Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 106.
PERMITS BY RULE
The Texas Natural Resource Conservation Commission (commission) proposes
new §106.8, Recordkeeping; and §106.263, Routine Maintenance, Start-up
and Shutdown of Facilities, and Temporary Maintenance Facilities; amendments
to §106.181, Small Boilers, Heaters, and Other Combustion Devices; §106.355,
Pipeline Metering, Purging, and Maintenance; §106.454, Degreasing Units;
and the repeal of §106.263, Repairs and Maintenance. The proposed new §106.8
would be placed in Chapter 106, Subchapter A, General Requirements. Subchapter
A would be submitted to the United States Environmental Protection Agency
(EPA) as a revision to the state implementation plan.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The proposed new §106.8 would specify recordkeeping requirements for
Chapter 106, Permits by Rule. While considering the implementation of Senate
Bill 766 in 2000, the commission received comments from the EPA stating that
Chapter 106 should include requirements that a source operating under a permit
by rule (PBR) be able to continuously demonstrate compliance with the general
requirements for use of a PBR and the specific conditions of the individual
PBR under which the source is authorized. Because of these developments and
in order to ensure enforceable limits on potential to emit for insignificant
facilities, the commission examined its recordkeeping requirements under Chapter
106 and is proposing amendments.
There are two distinct types of PBRs. Many PBRs only list the type of facility
and state that it is permitted by rule and have no restrictions other than
the general restrictions applicable to all PBRs as contained in §106.4,
Requirements for Permitting by Rule. These "one-liners" have no recordkeeping
requirements imposed by this proposal. Other PBRs have specific conditions
and may or may not individually require recordkeeping.
Those who claim a PBR should be aware of their compliance status and should
have records to demonstrate compliance with the emission limitations and conditions
available at the time of an investigation. The commission believes that recordkeeping
requirements should be kept to a minimum and avoid duplication. The proposed
recordkeeping requirements will be described in detail in the SECTION BY SECTION
DISCUSSION, but generally the recordkeeping requirements will be proposed
as follows. Facilities authorized under the one-liners will not have new recordkeeping
requirements imposed under this proposal. While these facilities are expected
to comply with the general restrictions in §106.4, the commission expects
that verification of compliance would be intuitively obvious on inspection
or could be demonstrated by records otherwise kept for business purposes.
Facilities currently required to keep records under a specific PBR would generally
be affected only by the record retention requirements of this proposal. Other
PBRs have specific construction or operational restrictions but do not contain
recordkeeping requirements. It is expected that these facilities should be
able to meet the proposed recordkeeping requirements with records kept for
normal business purposes such as material use and purchase records.
The second major concept of this proposal concerns the authorization of
routine maintenance, start-up, and shutdown emissions under a PBR. Under the
current version of §106.263, Repairs and Maintenance, a significant amount
of emissions (more than one occurrence of up to 25 tons) may be authorized.
This is not consistent with the maintenance reporting and exemption requirements
in §101.7, Maintenance, Start-up and Shutdown Reporting, Recordkeeping,
and Operational Requirements and §101.11, Exemptions from Rules and Regulations.
Under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.057,
the commission may exempt from permitting certain changes at facilities that
will not make a significant contribution of air contaminants to the atmosphere.
This proposal would limit the emissions from multiple maintenance, start-up,
and shutdown occurrences, as well as from facility operations associated with
maintenance activities, by requiring cumulative accounting of emissions on
an annual basis to ensure that the emissions are insignificant. This proposal
would also limit the use of §106.263 to maintenance, start-up or shutdown
activities that result in emissions below the reportable quantity (RQ) as
defined in §101.1(82), Definitions. Maintenance, start-up, or shutdown
emissions at or above the RQ must either be reported under §101.7 or
incorporated into the facility's permit. Other amendments to this chapter
are intended to clarify applicability for temporary maintenance facilities.
The proposed amendments to §106.181 would authorize the use of used
oil for fuel in small boilers and heaters. The proposed amendments to §106.355
would clarify the authorization of air emissions for certain pipeline construction
and operation and establish the relation of the section to the Chapter 101,
general air quality rules on maintenance. The proposed amendment to §106.454
would clarify the intended requirements for remote reservoir degreasers.
SECTION BY SECTION DISCUSSION
Subchapter A: General Requirements
The proposed new §106.8 would specify requirements for recordkeeping
and compliance demonstrations for all PBRs claimed. The creation and retention
of appropriate records showing continuing compliance with PBR requirements
has always been a responsibility of the facility owner or operator in order
to operate under a PBR. The new section would specify the types of records
that would be required to demonstrate compliance with the general conditions
of §106.4 and the condition of the individual PBR claimed. This new section
will affect all PBR claims, regardless of the date when the owner or operator
began using the PBR.
Proposed new §106.8(a) would state that owners or operators of facilities
operating under de minimis status as defined in §116.119, De Mimimis
Facilities or Sources, are not affected by this rule because no authorization
is required. The commission does not require records for de minimis sources.
The proposed new section also outlines the requirements for two types of
PBRs in §106.8(b) and (c), those referred to as "one-liners" (including
all of Chapter 106, Subchapter C, Domestic and Comfort Heating and Cooling)
and those which have specific conditions, respectively. One-liners are those
PBRs which only name the type of facility, designate it as permitted by rule,
and impose no other conditions in the PBR itself. Owners or operators of facilities
authorized by one-liners would not be required to maintain ongoing compliance
records but only collect and present information when individually requested
by the executive director. Compliance with all historical PBRs which meet
the one-liner criteria would be verified in the same way. The claimant would
only need to provide information, such as business records, to demonstrate
compliance with §106.4. All historical PBRs can be found on the commission's
website.
The commission has determined the following current sections of Chapter
106 meet the one-liner criteria and are referenced as Exhibit A: 1) Subchapter
C, Domestic and Comfort Heating and Cooling; §106.101, Domestic Use Facilities; §106.102,
Comfort Heating; and §106.103, Air Conditioning and Ventilation Systems;
2) Subchapter D, Analysis and Testing; §106.121, Hydraulic and Hydrostatic
Testing Equipment; §106.122, Bench Scale Laboratory Equipment; §106.123,
Vacuum-producing Devices for Laboratory Use; 3) Subchapter F, Animal Confinement; §106.163,
Race Tracks, Zoos, and Animal Shelters; 4) Subchapter I, Manufacturing; §106.228,
Platen Presses for Laminating; §106.229, Textile Dyeing and Stripping
Equipment; 5) Subchapter J, Food Preparation and Processing; §106.242,
Food Preparation; §106.244, Ovens, Barbecue Pits, and Cookers; 6) Subchapter
K, General; §106.265, Hand-held and Manually Operated Machines; §106.266,
Vacuum Cleaning Systems; 7) Subchapter L, Feed, Fiber, and Fertilizer; Division
1, Feed, §106.282, Feed Grinding Facilities; Division 2, Fiber, §106.291,
Cotton Gin Stands; Division 3, Fertilizer, §106.301, Aqueous Fertilizer
Storage; 8) Subchapter M, Metallurgy; §106.312, Wax Melting and Application; §106.314,
Shell Core and Mold Machines; §106.316, Metal Inspection; §106.317,
Miscellaneous Metal Equipment; §106.318, Die Casting Machines; 9) Subchapter
N, Mixers, Blenders, and Packaging; §106.331, Cosmetics Packaging and
Pharmaceutical Packaging and Coating; 10) Subchapter Q, Plastics and Rubber; §106.391,
Rubber and Plastic Curing Presses; §106.394, Plastic Compression and
Injection Molding; 11) Subchapter R, Service Industries; §106.411, Steam
or Dry Cleaning Equipment; §106.412, Fuel Dispensing; §106.413,
Bond Lining to Brake Shoes; §106.414, Packaging Lubes and Greases; §106.415,
Laundry Dryers; §106.419, Photographic Process Equipment; 12) Subchapter
S, Surface Coating; §106.431, Milling and Grinding of Coatings and Molding
Compounds; §106.434, Powder Coating Facility; 13) Subchapter T, Surface
Preparation; §106.451, Wet Blast Cleaning; 14) Subchapter U, Tanks, Storage,
and Loading; §106.471, Storage or Holding of Dry Natural Gas; and 15)
Subchapter X, Waste Processing and Remediation; §106.531, Sewage Treatment
Facility.
Owners or operators of all other facilities which are constructed, modified,
or operated under a PBR would be required to maintain records to demonstrate
that the facility meets the conditions of §106.4 and the applicable PBR
conditions. The form and content of these records would be specified in proposed
new §106.8(c)(1) - (5).
Proposed new §106.8(c)(1) would require that the owner or operator
of a facility permanently retain a copy of the PBR and general requirements
that authorized the facility's construction or changes. The PBR and general
requirements of Chapter 106 (previously §116.211, Standard Exemption
List) in effect at the time of the original authorization have historically
remained in effect as long as the facility is in existence and is not reconstructed
or changed. By keeping a copy of the PBR and general requirements in effect,
both the commission and the claimant understand any conditions and restrictions
which may apply to the facility. The commission maintains historical and current
copies of all PBRs and general requirements on its web site to assist the
regulated community in finding the appropriate claim. Copies are available
at
http://tnrcc.state.tx.us/air/nsr_permits/exempt.htm
or by contacting the executive director. These historical files also
help the regulated community and commission staff in those cases where the
actual construction or installation date cannot be determined. In those cases,
the commission would accept a demonstration of compliance with a PBR and general
requirements in effect when a clear record of the existence of the facility
has been established. The claimant could also choose to demonstrate compliance
with any PBR and general requirements in effect after the date a facility
was shown to be in existence.
Proposed new §106.8(c)(2) would require claimants to keep sufficient
information to demonstrate that the facility meets the requirements of §106.4
or the general conditions in effect at the time of construction or change
and meets all the conditions and requirements of the specific PBR claimed
including, but not limited to, air contaminant emission type and quantities,
equipment or operational specifications, and emission abatement limitations.
The information and data would have to be sufficient to demonstrate compliance
with all applicable requirements of §106.4. PBRs may contain conditions
to ensure emissions from facilities are insignificant in accordance with TCAA, §382.057,
Exemption, and §382.05196, Permits by Rule.
Detailed emission calculations are not necessary for demonstrating compliance
with all PBRs; therefore, proposed new §106.8 would not require emission
calculations for all PBR holders. Records of some operating parameters are
sufficient to demonstrate compliance with most PBRs. All PBR holders are encouraged
to use records they currently keep (production records, purchase records,
etc.) to demonstrate compliance with the emission limitations. Recordkeeping
frequency would vary depending upon the specific characteristics of a given
facility. Records of applicable operating parameters or emission calculations,
whichever is being used, would have to be summarized as often as needed (if
at all) to ensure that the owner or operator is aware of and can demonstrate
they are within the emission limitations. The limits are expressed in terms
of a rolling 12-month basis. PBR holders would have to factor the 12-month
rolling basis into their recordkeeping procedures.
In some cases, the only required calculation would be a one-time calculation
to demonstrate a facility is incapable of exceeding the limitations. In this
case, the PBR holder would be aware of their compliance status at all times
by virtue of the one-time calculation. No monthly or yearly summary would
be needed. In other cases, the PBR holder may be able to determine operating
limits, such as the total number of operating hours per month and/or production
rates that will ensure the facility remains below the emission limits. The
owners or operators of these facilities would only need to summarize the relevant
operating parameter on a monthly basis. Owners or operators of facilities
with more variable operations, such as a batch operation with varying emission
rates and operating hours, might need to calculate their emissions on a regular
basis.
A PI-7 Permit by Rule Registration Form, with required documentation, and
a Permit by Rule General Requirements Checklist could be used by claimants
to demonstrate initial compliance with this proposed section.
Other records that would be required under the proposed new §106.8(c)(2)
may include information regarding public notice where a site or commission
account has more than one facility authorized under a PBR and the combined
emissions of these facilities exceed the limitations of §106.4(a)(4).
In addition, a record of the date of construction or modification of the PBR
facility would demonstrate compliance with §106.4(a)(5). Conditions which
cannot change, such as distances from permanently affixed facilities to any
property line at the time of construction, or ambient operating temperatures
with no external, reaction, or raw material heating source, would not need
to be recorded. However, where equipment could be moved with relative ease,
new offsite receptors could be built, or external heat sources are on site,
pictorial records (construction drawings, photographs, temperature readings)
might be appropriate.
Since mechanisms and documents to address limitations, conditions, and
emission requirements vary widely based on the level of detail in each PBR,
the commission intends to provide guidance by developing and expanding checklists
for all current PBRs. These checklists are intended for use by the commission
and facility operators. Operators may also receive compliance assistance from
the commission's small business and local government assistance representatives.
Checklists and guidance documents would be posted on the commission's web
site. These checklists would assist the commission and claimants in identifying
which types of records might be used for compliance with the proposed new §106.8(c)(2).
To minimize duplication and unnecessary paperwork, the commission will focus
on records which may already be maintained by claimants for other business
reasons. The type of records generally envisioned include, but are not limited
to, production records, operating hours, material purchase or usage notations,
and/or emissions calculations. For example, compliance with the emission limits
of sulfur dioxide from a boiler firing natural gas could be demonstrated by
records of the sulfur content in the fuel gas (provided by the supplier) and
the volume of gas fired in the boiler (purchase receipts). Another example
would be a surface coating operation under §106.454 which currently requires
extensive materials and usage records to be created and summarized over various
periods of time.
The commission reviewed all PBRs to determine which claimants would most
likely be affected by the requirements of the proposed new §106.8(c)(2).
Three distinct categories of current PBRs have been identified by the commission:
1) PBRs which have neither specific conditions nor recordkeeping requirements
(referred to as one-liners in Exhibit A); 2) PBRs which contain specific recordkeeping
requirements (Exhibit B); and 3) PBRs which contain specific emission, operational,
or abatement conditions but no recordkeeping requirements (Exhibit C). Numerous
PBRs currently contain recordkeeping requirements, and these operators would
be moderately affected by the requirement to demonstrate their compliance
with §106.4. In many cases, claimants using these PBRs would only have
to retain the records that the individual PBR requires. These PBRs include
the following and are referenced as Exhibit B: 1) Subchapter G, Combustion; §106.183,
Boilers, Heaters, and Other Combustion Devices; 2) Subchapter I, Manufacturing; §106.224,
Aerospace Equipment and Parts Manufacturing; §106.225, Semiconductor
Manufacturing; §106.226, Paints, Varnishes, Ink, and Other Coating Manufacturing;
and §106.231, Manufacturing, Refinishing, and Restoring Wood Products;
3) Subchapter K, General; §106.261, Facilities (Emission Limitations); §106.263,
Repairs and Maintenance; 4) Subchapter O, Oil and Gas; §106.355, Metering,
Purging, and Maintenance of Pipelines; 5) Subchapter P, Plant Operations; §106.375,
Aqueous Solutions for Electrolytic and Electroless Processes; 6) Subchapter
Q, Plastics and Rubber; §106.392, Thermoset Resin Facilities; 7) Subchapter
R, Service Industries; §106.417, Ethylene Oxide Sterilizers; §106.418,
Printing Presses; 8) Subchapter S, Surface Coating; §106.433, Surface
Coat Facility; §106.436, Auto Body Refinishing Facility; 9) Subchapter
T, Surface Preparation; §106.452, Dry Abrasive Cleaning; §106.454,
Degreasing Units; 10) Subchapter V, Thermal Control Devices; §106.493,
Direct Flame Incinerators; §106.494, Pathological Waste Incinerators;
and §106.496, Trench Burners; 11) Subchapter W, Turbines and Engines; §106.512,
Stationary Engines and Turbines; and 12) Subchapter X, Waste Processes and
Remediation; §106.533, Water and Soil Remediation.
For owners or operators of facilities authorized by PBRs listed in Exhibit
B, proposed new §106.8 would require them to retain records for five
years and to be able to demonstrate compliance with the limits of §106.4
on a rolling 12-month basis. In most cases, the types of records that are
already required by the PBR would satisfy the requirements of proposed new §106.8.
