Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 116.
CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts amendments to §§116.12, 116.150, 116.151, 116.160, and 116.610;
the repeal of §§116.180 - 116.183, 116.410, and 116.617; and new §§116.121,
116.180, 116.182, 116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196,
116.198, 116.400, 116.402, 116.404, 116.406, 116.617, and 116.1200. Sections
116.12, 116.121, 116.150, 116.151, 116.160, 116.180, 116.182, 116.186, 116.188,
116.190, 116.192, 116.194, 116.196, 116.198, 116.400, 116.610, and 116.617
are adopted
with changes
to the proposed text
as published in the September 30, 2005, issue of the
Texas Register
(30 TexReg 6183). Sections 116.184, 116.402, 116.404,
116.406, and 116.1200 and the repealed §§116.180 - 116.183, 116.410,
and 116.617 are adopted
without changes
to
the proposed text as published and the text will not be republished. The amended,
repealed, and new sections will be submitted to the United States Environmental
Protection Agency (EPA) as revisions to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
EPA adopted revisions to 40 Code of Federal Regulations (CFR) §§52.21,
51.165, and 51.166 in the December 31, 2002, publication of the
Federal Register
(67 FR 251), which amended the application of federal
new source review (NSR) in air quality permitting. Federal NSR is triggered
by a new major source or major modification. If the area in which the source
will be located is also classified as nonattainment for a pollutant that will
be emitted by the source, the source must offset the emission increase with
emission decreases at other facilities or through the purchase and retirement
of emission reduction credits. The source would also have to apply control
technology that meets the lowest achievable emission rate to the new and modified
units.
Federal NSR reform is intended to limit the instances where federal NSR
will be required of facilities that undergo modifications. It will streamline
plant modifications by allowing small changes to be completed without the
delay associated with federal NSR. Currently, most modifications are evaluated
to determine the applicability of federal NSR through a netting exercise.
Netting is an accounting exercise where, prior to the modification of a facility,
the sum of emission increases and decreases over a specified period of time
at the plant site is determined. If the total exceeds the major modification
threshold, the modification is subject to federal NSR. NSR reform provides
an additional path that may be taken to avoid federal NSR applicability (plant-wide
applicability limit (PAL)) as well as methods to minimize the emission increase
determined in the netting exercise (baseline and actual-to-projected actual
emission rates).
The commission's proposal on NSR reform was intended to integrate the federal
revisions within an existing state program that addressed similar situations
concerning plant-wide emission limits and baseline emission determinations.
The commission also solicited comments from affected industries on the relative
benefits of an integrated program versus an incorporation of the federal program
without substantive changes. It is clear from stakeholder meetings and public
comment that a program matching the federal rules is the preferred method
of accomplishing federal NSR reform. The commission agrees that it has traditionally
approached state NSR permitting separately from federal NSR requirements.
Additionally, the commission can continue this approach under federal NSR
reform without endangering the attainment of maintenance of national ambient
air quality standards (NAAQS) or affecting public health. The commission
is adopting rules implementing the federal program on PALs, actual-to-projected
actual emissions test, and baseline determination without substantive changes
to the federal model for these programs.
The commission currently allows the inclusion of certain maintenance, startup,
and shutdown (MSS) emissions in NSR permits. The commission expects to consider
rules to prescribe authorization mechanisms and procedures for emissions not
historically authorized, including those for MSS activities. The commission
will also consider the authorization of emissions that any well maintained,
operated, and managed facility cannot eliminate entirely. These emissions
are therefore anticipated and quantifiable, yet unscheduled (QUAN). Examples
are emissions that may be released intermittently from a pressure relief valve,
line switching, compressor blow-downs, or even a burst seal well before the
end of its life expectancy. QUAN emissions are arguably different in nature
from the most commonly reported emissions events, those incidents resulting
from inadequate maintenance, malfunctions, accidents, and disasters, and therefore
should be taken out of the classification of "emission event" by providing
an authorization mechanism. These actions will enable the commission to authorize
MSS and QUAN emissions for inclusion in baseline emissions applicable to the
NSR reform program.
The commission is also adopting a new version of the state pollution control
project standard permit that includes required federal changes emissions netting.
The new standard permit also includes authorization requirements for MSS and
is reorganized.
Plant-wide Applicability Limit
The adopted version of the site-wide PAL closely follows the federal model
and is established for each pollutant using the baseline emission rate for
each facility. A control technology evaluation is required only if a cap increase
is sought. The PAL can be reduced at renewal if emissions are less than 80%
of the cap. The PAL baseline emissions will include authorized MSS and QUAN.
Baseline
The emission increase associated with a modification is determined by taking
the difference, in tons per year, between the proposed emission rate and the
actual annual emissions (or baseline emissions) during the baseline period.
The baseline period can be any consecutive 24-month period in the previous
ten years (typically that period where the emissions from the facility to
be modified are the greatest). The baseline period is a 24-month period in
the previous five years for electric utility steam generating units.
Actual-to-Projected Actual Emissions Test
Federal NSR reform allows use of a projected actual emission rate to be
used to determine a project emission increase with compliance tracked for
five to ten years. Additionally, any calculated emission increase can be reduced
by the emissions that could have been accommodated in the baseline period.
Federal NSR reform included two other components, the clean unit designations
and pollution control projects. As a result of a petition for review of EPA's
final action, on June 24, 2005, the District of Columbia Circuit Court of
Appeals in
State of New York, et al v. U.S. Environmental
Protection Agency
, No. 413 F.3d 3 (D.C. Cir 2005), vacated the clean
unit and pollution control project provisions of the rule and remanded recordkeeping
provisions to the EPA. As a result of this court decision, the commission
has not adopted rules concerning clean unit and federal pollution control
projects. The commission is adopting the standard permit for state pollution
control projects. The standard permit for state pollution control projects
allows projects that will have better or equivalent controls, but increases
and decreases for projects qualifying for the standard permit for state pollution
control projects requires evaluation for federal permitting applicability,
which may include netting calculations. This new requirement for the state
pollution control projects is also a result of the June 24, 2005, ruling,
which does not allow a federal NSR exemption for incidental emission increases
resulting from pollution control projects. In addition, the standard permit
for state pollution control projects may be used to authorize emissions reductions
and collateral increases for facilities authorized under a permit by rule
as long as any collateral increases do not cause emission rates to exceed
limits found in 30 TAC §106.4(a), Requirements for Permitting by Rule,
or other standard permits as long as any collateral increases do not exceed
the limits of §116.610, Applicability.
SECTION BY SECTION DISCUSSION
The commission adopted administrative changes throughout this rulemaking
to be consistent with guidance provided in the
Texas
Legislative Council Drafting Manual
, November 2004, and to conform
with Texas Register requirements and agency guidelines.
§116.12. Federal Permit Definitions.
The commission amended the title of §116.12 to reflect the addition
of all definitions associated with federal NSR or prevention of significant
deterioration (PSD) permit applicability analysis. In addition to the changes
necessary to incorporate NSR reform into the nonattainment permit program,
the commission has adopted changes associated with including PSD applicability
analysis. These definitions now apply to the revised sections of the PSD rules
in Chapter 116, Subchapter B, Division 6, Prevention of Significant Deterioration
Review, as well as the new sections associated with PAL permits.
The definition of actual emissions, in paragraph (1), has been amended
to exclude this definition from being used in the federal NSR applicability
test. In response to public comments, the commission specified that actual
emissions are determined over a 24-month period instead of two years. When
determining whether the emission increase associated with a project is significant,
the baseline actual emissions, defined in new paragraph (3), must be used.
Paragraph (3)(A) allows electric utility steam generating units to identify
baseline actual emissions as the rate, in tons per year, at which an existing
unit emitted the pollutant during any consecutive 24-month period within the
five-year period immediately preceding construction. A different time period
may be selected if it is shown to be more representative of normal source
operations. This is consistent with past guidance provided by EPA for these
sources. In response to public comment, the commission deleted the word "average"
as a modifier for "emissions" and changed "reviewing authority" references
to "executive director." The commission made this change to refer to "executive
director" through the definitions added to §116.12 for the implementation
of NSR reform.
Paragraph (3)(B) allows other source types to choose 24 consecutive months
in the ten years preceding start of construction to establish their baseline
emissions. In this case, the source must adjust this emission rate down for
any emission limitations that would currently apply to the facility. These
limitations include requirements in the SIP, federal rules (with the exception
of 40 CFR Part 63), or permit requirements that would apply when the analysis
is completed.
Paragraph (3)(C) identifies baseline emissions for new facilities as being
zero and also defines baseline emissions for new facilities that have operated
for less than two years to be the facility's potential to emit. Paragraph
(3)(D) requires that a project affecting all facilities use the same 24-month
baseline period for each pollutant. For example, if a project affected five
facilities that emitted volatile organic compounds and particulate matter,
all five would have to identify the same baseline period for volatile organic
compounds; however, a different 24-month period could be chosen for particulate
matter. The source must have sufficient records to document the baseline emissions,
which cannot have occurred before November 15, 1990.
Paragraph (3)(D) also requires that baseline emission rates be adjusted
down to exclude noncompliant emissions. The EPA's reform rule requires that
baseline emissions include startup, shutdown, and malfunction emissions. The
commission's policy, which has evolved over a number of years, currently allows
for permitting of emissions from certain MSS activities. Changes to this policy
are being evaluated. The commission has been unsuccessful in getting clarification
on the EPA's basis for inclusion of malfunction emissions in the baseline
calculation. Given these circumstances, paragraph (3)(E) has been added to
allow for the inclusion of those emissions that could currently be authorized
to be included in the baseline. The commission deleted the phrase "in a permit
action under Chapter 106 of this title (relating to Permits by Rule) and this
chapter" because these are types of authorizations and the phrase is redundant.
Given that sources would become aware of this change with adoption of this
rule amendment, the effort involved in authorizing these types of emissions,
and the baseline period having to be within ten years of the project, this
method of determining baseline emissions would be available for some time
but not beyond ten years from the effective date of this rule amendment. After
that date, all baseline emissions will have to have been authorized. Paragraph
(3)(D) also requires that fugitive emissions be included in the baseline
to the extent they can be quantified.
In response to public comment to adopt a version of NSR reform closer to
the federal model and to be consistent with the use of federal terms, the
commission had added definitions for "Basic design parameters," "Major facility,"
"Replacement facility," "Significant facility," and "Small facility." The
term "facility" has been substituted for the federal term "emissions unit"
in the appropriate definitions. The term "facility" is an established part
of the commission's permitting program and is synonymous with "emissions unit."
The remaining paragraphs have been renumbered as a result of the added definitions.
Paragraphs (7) and (8), associated with the federal definition of clean
coal, have been added as a result of including PSD applicability into the
definitions under this section. The definition of
de minimis
threshold test in paragraph (12) has been revised to reference
significant levels, including those for PSD as well as nonattainment. In response
to public comment, the commission substituted the term "significant level"
for "major modification" in Table 1 in the definition of "Major modification"
in §116.12.
The federal definition of electric utility steam generating unit is provided
in new paragraph (13). The definition identifies those units that are subject
to a different baseline emissions determination than other source types. New
paragraph (14) defines federally regulated NSR pollutant, providing a comprehensive
list of pollutants that may be subject to federal NSR.
The definition for major stationary source has been renumbered as paragraph
(17) and has been modified to remove references to facility for clarity, as
well as to include PSD review within the definition. 40 CFR §51.166(b)(1)
is referenced to identify the PSD major source thresholds. The "source" identified
in this definition is the EPA NSR source that is, in most cases, analogous
to "account" as defined in 30 TAC §101.1, General Air Quality Definitions.
A number of changes are adopted for the definition of major modification
in renumbered paragraph (18). The commission added language to incorporate
PSD review into the definition and references to facility have been removed
for clarity. Language has been added to clearly identify the two criteria,
a significant project emission increase and a significant net emission increase,
that must be met for a modification to be considered major at a major source.
In response to public comment concerning the adoption of a PAL program closer
to the federal model, the commission substituted the term "significant level"
for "major modification" in Table 1, and deleted the proposed expansion of
the definition to identify projects performed at facilities within a PAL as
being major modifications if the modifications result in emission increases
at facilities outside the PAL that are significant.
The commission adopted changes to the definition of net emission increase
in renumbered paragraph (20) specifying that baseline actual emissions are
to be used to determine emission increases and decreases, adjusting the language
to accommodate for PSD applicability, and excluding emission increases at
facilities under a PAL from being creditable. Under the amendment, emission
decreases cannot be counted in both an attainment demonstration and credit
for nonattainment netting because this would be double credit for the same
reduction. Emission decreases need only be enforceable rather than federally
enforceable. The commission deleted the phrase "enforceable as a practical
matter" and will just use "enforceable." The commission also substituted the
term "project emissions increase" for "total increase in actual emissions
from a particular physical change. . ." because this concept is included within
the definition of "Project emissions increase." In response to public comment
the commission deleted the proposed revision that stated that emission decrease
cannot have been relied upon in the issuance of a PAL. The commission made
the same deletion in the definition of "Offset ratio" in paragraph (21).
The commission adopted new paragraphs (22) - (26) to incorporate definitions
from NSR reform related to PALs into the commission rules. These new paragraphs
include definitions for: PAL; PAL effective date; PAL major modification;
PAL permit; and PAL pollutant. In response to public comment, the commission
modified the proposed definition of PAL pollutant to restrict its application
to major sources. The commission deleted the phrase "enforceable as a practical
matter" and will just use "enforceable."
The requirement to use baseline actual emissions has been added to renumbered
paragraph (28), in the definition of "Project net." The commission also substituted
the term "project emissions increase" for "total increase in actual emissions
from a particular physical change. . ." because this concept is included within
the definition of "Project emissions increase."
The commission adopted new paragraphs (29) and (30) to define the new concepts
of projected actual emissions and projects emissions increase. The project
emissions increase may be determined in a different manner than the other
emission increases that might be part of a netting exercise (used to determine
the net emissions increase). For existing facilities, the emission increase
at modified or affected facilities may be determined by using the projected
actual emissions rate rather than the potential to emit for the facility.
The projected emission rate must be developed using all relevant information
including company projections and filings with regulatory authorities. The
basis for the projection must be maintained by the source and would be submitted
with any documentation required for a state NSR authorization to demonstrate
that the project is not subject to federal review. The source would be required
to demonstrate compliance with the projected emission rates for ten years
if there was a change to the source's potential to emit or increase in capacity.
Other affected facilities would be required to demonstrate compliance with
projected rates for five years.
The actual-to-projected actual emissions rate test also allows the source
to remove from the project increase any emissions increase that could have
been accommodated in the baseline period. These must be unrelated to the project
and may include demand growth. This federal rule change extends this concept
that was developed for the electrical generation industry where traditionally
there had been a captured, or limited, customer base that was expected to
grow at some rate unrelated to the available capacity of the generator. While
this concept appears reasonable for the electric power industry as well as
some sources with a limited customer base due to geography (such as gasoline
terminals), it is not as useful for industries that have national or international
markets served by multiple sources. In these cases, a demonstration is required
that the market conditions expected in the future would be significantly different
than any time in the past ten years and that if they had occurred in the baseline,
they would have resulted in different operations. It is likely that this case
would only be made in cases such as a prolonged outage at a major producer
or a significant shift in market conditions. The determination of what could
have been accommodated is limited to what could have been produced or handled
and does not allow for changes in emissions that could have occurred due to
a lower emission control device efficiency or the use of a fuel or solvent
that might have resulted in greater emissions.
The commission adopted a definition for "Temporary clean coal technology
demonstration project" as new paragraph (36) to fully incorporate all of EPA's
exclusions to what is considered a major modification under NSR reform.
§116.121. Actual-to-Projected Actual and
Emissions Exclusion Test for Emissions Increases.
The commission adopts this new section to require documentation associated
with the projected actual emissions rates and records of compliance as identified
in the federal rule. New subsection (a) requires a demonstration that federal
NSR does not apply be submitted with any permit application or registration.
This demonstration must be documented by records that include a project description,
the facilities affected, and a description of the applicability test. New
subsection (b) requires monitoring of emissions that could increase as a result
of the project if projected actual emissions are used to determine the project
emission increase at a facility.
New subsection (c) requires electric utility steam generating units to
provide the executive director documentation of emissions for each calendar
year that records are required under the actual-to-projected actual test.
New subsection (d) requires facilities, other than electric generating units,
to submit a report to the executive director if annual emissions exceed the
baseline actual emissions by a significant amount. Any other information that
the owner or operator wishes to include in the report, such as an explanation
as to why the emissions differ from the preconstruction projection, may be
included as well. New subsection (e) establishes record retention periods
and was modified in response to public comment to allow review by local pollution
control programs and the general public of all documentation required under
this section.
The commission expects that projected actual emissions will be used extensively
in registrations or claims for non-PSD and nonattainment NSR authorizations
where a maximum allowable emission rate is not specified in the rule. The
use of a projected actual emissions rate for a modified source in these NSR
construction permits is expected to be limited because the allowable emission
rate would not generally be based on an activity level that would not be reached
for more than ten years. The commission is adopting changes in subsections
(a), (c), (d), and (e) to make language more concise and to specify the use
of a calendar year for the submission of reports.
§116.150. New Major Source of Major Modification
in Ozone Nonattainment Areas.
The commission deleted the date (June 15, 2004) in subsection (a), which
would apply major modification determination based on the date an application
is determined administratively complete. In response to EPA comment, this
determination will be made based on the issuance date of the permit. The commission
is adopting subsection (a)(1) and (2) that specifies when the requirements
of this section will apply to facilities. The section will apply on the effective
date of the permit for facilities located in areas that are designated ozone
nonattainment on the effective date of this section. For those areas that
are designated nonattainment after this section is effective, the section
will apply based on the date a permit application is administratively complete.
The amendment to subsection (b) deleted language referring to a modified
facility that will be a new major stationary source, which has caused confusion
about what constitutes a major modification at an emission source that becomes
major after the modification. A minor modification to a minor source that
results in a major source does not qualify the modification as major. The
commission refers to the definitions of major stationary source and major
modification in §116.12 to make this determination. The commission also
substituted the term "facility" for "emission unit" in subsection (e)(1) for
consistency in use of terms. The amendment to this section added a reference
to "significant level" consistent with changes in §116.12 and updated
that section's title to Nonattainment and Prevention of Significant Deterioration
Review Definitions. In response to public comment, the commission also amended
subsections (c)(3) and (d)(2) to indicate that project emission increases
must be less than the significant level before and after netting.
In response to public comment, the commission deleted the phrase "aggregated
over the contemporaneous period" from subsection (e). This term "contemporaneous
period" is included in the definition of "
De minimis
threshold test (netting)" and was redundant.
§116.151. New Major Source or Major Modification
in Nonattainment Area Other Than Ozone.
The commission adopted amendments to this section consisting primarily
of administrative and formatting changes. The reference to November 15, 1992,
has been deleted from subsection (a) because that date is not applicable for
application of the section. The commission substituted the term "facility"
for "emission unit" in subsection (c)(1) for consistency in use of terms.
Subsections (b) and (c) state when netting is required, and subsection (c)
was amended to delete the reference to "contemporaneous period" because this
term is included in the definition of "
De minimis
threshold test (netting)."
§116.160. Prevention of Significant Deterioration
Requirements.
The amendment to this section limits the incorporation by reference of
definitions from 40 CFR §52.21 that are used to administer the PSD program,
deleting most of the language in subsection (a) and all of the language in
existing subsections (b) - (d).
and all of the language in existing subsections (b) - (d).
Amended subsection (a) deleted the federal rule references and replaced
them with language that requires a proposed new major source or major modification
in an attainment or unclassifiable area to meet the requirements of this section.
The new subsection (b) states that the
de minimis
threshold test (netting) is required for all modifications to existing
major sources of federally regulated NSR pollutants, unless the proposed emissions
increases associated with a project, without regard to decreases, are less
than major modification thresholds for the pollutant.
New subsection (c) incorporated by reference the following definitions
and requirements located in 40 CFR §52.21: baseline concentrations, baseline
dates, baseline areas, innovative control technology, federal land manager,
terrain, Indian reservations/governing bodies, increments, ambient air ceilings,
restrictions on area classifications, exclusions from increment consumption,
redesignation, stack heights, exemptions, source impact analysis, air quality
analysis, source information, additional impact analysis, sources impacting
federal Class I areas, and innovative technology. Other definitions used for
the PSD program or visibility in Class I areas program are currently in the
commission's rules. The term "aggregated over the contemporaneous period"
was deleted from subsection (c) because the term is included within the term
"
De minimis
threshold test (netting)." The
amendment also substituted the term "facility" for "emissions unit" in the
definitions incorporated from the CFR because the commission's permitting
actions are based on the individual facility or groups of facilities as defined
in the commission's rules. The term "executive director" also replaces "administrator"
in portions of 40 CFR §52.21(g) and (v). In response to public comment,
the requirement to issue a PSD permit within a year of receipt of a completed
application has been deleted from subsection (c)(4).
Existing subsection (d) has been re-designated as subsection (e).
In addition to renaming Subchapter C, the commission also adopted a new
Division 1, Plant-wide Applicability Limits.
§116.180. Applicability.
This adopted section limits a PAL to one pollutant as required by the EPA
and a site to one PAL permit in subsection (a). The commission is deleting
the reference to state or federal permit and will use the term "NSR permit."
A PAL permit may contain separate PALs for several pollutants and will likely
be consolidated with an NSR construction or flexible permit at the site. Subsections
(b) and (c) identify the administrative procedure for changes in ownership,
as well as responsibility for the PAL permit application. The commission is
changing the phrase "new owners of facilities, group of facilities, or account"
to "new owner of a major stationary source" as a more inclusive term.
§116.182. Plant-wide Applicability Limit
Permit Application.
This new section identifies the information necessary for a PAL permit
application. Paragraph (1) requires the facilities that would be included
in the PAL to be identified with their design capacities and potential to
emit and NSR authorizations. Paragraph (2) requires that the baseline emissions
for those facilities be identified so that they may be used to set the PAL.
