10
) may be used as the indicator for PM when assessing
BART eligibility. The commission has not proposed to include volatile organic
compounds (VOCs) or ammonia as visibility-impairing air pollutants. The commission's
initial research suggests that VOCs are not a significant contributor to visibility
impairment at Class I areas that are impacted by Texas facilities. In addition,
the commission has not proposed to include ammonia because existing background
levels in Texas would make visibility improvements from ammonia source reductions
only marginally effective, and the EPA has indicated that inclusion of ammonia
as an evaluated BART pollutant is not expected. However, this determination
is not final and the commission is interested in comments or data relating
to the possible inclusion of VOCs and/or ammonia as visibility-impairing air
pollutants. For terms not defined in this section, the definitions contained
in 40 CFR §51.301 apply.
§116.1510. Applicability and Exemption Requirements.
The commission proposes new §116.1510 to specify which facilities
would be subject to the proposed rules and identify certain exemptions which
may apply. The proposed rules only apply to BART-eligible sources as defined
in §116.1500.
Under proposed §116.1510(b), the owner or operator of a BART-eligible
source may elect to use modeling to demonstrate that the source does not cause
or contribute to visibility impairment at any Class I areas. If the owner
or operator successfully demonstrates that the source does not cause or contribute
to visibility impairment, the source would not be subject to the requirements
of §116.1520, Best Available Retrofit Technology (BART) Analysis, and §116.1530,
Best Available Retrofit Technology (BART) Control Implementation. Owners or
operators who seek to claim this exemption must submit the exemption modeling
to the commission's Air Permits Division no later than April 30, 2007, under
seal of a professional engineer licensed in the State of Texas.
BART exemption modeling and modeling conducted as part of the BART analysis
must conform to a commission-approved model and associated guidelines. The
commission is considering the approval of California Puff Model (CALPUFF)
modeling and the Central Regional Air Planning Association's
CENRAP BART Modeling Guidelines
. The commission is seeking comments
on other appropriate modeling approaches for BART. Persons seeking guidance
about the
CENRAP BART Modeling Guidelines
and
other aspects of the BART modeling process should contact the commission's
Air Permits Division.
The commission is proposing a 0.5 deciview threshold for determining whether
a source causes or contributes to visibility impairment. EPA guidance indicates
that 0.5 deciview is the upper limit that states should use for determining
whether a source contributes to visibility impairment. Factors that may influence
the selection of this threshold are the number of emission sources affecting
Class I areas and the magnitude of emissions from the individual sources.
As additional information is gathered about emissions from BART-eligible sources
in Texas and how those emissions relate to visibility in Class I areas, it
is possible that a lower threshold of visibility impairment may be necessary.
A lower threshold could include the application of different visibility impairment
thresholds for each individual Class I area. The commission invites comment
on the proposed 0.5 deciview threshold, as well as any alternative strategy.
The commission is proposing several exemptions under §116.1510(c).
These exemptions are based on examples that the EPA developed for 40 CFR Part
51, Appendix Y. There are two "model plant" exemptions proposed as §116.1510(c)(1)
and (2), respectively. The EPA concluded that sources meeting the stated criteria
for emissions and distance from Class I areas are unlikely to have a significant
effect on visibility. The exemptions in §116.1510(c)(1) and (2) are pollutant
specific for NO
x
and SO
2
, such that the owner or operator of the source would still be required
to perform the BART engineering analysis and implement any applicable BART
controls for other visibility-impairing pollutants (such as PM).
The exemption proposed under §116.1510(c)(3) is based on
de minimis
emission totals which EPA determined would be unlikely to
contribute to regional haze. As is the case with the proposed exemptions in §116.1510(c)(1)
and (2), the exemption in §116.1510(c)(3) is pollutant specific. For
example, a source may be exempted for purposes of NO
x
or SO
2
while remaining subject to BART
requirements for PM. A source claiming this exemption could also be exempted
from BART requirements for PM
10
while remaining
subject to BART for other visibility-impairing air pollutants.