Other PBRs have specific construction or operational restrictions but do
not contain recordkeeping requirements. Under proposed new §106.8(c)(2),
owners or operators of these facilities would be required to create operational
records to demonstrate compliance with individual PBR conditions, as well
as the general limitations of §106.4. These PBRs include the following
and are referenced as Exhibit C: 1) Subchapter D, Analysis and Testing; §106.124,
Pilot Plants; 2) Subchapter E, Aggregate and Pavement; §106.141, Batch
Mixers; §106.142, Rock Crushers; §106.143, Wet Sand and Gravel Production; §106.144,
Bulk Mineral Handling; §106.145, Bulk Sand Handling; §106.146, Soil
Stabilization Plants; §106.147, Asphalt Concrete Plants; §106.148,
Material Unloading; §106.149, Sand and Gravel Processing; §106.150,
Asphalt Silos; 3) Subchapter F, Animal Confinement; §106.161, Animal
Feeding Operations; §106.162, Livestock Auction Facilities; 4) Subchapter
G, Combustion; §106.181, Small Boilers, Heaters, and Other Combustion
Devices; §106.182, Ceramic Kilns; 5) Subchapter I, Manufacturing; §106.221,
Extrusion Presses; §106.223, Saw Mills; §106.227, Soldering, Brazing,
Welding; 6) Subchapter J, Food Preparation and Processing; §106.241,
Slaughterhouses; §106.243, Smokehouses; §106.245, Ethyl Alcohol
Facilities; 7) Subchapter K, General; §106.262, Facilities (Emission
and Distance Limitations) (Previously SE 118); §106.264, Replacements
of Facilities; 8) Subchapter L, Feed, Fiber, and Fertilizer; Division 1, Feed, §106.281,
Feed Milling; §106.283, Grain Handling, Storage, and Drying; Division
3, Fertilizer, §106.302, Portable Pipe Reactor; 9) Subchapter M, Metallurgy; §106.311,
Crucible or Pot Furnace; §106.313, Tumblers for Cleaning or Deburring
Metal; §106.315, Sand or Investment Molds; §106.317, Miscellaneous
Metal Equipment; §106.319, Foundry Sand Mold Forming Equipment; §106.320,
Miscellaneous Metallic Treatment; §106.321, Metal Melting and Holding
Furnaces; §106.322, Furnaces To Reclaim Aluminum or Copper; 10) Subchapter
N, Mixers, Blenders, and Packaging; §106.332, Chlorine Repackaging; §106.333,
Water-based Adhesive Mixers; 11) Subchapter O, Oil and Gas; §106.351,
Salt Water Disposal (Petroleum); §106.352, Oil and Gas Production Facilities; §106.353,
Temporary Oil and Gas Facilities; §106.354, Iron Sponge Gas Treating
Unit; 12) Subchapter P, Plant Operations; §106.371, Cooling Water Units; §106.372,
Industrial Gases; §106.373, Refrigeration Systems; §106.374, Lime
Slaking Facilities; §106.376, Decorative Chrome Plating; 13) Subchapter
Q, Plastics and Rubber; §106.393, Conveyance and Storage of Plastic and
Rubber Material; §106.395, Equipment for Mixing Plastic and Rubber (No
Solvent); §106.396, Equipment for Mixing Plastic and Rubber (With Solvent);
14) Subchapter R, Service Industries; §106.416, Uranium Recovery Facilities;
15) Subchapter S, Surface Coating; §106.432, Dipping Tanks and Containers;
16) Subchapter T, Surface Preparation; §106.453, Washing and Drying of
Glass and Metal (Previously SE 42); 17) Subchapter U, Tanks, Storage, and
Loading; §106.472, Organic and Inorganic Liquid Loading and Unloading; §106.473,
Organic Liquid Loading and Unloading; §106.474, Hydrochloric Acid Storage; §106.475,
Pressurized Tanks or Tanks Vented to a Firebox; §106.476, Pressurized
Tanks or Tanks Vented to Control; §106.477, Anhydrous Ammonia Storage; §106.478,
Storage Tank and Change of Service; 18) Subchapter V, Thermal Control Devices; §106.491,
Dual Chamber Incinerators; §106.492, Flares; §106.495, Heat Cleaning
Devices; 19) Subchapter W, Turbines and Engines; §106.511, Portable and
Emergency Engines and Turbines; and 20) Subchapter X, Waste Processing and
Remediation; §106.532, Water and Wastewater Treatment; §106.534,
Municipal Solid Waste Landfills and Transfer Stations.
For owners or operators of facilities authorized by PBRs listed in Exhibit
C, proposed new §106.8 would require them to keep records related to
emissions, to retain records for five years, and to be able to demonstrate
compliance with the limits of §106.4 on a rolling 12-month basis.
Proposed new §106.8(c)(3) would require that owners or operators maintain
records at the facility site unless the facility normally operates unattended,
in which case the records must be maintained at the location within the state
which controls operations of the facility.
Proposed new §106.8(c)(4) would require that records be made available
in a reviewable format at the request of personnel from the commission or
any air pollution control program having jurisdiction. This implies no requirement
as to the type of media on which the records are retained, and the commission
expects that a combination of computer files, strip charts, graphs, drawings,
pictures, operator logs, and other paper files (calculations, raw data, assumptions,
and summaries) would be used. The commission may require that these records
be duplicated when necessary at the facility owner or operator's expense and
submitted to the commission upon request. In cases where records are maintained
at a location other than the facility, the commission may require that the
records be delivered or mailed at operator's expense to a designated location.
Proposed new §106.8(c)(5) would require that owners or operators of
facilities authorized by PBR begin keeping records as required under proposed
new §106.8(c)(2) on January 1, 2002. As with all air permits and authorizations
issued by the commission, annual emission limits would have to be met on a
rolling 12-month basis. Owners or operators would be required to keep records
to demonstrate ongoing compliance with this section. A rolling 12-month period
means that records must be available to demonstrate compliance with conditions
of the individual PBR and §106.4 for any 12-month period within the five-year
retention period. Additionally, any data for the partial month of an inspection
should be available.
The five-year retention requirement is consistent with federal operating
permit requirements and other commission general rules and supercedes any
shorter periods noted in specific PBRs. Since new source review actions are
applicable requirements for Title V operating permits, the more stringent
five-year retention will apply to all major sources, regardless of the two-year
retention requirement in §116.115. The five-year retention period will
begin on January 1, 2002. The commission is soliciting comments on the five-year
retention requirement, especially as it affects small businesses and minor
sources, as a part of this notice.
Subchapter G: Combustion
The proposed amendments to §106.181 would revise the title of the
section and revise and restructure the text of the rule to clearly state that
this PBR applies only to small combustion units burning used oil.
Subchapter K: General
The current §106.263 has historically been used to authorize temporary
facilities and a wide variety of maintenance activities. The commission proposes
its repeal in order to replace it with a proposed new §106.263 which
would establish conditions for routine maintenance, routine start-up and shutdowns,
and temporary facilities associated with maintenance to ensure air emissions
from these activities and facilities meet the intent of TCAA, §382.057,
Exemptions. Many maintenance activities have the potential to emit significant
quantities of air contaminants which otherwise should be controlled or eliminated.
Under TCAA, §382.057, the commission may establish rules for "changes
within facilities if it is found upon investigation that such changes will
not make a significant contribution of air contaminants to the atmosphere."
Proposed new §106.263 could be claimed for insignificant air emissions
associated with the types of activities identified in the section. If a facility
could not meet the conditions of proposed new §106.263, the owner or
operator would be required to either obtain authorization under an air permit
or meet the requirements for exemption of unauthorized emissions under §101.11.
These mechanisms are used for different circumstances of maintenance, start-up,
and shutdown emissions. Emissions which are routine but insignificant (as
defined by §106.4 and specific PBR limits) and are not otherwise covered
by an air quality permit limit could be authorized under the new §106.263.
Significant emissions which are predictable and routine should be included
in the appropriate air quality permit. If total emissions from maintenance,
start-up, or shutdown activities could not meet the requirements of the proposed §106.263
and §106.4 and they are not otherwise authorized by a permit, the owner
or operator would need to report the emissions under §101.7 and meet
the requirements for an exemption under §101.11.
Proposed new §106.263(b) would establish the types of maintenance,
start-up and shutdown activities, and temporary maintenance facilities which
are excluded from authorization under this PBR. This PBR is not intended to
authorize permanent facilities. In addition, the proposed section would not
be applicable to facilities which do not have to obtain authorization under
Chapter 106, but instead meet the requirements of §116.119 for de minimis
facilities. Finally, some activities and temporary maintenance facilities
are authorized under other PBRs in Chapter 106. Specifically listed in the
rule are several PBRs which the commission has historically viewed as including
or addressing maintenance, start-up, or shutdown activity emissions. These
PBRs include: §106.231, Manufacturing, Refinishing, and Restoring Wood
Products; §106.351, Salt Water Disposal (Petroleum); §106.352, Oil
and Gas Production Facilities; §106.355, Metering, Purging, and Maintenance
of Pipelines; §106.392, Thermoset Resin Facilities; §106.418, Printing
Presses; §106.433, Surface Coat Facilities; §106.435, Classic or
Antique Automobile Restoration Facilities; §106.436, Auto Body Refinishing
Facility; §106.353, Temporary Oil and Gas Facilities; and §106.512,
Stationary Engines and Turbines. If facilities are operating under these designated
PBRs, use of the proposed new §106.263 would not be allowed in order
to prevent multiple uses of PBRs authorizing maintenance emissions.
Proposed new §106.263(c) would establish the types of maintenance,
start-up and shutdown activities, and temporary maintenance facilities which
can be authorized under this PBR. This subsection defines routine activities
as those which occur at a frequency of at least once per year so as to describe
what types of activities are reasonably expected to be part of normal operations.
Activities occurring less frequently than this would not be considered by
the commission to be part of normal facility operations. If not authorized
under either Chapter 106 or Chapter 116, Control of Air Pollution by Permits
for New Construction or Modification, these infrequent events should be reported
under §101.7.The commission is soliciting comments regarding the definition
of "routine" in this section.
Proposed new §106.263(c)(2) would cover maintenance which has the
potential to emit air contaminants at existing, permanent facilities. Maintenance
and associated start-up and shutdown activities are routine or planned activities
which keep a facility at normal operating parameters and are usually preventative
in nature. Since maintenance is part of normal operations and, in many cases,
facilities and processes usually require shutdown for these activities, additional
emissions associated with start-up and shutdown are included in this definition.
The proposed definition addresses all aspects of maintaining a facility and
includes: 1) cleaning where materials (water, steam, high pressure air, solvent,
detergent) are added to begin to clean or restore internal or external surfaces;
2) facility operation in a unique mode to clean (such as firing in a combustion
chamber to burn off deposits or pumps which are directed to circulate solvent
for restoration); or 3) the addition of lubrication and corrosion protection.
The proposed rule also specifies that maintenance does not include enhancements
nor construction, installation, or operation of permanent facilities. Enhancements
are any physical changes or changes in method of operation with insignificant
emissions increases, including changes at an existing facility that result
in improvements in unit capacity/capability beyond previously existing performance
levels. These enhancements would be specifically excluded from authorization
under this PBR. Potential emissions associated with enhancements and other
changes would have to be authorized under a permit or another PBR.
Proposed new §106.263(c)(3) would establish an authorization mechanism
for recurring start-ups and shutdowns. Consistent with Chapter 116 policies
and guidance, routine start-ups and shutdowns would be authorized under this
PBR and are expected to have emissions similar in nature to those during start-up
and shutdown for maintenance activities. The commission believes facilities
exist in at least one of three states or modes: start-up, normal operation,
or shutdown. Start-up is the set of activities and associated emissions that
prime and prepare a facility to transition from no production to production
at the normal operating range. Normal operation includes the common activities
of the facility, including maintenance. Shutdown is the period beginning where
the facility is brought below the normal operating range to ceasing operation,
and includes the emptying and degassing/depressurization of the equipment.
Shutdown ends at the point start-up begins. An upset can occur during any
of these states or modes, and emissions resulting from the upset are not intended
to be covered in this rule or by a permit and would need to be reported under §101.6,
Upset Reporting and Recordkeeping Requirements. The commission is soliciting
comments regarding the proposal to authorize routine start-up and shutdown
emission in this PBR.
Proposed new §106.263(c)(4) would include the construction and operation
of temporary facilities used to perform maintenance work. Several types of
temporary maintenance facilities have historically been registered and authorized
under the PBR in the current §106.263. In many cases, emissions from
temporary maintenance facilities occur at the same time as other maintenance
activities; therefore, keeping these requirements in a single PBR would reduce
duplication of records. The proposed new §106.263(c)(4)(A) - (E) would
specifically define five types of temporary facilities which would be covered
under this rule. These temporary maintenance facilities are included in this
proposal because they have been historically authorized by the commission
and have a record of insignificant emissions. No other temporary maintenance
facilities have been included in this rule, but the commission is soliciting
comment on further inclusions.
Proposed new §106.263(c)(4)(A) would include abrasive blasting, surface
preparation, and surface coating operations on immovable, fixed structures.
Historically, the commission has authorized these maintenance activities under
the current §106.263 if the blasting, surface preparation, and coating
supplies and equipment are taken to the object fixed in place and there is
no practical means of moving the object to a designated area for surface preparation.
These fixed objects include, but are not limited to, highway bridges, water
towers, and buildings. If an object can be taken to a designated area, then
other PBRs such as §106.433, Surface Coat Facility, and §106.452,
Dry Abrasive Cleaning, would apply. Proposed new §106.263(c)(4)(B) would
cover engines and turbines during testing and repair. Since 1995, the commission
has allowed testing of an engine or turbine to be considered part of the maintenance
on that unit and authorized emissions associated with testing under the current §106.263.
The stationary engines and turbines historically authorized under §106.512,
along with their routine maintenance, start-up, and shutdown, would not be
covered under the proposed new §106.263. During the next fiscal year,
the commission plans to develop a standard permit to cover these facilities.
Until a new PBR or standard permit is adopted which specifically addresses
engine and turbine testing, the proposed authorization as a temporary facility
in §106.263 is necessary.
Proposed new §106.263(c)(4)(C) would include engines, compressors,
and pumps which are associated with maintenance activities. These additional
units are frequently seen in the field when maintenance activities occur and
have historically been authorized under the PBR in the current §106.263.
The use of this PBR is not intended for replacement units, but only additional
facilities which are needed during maintenance. Proposed new §106.263(c)(4)(D)
would define several abatement units associated with controlled degassing
and cleaning of vessels. While abatement would not specifically be required
by this PBR, the proposed subparagraph would clarify under what conditions
control equipment, when used, would be authorized by this PBR. Finally, §106.263(c)(4)(E)
would define temporary piping and associated facilities which are needed to
bypass a unit or section of pipeline during maintenance situations. Such bypass
lines reduce or eliminate emissions during maintenance.
Proposed new §106.263(d) would address several limits associated with
the activities and facilities covered under this PBR. Proposed new §106.263(d)(1)(A)
- (E) would require the control systems identified in the proposed new §106.263(c)(4)(D)
to meet collection and destruction or removal efficiencies specified in other
current commission regulations when the systems are used. The limits of §106.263(d)(2)
- (5) are intended to ensure compliance with the TCAA. Proposed new §106.263(d)(2)
and (3) outline limitations on activity emissions in accordance with TCAA, §382.002.
Emission releases for any maintenance, start-up, or shutdown event are limited
to less than those values defined in §101.1(82), Reportable Quantities.
If activity emissions are greater than these values, by not authorizing them
in this PBR, the commission would be able to evaluate the event prior to occurrence
to ensure emissions are adequately controlled or minimized to the greatest
extent possible. Maintenance, start-up, or shutdown emissions above the reportable
quantities must be reported and qualify for exemption under §101.7 and §101.11.
The commission is soliciting comments on the RQ limitations proposed as discussed
earlier in this paragraph, particularly for oxides of nitrogen.
Additionally, proposed new §106.263(d)(3) would address the accumulation
of emissions over an annual period of time to ensure compliance with the intent
of Chapter 106 to authorize insignificant emissions. This paragraph would
limit the accumulation (stacking) of emissions over an annual period by specifying
that the emissions resulting from maintenance, start-up, and shutdown, as
well as associated temporary facilities at a site, must collectively be less
than any applicable emission limit in §106.4. By definition, individual
uses of PBRs authorize insignificant emissions. To date, there has been no
general mechanism by which the commission limits multiple uses of PBRs. This
is problematic because multiple uses of insignificant authorizations may result
in significant emissions, based on quantity or toxicity. The requirement that
emissions for maintenance and repair at a site do not collectively and cumulatively
exceed the emission requirements in §106.4 for any 12-month period is
intended to reduce unaccounted for emissions associated with maintenance and
repair.