Paragraphs (3) and (5) require the applicant to identify how plans to monitor
and use that information will be used to demonstrate compliance with the PAL.
This information will serve as a starting point to develop PAL permit conditions.
The commission did not adopt the proposed new paragraphs (4) and (6) requiring
that best available control technology (BACT), on average, be implemented
on all existing facilities to be included in the PAL over a period of time
(typically less than five years). This is consistent with the commission's
decision to implement NSR reform in a form closer to the federal model. Paragraph
(6) would have required an implementation schedule for BACT if control technology
required upgrading.
§116.184. Application Review Schedule.
This new section requires that PAL applications be reviewed on a schedule
similar to other air permits as provided for in §116.114, Application
Review Schedule.
§116.186. General and Special Conditions.
This new section identifies the PAL as an annual emission rate for a federally
regulated NSR pollutant covering all facilities identified in the application
in subsection (a). Emissions from all facilities must be determined and compliance
with the PAL must be documented monthly. The commission is deleting the unnecessary
phrase "enforceable as a practical matter" and will just use "enforceable."
The commission is also substituting the word "demonstrate" for "show."
Subsection (b) identifies the general conditions applicable to every PAL.
Paragraph (1) emphasizes that the PAL is not an authorization to construct
but only sets an emission rate, below which federal NSR is not required. Paragraphs
(2) and (3) identify sampling procedures and how a permit holder might obtain
approval for an equivalent method. These requirements ensure consistency between
various types of the commission's air permits. The commission has substituted
the word "are" for "will be" to more accurately indicate the applicability
of the section.
Subsection (b)(4) integrates common recordkeeping and reporting requirements
for most other air permits with the much more extensive requirements identified
in the EPA rule. Paragraph (4)(A) and (B) require that the PAL permit application
and records associated with demonstrating cap compliance be maintained on
site. Subsection (b)(4) includes the reporting requirements from the EPA rule.
Consistent with its decision to adopt a PAL program equivalent with the federal
model, the commission determined that the semiannual and deviation reporting
requirements proposed in subsection (b)(4) were not sufficiently consistent
with the federal rule requirements and added subsection (b)(4)(C) and (D)
to incorporate federal requirements. Proposed subsection (b)(5) was not adopted
for consistency with the federal rules.
Renumbered paragraphs (5) and (6) contain language common to air permits
identifying what facilities are covered by the PAL, and requiring proper operation
of control equipment and compliance with all rules. The PAL life of ten years
is identified in paragraph (7). Paragraphs (8) and (9) incorporate requirements
from the EPA rule requiring facility emissions to be reported as the potential
to emit if monitoring data is not available, and that all data used to establish
the PAL be revalidated at least every five years. The commission also added
subsection (b)(10) allowing the extension of a PAL while an application for
renewal is being considered.
Subsection (c) identifies those EPA requirements that must be incorporated
into the permit through special conditions. All facilities in a PAL must be
monitored using one of the following four methods: mass balance; continuous
emission monitoring system, continuous parameter monitoring system, or predictive
emission monitoring system; or emission factors. An alternate approach may
be approved by the executive director. Performance standards for each type
of monitoring are specified. The special conditions will also require a BACT
implementation schedule, if applicable. For consistency with the federal rule,
the commission deleted subsection (c)(4), which had required an implementation
schedule for BACT.
§116.188. Plant-wide Applicability Limit.
This new section identifies how the PAL is to be determined. The commission
is substituting "is " for "will be established as" in the opening paragraph
to more clearly define a PAL. In response to public comment, the commission
added a specification requiring reduction of the PAL baseline emissions resulting
from permanent shutdown of facilities. Paragraph (1) allows the inclusion
of emissions, up to the significance level, in addition to baseline emissions.
For consistency with the federal rule, the commission did not adopt the provision
requiring addition of the significance level to project emission increases.
Paragraph (2) limits all facilities to the same baseline period for a given
pollutant. For consistency with the federal rule, proposed paragraph (3) that
addressed determination of the PAL if there is a major modification involved
was not adopted. Paragraph (4), renumbered as paragraph (3), requires that
the PAL be reduced for any effective rules that have a future compliance date.
§116.190. Federal Nonattainment and Prevention
of Significant Deterioration Review.
This new section identifies that any changes that occur under a PAL are
not considered federal modifications unless the PAL will be exceeded. Subsection
(b) restricts the generation of offsets from facilities under a PAL to cases
where the PAL is lowered and such a decrease would be creditable without the
PAL. For consistency with the federal rule, the commission added subsection
(c), which states that a physical or operational change not causing an exceedence
of a PAL is not subject to federal NSR review.
§116.192. Amendments and Alterations.
Consistent with its decision to adopt a PAL equivalent to the federal model,
the commission made extensive revisions to §116.192, which include the
requirements for reopening a PAL permit and increasing a PAL.
The commission retained the requirement that would allow increases to a
PAL only through amendment in subsection (a). The commission deleted the requirement
that the new or modified facilities causing the need for the PAL increase
be reviewed under the appropriate federal NSR program. The amended PAL remains
subject to public notice, and the PAL increases are effective when the new
and modified units become operational. The commission added subsection (a)(1),
which would require the considered application of BACT or equivalent technology
where a facility proposes to add or modify units in such a way as to equal
or cause an exceedance of the PAL. Such an increase would be authorized only
if the source would not be able to maintain emissions below the PAL assuming
application of BACT or BACT-equivalent controls. The commission added subsection
(a)(2), which requires federal NSR permits for all facilities that equal or
exceed a PAL. The new PAL would be the sum of the allowable emissions for
each new or modified source after the application of BACT. Subsection (a)(3)
requires any new PAL to be effective on the day any new unit that is part
of the PAL begins operation. Subsection (a)(4) states that the PAL shall be
the sum of the allowable emissions for each modified or new facility, plus
the sum of the baseline actual emissions of the significant and major emissions
units after the application of BACT-equivalent controls as identified in subsection
(a)(1) of this section, plus the sum of the baseline actual emissions of the
small emissions units.
The commission did not adopt proposed subsection (b), which limited reconsideration
of controls associated with a PAL to amendments, but allows for changes in
the implementation schedule to be requested through alteration. The commission
adopted a new subsection (b), which identifies other changes that may be completed
by alteration. These include changes to the special conditions that do not
increase the emission cap.
§116.194. Public Notice and Comment.
The commission adopted a revised version of this section to require notification
of intent to issue a permit allowing for public comment and an executive director
response. These public notice requirements are similar to what the commission
currently uses for permitting grandfathered facilities, and the commission
has determined that they are equivalent to federal notice requirements for
PALs. The public notice requirements for the issuance of a PAL permit does
not exempt applicants for an NSR permit from meeting the requirements of Chapter
116, Subchapter B.
§116.196. Renewal of a Plant-wide Applicability
Limit Permit.
This new section requires that a PAL renewal application be submitted within
six to 18 months of the PAL expiration date in subsection (a). Submittal within
that time period ensures that the PAL will not expire. Subsection (b) makes
all PALs issued with flexible permits under past guidance subject to renewal
under this proposed rule. Any PAL that has been in place for more than ten
years must be submitted for renewal by December 31, 2006, or within the time
specified, whichever is later.
Subsection (c) identifies the information necessary for a renewal application.
This information includes the proposed PAL level and any other information
that the executive director may require to determine at what level to renew
the PAL. For consistency with the federal rule, the commission did not adopt
provisions that would have required identification of and justification for
those qualified facilities to be included in the PAL and the potential to
emit for qualified facilities and highest consecutive 12-month emissions in
the last ten years for those that are not qualified.
Subsection (d) would require public notice for the renewed PAL. For consistency
with the federal rule, the commission did not adopt the proposed language
of subsection (e) that would have required the summation of the potential
to emit for qualified facilities and the greatest rolling 12-month emissions
for the facilities that are not qualified. The commission adopted revised
language in subsection (e) allowing adjustment to a PAL if emission levels
are greater than or equal to 80% of the PAL and if the executive director
determines that a new PAL is more representative considering technology, economic
factors, or the facility's prior voluntary reductions.
To be consistent with the federal rule, the commission adopted a new subsection
(f) allowing for adjustment of a PAL affected by new state or federal requirements
during the PAL effective period at the time of PAL or federal operating permit
renewal, whichever occurs first.
§116.198. Expiration or Voidance.
To be consistent with the federal rule, the commission adopted language
in this section significantly different than language that was proposed. The
commission did not adopt the requirement for technology upgrades prior to
PAL expiration or voidance. The adopted language in subsection (a) specifies
the ten-year term of PAL permits. Subsection (b) addresses PALs that will
not be renewed and allows owners of PAL sites to propose allowable emissions
for each facility that was covered under the PAL. The executive director will
decide on the allowable emissions distribution and issue revised permits.
§116.400. Applicability; §116.402. Exclusions; §116.404.
Application; and §116.406. Public Notice Requirements.
These new sections contain identical language to that found in the current §§116.180
- 116.183. These sections apply to the regulation of sources of hazardous
air pollutants. The new sections are adopted as a reorganization of this chapter
in order to accommodate new sections concerning NSR reform and do not contain
any substantive changes. The commission adopted administrative changes to
be consistent with previously mentioned guidelines and to remove dates that
are no longer applicable.
The commission adopts the repeal of §116.410, Applicability.
§116.610. Applicability.
The adopted amendment to this section removes references in subsection
(a)(1) to specific paragraphs within 30 TAC §106.261 because the paragraph
numbering of §106.261 has changed. The reference to §106.262 is
deleted because §106.261 refers to the use of §106.262, when applicable.
The adopted change to subsection (b) deletes the exemption from NSR requirements
for projects authorized under proposed new §116.617. As discussed earlier,
this change is based on the June 24, 2005, decision that vacated EPA rules
exempting incidental emission increases from NSR. In response to public comment,
the commission adopted language referring to §116.12 for definitions
of "major stationary source" and "major modification."
The commission adopted the repeal of §116.617, Standard Permits for
Pollution Control Projects.
§116.617. State Pollution Control Project
Standard Permit.
This adopted new section incorporates existing requirements listed throughout
the current rule, while clarifying the language in new subsection (a). Subsection
(a) is organized into paragraphs (1) - (4) , which include scope and applicability
conditions currently found in existing §116.617. Proposed new subsection
(a)(1) lists the three types of existing authorizations that may be modified
by a state pollution control project standard permit. New subsection (a)(2)
clarifies the types of projects that may be authorized by a state pollution
control project standard permit, reorganized from the existing §116.617
requirements.
New subsection (a)(3) outlines the prohibitions for use of the state pollution
control projects standard permit, clarifying the existing intent and requirements
of current §116.617. Specifically, subsection (a)(3) does not allow production
facilities to be replaced or modified in any way under this authorization
since these types of changes need to be reviewed for BACT and potential harmful
effects to health and property in accordance with Texas Health and Safety
Code (THSC), Chapter 382, the Texas Clean Air Act (TCAA), §382.0518 and §116.610,
unless the conditions of a standard permit or permit by rule are met. Subsection
(a)(3)(A) states that the standard permit will not be used to authorize complete
replacement of an existing facility or reconstruction of a production facility.
New subsection (a)(3)(B) states that any collateral emission increase associated
with the state pollution control project standard permit must not cause or
contribute to any exceedance of an NAAQS or cause adverse health effects.
The commission clarified subsection (a)(3)(C) to prohibit the use of the state
pollution control project standard permit for the purpose of bringing a facility
or group of facilities into compliance with an existing authorization or permit,
unless approved by the executive director.
New subsection (a)(4) addresses how projects that have been registered
under the previous version of §116.617 may continue to be authorized
and subsequently meet the conditions of new 116.617. Projects authorized prior
to the effective date of this rulemaking may defer the inclusion of emission
increases or decreases resulting from the project until future netting calculations.
Paragraph (4) allows currently authorized control projects to continue operation
uninterrupted until the ten-year renewal anniversary of the original registration
or until otherwise incorporated into a permit or standard permit. The review
period of 30 days is extended to 45 days to allow evaluation of netting, which
would be required under the state pollution control projects standard permit.
New subsection (b) is organized into paragraphs (1) - (5) and includes
the general requirements dispersed throughout current §116.617. Subsection
(b)(1) requires compliance with the specific conditions of §116.604,
Duration and Renewal of Registrations to Use Standard Permits; §116.605,
Standard Permit Amendment and Revocation; §116.610, Applicability; §116.611,
Registration to Use a Standard Permit; §116.614, Standard Permit Fees;
and §116.615, General Conditions. While these requirements are not new,
they are reorganized to emphasize and remind applicants of these conditions
to ensure submittal of more complete registration information.
New subsection (b)(2) was proposed containing a new requirement specifying
that construction or implementation of the state pollution control projects
standard permit must begin within 180 days of receiving written acceptance
of the registration from the executive director, and that changes to maximum
allowable emission rates are effective only upon completion or implementation
of the project. In response to public comment, the commission retained the
traditional 18-month start of construction window with one 18-month extension
consistent with §116.120, Voiding of Permits.
New subsection (b)(3) exempts for state pollution control projects standard
permits from the emission limits and distance requirements of permit by rule, §106.261,
as referenced in §116.610(a)(1). Pollution control projects are considered
environmentally beneficial so any emission increases associated with these
projects do not require further authorization.
New subsection (b)(4) contains a new requirement that predictable MSS emissions
directly associated with the state pollution control projects standard permit
be included in the maximum emissions represented in the registration application,
consistent with the ongoing efforts of the commission to authorize all aspects
of normal operations.
New subsection (b)(5) contains the same requirements as the previous §116.617(5)
and (6) and limits emission increases to only those directly as a result of
the pollution control project. Any incidental production capacity cannot be
authorized by the state pollution control projects standard permit, but requires
some other preconstruction authorization. In response to public comment, the
commission included a provision allowing the recovery of lost capacity due
to a derate.
New subsection (c) includes the same requirements as in current §116.617(4),
as well as two new requirements. Subsection (c) is organized into paragraphs
(1) - (3) and pertains to requirements specific to replacement projects. Subsection
(c)(1) repeats language from §116.617(4) and allows replacement controls
or techniques to be different than those currently authorized as long as the
new project is at least as effective in controlling emissions. Subsection
(c)(2) allows for increases in MSS emissions if these emissions were reviewed
as part of the original authorization for the existing control equipment or
technique, and if the increases are necessary to implement the replacement
project. Subsection (c)(3) is intended to clarify that the applicable testing
and recordkeeping requirements associated with the currently permitted control
or technique apply to the replacement to ensure continuing compliance with
associated emission limits. If the control or technique is substantially different
than an existing control or technique, applicants may also propose equivalent
alternatives for review by the executive director.
New subsection (d) clarifies the requirements of current §116.617(4)(C),
adds varying fees for different project types, and clearly specifies documentation
required in a state pollution control projects standard permit registration
application. New subsection (d)(1) includes existing language found in current §116.617(4)(C),
but changes the required fees based on whether the project or change in representation
results in an increase in the maximum authorized emission rates. Changes to
fee requirements are adopted to encourage the installation and use of pollution
control projects, especially where there is no increase in emissions or the
changes require minimal review. This subsection also describes when a registration
should be submitted and when construction or implementation may begin. Various
deadlines are proposed to provide flexibility and encourage the use of pollution
control projects. Regardless of these deadlines, all projects must meet all
requirements of the state pollution control projects standard permit and the
responsibility to do so remains with the applicant at all times. New subsection
(d)(2) clarifies registration requirements. These include a process and project
description, a list of affected permits and emission points, calculated emission
rates, the basis of those emission rates, proposed monitoring and recordkeeping,
and the proposed method for incorporating the state pollution control projects
standard permit into existing permits. In response to public comment, the
commission deleted the term "registration application" and replaced it with
"registration."
New subsection (e) incorporates requirements found in §116.615, General
Conditions, but expands, clarifies, and focuses those requirements specifically
for the state pollution control projects standard permit. New subsection (e)(1)
emphasizes that a project should be constructed and operated in accordance
with good engineering practices to minimize emissions. New subsection (e)(2)
specifically requires copies of documentation to be kept demonstrating compliance
with this standard permit.
New subsection (f) provides clarification of the procedures for, and under
what conditions, a state pollution control projects standard permit should
be incorporated or administratively referenced into a facility's NSR authorization.
New subsection (f)(1) applies to facilities authorized by a permit or standard
permit. New subsection (f)(1) also applies to those state pollution control
projects standard permits that authorize new facilities or changes in method
of control and would require incorporation upon the next amendment or renewal
of the facility's authorization. The commission is not adopting the proposed
requirement for effects review in this rulemaking and will continue to examine
the issue during the consideration of additional rulemaking concerning, among
other topics, the incorporation of standard permit and permit by rule authorizations
(Rule Project No. 2005-016-106-PR, proposed by the commission in the December
30, 2005, issue of the
Texas Register
(30
TexReg 8789, 8808).
New subsection (f)(2) applies to facilities authorized under a permit by
rule and requires that all increases in previously authorized emissions, new
facilities, or changes in method of control or technique authorized by this
standard permit comply with §106.4, except for the emission limitations
in §106.4(a)(1) and §106.8.
§116.1200. Applicability.
This new section contains the identical language found previously §116.410
and allows facility owners or operators to apply to the commission for a suspension
of permit conditions for the addition, repair, or replacement of control equipment
in the event of a catastrophe. This new section is adopted in order to reorganize
this chapter to accommodate new sections associated with NSR reform and does
not contain substantive changes.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that the rulemaking does not meet the definition of a "major environmental
rule." Furthermore, it does not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). 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 rulemaking revises the rules regarding
federal permitting applicability, including adding additional options under
federal air quality permitting applicability and plant-wide applicability
limit options. The commission modified the rule since proposal to be consistent
with the federal rule concerning baseline emission determination, actual-to-projected
actual emissions test, and plant-wide applicability limits. The rulemaking
revises the existing pollution control projects standard permit. In addition,
the rulemaking modifies and adds definitions and changes some general formatting
of this chapter. The rules do 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.
In addition, Texas Government Code, §2001.0225, only applies to a
major environmental rule, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
The rules do not exceed a standard set by federal law or 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. Rather, the federal
permitting applicability rules are adopted to incorporate new federal requirements
to maintain SIP approval from EPA for the commission's federal air quality
permitting program. The remaining changes implement specific state law requirements
or are administrative changes. Finally, this rulemaking was not developed
solely under the general powers of the agency, but is authorized by specific
sections of the THSC and the Texas Water Code (TWC) that are cited in the
STATUTORY AUTHORITY section of this preamble. Therefore, this rulemaking is
not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b),
because the rules do not meet any of the four applicability requirements.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed rules.
The specific purpose of this rulemaking is to revise the rules regarding federal
permitting applicability, including adding additional options under federal
air quality permitting applicability and plant-wide applicability limit options.
The rulemaking revises the existing pollution control projects standard permit,
modifies and adds definitions, and changes some general formatting of this
chapter. Promulgation and enforcement of the proposed rules would be neither
a statutory nor a constitutional taking because they do not affect private
real property. Specifically, the rules do not affect private property in a
manner that restricts or limits an owner's right to the property that would
otherwise exist in the absence of a governmental action. Therefore, the rules
do not constitute a taking under Texas Government Code, Chapter 2007.
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's 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, the
commission's 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)). No new sources of air contaminants are authorized
and the adopted revisions will maintain the same level of emissions control
as the existing rules. The CMP policy applicable to this rulemaking action
is the policy that the commission's rules comply with federal regulations
in 40 CFR, to protect and enhance air quality in the coastal areas (§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 §505.22(e), the commission affirms that this rulemaking action is
consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The new and amended sections in this adoption are applicable requirements
under Chapter 122, Federal Operating Permits Program. Upon the effective date
of this rulemaking, owners or operators subject to the Federal Operating Permit
Program that modify any NSR authorized sources at their sites will be subject
to the amended requirements of these sections.
PUBLIC COMMENT
The commission held a public hearing on the proposal in Austin on October
27, 2005. During the public comment period, which closed on October 31, 2005,
the commission received 17 written comments. All of the commenters opposed
the proposal.
RESPONSE TO COMMENTS
EPA, Baker Botts on behalf of the Texas Industry Project (TIP), Dow Chemical
Company (Dow), Association of Electric Companies of Texas, Inc. (AECT), Texas
Pipeline Association (TPA), Texas Chemical Council (TCC), ExxonMobil Refining
and Supply (ExxonMobil), City of Houston, Department of Health and Human Services
(HDH), TexasGenco, Sempra Texas Services, LP (Sempra), Texas Instruments
(TI), BP Products North America, Inc. (BP), Calpine, Entergy Services, Inc.
(Entergy), International Paper, JD Consulting, L.P. (JDC), Celanese Chemicals
(Celanese), and the Lone Star Chapter of the Solid Waste Association of North
America (TxWANA) submitted written comments during the public comment period.
All of the commenters opposed the proposal.
TIP, AECT, TPA, TCC, TexasGenco, TI, BP, Calpine, Entergy, International
Paper, Celanese, and Dow commented that substantial departures from federal
NSR rules introduce confusion and inconsistencies particularly for companies
with multi-state operations, and the introduction of less flexible triggers
for federal NSR generates a competitive disadvantage for affected industries.
They also commented that TCEQ has traditionally kept federal NSR review separate
from permitting procedures under the TCAA and that changes in federal review
do not affect the established TCEQ permitting program. They also mentioned
the decision of the United States District Court that upheld EPA's rules on
actual-to-projected actual emissions and plant-wide applicability limits as
further reason not to adopt substantial differences with the federal NSR reform
rules.
TIP, AECT, TPA, TCC, ExxonMobil, TI, BP, Calpine, Entergy, International
Paper, JDC, Celanese, and Dow commented further that the commission proposal
for PALs defeats the purpose of a federal PAL by introducing the BACT criterion.
