Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 50.
ACTION ON APPLICATIONS AND OTHER AUTHORIZATIONS
The Texas Natural Resource Conservation Commission (commission) adopts
the amendments to §50.39, Motion for Reconsideration, and §50.139,
Motion to Overturn Executive Director's Decision,
with changes
to the proposed text as published in the September 22,
2000 issue of the
Texas Register
(25 TexReg
9414).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
On January 12, 2000, the commission adopted amendments to its procedural
rules to implement Senate Bill (SB) 211, including amendments (see the January
28, 2000 issue of the
Texas Register
(25 TexReg
593)) to §50.39, Motion for Reconsideration and §50.139, Motion
to Overturn Executive Director's Decision. These amendments were intended
to mirror the provisions of SB 211, which amended Texas Government Code, §2001.142,
to provide that a party is presumed to have been notified of a decision or
order in a contested case on the third day after notice is mailed by first
class mail. Prior to SB 211, the Texas Government Code provided that the date
of notification was presumed to be the date on which the notice of the decision
was mailed. Likewise, prior to the amendments to §50.39 and §50.139,
the time for filing a motion for reconsideration or motion to overturn of
an uncontested permit ran from the time of mailing to the applicant. Since
adoption of these amendments to §50.39 and §50.139, the time for
filing a motion for reconsideration or motion to overturn runs from the time
of written notification to the applicant, with a presumption that a person
is notified on the third day after the date of mailing of the executive director's
decision. Thus, while SB 211 did not specifically require changes in procedures
for uncontested matters, in the interest of consistency, the commission changed
its procedures to give movants additional time to file motions for reconsideration
and motions to overturn.
Since adoption, however, staff have recognized that the rules as written
may on occasion result in uncertainty concerning when the time period for
filing begins to run. For the convenience of the applicant, staff in some
cases hand-delivered or faxed early notice of the executive director's decision.
The intent of the rule is for the time for filing a motion for reconsideration
or motion to overturn to begin from the date notice of the executive director's
action is mailed. Since an early copy furnished to the applicant might be
construed to constitute "notice in writing," thereby resulting in confusion
regarding a movant's time for filing, the commission adopts certain changes
to make the beginning date more certain in all cases.
The adopted rules as proposed provided that motions for reconsideration
and motions to overturn must be filed no later than 23 days after the agency
mails notice of the signed permit, approval, or other action of the executive
director and set forth the circumstances under which the public interest counsel
and timely commenters would receive notice of the action. For purposes of
simplicity and clarity, the rules as adopted now provide that notice of the
action is to be mailed to the applicant and persons on any required mailing
list for the action. Related rules on extension of time limits and disposition
of motions would also be changed with this adoption. Additionally, a change
is adopted to clarify that in some situations, agency staff, rather than the
chief clerk, mail notice of a signed permit or other executive director action.
These changes should benefit both applicants and potential protestants. Applicants
should benefit because, where time is of the essence, the practice of faxing
and hand-delivering copies of signed permits and other approvals can resume.
Persons opposing the issuance of permits or approvals will benefit because
the deadline for filing a motion for reconsideration or motion to overturn
will allow a full 20 days for filing these motions, taking into account three
days from mailing to receipt of notification.
SECTION BY SECTION DISCUSSION
Section 50.39, relating to Motion for Reconsideration, which applies to
certain applications declared administratively complete before September 1,
1999, is adopted to be amended to specify that the deadline for filing a motion
for reconsideration runs from the date the agency mails notice of a signed
permit, approval, or other executive director's action. In addition, to cover
the time from mailing to the time of notification, it is adopted that the
deadline for filing be changed so that it is 23 days after notice of the signed
permit or other action of the executive director is mailed to the applicant
and persons on any required mailing list. This change is reflected in adopted
amendments to §50.39(b). Two other changes are adopted for §50.39(b).
A change is adopted to reflect that in some situations agency staff, rather
than chief clerk, may mail notice of a signed permit or other executive director
action. Another change is adopted to mirror a revised provision in §50.139(b)
that provides that, if timely comments are received in response to any required
prior notice of an application, notice of an executive director action will
be mailed to public interest counsel and timely commenters, as well as the
applicant. Corresponding changes are adopted to §50.39(d) and §50.39(e)
to reflect the adopted changes to the deadline for filing of motions for reconsideration.
Section 50.139, relating to Motion to Overturn Executive Director's Decision,
which applies to certain applications declared administratively complete on
or after September 1, 1999, is adopted to be amended to mirror the adopted
changes to §50.39. That is, changes are adopted to specify that the deadline
for filing a motion to overturn runs from the date the agency mails notice
of a signed permit, approval, or other executive director's action to the
applicant and persons on any required mailing list. The adopted rule will
also allow for 23 days from the date of mailing of notice of the signed permit
or other executive director action. This change is reflected in §50.139(b).
Two other changes are adopted for §50.139(b). A change is adopted to
reflect that in some situations, agency staff, rather than the chief clerk,
may mail notice of a signed permit or other executive director action. Another
change is adopted to reflect that the obligation to mail notice of the executive
director's action to the public interest counsel and commenters is triggered
by the receipt of timely comments, in response to any required prior notice
of an application. Corresponding changes are adopted to §50.139(e) and §50.139(f)
to reflect the adopted changes to the deadline for filing motions to overturn.
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 that
the rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in the statute.
"Major environmental rule" means a rule, the specific intent of which, is
to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. This rulemaking does
not meet the definition of "major environmental rule" because it is not specifically
intended to protect the environment or reduce risks to human health from environmental
exposure. Instead, this rulemaking is procedural in nature and sets time frames
for the filing of a motion for reconsideration or motion to overturn of a
signed permit, approval or other action of the executive director.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for these rules pursuant
to Texas Government Code, §2007.043. The specific purpose of the rulemaking
is to provide that motions for reconsideration and motions to overturn must
be filed no later than 23 days after the date the agency mails notice of a
signed permit, approval, or other action of the executive director to the
applicant and persons on any required mailing list. They are procedural rule
changes only and do not affect private real property. Therefore, these rules
will not constitute a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the amendments are
neither identified in the Coastal Coordination Act Implementation Rules, 31
TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal
Management Program (CMP) nor do they affect any action or authorization identified
in the Coastal Coordination Act Implementation Rules, §505.11. This rulemaking
concerns only the procedural rules of the commission and is therefore not
subject to the CMP.
HEARING AND COMMENTERS
A public hearing was held on October 17, 2000. No one attended the hearing.
The comment period closed on October 23, 2000. No comments were received.
Subchapter C. ACTION BY EXECUTIVE DIRECTOR
30 TAC §50.39
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.103 and §5.105,
which establish the commission's general authority to adopt rules and to set
policy by rule; and Texas Government Code, §2001.004, which requires
state agencies to adopt rules of practice.
§50.39.Motion for Reconsideration.
(a)
The applicant, public interest counsel or other person
may file with the chief clerk a motion for reconsideration of the executive
director's action on an application.