To ensure that construction of all facilities and associated emissions
are properly authorized under either Chapter 116 or Chapter 106 in accordance
with TCAA, §382.051, proposed new §106.263(d)(4) and (5) contain
certain limitations. These paragraphs would require maintenance, start-up,
or shutdown activities that cannot meet the emission limitations in proposed §106.263(d)(2)
and (3) to either obtain a permit under Chapter 116 or report and meet the
requirements for exemption under §101.7 and §101.11. In addition,
proposed new §106.263(d)(5) would require an owner or operator of a temporary
facility that cannot meet the emissions limitations of proposed new §106.263(d)(3)
to obtain a preconstruction permit authorization under Chapter 116.
Proposed new §106.263(d)(6) would also outline requirements and restrictions
for activities and facilities to meet the requirements of the TCAA. This proposed
paragraph would establish the length of time temporary facilities are expected
to operate at a given location when being used to support maintenance activities.
In most cases, it is not expected that these facilities would operate for
more than 180 days. The proposed rule addresses maintenance activities requiring
the operation of temporary facilities for more than 180 days by requiring
registration of that facility with a PI-7 Registration Form. The commission
is expecting to use these registrations as one of the bases for possible future
rule changes after evaluation of short-term emission rates and associated
potential impacts to ensure protection of the public health and welfare.
Proposed new §106.263(e) would require specific records that demonstrate
compliance with all conditions of the section. These records would have to
be maintained in a format consistent with the format required by §101.7.
Review of quantifications of air emissions resulting from maintenance and
repair activities or temporary facilities associated with maintenance will
be used to determine whether short-term emission rates and the scope of the
PBR should be addressed in future regulations.
Subchapter O: Oil and Gas
The proposed amendments to §106.355 would slightly modify the section
title to become "Pipeline Metering, Purging, and Maintenance" and clarify
language and add conditions limiting certain emissions, defining the relationship
of this rule to others that are possibly applicable, and requiring recordkeeping.
The wording of the current section is not clear with respect to what pipelines
the commission intends to cover with this rule. The phrase "between separate
sites, as defined in §122.10(29) of this title (relating to Definitions)"
would be added to clarify that the section has historically covered pipeline
operations which are separate from process piping at a single site. Process
piping is covered by other sections of Chapter 106 or under an air quality
permit. Section 106.352, Oil and Gas Production Facilities, covers oil and
gas exploration and production pipelines. The commission determined §106.352
covers gas pipelines up to, but not beyond, the natural gas liquids plant
serving the line, as well as crude oil pipelines all the way to the initial
refining operation.
Proposed §106.355(2) would exclude uncontrolled releases of butadiene
to the atmosphere. Butadiene is highly toxic compound currently being reviewed
by the commission. Under the current version of this rule, up to one ton of
butadiene can be released to the atmosphere during any metering, purging,
or maintenance operation. By continuing to authorize controlled emissions
of butadiene through combustion in a smokeless flare, the proposed amendment
would continue to allow necessary maintenance and purging while being more
protective of the public's health and safety. A negligible amount of butadiene
is specified for those cases where it may apply.
Proposed §106.355(3) would exempt certain pipeline maintenance activities
involving sweet natural gas from recordkeeping requirements because generally
sweet natural gas is not a threat to the general public or their property.
This paragraph would also specifically prohibit venting of sweet natural gas
near a known or suspected ignition source to ensure public health and safety.
Proposed §106.355(4) would require the regulated community to meet
the requirements of this section in its entirety or to obtain authorization
under Chapter 116. It would also specify that complying with §101.7 and
meeting the requirements in §101.11 would be necessary in those cases
where authorization under this section or Chapter 116 is not possible. This
wording is necessary to ensure the regulated community is aware of its obligations
and choices under the TCAA and the rules of the commission.
Proposed §106.355(5) would require recordkeeping to demonstrate compliance
with the section. Operations authorized by proposed §106.355 would likely
include many different points on one or more pipelines belonging to a single
operator. This paragraph would allow the owner or operator to maintain all
records demonstrating compliance in a single set of files at an appropriate
site in Texas. The records would consist of the information required to describe
the maintenance activities and their associated emissions. To ensure clarity,
this paragraph would also state that the resetting of flow meters and their
calibration are considered routine operations, separate from maintenance and
purging.
Subchapter T: Surface Preparation
Proposed §106.454(3) would exclude remote reservoirs since they are
more specifically covered under §106.454(2). Even though remote reservoirs
may be a subset of cold solvent cleaners, the two types of equipment do not
operate in the same way and have different designs. In a remote reservoir
unit, the liquid solvent is pumped to a sink-like work area that drains solvent
back into an enclosed container while parts are being cleaned, allowing no
solvent to pool in the work area. Thus, a freeboard ratio requirement is not
applicable to remote reservoirs because the solvent does not pool around the
parts. For a cold solvent cleaner, the solvent does pool around the parts
and a freeboard is necessary. The purpose of the freeboard is to ensure that
when parts are placed into the solvent pool there is enough empty air space
between the solvent level and the top of the tank to minimize solvent drag
out when an air stream passes over the open reservoir. The design also prevents
solvent overflow when parts are placed in the pool, thus decreasing air emissions.
In summary, the commission is soliciting comments on the entire proposal
and specifically on several areas within this proposal, including: 1) the
five-year retention requirement in proposed new §106.8, especially as
it affects small businesses and minor sources; 2) the limitation of the proposed
new §106.263 for "routine" activities; 3) the inclusion in proposed new §106.263(c)(4)
of any additional temporary facilities historically used and reviewed by the
commission under the current §106.263; 4) the inclusion of routine start-up
and shutdown emissions in proposed new §106.263(c)(3); and 5) the limitation
of maintenance, start-up, and shutdown emissions to less than the reportable
quantities of §101.1, particularly oxides of nitrogen, in proposed new §106.263(d)(2).
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
determined that for the first five-year period the proposed rules are in effect,
there will be no significant fiscal implications to units of state or local
government as a result of implementation of the proposed rules. The proposed
rules are estimated to cost units of state and local government up to $500
per year to comply with expanded recordkeeping requirements for facilities
that are small air emission sources authorized to operate by an air quality
PBR.
The proposed rules are intended to specify recordkeeping requirements and
compliance demonstrations; clarify applicability for used-oil combustion activities;
update and clarify the proper use of PBRs for routine start-up, shut down,
and maintenance activities and associated temporary maintenance facilities
which may emit air contaminants; and clarify applicable requirements for remote
reservoir cleaning facilities. The commission estimates that there will be
fiscal implications, which are not anticipated to be significant, to units
of state and local government due to implementation of the recordkeeping requirements
of this proposal. The remaining provisions are procedural in nature and are
not expected to result in additional fiscal implications for units of state
and local government.
The proposed recordkeeping requirements will affect all past, present,
and future facilities permitted by rule by the commission since 1972. Owners
and operators of businesses, local governments, school and water districts,
and small governmental organizations which have used PBRs to authorize construction,
changes to, or operation of insignificant emission sources would be required
to retain records beginning January 1, 2002. The specific types of records
to be retained will depend on the requirements of the PBR, but could include
a copy of the PBR and general requirements claimed, production records, operating
hours, material purchase or usage records, or emission calculations. All records
would have to be kept at the facility site or nearest support office and made
available upon request. Additionally, the proposal would require that records
be retained for five years and that records be maintained that demonstrate
compliance with annual emission limits on a rolling 12- month basis.
There are numerous PBRs that already require recordkeeping. Examples of
facilities and operations include: boilers, heaters, and other combustion
devices; aerospace equipment and parts manufacturing; semiconductor manufacturing;
paint, varnishes, ink, and other coating manufacturing; surface coating facilities;
and stationary engines and turbines. The primary impact to these facilities
would be the extension of records retention from a few months to five years.
Additionally, there are PBRs that have specific construction or operational
restrictions but do not contain recordkeeping requirements. The proposal would
require these facilities to create operational records to demonstrate compliance
beginning on January 1, 2002. These facilities would also have to adhere to
the five-year records retention requirement. Examples of these facilities
and operations include: pilot plants, batch mixers, rock crushers, wet sand
and gravel productions, asphalt concrete plants, animal feeding operations,
small boilers and heaters, temporary oil and gas facilities, and municipal
solid waste landfills and transfer stations. Owners and operators which claim
emissions for maintenance activities under a PBR instead of an air permit
would also have to keep records to ensure emissions are insignificant and
the facility meets conditions of the rules.
The final grouping of facilities affected by the proposed rules are those
sources that would not be required to retain ongoing compliance records but
would only have to collect and present information when individually requested.
The level of detail in the records these facilities would have to retain would
depend on the specific requirements in the facility's PBR. Examples of these
facilities and operations include: hydraulic and hydrostatic testing equipment;
bench scale laboratory equipment; race tracks, zoos, and animal shelters;
vacuum cleaning systems; aqueous fertilizer storage; wet blast cleaning; powder
coating facilities; photographic process equipment; and sewage treatment facilities.
The total number of units of state and local government affected by the
proposed rules cannot be determined at this time. The majority of facilities
seeking PBRs since 1972 have not been required to register with the commission.
Of those that do require registration, the commission processes approximately
4,000 PBR applications per year. The commission estimates that a comparatively
small number of affected facilities are owned and operated by units of state
and local government and many already maintain records to show compliance.
However, there may be a small number that have not kept information that would
now be required to do so by the proposed rules. The overall cost to comply
with the recordkeeping requirements is estimated not to exceed $500 a year,
depending on the current level of recordkeeping at a facility and the complexity
of the records required to be maintained based on the applicable PBR. Included
in the compliance cost is the purchase of filing space and administrative
supplies, printing of records, and the initial training of persons responsible
for maintaining the records. No fiscal implications are anticipated to units
of state and local government with facilities that are not required to retain
ongoing compliance records.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed rules are in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rules would be increased compliance with
air emission standards due to more extensive record retention requirements.
The proposed rules are intended to specify recordkeeping requirements and
compliance demonstrations for past, present, and future air quality PBRs issued
by the commission; clarify applicability for used-oil combustion activities;
update and clarify the proper use of PBRs for routine maintenance activities
and associated facilities which may emit air contaminants; and clarify applicable
requirements for remote reservoir cleaning facilities. The commission estimates
that there will be fiscal implications, which are not anticipated to be significant,
to private businesses due to implementation of the recordkeeping requirements
of this proposal. The remaining provisions are procedural in nature and are
not expected to result in additional fiscal implications to individuals or
private businesses.
The proposed recordkeeping requirements will affect past, present, and
future facilities permitted by rule by the commission since 1972. Owners and
operators of businesses which have used PBRs to authorize construction, changes
to, or operation of insignificant emission sources would be required to retain
records beginning January 1, 2002. The specific types of records to be retained
will depend on the requirements of the PBR, but could include a copy of the
current PBR, production records, operating hours, material purchase or usage
records, or emission calculations. All records would have to be kept at the
facility site or nearest support office and made available upon request. Additionally,
the proposal would require that records be retained for five years and that
records be retained that demonstrate compliance with annual emission limits
on a rolling 12-month basis.
The total number of businesses throughout the state affected by the proposed
rules could exceed 100,000, with 70,000 being small or micro-businesses. The
majority of facilities seeking PBRs since 1972 have not been required to register
with the commission. Of those that do require registration, the commission
processes approximately 4,000 PBR applications per year, the majority of which
are submitted by private businesses. The registrations are broken down by
the following: 1,200 registrations per year for stationary engines and turbines
and oil and gas production facilities; 800 registrations per year for miscellaneous
facilities and emission releases; 400 registrations per year for surface coating
and auto body refinishing facilities; 400 registrations per year for water
and soil remediation operations; 400 registrations per year for aggregate,
sand, and material handling operations; 400 registrations per year for materials
loading, unloading, and storage in tanks and vessels; and 400 registrations
per year for trench burning operations. The overall cost to comply with the
recordkeeping requirements is estimated not to exceed $500 a year, depending
on the current level of recordkeeping at a facility and the complexity of
the records required to be retained based on the applicable PBR. Included
in the compliance cost is the purchase of filing space and administrative
supplies, printing of records, and the initial training of persons responsible
for maintaining the records. No fiscal implications are anticipated to companies
with facilities that are not required to retain ongoing compliance records.
The total state-wide costs to comply with this proposal is estimated not
to exceed approximately $50 million a year.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be adverse fiscal implications, which are not anticipated to
be significant, for small or micro-businesses as a result of implementation
of the proposed rules. These proposed rules are intended to specify recordkeeping
requirements and compliance demonstrations for past, present, and future air
quality PBRs issued by the commission; clarify applicability for used-oil
combustion activities; update and clarify the proper use of PBRs for routine
start-up, shut down, and maintenance activities and associated temporary maintenance
facilities which may emit air contaminants; and clarify applicable requirements
for remote reservoir cleaning facilities.
The proposed rules will affect a wide range of small and micro-businesses
that utilize PBRs to authorize construction, changes to, or operation of insignificant
emission sources by requiring the retention of compliance records beginning
January 1, 2002. The specific types of records to be maintained will depend
on the requirements of the PBR and the general requirements of the chapter,
but could include a copy of the current PBR, production records, operating
hours, material purchase or usage records, or emission calculations. All records
would have to be kept at the facility site or nearest support office and made
available upon request from commission staff or any air pollution control
program having jurisdiction.
Small and micro-businesses apply for PBRs in a wide variety of categories,
including the following: manufacturing, refinishing, and restoring of wood
products; foundry sand mold forming equipment; aqueous solutions for electrolytic
and electroless processes; thermostat resin facilities; printing presses;
dry abrasive cleaning; organic and inorganic liquid loading and unloading;
and hydrochloric acid storage.
The commission has researched the number of facilities that are considered
to be small or micro- businesses that may be subject to PBRs and has determined
that at least 70,000 small and micro- businesses may be affected by the proposed
rules. It is estimated that the majority of small and micro- businesses affected
by the proposed rules are already required to retain compliance records and
would have to implement the five-year retention requirement to comply with
the new standards. The overall cost to comply with the recordkeeping requirements
is estimated not to exceed $500 a year, depending on the current level of
recordkeeping at a facility and the complexity of the records required to
be maintained based on the applicable PBR. Included in the compliance cost
is the purchase of filing space and administrative supplies, printing of records,
and the initial training of persons responsible for maintaining the records.
No fiscal implications are anticipated to small or micro-businesses with facilities
that are not required to retain ongoing compliance records.
The following is an analysis of the cost per employee for small or micro-businesses
affected by the proposed rules. It is estimated that it will cost affected
small or micro-businesses up to approximately $500 per year to comply with
the proposed rules. A small business with 100 employees would incur costs
of approximately $5.00 per employee while a micro-businesses with 20 employees
would incur costs of approximately $25 per employee. The overall cost associated
with these rules is not expected to change with the number of employees employed,
but the cost per employee would vary depending on the number of persons employed
by an affected business.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rules in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
this proposal is not subject to §2001.0225 because it does not meet the
definition of a "major environmental rule" as defined in that statute. "Major
environmental rule" means a rule the specific intent of which is to protect
the environment or reduce risks to human health from environmental exposure
and that may adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state.
This proposal is not a major environmental rule because its primary purpose
is not to protect the environment or reduce risks to human health from environmental
exposure, but rather to specify the types of records required to ensure compliance
with the individual and general conditions of PBRs and to specify the activities
which may be authorized under particular PBRs. Specifically, the new and amended
sections relate to recordkeeping requirements for all PBRs; emissions related
to maintenance on facilities and emissions related to temporary maintenance
facilities; pipeline metering, purging, and maintenance; specifications for
cold solvent remote reservoir cleaners; and the applicability of the PBR for
used oil combustion units.
In addition, a draft regulatory impact analysis is not required because
the rules do not meet any of the four applicability criteria for requiring
a regulatory analysis of a "major environmental rule" as defined in the Texas
Government Code. Section 2001.0225 applies only 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. First, this proposal does
not exceed a standard set by federal law, but it is consistent with federal
standards relating to emissions monitoring and recordkeeping requirements.
