The Texas Natural Resource Conservation Commission (commission) proposes amendments to §§5.1 - 5.5, 5.7, 5.10, and 5.14. The commission also proposes new §5.20 and §5.21. The commission proposes these amendments and new sections to Chapter 5 to implement House Bill (HB) 2912, Article 1 (Administration and Policy), §1.10, as passed by the 77th Legislature, 2001.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

House Bill 2912, §1.10, amended Texas Water Code (TWC), §5.107, relating to Advisory Councils, which authorized the commission to create and consult with advisory councils, including councils for the environment, councils for public information, or any other councils that the commission may consider appropriate. The amendment to §5.107 changed the title of the section from "Advisory Councils" to "Advisory Committees, Work Groups, and Task Forces." The amended section authorizes the commission or the executive director to create and consult with advisory committees, work groups, or task forces, including committees, work groups, or task forces for the environment, public information, or any other matter that the commission or the executive director may consider appropriate; requires the commission to identify affected groups of interested persons for advisory committees, work groups, and task forces and make reasonable attempts to have balanced representation on all advisory committees, work groups, and task forces; and requires the commission to monitor the composition and activities of advisory committees, work groups, and task forces appointed by the commission or formed at the staff level and to maintain that information in a form and location that is easily accessible to the public, including making the information available on the commission's website. The amended section provides that the commission is not required to ensure that all representatives attend a scheduled meeting, and further provides that a rule or other action may not be challenged because of the composition of an advisory committee, work group, or task force.

Additionally, HB 2914, §45, amended Texas Government Code, Chapter 2110, relating to State Agency Advisory Committees. Among the more significant amendments are changes to the definition of advisory committee, addition of a section relating to applicability of Chapter 2110, addition of a section relating to establishment of advisory committees, and changes to the section relating to the duration of advisory committees. A change to the definition of advisory committee in §2110.001 clarifies that an entity must have multiple members to be considered an advisory committee, and other changes remove the statements that an advisory committee is not a state agency and that it is created by or under state law. New §2110.0011 provides that Chapter 2110 applies unless and to the extent that another state law specifically states that the chapter does not apply; or a federal law or regulation imposes an unconditional requirement that irreconcilably conflicts with the chapter, or imposes a condition on the state's eligibility to receive money from the federal government that irreconcilably conflicts with the chapter. New §2110.0012 provides that a state agency has established an advisory committee if state or federal law has specifically created the committee to advise the agency; or the agency, under state or federal law, created the committee to advise the agency. The changes to §2110.008 provide that unless the state agency, in establishing an advisory committee, by rule, designates a different date on which the committee will be automatically abolished, the committee is automatically abolished on the later of September 1, 2005, or the fourth anniversary of the date of its creation.

The major part of implementing this statutory amendment is being proposed as amendments to Chapter 5, Advisory Committees. However, as part of this rulemaking, a minor amendment is necessary for 30 TAC Chapter 20, Rulemaking, and is also being proposed in the Proposed Rules section of this issue of the Texas Register . That part of the implementation of HB 2912 adds a requirement to §20.19 concerning Working Groups, that appointment of any advisory committees, groups, or persons to advise the commission or the executive director on rulemaking must be in accordance with the process established under Chapter 5.

SECTION BY SECTION DISCUSSION

The proposed amendments to this chapter include changing the title from "Advisory Committees" to "Advisory Committees and Groups." The chapter is also proposed to be divided into three subchapters: Subchapter A, to establish a common purpose for the other two subchapters; Subchapter B, to address advisory committees; and Subchapter C, to address advisory groups.

The proposed amendment to §5.1, Purpose, makes modifications to include the creation and operation of advisory groups in addition to advisory committees.

The proposed amendments to §5.2, Definitions, change the definition of advisory committee and add definitions for balanced representation and minutes.

The proposed amendments to §5.3, Creation and Duration of Advisory Committees, expand the title of the section to specify that the section applies to committees created by the commission. The section is further amended to specify that an advisory committee shall be automatically abolished in accordance with Texas Government Code, §2110.008(b).

The proposed amendments to §5.4, Purpose and Duties of Advisory Committees, clarify that advisory committees have no executive or administrative powers or duties with respect to the operation of the agency, rather than the operation of the commission as currently stated.

The proposed amendments to §5.5, Composition of Advisory Committees, add a subsection that would emphasize that the commission shall make reasonable attempts to provide balanced representation on all advisory committees. The proposed subsection includes the exceptions provided by Texas Government Code, §2110.0011.

The proposed amendments to §5.7, Membership, add "becomes ineligible" as another basis for a member to vacate his or her position on the committee.

The proposed amendments to §5.10, Presiding Officer, modify the manner of appointing the presiding officer or other officers of advisory committees.

The proposed amendments to §5.14, Records, change the title of the section to Monitoring of Advisory Committees and Records to highlight the commission's statutory responsibility to monitor an advisory committee's composition and activities. New subsection (a) is proposed to specifically establish that requirement. New subsection (c) is also proposed to require that minutes of committee meetings and reports shall be maintained in a form and location that is easily accessible to the public.

The proposed new §5.20, Advisory Groups, authorizes the executive director to create and consult with advisory groups.

The proposed new §5.21, Formation of Advisory Groups, directs the executive director to identify affected groups of interested persons for advisory groups, and to make reasonable attempts to balance advisory groups.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, has determined for the first five-year period the proposed amendments and new sections are in effect, there will be no significant fiscal implications for units of state and local government due to administration and enforcement of the proposed amendments and new sections. The proposed amendments and new sections are intended to affect the operations of the commission. No other units of state or local government are anticipated to be affected by the proposed amendments and new sections.

This rulemaking is intended to implement certain provisions of HB 2912 and HB 2914, and to make minor editorial changes to existing commission advisory committee and advisory group rules. House Bill 2912 authorizes the commission or the executive director to create and consult with advisory committees, work groups, and task forces on issues relating to the environment, public information, or any other matter that the commission or executive director may consider appropriate. The bill requires the commission to identify affected groups of interested persons for inclusion in advisory groups; make reasonable attempts to have a balanced representation in the advisory groups; monitor the composition and activities of advisory groups appointed by the commission or formed at the staff level; and provide advisory group information in a form and location that is easily accessible to the public, including making the information available via the commission's website. Additionally, HB 2914 revises the definition, applicability, establishment, and duration of advisory committees.

The proposed amendments and new sections will incorporate new rule language into existing commission rules that specify the requirements the commission or executive director must follow regarding advisory committees, work groups, and task forces to assure compliance with these provisions of HB 2912 and HB 2914.

The proposed amendments and new sections are intended to affect the commission's operations and are not anticipated to result in fiscal implications for any other unit of state or local government. The amendments are procedural in nature and are only intended to implement procedures for the appointing of persons to commission initiated advisory committees and executive director created work groups, monitoring of the composition and activities of the committees and groups, and making information available on the commission's website. The amendments also modify the effect of other state or federal law on the membership of advisory committees and alter the procedures allowed to set the duration of advisory committees.

PUBLIC BENEFITS AND COSTS

Mr. Davis also has determined for each year of the first five years the proposed amendments and news sections are in effect, the public benefit anticipated from enforcement of and compliance with the proposed amendments and new sections will be an increase in the diversity of participants on advisory committees, work groups, and task forces initiated by the commission or the executive director.

This rulemaking is intended to implement certain provisions of HB 2912 and HB 2914, and to make minor editorial changes to existing advisory group rules. House Bill 2912 authorizes the commission or the executive director to create and consult with advisory committees, work groups, and task forces on issues relating to the environment, public information, or any other matter that the commission or executive director may consider appropriate. The bill requires the commission to identify affected groups of interested persons for inclusion in advisory groups; make reasonable attempts to have a balanced representation in the advisory groups; monitor the composition and activities of advisory groups appointed by the commission or formed at the staff level; and provide advisory group information in a form and location that is easily accessible to the public, including making the information available via the commission's website. Additionally, HB 2914 revises the definition, applicability, establishment, and duration of advisory committees.

The proposed amendments and new sections will incorporate new rule language into existing commission rules that specify the requirements the commission or the executive director must follow regarding advisory committees, work groups, and task forces to assure compliance with these provisions of HB 2912 and HB 2914.

The proposed amendments and new sections are intended to affect the commission's operations and are not anticipated to result in fiscal implications for any other unit of state or local government. The amendments are procedural in nature and are only intended to implement procedures for the appointing of persons to commission initiated advisory committees and executive director created work groups, monitoring of the composition and activities of the committees and groups, and making information available on the commission's website. The amendments also modify the effect of other state or federal law on the membership of advisory committees and alter the procedures allowed to set the duration of advisory committees.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There may be adverse fiscal implications, which are not anticipated to be significant, to small or micro-business due to implementation of the proposed amendments and new sections, which are intended to implement certain provisions of HB 2912 and HB 2914. House Bill 2912 authorizes the commission or the executive director to create and consult with advisory committees, work groups, and task forces on issues relating to the environment, public information, or any other matter that the commission or executive director may consider appropriate. The bill requires the commission to identify affected groups of interested persons for inclusion in advisory groups; make reasonable attempts to have a balanced representation in the advisory groups; monitor the composition and activities of advisory groups appointed by the commission or formed at the staff level; and provide advisory group information in a form and location that is easily accessible to the public, including making the information available via the commission's website. Additionally, HB 2914 revises the definition, applicability, establishment, and duration of advisory committees.

The proposed amendments and new sections will incorporate new rule language into existing commission rules that specify the requirements the commission must follow regarding advisory committees, work groups, and task forces to assure compliance with these provisions of HB 2912 and HB 2914.

The proposed amendments and new sections are intended to affect the commission's operations by making reasonable attempts to achieve balanced representation on all advisory committees, work groups, and task forces initiated by the commission or created by the executive director. The requirement to make reasonable attempts to ensure balanced representation may result in additional small and micro-businesses being invited to participate in one or more the advisory committees and advisory groups. For these businesses, the commission anticipates there will be additional travel and other costs to participate, which are not anticipated to be significant.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the proposed rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and 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. A "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 proposed rules are not specifically intended to protect the environment, or reduce risks from environmental exposure and 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 proposed rules are intended to affect the commission's operations and are not anticipated to result in fiscal implications for any other unit of state or local government. The proposed rules are procedural in nature and are only intended to implement procedures for the appointing of persons to commission initiated advisory committees and executive director created work groups, monitoring of the composition and activities of the committees and groups, and making information available on the commission's website. The proposed rules also modify the effect of other state or federal law on the membership of advisory committees and alter the procedures allowed to set the duration of advisory committees. As for the four applicability requirements, the rulemaking does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of any delegation agreement or contract between the state, the commission, and an agency or representative of the federal government, nor are the rules proposed solely under the general powers of the commission. The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for this proposal under Texas Government Code, §2007.043. The following is a summary of that assessment. The proposed rules would implement HB 2912, §1.10 which authorizes the commission or the executive director to create and consult with advisory committees, work groups, and task forces and requires the commission to make reasonable attempts to have balanced representation on those entities, monitor the composition and activities of the entities, and maintain that information in a form and location easily accessible to the public, including placing the information on the commission's website.

The proposed rules also implement HB 2914 which modified the effect of other state or federal law on the membership of advisory committees and altered the procedures allowed to set the duration of advisory committees.

These proposed rules substantially advance those purposes by defining balanced representation, requiring the commission and executive director to make reasonable attempts to provide such balance, monitor the composition and activities through attendance lists, annual reports, and minutes if they are kept and make the information available on the commission's website. The proposed rules also substantially advance those purposes by utilizing the statutory language concerning the effect of state and federal law on membership and duration of advisory committees.

Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the proposed rules do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally); nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would exist in the absence of the regulations.

Because these proposed rules affect only advisory entities, this action will not create a burden on private real property, and will not burden, restrict, or limit an owner's right to property and reduce its value by 25% or more.

No exceptions set out in Texas Government Code, §2007.003(b) apply to these proposed rules.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11.Therefore, the proposed rules are not subject to the Texas Coastal Management Program.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on May 20, 2002, at 2:00 p.m., Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. The hearing is structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes before the hearing, and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs, who are planning to attend a hearing, should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Lola Brown, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., May 28, 2002, and should reference Rule Log Number 2001-068-005-AD. For further information, please contact Debra Barber at (512) 239-0412.

Subchapter A. PURPOSE

The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes amendments to §§39.403, 39.405, 39.501, and 39.503.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The primary purpose of this rulemaking is to implement legislation relating to public notice and meeting requirements. House Bill (HB) 2912 (an act relating to the continuation and functions of the Texas Natural Resource Conservation Commission; providing penalties), 77th Legislature, 2001, §2.01, added Texas Health and Safety Code (THSC), §361.0666, Public Meeting and Notice for Solid Waste Facilities. The proposed amendments to §39.501 and §39.503 address the amendments to THSC, §361.0666, which added certain public meeting requirements for facilities that accept municipal solid waste. HB 2947 (an act relating to the posting of notice for water discharge permits), 77th Legislature, 2001, amended Texas Water Code (TWC), §5.552, Notice of Intent to Obtain Permit. The proposed amendments to §39.405 address the requirements of amended TWC, §5.552 relating to newspaper publication requirements. Senate Bill (SB) 688 (an act relating to requirements for public notice and hearing on applications for certain permits that may have environmental impact) added new Texas Clean Air Act (TCAA), §382.05197, and changed the public notice requirements applicable to multiple plant permits. The proposed amendments to §39.403 address the requirements of new TCAA, §382.05197. The proposal also contains grammatical and statutory reference revisions, cross-reference corrections, and changes which conform the rule language to Texas Register and agency formatting requirements.

SECTION BY SECTION DISCUSSION

Section 39.403, Applicability, is proposed to be amended to address requirements of new TCAA, §382.01597, relating to notice and hearing requirements for multiple plant permit applications. Proposed new paragraph (13) of subsection (b) specifies that notices for multiple plant permits are subject to applicable requirements under Chapter 39. Existing paragraph (13) is proposed to be re- designated as paragraph (14). Subsection (d) is proposed to be amended to specify that initial issuance of certain multiple plant permit applications are subject to the same public notice requirements that apply to initial issuance of voluntary emission reduction permits and initial issuance of electric generating facility permits except as otherwise provided in 30 TAC §116.1040, as proposed for amendment in a concurrent rulemaking in this issue of the Texas Register . New TCAA, §382.05197(c) provides that public participation for a multiple plant permit application filed before September 1, 2001, will be done in the same manner as provided by TCAA, §382.0561, Federal Operating Permit, and §382.0562, Notice of Decision. Because the commission has developed public notice and participation requirements implementing similar language in TCAA, §382.05191 for initial issuance of voluntary emission reduction permits (VERP) and initial issuance of electric generating facility permits, the existing Chapter 39 requirements are proposed to also apply to certain multiple plant permits under 30 TAC Chapter 116, Subchapter J.

Section 39.405, General Notice Provisions, is proposed to be amended under subsection (f) to address the HB 2947 requirement that certain notices of intent to obtain a permit must be published in a newspaper of general circulation in a municipality, if the facility to which the application relates is located or proposed to be located in the municipality. This proposed rule change reflects the change to TWC, §5.552(b)(1), which previously provided that for all applications governed by this provision, the applicant was required to publish notice in the newspaper of largest circulation in the county in which the facility was located or proposed to be located. Section 39.405(f) is also proposed to be amended to make clear that the requirements of HB 2947 do not apply to air applications which remain subject to the newspaper publication requirements of TCAA, §382.056(a), and are unchanged by HB 2947.

Sections 39.501 and 39.503 are proposed to be amended to address the public meeting and notice requirements for solid waste facilities under the HB 2912, Article 2 amendments to THSC, §361.0666. Consistent with the provisions of HB 2912, these proposed amendments would require an applicant for a permit under THSC, Chapter 361, for a new facility that would accept municipal solid waste, to hold a public meeting in the county in which the proposed facility is to be located, publish notice of the public meeting, and submit an affidavit certifying the notice was published as required.

Section 39.501, Application for Municipal Solid Waste Permit, is proposed to be amended under subsection (e). Under paragraph (1)(B), the proposed language would require an applicant for a new municipal solid waste permit to hold a public meeting in the county in which the facility is proposed to be located, and would require that the meeting be held before the 45th day after the date the application is filed. Language from existing paragraph (1) concerning the Administrative Procedure Act (APA) and the local review process is proposed to be renumbered as paragraph (2), and the incorrect reference to subsection (a) is proposed to be corrected to subsection (b). In addition, proposed paragraph (2) would add the words "paragraph (1)(A) of" in order to more accurately reflect the allowance that a public meeting held as part of a local review committee process meets the requirements for a meeting to be held by the agency, if public notice is provided under this subsection. The language from existing paragraph (2) is proposed to be renumbered as paragraph (3), grammatically revised, and expanded to reflect the requirements of THSC, §361.0666(d), relating to content of notice for public meetings held by the applicant. In addition, the rule provides that the text of notice shall include the location, time, and date of the meeting as well as the name, address, and telephone number for the contact person for the applicant as proposed in subparagraphs (A) - (F) of paragraph (3). The language from existing paragraph (3) is proposed to be renumbered as paragraph (4). Because current §39.405(e) already requires the applicant to submit an affidavit certifying compliance with applicable notice requirements, no other changes are proposed to implement the new statutory requirements.

Section 39.503, Application for Industrial or Hazardous Waste Facility Permit, is proposed to be amended under subsection (e) to mirror the changes proposed to §39.501 in this rulemaking. The provisions of newly enacted THSC, §361.0666, apply not only to new municipal solid waste facilities, but also to any new facilities that accept municipal solid waste. Since under certain circumstances, industrial or hazardous waste facilities may also accept municipal solid wastes, the requirements of the new statutory provisions also apply to these facilities. Thus, the commission proposes the corresponding changes necessary to implement these provisions for industrial or hazardous waste facilities.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, has determined that for each year of the first five-year period the proposed amendments are in effect, there will be no significant fiscal implications for the agency due to administration or enforcement of the proposed amendments. There may be public notice costs, which are not anticipated to be significant, for units of state and local government that apply for a municipal solid waste permit.

This rulemaking is intended to implement certain provisions of HB 2912 and HB 2947, which modified existing public notice and meeting requirements. HB 2912 requires public notices, published by the commission or by a person regulated by the commission, to include a detailed beginning statement of the subject of the notice. This bill also requires applicants for a new facility that would accept municipal solid waste to convene a public meeting, and provide public notice, in the county in which the proposed site is to be located. HB 2947 allows applicants for certain permits to publish notice in the newspaper of general circulation in the municipality in which the facility is to be located. Currently, applicants for these permits have to publish notice in a newspaper of largest circulation in the county in which the proposed site is located.

The commission does not anticipate the statement or public meeting provisions of HB 2912 will result in significant fiscal implications for units of state and local government. The commission estimates that the HB 2947 provision may result in economic benefits, which are not anticipated to be significant, to units of government applying for certain permits, because the required notice would only have to be published in a newspaper of general circulation in the municipality in which the facility is to be located, instead of in a newspaper that covered the entire county.

The commission estimates that there will be public notice costs, which are not anticipated to be significant, to units of state and local government that apply for a new permit and would accept municipal solid waste. The commission currently processes approximately 40 new applications for municipal solid waste permits per year, most of which are submitted by units of government. The proposed amendments would require an applicant to provide notice of the public meeting at least once each week during the three weeks prior to the meeting. The notice must be published in the newspaper of the largest general circulation that is published in the county in which the proposed facility is to be located. The costs for public notice vary significantly depending on the location and the anticipated environmental impact of the facility. Small town/city newspapers generally charge much less than large town/city newspapers for publication of a public notice. The commission estimates that a large city newspaper would charge approximately $450 for the public notice. A smaller city newspaper would charge approximately $20 for the public notice.

PUBLIC BENEFITS AND COSTS

Mr. Davis has also determined that for each of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of implementing the amendments will be improved public notification and input due to revised public notice and meeting requirements.

This rulemaking is intended to implement certain provisions of HB 2912 and HB 2947, which modified existing public notice and meeting requirements. HB 2912 requires public notices, published by the commission or by a person regulated by the commission, to include a detailed beginning statement of the subject of the notice. This bill also requires applicants for a new facility that would accept municipal solid waste to convene a public meeting, and provide public notice, in the county in which the proposed site is to be located. HB 2947 allows applicants for certain permits to publish notice in the newspaper of general circulation in the municipality in which the facility is to be located. Currently, applicants for these permits have to publish notice in a newspaper of largest circulation in the county in which the proposed site is located.

The commission does not anticipate the statement or public meeting provisions of HB 2912 will result in significant fiscal implications for individuals and businesses. The commission estimates that the HB 2947 provision may result in economic benefits, which are not anticipated to be significant, to businesses applying for certain permits, because the required notice would only have to be published in a newspaper of general circulation in the municipality in which the facility is to be located, instead of in a newspaper that covered the entire county.

The commission estimates that there will be public notice costs, which are not anticipated to be significant, to individuals and businesses that apply for a new permit and would accept municipal solid waste. The commission currently processes approximately 40 new applications for municipal solid waste permits per year, some of which are submitted by private businesses. The proposed amendments would require an applicant to provide notice of the public meeting at least once each week during the three weeks prior to the meeting. The notice must be published in the newspaper of the largest general circulation that is published in the county in which the proposed facility is to be located. The costs for public notice vary significantly depending on the location and the anticipated environmental impact of the facility. Small town/city newspapers generally charge much less than large town/city newspapers for publication of a public notice. The commission estimates that a large city newspaper would charge approximately $450 for the public notice. A smaller city newspaper would charge approximately $20 for the public notice.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There may be adverse fiscal implications, which are not anticipated to be significant, for small or micro-businesses as a result of administration or enforcement of the proposed amendments, which are intended to implement provisions of HB 2912 and HB 2947, which modified existing public notice and meeting requirements. HB 2912 requires public notices, published by the commission or by a person regulated by the commission, to include a detailed beginning statement of the subject of the notice. This bill also requires applicants for a new facility that would accept municipal solid waste to convene a public meeting, and provide public notice, in the county in which the proposed site is to be located. HB 2947 allows applicants for certain permits to publish notice in the newspaper of general circulation in the municipality in which the facility is to be located. Currently, applicants for water discharge permits have to publish notice in a newspaper of largest circulation in the county in which the proposed site is located.

The commission does not anticipate the statement or public meeting provisions of HB 2912 will result in significant fiscal implications for small and micro-businesses. The commission estimates that the HB 2947 provision may result in economic benefits, which are not anticipated to be significant, to small and micro-businesses applying for certain permits, because the required notice would only have to be published in a newspaper of general circulation in the municipality in which the facility is to be located, instead of in a newspaper that covered the entire county.

