Part I.
Texas Natural Resource Conservation Commission
Chapter 122.
Federal Operating Permits
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §122.10, concerning General Definitions, §122.130,
concerning Initial Application Due Dates, §122.134, concerning Complete
Application, §122.201, concerning Initial Permit Issuance, §122.501,
concerning General Operating Permits, §122.503, concerning Application
Revisions for Changes at a Site, §122.504, concerning Application Revisions
When a General Operating Permit is Revised or Repealed, §122.506, concerning
Public Notice for General Operating Permits, §122.508, concerning Notice
and Comment Hearings for General Operating Permits, and new §122.509,
concerning Public Announcement for General Operating Permits, and new §122.510,
concerning General Operating Permits Adopted by the Commission. Section 122.506
is adopted with changes to the proposed text as published in the September
4, 1998, issue of the
Texas Register
(23
TexReg 8987). The remaining sections are adopted without changes and will
not be republished.
EXPLANATION OF THE ADOPTED RULES
This adoption establishes new procedures for developing general operating
permits (GOPs) under 30 TAC Chapter 122 (Chapter 122), concerning Federal
Operating Permits. This adoption will also amend the Chapter 122 full program
application schedule for GOPs. Chapter 122 was originally adopted September
20, 1993, and revised to be effective November 10, 1997. Chapter 122 is based
on Title 40 Code of Federal Regulations Part 70 (40 CFR 70), which was promulgated
by the United States Environmental Protection Agency (EPA) to establish the
minimum elements of the federal operating permits program, as required by
Title V of the Federal Clean Air Act Amendments of 1990 (FCAA). The goal
of the federal operating permits program is to provide a compliance and enforcement
tool by codifying all applicable requirements for the control of air pollution
at a specific major source site into an operating permit.
GOPs are an alternate permitting mechanism provided for in Chapter 122,
consistent with 40 CFR 70 requirements that authorize the operation of multiple
sites that are similar in terms of operations, processes, and emissions. Four
GOPs are available for oil and gas industry sites (§§122.511-122.514)
and one GOP is available for the bulk fuel terminal industry sites (§122.515).
One GOP (§122.516) is available for the owners or operators of sites
that have only site-wide requirements. These GOPs have been a very successful
mechanism for streamlining the permitting of certain sites subject to Chapter
122.
As explained in the proposal, the existing GOPs were adopted through the
rulemaking process consistent with the requirements of the Texas Administrative
Procedure Act (APA) and the requirements of the Texas Clean Air Act (TCAA),
§382.017 for rulemaking. Additionally, 40 CFR 70 requires a 30-day public
comment period (including an opportunity to request a notice and comment hearing),
an affected state review, a 45-day EPA review, and a 60-day public petition
period. Affected states are defined in Chapter 122 as Louisiana, Arkansas,
Oklahoma, New Mexico, Kansas, or Colorado. Affected states may comment on
draft GOPs if the area affected by the GOP is within 50 miles of one of the
listed states. These procedural requirements were satisfied when the existing
GOPs were adopted.
Because the previous procedures in Chapter 122 required GOPs to be created
or revised by rule, the maintenance of the GOPs was resource intensive for
the commission staff and confusing for the regulated community. This is because
applicable requirements contained in a GOP may periodically be revised, repealed,
or updated. For example, EPA may revise new source performance standards,
national emission standards for hazardous air pollutants, and maximum available
control technology standards. Additionally, the commission periodically revises
reasonably available control technology standards (e.g., 30 TAC Chapters 111,
112, and 115). If any of these revised rules are an applicable requirement
contained in a GOP, the permit holder is responsible for complying with the
revised requirement by writing provisional terms and conditions, even though
the revised applicable requirements have not been codified into the GOP through
rulemaking. This situation can cause confusion for the regulated community,
the public, and commission enforcement personnel, because the applicable requirements
codified in the GOP (which is currently in a rule) would necessarily lag behind
any recent revisions to the applicable requirements codified in Chapters 111,
112, and 115. Before the revised applicable requirements could be reflected
in the GOP, the GOP itself would have to be revised through a rulemaking which
can take from four to six months to complete. The rules adopted in this action
give the executive director the authority to issue, revise, and rescind GOPs.