Second, this proposal does not exceed an express requirement of state law
because it is authorized by the following state statutes: Texas Government
Code, §2001.004, which requires state agencies to adopt rules of practice;
TCAA, §382.016, which authorizes the commission to require the measuring
and monitoring of air contaminant emissions from a source or activity and
to require that associated records of the emissions be made and maintained; §382.051,
which authorizes the commission's permitting activities; §382.05196,
which authorizes the commission to adopt PBRs; §382.057, which establishes
the commission's authority concerning exemptions; as well as the other sections
cited in the STATUTORY AUTHORITY section of this preamble. Third, this proposal
does not exceed a requirement of a delegation agreement or contract between
the state and an agency or representative of the federal government to implement
a state and federal program. The state is required to have a minor stationary
source program under 42 United States Code, §7410(a)(2)(C), and PBRs
are part of the minor stationary source program. Fourth, this proposal was
not developed solely under the general powers of the agency, but was specifically
developed under the specific state laws and authorizations noted in the STATUTORY
AUTHORITY section of this preamble. The commission invites public comment
on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for these proposed
rules pursuant to Texas Government Code, §2007.043. The following is
a summary of that assessment. The specific primary purpose of the proposed
rules is to revise the rules to establish and clarify the requirements for
compliance demonstrations and the activities which may be authorized under
particular PBRs. The proposed rules will substantially advance these stated
purposes by providing specific rule provisions that address these matters.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking because they do not affect private real
property. Specifically, the subject proposed rules do not affect a landowner's
rights in private real property because this proposal does not burden (constitutionally),
nor restrict or limit the owner's right to property and reduce its value by
25% or more beyond that which would otherwise exist in the absence of the
rules.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that the proposed rulemaking relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201 et seq.), and the commissions rules in 30 TAC Chapter
281, Subchapter B, concerning Consistency with the CMP. As required by §281.45(a)(3)
and 31 TAC §505.11(b)(2), relating to actions and rules subject to the
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 rules of the Coastal Coordination Council, and determined that the
action is consistent with the applicable CMP goals and policies.
The CMP goal applicable to this rulemaking action is the goal to protect,
preserve, and enhance the diversity and quality, quantity, functions, and
values of coastal natural resource areas (31 TAC §501.12(1)). In carrying
out it's duty to maintain and control the state's air quality, the commission
is proposing to clarify the regulatory requirements in Chapter 106, which
authorizes facilities and associated activities that will not make a significant
contribution of air contaminants to the atmosphere. Specifically, the proposal
clarifies the application and use of the specific PBRs addressed in this proposal
and clarifies the general recordkeeping requirements for all PBRs. In addition,
the CMP policy applicable to this action is the policy that commission rules
comply with regulations in 40 Code of Federal Regulations (CFR), to protect
and enhance air quality in the coastal area (31 TAC §501.14(q)). This
action complies with 40 CFR 50, National Primary and Secondary Ambient Air
Quality Standards. Therefore, in compliance with 31 TAC §505.22(e), this
rulemaking action is consistent with CMP goals and policies. Interested persons
may submit comments on the consistency of the proposed rules with the CMP
during the public comment period.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Because Chapter 106 contains applicable requirements under 30 TAC Chapter
122 (Federal Operating Permits), owners or operators subject to the Federal
Operating Permit Program must, consistent with the revision process in Chapter
122, revise their operating permit to include the revised Chapter 106 requirements
for each emission unit affected by the revisions to Chapter 106 at their site.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held May 29, 2001, at 10:00 a.m.
in Room 2210, Building F, located at 12100 Park 35 Circle, Austin. The hearing
will be structured for the receipt of oral or written comments by interested
persons. Individuals may present oral statements when called upon in order
of registration. There will be no open discussion during the hearing; however,
a commission staff member will be available to discuss the proposal 30 minutes
before the hearing and will answer questions before and after the hearing.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087;
or by fax at (512) 239-4808. All comments must be received on June 4, 2001,
and should reference Rule Log No. 2000-051-106-AI. Comments received by 5:00
p.m. on that date will be considered by the commission before any final action
on the proposal. For further information, please contact Jill Burditt at (512)
239-0560.
Subchapter A. GENERAL REQUIREMENTS
30 TAC §106.8
STATUTORY AUTHORITY
The new section is proposed under Texas Water Code (TWC), §5.103,
which authorizes the commission to adopt rules necessary to carry out its
powers and duties under the TWC, and under the Texas Health and Safety Code,
TCAA, §382.017, which provides the commission authority to adopt rules
consistent with the policy and purposes of the TCAA. The new section is also
proposed under TCAA, §382.002, which establishes the commission's purpose
to safeguard the state's air resources consistent with the protection of public
health, general welfare, and physical property; §382.011, which authorizes
the commission to control the quality of the state's air; §382.016, which
authorizes the commission to require the measuring and monitoring of emissions
of air contaminants from a source or activity and to require that associated
records of the emissions be made and maintained; §382.051, which authorizes
the commission's permitting activities; §382.05196, which authorizes
the commission to adopt PBRs for certain facilities that will not make a significant
contribution of air contaminants to the atmosphere; §382.057, which establishes
the commission's authority concerning facilities and changes to facilities
that will not make a significant contribution of air contaminants to the atmosphere;
and Texas Government Code, §2001.004, which requires state agencies to
adopt procedural rules.
The proposed new section implements TCAA, §382.011, relating to General
Powers and Duties; §382.016, relating to Monitoring Requirements; Examination
of Records; §382.05196, relating to Permits by Rule; and §382.057,
relating to Exemption. The proposed new section also implements TWC, §5.103,
relating to Rules; and Texas Government Code, §2001.004, relating to
Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions.
§106.8.Recordkeeping.
(a)
Owners or operators of facilities and sources that are
de minimis as designated in §116.119 of this title (relating to De Minimis
Facilities or Sources) are not subject to this section.
(b)
Owners or operators of facilities operating under a permit
by rule (PBR) in Subchapter C of this chapter (relating to Domestic and Comfort
Heating and Cooling) or under those PBRs that only name the type of facility
and impose no other conditions in the PBR itself do not need to comply with
specific recordkeeping requirements of subsection (c) of this section. A list
of these PBRs will be available through the commission. Upon request from
the commission or any air pollution control program having jurisdiction, claimants
must provide information that would demonstrate compliance with §106.4
of this title (relating to Requirements for Permitting by Rule) and the PBR
under which the facility is authorized.
(c)
Owners or operators of all other facilities authorized
to be constructed and operate under a PBR must retain records as follows:
(1)
permanently maintain a copy of each PBR and the applicable
general conditions under which the facility is operating. The PBR and general
requirements claimed should be the version in effect at the time of construction
or changes to an existing facility whichever is most recent. The PBR holder
may elect to comply with a more recent version of the applicable PBR and general
requirements;
(2)
maintain records containing sufficient information to demonstrate
compliance with the following:
(A)
all applicable requirements of §106.4 of this title
or the general requirements, if any, in effect at the time of the claim; and
(B)
all applicable PBR conditions;
(3)
keep all required records at the facility site. If however,
the facility normally operates unattended, records must be maintained at an
office within Texas having day-to-day operational control of the plant site;
(4)
make the records available in a reviewable format at the
request of personnel from the commission or any air pollution control program
having jurisdiction; and
(5)
beginning January 1, 2002, keep records to support a compliance
demonstration for any consecutive 12-month period. All records must be retained
for at least five years.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on April 23, 2001.
TRD-200102314
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 4, 2001
For further information, please call: (512) 239-4712
30 TAC §106.181
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, which
authorizes the commission to adopt rules necessary to carry out its powers
and duties under the TWC, and under the Texas Health and Safety Code, TCAA, §382.017,
which provides the commission authority to adopt rules consistent with the
policy and purposes of the TCAA. The amendment is also proposed under TCAA, §382.002,
which establishes the commission's purpose to safeguard the state's air resources
consistent with the protection of public health, general welfare, and physical
property; §382.011, which authorizes the commission to control the quality
of the state's air; §382.016, which authorizes the commission to require
the measuring and monitoring of emissions of air contaminants from a source
or activity and to require that associated records of the emissions be made
and maintained; §382.051, which authorizes the commission's permitting
activities; §382.05196, which authorizes the commission to adopt permits
by rule for certain facilities that will not make a significant contribution
of air contaminants to the atmosphere; §382.057, which establishes the
commission's authority concerning facilities and changes to facilities that
will not make a significant contribution of air contaminants to the atmosphere;
and Texas Government Code, §2001.004, which requires state agencies to
adopt procedural rules.
The proposed amendment implements TCAA, §382.011, relating to General
Powers and Duties; §382.016, relating to Monitoring Requirements; Examination
of Records; §382.05196, relating to Permits by Rule; and §382.057,
relating to Exemption. The proposed amendment also implements TWC, §5.103,
relating to Rules; and Texas Government Code, §2001.004, relating to
Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions.
Used-Oil Combustion Units
[
[
Small boilers
and
[
(1)
the combustion unit or combination of combustion units
at the same account have a maximum capacity of 1.0 million Btu per hour (MMBtu/hr)
and each individual combustion unit is not greater than 0.5 MMBtu/hr;
(2)
the combustion gases from the combustion unit(s) are vented
to the ambient air in accordance with the following requirements:
(A)
through an unobstructed vent; or
(B)
through a vertical vent with a cap; and
(i)
a flat roof, through a minimum of a three-foot stack; or
(ii)
a sloped roof, through a stack that is at least three
feet higher than the highest point on the roof or three feet higher than a
point extending ten feet horizontally from the roof; and
(3)
the combustion unit(s) burns only used oil the owner or
operator generates on-site or used oil received from household do-it-yourself
used oil generators.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 23, 2001.
TRD-200102315
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 4, 2001
For further information, please call: (512) 239-4712
30 TAC §106.263
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Water Code (TWC), §5.103, which
authorizes the commission to adopt rules necessary to carry out its powers
and duties under the TWC, and under the Texas Health and Safety Code, TCAA, §382.017,
which provides the commission authority to adopt rules consistent with the
policy and purposes of the TCAA. The repeal is also proposed under TCAA, §382.002,
which establishes the commission's purpose to safeguard the state's air resources
consistent with the protection of public health, general welfare, and physical
property; §382.011, which authorizes the commission to control the quality
of the state's air; §382.016, which authorizes the commission to require
the measuring and monitoring of emissions of air contaminants from a source
or activity and to require that associated records of the emissions be made
and maintained; §382.051, which authorizes the commission's permitting
activities; §382.05196, which authorizes the commission to adopt permits
by rule for certain facilities that will not make a significant contribution
of air contaminants to the atmosphere; §382.057, which establishes the
commission's authority concerning facilities and changes to facilities that
will not make a significant contribution of air contaminants to the atmosphere;
and Texas Government Code, §2001.004, which requires state agencies to
adopt procedural rules.
The proposed repeal implements TCAA, §382.011, relating to General
Powers and Duties; §382.016, relating to Monitoring Requirements; Examination
of Records; §382.017, relating to Rules; §382.05196, relating to
Permits by Rule; and §382.057, relating to Exemption. The proposed repeal
also implements TWC, §5.103, relating to Rules; and Texas Government
Code, §2001.004, relating to Requirement to Adopt Rules of Practice and
Index Rules, Orders, and Decisions.
§106.263.Repairs and Maintenance.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 23, 2001.
TRD-200102316
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 4, 2001
For further information, please call: (512) 239-4712
STATUTORY AUTHORITY
The new section is proposed under Texas Water Code (TWC), §5.103,
which authorizes the commission to adopt rules necessary to carry out its
powers and duties under the TWC, and under the Texas Health and Safety Code,
TCAA, §382.017, which provides the commission authority to adopt rules
consistent with the policy and purposes of the TCAA. The new section is also
proposed under TCAA, §382.002, which establishes the commission's purpose
to safeguard the state's air resources consistent with the protection of public
health, general welfare, and physical property; §382.011, which authorizes
the commission to control the quality of the state's air; §382.016, which
authorizes the commission to require the measuring and monitoring of emissions
of air contaminants from a source or activity and to require that associated
records of the emissions be made and maintained; §382.051, which authorizes
the commission's permitting activities; §382.05196, which authorizes
the commission to adopt permits by rule for certain facilities that will not
make a significant contribution of air contaminants to the atmosphere; §382.057,
which establishes the commission's authority concerning facilities and changes
to facilities that will not make a significant contribution of air contaminants
to the atmosphere; and Texas Government Code, §2001.004, which requires
state agencies to adopt procedural rules.
The proposed new section implements TCAA, §382.011, relating to General
Powers and Duties; §382.016, relating to Monitoring Requirements; Examination
of Records; §382.017, relating to Rules; §382.05196, relating to
Permits by Rule; and §382.057, relating to Exemption. The proposed new
section also implements TWC, §5.103, relating to Rules; and Texas Government
Code, §2001.004, relating to Requirement to Adopt Rules of Practice and
Index Rules, Orders, and Decisions.
§106.263.Routine Maintenance, Start-up and Shutdown of Facilities, and Temporary Maintenance Facilities.
(a)
This section authorizes routine maintenance, start-up and
shutdown of facilities, and specific temporary maintenance facilities except
as specified in subsection (b) of this section.
(b)
The following maintenance, start-up and shutdown of facilities,
and new facilities are not authorized under this section:
(1)
construction of any new or modified permanent facility;
(2)
facilities and sources that are de minimis as allowed in §116.119
of this title (relating to De Minimis Facilities or Sources); and
(3)
any emissions associated with operations claimed under
the following sections of this chapter:
(A)
§106.231 of this title (relating to Manufacturing,
Refinishing, and Restoring Wood Products);
(B)
§106.351 of this title (relating to Salt Water Disposal
(Petroleum));
(C)
§106.352 of this title (relating to Oil and Gas Production
Facilities);
(D)
§106.353 of this title (relating to Temporary Oil
and Gas Facilities);
(E)
§106.355 of this title (relating to Pipeline Metering,
Purging, and Maintenance);
(F)
§106.392 of this title (relating to Thermoset Resin
Facilities);
(G)
§106.418 of this title (relating to Printing Presses);
(H)
§106.433 of this title (relating to Surface Coat Facility);
(I)
§106.435 of this title (relating to Classic or Antique
Automobile Restoration Facility);
(J)
§106.436 of this title (relating to Auto Body Refinishing
Facility); and
(K)
§106.512 of this title (relating to Stationary Engines
and Turbines).
(c)
The following activities and facilities are authorized
under this section:
(1)
routine activities which are those that are planned or
can be projected to occur at least once in any 12-month period;
(2)
maintenance, including associated start-up and shutdown,
which includes recurring or planned activities which keep a facility at normal
operating parameters or repairs which return a facility to normal operating
parameters and are not considered "reconstruction" under 40 Code of Federal
Regulations 60, New Source Performance Standards, Subpart A, §60.15 (relating
to Reconstruction) and which does not include enhancement of facilities nor
construction, installation, or operation of permanent facilities;
(3)
start-up and shutdown activities which are part of normal
facility operation; and
(4)
temporary maintenance facilities which are constructed
in conjunction with maintenance activities. Temporary maintenance facilities
include only the following:
(A)
facilities used for abrasive blasting, surface preparation,
and surface coating on immovable fixed structures;
(B)
facilities used for testing and repair of engines and turbines;
(C)
compressors, pumps, or engines and associated pipes, valves,
flanges, and connections, not operating as a replacement for an existing authorized
unit;
(D)
flares, vapor combustors, catalytic oxidizers, thermal
oxidizers, carbon adsorption units, and other control devices used to control
vent gases released during the degassing of immovable, fixed process vessels,
storage vessels, and associated piping to atmospheric pressure, plus cleaning
apparatus that will have or cause emissions; and
(E)
temporary piping required to bypass a unit or pipeline
section undergoing maintenance.
(d)
Emission and operational limits for maintenance, start-up
and shutdown of facilities, and specific temporary maintenance facilities
are as follows.
(1)
Temporary facilities defined in subsection (c)(4)(D) of
this section are limited to the following:
(A)
flares or vapor combustors must meet the requirements of §106.492(1)
and (2)(C) of this title (relating to Flares);
(B)
catalytic oxidizers must meet the requirements of §106.533(5)(C)
of this title (relating to Water and Soil Remediation);
(C)
thermal oxidizers must meet the requirements of §106.493(2)
and (3) of this title (relating to Direct Flame Incinerators);
(D)
carbon adsorption systems must meet the requirements of §106.533(5)(D)
of this title; and
(E)
other control devices used to control vents caused by the
degassing of process vessels, storage vessels, and associated piping have
an overall vapor collection and destruction or removal efficiency of at least
90%.
