ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION PART II. Public Utility Commission of Texas CHAPTER 22. Practice and Procedure SUBCHAPTER E. Pleadings 16 TAC sec.sec.22.71, 22.72, 22.74 The Public Utility Commission of Texas (PUC) adopts amendments to sec.22.71, a Procedural Rule regarding Filing of Pleadings and Other Materials, sec.22.72, regarding Formal Requisites of Pleadings to be Filed With the Commission, and sec.22.74, Service of Pleadings, with changes to the proposed text as published in the November 19, 1996, issue of the Texas Register (21 TexReg 11223). The amendments are part of the commission's electronic filing and access project, and will implement the filing of documents with the commission using electronic media. Thirteen persons filed comments on the proposed amendments. The electronic filing and access project is part of the Public Utility Commission's comprehensive Agency Information System (AIS). The AIS is a complex of hardware, software, and system components that comprise support for integrated information management at the commission. When fully implemented, the AIS will support case management and case processing needs, track division staff assignments and case timelines, track utility reporting, and enable electronic filing and retrieval of documents filed with the commission's Central Records. Some of the amendments were suggested by the Environmental Defense Fund's (EDF) Petition for Rulemaking Concerning Paper Waste filed August 9, 1996. Specifically, the requirement for two-sided copies, and the elimination of cover letters and service lists were suggested by EDF's petition. EDF's concerns are addressed in this rulemaking because they affect the same sections and because one of the goals of the AIS is to reduce reliance on paper copies of documents. The commission specifically invited comments on whether the requirement for electronic filing of documents over ten pages is overly burdensome, and whether a good cause exception process would be a good way to address situations where persons wishing to file documents desire to be excused from the requirement to file electronically. Consumer, Low Income and Environmental Organizations, Texas Utilities Electric Company (TU Electric), and Lambeth Townsend (Townsend) commented that the requirement to provide all documents over ten pages long in electronic format is overly burdensome. Central and Southwest Corporation (CSW) stated that the requirement for electronic filing of documents over ten pages is not burdensome. Townsend suggested that electronic filing should be required for documents longer than 25 pages. The Texas Association of Long Distance Telephone Companies (TEXALTEL) asked whether documents less than ten pages in length will be available for electronic retrieval. In selecting an appropriate page limit for electronic filings, the commission seeks to strike a balance between the desirability of having information available electronically and the burden imposed on parties. Although all filings will be available as scanned images, electronic format allows users to conduct word searches which facilitate location of information and help remote users determine whether to download a particular document. The commission declines to change the proposed page threshold in the adopted rule, but will use appropriate discretion in enforcing this requirement of the new rule, particularly in the early stages of implementation. The commission encourages parties to file all documents electronically regardless of page length. TU Electric characterized the idea of granting good cause exceptions unworkable, primarily because of difficulties associated with an approval process. Consumer, Low Income and Environmental Organizations recommended that the commission allow any individual or non-profit organization to be excused from electronic filing if they file a certificate confirming that they are unable to comply with electronic filing without incurring additional cost or due to lack of technological resources. Gulf Coast Power Connect (Power Connect) supports an exception process for all individuals and small organizations, and stated that it would be appropriate to have a blanket exception for all rulemaking comments. The commission notes that sec.22.5 provides for good cause exceptions to the procedural rules, and that exception process will be available to persons who are required to comply with the rule. Until all persons affected by the rule, including the commission, gain experience with the new procedures, it is difficult to predict the extent to which exceptions may be appropriate. The commission is committed to ensuring that electronic filing and access do not create a barrier to participation in commission proceedings, and will administer its procedural rules accordingly. TU Electric recommended that the commission undertake a pilot project before making the changes required by the rule to enable the commission and persons making filings to work out any difficulties which may arise during the transition to the new filing and retrieval system. The commission shares many of TU Electric's concerns, and plans to implement the electronic filing and access project in phases. Phase I, which has already been implemented, includes availability of scanned images with no change in filing requirements. Phase II, which is scheduled for April 1997, will include electronic filing of certain documents generated by the commission staff. Phase III, which is scheduled for May 1997, will continue with electronic filing by commission staff and begin voluntary compliance by other persons making filings. Effective June 1, 1997, all persons making filings with the commission will be required to comply with the amended rules. The commission held a workshop on March 13, 1997, to inform interested persons about the electronic filing and access program. Workshops will be held periodically to provide information to the public about the progress of the project. In addition, materials to explain each phase of the project will be available through brochures and on the commission's website (http.//www.puc@state.tx.us). The brochure for Phase I is currently available and may be obtained by contacting the commission's Legal Administration Division at (512) 936-7150. Houston Lighting & Power Company (HL&P), Southwestern Public Service Company (Southwestern), and TU Electric commented on the proposed amendments to sec.22.71 relating to number of documents to be filed. HL&P noted that the proposed rule does not significantly reduce the number of copies to be filed, and proposed that only one copy of a document should be filed if the document is also filed in an electronic format. Southwestern proposed that the number of copies should be reduced by 50% to encourage use of the new electronic system. TU Electric also noted that the proposed rule does not significantly reduce the number of copies required, and stated that there should be a significant reduction in the number of paper copies required. The commission agrees with the commenters that reducing reliance on paper copies is an important benefit of electronic filing that should be captured as much and as soon as possible. However, the commission anticipates that one of the most challenging parts of managing its transition to an electronic document system will be to create new internal processes and systems that do not rely on having hard copies of the many documents that are filed at the commission. Almost every work process currently in place, and the associated human behaviors, must change. There are some functions for which paper copies will be needed notwithstanding availability of electronic versions. For example, the commissioners and many members of the staff rely on paper copies of documents related to matters under consideration during open meetings. At this time, there is no feasible alternative to having paper copies. If the persons making the filings do not provide the necessary copies, the commission will have to make them. Under this scenario, reducing the number of copies required by the rule would create a cost shift, but not an overall benefit. In the future, lower cost printing capability and less need for paper handling is expected to shift the balance and allow greater reductions in the copy requirements. Power Connect commented that if the proposed amendments to sec.22.71(b)(8), relating to number of copies of discovery responses, means that discovery responses would no longer be available in Central Records, the result is unacceptable because it is very important for the public to have access to information about regulatory issues. The proposed amendments do not address the issue of availability of discovery responses in Central Records, so it is not appropriate to change the proposed amendment. The Office of Public Utility Counsel (OPUC), CSW, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. (Bickerstaff), Southwestern Bell Telephone Company (SWBT), TU Electric, and HL&P opposed the proposed change to sec.22.71(c) which would eliminate the requirement for the filing clerk to accept documents if the person seeking to make the filing is in the office of the filing clerk with the required number of copies by the time the pleading or document is required to be filed. The proposed amendment was intended to address the fact that at the time of publication of the proposed amendments, the filing clerk had moved to a small room, which made the existing rule unworkable. The commission never intended to change its practice of accepting pleadings from persons in line. The commission has modified the proposed amendment to make clear that the filing clerk will accept pleadings and documents from persons standing in line at the time the pleading or document is required to be filed. The following commenters opposed the proposed amendment to sec.21.71(e) which would have changed the hours of the filing clerk from 8:00 a.m. - 5:00 p.m. to 9:00 a.m. to 3:00 p.m.: CSW; Consumer, Low-Income, and Environmental Organizations; TU Electric; South Texas Electric Cooperative (STEC); SWBT, Bickerstaff, Power Connect; HL&P and Townsend. The purpose of the proposed amendments was to improve efficient use of existing staff for processing electronic filings and to promote prompt availability of electronic documents. In response to comments, the commission modified the amendment such that the hours for accepting filings will be 9:00 a.m. to 5:00 p.m. TU Electric commented that the proposed amendments to sec.22.71(c) do not make clear whether the required number of copies includes the electronic copy. The rule as adopted contains clarifying language. TU Electric also observed that the ability to file copies of faxed documents, as contemplated by sec.22.71(f) will be negated, or at least complicated, by the requirement for filing an electronic version. TU Electric recommended including a provision that would allow for an electronic version to be provided at a later time in emergency situations. The commission notes that electronic versions are required only if a document exceeds ten pages, and believes that adequately addresses the concern raised by TU Electric. SWBT commented that the requirement for double spacing in sec.22.72(b)(1) should also allow for one and one-half times spacing. The proposed amendments indicated "no change" to sec.22.72(b)(1). However, in an effort to reduce the amount of paper filed the commission agrees with the change suggested by SWBT and amends the paragraph to allow for either double spacing or one and one-half times spacing. This change is consistent with the overall intent of the rule changes. SWBT, Bickerstaff, OPUC, MCI, Consumer, Low-Income and Environmental Organizations, Southwestern, TU Electric, STEC, and HL&P commented unfavorably on the proposed requirement in sec.22.72(f)(3) that copies be two hole punched at the top. TU Electric, STEC, and Power Connect stated that binding should be allowed. In response to comments, the rule as adopted requires that one copy of each document be filed without bindings, staples, or separators to accommodate the scanning process. Requirements for hole punching are eliminated. Regarding the proposed amendments to sec.22.72(f)(4) and (g)(1), which address requirements for figures in documents, TEXALTEL, STEC, Power Connect, and Bickerstaff commented that the term "figures" requires clarification. OPUC, MCI, Consumer, Low- Income and Environmental Organizations, STEC, SWBT, and HL&P oppose the requirement that figures may not be embedded in text. In the adopted amendments, the term "figure" has been clarified to mean only those figures or illustrations which are not, from a computer software standpoint, fully integrated into the document. With that clarification, the commission believes the concerns expressed by the commenters are satisfied. OPUC, TU Electric, SWBT, and HL&P commented, regarding the prohibition against cover letters contained in proposed sec.22.72(f)6), that cover letters should be allowed if they contain useful information. The intent of the requirement is to eliminate correspondence which does not contain useful information. Persons filing documents at the commission should feel free to use a letter format to communicate information not otherwise provided, but should refrain from using cover letters that do not convey information other than the fact that a filing is being made. SWBT stated that the rule should allow pagination to be in the lower center as well as lower right hand corner of the page. The commission has concluded that the location of the number on the page is not important, and has deleted the requirement to place the number in the lower right hand corner of the page in sec.22.72(f)(7) and sec.22.72(g)(7). Southwestern, Power Connect, and Townsend stated that the proposed requirement to provide two sided copies is overly burdensome. The commission understands that some persons making filings may have difficulty meeting this requirement at all times, and has modified sec.22.72(f)(8) to provide that two sided copies are to be provided whenever possible. TU Electric and Power Connect object to the proposed requirement in sec.22.72(f)(8) to provide one single-sided copy. When the proposed amendments were originally drafted, there was a possibility that the equipment that would be used to scan the filings to create electronic images would not be able to accept two-sided copies. The equipment, which is now in use, is capable of scanning two-sided documents, so the proposed requirement to provide one single- sided copy has been eliminated. Southwestern and CSW pointed out the need for an explicit statement that material submitted under claim of confidentiality should not be provided in electronic format. The commission agrees and has added such a statement to sec.22.72(g). CSW commented that the terms "document," "filing," and "submission" are not defined and consistently used in the proposed amendments. The commission has made clarifying changes to the amendments. TU Electric, CSW, and Power Connect complained that the requirement to include a table of contents with all filings is unclear and burdensome. The purpose of requiring a table of contents is to allow for easier searches of documents, and is necessary to allow navigation of scanned images. The commission believes that the benefit of including a table of contents outweighs the burden, and maintains the requirement in the rule as adopted. OPUC, Consumer, Low-Income and Environmental Organizations, TEXALTEL, TU Electric, Power Connect, and SWBT stated that the requirement for an affidavit of parity is unnecessary and should be eliminated. HL&P commented that the requirement needs clarification. The commission agrees with the comments and has deleted that provision from sec.22.72(g) as adopted. TEXALTEL and Bickerstaff support including a prohibition in the rule against filing a single document as multiple files and/or diskettes because it creates opportunities for errors in reconstructing filings. The commission expects persons making filings to make reasonable choices about file organization, and declines to include the requested provision. TU Electric recommends limiting the requirement in sec.22.72(b)(3) that filings be printed or formatted in not less than 10-point type to first generation documents. Font requirements exist in the current rules, and it is the commission's practice to apply this requirement to first generation documents. The proposed amendment would not affect current practice. TU Electric and STEC object to the requirement for consecutive numbering of the pages of a filing on the grounds that the cost of compliance outweighs the benefits. TU Electric, SWBT, and Bickerstaff asked for clarification of whether the table of contents, affidavit of parity, and file list must be included in the paper copy whose pages must be consecutively numbered. Consecutive page numbering is needed to allow users to efficiently navigate scanned images. All pages of a document, whether in the paper copy or electronic copy, whatever the contents, must be consecutively numbered. Large filings may be divided into component documents, each of which must have consecutively numbered pages. HL&P recommended that the rule require as a document formatting standard 12 pt courier type and one inch margins to avoid confusion which may be caused if an electronic version of a document does not print out exactly like the hard copy on file due to automatic reformatting by word processing software. The commission does not agree at this time that the problem is sufficiently serious to warrant imposing such specific requirements. TEXALTEL, SWBT, and Bickerstaff noted that diskette labels are too small to include all of the information required by proposed sec.22.72(g)(8). TU Electric pointed out that on a new filing, the control number may not be known. The commission agrees, and modified the rule on adoption to require that the label contain only the control number, if known, and name of the party making the filing. Southwestern, TU Electric, and CSW noted that the term "double density" in proposed sec.22.72(h)(2) should be "high density." The rule as adopted uses the term "high density." STEC and CSW noted that the preferred file formats referenced in sec.22.72(i) are not yet available. The formats were not available at the time of publication of the proposed amendments because the requirements were being developed during the rule development process. The preferred file formats have been established and are available in the commission's Central Records and on the commission's World Wide Web site. CSW and TU Electric commented that acceptance of a document for filing should not be delayed pending verification of an electronic filing. The commission agrees, and intends to implement procedures consistent with CSW's comments. However, the commission does not find it necessary to include this internal operating procedure in the rule. SWBT and Bickerstaff support a practice of making service lists in cases accessible. The commission currently has a practice of providing service lists to parties upon oral or written requests, and is considering ways to provide access to the information without the need for a request. Because this is an internal operating procedure, it is not necessary to include it in a rule. Some of the commenters addressed issues related to the electronic access project which are not addressed by the proposed rule amendments. OPUC and Consumer, Low Income and Environmental Organizations believe that charging for remote access is inappropriate for some users, and that a charge of 25 cents per page may be prohibitive. The Organizations also contend that there should be no charge for viewing documents. In designing and implementing the electronic access project, the commission has been mindful of the importance of public access to commission records. All persons will continue to have access to PUC information on the same basis as they currently do. That is, paper copies will be available for inspection in Austin and copies may be made for ten cents per page. In addition, computer terminals will be available in Central Records that will allow free inspection of the electronic records, copies of which may be printed for ten cents per page. However, the commission is required by statute to pay through user fees for the capital investment required for the electronic access project. Users who wish to download commission records from remote locations via the Internet will be charged 25 cents per page. The rate is based on the amount of money which must be recovered through user fees each year and projected sales. If sales are greater than projected, the per-page rate can be lowered. In establishing the user fee amount, the commission intends only to recover the capital cost of the project, as required by law. SWBT and HL&P commented that persons making filings should be allowed to make multiple filings on a single diskette. OPUC and Consumer, Low Income and Environmental Organizations expressed concern about whether the commission intends to recycle the diskettes on which electronic copies are made. In order to facilitate the filing and uploading process, the commission will require that each filing be on a separate diskette. The commission intends to recycle diskettes by making them available to persons making filings, which will prevent waste and keep costs down. The commission anticipates that many persons will choose to make filings via the Internet. At the time the proposed amendments were published, the commission was uncertain about whether it would be able to accept filings via the Internet at the time the rule is adopted. The rule, as adopted, provides for filing via the Internet, which obviates the need for diskettes. Bickerstaff stated that documents should be available on the Internet by 8 a.m. the day after filing. The commission agrees with that goal. Persons making filings can facilitate next-day availability by filing as early in the day as possible. Because of the objections to closing the office of the filing clerk at 3:00 p.m., which was intended to ensure next-day availability, the commission will accept filings up to 5:00 p.m. Every effort will be made to make all filings available by 8:00 a.m. the next day. However, the commission will focus its efforts on documents filed before the 3:00 p.m. deadline established by sec.22.71(g). This amendment is adopted under the Public Utility Regulatory Act of 1995, sec.1.101, Texas Revised Civil Statutes Annotated article 1446c-0 (Vernon Supplement 1997) which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure. Cross Index to Statutes: Public Utility Regulatory Act of 1995 sec.1.101. sec.22.71. Filing of Pleadings and Other Materials. (a) (No change.) (b) Number of documents to be filed. Unless otherwise provided by this chapter or ordered by the presiding officer, the number of copies to be filed, including the original, are as follows: (1)-(2) (No change.) (3) exceptions, replies, interim appeals, requests for oral argument, and other documents addressed to the commissioners: 19 copies; (4) (No change.) (5) rate, fuel factor, and fuel reconciliation filing packages: 11 copies; (6) (No change.) (7) discovery requests: seven copies; (8) discovery responses: three copies; and (9) other pleadings and documents: ten copies, except that in contested cases transferred to the State Office of Administrative Hearings, parties must file 12 copies of other pleadings and documents. (c) Receipt by the commission. Pleadings and any other documents shall be deemed filed when the required number of copies and the electronic copy, if required, in conformance with section sec.22.72 of this title (relating to Formal Requisites of Pleadings to Be Filed With the Commission) are presented to the commission filing clerk for filing. The commission filing clerk shall be required to accept pleadings and documents if the person seeking to make the filing is in line by the time the pleading or document is required to be filed. (d) (No Change.) (e) Office hours of the commission filing clerk. For the purpose of filing pleadings and other documents, the office hours of the commission filing clerk are from 9:00 to 5:00 p.m., Monday through Friday, on working days. (f) Filing a copy or facsimile copy in lieu of an original. Subject to the requirements of subsection (b) of this section and sec.22.72 of this title, a copy of an original document or pleading, including a copy that has been transmitted through a telecopier, may be filed, so long as the party or the attorney filing such copy maintains the original for inspection by the commission or any party to the proceeding. (g) (No Change.) (h) Filing deadlines for documents addressed to the commissioners (1) Except as provided in paragraph (2) of this subsection, all documents addressed to the commissioners relating to any proceeding that has been placed on the agenda of an open meeting shall be filed with the commission filing clerk no later than five days prior to the open meeting at which the proceeding will be considered provided that no party is prejudiced by the timing of the filing of the documents. Documents that are not filed before the deadline and do not meet one of the exceptions in paragraph (2) of this subsection, will be considered untimely filed. (2)-(3) (No change.) sec.22.72. Formal Requisites of Pleadings to Be Filed With the Commission. (a) Requirements of form. (1) Unless otherwise authorized or required by the presiding officer or this chapter, documents shall include the style and number of the docket or project in which they are submitted, if available; shall identify by heading the nature of the pleading submitted and the name of the party submitting the same; and shall be signed by the party or the party's representative. (2) Any log, graph, map, drawing, or chart submitted as part of a filing will be accepted on paper larger than provided in subsection (f) of this section, if it cannot be provided legibly on letter-size paper. (b) Format. Any filing with the commission must: (1) have double-spaced or one and one-half times spaced print with left margins not less than one inch wide, except that any letter, tariff filing, rate filing, or proposed findings of fact and conclusions of law may be single-spaced; (2) indent and single-space any quotation which exceeds 50 words; and (3) be printed or formatted in not less than 10-point type. (c)-(e) (No change.) (f) Hard copy filing standards. Hard copies of each document shall be filed with the commission in accordance with the requirements set forth in paragraphs (1)- (7) of this subsection. (1) Each document shall be typed or printed on paper measuring 8.5 by 11 inches. (2) One copy of each document shall be filed without bindings, staples, tabs or separators. (3) For documents for which an electronic filing is required, all non-native figures, illustrations, or objects shall be filed as referenced attachments. No non-native figures, illustrations, or objects shall be embedded in the text of the document. "Non-native figures" means tables, graphs, charts, spreadsheets, illustrations, drawings and other objects which are not electronically integrated into the text portions of a document. (4) Oversized documents shall be filed as referenced attachments. (5) No cover letter shall be attached to any document. (6) All pages of a document shall be consecutively numbered. (7) Whenever possible, all copies shall be printed on both sides of the paper. (g) Electronic filing standards. Any document may be filed, and all documents containing more than ten pages shall be filed, electronically in accordance with the requirements of paragraphs (1)-(8) of this subsection. Electronic filings are registered by submission of the relevant electronic documents via diskette or the internet, in accordance with transfer standards available in the commission's central records office or on the commission's World Wide Web site, and the submission of the required number of paper copies to the filing clerk under the provisions of this section and sec.22.71 of this title (relating to Filing of Pleadings and Other materials). (1) All non-native figures, illustrations or objects must be filed as referenced attachments. No non-native figures, illustrations, or objects shall be imbedded in the text of the document. "Non-native figures" means tables, graphs, charts, spreadsheets, illustrations, drawings and other objects which are not electronically integrated into the text portions of a document. (2) Oversized documents shall not be filed in electronic media, but shall be filed as referenced attachments. (3) Each document shall have a table of contents that lists the major sections of the document, the page numbers for each major section and the name of the electronic file that contains each major section of the document. (4) Each document shall have a list of file names that are included in the filing and shall be referenced in an ASCII text file. (5) The table of contents and list of file names shall be placed at the beginning of the document. (6) All pages of a document, starting with the first page of the table of contents, shall be consecutively numbered through the last page of the document, including attachments, if any. (7) Each diskette shall be labeled with the control number, if known, and the name of the person submitting the document. (8) Any information submitted under claim of confidentiality should not be submitted in electronic format. (h) Disk format standards. Each document that is submitted to the filing clerk on diskette shall be submitted as set forth in paragraphs (1)-(3) of this subsection. (1) 3.5 inch diskette. (2) 1.4 M double sided, high density storage capacity. (3) IBM format. (i) File format standards. (1) Electronic filings shall be made in accordance with the current list of preferred file formats available in the commission's central records office and on the commission's World Wide Web site. (2) Electronic filings that are submitted in a format other than that required by paragraph (1) of this subsection will not be accepted until after successful conversion of the file to a commission standard. sec.22.74. Service of Pleadings. (a)-(c) (No change.) (d) Certificate of service. Every document required to be served on all parties pursuant to subsection (a) of this section shall contain the following or similar certificate of service: "I, (name) (title) certify that a copy of this document was served on all parties of record in this proceeding on (date) in the following manner: (specify method). Signed, (signature)." The list of the names and addresses of the parties on whom the document was served, should not be appended to the document. 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. Issued in Austin, Texas, on April 30, 1997. TRD-9705725 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Effective date: June 1, 1997 Proposal publication date: November 19, 1997 For further information, please call: (512) 936-7283 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 150.Commissioner's Rules Concerning Educator Appraisal SUBCHAPTER AA.Teacher Appraisal 19 TAC sec.sec.150.1001-150.1010 The Texas Education Agency (TEA) adopts new sec.sec.150.1001-150.1010, 150.1021 and 150.1022, concerning educator and administrator appraisal systems. Sections 150.1001-150.1005 and 150.1007 are adopted with changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1950). Sections 150.1006, 150.1008-150.1010, 150.1021, and 150.122 are adopted without changes to the proposed text. The sections establish definitions, requirements, and procedures related to teacher and administrator appraisal systems recommended by the commissioner of education. The repeal of current Chapter 150, (relating to Commissioner's Rules Concerning Educator Appraisal), is adopted in a separate submission. Adopted new Chapter 150, Subchapter BB, (relating to Administrator Appraisal), contains the same language as in the adopted repeal administrator rules, however, new section numbers are being assigned to establish uniformity in new Chapter 150. Several editorial changes were made throughout the sections for grammatical clarification and simplification. Also, throughout the sections adopted with changes, the term "annual summative report" was replaced with the term "summative annual appraisal report." In sec.150.1001(a), the word "Texas" has been added preceding commissioner to clarify reference to the commissioner of education. In sec.150.1002(a), language has been added to clarify the date the document, Learner-Centered Schools for Texas: A Vision of Texas Educators, was approved by the State Board of Education. In sec.150.1003(b)(4), language has been added to include reference to Section III of the Teacher Self-Report. New sec.150.1003(d)(3) was added to include language that reads "shall indicate a period of summative annual conferences that ends no later than 15 working days before the last day of instruction for students" in response to a comment submitted by Texas Classroom Teachers Association (TCTA). In sec.150.1003(f), language was added to include "from a source other than the teacher's supervisor" in response to a recommendation made by education service center field service agents. Appraisers do not have to verify information provided by the teacher's supervisor. New sec.150.1003(j) was added in response to recommendations from field trial participants. In sec.150.1004(f), the term "rating" was added to clarify language regarding a reference to "below expectations" and "unsatisfactory" performance ratings. In sec.150.1005(a)(1) and (2), language the reads "with which the teacher disagrees" was removed to be consistent with Texas Education Code, (TEC), sec.21.352. In sec.150.1007(a), language was amended to provide teachers new to a district with an orientation at least three weeks prior to the teacher's first observation, rather than two weeks. The following comments have been received regarding adoption of the new sections. Comment. TCTA requested that sec.150.1002 include language to specify that credit may be awarded for behaviors not specifically observed by appraisers but inferred as appropriate, and that teachers should not have their appraisals affected by or be coerced to "volunteer" for such duties as supervision of extracurricular activities or participation in district or campus events that do not directly relate to their teaching responsibilities. Agency Response. Text for sec.150.1002(c) was not amended as requested. Any specifications regarding inferences in making appraisal decisions are provided and explained in appraiser training. Regarding participation in events and extracurricular activities not related to their teaching assignment, the criteria in the Professional Development Appraisal System (PDAS) are based on observable, job-related behavior. Comment. A representative from Scott Johnson Elementary, Huntsville ISD, requested that language related to Domain VIII in sec.150.1002(e) be deleted or revised so that the competence of teachers of disadvantaged students is not compared to the competence of teachers of advantaged students on the basis of student test scores. Agency Response. The use of the campus performance rating was chosen as the means for meeting the requirement of TEC, sec.21.351, to include the performance of teacher's students. The campus performance rating was chosen based on it: (1) being consistent across districts and campuses; (2) over time, being aligned with state policy and performance objectives for students, and (3) complementing the appraisal requirements for other education professionals. The use of comparable improvement in calculating the performance rating will help to address some of the issues of comparing student performance across campuses with unlike student groups. Comment. TCTA requested that language be added to sec.150.1003(b)(2) to include a time limit for the post-observation conference. Agency Response. The agency disagrees with this request. Post-observation conferences are to be held when requested by the teacher or the appraiser at a mutually agreed upon time. Comment. The Association of Texas Professional Educators (ATPE) requested that language be added to sec.150.1003(b)(4) to include dates for the completion of Section III and should specify whether the professional development activities pertain to the previous or current school year. Agency Response. The agency added