(b)
A motion for reconsideration must be filed no later than
23 days after the date the agency mails notice of the signed permit, approval,
or other action of the executive director to the applicant and persons on
any required mailing list for the action.
(c)
An action by the executive director under this subchapter
is not affected by a motion for reconsideration filed under this section unless
expressly ordered by the commission.
(d)
With the agreement of the parties or on their own motion,
the commission or the general counsel may, by written order, extend the period
of time for filing motions for reconsideration and for taking action on the
motions so long as the period for taking action is not extended beyond 90
days after the date the agency mails notice of the signed permit, approval,
or other written notice of the executive director's action.
(e)
Disposition of motion.
(1)
Unless an extension of time is granted, if a motion for
reconsideration is not acted on by the commission within 45 days after the
date the agency mails notice of the signed permit, approval, or other action
of the executive director, the motion is denied.
(2)
In the event of an extension, the motion for reconsideration
is overruled by operation of law on the date fixed by the order, or in the
absence of a fixed date, 90 days after the date the agency mails notice of
the signed permit, approval, or other action of the executive director.
(f)
Section 80.271 of this title (relating to Motion for Rehearing)
and Texas Government Code, §2001.146, regarding motions for rehearing
in contested cases do not apply when a motion for reconsideration is denied
by commission action or under subsection (e) of this section and no motions
for rehearing shall be filed. If applicable, the commission decision may be
subject to judicial review under Texas Water Code, §5.351, or Texas Health
and Safety Code, §§361.321, 382.032, or 401.341.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 12, 2001.
TRD-200101450
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: April 1, 2001
Proposal publication date: September 22, 2000
For further information, please call: (512) 239-6087
30 TAC §50.139
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.103 and §5.105,
which establish the commission's general authority to adopt rules and to set
policy by rule; and Texas Government Code, §2001.004, which requires
state agencies to adopt rules of practice.
§50.139.Motion to Overturn Executive Director's Decision.
(a)
The applicant, public interest counsel or other person
may file with the chief clerk a motion to overturn of the executive director's
action on an application or water quality management plan (WQMP) update certification.
Wherever other commission rules refer to a "motion for reconsideration", that
term should be considered interchangeable with the term "motion to overturn
executive director's decision."
(b)
A motion to overturn must be filed no later than 23 days
after the date the agency mails notice of the signed permit, approval, or
other action of the executive director to the applicant and persons on any
required mailing list for the action.
(c)
A motion to overturn must be filed no later than 20 days
after the date persons who timely commented on the WQMP update are notified
of the response to comments and the certified WQMP update. A person is presumed
to have been notified on the third day after the date the notice of the executive
director's action is mailed by first class mail.
(d)
An action by the executive director under this subchapter
is not affected by a motion to overturn filed under this section unless expressly
ordered by the commission.
(e)
With the agreement of the parties or on their own motion,
the commission of the general counsel may, by written order, extend the period
of time for filing motions to overturn and for taking action on the motions
so long as the period for taking action is not extended beyond 90 days after
the date the agency mails notice of the signed permit, approval, or other
action of the executive director.
(f)
Disposition of motion.
(1)
Unless an extension of time is granted, if a motion to
overturn is not acted on by the commission within 45 days after the date the
agency mails notice of the signed permit, approval, or other action of the
executive director, the motion is denied.
(2)
In the event of an extension, the motion to overturn is
overruled by operation of law on the date fixed by the order, or in the absence
of a fixed date, 90 days after the date the agency mails notice of the signed
permit, approval, or other action of the executive director.
(g)
When a motion to overturn is denied under subsection (f)
of this section, a motion for rehearing does not need to be filed as a prerequisite
for appeal. Section 80.272 of this title (relating to Motion for Rehearing)
and Texas Government Code, §2001.146, regarding motions for rehearing
in contested cases do not apply when a motion to overturn is denied. If applicable,
the commission decision may be subject to judicial review under Texas Water
Code, §5.351, or Texas Health and Safety Code, §§361.321, 382.032,
or 401.341.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 12, 2001.
TRD-200101451
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: April 1, 2001
Proposal publication date: September 22, 2000
For further information, please call: (512) 239-6087
Subchapter A. GENERAL REQUIREMENTS
30 TAC §106.4
The Texas Natural Resource Conservation Commission (commission)
adopts an amendment to §106.4, Requirements for Permitting by Rule. Section
106.4 is adopted
without changes
to the proposed
text as published in the October 20, 2000 issue of the
Texas Register
(25 TexReg 10445) and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
On December 6, 2000 the commission adopted rules, which were published
in the January 12, 2001 issue of the
Texas Register
(26 TexReg 283), that established a system of allocation and trading
of emission allowances for nitrogen oxides (NO
x
)
in the Houston/Galveston (HGA) nonattainment area. An allowance is equal to
one ton of NO
x
emissions and facilities are required
to obtain a sufficient number of allowances that are equal to or exceed its
actual emissions for a calendar year. The purpose of this system is to limit
emissions of NO
x
from individual facilities in
HGA so that a regional maximum, or cap, of emissions is not exceeded. The
NO
x
emission limitations apply to existing and
new stationary facilities. Individual facilities may buy or sell allowances,
but the total number of allowances in the HGA region may not exceed the predetermined
cap.
This adoption supplements the emission cap and trade program (26 TexReg
283), by specifying that facilities or groups of facilities using authorizations
under Chapter 106, Permits by Rule, will be required to obtain NO
x
emission allowances prior to operation if the facilities being authorized
are subject to the cap and trade program.
SECTION BY SECTION DISCUSSION
This adoption adds a new paragraph, §106.4(a)(8), stating that a facility
or group of facilities must obtain allowances prior to operation if the facility
or group of facilities is subject to the NO
x
emission cap and trade program (26 TexReg 283). This adoption does not extend
the applicability of the cap and trade program but clarifies that the program
would also be applicable to certain facilities authorized under Chapter 106.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225. The commission
determined that this amendment to Chapter 106 does not meet the definition
of a "major environmental rule" as defined in Texas Government Code, §2001.0225.
"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 commission adopts
this amendment to achieve administrative consistency with amendments to Chapter
101 adopted on December 6, 2000 (26 TexReg 283). In the Chapter 101 rulemaking,
the commission requires facilities which have the design capacity to emit
ten tons or more of NO
x
per year in HGA to hold
allowances equal to, or greater than their actual NO
x
emissions under a cap and trade program. This adopted amendment to
Chapter 106 clarifies that an applicant subject to Chapter 101, Subchapter
H, Division 3, must obtain allowances prior to operation. The amendment does
not expand the applicability of the cap and trade program. The amendment to
Chapter 106 does 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; therefore, this amended
section does not constitute a major environmental rule. 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. This rulemaking is not subject
to the regulatory analysis provisions of §2001.0225(b), because the rule
does not meet any of the four applicability requirements. Specifically, the
emission banking and trading requirements within this rulemaking are an element
of the control strategy for the HGA SIP which is necessary in order for HGA
to meet the ozone national ambient air quality standard (NAAQS) set by the
United States Environmental Protection Agency (EPA) under the Federal Clean
Air Act (FCAA), §109 (42 United States Code (USC), §7409). Additional
elements of this control strategy were adopted by the commission on December
6, 2000. These rules do not exceed an express standard set by federal law
since they implement requirements of the FCAA. Provisions of 42 USC, §7410,
require states to adopt a state implementation plan (SIP) which provides for
"implementation, maintenance, and enforcement" of the primary NAAQS in each
air quality control region of the state. While §7410 does not require
specific programs, methods, or reductions in order to meet the standard, SIPs
must include "enforceable emission limitations and other control measures,
means or techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and timetables
for compliance as may be necessary or appropriate to meet the applicable requirements
of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control).
