Title 30, Part 1

The Texas Natural Resource Conservation Commission (commission) adopts the rules review and readopts Chapter 116, Control of Air Pollution by Permits for New Construction or Modification , in accordance with the requirements of Texas Government Code, §2001.039, added by Acts 1999, 76th Legislature, Chapter 1499, §1.11(a), which requires state agencies to review and consider for readoption each of their rules every four years. The review must include an assessment of whether the reasons for the rules continue to exist. The proposed notice of intention to review was published in the April 12, 2002 issue of the Texas Register (27 TexReg 3218).

CHAPTER SUMMARY

Chapter 116 requires preconstruction authorization to be obtained prior to construction or modification of a facility which may emit air contaminants into the air of Texas. Chapter 116 consists of ten subchapters: Subchapter A, Definitions; Subchapter B, New Source Review Permits; Subchapter C, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major sources (FCAA §112(G), 40 CFR Part 63); Subchapter D, Permit Renewals; Subchapter E, Emergency Orders; Subchapter F, Standard Permits; Subchapter G, Flexible Permits; Subchapter H, Voluntary Emission Reduction Permits; Subchapter I, Electric Generating Facilities; and Subchapter J, Multiple Plant Permits.

Subchapter A, Definitions, contains definitions used in this chapter.

Subchapter B, New Source Review Permits, contains provisions addressing: applicability, permit applications; general and special conditions; compliance provisions; compliance history; public notification and comment procedures; permit fees; nonattainment review; prevention of significant deterioration review; and emission reductions offsets.

Subchapter C, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major sources (FCAA §112(G), 40 CFR Part 63), provides requirements for applicability, exclusions, and application and public notice requirements.

Subchapter D, Permit Renewals, provides requirements for notification of permit holder, permit renewal application, public notification and comment procedures, renewal application fees, and review schedule.

Subchapter E, Emergency Orders, provides for applicability of emergency orders.

Subchapter F, Standard Permits, provides requirements: for types of standard permits; issuance of standard permits; public participation in issuance of standard permits; duration and renewal of registrations to use standard permits; standard permit amendment and revocation; delegation; applicability; registration to use a standard permit; standard permit fees; general conditions; standard permits for pollution control projects; installation and/or modification of oil and gas facilities; and municipal solid waste landfills.

Subchapter G, Flexible Permits, provides requirements: for applicability; flexible permit application; application review schedule; general and special conditions; emission caps and individual emission limitations; implementation schedule for additional controls; significant emission increase; limitation on physical and operational changes; amendments and alterations; distance limitations; compliance history; public notice and comment; flexible permit fee; and flexible permit renewal.

Subchapter H, Voluntary Emission Reduction Permits, provides requirements: for eligibility; voluntary emission reduction permit (applications; project emission reduction credits; application review schedule; general and special conditions; deferral of emission reductions; modifications; public participation and initial issuance; notice and comment hearings for initial issuance; notice of final action; voluntary emission reductions permit application fee; voluntary emission reduction permit renewal; and delegation).

Subchapter I, Electric Generating Facilities, provides requirements: for applicability; electric generating facility (EGF) permit applications; general and special conditions; emissions monitoring and reporting requirements; permits for grandfathered and electing EGFs in El Paso County; public participation for initial issuance; notice and comment hearings for initial issuance; notice of final action; modifications; and renewal.

Subchapter J, Multiple Plant Permits, provides requirements: for applicability; multiple plant permit (MPP) applications; application review schedule; general and special conditions; modifications; amendments and alterations; MPP public notice; MPP public comment procedures; MPP application fee; MPP renewal; and delegation.

ASSESSMENT OF WHETHER THE REASONS FOR THE RULES CONTINUE TO EXIST

The commission determined that the reasons for Chapter 116 continue to exist. Chapter 116 implements critical provisions of the Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), Chapter 382, as well as 42 United States Code, §§7401 - 7671q, the Federal Clean Air Act (FCAA). Chapter 116 implements the commission's objectives to protect air quality through preconstruction review authorizations by providing procedures for action on any application for a permit for construction or modification or renewal of a permit for a facility that will emit air contaminants into the air of the state. Chapter 116 was originally adopted April 21, 1971, and has been amended to address changes to various state and federal statutes and federal regulations.

Chapter 116 was adopted and amended under THSC, TCAA, §382.017, concerning Rules and §382.051 concerning Permitting Authority of Commission.