Owners or operators claiming exemption under §116.1510(c) are required
to maintain records to demonstrate compliance with the exemption criteria,
and shall make such records available to the commission or any local air pollution
control agency with jurisdiction upon request.
The commission is proposing §116.1510(d) to provide that electric
generating units (EGUs) that are participating in the Clean Air Interstate
Rule (CAIR) cap and trade program may avoid a BART analysis and implementation
of controls for NO
x
and SO
2
. The EPA has determined that CAIR provides greater reasonable progress
than BART and has correspondingly allowed the use of CAIR as an acceptable
substitute for the application of BART controls. This subsection only addresses
NO
x
and SO
2
, so
BART-eligible EGUs would remain subject to BART requirements for PM.
§116.1520. Best Available Retrofit Technology
(BART) Analysis.
The commission proposes new §116.1520, which contains requirements
for the BART engineering analysis. BART-eligible sources that are not exempted
under §116.1510(b) or (c) are required to develop a BART engineering
analysis to determine BART for that source. The analysis shall be conducted
according to the procedures established in 40 CFR Part 51, Appendix Y, Guidelines
for BART Determinations Under the Regional Haze Rule, Section IV, The Bart
Determination: Analysis of BART Options. The BART analysis must include an
evaluation of all technically feasible retrofit technologies in accordance
with the five factors stated in FCAA, §169A(g)(2) (42 USC, §7491).
The factors to be considered in the BART analysis are: an analysis of the
cost of compliance, the energy and non-air quality environmental impacts,
the degree of visibility improvement in affected Class I areas resulting from
the use of the control technology, the remaining useful life of the source,
and any existing control technology present at the source. Based on these
statutory factors, the owner or operator must select and identify one of the
emission control alternatives as the prospective BART control strategy for
the source.
Proposed §116.1520(b) would require the owner or operator to specify
short-term (hourly) and long-term (annual) emission limits associated with
the selected BART control strategy. This information is necessary for the
commission to develop the required Regional Haze SIP.
Proposed §116.1520(c) would establish a deadline of April 30, 2007,
for submission of the BART analysis. This deadline is necessary to provide
the commission with sufficient time to review the BART analyses and compile
BART emission reductions to develop the required Regional Haze SIP by the
December 17, 2007, deadline.
§116.1530. Best Available Retrofit Technology
(BART) Control Implementation.
The commission proposes new §116.1530, which contains requirements
and deadlines associated with the implementation of any required BART controls.
Proposed §116.1530(a) establishes the deadline for any required BART
controls to be implemented. Federal regulations specify that BART controls
must be in place no later than five years after the EPA approves a state's
Regional Haze SIP. Given that the commission is required to submit the Regional
Haze SIP to EPA by December 17, 2007, and the EPA will require some time to
review the SIP, it is likely that the BART control deadline will occur during
or after the year 2013. Many factors influence the schedule of the development
and approval of the Regional Haze SIP and it would be difficult to estimate
a more precise deadline. Proposed §116.1530(a) also contains a requirement
for owners or operators to establish procedures to ensure that BART-required
control equipment is properly and continuously operated and maintained.
Proposed §116.1530(b) is intended to ensure that owners or operators
subject to BART obtain any necessary authorization for new control equipment
and establish enforceable mechanisms to ensure ongoing compliance with BART.
The proposed rule requires that each owner or operator of a BART-eligible
source apply for a permit, permit amendment, permit alteration, applicable
standard permit, or other enforceable mechanism to establish BART emission
limitations. If a BART-eligible facility satisfies BART requirements using
existing controls, and there are no changes in quantity or character of emissions,
then no permit action is required as long as the existing emissions have enforceable
limits in a permit, standard permit, or other type of authorization.
§116.1540. Exemption from Best Available
Retrofit Technology (BART) Control Implementation.