It is true that 42 USC does require some specific measures for SIP purposes,
like the inspection and maintenance program, but those programs are the exception,
not the rule, in the SIP structure of 42 USC. The provisions of 42 USC recognize
that states are in the best position to determine what programs and controls
are necessary or appropriate in order to meet the NAAQS. This flexibility
allows states, affected industry, and the public, to collaborate on the best
methods for attaining the NAAQS for the specific regions in the state. Even
though 42 USC allows states to develop their own programs, this flexibility
does not relieve a state from developing a program that meets the requirements
of §7410. Thus, while specific measures are not generally required, the
emission reductions are required. States are not free to ignore the requirements
of §7410 and must develop programs to assure that the nonattainment areas
of the state will be brought into attainment on schedule.
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th
Legislative Session, 1999. The intent of SB 633 was to require agencies to
conduct a regulatory impact analysis (RIA) of extraordinary rules. These are
identified in the statutory language as major environmental rules that will
have a material adverse impact and will exceed a requirement of state law,
federal law, or a delegated federal program, or are adopted solely under the
general powers of the agency. With the understanding that this requirement
would seldom apply, the commission provided a cost estimate for SB 633 that
concluded "based on an assessment of rules adopted by the agency in the past,
it is not anticipated that the bill will have significant fiscal implications
for the agency due to its limited application." The commission also noted
that the number of rules that would require assessment under the provisions
of the bill was not large. This conclusion was based, in part, on the criteria
set forth in the bill that exempted proposed rules from the full analysis
unless the rule was a major environmental rule that exceeds a federal law.
As previously discussed, 42 USC does not require specific programs, methods,
or reductions in order to meet the NAAQS; thus, states must develop programs
for each nonattainment area to ensure that area will meet the attainment deadlines.
Because of the ongoing need to address nonattainment issues, the commission
routinely proposes and adopts SIP rules. The commission bases these actions
on the presumption that the legislature understands this federal scheme. If
each rule proposed for inclusion in the SIP was considered to be a major environmental
rule that exceeds federal law, then every SIP rule would require the full
RIA contemplated by SB 633. This conclusion is inconsistent with the conclusions
reached by the commission in its cost estimate and by the Legislative Budget
Board (LBB) in its fiscal notes. It is a rule of statutory interpretation
that the legislature is presumed to understand the fiscal impacts of the bills
it passes, and that presumption is based on information provided by state
agencies and the LBB, the commission believes that the intent of SB 633 was
only to require the full RIA for rules that are extraordinary in nature. While
the SIP rules will have a broad impact, that impact is no greater than is
necessary or appropriate to meet the requirements of the FCAA. For these reasons,
rules proposed for inclusion in the SIP fall under the exception in Texas
Government Code, §2001.0225(a), because they are required by federal
law. The commission performed photochemical grid modeling which predicts that
NO
x
emission reductions, such as those required
by these rules, will result in reductions in ozone formation in the HGA ozone
nonattainment area. This rulemaking does not exceed an express requirement
of state law. This rulemaking is intended to obtain NO
x
emission reductions which will result in reductions in ozone formation
in the HGA ozone nonattainment area and help bring HGA into compliance with
the air quality standards established under federal law as NAAQS for ozone.
The rulemaking does not exceed a standard set by federal law, exceed an express
requirement of state law (unless specifically required by federal law), or
exceed a requirement of a delegation agreement. The rulemaking was not developed
solely under the general powers of the agency, but was specifically developed
to meet the NAAQS established under federal law and authorized under Texas
Clean Air Act (TCAA), §§382.011, 382.012, and 382.017, as well
as under 42 USC, §7410(a)(2)(A).
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an analysis
of whether the rules are subject to Texas Government Code, Chapter 2007. The
following is a summary of that analysis. This amendment is adopted as part
of a strategy to reduce and permanently cap emissions of NO
x
to a level which would allow the HGA nonattainment area to attain
the NAAQS for ozone. Promulgation and enforcement of the amendment will not
burden private real property. The amendment does 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. Additionally,
the allowances that are the subject of this amendment are not property rights.
Consequently, the amendment does not meet the definition of a takings under
Texas Government Code, §2007.002(5). Although the amendment does not
directly prevent a nuisance or prevent an immediate threat to life or property,
it does prevent a real and substantial threat to public health and safety,
and partially fulfill a federal mandate under the USC, §7410. Specifically,
the emission limitations within this adoption were developed in order to meet
the ozone NAAQS set by the EPA under the USC, §7409. States are primarily
responsible for ensuring attainment and maintenance of the NAAQS once the
EPA has established them. Under the USC, §7410 and related provisions,
states must submit, for approval by the EPA, SIPs that provide for the attainment
and maintenance of NAAQS through control programs directed to sources of the
pollutants involved. Therefore, the purpose of the rulemaking is to implement
a NO
x
strategy which is necessary for the HGA
area to meet the air quality standards established under federal law as NAAQS.
Consequently, the exemption which applies to this rule is that of an action
reasonably taken to fulfill an obligation mandated by federal law. Therefore,
this revision will not constitute a takings under Texas Government Code, Chapter
2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined the rulemaking relates to an action or actions
subject to the Texas Coastal Management Plan (CMP) in accordance with the
Coastal Coordination Act of 1991, as amended (Texas Natural Resource Code, §§33.201
et seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B,
concerning Consistency with the Texas Coastal Management Program. As required
by 30 TAC §505.11(b)(2) and 30 TAC §281.45(a)(3), relating to actions
and rules subject to the CMP, commission rules governing air pollutant emissions
must be consistent with the applicable goals and policies of the CMP. The
commission reviewed this action for consistency with the CMP goals and policies
in accordance with the regulations of the Coastal Coordination Council and
determined the amendment is consistent with the applicable CMP goal expressed
in 31 TAC §501.12(1) of protecting and preserving the quality and values
of coastal natural resource areas, and the policy in 31 TAC §501.14(q),
which requires the commission protect air quality in coastal areas. The amendment
states that applicants for permits by rule for new or modified facilities
in HGA must comply with Chapter 101, Subchapter H, Division 3. The amendment
does not authorize any new NO
x
air emissions.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The amendment to §106.4, is not considered an applicable requirement
under 30 TAC Chapter 122, thus this change would not require a revision to
an affected facility's federal operating permit.