(2)
Emissions from each maintenance, start-up, and shutdown
event, not including temporary maintenance facilities, are limited to 24-hour
emission totals which are less than the reportable quantities defined in §101.1(82)
of this title (relating to Definitions).
(3)
Emissions from all activities and temporary maintenance
facilities covered by this section for a site must collectively and cumulatively
be less than any applicable emission limit under all subsections of §106.4
of this title (relating to Requirements for Permitting by Rule) in any rolling
12-month period.
(4)
Any maintenance, start-up, or shutdown activity that cannot
meet the limitations of paragraphs (2) and (3) of this subsection must be
authorized under Chapter 116 of this title (relating to Control of Air Pollution
by Permits for New Construction or Modification) or comply with §101.7
and §101.11 of this title (relating to Maintenance, Start-up and Shutdown
Reporting, Recordkeeping, and Operational Requirements, and Demonstrations).
(5)
Any temporary maintenance facility that cannot meet the
limitations of paragraph (3) of this subsection must obtain authorization
under Chapter 116 of this title.
(6)
Temporary maintenance facilities may not operate at a given
location for longer than 180 consecutive days or the completion of a single
project unless the facility is registered. If a single project requires more
than 180 consecutive days to complete, the facilities must be registered using
a PI-7 Form, along with documentation on the project. Registration and supporting
documentation shall be submitted upon determining the length of the project
will exceed 180 days, but no later than 180 days after the project begins.
(e)
Facility owners or operators must retain records containing
sufficient information to demonstrate compliance with this section and must
include information listed in paragraphs (1) - (5) of this subsection. Documentation
must be separate and distinct from records maintained for any other air authorization.
Records must identify the following for all maintenance, start-up, or shutdown
activities and temporary maintenance facilities:
(1)
the type and reason for the activity or facility construction;
(2)
the processes and equipment involved;
(3)
the date, time, and duration of the activity or facility
operation;
(4)
the air contaminants and amounts which are emitted as a
result of the activity or facility operation; and
(5)
any actions taken to minimize the emissions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 23, 2001.
TRD-200102317
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 4, 2001
For further information, please call: (512) 239-4712
30 TAC §106.355
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, which
authorizes the commission to adopt rules necessary to carry out its powers
and duties under the TWC, and under the Texas Health and Safety Code, TCAA, §382.017,
which provides the commission authority to adopt rules consistent with the
policy and purposes of the TCAA. The amendment is also proposed under TCAA, §382.002,
which establishes the commission's purpose to safeguard the state's air resources
consistent with the protection of public health, general welfare, and physical
property; §382.011, which authorizes the commission to control the quality
of the state's air; §382.016, which authorizes the commission to require
the measuring and monitoring of emissions of air contaminants from a source
or activity and to require that associated records of the emissions be made
and maintained; §382.051, which authorizes the commission's permitting
activities; §382.05196, which authorizes the commission to adopt permits
by rule for certain facilities that will not make a significant contribution
of air contaminants to the atmosphere; §382.057, which establishes the
commission's authority concerning facilities and changes to facilities that
will not make a significant contribution of air contaminants to the atmosphere;
and Texas Government Code, §2001.004, which requires state agencies to
adopt procedural rules.
The proposed amendment implements TCAA, §382.011, relating to General
Powers and Duties; §382.016, relating to Monitoring Requirements; Examination
of Records; §382.017, relating to Rules; §382.05196, relating to
Permits by Rule; and §382.057, relating to Exemption. The proposed new
section also implements TWC, §5.103, relating to Rules; and Texas Government
Code, §2001.004, relating to Requirement to Adopt Rules of Practice and
Index Rules, Orders, and Decisions
Pipeline
Metering, Purging,
and Maintenance [
Metering, purging, and maintenance operations for gaseous and liquid
petroleum pipelines (including ethylene, propylene, butylene, and butadiene
pipelines)
between separate sites, as defined in §122.10(29) of
this title (relating to General Definitions),
, are permitted by rule
provided that operations are conducted according to the following conditions
of this section:
(1)
emissions of volatile organic compounds except
equipment
leak
fugitive emissions, are burned in a smokeless flare; or
(2)
total
uncontrolled
emissions of any air contaminant
may
[
(3)
venting of sweet, commercial grade natural gas from pipelines
is exempt from paragraphs (1)
,
[
(4)
if any maintenance activity cannot meet
all of the requirements of this section, or the emissions are not authorized
under Chapter 116 (relating to Control of Air Pollution by Permits for New
Construction or Modification), then activities must comply with §101.7
and §101.11 of this title (relating to Maintenance, Start-up and Shutdown
Reporting, Recordkeeping, and Operational Requirements; and Demonstrations).
(5)
records of all maintenance and purging
emissions must be kept by the owner or operator of the facility or group of
facilities at the nearest office within Texas having day-to-day operational
control. These records must include all information required in this paragraph
and in paragraphs (1) - (4) of this section. Resetting flow meters (changing
orifice plates, etc.) and calibration of meters are considered routine operations
under this rule, not maintenance or purging. Records must identify the following
for all maintenance and purging activities covered by this section:
(A)
the type and reason for the activity;
(B)
the processes and equipment involved;
(C)
the date, time, and duration of the activity;
(D)
the air contaminants and amounts which are emitted as a
result of the activity; and
(E)
the actions taken, if any, to minimize the emissions.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State, on April 23, 2001.
TRD-200102318
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 4, 2001
For further information, please call: (512) 239-4712
30 TAC §106.454
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, which
authorizes the commission to adopt rules necessary to carry out its powers
and duties under the TWC, and under the Texas Health and Safety Code, TCAA, §382.017,
which provides the commission authority to adopt rules consistent with the
policy and purposes of the TCAA. The amendment is also proposed under TCAA, §382.002,
which establishes the commission's purpose to safeguard the state's air resources
consistent with the protection of public health, general welfare, and physical
property; §382.011, which authorizes the commission to control the quality
of the state's air; §382.016, which authorizes the commission to require
the measuring and monitoring of emissions of air contaminants from a source
or activity and to require that associated records of the emissions be made
and maintained; §382.051, which authorizes the commission's permitting
activities; §382.05196, which authorizes the commission to adopt permits
by rule for certain facilities that will not make a significant contribution
of air contaminants to the atmosphere; §382.057, which establishes the
commission's authority concerning facilities and changes to facilities that
will not make a significant contribution of air contaminants to the atmosphere;
and Texas Government Code, §2001.004, which requires state agencies to
adopt procedural rules.
The proposed amendment implements TCAA, §382.011, relating to General
Powers and Duties; §382.016, relating to Monitoring Requirements; Examination
of Records; §382.017, relating to Rules; §382.05196, relating to
Permits by Rule; and §382.057, relating to Exemption. The proposed amendment
section also implements TWC, §5.103, relating to Rules; and Texas Government
Code, §2001.004, relating to Requirement to Adopt Rules of Practice and
Index Rules, Orders, and Decisions.
§106.454.Degreasing Units.
Any degreasing unit that satisfies the following conditions of this
section is permitted by rule.
(1) - (2)
(No change.)
(3)
The following conditions apply only to cold solvent cleaners
, not including remote reservoirs
.
(A) - (F)
(No change.)
(4) - (5)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 23, 2001.
TRD-200102319
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 4, 2001
For further information, please call: (512) 239-4712
The Texas Natural Resource Conservation Commission (agency, commission,
or TNRCC) proposes amendments to 30 TAC Chapter 279, Water Quality Certification, §§279.1
- 279.12; the repeal of §279.13; and new §279.13; to revise procedures
for waivers of certification, amend enforcement provisions, and modify existing
language for consistency with other agency rules.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Title 33 United States Code (USC), §1341, commonly known as the federal
Clean Water Act (CWA), §401, requires all applicants for a federal license
or permit to conduct any activity that may result in a discharge into navigable
waters, including the construction or operation of facilities, to request
a certification from the state that the discharge will comply with state water
quality standards. The commission rules in Chapter 279 contain the procedures
for public notice and review of any such activity proposed to be authorized
by federal permit, including applications for dredge and fill permits issued
by the U.S. Army Corps of Engineers (Corps). Under Chapter 279, the commission
reviews the proposed activity for compliance with 30 TAC Chapter 307, Water
Quality Standards, and Texas Water Code (TWC), §26.011, §26.023, §26.027, §26.121,
and §26.127, which direct the commission to act to protect the quality
of water in the state. The proposed amendments would provide for the executive
director either to review the proposed activity or to waive certification.
The amendments would also specifically allow the executive director to
waive certification when the applicant agrees to include specific water quality-related
conditions in the permit. The amendments would also add detail concerning
the time and procedures for the executive director's review of permit applications.
The proposed amendments would expand the category of persons who may request
a public meeting, allow the executive director to waive public notice in an
emergency or when certification is waived, more clearly describe the type
of public meetings that may be held on certification decisions in response
to public comments received, and change notice requirements for public meetings.
If the executive director grants, grants conditionally, or denies certification,
the proposed amendments would specify the contents of the statement of this
decision. The proposed amendments would specify the persons to receive notice
of a decision, and, if the activity is certified, a statement of reasonable
assurance that the proposed activity will not violate water quality standards.
Finally, this proposal would require applicants to comply with agreements
and permit conditions resulting from the certification procedures in these
rules, and provide for enforcement for noncompliance.
The commission proposes these changes in order to partially restructure
the certification process, making it less cumbersome and more flexible. Some
of the proposed amendments are the outgrowth of recent discussions and agreements
with the Corps aimed at streamlining certification procedures on §404
permits. Some of the proposed amendments reflect the commission's and the
Corps' conclusions, upon review of past practices, that the system should
be revised to maximize interagency cooperation and minimize possible duplication
of effort.
SECTION BY SECTION DISCUSSION
Section 279.1 is proposed to be amended to eliminate unnecessary recitation
of language from the federal CWA.
Section 279.2(a) and (b) is proposed to be amended to make grammatical
corrections and to change references from "TNRCC" to "agency," from "Clean
Water Act" to "CWA," and from "Commission" to "commission," for consistency
with style conventions of the
Texas Register
and to reflect current definitions in Chapter 3 of this title. Subsection
(b)(4) is proposed to be amended to clarify that the executive director may
waive certification upon agreement of an applicant to include and comply with
water quality-related conditions in the applicant's federal permit. Section
279.2(c) is proposed to be amended to delete the provision that a commissioner
may request that the commission review a certification application prior to
the executive director's action on it.
Section 279.3 is proposed to be amended to clarify and update the following
definitions to clarify acronyms, reflect accurate citations to law and regulations
for consistency with definitions found elsewhere, and to make grammatical
corrections: 401 Certification, 404 permit, applicant, aquatic ecosystem,
Clean Water Act, emergency, general permit, individual permit, licensing or
permitting agency, nationwide permit, National Pollutant Discharge Elimination
System (NPDES) permit, regional administrator, and water dependent activity.
The definition of "pollutant" would be changed to conform to TWC, §26.001.
The definitions of "affected person" and "person" are proposed to be deleted
because these terms are being eliminated from the proposed rules. The definition
of "water quality limited segment" is proposed to be deleted because this
term has never been used in the rules. The definitions of "commission" and
"executive director" are proposed to be deleted because these terms are already
defined in Chapter 3 of this title. Definitions have been re-numbered to reflect
these changes.
Section 279.4(a) - (e) is proposed to clarify the use of acronyms, to accurately
refer to "water" rather than "waters in the state," and to make grammatical
corrections. Subsection (b)(3) is proposed to be amended to provide that the
executive director may review the final permit decision document before acting
on a request for certification.
Section 279.5(a) is proposed to be amended to make a grammatical correction,
change "permit agency" to "permitting agency" to be consistent throughout
the rules, and eliminate unnecessary references and redundant language. Section
279.5(b) is proposed to be amended to make a grammatical correction and to
clarify an ambiguous pronoun. Subsection (b)(8) is proposed to be amended
to use a common acronym (EPA) defined in Chapter 3 of this title. Subsection
(b)(11) is proposed to be deleted because interested persons must respond
to the notice, and a list of interested persons making comments on the certification
will not be available until after the notice required by this section is mailed.
Subsection (c)(3) is proposed to be amended to use a current definition (federal
CWA) in Chapter 3 of this title. Subsection (c)(4) is proposed to be amended
to use a current definition (agency instead of commission) in Chapter 3 of
this title and to specify an agency mail code. Subsection (c)(6) is proposed
to be amended for consistency with current commission rules and terminology
on public meetings and to reflect that any person may request a public meeting.
Throughout this section, the term "public hearing" has been changed to "public
meeting" to clarify that the proceeding contemplated in this chapter is a
notice and comment meeting rather than an evidentiary contested case hearing.
Section 279.5(d) is proposed to be added to state that the executive director
may waive the notice requirements of this subsection when a permit review
will be waived. Old §279.5(d) (renumbered §279.5(e)) is proposed
to be amended to bring the section into consistency with commission rules
and terminology on public meetings, to make the references to later sections
of Chapter 279 conform to their new titles proposed to be amended in this
rulemaking, to reflect current definitions (agency instead of commission)
in Chapter 3 of this title, and to make grammatical corrections.
Section 279.6 is proposed to be amended by removing the requirement for
the executive director to consider comments when certification is waived or
when public notice has been waived in an emergency.
The title to §279.7 is proposed to be amended to make the distinction
between a hearing and a public meeting. Section 279.7(a) is proposed to be
amended to provide consistency with commission rules and terminology on public
meetings, to clarify that the executive director may conduct a public meeting
on any application for 401 certification based on public comments received
during the public comment period or at a request from a commissioner, and
to remove the reference to affected person. Subsection (a)(1) - (4) is proposed
to be deleted to make requests for a public meeting easier and not restricted
only to affected persons. Section 279.7(b) is proposed to be amended to clarify
that the executive director shall notify the appropriate agencies that the
executive director will make a certification decision after a public meeting
and to provide consistency with commission rules and terminology on public
meetings. Section 279.7(c) is proposed to be amended to provide consistency
with commission rules and terminology on public meetings and to make a grammatical
correction.
The title to §279.8 is proposed to be amended to provide consistency
with commission rules and terminology on public meetings. Section 279.8(a)
is proposed to be amended to change the number of days for the executive director
to notify the applicant of a public meeting from 30 days to ten days to streamline
and facilitate the certification process. Section 279.8(a) and (b) is also
proposed to be amended to provide consistency with commission rules and terminology
on public meetings, and to make a grammatical correction. Subsection (c)(2)
is proposed to be amended to clarify that certifications deal with the discharge
of pollutants, not the disposal of waste. Subsection (c)(3) is proposed to
be amended to make its wording parallel with subsection (c)(2), to clarify
that certifications deal with present or future activities, not only with
present facilities, and to clarify that certifications deal with the discharge
of pollutants, not the disposal of waste. Subsection (c)(8) is proposed to
be amended to use a current acronym (EPA) defined in Chapter 3 of this title.
Subsection (c)(11) is proposed to be amended to clarify that any person who
commented during the public comment period will be notified of a public meeting.
Section 279.8(d) is proposed to be amended to provide consistency with commission
rules and terminology on public meetings, make grammatical corrections, and
reduce the notice time for public meetings from 30 days to ten days, consistent
with the proposed amendment to §279.8(a).
Section 279.9 is proposed to be amended to give the executive director
wider discretion to waive certification and certification review as allowed
by the federal CWA. Section 279.9(a) is proposed to be amended to provide
that the executive director shall either conduct a review or waive certification.
Section 279.9(b) is proposed to be amended to require that if the executive
director conducts a review, after the review and any public meeting, the executive
director shall make a determination on the proposed activity. Subsection (b)(2)
is proposed to be amended to clarify which sections of the federal CWA that
state certifications cover.