PAL applicants currently holding flexible permits could use ten-year old BACT,
while those applicants without a flexible permit would require current BACT,
causing an inequity. Plant units not under a PAL would be subject to traditional
NSR evaluation. They believe there is not a sound legal basis for applying
NSR review to a portion of a plant or project and is inconsistent with federal
rules. The commenters noted the operational flexibility and stakeholder vetting
that are part of the federal rule. TPA also stated that there were insufficient
details on the concept of an east/west split of the state for the implementation
of PALs and stated the federal plan should be offered statewide. JDC also
suggested adding a provision allowing the conversion of existing flexible
permits to PALs.
The commission's proposal on NSR reform was intended to integrate the federal
revisions within an existing state program that addressed similar situations
concerning plant-wide emission limits and baseline emission determinations.
The commission also solicited comments from affected industries on the relative
benefits of an integrated program versus an incorporation of the federal program
without substantive changes. It is clear from stakeholder meetings and public
comment that a program matching the federal rules is the preferred method
of accomplishing federal NSR reform. The commission agrees that it has traditionally
approached state NSR permitting separately from federal NSR requirements.
Additionally, the commission determined that it can continue this approach
under federal NSR reform without endangering the attainment of maintenance
of NAAQS or affecting public health. The commission is changing the proposal
accordingly to adopt rules implementing the federal program on plant-wide
applicability limits, actual to projected actual emissions test, and baseline
determination without substantive changes to the federal model for these programs.
In summary, PALs may now be considered without specific BACT application
to each facility covered under the PAL with a site-wide PAL established as
a sum of each facility's baseline emissions. Federal NSR will be required
only if there is an increase sought in the PAL. The rules will allow the use
of a projected actual emission increase instead of potential to emit in determining
project emission increases. Project emission increases may also be reduced
by an amount equal to what may have been accommodated within a facility's
baseline period.
TIP commented that the proposed rule lacked a regulatory impact analysis.
This analysis is required when a major environmental rule exceeds a standard
set by federal law unless specifically required under state law. The significant
departures from federal law regarding PALs and exclusion of compliant emissions
exceeds requirements of federal law.
The commission is adopting rules without substantive difference from federal
rules concerning NSR reform and determined that additional regulatory impact
analysis is not required.
EPA commented that the definition of actual emissions uses a two-year period
where the federal rule uses a 24-month period and requested clarification
as the two terms are not necessarily identical.
The commission agrees with this comment, and the rule has been revised
by replacing two-year period with 24 months.
TIP and TPA commented that the definition of baseline actual emissions
should use the phrase "rate of emissions" instead of "average rate of emissions"
as it is closer to federal language.
The commission agrees with the comment, and the phrase "average rate of
actual emissions" has been replaced with "rate of emissions."
AECT questioned if the term "facility" has the same meaning in §116.10,
and 116.12. Additionally, the term "reviewing authority" should be replaced
with "executive director" throughout the new language in §116.12.
The term "facility" is based on the TCAA and has the same meaning throughout
Chapter 116 unless stated otherwise. The commission agrees that the term "reviewing
authority" could be confusing, and it has been replaced with the term "executive
director" in the definitions for baseline actual emissions and net emission
increase.
TIP, AECT, TPA, TCC, ExxonMobil, Sempra, TI, BP, Calpine, Entergy, International
Paper, Celanese, and Dow expressed concern that the current rule language
will exclude malfunction emissions from any baseline consideration. The commenters
stated that the preamble indicates that the rule language is intended to include
MSS emissions, but it does not clearly accomplish this and appears to cut
off inclusion in 2016. They also stated that malfunction emissions, if compliant
with federal and state rules, should not be excluded from baseline emissions.
They believe issues associated with the authorization of compliant emissions
should be addressed in upcoming commission rulemakings in Chapter 101, General
Air Quality Rules, and Chapter 116. TIP also commented that it is not necessary
to depart from using actual emissions as representative of the first two years
of new source operation. AECT commented that specific language authorizing
MSS and emission events should be included in the definition of baseline actual
emissions. TPA suggested adding a definition of noncompliant emissions.
The federal rule requires that baseline emissions include startup, shutdown,
and malfunctions. EPA requested confirmation that the commission's proposal
would include these emissions in determining compliance with SIP-approved
permit limits. EPA questioned whether the commission intended to retroactively
authorize past excess emissions and how baseline emissions will be determined
for sources whose startup, shutdown, and malfunction emissions have not been
previously authorized. EPA also stated that emissions from startup, shutdown,
and malfunctions are not included in the proposed definition of projected
actual emissions or in the baseline determination of facilities included under
a PAL.
The commission is not changing the rule in response to this comment. The
definition of baseline actual emissions requires the exclusion of "noncompliant"
emissions from baseline calculations. Baseline MSS emissions may not currently
be authorized but future MSS emissions from the modified or affected facilities
must be authorized.
TIP, TPA, and Dow commented that the proposed definition of net emissions
increase is inconsistent with TCEQ's recent adoption of eight-hour ozone NSR
standards, which allows reductions made under mass emissions cap and trade
programs to be creditable for netting. The proposed definition disallows decreases
that have been relied on in SIPs. AECT and TPA commented that this definition
should refer to the definition of baseline actual emissions and the inclusion
of MSS and malfunction emissions when calculating a net emission increase.
AECT and TPA made the same comment concerning the definition of project net.
The commission is changing the definitions of net emissions increase and
project net in response to this comment. Baseline actual emissions are referenced
in these definitions. Cap and trade reductions are allowed in netting calculations.
The commission does not rely on any facility or site-specific emission decrease
to demonstrate attainment or reasonable further progress when using cap and
trade programs to provide for emission reductions. A cap and trade program
ensures that there must be a real emission decease somewhere in the air shed
if there is an emission increase. The five-year netting window ensures that
any emission decreases at a site are contemporaneous with proposed increases.
TPA requested a clarification of the term "enforceable as a practical matter,"
as used in the preamble, when assigning credits for emission reductions.
The commission is changing the rule language in response to this comment
and will use the term "enforceable." Limits that are enforceable require demonstration
through such measures as documentation, inspection, and monitoring.
AECT commented that the second sentence of §116.12(28)(A) in the definition
of project emission increase concerning calculation of emission increases
should be moved to §116.12(27), the definition of projected actual emissions.
AECT also commented that the use of "modified" and "affected" are undefined
and the phrase "at the stationary source" should be added after "facility"
in the introductory phrase.
The commission is not changing the rule in response to these comments.
The commission determined that the language concerning calculation of emissions
is properly located because the consideration of what emissions could have
been accommodated in the baseline period is part of determining the project
emissions increase, not the projected actual emissions. The terms "modified"
and "affected" are used in the EPA rule and guidance, are consistent with
everyday usage, and consistent with commission practice, and do not require
a definition in the rule. The commenter's suggestion of adding the phrase
"at the stationary source" would be inconsistent with EPA rules, which do
not limit the project emission increase to facilities at the stationary source.
AECT commented that the definition of
de minimis
threshold test contains the term "major modification threshold" that
should be defined in §116.12.
The commission agrees with this comment and is modifying the definitions
for more consistent and accurate use of terms that are consistent with federal
use. The term "major modification threshold" has been replaced with "significant
level" in the definition for major modification (including Table I) and the
definition of
de minimis
threshold test. The
significant level is identified in the definition for major modification.
AECT commented that the term "federally regulated new source review pollutant"
in §116.12(13) differs significantly from the same definition in the
federal NSR reform rules. AECT questioned the basis for the difference.
The commission is changing the rule in response to this comment to add
a cited definition containing references to federal definitions for the determination
of a federally regulated NSR pollutant.
AECT commented that the definition of major stationary source in §116.12(15)
contains a sentence stating "a source that is major for one PSD pollutant
is considered major for all PSD pollutants." AECT stated that there is no
support for the sentence in EPA rules or guidance.
The commission disagrees that this concept requires change. The commission
modified this sentence to clearly indicate that a source that has emissions
of any federally regulated NSR pollutant greater than the major source level
is a major stationary source for all PSD pollutants. This policy is consistent
with the EPA definition of major stationary source and federal guidance.
AECT commented that the definition of major modification in §116.12(16)
should be changed to indicate that a project emission increase and the net
emission increase must be at or above the major source threshold for the modification
to be considered major. This concept should also be applied at non-PAL facilities.
The commission is not changing the rule in response to this comment. At
major stationary sources, the project emission increase and the net emission
increase must be greater than the significant level (or threshold) for the
modification to be major. If the source is not major, the project emissions
increase must exceed the major source threshold for the modification to be
major. This is consistent with federal applications.
TxWANA requested clarification that provisions in the definition of major
source in §116.12 exempting the use of alternate fuels from being considered
a major modification would apply to landfill-generated gas.
The commission agrees with this comment. The use of landfill gas as an
alternate fuel, if that is the only change, would not constitute a major modification.
EPA questioned whether a significant emission increase determination would
yield the same result under state and federal rules.
The commission is not changing the rule in response to this comment. A
significant emission increase would be the same under the commission's rule
as it would be under the federal language. Emissions that deviate from those
authorized are considered noncompliant and the treatment of the associated
emissions would vary, depending on the circumstances. For example, if a unit's
annual operating hours were limited to 2,000, the allowable emission rate
associated with operating beyond 2,000 hours would be considered zero, regardless
of whether the tons per year limit had been exceeded by the source. If the
hourly emission rate had been exceeded, emissions above the hourly emissions
rate would be considered noncompliant and would not be in the baseline.
EPA requested clarification that the commission consider municipal incinerators
capable of charging 50 tons of refuse per day as major sources.
The commission considers these municipal incinerators as major sources.
EPA requested clarification of the provision in the definition of major
modification that allows a change in a facility in a PAL that causes a significant
increase for a pollutant at a non-PAL facility to be considered a major modification.
Consistent with its decision to adopt rules equivalent with the federal
PAL, the commission removed this language. Emission increases will be included
in PAL and will constitute a major modification only if the PAL is exceeded
by a significant level.
EPA requested clarification of the term "federal permit of the same type"
as used in §116.12(18)(A)(ii). Further, there is no provision stating
that an increase or decrease in sulfur dioxide, particulate matter, or nitrogen
oxides occurring before a minor source baseline date is creditable only if
it is required in calculating the amount of maximum increases that remain
available.
The commission is changing the rule in response to these comments, for
clarity, and substituted the term "NSR permit" for permit of the "same type."
The commission is also adding the EPA-recommended change concerning increases
or decreases in sulfur dioxide, particulate matter, or nitrogen oxides for
consistency with federal rules.
EPA questioned why the commission is not allowing credit for emission decreases
in §116.12(18)(C)(iii) if it is relied upon for issuing a PAL. EPA also
questioned why reduction credits cannot be used in determining an offset ratio
if the reduction was used in issuing a PAL.
Consistent with its decision to adopt rules equivalent with the federal
PAL, the commission removed this language.
EPA commented that the following definitions were not proposed for the
commission's PAL program and should be added or an equivalency demonstration
provided: allowable emissions, small emissions unit, major emissions unit,
major facility, PAL effective period, and significant emissions unit.
Allowable emissions are defined in §116.10. The PAL is being incorporated
into the commission rules in the same manner as state NSR permits. The PAL
permits will have the same ten-year renewal requirement, and it has not been
necessary to define an effective period. Consistent with its decision to adopt
rules equivalent with the federal PAL, the definitions for major facility,
small facility, and significant facility have been added. The commission used
the term "facility" as a substitute for "emissions unit" for consistency with
its use of terms. The term "facility" is synonymous with "emissions unit."
EPA commented that the definition of PAL major modification lacked the
federal definitions of major modification and net emissions increase and requested
an equivalency demonstration based on their exclusion.
The commission is not changing the rule in response to the comment. The
EPA definition for PAL major modification contains language that states "notwithstanding
the definitions for major modification and net emissions increase." These
definitions already exempt PAL facilities so the additional language is unnecessary.
EPA commented that the definition of PAL pollutant does not require that
the PAL be established at a major source.
Consistent with its decision to adopt a PAL program equivalent with the
federal model, the commission added the suggested language to the definition.
EPA commented that §116.121(e) differs from the federal rule and only
requires that information documenting projected actual emissions and any excluded
emissions be available for review by the executive director and the general
public. For equivalency with the federal rule, all information required under §116.121
must be made available to the executive director and the general public.
Consistent with its decision to adopt a PAL equivalent with the federal
model, the commission added the necessary language in this section.
AECT suggested revising the first sentence in §116.121(a) to refer
to a "project emission increase" because that is a defined term. A similar
change should be made in §116.151.
The commission did not change §116.121(a) in response to this comment.
The project emission increase must be determined for every project and is
compared to the significance level. It may be determined using projected actual
emissions and/or excluding emissions that could have been accommodated in
the baseline and will therefore be subject to the requirements of §116.121.
If it were determined using the potential to emit, these requirements would
not apply.
EPA commented that §116.150 makes nonattainment review in relation
to a change in an area's attainment status contingent on the date that a complete
permit application is received. This differs from federal guidance, which
bases nonattainment review on the issuance date of a permit.
In order to remain consistent with federal rules, the commission removed
the date from the rule.
EPA, TIP, and Dow commented that the commission should modify §116.150(c)(3)
to state that any increase in volatile organic compounds or nitrogen oxides
that exceeds the major modification threshold in the definition of major modification
will be subject to a netting test. Dow stated that the concept could also
be incorporated by adding to the definition of project net in §116.12.
The commission agreed with the comment, and §116.150(c)(3) has been
revised to clarify when a netting test will be required.
AECT commented that the terms "facility" and "facilities" in §116.151
should be replaced with "stationary source(s)" and that the term "modification"
is undefined. In subsection (c), the term "aggregated over the contemporaneous
period" is superfluous as the concept is included in the defined term "net
emissions increase." AECT made similar comments about the use of these terms
in §116.160 and also suggested that the term "major source" be replaced
with "major stationary source."
The commission disagrees with AECT about the use of the term "facility."
The commission's current NSR permitting program is based on the authorization
of facilities and the term is defined in THSC, TCAA, Chapter 382, §382.002(6)
and in the commission's rules. The use of the term is well-established and
causes no significant difference in the issuance of PAL permits. The commission
determined that the term is used appropriately in §116.151 and 116.160.
The term "modification" has not been defined by EPA for NSR and the commission
determined that a Texas definition is not appropriate or necessary because
the term has an accepted meaning, and the term "modification of existing facility"
is defined in TCAA, §382.002(9). The commission agrees with AECT concerning
the use of the term "aggregated over the contemporaneous period" and the term
has been removed from §§116.150, 116.151, and 116.160. The terms
"major source" and "major stationary source" have the same meaning, and the
commission has not made the suggested change.
EPA commented that the commission should confirm that "replacement units"
as referenced in §116.151 and §116.160 will be treated as existing
units for purposes of federal NSR and emission reductions from the shutdown
of a replaced unit will not be used for netting or offsets.
The commission agrees with this comment and added definitions to §116.12
for "Replacement facility" and "Basic design parameters" to address EPA concerns.
AECT commented that the understanding is that the date July 1, 1999, in §116.160(c)(1)
refers only to the phrase "the definitions for protection of visibility and
promulgated in 40 CFR §51.301" and does not apply to 40 CFR §52.21.
If this is not the case, the commission will have failed to incorporate 40
CFR §52.21 and the NSR reform rule adopted in December 2002.
AECT's understanding is correct; the July 1, 1999, date does not apply
to 40 CFR §52.21.
Dow, Calpine, International Paper, Celanese, and TI commented that the
provision in §116.160(c)(4) requiring a determination to issue a PSD
permit within one year after receipt of a completed application should be
deleted. The commenters agreed that most permits can be issued within that
time frame, but permit timing should not be added to regulations so as to
allow maximum flexibility to resolve complex technical issues.
The commission agrees with this comment and removed the one-year requirement.
TxWANA commented that the commission should create an alternative permitting
process for landfill gas-to-energy projects that would allow for quicker authorization
of those projects that qualify as major sources or major modifications. The
commenter's specific suggestion is that the municipal solid waste landfill
air standard permit currently proposed as an amendment to 30 TAC Chapter 330,
Municipal Solid Waste, be used as the base authorization mechanism. Landfill
gas projects that would qualify as major would, by rule, be directed into
case-by-case permit review under Chapter 116 but would be exempt from contested
case hearings. TxWANA stated that this abbreviated process would help promote
these environmentally beneficial projects.
The commission did not change the rule in response to this comment. The
subject of an abbreviated permitting process for major source landfill gas
energy projects was not in the proposal and thus unavailable for public comment.
The commission staff is evaluating TxWANA's proposal for a possible future
rulemaking.
EPA requested that the commission explain how its permitting process allowing
the establishment of a separate PAL permit works with the federal requirement
to establish a PAL within an existing permit. The commenter also requested
an explanation of how a partial PAL (one not covering all facilities at a
site) will determine NSR applicability, including netting procedures, for
non-PAL facilities. EPA also requested an explanation of how conditions in
individual permits remain in effect after issuance of a PAL permit.
The commission is unaware of any requirement to establish the PAL in an
existing NSR permit and expects that most PALs will be consolidated with an
existing state NSR permit. The commission sees no reason to limit the option
of establishing a separate PAL permit for a site. The commission decided to
adopt a PAL closer to the EPA model so the partial PAL has been removed as
an option. A PAL permit contains the conditions necessary to satisfy PAL requirements
and has no effect on the requirements associated with any state NSR authorization.
EPA commented that §116.186 requires that each PAL contain all the
requirements of a PAL as listed in 40 CFR §51.165 and §51.166. It
is not clear that the commission's rule contains this requirement or the requirement
that PAL facilities use a monitoring system meeting the requirements of 40
CFR §51.165(f) and §51.166(w).
The commission is adopting language consistent with the federal requirements.
To simplify use of this rule, the commission is including the necessary language
in §116.186 rather than adopt the federal requirements by reference.
The language concerning monitoring was added as §116.186(b)(4)(C) and
(D). The commission also added subsection (b)(10) allowing the extension of
a PAL while an application for renewal is being considered.
TIP commented that language in §116.186(b)(1) - (4) and §116.186(b)(6)
and (7) is not found in the federal PAL rule and that the commission should
deviate from the federal requirements only when necessary to integrate PAL
into the commission rules. It made the same comment on §116.186(c)(2)(E),
concerning alternative monitoring approach and subsection (c)(4), concerning
implementation schedules for installation of BACT or BACT-equivalent controls.
The commission is retaining §116.186(b)(1) - (4) and §116.186(6)
and (7) in this adoption. These paragraphs identify procedures and requirements
for sampling and recordkeeping that ensure proper communication with the commission
and compliance with the permit and do not conflict with the federal PAL rule.
The commission is also retaining §116.186(c)(2)(E) because it determined
alternative monitoring is a part of the federal PAL rule. The commission did
not adopt §116.186(c)(4) because it was inconsistent with the federal
PAL rule.
EPA requested that the commission clarify whether its rule will establish
a PAL based on the application of BACT or baseline actual emissions of included
facilities. It also requested that the commission explain the use of allowable
emissions in place of potential to emit when considering addition of facilities
to a PAL. EPA commented that the commission's rules do not contain the provision
requiring subtraction of emission level from a PAL for permanently shut down
facilities.
Consistent with its decision to adopt a PAL equivalent with the federal
model, the commission set the PAL based on baseline emissions. Facilities
in the PAL are still subject to state permitting requirements, including any
allowable emissions rate authorized by state law that effectively limits the
potential to emit of that facility. The provision requiring subtraction of
emission level from a PAL for permanently shut down facilities has been added
to §116.188, Plant-wide Applicability Limit.
TIP commented that language in §116.188(1) - (3), concerning addition
of significance levels to PALs and use of potential to emit for new facilities
added to a PAL is not comparable to the federal rule and that the commission
should deviate from the federal requirements only when necessary to integrate
PAL into the commission rules.
The commission disagrees with the comment. The federal language addresses
significance levels in PALs and the use of potential to emit in 40 CFR §51.165(f)(6)
and §51.166(w)(6). The commission is retaining the language in §116.188(1)
and (2). The commission agrees that §116.188(3) is not necessary and
it has been removed from the rule.
EPA stated that §116.188 has no provisions corresponding to federal
rules for requesting an increase in a PAL and it is unaware of a federal requirement
to remove baseline emissions of new or modified facilities from the PAL. EPA
also commented that §116.188(4) discusses regulatory requirements that
have a future compliance date but closes the provision by referring to requirements
that are effective prior to PAL issuance. The commenter requested that the
commission clarify this provision and demonstrate how it meets federal requirements.
Consistent with its decision to adopt a version of PAL closer to the federal
model, the commission removed the noted language that is not required under
the federal rules.
EPA stated that §116.190 does not contain a federally equivalent provision
that a physical or operational change not causing an exceedance of a PAL is
not subject to federal restrictions on relaxing enforceable emission limitations
to avoid NSR review.
Consistent with its decision to adopt a version of PAL equivalent to the
federal model, the commission added the federally equivalent language as a
new subsection (c).
EPA and TIP commented that the federal PAL requirements allow the permitting
authority to consider the application of BACT or equivalent technology where
a facility proposes to add or modify units in such a way as to cause an exceedance
of the PAL. Such an increase would be authorized only if the source would
not be able to maintain emissions below the PAL, assuming application of BACT
or BACT-equivalent controls. EPA requested an explanation of how the commission's
requirement to install BACT compares with the federal rule. The commenter
also requested that the commission explain how its requirements to increase
the PAL compare to the federal rule. TIP stated that the term "major modification"
is used rather than "PAL major modification" and that a control technology
implementation schedule for BACT went beyond federal requirements.
Consistent with its decision to adopt a PAL equivalent to the federal model,
the commission added §116.192(a)(1) addressing the issue of potential
BACT application when a PAL permit holder seeks an amendment or alteration.
EPA stated that the commission has not addressed these areas in its proposed
PAL rules: contents of a PAL permit; reopening a PAL permit; increasing a
PAL; revalidation of data used to establish a PAL; and recordkeeping.