Authorizing the executive director to issue, revise, or rescind a GOP allows
it to be quickly updated, thereby eliminating a significant time delay in
incorporating revisions to the codified applicable requirements. This authorization
will assist affected industries because they will not have to incorporate
and maintain provisional terms and conditions of their GOPs for lengthy periods
of time. Agency resources that would be dedicated to revising the GOPs through
the formal rulemaking process can be directed to review of applications. The
commission emphasizes that this adoption will not eliminate opportunity for
public comment on proposed changes in the underlying applicable requirements
because such changes, whether done on a state or federal level, are made through
the traditional rulemaking process. Further, the adopted rules establish a
process for the revision of the GOPs by the executive director, which is similar
to the process used for revisions to site-specific operating permits.
Although this adoption will eliminate rulemaking steps involved in establishing
and revising GOPs, the GOPs will continue to be subject to all Chapter 122
procedural requirements. The authority for the GOPs will remain in Chapter
122, Subchapter F. Before initial issuance by the executive director, the
GOP will undergo Chapter 122 procedural requirements, including a 30-day public
comment period with an opportunity to request a notice and comment hearing,
an affected state review, and a 45-day EPA review. The GOPs will also be subject
to a 60-day public petition period, during which the public may petition EPA
to object to the GOP. These public notice, affected state review, EPA review,
and public petition requirements are also found under 40 CFR §70.6(d)
for GOPs. Although the specific public notice and notice and comment hearing
procedures may vary slightly, the adopted procedures will authorize the executive
director to establish permits governing multiple similar sites through procedures
almost identical to those used for site-specific operating permits. This approach
will change the commission's procedures for establishing and maintaining GOPs,
but will not significantly affect the application process for and operation
under a GOP. Applications for an authorization to operate under a GOP will
continue to be reviewed by the executive director to ensure that the site
qualifies for the GOP. Individual GOP applications are not subject to public
notice, affected state review, EPA review, and public petition requirements,
because these procedural requirements occur during the development of the
GOPs by the executive director. After the application review process is complete,
the permitting authority is able to approve applications for GOPs without
further public notice. Individual applications are, however, subject to the
TCAA, §382.0516, Notice to State Senator and Representative, requirement
to submit a notice of the application to the state senator and representative
who represent the area in which the site is or will be located.
The adopted rule changes will provide new procedures for establishing GOPs;
however, they will not change or repeal any current GOPs in §§122.511-122.516.
This adoption provides the authority for the executive director to issue GOPs
and is the first of three steps necessary for the conversion of the GOPs currently
in §§122.511-122.516 into those issued by the executive director.
The executive director will use the new procedures to propose GOPs that will
replace those GOPs that currently exist in Chapter 122, Subchapter F. After
the new GOPs have been issued, those in Subchapter F will be repealed.
The definition of "General operating permit" in §122.10(7) has been
revised to read that a GOP is one issued under Subchapter F, instead of one
adopted through rulemaking. The definition of "Permit or federal operating
permit" in §122.10(10) has been changed to refer to GOPs issued, renewed,
or revised by the executive director.
The change to §122.501(a) gives the executive director authority to
issue a GOP. Throughout the rule, the term "adoption" has been replaced with
the term "issuance." The references to the Government Code, Administrative
Procedure Act, Chapter 2001 or 2002 have been deleted from §122.501(a)(6)
and everywhere else it appears in Subchapter F, because these citations refer
to rulemaking. Section 122.501(b) has been revised to be consistent with §122.201(b)
concerning the finality of permits and the public petition process. Section
122.501(d) has been revised to authorize the executive director to revise
a GOP and establishes procedures to revise or rescind a GOP. The rule now
requires procedures for issuing administrative, minor, and significant permit
revisions to GOPs, consistent with the requirements in Chapter 122, Subchapter
C for site-specific permits. This change was necessary because the previous
requirements for GOPs did not distinguish between administrative, minor, and
significant permit revisions, because all revisions to GOPs were subject to
rulemaking requirements.
The commission adopts the proposed changes to §122.503(a)(1) and §122.504(a)(1)(B)
to indicate that a change in an applicability determination may cause the
permit holder to submit an updated GOP application. These applicability determinations
may change due to a change at the site, the revision or repeal of an applicable
requirement, state-only requirement, or the revision or rescission of a GOP.
The word "original," used in describing the GOP application, has been deleted
from §122.503(a)(1), (d), and §122.504(g), because after the application
has been updated, the original application is no longer used to verify applicability
determinations. Section 122.503(a)(2) previously required GOP applications
to be updated to correct typographical errors. This paragraph was deleted
since the only portions of the GOP application that must be kept up-to-date
are the applicability determinations and the basis for those determinations.