Section 279.10 is proposed to be amended to enumerate the actions the executive
director may take on a certification consistent with procedures identified
in the NPDES MOA. The title to §279.10 is proposed to be amended to use
a current definition (agency instead of commission) in Chapter 3 of this title
and to spell out the acronym for NPDES. Section 279.10(a) is proposed to be
amended to use a common acronym (EPA) defined in Chapter 3 of this title,
to enumerate the actions the executive director may take on a certification,
and to make a grammatical correction. Subsection (a)(2) is proposed to be
amended to make a grammatical correction and to use a common acronym (CWA)
defined in Chapter 3 of this title. Subsection (a)(3) is proposed to be amended
to use a current definition (agency instead of commission) from Chapter 3
of this title, to use a common acronym (CWA) defined in Chapter 3 of this
title, and to eliminate an unnecessary recitation of language from the federal
CWA. Subsection (a)(4) is proposed to be amended to eliminate an unnecessary
recitation of language from the federal CWA.
The title to §279.11 is proposed to be amended to use a current definition
(agency instead of commission) from Chapter 3 of this title. Section 279.11(a)
is proposed to be amended to give the executive director the discretion whether
to review or waive certification of any particular permit application. Section
279.11(c) is proposed to be amended to clarify the procedures to be followed
if the executive director reviews a permit application. Subsection (c)(1)
is proposed to be amended to make grammatical corrections and to reduce the
burden on the applicant of demonstrating no practicable alternative. Subsection
(c)(2) and (3) is proposed to be amended to make grammatical corrections.
Subsection (c)(4) is proposed to be amended to make grammatical corrections
to more clearly express that if the executive director determines the proposed
compensatory mitigation will not accomplish the purpose and policy of this
chapter, then certification may be denied even if alternatives are not available.
Section 279.11(d) is proposed to be amended to clarify what actions the executive
director may take, who shall receive notice of the executive director's decision,
and to make a grammatical correction. Old subsection (d)(2) and (3) is proposed
for reorganization. Renumbered subsection (d)(2) is proposed to be amended
to clarify the contents of the statement of the executive director's decision,
including a description of the materials and information reviewed from old
subsection (d)(2), and to make a grammatical correction. Old subsection (d)(3)(A)
is proposed for deletion, with needed concepts incorporated into proposed
amendments to the old subsection (d)(3). Renumbered subsection (d)(2)(A) is
amended to specify the contents of the statement of the executive director's
decision if the activity is certified. Renumbered subsection (d)(2)(A)(i)
is proposed to be amended to make grammatical corrections clarifying that
the executive director must include a statement of reasonable assurance that
the activity, if conducted in accordance with the terms of the proposed permit,
will not violate the criteria enumerated in §279.9. Renumbered subsection
(d)(2)(A)(ii) is proposed to be amended to make a grammatical correction.
Renumbered subsection (d)(2)(B) is proposed to be amended to clarify that
if a certification is denied, the executive director's statement must include
an explanation of how the proposed activity will not satisfy one or more of
the criteria enumerated in §279.9.
Section 279.12(a)(1) is proposed to be amended to make grammatical corrections
and to be consistent with state legal terminology. Section 279.12(a)(2) is
proposed to be amended to make a grammatical correction, to delete subsection
(a)(2)(D) - (F), because a list of appropriate or interested persons making
comments on the certification will not be maintained until after the notice
required by this section is mailed, and to make appropriate grammatical and
punctuation corrections to subsection (a)(2)(B) and (C). Subsection (a)(3)
is proposed to be amended to specify that the comments considered should be
received in accordance with §279.5 of this title. Subsection (a)(4) is
proposed to be amended to clarify that the executive director shall maintain
a list of all applicable nationwide permits and the executive director's certification
action on each permit. Subsection (b)(1) is proposed to be amended to make
grammatical corrections and to be consistent with state legal terminology.
Subsection (b)(2) is proposed to be amended to make a grammatical correction,
to delete subsection (b)(2)(D) - (F) because a list of appropriate or interested
persons making comments on the certification will not be maintained until
after the notice required by this section is mailed, and to make appropriate
grammatical and punctuation corrections to subsection (b)(2)(B) and (C). Subsection
(b)(3) is proposed to be amended to specify that the comments considered should
be received in accordance with §279.5 of this title. Subsection (b)(4)
is proposed to be amended to clarify that the executive director shall maintain
a list of all applicable general permits and the executive director's certification
action on each permit. Old subsection (c)(2) is proposed to be deleted, and
its language moved to old subsection (c)(1) that is proposed to be changed
to an introductory paragraph for subsection (c). The new introductory paragraph
now specifies that the executive director shall send notice to the specified
persons and agencies of the decision to deny, grant, grant conditionally,
or waive certification, and has a grammatical correction. All remaining subheadings
in subsection (c) are proposed to be renumbered accordingly. Old subsection
(c)(1)(B) (newly renumbered subsection (c)(2)) is proposed to be amended to
require that a statement of the basis for the executive director's decision,
including a description of the materials and information examined, shall be
included in the certification notice; this requirement was formerly included
in old subsection (c)(1)(C). New subsection (c)(2)(A) is proposed to be added
to specify what the executive director's statement must include if the activity
is certified. Old subsection (c)(1)(B)(i) (newly renumbered subsection (c)(2)(A)(i))
is proposed to be amended to state that the executive director's statement
must include reasonable assurance that the activity, if conducted in accordance
with the terms of the proposed permit, will not violate criteria enumerated
in §279.9; this requirement had been included in old subsection (c)(2)(C)(ii)(I).
Newly renumbered subsection (c)(2)(A)(ii) is proposed to be amended to require
that the executive director's statement must include any monitoring and reporting
requirements necessary to assure compliance with criteria enumerated in §279.9;
this requirement had been included in old subsection (c)(2)(C)(ii)(II). New
subsection (c)(2)(B) is proposed to be added to state that if certification
is denied, the executive director's statement must include an explanation
of why the proposed activity will not satisfy one or more of the criteria
enumerated in §279.9; this requirement had been included in old subsection
(c)(2)(C)(iii). Old subsection (c)(2)(C) is proposed to be deleted because
its provisions have been fully incorporated into newly renumbered subsection
(c)(2). Old subsection (c)(2) is proposed to be deleted because its provisions
have been fully incorporated into the introductory paragraph of §279.12(c).
Section 279.13 is proposed to be repealed. New §279.13 is proposed
to eliminate outdated references, and to clarify the agency's existing enforcement
authority in the 401 Certification program.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Strategic Planning and Appropriations Division, determined
that for the first five-year period the proposed amendments are in effect
there will not be significant fiscal implications for the commission or other
units of state and local government as a result of administration or enforcement
of the proposed amendments.
The commission proposes these amendments in order to revise procedures
for waiving certification, standardizing enforcement provisions, and clarifying
existing language for consistency with other commission rules. The proposed
amendments do not change the type or number of activities subject to review
under the existing rules.
Some of the proposed amendments will facilitate procedures designed to
cooperatively streamline certifications of Corps 404 permits. TNRCC recently
entered into an MOA with the Corps, the purpose of which is to implement a
process for interagency cooperation and review of individual 404 permit applications
under the federal CWA, §401, while maintaining state water quality standards
in §404 projects. Section 404 permits are issued by the Corps under the
authority of the federal CWA, §404, which authorizes the discharge of
dredged or fill material into the waters of the United States. This fill or
dredged material may be used in such projects as marsh construction; new road
construction by the Texas Department of Transportation (TxDOT); industrial
expansion along the Houston Ship Channel; individual residential development;
commercial real estate development; cities re-channeling streams; or other
activities in wetlands, low-lying areas, and coastal areas.
The proposed amendments do not introduce additional regulatory requirements,
and are intended to maximize the efficient use of resources at both agencies.
There may be cost savings for the commission as a result of adopting the proposed
amendments, but these are not considered to be significant.
PUBLIC BENEFIT AND COSTS
Mr. Horvath also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated from
enforcement of and compliance with the proposed amendments would be the maintenance
of state water quality standards, the elimination of unnecessary duplication
of effort for the review of permits, and the streamlining of the 401 certification
process. Historically, there have been between 150 to 200 Corps permits per
year subject to individual review by the commission.
The commission proposes these amendments in order to facilitate the implementation
of the MOA with the Corps by revising procedures for waivers of certification,
standardizing enforcement provisions, and clarifying existing language for
consistency with other agency rules. The proposed amendments do not change
the type or number of activities subject to review under the existing rules.
The purpose of the MOA is to implement a process for interagency cooperation
and review of individual 404 permit applications under the federal CWA, §401,
while maintaining state water quality standards in §404 projects. Section
404 permits are issued by the Corps under the authority of the federal CWA, §404,
which authorizes the discharge of dredged or fill material into the waters
of the United States. This fill or dredged material may be used in such projects
as marsh construction; new road construction by TxDOT; industrial expansion
along the Houston Ship Channel; individual residential development; commercial
real estate development; cities re-channeling streams; or other activities
in wetlands, low-lying areas, and coastal areas. The proposed amendments will
provide for substantial compliance with state water quality standards, provide
for effective and efficient use of resources at both agencies, and the streamlining
of the 401 certification process.
The MOA designates two tiers for 401 certification procedures. Tier 1 projects
would include those that will result in a direct impact to three acres or
less of water in the state including wetlands, or 1,500 linear feet or less
of streams. Projects that impact certain types of rare or ecologically significant
wetlands are not included in this tier.
If the applicant chooses to use Tier 1, a statement will be signed indicating
that applicable requirements and a TNRCC checklist of best management practices
(BMPs) will be satisfied. An applicant's election to incorporate the BMPs
and other requirements allows a 404 permit application to proceed without
further review by the TNRCC. The BMPs selected by the applicant and other
provisions of the checklist become part of the 404 permit and are subject
to enforcement.
For Tier II projects, the TNRCC will participate in the pre-application
process to the maximum extent practicable and provide the Corps with specific
comments on water quality impacts during the public notice comment period
up until the issuance of the Corps' decision document. Water quality issues
raised by the agency during the public comment period are to be incorporated
into the decision document. This revised process eliminates duplicative reviews
and raises issues early in the review process thereby reducing the potential
for conflicting or inconsistent decisions from the Corps and TNRCC.
The proposed amendments do not introduce additional regulatory requirements,
and are intended to maximize the efficient use of resources at both agencies.
The TNRCC does not assess application fees for the review of 404 permits and
no fees are proposed under this rulemaking. Therefore, any cost savings to
applicants are not considered significant. However, applicants may realize
reduced processing times and increased consistency in the certification process.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal implications for small or micro-businesses
as a result of implementation of the proposed amendments. The proposed amendments
would maintain state water quality standards, eliminate unnecessary duplication
of effort for the review of permits, and streamline the 401 certification
process. However, applicants may realize reduced processing times and increased
consistency in the certification process as a result of the rulemaking. Historically,
there have been between 150 to 200 Corps permits per year subject to individual
review by the TNRCC.
The commission proposes these amendments in order to facilitate the implementation
of an MOA with the Corps by revising procedures for waivers of certification,
standardizing enforcement provisions, and clarifying existing language for
consistency with other agency rules. The proposed amendments do not change
the type or number of activities subject to review under the existing rules.
The purpose of the MOA is to implement a process for interagency cooperation
and review of individual 404 permit applications under the federal CWA, §401,
while maintaining state water quality standards in §404 projects. Section
404 permits are issued by the Corps under the authority of the federal CWA, §404,
which authorizes the discharge of dredged or fill material into the waters
of the United States. This fill or dredged material may be used in such projects
as marsh construction; new road construction by TxDOT; industrial expansion
along the Houston Ship Channel; individual residential development; commercial
real estate development; cities re-channeling streams; or other activities
in wetlands, low-lying areas, and coastal areas. The proposed amendments will
provide for substantial compliance with state water quality standards, provide
for effective and efficient use of resources at both agencies, and the streamlining
of the 401 certification process.
The MOA between the TNRCC and the Corps would designate two tiers for 401
certification procedures. Tier 1 projects would include those that will result
in a direct impact to three acres or less of water in the state including
wetlands, or 1500 linear feet or less of streams. Projects that impact certain
types of rare or ecologically significant wetlands are not included in this
tier.
If the applicant chooses to use Tier 1, a statement would be signed indicating
that applicable requirements and a TNRCC checklist of BMPs will be satisfied.
An applicant's election to incorporate the BMPs and other requirements allows
a §404 permit application to proceed without further review by the TNRCC.
The BMPs selected by the applicant and other provisions of the checklist become
part of the 404 permit and are subject to enforcement.
For Tier II projects, the TNRCC will participate in the pre-application
process to the maximum extent practicable and provide the Corps with specific
comments on water quality impacts during the public notice comment period
up until the issuance of the Corps' decision document. Water quality issues
raised by the agency during the public comment period are to be incorporated
into the decision document. This revised process eliminates duplicative reviews
and raises issues early in the review process thereby reducing the potential
for conflicting or inconsistent decisions from the Corps and TNRCC.
The proposed amendments do not introduce additional regulatory requirements,
and are intended to maximize the efficient use of resources at both agencies.
The TNRCC does not assess application fees for the review of 404 permits and
no fees are proposed under this rulemaking. Therefore, any cost savings to
applicants are not considered significant.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act.
The intent of the rules and rule amendments is to protect the environment
or reduce risks to human health from environmental exposure. The rule amendments
will not have an adverse material impact because the amendments only revise
procedures for waivers of certification, amend enforcement provisions, and
clarify existing language for consistency with other agency rules, and the
amendments do not change the type or number of activities subject to review
under the existing rules. Therefore, the proposed rule amendments do not meet
the definition of a "major environmental rule." Furthermore, the rulemaking
does not meet any of the four applicability requirements listed in §2001.0225(a).
The rules and rule amendments do not exceed a standard set by federal or state
law; the rules as a whole do exceed the express requirements of state law,
but the rules are specifically required by the federal CWA, §401, for
any state agency that chooses to certify §401 permits; the rules and
rule amendments do not exceed a requirement of a federal delegation agreement
or a contract between the state and an agency or representative of the federal
government to implement a state and federal program; and the rules and rule
amendments are not adopted solely under the general powers of the agency,
but rather under TWC, §§26.011, 26.023, 26.027, 26.121, and 26.127.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed amendments and performed a preliminary
assessment in accordance with Texas Government Code, Chapter 2007. The following
is a summary of that assessment. The specific purpose of the proposed amendments
is to more effectively implement the MOA with the Corps regarding federal
CWA, §401 provisions. The purpose of the MOA is to implement a process
for interagency cooperation and TNRCC review of individual 404 permit applications
under the CWA, §401. The proposed amendments would substantially advance
this stated purpose by revising procedures for waivers of certification, amending
enforcement provisions, and clarifying existing language for consistency with
other commission rules.
Promulgation and enforcement of these proposed amendments would be neither
a statutory nor a constitutional taking of private real property. Specifically,
the proposed amendments do not affect a landowner's rights in private real
property because this rulemaking action does not constitutionally burden,
restrict, nor limit the owner's right to property, nor does it reduce a property's
value by 25% or more beyond that which would otherwise exist in the absence
of the amendments. Instead, the proposed amendments merely clarify existing
language, revise procedures, and amend enforcement provisions of rules that
have been in place for 13 years; rules that require an applicant for a federal
wetlands discharge permit to demonstrate to the state that the discharge will
not pollute water in the state. Consequently, the proposed amendments do not
meet the definition of a taking under Texas Government Code, §2007.002(5).
The proposed amendments are reasonably taken to fulfill the requirements of
state law to control the quality of the state's water and will not constitute
a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rules
are identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Texas Coastal Management Program
(CMP), or will affect an action or authorization identified in Coastal Coordination
Act Implementation Rules, 31 TAC §505.11(a)(6), and will, therefore,
require that applicable goals and policies of the CMP be considered during
the rulemaking process. The commission determined that the proposed action
is consistent with the applicable CMP goals and policies.
The goals of the CMP in 31 TAC §501.12 applicable to the proposed
rules include: 1) to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of the Coastal Natural Resource Areas
(CNRAs); 2) to ensure sound management of all coastal resources by allowing
for compatible economic development and multiple human uses of the coastal
zone; 3) to minimize loss of human life and property due to the impairment
and loss of protective features of CNRAs; 5) to balance the benefits from
economic development and multiple human uses of the coastal zone; the benefits
from protecting, preserving, restoring, and enhancing CRNAs; the benefits
from minimizing loss of human life and property; and the benefits from public
access to and enjoyment of the coastal zone; and 7) to make agency and local
government decision-making affecting CNRAs efficient by identifying and addressing
duplication and conflicts among local, state, and federal regulatory and other
programs for the management of CNRAs. Of the 18 policies contained in 30 TAC §501.14,
relating to Policies for Specific Activities and Coastal Natural Resource
Areas, only one, (j) Dredging and Dredged Material Disposal and Placement,
is applicable to these proposed rules.
