30 TAC §§104.1 - 104.3
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Natural Resource Conservation Commission
(commission) proposes the repeal of §104.1, concerning Control Facility, §104.2,
concerning Fuel Treatment, and §104.3, concerning Certification. The
purpose of the repeal is to remove unnecessary rules because the reasons for
the rules no longer exist.
The commission also is proposing, in concurrent action, the review of the
rules in Chapter 104 as required by Texas Government Code, §2001.039,
and the General Appropriations Act, Article IX, §9-10.13, 76th Legislature,
1999. The proposed notice of 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 PROPOSED RULES
The rules currently codified as Chapter 104 were first adopted by the Texas
Air Control Board, now the Texas Natural Resource Conservation Commission
(TNRCC), in early 1973. They allow companies and bond issuing agencies to
apply for certification from the TNRCC that certain property or equipment
qualifies as a "control facility." The statutory authority for these rules
was the Texas Clean Air Financing Act (TCAFA), which defined a control facility
as a facility which was designed to reduce or eliminate air pollution. The
purpose of the TCAFA was to allow, if not promote, affordable financing for
the purchase of such equipment through the sale of tax-exempt industrial development
bonds, a procedure that was authorized under the U.S. Internal Revenue Code.
In order to qualify for this financing, property had to be officially certified
as a "control facility". In 1986, however, the United States Congress deleted
the bond program from Internal Revenue Code, §103(c), effectively eliminating
the financial incentive for obtaining these certifications. The last bond
certification was issued by in June, 1986.
Statutory authority for this chapter remains in effect under Texas Health
and Safety Code, Chapter 383 and continues to allow the TNRCC to issue control
facility bond certifications with or without the procedural rules in this
chapter. While the statute allows the commission to "prescribe necessary criteria
and procedures for certifying a control facility," it does not require the
commission to adopt rules to do so. A preliminary review of the rules in Chapter
104 indicates that the agency no longer needs rules which specify bond certification
criteria for air pollution control facilities. The last application was received
in 1986 and the commission does not expect to receive any more requests for
bond certification in the absence of the tax incentives associated with a
federally-approved bond program. Today, companies may apply for
ad valorem
tax relief for new air pollution control equipment under
30 TAC Chapter 17, concerning Tax relief for Property Used for Environmental
Protection. Accordingly, the repeal of Chapter 104 is proposed.
SECTION BY SECTION DISCUSSION
Section 104.1, concerning Control Facility, establishes the criteria to
be demonstrated by an applicant for equipment for which certification is requested.
Section 104.2, concerning Fuel Treatment, specifies that, if the equipment
to be certified is used to treat fuel to prevent emissions of air contaminants
due to the use of the fuel, then the treated fuel must be consumed entirely
on-site at the plant property. Section 104.3, concerning Certification, states
that the process of certification under Chapter 104 will not include any consideration
of the material recovered or produced as a result of operation of the certified
equipment.
FISCAL NOTE
Bob Orozco, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period after the proposed repeal
of this chapter, there will be no significant adverse fiscal implications
for the TNRCC and other units of state and local government as a result of
the repeal. This chapter currently allows companies and bond issuing agencies
to apply for certification from the TNRCC that certain property or equipment
qualifies as a "control facility." A "control facility" is defined as a facility
which was designed to reduce or eliminate air pollution. The purpose of the
rule was to prescribe necessary criteria and procedures to certify certain
equipment as a "control facility" for the purpose of qualifying that equipment
to be financed through the sale of tax-exempt bonds as authorized under the
U.S. Internal Revenue Code.
This chapter is being repealed because the U.S. Congress deleted the bond
program from the Internal Revenue Code in 1986, effectively eliminating the
financial incentive and any further need for these certifications. The last
certification was issued in June, 1986.
PUBLIC BENEFIT
Mr. Orozco has also determined that for each year of the first five years
after the proposed repeal of this chapter, the public benefit anticipated
from the repeal will be removal of old, outdated rules promulgated under this
chapter. No significant adverse fiscal implications are anticipated to any
person or business as a result of repealing the provisions of this chapter.
