Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 19.
ELECTRONIC REPORTING
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts new §§19.1, 19.3, 19.10, 19.12, and 19.14. Sections 19.1
and 19.10 are adopted
with changes
to the
proposed text as published in the September 8, 2006, issue of the
Texas Register
(31 TexReg 7235). Sections 19.3, 19.12, and 19.14 are
adopted
without changes
to the proposed text
and will not be republished.
The new sections will be submitted to the United States Environmental Protection
Agency (EPA) as revisions to the Texas State Implementation Plan and as part
of a program approval application for all of the commission's federally authorized,
delegated, or approved programs.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the rules is to implement the United States Environmental
Protection Agency's (EPA) new Cross Media Electronic Reporting Rule (CROMERR)
as published in the October 13, 2005, issue of the
Federal Register
(70 FR 59848 - 59889), which became effective January
11, 2006. EPA finalized CROMERR to establish the framework for federal acceptability
of electronic reports from regulated entities in order to satisfy specific
document submission requirements from EPA regulations. Since states are delegated
or authorized to implement certain federal programs, states must seek EPA
approval to accept electronic documents for environmental programs that EPA
has delegated, authorized, or approved states to administer in accordance
with CROMERR. CROMERR does not require that any document or report be submitted
electronically and it does not require that states receive electronic documents
or reports. CROMERR establishes electronic reporting as an acceptable regulatory
alternative and establishes requirements to assure that electronic documents
are as legally enforceable as their paper counterparts. Where states intend
to receive documents or reports electronically, CROMERR specifies criteria
for their acceptable submission in order to ensure federal enforceability.
Because CROMERR impacts the commission's authorized programs, creating Chapter
19 in Title 30 of the Texas Administrative Code to apply to all of those programs
will minimize the need to revise rules for every authorized program now and
in the future if EPA amends CROMERR. The process by which the TCEQ must obtain
authorization for its electronic reporting program is generally the same process
the agency follows in seeking approval for its environmental permitting programs.
In the case of CROMERR, however, EPA has established a streamlined process
that TCEQ can use to obtain such approval. That process includes a technical
paper outlining how TCEQ's electronic document receiving system, and any known
future enhancements, meets the requirements of CROMERR. The application must
also include certification from the Office of the Attorney General that the
rules and statutes in force in Texas are adequate to meet the requirements
of CROMERR. This certification cannot take place until after the TCEQ rulemaking
is effective. The TCEQ has until October 13, 2007, to apply for approval to
continue accepting electronic reports and applications for authorized programs
for which the agency is currently receiving electronic reporting. The EPA
has 75 days to determine whether the documents are administratively complete.
Once the EPA determines that Texas has an administratively complete package,
they have 360 days to determine if Texas has met the requirements of CROMERR.
If EPA does not respond within the time frame, the system is automatically
approved. For federally authorized programs not currently utilizing an electronic
receiving system, there is no deadline specified; however, these programs
may not initiate such systems until the agency receives approval under CROMERR.
The rules establish a system for authorized programs to accept electronic
submittal of reports, permit applications, and other specified documents using
the commission's electronic document receiving system. These rules establish
that a person, as defined in 30 TAC §3.2(25), Definitions, who fails
to comply with electronic reporting procedures will be subject to the same
level of enforcement as one who fails to submit written documents as required.
SECTION BY SECTION DISCUSSION
The commission adopts administrative changes throughout these sections
to be consistent with Texas Register requirements and other agency rules and
guidelines and to conform to the drafting standards in the
Texas Legislative Council Drafting Manual
, August 2006.
The commission adopts new Chapter 19, Electronic Reporting, to comply with
the EPA's new CROMERR as published in the October 13, 2005, issue of the
Subchapter A - General Provisions
§19.1. Definitions.
Section 19.1 incorporates the definitions for: authorized program; copy
of record; electronic document; electronic document receiving system; electronic
signature; electronic signature agreement; electronic signature device; federal
program; state program; handwritten signature; and signatory. Since proposal,
the commission added that obligations on the individual's part are included
within the electronic signature agreement.
§19.3. Applicability.
Section 19.3 sets forth the applicability of Chapter 19 to persons who
submit electronic final documents to the commission to comply with regulation.
This section also affirms that the chapter will apply to federally authorized
programs and to state programs for which the commission has announced on its
public Web site that it is accepting specified electronic documents. A person
may submit documents electronically only if such announcement has been made.
Electronic documents must be submitted to the commission according to the
requirements of Chapter 19 and following the requirements of the commission's
electronic document receiving system. The commission also adopts this rule
to affirm that documents submitted via facsimile, magnetic, or optical media
are not subject to Chapter 19, consistent with CROMERR, and are, therefore,
exempt from the requirements of this chapter.
Subchapter B - Electronic Reporting Requirements
§19.10. Use of Electronic Document Receiving
System.
