Title 30 TAC Chapter 116 Rule Change, April 7, 1998
Permanent Rule Adoption
Chapter 116 Subchapters A and B
1. Purpose. This change transmittal provides the page(s) that reflect changes and additions to the Texas Natural Resource Conservation Commission (commission) Volume of Permanent Rules.
2. Explanation of Change. On March 18, 1998, the commission adopts an amendment to § 106.4, concerning requirements for exemption from permitting, Texas Health and Safety Code, the Texas Clean Air Act, § 382.0518. The section was adopted with changes to the proposed text as published in the April 3, 1998, issue of the Texas Register (22 TexReg 8034). The commission also adopted amendments to § 116.12, concerning nonattainment review definitions, § 116.150 concerning new major source or major modification in ozone nonattainment area, and § 116.151 concerning new major source or major modification in nonattainment area other than ozone. These amendments were adopted with changes to the proposed text as published in the April 4, 1998, issue of the Texas Register (22 TexReg 3206) and was not republished.3. Effect of Change. The Federal Clean Air Act (FCAA), § 182(f), specifies that required measures for major sources of volatile organic compounds must also be applied to major sources of nitrogen oxides (NOx), unless a demonstration is made that NOx reductions would not contribute to attainment of the ozone standard. The United States Environmental Protection Agency's (EPA) interpretation of § 182(f) allows the following federally required NOx measures to be waived if the state demonstrates that NOx reductions do not contribute to ozone attainment: reasonably available control technology (RACT), nonattainment new source review (NNSR), vehicle inspection/maintenance, and general and transportation conformity. On April 12, 1995, the EPA approved a temporary § 182(f) exemption from these NOx measures in the Houston/Galveston (HGA) and Beaumont/Port Arthur (BPA) ozone nonattainment areas. The EPA's approval was based on the state's preliminary demonstration, using Urban Airshed Model (UAM) modeling, that NOx reductions in HGA and BPA would not lower ozone levels, and in fact could make them worse ("NOx disbenefit"). The temporary exemption allowed more time to conduct UAM modeling, using data from the Coastal Oxidant Assessment for Southeast Texas (COAST), an intensive 1993 field study. These UAM results were judged critical in determining whether, and to what extent, NOx reductions are needed to attain the ozone standard. The EPA specified that the temporary exemption would expire on December 31, 1996. On May 23, 1997, the EPA approved a one-year extension of the § 182(f) temporary exemption, which since expired on December 31, 1997. This additional year allowed the commission to accommodate improvements in the UAM, using COAST data, and to better substantiate an emission reduction strategy.
As a result of the original exemption and extension, the agency revised certain rules, including § 106.4, to be consistent with the § 182(f) waiver. In the fall of 1997, commission staff completed the UAM modeling analysis of the airshed of the upper Texas Gulf Coast. This study indicated that NOx reductions are a necessary step toward the area's attaining the federal air quality standard for ozone. Because of the modeling and the need to continue steady reductions of the pollutants that contribute to ozone smog, on November 24, 1997, the commission determined not to seek further federal § 182(f) waivers from the NOx reduction requirements of the 1990 FCAA for the HGA and BPA areas.
This amendment to Chapter 106, regarding exemptions from Permitting, requires a source seeking a standard exemption to instead undergo full NNSR if the project constitutes a new major source or major modification for NOx.
The Federal Clean Air Act (FCAA), § 182(f) specifies that required measures for major sources of volatile organic compounds must also be applied to major sources of nitrogen oxides (NOx), unless a demonstration is made that NOx reductions would not contribute to attainment of the ozone standard. The United States Environmental Protection Agency's (EPA) interpretation of § 182(f) allows the following federally required NOx measures to be waived if the state demonstrates that NOx reductions do not contribute to ozone attainment: reasonably available control technology (RACT), nonattainment new source review (NNSR), vehicle inspection/maintenance, and general and transportation conformity. On April 12, 1995, the EPA approved a temporary § 182(f) exemption from these NOx measures in the Houston/Galveston (HGA) and Beaumont/Port Arthur (BPA) ozone nonattainment areas. The EPA's approval was based on the state's preliminary demonstration, using Urban Airshed Model (UAM) modeling, that NOx reductions in HGA and BPA would not lower ozone levels, and in fact could make them worse ("NOx disbenefit"). The temporary exemption allowed more time to conduct UAM modeling, using data from the Coastal Oxidant Assessment for Southeast Texas (COAST), an intensive 1993 field study. These UAM results were judged critical in determining whether, and to what extent, NOx reductions are needed to attain the ozone standard. The EPA specified that the temporary exemption would expire on December 31, 1996. On May 23, 1997, the EPA approved a one-year extension of the § 182(f) temporary exemption, which since expired on December 31, 1997. This additional year allowed the commission to accommodate improvements in the UAM, using COAST data, and to better substantiate an emission reduction strategy.
As a result of the original exemption and extension, the agency revised certain rules, including § 116.150, to be consistent with the § 182(f) waiver. In the fall of 1997, commission staff completed the UAM modeling analysis of the airshed of the upper Texas Gulf Coast. This study indicated that NOx reductions are a necessary step toward the area's attaining the federal air quality standard for ozone. Because of the modeling and the need to continue steady reductions of the pollutants that contribute to ozone smog, on November 24, 1997, the commission determined not to seek further federal § 182(f) waivers from the NOx reduction requirements of the 1990 FCAA for the HGA and BPA areas.
These amendments to Chapter 116 reinstate full NNSR for NOx in HGA and BPA, consisting of application of lowest achievable emission rate (LAER), compliance certification, offsets, and alternative site analysis. These NOx requirements apply to permit applications determined to be administratively complete after December 31, 1997. Adopted § 116.150(a) and (c)(2) contain these reinstated provisions.
In addition, the rulemaking implements certain revisions to NNSR which are specified in the 1990 FCAA amendments. The EPA's New Source Review (NSR) reform package, published in the Federal Register on July 23, 1996, clarifies the implementation of these federal statutes. The EPA proposal and the FCAA, § 182(c)(7) and (8) allow creditable internal offsets at a ratio of 1.3 to 1 to be used in certain nonattainment areas to either: avoid NNSR at existing major sources that emit, or have the potential to emit, less than 100 tons per year (tpy) of an ozone precursor; or substitute Best Available Control Technology (BACT) for LAER at existing major sources that emit, or have the potential to emit, 100 tpy or more of an ozone precursor. Also, if NNSR is required, the EPA proposal and the FCAA, § 182(c)(7), allow the substitution of BACT for LAER at existing major sources with less than 100 tpy of an ozone precursor. The adopted revisions to § 116.150(a)(1) and (3) incorporate language to allow these substitutions.
The adopted rule also implements the FCAA, § 182(c)(6), in accordance with the EPA's proposal. The EPA proposed a preliminary step of determining whether there is an "increase in the net emissions" from the proposed modification for which NSR applicability is in question. Where there is a "project net" increase in emissions, the next step is to combine those "project net" increases with the contemporaneous increases and decreases to determine if NNSR is required. Adopted § 116.12 includes a new definition of "project net" consistent with the EPA's proposed definition. Adopted § 116.150(a) requires an applicant to submit contemporaneous netting calculations (de minimis threshold test) where the project has an increase in emissions of greater than five tpy and there is a "project net" emissions increase.
In addition, the adopted rule updates and makes minor corrections to the § 116.12 definitions of "contemporaneous period," "de minimis threshold test," and "offset ratio." Also, the adopted amendments to § 116.151 reword the NNSR provisions for nonattainment areas other than ozone consistent with the adopted amendments to the § 116.150 provisions for ozone nonattainment areas.
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