language to sec.150.1003(b)(4) to include Section III, of the Teacher Self-Report, which is to be completed two weeks prior to the summative annual conference and pertains to professional development activities for the current school year. Comment. ATPE requested that language be added to sec.150.1003(c) as shown in current Chapter 150 to state that each school district shall adopt written procedures for implementing sec.150.1003. Agency Response. The text was not changed. Districts will use their discretion in making district and/or campus policy concerning advance notice of an appraisal. Comment. TCTA requested that language be added in sec.150.1003(d) to include specifics that all observations must be completed at least 15 working days before the last day of instruction for students. Agency Response. New sec.150.1003(d)(3) was added to include language that reads "shall indicate a period of summative annual conferences that ends no later than 15 working days before the last day of instruction for students." Comment. TCTA requested language be added in sec.150.1003(f) stating that if an additional conference is held due to the existence of data that would influence the teacher's final written observation report, the conference must take place prior to the end of the school year for which the teacher is being appraised. Agency Response. The agency disagrees with this request. In general, the case will be that an additional conference will be held prior to the end of the school year for which the teacher is being appraised, however, there may be circumstances in which this is not feasible. Section 150.1003(d) includes language stating that the appraisal period for each teacher must include all of the days of a teacher's contract. Comment. ATPE requested that language be amended in sec.150.1003(h) to include that the summative report be shared with the teacher no less than 20 working days before the last day of instruction instead of 15 working days to allow for a reasonable opportunity for a second appraisal to be conducted in accordance with the timeline provided in sec.150.1003(d). Agency Response. The text was not changed. The intent is to better accommodate district appraisal calendars and allow maximum opportunity for administrators to carry out their appraisal duties. Teachers may request a second appraisal within ten days of receiving a written observation summary report, as provided in sec.150.1005(c)-(g). Comment. TCTA requested that sec.150.1003(j) be replaced with language that reads "an appraiser shall document and provide suggestions for teacher improvement for any rating of a dimension within a domain at a level below "proficient". A teacher may request at least one subsequent walk-through to give the teacher an opportunity to exhibit proficiency in any dimension(s) scored below "proficient"; the scoring of the domain shall reflect the results of any requested walk-through." Agency Response. Rule text was not amended for this request. Section 150.1003(b)(1) includes language relating to additional walk-throughs and observations being conducted at the discretion of the appraiser. Comment. TCTA requested that language be added to sec.150.1004(e) to state that: (1) teachers cannot be required to expend personal funds in meeting intervention plans; (2) the amount of time specified for meeting the requirements of an intervention plan be reasonable; and (3) the determination of whether the teacher has met the requirements of the intervention plan should be based on a preponderance of the evidence. Agency Response. The agency disagrees with this request. Teachers may or may not choose to expend personal funds in meeting intervention plans. The amount of time specified for the intervention plan and the determination of whether the teacher has met the requirements of the plan is at the discretion of the teacher's supervisor. Comment. TCTA requested that sec.150.1005(c) be amended to include the language that reads "a teacher may designate that the appraisal will be conducted by an off-campus appraiser, except in the event the disagreement involves Domain V, VI, or VII, in which case the second appraiser should be from the teacher's campus." Agency Response. The agency disagrees with this request. Districts and campuses have the discretion to develop policies concerning the selection of second appraisers. The second appraiser must meet the requirements for appraiser qualifications specified in sec.150.1006. Comment. TCTA requested that language be added to sec.150.1005(d) to specify when the second appraisal must take place. Agency Response. The agency disagrees with this request. Districts and campuses should respond to requests for a second appraisal in a timely fashion as circumstances allow. The agency does not wish to institute a rule that would place an undue burden on districts in responding to teacher appeals. Comment. TCTA is concerned about sec.150.1005(f) stating language that the second appraiser shall appraise the teacher in all domains rather than only those domains specified by the teacher, therefore, would allow the second appraiser to focus on areas of disagreement and not unnecessarily duplicate the previous appraisal process. Agency Response. It is the agency's position that an appraisal, whether first or second, by definition requires an implementation of the full appraisal process. Comment. TCTA requested that language be added to sec.150.1005(g) to read "each district level site-based decision-making committee shall develop and recommend to the board of trustees written procedures for a teacher to present grievances and receive written comments in response to the annual written appraisal report. The procedures shall be disseminated at the time of employment to each teacher and may be updated in subsequent school years as recommended by the site-based decision-making committee and approved by the board of trustees." Agency Response. The agency disagrees with the request. Districts should follow their established procedures concerning the development, review, and revision of district-level policy. Comment. ATPE requested that sec.150.1007(a) be amended to show that orientation occur at least three weeks before the first observation. Agency Response. The agency agrees with this comment and has amended sec.150.1007(a) to show that orientation occur at least three weeks before the first observation. Comment. ATPE requested that language be amended in sec.150.1007(a)(2) to provide teachers new to a district with an orientation at least three weeks prior to the teacher's first observation, rather than two weeks. Agency Response. The agency agrees with this comment and has amended sec.150.1007(a)(2) to read that orientation for teachers new to a district must occur three weeks prior to the teacher's first observation. Comment. ATPE requested that language be added to sec.150.1007(b) to require that the parameters for the completion of the Teacher Self-Report form include a limitation on paperwork and supporting documentation. Agency Response. The agency disagrees with this request. Limitations on paperwork and supporting documentation could hamper teachers and appraisers as they seek to provide necessary and sufficient information to conduct the appraisal. Comment. TCTA requested that language be added to sec.150.1007(b) to require districts to provide teachers with actual training sessions where the teachers would have opportunities to ask questions. Agency Response. The agency disagrees with this request. Districts are required to provide teachers with an initial orientation to the PDAS covering content specified by the agency. Additional sessions for teachers are encouraged; however, are not required. Comment. TCTA requested that sec.150.1009 be deleted. Agency Response. Text was not amended or deleted. According to TEC, sec.11.201, the superintendent, as chief executive officer of each school district, has the right to review and make recommendations on any advisory positions forwarded to the district board of trustees. Comment. TCTA requested that the overall number of domains included in the rules be decreased. Agency Response. The agency disagrees with this request. The number of PDAS domains (eight), equivalent to the Texas Teacher Appraisal System (TTAS) criteria, was decreased by five from the TTAS. Comment. TCTA requested that an abbreviated appraisal process be included in the PDAS document. Agency Response. No text was added for this request. It is the intent of the agency to develop an abbreviated appraisal process in the PDAS document for certain teachers. Specifics of this process will be determined after the first year of implementation of the system. Comment. TCTA recommended that the scores of any reappraisal domain be averaged or the domain score be dropped to reconcile the first and second appraisers' scoring of any domain in dispute. Agency Response. The agency disagrees with this recommendation. The determination of the appropriate action concerning differing appraisal domain scores is left to the discretion of the district. Comment. TCTA requested that language relating to the use of Texas Assessment of Academic Skills (TAAS) test results and/or the campus performance rating as indicators of student performance be removed from the rules. Agency Response. The agency disagrees with this request. The use of the campus performance rating as an indicator of student performance is retained in the PDAS. It is the agency's position that the campus performance rating is the most equitable and practical measure of student performance that could be incorporated into a statewide teacher-appraisal system. Comment. TCTA requested that language be added to the rules to provide at least one staff development day to teachers after they have had an orientation on the new system and before the Self-Report is due. Agency Response. The agency disagrees with this request based on responses to the Teacher Self-Report not requiring such an amount of time. Section I of the Teacher Self-Report has been modified to a checklist format. Sections II and III of the report may be completed at any time up to two weeks prior to the summative annual conference. Comment. TCTA requested that teachers in every subject area and every grade level be trained in the appraisal system. Agency Response. Rule text relating to teacher participation in the training process was not modified to show this request. The agency recognizes the limitations of school districts in terms of human and fiscal resources, in training representative teachers in every subject area and/or grade level on a campus. Comment. TCTA requested that the appraisal rules specify that paperwork demands are not to be increased by virtue of the new appraisal system. Agency Response. Rule text was not amended for this request. Limits have been placed on responses to the Teacher Self-Report Form. Comment. An individual noted that the campus performance rating in Domain VIII of the PDAS will add an additional burden to public school teachers. Agency Response. The PDAS incorporates the performance link required by law. It does so in the fairest way possible for teachers and in a manner that promotes teamwork and a focus on student learning. The tenth criterion of Domain VIII includes a shared score on the overall campus performance rating. The other nine criteria in Domain VIII relate to the teacher's individual efforts to align instruction with appropriate TAAS related objectives, monitor student attendance, and assist students in at-risk situations. Comment. TCTA requested that dimensions be generically stated, with credit granted on a continuum depending upon the extent to which the standard articulated in the dimension is demonstrated. Agency Response. The agency disagrees with this request. Credit is granted on a continuum basis, with evaluation criteria judged on both quantity and quality standards. The scoring factors and continuum are provided in training. Comment. TCTA requested that the terms "almost all" and "most" be defined in the rules and/or training should be provided. Agency Response. Rule text was not amended to meet this request. Definitions of terms related to the PDAS including "almost all" and "most" will be provided in both training and orientation materials. The new sections are adopted under the Texas Education Code, sec.sec.21.351- 21.356, which authorizes the commissioner of education to adopt a recommended appraisal process and criteria on which to appraise the performance of teachers and various classifications of school administrators. The sections also direct the commissioner to develop and periodically update a job description and an evaluation form for use by school districts in evaluating school counselors. sec. 150.1001.General Provisions. (a) Beginning with the 1997-1998 school year, all school districts have two choices in selecting a method to appraise teachers: a teacher-appraisal system recommended by the Texas commissioner of education or a local teacher-appraisal system. (b) The commissioner's recommended teacher-appraisal system, the Professional Development and Appraisal System (PDAS), was developed in accordance with Texas Education Code (TEC), sec.21.351. (c) The superintendent of each school district, with the approval of the school district board of trustees, may select the PDAS. Each school district or campus wanting to select or develop an alternative teacher-appraisal system must follow TEC, sec.21.352. sec.150.1002.Assessment of Teacher Performance. (a) The teacher proficiencies described in Learner-Centered Schools for Texas: A Vision of Texas Educators, approved by the State Board of Education on February 11, 1994, shall be the foundation for the Professional Development and Appraisal System (PDAS). (b) Each teacher shall be appraised on the following domains: (1) Domain I: Active, successful student participation in the learning process; (2) Domain II: Learner-centered instruction; (3) Domain III: Evaluation and feedback on student progress; (4) Domain IV: Management of student discipline, instructional strategies, time and materials; (5) Domain V: Professional communication; (6) Domain VI: Professional development; (7) Domain VII: Compliance with policies, operating procedures and requirements; and (8) Domain VIII: Improvement of academic performance of all students on the campus (based on indicators included in the Academic Excellence Indicator System (AEIS)). (c) Each domain shall be scored independently. The evaluation of each of the domains shall consider all data generated in the appraisal process. The data for the appraisal of each domain shall be gathered from observations, the Teacher Self-Report Form, and other documented sources. The data shall describe teacher contributions in increasing student achievement, making the whole school safe and orderly, and creating a stimulating learning environment for children. (d) Each teacher shall be evaluated on Domains I through VIII using the following categories: (1) exceeds expectations; (2) proficient; (3) below expectations; and (4) unsatisfactory. (e) The teacher evaluation in Domain VIII shall include the following areas: (1) efforts to enhance academic performance; (2) efforts to enhance student attendance; (3) efforts to identify and assist students in at-risk situations; and (4) campus performance rating. (f) Campus performance rating data for Domain VIII shall be reported (not scored) by a campus or district for the first year of the PDAS implementation and/or during the first year for new teachers to a campus. sec.150.1003.Appraisals, Data Sources, and Conferences. (a) Each teacher must be appraised each school year. Whenever possible, an appraisal shall be based on the teacher's performance in fields and teaching assignments for which he or she is certified. (b) The annual teacher appraisal shall include: (1) at least one classroom observation of a minimum of 45 minutes as identified in subsection (g) of this section, with additional walk-throughs and observations conducted at the discretion of the appraiser; (2) a written summary of each observation, which shall be given to teachers within ten working days after the completion of an observation, with a pre- and post-observation conference conducted at the request of the teacher or appraiser; (3) completion of Section I of the Teacher Self-Report Form that shall be presented to the principal within the first three weeks after the Professional Development and Appraisal System (PDAS) orientation as described in sec.150.1007 of this title (relating to Teacher Orientation); (4) revision of Section I (if necessary) and completion of Section's II and III of the Teacher Self- Report Form that shall be presented to the principal at least two weeks prior to the summative annual conference; (5) cumulative data of written documentation collected regarding job-related teacher performance, in addition to formal classroom observations; (6) a written summative annual appraisal report; and (7) a summative annual conference. (c) A teacher may be given advance notice of the date or time of an appraisal, but advance notice is not required. (d) Each school district shall establish a calendar for the appraisal of teachers. The appraisal period for each teacher must include all of the days of a teacher's contract. Observations during the appraisal period must be conducted during the required days of instruction for students during one school year. The appraisal period: (1) shall exclude the first two weeks of instruction; (2) shall prohibit observations on the last day of instruction before any official school holiday or on any other day deemed inappropriate by the school district board of trustees; and (3) shall indicate a period for summative annual conferences that ends no later than 15 working days before the last day of instruction for students. (e) During the appraisal period, the appraiser shall evaluate and document teacher performance specifically related to the domain criteria as identified in sec.150.1002(b) of this title (relating to Assessment of Teacher Performance). (f) The appraiser is responsible for documentation of the cumulative data identified in subsection (b)(5) of this section. Any third-party information from a source other than the teacher's supervisor that the appraiser wishes to include as cumulative data shall be verified and documented by the appraiser. Any documentation that will influence the teacher's summative annual appraisal report must be shared in writing with the teacher within ten working days of the appraiser's knowledge of the occurrence. The principal shall also be notified in writing when the appraiser is not the teacher's principal. (g) By mutual consent of the teacher and the appraiser, the required minimum of 45 minutes of observation may be conducted in shorter time segments. The time segments must aggregate to at least 45 minutes. (h) A written summative annual appraisal report shall be shared with the teacher no later than five working days before the summative conference and no later than 15 working days before the last day of instruction for students. The written summative annual appraisal report shall be placed in the teacher's personnel file by the end of the appraisal period. (i) Unless waived in writing by the teacher, a summative conference shall be held within a time frame specified on the school district calendar and no later than 15 working days before the last day of instruction for students. The summative conference shall focus on the written summative report and related data sources. (j) In cases where the appraiser is not an administrator on the teacher's campus, either the principal, assistant principal, or another supervisory staff member designated as an administrator on the campus will participate in the summative annual conference. (k) Any documentation collected after the summative conference but before the end of the contract term during one school year may be considered as part of the appraisal of a teacher. If the documentation affects the teacher's evaluation in any domain, another summative report shall be developed and another summative conference shall be held to inform the teacher of the change(s). sec.150.1004.Teacher in Need of Assistance. (a) A teacher whose performance meets any of the following circumstances will be designated as a "teacher in need of assistance": (1) a teacher who is evaluated as unsatisfactory in one or more domains; or (2) a teacher who is evaluated as below expectations in two or more domains. (b) When a teacher is designated as a teacher in need of assistance, the appraiser and/or the teacher's supervisor shall, in consultation with the teacher, develop an intervention plan that includes the following: (1) domain(s) that designate a teacher as a teacher in need of assistance; (2) directives or recommendations for professional improvement activities; (3) evidence that is used to determine successful completion of professional improvement activities; (4) directives for changes in teacher behavior; (5) evidence that is used to determine if teacher behavior has changed; and (6) specific time line for successful completion. (c) In cases when the teacher's appraiser is not the teacher's principal, the principal shall be involved in the development and evaluation of the intervention plan. (d) A teacher who has not met all requirements of the intervention plan for teachers in need of assistance by the time specified may be considered for separation from the assignment, campus, and/or district. (e) The intervention plan shall include options for professional development activities designed to enhance teacher proficiency. At least one option shall not place significant financial burden on either the teacher or the school district. (f) An intervention plan may be developed at any time at the discretion of the appraiser when the appraiser has documentation that would potentially produce an evaluation rating of "below expectations" or "unsatisfactory". sec.150.1005.Teacher Response and Appeals. (a) A teacher may submit a written response or rebuttal at the following times: (1) after receiving a written observation summary, or any other written documentation associated with the teacher's appraisal; and/or (2) after receiving a written summative annual appraisal report. (b) Any written response or rebuttal must be submitted within ten working days of receiving a written observation summary, a written summative annual appraisal report, or any other written documentation associated with the teacher's appraisal. At the discretion of the appraiser, the time period may be extended to 15 working days. (c) A teacher may request a second appraisal by another appraiser at the following times: (1) after receiving a written observation summary with which the teacher disagrees; and/or (2) after receiving a written summative annual appraisal report with which the teacher disagrees. (d) The second appraisal must be requested within 10 working days of receiving a written observation summary or a written summative annual appraisal report. At the discretion of the appraiser, the time period may be extended to 15 working days. (e) A teacher may be given advance notice of the date or time of a second appraisal, but advance notice is not required. (f) The second appraiser shall appraise the teacher in all domains. The second appraiser shall make observations and walk-throughs as necessary to evaluate Domains I through V. The second appraiser shall use the Teacher Self-Report Form and cumulative data from the first appraisal to evaluate Domains VI through VIII. Cumulative data may also be used by the second appraiser to evaluate other domains. (g) Each school district shall adopt written procedures for a teacher to present grievances and receive written comments in response to the written annual report. Each district shall also adopt written procedures for determining the selection of second appraisers. These procedures shall be disseminated to each teacher at the time of employment and updated annually or as needed. sec.150.1007.Teacher Orientation. (a) A school district shall ensure that all teachers are provided with an orientation of the Professional Development and Appraisal System (PDAS) no later than the final day of the first three weeks of school and at least three weeks before the first observation. (1) Additional orientations shall be provided any time substantial changes occur in the PDAS. (2) A teacher new to the district shall be provided with an orientation of the PDAS at least three weeks before the teacher's first observation. (b) Teachers' orientation shall include materials approved by the commissioner of education. These materials shall include all state and local appraisal policies, the local appraisal calendar, and information on the requirements for the completion of the Teacher Self-Report Form. In addition to the orientation, campuses may hold other sessions sufficient in length allowing teachers to actively participate in a discussion of the PDAS specifics and to have their questions answered. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705838 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: May 22, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 463-9701 SUBCHAPTER BB.Administrator Appriasal 19 TAC sec.150.1021, sec.150.1022 The new sections are adopted under the Texas Education Code, sec.sec.21.351- 21.356, which authorizes the commissioner of education to adopt a recommended appraisal process and criteria on which to appraise the performance of teachers and various classifications of school administrators. The sections also direct the commissioner to develop and periodically update a job description and an evaluation form for use by school districts in evaluating school counselors. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705837 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: May 22, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 463-9701 19 TAC sec.sec.150.1001-150.1006 The Texas Education Agency (TEA) adopts the repeal of sec.sec.150.1001-150.1006, concerning teacher and administrator appraisal systems, without changes to the proposed text as published in the February 25, 1997, issue of the Texas Register (22 TexReg 1949). The sections establish definitions, requirements, and procedures related to the appraisal process and criteria on which the performance of teachers and administrators is appraised. A new Chapter 150 (relating to Commissioner's Rules Concerning Educator Appraisal) is adopted in a separate submission. The repeals are adopted under Texas Education Code, sec.sec.21.351-21.356, which authorizes the commissioner of education to adopt a recommended appraisal process and criteria on which to appraise the performance of teachers. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705836 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: May 22, 1997 Proposal publication date: February 25, 1997 For further information, please call: (512) 463-9701 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 3. Memorandums of Understanding with Other State Agencies 25 TAC sec.3.41 The Texas Department of Health (department) adopts new sec.3.41, concerning its activities with the Texas Health Care Information Council (council), with changes to the proposed text as published in the February 4, 1997, issue of the Texas Register (22 TexReg 1302). The new section defines terms commonly used in working with the council, specifies contracting requirements between the department and the council, sets forth parameters for data submission and collection by the department on behalf of the council, establishes the authority of the department to inspect records of data sources and sets penalties for release of confidential data. The new section implements House Bill 1048, 74th Legislature, 1995, which created the council (Health and Safety Code, Chapter 108) and provided the Board of Health (board) with the authority to adopt rules regarding its activities with the council. Comments were received from the Texas Health Care Information Council and from department staff. The comments were primarily directed toward changes in the proposed rule that are required to maintain consistency with the memorandum of understanding (MOU) recently negotiated between the department and the council. The comments and the department's responses to the comments follow. Comment: Concerning sec.3.41(c)(1), a commenter stated that there is reference to "the council and the commissioner" and that sec.3.41(a) includes a definition for "council," but no definition for "commissioner" is specified. Response: The department agrees and has added the definition for "commissioner" to sec.3.41(a); and subsequent definitions in sec.3.41(a) have been renumbered accordingly. Comment: One commenter noted that sec.3.41(e) did not include language on legal support and was inconsistent with the MOU. Response: The department acknowledges that language should be added to address legal support and has added paragraph (8) to sec.3.41(e) regarding legal support which is consistent with the MOU. Comment: One commenter noted that sec.3.41(e)(1) included information inconsistent with the MOU. Response: The department agrees and has reworded sec.3.41(e)(1) to require written notification from the council for the department to process leave and payroll. The language on travel has been rewritten as paragraph (2) under sec.3.41(e); and subsequent paragraphs have been renumbered accordingly. Comment: A commenter noted that sec.3.41(e)(3), concerning human resources responsibilities, was inconsistent with language in the MOU. Response: The department agrees and has revised the paragraph to provide consistency. Since the paragraphs were renumbered, this paragraph is now paragraph (4) in the final rule. Comment: Regarding sec.3.41(e)(4), one commenter suggested that language included in the MOU regarding expenditure of council funds and appropriation requests for the council be included. Response: The department agrees and has added language accordingly in final sec.3.41(e)(5). Comment: One commenter noted that the MOU between the department and council addressed logistical support for council activities. The proposed rule did not address this issue. Response: The department agrees and has added language covering this function in new paragraph (7) of sec.3.41(e). Comments on the proposed rules were received from the Texas Health Care Information Council and department staff. The comments were generally in favor of the rules; however, they raised questions, offered comments and made suggestions as previously mentioned. This section is adopted under the Health and Safety Code, Chapter 108, which requires that the board adopt rules concerning the inspections of documents, and its contract with the Texas Health Care Information Council; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.3.41. Contract with the Texas Health Care Information Council. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise. (1) Commissioner - Commissioner of Health. (2) Council - Texas Health Care Information Council. (3) Data - Information collected under the Health and Safety Code, Chapter 108, relating to the Texas Health Care Information Council. (4) Department - Texas Department of Health. (b) Contract with the Texas Health Care Information Council. (1) The department shall enter into a contract(s) with the council. (2) The contract(s) will specify the duties of, and the reimbursement to be received by, the department for: (A) performing data collection specified in the Health and Safety Code, Chapter 108, and rules of the council authorized by that chapter; (B) providing administrative and legal support to the council, as described in subsection (e) of this section; (C) assisting in the preparation of, and submitting the council's budget request to the legislature; and (D) performing other services negotiated by the parties. (3) The contract(s) shall coordinate administrative responsibilities with the council to avoid unnecessary duplication of the collection of data and other duties. (4) The contract(s) shall be governed by the Interagency Cooperation Act, Texas Government Code, Chapter 771. (c) Data submission and collection. (1) The department, or an entity it shall select, is established as the single collection point for receipt of data from providers. With the approval of the council and the commissioner, the department may transfer collection of any data required to be collected by the department under any law to the statewide health care data collection system. (2) The department shall work with the council and the Texas Department of Information Resources to develop and implement the statewide health care data collection system and maintain consistency with the standards of the Texas Department of Information Resources. (3) The department shall give the council access to data collected by the department on written request of the council. (d) Review powers of the department. (1) The department may inspect documents and records used by data sources that are required to provide data and reports required by the Health and Safety Code, Chapter 108, subject to the following. (A) All data collected and used by the department and the council under Chapter 108 are subject to the confidentiality provisions and criminal penalties of : (i) the Health and Safety Code, sec.311.037, relating to confidential data submitted to the department under the hospital data reporting and data system; (ii) the Health and Safety Code, sec.81.103, relating to the confidentiality of information relating to acquired immune deficiency syndrome and related disorders; and (iii) the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.5.08, relating to physician-patient communication. (B) A person who knowingly or negligently releases data in violation of the Health and Safety Code, Chapter 108, is liable for a civil penalty of not more than $10,000. (2) The department may compel providers to produce accurate documents and records of data. (e) Administrative and legal support. (1) The department shall process the necessary paperwork including, but not limited to, staff leave documentation and payroll processing for staff, upon written request by the council. Payroll will be approved in writing by council. (2) Travel vouchers for council members and staff will be completed by council staff and forwarded to the department for processing. The department shall process completed travel vouchers for council members and staff according to normal department processing standards. (3) The department shall process all purchase requests upon written approval by the council and subsequent written notification to the department. Purchases will be in the name of the council. (4) The department shall post all vacant council positions as requested by the council and shall process personnel actions submitted by the council. The council shall advise applicants on application procedures, collect applications for employment, screen applications when applicable, interview applicants, and make selections for employment. The department shall advise the council on relevant state personnel policies and procedures, as requested. (5) The department shall process budget revisions and perform other budget management activities upon written request from the council. The department will advise the council regarding any time lines, deadlines, or other requirements relating to expenditures from current funds and to the preparation or submission of appropriation requests or related documents. (6) The department shall provide computer systems support and technical assistance upon written request from the council. (7) The department shall provide logistical assistance for the council's meetings, committee meetings, and public hearings, upon written request from the council. (8) The department shall provide legal services to the council in the event that the Office of the Attorney General is unable to provide legal services and to the extent that there is no conflict of interest between the department and the council. The council shall follow department administrative procedures relating to legal services. 