Section 19.10 sets forth the mandate that applicable electronic documents
must be submitted according to the requirements of Chapter 19 using the commission's
electronic document receiving system. It further affirms a person may not
allow another individual to use the electronic signature device unique to
his or her signature. Since proposal, the commission added that individuals
desiring to use an electronic signature device must execute an electronic
signature agreement with handwritten wet ink signature or by using an electronic
identity verification system utilized by the commission.
§19.12. Authorized Electronic Signature.
Section 19.12 affirms that when the electronic signature device is used
to create an individual's electronic signature, the code or mechanism must
be unique to that individual at the time the signature is created and the
individual must be uniquely entitled to use it. The section also sets forth
the directive that a signatory will protect the electronic signature device
from compromise and promptly report any evidence discovered that the device
has been compromised. An electronic signature device is compromised if the
code or mechanism is available for use by any other individual. It further
requires that electronic documents must bear a valid electronic signature
if a signature would be required by the regulatory program on the paper document.
This rulemaking stipulates an electronic signature on an electronic document
is valid if: it has been created with an electronic signature device that
the signatory is uniquely entitled to use for signing; the device has not
been compromised; and the signatory is authorized to sign the document. This
section establishes that the signatory intended to sign the document and submit
it to the commission by the presence of an electronic signature.
§19.14. Enforcement.
Section 19.14 affirms that an electronic signature is the legal equivalent
of a handwritten signature. Section 19.14 affirms that a person is subject
to appropriate penalties, fines, or other remedies under the commission rules
or applicable statutes for failure to comply with a reporting requirement
if the individual reports electronically and fails to comply with the applicable
provisions for electronic reporting. This section affirms that nothing in
Chapter 19 limits the use of electronic documents or information derived from
electronic documents as evidence in enforcement proceedings.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined the
rulemaking is not subject to §2001.0225 because it does not meet the
definition of a "major environmental rule" as defined in the Texas Government
Code. A "major environmental rule" is 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. The primary purpose of this rulemaking action
is to implement the EPA's new CROMERR as published in the
Federal Register
on October 13, 2005. The primary goal of this rulemaking
is to allow the commission to establish a voluntary system for the receipt
of electronic documents under the commission's federally authorized programs
and designated state programs and to provide standards of compliance and enforcement.
The rulemaking is procedural in nature and does not address environmental
risks or exposures. Therefore, the rulemaking does not constitute a major
environmental rule and thus is not subject to a formal regulatory analysis.
The commission solicited public comment on the draft regulatory impact analysis
determination. No comments were received on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact assessment for the rulemaking
action under Texas Government Code, §2007.043. The specific primary purpose
of this rulemaking is to implement the EPA's CROMERR and provide standards
of compliance and enforcement for the commission to receive electronic reports
and other documents under federally authorized programs and designated state
programs. Promulgation and enforcement of the adopted rules will not affect
private real property, because the adopted rulemaking is related to the commission's
procedural rules, rather than substantive requirements. Implementation of
the amendments will not result in any taking of real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the rule is neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11,
nor will it affect any action/authorization identified in Coastal Coordination
Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rule
is not subject to the Texas Coastal Management Program. The commission invited
public comment regarding the consistency of the rules with the CMP. No comments
were received regarding the consistency of the rules with the CMP.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The adopted rules may affect owners and operators subject to the federal
operating permits program. If the executive director, in the future, announces
that it will accept certain reports required by operating permits electronically,
owners and operators will have the option to use the commission's electronic
document receiving system in lieu of submitting paper documentation.
PUBLIC COMMENT
The proposal was published in the September 8, 2006, issue of the
RESPONSE TO COMMENTS
EPA supported adding the proposed Electronic Reporting regulations to the
SIP and other air programs and congratulated Texas on being the first to propose
such air regulations. EPA noted that the state's proposal does not address
the National Emission Standards for Hazardous Air Pollutants for source categories
(40 CFR Part 63). EPA commented that the proposed definition for electronic
signature agreement does not appear to reference the requirements of proposed §19.12
nor does the proposed §19.12 appear to reference the proposed definition.
EPA further stated that the definition lacks acknowledgement of an individual's
obligations connected with preventing compromise of the electronic signature
device (§19.1).
The commission did not make any changes to the rule in response to the
comment regarding the National Emission Standards for Hazardous Air Pollutants
because it is outside the scope of the rulemaking which is to specifically
address electronic reporting. The commission agrees with EPA's other comments
and has added to the definition that obligations on the individual's part
are included within the electronic signature agreement. The commission also
made a change to §19.10(b) to state that individuals desiring to use
an electronic signature device must execute an electronic signature agreement
with handwritten wet ink signature or by using an electronic identity verification
system utilized by the commission. The commission appreciates EPA's support.
Subchapter A. GENERAL PROVISIONS