed rules or rule changes qualify
as an individual agency action subject to 31 TAC §505.11(a).
PUBLIC HEARING
A public hearing on this proposal will be held in Austin on February 23,
2000 at 10:00 a.m. in Building F, Room 2210 at the Texas Natural Resource
Conservation Commission complex, located at 12100 Park 35 Circle. Individuals
may present oral or written statements when called upon in order of registration.
Open discussion will not occur during the hearing; however, an agency staff
member will be available to discuss the proposal 30 minutes before the hearing
and will answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lisa Martin, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
99009-331-WT. Comments must be received by 5:00 p.m., February 28, 2000. For
further information, please contact Mary Ambrose, Regulatory Development Section,
(512) 239-4813.
Subchapter A. GENERAL PROVISIONS
butane
]
- 5,000 pounds;
(-e-)
(-f-)
]
pentanes (all
isomers)
[
pentane
] - 5,000 pounds;
(-g-)
] propane - 5,000 pounds;
(-h-)
] propylene - 5,000
pounds;
(-i-)
definition
];
definition
] is not known, any amount of the mixture which equals or exceeds the
amount for any single air contaminant compound that is present in the mixture
and listed in subparagraph (A)(i) of this
paragraph
[
definition
];
definition
] are known to be less than 0.02% by weight of the mixture, and each
of the other individual air contaminant compounds covered by subparagraph
(A)(ii) of this
paragraph
[
definition
] are known to
be less than 2.0% by weight of the mixture, any total amount of the mixture
of air contaminant compounds greater than or equal to 5,000 pounds; or
and
] air
emissions from crude oil are known to be in an amount greater than or equal
to 5,000 pounds or associated hydrogen sulfide and mercaptans in a total amount
greater than 100 pounds, whichever occurs first;
(A)
] the processes and equipment
involved;
(B)
] the date and time of the upset;
(C)
] the duration or expected duration
of the upset;
(D)
] the compound descriptive type
of the individually listed compounds or mixtures of air contaminants in the
definition of reportable quantity which are known through common process knowledge
or past engineering analysis or testing to exceed the reportable quantity;
(E)
] the estimated quantities for
those compounds or mixtures described in subparagraph
(E)
[
(D)
] of this paragraph except in the case of upsets determined on opacity
only, where opacity will be estimated; and
(F)
] the actions taken or being
taken to correct the upset and minimize the emissions.
(A)
] the processes and equipment
involved;
(B)
] the date and time of the upset;
(C)
] the duration or expected duration
of the event;
(D)
] the estimated opacity; and
(E)
] the actions taken or being
taken to correct the upset and minimize the emissions.
local
] air pollution control agency
with jurisdiction
.
records
] of reportable and non-reportable
upsets as soon as practicable, but no later than two weeks after
the
end of
an upset.
Final
[
The
] records shall be
maintained on-site for a minimum of five years and be made readily available
upon request to commission staff or personnel of any [
local
] air
pollution program
with
[
having
] jurisdiction. If a site
is not normally staffed, records of upsets may be maintained at the staffed
location within Texas that is responsible for day-to-day operations of the
site. Such records shall identify:
in the definition of
reportable quantity
] which are known through common process knowledge
or past engineering analysis or testing [
to exceed the reportable quantity
], except for boilers or combustion turbines referenced in the definition
of reportable quantity;
(c)
] The owner or operator of a
boiler or combustion turbine referenced in the definition of reportable quantity
that is equipped with a continuous emission monitoring system providing updated
readings at a minimum 15-minute interval
and is required to submit excess
emission reports by other state or federal requirements,
is exempt from
creating
,
[
and
] maintaining
, and submitting
records of reportable and non-reportable upsets of the boiler or combustion
turbine under
subsection (b) of this section
[
this section
].
(d)
] The owner or operator of any
facility subject to the provisions of this section shall perform, upon request
by the executive director or any [
local
] air pollution control
agency
with jurisdiction
, a technical evaluation of the upset event.
The evaluation shall include at least an analysis of the probable causes of
the upset and any necessary actions to prevent or minimize recurrence. The
evaluation shall be submitted in writing to the executive director within
60 days from the date of request. The 60-day period may be extended by the
executive director.
include
]
:
(A)
] the expected date and time
of the maintenance, start-up, or shutdown;
(B)
] the processes and equipment
involved;
(C)
] the expected duration of the
maintenance, start-up, or shutdown;
(D)
] the compound descriptive type
of the individually listed compounds or mixtures of air contaminants in the
definition of reportable quantity which are known through common process knowledge
or past engineering analysis or testing to exceed the reportable quantity;
(E)
] the estimated quantities for
those compounds or mixtures described in
subparagraph (E) of this paragraph
[
paragraph (4) of this subsection
], except in the case of
unauthorized emissions determined on opacity only, where opacity will be estimated;
and
(F)
] the actions taken to minimize
the emissions from the maintenance, start-up, or shutdown.
for reportable upsets
] for boilers or combustion turbines referenced in the definition of
reportable quantity shall
identify
[
include
]
:
(A)
] the processes and equipment
involved;
(B)
] the date and time of the
maintenance, start-up, or shutdown
[
upset
];
(C)
] the duration or expected duration
of the event;
(D)
] the estimated opacity; and
(E)
] the actions taken or being
taken to minimize the emissions from the maintenance
,
start-up,
or shutdown.
records
] of all maintenance, start-ups, and
shutdowns with unauthorized emissions as soon as practicable, but no later
than two weeks after the maintenance, start-up, or shutdown.