Any typographical errors or other types of changes in those portions of the
application that address applicability determinations are already addressed
under §122.503(a)(1). In §122.503(c)(2) and (3), the term "updated
application" will replace the phrase "information required in subsection (b)
of this section" and will reduce cross-references within §122.503. Furthermore,
in §122.503(c)(4), the phase "application required by this subsection"
has been replaced with "updated application" for simplicity and to ensure
consistent use of that term. Section 122.503(g) and §122.504(b) refer
to "the emission units addressed in the authorization to operate." Since the
specific emission units are actually addressed in the application rather than
the authorization, "authorization to operate" has been replaced with "application."
Previously, §122.504(a) addressed situations where the permit holder's
authority to operate under a GOP was affected by the revision or repeal of
an applicable requirement. In an effort to more clearly define when the procedures
in §122.504 apply, the language in §122.504(a) was revised to directly
state the circumstances when the permit holder's authorization to operate
will be affected, thus requiring the application to be updated and submitted
within the time frames in 122.504. The authorization to operate will be affected
if the applicability determinations at a site or the basis for the determinations
change. Section 122.504(a) now refers to the revision or repeal of an applicable
requirement or state-only requirement. When the applicable requirement or
the state-only requirement is already a condition of a GOP and the applicable
requirement or state-only requirement is revised or repealed, the permit holder
is required to submit an updated application. The revised section clarifies
that applications must be updated whenever a GOP is revised or rescinded by
the executive director. In subsection (a)(1), the word "must" has been replaced
with "shall" and the adjective "updated" has been added to the reference to
the permit application for consistency with §122.503.
Section 122.504(a)(2) previously stated that an application containing
information required under §122.504(a)(1) must be submitted by the effective
date of the revised or repealed GOP. Section 122.504(a)(4) conflicted with
this requirement since it requires §122.504(a)(1) information to be submitted
within 45 days of the compliance date of the new requirement or effective
date of the repealed requirement. Since a GOP is a codification of applicable
requirements, new or repealed requirements will be in effect before the GOP
can be revised to reflect these requirements. Because §122.504(a)(4)
requires the information relating to new or repealed requirements to be submitted
within 45 days of the compliance date of either requirement, the information
will be submitted before the GOP becomes effective. The application deadline
in §122.504(a)(2) is then no longer relevant and has been deleted by
this adoption.
The requirements of §122.504(a)(4) are moved to §122.504(a)(3)
and revised to clarify that the specified requirements apply when a revision
to a GOP is the result of a change in an applicable requirement or state-only
requirement. The new §122.504(a)(3)(B) adds the phrase "updated application"
to avoid unnecessary cross-references. A new §122.504(a)(4) addresses
the situation in which a revision to a GOP is not the result of a change in
an applicable requirement or a state-only requirement. For example, this paragraph
applies if a GOP is revised to include periodic monitoring requirements or
to correct a mistake. In this case, the permit holder would submit an updated
application within 45 days of the effective date of the revision. Section
122.504(c) addressed the repeal of GOPs and §122.504(d) addressed both
the revision and repeal of GOPs. For clarity, the language in these sections
has been revised so that §122.504(c) addresses rescission of a GOP and
§122.504(d) addresses revisions. Under the previous rule, permit holders
who wanted to operate under a GOP were required to submit applications by
the effective date of the GOP. The revised rule requires a permit holder who
no longer qualifies for a GOP as a result of revision or rescission to the
GOP to submit an application for another operating permit by the effective
date of the rescission or revision. Language in §122.504(d) regarding
the intent of the permit holder to operate under the GOP has been deleted
because this section addresses procedures required as the result of changes
to rules or GOPs and not decisions by the permit holder to change the way
in which a site is operated.
Throughout §122.506, references to "proposed" in describing the draft
general operating permit have been deleted because this term is used to describe
a stage in the rulemaking process. The previous §122.506 was written
to account for the rulemaking process, which requires a hearing for the adoption
of, or revision to, any GOP. The new procedures for issuing GOPs also include
an opportunity to request a notice and comment hearing. Revisions to §122.506(a)
and a new §122.506(b) include the public notice requirements for GOPs
issued by the executive director and allow a hearing to be requested consistent
with the requirements in Chapter 122, Subchapter D. Section 122.506(a) also
includes the procedures for public notice for newly issued GOPs and significant
revisions to GOPs. The commission is continuing to develop the procedures
for recission of GOPs and will propose such procedures in a later rulemaking.