Proposed new §116.1540 provides a case-specific mechanism for BART-eligible
sources to request an exemption from BART control requirements. In order to
obtain exemption under this section, the owner or operator seeking exemption
must first obtain initial approval from the commission, then obtain final
approval from the EPA. Although this exemption may be used to avoid the otherwise-required
installation of BART controls, this exemption does not negate the requirement
to perform the BART analysis required under proposed §116.1520, or the
requirement to submit the analysis no later than April 30, 2007.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment Section, has
determined that, for the first five-year period the proposed rules are in
effect, no significant fiscal implications are anticipated for the agency.
The agency will be required to review modeling and engineering analyses to
verify that they meet federal guidelines and are technically correct. Staff
anticipates that these reviews can be done with existing resources. Administration
or enforcement of the proposed rules may have fiscal implications, some of
which may be significant, for other units of state or local governments owning
or operating facilities that may require BART to control emissions. Fiscal
implications would depend on the results of exemption modeling assessments
and engineering analysis as well as the determination of whether controls
would be required.
The FCAA requires states to submit SIPs to address visibility impairment
caused by regional haze in the 156 federally protected parks and wilderness
areas. As part of their SIPs, states must identify the BART-eligible sources
within their boundaries and provide guidelines for determining BART to ensure
certain older pollution sources use appropriate technology to control emissions
that cause or contribute to impaired visibility in designated national parks
and landmarks.
The EPA has named 26 general types of sources that could be affected by
the proposed rules. These types of sources include chemical plants, fossil
fuel-fired EGUs, refineries, portland cement plants, lime plants, large boilers,
carbon black plants, certain types of smelters, kraft pulp mills, iron mills,
steel mills, fiber glass processing plants, and charcoal production facilities.
The proposed rules would apply to sources that have the potential to emit
250 tons or more per year of visibility-impairing air pollutants and were
built or reconstructed between August 7, 1962, and August 7, 1977. The proposed
rules define visibility-impairing air pollutants as NO
x
, SO
2
, and PM.
Texas has BART-eligible sources scattered throughout the state. Local governments
that own or operate facilities classified as BART-eligible sources may need
to perform case-specific emissions modeling to claim exemptions from the proposed
rules. Entities that are not eligible to meet any exemptions will be required
to prepare and submit a BART engineering analysis. They may also be required
to install BART emission controls at a later date, in the year 2013 or later,
if it is determined that additional controls are needed.
A recent survey conducted by the agency indicates that there may be as
many as 127 BART-eligible sources in Texas. According to survey results, there
are less than 15 BART-eligible sources in Texas that are owned or operated
by local governments. Local governments subject to the proposed rules may
be required to pay as much as $5,000 to $20,000 for exemption modeling. An
engineering analysis, if required, may cost affected local governments as
much as $10,000 to $40,000. The costs of the exemption modeling and BART engineering
analysis would vary greatly depending on a number of factors, which include
the complexity of the source, the size of a facility, and the proximity of
the source to protected national parks and landmarks. Costs of implementing
BART controls depend on the type of control required and are estimated by
EPA to range from a low of $1,000 to a high of $10,000 per ton of NOx
, SO
2
, or PM controlled.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be compliance with federal regulations
and, over the long term, improved visibility, cleaner air, and a healthier
and safer environment.
A recent survey conducted by the agency indicates that there may be as
many as 127 BART-eligible sources in Texas. There may be as many as 112 of
these sources that are owned or operated by large businesses. Large businesses
may pay as much as $5,000 to $20,000 for exemption modeling. An engineering
analysis, if required, may cost large businesses as much as $10,000 to $40,000.
The costs of the exemption modeling and BART engineering analysis would vary
greatly depending on a number of factors, which include the complexity of
the source, the size of a facility, and the proximity of the source to protected
national parks and landmarks. Costs of implementing BART controls depend on
the type of control required and are estimated by the EPA to range from a
low of $1,000 to a high of $10,000 per ton of NO
x
,
SO
2
, or PM controlled.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses.