HEARING AND COMMENTERS
The commission held a public hearing in Houston on November 16, 2000. No
comments were received at the hearing, but the commission received written
comments from the EPA and the Sierra Club Houston Regional Group (Sierra-Houston)
during the public comment period which closed on November 20, 2000. The EPA
requested clarifications on several points of the proposal, and Sierra-Houston
opposed the proposal.
ANALYSIS OF TESTIMONY
The EPA commented that the commission should clarify the application and
definition of "facility." The definition of "facility" in §116.10(4)
should be consistent with the intended use of the same term in proposed §106.4(a)(8).
The EPA questioned whether the term was intended to mean that only the emission
point that was authorized under the permit by rule would be required to obtain
allowances or would all emission points of the same industrial grouping on
contiguous or adjacent property, under common ownership or control, be required
to obtain allowances.
The rules were not revised based on this comment. The intent of proposed §106.4(a)(8)
is to notify the owner(s) seeking to authorize a facility or group of facilities
under a permit by rule that if those facilities are subject to the cap and
trade program, sufficient allowances will need to be obtained equal to or
greater than the total actual NO
x
emissions from
all facilities subject to Chapter 117 at the site. All facilities at a site
that are subject to Chapter 117 and that collectively have a design capacity
of ten tons of NO
x
emissions per year or greater
will be required to obtain allowances. The term "facility" is defined in TCAA, §382.003(6).
Sierra-Houston commented that the proposed amendments in Chapters 101,
106, and 116 should have been part of the Houston SIP proposal that went through
public hearings in September 2000. Sierra-Houston stated that very few people
would know about the proposals because there was no publicity surrounding
them, and that the proposals are far reaching.
The rules were not revised based on this comment. This amendment is directly
related to the NO
x
cap and trade program, but
could not be proposed and adopted on the same schedule. One of the affected
sections in this adoption was open under another rulemaking related to the
implementation of SB 766 from the 1999 session of the Texas Legislature when
the cap and trade rules were proposed. The SB 766 implementation and the cap
and trade rules were proceeding under fixed but different schedules due to
statutory and federal deadlines. Under the Administrative Procedures Act (APA),
the commission must wait until a section undergoing amendment is completed
and effective before that section may be opened again for amendment. This
rulemaking was proposed and published consistent with the APA requirements.
Sierra-Houston commented that the emission cap and trade program will result
in no emission reductions in plants close to poor and minority neighborhoods.
The rules were not revised based on this comment. The effect of implementing
the NO
x
cap and trade program will be an overall
NO
x
reduction of approximately 90% from stationary
facilities in the HGA nonattainment area. Facilities subject to the cap and
trade program will be required to reduce actual emissions to a level equal
to or lower than their individual cap, or purchase allowances from another
facility participating under the cap and trade program. This trading will
result in a zero net effect on the level of the cap, and will not result in
increased emissions based on the location of the facility.
Sierra-Houston opposed the cap and trade program in general and stated
that requiring emission reductions at all facilities will result in the greatest
reduction of ozone. Sierra-Houston also stated that many emission controls
will not be required until 2005, which will reduce the chances of the HGA
area obtaining the ozone standard by 2007.
The rules were not revised based on this comment. The overall NO
x
cap was set at an annual level believed necessary for stationary
facilities in order for the HGA nonattainment area to reach attainment by
2007. Thus, compliance with the cap will achieve the necessary reduction from
the stationary source category. For facilities not wishing to make reductions
to meet their individual cap, additional allowances will need to be obtained
from another facility or facilities. Because these purchased allowances will
be obtained from a facility participating in the cap and trade program, this
results in an equal reduction from the seller. There is no net increase in
the number of allowances. In addition, the cap is being initially set at historical
emission levels and will reduce over time with the final reduction taking
place in 2007. Based on the existing SIP, the reductions necessary from stationary
facilities need to be in full effect by 2007 and not 2005 to demonstrate attainment.
STATUTORY AUTHORITY
The amendment is adopted under the Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; §382.017, which provides the commission the authority to adopt rules
consistent with the policy and purposes of the TCAA; §382.05196, which
authorizes the commission to adopt permits by rule for types of facilities
which will not make a significant contribution of air contaminants to the
atmosphere; and USC, §7410(a)(2)(A), which requires SIPs to include enforceable
emission limitations and other control measures or techniques, including economic
incentives such as fees, marketable permits, and auction of emission rights.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 9, 2001.
TRD-200101430
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 29, 2001
Proposal publication date: October 20, 2000
For further information, please call: (512) 239-0348
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §116.111, General Application; §116.115, General and
Special Conditions; §116.610, Applicability; §116.615, General Conditions; §116.711,
Flexible Permit Application; and §116.715, General and Special Conditions.
The commission also adopts new §116.176, Use of Mass Cap Allowances for
Offsets. Sections 116.111 and 116.115 are adopted
with changes
to the proposed text as published in the October 20, 2000
issue of the
Texas Register
(25 TexReg 10449).
Sections 116.176, 116.610, 116.615, 116.711, and 116.715 are adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
On December 6, 2000 the commission adopted rules, which were published
in the January 12, 2001 issue of the
Texas Register
(26 TexReg 283), that establishes a system of allocation and trading
of emission allowances for nitrogen oxides (NO
x
)
in the Houston/Galveston (HGA) nonattainment area. An allowance is equal to
one ton of NO
x
emissions and facilities are required
to obtain a sufficient number of allowances equal to or exceeding its emissions
for a calendar year. The purpose of this system is to limit emissions of NO
This adoption requires that applicants for permits authorized under 30
TAC Chapter 116 in the HGA area acknowledge, in the permit application, the
requirement to obtain allowances prior to operation. This adoption also requires
that the applicant, prior to commencing operations, identify a source of allowances.
SECTION BY SECTION DISCUSSION
The new §116.111(a)(2)(L) requires permit applicants under Chapter
116, Subchapter B, Division 1, Permit Application, to acknowledge they must
obtain allowances to operate. The commission has deleted the reference to
the effective date (March 21, 1999) in §116.111(b)(1) because that date
is no longer correct.
The new §116.115(b)(2)(C)(iii) adds language to the general conditions
of New Source Review (NSR) permits, specifying that facilities, groups of
facilities, or accounts subject to Chapter 101, Subchapter H, Division 3,
concerning Mass Emissions Cap and Trade Program (26 TexReg 283), must identify
the source or sources of allowances to be used for compliance. The commission
has amended §116.115(c)(2)(A)(ii) to state the correct title of Chapter
106 as Permits by Rule.
The new §116.176 allows permit applicants for facilities subject to
Chapter 101, Subchapter H, Division 3, that are required to submit NO
The new §116.610(a)(6) requires permit applicants under Chapter 116,
Subchapter F, Standard Permits, to acknowledge they must obtain allowances
to operate.
The new §116.615(5)(C) adds language to the general conditions of
standard permits specifying that facilities, groups of facilities or accounts
subject to Chapter 101, Subchapter H, Division 3, must identify the source
or sources of allowances to be used for compliance.