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. Issued in Austin, Texas, on April 30, 1997. TRD-9705720 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 20, 1997 Proposal publication date: February 4, 1997 For further information, please call: (512) 458-7236 CHAPTER 133. Hospital Licensing SUBCHAPTER D. Special Service Requirements 25 TAC sec.133.52 The Texas Department of Health (department) adopts an amendment to sec.133.52, concerning standards for the provision of mental health services in an identifiable part of a hospital, with changes to the proposed text as published in the January 31, 1997, issue of the Texas Register (22 TexReg 1050). The amendment requires hospitals providing mental health services in an identifiable part of the hospital to have written admission criteria that are applied uniformly to all patients who are admitted to the identifiable part of the hospital, and to comply with specific rules adopted by the Texas Board of Mental Health and Mental Retardation (TXMHMR). The requirements are set out in subsections (a) and (b)(1)-(5). The Texas Hospital Licensing Law, Health and Safety Code, sec.241.0265 states that the care and treatment of a patient receiving mental health services in a hospital is governed by the standards adopted by TXMHMR to the same extent as if the TXMHMR standards were rules adopted by the Board of Health. The department is required to enforce the TXMHMR standards. TXMHMR contemporaneously repealed and adopted new rules as follows: Chapter 401, Subchapter J (relating to Standards of Care and Treatment in Psychiatric Hospitals), as referenced in sec.133.52(b)(1), was adopted effective September 13, 1996; Chapter 405, Subchapter FF (relating to Consent to Treatment with Psychoactive Medication), as referenced in sec.133.52(b)(4), was adopted effective October 1, 1996; and Chapter 405, Subchapter F (relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs (formerly titled Restraint and Seclusion in Mental Health Facilities)), as referenced in sec.133.52(b)(5), was adopted effective October 1, 1996. TXMHMR amended Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services), as referenced in sec.133.52(b)(2), effective October 1, 1996. TXMHMR made no changes to Chapter 405, Subchapter E (relating to Electroconvulsive Therapy) as referenced in sec.133.52(b)(3). The amendment to subsection (a) clarifies that the requirement for written admission criteria that are applied uniformly to all patients applies only to patients who are admitted to an identifiable part of the hospital. The amendment to subsection (b) clarifies that compliance with the TXMHMR rules pertains only to an identifiable part of the hospital; deletes the effective dates of the TXMHMR rules so that the TXMHMR rules are accurately described and so that the department will not have to amend its rules next time TXMHMR revises its rules; deletes a sentence in subsection (b)(2) which is unnecessary because posting and language requirements are contained in the referenced TXMHMR rule; deletes a provision in subsection (b)(4) which no longer applies due to TXMHMR's deletion of the funding provision from the TXMHMR rule; and reflects the new title of the TXMHMR rule referenced in subsection (b)(5). The amendment is necessary in order to meet the requirements of the Texas Hospital Licensing Law to enforce the revisions made by TXMHMR, and to prevent confusion among hospitals as to which rules are in effect. The following comments were received concerning the proposed amendment. Following each comment is the department's response and the resulting change. Comment: Concerning sec.133.52(a) and (b), one commenter requested language be added to the subsections to clarify the requirements pertain only in the identifiable part of a hospital. The commenter recommended the language in order to clear up the ambiguity created by the section caption which the commenter believes is inconsistent with the actual language of the rule. Response: The department agrees with the commenter and has added the requested language to subsections (a) and (b). Comment: Concerning subsection (b)(2), one commenter recommended the department delete the sentence which requires posting of the patient's bill of rights for display in English and in a second language appropriate to the demographic makeup of the community served. The commenter stated the sentence is unnecessary because language and posting of patient rights requirements are contained in the referenced TXMHMR rule. Response: The department agrees with the commenter and has deleted the sentence. The comments on the proposed rules were received from Fulbright & Jaworski, L.L.P., and from department staff. The commenters were generally in favor of the amendment, but they made recommendations which have been incorporated. The amendment is adopted under the Health and Safety Code, Chapter 241, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of hospitals; Chapter 321 which provides the board with the authority to adopt a patient bill of rights; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.133.52. Standards for the Provision of Mental Health Services In an Identifiable Part of a Hospital. (a) Admission criteria. A hospital providing mental health services in an identifiable part of the hospital must have written admission criteria that are applied uniformly to all patients who are admitted to the identifiable part. (b) Compliance. A hospital providing mental health services in an identifiable part of the hospital shall comply with the following rules adopted by the Texas Board of Mental Health and Mental Retardation (TXMHMR): (1) Chapter 401, Subchapter J of this title (relating to Standards of Care and Treatment in Psychiatric Hospitals); (2) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (3) Chapter 405, Subchapter E of this title (relating to Electroconvulsive Therapy); (4) Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication); and (5) Chapter 405, Subchapter F of this title (relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs). 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. Issued in Austin, Texas, on April 30, 1997. TRD-9705747 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 20, 1997 Proposal publication date: January 31, 1997 For further information, please call: (512) 458-7236 CHAPTER 134. Private Psychiatric Hospitals and Crisis Stabilization Units SUBCHAPTER C. Operational Requirements 25 TAC sec.134.22 The Texas Department of Health (department) adopts an amendment to sec.134.22, concerning standards for the provision of mental health services in hospitals and crisis stabilization units, with changes to the proposed text as published in the January 31, 1997, issue of the Texas Register (22 TexReg 1051). The amendment requires private psychiatric hospitals and crisis stabilization units to comply with specific rules adopted by the Texas Board of Mental Health and Mental Retardation (TXMHMR) which are set out in subsection (b)(1)(A)-(E). The Texas Hospital Licensing Law, Health and Safety Code, sec.241.0265 states that the care and treatment of a patient receiving mental health services in a hospital is governed by the standards adopted by TXMHMR to the same extent as if the TXMHMR standards were rules adopted by the Board of Health. The department is required to enforce the TXMHMR standards. TXMHMR contemporaneously repealed and adopted new rules as follows: Chapter 401, Subchapter J (relating to Standards of Care and Treatment in Psychiatric Hospitals), as referenced in sec.134.22(b)(1)(A), was adopted effective September 13, 1996; Chapter 405, Subchapter FF (relating to Consent to Treatment with Psychoactive Medication), as referenced in sec.134.22(b)(1)(D), was adopted effective October 1, 1996; and Chapter 405, Subchapter F (relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs (formerly titled Restraint and Seclusion in Mental Health Facilities)), as referenced in sec.134.22(b)(1)(E), was adopted effective October 1, 1996. TXMHMR amended Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services), as referenced in sec.134.22(b)(1)(B), effective October 1, 1996. TXMHMR made no change to Chapter 405, Subchapter E (relating to Electroconvulsive Therapy) as referenced in sec.134.22(b)(1)(C), or to Chapter 401, Subchapter K (relating to Rules Governing Licensure of Crisis Stabilization Units) as referenced in sec.134.22(b)(2). The amendment to subsection (b)(1)(A)-(E) deletes the effective dates to allow for future revisions of the TXMHMR rules so that the TXMHMR rules are accurately described and so that the department will not have to amend its rules next time TXMHMR revises its rules; deletes a sentence in subsection (b)(1)(B) which is unnecessary because posting and language requirements are contained in the referenced TXMHMR rule; deletes a provision in subsection (b)(1)(D) which no longer applies due to TXMHMR's deletion of the funding provision from the TXMHMR rule; and reflects the new title of the TXMHMR rule referenced in subsection (b)(1)(E). The amendment is necessary in order to meet the requirements of the Texas Hospital Licensing Law to enforce the revisions made by TXMHMR effective September 13, 1996, and October 1, 1996, and to prevent confusion among private mental hospitals as to which rules are in effect. The department received no public comments during the comment period for this amendment. However, the department is making the following minor change due to staff recommendations to delete unnecessary language. Change: Concerning adopted subsection (b)(1)(B), the department deleted the sentence which requires posting of the patient's bill of rights for display in English and in a second language appropriate to the demographic makeup of the community served. The sentence is unnecessary because language and posting of patient rights requirements are contained in the referenced TXMHMR rule. The amendment is adopted under the Health and Safety Code, Chapter 577, which provides the Texas Board of Health (board) with authority to adopt rules to establish and enforce minimum standards for the licensing of private mental hospitals and certain mental health facilities; sec.241.0265 which provides the board with authority to enforce TXMHMR standards and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. sec.134.22. Standards for the Provision of Mental Health Services In Hospitals and Crisis Stabilization Units. (a) (No change.) (b) Compliance. (1) A hospital shall comply with the following rules adopted by the Texas Board of Mental Health and Mental Retardation (TXMHMR): (A) Chapter 401, Subchapter J of this title (relating to Standards of Care and Treatment in Psychiatric Hospitals); (B) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (C) Chapter 405, Subchapter E of this title (relating to Electroconvulsive Therapy); (D) Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication); and (E) Chapter 405, Subchapter F of this title (relating to Voluntary and Involuntary Behavioral Interventions in Mental Health Programs). (2) (No change.) 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. Issued in Austin, Texas, on April 30, 1997. TRD-9705749 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 20, 1997 Proposal publication date: January 31, 1997 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 50. Action on Applications SUBCHAPTER C. Action by Executive Director 30 TAC sec.50.45 The commission adopts new sec.50.45, concerning nonsubstantive corrections to permits, with changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 592). The purpose of this rulemaking is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. Program specific requirements governing corrections and endorsements in Chapters 291, 295, 297, and 305 are being repealed concurrently. EXPLANATION OF ADOPTED RULE. The new section is divided into three subsections. Subsection (a) provides that the section applies to a permit as defined in 30 TAC sec.3.2, concerning Definitions, except that it does not apply to air quality permits under Chapter 122, concerning Federal Operating Permits. The subsection allows the executive director, on his own motion or at the request of the permittee, to make a nonsubstantive correction to a permit without observing formal amendment or public notice procedures. The executive director must notify the permittee that the correction has been made and forward a copy of the endorsement or corrected permit for filing in the agency's official records. New subsection (b) provides the conditions under which the executive director can issue the nonsubstantive permit corrections, such as corrections of typographical errors, changes to a mailing address, and corrections that provide more accurate information. New subsection (c) provides for the review of certain proposed corrections by the general counsel within five business days. The subsection as proposed was amended to allow certain changes to proceed without general counsel review, and to allow the executive director to issue the correction if the general counsel takes no action within the five business days. If the general counsel determines that the proposed correction should not be issued, the matter may be set for commission action during a commission meeting. The proposal was further modified to provide the public interest council the opportunity to review the proposed correction and provide comment to the general counsel. Changes to the proposal were made to further refine the process. TAKINGS IMPACT STATEMENT. The commission has prepared a Takings Impact Assessment for the rule pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rule is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. The rule will substantially advance this specific purpose by placing certain agency requirements governing nonsubstantive permit corrections under a common section. Promulgation of the rule will not burden private real property which is the subject of the rule because it concerns only procedural rules. Also, the following exceptions to the application of the Texas Government Code, Chapter 2007 apply to the rule: the action significantly advances the health and safety purpose and imposes no greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS. A public hearing was held to receive oral and written comment on the proposed rules at commission offices in Austin on February 5, 1997. The public comment period closed February 10, 1997. No written or oral testimony was received on the proposed rule. STATUTORY AUTHORITY. The new section is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. sec.50.45. Corrections to Permits. (a) This section applies to a permit as defined in sec.3.2 of this title (relating to Definitions), except that it does not apply to air quality permits under Chapter 122 of this title (relating to Federal Operating Permits). The executive director, on his own motion or at the request of the permittee, may make a nonsubstantive correction to a permit either by reissuing the permit or by issuing an endorsement to the permit, without observing formal amendment or public notice procedures. The executive director must notify the permittee that the correction has been made and forward a copy of the endorsement or corrected permit for filing in the agency's official records. (b) The executive director may issue nonsubstantive permit corrections under this section: (1) to correct a clerical or typographical error; (2) to change the mailing address of the permittee, if updated information is provided by the permittee; (3) if updated information is provided by the permittee, to change the name of an incorporated permittee that amends its articles of incorporation only to reflect a name change, provided that the secretary of state can verify that a change in name alone has occurred; (4) to describe more accurately the location of the area certificated under a certificate of convenience and necessity; (5) to update or redraw maps that have been incorporated by reference in a certificate of convenience and necessity; (6) to describe more accurately in a water rights permit or certificate of adjudication the boundary of or the point, rate, or period of diversion of water; (7) to describe more accurately the location of the authorized point or place of discharge, injection, deposit, or disposal of any waste, or the route which any waste follows along the watercourses in the state after being discharged; (8) to describe more accurately the pattern of discharge or disposal of any waste authorized to be disposed of; (9) to describe more accurately the character, quality, or quantity of any waste authorized to be disposed of; or (10) to state more accurately or update any provision in a permit without changing the authorizations or requirements addressed by the provision. (c) Before the executive director makes a correction to a permit under this section, the executive director shall inform the general counsel of the proposed correction, and shall provide a copy of such information to the public interest counsel. Review by the general counsel and the public interest counsel under this subsection does not apply to a correction described in subsection (b)(2) or (3) of this section. The public interest counsel shall advise the general counsel of any objections to the proposed correction. The general counsel shall act within five business days of receiving the executive director's proposal. If the general counsel determines that the proposed correction should not be issued under this section, the executive director shall not issue the correction, but may set the matter for commission action during a commission meeting. If the general counsel fails to act within five business days, the executive director may issue the correction as proposed. 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. Issued in Austin, Texas, on April 16, 1997. TRD-9705742 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 20, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1966 CHAPTER 101.General Rules 30 TAC sec.101.1 The commission adopts an amendment to sec.101.1, concerning Definitions, with changes to the proposed text as published in the November 19, 1996, issue of the Texas Register (21 TexReg 11229). The commission adopts these revisions to Chapter 101 and to the State Implementation Plan in order to make a variety of changes which clarify existing definitions and repeal obsolete definitions. EXPLANATION OF ADOPTED RULE The changes generalize the definitions of component and leak by deleting references to Chapter 115 rules which are currently referenced in these definitions; replace the definition of delivery vessel/tank- truck tank with a definition of tank-truck tank to ensure the use of consistent terminology in various rules; revise the definition of Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch distillation operation, SOCMI batch process, SOCMI distillation operation, SOCMI distillation unit, and SOCMI reactor process to clarify the applicability of these definitions; delete the definitions of polyester resin materials, polyester resin operation, and utility engines because the rules for which these definitions were developed have been repealed; revise the definition of volatile organic compound (VOC) for consistency with the recently revised federal definition; and revise the definition of vehicle refinishing (body shops) by deleting the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and vehicles by private individuals from the list of operations which are excluded from this definition. This action will clarify that the exclusion was not intended to be generally applicable to all air regulations, only to Chapter 115. In concurrent action, the commission added an exemption to sec.115.427, concerning Exemptions, which excludes the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and vehicles by private individuals from the Chapter 115 vehicle refinishing (body shops) emission specifications and control requirements. The changes to the definition of VOC add 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca), 1,3-dichloro- 1,1,2,2,3-pentafluoropropane (HCFC-225cb), and 1,1,1,2,3,4,4,5,5,5- decafluoropentane (HFC 43-10mee) to the list of compounds which are not classified as VOCs. The United States Environmental Protection Agency (EPA) has ruled that these compounds have negligible photochemical reactivity, and thus do not appreciably contribute to the formation of urban ozone (final rules at 61 Federal Register 52847). TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that assessment. The specific purpose of the rule amendments is to clarify existing definitions, repeal obsolete definitions, and use consistent terminology. Promulgation and enforcement of the rule amendments will not affect private real property which is the subject of the rule because the rule changes do not impose new requirements. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et seq), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this action for consistency, and has determined that this rulemaking is consistent with the applicable CMP goals and policies. The primary CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations at Code of Federal Regulations, Title 40, to protect and enhance air quality in the coastal area. No new sources of air contaminants will be authorized by the rule revisions. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on December 13, 1996. The comment period closed December 19, 1996. No commenters submitted oral testimony. Five commenters submitted written comments on the proposal. ARCO Chemical Company (ARCO), Basis Petroleum, Inc. (Basis), Exxon Company U.S.A.-Baytown (Exxon Baytown), Mobil Oil Corporation (Mobil), and Texas Chemical Council (TCC) generally supported the proposed revisions but suggested changes or clarifications. Exxon Baytown generally supported the comments submitted by Mobil and TCC. Mobil and TCC suggested that the definition of component be revised to delete the phrase "but not limited to" and should instead list the specific types of components included. TCC also suggested that flanges and other piping connectors be added to the list of components. The commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. In addition, the corresponding definition of component in sec.115.10 was not proposed for revision. For these reasons, the commission has made no changes in response to the comments. Exxon Baytown, Mobil, and TCC suggested that the definition of leak be revised to delete the phrase "or the dripping or exuding of process fluid based on sight, sound, or smell." Exxon Baytown stated that the current leak definition is more stringent than federal requirements. Mobil and TCC stated that the suggested change would allow incorporating the option of leak verification by instrument monitoring of components which are found by sight/sound/smell to be dripping or exuding process fluid. The current definition of leak was adopted on May 10, 1991, in response to EPA requirements. Because the suggested changes would represent a relaxation of existing requirements, the commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. Therefore, the commission has made no changes in response to the comments. However, because the term "leak" is used in a variety of rules in addition to the fugitive monitoring rules, the commission has retained the 10,000 parts per million by volume (ppmv) level which was proposed for deletion and has also retained the proposed reference to the concentration level specified by the applicable rule to address situations in which the rules specify a leak threshold lower than 10,000 ppmv. ARCO and TCC recommended the addition of a new definition of storage tank valve. TCC suggested that pressure/vacuum relief valve vent be used rather than the term storage tank valve. The commenters did not include suggested language for these terms. This issue is one which was already scheduled to be addressed in future rulemaking (Fugitive Emissions - Phase Two). In order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes, the commission is deferring this issue to future rulemaking. TCC suggested that the definition of SOCMI distillation unit clarify that certain devices (such as carbon adsorbers) which recover chemicals for use as a combustion fuel are considered to be recovery devices, or alternatively are considered to be recapture devices. The definition of SOCMI distillation unit includes "recovery devices (such as absorbers, carbon adsorbers, and condensers) which are capable of, and used for, recovering chemicals for use, reuse, or sale." The commission believes it is clear that use of recovered chemicals for their fuel value would be considered "use or reuse" under this definition. Therefore, the commission has made no change in response to the comment. Basis recommended that vacuum trucks be excluded from the definition of tank- truck tank. The commission agrees and has incorporated this suggestion for consistency with the definition of transport vessel. TCC supported the proposed changes to the definition of VOC which add 3,3- dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca), 1,3-dichloro-1,1,2,2,3- pentafluoropropane (HCFC-225cb), and 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee) to the list of compounds which are not classified as VOCs. The commission appreciates the support. STATUTORY AUTHORITY The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.1.Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (commission), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Component-A piece of equipment, including, but not limited to, pumps, valves, compressors, and pressure relief valves, which has the potential to leak volatile organic compounds. Leak-A volatile organic compound concentration greater than 10,000 parts per million by volume (ppmv) or the amount specified by applicable rule, whichever is lower; or the dripping or exuding of process fluid based on sight, smell, or sound. Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch distillation operation-A SOCMI noncontinuous distillation operation in which a discrete quantity or batch of liquid feed is charged into a distillation unit and distilled at one time. After the initial charging of the liquid feed, no additional liquid is added during the distillation operation. Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch process-Any SOCMI noncontinuous reactor process which is not characterized by steady-state conditions, and in which reactants are not added and products are not removed simultaneously. Synthetic Organic Chemical Manufacturing Industry (SOCMI) distillation operation-A SOCMI operation separating one or more feed stream(s) into two or more exit streams, each exit stream having component concentrations different from those in the feed stream(s). The separation is achieved by the redistribution of the components between the liquid and vapor-phase as they approach equilibrium within the distillation unit. Synthetic Organic Chemical Manufacturing Industry (SOCMI) distillation unit-A SOCMI device or vessel in which distillation operations occur, including all associated internals (including, but not limited to, trays and packing), accessories (including, but not limited to, reboilers, condensers, vacuum pumps, and steam jets), and recovery devices (such as absorbers, carbon adsorbers, and condensers) which are capable of, and used for, recovering chemicals for use, reuse, or sale. Synthetic Organic Chemical Manufacturing Industry (SOCMI) reactor process-A SOCMI unit operation in which one or more chemicals, or reactants other than air, are combined or decomposed in such a way, that their molecular structures are altered and one or more new organic compounds are formed. Tank-truck tank-Any storage tank having a capacity greater than 1,000 gallons, mounted on a tank-truck or trailer. Vacuum trucks used exclusively for maintenance and spill response are not considered to be tank-truck tanks. Vehicle refinishing (body shops)-The repair and recoating of vehicles, including, but not limited to, motorcycles, passenger cars, vans, light-duty trucks, medium-duty trucks, heavy-duty trucks, buses, and other vehicle body parts, bodies, and cabs by a commercial operation other than the original manufacturer. The repair and recoating of trailers and construction equipment are not included. Volatile organic compound-Any compound of carbon or mixture of carbon compounds excluding methane, ethane, 1,1,1-trichloroethane (methyl chloroform), methylene chloride (dichloromethane), perchloroethylene (tetrachloroethylene), trichlorofluoromethane (CFC-11), dichlorodifluoromethane (CFC-12), chlorodifluoromethane (HCFC-22), trifluoromethane (HFC-23), 1,1,2-trichloro- 1,2,2-trifluoroethane (CFC-113), 1,2-dichloro-1,1,2,2-tetrafluoroethane (CFC- 114), chloropentafluoroethane (CFC-115), 1,1,1-trifluoro-2,2-dichloroethane (HCFC-123), 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124), pentafluoroethane (HFC-125), 1,1,2,2-tetrafluoroethane (HFC-134), 1,1,1,2-tetrafluoroethane (HFC- 134a), 1,1-dichloro-1-fluoroethane (HCFC-141b), 1-chloro-1,1-difluoroethane (HCFC-142b), 1,1,1-trifluoroethane (HFC-143a), 1,1-difluoroethane (HFC-152a), parachlorobenzotrifluoride (PCBTF), cyclic, branched, or linear completely methylated siloxanes, acetone, 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC- 225ca), 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb), 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee), carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, ammonium carbonate, and perfluorocarbon compounds which fall into these classes: (A)-(D) (No change.) 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705876 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 CHAPTER 115.Control of Air Pollution From Volatile Organic Compounds The commission adopts amendments to sec.115.10, concerning Definitions; sec.sec.115.112, 115.114-115.116, and 115.119, concerning Storage of Volatile Organic Compounds (VOC); sec.sec.115.121-115.123, 115.126, 115.127 and 115.129, concerning Vent Gas Control; sec.sec.115.132, 115.136, and 115.137, concerning Water Separation; sec.sec.115.146, 115.147, and 115.149, concerning Industrial Wastewater; sec.sec.115.153, 115.156, and 115.159, concerning Municipal Solid Waste Landfills; sec.sec.115.211, 115.212, 115.214-115.217, and 115.219, concerning Loading and Unloading of VOC; sec.sec.115.221-115.223, and 115.226, concerning Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities; sec.115.253 and sec.115.256, concerning Control of Reid Vapor Pressure of Gasoline; sec.sec.115.311-115.313, and 115.319, concerning Process Unit Turn-around and Vacuum-Producing Systems in Petroleum Refineries; sec.sec.115.322-115.327 and 115.329, concerning Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties; sec.sec.115.352- 115.354, 115.356, and 115.357, concerning Fugitive Emission Control in Petroleum Refining and Petrochemical Processes in Ozone Nonattainment Areas; sec.sec.115.421, 115.422, 115.424, 115.426, and 115.427, concerning Surface Coating Processes; sec.sec.115.442, 115.446, and 115.449, concerning Offset Lithographic Printing; sec.sec.115.532, 115.533, 115.536, 115.537, and 115.539, concerning Pharmaceutical Manufacturing Facilities; and sec.sec.115.552, 115.553 and 115.559, concerning Petroleum Dry Cleaning Systems. The commission also adopts the repeal of sec.sec.115.332-115.337 and 115.339, concerning Fugitive Emission Control in Synthetic Organic Chemical, Polymer, Resin, and Methyl Tert- Butyl Ether Manufacturing Processes; and sec.sec.115.342-115.347 and 115.349, concerning Fugitive Emission Control in Natural Gas/Gasoline Processing Operations. Adopted with changes to the proposed text as published in the November 19, 1996, issue of the Texas Register (21 TexReg 11231) are sec.sec.115.10, 115.122, 115.126, 115.132, 115.137, 115.147, 115.153, 115.211, 115.212, 115.214, 115.217, 115.219, 115.222, 115.223, 115.253, 115.312, 115.313, 115.323, 115.353, 115.357, 115.422, 115.427, 115.442, 115.532, 115.533, 115.552, and 115.553. Sections 115.112, 115.114-115.116, 115.119, 115.121, 115.123, 115.127, 115.129, 115.136, 115.146, 115.149, 115.156, 115.159, 115.215, 115.216, 115.221, 115.226, 115.256, 115.311, 115.319, 115.322, 115.324-115.327, 115.329, 115.352, 115.354, 115.356, 115.421, 115.424, 115.426, 115.446, 115.449, 115.536, 115.537, 115.539, and 115.559 are adopted without changes and will not be republished. The repeals of sec.sec.115.332-115.337 and 115.339; and sec.sec.115.342-115.347 and 115.349 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES The commission adopts these revisions to Chapter 115 and to the State Implementation Plan (SIP) in order to make a variety of changes which correct and update rule references, correct references to federal test methods, clarify and add flexibility to control requirements, correct errors, extend an existing exemption for pulp and paper vent gas streams, update terminology for consistency throughout Chapter 115, add exemptions to the VOC water separation rules to complete previous rulemaking, delete two fugitive monitoring work practice requirements (directed maintenance and instrument monitoring of leaks detected by sight/sound/smell), delete definitions which are no longer needed, delete the attainment date from the contingency rules to provide future flexibility, and delete language and rules made obsolete by the passing of compliance dates. The commission also changed the title of Subchapter D to Petroleum Refining, Natural Gas Processing, and Petrochemical Operations to more accurately reflect the content of this subchapter. In addition, the commission changed the titles of two fugitive monitoring undesignated heads to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties; and Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas to more accurately reflect the rule content. A second phase of rulemaking is expected later in 1997 to address additional issues regarding the Chapter 115 fugitive monitoring rules. The changes to sec.115.10, concerning Definitions, replace the definition of delivery vessel/tank-truck tank with a definition of tank-truck tank to ensure the use of consistent terminology in various rules; revise the definition of fugitive emission for consistency with the corresponding definition in sec.101.1, concerning Definitions; update the definition of leak to be consistent with the requirements of sec.115.352, regarding Control Requirements; revise the definition of Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch distillation operation, SOCMI batch process, SOCMI distillation operation, SOCMI distillation unit, and SOCMI reactor process to clarify the applicability of these definitions; delete the definitions of polyester resin materials, polyester resin operation, and utility engines because these terms are no longer used within Chapter 115; revise the definition of VOC for consistency with the recently revised federal definition; and revise the definition of vehicle refinishing (body shops) by deleting the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and vehicles by private individuals from the list of operations which are excluded from this definition. In concurrent action, the commission added an exemption to sec.115.427, concerning Exemptions, which excludes the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and vehicles by private individuals from the Chapter 115 vehicle refinishing (body shops) emission specifications and control requirements. The changes to the definition of VOC add 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca), 1,3-dichloro- 1,1,2,2,3-pentafluoropropane (HCFC-225cb), and 1,1,1,2,3,4,4,5,5,5- decafluoropentane (HFC 43-10mee) to the list of compounds which are not classified as VOCs. The United States Environmental Protection Agency (EPA) has ruled that these compounds have negligible photochemical reactivity, and thus do not appreciably contribute to the formation of urban ozone (final rules at 61 Federal Register (FR) 52847). The changes to sec.115.112, concerning Control Requirements, clarify that the requirement for rim-mounted secondary seals is applicable to external floating roof storage tanks but not internal floating roof storage tanks. The changes to sec.115.114, concerning Inspection Requirements, correct a rule reference and revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.115, concerning Approved Test Methods, correct a reference to a federal test method and add the effective dates of referenced federal rules for consistency with the commission's style guidelines. The change to sec.115.116, concerning Monitoring and Recordkeeping Requirements, revises references to TNRCC and the executive director for consistency with the commission's