None of the potential BART-eligible sources in Texas are known to be owned
or operated by a small or micro-business. If a small or micro-business does
become subject to the proposed rules, it would incur the same costs as those
incurred by local governments or large businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that the proposed rulemaking meets the definition of a "major environmental
rule" as defined in that statute. A "major environmental rule" means a rule,
the specific intent of which is to protect the environment or reduce risks
to human health from environmental exposure, and that may adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state. The proposed rulemaking does not, however, meet any of the four
applicability criteria for requiring a regulatory impact analysis for a major
environmental rule, which are listed in Texas Government Code, §2001.0225(a).
Texas Government Code, §2001.0225, applies only to a major environmental
rule, the result of which is to: 1) exceed a standard set by federal law,
unless the rule is specifically required by state law; 2) exceed an express
requirement of state law, unless the rule is specifically required by federal
law; 3) exceed a requirement of a delegation agreement or contract between
the state and an agency or representative of the federal government to implement
a state and federal program; or 4) adopt a rule solely under the general powers
of the agency instead of under a specific state law.
This proposed rulemaking would require BART on certain sources of NOx
, SO
2
, and PM that cause
or contribute to visibility impairment in any Class I area. The proposed new §§116.1500,
116.1510, 116.1520, 116.1530, and 116.1540 would ensure that owners or operators
of sources that are subject to BART requirements perform a BART engineering
evaluation to determine the appropriate level of BART, and subsequently implement
any required BART controls. The proposal incorporates by reference the EPA's
Guidelines for BART Determinations Under the Regional Haze Rule (40 CFR Part
51, Appendix Y). The proposed rules also provide mechanisms for BART-eligible
sources to demonstrate that they do not significantly impact visibility in
Class I areas and are therefore not subject to BART control requirements.
This strategy is intended to address visibility impairment at federally designated
parks and scenic areas of national importance (Class I areas) and thus the
intent of the proposed rules is protection and improvement of the aesthetic
environment in these areas. Furthermore, the commission finds that the revisions
to Chapter 116 proposed in this rulemaking could adversely affect in a material
way the economy, productivity, competition, jobs, the environment, or the
public health and safety of the state or a sector of the state. Under the
proposed new sections, BART-eligible sources are those sources that belong
to one of 26 named source categories, have the potential to emit 250 tons
per year or more of a visibility-impairing air pollutant (NO
x
, SO
2
, and PM), and were built or reconstructed
between August 7, 1962, and August 7, 1977. The commission has determined
that approximately 127 sources may be BART eligible. Sources determined to
be subject to BART through the engineering analysis of Appendix Y must install
and operate BART controls for the source five years after the EPA approves
the state's Regional Haze SIP. The commission anticipates that a fraction
of these BART-eligible sources will actually be required to install BART controls,
and it is not yet known what BART will be for each source. Some sources will
model out of the requirement to determine and ultimately install BART; and
EGUs may use CAIR as a substitute for BART. The exact cost of the BART controls
for each unit cannot be predicted, but significant costs to comply with the
control requirements may be expected from at least some units, which could
in turn adversely affect a sector of the economy. The EPA has estimated costs
ranging from $1,000 to $10,000 per ton of NO
x
,
SO
2
, or PM. Given the potential for significant
costs, the commission has made the determination that this rulemaking meets
the definition of a "major environmental rule."
Nevertheless, the proposed new sections to Chapter 116 are not subject
to the regulatory analysis provisions of Texas Government Code, §2001.0225(b),
because the proposed rules do not meet any of the four applicability requirements
in subsection (a) of that section. Specifically, the BART requirements in
Chapter 116 were developed to be included in the Regional Haze SIP that will
be submitted to the EPA as required under FCAA, 42 USC, §7491 and §7492,
and therefore meet a federal requirement. FCAA, 42 USC, §7491, requires
each SIP to include a requirement that each BART-eligible source that is reasonably
anticipated to cause or contribute to visibility impairment in any Class I
area to procure, install, and operate BART controls. BART is to be determined
according to the five factors listed in §7491(g)(2). FCAA, §7492
requires that any regulations promulgated by the EPA pursuant to §7491
require states to revise their SIPs under FCAA, 42 USC, §7410 to include
a regional haze plan that includes BART for certain sources.