The commission estimates that there will be public notice costs, which are not anticipated to be significant, to small and micro-businesses that apply for a new permit for a facility that would accept municipal solid waste. The commission currently processes approximately 40 new applications for municipal solid waste permits per year, some of which are submitted by small and micro-businesses. The proposed amendments would require an applicant to provide notice of the public meeting at least once each week during the three weeks prior to the meeting. The notice must be published in the newspaper of the largest general circulation that is published in the county in which the proposed facility is to be located. The costs for public notice vary significantly depending on the location and the anticipated environmental impact of the facility. Small town/city newspapers generally charge much less than large town/city newspapers for publication of a public notice. The commission estimates that a large city newspaper would charge approximately $450 for the public notice. A smaller city newspaper would charge approximately $20 for the public notice.

The following is an analysis of the costs per employee for small and micro-businesses that are required to provide public notice concerning an application for a municipal solid waste permit. Small and micro-businesses are defined as having fewer than 100 or 20 employees respectively. A small business would have to pay up to an additional $5.00 per employee to comply with the proposed amendments. A micro-business would have to pay up to an additional $23 per employee to comply with the proposed amendments.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed amendments do not adversely affect a local economy in a material way for the first five years that the proposed amendments are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. Furthermore, it does not meet any of the four applicability requirements listed in §2001.0225(a).

A "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, 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 procedural in nature and revises procedures concerning public notice and public meetings, the rulemaking does not meet the definition of a "major environmental rule."

In addition, even if the proposed rules are major environmental rules, a draft regulatory impact assessment is not required because the rules do not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, or propose to adopt a rule solely under the general powers of the agency. This proposal does not exceed a standard set by federal law. This proposal does not exceed an express requirement of state law because it is authorized by the following state statutes: Texas Government Code, §2001.004, which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal state agency procedures; as well as the other statutory authorities cited in the STATUTORY AUTHORITY section of this preamble. In addition, the proposal is in direct response to HB 2912, HB 2947, and SB 688, and does not exceed the requirements of these bills. This proposal does not 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. This proposal does not adopt a rule solely under the general powers of the agency, but rather under specific state laws (i.e., Texas Government Code, §2001.004; TWC, §5.129 and §5.552; and THSC, §361.0666 and §382.05197). Finally, this rulemaking is not being proposed or adopted on an emergency basis to protect the environment or to reduce risks to human health from environmental exposure.

The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this proposed rulemaking action and performed a preliminary analysis of whether the proposed rules are subject to Texas Government Code, Chapter 2007. The specific primary purpose of the proposed rulemaking is to revise commission rules relating to procedures for public notice and public meetings. As added by HB 2947, TWC, §5.552 requires that certain notices of intent to obtain a permit must be published in a newspaper of general circulation in a municipality, if the facility to which the application relates is located or proposed to be located in the municipality. As added by HB 2912, THSC, §361.0666 requires that an applicant for a permit under THSC, Chapter 361, for a new facility that would accept municipal solid waste, must hold a public meeting in the county in which the proposed facility is to be located before the 45th day after the application is filed. SB 688 added THSC, §382.05197, which changed the public notice requirements applicable to certain multiple plant permits. The proposed rules will substantially advance these stated purposes by providing specific procedural requirements in response to legislative changes. Promulgation and enforcement of the rules will not burden private real property. The proposed rules do not affect private property in a manner which restricts or limits an owner's right to the property that would otherwise exist in the absence of governmental action. Consequently, the proposed rulemaking action does not meet the definition of a takings under Texas Government Code, §2007.002(5).

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that the proposed rulemaking does not relate to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Management Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq .) and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. The proposed actions concern only the procedural rules of the commission, are not substantive in nature, do not govern or authorize any actions subject to the CMP, and are not themselves capable of adversely affecting a coastal natural resource area (31 TAC Natural Resources and Conservation Code, Chapter 505; 30 TAC §§281.40 et seq .).

Interested persons may submit comments on the consistency of the proposed amendments with the CMP during the public comment period.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin at 2:00 p.m. on May 21, 2002 at the Texas Natural Resource Conservation Commission complex, Building F, Room 2210, 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion 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.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Lola Brown, 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 2001-028-039-AD. Comments must be received by 5:00 p.m., May 28, 2002. For further information contact Ray Henry Austin, Policy and Regulations Division, at (512) 239-6814.

Subchapter H. APPLICABILITY AND GENERAL PROVISIONS

The Texas Natural Resource Conservation Commission (commission) proposes amendments to §90.1, Purpose, and §90.10, Application for a Regulatory Flexibility Order.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The commission proposes these revisions to Chapter 90 in order to implement statutory changes to Texas Water Code (TWC), §5.123, Regulatory Flexibility, redesignated as TWC, §5.758, Regulatory Flexibility. The commission is also proposing, in concurrent action, to review the rules in Chapter 90 (added by Acts 1999, 76th Legislature, Chapter 1499, §1.11(a)). The notice of the intention to review can be found in the Rule Review section of this issue of the Texas Register .

The proposed rulemaking implements House Bill (HB) 2912, §4.02 (77th Legislature, 2001). HB 2912, §4.02, amended TWC, §5.123 and redesignated it as the new TWC, §5.758. The amendments, which became effective on September 1, 2001, require that applicants demonstrate that the alternative control measures provide greater protection for the environment and the public health, compared with the specific requirements that would otherwise apply, and that applicants present documented evidence that the benefits will occur. TWC, §5.123 previously required that an exemption proposed be "at least as" protective as the specific requirement being exempted and did not require documented evidence. This proposed rulemaking will amend §90.10(b) to conform with amended language in the TWC requiring that proposals to control pollution by alternative methods or standards be more protective than the existing rule or law, and that applicants must provide documented evidence that benefits will occur.

New TWC, §5.758 is intended to allow entities currently regulated by the commission the flexibility to use alternative methods to meet statutory or regulatory requirements. The proposed amendments will require that the benefits gained through the alternative methods are greater than the current requirements, and that the applicant provide documented evidence that the benefits will occur through the alternative methods.

SECTION BY SECTION DISCUSSION

Section 90.1 is proposed to be amended to correct the TWC citation from §5.123 to §5.758.

Section 90.10(b)(2)(A) is proposed to be amended to require that the detailed explanation in applications for regulatory flexibility show that the alternate methods or standards would be more protective of the environment. A new subsection (b)(3) is proposed to require that a regulatory flexibility order application show documented evidence of the benefits to environmental quality that will result from the proposal. All subsequent paragraphs in subsection (b) are proposed to be renumbered.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, determined that for the first five-year period the proposed amendments are in effect, there may be fiscal implications, which could be significant, for units of state and local government that voluntarily seek regulatory flexibility orders. However, the commission anticipates the costs resulting from voluntary participation in the program would likely be offset by anticipated economic benefits to be gained from receiving authority to operate a facility under a regulatory flexibility order. The proposed amendments would only affect units of state and local government that decide to voluntarily apply for regulatory flexibility orders. All other units of state and local government would not be affected by this rulemaking.

This rulemaking is intended to implement certain provisions of HB 2912 (an Act relating to the continuation and functions of the Texas Natural Resource Conservation Commission; providing penalties), 77th Legislature, 2001. In order to qualify for regulatory flexibility orders, the bill requires all applicants after September 1, 2001 to provide documented evidence which demonstrates that the provisions of the proposed alternative control measures would provide greater environmental protection compared to existing commission requirements. The commission currently requires an applicant to provide a narrative description of the alternative control measure, and a demonstration that the proposal would provide environmental protection equivalent to existing requirements.

All units of state and local government that operate equipment required to comply with pollution standards under the commission's air, water, or waste permit programs could apply for regulatory flexibility orders. The only exception would be low-level radioactive waste storage, handling, or disposal facilities, which would not be allowed to seek regulatory flexibility under this chapter.

The commission anticipates the only potential additional costs to applicants applying for voluntary regulatory flexibility orders will be costs associated with environmental and engineering testing. Although testing is not a specific requirement, the commission anticipates applicants will have to perform some type of testing beyond what is currently required in order to provide the commission with sufficient evidence that the proposals will exceed existing commission requirements. It is not known how many applicants conducted environmental and engineering testing in the past. The commission estimates there will be a wide range in testing costs, depending on the complexity and scope of the proposal. Testing costs are estimated to range from $100 for simple water analysis testing to over $250,000 for complex hazardous waste combustion testing.

The commission anticipates that units of state and local government that decide to apply for regulatory flexibility orders will take these costs into consideration; therefore, the increased testing costs are not anticipated to exceed the actual economic benefits to be gained from receiving authority to operate a facility under a regulatory flexibility order. The proposed amendments are not anticipated to pose a significant fiscal implication for the commission. Since the program was implemented in 1997, the commission has received seven applications for regulatory flexibility. The annual number of regulatory flexibility order applications submitted to the commission are not anticipated to increase significantly due to implementation of the proposed amendments.

PUBLIC BENEFITS AND COSTS

Mr. Davis also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated from enforcement of and compliance with the proposed amendments will be potentially increased environmental protection due to the requirement that proposals for regulatory flexibility must exceed existing commission environmental standards.

This rulemaking is intended to implement certain provisions of HB 2912, 77th Legislature, 2001. In order to qualify for regulatory flexibility orders, the bill requires all applicants after September 1, 2001 to provide documented evidence which demonstrates that the alternative control measures would provide greater environmental protection compared to existing commission requirements. The commission currently requires an applicant to provide a narrative description of the alternative control measure, and a demonstration that the proposal would provide environmental protection equivalent to existing requirements.

All individuals and businesses that operate equipment required to comply with pollution standards under the commission's air, water, or waste permit programs could apply for regulatory flexibility orders. The only exception would be low-level radioactive waste storage, handling, or disposal facilities, which would not be allowed to seek regulatory flexibility under this chapter.

The commission anticipates the only potential additional costs to applicants applying for voluntary regulatory flexibility orders will be costs associated with environmental and engineering testing. Although testing is not a specific requirement, the commission anticipates applicants will have to perform some type of testing beyond what is currently required in order to provide the commission with sufficient evidence that the proposals will exceed existing commission requirements. It is not known how many applicants conducted environmental and engineering testing in the past. The commission estimates there will be a wide range in testing costs, depending on the complexity and scope of the proposals. Testing costs are estimated to range from $100 for simple water analysis testing to over $250,000 for complex hazardous waste combustion testing.

The commission anticipates that individuals and businesses that decide to apply for regulatory flexibility orders will take these costs into consideration; therefore, the increased testing costs are not anticipated to exceed the actual economic benefits to be gained from receiving authority to operate a facility under a regulatory flexibility order. Since the program was implemented in 1997, the commission has received seven applications for regulatory flexibility, six of which were submitted by large businesses. The annual number of regulatory flexibility order applications submitted to the commission are not anticipated to increase significantly due to implementation of the proposed amendments.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There may be adverse fiscal implications to small or micro-businesses, which may be significant, that voluntarily choose to apply for a regulatory flexibility order. This rulemaking is intended to implement certain provisions of HB 2912, 77th Legislature, 2001, which requires applicants seeking regulatory flexibility orders after September 1, 2001 to provide documented evidence which demonstrates that the alternative control measure would provide greater environmental protection compared to existing commission requirements. The commission currently requires an applicant to provide a narrative description of the alternative control measure, and a demonstration that the proposal would provide environmental protection equivalent to existing requirements.

All small and micro-businesses that operate equipment required to comply with pollution standards under the commission's air, water, or waste permit programs could apply for regulatory flexibility orders. The only exception would be low-level radioactive waste storage, handling, or disposal facilities, which would not be allowed to seek regulatory flexibility under this chapter.