The commission reviewed these rules for consistency with the goals and
policies of the CMP mentioned previously, and determined that the rules are
consistent with the intent of the five applicable goals and the one applicable
policy, and will not result in any significant adverse effects to CNRAs. Promulgation
and enforcement of these rules will not violate any standards identified in
the applicable CMP goals and policies because these rules implement provisions
under TWC, §§26.011, 26.023, 26.027, 26.121, and 26.127, which direct
the commission to act to protect the quality of water in the state. These
rules amend procedures for public notice and the review of applications for
water quality certification, which is consistent with the applicable goals
and policies of the CMP. The commission seeks public comment on the consistency
of the proposed rules with the CMP.
ANNOUNCEMENT OF PUBLIC MEETING
A public meeting on this proposal will be held in Austin on June 5, 2001,
at 2:00 p.m. at the commission's central office located at 12100 Park 35 Circle,
Building F, Room 2210. The meeting is structured for the receipt of oral or
written comments by interested persons. Individuals may present oral statements
when called upon in order of registration. Open discussions will not occur
during the meeting; however, an agency staff member will be available to discuss
the proposal 30 minutes prior to the meeting and will answer questions before
and after the meeting.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the meeting should contact the agency at
(512) 239-4900. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Log Number
2000-031-279-WT. Comments must be received by 5:00 p.m., June 5, 2001. For
further information contact Alan Henderson, Policy and Regulations Division,
at (512) 239-1510.
30 TAC §§279.1 - 279.13
STATUTORY AUTHORITY
The amendments and new section are proposed under TWC, §5.102, which
grants the commission the authority to carry out its powers under the TWC; §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state; §5.105,
which requires the commission to establish and approve all general policy
of the commission by rule; and §5.120, which requires the commission
to administer the law for the maximum conservation and protection of the environment
and natural resources of the state. Chapter 279 governs the issuance of state
water quality certifications under the federal CWA, §401, codified at
33 USC, §1341.
The amendments and new section implement provisions of TWC, including §26.011,
which requires the commission to establish and control water quality in the
state; §26.023, which requires the commission to establish water quality
standards; §26.027, which grants the commission the authority to issue
permits for discharges into water in the state; §26.121, which prohibits
the unauthorized discharge of waste into water in the state; and §26.127,
which designates the commission as the principal authority on matters relating
to the quality of water in the state.
§279.1.General.
This chapter governs the issuance
by the Texas Natural Resource
Conservation Commission
of state certifications [
§279.2.Purpose and Policy.
(a)
This chapter establishes procedures and criteria for
applying for,
[
(b)
It is the policy of the
commission
[
(1)-(3)
(No change.)
(4)
waive certification
. The agency may condition the
waiver of certification upon the agreement of an applicant to include and
comply with specific water quality-related conditions in the applicant's federal
permit.
[
(c)
The executive director is delegated the responsibility
for performing all certification functions under this chapter on behalf of
the commission, except that at the request of [
§279.3.Definitions.
In addition to the terms defined in §3.2 of this title (relating
to Definitions), the
[
(1)
401 Certification--A certification issued by the state
[
(2)
(No change.)
(3)
404 Permit--A Department of the Army permit issued under
the authority of the
federal CWA
[
(4)
(No change.)
[(5)
Affected person--Any person who is determined
by the commission to have a legally justiciable interest that may be adversely
affected by an action taken on a certification.]
(5)
[
(6)
[
(7)
[
[(9)
Commission--The Texas Natural Resource
Conservation Commission, acting through the executive director pursuant to §279.2(c)
of this title (relating to Purpose and Policy).]
(8)
[
(9)
[
(10)
[
(11)
[
[(14)
Executive director--The executive director
of the Texas Natural Resource Conservation Commission.]
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
[(20)
Person--Any corporation, organization,
government, or governmental subdivision or agency, business trust, estate,
trust, partnership, association, individual, or other legal entity.]
(17)
[
(18)
[
(19)
[
(20)
[
[(25)
Water quality limited segment--Any segment
where it is known that water quality does not meet applicable water quality
standards, and/or is not expected to meet applicable water quality standards,
even after the application of the technology-based effluent limitations required
by the Federal Clean Water Act, §301(b) and §306.]
(21)
[
§279.4.Application for Certification.
(a)
National Pollutant Discharge Elimination System (NPDES)
[
(1)-(3)
(No change.)
(b)
Department of the Army permits. No person may conduct any
activity under federal permit or license
that
[
(1)-(2)
(No change.)
(3)
The executive director may elect to delay acting on a request
for certification until after a review of a
final
[
(c)
Other federal licenses or permits. For those federal licenses
or permits issued by federal agencies other than
the EPA
[
(1)-(3)
(No change.)
(d)
Review of application for certification. Where the executive
director believes more information is required in order to accomplish the
review of the request for certification, he shall notify the applicant or
licensing or permitting agency and request
the
[
(e)
Submission of additional materials. The applicant shall
submit in timely fashion, at any time during the review process, additional
materials
that
[
§279.5.Notice of Application.
(a)
The executive director to the greatest extent practicable
shall
use
[
(b)
If a joint notice is not
used
[
(1)-(7)
(No change.)
(8)
the
EPA
[
(9)
(No change.)
(10)
the Secretary of the Coastal Coordination Council;
and
[(11)
any known interested persons; and]
(11)
[
(c)
Any public notice issued under subsection (b) of this section
shall contain:
(1)-(2)
(No change.)
(3)
a statement that the applicant is seeking certification
under the
federal CWA
[
(4)
a statement that any comments concerning the application
may be submitted to the executive director of the
agency
[
(5)
(No change.)
(6)
a statement indicating how [
(d)
The executive director may waive notice
requirements of this section when it is determined that a certification will
be waived.
(e)
[
§279.6.Public Comments.
The executive director shall consider all comments related to the impacts
of the proposed activity
received
[
§279.7.[
(a)
The executive director may conduct a [
[(1)
the name, mailing address, and phone
number of the person making the request;]
[(2)
the application number or other recognizable
reference to the application;]
[(3)
a brief description of the interest of
the requestor, or of persons represented by the requestor; and]
[(4)
a brief description of how the application,
if granted, would adversely affect such interest.]
(b)
If a
public meeting
[
(c)
All
meetings
[
(d)
(No change.)
§279.8.Notice of [
(a)
The executive director shall notify the applicant not less
than
ten
[
(b)
The
[
(c)
The executive director will transmit the notice by first-class
mail or by personal service to:
(1)
(No change.)
(2)
the mayor and health authorities of the city or town in
which the activity is or will be located or in which
pollutants will
be discharged
[
(3)
the county judge and health authorities of the county in
which the
activity is or will be
[
(4)-(7)
(No change.)
(8)
the
EPA
[
(9)-(10)
(No change.)
(11)
any
person from whom written comment was received
during the comment period, provided that the comment included a legible mailing
address for the commenter
[
(d)
The date of mailing
the
[
§279.9.Executive Director Review of Water Quality Certification Application.
(a)
The executive director shall conduct a
review or waive certification.
(b)
If the executive director conducts a review,
the
[
(1)
result in any discharge;
(2)
result in any violation of
33 United States Code, §§1311,
1312, 1313, 1316, or 1317
[
(3)
result in any violation of applicable water quality standards;
or
(4)
result in any violation of any other appropriate requirements
of state law.
§279.10.Final Agency [
(a)
The executive director shall issue a final determination
within 60 days from the date the draft permit is mailed by the Regional Administrator,
EPA
[
(1)
(No change.)
(2)
conditions
that
[
(3)
when the
agency
[
(4)
a statement of the extent to which each condition of the
draft permit can be made less stringent without violating the requirements
of state law, including water quality standards. [
(b)
(No change.)
§279.11.Final Agency [
(a)
The executive director shall review
or waive certification
of any
[
(b)
(No change.)
(c)
If the
[
(1)
No discharge shall be certified if there is a practicable
alternative to the proposed discharge
that
[
(2)
No discharge of dredged or fill material shall be certified
unless appropriate and practicable steps have been taken
that
[
(3)
Certification shall require appropriate and practicable
compensatory mitigation for all unavoidable adverse impacts
that
[
(4)
If the executive director determines that
[
(d)
The executive director shall send notice
of the decision
to deny, grant, grant conditionally, or waive certification
, including
a copy of the certification
decision
, to the applicant, the
Corps
[
(1)
(No change.)
[(2)
a statement that the executive director:]
[(A)
examined the complete application, specifically identifying
the number or code affixed to such application, and based its determination
upon an evaluation of the information contained in the application which is
relevant to the 401 certification; and/or]
[(B)
examined other information, sufficient to enable the executive
director to reach the decision;]
(2)
[
[(A)
if a waiver of certification is made,
a statement explaining the determination that no discharge will result from
the activity, or that the activity does not fall within the jurisdiction of
the Commission's authority, or the Commission expressly waives its authority
to act on a request for certification for other reasons; or]
(A)
[
(i)
a statement that there is a reasonable assurance the activity
, if
[
(ii)
a statement of conditions, including any monitoring and
reporting requirements[
(B)
[
§279.12.Other State Certification.
(a)
Nationwide Permit Certification.
(1)
The executive director shall consider all proposed nationwide
permits for certification for activities
that
[
(2)
When a federal licensing or permitting agency proposes
a nationwide permit for an activity
that
[
(A)
(No change.)
(B)
the Texas Water Development Board;
and
(C)
the Texas General Land Office
.
[
[(D)
any other appropriate person;]
[(E)
any person who requests to be put on
the mailing list; and]
[(F)
any other appropriate person.]
(3)
After considering public comments
received in accordance
with §279.5 of this title (relating to Notice of Application)
and other information, the executive director shall grant, grant conditionally,
deny
,
or waive certification.
(4)
The executive director shall maintain a list of all
applicable
[
(b)
General Permit Certification.
(1)
The executive director shall consider all proposed general
permits for certification for activities
that
[
(2)
When a federal licensing or permitting agency proposes
a general permit for an activity
that
[
(A)
(No change.)
(B)
the Texas Water Development Board;
and
(C)
the Texas General Land Office
.
[
[(D)
any other appropriate person;]
[(E)
any person who requests to be put on
the mailing list; and]
[(F)
any other appropriate person.]
(3)
After considering public comments
received in accordance
with §279.5 of this title (relating to Notice of Application)
and other information
,
the executive director shall grant, grant
conditionally, deny
,
or waive certification.
(4)
The executive director shall maintain a list of all
applicable
[
(c)
Final Action on Other Certification.
[
The executive director shall send notice
of the decision to deny, grant, grant conditionally, or waive certification
, including a copy of the certification
if granted
, to the
applicant, the designated contact of the licensing or permitting agency, and
any person so requesting [
(1)
[
(2)
[
(A)
if the activity is certified;
(i)
a statement that there is a reasonable assurance the
activity, if conducted according to the terms of the proposed permit, will
not violate the criteria enumerated in §279.9 of this title; or
[
(ii)
a statement of conditions, including any monitoring
and reporting requirements, necessary to assure compliance with the criteria
enumerated in §279.9 of this title
[
(B)
if certification is denied, an explanation
of how the proposed activity will not satisfy one or more of the criteria
enumerated in §279.9 of this title.
[(C)
a statement of basis for the executive
director's decision:]
[(i)
if a waiver of certification is made, a statement explaining
the determination that no discharge will result from the activity, or that
the activity does not fall within the jurisdiction of the Commission's authority,
or the Commission expressly waives its authority to act on a request for certification
for other reasons; or]
[(ii)
if a grant or conditional grant of certification is made:]
[(I)
a statement that there is a reasonable assurance the activity
will be conducted in a manner which will not violate the criteria enumerated
in §279.9 of this title; or]
[(II)
a statement of conditions which the executive director
deems necessary with respect to the discharge, including any necessary monitoring
requirements to assure the discharge will not violate applicable water quality
standards;]
[(iii)
if a denial of certification is made, a statement explaining
why the activity will result in the unacceptable discharge of pollutants into
or adjacent to waters in the state and detailing the criteria enumerated in §279.9
of this title which will be violated.]
[(2)
After considering public comments and
other information the executive director shall grant, grant conditionally,
deny or waive certification.]
§279.13.Enforcement.
Applicants whose activities are certified or conditionally certified
by the executive director, or for whose activities the executive director
waives certification or takes no certification action based upon the applicant's
agreement to include permit terms or conditions in the federal permit, shall
comply with all terms and conditions of the permit as issued by the federal
agency and as thereafter amended. Violation of the agreement to include permit
terms or conditions, or violation of any term or condition of a permit relating
to water quality shall constitute a violation of this rule. The commission
may enforce such a violation under TWC, Chapter 7, and Chapter 70 of this
title (relating to Enforcement).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 23, 2001.
TRD-200102301
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: June 3, 2001
For further information, please call: (512) 239-0348
30 TAC §279.13
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Natural Resource Conservation Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under TWC, §5.102, which grants the commission
the authority to carry out its powers under the TWC; §5.103, which provides
the commission authority to adopt any rules necessary to carry out its powers
and duties under this code and other laws of this state; §5.105, which
requires the commission to establish and approve all general policy of the
commission by rule; and §5.120, which requires the commission to administer
the law for the maximum conservation and protection of the environment and
natural resources of the state. Chapter 279 governs the issuance of state
water quality certifications under the federal CWA, §401, codified at
33 USC, §1341.
The repeal implements provisions of TWC, including §26.011, which
requires the commission to establish and control water quality in the state; §26.023,
which requires the commission to establish water quality standards; §26.027,
which grants the commission the authority to issue permits for discharges
into water in the state; §26.121, which prohibits the unauthorized discharge
of waste into water in the state; and §26.127, which designates the commission
as the principal authority on matters relating to the quality of water in
the state.
§279.13.Enforcement.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on April 23, 2001.
TRD-200102302
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: June 3, 2001
For further information, please call: (512) 239-0348
Subchapter G. COMBUSTION
Small Boilers, Heaters, and Other Combustion Devices
].
(a)
]
,
]
heaters
burning used oil that has not been mixed with hazardous waste
[
, drying or curing ovens, furnaces, or other combustion units,
but not including stationary internal combustion engines or turbines,
]
are permitted by rule provided that all
of
the
following
conditions [
of this section
] are met
:
[
.
]
[(b)]
Combustion units may
burn used oil as a fuel as long as the used oil has not been mixed with hazardous
waste and the combustion unit meets the following conditions:]
Subchapter K. GENERAL
Subchapter O. OIL AND GAS
of Pipelines
].
will
] not exceed one ton during any metering, purging,
or maintenance operation
.
[
;
]
Uncontrolled butadiene
emissions may not exceed 0.04 lb/hr.
and
] (2)
, and (5)
of this section.
Operators may not vent gas in areas of known
or suspected ignition sources.
[
Care must be taken not to vent
the gas in an area where an ignition source may exist or where accidental
ignition of the gas may increase risk of fire at nearby tanks or other facilities.
]
Subchapter T. SURFACE PREPARATION
Chapter 279.
WATER QUALITY CERTIFICATION
within the jurisdiction
of the Texas Natural Resource Conservation Commission
] as authorized
by 33 United States Code
,
§1341,
commonly known as
[
the Federal Water Pollution Control Act Amendments of 1972, and
]
the
federal
[
Federal
] Clean Water Act
(CWA)
, §401.
[
The Federal Clean Water Act, §401(a)(1), requires that any applicant
for a federal license or permit to conduct any activity including, but not
limited to, the construction or operation of facilities which may result in
any discharge into navigable waters of the United States, shall obtain from
the state in which the discharge originates or will originate a certification
that the discharge will comply with applicable provisions of 33 United States
Code §§1311, 1312, 1313, 1316, and 1317 (the Federal Clean Water
Act, §§208(e), 301, 302, 303, 306, and 307). The Federal Clean Water
Act, §401(a)(1), further provides that the state shall establish procedures
for public notice in the case of all applications for certification and, to
the extent it deems appropriate, procedures for public hearings in connection
with specific applications.
]
the application
] processing
,
and
reviewing
[
review of
] state [
water quality
] certifications
under CWA, §401,
for activities under the jurisdiction of the
agency
[
Texas Natural Resource Conservation Commission as required
by the Federal Clean Water Act.