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th
Legislature, 1997. The intent of SB 633 was to require agencies to conduct
a regulatory impact analysis of extraordinary rules. These are identified
in the statutory language as major environmental rules that will have a material
adverse impact and will exceed a requirement of state law, federal law, or
a delegated federal program, or are adopted solely under the general powers
of the agency. With the understanding that this requirement would seldom apply,
the commission provided a cost estimate for SB 633 that concluded "based on
an assessment of rules adopted by the agency in the past, it is not anticipated
that the bill will have significant fiscal implications for the agency due
to its limited application." The commission also noted that the number of
rules that would require assessment under the provisions of the bill was not
large. This conclusion was based, in part, on the criteria set forth in the
bill that exempted proposed rules from the full analysis unless the rule was
a major environmental rule that exceeds a federal law.
The FCAA does not always require specific programs, methods, or reductions
in order to meet emission standards or visibility goals and reasonable progress
of those goals; thus, states must develop programs and strategies to help
ensure that those standards and goals for new and existing sources are met.
The same is true for visibility protection. Because of the ongoing need to
address nonattainment issues, and to meet the requirements of 42 USC, §7410,
the commission routinely proposes and adopts SIP rules. As discussed earlier
in this preamble, states must also revise their SIPs under §7410 to incorporate
a plan for visibility protection, including requirements for BART. The legislature
is presumed to understand this federal scheme. If each rule proposed for inclusion
in the SIP was considered to be a major environmental rule that exceeds federal
law, then every SIP rule would require the full regulatory impact analysis
contemplated by SB 633. This conclusion is inconsistent with the conclusions
reached by the commission in its cost estimate and by the Legislative Budget
Board (LBB) in its fiscal notes. Since the legislature is presumed to understand
the fiscal impacts of the bills it passes, and that presumption is based on
information provided by state agencies and the LBB, the commission believes
that the intent of SB 633 was only to require the full regulatory impact analysis
for rules that are extraordinary in nature. While the SIP rules will have
a broad impact, that impact is no greater than is necessary or appropriate
to meet the requirements of the FCAA. For these reasons, rules adopted for
inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are required by federal law.
The commission has consistently applied this construction to its rules
since this statute was enacted in 1997. Since that time, the legislature has
revised the Texas Government Code, but left this provision substantially unamended.
It is presumed that "when an agency interpretation is in effect at the time
the legislature amends the laws without making substantial change in the statute,
the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp
, 919 S.W.2d
485, 489 (Tex. App. Austin 1995),
writ denied with
per curiam opinion respecting another issue
, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co.
, 798 S.W.2d 353, 357
(Tex. App. Austin 1990,
no writ
);
Cf. Humble Oil & Refining Co. v. Calvert
, 414 S.W.2d 172 (Tex.
1967);
Dudney v. State Farm Mut. Auto Ins. Co.
,
9 S.W.3d 884, 893 (Tex. App. Austin 2000);
Southwestern
Life Ins. Co. v. Montemayor
, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied
); and
Coastal
Indust. Water Auth. v. Trinity Portland Cement Div.
, 563 S.W.2d 916
(Tex. 1978).
The commission's interpretation of the regulatory impact analysis requirements
is also supported by a change made to the Texas Administrative Procedure Act
(APA) by the legislature in 1999. In an attempt to limit the number of rule
challenges based upon APA requirements, the legislature clarified that state
agencies are required to meet these sections of the APA against the standard
of "substantial compliance." The legislature specifically identified Texas
Government Code, §2001.0225, as falling under this standard. The commission
has substantially complied with the requirements of Texas Government Code, §2001.0225.