The commission anticipates the only potential additional costs to applicants applying for voluntary regulatory flexibility orders will be costs associated with environmental and engineering testing. Although testing is not a specific requirement, the commission anticipates applicants will have to perform some type of testing beyond what is currently required in order to provide the commission with sufficient evidence that the proposals will exceed existing commission requirements. It is not known how many applicants conducted environmental and engineering testing in the past. The commission estimates there will be a wide range in testing costs, depending on the complexity and scope of the proposals. Testing costs are estimated to range from $100 for simple water analysis testing to over $250,000 for complex hazardous waste combustion testing.

The commission anticipates that small and micro-businesses that decide to apply for regulatory flexibility orders will take these costs into consideration; therefore, the increased testing costs are not anticipated to exceed the actual economic benefits to be gained from receiving authority to operate a facility under a regulatory flexibility order. Since the program was implemented in 1997, the commission has received seven applications, one of which was from a small business. The annual number of regulatory flexibility order applications submitted to the commission are not anticipated to increase significantly due to implementation of the proposed amendments.

The following is an analysis of the costs per employee for small and micro-businesses that voluntarily elect to apply for a regulatory flexibility order and have to pay approximately $50,000 for testing to support the claims of the application. Small and micro-businesses are defined as having fewer than 100 or 20 employees respectively. A small business would have to pay up to an additional $500 per employee, while a micro-business would have to pay up to an additional $2,500 per employee to comply with the proposed amendments.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and 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. Although the intent of the rulemaking is to protect the environment or reduce risks to human health from environmental exposure, and because it is part of a voluntary program offering flexibility to 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. In addition to not being a major environmental rule, the rulemaking also does not meet any of the four applicability requirements listed in §2001.0225(a). The proposed rules do not exceed a standard set by federal law because there are no relevant or applicable federal standards. The proposed rulemaking does not exceed a requirement of a state law because it is a direct implementation of a specific state law. The proposed rulemaking does not exceed a requirement of a delegation agreement or contract between a state and an agency because there are no corresponding relevant or applicable delegation agreements. Finally, the rulemaking is not adopted solely under the general powers of the agency because it is adopted as part of an implementation of a specific state law codified at TWC, §5.758. The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed a preliminary assessment of whether the rules would constitute a takings under Texas Government Code, Chapter 2007. This section of the preamble constitutes the assessment required under §2007.043.

The purpose of this proposed rulemaking is to implement a statutory provision which requires that a request for exemption under Chapter 90 be more protective of the environment than the method or standard that would otherwise apply, and that the petition include documented evidence of the resulting benefits to environmental quality. The commission believes that the proposed amendments would substantially advance this purpose because they require any proposed alternative to be "more protective" instead of "at least as protective," as the method or standard that would otherwise apply, and also require that the application include documented evidence of the benefits to environmental quality. There are no burdens imposed on private real property, and the benefits to society are the added protection of health, welfare, and the environment.

Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the proposed rules do not burden real property, nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Because this proposed rulemaking implements a statutory mandate to make the regulatory requirements more stringent for obtaining a regulatory flexibility order, there is no alternative action that could accomplish this specific purpose. The commission invites public comment on this takings assessment.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the proposal is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC Chapter 505, §505.11(b)(2) relating to Actions and Rules Subject to the Texas Coastal Management Program, since this rulemaking affects provisions for all types of permits issued by the commission. The Coastal Coordination Act requires that applicable goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process. The commission determined that the proposed rules are in accordance with 31 TAC §505.22, and found that the proposed rulemaking is consistent with the applicable CMP goals and policies.

The goals of the CMP are: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; to ensure and enhance planned public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone; and to balance these competing interests. The policies of the CMP in 31 TAC §501.14 implement these goals.

The specific CMP goals applicable to these proposed rules require that rules governing permits shall require systems that are permitted by the commission to be located, designed, operated, inspected, and maintained to prevent release of pollutants that may adversely affect coastal waters. Promulgation and enforcement of these rules will not violate any standards identified in the applicable CMP goals because the standards specified in the rules require that flexibility can only be provided when an applicant clearly demonstrates that the variance requested is more protective than the requirements of a rule or law that would otherwise apply to the system. There are several policies in §501.14 that govern permits conditions for which regulatory flexibility could be sought from the commission. However, since the proposed amendments require that applicants show greater protectiveness in any application submitted, the amendments are consistent with the CMP policies.

The commission seeks public comment on the consistency of the proposed rules with applicable CMP goals and policies.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin on May 20, 2002 at 10:00 a.m., in Building F, Room 2210 at the commission's central office located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion 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.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, 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 2001-073-090-AD. Comments must be received by 5:00 p.m., May 28, 2002. For further information or questions concerning this proposal, please contact Joseph Thomas, Office of Environmental Policy, Analysis, and Assessment, (512) 239- 4580.

Subchapter A. PURPOSE, APPLICABILITY, AND ELIGIBILITY

The Texas Natural Resource Commission (agency or commission) proposes an amendment to §101.1 and the repeal of §§101.6, 101.7, 101.11, 101.12, and 101.15 - 101.17. The commission also proposes new §101.201 in new Division 1, Emissions Events ; new §101.211 in new Division 2 , Maintenance, Startup, and Shutdown Activities ; §§101.221 - 101.224 in new Division 3, Operational Requirements, Demonstrations, and Excessive Emissions Events ; and new §§101.231 - 101.233 in new Division 4, Variances . The amendment and repeals are being proposed in Subchapter A, General Rules , and the new sections are being proposed in new Subchapter F, Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities . The commission proposes the amendment, repeals, and new sections as revisions to the state implementation plan (SIP) which will be submitted to the United States Environmental Protection Agency (EPA). This rulemaking action is being proposed to incorporate the statutory requirements of House Bill (HB) 2912, §5.01 and §18.14, 77th Legislature, 2001, into the commission rules.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

During the 77th Legislative Session, the legislature adopted HB 2912. The bill became effective on September 1, 2001. One change resulting from HB 2912 was an amendment to Texas Health and Safety Code (THSC), Subchapter B, Chapter 382, which is the Texas Clean Air Act (TCAA), by adding new §382.0215 and §382.0216. Section 382.0215, Assessment of Emissions Due to Emissions Events, addresses the assessment of emissions due to emissions events. A new term, emissions event , was introduced and defined to mean an upset or unscheduled maintenance, startup, or shutdown activity resulting in the unauthorized emission of air contaminants from an emissions point. Section 382.0215 also establishes recordkeeping and reporting requirements for sources which had an emissions event that resulted in emissions of a reportable quantity (RQ) or greater; establishes reporting requirements for certain boilers and combustion turbines which burn certain fuels and have continuous emission monitoring systems (CEMS); and mandated that the agency centrally track all emissions events. Section 382.0215 also requires the agency to develop the capacity for electronic reporting by January 1, 2003 and to place the information into a centralized database accessible to the public. Furthermore, §382.0215 requires the agency to annually assess the information received concerning emissions events, including the actions taken by the agency in response to the emissions events, and report this information to the legislature.

The THSC, §382.0216, Regulation of Emissions Events , requires the commission to establish criteria to determine when emissions events are considered excessive. Section 382.0216 also requires that the following six criteria be considered when determining if an emissions event was excessive: 1) the frequency of the facility's emissions events; 2) the causes of the emissions events; 3) the quantity and impact on human health or the environment of the emissions events; 4) the duration of the emissions events; 5) the percentage of the facility's total annual operating hours during which emissions events occur; and 6) the need for startup, shutdown, and maintenance activities. Under the requirements of §382.0216, once the agency determines that a facility has had excessive emissions events, the commission must require the owner or operator of a facility to take corrective action to reduce these types of emissions. The owner or operator of the facility must then either file a corrective action plan (CAP) or file a letter of intent to obtain an authorization for the emissions. The owner or operator of the facility may only file a letter of intent if the emissions are sufficiently frequent, quantifiable, and predictable. Furthermore, §382.0216 provides action dates for both the commission and affected facilities for the submittal and approval of the CAPs and required authorizations. Finally, §382.0216 establishes that the burden of proof is on the owner or operator of the facility and that the commission must consider chronic excessive emissions events and emissions events for which the commission has initiated enforcement when reviewing an entity's compliance history.

Based on the legislative changes in HB 2912, concerning assessment and regulation of emissions events, the commission is proposing the revision of its current upset, maintenance, startup, and shutdown (U/M) rules (i.e., amending current rules and providing new rules) to reflect the requirements of HB 2912. The statutory notes of HB 2912, §18.14 state: "The purpose of Sections 382.0215 and 382.0216, Health and Safety Code, as added by this Act, is to add new or more stringent requirements regarding upsets, startups, shutdowns, and maintenance. Those sections may not be construed as limiting the existing authority of the Texas Natural Resource Conservation Commission under Chapter 382, Health and Safety Code, to require the reporting or the permitting of the emission of air contaminants or to bring enforcement action for a violation of Chapter 382." Therefore, the requirements provided in HB 2912 are being proposed as additions to, not the replacement of, current U/M rules.

SECTION BY SECTION DISCUSSION

The primary goal of this proposed rulemaking is to incorporate the statutory requirements of HB 2912. However, because some sections of Chapter 101 are being opened for revisions, the commission is taking the opportunity to revise the general format of Chapter 101. Currently, Chapter 101 is divided into Subchapter A, General Rules , and Subchapter H, Emissions Banking and Trading . Subchapter A contains §§101.1 - 101.30 which pertain to a wide variety of topics, whereas the rules in Subchapter H pertain only to emissions banking and trading. The commission intends that as rules in Subchapter A are amended, the different sections (or rules) will be moved to more topically specific subchapters, except for the definitions in §101.1, which will remain in Subchapter A. In this rulemaking, the commission is proposing to repeal §§101.6, 101.7, 101.11, 101.12, and 101.15 - 101.17, and move the rule language contained within these sections into a new Subchapter F. The rule language contained in §101.6, Upset Reporting and Recordkeeping Requirements , will be moved to §101.201, with the title being changed to Emissions Event Reporting and Recordkeeping Requirements . Rule language found in §101.7, Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements , will be moved to §101.211, with the title being changed to Scheduled Maintenance, Startup and Shutdown Reporting, and Recordkeeping Requirements . Rule language found in §101.11, Demonstrations , will be moved to §101.221 and §101.222 with revised section titles of Operational Requirements and Demonstrations respectively. Revisions are being proposed to the current language in §§101.201, 101.211, 101.221, and 101.222 which will be discussed later in this section of the preamble. A new §101.223, Excessive Emissions Events , will also be discussed later in this section of the preamble. The rule language found in §101.12, Temporary Exemptions During Drought Conditions ; §101.15, Petition for Variance ; §101.16, Effect of Acceptance of Variance or Permit ; and §101.17, Transfers , will be moved to §§101.224, 101.231, 101.232, and 101.233 respectively, and the new sections will retain the original titles. The changes being made to language of these sections are purely administrative, and will also be discussed later in this section of the preamble.