] It is the purpose of this chapter,
consistent with the
Texas Water Code and the federal CWA
[
Federal Clean Water Act
], to maintain the chemical, physical, and biological
integrity of the state's waters.
Commission
] to achieve no overall net loss of the existing wetlands resource base
with respect to wetlands functions and values in the State of Texas. All activities
under the jurisdiction of the
agency that
[
Texas Natural Resource
Conservation Commission which
] require a federal license or permit and
that
[
which
] may result in any discharge to waters of the
United States
are subject to review
[
will be reviewed
]
for consistency with the
federal CWA
[
Federal Clean Water
Act
] and the Texas Surface Water Quality Standards. After such a review,
the
agency
[
commission
] shall:
for any activity which the Commission finds will result
in no discharge, or which does not fall within the purview of the Commission's
authority, or concerning which the Commission expressly waives its authority
to act on a request for certification for other reasons.
]
a commissioner or
]
the executive director, the commission may review the question of certification
prior to the executive director's determination on certification.
The
] following words and terms, when
used in this chapter, shall have the following meanings[
, unless the
context clearly indicates otherwise
].
to assure that a federal permit or license is consistent with state
law
] as authorized under the
federal CWA
[
Federal Clean
Water Act
], §401.
Federal Clean Water Act
], §404, which authorizes the discharge of dredged or fill material
into waters of the United States. [
404 permits can be either individual,
general, or by letter of permission. Individual 404 permits are only issued
following a case-by-case evaluation of a specific structure or work in accordance
with 33 Code of Federal Regulations, Part 325, a determination that the proposed
structure or work is in the public interest pursuant to 33 Code of Federal
Regulations, Part 320, and that the proposed action is consistent with 40
Code of Federal Regulations, Part 230 (§404(b)(1) Guidelines).
]
(6)
] Applicant--Any person who applies
for any license or permit granted by an agency of the federal government to
conduct any activity
that
[
which
] may result in any
discharge into or adjacent to
water
[
waters
] in the
state.
(7)
] Aquatic Ecosystem--
Water
[
Waters
] in the state, including wetlands, that serve as
habitat for interrelated and interacting communities and populations of plants
and animals.
(8)
] Clean Water Act--33 United
States Code
, §§1251 - 1387
[
§§1151, et
seq
],
also known as
[
and
] the
federal
Clean Water Act
(CWA)
, §§101
- 607
[
, et seq
].
(10)
] Department of the Army Permits--All
permits and licenses issued by the Department of the Army Corps of Engineers
including 404 permits and permits issued under the authority of the Rivers
and Harbors Act of 1899, §10.
(11)
] Discharge--Deposit, conduct,
drain, emit, throw, run, allow to seep, or otherwise release or dispose of
any pollutant, or to allow, permit, or suffer any of these acts or omissions.
(12)
] District engineer--The Department
of the Army representative responsible for administering, processing, and
enforcing federal laws and regulations relating to the U.S. Army Corps of
Engineers, including permitting.
(13)
] Emergency--A condition either
meeting the requirements of federal law as constituting an emergency or applicable
provisions of
§305.21
[
§305.23
] of this title
(relating to Emergency Orders
and Temporary Orders Authorized
).
(15)
] General permit--A permit
issued
[
authorized
] by a federal licensing or permitting
agency on a regional basis. [
General permits are designed to regulate
with little delay or paperwork certain activities having minimal impacts.
]
(16)
] Individual permit--A permit
that is issued by a federal licensing or permitting agency following an evaluation
of any activity including, but not limited to, the construction or operation
of
a facility that
[
facilities which
] may result in
any discharge into waters of the United States.
(17)
] Licensing or permitting agency--Any
agency of the federal government to which application is made for any license
or permit to conduct an activity
that
[
which
] may result
in any discharge into or adjacent
to
water in the state.
(18)
] Nationwide permit--A type
of general permit authorized by a federal licensing or permitting agency [
through publication in the "Federal Register"
] that
applies
[
is applicable
] throughout the nation. [
Nationwide permits
are designed to regulate with little delay or paperwork certain activities
having minimal impacts.
]
(19)
]
National Pollutant Discharge
Elimination System (NPDES)
[
NPDES
] permit--A written document
issued by the regional administrator of the
EPA under
[
United
States Environmental Protection Agency (EPA) as required by
] the
federal CWA
[
Federal Clean Water Act
], §402, which authorizes
the discharge of any pollutant, or combination of pollutants, into navigable
waters of the United States.
(21)
] Pollutant--
Dredged
[
Any dredged
] spoil, solid waste, incinerator residue, sewage,
garbage, [
refuse, oil,
] sewage sludge,
filter backwash,
munitions,
chemical wastes
[
hazardous waste
], [
hazardous substance, chemical waste,
] biological
materials
[
material
], radioactive
materials
[
substance
],
heat, wrecked or discarded equipment, rock, sand, cellar dirt,
and
[
or
] industrial, [
recreational,
] municipal,
and
agricultural[
, or other
] waste
discharged into any
water in the state. The term "pollutant" does not include tail water or runoff
water from irrigation or rainwater runoff from cultivated or uncultivated
rangeland, pastureland, and farmland
.
(22)
] Practicable--Available and
capable of being done after taking into consideration cost, existing technology,
and logistics in light of overall project purposes.
(23)
] Regional administrator--The
administrator of the
EPA
[
United States Environmental Agency
], Region VI.
(24)
] Water dependent activity--An
activity
that
[
which
] is proposed for or adjacent to
an aquatic site that requires access, proximity to, or siting within an aquatic
site to fulfill its basic purpose.
(26)
] Water Quality Standards--Texas
Surface Water Quality Standards, Chapter 307 of this title (relating to Texas
Surface Water Quality Standards).
NPDES
] permits. No person may conduct any activity under
federal permit or license
that
[
which
] may result in
any discharge into or adjacent to
water
[
waters
] in
the state unless the person has received a certification or waiver under this
chapter. The regional administrator or the permit applicant may submit a request
for certification.
which
]
may result in any discharge into or adjacent to
water
[
waters
] in the state unless the person has received a certification or waiver
under this chapter. The district engineer or the permit applicant may submit
a request for certification.
preliminary
] permit decision
document
.
United States Environmental Protection Agency
] or the Department of
the Army
that
[
which
] may result in any discharge into
or adjacent to
water
[
waters
] in the state, the permittee
must receive certification or waiver under this chapter prior to conducting
any permitted activity.
such
]
information.
which
] the executive director finds
to be necessary for review of the application. In no case will the applicant
have less than 30 days to submit the information.
utilize
] a joint mailed notice issued by
the [
Department of the Army, or the United States Environmental Protection
Agency, or other
] licensing or
permitting
[
permit
]
agency [
after agreements with those agencies have been reached regarding
the content of the notice and the persons entitled to notice in Texas.
]
utilized
] as provided in subsection (a) of this section and the executive director
finds that all necessary materials have been received,
the executive
director
[
he
] shall mail notice of the application for certification
to:
United States Environmental Protection
Agency
], Region 6;
(12)
] the applicant.
Federal Clean Water Act
], §401;
Texas Natural Resource Conservation Commission
], Attention 401 Coordinator,
MC 150,
P.O. Box 13087, Austin, Texas 78711-3087, and a deadline for
written public comment of no less than 30 days;
affected
] persons
can request a public
meeting
[
hearing
].
(d)
] The executive director may
waive notice and
meeting
[
hearing
] requirements of this
section
[
subsection
] and §§279.6 - 279.8 of this
title (relating to Public Comments, [
Nonadjudicated
] Public
Meetings
[
Hearings
], and Notice of Public
Meeting
[
Hearing
]) and issue a final
agency
[
commission
] action
in accordance with
[
pursuant to
] §§279.10
- 279.12 of this title (relating to Final
Agency Action
[
Commission
] on
National Pollutant Discharge Elimination System
(NPDES)
[
NPDES
] Permits, Final
Agency
[
Commission
] Action on [
the
] Department of the Army Permits [
and
Other Permits
], and Other State Certification) when an emergency as
defined in §279.3 of this title (relating to Definitions) has been determined
to exist and it is in the public interest to
issue
[
provide
] a certification
decision
in less than 30 days.
submitted
] in accordance
with these rules
for permit applications subject to review, unless a
public notice has been waived under §279.5(d) or (e) of this title (relating
to Notice of Application)
.
Nonadjudicated ] Public Meetings [ Hearings ].
nonadjudicative
] public
meeting
[
comment hearing
] on any application
for 401 certification if the executive director determines
, based on
public comment received during the public comment period,
that such
a
meeting
[
hearing
] would be appropriate [
or if
such a hearing is requested by any affected person in writing within 30 days
after the publication of notice of application
]. The executive director
shall conduct a [
nonadjudicative
] public
meeting
[
comment hearing
] on an application for 401 certification if a request
for such a
meeting
[
hearing
] is made by a
commissioner
[
Commissioner
]. [
The written request shall contain
the following information:
]
hearing
] is
held, the executive director shall notify the
licensing and permitting
agency and request an extension of time to consider the certification.
[
regional administrator in the case of an NPDES permit certification
or the district engineer in the case of a Department of the Army permit certification
or the designated department of any other licensing or permitting agency,
giving an estimate of the additional time necessary to consider the certification,
and stating that the executive director is not waiving certification.
]
hearings
] held under
this section shall be conducted by a representative of the executive director.
The
[
Such
] representative shall receive comments concerning
all matters affecting the 401 certification.
Nonadjudicated ] Public Meeting [ Hearing ].
30
] days before the date set for
meeting
[
hearing
] that a [
nonadjudicative
] public
meeting
[
hearing
] will be held on the application.
The
[
Such
] notice shall be by certified mail, return receipt
requested.
Such
] notice of
meeting
[
hearing
] shall identify the application; the date; time;
place and nature of the
meeting
[
hearing
]; the legal
authority and jurisdiction under which the
meeting
[
hearing
] is to be held; the proposed action; the requirements for submitting
written comments; the method for obtaining additional information; and [
such
] other information as the executive director deems necessary.
waste is or will be disposed of
];
facility is
] located
or in which
pollutants will be discharged
[
waste is or will
be disposed of
];
United States Environmental Protection
Agency
], Region 6;
known interested persons
].
such
] notice
of
meeting
[
hearing
] shall be at least
ten
[
30
] days before the date set for
the meeting
[
such hearing
].
The
] executive director shall
, after the review
and any public meeting held on the application,
determine whether the
proposed activity will:
the Federal Clean Water Act, and the
criteria in §279.11(c) of this title (relating to Final Commission Action
on Department of the Army Permits) for 404 permits
];
Commission ] Action on National Pollutant Discharge Elimination System (NPDES) [ NPDES ] Permits.
United States Environmental Protection Agency
], as required
by 40 Code of Federal Regulations §124.53, unless the executive director
in consultation with the Regional Administrator finds that unusual circumstances
require a longer time. The executive director shall send notice
of the
decision to deny, grant, grant conditionally, or waive the certification,
and a copy of the certification (if granted)
, [
including a copy
of the certification,
] to the applicant, the regional administrator
,
and any person so requesting [
of the decision to deny, grant,
grant conditionally or waive the certification
].
The
[
Such
] notification shall be in writing and shall include:
which
] are necessary
to assure compliance with the applicable provisions of the
federal CWA
[
Federal Clean Water Act
], §§208(e), 301, 302,
303, 306, and 307, and with appropriate requirements of state law;
state
] certifies
a draft permit instead of a permit application, any condition required to
assure compliance with the provisions of the
federal CWA
[
Federal Clean Water Act
], §§208(e), 301, 302, 303, 306, and
307, and with appropriate requirements of state law shall be identified citing
the
federal CWA
[
Federal Clean Water Act
] or state
statutes
[
law references
] upon which that condition is based[
. Failure to provide such a citation waives the right to certify with respect
to that condition
]; and
Failure to provide
this statement for any condition waives the right to certify or object to
any less stringent condition which may be established during the United States
Environmental Protection Agency permit issuance process.
]
Commission ] Action on Department of the Army Permits.
all
] permit
application in accordance
[
applications for consistency
] with §279.9 of this title
(relating to Executive Director Review of Water Quality Certification)
. When an application is reviewed, the executive director
[
and
] shall
take
[
issue a
] final
action
[
determination
] within 60 days after
receiving the
[
receipt of a
] certification request from the
U.S. Army Corps of
Engineers (Corps)
[
district engineer
] as required by 33 Code
of Federal Regulations
,
§325.2(b) unless the executive director,
in consultation with the
Corps
[
district engineer
],
determines a shorter or longer period is reasonable.
The
] executive director
reviews a
[
shall review all
] request for certification of
a
404 permit
activity, the review shall be performed
[
activities
] using the following criteria.
which
] would
have less adverse impact on the aquatic ecosystem, so long as the alternative
does not have other more significant adverse environmental consequences. Activities
that
[
which
] are not water dependent are presumed to have
a
practicable
alternative
[
alternatives
], unless
the applicant [
clearly
] demonstrates otherwise. For the purposes
of this section compensatory mitigation is not considered an alternative.
which
] will minimize potential adverse impacts of the discharge on the
aquatic ecosystem.
which
] remain after all practicable avoidance and minimization
has been completed. Compensatory mitigation requirements will provide for
a replacement of impacted functions and values.
There may be circumstances where
] the impacts of the project are so
significant that
the proposed compensatory mitigation will not accomplish
the purpose and policy of this chapter
[
even if alternatives are
not available
], certification may be denied
even if an alternative
is not available
[
regardless of the compensatory mitigation proposed
].
district engineer
], the designated contact of any
other licensing or permitting agency
,
and any person so requesting
[
of the decision to deny, grant, grant conditionally or waive certification
].
The
[
Such
] notification shall be in writing
and shall include:
(3)
]
if certification is granted
or denied,
a statement of
the
basis for the executive director's
decision
, including a description of the materials and information examined
during the executive director's review. The statement shall include
:
(B)
] if
the activity is certified
[
a certification or conditional certification is made
]:
will be
] conducted in
accordance with the terms
of the proposed permit,
[
a manner which
] will not violate
the criteria enumerated in §279.9 of this title; or
, which are
] necessary to assure compliance
with the criteria enumerated in §279.9 of this title;
(C)
] if [
a denial of
]
certification is
denied, an explanation of how
[
made, a statement
explaining why
] the
proposed
activity will
not satisfy
one or more of
[
result in the unacceptable discharge of pollutants
into or adjacent to waters in the state and detailing
] the criteria
enumerated in §279.9 of this title [
which will be violated
].
which
]
may result in any discharge into or adjacent to
water
[
waters
] in the state consistent with §279.9 of this title (relating to
Executive Director Review of Water Quality Certification Application). Water
quality certification
[
Quality Certification
] for activities
authorized under a nationwide permit is complete at the time the permit is
issued. No additional certification is required for activities authorized
under that nationwide permit.
which
] may
result in a discharge, the executive director shall notify:
;
]
certifications of
] nationwide permits
and
the executive director's certification action on each one
[
granted
or granted conditionally
].
which
]
may result in any discharge into or adjacent to
water
[
waters
] in the state consistent with §279.9 of this title [
(relating
to Executive Director Review of Water Quality Certification Application)
].
Water
quality certification
[
Quality Certification
]
for activities authorized under a general permit is complete at the time the
permit is issued. No additional certification is required for activities authorized
under that general permit.
which
] may result
in a discharge, the executive director shall notify:
;
]
certifications of all
] general permits
and the executive director's certification action taken on each one
[
granted or granted conditionally
].
(1)
]
of the decision to deny, grant, grant conditionally
or waive certification
].
The
[
Such
] notification
shall be in writing and shall include:
(A)
] the name and address of the
applicant;
(B)
]
if certification is either
granted or denied,
a statement
of the basis for
[
that
] the executive
director's decision, including a description of
the materials and information examined during the executive director's review.
The statement shall include
[
director has either
]:
examined the complete application, specifically identifying the number
or code affixed to such application, and based on its determination upon an
evaluation of the information contained in the application which is relevant
to the 401 certification; and/or
]
examined other information
furnished by the applicant or provided in a nonadjudicative public hearing,
sufficient to permit the executive director to reach the decision
];
Chapter 322.
COMMUNITY WASTEWATER PLANNING