style guidelines. The revision to sec.115.119, concerning Counties and Compliance Schedules, more clearly specifies the compliance schedule for a previously adopted requirement to conduct annual visual inspections of internal floating roof storage tanks in ozone nonattainment counties. The changes to sec.115.121, concerning Emission Specifications, and sec.115.122, concerning Control Requirements, substitute the term "control" for "burn" and modify the existing requirement in sec.115.122 to burn vent gas streams in a flare or direct-flame incinerator by adding an option to control the emissions with a vapor recovery system meeting a specified control efficiency. This option was previously located in sec.115.123, concerning Alternate Control Requirements. These changes, which consolidate control options and requirements into one section, make the rule more logical and eliminate confusing wording. The changes to sec.115.121(a) also consolidate previous paragraphs (2) and (3) for improved readability. In addition, the changes to sec.115.122 update rule references and revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.123, concerning Alternate Control Requirements, correct a rule reference and eliminate language which is no longer necessary due to the revisions to sec.115.121 and sec.115.122. The revisions to sec.115.126, concerning Monitoring and Recordkeeping Requirements, clarify that sec.115.126(a)(3) and sec.115.126(b)(3) are alternatives to the requirements of sec.115.126(a)(2) and sec.115.126(b)(2), respectively. The revisions to sec.115.126 also clarify that sec.115.126(a)(3) and sec.115.126(b)(3) may be used if the vent gas stream qualifies for either the VOC emission rate exemption or the VOC concentration exemption, rather than having to meet both criteria, for consistency with sec.115.127, concerning Exemptions. The revisions to sec.115.126(a)(3) and sec.115.126(b)(3) also simplify the recordkeeping requirements for exempt process vents which remain below 50% of an applicable exemption. In addition, the changes to sec.115.126 revise references to TNRCC and the executive director for consistency with the commission's style guidelines. Finally, a new sec.115.126(a)(6) has been added to relocate a flare pilot light monitoring requirement from sec.115.122(2). The revisions to sec.115.127, concerning Exemptions, update rule references and extend an existing exemption for pulp and paper vent gas streams from November 15, 1998, until November 15, 1999, due to EPA's delay in promulgating the pulp and paper industry Maximum Achievable Control Technology rules. The delay will not result in loss of SIP emission reduction credits because the reductions will still be achieved by the November 15, 1999, SIP deadline. In addition, the revisions to sec.115.127 clarify that while SOCMI batch processes are exempt from the SOCMI reactor/distillation vent gas stream control requirements, these SOCMI batch process vent gas streams continue to be subject to the general vent gas stream control requirements. This corrects an error in the rule cross- references of sec.115.127(a)(2)(E) that inadvertently occurred in the February 14, 1996, adoption of revisions to the vent gas rules. For improved readability, the revisions to sec.115.127(c) also consolidate paragraphs (1) and (2)(A)-(B), and revise the wording of the exemption in paragraph (2)(C) and relocate it to sec.115.127(c)(2). In addition, the changes to sec.115.127 add the effective dates of referenced federal rules for consistency with the commission's style guidelines. The revisions to sec.115.129, concerning Counties and Compliance Schedules, update rule references and revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.132, concerning Control Requirements, and sec.115.137, concerning Exemptions, complete a previous rulemaking action which was adopted by the commission on October 25, 1995. The revisions now being adopted could not be adopted at that time because revisions had not been proposed in the initial rulemaking proposal, as required by the Texas Register. The changes to sec.115.132 specify the conditions under which VOC water separators may vent to the atmosphere without vapor recovery, and update a rule reference. In addition, the changes to sec.115.132 and sec.115.136, concerning Monitoring and Recordkeeping Requirements, revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.137 add an exemption for VOC water separators in Gregg, Nueces, and Victoria Counties which are designed solely to capture stormwater, spills, or exterior surface cleanup waters. The changes to sec.115.146, concerning Monitoring and Recordkeeping Requirements, and sec.115.147, concerning Exemptions, revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The revisions to sec.115.147 also delete the 80% overall control option, and revise the 90% overall control option to allow companies which missed the initial control plan submittal deadlines to use this option. The revision to sec.115.149, concerning Counties and Compliance Schedules, deletes the attainment date for Beaumont/Port Arthur from the contingency rule. Elimination of the specific date will not affect the validity of this contingency rule but will provide flexibility in the event that the attainment date is changed again in the future and will eliminate the need for a future rule change in that event. The changes to sec.115.153, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. The change to sec.115.156, concerning Monitoring and Recordkeeping Requirements, and sec.115.159, concerning Counties and Compliance Schedules, revises references to TNRCC and the executive director for consistency with the commission's style guidelines. The revision to sec.115.159 also deletes an inaccurate attainment date for Houston/Galveston from the contingency rule. Elimination of the specific date will not affect the validity of this contingency rule but will provide flexibility in the event that the attainment date is changed in the future and will eliminate the need for a future rule change in that event. The changes to sec.sec.115.211, 115.212, 115.214, 115.216, 115.217, and 115.219, concerning Emission Specifications; Control Requirements; Inspection Requirements; Monitoring and Recordkeeping Requirements; Exemptions; and Counties and Compliance Schedules, delete language which no longer applies after a November 15, 1996, compliance date passed; renumber other paragraphs within these sections as appropriate; and update rule references which need to be changed due to this renumbering. In addition, the changes to sec.115.211 clarify existing requirements. The changes to sec.115.212 also update a rule reference, clarify existing requirements, specify alternatives if no documentation of a marine vessel's annual vapor tightness test is available, and specify that the requirement to discharge the vapors remaining in a transport vessel after unloading to a vapor recovery system do not apply if the transport vessel is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required. In addition, the changes to sec.sec.115.212, 115.216, and 115.217 revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.214 also update a rule reference due to a title change. The changes to sec.115.216 also add the effective dates of referenced federal rules for consistency with the commission's style guidelines. The changes to sec.115.215, concerning Approved Test Methods, add a second test method for determining marine vessel vapor tightness in order to provide additional flexibility. The changes to sec.115.217 also clarify the applicability of an existing exemption to marine loading operations and clarify that marine terminals with less than 100 tons per year (TPY) of VOC emissions only include marine loading emissions in the 100 TPY calculation. In addition, the changes to sec.115.217 add an exemption for motor vehicle fuel dispensing facilities, and make more general the location to which control plans are directed by replacing references to the Office of Air Quality with a reference to the executive director. Finally, the changes to sec.115.217 delete the 80% overall control option, and revise the 90% overall control option to allow companies which missed the initial control plan submittal deadlines to use this option. The changes to sec.sec.115.221, 115.222, and 115.226, concerning Emission Specifications; Control Requirements; and Recordkeeping Requirements, replace the term delivery vessel with tank-truck tank for consistency with the terminology elsewhere in Chapter 115. The changes to sec.115.222 also specify that the requirement to discharge the vapors remaining in a tank-truck tank after unloading to a vapor recovery system do not apply if the tank-truck tank is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required. The changes to sec.115.223, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. In addition, the changes to sec.115.226 replace certification number with the identification number and the date of the last leak testing for consistency with the requirements and terminology elsewhere in Chapter 115. The changes to sec.115.253, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. The change to sec.115.256, concerning Monitoring and Recordkeeping Requirements, revises references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.311, concerning Emission Specifications, and sec.115.312, concerning Control Requirements, substitute the term "control" for "burn" and modify the existing requirement in sec.115.312 to burn vent gas streams in a flare or direct-flame incinerator by adding an option to control the emissions with a vapor recovery system meeting a specified control efficiency. This change eliminates confusing wording while providing companies more flexibility in choosing the most cost-effective type of control. The changes to sec.115.313, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. The change to sec.115.319, concerning Counties and Compliance Schedules, deletes language made obsolete by the passing of compliance dates. The repeal of sec.sec.115.332-115.337 and 115.339; sec.sec.115.342-115.347 and 115.349; and the amendments to sec.sec.115.322-115.327 and 115.329, delete requirements which apply in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston ozone nonattainment areas that have been superseded by the requirements of sec.sec.115.352-115.357, concerning Fugitive Emission Control in Petroleum Refining, Natural Gas Processing, and Petrochemical Processes, effective November 15, 1996. The new requirements provide emission reductions required by the Federal Clean Air Act in order to reduce urban ozone pollution. Repeal of the old requirements will prevent duplicative requirements. The requirements of sec.sec.115.322-115.327 and 115.329 which apply in Gregg, Nueces, and Victoria Counties will continue to be in effect. The changes to sec.115.322, concerning Control Requirements, modify the absolute prohibition of a component leak in paragraphs (1)-(2) by revising the leak prohibition of paragraph (1) to specify that component leaks shall not continue for more than 15 days after a leak is found. The changes to sec.115.322 also replace the requirement (previously found in sec.115.324(b)(6), concerning Inspection Requirements) that leaking components be monitored with a hydrocarbon gas analyzer immediately after repair with a requirement to make a first attempt at repair within five calendar days of leak detection, with the component considered repaired when it is monitored after repairs and shown to no longer have a leak. Federal rules and guidance have been unclear as to whether follow- up monitoring is required within the fifteen-day period to confirm that a repair has occurred. The revision reduces the potential for inadvertent noncompliance, and is consistent with the proposed federal rulemaking clarification of August 26, 1996. In addition, the changes to sec.115.323, concerning Alternate Control Requirements, sec.115.324, concerning Inspection Requirements, sec.115.326, concerning Recordkeeping Requirements, and sec.115.327, concerning Exemptions, update rule references that needed revision due to the deletion of the requirements of sec.sec.115.322-115.327 which previously applied in the ozone nonattainment areas. The changes to sec.115.323 correct a rule reference and update a reference to sec.115.910 to reflect a title change. The changes to sec.115.324 also clarify that alternate monitoring schedules apply to valve monitoring. In addition, the proposed change to sec.115.325 adds the effective date of a referenced federal test method for consistency with the commission's style guidelines. The changes to sec.115.329, concerning Counties and Compliance Schedules, delete language made obsolete by the passing of a July 31, 1993, compliance date. Finally, the changes to sec.sec.115.323, 115.324, 115.326, and 115.327 revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The change to sec.115.352(1), concerning Control Requirements, clarifies that paragraph (2) contains an exception to the requirement to repair all component leaks within 15 days after the leak is found. The changes to sec.115.352 and sec.115.354, concerning Inspection Requirements, also delete the requirement that the repair of valves be accompanied by the simultaneous use of an organic vapor analyzer (OVA). This type of repair is commonly known as "directed maintenance" and was deleted due to a variety of difficulties reported concerning implementation of directed maintenance. The VOC emission reduction credit for the SIP will not change because the emission reductions were based upon the more stringent leak definition (500 parts per million by volume (ppmv), except for pump seals and compressor seals), and not upon the directed maintenance requirement. Directed maintenance was replaced with a requirement to make a first attempt at repair within five calendar days of leak detection, with the component considered repaired when it is monitored after repairs and shown to no longer have a leak. Federal rules and guidance have been unclear as to whether follow-up monitoring is required within the 15-day period to confirm that a repair has occurred. The revision reduces the potential for inadvertent noncompliance, and is consistent with the proposed federal rulemaking clarification of August 26, 1996. The changes to sec.115.353, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. The changes to sec.115.354 delete the requirement for monitoring (with an OVA) all components found to be leaking via sight/sound/smell, because these components must be repaired or placed on the shutdown list regardless of the concentration. Also, the changes to the leak skip provisions of sec.115.354(7) clarify that valves in ethylene, propane, or propylene service which have been classified under sec.115.357(8), concerning Exemptions, as non-repairable beyond the second attempt to repair at 500 ppmv will continue to count against the 2.0% leaking valves limit. In addition, the changes to sec.115.354 clarify that alternate monitoring schedules apply to valve monitoring, and allow alternate monitoring schedules previously approved under rules now being deleted (sec.sec.115.324(a)(8)(A), 115.334(3)(A), and 115.344(3)(A), concerning Inspection Requirements) to continue to be approved monitoring schedules under sec.115.354. The changes to sec.115.356, concerning Recordkeeping Requirements, clarify that "the test method used" refers to the test method used to determine a component leak: either EPA Test Method 21, or sight/sound/smell. The changes to sec.115.357 correct a typographical error, clarify that pressure relief valves equipped with a rupture disk are exempt under sec.115.357(2) provided they meet the requirements of sec.115.352(9), and clarify the repair schedule for valves in ethylene, propane, or propylene service. In addition, the changes to sec.115.354 and sec.115.356 revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The change to sec.115.421, concerning Emission Specifications, removes a date which is unnecessary because it is already given in sec.115.429. The changes to sec.115.422, concerning Control Requirements, sec.115.424, concerning Inspection Requirements, sec.115.426, concerning Monitoring and Recordkeeping Requirements, and sec.115.427, concerning Exemptions, revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The revisions to sec.115.422 also update a rule reference and make stylistic changes for consistency with the commission's style guidelines. In addition, the revisions to sec.115.427 change "automobile refinishing" to "vehicle refinishing (body shops)" for consistency with other references to these types of operations, and add an exemption to exclude the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and vehicles by private individuals from the Chapter 115 vehicle refinishing (body shops) emission specifications and control requirements. In concurrent action, the commission revised the definition of vehicle refinishing (body shops) by deleting the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and vehicles by private individuals from the list of operations which are excluded from this definition. The change to sec.115.442, concerning Control Requirements, replaces "printing facility" with "printing press" to ensure the use of consistent terminology throughout the offset printing rules. The changes to sec.115.446, concerning Monitoring and Recordkeeping Requirements, and sec.115.449, concerning Counties and Compliance Schedules, revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.449 also delete the attainment dates for Dallas/Fort Worth and Houston/Galveston from the contingency rule. Elimination of the specific dates will not affect the validity of this contingency rule but will provide flexibility in the event that the attainment dates are changed in the future and will eliminate the need for a future rule change in that event. The changes to sec.115.532, concerning Control Requirements, and sec.115.536, concerning Monitoring and Recordkeeping Requirements, make stylistic changes and revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.532 also update a rule reference. The changes to sec.115.533, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. The changes to sec.115.537, concerning Exemptions, and sec.115.539, concerning Counties and Compliance Schedules, delete language which no longer applies because the compliance date has passed. The changes to sec.115.552, concerning Control Requirements, make stylistic changes and revise references to TNRCC and the executive director for consistency with the commission's style guidelines. The changes to sec.115.553, concerning Alternate Control Requirements, correct a rule reference and update a reference to sec.115.910 to reflect a title change. The changes to sec.115.559, concerning Counties and Compliance Schedules, delete an inaccurate attainment date for El Paso and Houston/Galveston from the contingency rule. Elimination of the specific date will not affect the validity of this contingency rule in El Paso and Houston/Galveston but will provide flexibility in the event that the attainment date is changed in the future and will eliminate the need for a future rule change in that event. The changes to sec.115.559 also add a separate paragraph for each nonattainment area which identifies more clearly the specific affected ozone nonattainment counties and the specific petroleum dry cleaning rules. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated Section 2007.043. The following is a summary of that assessment. The specific purpose of the rule amendments and repeals is to make a variety of changes which correct and update rule references, correct references to federal test methods, clarify and simplify control requirements, update terminology for consistency throughout Chapter 115, add exemptions to the VOC water separation rules to complete previous rulemaking, delete ineffective requirements, delete definitions which are no longer needed, delete the attainment date from the contingency rules to provide future flexibility, and delete language made obsolete by the passing of compliance dates. Promulgation and enforcement of these rule amendments and repeals will not affect private real property which is the subject of the rules because the rule changes do not impose new requirements. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et seq), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this action for consistency, and has determined that this rulemaking is consistent with the applicable CMP goals and policies. The primary CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations at Code of Federal Regulations, Title 40, to protect and enhance air quality in the coastal area. No new sources of air contaminants will be authorized by the rule revisions. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on December 13, 1996. The comment period closed December 19, 1996. No commenters submitted oral testimony. Eleven commenters submitted written comments on the proposal. Exxon Company, U.S.A.-Baytown (Exxon Baytown) generally supported the comments submitted by Mobil Oil Corporation (Mobil) and the Texas Chemical Council (TCC). Six commenters submitted testimony on sec.115.10, concerning Definitions. ARCO Chemical Company (ARCO), City of Dallas (Dallas), Exxon Company, U.S.A.-Houston (Exxon Houston), Exxon Baytown, Mobil, and TCC generally supported the proposed revisions but suggested changes or clarifications. One commenter submitted testimony on sec.sec.115.112, 115.114-115.116, and 115.119, concerning Storage of VOC. TCC generally supported the proposed revisions but suggested changes or clarifications. Four commenters submitted testimony on sec.sec.115.121-115.123, 115.126, 115.127 and 115.129, concerning Vent Gas Control. Basis Petroleum, Inc. (Basis), Dallas, EPA, and TCC generally supported the proposed revisions but suggested changes or clarifications. Three commenters submitted testimony on sec.sec.115.132, 115.136, and 115.137, concerning Water Separation. Exxon Houston, Lockheed Martin Tactical Aircraft Systems (Lockheed), and TCC generally supported the proposed revisions but suggested changes or clarifications. One commenter submitted testimony on sec.sec.115.146, 115.147, and 115.149, concerning Industrial Wastewater. TCC generally supported the proposed revisions but suggested changes or clarifications. Three commenters submitted testimony on sec.sec.115.211, 115.212, 115.214- 115.217, and 115.219, concerning Loading and Unloading of VOC. Dallas, Houston Lighting and Power (HL&P), and TCC generally supported the proposed revisions but suggested changes or clarifications. One commenter submitted testimony on sec.sec.115.311-115.313, and 115.319, concerning Process Unit Turn-around and Vacuum-Producing Systems in Petroleum Refineries. Dallas generally supported the proposed revisions but suggested changes or clarifications. Two commenters submitted testimony on sec.sec.115.322-115.327 and 115.329, concerning Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties. Mobil and TCC generally supported the proposed revisions but suggested changes or clarifications. Three commenters submitted testimony on sec.sec.115.352, 115.353, 115.354, 115.356, and 115.357, concerning Fugitive Emission Control in Petroleum Refining and Petrochemical Processes in Ozone Nonattainment Areas. Exxon Baytown, Mobil, and TCC generally supported the proposed revisions but suggested changes or clarifications. Three commenters submitted testimony on sec.sec.115.421, 115.422, 115.424, 115.426, and 115.427, concerning Surface Coating Processes. Dallas and TCC generally supported the proposed revisions but suggested changes or clarifications. An individual opposed the proposed revisions. One commenter submitted testimony on sec.sec.115.442, 115.446, and 115.449, concerning Offset Lithographic Printing. TCC generally supported the proposed revisions but suggested changes or clarifications. One commenter submitted testimony on sec.sec.115.532, 115.533, 115.536, 115.537, and 115.539, concerning Pharmaceutical Manufacturing Facilities. TCC generally supported the proposed revisions but suggested changes or clarifications. Two commenters submitted testimony on sec.sec.115.552, 115.553, and 115.559, concerning Petroleum Dry Cleaning Systems. Dallas and TCC generally supported the proposed revisions but suggested changes or clarifications. None of the commenters submitted testimony on the proposed revisions to sec.sec.115.153, 115.156, and 115.159, concerning Municipal Solid Waste Landfills; sec.sec.115.221-115.223, and 115.226, concerning Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities; and sec.115.253 and sec.115.256, concerning Control of Reid Vapor Pressure of Gasoline. None of the commenters submitted testimony on the repeal of sec.sec.115.332-115.337 and 115.339, concerning Fugitive Emission Control in Synthetic Organic Chemical, Polymer, Resin, and Methyl Tert-Butyl Ether Manufacturing Processes; and sec.sec.115.342-115.347 and 115.349, concerning Fugitive Emission Control in Natural Gas/Gasoline Processing Operations. GENERAL COMMENTS TCC commented that the "once-in, always-in (OIAI)" rules (sec.sec.115.122(a)(4)(A), 115.132(a)(4)(A), 115.212(a)(10)(A), 115.422(3)(A), 115.532(a)(5)(A), and 115.552(b)(1)) should include reference to Chapter 106 as well as Chapter 116 because standard exemptions are being relocated to Chapter 106. The commission agrees with TCC. The suggested updating of this reference will provide continued flexibility to the regulated community. Conversely, failure to make the suggested change would increase the stringency of the OIAI rules due to the relocation of standard exemptions from Chapter 116 to Chapter 106 that became effective on March 14, 1997. Although the OIAI rules were proposed for unrelated changes, the specific subparagraphs in which the references to Chapter 116 occur were not proposed for change. On January 2, 1997, the Texas Register agreed that the commission could make the suggested changes for the reasons described above. For consistency, the commission also revised sec.sec.115.122(a)(4)(B), 115.132(a)(4)(B), 115.212(a)(10)(B), 115.422(3)(B), 115.532(a)(5)(B), and 115.552(b)(2) to include references to permit amendments and standard permits. It should be noted that the Chapter 115 rules concerning industrial wastewater and rotogravure/flexographic printing also include OIAI rules, but these sections were not proposed for change and therefore cannot be updated at this time. These rules (sec.115.142(3) and sec.115.432(a)(2)) will be proposed for revision in future rulemaking. TCC commented that the wording of recordkeeping requirements is not consistent in various sections within Chapter 115. TCC stated that the preferred wording is "... shall maintain records at the facility for at least two years and make such records available to representatives... having jurisdiction in the area upon request." Although consistency is generally desirable, the recordkeeping requirements cannot be identical across all Chapter 115 rules due to differences in rule structure which are necessary to accommodate specific requirements in some rules. Also, some differences in the recordkeeping requirements are necessary to address specific issues in certain industries. For example, the Stage II recordkeeping requirements include an allowance for gasoline stations which are ordinarily unmanned during business hours. In addition, many of the Chapter 115 recordkeeping rules were not proposed for revision at this time. The commission has made no changes in response to the comment but will continue to strive for consistency in the recordkeeping requirements where possible. TCC stated that all Chapter 115 control requirement sections should include an equivalent to 90% control efficiency and that 90% control efficiency cannot always be demonstrated. TCC cited as an example the loading of a low vapor pressure material (just over the exemption level) on a cold day. TCC noted that certain vent gas rules require 98% control efficiency or control to 20 ppmv. TCC suggested that control to a specified concentration be considered an equivalent control requirement to 90% control efficiency. While the suggestion has merit, very few of the Chapter 115 rules which require control to a specified efficiency have been proposed for revision at this time. Also, a detailed analysis of the Chapter 115 rules which specify a percent control efficiency is necessary before considering incorporation of the suggested concept. However, the commission has incorporated the suggestion into the vent gas rules. (For details, see TCC's comments on sec.115.122(a)(2) in the section on vent gas control). Finally, it should be noted that the Alternate Control Requirement sections are available for situations in which companies find a more economical or technically feasible method for achieving emission reductions than the specified control requirements. TCC stated that there should be more consistency in handling paragraphs which refer to compliance dates that have passed. TCC referred to the Chapter 115 vent gas rules, VOC loading rules, and wastewater rules and noted that some compliance dates which have passed are being deleted, while some are retained in the rules. In general, references to compliance dates which have passed are proposed for deletion. The exception is that compliance dates in the Counties and Compliance Schedules sections are retained for at least one year after the compliance date. This is a courtesy to the reader since it ensures that the reader does not have to locate and review an older version of Chapter 115 to identify the compliance date for relatively new requirements. It also heightens the regulated community's awareness of these requirements which in turn will improve the compliance rate. The commission has made no changes in response to the comment. It has come to the commission's attention that many of the alternate control requirements sections refer incorrectly to the control requirements of "this section," rather than "this undesignated head." The commission has changed "section" to "undesignated head" in sec.sec.115.153, 115.223, 115.253, 115.313, 115.323, 115.353, 115.533, and 115.553 to reflect the correct terminology. 80% AND 90% OVERALL CONTROL OPTIONS TCC noted that the 80% and 90% overall control initial plans for industrial wastewater, land-based VOC loading, and marine vessel VOC loading specified in sec.sec.115.147(5)(A), 115.217(a)(6), 115.217(a)(7), 115.217(a)(9), 115.217 (b)(4), 115.217(b)(5) were due in 1994 and 1995. TCC suggested revisions to account for the past dates and that the phrase "in order to maintain exemption status under this paragraph" be deleted from sec.115.217(a)(6)(B). TCC also suggested that any overall control option which no one used should be deleted. No one used any of the 80% overall control options, and there does not appear to be any need to retain these options. Therefore, the commission has deleted the 80% overall control options. The commission has revised the 90% overall control options to allow companies which missed the initial control plan submittal deadlines to use these options. This provides flexibility which is presently unavailable to these companies. Any newly-submitted plan must undergo review by the Engineering Services Section and must be approved before the company may use the 90% option for compliance. DEFINITIONS Comments concerning definitions used in the fugitive monitoring rules are discussed in the section titled Fugitive Monitoring and Associated Definitions. Exxon Baytown and TCC commented that the definition of tank-truck tank in sec.115.10 is inconsistent with the corresponding definition in sec.101.1. The commission has corrected the definition of tank-truck tank in sec.115.10. In response to a comment on the definition of tank-truck tank in sec.101.1, the commission excluded vacuum trucks from this definition. So that both definitions remain consistent, the commission has likewise revised the definition of tank- truck tank in sec.115.10 to exclude vacuum trucks. Exxon Houston commented on the definition of VOC water separator as it relates to three-phase separators and heater treaters used in oil and gas production and questioned whether this equipment is subject to the water separator rules. The definition of VOC water separator was not proposed for revision, and therefore comments on this definition are outside the scope of this rulemaking. However, Exxon Houston's comments on the applicability of the water separator rules to three-phase separators and heater treaters are addressed in the discussion on water separation. STORAGE OF VOC TCC commented on sec.115.114(b)(1)-(2) and (4), and sec.115.114(c)(1)-(2). TCC noted that these paragraphs require floating roof storage tanks to be emptied and degassed if seals cannot be repaired, but unlike sec.115.114(a) do not include a reference to sec.sec.115.541-115.547. TCC suggested that the degassing requirements should only apply to tanks required to be degassed by sec.sec.115.541-115.547. Sections 115.541-115.547 do not require that storage tanks be degassed. These rules do, however, establish requirements which must be met when large (1,000,000 gallons capacity or greater) storage tanks are degassed in sixteen ozone nonattainment counties. The reference to sec.sec.115.541-115.547 is contained in sec.115.114(a) but not in sec.115.114(b)-(c) because the requirements of sec.sec.115.541-115.547 do not apply in the counties affected by sec.115.114(b)-(c). The commission has made no changes in response to the comment. VENT GAS CONTROL AND PROCESS UNIT TURN-AROUND Dallas and EPA commented on sec.sec.115.122(a)(1), 115.122(b), and 115.122(c)(1) and stated that these general vent gas rules should continue to require 90% control efficiency for all control devices to ensure proper removal of pollutants. Dallas also made the same comment regarding sec.115.312(a)(2) and sec.115.312(b)(2). The commission has made the suggested revisions to sec.sec.115.122(a)(1), 115.122(b), 115.312(a)(2), and 115.312(b)(2). For consistency, the commission also has made a similar change to sec.115.122(a)(2) and sec.115.122(c)(2). Because sec.115.122(c)(1) did not previously include a 90% control efficiency requirement, however, the commission did not revise this rule to include this suggested requirement in order to avoid increasing the stringency of the requirements for existing sources. TCC commented on sec.115.122(a)(2) and suggested that the flare monitoring requirement be relocated to a new paragraph in sec.115.126(a), concerning Monitoring and Recordkeeping Requirements. The commission agrees that this monitoring requirement would be more appropriately located in sec.115.126(a) and has relocated this requirement to a new paragraph (6) as suggested. TCC suggested the addition of language similar to that of sec.115.122(a)(2) which provides the option of controlling emissions to 20 ppmv. TCC stated that this would provide additional flexibility for dilute streams. The suggested option will add flexibility without resulting in increased emissions. Therefore, the commission has added the suggested control option to sec.sec.115.122(a)(1), 115.122(b), 115.122(c)(1)(C), 115.122(c)(2)(B), 115.122(c)(3)(B), 115.122(c)(4)(B), 115.312(a)(2), and 115.312(b)(2). TCC commented that the order of sec.115.122(a)(2)(A) and (B) should be switched to be consistent with the layout of sec.115.122(a)(1). Basis suggested that burning vent gases in process heaters be allowed. TCC expressed the understanding that the term "vapor recovery system" includes direct-flame incineration and commented that sec.115.122(a)(2)(B) should be deleted because sec.115.122(a)(2)(C) already includes direct-flame incinerators. Vapor recovery system is defined as "any control system which utilizes vapor collection equipment to route VOC to a control device that reduces VOC emissions." Consequently, vapor recovery system includes both combustion devices (such as flares, incinerators) and non-combustion devices (such as carbon adsorption systems). A process heater can also be used as a control device under the definition of vapor recovery system, provided that it meets the applicable vent gas rule emission specifications, control requirements, etc. The commission has deleted sec.115.122(a)(2)(B) as suggested. Consequently, the suggested reversal of the order of sec.115.122(a)(2)(A) and (B) is