Due to an administrative error in the
Texas Register
(23 TexReg 8987), a portion of the proposed amendments to §122.506(a)
was not designated as new rule language. Government Code, §2001.024(2)
requires that rule text be prepared in a manner to indicate any words to be
added or deleted from existing rule text. Because the new rule language was
not completely underlined (underlining is the editorial indication for proposed
new language), the commission cannot adopt that portion of §122.506(a).
The commission can adopt those portions of §122.506 that were correctly
designated.
The language that was not underlined in the
Texas
Register
in §122.506(a) required the executive director to publish
the draft of a new general operating permit as follows: "The executive director
shall publish notice of a draft general operating permit in the
Texas Register,
the commission's publicly accessible electronic media,
and in a newspaper of general circulation within each of the following metropolitan
areas: Beaumont, Houston, and Fort Worth. Additional notice may be provided,
as determined by the executive director, in a newspaper of largest general
circulation in the metropolitan area appropriate for the draft general operating
permit." Section 122.506 still contains the specific requirements concerning
the content of public notices. Until §122.506(a) is reproposed, the executive
director will publish notices in accordance with the intended language of
§122.506(a) that was incorrectly designated. The revisions to §122.506(b)
require that a GOP and any associated notices be made accessible to local
air pollution control agencies, consistent with Chapter 122, Subchapter D.
Throughout §122.508, references to "proposed" in describing the draft
general operating permit have been deleted, because this term is used to describe
a stage in the rulemaking process. Section 122.508 has been amended to state
that a hearing will not be held if one is not requested. Again, the adopted
language is consistent with the notice and comment hearings requirements in
Chapter 122, Subchapter D.
Section 122.509 establishes requirements for public announcement of minor
permit revisions to GOPs. Consistent with the revision requirements in Chapter
122, Subchapter C, minor permit revisions to GOPs will be subject to public
announcement requirements. The public announcement requirements in Chapter
122, Subchapter D could not simply be referenced, because they include requirements
that apply to specific permit applications, and the GOP public announcement
requirements must be modified to accommodate the new process for GOPs issued
by the executive director. Except for the application specific or site-specific
requirements, all public announcement requirements in Subchapter D have been
included in §122.509.
Section 122.510 allows GOPs issued under the APA to remain in effect until
they are repealed through rulemaking. This section also states that an authorization
to operate under a GOP adopted by the commission that is replaced with a GOP
issued by the executive director will be automatically converted. In addition,
this new section states that should the applicability determinations and the
basis for the determinations affecting a site remain unchanged, the permit
holder is not required to submit an application for the GOP issued by the
executive director. This will allow permit holders to avoid having to submit
applications containing no new information.
Additionally, changes are made to §122.134(b)(5) and §122.201(f)
to maintain consistency with the adopted changes to Subchapter F. In §122.134(b)(5),
the term "repealed" has been replaced with "rescinded" to reflect the revision
to the name of §122.504 which added the term "rescinded." The previous
§122.201(f) noted that the adoption of a GOP is not required to meet
the requirements of §122.201. Since the new Subchapter F changes will
create GOPs issued by the executive director, the phrase "issuance of a general
operating permit by the executive director" replaced the phrase "adoption
of a general operating permit."
Another area addressed by these revisions is the Chapter 122 full program
application schedule for GOPs. Under the full program, an owner or operator
should have submitted an abbreviated permit application by February 1, 1998,
for any site subject to the full program regardless of permit application
type. Once the abbreviated permit application has been submitted, the remaining
permit application information submittal then becomes specific to permit application
type and Standard Industrial Classification (SIC) major grouping. Previously,
§122.130(b)(2) indicated that an owner or operator of a site subject
to the full program and applying for a GOP should submit remaining permit
application information by July 25, 1998, regardless of SIC major grouping.
This requirement was written specifically for the §122.516 GOP developed
for full program sites. The commission determined that owners or operators
of some sites subject to the full program may be able to take advantage of
a GOP developed for interim program sites. Owners or operators of these full
program sites, however, have a deadline for submitting the remaining permit
application information that is later than July 25, 1998. To allow the owners
or operators of these full program sites to take advantage of a GOP and submit
remaining permit application information at a date later than July 25, 1998,
the phrase "for any site for which the applicant is applying for a general
operating permit and" has been deleted from §122.130(b)(2).