Consistent with its decision to adopt a PAL equivalent to the federal model,
the commission made extensive revisions to §116.192 that include the
requirements for reopening a PAL permit and increasing a PAL. Additionally,
the commission expanded the recordkeeping requirements in §116.186(b)(4)
to incorporate all the requirements in the EPA rule. Section 116.186 specifies
the contents of a PAL permit and includes EPA requirements with the addition
of §116.186(b)(10). The revalidation of data used to establish the PAL
was in the proposed rule and is found in §116.186(b)(9) of the adopted
rule.
EPA commented that the permit alteration and amendment of provisions in §116.192
must be consistent with the SIP-approved provisions of §116.116, Changes
to Facilities.
The commission disagrees with this comment. Section 116.116 identifies
requirements associated with the authorization of facilities that emit air
contaminants. A PAL permit does not authorize facilities that emit air contaminants
and is not subject to those requirements.
EPA commented that the commission appears to rely on 30 TAC Chapter 39,
Public Notice, to meet the public notice requirements for PALs and noted that
a second public notice prior to permit issuance is not required for all air
permits and may not be consistent with federal requirements to notify the
public of the agency's approval of a permit. EPA also commented that Chapter
39 has not been approved into the Texas SIP. EPA also stated that PALs are
not referenced in Chapter 39 and requested a summary of Chapter 39 requirements
for initial, renewed, or amended PALs.
The commission modified §116.194, Public Notice and Comment, to require
notification of intent to issue a permit allowing for public comment and an
executive director response. The commission determined that they are equivalent
to federal notice requirements for PALs. Although Chapter 39 has not been
approved by EPA as a revision to the SIP, the commission treats the rules,
first submitted in 1999, as SIP requirements. A reference to PALs in Chapter
39 is not necessary and could not be added at this adoption because the applicable
sections were not opened for public notice.
EPA commented that the requirements in §116.196 to identify qualified
facilities under §116.10 and to include rolling 12-month emission rates
for non-qualified facilities are not in federal rules and requested a demonstration
that such inclusions result in a program at least as stringent as the federal
PAL. TIP also noted this difference between the proposal and the federal rule
and urged the commission to adopt the federal PAL without substantive differences.
Consistent with its decision to adopt a PAL equivalent to the federal model,
the commission removed the reference language in the adopted rule.
EPA commented that §116.196(e)(B) would be clearer if the commission
stated that the PAL is being set at a higher level in accordance with §116.188(3)
and §116.192(a).
The commission agrees with this comment and §116.192(a) has been referenced
as suggested.
EPA commented that §116.198 is not clear on whether a PAL that is
not renewed expires at the end of the PAL effective period in 40 CFR §51.165(f)(9)(B).
It also commented that the section does not have a requirement to include
proposed allowable emission limits for each emission unit within the federal
time frame for PAL renewals or to adjust emissions. The requirement in the
section that requires documentation of technology upgrades is not found in
federal rules.
Consistent with its decision to adopt a PAL equivalent to the federal model,
the commission is adopting EPA's recommended additions. The commission removed
the language concerning the documentation of technology upgrades because this
requirement is not in the federal rule.
AECT commented that §116.610(b) should be revised to refer to major
stationary sources, rather than "major source or major modification," and
also reference §116.12 as the location of the definition of major modification.
For consistency in the use of terms, the commission is modifying the appropriate
term to refer to major stationary sources and included a reference to §116.12
as the location for the definitions rather than a federal rule reference.
HDH commented that the public comment period was too short and should be
extended with additional hearings in Dallas, Houston, and Beaumont.
The commission disagrees that the chance for public participation in development
of this proposal was too short. The commission met its legal obligation for
length of the public comment period and conducted two stakeholder meetings
during the development of this proposal. Representatives of industry and environmental
organizations were invited on both occasions.
HDH commented that it encourages state rules that are more stringent than
the federal. The City of Houston, along with several urban areas within the
state, is currently classified as nonattainment and it views the more stringent
rules as aids toward achieving attainment, or at least maintaining the severity
of the nonattainment designations.
The commission did not change the rule in response to the comment. Neither
state permitting law nor the federal NSR permitting program are designed to
be control measures for specific nonattainment areas. The commission adopted
specific rules regarding control of nitrogen oxide and volatile organic compound
emissions from facilities in Houston and other nonattainment areas in its
efforts to attain the NAAQS. The commission will consider more stringent rules
if air quality goals are not achieved.
TIP, Entergy, Calpine, BP, TI, Celanese, and AECT commented that beyond
the netting change required in response to the District of Columbia Circuit
Court decision in
State of New York, et al. v. United
States Environmental Protection Agency
, the proposed changes to the
existing state Pollution Control Project Standard Permit are unnecessary and
inappropriate.
The commission is not changing the rule language in response to this comment.
In addition to the change concerning netting on pollution control projects
required as a result of this court decision concerning NSR reform, the commission
is adopting changes to §116.617, which are intended to clarify language
and improve organization and readability. These changes include grouping similar
or related requirements together and ordering those groups in a logical progression.
To better organize general requirements for standard permits, the applicable
conditions of Chapter 116, Subchapter F, Standard Permits, were added in subsection
(b), and a list of registration requirements were added to subsection (d)
to ensure that all registration information is submitted. Similarly, subsection
(e) incorporates requirements found in §116.615, General Conditions,
and expands, clarifies, and focuses them specifically for the state pollution
control project standard permit.
TIP requested confirmation that the standard permit still authorizes collateral
emission increases for state NSR purposes. TIP commented that §116.617(9)
should be retained.
TIP is correct that the pollution control project standard permit will
authorize collateral emission increases. The commission determined that §116.617(9)
is redundant in this adopted version of the pollution control project. Projects
authorized under this standard permit will be evaluated through netting for
significance. Any project qualifying as a significant change will be referred
into the appropriate authorization methods of Chapter 116. Projects remaining
below the significant level are not affected.
EPA commented that it does not consider this a good time for the commission
to adopt any kind of pollution control regulation because of pending litigation
concerning the District of Columbia Circuit Court decision, which vacated
the federal pollution control project rule.
The commission is not changing the rule in response to this comment. The
state pollution control project rule being amended is independent of the federal
pollution control project rule vacated by the court. The federal rule addressed
the issue of exclusion of pollution control project emissions from federal
NSR or PSD review, a subject not addressed in the state rule. Litigation,
appeals, and interpretation of court decisions may not be resolved for some
time, and the commission desires to continue authorizing beneficial projects
that reduce the quantity and severity of pollutants emitted to the atmosphere.
EPA requested the commission's rationale for qualifying the substitution
of compounds as a pollution control project under §116.617(a)(2)(C).
The commission determined that substituting compounds used in manufacturing
can reduce or control the amount of pollution emitted to the atmosphere and
is therefore within the original scope and intent of the pollution control
project. This substitution must be approved by the executive director.
TIP, TPA, TCC, and AECT all commented on §116.617(a)(4), which requires
that past increases authorized under a standard permit be included in netting.
The commenters claim that the retroactive nature of this requirement is unnecessary
and impractical and request that the requirement only be applied prospectively.
The commission is not changing the rule in response to this comment and
disagrees that the requirement is unnecessary. The commission determined that
pollution control projects, even those with incidental emission increases
in other contaminants, are beneficial to the environment, and wants to encourage
them. However, in order to remain consistent with the previous rule, the emission
increases and decreases from the pollution control project must be shown in
subsequent site netting exercises. The requirement for immediate netting on
new projects was added as a result of the District of Columbia Circuit Court
decision.
TIP and EPA commented that they will review the pollution control project
for consistency with 40 CFR §51.160 and §51.161. They asked the
commission for a determination of whether the incidental emission increases
resulting from projects could interfere with attainment or maintenance of
NAAQS. In addition, EPA asked how the pollution control project complies with
the public participation requirements of 40 CFR §51.161, particularly
concerning §116.617(d)(1)(B), which allows for increases in emissions
without public notice.
The commission is not changing the rule in response to these comments.
The new pollution control project contains language prohibiting incidental
emission increases that would prevent achievement of an NAAQS. Specifically,
under §116.617(a)(4), all increases and decreases must be included in
netting calculations. If the project emission increases are not below significance
thresholds for PSD or nonattainment review, the standard permit cannot be
used. For projects under PSD or nonattainment thresholds, the maximum emission
rates identified in the standard permit registration serve as an enforceable
emission limit.
The executive director uses the 30-day period prior to start of construction
to verify that the collateral emissions are properly quantified and that there
is not a significant net emission increase associated with the proposed project.
Incidental increases associated with a pollution control project must have
no harmful off-property effects, and the commission determined that the emission
decreases are of benefit to the environment. Based on these conditions, the
commission further determined that a public review of each individual application
of the pollution control project was not necessary and would slow beneficial
projects. This is not a new condition of the pollution control project, and
the provision was available for public comment at the original adoption of
the pollution control project and during this amendment.
TIP, AECT, and Dow commented that the proposed §116.617(f) requires
impacts review upon a mandatory incorporation of the standard permit into
an existing NSR permit. The TCAA does not require a re-review of project effects
on incorporation.
The pollution control project standard permit can be used to make physical
or operational changes at a facility instead of a permit amendment under §116.110,
Applicability, and no effects review is required for initial construction.
An effects review will be required at the incorporation of the pollution control
project into the NSR permit. The commission is not adopting the proposed requirement
for effects review in this rulemaking and will continue to examine the issue
during the consideration of additional rulemaking concerning, among other
topics, the incorporation of standard permit and permit by rule authorizations
(Rule Project No. 2005-016-106-PR, proposed by the commission in the December
30, 2005, issue of the
Texas Register
(30
TexReg 8789, 8808).
TIP, AECT, and Dow commented regarding the requirement in §116.617(b)(2)
limiting the start of construction to within 180 days of registration. They
stated that the commission traditionally allows up to 18 months to start construction,
and reducing the time allowed is unnecessary and unreasonable. They suggested
that the time allowed be increased to 18 months with an automatic 18-month
extension to be consistent with other state and federal rules and guidance.
Dow also requested that the commission remove the requirement to notify upon
the start of construction and the start of operation.
The commission agrees with the comment and is modifying the rule language.
The commission is retaining the start of construction and operation notification
in order to track construction progress.
TIP, AECT, and Dow commented that the proposed requirement that MSS emissions
associated with replacement projects can only be authorized if necessary to
the control project and authorized originally is contrary to the initiative
to authorize MSS emissions and has no relationship to NSR reform. They also
commented that provisions requiring the permitting of predictable emissions
appear to be out of context in this rulemaking and there was no public notice
on the potential scope of such an authorization. This issue should be deferred
to the subsequent rulemaking on this subject. Dow commented that MSS should
not be addressed in the standard permit.
The commission has not changed the rule in response to this comment. The
commission requires the authorization of MSS emissions for new pollution control
projects. Authorizing MSS for a replacement project when an initial authorization
has not been made allows the MSS emissions to be included within the NSR permit
without an effects evaluation. Because some pollution control projects can
constitute facilities, the commission determined that the authorization of
MSS emissions within the standard permit is necessary to an accurate review
of project emissions.
TIP, TexasGenco, Sempra, and AECT opposed the deletion of the provision
in §116.617(5), which allows the recovery of lost capacity caused by
a derate resulting from the installation of control equipment or the implementation
of a control technique. They stated that the language resulted from extensive
input from stakeholders during a previous rulemaking, and asked that the commission
provide a basis for its proposed removal. In addition, EPA requested that
the authorizations be identified that are referred to as "additional authorizations"
in the proposed rule. TIP specifically requested that the standard permit
continue to authorize collateral increases if associated with the replacement
of a control.
The commission agrees with the commenters and is retaining the language
authorizing the recovery and utilization of capacity lost due to a pollution
control project. All production increases associated with a pollution control
project, not including capacity recovered, must qualify for and be authorized
under §116.110 or §116.116 prior to the use of the increased capacity.
Additional authorization means a permit amendment under §116.110 or the
use of a permit by rule. The commission agrees that the standard permit will
continue to authorize collateral increases associated with control replacement.
EPA asked how the commission would address a situation under subsection
(d)(1)(B) - (D) where it is determined a pollution control project results
in a control strategy violation or interferes with an NAAQS after construction
has begun. It asked for a demonstration of how the provisions of subparagraphs
(B) - (D) meet the requirements of 40 CFR §51.160(a) and (b). EPA questioned
whether a pollution control project could begin operation prior to the commission
completing an evaluation under 40 CFR §51.160(a) and how the commission
would prevent construction of a project. It stated that the subparagraph is
not clear that construction of the pollution control project is solely at
the risk of the owner if the commission does not find the project meets 40
CFR §51.160(a). EPA had similar comments concerning §116.617(f)(1)(A).
Because netting is required to show that a project does not trigger PSD
or nonattainment reviews, the application of 40 CFR §51.160(a) should
not be necessary. If a project is not constructed as represented, the commission
has the authority to take enforcement action if any standard permit conditions
are violated. The commission notes that it is always the responsibility of
the owner or operator to evaluate applicability and determine compliance with
all federal and state rules and regulations.
AECT recommended that the term "registration application" in §116.617(d)(1)
be replaced by "registration" since no application is required under the standard
permit process.
The commission agrees with the comment and made the necessary substitution.
The commission further notes that evaluation of the proposed project requires
the submittal of appropriate documentation.
TIP and AECT commented that the proposed language in §116.617(d)(1)(B)
requiring notification of changes causing emission increases be submitted
30 days prior to construction should be deleted. They stated that the commission
has not provided justification for the proposed change and that it is contrary
to the streamlining intent of NSR reform.
The commission is not changing the rule in response to these comments.
Those changes, which include revisions to construction and increased emissions,
should be reported 30 days prior to implementation to allow time for review
and approval of the revised project.
Subchapter A. DEFINITIONS
30 TAC §116.12
STATUTORY AUTHORITY
The amendment is adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The amendment is also adopted under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission 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 control of the state's air; §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
and adopt rules necessary for permits issued under THSC, Chapter 382; §382.0512,
concerning Modification of Existing Facility, which establishes a modification
and its limits; §382.0518, concerning Preconstruction Permit, which requires
that a permit be obtained from the commission prior to new construction or
modification of an existing facility; and Federal Clean Air Act (FCAA), 42
United States Code (USC), §§7401
et seq
., which requires permits for construction and operation of new or
modified major stationary sources.
The amendment implements THSC, §§382.002, 382.011, 382.012, 382.051,
382.0512, and 382.0518; and FCAA, 42 USC, §§7401
et seq
.
§116.12.Nonattainment and Prevention of Significant Deterioration Review Definitions.
Unless specifically defined in the Texas Clean Air Act (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. The terms
in this section are applicable to permit review for major source construction
and major source modification in nonattainment areas. In addition to the terms
that are defined by the TCAA, and in §101.1 of this title (relating to
Definitions), the following words and terms, when used in Chapter 116, Subchapter
B, Divisions 5 and 6 of this title (relating to Nonattainment Review and Prevention
of Significant Deterioration Review); and Chapter 116, Subchapter C, Division
1 of this title (relating to Plant-Wide Applicability Limits), have the following
meanings, unless the context clearly indicates otherwise.
(1)
Actual emissions--Actual emissions as of a particular date
are equal to the average rate, in tons per year, at which the unit actually
emitted the pollutant during the 24-month period that precedes the particular
date and that is representative of normal source operation, except that this
definition shall not apply for calculating whether a significant emissions
increase has occurred, or for establishing a plant-wide applicability limit.
Instead, paragraph (3) of this section relating to baseline actual emissions
shall apply for this purpose. The executive director shall allow the use of
a different time period upon a determination that it is more representative
of normal source operation. Actual emissions shall be calculated using the
unit's actual operating hours, production rates, and types of materials processed,
stored, or combusted during the selected time period. The executive director
may presume that the source-specific allowable emissions for the unit are
equivalent to the actual emissions, e.g., when the allowable limit is reflective
of actual emissions. For any emissions unit that has not begun normal operations
on the particular date, actual emissions shall equal the potential to emit
of the unit on that date.
(2)
Allowable emissions--The emissions rate of a stationary
source, calculated using the maximum rated capacity of the source (unless
the source is subject to federally enforceable limits that restrict the operating
rate, or hours of operation, or both), and the most stringent of the following:
(A)
the applicable standards specified in 40 Code of Federal
Regulations Part 60 or 61;
(B)
the applicable state implementation plan emissions limitation
including those with a future compliance date; or
(C)
the emissions rate specified as a federally enforceable
permit condition including those with a future compliance date.
(3)
Baseline actual emissions--The rate of emissions, in tons
per year, of a federally regulated new source review pollutant.
(A)
For any existing electric utility steam generating unit,
baseline actual emissions means the rate, in tons per year, at which the unit
actually emitted the pollutant during any consecutive 24-month period selected
by the owner or operator within the five-year period immediately preceding
when the owner or operator begins actual construction of the project. The
executive director shall allow the use of a different time period upon a determination
that it is more representative of normal source operation.
(B)
For an existing facility (other than an electric utility
steam generating unit), baseline actual emissions means the rate, in tons
per year, at which the facility actually emitted the pollutant during any
consecutive 24-month period selected by the owner or operator within the ten-year
period immediately preceding either the date the owner or operator begins
actual construction of the project, or the date a complete permit application
is received for a permit. The rate shall be adjusted downward to exclude any
emissions that would have exceeded an emission limitation with which the major
stationary source must currently comply with the exception of those required
under 40 Code of Federal Regulations Part 63, had such major stationary source
been required to comply with such limitations during the consecutive 24-month
period.
(C)
For a new facility, the baseline actual emissions for purposes
of determining the emissions increase that will result from the initial construction
and operation of such unit shall equal zero; and for all other purposes during
the first two years following initial operation, shall equal the unit's potential
to emit.
(D)
The actual rate shall be adjusted downward to exclude any
non-compliant emissions that occurred during the consecutive 24-month period.
For each regulated new source review pollutant, when a project involves multiple
facilities, only one consecutive 24-month period must be used to determine
the baseline actual emissions for the facilities being changed. A different
consecutive 24-month period can be used for each regulated new source review
pollutant. The rate shall not be based on any consecutive 24-month period
for which there is inadequate information for determining annual emissions,
in tons per year, and for adjusting this amount. Baseline emissions cannot
occur prior to November 15, 1990.
(E)
The actual emissions rate shall include fugitive emissions
to the extent quantifiable. Until March 1, 2016, emissions previously demonstrated
as emissions events or historically exempted under Chapter 101 of this title
(relating to General Air Quality Rules) may be included to the extent that
they have been authorized, or are being authorized.
(4)
Basic design parameters--For a process unit at a steam
electric generating facility, the owner or operator may select as its basic
design parameters either maximum hourly heat input and maximum hourly fuel
consumption rate or maximum hourly electric output rate and maximum steam
flow rate. When establishing fuel consumption specifications in terms of weight
or volume, the minimum fuel quality based on British thermal units content
shall be used for determining the basic design parameters for a coal-fired
electric utility steam generating unit. The basic design parameters for any
process unit that is not at a steam electric generating facility are maximum
rate of fuel or heat input, maximum rate of material input, or maximum rate
of product output. Combustion process units will typically use maximum rate
of fuel input. For sources having multiple end products and raw materials,
the owner or operator shall consider the primary product or primary raw material
when selecting a basic design parameter. The owner or operator may propose
an alternative basic design parameter for the source's process units to the
executive director if the owner or operator believes the basic design parameter
as defined in this paragraph is not appropriate for a specific industry or
type of process unit. If the executive director approves of the use of an
alternative basic design parameter, that basic design parameter shall be identified
and compliance required in a condition in a permit that is legally enforceable.
(A)
The owner or operator shall use credible information, such
as results of historic maximum capability tests, design information from the
manufacturer, or engineering calculations, in establishing the magnitude of
the basic design parameter.
(B)
If design information is not available for a process unit,
the owner or operator shall determine the process unit's basic design parameter(s)
using the maximum value achieved by the process unit in the five-year period
immediately preceding the planned activity.
(C)
Efficiency of a process unit is not a basic design parameter.
(5)
Begin actual construction--In general, initiation of physical
on-site construction activities on an emissions unit that are of a permanent
nature. Such activities include, but are not limited to, installation of building
supports and foundations, laying of underground pipework, and construction
of permanent storage structures. With respect to a change in method of operation,
this term refers to those on-site activities other than preparatory activities
that mark the initiation of the change.
(6)
Building, structure, facility, or installation--All of
the pollutant-emitting activities that belong to the same industrial grouping,
are located in one or more contiguous or adjacent properties, and are under
the control of the same person (or persons under common control). Pollutant-emitting
activities are considered to be part of the same industrial grouping if they
belong to the same "major group" (i.e., that have the same two-digit code)
as described in the Standard Industrial Classification Manual, 1972, as amended
by the 1977 supplement.
(7)
Clean coal technology--Any technology, including technologies
applied at the precombustion, combustion, or post-combustion stage, at a new
or existing facility that will achieve significant reductions in air emissions
of sulfur dioxide or oxides of nitrogen associated with the utilization of
coal in the generation of electricity, or process steam that was not in widespread
use as of November 15, 1990.
(8)
Clean coal technology demonstration project--A project
using funds appropriated under the heading "Department of Energy-Clean Coal
Technology," up to a total amount of $2.5 billion for commercial demonstration
of clean coal technology, or similar projects funded through appropriations
for the United States Environmental Protection Agency. The federal contribution
for a qualifying project shall be at least 20% of the total cost of the demonstration
project.
(9)
Commence--As applied to construction of a major stationary
source or major modification, means that the owner or operator has all necessary
preconstruction approvals or permits and either has:
(A)
begun, or caused to begin, a continuous program of actual
on-site construction of the source, to be completed within a reasonable time;
or
(B)
entered into binding agreements or contractual obligations,
which cannot be canceled or modified without substantial loss to the owner
or operator, to undertake a program of actual construction of the source to
be completed within a reasonable time.
(10)
Construction--Any physical change or change in the method
of operation (including fabrication, erection, installation, demolition, or
modification of an emissions unit) that would result in a change in actual
emissions.
(11)
Contemporaneous period--For major sources the period between:
(A)
the date that the increase from the particular change occurs;
and
(B)
60 months prior to the date that construction on the particular
change commences.
