Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 118.
CONTROL OF AIR POLLUTION EPISODES
30 TAC §§118.1 - 118.6
The Texas Natural Resource Conservation Commission (commission)
adopts amendments to §§118.1-118.6, relating to Control of Air Pollution
Episodes. Sections 118.1, 118.3, and 118.4 are adopted with changes to the
proposed text as published in the October 15, 1999, issue of the
Texas Register
(24 TexReg 8913). Sections 118.2, 118.5, and 118.6 are
adopted without changes and will not be republished. The revisions update
references and statutory citations, make various wording changes in all six
sections to improve readability, and remove unnecessary wording. The amendments
are adopted as a revision to the Texas State Implementation Plan (SIP). Also,
the commission is adopting the rules review of and readopting Chapter 118
as required by Texas Government Code, §2001.039, and the General Appropriations
Act, Article IX, §9-10.13, 76th Legislature, 1999. The notice of adopted
review can be found in the Review of Agency Rules section of this issue of
the
Texas Register
.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Chapter 118 implements the requirements of the Texas Health and Safety
Code, Texas Clean Air Act (TCAA), §382.026, concerning Orders Issued
Under Emergencies and the Texas Water Code (TWC), §5.514, concerning
Order Issued Under Air Emergency. In addition, Chapter 118 is the state's
means of complying with the federal requirements of 40 Code of Federal Regulations
(CFR) 51, Subpart H, relating to Air Pollution Emergency Episodes; and is
a part of the SIP to attain the federal national ambient air quality standard
(NAAQS) for ozone under 40 CFR §52.2270 which implements the Federal
Clean Air Act (FCAA), §110, concerning Implementation Plans and §303,
concerning Emergency Powers.
Chapter 118 specifies conditions and establishes actions to be taken by
the commission and man- made emissions sources to protect human health and
safety in response to an air emergency ranging from generalized air pollution
episodes to localized air pollution episodes. Under such conditions, the commission
or the executive director, with the governor's concurrence, could request
or order any contributing source immediately to reduce or discontinue the
emission of air contaminants. The rules also establish administrative procedures
for review of any order issued under these rules. The rules contain requirements
for certain major stationary sources in El Paso, Galveston, Harris, Jefferson,
and Orange Counties to prepare and maintain Emission Reduction Plans. Finally,
the rules require the commission to prepare a contingency plan for communications
regarding actual or impending air pollution episodes.
SECTION BY SECTION DISCUSSION
The changes to §§118.1, 118.3, and 118.4 simply correct the reference
to state law from TCAA, §382.026, to TWC, §5.514, in response to
the reorganization of certain commission authorities relating to emergency
orders into the TWC. Sections 118.1 and 118.2 implement the provisions of
the TWC, §5.514(a), and contain episode criteria recommended in 40 CFR
51, Appendix L, concerning Example Regulations for Prevention of Air Pollution
Emergency Episodes. Sections 118.2 and 118.3 satisfy the FCAA, §110(a)(2)(G),
by providing authority comparable to that given the United States Environmental
Protection Agency (EPA) administrator in the FCAA, §303, to stop the
emission of air pollutants causing or contributing to an episode. Also, §118.3
implements the provisions of the TWC, §5.514(b), relating to localized
episodes. Section 118.4 satisfies requirements of the TWC, §5.514(c)
and (d), relating to notice of a hearing to be held before the commission.
Section 118.5 conforms to the EPA recommendations for emission reduction standby
plans to be prepared, approved, and maintained on-site by sources which are
likely to contribute to an episode. Section 118.6 satisfies a requirement
of the FCAA, §110(a)(2)(G), for the SIP to provide a contingency plan
to implement the state's authority specified in the FCAA, §303. Also, §118.6
satisfies the requirement for a state plan under 40 CFR 51, Subpart H.