Final
[
The
] records shall be maintained on-site for a minimum of
five
[
two
] years and be made readily available upon request
to commission staff or personnel of any [
local
] air pollution program
with
[
having
] jurisdiction. If a site is not normally staffed,
records of
maintenance, start-ups, and shutdowns
[
upsets
]
may be maintained at the staffed location within Texas that is responsible
for day to day operations of the site. Such records shall identify:
in the definition of
reportable quantity
] which are known through common process knowledge
or past engineering analysis or testing [
to exceed the reportable quantity
], except for boilers or combustion turbines referenced in the definition
of reportable quantity;
will
] be estimated; and
(d)
] The owner or operator of a
boiler or combustion turbine referenced in the definition of reportable quantity
that is equipped with a continuous emission monitoring system providing updated
readings at a minimum 15-minute interval
and is required to submit excess
emission reports by other state or federal regulations,
is exempt from
creating
,
[
and
] maintaining
, and submitting
records of maintenance, start-ups, and shutdowns
with unauthorized
emissions
[
of the boiler or combustion turbine
] under
subsection (c) of this section
[
this section
].
(e)
] The executive director may
specify the amount, time, and duration of emissions that will be allowed during
the maintenance, start-up, or shutdown. The owner or operator of any source
subject to the provisions of this section shall submit a technical plan for
any start-up, shutdown, or maintenance when requested by the executive director.
The plan shall contain a detailed explanation of the means by which emissions
will be minimized during the maintenance, start-up, or shutdown. For those
emissions which must be released into the atmosphere, the plan shall include
the reasons such emissions cannot be reduced further.
Exemptions from Rules and Regulations ].
Texas Clean Air Act
], §382.0518(g)
if
the owner or operator properly complies with the requirements of §101.6
of this title (relating to Upset Reporting and Recordkeeping Requirements)
and satisfies all of the following:
(1)
(2)
(3)
Texas Clean Air Act
], §382.0518(g)[
,
] if the owner or
operator
properly
complies with the requirements of §101.7
of this title (relating to Maintenance, Start-up and Shutdown Reporting, Recordkeeping,
and Operational Requirements)[
,
] and
satisfies all of the
following:
[
the emissions are minimized to the extent practicable.
]
Texas Air Control Board
]. The
commission
[
board
] may specify limitations and conditions as to the
operation of such exempt sources.
The commission will not exempt sources
from complying with any federal requirements.
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES Exclusions and Exceptions ].
:
]
registered as farm vehicles with the Motor Vehicle Division of the Texas Department
of Highways and Public Transportation and are intended solely or primarily
for use on a farm or ranch; or are
] intended solely or primarily for
legally sanctioned motor competitions, for research and development uses,
or for instruction in a bona fide vocational training program where the use
of a system or device would be detrimental to the purpose for which the vehicle
or engine is intended to be used are exempt from the provisions of §114.20(a),
(b), and (d) of this title (relating to Maintenance and Operation of Air Pollution
Control Systems or Devices Used
to
[
To
] Control Emissions
From Motor Vehicles).
:
]
Any person owning or operating a motor vehicle or motor vehicle engine may
apply to the executive director for an exclusion from the provisions of §114.20(a)
and (b) of this title. Such an exclusion may be granted if the following conditions
are met.
]
The application shall include the applicant's
full name, business address, and telephone number. A single vehicle and vehicle
engine shall be specified in the application and must be identified by the
unique vehicle identification number assigned to that vehicle by the manufacturer
and by the manufacturer's engine family number.
]
The air pollution control systems or devices
on the vehicle or vehicle engine which would be covered by the exclusion shall
be specified in the application.
]
(3)
A demonstration shall be made in
the application that provides adequate justification for special consideration
of the specified vehicle under the provisions of this chapter. This demonstration
shall include, but shall not be limited to, the following information necessary
to determine that the use of certain pollution control devices or systems
on the vehicle to be covered by the exclusion would result in a clear danger
to persons or property or would be detrimental to the purpose for which the
vehicle is intended to be used:
]
(A)
Proposed use of the vehicle and description
of adverse circumstances;
]
(B)
Locations where the vehicle will primarily
be operated;
]
(C)
Estimated length of time the vehicle
is expected to be operated in adverse circumstances;
]
(D)
Estimated percentages of the time the
vehicle will primarily be operated in adverse circumstances and on public
roadways;
]
(E)
History of problems related to the use
of specified control devices or systems;
]
(F)
Evidence of the potential hazards and
consequences of operating the vehicle for the intended use with the identified
control devices or systems in place.
]
(4)
]
A
[
The applicant
shall agree and ensure that a
] copy of the
exemption
[
exclusion
] shall be kept with the vehicle at all times and shall be
available for inspection by representatives of the
commission
[
Texas Natural Resource Conservation Commission
], the Texas Department
of Public Safety (DPS), or any other law enforcement agency upon request.
The approved exclusion shall also be presented to the certified vehicle inspector
before each annual vehicle safety inspection of the vehicle as administered
by the DPS.
(5)
] The
exemption
[
applicant shall agree and ensure that the exclusion
] shall be void and
all pollution control systems and devices replaced on the vehicle and/or engine
covered by the exclusion when the vehicle changes ownership or is no longer
used for the purpose identified in the exclusion application. The executive
director shall be informed in writing prior to the change of ownership or
usage.
(6)
DPS
] motor vehicle safety inspection certificates must be removed
from the vehicle and destroyed before the vehicle may be offered for sale
or displayed for public examination.
Chapter 331.
UNDERGROUND INJECTION CONTROL