(12)
De minimis
threshold test
(netting)--A method of determining if a proposed emission increase will trigger
nonattainment or prevention of significant deterioration review. The summation
of the proposed project emission increase in tons per year with all other
creditable source emission increases and decreases during the contemporaneous
period is compared to the significant level for that pollutant. If the significant
level is exceeded, then prevention of significant deterioration and/or nonattainment
review is required.
(13)
Electric utility steam generating unit--Any steam electric
generating unit that is constructed for the purpose of supplying more than
one-third of its potential electric output capacity and more than 25 megawatts
electrical output to any utility power distribution system for sale. Any steam
supplied to a steam distribution system for the purpose of providing steam
to a steam-electric generator that would produce electrical energy for sale
is included in determining the electrical energy output capacity of the affected
facility.
(14)
Federally regulated new source review pollutant--As defined
in subparagraphs (A) - (D) of this paragraph:
(A)
any pollutant for which a national ambient air quality
standard has been promulgated and any constituents or precursors for such
pollutants identified by the United States Environmental Protection Agency;
(B)
any pollutant that is subject to any standard promulgated
under Federal Clean Air Act (FCAA), §111;
(C)
any Class I or II substance subject to a standard promulgated
under or established by FCAA, Title VI; or
(D)
any pollutant that otherwise is subject to regulation under
the FCAA; except that any or all hazardous air pollutants either listed in
FCAA, §112 or added to the list under FCAA, §112(b)(2), which have
not been delisted under FCAA, §112(b)(3), are not regulated new source
review pollutants unless the listed hazardous air pollutant is also regulated
as a constituent or precursor of a general pollutant listed under FCAA, §108.
(15)
Lowest achievable emission rate--For any emitting facility,
that rate of emissions of a contaminant that does not exceed the amount allowable
under applicable new source performance standards promulgated by the United
States Environmental Protection Agency under 42 United States Code, §7411,
and that reflects the following:
(A)
the most stringent emission limitation that is contained
in the rules and regulations of any approved state implementation plan for
a specific class or category of facility, unless the owner or operator of
the proposed facility demonstrates that such limitations are not achievable;
or
(B)
the most stringent emission limitation that is achieved
in practice by a specific class or category of facilities, whichever is more
stringent.
(16)
Major facility--Any facility that emits or has the potential
to emit 100 tons per year or more of the plant-wide applicability limit (PAL)
pollutant in an attainment area; or any facility that emits or has the potential
to emit the PAL pollutant in an amount that is equal to or greater than the
major source threshold for the PAL pollutant in Table I of this section for
nonattainment areas.
(17)
Major stationary source--Any stationary source that emits,
or has the potential to emit, a threshold quantity of emissions or more of
any air contaminant (including volatile organic compounds (VOCs) for which
a national ambient air quality standard has been issued. The major source
thresholds are identified in Table I of this section for nonattainment pollutants
and the major source thresholds for prevention of significant deterioration
pollutants are identified in 40 Code of Federal Regulations (CFR) §51.166(b)(1).
A source that emits, or has the potential to emit a federally regulated new
source review pollutant at levels greater than those identified in 40 CFR §51.166(b)(1)
is considered major for all prevention of significant deterioration pollutants.
A major stationary source that is major for VOCs or nitrogen oxides is considered
to be major for ozone. The fugitive emissions of a stationary source shall
not be included in determining for any of the purposes of this definition
whether it is a major stationary source, unless the source belongs to one
of the categories of stationary sources listed in 40 CFR §51.165(a)(1)(iv)(C).
(18)
Major modification--As follows.
(A)
Any physical change in, or change in the method of operation
of a major stationary source that causes a significant project emissions increase
and a significant net emissions increase for any federally regulated new source
review pollutant. At a stationary source that is not major prior to the increase,
the increase by itself must equal or exceed that specified for a major source
. At an existing major stationary source, the increase must equal or exceed
that specified for a major modification to be significant. The major source
and significant thresholds are provided in Table I of this section for nonattainment
pollutants. The major source and significant thresholds for prevention of
significant deterioration pollutants are identified in 40 Code of Federal
Regulations §51.166(b)(1) and (23), respectively.
(B)
A physical change or change in the method of operation
shall not include:
(i)
routine maintenance, repair, and replacement;
(ii)
use of an alternative fuel or raw material by reason of
an order under the Energy Supply and Environmental Coordination Act of 1974, §2(a)
and (b) (or any superseding legislation) or by reason of a natural gas curtailment
plan under the Federal Power Act;
(iii)
use of an alternative fuel by reason of an order or rule
of 42 United States Code, §7425;
(iv)
use of an alternative fuel at a steam generating unit
to the extent that the fuel is generated from municipal solid waste;
(v)
use of an alternative fuel or raw material by a stationary
source that the source was capable of accommodating before December 21, 1976
(unless such change would be prohibited under any federally enforceable permit
condition established after December 21, 1976) or the source is approved to
use under any permit issued under regulations approved under this chapter;
(vi)
an increase in the hours of operation or in the production
rate (unless the change is prohibited under any federally enforceable permit
condition that was established after December 21, 1976);
(vii)
any change in ownership at a stationary source;
(viii)
any change in emissions of a pollutant at a site that
occurs under an existing plant-wide applicability limit;
(ix)
the installation, operation, cessation, or removal of
a temporary clean coal technology demonstration project, provided that the
project complies with the state implementation plan and other requirements
necessary to attain and maintain the national ambient air quality standard
during the project and after it is terminated;
(x)
for prevention of significant deterioration review only,
the installation or operation of a permanent clean coal technology demonstration
project that constitutes re-powering, provided that the project does not result
in an increase in the potential to emit of any regulated pollutant emitted
by the unit. This exemption shall apply on a pollutant-by-pollutant basis;
or
(xi)
for prevention of significant deterioration review only,
the reactivation of a clean coal-fired electric utility steam generating unit.
(19)
Necessary preconstruction approvals or permits--Those
permits or approvals required under federal air quality control laws and regulations
and those air quality control laws and regulations that are part of the applicable
state implementation plan.
(20)
Net emissions increase--The amount by which the sum of
the following exceeds zero: the project emissions increase plus any sourcewide
creditable contemporaneous emission increases, minus any sourcewide creditable
contemporaneous emission decreases. Baseline actual emissions shall be used
to determine emissions increases and decreases.
(A)
An increase or decrease in emissions is creditable only
if the following conditions are met:
(i)
it occurs during the contemporaneous period;
(ii)
the executive director has not relied on it in issuing
a federal new source review permit for the source and that permit is in effect
when the increase in emissions from the particular change occurs; and
(iii)
in the case of prevention of significant deterioration
review only, an increase or decrease in emissions of sulfur dioxide, particulate
matter, or nitrogen oxides that occurs before the applicable minor source
baseline date is creditable only if it is required to be considered in calculating
the amount of maximum allowable increases remaining available.
(B)
An increase in emissions is creditable if it is the result
of a physical change in, or change in the method of operation of a stationary
source only to the extent that the new level of emissions exceeds the baseline
actual emission rate. Emission increases at facilities under a plant-wide
applicability limit are not creditable.
(C)
A decrease in emissions is creditable only to the extent
that all of the following conditions are met:
(i)
the baseline actual emission rate exceeds the new level
of emissions;
(ii)
it is enforceable at and after the time that actual construction
on the particular change begins;
(iii)
the executive director has not relied on it in issuing
a prevention of significant deterioration or a nonattainment permit;
(iv)
the decrease has approximately the same qualitative significance
for public health and welfare as that attributed to the increase from the
particular change; and
(v)
in the case of nonattainment applicability analysis only,
the state has not relied on the decrease to demonstrate attainment or reasonable
further progress.
(D)
An increase that results from a physical change at a source
occurs when the emissions unit on which construction occurred becomes operational
and begins to emit a particular pollutant. Any replacement unit that requires
shakedown becomes operational only after a reasonable shakedown period, not
to exceed 180 days.
(21)
Offset ratio--For the purpose of satisfying the emissions
offset reduction requirements of 42 United States Code, §7503(a)(1)(A),
the emissions offset ratio is the ratio of total actual reductions of emissions
to total emissions increases of such pollutants. The minimum offset ratios
are included in Table I of this section under the definition of major modification.
In order for a reduction to qualify as an offset, it must be certified as
an emission credit under Chapter 101, Subchapter H, Division 1 or 4 of this
title (relating to Emission Credit Banking or Trading; or Discrete Emission
Credit Banking and Trading), except as provided for in §116.170(b) of
this title (relating to Applicability of Emission Reductions as Offsets).
The reduction must not have been relied on in the issuance of a previous nonattainment
or prevention of significant deterioration permit.
(22)
Plant-wide applicability limit--An emission limitation
expressed, in tons per year, for a pollutant at a major stationary source,
that is enforceable and established in a plant-wide applicability limit permit
under §116.186 of this title (relating to General and Special Conditions).
(23)
Plant-wide applicability limit effective date--The date
of issuance of the plant-wide applicability limit permit. The plant-wide applicability
limit effective date for a plant-wide applicability limit established in an
existing flexible permit is the date that the flexible permit was issued.
(24)
Plant-wide applicability limit major modification--Any
physical change in, or change in the method of operation of the plant-wide
applicability limit source that causes it to emit the plant-wide applicability
limit pollutant at a level equal to or greater than the plant-wide applicability
limit.
(25)
Plant-wide applicability limit permit--The new source
review permit that establishes the plant- wide applicability limit.
(26)
Plant-wide applicability limit pollutant--The pollutant
for which a plant-wide applicability limit is established at a major stationary
source.
(27)
Potential to emit--The maximum capacity of a stationary
source to emit a pollutant under its physical and operational design. Any
physical or enforceable operational limitation on the capacity of the stationary
source to emit a pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount of material combusted,
stored, or processed, may be treated as part of its design only if the limitation
or the effect it would have on emissions is federally enforceable. Secondary
emissions, as defined in 40 Code of Federal Regulations §51.165(a)(1)(viii),
do not count in determining the potential to emit for a stationary source.
(28)
Project net--The sum of the following: the project emissions
increase, minus any sourcewide creditable emission decreases proposed at the
source between the date of application for the modification and the date the
resultant modification begins emitting. Baseline actual emissions shall be
used to determine emissions increases and decreases. Increases and decreases
must meet the creditability criteria listed under the definition of net emissions
increase in this section.
(29)
Projected actual emissions--The maximum annual rate, in
tons per year, at which an existing facility is projected to emit a federally
regulated new source review pollutant in any rolling 12-month period during
the five years following the date the facility resumes regular operation after
the project, or in any one of the ten years following that date, if the project
involves increasing the facility's design capacity or its potential to emit
that federally regulated new source review pollutant. In determining the projected
actual emissions, the owner or operator of the major stationary source shall
include fugitive emissions to the extent quantifiable and shall consider all
relevant information, including, but not limited to, historical operational
data, the company's own representations, the company's expected business activity
and the company's highest projections of business activity, the company's
filings with the state or federal regulatory authorities, and compliance plans
under the approved state implementation plan.
(30)
Project emissions increase--The sum of emissions increases
for each modified or affected facility determined using the following methods:
(A)
for existing facilities, the difference between the projected
actual emissions and the baseline actual emissions. In calculating any increase
in emissions that results from the project, that portion of the facility's
emissions following the project that the facility could have accommodated
during the consecutive 24-month period used to establish the baseline actual
emissions and that are also unrelated to the particular project, including
any increased utilization due to product demand growth may be excluded from
the project emission increase. The potential to emit from the facility following
completion of the project may be used in lieu of the projected actual emission
rate; and
(B)
for new facilities, the difference between the potential
to emit from the facility following completion of the project and the baseline
actual emissions.
(31)
Replacement facility--A facility that satisfies the following
criteria:
(A)
the facility is a reconstructed unit within the meaning
of 40 Code of Federal Regulations §60.15(b)(1), or the facility replaces
an existing facility;
(B)
the facility is identical to or functionally equivalent
to the replaced facility;
(C)
the replacement does not alter the basic design parameters
of the process unit;
(D)
the replaced facility is permanently removed from the major
stationary source, otherwise permanently disabled, or permanently barred from
operation by a permit that is enforceable. If the replaced facility is brought
back into operation, it shall constitute a new facility. No creditable emission
reductions shall be generated from shutting down the existing facility that
is replaced. A replacement facility is considered an existing facility for
the purpose of determining federal new source review applicability.
(32)
Secondary emissions--Emissions that would occur as a result
of the construction or operation of a major stationary source or major modification,
but do not come from the source or modification itself. Secondary emissions
must be specific, well-defined, quantifiable, and impact the same general
area as the stationary source or modification that causes the secondary emissions.
Secondary emissions include emissions from any off-site support facility that
would not be constructed or increase its emissions, except as a result of
the construction or operation of the major stationary source or major modification.
Secondary emissions do not include any emissions that come directly from a
mobile source such as emissions from the tail pipe of a motor vehicle, from
a train, or from a vessel.
(33)
Significant facility--A facility that emits or has the
potential to emit a plant-wide applicability limit (PAL) pollutant in an amount
that is equal to or greater than the significant level for that PAL pollutant.
(34)
Small facility--A facility that emits or has the potential
to emit the plant-wide applicability limit (PAL) pollutant in an amount less
than the significant level for that PAL pollutant.
(35)
Stationary source--Any building, structure, facility,
or installation that emits or may emit any air pollutant subject to regulation
under 42 United States Code, §§7401
et
seq
.
(36)
Temporary clean coal technology demonstration project--A
clean coal technology demonstration project that is operated for a period
of five years or less, and that complies with the state implementation plan
and other requirements necessary to attain and maintain the national ambient
air quality standards during the project and after it is terminated.
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 January 12, 2006.
TRD-200600192
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
1.
PERMIT APPLICATION
30 TAC §116.121
STATUTORY AUTHORITY
The new section is adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The new section is also adopted
under THSC, §382.002, concerning Policy and Purpose, which establishes
the commission 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 control of the state's air; §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
and adopt rules necessary for permits issued under THSC, Chapter 382; §382.0512,
concerning Modification of Existing Facility, which establishes a modification
and its limits; §382.0513, Permit Conditions, which allows the commission
to establish and enforce permit conditions consistent with the TCAA; §382.0518,
concerning Preconstruction Permit, which requires that a permit be obtained
from the commission prior to new construction or modification of an existing
facility; and FCAA, 42 USC, §§7401
et seq
., which requires permits for construction and operation of new or
modified major stationary sources.
The new section implements THSC, §§382.002, 382.011, 382.012,
382.051, 382.0512, 382.513, and 382.0518; and FCAA, 42 USC, §§7401
§116.121.Actual to Projected Actual and Emissions Exclusion Test for Emissions Increases.
(a)
If projected actual emissions are used or emissions are
excluded from the emission increase resulting from the project, the owner
or operator shall document and maintain a record of the following information
before beginning construction, and this information must be provided as part
of the notification, certification, registration, or application submitted
to the executive director to claim or apply for state new source review authorization
for the project. If the emissions unit is an existing electric utility steam
generating unit, the owner or operator shall provide a copy of this information
to the executive director before beginning actual construction:
(1)
a description of the project;
(2)
identification of the facilities of which emissions of
a federally regulated new source review pollutant could be affected by the
project; and
(3)
a description of the applicability test used to determine
that the project is not a major modification for any pollutant, including
the baseline actual emissions, the projected actual emissions, the amount
of emissions excluded from the project emissions increase and an explanation
for why such amount was excluded, and any netting calculations, if applicable.
(b)
If projected actual emissions are used to determine the
project emission increase at a facility, the owner or operator shall monitor
the emissions of any regulated new source review pollutant that could increase
as a result of the project at that facility and calculate and maintain a record
of the annual emissions from that facility, in tons per year, on a calendar
year basis for:
(1)
a period of five years following resumption of regular
operations after the change; or
(2)
a period of ten years following resumption of regular operations
after the change if the project increases the design capacity or potential
to emit of that regulated new source review pollutant at that facility.
(c)
If the facility is an electric utility steam generating
unit, the owner or operator shall submit a report to the executive director
within 60 days after the end of each calendar year of which records must be
maintained documenting the unit's annual emissions during the calendar year
that preceded submission of the report.
(d)
If the facility is not an electric utility steam generating
unit, the owner or operator shall submit a report to the executive director
if the annual emissions from the project exceed the baseline actual emissions
by a significant amount for that pollutant, and the emissions exceed the preconstruction
projection for any facility. The report shall be submitted to the executive
director within 60 days after the end of each calendar year. The report shall
contain:
(1)
the name, address, and telephone number of the major stationary
source; and
(2)
the calculated actual annual emissions.
(e)
The owner or operator of the facility shall make the information
required to be documented and maintained by this section available for review
upon request for inspection by the executive director, local air pollution
control program, and the general public.
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 January 12, 2006.
TRD-200600193
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §116.150, §116.151
STATUTORY AUTHORITY
The amendments are adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The amendments are also adopted
under THSC, §382.002, concerning Policy and Purpose, which establishes
the commission 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 control of the state's air; §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
and adopt rules necessary for permits issued under THSC, Chapter 382; §382.0512,
concerning Modification of Existing Facility, which establishes a modification
and its limits; §382.0513, Permit Conditions, which allows the commission
to establish and enforce permit conditions consistent with the TCAA; §382.0518,
concerning Preconstruction Permit, which requires that a permit be obtained
from the commission prior to new construction or modification of an existing
facility; and FCAA, 42 USC, §§7401
et seq
., which requires permits for construction and operation of new or
modified major stationary sources.
The amendments implement THSC, §§382.002, 382.011, 382.012, 382.051,
382.0512, 382.513, and 382.0518; and FCAA, 42 USC, §§7401
§116.150.New Major Source or Major Modification in Ozone Nonattainment Areas.
(a)
This section applies to all new source review authorizations
for new construction or modification of facilities as follows:
(1)
for all applications for facilities that will be located
in any area designated as nonattainment for ozone under 42 United States Code
(USC), §§7407
et seq
. on the effective
date of this section, the issuance date of the authorization; and
(2)
for all applications for facilities that will be located
in counties for which nonattainment designation for ozone under 42 USC §§7407
(b)
The owner or operator of a proposed new major stationary
source, as defined in §116.12 of this title (relating to Nonattainment
and Prevention of Significant Deterioration Review Definitions) of volatile
organic compound (VOC) emissions or nitrogen oxides (NO
x
) emissions, or the owner or operator of an existing stationary source
of VOC or NO
x
emissions that will undergo a major
modification, as defined in §116.12 of this title with respect to VOC
or NO
x
, shall meet the requirements of subsection
(e)(1) - (4) of this section, except as provided in subsection (f) of this
section. Table I, located in the definition of major modification in §116.12
of this title, specifies the various classifications of nonattainment along
with the associated emission levels that designate a major stationary source
and significant level for those classifications.
(c)
Except as noted in subsection (f) of this section regarding
NO
x
, the
de minimis
threshold test (netting) is required for all modifications to existing
major sources of VOC or NO
x
, unless at least
one of the following conditions are met:
(1)
the proposed emissions increases associated with a project,
without regard to decreases, is less than five tons per year (tpy) of the
individual nonattainment pollutant in areas classified under Federal Clean
Air Act (FCAA), Title I, Part D, Subpart 2 (42 USC, §7511) classified
as Serious or Severe;
(2)
the proposed emissions increases associated with a project,
without regard to decreases, is less than 40 tpy of the individual nonattainment
pollutant in areas classified under FCAA, Title I, Part D, Subpart 1 (42 USC, §7502)
and for those under FCAA, Title I, Part D, Subpart 2 (42 USC, §7511)
classified as Marginal or Moderate; or
(3)
the project emissions increases are less than the significant
level stated in Table I located in the definition of major modification in §116.12
of this title and when coupled with project actual emissions decreases for
the same pollutant, summed as the project net, are less than or equal to zero
tpy.
(d)
For the Houston-Galveston-Brazoria, Dallas-Fort Worth,
and Beaumont-Port Arthur eight-hour ozone nonattainment areas, if the United
States Environmental Protection Agency promulgates rules requiring new source
review permit applications in these areas to be evaluated for nonattainment
new source review according to that area's one-hour standard classification,
except as noted in subsection (b) of this section regarding NO
x
, the
de minimis
threshold test (netting)
is required for all modifications to existing major sources of VOC or NO
(1)
the proposed emissions increases associated with a project,
without regard to decreases, is less than five tpy of the individual nonattainment
pollutant; or
(2)
the project emissions increases are less than the significant
level stated in Table I located in the definition of major modification in §116.12
of this title and when coupled with project actual emissions decreases for
the same pollutant, summed as the project net, are less than or equal to zero
tpy.
(e)
In applying the
de minimis
threshold
test, if the net emissions increases are greater than the significant levels
stated in Table I located in the definition of major modification in §116.12
of this title, the following requirements apply.
(1)
The proposed facility shall comply with the lowest achievable
emission rate (LAER) as defined in §116.12 of this title for the nonattainment
pollutants for which the facility is a new major source or major modification
except as provided in paragraph (3)(B) of this subsection and except for existing
major stationary sources that have a potential to emit (PTE) of less than
100 tpy of the applicable nonattainment pollutant. For these sources, best
available control technology (BACT) can be substituted for LAER. LAER shall
otherwise be applied to each new facility and to each existing facility at
which the net emissions increase will occur as a result of a physical change
or change in method of operation of the unit.
(2)
All major stationary sources owned or operated by the applicant
(or by any person controlling, controlled by, or under common control with
the applicant) in the state must be in compliance or on a schedule for compliance
with all applicable state and federal emission limitations and standards.
(3)
At the time the new or modified facility or facilities
commence operation, the emissions increases from the new or modified facility
or facilities must be offset. The proposed facility shall use the offset ratio
for the appropriate nonattainment classification as defined in §116.12
of this title and shown in Table I located in the definition of major modification
in §116.12 of this title. Internal offsets that are generated at the
source and that otherwise meet all creditability criteria can be applied as
follows.
