30 TAC §115.769
The Texas Commission on Environmental Quality (commission)
adopts an amendment to §115.769; Subchapter H, Highly-Reactive Volatile
Organic Compounds; Division 2, Cooling Tower Heat Exchange Systems. Section
115.769 is adopted
without change
to the proposed
text as published in the November 7, 2003 issue of the
Texas Register
(28 TexReg 9715) and will not be republished.
The amendment to §115.769 and corresponding revision to the state
implementation plan (SIP) will be submitted to the United States Environmental
Protection Agency (EPA).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The commission adopts this amendment to Chapter 115 and the associated
revision to the SIP in order to change the compliance date for cooling tower
heat exchange systems in the eight-county Houston/Galveston (HGA) ozone nonattainment
area from no later than December 31, 2004 to no later than December 31, 2005.
This amendment would make the compliance date for cooling tower heat exchange
systems in highly-reactive volatile organic compound (HRVOC) service the same
as the compliance dates for HRVOC flares and HRVOC vent gas streams, but would
not affect the compliance date for the site-wide cap in 30 TAC §115.761,
Site-wide Cap. This change is necessary to provide sufficient time for owners
and operators of cooling tower heat exchange systems to purchase and install
the required monitoring equipment, and is consistent with commission objectives
to achieve the intended volatile organic compound (VOC) emission reductions
of the HGA ozone SIP.
The scope of the rulemaking is limited to the change to the compliance
date for cooling tower heat exchange systems in the eight-county HGA ozone
nonattainment area. No additional changes are being adopted to the cooling
tower rules or other HRVOC rules at this time.
SECTION DISCUSSION
The amendment to §115.769, Counties and Compliance Schedules, changes
the compliance date for cooling tower heat exchange systems in the eight-county
HGA ozone nonattainment area from no later than December 31, 2004 to no later
than December 31, 2005. The amendment makes the compliance date for cooling
tower heat exchange systems with HRVOC in the water the same as the compliance
dates for HRVOC flares and HRVOC vent gas streams, but does not affect the
compliance date for the site-wide cap in §115.761.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed this rulemaking action in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that this rulemaking action does not meet the definition of a "major
environmental rule." A "major environmental rule" is 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. This primary purpose of this amended rule is to extend the compliance
date for cooling tower heat exchange systems with HRVOC contained in the water,
and this amended rule does not implement additional regulations that are not
already required by the commission and EPA. This rulemaking action will not
adversely affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state. Therefore, this is not a major
environmental rule.
In addition, a regulatory impact analysis is not required because this
rule does not meet any of the four applicability criteria for requiring a
regulatory analysis of a "major environmental rule" as defined in Texas Government
Code, §2001.0225. Section 2001.0225 applies only to a major environmental
rule the result of which is to: 1) exceed a standard set by federal law, unless
the rule is specifically required by state law; 2) exceed an express requirement
of state law, unless the rule is specifically required by federal law; 3)
exceed a requirement of a delegation agreement or contract between the state
and an agency or representative of the federal government to implement a state
and federal program; or 4) adopt a rule solely under the general powers of
the agency instead of under a specific state law. This rule amendment does
not exceed a standard set by federal law nor exceed an express requirement
of state law. There is no contract or delegation agreement that covers the
topic that is the subject of this rulemaking action. Finally, this rulemaking
action was not developed solely under the general powers of the agency, but
is authorized by specific sections of the Texas Health and Safety Code and
the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of
this preamble. Therefore, this rulemaking action is not subject to the regulatory
analysis provisions of Texas Government Code, §2001.0225(b), because
this adopted rule amendment does not meet any of the four applicability requirements.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an analysis
of whether this rule amendment is subject to Texas Government Code, Chapter
2007. The primary purpose of this rulemaking action is to extend the compliance
date for cooling tower heat exchange systems with HRVOC contained in the water.
Promulgation and enforcement of this rule amendment would be neither a statutory
nor a constitutional taking because it does not affect private real property.
Specifically, this rule amendment does not affect a landowner's rights in
private real property because this rule amendment does not burden (constitutionally),
nor restrict or limit the owner's right to property or reduce its value by
25% or more beyond that which would otherwise exist in the absence of this
rule amendment. Therefore, this rule amendment will not constitute a takings
under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking action and found that this action
is identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11,
or will affect an action/authorization identified in Coastal Coordination
Act Implementation Rules, 31 TAC §505.11, and therefore, requires that
applicable goals and policies of the Texas Coastal Management Program (CMP)
be considered during the rulemaking process.
The commission determined that this rulemaking action is consistent with
the applicable CMP goals and policies. The CMP goal applicable to this rulemaking
action is the goal to protect, preserve, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)).
No new sources of air contaminants will be authorized. The CMP policy applicable
to this rulemaking action is the policy that commission rules comply with
regulations in 40 Code of Federal Regulations, to protect and enhance air
quality in the coastal area (31 TAC §501.14(q)). This rulemaking action
complies with 40 Code of Federal Regulations; therefore, in compliance with
31 TAC §505.22(e), this rulemaking action is consistent with CMP goals
and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMIT PROGRAM
Chapter 115 is an applicable requirement under 30 TAC Chapter 122; therefore,
owners or operators subject to the federal operating permit program must,
consistent with the revision process in Chapter 122, revise their operating
permits to include the revised Chapter 115 requirements for each emission
unit at their sites affected by this revision to Chapter 115.