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed this rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
"Major environmental rule" means a rule the specific intent of which is to
protect the environment or reduce risks to human health from environmental
exposure and that may 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. The amendments to
Chapter 118 are not anticipated to 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, because
the amendments are administrative in nature and are intended to correct or
update references, citations, clarify existing rules, and make the rules easier
to read and understand. The amendments do not add any additional regulatory
requirements not already required by state or federal law. In addition, the
amendments do not meet the applicability requirements of a "major environmental
rule." The amendments do not exceed a standard set by federal law, exceed
an express requirement of state law, or exceed a requirement of a delegation
agreement. In addition, the amendments are consistent with federal law regarding
the control of air pollution episodes.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this rulemaking
under Texas Government Code, §2007.043. The specific purpose of this
rulemaking is to update references and citations and to improve readability.
These changes are editorial in nature and will not affect private real property
because they do not change existing requirements.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that the rulemaking concerning Chapter 118
is 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 CMP. 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 action for consistency with the CMP goals and
policies in accordance with the rules of the Coastal Coordination Council
and has determined that the 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 rules are consistent with 40 CFR 51, Subpart H, and the
rule changes do not modify any requirements of Subpart H. Thus, the rulemaking
complies with regulations in 40 CFR, Part 51, and is, therefore, consistent
with this policy. No comments were received on the consistency of the proposed
rules with the CMP during the public comment period.
HEARING AND COMMENTERS
A public hearing was held November 10, 1999, in Austin but no oral comments
were received. The only written comment submitted during the public comment
period, which closed November 15, 1999, was from the EPA.
ANALYSIS OF TESTIMONY
The EPA simply stated that their agency had no comment on the proposed
revisions to Chapter 118.
STATUTORY AUTHORITY
The amendments are adopted under the Texas Health and Safety Code, TCAA, §382.026,
which authorizes the commission to issue orders for air emergencies; Texas
Water Code (TWC), §5.514, which authorizes the commission to issue emergency
orders where needed to protect human health or safety under air emergencies;
TCAA, §382.012, which authorizes the commission to prepare and develop
a general, comprehensive plan for the proper control of the state's air; TCAA, §382.017,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the TCAA; and TWC, §5.103, which authorizes commission
to adopt any rules as needed to carry out its powers and duties. The adopted
amendments do not implement any new state or federal requirements.
§118.1.Generalized Air Pollution Episodes.
(a)
A generalized air pollution episode is a widespread condition
of air pollution as specified in the Texas Water Code, §5.514, that requires
immediate action to protect human health or safety. An episode may be declared
for one or more air contaminants and will apply to any geographical area affected
by the generalized condition of air pollution.
(b)
A Level 1 air pollution episode exists if the criteria
specified in paragraphs (1) and (2) of this subsection are met.
(1)
The concentration of any of the air contaminants is equal
to or greater than the levels specified for Level 1 in Table 1.
(2)
In the case of all air contaminants except ozone,
meteorological conditions conducive to high levels of air contamination are
predicted to continue for at least 12 hours. In the case of ozone, meteorological
conditions conducive to high levels of ozone are likely to recur within the
next 24 hours.
Figure: 30 TAC §118.1(b)(2) (No change.)
(c)
A level 2 air pollution episode exists if the commission
determines that emergency reductions of emissions must be initiated to prevent
ambient concentrations specified for Level 2 in Table 1.
§118.3.Localized Air Pollution Episodes.
Whenever the commission determines that emissions from one or more
air contaminant sources are causing localized imminent danger to human health
or safety, but that there is not a generalized condition of air pollution
of the type referred to in the Texas Water Code, §5.514, the commission
shall order the person or persons responsible for the emissions to reduce
or discontinue the emissions immediately. In such event, the notice and hearing
requirements of §118.4 of this title (relating to Hearings) shall apply.
§118.4.Hearings.
Any emission reduction order issued under the provisions of this chapter
shall set a time and place for a hearing under the Texas Water Code, §5.514,
to be held before the commission as soon as practicable after the order is
issued. The commission shall give such general notice of the hearing as in
its judgment is practicable under the circumstances.
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 14, 2000.
TRD-200001146
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 5, 2000
Proposal publication date: October 15, 1999
For further information, please call: (512) 239-0348
Subchapter H. SYMBOLS FOR CERTAIN PLASTIC CONTAINERS
Chapter 328.
WASTE MINIMIZATION AND RECYCLING