(A)
Major stationary sources with a PTE of less than 100 tpy
of an applicable nonattainment pollutant are not required to undergo nonattainment
new source review under this section, if the project increases are offset
with internal offsets at a ratio of at least 1.3 to 1.
(B)
Major stationary sources with a PTE of greater than or
equal to 100 tpy of an applicable nonattainment pollutant can substitute BACT
for LAER, if the project increases are offset with internal offsets at a ratio
of at least 1.3 to 1. Internal offsets used in this manner can also be applied
to satisfy the offset requirement.
(4)
In accordance with the FCAA, the permit application must
contain an analysis of alternative sites, sizes, production processes, and
control techniques for the proposed source. The analysis must demonstrate
that the benefits of the proposed location and source configuration significantly
outweigh the environmental and social costs of that location.
(f)
For sources located in the El Paso ozone nonattainment
area as defined in §101.1 of this title (relating to Definitions), the
requirements of this section do not apply to NO
x
emissions.
§116.151.New Major Source or Major Modification in Nonattainment Area Other Than Ozone.
(a)
This section applies to applications for new construction
or modification of facilities located in a designated nonattainment area for
an air contaminant other than ozone. The owner or operator of a proposed new
or modified facility that will be a new major stationary source for that nonattainment
air contaminant, or the owner or operator of an existing major stationary
source that will undergo a major modification with respect to that nonattainment
air contaminant, shall meet the additional requirements of subsection (c)(1)
- (4) of this section. Table I located in the definition of major modification
in §116.12 of this title (relating to Nonattainment and Prevention of
Significant Deterioration Review Definitions) specifies the various classifications
of nonattainment along with the associated emission levels that designate
a major stationary source.
(b)
The
de minimis
threshold
test (netting) is required for all modifications to existing major sources
of federally regulated new source review pollutants, unless the proposed emissions
increases associated with a project, without regard to decreases, are less
than the major modification threshold for the pollutant identified in Table
I located in the definition of major modification in §116.12 of this
title.
(c)
In applying the
de minimis
threshold
test, if the net emissions increases are greater than the major modification
levels stated in Table I located in the definition of major modification in §116.12
of this title, the following requirements apply.
(1)
The proposed facility shall comply with the lowest achievable
emission rate (LAER) as defined in §116.12 of this title for the nonattainment
pollutants for which the facility is a new major source or major modification.
LAER shall be applied to each new facility and to each existing facility at
which the net emissions increase will occur as a result of a physical change
or change in method of operation of the unit.
(2)
All major stationary sources owned or operated by the applicant
(or by any person controlling, controlled by, or under common control with
the applicant) in the state shall be in compliance or on a schedule for compliance
with all applicable state and federal emission limits and standards.
(3)
At the time the new or modified facility or facilities
commence operation, the emission increases from the new or modified facility
or facilities shall be offset. The proposed facility shall use the offset
ratio for the appropriate nonattainment classification as defined in §116.12
of this title and shown in Table I located in the definition of major modification
in §116.12 of this title.
(4)
In accordance with the Federal Clean Air Act, the permit
application shall contain an analysis of alternative sites, sizes, production
processes, and control techniques for the proposed source. The analysis shall
demonstrate that the benefits of the proposed location and source configuration
significantly outweigh the environmental and social costs of that location.
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 January 12, 2006.
TRD-200600194
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §116.160
STATUTORY AUTHORITY
The amendment is adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The amendment is also adopted under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission 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 control of the state's air; §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
and adopt rules necessary for permits issued under THSC, Chapter 382; §382.0512,
concerning Modification of Existing Facility, which establishes a modification
and its limits; §382.0513, Permit Conditions, which allows the commission
to establish and enforce permit conditions consistent with the TCAA; §382.0518,
concerning Preconstruction Permit, which requires that a permit be obtained
from the commission prior to new construction or modification of an existing
facility; and FCAA, 42 USC, §§7401
et seq
., which requires permits for construction and operation of new or
modified major stationary sources.
The amendment implements THSC, §§382.002, 382.011, 382.012, 382.051,
382.0512, 382.513, and 382.0518; and FCAA, 42 USC, §§7401
§116.160.Prevention of Significant Deterioration Requirements.
(a)
Each proposed new major source or major modification in
an attainment or unclassifiable area shall comply with the requirements of
this section. The owner or operator of a proposed new or modified facility
that will be a new major stationary source for the prevention of significant
deterioration air contaminant shall meet the additional requirements of subsection
(c)(1) - (4) of this section.
(b)
The
de minimis
threshold
test (netting) is required for all modifications to existing major sources
of federally regulated new source review pollutants, unless the proposed emissions
increases associated with a project, without regard to decreases, are less
than major modification thresholds for the pollutant identified in 40 Code
of Federal Regulations (CFR) §52.21(b)(23).
(c)
In applying the
de minimis
threshold
test (netting), if the net emissions increases are greater than the major
modification levels for the pollutant identified in 40 CFR 52.21(b)(23), the
following requirements apply.
(1)
In addition to those definitions in §116.12 of this
title (relating to Nonattainment and Prevention of Significant Deterioration
Review Definitions) the following definitions from prevention of significant
deterioration of air quality regulations promulgated by the United States
Environmental Protection Agency (EPA) in 40 CFR §52.21 and the definitions
for protection of visibility and promulgated in 40 CFR §51.301 as amended
July 1, 1999, are incorporated by reference:
(A)
40 CFR §52.21(b)(13) - (15), concerning baseline concentrations,
dates, and areas;
(B)
40 CFR §52.21(b)(19), concerning innovative control
technology; and
(C)
40 CFR §52.21(b)(24) - (28), concerning federal land
manager, terrain, and Indian reservations/governing bodies.
(2)
The following requirements from prevention of significant
deterioration of air quality regulations promulgated by the EPA in 40 CFR §52.21
are hereby incorporated by reference:
(A)
40 CFR §52.21(c) - (i), concerning increments, ambient
air ceilings, restrictions on area classifications, exclusions from increment
consumption, redesignation, stack heights, and exemptions;
(B)
40 CFR §52.21(k), concerning source impact analysis;
(C)
40 CFR §52.21(m) - (p), concerning air quality analysis,
source information, additional impact analysis, and sources impacting federal
Class I areas; and
(D)
40 CFR §52.21(v), concerning innovative technology.
(3)
The term "facility" shall replace the words "emissions
unit" in the referenced sections of the CFR.
(4)
The term "executive director" shall replace the word "administrator"
in the referenced sections of the CFR except in 40 CFR §52.21(g) and
(v).
(d)
All estimates of ambient concentrations required under
this subsection shall be based on the applicable air quality models and modeling
procedures specified in the EPA Guideline on Air Quality Models, as amended,
or models and modeling procedures currently approved by the EPA for use in
the state program, and other specific provisions made in the prevention of
significant deterioration state implementation plan. If the air quality impact
model approved by the EPA or specified in the guideline is inappropriate,
the model may be modified or another model substituted on a case-by-case basis,
or a generic basis for the state program, where appropriate. Such a change
shall be subject to notice and opportunity for public hearing and written
approval of the administrator of the EPA.
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 January 12, 2006.
TRD-200600195
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §§116.180 - 116.183
STATUTORY AUTHORITY
The repeals are adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The repeals are also adopted under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission 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 control of the state's air; §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
and adopt rules necessary for permits issued under THSC, Chapter 382; §382.0512,
concerning Modification of Existing Facility, which establishes a modification
and its limits; §382.0513, Permit Conditions, which allows the commission
to establish and enforce permit conditions consistent with the TCAA; §382.0518,
concerning Preconstruction Permit, which requires that a permit be obtained
from the commission prior to new construction or modification of an existing
facility; and FCAA, 42 USC, §§7401
et seq
., which requires permits for construction and operation of new or
modified major stationary sources.
The repeals implement THSC, §§382.002, 382.011, 382.012, 382.051,
382.0512, 382.513, and 382.0518; and FCAA, 42 USC, §§7401
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 January 12, 2006.
TRD-200600196
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
1.
PLANT-WIDE APPLICABILITY LIMITS
30 TAC §§116.180, 116.182, 116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196, 116.198
STATUTORY AUTHORITY
The new sections are adopted 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 under THSC, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes of the TCAA. The new
sections are also adopted under THSC, §382.002, concerning Policy and
Purpose, which establishes the commission 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 control of the state's air; §382.051,
concerning Permitting Authority of Commission; Rules, which authorizes the
commission to issue permits and adopt rules necessary for permits issued under
THSC, Chapter 382; §382.0512, concerning Modification of Existing Facility,
which establishes a modification and its limits; §382.0513, Permit Conditions,
which allows the commission to establish and enforce permit conditions consistent
with the TCAA; §382.0518, concerning Preconstruction Permit, which requires
that a permit be obtained from the commission prior to new construction or
modification of an existing facility; and FCAA, 42 USC, §§7401
The new sections implement THSC, §§382.002, 382.011, 382.012,
382.051, 382.0512, 382.513, and 382.0518; and FCAA, 42 USC, §§7401
§116.180.Applicability.
(a)
The following requirements apply to a plant-wide applicability
limit (PAL) permit.
(1)
Only one PAL may be issued for each pollutant at an account
site.
(2)
A PAL permit may include more than one PAL.
(3)
A PAL permit may not cover facilities at more than one
source.
(4)
A PAL permit may be consolidated with a new source review
permit at the source.
(b)
The new owner of a major stationary source shall comply
with §116.110(e) of this title (relating to Applicability), provided
that all facilities covered by a PAL permit change ownership at the same time
and to the same person, or both the new owner and existing permit holder must
obtain a PAL permit alteration allocating the emission prior to the transfer
of the permit by the commission. After the sale of a facility, or facilities,
but prior to the transfer of a permit requiring a permit alteration, the original
PAL permit holder remains responsible for ensuring compliance with the existing
PAL permit and all rules and regulations of the commission.
(c)
The owner of the facility, group of facilities, or account
or the operator of the facility, group of facilities, or account that is authorized
to act for the owner is responsible for complying with this section, except
as provided by subsection (b) of this section.
§116.182.Plant-wide Applicability Limit Permit Application.
Any application for a new plant-wide applicability limit (PAL) permit
or PAL permit amendment must be completed and signed by an authorized representative.
In order to be granted a PAL permit or PAL permit amendment, the owner or
operator of the proposed facility shall submit information to the commission
that demonstrates that all of the following information is submitted:
(1)
a list of all facilities, including their registration
or permit number to be included in the PAL, their potential to emit, and the
expected maximum capacity. In addition, the owner or operator of the source
shall indicate which, if any, federal or state applicable requirements, emission
limitations, or work practices apply to each unit;
(2)
calculations of the baseline actual emissions with supporting
documentation;
(3)
the calculation procedures that the permit holder proposes
to use to convert the monitoring system data to monthly emissions and annual
emissions based on a 12-month rolling total for each month; and
(4)
the monitoring and recordkeeping proposed satisfy the requirements
of §116.186 of this title (relating to General and Special Conditions)
for each PAL.
§116.186.General and Special Conditions.
(a)
The plant-wide applicability limit (PAL) will impose an
annual emission limitation in tons per year, that is enforceable for all facilities
included in the PAL. For each month during the PAL effective period after
the first 12 months of establishing a PAL, the major stationary source owner
or operator shall demonstrate that the sum of the monthly emissions from each
facility under the PAL for the previous 12 consecutive months is less than
the PAL (a 12-month average, rolled monthly). For each month during the first
11 months from the PAL effective date, the major stationary source owner or
operator shall demonstrate that the sum of the preceding monthly emissions
from the PAL effective date for each facility under the PAL is less than the
PAL. Each PAL must include emissions of only one pollutant. The PAL must include
all emissions, including fugitive emissions, to the extent quantifiable, from
all facilities included in the PAL that emit or have the potential to emit
the PAL pollutant.
(b)
The following general conditions are applicable to every
PAL permit.
(1)
Applicability. This section does not authorize any facility
to emit air pollutants but establishes an annual emissions level below which
new and modified facilities will not be subject to federal new source review
for that pollutant.
(2)
Sampling requirements. If sampling of stacks or process
vents is required, the PAL permit holder shall contact the commission's Office
of Compliance and Enforcement prior to sampling to obtain the proper data
forms and procedures. All sampling and testing procedures must be approved
by the executive director and coordinated with the appropriate regional office
of the commission. The PAL permit holder is also responsible for providing
sampling facilities and conducting the sampling operations or contracting
with an independent sampling consultant.
(3)
Equivalency of methods. The permit holder shall demonstrate
the equivalency of emission control methods, sampling or other emission testing
methods, and monitoring methods proposed as alternatives to methods indicated
in the conditions of the PAL permit. Alternative methods must be applied for
in writing and must be reviewed and approved by the executive director prior
to their use in fulfilling any requirements of the permit.
(4)
Recordkeeping and reporting.
(A)
A copy of the PAL permit along with information and data
sufficient to demonstrate continuous compliance with the emission caps contained
in the PAL permit must be maintained in a file at the plant site and made
available at the request of personnel from the commission or any air pollution
control program having jurisdiction. For facilities that normally operate
unattended, this information must be maintained at the nearest staffed location
within Texas specified by the permit holder in the permit application. This
information must include, but is not limited to, emission cap and individual
emission limitation calculations based on a 12-month rolling basis and production
records and operating hours. Additional recordkeeping requirements may be
specified in special conditions attached to the PAL permit.
(B)
The owner or operator shall retain a copy of the PAL permit
application and any applications for revisions to the PAL, each annual certification
of compliance under §122.146 of this title (relating to Compliance Certification
Terms and Conditions), and the data relied on in certifying the compliance
for the duration of the PAL plus five years.
(C)
A semiannual report shall be submitted to the executive
director within 30 days of the end of each reporting period that contains:
(i)
the identification of owner and operator and the permit
number;
(ii)
total annual emissions (in tons per year) based on a 12-month
rolling total for each month in the reporting period;
(iii)
all data relied upon, including, but not limited to,
any quality assurance or quality control data, in calculating the monthly
and annual PAL pollutant emissions;
(iv)
a list of any facility modified or added to the major
stationary source during the preceding six-month period;
(v)
the number, duration, and cause of any deviations or monitoring
malfunctions (other than the time associated with zero and span calibration
checks), and any corrective action taken. This may be satisfied by referencing
the PAL permit number in the semiannual report for the site submitted under §122.145
of this title (relating to Reporting Terms and Conditions);
(vi)
a notification of a shutdown of any monitoring system,
whether the shutdown was permanent or temporary, the reason for the shutdown,
the anticipated date that the monitoring system will be fully operational
or replaced with another monitoring system, and whether the emissions unit
monitored by the monitoring system continued to operate, and the calculation
of the emissions of the pollutant or the number determined by method included
in the permit; and
(vii)
a signed statement by the responsible official certifying
the truth, accuracy, and completeness of the information provided in the report.
(D)
The owner or operator shall submit the results of any revalidation
test or method to the executive director within three months after completion
of such test or method.
(5)
Maintenance of emission control. The facilities covered
by the PAL permit will not be operated unless all air pollution emission capture
and abatement equipment is maintained in good working order and operating
properly during normal facility operations.
(6)
Compliance with rules. Acceptance of a PAL permit by a
permit applicant constitutes an acknowledgment and agreement that the holder
will comply with all rules and orders of the commission issued in conformity
with the Texas Clean Air Act and the conditions precedent to the granting
of the permit. If more than one state or federal rule or PAL permit condition
is applicable, the most stringent limit or condition will govern and be the
standard by which compliance must be demonstrated. Acceptance includes consent
to the entrance of commission employees and agents into the permitted premises
at reasonable times to investigate conditions relating to the emission or
concentration of air contaminants, including compliance with the PAL permit.
(7)
Effective period. A PAL is effective for ten years.
(8)
Absence of monitoring data. A source owner or operator
shall record and report maximum potential emissions without considering enforceable
emission limitations or operational restrictions for a facility during any
period of time that there is no monitoring data, unless another method for
determining emissions during such periods is specified in the PAL permit special
conditions.
(9)
Revalidation. All data used to establish the PAL pollutant
must be revalidated through performance testing or other scientifically valid
means approved by the executive director. Such testing must occur at least
once every five years after issuance of the PAL.
(10)
Renewal. If a PAL renewal application is submitted to
the executive director in accordance with §116.196 of this title (relating
to Renewal of a Plant-wide Applicability Limit Permit), the PAL shall not
expire at the end of the PAL effective period. It shall remain in effect until
a renewed PAL permit is issued by the executive director or the application
is voided.
(c)
Each PAL permit must include special conditions that satisfy
the following requirements.
(1)
The PAL monitoring system must accurately determine all
emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring
system authorized for use in the PAL permit must be based on sound science
and meet generally acceptable scientific procedures for data quality and manipulation.
Additionally, the information generated by such a system must meet minimum
legal requirements for admissibility in a judicial proceeding to enforce the
PAL permit.
(2)
The PAL monitoring system must employ one or more of the
general monitoring approaches meeting the minimum requirements as described
in subparagraphs (A) - (D) of this paragraph.
(A)
An owner or operator using mass balance calculations to
monitor PAL pollutant emissions from activities using coating or solvents
shall meet the following requirements:
(i)
provide a demonstrated means of validating the published
content of the PAL pollutant that is contained in, or created by, all materials
used in or at the facility;
(ii)
assume that the facility emits all of the PAL pollutant
that is contained in, or created by, any raw material or fuel used in or at
the facility, if it cannot otherwise be accounted for in the process; and
(iii)
where the vendor of a material or fuel that is used in
or at the facility publishes a range of pollutant content from such material,
the owner or operator shall use the highest value of the range to calculate
the PAL pollutant emissions unless the executive director determines that
there is site-specific data or a site-specific monitoring program to support
another content within the range.
(B)
An owner or operator using a continuous emission monitoring
system (CEMS) to monitor PAL pollutant emissions shall meet the following
requirements.
(i)
The CEMS must comply with applicable performance specifications
found in 40 Code of Federal Regulations Part 60, Appendix B.
(ii)
The CEMS must sample, analyze, and record data at least
every 15 minutes while the emissions unit is operating.
(C)
An owner or operator using continuous parameter monitoring
system (CPMS) or predictive emission monitoring system (PEMS) to monitor PAL
pollutant emissions shall meet the following requirements.
(i)
The CPMS or the PEMS must be based on current site-specific
data demonstrating a correlation between the monitored parameter(s) and the
PAL pollutant emissions across the range of operation of the facility.
(ii)
Each CPMS or PEMS must sample, analyze, and record data
at least every 15 minutes or at another less frequent interval approved by
the executive director, while the facility is operating.
(D)
An owner or operator using emission factors to monitor
PAL pollutant emissions shall meet the following requirements.
(i)
All emission factors must be adjusted, if appropriate,
to account for the degree of uncertainty or limitations in the factors' development.
(ii)
The facility must operate within the designated range
of use for the emission factor, if applicable.
(iii)
If technically practicable, the owner or operator of
a significant facility that relies on an emission factor to calculate PAL
pollutant emissions shall conduct validation testing to determine a site-specific
emission factor within six months of PAL permit issuance, unless the executive
director determines that testing is not required.
(E)
An alternative monitoring approach must meet the requirements
in paragraph (1) of this subsection and be approved by the executive director.
(3)
Where an owner or operator of a facility cannot demonstrate
a correlation between a monitored parameter(s) and the PAL pollutant emissions
rate at all operating points of the facility, the executive director shall:
(A)
establish default value(s) for determining compliance with
the PAL based on the highest potential emissions reasonably estimated at such
operating point(s); or
(B)
determine that operation of the facility during operating
conditions when there is no correlation between monitored parameter(s) and
the PAL pollutant emissions is a violation of the PAL.
§116.188.Plant-wide Applicability Limit.
The plant-wide applicability limit (PAL) is the sum of the baseline
actual emissions of the PAL pollutant for each existing facility at the source
to be covered. The allowable emission rate may be used for facilities that
did not exist in the baseline period. Baseline actual emissions from facilities
that were permanently shut down after the baseline period must be subtracted
from the baseline emissions rate.
(1)
An amount equal to the applicable significant level for
the PAL pollutant may be added to the baseline actual emissions when establishing
the PAL.
(2)
When establishing the PAL level for a PAL pollutant, only
one consecutive 24-month period must be used to determine the baseline actual
emissions for all existing facilities. However, a different consecutive 24-month
period may be used for each different PAL pollutant.
(3)
The executive director shall specify a reduced PAL level(s)
in the PAL permit, to become effective on the future compliance date(s) of
any applicable federal or state regulatory requirement(s).
§116.190.Federal Nonattainment and Prevention of Significant Deterioration Review.
(a)
An increase in emissions from operational or physical changes
at a facility covered by a plant-wide applicability limit (PAL) permit is
insignificant, for the purposes of federal new source review under this subchapter,
if the increase does not exceed the PAL.
(b)
At no time are emissions reductions of a PAL pollutant
that occur during the PAL effective period creditable as decreases for purposes
of offsets, unless the level of the PAL is reduced by the amount of such emissions
reductions and such reductions would be creditable in the absence of the PAL.
(c)
A physical or operational change not causing an exceedance
of a PAL is not subject to federal restrictions on relaxing enforceable emission
limitations to avoid new source review.
§116.192.Amendments and Alterations.
(a)
Any increase in a plant-wide applicability limit (PAL)
must be made through amendment. Amendment applications must also include the
information identified in §116.182 of this title (relating to Plant-wide
Applicability Limit Permit Application) for new and modified facilities contributing
to the increase in emissions so as to cause the major stationary source's
emissions to equal or exceed its PAL and are subject to the public notice
requirements under §116.194 of this title (relating to Public Notice
and Comment).
(1)
As part of this application, the major stationary source
owner or operator shall demonstrate that the sum of the baseline actual emissions
of the small facilities, plus the sum of the baseline actual emissions of
the significant and major facilities assuming application of best available
control technology (BACT) equivalent controls, plus the sum of the allowable
emissions of the new or modified facilities exceeds the PAL. The level of
control that would result from BACT equivalent controls on each significant
or major facility shall be determined by conducting a new BACT analysis at
the time the application is submitted, unless the facility is currently required
to comply with a BACT or lowest achievable emission rate (LAER) requirement
that was established within the preceding ten years. In such a case, the assumed
control level for that emissions unit shall be equal to the level of BACT
or LAER with which that emissions unit must currently comply.