The new §116.711(12) requires permit applicants under Chapter 116,
Subchapter G, Flexible Permits, to acknowledge that they must obtain allowances
to operate.
The new §116.715(c)(3)(C) adds language to the general conditions
of flexible permits specifying that facilities, groups of facilities, or accounts
subject to Chapter 101, Subchapter H, Division 3, must identify the source
or sources of allowances to be used for compliance.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225. The commission
determined that these amendments to Chapter 116 do not meet the definition
of a "major environmental rule" as defined in Texas Government Code, §2001.0225.
"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 commission adopts
these amendments to achieve administrative consistency with amendments to
Chapter 101, adopted on December 6, 2000 (26 TexReg 283). The Chapter 101
amendments require facilities or groups of facilities in the HGA area, which
have a collective design capacity to emit NO
x
in amounts greater than or equal to ten tons per year, to hold sufficient
allowances equal to or greater than their actual NO
x
emissions under a cap and trade program. These amendments require
a permit applicant subject to Chapter 101, Subchapter H, Division 3, to acknowledge
that they are required to obtain allowances to comply with the cap and trade
program to operate and that they must identify a source or sources of allowances
prior to operation. In addition, the amendments to Chapter 116 allow applicants
of new major sources and major modifications to use allowances for the correlating
portion of any offsets required under §116.150, New Major Source or Major
Modification in Ozone Nonattainment Areas. These adopted sections state that
applicants of new or modified facilities in HGA are to comply with Chapter
101, Subchapter H, Division 3. These adopted sections do not expand the cap
and trade program for the HGA area. The amendments to Chapter 116 do 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; therefore, these amended and new sections
do not constitute a major environmental rule. 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. This rulemaking is not subject
to the regulatory analysis provisions of §2001.0225(b), because the adopted
rules do not meet any of the four applicability requirements. Specifically,
the emission banking and trading requirements within this rulemaking are an
element of the control strategy for the HGA SIP which is necessary in order
for HGA to meet the ozone national ambient air quality standard (NAAQS) set
by the EPA under the Federal Clean Air Act (FCAA), §109 (42 United States
Code (USC), §7409). Additional elements of this control strategy were
adopted by the commission on December 6, 2000. These rules do not exceed an
express standard set by federal law since they implement requirements of the
FCAA. Provisions of 42 USC, §7410, require states to adopt a SIP which
provides for "implementation, maintenance, and enforcement" of the primary
NAAQS in each air quality control region of the state. While §7410 does
not require specific programs, methods, or reductions in order to meet the
standard, state SIPs must include "enforceable emission limitations and other
control measures, means or techniques (including economic incentives such
as fees, marketable permits, and auctions of emissions rights), as well as
schedules and timetables for compliance as may be necessary or appropriate
to meet the applicable requirements of this chapter," (meaning Chapter 85,
Air Pollution Prevention and Control). It is true that 42 USC does require
some specific measures for SIP purposes, like the inspection and maintenance
program, but those programs are the exception, not the rule, in the SIP structure
of 42 USC. The provisions of 42 USC recognize that states are in the best
position to determine what programs and controls are necessary or appropriate
in order to meet the NAAQS. This flexibility allows states, affected industry,
and the public, to collaborate on the best methods for attaining the NAAQS
for the specific regions in the state. Even though 42 USC allows states to
develop their own programs, this flexibility does not relieve a state from
developing a program that meets the requirements of §7410. Thus, while
specific measures are not generally required, the emission reductions are
required. States are not free to ignore the requirements of §7410 and
must develop programs to assure that the nonattainment areas of the state
will be brought into attainment on schedule.
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th
Legislative Session, 1999. The intent of SB 633 was to require agencies to
conduct a regulatory impact analysis (RIA) of extraordinary rules. These are
identified in the statutory language as major environmental rules that will
have a material adverse impact and will exceed a requirement of state law,
federal law, or a delegated federal program, or are adopted solely under the
general powers of the agency. With the understanding that this requirement
would seldom apply, the commission provided a cost estimate for SB 633 that
concluded "based on an assessment of rules adopted by the agency in the past,
it is not anticipated that the bill will have significant fiscal implications
for the agency due to its limited application." The commission also noted
that the number of rules that would require assessment under the provisions
of the bill was not large. This conclusion was based, in part, on the criteria
set forth in the bill that exempted proposed rules from the full analysis
unless the rule was a major environmental rule that exceeds a federal law.
As previously discussed, 42 USC does not require specific programs, methods,
or reductions in order to meet the NAAQS; thus, states must develop programs
for each nonattainment area to ensure that area will meet the attainment deadlines.
Because of the ongoing need to address nonattainment issues, the commission
routinely proposes and adopts SIP rules. The commission bases these actions
on the presumption that the legislature understands this federal scheme. If
each rule proposed for inclusion in the SIP was considered to be a major environmental
rule that exceeds federal law, then every SIP rule would require the full
RIA contemplated by SB 633. This conclusion is inconsistent with the conclusions
reached by the commission in its cost estimate and by the Legislative Budget
Board (LBB) in its fiscal notes. It is a rule of statutory interpretation
that the legislature is presumed to understand the fiscal impacts of the bills
it passes, and that presumption is based on information provided by state
agencies and the LBB, the commission believes that the intent of SB 633 was
only to require the full RIA for rules that are extraordinary in nature. While
the SIP rules will have a broad impact, that impact is no greater than is
necessary or appropriate to meet the requirements of the FCAA. For these reasons,
rules proposed for inclusion in the SIP fall under the exception in Texas
Government Code, §2001.0225(a), because they are required by federal
law. The commission performed photochemical grid modeling which predicts that
NO
x
emission reductions, such as those required
by these rules, will result in reductions in ozone formation in the HGA ozone
nonattainment area. This rulemaking does not exceed an express requirement
of state law. This rulemaking is intended to obtain NO
x
emission reductions which will result in reductions in ozone formation
in the HGA ozone nonattainment area and help bring HGA into compliance with
the air quality standards established under federal law as NAAQS for ozone.
The rulemaking does not exceed a standard set by federal law, exceed an express
requirement of state law (unless specifically required by federal law), or
exceed a requirement of a delegation agreement. The rulemaking was not developed
solely under the general powers of the agency, but was specifically developed
to meet the NAAQS established under federal law and authorized under Texas
Clean Air Act (TCAA), §§382.011, 382.012, and 382.017, as well
as under 42 USC, §7410(a)(2)(A).
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an analysis
of whether the rules are subject to Texas Government Code, Chapter 2007. The
following is a summary of that analysis. These amendments are adopted as part
of a strategy to reduce and permanently cap emissions of NO
x
to a level which would allow the HGA nonattainment area to attain
the NAAQS for ozone. Promulgation and enforcement of the rules will not burden
private real property. 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. Additionally, the
allowances that are the subject of these rules are not property rights. Consequently,
these amendments do not meet the definition of a takings under Texas Government
Code, §2007.002(5). Although the rule revisions do not directly prevent
a nuisance or prevent an immediate threat to life or property, they do prevent
a real and substantial threat to public health and safety, and partially fulfill
a federal mandate under the USC, §7410. Specifically, the emission limitations
within this adoption were developed in order to meet the ozone NAAQS set by
the EPA under the USC, §7409. States are primarily responsible for ensuring
attainment and maintenance of the NAAQS once the EPA has established them.