The specific intent of the proposed rulemaking is to adopt BART rules and
incorporate by reference the federal BART determination guidelines, with the
objective to reduce visibility impairment in federal Class I areas. There
is no contract or delegation agreement that covers the topic that is the subject
of this action. Therefore, the proposed rulemaking does not exceed a standard
set by federal law, exceed an express requirement of state law, or exceed
a requirement of a delegation agreement. Finally, this rulemaking action was
not developed solely under the general powers of the agency, but is authorized
by specific sections of Texas Health and Safety Code (THSC), Chapter 382 (also
known as the Texas Clean Air Act (TCAA)), and the Texas Water Code (TWC),
which are cited in the STATUTORY AUTHORITY section of this preamble, including
THSC, §§382.012, 382.017, and 382.051. Therefore, this rulemaking
action is not subject to the regulatory analysis provisions of Texas Government
Code, §2001.0225(b), because although the proposed rulemaking meets the
definition of a "major environmental rule," it does not meet any of the four
applicability requirements.
The commission invites public comment on the draft regulatory impact analysis
determination during the public comment period.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed an assessment
of whether Texas Government Code, Chapter 2007 is applicable. The commission's
assessment indicates that Texas Government Code, Chapter 2007 does not apply
to this proposed rulemaking because this is an action that is reasonably taken
to fulfill an obligation mandated by federal law, which is exempt under Texas
Government Code, §2007.003(b)(4). Specifically, the new sections of Chapter
116 require that BART-eligible sources determine whether they are subject
to BART controls. Those sources that are subject to BART must perform a BART
engineering evaluation to determine the appropriate level of BART, and subsequently
implement any required BART controls. FCAA, 42 USC, §7491, requires each
state to submit a Regional Haze SIP to address visibility in federal Class
1 areas. The FCAA further mandates that the SIP require each BART-eligible
source that is reasonably anticipated to cause or contribute to visibility
impairment in any Class 1 area to procure, install, and operate BART. BART
is to be determined according to the five federally established factors, listed
in 42 USC, §7491(g)(2).
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action 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 Resources
Code, §§33.201
et seq
.), and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, commission
rules governing air pollutant emissions must be consistent with the applicable
goals and policies of the CMP. The commission reviewed this action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council and determined that the 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(l)). The proposed rules
are intended to implement a federally required program to apply BART emission
controls to certain sources of visibility-impairing air pollutants. The proposed
changes would tend to reduce undesirable haze at federal Class I areas. Certain
aspects of this rulemaking are intended to protect the environment or reduce
risks to human health from environmental exposure. The CMP policy applicable
to this rulemaking action is the policy that commission rules comply with
federal regulations in 40 CFR, to protect and enhance air quality in the coastal
areas (31 TAC §501.14(q)). This rulemaking action complies with 40 CFR
Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation
Plans. Therefore, in accordance with 31 TAC §505.22(e), the commission
affirms that this rulemaking action is consistent with CMP goals and policies.
The commission solicits comments on the consistency of the proposed rulemaking
with the CMP during the public comment period.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Owners and operators subject to the Federal Operating Permit Program must,
consistent with the revision process in 30 TAC Chapter 122, Federal Operating
Permits Program, revise their operating permits to include the applicable
BART control requirements or emission limits for each source.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Austin on September 18,
2006, at 2:00 p.m. at the Texas Commission on Environmental Quality complex
located at 12100 Park 35 Circle in Building E, Room 201S. 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.
Persons who have special communication or other accommodation needs who
are planning to attend the hearing should contact Lola Brown, Office of Legal
Services, at (512) 239-0348. Requests should be made as far in advance as
possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Lola Brown, MC 205, Office of Legal
Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin,
Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted
at
http://www5.tceq.state.tx.us/rules/ecomments/
. All comments should reference Rule Project Number 2006-022-116-EN.