Specifically, Chapter 116 implements THSC, TCAA, including §382.012, which provides for the state air control plan; §§382.015 - 382.017, which provide for the power to enter property; require monitoring, examination of records, and the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.021 and §382.022, which provide for sampling methods and procedures for sampling, and investigations; §§382.022 - 382.0205, which provide the commission authority to protect against adverse effects related to acid deposition; §§382.023 - 382.026, relating to agency orders and emergencies; §382.0365, relating to the small business stationary source assistance program; §382.040 and §382.041, which provide for public records and submission of confidential information; §382.051, which provides the commission the authority to issue air permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; §382.05101, which provides the commission authority to develop criteria or rules for de minimis air contaminants; §382.0511, which provides the commission authority to consolidate permits; §382.0512, relating to modification of an existing facility; §§382.0513 - 382.0515 and 382.0517, which provide authority for the commission to establish and enforce permit conditions, require sampling and monitoring, require permit applications, and determine administrative completeness of applications; §§382.0518 - 382.05196, 382.052, and 382.053, which provide for preconstruction permits; voluntary emissions reduction permits requirements, emission reduction, multiple plant permits, standard permits, and permits by rule, permits to construct or modify a facility within 3,000 feet of schools and prohibitions on the issuance of construction permits for lead smelting plants at certain locations; §382.055, relating to review and renewal of preconstruction permits; §382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings; §382.057 and §382.058, relating to exemptions; §382.058, relating to construction of certain concrete plants; §382.061, which provides for delegation of powers and duties under §§382.051 - 382.0563; §382.062, which provides for application, permit and inspection fees; and under Texas Water Code (TWC), including §5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of TWC and other laws of this state; §5.105, which provides the commission with the authority to establish and approve commission policy; and §5.122, which provides delegation of uncontested matters to the executive director. Section 116.112, Distance Limitations, implements the statutory provisions in the Texas Solid Waste Disposal Act, §361.102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply.

Chapter 116 implements sections of Title I, Part A of the FCAA that relate to preconstruction permitting and establishment of enforceable emission limits, which includes, but is not limited to, FCAA, §110(a)(2)(A) and (C). In addition, Subchapter C implements the requirements of Title I, Part A of the 1990 FCAA, §112(g), as set forth in 40 Code of Federal Regulations (CFR) Part 63, §§63.40 - 63.44, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (§112(g)). In proposing Chapter 116, Subchapter C, the executive director certified that the proposed §112(g) program under Chapter 116 satisfied all applicable requirements established by 40 CFR §§63.40 - 63.44.

More specifically, Subchapter A, Division 5, Nonattainment Review, implements FCAA, Title I, Part D, Plan Requirements for Nonattainment Areas, including, but not limited to, §173, Permit Requirements. Subchapter A, Division 6, Prevention of Significant Deterioration implements FCAA, Title I, Part C, Prevention of Significant Deterioration of Air Quality, including, but not limited to, §165, Preconstruction Requirements and §167, Enforcement.

Chapter 116 also implements 40 CFR Part 51, Subpart I, Review of New Sources and Modifications; §51.165, Permit Requirements; and §51.166, Prevention of Significant Deterioration of Air Quality and the sections of 40 CFR Part 52, Subpart SS, Texas Implementation Plans, relating to preconstruction permitting and/or specific references to Chapter 116. Section 116.115 implements TCAA, §382.003 requirements for modifications and changes to permitted facilities.

In addition, Chapter 116 provides a compliance and enforcement mechanism for federal rules including, but not limited to: 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans; 40 CFR Part 52, Approval and Promulgation of Implementation Plans; 40 CFR Part 59, National Volatile Organic Compound Emission Standards for Consumer and Commercial Products; 40 CFR Part 60, Standards of Performance for New Stationary Sources (NSPS); 40 CFR Part 61, National Emission Standards for Hazardous Air Pollutants (NESHAPS); and 40 CFR Part 63, National Emission Standards for Hazardous Air Pollutants (HAPs) for Source Categories.

PUBLIC COMMENT

A public hearing was not held on this rules review. The public comment period closed May 13, 2002. No comments on whether the reasons for the rules continue to exist were received.

TRD-200203179

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Filed: May 23, 2002

The Texas Natural Resource Conservation Commission (commission) adopts the rules review and readopts Chapter 220, Regional Assessments of Water Quality , in accordance with the requirements of Texas Government Code, §2001.039 (added by Acts 1999, 76th Legislature, Chapter 1499, §1.11(a)), which requires state agencies to review and consider for readoption each of their rules every four years. The review must include an assessment of whether the reasons for the rules continue to exist. The proposed notice of intention to review was published in the March 22, 2002, issue of the Texas Register (27 TexReg 2265).

CHAPTER SUMMARY

In accordance with Texas Water Code (TWC), §26.0135, Chapter 220 establishes the Texas Clean Rivers (TCR) program, a water quality management program involving monitoring and assessment of water quality by watershed and river basin. Chapter 220 consists of two subchapters. Subchapter A establishes procedures for implementing the TCR program by monitoring and assessment of water quality conditions, by river basin, to support water quality management decisions necessary to maintain and improve the quality of the state's water resources (as defined in TWC, §26.001(5)). Subchapter B establishes the Water Quality Assessment Fee program, which is authorized to recover no more than $5.0 million annually. The subchapter provides that the fees recovered shall be used only to accomplish the purposes of the TCR program.

ASSESSMENT OF WHETHER THE REASONS FOR THE RULES CONTINUE TO EXIST

The commission determined that the reasons for the rules in Chapter 220 continue to exist. However, implementation of House Bill 2912, Article 3, §§3.04 - 3.06, 77th Legislature, 2001, which amended TWC, §26.0135, will necessitate substantial revision of this chapter. The commission has convened a rulemaking in Rule Log Number 2001-098-220-WT to revise Chapter 220, which would repeal and reformat provisions that are still applicable to the TCR program and move the fees to new Chapter 21, Water Quality Fees . The proposal for this rulemaking was published in the April 26, 2002 issue of the Texas Register (27 TexReg 3459).

PUBLIC COMMENT

The public comment period closed on April 22, 2002. No comments on whether the reasons for the rules continue to exist were received.

TRD-200203197

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Filed: May 23, 2002