Under the USC, §7410 and related provisions, states must submit, for
approval by the EPA, SIPs that provide for the attainment and maintenance
of NAAQS through control programs directed to sources of the pollutants involved.
Therefore, the purpose of the rulemaking is to implement a NO
x
strategy which is necessary for the HGA area to meet the air quality
standards established under federal law as NAAQS. Consequently, the exemption
which applies to these rules is that of an action reasonably taken to fulfill
an obligation mandated by federal law. Therefore, these revisions do not constitute
a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined the adopted rulemaking relates to an action or
actions subject to the Texas Coastal Management Plan (CMP) in accordance with
the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Code, §§33.201
et seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B,
concerning Consistency with the Texas Coastal Management Program. As required
by 30 TAC §505.11(b)(2) and 30 TAC §281.45(a)(3), relating to actions
and rules subject to the CMP, commission rules governing air pollutant emissions
must be consistent with the applicable goals and policies of the CMP. The
commission reviewed this action for consistency with the CMP goals and policies
in accordance with the regulations of the Coastal Coordination Council and
determined the rules are consistent with the applicable CMP goal expressed
in 31 TAC §501.12(1) of protecting and preserving the quality and values
of coastal natural resource areas, and the policy in 31 TAC §501.14(q),
which requires the commission protect air quality in coastal areas. The amendments
state that applicants for permits of new or modified facilities in HGA must
comply with Chapter 101, Subchapter H, Division 3. These rules do not authorize
any new NO
x
air emissions.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The amendments to §§116.111, 116.115, 116.610, 116.615, 116.711,
and 116.715 are not considered applicable requirements under 30 TAC Chapter
122, thus these changes do not require revisions to the affected facilities'
operating permit. The new §116.176 is considered an applicable requirement
under 30 TAC Chapter 122, thus owners or operators subject to the Federal
Operating Permits Program must, consistent with the revision process in Chapter
122, revise their operating permit to include the new §116.176 requirements
for each emission unit affected by the revisions to §116.176 at their
site.
HEARING AND COMMENTERS
The commission held a public hearing in Houston on November 16, 2000. No
comments were received at the hearing, but the commission received written
comments from the EPA and the Sierra Club Houston Regional Group (Sierra-Houston)
during the public comment period which closed on November 20, 2000. The EPA
requested clarifications on several points of the proposal, and Sierra- Houston
opposed the proposal.
ANALYSIS OF TESTIMONY
The EPA commented that the commission should clarify the application and
definition of "facility." The definition of "facility" in §116.10(4)
should be consistent with the intended use of the same term in proposed §106.4(a)(8).
The EPA questioned whether the term was intended to mean that only the emission
point that was authorized under the permit by rule would be required to obtain
allowances or would all emission points of the same industrial grouping on
contiguous or adjacent property, under common ownership or control, be required
to obtain allowances.
The rules were not revised based on this comment. The intent of proposed §106.4(a)(8)
is to notify the owner(s) seeking to authorize a facility or group of facilities
under a permit by rule that if those facilities are subject to the cap and
trade program, sufficient allowances will need to be obtained equal to or
greater than the total actual NO
x
emissions from
all facilities subject to Chapter 117 at the site. All facilities at a site
that are subject to Chapter 117 and that collectively have a design capacity
of ten tons of NO
x
emissions per year or greater
will be required to obtain allowances. The term "facility" is defined in TCAA, §382.003(6).
The EPA made the identical comment about the use of the term "facility"
in the proposed §116.111(a)(2)(L), §116.115(b)(2)(C)(iii), §116.610(a)(6), §116.615(6)(C), §116.711(12),
and §116.715(c)(3)(C). The use of the term "facility" in these sections
should be clarified to mean that a facility includes all emission points in
the same industrial classification on contiguous or adjacent property and
under common ownership or control.
The rules were not revised based on this comment. The industrial classification
is relevant to the cap and trade program only if that classification includes
facilities subject to Chapter 117. The intent of this rulemaking is to ensure
that facilities authorized by Chapter 116 have sufficient allowances to operate.
A facility or group of facilities at a site becomes subject to the cap and
trade program if they are subject to Chapter 117 and collectively have a design
capacity of ten tons of NO
x
emissions per year
or greater. Any additional facilities authorized at that site will also be
subject. The term "facility" is defined in TCAA, §382.003(6).
The EPA commented that the commission should clarify the intent of §116.176.
The section allows the use of allowances required to comply with the emission
cap and trade program in 30 TAC Chapter 101, Subchapter H, Division 3 to meet
the correlating portion of emission offset requirements needed to comply with §116.150,
New Major Source or Major Modification in Ozone Nonattainment Area. The EPA
stated that the use of emission reduction credits (ERCs) is appropriate to
meet offsets as ERCs are surplus and permanent. Allowances are renewed every
year and are therefore not appropriate for use as offsets.
The rules were not revised based on this comment. The FCAA requires that
offsets be provided and that those offsets provide a net air quality benefit.
The adopted cap and trade rules set the cap at a level necessary for stationary
facilities as part of a comprehensive SIP for the HGA nonattainment area to
reach attainment by 2007. Because no new or modified facility, subject to
the NO
x
requirements of Chapter 117 and which
is located at a site where such a facility or group of facilities has a collective
design capacity of ten tons per year or more, will be allocated new allowances,
any allowance they use will be 'surplus' from another facility participating
under the cap. The net effect will be a zero sum gain on the number of allowances
in the cap. This reflects the 'correlating portion' of the offset requirement.
Because all new and modified facilities (as described above) will be required
to obtain allowances from a facility already participating in the cap, it
is ensured that NO
x
emissions will be reduced
to levels necessary for attainment. Even though further reduction will not
be necessary since the cap has been set at a level to reach attainment, the
rules will still require that an additional 30% of offsets be retired for
compliance with the FCAA. This reduction will be an added benefit to the environment
and will reduce emissions even beyond those levels necessary.
Sierra-Houston commented that the proposed amendments in Chapters 101,
106, and 116 should have been part of the HGA SIP proposal that went through
public hearings in September 2000. Sierra- Houston stated that very few people
would know about the proposals because there was no publicity surrounding
them, and that the proposals are far reaching.
The rules were not revised based on this comment. This amendment is directly
related to the NO
x
cap and trade program, but
could not be proposed and adopted on the same schedule. One of the affected
sections in this adoption was open under another rulemaking related to the
implementation of SB 766 from the 1999 session of the Texas Legislature when
the cap and trade rules were proposed. The SB 766 implementation and the cap
and trade rules were proceeding under fixed but different schedules due to
statutory and federal deadlines. Under the Administrative Procedures Act (APA),
the commission must wait until a section undergoing amendment is completed
and effective before that section may be opened again for amendment. This
rulemaking was proposed and published consistent with the APA requirements.