Section 101.1. Definitions. (Administrative changes)

Due to the addition of new terms, the numbering of the terms defined in this section will be revised. Furthermore, there are numerous administrative corrections being made to definitions which are not directly affected by HB 2912. These changes are being proposed so that the rule language will conform to commission and Texas Register formatting and style standards. Generally, no change in the meaning of these definitions is intended by this rulemaking, except where updates are based on changed facts. These definitions are: fuel oil; maintenance area; and nonattainment area (lead). The proposed administrative definition changes are as follows. The acronym VOC is proposed to be deleted from the definition for carbon adsorber because it is not used again in the definition. The phrase "(See incinerator)" is proposed to be deleted from the definition for commercial incinerator for formatting and style purposes. The acronym VOC is proposed to be expanded to volatile organic compound and the acronym deleted because it is only used once in the definition for component . The words in the definition for criteria pollutant or standard are proposed to be lowercased because they are not a proper noun, and the acronym CFR is proposed to be deleted because it is not used again in the definition. The definition for de minimis is proposed to be italicized because the term is a Latin term. The acronym ERC is proposed to be deleted from the definition for emissions reduction credit because it is not used again in the definition. In the definition for federal motor vehicle regulation , the acronym CFR is proposed to be expanded to Code of Federal Regulations and the acronym deleted because it is not used again in the definition. In the definition for federally enforceable , the acronym CFR is proposed to be expanded to Code of Federal Regulations and acronymed because it is used more than once in the definition. In addition, the words "pursuant to" are proposed to be changed to the word "under" to reduce the legalistic style of writing. The phrase "as defined in this section" is proposed to be added to the definition for flare because the definition refers to the definition for vapor combustor . The definition for fuel oil is proposed to be updated by changing the citation for the American Society for Testing and Materials (ASTM) to reflect the current ASTM specifications and to add two new grades of fuel (1 (low sulfur) and 2 (low sulfur)) as listed in the current specifications. In the definition for gasoline the words "vapor pressure" in the phrase "Reid Vapor Pressure" are proposed to be lowercased because they are not proper nouns, the acronym kPa is proposed to be expanded to kiloPascals, and the acronyms RVP and kPa are proposed to be deleted because they are only used once in the definition. In the definition for high-volume low-pressure (HVLP) spray guns , the acronym HVLP is proposed to be deleted because it is only used once in the definition. In the definition for leak , the acronym VOC is proposed to be expanded to volatile organic compound and the acronyms VOC and ppmv are proposed to be deleted because they are only used once in the definition. In the definition for liquid fuel , the acronym Btu is proposed to be expanded to British thermal unit and the acronym deleted because it is only used once in the definition. A new maintenance area is proposed to be added to the definition for maintenance area which is the Collin County lead maintenance area. In the definition for maintenance plan , the word "Plan" is lowercased because it is not a proper noun, the acronym SIP is proposed to be expanded to state implementation plan, and the acronym SIP deleted because it is only used once in the definition. In the definition for Metropolitan Planning Organization (MPO) , the acronym MPO is proposed to be deleted because it is only used once, and the acronym USC is expanded to United States Code. The acronym MERC is proposed to be deleted from the definition mobile emissions reduction credit (MERC) because it is only used once in the definition. The acronym CFR is proposed to be expanded to Code of Federal Regulations and the acronym deleted from the definition for municipal solid waste landfill because it is only used once in the definition. The words in the definition for national ambient air quality standard are proposed to be lowercased because they are not proper nouns, and the acronyms NAAQS, CO, Pb, NO ₂ , O ₃ , PM ₁₀ , PM _2.5 , and SO ₂ are proposed to be deleted because they are only used once. In the definition for nonattainment area , the words "national ambient air quality standard" and the word "dioxide" in two places are proposed to be lowercased because they are not proper nouns. In addition, the acronym CFR is proposed to be expanded to Code of Federal Regulations and the acronym deleted; the acronym FR is proposed to be added to the term Federal Register because it is used more than once; and the acronyms ELP, NO ₂ , HGA, BPA, DFW, and SO ₂ are proposed to be deleted because they are used only once. Finally, in the definition for nonattainment area , the Collin County lead nonattainment area text is proposed to be deleted and the text "No designated nonattainment areas" is proposed to be added to subparagraph (C) because Collin County has been officially redesignated as a lead maintenance area. In the definition for particulate matter emissions , the acronym CFR is proposed to be expanded to Code of Federal Regulations and acronymed because it is used more than one time; and the acronym SIP is proposed to be expanded to state implementation plan and the acronym deleted because it is only used once. In the definition for PM ₁₀ , the acronym CFR is proposed to be expanded to Code of Federal Regulations and acronymed because it is used more than once, and the number "10" is proposed to be changed to the word "ten" to conform with Texas Register style. In the definition for PM ₁₀ emissions , the acronym CFR is proposed to be expanded to Code of Federal Regulations, the acronym SIP is proposed to be expanded to state implementation plan, and both acronyms are proposed to be deleted because they are only used once in the definition. In the definition for polychlorinated biphenyl compound (PCB) , the acronym CFR is proposed to be expanded to Code of Federal Regulations and the acronyms PCB and CFR are proposed to be deleted because they are only used once in the definition. In the definition for reasonable further progress (RFP) , the acronym SIP is proposed to be expanded to state implementation plan, and the acronyms RFP and SIP are proposed to be deleted because they are only used once in the definition. The acronym USC is proposed to be expanded to United States Code and the acronym deleted from the definition for solid waste because it is only used once. The acronym kPa is proposed to be expanded to kiloPascal and the acronym deleted from the definition for standard conditions because it is used only once in the definition. In the definition for submerged fill pipe , the acronym cm is proposed to be expanded to centimeters because it is only used once in the definition. In the definitions for sulfuric acid mist/sulfuric acid and total suspended particulate , the acronym CFR is proposed to be expanded to Code of Federal Regulations and the acronym deleted because it is used only once in each definition. In the definition for true vapor pressure , the acronyms psia and VOC are proposed to be expanded to pounds per square inch absolute and volatile organic compound respectively, and the acronyms deleted because they are only used once in the definition. In the definition for vapor combustor , the acronym VOC is proposed to be expanded to volatile organic compound and the acronym deleted because it is only used once in the definition. Finally, in the definition for VOC water separator , the acronym is proposed to be expanded to volatile organic compound (VOC) because it is used more than once in the definition.

Section 101.1. Definitions. (HB 2912 changes)

The commission is proposing to define a new term, authorized emissions , which are emissions of one or more air contaminants that the commission has granted either by a permit, rule, or commission order to be released into the atmosphere, or are emissions which meet the requirements of THSC, §382.0518(g). Section 382.0518(g) applies to a grandfathered source. The new definition would also state that for purposes of Subchapter F of this chapter, emissions of carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen are authorized emissions. The commission proposes to move the exempted compounds that are currently listed in the definition of the term unauthorized emissions into the definition of the term authorized emissions . This move is necessary to add clarity to the rule, in that while emissions of the compounds in question are air contaminants, the commission has determined that emissions of these compounds should be authorized during an emissions event or a scheduled maintenance, startup, or shutdown activity. The addition of this definition helps to clarify that any emissions not meeting this definition are considered unauthorized emissions.

The commission is proposing to define a new term emissions event to incorporate the change in the statute. The THSC, §382.0215 adds the term emissions event , defined as "an upset, or unscheduled maintenance, startup, or shutdown activity, that results in the unauthorized emissions or air contaminants from an emissions point." The commission reviewed its current definition of upset , and proposes to replace it with the new term emissions event in §101.201 and §101.222.

The commission proposes to revise the term non-reportable upset to the more correct term non-reportable emissions event to be consistent with the statutory language of HB 2912.

The commission proposes to revise the RQ for ethylene, butenes, and propylene from 5,000 pounds to 100 pounds. These three compounds are not listed in the EPA reportable quantity lists found in 40 CFR Part 302, Table 302.4, or 40 CFR Part 355, Appendix A. The commission also proposes to add to acetaldehyde and toluene, each with an RQ of 100 pounds, to the list of compounds in §101.1(85)(A)(i)(III). The lower RQ recognizes the important role these compounds play in the formation of ozone, and the need for the commission to collect more detailed information on the periodic releases of these compounds in its efforts to attain the ozone standard. The proposal reflects the default RQ of 100 pounds found in proposed §101.1(85)(A)(ii) for any compounds not specifically listed. The commission invites comment on the appropriate levels for the ethylene, butenes, acetaldehyde, toluene, and propylene RQs and the geographical location of these RQs to allow the commission to collect sufficient and meaningful data related to periodic releases. The acronym CFR is proposed to be expanded to Code of Federal Regulations.

To be consistent with the statutory language of HB 2912, the commission is proposing to revise the term reportable upset to the more correct term reportable emissions event . In addition, because the definition of the term unauthorized emission already addresses the fact that the emissions of air contaminants are being released into the atmosphere, the commission proposes to delete the redundant language "of air contaminants" from this definition.

The commission is proposing to define the new term scheduled maintenance, startup, or shutdown activity . As previously stated, HB 2912 provided new terms when addressing emissions events. The THSC, §382.0215, refers to unscheduled maintenance, startup, or shutdown activity; therefore, to be consistent with the new statutory language, the commission proposes to define what is considered to be a scheduled maintenance, startup, or shutdown activity.

The commission is proposing to revise the definition of the term unauthorized emission to reflect the fact that unauthorized emissions are any emissions that have not been authorized by the commission. As discussed previously, the term authorized emission is being proposed to mean emissions of one or more air contaminants that the commission has granted either by a permit, rule, or order of the commission to be released into the atmosphere, or are emissions which meet the requirements of THSC, §382.0518(g).

The commission does not currently have a definition for the term unscheduled maintenance, startup, or shutdown activity . The language of HB 2912 defines unscheduled maintenance, startup, or shutdown activity by defining what it is not considered to be. The commission proposes two new definitions to incorporate the additional statutory language. As discussed previously, the commission proposes to define scheduled maintenance, startup, shutdown activity , and then also define unscheduled maintenance, startup, or shutdown activity as a maintenance, startup, or shutdown activity that does not meet the first definition. The commission is proposing to define the new term, scheduled maintenance, startup, or shutdown activity , using the language in the statute; and to define the term, unscheduled maintenance, startup, or shutdown activity as simply all other maintenance, startup, or shutdown activities which are not scheduled maintenance, startup, or shutdown activities. The phrase "shall not be considered unscheduled only if" in THSC, §382.0215(a), indicates an intent that all activities be considered unscheduled unless an owner or operator satisfies the requirements for an activity to be scheduled.

The commission is proposing to revise the definition of the term upset by adding the clarifying word event to the term. Furthermore, to minimize potential confusion with the upset event definition, the word "unscheduled" is being replaced with the phrase "unplanned or unanticipated." This is being done because the word "unscheduled" is being used in the new definition unscheduled maintenance, startup, or shutdown activity . Finally the commission proposes to delete the redundant phrase "emission of air contaminants."

Section 101.6. Upset Reporting and Recordkeeping Requirements.

The commission is proposing to repeal this section. The commission is proposing to amend the rule text from §101.6, as necessary, to conform with the requirements of HB 2912 and is proposing the amended text in new §101.201.

Section 101.7. Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements.

The commission is proposing to repeal this section. The commission is proposing to amend the rule text from §101.7, as necessary, to conform with the requirements of HB 2912 and is proposing the amended text in new §101.211.

Section 101.11. Demonstrations.

The commission is proposing to repeal this section. The commission is proposing to amend the rule text from §101.11, as necessary, to conform with the requirements of HB 2912 and is proposing the amended text in new §101.221 and §101.222.

Section 101.12. Temporary Exemptions During Drought Conditions.

The commission is proposing to repeal this section. The rule language, with minor administrative changes to conform to the format and style of the Texas Register , is proposed in new §101.224. The repeal and move to a new section is the result of a Chapter 101 formatting change.