unnecessary. TCC commented on the "once-in, always-in (OIAI)" requirements of sec.115.122(a)(4) and suggested substituting "to" for "and" in the phrase "...by which throughput or emission rate was reduced and less than the applicable exemption limits..." There are two independent conditions which must be satisfied to qualify for exclusion from the OIAI requirements: 1) emissions must be reduced to no more than the controlled emissions level existing before implementation of the project that reduced throughput or emissions; and 2) emissions must also be reduced to below the applicable exemption limit in sec.115.127(a). The suggested revision would retain this meaning, while improving the readability of the rule. Therefore, the commission has made the suggested change. The commission has also made the same revision to similar rules (sec.sec.115.132(a)(4), 115.212(a)(10), 115.422(a)(3), and 115.532(a)(5)). In addition, the commission has replaced the phrase "at or below" with "no more than" for improved readability. It should be noted that the Chapter 115 rules concerning industrial wastewater and rotogravure/flexographic printing also include OIAI rules, but these sections were not proposed for change and therefore cannot be updated at this time. These rules (sec.115.142(3)(A) and sec.115.432(a)(2)(A)) will be proposed for revision in future rulemaking. TCC commented on sec.115.123(a)(2) and suggested deletion or revision of this paragraph because the May 31, 1994, alternate reasonable available control technology application date has passed. This rule was not proposed for revision, and therefore the comment is outside the scope of this rulemaking. The commission has made no changes in response to the comment. TCC noted that sec.115.123(b) and (c) are essentially identical to sec.115.123(a)(1), and suggested deletion of sec.115.123(b) and (c). In general in Chapter 115, the current ozone nonattainment counties are included in the "(a)" subsections, Gregg, Nueces, and Victoria Counties are included in the "(b)" subsections, and Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties are included in the "(c)" subsections. This numbering convention was established to allow an easier determination of the applicable requirements for each of the three groups of counties. This also allows future revisions to the requirements for the ozone nonattainment counties without the possibility of inadvertently altering the requirements for the other counties. The commission has made no changes in response to the comment. Dallas commented on the term "substantially equivalent" in sec.115.123 and sec.115.313 and asked "equivalent to what?" These rules allow the use of an alternate means of control (AMOC), provided that the emission reductions resulting from the alternate methods will be substantially equivalent to the emission reductions which would occur if the facility complied directly with the control requirements or exemption criteria. The criteria used to evaluate an AMOC are described in detail in sec.sec.115.910-115.916, concerning Availability of AMOC. Dallas commented on the proposed deletion of sec.115.126(a)(3)(B) and sec.115.126(b)(3)(B) and recommended that these requirements for daily operating parameter records be retained. Dallas stated that this information is necessary to adequately demonstrate a vent's exemption status. The commission believes that calculations and test results are adequate records under sec.115.126(a)(3) and sec.115.126(b)(3) to document a vent's exemption status, provided that the documentation includes the operating parameters that occurred during any testing, and the maximum levels feasible for the process. The commission has revised sec.115.126(a)(3) and sec.115.126(b)(3) accordingly. TCC commented on sec.115.126(a)(3) and suggested that the phrase "demonstrate continuous compliance" be changed to "demonstrate continuing compliance." TCC noted that it is clear that continuous monitoring of exempted vent gas streams is not required, but stated that the phrase "continuous compliance" strikes a red flag. Continuous monitoring is not mandatory unless a rule specifically requires it. The phrase "continuous compliance" is used throughout Chapter 115 in the sections on alternate control requirements and monitoring and recordkeeping requirements. Introduction of a similar phrase such as "continuing compliance" could result in confusion. The commission has made no change in response to the comment. TCC commented on the exemptions for SOCMI reactor processes and distillation operations in sec.115.127(a)(4)(A)-(C). TCC suggested that these exemptions for batch mode, low flow rate, low concentration, and process units having a total design capacity less than 1,100 TPY for all chemicals produced within that unit be relocated to sec.115.127(a)(2) and reworded to also apply to air oxidation SOCMI processes, liquid phase polypropylene manufacturing processes, liquid phase slurry high-density polyethylene processes, and continuous polystyrene manufacturing processes. The exemptions from emission specifications for air oxidation SOCMI processes, liquid phase polypropylene manufacturing processes, liquid phase slurry high- density polyethylene processes, and continuous polystyrene manufacturing processes are contained in sec.115.127(a)(3), not sec.115.127(a)(2), and are based upon Control Techniques Guidelines (CTGs) which EPA issued for these specific processes. Likewise, the exemptions in sec.115.127(a)(4)(A)-(C) were specifically developed for SOCMI reactor processes and distillation operations in EPA's SOCMI reactor/distillation CTG. The suggested revisions would result in a relaxation of existing requirements which have been in place for years, and are not consistent with EPA requirements. The commission has made no changes in response to the comment. WATER SEPARATION Exxon Houston questioned whether three-phase separators used in oil and gas production are subject to the water separator rules. Exxon Houston stated that the primary purpose of a three-phase separator is to separate gas from liquids, with separation of VOCs from water being an ancillary result, and that VOC emissions from these pressurized vessels will occur only from a pressure relief valve during emergency conditions. Exxon Houston also questioned whether heater treaters used in oil and gas production are subject to the water separator rules and whether these units, when equipped with a vent, are subject to the vent gas rules. Exxon Houston stated that heater treaters are pressurized vessels which use heat, and sometimes chemicals, to aid in the separation of the small amount of water that remains in the crude oil or condensate stream after initial separation. Exxon Houston commented that separation of the water from the crude oil or condensate may occur in the heater treater or downstream of the heater treater and suggested that heater treaters not be considered VOC water separators when the separation of water from VOCs occurs downstream of the heater treater. Three-phase separators and heater treaters used in oil and gas production meet the definition of VOC water separator since a physical separation and removal of VOCs from water occurs. Because the Chapter 115 water separation rules apply, the general vent gas rules do not apply, as specified in sec.115.127(a)(6), (b)(3), and (c)(3). However, exemptions are available from the VOC water separator control requirements for three-phase separators and heater treaters used in oil and gas production. For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston ozone nonattainment areas, sec.115.137(a)(1) provides an exemption for any VOC water separator used exclusively in conjunction with crude oil or condensate production, provided that VOC emissions do not exceed 100 pounds per continuous 24-hour period. For Gregg, Nueces, Victoria, Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, sec.115.137(b)(1) and (c)(1) exempt VOC water separators used exclusively in conjunction with crude oil or condensate production, independent of the emission rate. TCC commented on sec.115.132(a)(1), (b)(1), and (c)(1) and stated that the last sentence of these paragraphs is either redundant with the first sentence or imposes an additional requirement of demonstrating, through testing, that a pressure or vacuum must be maintained. TCC also commented that the last sentence uses the term "well-sealed" rather than the term "sealed and totally enclose(d)" from the first sentence. TCC further suggested that the last sentence be deleted. The purpose of the proposed last sentence in sec.115.132(a)(1), (b)(1), and (c)(1) was to clarify the intent of the first sentence in these paragraphs. The commission has combined the first and last sentences of these paragraphs to make this intent more explicit. In addition, the commission deleted the specific pressure/vacuum vent settings because the proper settings depend on the size of the separator. Lockheed commented on sec.115.137(a)(2), which exempts VOC water separators which separate materials having a VOC true vapor pressure less than 0.5 pounds per square inch absolute (psia). Lockheed noted that sec.115.131(a) requires vapor recovery systems to reduce emissions to a level not to exceed a VOC true partial pressure of 0.5 psia in the vent gases to the atmosphere. Lockheed suggested that sec.115.137(a)(2) be revised to include VOC water separators which separate materials having a VOC true vapor pressure equal to 0.5 psia for consistency with sec.115.131(a). Rule 115.137(a)(2) was not proposed for revision, and therefore the comments are outside the scope of this rulemaking. However, it should be noted that sec.115.137(a)(2) is based upon the VOC true vapor pressure (the aggregate pressure of VOC vapors in equilibrium with their liquid form), while sec.115.131(a) is based upon VOC true partial pressure (the aggregate pressure due to the VOC components of a gaseous or vapor mixture, which equates to a concentration). Because sec.115.137(a)(2) and sec.115.131(a) are based upon different types of measurement, there is no inconsistency between these rules. Lockheed commented on sec.115.137(a)(3), (b)(5), and (c)(4), which exempt VOC water separators designed solely to capture stormwater, spills, or exterior surface cleanup waters from the control requirements. Lockheed commented that records would still be required for these separators, although the records would not be needed to establish that the units qualified for exemption under sec.115.137(a)(3), (b)(5), and (c)(4). Lockheed suggested that these VOC water separators be exempt from the entire undesignated head (concerning Water Separation) rather than just from the control requirements. The commission agrees and has made the suggested revisions. INDUSTRIAL WASTEWATER Comments concerning sec.115.147(5) are discussed in the section titled 80% and 90% overall control options. LOADING AND UNLOADING OF VOC TCC commented on proposed sec.115.211(a)(1) and stated that the term "transferred" is ambiguous and needs clarification. The term "transferred" is intended to mean "loaded into transport vessels," and as a practical matter, most if not all gasoline transfers at a gasoline terminal are from storage tanks into transport vessels. The commission has revised sec.115.211(a)(1) to clarify this intent. A similar change needs to be made in sec.115.211(b), but this rule was not proposed for change and will be addressed in future rulemaking. TCC commented on proposed sec.115.211(a)(3) and stated that "overall process control efficiency" for marine terminals is ambiguous and needs clarification. This rule is intended to establish the minimum acceptable efficiency of the marine terminal's control device in reducing VOCs entering the control device. For marine vessel loading operations, determining the capture efficiency of VOCs collected and delivered to the control device is problematic. Therefore, the marine vessel loading rules address capture efficiency through requirements designed to minimize leaks. Since sec.115.211(a)(3) is not intended to include capture efficiency, the commission has revised this rule to clarify that the control efficiency refers to the efficiency of the control device itself. TCC commented on proposed sec.115.212(a)(2) and noted that vapors remaining in the transport vessel after unloading must be routed to a vapor recovery system when the transport vessel is refilled, although the VOC loading rules allow some loading of transport vessels without vapor recovery (for example, under sec.115.217(a)(6), which allows a 90% overall control of VOC loading emissions). The commission agrees that the requirement to discharge the vapors remaining in the transport vessel after unloading to a vapor recovery system should not apply if the transport vessel is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required, and has revised sec.sec.115.212(a)(2), 115.212(a)(6)(C), and 115.222(7) accordingly. Similar language is needed for sec.115.212(b)(2) and sec.115.212(c)(2), but those rules cannot be clarified at this time because they were not proposed for revision. Changes to these two rules will be addressed in future rulemaking. No comments were received on sec.115.215(a)(8), which references the federal test methods in 40 CFR 63.565(c) and 40 CFR 61.304(f) for determining the vapor tightness of marine vessels. However, it has come to the commission's attention that some marine vessels, particularly those operating under a foreign flag, have been arriving at marine terminals in the Houston/Galveston ozone nonattainment area without documentation of the required annual vapor tightness test. The marine terminal operators have asked if relief from the annual vapor tightness test is available in this situation. As noted in the discussion of a comment on sec.115.211(a)(3), the marine vessel loading rules include measures designed to minimize leaks as a means of ensuring good capture efficiency from marine vessel loading operations. Specifically, these measures include sec.115.212(a)(8)(B), which requires that only certified leak-free marine vessels be used for loading operations; the definition of leak- free marine vessel, which includes requirements for cargo tank closures and pressure/vacuum valves; sec.115.214(a)(4), which requires inspections for liquid and vapor leaks; and sec.115.216(a)(6)(B), which requires certification that the marine vessel has passed the annual vapor tightness test using the test methods in sec.115.215(a)(8). In situations where no documentation of the required annual vapor tightness test is available, 40 CFR 63.565(c)(2) allows the use of Test Method 21 performed during loading to substitute for the annual vapor tightness test, provided that Test Method 21 is conducted during the final 20% of loading of each product tank of the marine vessel and is applied to any potential sources of vapor leaks on the vessel. Also, the definition of leak- free marine vessel assumes that a marine vessel which is operated at negative pressure will be leak-free because any vapor leaks will tend to leak into the system, rather than leaking out to the atmosphere as would otherwise be the case. To address the concerns of the marine terminal operators, the commission has revised sec.115.212(a)(8)(B) to clarify the alternatives available in the event that no documentation of a marine vessel's annual vapor tightness test is available. Recordkeeping requirements to document compliance with these alternatives will be added in future rulemaking because sec.115.216(a)(6)(B) was not proposed for revision at this time. TCC commented on proposed sec.115.217(a)(5) for gasoline bulk plants and stated that the term "throughput" is ambiguous and needs clarification. The term "throughput" in sec.115.217(a)(5) is intended to refer to the loading of gasoline into transport vessels. This is supported by EPA's CTG document for gasoline bulk plants, which on page 6-1 defines a bulk plant as "any facility loading gasoline into account trucks at 76,000 liters or less per day" (i.e., 20,000 gallons per day). The commission has revised sec.115.217(a)(5) to clarify this intent. A similar change needs to be made to the definitions of gasoline bulk plant and gasoline terminal, but these definitions were not proposed for change and will be addressed in future rulemaking. TCC commented on sec.115.217(a)(8)(C) and stated that the wording concerning vapor balance systems which requires that the vapors be processed by a vapor processing unit is inconsistent with the definition of vapor balance system. The commission has made the suggested change. HL&P commented that there is no language in sec.sec.115.211-115.219 which excludes motor vehicle fuel dispensing stations from these rules, even though these facilities are subject to the more specific rules for Stage I, Stage II, and Control of Leaks from Transport Vessels. HL&P stated that it was their understanding that motor vehicle fuel dispensing stations are intended to comply with the rules for Stage I, Stage II, and Control of Leaks from Transport Vessels, and not with the more general loading/unloading rules. HL&P suggested the addition of a new paragraph, sec.115.217(a)(10), to clarify this intent. The commission agrees and has added the suggested exemption as sec.115.217(a)(9), (b)(5), and (c)(5). Dallas commented that sec.115.219(4) incorrectly refers to sec.115.212(a)(9) rather than sec.115.212(a)(11). The commission has corrected this rule reference. STAGE I VAPOR RECOVERY No comments were received on sec.sec.115.221-115.223, and 115.226, concerning Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities. However, in response to TCC's comments on proposed sec.115.212(a)(2), the commission has revised sec.115.222(7) to specify that the requirement to discharge the vapors remaining in a tank-truck tank after unloading to a vapor recovery system does not apply if the tank-truck tank is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required. FUGITIVE EMISSIONS AND ASSOCIATED DEFINITIONS Mobil and TCC suggested that the definition of component be revised to delete the phrase "but not limited to" and should instead list the specific types of components included. TCC also suggested that flanges and other piping connectors be added to the list of components. The commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. In addition, the definition of component was not proposed for revision; consequently, comments on this definition are beyond the scope of this rulemaking. Therefore, the commission has made no changes in response to the comments. Mobil suggested the addition of a new definition of ERV, but did not include suggested language for this term. Since this term is not used in the rules, a definition is unnecessary. The commission has made no changes in response to the comment. Dallas noted that the existing definition of fugitive emission includes any gaseous or particulate contaminant, while the proposed definition includes only VOCs. Dallas questioned if this means that by definition there are no fugitive emissions, other than VOC, in Texas. Chapter 115 only applies to VOC emissions. Therefore, the proposed definition of fugitive emission in sec.115.10 is specific to VOCs because this definition applies only to Chapter 115. The definition of fugitive emission in sec.101.1, which applies more broadly than the definition in sec.115.10, continues to include any gaseous or particulate contaminant. Exxon Baytown, Mobil, and TCC suggested that the definition of leak be revised to delete the phrase "or the dripping or exuding of process fluid based on sight, sound, or smell." Exxon Baytown and Mobil stated that the current leak definition is more stringent than federal requirements. Exxon Baytown, Mobil, and TCC stated that the suggested change would allow incorporating the option of leak verification by instrument monitoring of components which are found by sight/sound/smell to be dripping or exuding process fluid. The commenters suggested, in conjunction with their suggested revision to the definition of leak, that sec.sec.115.324(4), 115.352(1)(A)-(B), 115.352(2), and 115.354(4) be revised to incorporate the option of leak verification by instrument monitoring of components which are found by sight/sound/smell to be dripping or exuding process fluid. The current definition of leak was adopted on May 10, 1991, in response to EPA requirements, and therefore is consistent with federal requirements. Because the suggested changes would represent a relaxation of existing requirements, the commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. In addition, sec.115.352(1)(A)-(B) was not proposed for revision; consequently, comments on these subparagraphs are beyond the scope of this rulemaking. For these reasons, the commission has made no changes in response to the comments. However, because the term "leak" is used in a variety of rules in addition to the fugitive monitoring rules, the commission has retained the 10,000 ppmv level which was proposed for deletion and has also retained the proposed reference to the concentration level specified by the applicable rule to address situations in which the rules specify a leak threshold lower than 10,000 ppmv. Mobil and TCC commented that since the 10,000 ppmv concentration is proposed for removal from the definition of leak, sec.115.322(1) should be revised to include the 10,000 ppmv concentration. Because the commission has retained the 10,000 ppmv concentration in the definition of leak, the suggested change is unnecessary. Exxon Baytown, Mobil, and TCC suggested the addition of a new definition of shutdown as developed by the consolidated fugitive emissions workgroup. In conjunction with their suggested addition of a new definition of shutdown, Mobil and TCC suggested revisions to sec.115.322(2). Mobil also suggested that "next scheduled shutdown" be changed to "next shutdown" in sec.115.322(2). In addition, Exxon Baytown, Mobil, and TCC suggested revisions to sec.115.352(2) in conjunction with their suggested new definition of shutdown. Finally, TCC recommended clarifying sec.115.356(1)(G)(iv) by revising "those leaks that cannot be repaired until a unit shutdown" to "the identification of those components that cannot be repaired until the next unit shutdown." The commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. In addition, sec.115.356(1)(G)(iv) was not proposed for revision; consequently, comments on this rule are beyond the scope of this rulemaking. Therefore, the commission has made no changes in response to the comments. Mobil and TCC commented on sec.115.324(7)(A) and suggested that the current requirement for executive director approval of alternate valve monitoring schedules be replaced with a notification requirement without executive director approval. Mobil made an identical comment on sec.115.354(7)(A). The commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. Therefore, the commission has made no changes in response to the comments. Mobil and TCC suggested the addition of a new sec.115.327(7) and a new sec.115.357(10) which would exempt open-ended lines and valves in emergency shutdown systems. The commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. Therefore, the commission has made no changes in response to the comments. TCC recommended the addition of a new definition of process drain or, alternatively, revision to sec.115.354(1)(A) to clarify the meaning of this term. TCC did not include suggested language. This issue is one which was already scheduled to be addressed in uture rulemaking (Fugitive Emissions-Phase Two). In addition, sec.115.354(1)(A) was not proposed for revision. In order to allow interested persons the opportunity to comment on the proposed rule language, the commission is deferring this issue to future rulemaking. TCC commented that sec.115.354(7) should be revised to reflect the new Chapter Designation. Neither the chapter title or the undesignated head title are referenced in this paragraph. Therefore, the commission has made no change in response to the comment. TCC noted that sec.115.354(7) requires that each request for an alternate valve monitoring schedule include "all" data that have been developed to justify the alternate schedule. TCC commented that "all" data could be interpreted to include records for housands of valves in each of the time periods. TCC stated that the data required should be limited to the percentage of leaking valves for each period and the calculations. The data necessary to justify an alternate valve monitoring schedule will include the percentage of leaking valves and valves for which repair has been delayed for each period and the associated calculations. Questions concerning the level of detail needed to properly document requests for alternate monitoring schedules should be discussed with the Engineering Services Section on a case-by-case basis. The commission has made no changes in response to the comment. TCC suggested that sec.115.354(7)(A)-(B) be revised to allow semi-annual monitoring or annual monitoring, rather than allowing companies to skip one or three of the quarterly monitoring periods. Because the suggested change would represent a relaxation of existing requirements, the commission believes that any such changes should not be made at this time, but rather should be considered for possible inclusion in future rulemaking in order to allow all affected parties, including EPA, the opportunity to comment on the proposed changes. Therefore, the commission has made no changes in response to the comment. Exxon Baytown, Mobil, and TCC supported the proposed deletion of directed maintenance from sec.115.352(2). The commission appreciates the support. ARCO, Mobil, and TCC recommended the addition of a new definition of storage tank valve. Mobil recommended the addition of a new definition of pressure/vacuum relief valve (PVRV), while TCC suggested that PVRV or conservation vent be used rather than the term storage tank valve. TCC also suggested that the exemption from monitoring specified in sec.115.357(2) be revised to specifically include PVRVs or conservation vents. This issue is one which was already scheduled to be addressed in future rulemaking (Fugitive Emissions-Phase Two). In order to allow interested persons the opportunity to comment on the proposed rule language, the commission is deferring this issue to future rulemaking. TCC commented on sec.115.357(8) and suggested a revision to clarify that non- repairable components must be repaired within 15 days after the concentration of VOC detected via Test Method 21 exceeds 10,000 ppmv. The commission has made the suggested change and has also clarified that the 15- day leak repair period is 15 calendar days. SURFACE COATING PROCESSES TCC stated that sec.115.421 should only apply to manufacturing sources that have Standard Industrial Classification (SIC) codes 38 through 39 (i.e., those facilities that have a coating line as part of the manufacturing process), and that the painting of metal parts for maintenance purposes in the field or in a shop are not included. The SIC codes specified for miscellaneous metal parts and products coating in the definition of surface coating processes include, but are not limited to, major group 33 (primary metal industries), major group 34 (fabricated metal products), major group 35 (nonelectrical machinery), major group 36 (electrical machinery), major group 37 (transportation equipment), major group 38 (miscellaneous instruments), and major group 39 (miscellaneous manufacturing industries). The industrial categories and SIC codes listed do not represent an all-inclusive list of operations that include the surface coating of miscellaneous metal parts or products because it is impractical to include the entire miscellaneous metal parts and products universe in a single list. This definition is consistent with EPA's reasonably available control technology (RACT) guidance. The EPA has also interpreted that the miscellaneous metal parts and products coating RACT requirement applies generally to repetitive recoating of metal parts occurring at a central location, including newspaper racks, locomotives, railcars, and transformers. Architectural coatings are defined in sec.115.10 as "any protective or decorative coating applied to the interior or exterior of a building or structure, including latex paint, alkyd paints, stains, lacquers, varnishes, and urethanes." Consequently, coatings used in the field to coat or recoat an existing structure are classified as architectural coatings. Industrial maintenance coatings are a specialized type of architectural coatings. It should also be noted that the definition of surface coating processes was not proposed for revision. The commission has made no changes in response to the comment. An individual commented on sec.115.427(a)(6), which exempts the repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and the repair and recoating of vehicles by private individuals. The individual objected to weakening of existing rules. The proposed exemption does not weaken existing rules, but simply relocates an exemption from the definition of vehicle refinishing (body shops) to a more appropriate location within the exemption section. The commission has made no changes in response to the comment. Dallas commented on sec.115.427(a)(6) and stated that the recoating of vehicles for commercial purposes should not be considered as "private individuals." The intent of sec.115.427(a)(6) is to allow a hobbyist to repair and repaint a vehicle himself without being subject to the requirements of sec.115.421(a)(8)(B) and sec.115.422(1)-(2). The commission expects that this repair and repainting will generally be done at the private individual's residence. If the recoating of a private individual's vehicle occurs at a commercial operation, then the exemption of sec.115.427(a)(6) is not applicable. The commission has revised sec.115.427(a)(6) to clarify this intent. OFFSET LITHOGRAPHIC PRINTING TCC Commented on sec.115.442(1)(B) and suggested that the last sentence, concerning non-alcohol additives and alcohol substitutes, is redundant and should be deleted. The commission has deleted the word "alternatively" from this sentence to make it clear that non-alcohol additives and alcohol substitutes (both of which are likely to contain VOCs) are acceptable. TCC suggested that sec.115.449(b) and (c) be combined into a single paragraph. Section 115.449 contains a separate paragraph for each affected ozone nonattainment area to allow for implementation of the offset printing rules on different schedules in the various areas. The commission has made no changes in response to the comment. PHARMACEUTICAL MANUFACTURING FACILITIES TCC's comments on sec.115.532(a)(5) were addressed under the General Comments. PETROLEUM DRY CLEANING SYSTEMS TCC suggested that sec.115.559(a)-(c) be combined into a single paragraph. Section 115.559 contains a separate paragraph for each affected ozone nonattainment area to allow for implementation of the petroleum dry cleaning rules on different schedules in the various areas. The commission has made no changes in response to the comment. Dallas commented that the titles of sec.sec.115.552, 115.553, and 115.555- 115.557 are included in sec.115.559(a) but not in sec.115.559(b) and (c). The section titles are not repeated in sec.115.559(b) and (c) because the Texas Register only requires that the titles be given once in a section. The commission has made no changes in response to the comment. SUBCHAPTER A.Definitions 30 TAC sec.115.10 STATUTORY AUTHORITY The amendment is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.10.Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (commission), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Fugitive emission-Any volatile organic compound entering the atmosphere which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control its flow. Leak-A volatile organic compound concentration greater than 10,000 parts per million by volume (ppmv) or the amount specified by applicable rule, whichever is lower; or the dripping or exuding of process fluid based on sight, smell, or sound. Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch distillation operation-A SOCMI noncontinuous distillation operation in which a discrete quantity or batch of liquid feed is charged into a distillation unit and distilled at one time. After the initial charging of the liquid feed, no additional liquid is added during the distillation operation. Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch process-Any SOCMI noncontinuous reactor process which is not characterized by steady-state conditions, and in which reactants are not added and products are not removed simultaneously. Synthetic Organic Chemical Manufacturing Industry (SOCMI) distillation operation-A SOCMI operation separating one or more feed stream(s) into two or more exit streams, each exit stream having component concentrations different from those in the feed stream(s). The separation is achieved by the redistribution of the components between the liquid and vapor-phase as they approach equilibrium within the distillation unit. Synthetic Organic Chemical Manufacturing Industry (SOCMI) distillation unit-A SOCMI device or vessel in which distillation operations occur, including all associated internals (including, but not limited to, trays and packing), accessories (including, but not limited to, reboilers, condensers, vacuum pumps, and steam jets), and recovery devices (such as absorbers, carbon adsorbers, and condensers) which are capable of, and used for, recovering chemicals for use, reuse, or sale. Synthetic Organic Chemical Manufacturing Industry (SOCMI) reactor process-A SOCMI unit operation in which one or more chemicals, or reactants other than air, are combined or decomposed in such a way, that their molecular structures are altered and one or more new organic compounds are formed. Tank-truck tank-Any storage tank having a capacity greater than 1,000 gallons, mounted on a tank-truck or trailer. Vacuum trucks used exclusively for maintenance and spill response are not considered to be tank-truck tanks. Vehicle refinishing (body shops)-The repair and recoating of vehicles, including, but not limited to, motorcycles, passenger cars, vans, light-duty trucks, medium-duty trucks, heavy-duty trucks, buses, and other vehicle body parts, bodies, and cabs by a commercial operation other than the original manufacturer. The repair and recoating of trailers and construction equipment are not included. Volatile organic compound-Any compound of carbon or mixture of carbon compounds excluding methane, ethane, 1,1,1-trichloroethane (methyl chloroform), methylene chloride (dichloromethane), perchloroethylene (tetrachloroethylene), trichlorofluoromethane (CFC-11), dichlorodifluoromethane (CFC-12), chlorodifluoromethane (HCFC-22), trifluoromethane (HFC-23), 1,1,2-trichloro- 1,2,2-trifluoroethane (CFC-113), 1,2-dichloro-1,1,2,2-tetrafluoroethane (CFC- 114), chloropentafluoroethane (CFC-115), 1,1,1-trifluoro-2,2-dichloroethane (HCFC-123), 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124), pentafluoroethane (HFC-125), 1,1,2,2-tetrafluoroethane (HFC-134), 1,1,1,2-tetrafluoroethane (HFC- 134a), 1,1-dichloro-1-fluoroethane (HCFC-141b), 1-chloro-1,1-difluoroethane (HCFC-142b), 1,1,1-trifluoroethane (HFC-143a), 1,1-difluoroethane (HFC-152a), parachlorobenzotrifluoride (PCBTF), cyclic, branched, or linear completely methylated siloxanes, acetone, 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC- 225ca), 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb), 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee), carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, ammonium carbonate, and perfluorocarbon compounds which fall into these classes: (A)-(D) (No change.) 