SMALL BUSINESS AND MICRO-BUSINESS ANALYSES
No significant adverse fiscal implications are anticipated to any person,
small business, or micro-business as a result of repealing the provisions
of this chapter. The repeal will eliminate outdated and unnecessary rules
promulgated under this chapter.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed 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. Because the specific
intent of the proposed rulemaking is to repeal outdated and unnecessary rules,
and does not add regulatory requirements to existing rules, the rulemaking
is not anticipated to have an adverse material effect on 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. Therefore, this rulemaking
does not meet the definition of a "major environmental rule." In addition, §2001.0225
only applies to a major environmental rule, the result of which is to (1)
exceed a standard set by federal law, unless the rule is specifically required
by state law; (2) exceed an express requirement of state law, unless the rule
is specifically required by federal law; (3) exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program; or, (4) adopt
a rule solely under the general powers of the agency instead of under a specific
state law.
This rulemaking does not meet any of these four applicability requirements
of a "major environmental rule." Specifically, the proposed repeal does not
exceed a standard set by federal law, or exceed an express requirement of
state law, or exceed a requirement of a delegation agreement. In addition,
the proposed amendments are made specifically to repeal outdated and unnecessary
rules. The commission invites public comment on the draft regulatory impact
analysis.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for this proposal
under the Texas Government Code, §2007.043. The following is a summary
of that assessment. The specific purpose of the rulemaking is to repeal Chapter
104 because it is no longer needed. Prior to June, 1986, the U.S. Internal
Revenue Code, provided a public bond program to help companies finance new
air pollution control equipment at attractive interest rates. Since Congress
deleted the bond program for new air pollution control equipment in 1986,
no new applications for bond certification have been received. Further, while
the TCAFA still allows the commission to issue bond certifications, it does
not require rules to do so. Adoption of the repeal will not affect private
real property which is the subject of the rules because this rulemaking action
does not restrict or limit the owner's right to the property that otherwise
would exist in the absence of the rulemaking. Further, this rulemaking is
not the producing cause of the reduction in the market value of private real
property and, therefore, does not create a burden on private real property.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that this rulemaking action 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.), the rules of the Coastal Coordination Council (31 TAC Chapters 501
- 506), 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,
agency 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 and has determined that Chapter 104 does not impact
any CMP goals or policies because it prescribes necessary criteria and procedures
for bond certification, but, does not govern air pollution emissions. Chapter
104 is administrative and does not regulate the environment. Interested parties
may submit comments on this determination during the public comment period.
PUBLIC HEARING
A public hearing on this proposal will be held April 11, 2000, at 10:00
a.m. in Room 3202A of TNRCC Building F, located at 12100 Park 35 Circle, Austin.
The hearing is structured for the receipt of oral or written comments by interested
persons. Individuals may present oral statements when called upon in order
of registration. Open discussion will not occur during the hearing; however,
an agency staff member will be available to discuss the proposal 30 minutes
prior to the hearing and will answer questions before and after the hearing.
SUBMITTAL OF COMMENTS
Comments may be submitted to Bettie Bell, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas, 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
1999-079-104-AI. Comments must be received by 5:00 p.m., April 17, 2000. For
further information or questions concerning this proposal, please contact
Barry Irwin, Policy and Regulations Division, (512) 239-1461.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearings should contact the agency at
(512) 239-4900. Requests should be made as far in advance as possible.
STATUTORY AUTHORITY
The repeals are proposed under Texas Health and Safety Code, the Texas
Clean Air Act (TCAA), §382.017, which provides the commission with the
authority to adopt rules consistent with the policies and purposes of the
TCAA.
The proposed repeals implement Texas Health and Safety Code, §382.017,
concerning Rules.
§104.1.Control Facility.
§104.2.Fuel Treatment.
§104.3.Certification.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on March 2, 2000.
TRD-200001653
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 16, 2000
For further information, please call: (512) 239-6087