Section 101.15. Petition for Variance.

The commission is proposing to repeal this section. The rule language, with minor administrative changes to conform to the format and style of the Texas Register , is proposed in new §101.231. The repeal and move to a new section is the result of a Chapter 101 formatting change.

Section 101.16. Effects of Acceptance of Variance or Permit.

The commission is proposing to repeal this section. The rule language, with minor administrative changes to conform to the format and style of the Texas Register , is proposed in new §101.232. The repeal and move to a new section is the result of a Chapter 101 formatting change.

Section 101.17. Transfers.

The commission is proposing to repeal this section. The rule language, with minor administrative changes to conform to the format and style of the Texas Register , is proposed in new §101.233. The repeal and move to a new section is the result of a Chapter 101 formatting change.

Section 101.201. Emissions Event Reporting and Recordkeeping Requirements.

In an effort to be consistent with HB 2912, codified in THSC, §382.0215, concerning emissions events, the commission is proposing to replace the term upset with the newly defined term emissions event . Because of statutory changes in HB 2912, the notification requirements in proposed new §101.201(a)(2) and (3) (old §101.6(a)(2) and (3)), and the reporting requirements in proposed new §101.201(b) (old §101.6(b)), are being revised to require additional information and to provide more detailed information when it is necessary to report an emissions event. The name of the owner or operator of the facility experiencing an emissions event, along with the facility's air account number is now required. When the agency changes to a Central Registry, the air account number will become a secondary identifier and the "regulated entity" number will become the primary identifier. Therefore, a reference to an air account number includes both the regulated entity number as well as the air account number. The owner or operator of a facility experiencing an emissions event must also provide the location of the emissions event. When reporting the processes and equipment involved in the emissions event, the notification should include the authorization for the emissions (i.e., a permit number, permit by rule, rule citation, etc.) and some type of source identification. The source identification must include the common name for the equipment involved and the most precise agency recognized identifier. This identifier could include emission point numbers and facility identification numbers established for emissions inventories or preconstruction authorization requirements, or the identifier could be emission unit numbers for sources subject to the Federal Operating Permits Program. These same new recordkeeping and reporting requirements are being proposed for the rules concerning scheduled maintenance, startup, and shutdown activities, in §101.211(a)(1) and (2), and (b) (old §101.7(b)(1) and (2), and (c). When reporting and recording the date and time of the emissions event, the date and time recorded should be when the emissions event was discovered, not when it is believed that the emissions event started.

In the notification requirements of §101.201(a)(2) and (3) (old §101.6(a)(2) and (3)), and the reporting requirements in §101.201(b) (old §101.6(b)), the commission is proposing a grammatical correction concerning the reporting of the compound descriptive type of the compounds release. The term exceed is proposed to be replaced with a more correct phrase have equaled or exceeded . The commission is also proposing to clarify the language that when reporting the estimated quantities of the compounds released, the reported numbers should be the total estimated quantities that include both the authorized emissions limit and the total amount of emissions emitted. The commission proposes to remove the exception for reporting opacity only in §101.201(a)(2)(I) and in §101.201(b)(9) for sources other than boilers or combustion turbines referenced in the definition of RQ. Because opacity is considered to be the degree to which emissions reduce the transmission of light and obscure the view of an object in the background, it is simply an indicator and is not the quantity of the air contaminant being emitted, as is required by HB 2912, codified in THSC, §382.0215(b)(3)(E). These same corrections and clarifications are being proposed in the new §101.211(a)(1) and (2), and (b). The agency notification forms for emissions events and scheduled maintenance, startup, and shutdown activities will also be updated to reflect these requirements. The commission is also proposing a new reporting requirement to provide the basis used to determine the quantity of emissions, including the method of calculation (e.g., the emission factors obtained from the EPA emissions factor document, AP-42). Finally, new §382.0216(b)(3)(H), added by HB 2912, requires that the owner or operator provide any additional information necessary to evaluate the emissions event against the criteria listed in the proposed new §101.222(a). This final requirement is optional for the initial notification requirements of proposed §101.201(a)(2) and (3). However, for proposed §101.201(b), concerning final recordkeeping of all reportable and non- reportable emissions events, this requirement is not optional, and this information must also be submitted when complying with proposed §101.201(c) for the final record.

The commission is proposing a revision to the old §101.6(a)(4) language (new §101.201(a)(4)) by deleting the term report and replacing it with the term provide . This proposed change is for clarification only and does not impose any new requirements. The change in terminology is necessary to more clearly state that the source must provide additional information upon request of the executive director.

The commission is proposing to delete the exemption language that was contained in the old §101.6(a)(5) because HB 2912 does not allow this exemption. Therefore, proposed new §101.201 will not allow a facility to avoid reporting under these air rules even if the facility reported its spills and discharges as required under 30 TAC §§327.1 - 327.5 and 327.31. Furthermore, THSC, §382.0215, requires that all emissions events be recorded and reported as necessary. Because the statute no longer allows an exemption from double reporting, all unauthorized emissions of an air contaminant must be recorded and reported in accordance with the requirements of these sections.

The commission is proposing to clarify §101.201(b) (old §101.6(b)), to specify that an owner or operator of a facility must create a final record of all reportable and non-reportable emissions events. This change reflects the commission's existing practice and is consistent with guidance that staff has provided to members of the regulated community.

Proposed new §101.201(c) and (e) incorporates the language in old §101.6(c) and (e), respectively, with minor changes to reflect the new terminology in HB 2912.

The commission is proposing two revisions to the language being proposed in §101.201(d) and §101.211(d) (old §101.6(d) and §101.7(e)). First, the language concerning data return is being revised to make it clear that a CEMS must have a data return such that the CEMS completes at least one operating cycle in each successive 15-minute interval. An operating cycle includes sampling, analyzing, and recording of the data. Second, to implement a provision in HB 2912, THSC, §382.0215(c), the commission proposes to require an owner or operator of a combustion turbine or boiler referenced in the definition of RQ that is equipped with a CEMS, and is required to submit an excess emissions report for other state or federal regulations, to include all of the recordkeeping requirements given under §101.201(b) in the excess emissions report.

The commission is proposing new §101.201(f) to implement the requirement of THSC, §382.0216(k) that on and after January 1, 2003, the notifications and final reports required under that section must be submitted electronically to the commission. The commission is currently developing a method by which this data will be received and will provide updates as the 2003 deadline approaches. Until January 1, 2003, businesses may provide notifications and reports by any viable means, which meet the time frames required in the rules. Consistent with the statutory language in THSC, §382.0215(f), the proposed rule includes an exemption from electronic reporting for businesses which meet the small business definition in THSC, §382.0365(g)(2). While exempt from electronic reporting, a small business will still be required to provide notifications and final reports in accordance with the requirements of the rules. The commission invites comment and specific suggestions for an alternative reporting scheme to be used in times of technical difficulty of the electronic reporting system once it is established.

The commission proposes new §101.201(g) to implement THSC, §382.0216(i), which requires the commission to initiate enforcement actions against owners and operators who fail to report an emissions event, for such failure to report, and for the underlying emissions event itself. New §101.201(g) would also include the statutory language in new THSC, §382.0216(i), that this requirement to initiate enforcement does not apply where an owner or operator reports an emissions event and the report was incomplete, inaccurate, or untimely, unless the owner or operator knowingly or intentionally falsified the information in the report. Incomplete, inaccurate, or untimely reports are not sanctioned by this language and continue to be violations of §101.201(a)(2) and (3), and (b) (old §101.6(a)(2) and (3), and (b) respectively), and the commission may initiate enforcement for such violations. The commission expects to follow its enforcement initiation criteria for violations of §101.201(a)(2) and (3) where incomplete, inaccurate, or untimely reports are submitted.

Section 101.211. Scheduled Maintenance, Startup, and Shutdown Reporting, and Recordkeeping Requirements.

In an effort to improve readability and to be consistent with the statutory requirements of HB 2912, the commission proposes to replace the phrase "maintenance, startup, or shutdown" with the newly defined term scheduled maintenance, startup, or shutdown activity , found in THSC, §382.0215(a). The commission is proposing this change in several places in

101.211.The change reflects the intentional distinction between scheduled and unscheduled maintenance, startup, or shutdown activities.

In addition to the changes to §101.211 discussed earlier in this preamble, the commission proposes to change the language in new §101.211(a) (old §101.7(b)) to clarify that any event that meets the definition of an unscheduled maintenance, startup, or shutdown activity is considered to be an emissions event, and therefore, is subject to the reporting requirements of §101.201 and the exemption criteria specified in §101.222(a). This clarification is consistent with the requirements of HB 2912 and would clarify the commission's existing practice since the rule was amended in 1997.

The commission proposes changes in the language of §101.211(b) to clarify that the date and time of the maintenance, startup, or shutdown in the notification of an activity, is considered to be the expected date and time. For the final reporting and recordkeeping purposes, the event date and time should be the exact or actual event date and time. Furthermore, the commission is proposing that the final records must be completed as soon as practicable, but not later than two weeks after the end of the activity, not the start of the activity. For shutdowns, the end of the activity would be the cessation of operation of a facility for any purpose.

The commission proposes new §101.211(c) to clarify that, if for any reason, the information provided in the initial notification is different than what is recorded as the final record, the owner or operator must submit this revised information within two weeks after the end of the activity. The owner or operator of a source must submit a final report for any scheduled maintenance, startup, or shutdown activity where an initial notification was provided even if the unauthorized emissions did not actually exceed an RQ. This final report is necessary to track information collected about maintenance, startup, and shutdown activities in the commission's centralized database, and to provide closure to initial reports of such activities.

Section 101.221. Operation Requirements.

The commission proposes a new §101.221(a), which states, "No person shall cause, suffer, allow, or permit unauthorized emissions." The THSC, §382.0215(a) provides a definition for the new term emissions event which includes the term unauthorized emissions . New §101.221(a) is necessary to complete the connection between the concepts in the statute and the commission's existing rules. Simply put, it is a violation to have unauthorized emissions unless an owner or operator can demonstrate that the emissions should be exempt. This change reflects existing practice and is consistent with guidance that agency staff has provided to members of the regulated community.

As previously stated, Chapter 101 is being reformatted, thus, the commission is moving the old §101.7(a) to §101.221(b). The proposed new §101.221 rule primarily concerns operational requirements of sources. Because the old §101.7(a) related to the operation of pollution emission capture equipment and abatement equipment, the most logical place for this rule language is in proposed new §101.221.

The commission proposes to move, without any changes, the operational requirements found in old §101.11(c) concerning smoke generators and other devices used to train inspectors in the evaluation of visible emissions into §101.221(c) and to move the operational requirements currently in §101.11(d) concerning equipment, machines, devices, flues, and or contrivances to be used at a domestic residence into §101.221(d). Similarly, the commission proposes to move the existing rule text in §101.11(e) concerning sources which cannot be controlled or reduced due to a lack of technological knowledge into §101.221(e). The existing rule language in §101.11(f) relating to the burden of proof to demonstrate that the exemption criteria have been met is on the owner or operator of the source, is being proposed in §101.221(f), with minor changes. The minor changes concern revision of rule citations and replacement of the term upsets with the new term emissions events . The commission proposes to move the existing rule language found in §101.7(g), which relates to the commission's power to require corrective action as necessary to minimize emissions, into §101.221(g), without revisions.

Section 101.222. Demonstrations.