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705875 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER B.General Volatile Organic Compound Sources Storage of Volatile Organic Compounds 30 TAC sec.sec.115.112, 115.114-115.116, 115.119 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705874 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Vent Gas Control 30 TAC sec.sec.115.121-115.123, 115.126, 115.127, 115.129 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.122.Control Requirements. (a) For all persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following control requirements shall apply: (1) Any vent gas streams affected by sec.115.121(a)(1) of this title (relating to Emission Specifications) must be controlled properly with a control efficiency of at least 90% or to a volatile organic compound (VOC) concentration of no more than 20 parts per million by volume (ppmv) (on a dry basis corrected to 3.0% oxygen for combustion devices): (A) in a direct-flame incinerator at a temperature equal to or greater than 1300 degrees Fahrenheit (704 degrees Centigrade); (B) in a smokeless flare; or (C) by any other vapor recovery system, as defined in sec.115.10 of this title (relating to Definitions). (2) Any vent gas streams affected by sec.115.121(a)(2) of this title must be controlled properly with a control efficiency of at least 98% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices): (A) in a smokeless flare; or (B) by any other vapor recovery system, as defined in sec.115.10 of this title. (3) For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas, VOC emissions from each bakery with a bakery oven vent gas stream(s) affected by sec.115.121(a)(3) of this title shall be reduced as follows. (A)-(D) (No change.) (4) Any vent gas stream that becomes subject to the provisions of paragraphs (1), (2), or (3) of this subsection by exceeding provisions of sec.115.127(a) of this title (relating to Exemptions) shall remain subject to the provisions of this subsection, even if throughput or emissions later fall below the exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in sec.115.127(a) of this title; and: (A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or standard exemption required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Exemptions from Permitting). If a standard exemption is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that standard exemption; or (B) if authorization by permit, permit amendment, standard permit, or standard exemption is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing. (b) For all persons in Nueces and Victoria Counties, any vent gas streams affected by sec.115.121(b) of this title must be controlled properly with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices): (1) in a direct-flame incinerator at a temperature equal to or greater than 1300 degrees Fahrenheit (704 degrees Centigrade); (2) in a smokeless flare; or (3) by any other vapor recovery system, as defined in sec.115.10 of this title. (c) For all persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following control requirements shall apply: (1) Any vent gas streams affected by sec.115.121(c)(1) of this title must be controlled properly: (A) in a direct-flame incinerator at a temperature equal to or greater than 1300 degrees Fahrenheit (704 degrees Centigrade); (B) in a smokeless flare; or (C) by any other vapor recovery system, as defined in sec.115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices). (2) Any vent gas streams affected by sec.115.121(c)(2) of this title must be controlled properly: (A) in a direct-flame incinerator or boiler at a temperature equal to or greater than 1300 degrees Fahrenheit (704 degrees Centigrade); or (B) by any other vapor recovery system, as defined in sec.115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices). (3) Any vent gas streams affected by sec.115.121(c)(3) of this title must be controlled properly: (A) at a temperature equal to or greater than 1300 degrees Fahrenheit (704 degrees Centigrade) in an afterburner having a retention time of at least one- fourth of a second, and having a steady flame that is not affected by the cupola charge and relights automatically if extinguished; or (B) by any other vapor recovery system, as defined in sec.115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices). (4) Any vent gas streams affected by sec.115.121(c)(4) of this title must be controlled properly: (A) in a smokeless flare or in a combustion device used in a heating process associated with the operation of a blast furnace ; or (B) by any other vapor recovery system, as defined in sec.115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices). sec.115.126.Monitoring and Recordkeeping Requirements. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the owner or operator of any facility which emits volatile organic compounds (VOC) through a stationary vent shall maintain records at the facility for at least two years and shall make such records available to representatives of the executive director, United States Environmental Protection Agency (EPA), or any local air pollution control agency having jurisdiction in the area upon request. These records shall include, but not be limited to, the following. (1)-(2) (No change.) (3) As an alternative to the requirements of paragraph (2) of this subsection, records for each vent exempted from control requirements in accordance with sec.115.127(a) of this title (relating to Exemptions) and having a VOC emission rate or concentration less than 50% of the applicable exemption limits at maximum actual operating conditions shall be sufficient to demonstrate continuous compliance with the applicable exemption limit. These records shall include complete information from either test results or appropriate calculations which clearly documents that the emission characteristics at maximum actual operating conditions are less than 50% of the applicable exemption limits. This documentation shall include the operating parameter levels that occurred during any testing, and the maximum levels feasible for the process. (4) For bakeries affected by sec.115.122(a)(3)(A)-(B) of this title (relating to Control Requirements), the following additional requirements apply. (A) The owner or operator of each bakery shall submit an initial control plan no later than May 31, 1995, to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall reduction of VOC emissions from the bakery's 1990 baseline emissions inventory will be at least 30% by May 31, 1996. At a minimum, the control plan shall include the emission point number (EPN) and the facility identification number (FIN) of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the 1990 VOC emission rates (consistent with the bakery's 1990 emissions inventory). The projected 1996 VOC emission rates shall be calculated in a manner consistent with the 1990 emissions inventory. (B) In order to document continued compliance with sec.115.122(a)(3) of this title, the owner or operator of each bakery shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall reduction of VOC emissions from the bakery's 1990 baseline emissions inventory during the preceding calendar year is at least 30% after May 31, 1996. At a minimum, the report shall include the EPN and FIN of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the VOC emission rates. The emission rates for the proceeding calendar year shall be calculated in a manner consistent with the 1990 emissions inventory. (C) All representations in initial control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the bakery submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction within 30 days of the change. All control plans and reports shall include documentation that the overall reduction of VOC emissions from the bakery's 1990 baseline emissions inventory continues to be at least 30%. The emission rates shall be calculated in a manner consistent with the 1990 emissions inventory. (5) For bakeries affected by sec.115.122(a)(3)(C) and (D) of this title, the following additional requirements apply. (A) No later than six months after the commission publishes notification in the Texas Register as specified in sec.115.129(a)(4) of this title (relating to Counties and Compliance Schedules), the owner or operator of each bakery shall submit an initial control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall reduction of VOC emissions from the bakery's 1990 baseline emissions inventory will be at least 30%. At a minimum, the control plan shall include the EPN and the FIN of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the 1990 VOC emission rates (consistent with the bakery's 1990 emissions inventory). The projected VOC emission rates shall be calculated in a manner consistent with the 1990 emissions inventory. (B) In order to document continued compliance with sec.115.122(a)(3) of this title, the owner or operator of each bakery shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall reduction of VOC emissions from the bakery's 1990 baseline emissions inventory during the preceding calendar year is at least 30%. At a minimum, the report shall include the EPN and FIN of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the VOC emission rates. The emission rates for the proceeding calendar year shall be calculated in a manner consistent with the 1990 emissions inventory. (C) All representations in initial control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the bakery submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction within 30 days of the change. All control plans and reports shall include documentation that the overall reduction of VOC emissions from the bakery's 1990 baseline emissions inventory continues to be at least 30%. The emission rates shall be calculated in a manner consistent with the 1990 emissions inventory. (6) The owner or operator of a facility that uses a flare to meet the requirements of sec.115.122(a)(2) shall install, calibrate, maintain, and operate according to the manufacturer's specifications, a heat-sensing device, such as an ultraviolet beam sensor or thermocouple, at the pilot light to indicate continuous presence of a flame. (b) For Victoria County, the owner or operator of any facility which emits VOC through a stationary vent shall maintain records at the facility for at least two years and shall make such records available to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area upon request. These records shall include, but not be limited to, the following: (1)-(2) (No change.) (3) As an alternative to the requirements of paragraph (2) of this subsection, records for each vent exempted from control requirements in accordance with sec.115.127(b) of this title and having a VOC emission rate or concentration less than 50% of the applicable exemption limits at maximum actual operating conditions shall be sufficient to demonstrate continuous compliance with the applicable exemption limit. These records shall include complete information from either test results or appropriate calculations which clearly documents that the emission characteristics at maximum actual operating conditions are less than 50% of the applicable exemption limits. This documentation shall include the operating parameter levels that occurred during any testing, and the maximum levels feasible for the process. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705873 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Water Separation 30 TAC sec.sec.115.132, 115.136, 115.137 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.132.Control Requirements. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, no person shall use any single or multiple compartment volatile organic compound (VOC) water separator which separates materials containing VOC obtained from any equipment which is processing, refining, treating, storing, or handling VOC, unless each compartment is controlled in one of the following ways: (1) the compartment totally encloses the liquid contents and has all openings (such as roof seals and access doors) sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through a pressure relief valve. All gauging and sampling devices shall be vapor-tight except during gauging or sampling. The pressure relief valve must be designed to open only as necessary to allow proper operation, and must be set at the maximum possible pressure necessary for proper operation, but such that the valve will not vent continuously; (2)-(3) (No change.) (4) any water separator that becomes subject to the provisions of paragraphs (1), (2), or (3) of this subsection by exceeding provisions of sec.115.137(a) of this title (relating to Exemptions) will remain subject to the provisions of this subsection, even if throughput or emissions later fall below the exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in sec.115.137(a) of this title; and (A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or standard exemption required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Exemptions from Permitting). If a standard exemption is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that standard exemption; or (B) if authorization by permit, permit amendment, standard permit, or standard exemption is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing. (b) For Gregg, Nueces, and Victoria Counties, no person shall use any single or multiple compartment VOC water separator which separates materials containing VOC obtained from any equipment which is processing, refining, treating, storing, or handling VOC, unless each compartment is controlled in one of the following ways: (1) the compartment totally encloses the liquid contents and has all openings (such as roof seals and access doors) sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through a pressure relief valve. All gauging and sampling devices shall be vapor-tight except during gauging or sampling. The pressure relief valve must be designed to open only as necessary to allow proper operation, and must be set at the maximum possible pressure necessary for proper operation, but such that the valve will not vent continuously; (2)-(3) (No change.) (c) For Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, no person shall use any single or multiple compartment VOC water separator which separates materials containing VOC obtained from any equipment which is processing, refining, treating, storing, or handling VOC, unless each compartment is controlled in one of the following ways: (1) the compartment totally encloses the liquid contents and has all openings (such as roof seals and access doors) sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through a pressure relief valve. All gauging and sampling devices shall be vapor-tight except during gauging or sampling. The pressure relief valve must be designed to open only as necessary to allow proper operation, and must be set at the maximum possible pressure necessary for proper operation, but such that the valve will not vent continuously; (2)-(3) (No change.) sec.115.137.Exemptions. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following exemptions shall apply. (1)-(2) (No change.) (3) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters is exempt from this undesignated head (relating to Water Separation), provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor recovery systems. (b) For Gregg, Nueces, and Victoria Counties, the following exemptions shall apply: (1)-(4) (No change.) (5) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters is exempt from this undesignated head (relating to Water Separation), provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor recovery systems. (c) For Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following exemptions shall apply: (1)-(3) (No change.) (4) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters is exempt from this undesignated head (relating to Water Separation), provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor recovery systems. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705872 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Industrial Wastewater 30 TAC sec.sec.115.146, 115.147, 115.149 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.147.Exemptions. For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following exemptions shall apply. (1)-(4) (No change.) (5) Wastewater components are exempt from the control requirements of sec.115.142 of this title if the overall control of VOC emissions at the account from wastewater from affected source categories is at least 90% less than the 1990 baseline emissions inventory, and the following requirements are met. (A) To qualify for the exemption available under this paragraph after December 31, 1996, the owner or operator of a wastewater component for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of VOC emissions at the account from wastewater from affected source categories will be at least 90% less than the 1990 baseline emissions inventory. Any control plan submitted after December 31, 1996, must be approved by the executive director before the owner or operator may use the exemption available under this paragraph for compliance. At a minimum, the control plan shall include the applicable emission point number (EPN); the facility identification number (FIN); the calendar year 1990 emission rates of wastewater from affected source categories (consistent with the 1990 emissions inventory); a plot plan showing the location, EPN, and FIN associated with a wastewater storage, handling, transfer, or treatment facility; the VOC emission rates for the preceding calendar year; and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance. The VOC emission rates shall be calculated in a manner consistent with the 1990 emissions inventory. (B) In order to maintain exemption status under this paragraph, the owner or operator shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction, which demonstrates that the overall control of VOC emissions at the account from wastewater from affected source categories during the preceding calendar year is at least 90% less than the 1990 baseline emissions inventory. At a minimum, the report shall include the EPN; FIN; the throughput of wastewater from affected source categories; a plot plan showing the location, EPN, and FIN associated with a wastewater storage, handling, transfer, or treatment facility; and the VOC emission rates for the preceding calendar year. The emission rates for the preceding calendar year shall be calculated in a manner consistent with the 1990 emissions inventory. (C) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the wastewater component submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall include documentation that the overall reduction of VOC emissions at the account from wastewater from affected source categories continues to be at least 90% less than the 1990 baseline emissions inventory. The emission rates shall be calculated in a manner consistent with the 1990 emissions inventory. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705871 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Municipal Solid Waste Landfills 30 TAC sec.sec.115.153, 115.156, 115.159 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.153.Alternate Control Requirements. For all persons in the Houston/Galveston, El Paso, and Dallas/Fort Worth ozone nonattainment areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Municipal Solid Waste Landfills) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705870 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER C.Volatile Organic Compound Transfer Operations Loading and Unloading of Volatile Organic Compounds 30 TAC sec.sec.115.211, 115.212, 115.214-115.217, 115.219 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.211.Emission Specifications. (a) For all persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in sec.115.10 of this title (relating to Definitions), the following emission specifications shall apply. (1) Volatile organic compound (VOC) emissions from gasoline terminals shall be reduced to a level not to exceed 0.09 pound of VOC from the vapor recovery system vent per 1,000 gallons (10.8 mg/liter) of gasoline loaded into transport vessels. (2) (No change.) (3) In the Houston/Galveston area, VOC emissions from marine terminals, as defined in sec.115.10 of this title, shall be reduced to a level not to exceed 0.09 pounds of VOC from the vapor recovery system vent per 1,000 gallons (10.8 mg/liter) of VOC loaded into the marine vessel, or the vapor recovery system shall maintain a control efficiency of at least 90%. (b) (No change.) sec.115.212.Control Requirements. (a) For all persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following control requirements shall apply. (1) At volatile organic compound (VOC) loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals, no person shall permit the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia under actual storage conditions to transport vessels unless the vapors are processed by a vapor recovery system or are controlled by a vapor balance system, as defined in sec.115.10 of this title (relating to Definitions). The vapor recovery system shall maintain a control efficiency of at least 90%. (2) No person shall permit the unloading of VOC with a true vapor pressure greater than or equal to 0.5 psia under actual storage conditions from any transport vessel unless the transport vessel is kept vapor-tight at all times until the vapors remaining in the transport vessel after unloading are discharged to a vapor recovery system if the transport vessel is refilled, degassed, and/or cleaned in one of the counties in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas. The requirement to discharge the vapors remaining in the transport vessel after unloading to a vapor recovery system does not apply if the transport vessel is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required. (3) All land-based loading and unloading of VOC shall be conducted such that: (A) All liquid and vapor lines are: (i) equipped with fittings which make vapor-tight connections that close automatically when disconnected; or (ii) equipped to permit residual VOC in the loading line after loading is complete to discharge into a recovery or disposal system which routes all VOC emissions to a vapor recovery system or a vapor balance system. (B) There are no VOC leaks, as defined in sec.115.10 of this title, when measured with a hydrocarbon gas analyzer, and no liquid or vapor leaks, as detected by sight, sound, or smell, from any potential leak source in the transport vessel and transfer system (including, but not limited to, liquid lines, vapor lines, hatch covers, pumps, and valves, including pressure relief valves). (C) All gauging and sampling devices are vapor-tight except for necessary gauging and sampling. Any nonvapor-tight gauging and/or sampling shall: (i) be limited in duration to the time necessary to practicably gauge and/or sample; and (ii) not occur while VOC is being transferred. (D) Any openings in a transport vessel during unloading are limited to minimum openings which are sufficient to prevent collapse of the transport vessel. (4) When loading is effected through the hatches of a transport vessel with a loading arm equipped with a vapor collection adapter, then pneumatic, hydraulic, or other mechanical means shall be provided to force a vapor-tight seal between the adapter and the hatch. A means shall be provided which prevents liquid drainage from the loading device when it is removed from the hatch of any transport vessel, or which routes all VOC emissions to a vapor recovery system. (5) No person shall permit the loading of gasoline to a transport vessel from a gasoline terminal unless the vapors are processed by a vapor recovery system as defined in sec.115.10 of this title. Vapor recovery systems and loading equipment at gasoline terminals shall be designed and operated such that gauge pressure does not exceed 18 inches of water (4.5 kPa) and vacuum does not exceed six inches of water (1.5 kPa) in the gasoline tank-truck. (6) No person shall permit the transfer of gasoline from a transport vessel into a gasoline bulk plant storage tank, unless the following requirements are met: (A) a vapor return line is installed from the storage tank to the transport vessel; (B) the only atmospheric emission during gasoline transfer is through the storage tank's pressure-vacuum relief valve resulting from emergency situations when pressures exceed the specifications in paragraph (7)(C) of this section; and (C) the transport vessel is kept vapor-tight at all times until the vapors remaining in the transport vessel are discharged to a vapor recovery system, if the transport vessel is refilled, degassed, and/or cleaned in one of the counties in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas. The requirement to discharge the vapors remaining in the transport vessel after unloading to a vapor recovery system does not apply if the transport vessel is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required. (7) No person shall permit the transfer of gasoline from a gasoline bulk plant into a transport vessel, unless the following requirements are met: (A) the transport vessel, if equipped for top loading, has a submerged fill pipe; (B) a vapor return line is installed from the transport vessel to the storage tank; (C) gauge pressure does not exceed 18 inches of water (4.5 kPa) and vacuum does not exceed six inches of water (1.5 kPa) in the gasoline tank-truck tank; and (D) the only atmospheric emission during gasoline transfer is through the storage tank pressure-vacuum relief valves resulting from emergency situations when pressures exceed the specification in subparagraph (C) of this paragraph. (8) For marine terminals in the Houston/Galveston area, the following control requirements shall apply. (A) Control device(s) shall reduce VOC emissions by at least 90% by weight from uncontrolled conditions or to a level not to exceed 0.09 pounds of VOC from the vapor recovery system vent per 1,000 gallons (10.8 mg/liter) of VOC loaded. (B) Only certified leak-free marine vessels, as defined in sec.115.10 of this title, shall be used for loading operations. If no documentation of the annual vapor tightness test is available, one of the following methods may be substituted: (i) VOC shall be loaded into the marine vessel with the vessel product tank at negative gauge pressure; (ii) Leak testing shall be performed during loading using Test Method 21. The testing shall be conducted during the final 20% of loading of each product tank of the marine vessel and shall be applied to any potential sources of vapor leaks on the vessel; or (iii) Documentation of leak testing conducted during the preceding 12 months as described in clause (ii) of this subparagraph shall be provided. (C) All gauging and sampling devices shall be vapor-tight except for necessary gauging and sampling. Any nonvapor-tight gauging and/or sampling shall: (i) be limited in duration to the time necessary to practicably gauge and/or sample; and (ii) not occur while VOC is being transferred. (9) For gasoline terminals in the Dallas/Fort Worth, El Paso, and Houston/Galveston areas, each vapor recovery system shall be instrumented in such a way that the pump(s) transferring fuel to the transport vessels will not operate unless the vapor recovery system is properly connected and properly operating. No transport vessel loading shall take place at a loading rack when the vapor recovery system serving that loading rack is out of service or is not operating in accordance with the manufacturer's parameters. (10) Any loading or unloading operation that becomes subject to the provisions of this subsection by exceeding provisions of sec.115.217(a) of this title (relating to Exemptions) will remain subject to the provision of this subsection, even if throughput or emissions later fall below exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in sec.115.217(a) of this title; and (A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or standard exemption required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Exemptions from Permitting). If a standard exemption is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that standard exemption; or (B) if authorization by permit, permit amendment, standard permit, or standard exemption is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing. (b)-(c) (No change.) sec.115.214.Inspection Requirements. (a) For all persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following inspection requirements shall apply. (1)-(3) (No change.) (4) For marine terminals in the Houston/Galveston area, the following inspection requirements shall apply. (A)-(D) (No change.) (E) All shore-based equipment is subject to the fugitive emissions monitoring requirements of sec.sec.115.352-115.357 and 115.359 of this title (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas). For the purposes of this paragraph, shore-based equipment includes, but is not limited to, all equipment such as loading arms, pumps, meters, shutoff valves, relief valves, and other piping and valves between the marine loading facility and the vapor recovery system and between the marine loading facility and the associated land-based storage tanks, excluding working emissions from the storage tanks. (5) Each gasoline terminal, as defined in sec.115.10 of this title, in the Dallas/Fort Worth, El Paso, and Houston/Galveston areas shall perform a monthly leak inspection of all equipment in gasoline service. Each piece of equipment shall be inspected during the loading of gasoline tank trucks. For this inspection, detection methods incorporating sight, sound, and smell are acceptable. Alternatively, gasoline terminals may use a hydrocarbon gas analyzer for the detection of leaks, by meeting the requirements of sec.sec.115.352- 115.357 and 115.359 of this title. Every reasonable effort shall be made to repair or replace a leaking component within 15 days after a leak is found. If the repair or replacement of a leaking component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown. (b) (No change.) sec.115.217.Exemptions. (a) For all persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following exemptions apply. (1) All loading and unloading of volatile organic compounds (VOC) with a true vapor pressure less than 0.5 psia under actual storage conditions is exempt from the requirements of sec.115.212(a) of this title (relating to Control Requirements). (2) Any plant, as defined by its air quality account number, excluding gasoline bulk plants, having less than 20,000 gallons (75,708 liters) of VOC loaded into transport vessels per day (averaged over any consecutive 30-day period) with a true vapor pressure greater than or equal to 0.5 psia under actual storage conditions is exempt from the requirements of sec.115.212(a) of this title. (3) All loading and unloading of liquefied petroleum gas only (regulated by the Safety Rules of the Liquefied Petroleum Gas Division of the Texas Railroad Commission) is exempt from the requirements of sec.115.212(a) of this title. (4) The following are exempt from the requirements of sec.115.212(a) of this title: (A) all unloading of marine vessels; and (B) all loading of marine vessels in ozone nonattainment areas other than the Houston/Galveston area. (5) Gasoline bulk plants which load less than 4,000 gallons (15,142 liters) of gasoline into transport vessels per day averaged over any consecutive 30-day period are exempt from the provisions of sec.115.211(a)(2), sec.115.212(a)(7), and sec.115.216(a)(4) of this title (relating to Emission Specifications; Control Requirements; and Monitoring and Recordkeeping Requirements). (6) VOC loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals are exempt from the control requirements of sec.115.212(a)(1) of this title if the overall control of emissions at the account from the loading of VOC (excluding VOC loading into marine vessels and VOC loading at gasoline terminals and gasoline bulk plants) with a true vapor pressure between 0.5 and 11 psia under actual storage conditions is at least 90%, and the following requirements are met. (A) To qualify for the exemption available under this paragraph after December 31, 1996, the owner or operator of a VOC loading operation for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions will be at least 90%. Any control plan submitted after December 31, 1996, must be approved by the executive director before the owner or operator may use the exemption available under this paragraph for compliance. For each loading rack and any associated control device at the account, the control plan shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, the controlled and uncontrolled emission rates for the preceding calendar year, and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance. (B) In order to maintain exemption status under this paragraph, the owner or operator of the VOC loading operation shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions during the preceding calendar year is at least 90%. For each loading rack and any associated control device at the account, the report shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, and the controlled and uncontrolled emission rates for the preceding calendar year. (C) The owner or operator of the VOC loading operation shall submit an updated report no later than 30 days after the installation of an additional loading rack(s) or any change in service of a loading rack(s) from loading VOC with a true vapor pressure less than 0.5 psia to loading VOC with a true vapor pressure greater than or equal to 0.5 psia, or vice versa. The report shall be submitted to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction and shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions continues to be at least 90%. (D) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the VOC loading operation submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions continues to be at least 90%. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory. (7) The following marine loading operations are exempt from the requirements of sec.115.211(a) and sec.115.212(a) of this title: (A) marine terminals with uncontrolled marine loading VOC emissions less than 100 tons per year. Emissions from marine vessel loading operations which were routed to a control device that was installed as of November 15, 1993, are excluded from this calculation. Compliance with this exemption shall be demonstrated through the recordkeeping and reporting requirements of the annual emissions inventory submitted by the owner or operator of the marine terminal; (B) all throughput of VOC with a vapor pressure less than 0.5 psia loaded into marine vessels; (C) marine loading operations which use a vapor balance system to control emissions from the marine vessel to fixed roof storage tank(s). For the purposes of this paragraph, vapor balance system is defined as a closed system that transfers vapor displaced from the tank of a vessel receiving cargo into a tank of the vessel or facility delivering cargo via an arrangement of piping and hoses used to collect vapor emitted from a vessel's cargo tanks; (D) non-dedicated loading lines when commodities with a true vapor pressure less than 0.5 psia are transferred, provided that after transfer of VOC with a true vapor pressure greater than or equal to 0.5 psia these non-dedicated loading lines are cleaned, purged, and the residual vapors controlled of VOC with a true vapor pressure greater than or equal to 0.5 psia; and (E) all throughput of VOC with a flash point of 150 degrees Fahrenheit or greater loaded into marine vessels. (8) Marine terminals are exempt from the control requirements of sec.115.211(a)(3) and sec.115.212(a)(8)(A) of this title if the overall control of emissions at the marine terminal from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions into marine vessels is at least 90%, and the following requirements are met. (A) To qualify for the exemption available under this paragraph after December 31, 1996, the owner or operator of a marine terminal for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the marine terminal from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions into marine vessels will be at least 90%. Any control plan submitted after December 31, 1996 must be approved by the executive director before the owner or operator may use the exemption available under this paragraph for compliance. For each marine loading facility and any associated control device at the marine terminal, the control plan shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each marine loading facility and any associated control device, the controlled and uncontrolled emission rates for the preceding calendar year, and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance. (B) In order to maintain exemption status under this paragraph, the owner or operator of the marine terminal shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the marine terminal from the loading of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions into marine vessels during the preceding calendar year is at least 90%. For each marine loading facility and any associated control device at the account, the report shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each marine loading facility and any associated control device, and the controlled and uncontrolled emission rates for the preceding calendar year. (C) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the marine terminal submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall demonstrate that the overall control of emissions at the marine terminal from the loading into marine vessels of VOC with a true vapor pressure between 0.5 and 11 psia under actual storage conditions continues to be at least 90%. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory. (9) Motor vehicle fuel dispensing facilities, as defined in sec.115.10 of this title (relating to Definitions), are exempt from the requirements of this undesignated head (relating to Loading and Unloading of Volatile Organic Compounds). (b) For all persons in Gregg, Nueces, and Victoria Counties, the following exemptions apply. (1) (No change.) (2) Any plant, as defined by its air quality account number, having less than 20,000 gallons (75,708 liters) of VOC loaded into transport vessels per day (averaged over any consecutive 30-day period) with a true vapor pressure greater than or equal to 1.5 psia under actual storage conditions is exempt from the requirements of sec.115.212(b) of this title. (3) (No change.) (4) VOC loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals are exempt from the control requirements of sec.115.212(b)(1) of this title if the overall control of emissions at the account from the loading of VOC (excluding VOC loading into marine vessels and VOC loading at gasoline terminals and gasoline bulk plants) with a true vapor pressure between 1.5 and 11 psia under actual storage conditions is at least 90%, and the following requirements are met: (A) To qualify for the exemption available under this paragraph after December 31, 1996, the owner or operator of a VOC loading operation for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions will be at least 90%. Any control plan submitted after December 31, 1996, must be approved by the executive director before the owner or operator may use the exemption available under this paragraph for compliance. For each loading rack and any associated control device at the account, the control plan shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, the controlled and uncontrolled emission rates for the preceding calendar year, and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance. (B) In order to maintain exemption status under this paragraph, the owner or operator of the VOC loading operation shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions during the preceding calendar year is at least 90%. For each loading rack and any associated control device at the account, the report shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, and the controlled and uncontrolled emission rates for the preceding calendar year. (C) The owner or operator of the VOC loading operation shall submit an updated report no later than 30 days after the installation of an additional loading rack(s) or any change in service of a loading rack(s) from loading VOC with a true vapor pressure less than 1.5 psia to loading VOC with a true vapor pressure greater than or equal to 1.5 psia, or vice versa. The report shall be submitted to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction and shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions continues to be at least 90%. (D) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the VOC loading operation submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions continues to be at least 90%. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory. (5) Motor vehicle fuel dispensing facilities, as defined in sec.115.10 of this title (relating to Definitions), are exempt from the requirements of this undesignated head (relating to Loading and Unloading of Volatile Organic Compounds). (c) For all persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following exemptions apply. (1) (No change.) (2) Any plant, as defined by its air quality account number, having less than 20,000 gallons (75,708 liters) of VOC loaded into transport vessels per day (averaged over any consecutive 30-day period) with a true vapor pressure greater than or equal to 1.5 psia under actual storage conditions is exempt from the requirements of sec.115.212(c) of this title. (3) (No change.) (4) VOC loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals are exempt from the control requirements of sec.115.212(c)(1) of this title if the overall control of emissions at the account from the loading of VOC (excluding VOC loading into marine vessels and VOC loading at gasoline terminals and gasoline bulk plants) with a true vapor pressure between 1.5 and 11 psia under actual storage conditions is at least 90%, and the following requirements are met: (A) To qualify for the exemption available under this paragraph after December 31, 1996, the owner or operator of a VOC loading operation for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions will be at least 90%. Any control plan submitted after December 31, 1996 must be approved by the executive director before the owner or operator may use the exemption available under this paragraph for compliance. For each loading rack and any associated control device at the account, the control plan shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, the controlled and uncontrolled emission rates for the preceding calendar year, and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance. (B) In order to maintain exemption status under this paragraph, the owner or operator of the VOC loading operation shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions during the preceding calendar year is at least 90% . For each loading rack and any associated control device at the account, the report shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, and the controlled and uncontrolled emission rates for the preceding calendar year. (C) The owner or operator of the VOC loading operation shall submit an updated report no later than 30 days after the installation of an additional loading rack(s) or any change in service of a loading rack(s) from loading VOC with a true vapor pressure less than 1.5 psia to loading VOC with a true vapor pressure greater than or equal to 1.5 psia, or vice versa. The report shall be submitted to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction and shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions continues to be at least 90%. (D) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the VOC loading operation submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure between 1.5 and 11 psia under actual storage conditions continues to be at least 90%. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory. (5) Motor vehicle fuel dispensing facilities, as defined in sec.115.10 of this title (relating to Definitions), are exempt from the requirements of this undesignated head (relating to Loading and Unloading of Volatile Organic Compounds). sec.115.219.Counties and Compliance Schedules. All affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas shall be in compliance with this undesignated head (relating to Loading and Unloading of Volatile Organic Compounds) in accordance with the following schedules. (1) All affected persons shall be in compliance with sec.115.211(a)(1), sec.115.212(a)(1) and (2), and sec.115.217(a)(1) and (2) of this title (relating to Emission Specifications; Control Requirements; and Exemptions) as soon as practicable, but no later than November 15, 1996. (2)-(3) (No change.) (4) All affected gasoline terminals in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Harris, Liberty, Montgomery, Tarrant, and Waller Counties shall be in compliance with sec.115.212(a)(9), sec.115.214(a)(5), and sec.115.216(a)(7) of this title as soon as practicable, but no later than November 15, 1996. (5) (No change.) 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705869 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Filing of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities 30 TAC sec.sec.115.221-115.223, 115.226 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.222.Control Requirements. For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, a vapor balance system will be assumed to comply with the specified emission limitation of sec.115.221 of this title (relating to Emission Specifications) if the following conditions are met: (1)-(6) (No change.) (7) the tank-truck tank is kept vapor-tight at all times until the captured vapors are discharged to a vapor recovery system, if the tank-truck tank is refilled, degassed, and/or cleaned in one of the counties in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas. The requirement to discharge the vapors remaining in the tank-truck tank after unloading to a vapor recovery system does not apply if the tank-truck tank is refilled, degassed, and/or cleaned at an operation for which control of the vapors is not required. (8)-(11) (No change.) sec.115.223.Alternate Control Requirements. For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705868 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Control of Reid Vapor Pressure of Gasoline 30 TAC sec.115.253, sec.115.256 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.253.Alternate Control Requirements. For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Control Of Reid Vapor Pressure of Gasoline) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705867 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER D.Petroleum Refining, Natural Gas Processing, and Petrochemical Processes Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries 30 TAC sec.sec.115.311-115.313, 115.319 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.312.Control Requirements. (a) For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following control requirements shall apply: (1) (No change.) (2) Vent gas streams affected by sec.115.311(a) of this title (relating to Emission Specifications) must be controlled properly with a control efficiency of at least 90% or to a volatile organic compound (VOC) concentration of no more than 20 parts per million by volume (ppmv) (on a dry basis corrected to 3.0% oxygen for combustion devices): (A) in a direct-flame incinerator at a temperature equal to or greater than 1300øF (704øC); (B) in a smokeless flare; or (C) by any other vapor recovery system, as defined in sec.115.10 of this title (relating to Definitions). (b) For all affected persons in Gregg, Nueces, and Victoria Counties, the following control requirements shall apply: (1) (No change.) (2) Vent gas streams affected by sec.115.311(b) of this title must be controlled properly with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices): (A) in a direct-flame incinerator at a temperature equal to or greater than 1300 degrees Fahrenheit (704 degrees Centigrade); (B) in a smokeless flare; or (C) by any other vapor recovery system, as defined in sec.115.10 of this title. sec.115.313.Alternate Control Requirements. (a) For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements in this undesignated head (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. (b) For all affected persons in Gregg, Nueces, and Victoria Counties, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements in this undesignated head (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705866 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Fugitive Emission Control in Petroleum Refineries 30 TAC sec.sec.115.322-115.327, 115.329 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.323.Alternate Control Requirements. For all affected persons in Gregg, Nueces, and Victoria Counties, the following alternate control techniques may apply: (1) Any alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. (2) The executive director may approve an alternate monitoring method if the refinery operator can demonstrate that the alternate monitoring method satisfies the conditions of sec.115.324(7) of this title (relating to Inspection Requirements). Any request for an alternate monitoring method must be made in writing to the executive director. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705865 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Fugitive Emission Control in Synthetic Organic Chemical, Polymer, Resin, and Methyl Tert-Butyl Ether Manufacturing Processes 30 TAC sec.sec.115.332-115.337, 115.339 The repeals are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705864 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Fugitive Emission Control in Natural Gas/Gasoline Processing Operations 30 TAC sec.sec.115.342-115.347, 115.349 The repeals are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705863 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes 30 TAC sec.sec.115.352-115.354, 115.356, 115.357 The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.353.Alternate Control Requirements. For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, any alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. sec.115.357.Exemptions. For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following exemptions shall apply. (1) (No change.) (2) Storage tank valves, pressure relief valves equipped with a rupture disc or venting to a control device, components in continuous vacuum service, and valves that are not externally regulated (such as in-line check valves) are exempt from all the requirements of this undesignated head, except that each pressure relief valve equipped with a rupture disk shall comply with sec.115.352(9) of this title (relating to Control Requirements). (3)-(7) (No change.) (8) Components in ethylene, propane, or propylene service, not to exceed 5.0% of the total components, may be classified as non-repairable beyond the second repair attempt at 500 ppmv. These components will remain in the fugitive monitoring program and be repaired no later than 15 calendar days after the concentration of VOC detected via Test Method 21 exceeds 10,000 ppmv. For the purposes of this undesignated head, components which contact a process fluid with greater than 85% ethylene, propane, or propylene by weight are considered in ethylene, propane, or propylene service, respectively. (9) (No change.) 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705862 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER E.Solvent-Using Processes Surface Coating Processes 30 TAC sec.sec.115.421, 115.422, 115.424, 115.426, 115.427 The amendments are proposed under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.422.Control Requirements. For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following control requirements shall apply. (1)-(2) (No change.) (3) Any surface coating operation that becomes subject to the provisions of sec.115.421(a) of this title (relating to Emission Specifications) by exceeding the provisions of sec.115.427(a) of this title (relating to Exemptions) shall remain subject to the provisions in sec.115.421(a) of this title, even if throughput or emissions later fall below exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in sec.115.427(a) of this title, and: (A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or standard exemption required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Exemptions from Permitting). If a standard exemption is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that standard exemption; or (B) if authorization by permit, permit amendment, standard permit, or standard exemption is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing. sec.115.427.Exemptions. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following exemptions shall apply: (1)-(4) (No change.) (5) Vehicle refinishing (body shops) in Hardin, Jefferson, and Orange Counties are exempt from the requirements of sec.115.421(a)(8)(B) and sec.115.422(1) and (2) of this title (relating to Emission Specifications; and Control Requirements). (6) The repair and recoating of vehicles at in-house (fleet) vehicle refinishing operations and the repair and recoating of vehicles by private individuals are exempt from the requirements of sec.115.421(a)(8)(B) and sec.115.422(1) and (2) of this title. This exemption is not applicable if the repair or recoating of a vehicle by a private individual occurs at a commercial operation. (b) (No change.) 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705861 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Offset Lithographic Printing 30 TAC sec.sec.115.442, 115.446, 115.449 The amendments are proposed under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.442.Control Requirements. For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in sec.115.10 of this title (relating to Definitions), the following control requirements shall apply: (1) No person shall operate or allow the operation of an offset lithographic printing line that uses solvent-containing ink, unless volatile organic compound (VOC) emissions are limited by the following: (A) (No change.) (B) Any person who owns or operates a nonheatset web offset lithographic printing press which prints newspaper and that uses alcohol in the fountain solution shall eliminate the use of alcohol in the fountain solution. Non- alcohol additives or alcohol substitutes can be used to accomplish the total elimination of alcohol use. (C) Any person who owns or operates a nonheatset web offset lithographic printing press which does not print newspaper and that uses alcohol in the fountain solution shall maintain the use of alcohol at 5.0% or less (by volume). Alternatively, a standard of 10.0% or less (by volume) alcohol may be used if the fountain solution is refrigerated to less than 60 degrees Fahrenheit. (D) Any person who owns or operates a sheetfed offset lithographic printing press shall maintain the use of alcohol at 10.0% or less (by volume). Alternatively, a standard of 12.0% or less (by volume) alcohol may be used if the fountain solution is refrigerated to less than 60 degrees Fahrenheit. (E)-(F) (No change.) (2) (No change.) 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705860 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER F.Miscellaneous Industrial Sources Pharmeceutical Manufacturing Facilities 30 TAC sec.sec.115.532, 115.533, 115.536, 115.537, 115.539 The amendments are proposed under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.532.Control Requirements. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the owner or operator of a synthesized pharmaceutical manufacturing facility shall provide the following specified controls. (1)-(4) (No change.) (5) Pharmaceutical manufacturing facility. Any pharmaceutical manufacturing facility that becomes subject to the provisions of paragraphs (1)-(4) of this subsection by exceeding provisions of sec.115.537(a) of this title (relating to Exemptions) will remain subject to the provisions of this subsection, even if throughput or emissions later fall below exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in sec.115.537(a) of this title and: (A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or standard exemption required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permit for New Construction or Modification; and Exemptions from Permitting). If a standard exemption is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that standard exemption; or (B) if authorization by permit, permit amendment, standard permit, or standard exemption is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing. (b) (No change.) sec.115.533.Alternate Control Requirements. (a) For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Pharmaceutical Manufacturing Facilities) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. (b) For all affected persons in Gregg, Nueces, and Victoria Counties, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Pharmaceutical Manufacturing Facilities) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705859 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 Petroleum Dry Cleaning Systems 30 TAC sec.sec.115.552, 115.553, 115.559 The amendments are proposed under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.552.Control Requirements. (a) (No change.) (b) Any petroleum solvent dry cleaning facility that becomes or is currently subject to the control requirements of subsection (a) of this section by exceeding the exemption limit of sec.115.157 of this title (relating to Exemptions) shall remain subject to the provisions of this section, even if its consumption of petroleum solvent later falls below the exemption level unless and until its uncontrolled solvent consumption is reduced to no more than its solvent consumption level before lifting controls, and (1) the project by which solvent consumption was reduced is authorized by any permit or permit amendment or standard permit or standard exemption required by Chapter 116 or Chapter 106 of this title (concerning Control of Air Pollution by Permits for New Construction or Modification; and Exemptions from Permitting). If a standard exemption is available for the project, compliance with this subsection shall be maintained for 30 days after the filing of documentation of compliance with that standard exemption; or (2) if authorization by permit, permit amendment, standard permit, or standard exemption is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing. sec.115.553.Alternate Control Requirements. For all affected persons in the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in sec.115.10 of this title (relating to Definitions), alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Petroleum Dry Cleaning Systems) may be approved by the executive director in accordance with sec.115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705858 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER J.Administrative Provisions Standard Permits 30 TAC sec.115.950 The commission adopts the repeal of sec.115.950, concerning Standard Construction Permit for Volatile Organic Compounds (VOC) Control Projects. The repeal is adopted without changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11743) and will not be republished. EXPLANATION OF REPEALED RULE The commission adopts this revision to Chapter 115, concerning Control of Air Pollution from VOC, and to the State Implementation Plan in order to streamline rule requirements. The Chapter 115 standard permit was adopted in 1993 as a temporary measure because at the time there was no standard permit for pollution control projects in Chapter 116. The two standard permits are largely duplicative. The more logical location for a standard permit is in Chapter 116, which concerns Control of Air Pollution by Permits for New Construction or Modification. Concurrent with this repeal, the commission adopts revisions to the Chapter 116 standard permit which are designed to allow greater flexibility in making the demonstration that a project is environmentally beneficial. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code, Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rule repeal is to eliminate largely duplicative requirements in multiple chapters. Promulgation and enforcement of the repeal will not affect private real property which is the subject of the rule because the repeal makes minor changes to the requirements for obtaining a standard permit for VOC control projects. COASTAL MANAGEMENT PROGRAM (CMP) CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas CMP in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et seq), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this action for consistency, and has determined that this rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The primary CMP policy applicable to the rulemaking action is the policy that commission rules comply with regulations at Title 40, Code of Federal Regulations, to protect and enhance air quality in the coastal area. The elimination of the section removes any possibility of conflict. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on January 6, 1997, at the commission's Austin offices. Written comments were received from Eastman Chemical Company (Eastman), Exxon Company, U.S.A. (Exxon), and the Texas Chemical Council (TCC). Eastman, Exxon (through their support of the TCC's comments) and the TCC generally supported the amendments, as a streamlining improvement to the rules. ANALYSIS OF TESTIMONY Eastman, Exxon and the TCC supported the repeal of the standard permit in Chapter 115, only if no substantive changes which would impose additional requirements on facilities are made to the proposed Chapter 116 standard permit. The commission appreciates the support. The adopted Chapter 116 standard permit for pollution control projects, published in this issue of the Texas Register, is substantially unchanged from the proposed version. STATUTORY AUTHORITY The repeal is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705880 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 239-1970 CHAPTER 116.Control of Air Pollution by Permits for New Construction or Modification SUBCHAPTER F.Standard Permits 30 TAC sec.sec.116.610, 116.611, 116.615, 116.617 The commission adopts amendments to sec.sec.116.610, 116.611, 116.615; and new sec.116.617; the repeal of existing sec.116.617, concerning Standard Permits, and revisions to the State Implementation Plan (SIP) regarding these amendments, repeal, and new section. Since the changes to sec.116.617, concerning Standard Permit for Pollution Control Projects, were extensive, the commission determined that it was administratively more efficient to repeal sec.116.617 and replace it with a new sec.116.617. These changes are part of a consolidation of the three standard air permits for pollution control facilities, previously located in Chapters 115, 116, and 117, into a single location in Chapter 116. Adopted with changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11744) are sec.sec.116.610, 116.611, 116.615 and 116.617. Section 116.617 is repealed without changes and will not be republished. EXPLANATION OF ADOPTED RULES The commission defines "project" for purposes of sec.116.610, concerning Applicability. The definition has been added to reflect the regulatory intent of the term in this subchapter. A project may include the construction or modification of a single facility or the construction or modification of a group of facilities. Examples of projects are: the installation of a single facility such as a flare or the installation of a group of facilities such as a gas production plant. The use of this definition is intended to prevent projects from being artificially separated for the purposes of circumventing Chapter 116 permitting requirements. Adopted revisions to sec.116.610(a)(1) add seven air contaminants from sec.106.4(a)(1), concerning Requirements for Exemption from Permitting, to the list of compounds for which no additional impacts analysis is required. Revisions to terminology are made to be consistent with commission rule drafting guidelines. Also, the revisions establish that a specific standard permit may provide for an impact analysis other than requiring the limitations of sec.106.261 and sec.106.262 be met. The commission deletes sec.116.610(a)(4) because the agency has the authority to add such conditions to permits without this language. Paragraph (5) is renumbered to (4) and revised to be grammatically consistent with paragraphs (1)-(3). The revisions to sec.116.610(b) clarify that for pollution control projects, the determination of a new major source or major modification is modified by the procedures of sec.116.617. The revisions to sec.116.611, concerning Registration Requirements, reformat the section, establish that a particular standard permit may provide for a different registration period, and add subsection (c), which provides a consistent process by which a person can affirmatively establish a federally enforceable emissions limit. Revisions to terminology are made to be consistent with commission rule drafting guidelines. The revisions to sec.116.615, concerning General Conditions, delete paragraph (4), which relates to the voiding of a standard permit for failure to construct. Voiding a standard permit has no practical effect, since the registrant could reclaim the standard permit at any time. The revisions renumber paragraphs (5)- (11) as (4)-(10). Newly renumbered paragraphs (4) and (5) are revised to clarify that a particular standard permit may modify the requirements of these paragraphs. Terminology is revised to more accurately reflect that standard permits are authorized by rule and to provide consistency with commission rule drafting guidelines. The adoption of new sec.116.617, concerning Standard Permit for Pollution Control Projects, carries through the commission's previous decision to place each standard permit in a separate section, and the title reflects the current substance of the section. The introductory text for the new sec.116.617 describes the applicability of the standard permit for pollution control projects. Section 116.617 previously consisted of two permit types, paragraph (1) for mandatory pollution control projects and paragraph (2) for voluntary pollution control projects. These are identical except for their approach to future netting and the ability of the source to take advantage of incidental production increases. The new applicability text combines the mandatory and voluntary standard permits. In addition, the applicability of the standard permit is extended to authorize the replacement of existing emission control equipment. The standard permit applicability is also clarified to authorize the substitution of compounds necessary to come into compliance with governmental standards (such as the Montreal Protocol), or to reduce emission effects (such as the replacement in a manufacturing process of a toxic compound with one less toxic). New sec.116.617(1) eliminates the procedure of using sec.106.261 and sec.106.262 (previously Standard Exemptions 106 and 118) to evaluate any emission increases of an air contaminant for which there is no applicable National Ambient Air Quality Standard. The new section is a more general approach to ensure that any such increases will not cause significant health effect concerns. Internal guidance has been developed to address how the executive director will evaluate increases of non-criteria pollutants. The new approach gives the executive director the discretion to object to the claim for a standard permit when he determines there are significant health effect concerns such as the conversion of an air contaminant to a highly toxic by-product that is projected to have an unacceptable off-property impact. The agency's experience has been that abatement projects very rarely raise such concerns. The new approach is designed to facilitate the construction of air pollution control facilities by simplifying their permitting, while retaining the ability of the agency to protect air quality. For pollution control facilities which previously would have been authorized under Chapter 115 or 117 standard permits, the new approach represents an additional opportunity for agency review of air impacts. New sec.116.617(2) reduces the period of time necessary to obtain construction authorization compared to the previous Chapter 116 rule and increases the time necessary to obtain authorization for projects previously authorizable under Chapters 115 and 117. This uniform period is sufficient for the agency to evaluate and notify the registrant of any concerns, while at the same time expediting the installation of pollution control facilities. New sec.116.617(3) reduces required information reporting to the agency for pollution control projects. Standard permit reports of construction progress and start-up for pollution control projects are not essential to the agency. New sec.116.617(4) establishes requirements for the replacement of existing emission control equipment. Under the proposed new sec.116.617(4), if replacement of control equipment or a control technique permitted under sec.116.110 occurs, the testing and recordkeeping requirements of the permit would continue to apply. An exception to this is a replacement control device of a different type for which the old provision no longer makes sense. Section 116.617(4)(C) allows replacements that result in no emissions increases to be registered after the change occurs. New sec.116.617(5) maintains the distinctions between required and voluntary standard permits for production capacity increases which may occur incidentally as a result of installing pollution control equipment or implementation of control techniques. New sec.116.617(6) provides for incidental emissions increases which may result from mandatory, voluntary, or replacement pollution control projects. New sec.116.617(8)(C) simplifies the approach to emission netting by referencing the underlying federal standards. There continues to be no required netting of emission changes in evaluating the proposed pollution project. Future netting calculations must include the pollution control project emission changes, if the changes are determined to be creditable under federal rules. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules in accordance with Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to streamline and consolidate the permitting process for pollution control projects. The rules substantially advance this specific purpose by simplifying and adding flexibility to an existing permit-by-rule option to the permitting process. Promulgation and enforcement of these rules will not burden private real property which is the subject of the rules because it is an optional approach to existing permitting requirements. COASTAL MANAGEMENT PROGRAM (CMP) CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas CMP in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et seq), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this action for consistency, and has determined that this rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The primary CMP policy applicable to the proposed rules is the policy that commission rules comply with regulations at Title 40, Code of Federal Regulations, to protect and enhance air quality in the coastal area. The proposed rules are consistent with the applicable CMP policy because they are consistent with Title 40. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on January 6, 1997, at the commission's Austin offices. Written comments were received from the City of Dallas (Dallas), Eastman Chemical Company (Eastman), Exxon Company, U.S.A. (Exxon), and the Texas Chemical Council (TCC). Eastman, Exxon, and the TCC generally supported the amendments, as a streamlining improvement to the rules. Exxon endorsed the TCC's comments in addition to making their own comments. Dallas did not generally support or oppose the revisions, but suggested changes. ANALYSIS OF TESTIMONY Eastman and the TCC provided detailed support for the majority of the proposed substantive changes. The commission appreciates the supportive comments made by Eastman and the TCC. Where necessary, to amplify the commission's intent or to analyze qualifications to the support, the commission has responded specifically to the supporting comments. In sec.116.610(a)(1), Eastman, Exxon and TCC supported the exclusion of pollutants that are environmentally abundant from the netting and qualifying impacts criteria. They recommended in future rulemaking, the addition of other compounds which are neither toxic nor present ozone generation potential, such as acetone. The commission appreciates the support and the suggestions for future rulemaking. Acetone, an organic solvent, was excluded from the definition of "volatile organic compound" in 1996, due to United States Environmental Protection Agency's conclusion that it does not participate in the photochemical reactions which lead to ozone formation. It is, however, an air contaminant, with a health effects screening level. If new data on the health effects of acetone were generated, this could provide the basis for revising the effects screening level. This would be more appropriate than adding acetone to the list of environmentally abundant compounds in sec.116.610(a)(1). The commission has made no changes in response to the comment. TCC and Eastman supported in sec.116.610(b) the exclusion of pollution control projects which constitute new major sources or major modifications from sec.116.110 applicability. The commission would like to point out that the exception for pollution control projects in 116.610(b) does not relieve registrants of these pollution control projects entirely from making the types of demonstrations required by prevention of significant deterioration or nonattainment review. Sections 116.617(8) and (9) provide the requirements. The commission has made no changes in response to the comment. TCC and Eastman commented that the preamble discussion concerning the language in sec.116.611(c) allowing a person to establish a federally enforceable limit in their registration is misleading, because of the characterization that the agency is enabling federally enforceable limits to be set. The commission agrees that the proposal preamble language could be misleading. The adoption preamble has been revised to state that the new subsection is intended to establish a consistent process by which a person can affirmatively establish a federally enforceable emissions limit. TCC and Eastman commented that sec.116.611(c) of the rule should allow standard permit registrations at unmanned sites to be maintained at the owner's or operator's nearest manned location. The commission agrees and has incorporated into sec.116.611(c) the language in sec.116.615(8) that addresses the handling of information at unmanned sites. Dallas commented that the last sentence of sec.116.615(8) should be clarified to require that the two-year record retention period does not apply to the permit itself, or the permit application. The commission agrees that a copy of the standard permit is to be maintained as a permanent record and has revised the wording to be clearer. Although the recordkeeping paragraph does not currently require the permit holder to maintain a copy of the registration ("application") on site, this was the intent. In order to allow the regulated community the opportunity for public notice and comment on this requirement, the commission intends to propose it in future rulemaking. Dallas commented that sec.116.615(10) should explicitly include local agencies. The commission agrees that local agencies having jurisdiction are included, and has revised the wording of sec.116.615(10) to be consistent with other references to authorized air pollution control authorities. Exxon commented that the proposed review of standard permits for control projects does not appear to prescribe a scientific method for the executive director to decide whether or not "significant" health concerns exist. Exxon said such analyses should be confined to accepted scientific methods. Eastman and the TCC said that the terms "significant health effects concerns" in sec.116.617(1) are intended to provide the executive director discretion to address compliance options that are deemed wholly unacceptable to public health. They also said the terms are intended to be a high hurdle/fail safe test, in which no action is the presumed default, and the exception is in cases where unacceptable health effects concerns are positively identified. The commission agrees with the comments on the intent of the effects review. The staff's experience has been that in most cases, installation of air pollution abatement equipment will not result in emission increases which could cause a concern, and no additional review will be needed. The internal guidance developed to address how the executive director will evaluate increases of non- criteria pollutants is based on effects screening levels and management review. Although this is policy, the screening levels are based on underlying scientific knowledge of specific air pollutants. The commission has made no changes to the rule language in response to the comments. TCC and Eastman supported the proposed reduction in the time period for the executive director to object to a standard permit claim in sec.116.617(2) and expressed hope that, in practice, the commission processes could be streamlined to be much more rapid than the 30 day limit. The commission appreciates the support for the streamlining. When the registrant makes the executive director aware of other time constraints, the agency will work to accommodate the constraint. Dallas commented that both sec.116.617(4)(C) and the referenced paragraph appear to specify identical 30-day time periods for registration of a standard permit for a replacement pollution control project. The time periods are different. The registration time period for projects that do not increase emissions is 30 days after operation of the replacement project begins. The time period for replacement projects that have an emissions increase is thirty days before construction on the replacement project begins. Exxon commented that the term "grandfathered baseline" in sec.116.617(5)(A)(I) is not defined and suggested the use of the terms "maximum allowable emissions rates for grandfathered facilities," as described in the sec.116.10 definition of grandfathered facility. The suggested terms are in the definition of "allowable emissions", not the definition of "grandfathered facility". The definition of "allowable emissions" in sec.116.10 is specialized for use in sec.116.116(e), a subsection developed to implement the requirements of Senate Bill 1126 (74th Legislature, 1995). The term "grandfathered baseline" refers to the level of emissions allowed of a "grandfathered facility", a term defined in sec.116.10. In order to be grandfathered, a facility must not have been modified, as defined in sec.116.10, since the inception of the permit system. The grandfathered baseline is the emission rate of an unmodified, grandfathered facility. The commission has made no change in response to this comment. Eastman, Exxon and TCC commented that the language in sec.116.617(5) and (6) could potentially prevent a facility from recovering lost capacity that occurred as a result of installing a pollution control project. The language in sec.116.617(5) and (6) does not prevent a facility from recovering lost capacity that occurred as a result of installation of pollution controls. The language precludes using the standard permit to increase a facility's capacity above what was authorized prior to the pollution control project. The exception, for mandatory control projects, allows a capacity increase above what was authorized prior to the control project, if the increase is purely incidental to the project. The commission has maintained the wording contained in the rule proposal. The commission has made additional changes to sec.sec.116.610, 116.611, 116.615, and 116.617 to simplify wording in accordance with the agency's rule drafting standards and to reflect the renumbering of standard exemptions to individual sections in Chapter 106. STATUTORY AUTHORITY The amendments and new section are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and TCAA, sec.382.051, which provides the commission the authority to issue permits. sec.116.610.Applicability. (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.051, a project which meets the requirements for a standard permit listed in this subchapter 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 claim. (1) any project which 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 sec.106.261(3) or (4) or sec.106.262(3) of this title (relating to Facilities (Emission Limitations), and Facilities (Emission and Distance 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), sec.111 (regarding Federal New Source Performance Standards) and sec.112 (regarding Hazardous Air Pollutants); (4) the owner or operator of the facility shall register the proposed project in accordance with sec.116.611 of this title (relating to Registration Requirements). (b) Any project, except those authorized under sec.116.617 of this title (relating to Standard Permits for Pollution Control Projects), which constitutes a new major source, or major modification under the new source review requirements of the FCAA, Part C (Prevention of Significant Deterioration Review) or Part D (Nonattainment Review) and regulations promulgated thereunder is subject to the requirements of sec.116.110 of this title (relating to Applicability) rather than this subchapter. (c) Persons may not circumvent by artificial limitations the requirements of sec.116.110 of this title. sec.116.611.Registration Requirements. (a) Registration for a standard permit shall be sent by certified mail, return receipt requested, or hand delivered to the Texas Natural Resource Conservation Commission (commission) Office of Air Quality, the appropriate commission Regional Office, and any local air pollution program with jurisdiction, before a standard permit can be claimed. The registration must be submitted on a Form PI- 1S and must document compliance with the requirements of this section, including, but not limited to: (1) the basis of emission estimates; (2) quantification of all emission increases and decreases associated with the project being registered; (3) sufficient information as may be necessary to demonstrate that the project will comply with sec.116.610(b) of this title (relating to Applicability); (4) information that describes efforts to be taken to minimize any collateral emissions increases that will result from the project; (5) a description of the project and related process; and (6) a description of any equipment being installed. (b) Construction may begin any time after receipt of written notification from the executive director that there are no objections or 45 days after receipt by the executive director of the registration, whichever occurs first, except where a different time period is specified for a particular standard permit. (c) Any person claiming a standard permit may certify and register a federally enforceable emission limitation for one or more air contaminants by stating a maximum allowable emission rate in the registration. The certification may be amended and must include documentation of the basis of emission estimates and a written statement by the registrant certifying that the maximum emission rates listed on the registration reflect the reasonably anticipated maximums for operation of the facility. The certified registration shall be maintained on- site and be provided upon request to a representative of the executive director or any air pollution control agency having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. sec.116.615.General Conditions. The following general conditions are applicable to holders of standard permits, but will not necessarily be specifically stated within the standard permit document. (1) Protection of public health and welfare. The emissions from the facility must comply with all applicable rules and regulations of the Texas Natural Resource Conservation Commission (commission) adopted under the Texas Health and Safety Code, Chapter 382, and with intent of the Texas Clean Air Act (TCAA), including protection of health and property of the public. (2) Standard permit representations. All representations with regard to construction plans, operating procedures, and maximum emission rates in any registration for a standard permit become conditions upon which the facility or changes thereto, must be constructed and operated. It is unlawful for any person to vary from such representations if the change will affect that person's right to claim a standard permit under this section. Any change in condition such that a person is no longer eligible to claim a standard permit under this section requires proper authorization under sec.116.110 of this title (relating to Applicability). If the facility remains eligible for a standard permit, the owner or operator of the facility shall notify the executive director of any change in conditions which will result in a change in the method of control of emissions, a change in the character of the emissions, or an increase in the discharge of the various emissions as compared to the representations in the original registration or any previous notification of a change in representations. Notice of changes in representations must be received by the executive director no later than 30 days after the change. (3) (No change.) (4) Construction progress. Start of construction, construction interruptions exceeding 45 days, and completion of construction shall be reported to the appropriate regional office not later than 15 working days after occurrence of the event, except where a different time period is specified for a particular standard permit. (5) Start-up notification. The appropriate air program regional office of the commission and any other air pollution control program having jurisdiction shall be notified prior to the commencement of operations of the facilities authorized by the standard permit in such a manner that a representative of the executive director may be present. For phased construction, which may involve a series of units commencing operations at different times, the owner or operator of the facility shall provide separate notification for the commencement of operations for each unit. A particular standard permit may modify start-up notification requirements. (6) Sampling requirements. If sampling of stacks or process vents is required, the standard permit holder shall contact the Office of Air Quality and any other air pollution control program having jurisdiction 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 regional representatives of the commission. The standard permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (7) Equivalency of methods. The standard permit holder shall demonstrate or otherwise justify 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 standard 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 standard permit. (8) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability of and compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of representatives of the executive director, United States Environmental Protection Agency, or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. This information must include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in the conditions of the standard permit. Information and data sufficient to demonstrate applicability of and compliance with the standard permit must be retained for at least two years following the date that the information or data is obtained. The copy of the standard permit must be maintained as a permanent record. (9) Maintenance of emission control. The facilities covered by the standard permit may 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. Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Notification Requirements for Major Upset and Notification Requirements for Maintenance). (10) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the claiming of the standard permit. If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition governs. Acceptance includes consent to the entrance of commission employees and designated representatives of any air pollution control program having jurisdiction into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit. sec.116.617.Standard Permits for Pollution Control Projects. This standard permit applies to the installation of emissions control equipment or implementation of control techniques as required by any governmental standard, or undertaken voluntarily, or to replace existing emission control equipment or control techniques. This standard permit also authorizes the substitution of compounds used in manufacturing processes for the purpose of complying with governmental standards or to reduce emission effects. (1) The emissions limitations of sec.106.261(3) or (4) and sec.106.262(3) of this title (relating to Facilities (Emission Limitations), and Facilities (Emission and Distance Limitations)), referenced in sec.116.610(a)(1) of this title (relating to Applicability) do not apply to this standard permit. This standard permit cannot be used if the registrant receives notification that in the opinion of the executive director there are significant health effects concerns resulting from an increase in emissions of any air contaminant other than those for which a National Ambient Air Quality Standard has been established, until those concerns are addressed by the registrant to the satisfaction of the executive director. (2) The time period of 45 days in sec.116.611(b) of this title (relating to Registration Requirements) is modified to 30 days. (3) Sections 116.615(4) and (5) of this title (relating to General Conditions) are not applicable to this standard permit. (4) Replacement projects are subject to the following: (A) The replacement emissions control equipment or control technique must be at least as effective an air pollution control method as the emissions control equipment or control technique being replaced. Equipment installed under this section is subject to all applicable testing and recordkeeping requirements. (B) The replacement of emissions control equipment or control technique under this section is not limited to the method of control currently in place. Any type of control equipment or control technique may be replaced with any other type of control equipment or control technique as long as all other requirements of this standard permit are met. (C) If the replacement project does not result in an increase in emissions of any air contaminant, the owner or operator of the facility shall submit registration notice not later than 30 days after the operation of the replacement project begins. If the replacement project will result in an increase of any air contaminant, the registration time period requirements of paragraph (2) of this section are applicable. (5) Installation of the control equipment or implementation of the control technique must not result in an increase in the facility's production capacity unless the capacity increase occurs solely as a result of the installation of control equipment or the implementation of control techniques on existing units. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate resulting from the installation of control equipment or the implementation of a control technique. (A) The owner or operator shall obtain or qualify for any necessary authorization pursuant to sec.116.110 of this title (relating to Applicability) or sec.116.116 of this title (relating to Changes to Facilities) prior to utilizing any production capacity increase from a pollution control project required by any governmental standard that: (i) results in the exceedance of any emission limit in an existing permit, other authorization, or grandfathered baseline; or (ii) results in an emissions increase which exceeds the emission reduction due to the installation of control equipment or implementation of control techniques. (B) Any production capacity increase resulting from the voluntary installation of controls or the implementation of control techniques may not be utilized until the owner or operator obtains or qualifies for any necessary authorization pursuant to sec.116.110 or sec.116.116 of this title. (6) Any emission increase of an air contaminant must occur solely as a result of the installation of control equipment or implementation of a control technique authorized by this section. Emissions increases associated with recovering a derate resulting from the installation of control equipment or the implementation of a control technique are not prohibited by this paragraph. (7) Installation of emission control equipment or implementation of a control technique may not include the installation of a new production facility, reconstruction of a production facility as defined in 40 Code of Federal Regulations (CFR) sec.60.15(b)(1) and (c), or complete replacement of an existing production facility. (8) If the project, without consideration of any other increases or decreases not related to the project, will result in a significant net increase in emissions of any criteria pollutant, a person claiming this standard permit shall submit, with the registration, information sufficient to demonstrate that the increase will meet the conditions of subparagraph (A) of this paragraph. (A) The net emissions increase may not: (i) considering the emission reductions that will result from the project, cause or contribute to a violation of any national ambient air quality standard; (ii) cause or contribute to a violation of any Prevention of Significant Deterioration (PSD) increment; or (iii) cause or contribute to a violation of any PSD visibility limitation. (B) For purposes of this section, "significant net increase" means those emissions increases resulting solely from the installation of control equipment or implementation of control techniques that are equal to or greater than: (i) the major modification threshold listed in sec.116.12 of this title (relating to Nonattainment Review Definitions), Table I, for pollutants for which the area is designated as nonattainment, or for precursors to these pollutants; or (ii) significant as defined in Title 40 CFR sec.52.21(b)(23) (effective July 20, 1993) for pollutants for which the area is designated attainment or unclassifiable, or for precursors to these pollutants. (C) Netting is not required when determining whether this demonstration must be made for the proposed project. The increases and decreases in emissions resulting from the project must be included in any future netting calculation if they are determined to be otherwise creditable under PSD and nonattainment new source review provisions of the Federal Clean Air Act (FCAA), Parts C and D and regulations promulgated thereunder. (9) For purposes of compliance with the PSD and nonattainment new source review provisions of the FCAA, Parts C and D and regulations promulgated thereunder, any increase that is less than significant, or satisfies the requirements of paragraph (8) of this section does not constitute a physical change or a change in the method of operation. For purposes of compliance with the Standards of Performance for New Stationary Sources regulations promulgated by the United States Environmental Protection Agency at 40 CFR sec.60.14 (effective December 16, 1975), an increase that satisfies the requirements of paragraph (8) of this section also satisfies the requirements of 40 CFR sec.60.14(e)(5). 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705879 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 239-1970 30 TAC sec.116.617 The repeal is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705878 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 239-1970 CHAPTER 117.Control of Air Pollution From Nitrogen Compounds SUBCHAPTER D.Administrative Provisions 30 TAC sec.117.550 The commission adopts the repeal of sec.117.550, concerning Standard Construction Permits for Nitrogen Oxides Reasonably Available Control Technology (NOx RACT) Projects. The repeal is adopted without changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11749) and will not be republished. EXPLANATION OF REPEALED RULE The commission adopts this revision to Chapter 117, concerning Control of Air Pollution from Nitrogen Compounds, and to the State Implementation Plan in order to streamline rule requirements. The Chapter 117 standard permit was adopted as an expedience in 1993 because at the time there was no standard permit for pollution control projects in Chapter 116. The two standard permits are largely duplicative. The more logical location for a standard permit is in Chapter 116, which concerns Control of Air Pollution by Permits for New Construction or Modification. Concurrent with this repeal, the commission adopts revisions to the Chapter 116 standard permit which are designed to allow greater flexibility in making the demonstration that a project is environmentally beneficial. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that assessment. The specific purpose of the repeal is to eliminate largely duplicative requirements in multiple chapters. Promulgation and enforcement of this rule repeal will not affect private real property which is the subject of the rule because the repeal makes minor changes to the requirements for obtaining a standard permit for NOtype-name="sub">x RACT projects. COASTAL MANAGEMENT PROGRAM (CMP) CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas CMP in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et seq), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this action for consistency, and has determined that this rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The primary CMP policy applicable to the rulemaking action is the policy that commission rules comply with regulations at Code of Federal Regulations, Title 40, to protect and enhance air quality in the coastal area. The elimination of the section removes any possibility of conflict. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that this rule is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on January 6, 1997, at the commission's Austin offices. Written comments were received from Eastman Chemical Company (Eastman), Exxon Company, U.S.A. (Exxon), and the Texas Chemical Council (TCC). Eastman, Exxon (through their support of the TCC's comments) and the TCC generally supported the amendments, as a streamlining improvement to the rules. ANALYSIS OF TESTIMONY Eastman, Exxon and the TCC supported the repeal of the standard permit in Chapter 117, only if no substantive changes which would impose additional requirements on facilities are made to the proposed Chapter 116 standard permit. The commission appreciates the support. The adopted Chapter 116 standard permit for pollution control projects, published in this issue of the Texas Register, is substantially unchanged from the proposed version. STATUTORY AUTHORITY The repeal is adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.117.550. Standard Construction Permits for NOx RACT Projects. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705877 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 22, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 239-1970 CHAPTER 291. Water Rates SUBCHAPTER G. Certificates of Convenience and Necessity 30 TAC sec.291.108 The commission adopts the repeal of sec.291.108, concerning nonsubstantive corrections to certificates of convenience and necessity, without changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 597) and will not be republished. The purpose of this rulemaking is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. EXPLANATION OF ADOPTED RULE. The provisions of the repealed section are replaced with a new sec.50.45, concerning Corrections to Permits, that is adopted concurrently, and the repeal simply removes duplicative requirements. TAKINGS IMPACT STATEMENT. The commission has prepared a Takings Impact Assessment for the rule pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rule is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. The rule will substantially advance this specific purpose by placing certain agency requirements governing nonsubstantive permit corrections under a common section and repealing duplicative requirements. Promulgation of the rule will not burden private real property which is the subject of the rule because it concerns only procedural rules. Also, the following exceptions to the application of the Texas Government Code, Chapter 2007 apply to the rule: the action significantly advances the health and safety purpose and imposes no greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS. A public hearing was held to receive oral and written comments on the proposed rules at commission offices in Austin on February 5, 1997. The public comment period closed February 10, 1997. No written or oral testimony was received on the proposed rule. STATUTORY AUTHORITY. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. 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. Issued in Austin, Texas, on April 16, 1997. TRD-9705743 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 20, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1966 CHAPTER 295. Water Rights, Procedural SUBCHAPTER C. Notice Requirements for Water Use Permit Applications 30 TAC sec.295.158 The commission adopts an amendment to sec.295.158, concerning amendments to water rights, without changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 598) and will not be republished. The purpose of this rulemaking is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. EXPLANATION OF ADOPTED RULE. The amendment deletes subsection (c)(2)(A), which provides for the correction of nonsubstantive errors in a permit or certificate of adjudication, such as in the name of the water right holder, boundary description, or other details that were incorrectly transcribed. The amendment also deletes subsection (d), which provides for notice of the amendment to the water right holder, the executive director, the public interest advocate, and appropriate parties. The requirements of the deleted provisions are addressed in a new sec.50.45, concerning Corrections to Permits, which is being adopted concurrently, and this modification of sec.295.158 simply removes duplicative requirements. TAKINGS IMPACT STATEMENT. The commission has prepared a Takings Impact Assessment for the rule pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rule is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. The rule will substantially advance this specific purpose by placing certain agency requirements governing nonsubstantive permit corrections under a common section and repealing duplicative requirements. Promulgation of the rule will not burden private real property which is the subject of the rule because it concerns only procedural rules. Also, the following exceptions to the application of the Texas Government Code, Chapter 2007 apply to the rule: the action significantly advances the health and safety purpose and imposes no greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS. A public hearing was held to receive oral and written comment on the proposed rules at commission offices in Austin on February 5, 1997. The public comment period closed February 10, 1997. No written or oral testimony was received on the proposed rule. STATUTORY AUTHORITY. The amendment is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. 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. Issued in Austin, Texas, on April 16, 1997. TRD-9705744 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 20, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1966 CHAPTER 297. Water Rights, Substantive SUBCHAPTER F. Amendments to Water Rights; Corrections to Water Rights 30 TAC sec.297.62 The commission adopts the repeal of sec.297.62, concerning nonsubstantive changes and corrections to water rights, without changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 599) and will not be republished. The purpose of this rulemaking is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. EXPLANATION OF ADOPTED RULE. The provisions of the repealed section are replaced with a new sec.50.45, concerning Corrections to Permits, that is adopted concurrently, and the repeal simply removes duplicative requirements. TAKINGS IMPACT STATEMENT. The commission has prepared a Takings Impact Assessment for the rule pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rule is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. The rule will substantially advance this specific purpose by placing certain agency requirements governing nonsubstantive permit corrections under a common section and repealing duplicative requirements. Promulgation of the rule will not burden private real property which is the subject of the rule because it concerns only procedural rules. Also, the following exceptions to the application of the Texas Government Code, Chapter 2007 apply to the rule: the action significantly advances the health and safety purpose and imposes no greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS. A public hearing was held to receive oral and written comments on the proposed rules at commission offices in Austin on February 5, 1997. The public comment period closed February 10, 1997. No written or oral testimony was received on the proposed rule. STATUTORY AUTHORITY. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. 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. Issued in Austin, Texas, on April 16, 1997. TRD-9705745 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 20, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1966 CHAPTER 305. Consolidated Permits SUBCHAPTER D. Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 30 TAC sec.305.65 The commission adopts the repeal of sec.305.65, concerning nonsubstantive changes to permits, without changes to the proposed text as published in the January 10, 1997, issue of the Texas Register (22 TexReg 604) and will not be republished. The purpose of this rulemaking is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. EXPLANATION OF ADOPTED RULE. The provisions of the repealed section are replaced with a new sec.50.45, concerning Corrections to Permits, that is adopted concurrently, and the repeal simply removes duplicative requirements. TAKINGS IMPACT STATEMENT. The commission has prepared a Takings Impact Assessment for the rule pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rule is to continue the effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. The rule will substantially advance this specific purpose by placing certain agency requirements governing nonsubstantive permit corrections under a common section and repealing duplicative requirements. Promulgation of the rule will not burden private real property which is the subject of the rule because it concerns only procedural rules. Also, the following exceptions to the application of the Texas Government Code, Chapter 2007 apply to the rule: the action significantly advances the health and safety purpose and imposes no greater burden than is necessary to achieve the health and safety purpose. HEARING AND COMMENTERS. A public hearing was held to receive oral and written comments on the proposed rules at commission offices in Austin on February 5, 1997. The public comment period closed February 10, 1997. No written or oral testimony was received on the proposed rule. STATUTORY AUTHORITY. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. 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. Issued in Austin, Texas, on April 16, 1997. TRD-9705746 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 20, 1997 Proposal publication date: January 10, 1997 For further information, please call: (512) 239-1966 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Deaprtment CHAPTER 58.Oysters and Shrimp SUBCHAPTER B.Statewide Shrimp Fishery Proclamation 31 TAC sec.58.160 The Texas Parks and Wildlife Commission, in a regularly scheduled public hearing, April 17, 1997, adopted amendments to sec.58.160 concerning the Statewide Shrimp Fishery Proclamation, without changes to the proposed text as published in the March 14, 1997, issue of the Texas Register (22 TexReg 2731). Responsibility for establishing seasons, bag limits, means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983). The amended section is necessary to protect native populations of shrimp and other aquatic life and to allow shrimpers the opportunity to maximize their fishing efficiency. The amended section will result in simplification of enforcement activities related to the Texas shrimp fishery, and public benefits will occur through the extended season and increased bag limit for bait fish, enhancing the availability of bait for sport fishermen. The department received no public comments concerning the proposed amendment. The amendments are adopted under Parks and Wildlife Code, Chapter 61, 61.052, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the Commission with authority to establish wildlife resource regulations for this state. 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. Issued in Austin, Texas, on May 2, 1997. TRD-9705828 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Effective date: May 22, 1997 Proposal publication date: March 14, 1996 For further information, please call: (512) 239-1970