Sierra-Houston stated that the emission cap and trade program will result
in no emission reductions in plants close to poor and minority neighborhoods.
The rules were not revised based on this comment. The effect of implementing
the NO
x
cap and trade program will be an overall
NO
x
reduction of approximately 90% from stationary
facilities in the HGA nonattainment area. Facilities subject to the cap and
trade program will be required to reduce actual emissions to a level equal
to or lower than their individual cap, or purchase allowances from another
facility participating under the cap and trade program. This trading will
result in a net zero effect on the level of the cap, and will not result in
increased emissions based on the location of the specific facility.
Sierra-Houston opposed the cap and trade program in general and stated
that requiring emission reductions at all facilities will result in the greatest
reduction of ozone. Sierra-Houston stated that many emission controls will
not be required until 2005, which will reduce the chances of the HGA area
obtaining the ozone standard by 2007.
The rules were not revised based on this comment. The overall NO
x
cap was set at an annual level believed necessary for stationary
facilities in order for the HGA nonattainment area to reach attainment by
2007. Thus, compliance with the cap will achieve the necessary reduction from
the stationary source category. For facilities not wishing to make reductions
to meet their individual cap, additional allowances will need to be obtained
from another facility or facilities. Because these purchased allowances will
be obtained from a facility participating in the cap and trade program, this
results in an equal reduction from the seller. There is no net increase in
the number of allowances. In addition, the cap is being initially set at historical
emission levels and will reduce over time with the final reduction taking
place in 2007. Based on the existing SIP, the reductions necessary from stationary
facilities need to be in full effect by 2007 and not 2005 to demonstrate attainment.
Subchapter B. NEW SOURCE REVIEW PERMITS
1.
PERMIT APPLICATION
30 TAC §116.111, §116.115
STATUTORY AUTHORITY
The amendments are adopted under the Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; §382.017, which provides the commission the authority to adopt rules
consistent with the policy and purposes of the TCAA; §382.051, which
authorizes the commission to adopt rules as necessary to comply with changes
in federal law or regulations applicable to permits issued under Chapter 382;
and USC, §7410(a)(2)(A), which requires SIPs to include enforceable emission
limitations and other control measures or techniques, including economic incentives
such as fees, marketable permits, and auction of emission rights.
§116.111.General Application.
(a)
In order to be granted a permit, amendment, or special
permit amendment, the application must include:
(1)
a completed Form PI-1 General Application signed by an
authorized representative of the applicant. All additional support information
specified on the form must be provided before the application is complete;
(2)
information which demonstrates that all of the following
are met.
(A)
Protection of public health and welfare.
(i)
The emissions from the proposed facility will comply with
all rules and regulations of the commission and with the intent of the TCAA,
including protection of the health and physical property of the people.
(ii)
For issuance of a permit for construction or modification
of any facility within 3,000 feet of an elementary, junior high/middle, or
senior high school, the commission shall consider any possible adverse short-term
or long-term side effects that an air contaminant or nuisance odor from the
facility may have on the individuals attending the school(s).
(B)
Measurement of emissions. The proposed facility will have
provisions for measuring the emission of significant air contaminants as determined
by the executive director. This may include the installation of sampling ports
on exhaust stacks and construction of sampling platforms in accordance with
guidelines in the "Texas Natural Resource Conservation Commission (TNRCC)
Sampling Procedures Manual."
(C)
Best available control technology (BACT). The proposed
facility will utilize BACT, with consideration given to the technical practicability
and economic reasonableness of reducing or eliminating the emissions from
the facility.
(D)
New Source Performance Standards (NSPS). The emissions
from the proposed facility will meet the requirements of any applicable NSPS
as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated
by the EPA under FCAA, §111, as amended.
(E)
National Emission Standards for Hazardous Air Pollutants
(NESHAP). The emissions from the proposed facility will meet the requirements
of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA
under FCAA, §112, as amended.
(F)
NESHAP for source categories. The emissions from the proposed
facility will meet the requirements of any applicable maximum achievable control
technology standard as listed under 40 CFR Part 63, promulgated by the EPA
under FCAA, §112 or as listed under Chapter 113, Subchapter C of this
title (relating to National Emissions Standards for Hazardous Air Pollutants
for Source Categories (FCAA §112, (40 CFR 63)).
(G)
Performance demonstration. The proposed facility will achieve
the performance specified in the permit application. The applicant may be
required to submit additional engineering data after a permit has been issued
in order to demonstrate further that the proposed facility will achieve the
performance specified in the permit application. In addition, dispersion modeling,
monitoring, or stack testing may be required.
(H)
Nonattainment review. If the proposed facility is located
in a nonattainment area, it shall comply with all applicable requirements
in this chapter concerning nonattainment review.
(I)
Prevention of Significant Deterioration (PSD) review. If
the proposed facility is located in an attainment area, it shall comply with
all applicable requirements in this chapter concerning PSD review.
(J)
Air dispersion modeling. Computerized air dispersion modeling
may be required by the executive director to determine air quality impacts
from a proposed new facility or source modification.
(K)
Hazardous air pollutants. Affected sources (as defined
in §116.15(1) of this title (relating to Section 112(g) Definitions))
for hazardous air pollutants shall comply with all applicable requirements
under Subchapter C of this chapter (relating to Hazardous Air Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g),
40 CFR Part 63)).
(L)
Mass cap and trade allowances. If subject to Chapter 101,
Subchapter H, Division 3, of this title (relating to Mass Emissions Cap and
Trade Program), the proposed facility, group of facilities, or account must
obtain allowances to operate.
(b)
In order to be granted a permit, amendment, or special
permit amendment, the owner or operator must comply with the following notice
requirements.
(1)
Applications declared administratively complete before
September 1, 1999, are subject to the requirements of Chapter 116, Subchapter
B, Division 3 (relating to Public Notification and Comment Procedures).
(2)
Applications declared administratively complete on or after
September 1, 1999, are subject to the requirements of Chapter 39 of this title
(relating to Public Notice) and Chapter 55 of this title (relating to Request
for Reconsideration and Contested Case Hearings; Public Comment). Upon request
by the owner or operator of a facility which previously has received a permit
or special permit from the commission, the executive director or designated
representative may exempt the relocation of such facility from the provisions
in Chapter 39 of this title if there is no indication that the operation of
the facility at the proposed new location will significantly affect ambient
air quality and no indication that operation of the facility at the proposed
new location will cause a condition of air pollution.
§116.115.General and Special Conditions.
(a)
General and special conditions. Permits, special permits,
standard permits, and special exemptions may contain general and special conditions.
(b)
General conditions. Holders of permits, special permits,
standard permits, and special exemptions shall comply with the following:
(1)
the general conditions contained in the permit document
if issued or amended prior to August 16, 1994; or
(2)
the following general conditions if the permit or amendment
is issued or amended on or after August 16, 1994, regardless of whether they
are specifically stated within the permit document.