(2)
The owner or operator shall obtain a federal new source
review permit for all facilities contributing to the increase in emissions
so as to cause the major stationary source's emissions to equal or exceed
its PAL, regardless of the magnitude of the emissions increase. These facilities
shall comply with any emissions requirements resulting from the major new
source review process.
(3)
The PAL permit shall require that the increased PAL level
be effective on the day any emission unit that is part of the PAL major modification
becomes operational and begins to emit the PAL pollutant.
(4)
The new PAL shall be the sum of the allowable emissions
for each modified or new facility, plus the sum of the baseline actual emissions
of the significant and major emissions units after the application of BACT
equivalent controls as identified in paragraph (1) of this subsection, plus
the sum of the baseline actual emissions of the small emissions units.
(b)
Changes to PAL permits that do not require the PAL to be
increased must be completed through permit alteration. Unless allowed in the
PAL permit special conditions, the permit holder shall submit an alteration
request prior to start of construction for physical modifications to facilities
or installation of new facilities under the PAL. Approval must be received
from the executive director prior to start of operation of the facilities
if the emissions from the new or modified facilities may exceed 100 tons per
year.
§116.194.Public Notice and Comment.
Applications for initial issuance of plant-wide applicability limit
permits under this division are subject only to §§39.401, 39.405,
39.407, 39.409, 39.411, 39.419, 39.420, and 39.601 - 39.605 of this title
(relating to Purpose; General Notice Provisions; Mailing Lists; Deadline for
Public Comment, and for Requests for Reconsideration, Contested Case Hearing,
or Notice and Comment Hearing; Text of Public Notice; Notice of Application
and Preliminary Decision; Transmittal of the Executive Director's Response
to Comments and Decision; Applicability; Mailed Notice; Newspaper Notice;
Sign-Posting; and Notice to Affected Agencies, respectively), except that
any reference to requests for reconsideration or contested case hearings in §39.409
or §39.411 of this title shall not apply. Nothing in this section exempts
an applicant for a new source review permit from the requirements of Subchapter
B of this chapter (relating to New Source Review Permits).
§116.196.Renewal of a Plant-wide Applicability Limit Permit.
(a)
A stationary source owner or operator shall submit a timely
application to the executive director to request renewal of a plant-wide applicability
limit (PAL) permit. A timely application is one that is submitted at least
six months prior to, but not earlier than 18 months from, the date of permit
expiration. If the owner or operator of a stationary source submits a complete
application to renew the PAL permit within this time period, then the permit
will continue to be effective until the revised permit with the renewed PAL
is issued or the PAL permit is voided.
(b)
All PAL permits issued prior to the effective date of this
section are subject to the renewal requirements under this section. These
permits must be renewed by December 31, 2006, or within the time frame specified
in subsection (a) of this section, whichever is later.
(c)
The following information must be submitted with a PAL
renewal application:
(1)
a proposed PAL level;
(2)
information as identified in §116.182(1) of this title
(relating to Plant-wide Applicability Limit Permit Application); and
(3)
any other information the owner or operator wants the executive
director to consider in determining the appropriate level for renewing the
PAL.
(d)
The proposed PAL level and a written rationale for the
proposed PAL level are subject to the public notice requirements in §116.194
of this title (relating to Public Notice and Comment). During such public
review, any person may propose a PAL level for the source for consideration
by the executive director.
(e)
The renewed PAL shall not exceed the potential to emit
for the source and shall not be set at a level higher than the current PAL,
unless the PAL is being amended in accordance with §116.192(a) of this
title (relating to Amendments and Alterations) concurrently with the renewal.
The executive director may adjust the renewed PAL in accordance with the following.
.
(1)
If the emissions level calculated in accordance with §116.188
of this title (relating to Plant-wide Applicability Limit) is equal to or
greater than 80% of the PAL level, the PAL may be renewed at the same level.
(2)
If the emissions level calculated in accordance with §116.188
of this title is less than 80% of the PAL level, the executive director may
set the PAL at a level that is determined to be more representative of the
source's baseline actual emissions, or that is determined to be more appropriate
considering air quality needs, advances in control technology, anticipated
economic growth in the area, desire to reward or encourage the source's voluntary
emissions reductions, or other factors as specifically identified by the executive
director in written rationale.
(f)
If the compliance date for a state or federal requirement
that applies to the PAL source occurs during the PAL effective period, and
if the executive director has not already adjusted for such requirement, the
PAL shall be adjusted at the time of PAL permit renewal or federal operating
permit renewal, whichever occurs first.
§116.198.Expiration or Voidance.
(a)
A plant-wide applicability limit (PAL) permit shall expire
ten years after the date of issuance if the renewal application is not submitted
in accordance with §116.196(a) of this title (relating to Renewal of
a Plant-wide Applicability Limit Permit).
(b)
Owners or operators of major stationary sources who decide
not to renew their PAL will, within the time frame specified for PAL renewal
applications in §116.196(a) of this title, submit a proposed allowable
emission limitation for each facility (or each group of facilities, if such
a distribution is more appropriate as decided by the executive director) by
distributing the PAL allowable emissions for the major stationary source among
each of the facilities that existed under the PAL. If the PAL had not yet
been adjusted for an applicable requirement that became effective during the
PAL effective period, the distribution shall be made as if the PAL had been
adjusted.
(c)
The executive director shall decide whether and how the
PAL allowable emissions will be distributed and issue a revised permit incorporating
allowable limits for each facility, or each group of facilities, as the executive
director determines is appropriate. Each facility shall comply with the allowable
emission limitation on a 12-month rolling basis. The executive director may
approve the use of monitoring systems (source testing, emission factors, etc.)
other than a continuous emission monitoring system, continuous emission rate
monitoring system, predictive emission monitoring system, or continuous parameter
monitoring system to demonstrate compliance with the allowable emission limitation.
(1)
Until the executive director issues the revised permit
incorporating allowable limits for each facility, or each group of facilities,
the source shall continue to comply with a source-wide, multi-unit emissions
cap equivalent to the level of the PAL emission limitation.
(2)
Any physical change or change in the method of operation
at the major stationary source will be subject to federal new source review
requirements if the change meets the definition of major modification in §116.12
of this title (relating to Nonattainment and Prevention of Significant Deterioration
Definitions).
(3)
The major stationary source owner or operator shall continue
to comply with any state or federal applicable requirements that applied during
the PAL effective period.
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 January 12, 2006.
TRD-200600197
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §§116.400, 116.402, 116.404, 116.406
STATUTORY AUTHORITY
The new sections are adopted 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 under THSC, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes of the TCAA. The new
sections are also adopted under THSC, §382.002, concerning Policy and
Purpose, which establishes the commission 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 control of the state's air; §382.051,
concerning Permitting Authority of Commission; Rules, which authorizes the
commission to issue permits and adopt rules necessary for permits issued under
THSC, Chapter 382; §382.0512, concerning Modification of Existing Facility,
which establishes a modification and its limits; §382.0513, Permit Conditions,
which allows the commission to establish and enforce permit conditions consistent
with the TCAA; §382.0518, concerning Preconstruction Permit, which requires
that a permit be obtained from the commission prior to new construction or
modification of an existing facility; and FCAA, 42 USC, §§7401
The new sections implement THSC, §§382.002, 382.011, 382.012,
382.051, and 382.0518.
§116.400.Applicability.
(a)
The provisions of this subchapter implement Federal Clean
Air Act (FCAA), §112(g), Modifications, and 40 Code of Federal Regulations
(CFR) Part 63, Hazardous Air Pollutants: Regulations Governing Constructed
or Reconstructed Major Sources, Subpart B, Requirements for Control Technology,
as amended December 27, 1996. Affected sources (as defined in §116.15(1)
of this title (relating to Section 112(g) Definitions)) subject to this subchapter
are those sources for which the United States Environmental Protection Agency
has not promulgated a maximum available control technology (MACT) standard
under 40 CFR Part 63. For purposes of this subchapter, the following terms
apply.
(1)
Construct a major source--As follows.
(A)
To fabricate, erect, or install at any green field site
a stationary source or group of stationary sources that are located within
a contiguous area and under common control and that emit or have the potential
to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons
per year of any combination of HAPs;
(B)
to fabricate, erect, or install at any developed site a
new process or production unit that in and of itself emits or has the potential
to emit ten tons per year of any HAP or 25 tons per year of any combination
of HAPs, unless the process or production unit satisfies clauses (i) - (vi)
of this subparagraph:
(i)
all HAPs emitted by the process or production unit that
would otherwise be controlled under the requirements of this subchapter will
be controlled by emission control equipment that was previously installed
at the same site as the process or production unit;
(ii)
either of the following regarding control of HAP emissions:
(I)
the executive director has determined within a period of
five years prior to the fabrication, erection, or installation of the process
or production unit that the existing emission control equipment represented
best available control technology (BACT), lowest achievable emission rate
(LAER) under 40 CFR Part 51 or Part 52, toxics-best available control technology
(T-BACT), or MACT based on state air toxic rules for the category of pollutants
that includes those HAPs to be emitted by the process or production unit;
or
(II)
the executive director determines that the control of
HAP emissions provided by the existing equipment will be equivalent to that
level of control currently achieved by other similar sources using a level
of control equivalent to current BACT, LAER, T-BACT, or state air toxic rule
MACT determination;
(iii)
the executive director determines that the percent control
efficiency for emissions of HAP from all sources to be controlled by the existing
control equipment will be equivalent to the percent control efficiency provided
by the control equipment prior to the inclusion of the new process or production
unit;
(iv)
the executive director has provided notice and an opportunity
for public comment concerning the determination that criteria in clauses (i)
- (iii) of this subparagraph apply and concerning the continued adequacy of
any prior LAER, BACT, T-BACT, or state air toxic rule MACT determination;
(v)
if any commenter has asserted that a prior LAER, BACT,
T-BACT, or state air toxic rule MACT determination is no longer adequate,
the executive director has determined that the level of control required by
that prior determination remains adequate; and
(vi)
any emission limitations, work practice requirements,
or other terms and conditions upon which the determinations in clauses (i)
- (v) of this subparagraph are predicated will be construed by the executive
director as applicable requirements under FCAA, §504(a), and either have
been incorporated into any existing permit issued under Chapter 122 of this
title (relating to Federal Operating Permits) for the affected source (as
defined in §116.15(1) of this title) or will be incorporated into such
permit upon issuance.
(2)
Reconstruct a major source--The replacement of components
at an existing process or production unit that in and of itself emits or has
the potential to emit ten tons per year of any HAP or 25 tons per year of
any combination of HAP, whenever:
(A)
the fixed capital cost of the new components exceeds 50%
of the fixed capital cost that would be required to construct a comparable
process or production unit; and
(B)
it is technically and economically feasible for the reconstructed
major source to meet the applicable MACT emission limitation for new sources
established under this subchapter.
(b)
The requirements of this subchapter apply to an owner or
operator of an affected source (as defined in §116.15(1) of this title)
that constructs or reconstructs, unless the affected source in question has
been specifically regulated or exempted from regulation under a standard issued
under FCAA, §112(d), (h), or (j) and incorporated in another subpart
of 40 CFR Part 63, or the owner or operator of such affected source has received
all necessary air quality permits for such construction or reconstruction
project.
(c)
Affected sources (as defined in §116.15(1) of this
title) subject to the requirements of this subchapter are not eligible to
use a standard permit under Subchapter F of this chapter (relating to Standard
Permits) unless the terms and conditions of the specific standard permit meet
the requirements of this subchapter.
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 January 12, 2006.
TRD-200600198
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §116.410
STATUTORY AUTHORITY
The repeal is adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The repeal is also adopted under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission 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; and §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the control of the state's air.
The repeal implements THSC, §§382.002, 382.011, and 382.012.
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 January 12, 2006.
TRD-200600199
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §116.610, §116.617
STATUTORY AUTHORITY
The amendment and new section are adopted 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 under THSC, §382.017, concerning Rules, which authorizes the commission
to adopt rules consistent with the policy and purposes of the TCAA. The amendment
and new section are also adopted under THSC, §382.002, concerning Policy
and Purpose, which establishes the commission 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 control of the state's air; §382.051,
concerning Permitting Authority of Commission; Rules, which authorizes the
commission to issue permits and adopt rules necessary for permits issued under
THSC, Chapter 382, and to issue a standard permit for similar facilities; §382.0512,
concerning Modification of Existing Facility, which establishes a modification
and its limits; §382.0513, Permit Conditions, which allows the commission
to establish and enforce permit conditions consistent with the TCAA; §382.0518,
concerning Preconstruction Permit, which requires that a permit be obtained
from the commission prior to new construction or modification of an existing
facility; and §382.05195, concerning Standard Permit, which authorizes
the commission to issue a standard permit for new or existing similar facilities
if the standard permit is enforceable, and the commission can adequately monitor
compliance with the terms of the standard permit; and FCAA, 42 USC, §§7401
The amendment and new section implement THSC, §§382.002, 382.011,
382.012, 382.051, 382.0512, 382.513, 382.0518, and 382.05195; and FCAA, 42
USC, §§7401
et seq
.
§116.610.Applicability.
(a)
Under the Texas Clean Air Act, §382.051, a project
that meets the requirements for a standard permit listed in this subchapter
or issued by the commission is hereby entitled to the standard permit, provided
the following conditions listed in this section are met. For the purposes
of this subchapter, project means the construction or modification of a facility
or a group of facilities submitted under the same registration.
(1)
Any project that results in a net increase in emissions
of air contaminants from the project other than carbon dioxide, water, nitrogen,
methane, ethane, hydrogen, oxygen, or those for which a national ambient air
quality standard has been established must meet the emission limitations of §106.261
of this title (relating to Facilities (Emission Limitations), unless otherwise
specified by a particular standard permit.
(2)
Construction or operation of the project must be commenced
prior to the effective date of a revision to this subchapter under which the
project would no longer meet the requirements for a standard permit.
(3)
The proposed project must comply with the applicable provisions
of the Federal Clean Air Act (FCAA), §111 (concerning New Source Performance
Standards) as listed under 40 Code of Federal Regulations (CFR) Part 60, promulgated
by the United States Environmental Protection Agency (EPA).
(4)
The proposed project must comply with the applicable provisions
of FCAA, §112 (concerning Hazardous Air Pollutants) as listed under 40
CFR Part 61, promulgated by the EPA.
(5)
The proposed project must comply with the applicable maximum
achievable control technology standards as listed under 40 CFR Part 63, promulgated
by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter
C of this title (relating to National Emissions Standards for Hazardous Air
Pollutants for Source Categories (FCAA, §112, 40 CFR Part 63)).
(6)
If subject to Chapter 101, Subchapter H, Division 3 of
this title (relating to Mass Emissions Cap and Trade Program) the proposed
facility, group of facilities, or account must obtain allocations to operate.
(b)
Any project that constitutes a new major stationary source
or major modification as defined in §116.12 of this title (relating to
Nonattainment and Prevention of Significant Deterioration Review Definitions)
is subject to the requirements of §116.110 of this title (relating to
Applicability) rather than this subchapter.
(c)
Persons may not circumvent by artificial limitations the
requirements of §116.110 of this title.
(d)
Any project involving a proposed affected source (as defined
in §116.15(1) of this title (relating to Section 112(g) Definitions))
shall comply with all applicable requirements under Subchapter E of this chapter
(relating to Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)). Affected
sources subject to Subchapter E of this chapter may use a standard permit
under this subchapter only if the terms and conditions of the specific standard
permit meet the requirements of Subchapter E of this chapter.
§116.617.State Pollution Control Project Standard Permit.
(a)
Scope and applicability.
(1)
This standard permit applies to pollution control projects
undertaken voluntarily or as required by any governmental standard, that reduce
or maintain currently authorized emission rates for facilities authorized
by a permit, standard permit, or permit by rule.
(2)
The project may include:
(A)
the installation or replacement of emissions control equipment;
(B)
the implementation or change to control techniques; or
(C)
the substitution of compounds used in manufacturing processes.
(3)
This standard permit must not be used to authorize the
installation of emission control equipment or the implementation of a control
technique that:
(A)
constitutes the complete replacement of an existing production
facility or reconstruction of a production facility as defined in 40 Code
of Federal Regulations §60.15(b)(1) and (c); or
(B)
the executive director determines there are health effects
concerns or the potential to exceed a national ambient air quality standard
criteria pollutant or contaminant that results from an increase in emissions
of any air contaminant until those concerns are addressed by the registrant
to the satisfaction of the executive director; or
(C)
returns a facility or group of facilities to compliance
with an existing authorization or permit unless authorized by the executive
director.
(4)
Only new or modified pollution control projects must meet
the conditions of this standard permit. All previous standard permit registrations
under this section that were authorized prior to the effective date of this
rule must include the increases and decreases in emissions resulting from
those projects in any future netting calculation and all other conditions
must be met upon the ten-year anniversary and renewal of the original registration,
or until administratively incorporated into the facilities' permit, if applicable.
(b)
General requirements.
(1)
Any claim under this standard permit must comply with all
applicable conditions of:
(A)
§116.604(1) and (2) of this title (relating to Duration
and Renewal of Registrations to Use Standard Permits);
(B)
§116.605(d)(1) and (2) of this title (relating to
Standard Permit Amendment and Revocation);
(C)
§116.610 of this title (relating to Applicability);
(D)
§116.611 of this title (relating to Registration to
Use a Standard Permit);
(E)
§116.614 of this title (relating to Standard Permit
Fees); and
(F)
§116.615 of this title (relating to General Conditions).
(2)
Construction or implementation of the pollution control
project must begin within 18 months of receiving written acceptance of the
registration from the executive director, with one 18-month extension available,
and must comply with §116.115(b)(2) and §116.120 of this title (relating
to General and Special Conditions and Voiding of Permits). Any changes to
allowable emission rates authorized by this section become effective when
the project is complete and operation or implementation begins.
(3)
The emissions limitations of §116.610(a)(1) of this
title do not apply to this standard permit.
(4)
Predictable maintenance, startup, and shutdown emissions
directly associated with the pollution control projects must be included in
the representations of the registration application.
(5)
Any increases in actual or allowable emission rates or
any increase in production capacity authorized by this section (including
increases associated with recovering lost production capacity) must occur
solely as a result of the project as represented in the registration application.
Any increases of production associated with a pollution control project must
not be utilized until an additional authorization is obtained. This paragraph
is not intended to limit the owner or operator's ability to recover lost capacity
caused by a derate, which may be recovered and used without any additional
authorization.
(c)
Replacement projects.
(1)
The replacement of emissions control equipment or control
technique under this standard permit is not limited to the method of control
currently in place, provided that the control or technique is at least as
effective as the current authorized method and all other requirements of this
standard permit are met.
(2)
The maintenance, startup, and shutdown emissions may be
increased above currently authorized levels if the increase is necessary to
implement the replacement project and maintenance, startup, and shutdown emissions
were authorized for the existing control equipment or technique.
(3)
Equipment installed under this section is subject to all
applicable testing and recordkeeping requirements of the original control
authorization. Alternate, equivalent monitoring, or records may be proposed
by the applicant for review and approval of the executive director.
(d)
Registration requirements.
(1)
A registration must be submitted in accordance with the
following.
(A)
If there are no increases in authorized emissions of any
air contaminant resulting from a replacement pollution control project, a
registration must be submitted no later than 30 days after construction or
implementation begins and the registration must be accompanied by a $900 fee.
(B)
If a new control device or technique is authorized or if
there are increases in authorized emissions of any air contaminant resulting
from the pollution control project, a registration must be submitted no later
than 30 days prior to construction or implementation. The registration must
be accompanied by a $900 fee. Construction or implementation may begin only
after:
(i)
no written response has been received from the executive
director within 30 calendar days of receipt by the Texas Commission on Environmental
Quality (TCEQ); or
(ii)
written acceptance of the pollution control project has
been issued by the executive director.
(C)
If there are any changes in representations to a previously
authorized pollution control project standard permit for which there are no
increases in authorized emissions of any air contaminant, a notification or
letter must be submitted no later than 30 days after construction or implementation
of the change begins. No fee applies and no response will be sent from the
executive director.
(D)
If there are any changes in representations to a previously
authorized pollution control project standard permit that also increase authorized
emissions of any air contaminant resulting from the pollution control project,
a registration alteration must be submitted no later than 30 days prior to
the start of construction or implementation of the change. The registration
must be accompanied by a $450 fee, unless received within 180 days of the
original registration approval. Construction or implementation may begin only
after:
(i)
no written response has been received from the executive
director within 30 calendar days of receipt by the TCEQ; or
(ii)
written acceptance of the pollution control project has
been issued by the executive director.
(2)
The registration must include the following:
(A)
a description of process units affected by the project;
(B)
a description of the project;
(C)
identification of existing permits or registrations affected
by the project;
(D)
quantification and basis of increases and/or decreases
associated with the project, including identification of affected existing
or proposed emission points, all air contaminants, and hourly and annual emissions
rates;
(E)
a description of proposed monitoring and recordkeeping
that will demonstrate that the project decreases or maintains emission rates
as represented; and
(F)
a description of how the standard permit will be administratively
incorporated into the existing permit(s).
(e)
Operational requirements. Upon installation of the pollution
control project, the owner or operator shall comply with the requirements
of paragraphs (1) and (2) of this subsection.
(1)
General duty. The owner or operator must operate the pollution
control project in a manner consistent with good industry and engineering
practices and in such a way as to minimize emissions of collateral pollutants,
within the physical configuration and operational standards usually associated
with the emissions control device, strategy, or technique.
(2)
Recordkeeping. The owner or operator must maintain copies
on site of monitoring or other emission records to prove that the pollution
control project is operated consistent with the requirements in paragraph
(1) of this subsection, and the conditions of this standard permit.