The comment period closes September 25, 2006. For further information, please
contact Margaret Earnest, Air Quality Planning and Implementation Division,
(512) 239-4581.
STATUTORY AUTHORITY
These new sections are proposed under TWC, §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 TWC
and other laws of the state. The new sections are also proposed under THSC, §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, including the esthetic
enjoyment of air resources by the public and maintenance of adequate visibility; §382.011,
concerning General Powers and Duties, which authorizes the commission to establish
and control the level of quality to be maintained in the state's air; §382.012,
concerning State Air Control Plan, which authorizes the commission to prepare
and develop a comprehensive plan for the control of the state's air; §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purpose of the TCAA; and §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
to construct new facilities or modify existing facilities that may emit air
contaminants, or to operate a federal source, and to adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits
issued under the TCAA.
The proposed new sections implement TWC, §5.103 and §5.105; and
THSC, §§382.002, 382.011, 382.012, 382.017, and 382.051.
§116.1500.Definitions.
The following terms, when used in this subchapter, have the following
meanings unless the context clearly indicates otherwise. For terms not defined
in this section, the definitions contained in 40 Code of Federal Regulations
(CFR) §51.301, as effective September 6, 2005, are incorporated by reference.
(1)
Best available retrofit technology (BART)-eligible source--Any
of the following stationary sources of air pollutants, including any reconstructed
source, that was not in operation prior to August 7, 1962, and was in existence
on August 7, 1977, and has the potential to emit 250 tons per year (including
fugitive emissions, to the extent quantifiable) of any visibility-impairing
air pollutant:
(A)
fossil fuel-fired steam electric plants of more than 250
million British thermal units (BTU) per hour heat input;
(B)
coal-cleaning plants (thermal dryers);
(C)
kraft pulp mills;
(D)
portland cement plants;
(E)
primary zinc smelters;
(F)
iron and steel mill plants;
(G)
primary aluminum ore reduction plants;
(H)
primary copper smelters;
(I)
municipal incinerators capable of charging more than 250
tons of refuse per day;
(J)
hydrofluoric, sulfuric, and nitric acid plants;
(K)
petroleum refineries;
(L)
lime plants;
(M)
phosphate rock processing plants;
(N)
coke oven batteries;
(O)
sulfur recovery plants;
(P)
carbon black plants (furnace process);
(Q)
primary lead smelters;
(R)
fuel conversion plants;
(S)
sintering plants;
(T)
secondary metal production facilities;
(U)
chemical process plants;
(V)
fossil fuel-fired boilers of more than 250 million BTUs
per hour heat input;
(W)
petroleum storage and transfer facilities with capacity
exceeding 300,000 barrels;
(X)
taconite ore processing facilities;
(Y)
glass fiber processing plants; and
(Z)
charcoal production facilities.
(2)
Visibility-impairing air pollutant--Any of the following:
nitrogen oxides, sulfur dioxide, or particulate matter.
§116.1510.Applicability and Exemption Requirements.
(a)
The requirements of this subchapter apply to best available
retrofit technology (BART)-eligible sources as defined in §116.1500 of
this title (relating to Definitions).
(b)
The owner or operator of a BART-eligible source may demonstrate,
using a model and modeling guidelines approved by the commission, that the
source does not cause or contribute to visibility impairment at a Class I
area. A BART-eligible source that does not cause or contribute to visibility
impairment at any Class I area is not subject to the requirements of §116.1520
or §116.1530 of this title (relating to Best Available Retrofit Technology
(BART) Analysis and Best Available Retrofit Technology (BART) Control Implementation).
A source is considered to cause or contribute to visibility impairment if
it causes a visibility impairment of greater than 0.5 deciviews at any Class
I area. The modeling demonstration must be submitted under seal of a Texas
licensed professional engineer and must be received by the commission's Air
Permits Division no later than April 30, 2007.