PUBLIC COMMENT
A public hearing on this proposal was held in Austin on December 2, 2003.
No person presented oral comments at the hearing. The following persons submitted
written comments: BP Products North America, Inc. (BP); EPA; Sierra Club,
Houston Regional Group (Sierra); and Texas Chemical Council (TCC).
RESPONSE TO COMMENTS
BP and TCC supported the proposal. EPA and Sierra opposed the proposal.
BP and TCC stated that if a company chooses to submit an alternative cooling
water monitoring plan, time will be needed for agency review and approval.
BP and TCC also stated that after a plan is approved, approximately 12 to
18 months will be necessary to procure and install monitoring equipment. Finally,
BP and TCC commented that more time is necessary because the previous Chapter
115 rulemaking was delayed.
The commission appreciates the support and acknowledges that there are
many factors that may delay the installation of monitors in certain cases.
Therefore, the commission maintains that extending the compliance date to
December 31, 2005 will ensure that all accounts will have sufficient time
to demonstrate compliance with the division.
EPA expressed a belief that the proposed rule change may not ensure that
the monitoring requirements are being required as expeditiously as practicable.
EPA suggested that the compliance date be six months earlier than proposed.
The commission is confident that, in most cases, monitors will be installed
as soon as practicable per the requirements of §115.769. However, due
to the current supply and demand for these specialized monitors, associated
equipment, and construction required for installation and operation, the commission
has concluded that a December 31, 2005 compliance date will better ensure
overall compliance with this rule. Moreover, a compliance date that matches
the compliance dates for flares and vent gas streams in HRVOC service is logical
because it will provide the regulated community with consistent HRVOC compliance
dates for which the regulated community may better coordinate the installation
of monitors to ensure complete and timely compliance. While requiring monitoring
six months earlier as EPA suggests would provide the commission with additional
data for modeling purposes, the data would not be available for assessment
and analysis in time to impact the site-wide cap by the April 1, 2006 site-wide
cap compliance date.
Sierra stated that it opposed the delay of implementation of the compliance
date from December 31, 2004 to December 31, 2005. Sierra further commented
on the health effects of ozone and stated that the SIP is nine years past
the Federal Clean Air Act Amendment's 1994 deadline and seven years past the
1996 deadline, and that the commission is unreasonably putting the public
at risk. Sierra also commented that it supported the existing cooling tower
rules that require continuous VOC measurements, continuous flow measurements,
the requirement to continuously operate each monitoring system at least 95%
of the time when the cooling tower is operating, and the recordkeeping requirements
in §115.767.
The commission has been working to adopt measures to meet the health-based
ozone standards. Due to ongoing advances in the science of ozone formation,
the commission has regularly modified the SIP over the past 13 years since
the Federal Clean Air Act Amendments were signed into law in 1990. The 1990
amendments mandated that the HGA ozone attainment demonstration be submitted
by 1996. However, this deadline was changed in 1995 when EPA issued guidance
that allowed states to postpone completion of their attainment demonstrations
until an assessment of the role of transported ozone and precursors was completed
for the eastern half of the nation, including the eastern portion of Texas.
Texas participated in this study, which concluded that Texas does not significantly
contribute to ozone exceedances in the northeastern United States. It is important
to note that none of the changes to the submittal deadlines have resulted
in changes to the attainment deadline in the Federal Clean Air Act, which
requires HGA to attain the one-hour ozone standard by November 15, 2007.
The commission appreciates Sierra's comments supporting the existing cooling
tower rules that require continuous VOC measurements, continuous flow measurements,
the requirement to continuously operate each monitoring system at least 95%
of the time when the cooling tower is operating, and the recordkeeping requirements
in §115.767. The commission disagrees with Sierra's comments opposing
the proposed compliance date of December 31, 2005. Due to the current supply
and demand for the specialized monitors, associated equipment, and construction
required for the installation and operation that will meet the requirements
of this division, the commission has concluded that a December 31, 2005 compliance
date will better ensure overall compliance with this rule. Moreover, a compliance
date that matches the compliance dates for flares and vent gas streams in
HRVOC service is logical because it will provide the regulated community with
consistent HRVOC compliance dates for which the regulated community may better
coordinate the installation of monitors to ensure complete and timely compliance.
Finally, the date for complying with the site-wide cap, April 1, 2006, has
not been changed.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code, §382.017, concerning
Rules, which authorizes the commission to adopt rules consistent with the
policy and purposes of the Texas Clean Air Act. The amendment is also adopted
under Texas Health and Safety Code, §382.002, concerning Policy and Purpose,
which establishes the commission's purpose to safeguard the state's air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, concerning General Powers and Duties, which authorizes
the commission to control the quality of the state's air; §382.012, concerning
State Air Control Plan, which authorizes the commission to prepare and develop
a general, comprehensive plan for the proper control of the state's air; and §382.016,
concerning Monitoring Requirements Examination of Records, which authorizes
the commission to prescribe reasonable requirements for measuring and monitoring
the emissions of air contaminants.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 12, 2004.
TRD-200401869
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: April 1, 2004
Proposal publication date: November 7, 2003
For further information, please call: (512) 239-0348