The commission proposes to move the existing rule language from §101.11(a) and (b) to new §101.222(a) and (b) respectively. As proposed in other sections of this proposal, the commission proposes in this section to replace the terms upset and maintenance, startup, or shutdown with the terms emissions events and scheduled maintenance, startup, or shutdown activity , respectively in order to be consistent with the statutory language of HB 2912.

The THSC, §382.0216(f), states that "The commission by rule may establish an affirmative defense to a commission enforcement action if the emissions event meets criteria defined by commission rule. In establishing rules under this subsection, the commission at a minimum must require consideration of the factors listed in Subsections (b)(1) - (6)." This affirmative defense largely parallels existing commission practice of evaluating factors listed in existing §101.11(a). In reviewing the criteria provided in HB 2912, codified in THSC, §382.0216(b)(1) - (6), the commission determined that most of those factors were already included in the rule and proposes in this rulemaking to add the new statutory factors to the existing rule language being proposed in §101.222.

The first criterion from HB 2912 concerns the frequency of the facility's emissions event. The commission proposes to revise old §101.11(a)(8) (new §101.222(a)(8)) to incorporate this factor. The rule would now read, "the unauthorized emissions were not part of a frequent or recurring pattern indicative of inadequate design, operation, or maintenance." The second new factor relates to the cause of the emissions event, which is included in the old §101.11(a)(1), proposed new §101.222(a)(1). The third new factor relates to the quantity and impact on human health or the environment of the emissions event. The commission believes that this concept is covered under the old §101.11(a)(9), new §101.222(a)(10), in the requirement that the event does not cause or contribute to a condition of air pollution. The fourth new factor relates to duration of the emissions event, which is incorporated in existing §101.11(a)(5), new §101.222(a)(5). The fifth factor relates to the percentage of a facility's total annual operating hours during which unauthorized emissions occurred. The commission proposes to add new §101.222(a)(9) to address this factor. In this regard, the commission will compare the number of hours when emissions events have occurred to the total number of operating hours to determine if the percentage of unauthorized emissions is unreasonably high. As with the commission's review of each of the factors, this review will be performed on a case-by-case basis. The sixth new factor relates to the need for the startup, shutdown, and maintenance activities. The commission is proposing to revise the old §101.11(a)(3) language in new §101.222(a)(3) to incorporate this factor. The new language is proposed to read, "the air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing emissions and reducing the number of emissions events."

The commission proposes to move the criterion for scheduled maintenance, startup, or shutdown activities in §101.11(b) to new §101.222(b), with only one minor change. In an effort to remove redundant rule language, the phrase "air emissions limitations established in permits, rules, and orders of the commission, or as authorized by TCAA, §382.0518(g)" is being replaced with "authorized emission limitation."

Section 101.223. Excessive Emissions Events.

The commission proposes to add new §101.223 to establish criteria to determine when a facility has had excessive emissions events and to identify requirements for source owners and operators when the executive director determines a facility has had excessive emissions events. One emissions event may constitute an excessive emission event. New §101.223 would also establish the framework in which the commission will determine that a site has had chronic excessive emissions events.

The THSC, §382.0216(b) requires the commission to establish criteria to determine when emissions events are considered excessive. The criteria must include: 1) the frequency of the facility's emissions events; 2) the cause of the emissions event; 3) the quantity and impact on human health or the environment of the emissions event; 4) the duration of the emissions event; 5) the percentage of a facility's total annual operating hours during which emissions events occur; and 6) the need for startup, shutdown, and maintenance activities.

The commission is proposing these criteria in §101.223(a) as the criteria the executive director will use to evaluate when emissions events are considered excessive. Just as the commission or executive director determines if a single emissions event meets the exemption criteria provided in §101.222 on a case-by-case basis, the commission or executive director will conduct evaluations to determine if a facility has excessive emissions events on a case-by-case basis. Case-by-case determinations are necessary because the rules in Chapter 101 apply statewide to all types of facilities. The commission does not have the resources to develop case-specific criteria limits for each of the different types of facilities in the state which have the potential to emit air contaminants. In addition, case-by-case reviews allow for a more thorough evaluation of all relevant information about an emissions event.

The commission proposes that when the executive director determines that a facility has excessive emissions events, the executive director will provide written notification to the owner or operator. The owner or operator must then take action to reduce emissions, either in the form of a CAP; or if the emissions are sufficiently frequent, quantifiable, and predictable, the owner or operator may file a letter of intent to obtain authorization from the commission for the emissions.

The commission is proposing in §101.223(b)(1) minimum requirements for a CAP. At a minimum the CAP must: identify the cause or causes of each emissions event in question, including all contributing factors that led to each emissions event; specify the control devices or other measures that are reasonably designed to prevent or minimize similar emissions events in the future; identify operational changes the owner or operator will take to prevent or minimize similar emissions events; and specify time frames within which the owner or operator will implement the components of the CAP. The time frame, or implementation schedule, of the CAP will be enforceable by the commission. To obtain closure of these actions, the commission is proposing a requirement in §101.223(b)(2) that the owner or operator must obtain commission approval within 120 days of initial filing of the CAP.

The THSC, §382.0216(d) requires specific dates concerning the review and approval of CAPs. If the commission does not disapprove a plan within 45 days, the plan is deemed approved. Within this 45-day period, if the executive director provides written notification of disapproval, the owner or operator will have 15 days to respond, unless another deadline is specified. The owner or operator may request a written approval of the CAP, in which case the commission must take a final written action within 120 days. Finally, if the commission determines that the CAP is inadequate to prevent or minimize emissions and emissions events, the commission may revise the approved CAP. Under THSC, §382.0216(d), the commission must approve all CAPS. An approved CAP under §101.223(b)(2) is not an authorization for unauthorized emissions.

The THSC, §382.0216(c) specifies timelines for the filing of a permit application or obtaining authorization if a permit by rule or standard permit is feasible. The owner or operator will have 15 days to file a letter of intent to obtain authorization for the emissions. If authorization is to be obtained by a permit application, the application must be filed within 120 days after filing the letter of intent. If the permitting option is chosen, the emissions must meet permitting criteria established in 30 TAC Chapter 116. If permitting criteria cannot be met, the owner or operator must file a CAP. For emissions authorizations through a permit by rule or a standard permit, the authorization must be obtained within 120 days after filing the letter of intent. If the commission denies any of these requests for authorization, the owner or operator must file for a CAP within 45 days after receiving notice of the commission denial.

Finally, the commission proposes new §101.223(c) to describe when a site may be considered to have chronic excessive emissions events. When a site has received two or more excessive emissions events determinations from the executive director within a five-year time frame, the executive director may forward those determinations to the commission for issuance of an order finding that the site has chronic excessive emissions events and requiring the owner or operator to take corrective action to reduce emissions events and to submit a CAP. This section would also establish the following criteria for the commission to consider in determining whether a site has chronic excessive emissions events: 1) the size, nature, and complexity of the site's operations; and 2) the frequency of the site's emissions events. The THSC, §382.0216(j) requires the commission to consider chronic excessive emissions events in its review of a person's compliance history.

In addressing the HB 2912 requirements concerning chronic excessive emissions events, the commission is proposing that the determination would be based on a review of the whole site, not just each facility at a site. The rationale for this proposal is to use consistent terminology between the Chapter 101 rules and the compliance history rules in 30 TAC Chapter 60 that the commission has proposed in the April 12, 2002 issue of the Texas Register . Under §60.1(c)(4), chronic excessive emissions events at a site are components to be included in a person's compliance history specific to the site which is under review. Because the term site is not currently defined in Chapter 101, the commission is proposing to add the same definition of site as in proposed §60.2(a). This will also allow consistency between the two regulations.

The THSC, §382.0216(g), states: "A person may not claim an affirmative defense to a commission enforcement action if the person failed to take corrective action under a CAP approved by the commission within the time prescribed by the commission and an emissions event recurs because of that failure." The commission proposes to add §101.223(d) to incorporate this statutory language.

Section 101.224. Temporary Exemptions During Drought Conditions.

The commission is proposing to move the existing rule language in §101.12 into new §101.224, without changing the intent of the rule. The commission is proposing only two minor revisions to the language. First, the name of the commission's air permitting division is being revised from Office of Air Quality, New Source Review Division to Office of Permitting, Remediation, and Registration, Air Permits Division. Second, the word "utilize" is replaced with the more grammatically correct word "use."

Section 101.231. Petition for Variance.

The commission is proposing to move the rule language in §101.15 into new §101.231, without changing the intent of the rule. The only proposed revision to the section is to replace "Texas Natural Resource Conservation Commission (TNRCC or commission)" with "commission" to facilitate the commission name change required by HB 2912.

Section 101.232. Effect of Acceptance of Variance or Permit.

The commission is proposing to move the rule language in §101.16 into new §101.232, without changing the intent of the rule. The only revisions being proposed are grammatical and stylistic and include: changing "pursuant to" to "under;" changing "TNRCC" to "commission;" and "Act" to "TCAA."

Section 101.233. Transfers.

The commission proposes to move the existing rule language in §101.17 into new §101.233, without changing the intent of the rule. The only proposed revision to the existing language is to replace the phrase "Texas Natural Resource Conservation Commission (TNRCC or commission)" with the term "commission," to facilitate the commission name change required by HB 2912.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, determined that for each year of the first five-year period the proposed rulemaking is in effect, there will be no significant fiscal implications for the commission due to administration and enforcement of the proposed rules. However, there may be significant fiscal implications to units of state and local government that experience excessive emissions events. An emissions event is defined as any upset event or unscheduled maintenance, startup, or shutdown activity that results from unauthorized emissions from an emissions point. There would be no additional costs to units of state and local government that do not have excessive emissions events.

The proposed rulemaking is intended to make changes to the commission's general air quality rules in order to implement certain provisions of HB 2912. The bill requires the agency to establish criteria to determine when emissions events are considered excessive, and the corrective actions required to minimize these emissions. The criteria to be used, as required by HB 2912, will include the following: the frequency of the facility's emissions events; the cause of the emissions event; the quantity and impact on human health or the environment of the emissions event; the duration of the emissions event; the percentage of a facility's total annual operating hours during which emissions events occur; and the need for startup, shutdown, and maintenance activities. The bill also made changes to reporting requirements for facilities that experience emissions events; however, the commission does not anticipate significant additional costs to units of state and local government due to the updated reporting requirements.

The proposed rulemaking would affect all facilities with the potential to emit unauthorized air emissions, and would include any facility operating under one of the following authorizations: new source review (NSR) permit, permit by rule, standard permit, federal operating permit, orders of the commission, or grandfathered sources. Although the total number of affected facilities is unknown, the commission estimates there are more than 7,000 facilities operating under an air permit, and another 6,000 or more facilities operating via a permit by rule. The commission estimates that approximately 5%, or 350, of the permitted facilities are owned and operated by units of state and local government, and a comparatively small number of facilities operating under a permit by rule are owned and operated by units of state and local government.

The commission anticipates that very few, if any, facilities identified as having excessive emissions events will be units of state and local government. The commission currently records emissions events from approximately 550 air accounts per year, some of which may be units of state and local government. Using the proposed excessive emissions event criteria, the commission anticipates the emissions events from fewer than five facilities will be classified as excessive on an annual basis. For those units of government with facilities that are determined to have excessive emissions events, the overall costs resulting from implementation of the proposed amendments will depend on the provisions of the CAP.