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the adopted rulemaking according to the regulatory
analysis requirements of Texas Government Code (the Code), §2001.0225.
The adopted rules are intended to implement new procedures to be used by the
executive director for the issuance, revision, renewal, and rescission of
GOPs. It also allows sites that are subject to the full operating permit program
to take advantage of GOPs that were originally thought to be only available
for interim program sites. It does not add any new regulatory requirements
for the regulated community. It will not adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state and is not a major environmental rule as defined in the Code.
This adoption does not exceed a standard set by federal law and is not
specifically required by state law. As an alternate federal operating permit
mechanism, 40 CFR §70.6(d) allows for the use of general permits. TCAA,
§382.061, Delegation of Powers and Duties, allows the commission to delegate
to the executive director the powers and duties under §§382.051-382.0563,
which include the authority to issue federal operating permits. TWC, §5.122,
concerning Delegation of Uncontested Matters to Executive Director, allows
the commission to delegate certain actions regarding applications to the executive
director. Section 122.110 authorizes the executive director to take action
on any permit on behalf of the commission.
The use of general permits is not specifically required by federal law
and the adopted rules do not exceed an express requirement of state law. Section
382.051(b) allows, but does not require, the commission to issue general permits
developed by rule for numerous similar sources subject to TCAA, §382.054,
concerning Federal Operating Permit. The new procedures for GOPs are authorized
by rule; therefore, even though the GOPs themselves are not rules, the authority
for the GOPs is clearly established through rulemaking.
This adoption does not exceed a requirement of delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program. No such agreement exists
concerning the subject of this adoption.
This action is adopted under the specific statutory authority of TCAA,
§382.051(b), which authorizes the commission to issue general permits
developed by rule for numerous similar sources subject to §382.054, concerning
Federal Operating Permit and §382.061(a), which authorizes the commission
to delegate to the executive director the powers and duties under §§382.051-
382.0563 and 382.059, except for the adoption of rules and TWC, §5.122,
concerning Delegation of Uncontested Matters to Executive Director, which
allows the commission to delegate certain actions regarding applications to
the executive director. This action is not adopted under the general powers
of the agency.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this adopted
rulemaking under Texas Government Code, §2007.043. The following is a
summary of that assessment. The revised rules allow the executive director
to issue general operating permits and remove the requirement for GOPs to
be adopted by the commission through rulemaking. Promulgation and enforcement
of the adopted sections will not be a burden on private real property because
they do not place additional requirements on those required to obtain a federal
operating permit. The adopted rulemaking will not make existing regulations
less stringent. This rulemaking adoption is also an exempt action under Texas
Government Code, §2007.003(b), since the commission is fulfilling its
requirement to implement a federally mandated program.
COASTAL MANAGEMENT PLAN
The commission has determined that this rulemaking action relates to an
action or actions subject to the Texas Coastal Management Program (CMP) in
accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural
Resources Code, §§33.201 et seq.), and the commission's rules in
30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal
Management Program. As required by 31 TAC §505.11(b)(2) and 30 TAC §281.45(a)(3)
relating to actions and rules subject to the CMP, commission rules governing
air pollutant emissions must be consistent with the applicable goals and policies
of the CMP. The commission has reviewed this rulemaking action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council, and has determined that this rulemaking action is consistent
with the applicable CMP goals and policies, specifically §501.12(1),
which is to protect, restore, and enhance the diversity, quality, functions,
and values of coastal natural resource areas and §501.14(q), regarding
compliance with 40 CFR, Protection of Environment. The permits issued under
Chapter 122, concerning Federal Operating Permits, do not authorize the increase
in air emissions nor do these permits authorize new air emissions.
HEARING AND COMMENTERS
A public hearing was held in Austin on September 28, 1998, and the public
comment period closed October 5, 1998. No oral testimony was received at the
hearing. One individual and Bracewell & Patterson, L.L.P. (Bracewell)
submitted written comments on the proposal.
The individual commented that he is opposed to GOPs and believes that GOPs
cannot be adequately written for multiple stationary sources. In particular,
the individual does not believe this can be done at different locations. The
individual believes that the commission must rule on each GOP because it involves
several different facilities and is a complicated action compared to a single-site
operating permit. The individual stated that the responsibility lies squarely
with the commission and it must not abdicate its authority in this matter.