(c)
The following BART-eligible sources are not subject to
the requirements of §116.1520 or §116.1530 of this title for the
indicated pollutant(s). Owners or operators claiming exemption under this
subsection shall maintain records sufficient to demonstrate compliance with
the exemption criteria, and shall make such records available upon request
of personnel from the commission or any local air pollution control agency
having jurisdiction.
(1)
Any BART-eligible source that has the potential to emit
less than 500 tons per year of combined nitrogen oxides (NO
x
) and sulfur dioxide (SO
2
) and that is
located more than 50 kilometers from any Class I area is not subject to BART
for NO
x
and SO
2
.
(2)
Any BART-eligible source that has the potential to emit
less than 1,000 tons per year of combined NO
x
and
SO
2
and that is located more than 100 kilometers
from any Class I area is not subject to BART for NO
x
and SO
2
.
(3)
Any BART-eligible source that has the potential to emit
less than 40 tons per year of NO
x
or 40 tons
per year of SO
2
is not subject to BART for NOx
or SO
2
, respectively.
Any BART-eligible source that has the potential to emit less than 15 tons
per year of particulate matter with an aerodynamic diameter less than or equal
to a nominal 10 micrometers (PM
10
) is not subject
to BART for PM
10
.
(d)
BART-eligible electric generating units participating in
the Clean Air Interstate Rule Trading Program are not subject to the requirements
of §116.1520 or §116.1530 of this title for NO
x
and SO
2
.
§116.1520.Best Available Retrofit Technology (BART) Analysis.
(a)
Except as provided under §116.1510(b), (c), or (d)
of this title (relating to Applicability and Exemption Requirements), each
best available retrofit technology (BART)-eligible source shall conduct an
analysis of emissions control alternatives for all visibility-impairing pollutants.
This analysis must include the identification of all available, technically
feasible retrofit technologies, and for each technology identified, an analysis
of the cost of compliance, the energy and non-air quality environmental impacts,
the degree of visibility improvement in affected Class I areas resulting from
the use of the control technology, the remaining useful life of the source,
and any existing control technology present at the source. Based on this analysis,
the owner or operator shall identify an emission control strategy as the prospective
BART control strategy for the source. The determination of BART must be made
according to 40 Code of Federal Regulations Part 51, Appendix Y, as effective
September 6, 2005.
(b)
As part of the BART analysis required in subsection (a)
of this section, the owner or operator shall include detailed information
documenting the projected hourly and annual emission limits for the selected
BART control strategy.
(c)
The owner or operator of each BART-eligible source shall
submit a completed BART analysis to the commission's Air Permits Division
under seal of a Texas licensed professional engineer. The completed BART analysis
must be received by the commission's Air Permits Division no later than April
30, 2007.
§116.1530.Best Available Retrofit Technology (BART) Control Implementation.
(a)
Each owner or operator of a best available retrofit technology
(BART)-eligible source shall install and operate BART-required control equipment
no later than five years after the United States Environmental Protection
Agency has approved a Regional Haze State Implementation Plan for the State
of Texas. Each owner or operator shall maintain the BART-required control
equipment and establish procedures to ensure such equipment is properly and
continuously operated and maintained.
(b)
Prior to any installation of BART-required control equipment,
each owner or operator of a BART-eligible source shall apply for a permit,
permit amendment, permit alteration, applicable standard permit, or other
enforceable mechanism under this chapter to establish emission limitations
and codify the implementation of BART.
§116.1540.Exemption from Best Available Retrofit Technology (BART) Control Implementation.
The owner or operator of any best available retrofit technology (BART)-eligible
source may apply for an exemption from the requirement to install, operate,
and maintain BART-required control equipment, pursuant to the provisions of
40 Code of Federal Regulations §51.303. Any exemption request under this
section requires initial approval from the executive director and final approval
from the administrator of the United States Environmental Protection Agency
(EPA). Exemption requests submitted to the EPA must be accompanied by written
concurrence from the executive director.
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 August 11, 2006.
TRD-200604224
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: September 24, 2006
For further information, please call: (512) 239-5017