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Title 30 TAC Chapter 116 Rule Change, March 21, 1999

Synopsis of specific rules from air permitting that were in effect on this date.

Permanent Rule Adoption

Subchapters A and B

1. Purpose. This change transmittal provides the page(s) that reflect changes and addition to the Texas Natural Resource Conservation Commission (commission) Volume of Permanent Rules.

2. Explanation of Change. On February 24, 1999, the commission adopted amendments to § 116.12, concerning Nonattainment Review Definitions, and § 116.150, concerning New Major Source or Major Modification in Ozone Nonattainment Areas. Section 116.12 is adopted with changes to the proposed text as published in the November 6, 1998, issue of theTexas Register (23 TexReg 11278). Section 116.150 is adopted without changes and will not be republished.

3. Effect of Change. The commission adopts these revisions to Chapter 116 and to the State Implementation Plan (SIP) in order to reinstate nonattainment new source review (NNSR) for nitrogen oxides (NOx) in the Dallas/Fort Worth (DFW) ozone nonattainment area, an area defined by Collin, Dallas, Denton, and Tarrant Counties. NNSR is a federal air quality permit requirement consisting of four elements: alternative site analysis, compliance certification, lowest achievable emission rate, and offsets.

The 1990 Federal Clean Air Act (FCAA), § 172(c)(5) and § 173, establishes the permitting requirements for new or modified major stationary sources in nonattainment areas. In addition, the FCAA requires NOx NNSR. Specifically, the FCAA, § 182(f) specifies that required measures for volatile organic compounds (VOC) must also be applied for NOx in ozone nonattainment areas, 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 federal NOx measures to be waived if the state demonstrates that NOx reductions do not contribute to ozone attainment: reasonably available control technology, NNSR, vehicle inspection/maintenance, and general and transportation conformity. On November 28, 1994, the EPA granted conditional approval of a § 182(f) exemption from these NOx measures for DFW. EPA approval was based on the commission's petition, which demonstrated with photochemical dispersion modeling, that NOx reductions in DFW would be in excess of the reductions necessary for attainment of the ozone standard. The modeling predicted that VOC reductions alone would be sufficient for attainment. A condition of EPA's approval was that the § 182(f) exemption would be rescinded if the area did not attain the ozone standard by November 15, 1996, and modeling later showed that NOx reductions would contribute to attainment. In response to the exemption, the commission adopted revisions to § 116.150, effective November 2, 1995, which waived NOx NNSR requirements for the DFW area.

Effective March 20, 1998, EPA reclassified ("bumped up") the DFW area from the "moderate" to the "serious" ozone nonattainment classification, because of monitored violations of the ozone standard. The EPA action called for the state to perform photochemical grid modeling and submit a new SIP by March 20, 1999, that demonstrates attainment of the one-hour ozone standard by November 15, 1999. The FCAA, § 110, requires states to submit SIPs which contain enforceable measures to achieve the National Ambient Air Quality Standards (NAAQS). In 1996, the commission began to develop new modeling for the DFW area and now is using newer air quality models with improved meteorological and emission inputs. The new modeling, which was provided for public hearing and comment concurrent with the proposed rulemaking (23 TexReg 11485 (November 6, 1998)), shows that NOx reductions contribute to attainment of the ozone standard in the DFW area. The modeling further indicates that NOx reductions are a necessary step toward the area attaining the ozone standard (for both the existing one-hour and the new eight-hour standard). The failure to attain the standard by 1996 and the results of the new modeling mean the rationale for the NOx exemption for DFW is no longer valid. Based upon its conditional approval of the § 182(f) exemption (NOx waiver), EPA will rescind the NOx waiver and reinstate the requirements for these rules due to the modeling indicating that NOx reductions will contribute to attainment in the DFW area.

In addition, the adopted rules are being submitted to the EPA as one of several measures of the new ozone attainment demonstration required by the FCAA, § 110. Although the NOx reductions represented by these revisions will not be sufficient for DFW to attain the ozone standard, these reductions are a necessary component of the ozone attainment strategy. Until these rule revisions are in place, there is no assurance that significant point source NOx emission increases will not occur. The commission is authorized by the Texas Clean Air Act, § § 382.012, 382.017, and 382.051 to require the implementation of these rules prior to final EPA action to rescind the NOx waiver. Therefore, the commission is implementing NOx NNSR in DFW upon the effective date of these rule revisions (March 21, 1999) in order to control NOx emissions as soon as practicable.

The amendment to § 116.12(11), the definition "Major modification," Table I, footnote 3, modifies the description of which ozone nonattainment areas are exempt from NOx NNSR by specifying that El Paso County is not subject to NOx NNSR. The reference to "permanent" § 182(f) NOx exemptions has been deleted because, since the expiration in 1997 of the § 182(f) NOx "temporary" exemptions for Houston and Beaumont, there is no need to distinguish between permanent and temporary exemptions. The other amendment to the definition subdivides it, to allow Table I to be located properly, consistent with Texas Register rules. The table will now be located in the new paragraph (11)(A), where it is referenced, rather than under subparagraph (G), at the end of the definition.

The amendment to § 116.150(b) removes the NOx NNSR exemption for the DFW area. The requirements will apply to air quality permit applications for new or modified sources which are major for NOx in DFW and determined to be administratively complete on or after the effective date of the revision to these rules (March 21, 1999).

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