The commission disagrees with the comment that GOPs cannot be written to
authorize the operation of numerous similar sources. GOPs codify the applicable
requirements (state and federal regulations) that apply to emission units
at sites that are similar in terms of operations, processes, and emissions.
For example, a site that contains numerous emission units that are subject
to applicable requirements that address opacity and particulate concentration
limits would be a good candidate for a GOP. Applicable requirements addressing
opacity and particulate concentration limits are requirements that apply to
a broad spectrum of emission units at various sites without any site-specific
revision. Even if the commission required these sites to obtain a site-specific
operating permit, these same applicable requirements would be contained in
that permit. Regardless of the mechanism used to permit this site, only the
requirements codified in the rules would be applied to it. A GOP collects
these codified requirements and expedites the issuance of the permit.
With the authority to issue, revise, and rescind GOPs, the executive director
can quickly update applicable requirements in GOPs after the requirements
are changed through rulemaking. The commission disagrees with the statement
that a GOP involves a complicated action. The GOP is primarily a collection
of existing rules that can be broadly applied to simple, though sometimes
large, permitting situations. The commission has not abdicated its authority.
Federal rules are codified in GOPs after they have gone through the appropriate
public participation process conducted by the EPA. The state rules which are
codified into GOPs are adopted, amended, or repealed at the discretion of
the commission. In addition, these rules are subject to full public comment
procedures under the APA. The FCAA, §504(d), specifically states that
after notice and an opportunity for a public hearing, a permitting authority
can issue general permits that will cover numerous similar sources. General
permits must comply with all of the requirements that apply to permits under
40 CFR Part 70. Section 70.6(d), concerning General Permits, provides the
regulatory authority for the development of general permits that cover numerous
similar sources, and it tracks the authority and requirements of FCAA, §504(d).
Section 70.6(d) requires GOPs to go through public notice (including an opportunity
for a hearing), as well as the 45-day EPA review, the 30-day review for affected
states, and the 60-day public petition period. After this process is complete,
the permitting authority is able to approve applications for GOPs without
further public notice. For these reasons the commission believes that GOPs
can be effectively used to expedite permitting without degrading the environmental
benefits of the permitting process.
In the preamble to 40 CFR Part 70 in the July 21, 1992, issue of the
The individual commented that he was opposed to the revision to §122.10(7),
the definition of "General operating permit."
The proposed revision was to delete the language that indicated a GOP is
a "permit by rule." This change is necessary to reflect that after this rule
is adopted, the executive director will issue, amend, or rescind GOPs without
further commission action. TCAA, §382.051(a) provides that the commission
may issue a permit to operate a federal source. To assist in fulfilling the
authority provided by §382.051(a), §382.051(b) authorizes the commission
to issue general permits developed by rule for numerous similar sources subject
to TCAA, §382.054, concerning Federal Operating Permit.
TCAA, §382.061, Delegation of Powers and Duties, allows the commission
to delegate (except for the adoption of rules) to the executive director
the powers and duties under §§382.051-382.0563, which includes the
authority to issue federal operating permits. TWC, §5.122, concerning
Delegation of Uncontested Matters to Executive Director, allows the commission
to delegate certain actions regarding applications to the executive director
if, among other things, the application is uncontested and does not require
an evidentiary hearing. Section 382.0561, concerning Federal Operating Permit:
Hearing, specifically exempts federal operating permits from the contested
case hearing procedures under the APA. Under the commission's policy concerning
uncontested matters, any comments or even a hearing on a federal operating
permit will not result in that matter becoming "contested," as that term is
used in TWC, 5.122. Thus, the commission may delegate the authority to issue
GOPs to the executive director because the applications for GOPs will not
result in a contested matter under the APA.
The proposed procedures for issuing GOPs are within the existing statutory
authority of the commission because their issuance continues to be authorized
by rule even though each individual GOP will not be (and is not required to
be) contained or adopted in a rule. This is consistent with §§382.051(b)(2),
382.061, and 5.122 because the commission's action adopting the proposed revisions
to Chapter 122, Subchapter F, is the rulemaking action that implements those
TCAA provisions.
Under the new procedures, the GOPs will no longer be developed through
rulemaking and thus approved by the commission as rules, but this does not
mean that they will not be subject to substantial public notice procedures.
In addition, each individual claim for operation under a GOP will be subject
to technical review by the executive director. Additionally, the applicable
requirements that are codified in the GOPs are subject to public notice and
comment under the APA and similar federal requirements.
