ventgas.txt

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                   Jones and Neuse, Inc.
           Environmental and Engineering Services

October 2, 1992

Mr. James Braddock
General Counsel 
Texas Air Control Board
12124 Park 35 Circle 
Austin, TX  78753 

Dear Mr. Braddock:

I hereby request a formal agency opinion regarding the method
to determine the Regulation V exemption status of certain vent
gas streams pursuant to Rule 115.127.  Various industrial
facilities in the Houston area have been instructed by the
TACB Region 7 staff that sampling the atmospheric exhaust of
such vents is not sufficient to determine the exemption status
of vent gas streams under Regulation V.  According to the TACB
Houston staff, sampling must occur upstream of any equipment
that may remove air contaminants from the stream prior to
being vented to the atmosphere.  This appears to fly in the
face of the definition of "vent" in Rule 115.010.

The streams in question are routed through condensers,
scrubbers, absorbers and separators prior to being vented to
the atmosphere.  It should be pointed out that many such vents
are "grandfathered" and pre-date the permit requirements and
some vents pre-date the agency itself.  Many companies have
been operating for over twenty years with the understanding
that the vent gas streams from their processes are exempt from
Regulation V control based on the vent flow and composition as
it exhausts to the atmosphere which is consistent with the
TACB definition of "vent".  If this is an incorrect conclusion
and the TACB wishes to implement an interpretation consistent
with the Houston Region 7 staff position, the rule-making
process is the appropriate mechanism to insure proper
notification and involvement of potentially affected
facilities. 

Your expeditious response on this important issue will be
appreciated.  If you have any questions, please call me at
(713) 450-1882.

Sincerely,



Jim Myers, P.E., 
Houston Branch ManagerJanuary 20, 1993

Mr. Jim Myers, P.E.
Houston Branch Manager
Jones and Neuse, Inc.
11811 East Freeway, Suite 450
Houston, TX  77029

Re:  Request for Formal Agency Opinion TACB Rule 115.127

Dear Jim:

Enclosed please find a Texas Air Control Board (TACB) Legal
Opinion regarding the method for determining Regulation V
exemption status of vent gas streams pursuant to TACB Rule
115.127.  This legal opinion was developed in response to your
letter of October 2, 1992.

If you have any questions regarding this legal opinion, please
do not hesitate to call me.

Sincerely,



Jim Braddock
General Counsel

Enclosure

cc:  Ms. Jodena Henneke, Regional Director, Houston                   Texas Air Control Board
             Austin                       Texas

To:  Jodena Henneke, Regional Director, Houston
From:  Kevin R. Jung, staff Attorney, Legal Division
Date:  January 20, 1993
Subject:  Method for determining Regulation V exemption status
          of vent gas streams pursuant to Rule 115.127

This memorandum is being written in response to questions
raised in a letter dated October 2, 1992, from Mr. Jim Myers,
P.E., Houston Branch Manager for Jones and Neuse, Inc., to Mr.
James Braddock, General Counsel, Texas Air Control Board
(TACB).  The letter requests a formal agency opinion regarding
the method for determining the exemption status of certain
vent gas streams pursuant to TACB Rule 115.127.  The letter
states that the TACB Region 7 Staff has directed several
companies to sample for air contaminants upstream of any
equipment that may remove air contaminants for purposes of
determining the applicability of the exemption.  The letter
suggests that this instruction conflicts with the definition
of "vent" in Board Rule 115.010.  

The term vent, is defined in Board Rule 115.010 to mean "any
duct, stack, chimney, flue, conduit, or other device used to
conduct air contaminants into the atmosphere."  This term
would include any avenue within a process stream that is used
ultimately to conduct air contaminants to the atmosphere,
whether the device is located before or after any control
equipment in the process stream.  Thus, the term "vent," when
used in the phrase "vent gas stream," as in Board Rule
115.127, could be interpreted to mean a vent gas stream after
the point of generation of air contaminants but before any
control equipment. 

If the interpretation of the Rule suggested in Mr. Myers
letter were to be applied by the TACB, it would defeat the
purpose of the Rule, which was to require sources to implement
Reasonably Available Control Technology (RACT) if the
uncontrolled emissions from such sources exceeded the
emissions limitations found in Regulation V.  If the TACB were
to allow the regulated community to utilize controlled
emission rates to determine the applicability of the exemption
in Board Rule 115.127, it would enable industries to install
the minimum amount of control technology necessary to meet the
Regulation V exemption limitations.  Thus, instead of RACT,
companies could install "JECT"--Just Enough Control Technology
to avoid having to install RACT.  This would result in far
less emission reductions in nonattainment areas, undermining
TACB efforts to bring those areas into attainment status.

Air contaminants become air contaminants at the point of
generation (or the "source" as defined in Section 382.003(12)
of the Texas Clean Air Act), not at the point of emission to
the ambient atmosphere.  Therefore, only uncontrolled emission
rates have been used in the past by the TACB staff to
determine whether an increase in emissions had taken place for
purposes of Regulation VI permitting requirements concerning
the implementation of Best Available control Technology (BACT)
(See July 18, 1973 memo from Charles R. Barden, P.E.,
Executive Secretary, TACB).  Since uncontrolled emissions are
used for an existing facility's "baseline" in such analysis
under Regulation VI, absent a clearly expressed contrary
intent, it is appropriate to use uncontrolled emissions to
establish an existing facility's "baseline" for purposes of
the rule in question.  The concept of implementing "Just
Enough Control Technology" is equally unacceptable in both
cases.

Additionally, Mr. Myers' letter states that "many such vents
are 'grandfathered' and pre-date the permit requirements and
some vents pre-date the agency itself."  This point is
irrelevant for purposes of the vent gas rule, which by its
terms addresses all existing sources for the purpose of
requiring such sources to implement RACT, regardless of their
permitted status, if uncontrolled emissions exceeded the
emissions limitations found in Regulation V.  In support of
this, the hearing record pertaining to the latest adoption of
the vent gas rule addresses one commenter's suggestion that
now or modified facilities that have gone through the TACB
permitting process be exempted from Regulation V, by noting
that:  

Regulation V and ozone control strategies involve
retrofit controls based on technological advances and
reduction requirements which may go beyond requirements that
exist at the time a permit was issued (see Texas Air Control
Board Public Hearing Record, August 15, 16, and 17, 1989,
Regulation V Evaluation and Recommendation, page 11).

It is clear from the hearing record that the intent of
Regulation V was that it be applied to all sources.  It should
also be noted that if the rule sought to treat some sources as
being grandfathered, the rule would have had to define the
scope of such a grandfathering provision, which it does not. 
The intent of Rule 115.127 to address all existing sources is
consistent with the intent of Regulation V generally.

Accordingly, it in the opinion of the Legal Division that
sampling for air contaminants for purposes of determining the
applicability of the exemption be conducted upstream of any
control equipment, and that Rule 115.127 applies to
grandfathered facilities as well as those facilities which
were previously permitted.

cc:  Mr. James D. Braddock, Director, Legal Division