(f)
Incorporation of the standard permit into the facility
authorization.
(1)
Any new facilities or changes in method of control or technique
authorized by this standard permit instead of a permit amendment under §116.110
of this title (relating to Applicability) at a previously permitted or standard
permitted facility must be incorporated into that facility's permit when the
permit is amended or renewed.
(2)
All increases in previously authorized emissions, new facilities,
or changes in method of control or technique authorized by this standard permit
for facilities previously authorized by a permit by rule must comply with §106.4
of this title (relating to Requirements for Permitting by Rule), except §106.4(a)(1)
of this title, and §106.8 of this title (relating to Recordkeeping).
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 January 12, 2006.
TRD-200600200
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §116.617
STATUTORY AUTHORITY
The repeal is adopted 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 under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The repeal is also proposed under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission 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 control of the state's air; and §382.051, concerning Permitting
Authority of Commission; Rules, which authorizes the commission to issue permits
and adopt rules necessary for permits issued under THSC, Chapter 382.
The repeal implements THSC, §§382.002, 382.011, 382.012, and
382.051.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 12, 2006.
TRD-200600201
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
30 TAC §116.1200
STATUTORY AUTHORITY
The new section is adopted 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; §5.515, Emergency Order
Because of Catastrophe, which authorizes the commission to order immediate
action necessitated by catastrophe; §5.516, Emergency order Under Section
401.056, Health and Safety Code, which authorizes the commission to issue
an emergency order under Section 401.056, Health and Safety Code; and under
THSC, §382.017, concerning Rules, which authorizes the commission to
adopt rules consistent with the policy and purposes of the TCAA. The new section
is also adopted under THSC, §382.002, concerning Policy and Purpose,
which establishes the commission 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 control of the state's air; and §382.051,
concerning Permitting Authority of Commission; Rules, which authorizes the
commission to issue permits and adopt rules necessary for permits issued under
THSC.
The new section implements TWC, §5.515 and §5.516, and THSC, §§382.002,
382.011, 382.012, and 382.051.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 12, 2006.
TRD-200600202
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 239-5017
The Texas Commission on Environmental Quality (commission or TCEQ)
adopts the amendments to §§337.3, 337.11, 337.13 - 337.15, 337.20,
337.22, 337.30, 337.31, 337.61, and 337.62
without
changes
to the proposed text as published in the October 14, 2005,
issue of the
Texas Register
(30 TexReg 6571).
The adopted amendments will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the adopted rules is to implement House Bill (HB) 2376 and
Senate Bill (SB) 444, 79th Legislature, 2005. Both of these bills revise statutes
relating to the dry cleaner environmental response program created by the
78th Legislature, 2003, and codified in Texas Health and Safety Code (THSC),
Chapter 374. HB 2376 amends THSC, §§374.001, 374.004, 374.051 -
374.054, 374.101 - 374.104, 374.151, 374.154, 374.202, 374.203, and 374.251
- 374.253 and Texas Water Code (TWC), §7.0525, and repeals THSC, §§374.001(1),
374.052(c), 374.105, 374.156, and 374.201. HB 2376 includes provisions regarding
secondary containment requirements for chlorinated dry cleaning solvent; amended
annual registration fees and assessment calculations; the involvement of the
Texas comptroller of public accounts to verify certain registration information;
an extended deadline for the designation of nonparticipating dry cleaning
facilities and drop stations; and solvent distributors retaining 1% of the
fees collected if the distributor pays the fees on time to the commission.
SB 444 amends THSC, §374.104. SB 444 extends the deadline for the
designation of nonparticipating dry cleaning facilities and drop stations
and allows registration fee credits for the owners of certain dry cleaning
facilities that do not participate in the Dry Cleaning Facility Release Fund.
The bill also specifies that for changes mandated by this bill, the commission
shall adopt rules by February 28, 2006.
SECTION BY SECTION DISCUSSION
The commission adopts amendments to Chapter 337, Dry Cleaner Environmental
Response, to establish the procedures to administer and enforce HB 2376 and
SB 444.
Throughout this rulemaking package, minor administrative changes are made
to be consistent with Texas Register requirements and other agency rules for
clarity and for better readability.
The commission adopts an amendment to §337.3, Definitions, which adds
the language "a dry cleaning unit" to the definition of dry cleaning machine.
The additional phrase is necessary to further clarify the meaning of the term,
reduce confusion, and to match the usage in THSC, Chapter 374. The language
"as that subsection existed from September 1, 2003, until August 31, 2005"
has been added to the definition of participating non-perchloroethylene user
registration certificate. This certificate was issued under THSC, §374.103(b)(1),
which was deleted from the statute by HB 2376.
The commission adopts an amendment to §337.11, Dry Cleaner Registration
Certificates, which includes the procedures related to registration certificates
for dry cleaning facilities and dry cleaning drop stations, including obtaining,
renewing, and displaying a certificate, as well as the process for revocation
or denial of a certificate. Dry cleaner registration certificates are necessary
to receive delivery of dry cleaning solvents. This section clarifies that
a registration must be administratively complete before a certificate will
be issued and further defines an administratively complete registration. It
further clarifies that upon determination that a submitted registration is
administratively complete, the executive director will issue a registration
certificate as long as there is no reason to deny the registration certificate
under §337.11(f). The redundant opening phrase, "Issuance of a registration
certificate." has been stricken from §337.11(c). "Chapter 37 of this
title (relating to Financial Assurance)" has been removed from §337.11(c)
in accordance with HB 2376, §19, repealing THSC, §374.105. Commission
review was added to enable the owner to appeal the executive director's determination
to revoke or deny a certificate. The appeal must be in writing and filed with
the commission's Office of the Chief Clerk no later than 23 days after the
date the agency mails the determination to revoke or deny a certificate. This
section was added due to changes to THSC, §374.251, required by HB 2376.
The commission adopts an amendment to §337.13, Distributor Registration
Certificate, which includes the procedures related to registration certificates
for distributors, including obtaining and displaying a certificate, as well
as the process for revocation or denial of a certificate. The certificate
is necessary for the delivery of dry cleaning solvents and makes it easier
for a dry cleaner to determine if a distributor is registered with the agency.
This is important because, under these rules, dry cleaners are prohibited
from purchasing solvent from a distributor that is not registered with the
agency. A commission review was added to enable the distributor to appeal
the executive director's determination to revoke or deny a certificate. The
appeal must be in writing and filed with the commission's Office of the Chief
Clerk no later than 23 days after the date the agency mails the determination
to revoke or deny a certificate. This section was added due to changes to
THSC, §374.251, required by HB 2376.
The commission adopts an amendment to §337.14, Registration Fees,
which includes the procedures and requirements for owners of operating dry
cleaning facilities and dry cleaning drop stations to pay the registration
fees required by THSC, §374.102. Because the registration fee structure
changes effective September 1, 2005, separate identification for registration
fees payable for operations conducted prior to September 1, 2005, and fees
to be assessed after September 1, 2005, has been added to the rule. Subsequent
paragraphs have been renumbered accordingly.
The commission adopts an amendment to §337.15, Solvent Fees, which
includes the procedures and requirements for payment and collection of the
dry cleaning solvent fees required by THSC, §374.103. This section includes
the entities exempt from paying the solvent fees, reporting requirements for
distributors, specifications on payment of collected fees to the agency, and
provisions governing late payments. A dry cleaning drop station is a retail
commercial establishment, the primary business of which is to act as a collection
point for the drop-off and pickup of garments or other fabrics that are sent
to a dry cleaning facility for processing. Exemptions from solvent fees have
been extended to include drop stations for which the owner has submitted the
appropriate affidavit to the executive director and received a non-perchloroethylene
user registration certificate. Exemptions from solvent fees have been clarified
to specify an owner to whom the executive director has issued a participating
non-perchloroethylene user registration certificate. A provision under THSC, §374.103(a)(1)
allows the distributor of solvents to withhold 1% of the amount of the fee
imposed by §337.15(a) for the distributor's administrative expenses if
the distributor pays the remaining amount to the commission no later than
the date prescribed by the commission. The distributor must submit a report
specifying the total amount of fees collected by the distributor for the period,
the amount due to the distributor under the provisions, if any, and the total
amount to be remitted to the commission. The actual due dates for reports
and fees have been itemized: the report and payment for the period of September
1 - November 30 must be received by the agency by December 20; the report
and payment for the period of December 1 - February 28/29 must be received
by the agency by March 20; the report and payment for the period of March
1 - May 31 must be received by the agency by June 20; and the report and payment
for the period of June 1 - August 31 must be received by the agency by September
20. This rule also specifies that the fees collected by the distributor are
held in a trust for the agency and are not the property of the distributor
and are not to be used by the distributor until the date that the distributor
remits the amount due to the commission. Distributors that fail to pay their
quarterly solvent fees when due forfeit any right or claim to withhold a portion
of collected fees for administrative expenses. Subsequent paragraphs have
been renumbered accordingly.
The commission adopts an amendment to §337.20, Performance Standards,
which includes the performance standards that apply to dry cleaning facilities,
including the dates by which owners must be in compliance. Section 337.20(a)
has been amended to clarify that performance standards apply to all dry cleaning
facilities, including those that have a nonparticipating non-perchloroethylene
user certificate. In addition, the words "and dry cleaning drop stations"
have been removed from §337.20(a) because performance standards apply
only to dry cleaning facilities, not drop stations. Section 337.20(b), compliance
deadlines, has been added to specify that required compliance extends to owners
of all operating dry cleaning facilities unless otherwise specifically stated.
It further states that owners of all new dry cleaning facilities shall construct
and operate facilities in compliance with this section. Subsequent paragraphs
have been renumbered accordingly. Section 337.20(e)(2) has been inserted to
include the procedures and requirements for compliance deadlines and specifies
the exemption. The exemption includes dry cleaning facilities in operation
on or before January 1, 2004, that have gross annual receipts of $150,000
or less. These facilities have until January 1, 2015, to comply. Further stated,
if before January 1, 2015, a dry cleaning facility begins to have gross annual
receipts greater than $150,000, the dry cleaning facility must meet the requirements
of compliance deadlines by August 1 of the year following the time the facility
exceeded $150,000 in annual gross receipts. Subsequent paragraphs have been
renumbered accordingly. These amendments are necessary to comply with THSC,
Chapter 374.
The commission adopts an amendment to §337.22, Variances and Alternative
Procedures, which includes the procedures for obtaining a variance from the
requirements of the dry cleaning rules in this subchapter, as well as recordkeeping
requirements related to a variance that is granted. Having the option of requesting
a variance to the performance standards provides flexibility in applicable
situations while still addressing environmental concerns. The term "the owner
of a dry cleaning facility" has been stricken and replaced with "a person"
in §337.22(a) and the term "owner" has been stricken and replaced with
"person requesting the variance" in §337.22(b) to allow flexibility in
the approval of emerging technologies. Section 337.22(c) has been changed
to clarify that any request to the executive director for approval of a variance
must be in writing, signed and dated by the person requesting the variance,
and accompanied by specified documentation. The substance of the subsection
has not been impacted, but reorganized for clarity of reading.
The commission adopts an amendment to §337.30, Prioritization of Sites,
which includes the provisions relating to the prioritization of dry cleaning
sites that require corrective action. A site will only be eligible for prioritization
if it has been ranked with the dry cleaning facility ranking system. Under
THSC, §374.051(b)(3), criteria for prioritization is required to be in
the rule. The term "facility" has been replaced with "site" for consistency
and clarity in §337.30(a)(1) and (b)(1).
The commission adopts an amendment to §337.31, Ranking of Sites, which
includes the procedures for the ranking of dry cleaning facilities. The ranking
system is a methodology designed to determine a numerical score for a facility
based on various factors that may impact human health or the environment.
This section includes the information required to be contained in the application
for ranking package as well as who may apply for a site to be ranked under
THSC, §374.154(b). The term "facility" has been replaced with "site"
in §337.31(a) and subsection (a)(1) and the term "facilities" has been
replaced with "sites" in §337.31(a)(2) for consistency and clarity.
The commission adopts the new title of Subchapter G, Non-Perchloroethylene
Users, Facilities, and Drop Stations, in accordance with HB 2376 by adding
drop stations.
The commission adopts an amendment to §337.61, Participating Non-Perchloroethylene
User Registration Certificate, which states that to obtain this certificate
the owner must meet requirements of THSC, §374.104 and swear in an affidavit
approved by the executive director. After September 1, 2005, a participating
non-perchloroethylene registration certificate will not be available unless
the owner has already obtained this certificate. For clarity, the subsection
stating requirements of the affidavit is proposed to be reformatted, removing §337.61(b)
altogether. Section 337.61(1) specifies that the owner swears that perchloroethylene
has never been used or that the owner allowed the use of perchloroethylene
at any dry cleaning facility or drop station in the state. Section 337.61(2)
specifies that perchloroethylene must never have been used at the location
to which the nonparticipating non-perchloroethylene user registration certificate
would apply. Section 337.61(3) specifies that the owner will not now or ever
use perchloroethylene at the location to which the nonparticipating non-perchloroethylene
user registration certificate would apply. Section 337.61(4) specifies that
the owner was the owner of the dry cleaning facility or dry cleaning drop
station on January 1, 2004, and was eligible to file the option not to participate
on or before January 1, 2004, and inadvertently failed to file before that
date. The commission also adopts the new title of §337.61, Nonparticipating
Non-Perchloroethylene User Registration Certificate. These amendments are
necessary to comply with THSC, Chapter 374.
The commission adopts an amendment to §337.62, Nonparticipating Non-Perchloroethylene
Facilities, which includes requirements that apply to such a facility, including
disclosure requirements for any sale of the facility. This section is amended
to include the requirements set forth in THSC, §374.104 by adding "or
drop station" after "facility" throughout the section and removing "the owner
of the" from §337.62(a)(1) so that the section now states, "the dry cleaning
facility or drop station is not eligible for any expenditures of money from
the Dry Cleaning Facility Release Fund." The commission adopts the new title
of §337.62, Nonparticipating Non-Perchloroethylene Facilities and Drop
Stations.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rules in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
this rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in that statute.
Although the intent of the adopted rules is to protect the environment or
reduce risks to human health from environmental exposure, the adopted rules
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.
Furthermore, even if the adopted rules did meet the definition of a major
environmental rule, Texas Government Code, §2001.0225 only applies to
a major environmental rule if the result of the rule 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.
These adopted rules do not meet any of the four applicability requirements
and thus are not subject to the regulatory analysis provisions of Texas Government
Code, §2001.0225 even if they did meet the definition of a major environmental
law. Specifically, the adopted rules are required by state law, are not adopted
solely under the general powers of the agency, and do not exceed an express
requirement of state law, federal law, or a delegation agreement or contract
between the state and an agency or representative of the federal government.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted 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 these adopted rules because this is an action that is taken in response
to a real and substantial threat to public health and safety; that is designed
to significantly advance the health and safety purpose; and does not impose
a greater burden than is necessary to achieve the health and safety purpose.
Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).
The adopted rules implement HB 2376 and SB 444, which amend THSC, Chapter
374. THSC, Chapter 374 addresses the environmental regulation and remediation
program for dry cleaning facilities and dry cleaning drop stations. Under
the program, certain dry cleaners and drop stations pay registration and solvent
fees into a fund that is then used by the agency to investigate and clean
up eligible contaminated dry cleaning sites. Additionally, the legislation
and adopted rules contain performance standards and waste handling requirements
to alleviate the possibility of future contamination from dry cleaning facilities.
Such contamination is a real and substantial threat to public health and safety.
The adopted rules significantly advance a health and safety purpose by providing
the framework within which the agency will collect the funds for corrective
action and use those funds to address health and safety concerns at sites
around the state. Furthermore, the adopted rules significantly advance a health
and safety purpose by specifying performance standards and waste handling
requirements to alleviate future health and safety issues resulting from dry
cleaning facilities. The adopted rules are narrowly tailored to apply to only
certain dry cleaning facilities, dry cleaning drop stations, and distributors
and do not impose a greater burden than is necessary to achieve the health
and safety purpose as previously stated.
Nevertheless, the commission further evaluated these adopted rules and
performed an assessment of whether these rules constitute a takings under
Texas Government Code, Chapter 2007. The specific purpose of this rulemaking
is to implement HB 2376 and SB 444 by setting forth: 1) procedures governing
registration, certificates, and the collection of fees; 2) performance standards;
3) requirements for the removal of dry cleaning solvents and waste; 4) procedures
relating to the prioritization and ranking of sites; and 5) provisions relating
to non-perchloroethylene users and facilities.
Promulgation and enforcement of the adopted rules is neither a statutory
nor a constitutional taking of private real property by the commission. Specifically,
the adopted rules do not affect a landowner's rights in private real property
because this rulemaking does not burden (constitutionally), restrict, or limit
the owner's rights to property and reduce its value by 25% or more beyond
that which would otherwise exist in the absence of the adopted rules. The
adopted rules implement HB 2376 and SB 444 by providing the framework within
which the agency will regulate and remediate dry cleaning facilities and dry
cleaning drop stations. There are no burdens imposed on private real property
from these adopted rules and the benefits to society are the adopted rules'
specific procedures and requirements for a program that addresses dry cleaning
contamination and seeks to prevent future contamination.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rulemaking and found the adoption is
a rulemaking identified in the Coastal Coordination Act Implementation Rules,
31 TAC §505.11(b)(2) relating to rules subject to the Texas Coastal Management
Program (CMP), and will, therefore, require that goals and policies of the
CMP be considered during the rulemaking process.
The commission prepared a consistency determination for the rules under
31 TAC §505.22 and found that the rulemaking is consistent with the applicable
CMP goals and policies. The CMP goal applicable to the rulemaking is the goal
to protect, preserve, restore, and enhance the diversity, quality, quantity,
functions, and values of coastal natural resource areas. The CMP policy applicable
to the rulemaking is governing emissions of air pollutants to protect and
enhance air quality in the coastal area so as to protect coastal natural resource
areas and promote the public health, safety, and welfare. Promulgation and
enforcement of these rules will not violate (exceed) any standards identified
in the applicable CMP goals and policies. The amendments are required to comply
with HB 2376 and SB 444 relating to the environmental regulation and remediation
of dry cleaning facilities. The adopted rules amend annual registration fees
assessment calculations; establish new compliance deadlines for performance
standards for dry cleaning facilities; reference the necessity of comptroller
verification that the owner is in good standing with the state and is reporting
gross receipts accurately; clarify the designation of a nonparticipating status
and establish new deadlines and fee credits for nonparticipating sites; expand
on revocation or denial of a certificate; and clarify and establish procedures
to administer and enforce the program.
PUBLIC COMMENT
A public hearing on the proposed rules was held in Austin, Texas, on November
8, 2005. The public comment period ended at 5:00 p.m. on November 14, 2005.
No comments were received at the public hearing or during the 30-day comment
period.
Subchapter A. GENERAL PROVISIONS
30 TAC §337.3
STATUTORY AUTHORITY
The amendment is adopted under the authority granted to the commission
by the 79th Legislature and THSC, Chapter 374. The amendment is also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under the TWC and other laws
of the state; TWC, §7.002, which authorizes the commission to enforce
provisions of the TWC and THSC; THSC, §361.017, which provides the commission
the powers necessary or convenient to carry out its powers under the Solid
Waste Disposal Act; THSC, §361.024, which authorizes the commission to
adopt rules consistent with the Solid Waste Disposal Act and establish minimum
standards for the management and control of solid waste; HB 2376, 79th Legislature;
and SB 444, 79th Legislature.
The adopted amendment implements THSC, Chapter 374.
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 January 12, 2006.
TRD-200600183
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 239-0177
30 TAC §§337.11, 337.13 - 337.15
STATUTORY AUTHORITY
The amendments are adopted under the authority granted to the commission
by the 79th Legislature and THSC, Chapter 374. The amendments are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under the TWC and other laws
of the state; TWC, §7.002, which authorizes the commission to enforce
provisions of the TWC and THSC; THSC, §361.017, which provides the commission
the powers necessary or convenient to carry out its powers under the Solid
Waste Disposal Act; THSC, §361.024, which authorizes the commission to
adopt rules consistent with the Solid Waste Disposal Act and establish minimum
standards for the management and control of solid waste; HB 2376, 79th Legislature;
and SB 444, 79th Legislature.
The adopted amendments implement THSC, Chapter 374.
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 January 12, 2006.
TRD-200600184
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 239-0177
30 TAC §337.20, §337.22
STATUTORY AUTHORITY
The amendments are adopted under the authority granted to the commission
by the 79th Legislature and THSC, Chapter 374. The amendments are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under the TWC and other laws
of the state; TWC, §7.002, which authorizes the commission to enforce
provisions of the TWC and THSC; THSC, §361.017, which provides the commission
the powers necessary or convenient to carry out its powers under the Solid
Waste Disposal Act; THSC, §361.024, which authorizes the commission to
adopt rules consistent with the Solid Waste Disposal Act and establish minimum
standards for the management and control of solid waste; HB 2376, 79th Legislature;
and SB 444, 79th Legislature.
The adopted amendments implement THSC, Chapter 374.
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 January 12, 2006.
TRD-200600185
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: February 1, 2006
Proposal publication date: October 14, 2005
For further information, please call: (512) 239-0177
Subchapter B. NEW SOURCE REVIEW PERMITS
5.
NONATTAINMENT REVIEW PERMITS
6.
PREVENTION OF SIGNIFICANT DETERIORATION REVIEW
Subchapter C. HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40 CFR PART 63)
Subchapter C. PLANT-WIDE APPLICABILITY LIMITS
Subchapter E. HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40 CFR PART 63)
Subchapter E. EMERGENCY ORDERS
Subchapter F. STANDARD PERMITS
Subchapter K. EMERGENCY ORDERS
Chapter 337.
DRY CLEANER ENVIRONMENTAL RESPONSE
Subchapter B. REGISTRATION, CERTIFICATES, AND FEES
Subchapter C. PERFORMANCE STANDARDS AND WASTE REMOVAL
Subchapter D. PRIORITIZATION AND RANKING