The GOPs that are currently available were developed for certain sites
subject to Chapter 122 that are similar in terms of operations, unit types,
processes, and emissions. GOPs have been a very successful mechanism for streamlining
the application and permitting process. Through the use of these GOPs, the
commission has issued the largest number of federal operating permits in the
nation (according to the EPA). During the first year of the operating permit
program, Texas was the only state to meet the requirement in 40 CFR §70.7(a)(2)
to issue two-thirds of the permits during the first two years of the program
(this is also a requirement of the TCAA, §382.0542(b)(2) and (3)). Because
a large number of sources are now covered by GOPs, owners or operators are
more aware of all applicable regulatory requirements for their sources. This
awareness facilitates compliance with the applicable requirements. Therefore,
GOPs have also been successful in achieving the goal of providing an efficient
and effective compliance and enforcement tool by codifying applicable requirements.
The purpose of this rulemaking is to continue providing an effective compliance
and enforcement tool by creating a more efficient mechanism for maintaining
a current set of applicable requirements in the GOPs. The commission believes
that there is no loss of environmental protection by allowing GOPs to be issued,
amended, and rescinded by the executive director and will retain the proposed
definition.
The individual also commented that the new procedures would not allow the
commission to determine the cumulative impacts of sources operating under
GOPs.
Cumulative effects are not required to be addressed by the federal operating
permits program. A GOP is a type of federal operating permit that contains
all of the applicable requirements for numerous similar sites. An operating
permit codifies the various state and federal applicable requirements that
sources must comply with in order to operate. Cumulative effects are not currently
addressed in GOPs or site-specific operating permits, and these permits are
not intended or required to do so. Because the previous procedures for the
adoption of GOPs did not consider cumulative impacts, the adoption of the
new procedures for issuance of GOPs will not change this practice.
The individual commented that under §122.501(d), the requirement for
public notice and comments should be added as a (C) under the appropriate
paragraph of this subsection.
Under §122.501(d), the requirements for the executive director to
issue an administrative, minor, or significant GOP revision are specified.
Section 122.501(d)(2)(C) specifies the requirements for public announcement,
affected state review, and EPA review for minor permit revisions. Section
122.501(d)(3)(C) and (4) specify the requirements for public notice, affected
state review, EPA review and public petition, for significant permit revisions.
As with administrative permit revisions for site operating permits, there
is no public notice required for these types of revisions for GOPs. These
requirements are generally consistent with the requirements in Subchapter
C for site-specific permits. Some modification was required for public announcement
for minor permit revisions. Public notice for the initial issuance of a GOP
is required by §122.506. Notice and comment hearings for GOPs are addressed
in 122.508. Because §122.501(d), as proposed, sets out the specific public
notice requirements, the commission believes that it is not necessary to repeat
this information in a new subsection.
The individual commented that under §122.509(b), for minor permit
revisions to GOPs, it is not sufficient public notice to print the notice
on the commission internet site because many people do not have a computer
or easy access to the internet. The individual commented that the commission
also needs to print minor permit revisions for GOPs in a regional newspaper
and in the
Texas Register.
The individual
commented that he is against the reduction of public participation and believes
that the commission is acquiescing to industry concerns.
The commission does not agree that this adoption is reducing the opportunity
for public participation. Under §122.501(d)(2), the requirements for
the executive director to issue a minor GOP revision are specified and includes
satisfying §122.509, concerning Public Announcement for General Operating
Permits. The requirements under §122.509 are consistent with the requirements
under §122.312, concerning Public Announcement, which must be satisfied
for minor revisions to site-specific permits. Minor permit revisions are subject
to an electronically announced 30-day public comment period, an affected state
review, and a 45- day EPA review; while EPA's minor permit modification process
involves only EPA review and affected state review.
The requirement for public announcement for minor permit revisions go beyond
the requirements of 40 CFR 70 to provide for public notice. Due to the nature
of minor permit revisions and the high cost of newspaper notice, which could
be thousands of dollars per notice, the commission determined that the goal
of providing sufficient and timely opportunities for public participation
would best be met through the electronic notice. The electronic notice will
be posted for a set amount of time in the same electronic location during
the public notice period. However, the newspaper, as well as the
Texas Register
, are only printed once. By using the electronic notice,
the commission can provide more information in a more timely manner and for
a longer period of time. The commission also intends to provide the public
access to Title V permitting information at its regional offices.