(A)
Voiding of permit. A permit or permit amendment under this
chapter is automatically void if the permit holder does one of the following:
(i)
fails to begin construction within 18 months of date of
issuance. The executive director may grant a one-time 18-month extension to
the date to begin construction;
(ii)
discontinues construction for more than 18 consecutive
months prior to completion; or
(iii)
fails to complete construction within a reasonable time.
(B)
Report of construction progress. The permit holder shall
report start of construction, construction interruptions exceeding 45 days,
and completion of construction. The report shall be given to the appropriate
regional office of the commission not later than 15 working days after occurrence
of the event.
(C)
Start-up notification.
(i)
The permit holder shall notify the appropriate air program
regional office of the commission prior to the commencement of operations
of the facilities authorized by the permit. The notification must be made
in such a manner as to allow representative of the commission to be present
at the commencement of operations.
(ii)
The permit holder shall provide a separate notification
for the commencement of operations for each unit of phased construction, which
may involve a series of units commencing operations at different times.
(iii)
Prior to operation of the facilities authorized by the
permit, the permit holder shall identify to the Office of Permitting, Remediation,
and Registration the source or sources of allowances to be utilized for compliance
with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass
Emissions Cap and Trade Program).
(D)
Sampling requirements.
(i)
If sampling is required, the permit holder shall contact
the commission's Office of Compliance and Enforcement prior to sampling to
obtain the proper data forms and procedures.
(ii)
All sampling and testing procedures must be approved by
the executive director and coordinated with the regional representatives of
the commission.
(iii)
The permit holder is also responsible for providing sampling
facilities and conducting the sampling operations or contracting with an independent
sampling consultant.
(E)
Equivalency of methods. The permit holder must demonstrate
or otherwise justify the equivalency of emission control methods, sampling
or other emission testing methods, and monitoring methods proposed as alternatives
to methods indicated in the conditions of the permit. Alternative methods
shall be applied for in writing and must be reviewed and approved by the executive
director prior to their use in fulfilling any requirements of the permit.
(F)
Recordkeeping. The permit holder shall:
(i)
maintain a copy of the permit along with records containing
the information and data sufficient to demonstrate compliance with the permit,
including production records and operating hours;
(ii)
keep all required records in a file at the plant site.
If, however, the facility normally operates unattended, records shall be maintained
at the nearest staffed location within Texas specified in the application;
(iii)
make the records available at the request of personnel
from the commission or any air pollution control program having jurisdiction;
(iv)
comply with any additional recordkeeping requirements
specified in special conditions attached to the permit; and
(v)
retain information in the file for at least two years following
the date that the information or data is obtained.
(G)
Maximum allowable emission rates. The total emissions of
air contaminants from any of the sources of emissions must not exceed the
values stated on the table attached to the permit entitled "Emission Sources--Maximum
Allowable Emission Rates."
(H)
Maintenance of emission control. The permitted facilities
shall not be operated unless all air pollution emission capture and abatement
equipment is maintained in good working order and operating properly during
normal facility operations. The permit holder shall provide notification for
upsets and maintenance in accordance with §101.6 and §101.7 of this
title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance,
Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements).
(I)
Compliance with rules.
(i)
Acceptance of a permit by an applicant constitutes an acknowledgment
and agreement that the permit holder will comply with all rules, regulations,
and orders of the commission issued in conformity with the TCAA and the conditions
precedent to the granting of the permit.
(ii)
If more than one state or federal rule or regulation or
permit condition are applicable, the most stringent limit or condition shall
govern and be the standard by which compliance shall be demonstrated.
(iii)
Acceptance includes consent to the entrance of commission
employees and agents into the permitted premises at reasonable times to investigate
conditions relating to the emission or concentration of air contaminants,
including compliance with the permit.
(c)
Special conditions. The holders of permits, special permits,
standard permits, and special exemptions shall comply with all special conditions
contained in the permit document.
(1)
Special conditions may be attached to a permit that are
more restrictive than the requirements of Title 30 of the Texas Administrative
Code.
(2)
Special condition for written approval.
(A)
The executive director may require as a special condition
that the permit holder obtain written approval before constructing a source
under:
(i)
a standard permit under Subchapter F of this chapter (relating
to Standard Permits); or
(ii)
an exemption under Chapter 106 of this title (relating
to Permits by Rule).
(B)
Such written approval may be required if the executive
director specifically finds that an increase of a particular pollutant could
either:
(i)
result in a significant impact on the air environment;
or
(ii)
cause the facility to become subject to review under:
(I)
Subchapter C of this chapter (relating to Hazardous Air
Pollutants: Regulations Governing Constructed or Reconstructed Major Sources
(FCAA, §112(g), 40 CFR Part 63)); or
(II)
the provisions in §116.150 and §116.151 of this
title (relating to Nonattainment Review) and §§116.160 - 116.163
of this title (relating to Prevention of Significant Deterioration Review).
This agency hereby certifies that the
adoption has been reviewed by legal counsel and found to be a valid exercise
of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 9, 2001.
TRD-200101431
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 29, 2001
Proposal publication date: October 20, 2000
For further information, please call: (512) 239-0348
30 TAC §116.176
STATUTORY AUTHORITY
The new section is adopted under the Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; §382.017, which provides the commission the authority to adopt rules
consistent with the policy and purposes of the TCAA; and USC, §7410(a)(2)(A),
which requires SIPs to include enforceable emission limitations and other
control measures or techniques, including economic incentives such as fees,
marketable permits, and auction of emission rights.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 9, 2001.
TRD-200101432
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 29, 2001
Proposal publication date: October 20, 2000
For further information, please call: (512) 239-0348
30 TAC §116.610, §116.615
STATUTORY AUTHORITY
The amendments are adopted under the Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; §382.017, which provides the commission the authority to adopt rules
consistent with the policy and purposes of the TCAA; and USC, §7410(a)(2)(A),
which requires SIPs to include enforceable emission limitations and other
control measures or techniques, including economic incentives such as fees,
marketable permits, and auction of emission rights.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 9, 2001.
TRD-200101433
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 29, 2001
Proposal publication date: October 20, 2000
For further information, please call: (512) 239-0348
30 TAC §116.711, §116.715
STATUTORY AUTHORITY
The amendments are adopted under the Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; §382.017, which provides the commission the authority to adopt rules
consistent with the policy and purposes of the TCAA; and USC, §7410(a)(2)(A),
which requires SIPs to include enforceable emission limitations and other
control measures or techniques, including economic incentives such as fees,
marketable permits, and auction of emission rights.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on March 9, 2001.
TRD-200101434
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 29, 2001
Proposal publication date: October 20, 2000
For further information, please call: (512) 239-0348
Subchapter F. MANAGEMENT OF USED OR SCRAP TIRES
Subchapter G. ACTION BY THE EXECUTIVE DIRECTOR
Chapter 106.
PERMITS BY RULE
Chapter 116.
CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION
7.
EMISSION REDUCTIONS: OFFSETS
Subchapter F. STANDARD PERMITS
Subchapter G. FLEXIBLE PERMITS
Chapter 328.
WASTE MINIMIZATION AND RECYCLING