If the commission determines that a facility's emissions events are excessive, the owner or operator of the facility would have to provide the commission with a CAP, or the owner or operator could opt to apply for a permit covering the excessive emissions if they are sufficiently frequent, predictable, and quantifiable. A CAP would be required to specify the additional pollution control devices, changes to operations, additional monitoring, or other measures that are reasonably designed to prevent or minimize excessive emissions events. Obtaining a permit would authorize certain emissions, provided the emissions achieve current permitting and emissions control requirements. Either option would likely result in increased expenditures by the owner or operator of a facility to bring its operations into compliance with the commission's regulations.

Compliance costs are anticipated to vary greatly, depending on the CAP, the type and location of the facility affected, and the required capital and operation improvements. The following costs are examples of what an affected facility may incur to comply with the proposed rulemaking. If an owner or operator of a facility decides to upgrade pollution control devices, the cost is anticipated to range as much as $6,000 to $10,000 per ton of emission reduction. If the CAP includes increased monitoring, the commission estimates that the cost to install a monitoring system for a large combustion source could range from $100,000 to $150,000. If an owner or operator of a facility applies for a permit to authorize the excessive emissions, the owner or operator would likely incur additional capital costs and permit fees to comply with the permit requirements. The permit fee is expected to range between $450 and $75,000 per project application, depending on the overall cost of capital improvements. If the capital costs to meet the permit requirements are less than $300,000, the fee is $450. If the capital costs of the project are greater than $300,000, the fee is 0.15% of the anticipated capital cost of the project, with a maximum limit of $75,000.

PUBLIC BENEFITS AND COSTS

Mr. Davis has also determined that for each of the first five years the proposed rulemaking is in effect, the public benefit anticipated as a result of implementing the proposed rules will be potentially increased environmental protection through the reduction of unauthorized emissions by requiring additional reporting and corrective action measures.

The proposed rulemaking is intended to make changes to the commission's general air quality rules to implement certain provisions of HB 2912. The bill requires the agency to establish criteria for determining when emissions events are considered excessive, and the corrective actions required to minimize these emissions. The bill also made changes to reporting requirements for facilities that experience emissions events; however, the commission does not anticipate significant additional costs to individuals and businesses due to the updated reporting requirements.

The proposed rulemaking would affect all facilities with the potential to emit unauthorized air emissions, and would include any facility operating under one of the following authorizations: NSR permit, permit by rule, standard permit, federal operating permit, orders of the commission, or grandfathered sources. Although the total number of affected facilities is unknown, the commission estimates that there are more than 7,000 facilities operating under an air permit, and another 6,000 or more facilities operating via a permit by rule. The commission anticipates that very few facilities will be classified as having excessive emissions events. The commission currently records emissions events from approximately 550 air accounts per year. Using the proposed excessive emissions event criteria, the commission anticipates the emissions events from fewer than five facilities will be classified as excessive on an annual basis. For those facilities that are determined to have excessive emissions events, the overall costs resulting from implementation of the proposed rules will depend on the provisions of the CAP.

If the commission determines that a facility's emissions events are excessive, the owner or operator of the facility would have to provide the commission with a CAP, or the owner or operator could opt to apply for a permit covering the excessive emissions if they are sufficiently frequent, predictable, and quantifiable. A CAP would be required to specify the additional pollution control devices, changes to operations, additional monitoring, or other measures that are reasonably designed to prevent or minimize excessive emissions events. Obtaining a permit would authorize certain emissions, provided the emissions achieve current permitting and emissions control requirements. Either option would likely result in increased expenditures by the owner or operator of a facility to bring its operations into compliance with the commission's regulations.

Compliance costs are anticipated to vary greatly, depending on the CAP, the type and location of the facility affected, and the required capital and operation improvements. The following costs are examples of what an affected facility may incur to comply with the proposed rulemaking. If an owner or operator of a facility decides to upgrade pollution control devices, the cost is anticipated to range as much as $6,000 to $10,000 per ton of emission reduction. If the CAP includes increased monitoring, the commission estimates that the cost to install a monitoring system for a large combustion source could range from $100,000 to $150,000. If an owner or operator of a facility applies for a permit to authorize the excessive emissions, the owner or operator would likely incur additional capital costs and permit fees to comply with the permit requirements. The permit fee is expected to range between $450 and $75,000 per project application, depending on the overall cost of capital improvements. If the capital costs to meet the permit requirements are less than $300,000, the fee is $450. If the capital costs of the project are greater than $300,000, the fee is 0.15% of the anticipated capital cost of the project, with a maximum limit of $75,000.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There may be adverse fiscal implications, which could be significant, for small or micro- businesses due to implementation of the proposed rulemaking, which is intended to make changes to the commission's general air quality rules in order to implement certain provisions of HB 2912. The bill requires the agency to establish criteria for determining when emissions events are considered excessive, and the corrective actions required to minimize these emissions. The bill also made changes to reporting requirements for facilities that experience emissions events; however, the commission does not anticipate significant additional costs to small and micro-businesses due to the updated reporting requirements.

The proposed rulemaking would affect all facilities with the potential to emit unauthorized air emissions, and would include any facility operating under one of the following authorizations: NSR permit, permit by rule, standard permit, federal operating permit, orders of the commission, or grandfathered sources. Although the total number of affected facilities is unknown, the commission estimates there are more than 7,000 facilities operating under an air permit, and another 6,000 or more facilities operating via a permit by rule. Many of these facilities are anticipated to be small and micro- businesses.

The commission anticipates that very few, if any, facilities will be classified as having excessive emissions events. The commission currently records emissions events from approximately 550 air accounts per year. Using the proposed excessive emissions events criteria, the commission anticipates the emissions events from fewer than five facilities will be classified as excessive on an annual basis. For those facilities that are determined to have excessive emissions events, the overall costs resulting from implementation of the proposed rules will depend on the provisions of the CAP.

If the commission determines that a facility's emissions events are excessive, the owner or operator of the facility would have to provide the commission with a CAP, or the owner or operator could opt to apply for a permit covering the excessive emissions if they are sufficiently frequent, predictable, and quantifiable. A CAP would be required to specify the additional pollution control devices, changes to operations, additional monitoring, or other measures that are reasonably designed to prevent or minimize excessive emissions events. Obtaining a permit would authorize certain emissions, provided the emissions achieve current permitting and emissions control requirements. Either option would likely result in increased expenditures by the owner or operator of a facility to bring its operations into compliance with the commission's regulations.

Compliance costs are anticipated to vary greatly, depending on the CAP, the type and location of the facility affected, and the required capital and operation improvements. The following costs are examples of what an affected facility may incur to comply with the proposed rulemaking. If an owner or operator of a facility decides to upgrade pollution control devices, the cost is anticipated to range as much as $6,000 to $10,000 per ton of emissions reduction. If the CAP includes increased monitoring, the commission estimates that the cost to install a monitoring system for a large combustion source could range from $100,000 to $150,000. If an owner or operator of a facility applies for a permit to authorize the excessive emissions, the owner or operator would likely incur additional capital costs and permit fees to comply with the permit requirements. The permit fee is expected to range between $450 and $75,000 per project application, depending on the overall cost of capital improvements. If the capital costs to meet the permit requirements are less than $300,000, the fee is $450. If the capital costs of the project are greater than $300,000, the fee is 0.15% of the anticipated capital cost of the project, with a maximum limit of $75,000.

The following is an analysis of the costs per employee for small and micro-businesses that are required to install additional monitoring systems at a large combustion source to comply with the proposed rules. Small and micro-businesses are defined as having fewer than 100 or 20 employees respectively. A small business that is required by the commission to install additional monitoring systems would have to pay up to an additional $1,500 per employee to comply with the proposed rules. A micro-business that is required by the commission to install additional monitoring systems would have to pay up to an additional $7,500 per employee to comply with the proposed rules. Because the proposed rulemaking could result in a number of different potential costs for affected small and micro- businesses, this example was chosen because it is one of the most costly likely to affect a small or micro-business.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rulemaking does not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory impact analysis (RIA) requirements of Texas Government Code, §2001.0225 and has determined that the proposed rulemaking does not meet the definition of a "major environmental rule." Furthermore, it does not meet any of the four applicability requirements listed in §2001.0225(a). A "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 proposed amendments would implement certain requirements of HB 2912. Specifically, the amendments require additional reporting for each emissions event; require excess emission reports from certain boilers and combustion turbines to have all required reporting information to satisfy as final reports; establish an affirmative defense to an emissions event, including statutory limitations as to when that defense is unavailable, and clarify that the burden of proof for an affirmative defense is on the person claiming the defense; incorporate statutory requirements for filing a CAP or intent to obtain authorization for emissions, and associated required deadlines; create provisions for required contents of CAPs and commission approval and enforcement of CAPs; establish criteria for determining when emissions events are excessive; and define a process for the executive director to determine when excessive emissions events have occurred and criteria for the commission to consider in determining when an owner or operator has chronic excessive emissions events. In addition, the amendments would revise the definition section, including a change to the RQ for ethylene, butenes, acetaldehyde, toluene, and propylene, and revise the general format of Chapter 101. The amendments, which implement HB 2912, §5.01 and §18.14, add new or more stringent requirements, and do not limit the commission's existing authority requiring reporting or permitting of emissions and authority to bring enforcement action under the THSC and Texas Water Code (TWC). The amendments 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.

In addition, Texas Government Code, §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. The amendments do not exceed a standard set by federal law or exceed an express requirement of state law. Further, there is no contract or delegation agreement that covers the topic that is the subject of this rulemaking. As discussed in the STATUTORY AUTHORITY section of this preamble, this rulemaking was not developed solely under the general powers of the agency, but is authorized by the provisions cited in that section to implement certain requirements of HB 2912 and modify the reporting requirements for specific air contaminants. Therefore, this rulemaking is not subject to the regulatory analysis provisions of §2001.0225(b), because the proposed rules do not meet any of the four applicability requirements.

The commission invites public comment regarding the draft RIA determination during the public comment period.

TAKINGS IMPACT ASSESSMENT

The commission completed a takings impact analysis for the proposed rules. The specific purpose of this rulemaking is to implement certain sections of HB 2912, modify the reportable quantities of ethylene and propylene, and revise the format of Chapter 101, as discussed elsewhere in this preamble. The amendments specifically propose to implement the requirements of TCAA, §382.0215 and §382.0216, regarding the reporting of upset and maintenance emissions. Promulgation and enforcement of the proposed rules would be neither a statutory nor a constitutional taking because they do not affect private real property. Specifically, the amendments do not affect private property in a manner which restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Therefore, the proposed rules do not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission 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 rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and determined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)). No new sources of air contaminants will be authorized and the proposed revisions will maintain the same level of emissions control as the existing rules. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action complies with 40 CFR 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.

The commission solicits comments on the consistency of the proposed rulemaking with the CMP during the public comment period.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Chapter 101 contains applicable requirements under 30 TAC Chapter 122, Federal Operating Permits ; therefore, owners or operators subject to the Federal Operating Permit Program must, consistent with the permit revision process in Chapter 122, revise their operating permits to include the revised Chapter 101 requirements for each emissions unit at their sites affected by these revisions.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin, Texas, on May 21, 2002, at 10:00 a.m., at the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, a commission staff member will be available to discuss the proposal 30 minutes prior to each hearing and will answer questions before and after each hearing.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend a hearing should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Ms. Lola Brown, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log Number 2001-075-101-AI. Comments must be received by 5:00 p.m., May 28, 2002. For further information, please contact Troy Dalton of the Enforcement Division at (512) 239-1541 or Alan Henderson of the Policy and Regulations Division at (512) 239-1510.

Subchapter A. GENERAL RULES