Bracewell commented that the proposed §122.503(a) should be clarified,
to make clear that it refers to general operating permits only, by inserting
the words "of a general operating permit" into §122.503(a) so that it
would read: "The permit holder of a general operating permit shall submit
an updated application...."
The commission does not agree that it is necessary to make the change suggested
by Bracewell. Subchapter F addresses the requirements for GOPs. Throughout
Subchapter F, there are references to "permit holder." The definition of "Permit
holder" in §122.10(12) includes a person who has been granted the authority
to operate under a GOP.
Bracewell also commented that the proposed §122.506(a) does not accurately
reflect the original wording of §122.506(a) because part of the proposed
new language, as published in the
Texas Register
, was not underlined. Bracewell requested that the commission clarify
in the final rule what was intended to be the proposed language and noted
that this publication error would not have any adverse impact.
Unfortunately, a portion of the proposed language in §122.506(a) was
not underlined in the
Texas Register
even
though the language was correctly printed. Government Code, §2001.024(2),
requires that rule text be prepared in such a manner to indicate any words
to be added or deleted from existing text. Because a portion of the proposed
language was not correctly designated as new language, the commission cannot
adopt that language. The commission will adopt the language that was correctly
designated. The language that was not adopted requires the executive director
to publish notice of a draft general operating permit as follows: "The executive
director shall publish notice of a draft general operating permit in the
Subchapter A. Definitions
30 TAC §122.10
STATUTORY AUTHORITY
The amendment is adopted under the Texas Health and Safety Code, the TCAA,
§382.012, which provides the commission authority to develop a comprehensive
plan for the state's air; §382.017, which provides the commission authority
to adopt rules; §382.051(b)(2), which provides the commission authority
to issue general permits for numerous similar sources; §382.061(a), which
authorizes the commission to delegate to the executive director the powers
and duties under §§382.051-382.0563 and 382.059 except for the adoption
of rules; TWC, §5.122, concerning Delegation of Uncontested Matters to
Executive Director, which authorizes the commission to delegate certain actions
regarding applications to the executive director; and §382.054, which
prohibits operation of a federal source of air pollution without a federal
operating permit obtained from 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.
Filed with the Office of the Secretary of State on February
12, 1999.
TRD-9900911
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 4, 1999
Proposal publication date: September 4, 1998
For further information, please call: (512) 239-1966
3.
Permit Application
30 TAC §122.130, §122.134
STATUTORY AUTHORITY
The amendments are adopted under the Texas Health and Safety Code, the
TCAA, §382.012, which provides the commission authority to develop a
comprehensive plan for the state's air; §382.017, which provides the
commission authority to adopt rules; §382.051(b)(2), which provides the
commission authority to issue general permits for numerous similar sources;
§382.061(a), which authorizes the commission to delegate to the executive
director the powers and duties under §§382.051-382.0563 and 382.059,
except for the adoption of rules; TWC, §5.122, concerning Delegation
of Uncontested Matters to Executive Director, which authorizes the commission
to delegate certain actions regarding applications to the executive director;
and §382.054, which prohibits operation of a federal source of air pollution
without a federal operating permit obtained from 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.
Filed with the Office of the Secretary of State on February
12, 1999.
TRD-9900912
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 4, 1999
Proposal publication date: September 4, 1998
For further information, please call: (512) 239-1966
1.
Initial Permit Issuances
30 TAC §122.201
STATUTORY AUTHORITY
The amendment is adopted under the Texas Health and Safety Code, the TCAA,
§382.012, which provides the commission authority to develop a comprehensive
plan for the state's air; §382.017, which provides the commission authority
to adopt rules; §382.051(b)(2), which provides the commission authority
to issue general permits for numerous similar sources; §382.061(a), which
authorizes the commission to delegate to the executive director the powers
and duties under §§382.051-382.0563 and 382.059, except for the
adoption of rules; TWC, §5.122, concerning Delegation of Uncontested
Matters to Executive Director, which authorizes the commission to delegate
certain actions regarding applications to the executive director; and §382.054,
which prohibits operation of a federal source of air pollution without a federal
operating permit obtained from 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.
Filed with the Office of the Secretary of State on February
12, 1999.
TRD-9900913
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 4, 1999
Proposal publication date: September 4, 1998
For further information, please call: (512) 239-1966
Subchapter B. Permit Requirements
Subchapter C. Initial Permit Issuances, Revisions, Reopenings, and Renewals
Subchapter F. General Operating Permits