Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 39.
PUBLIC NOTICE
The Texas Natural Resource Conservation Commission (commission) proposes
a new §39.404, Applicability for Certain Initial Applications for Air
Quality Permits for Grandfathered Facilities. The commission also proposes
amendments to §39.411, Text of Public Notice; §39.419, Notice of
Application and Preliminary Decision; §39.420, Transmittal of the Executive
Director's Response to Comments and Decisions; §39.603, Newspaper Notice; §39.604,
Sign-Posting; and §39.606, Alternative Means of Notice for Voluntary
Emission Reduction Permits. The new and amended sections of Chapter 39 are
proposed to be submitted to the United States Environmental Protection Agency
(EPA) as a revision to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
During the 75th Legislature, 1997, House Bill (HB) 3019 directed the commission
to develop a voluntary emissions reduction plan for the permitting of existing
significant sources. These existing significant sources are commonly known
as grandfathered facilities. A grandfathered facility is one that existed
at the time the legislature created the Texas Clean Air Act (TCAA) in 1971.
These facilities were not required to comply with (i.e., grandfathered from)
the then new requirement to obtain permits for construction or modifications
of facilities that emit air contaminants. If grandfathered facilities have
not been modified since 1971, they continue to be authorized to operate without
a permit. The intent of HB 3019 was to create a program that would encourage
the remaining grandfathered facilities to voluntarily obtain permits that
would reduce the emissions from those facilities. In response to HB 3019,
the commission created the Clean Air Responsibility Enterprise (CARE) Committee
to develop recommendations for the voluntary permitting of grandfathered facilities.
In 1999, the 76th Legislature used the CARE Committee's recommendation
as the basis for Senate Bill (SB) 766 which directed the commission to develop
rules containing incentives for the voluntary permitting of grandfathered
facilities. This program is known as the Voluntary Emission Reduction Permit
(VERP) permitting program. The commission adopted rules to implement the VERP
program on December 16, 1999. Since the VERP rules became effective, the owners
and operators of a number of grandfathered facilities have taken advantage
of the incentives offered by the VERP program and submitted VERP applications
for their grandfathered facilities. Additionally, the owners and operators
of other grandfathered facilities have submitted permit-by-rule registrations
and other new source review permit applications to permit their grandfathered
facilities. The deadline to apply for a VERP was August 31, 2001.
Additionally, the 76th Legislature, 1999 amended the Texas Utilities Code,
Title 2, Public Utility Regulatory Act, Subtitle B, Electric Utilities, and
created a new Chapter 39, Restructuring of Electric Utility Industry by adopting
SB 7. Senate Bill 7 required the commission to implement the permitting and
allowance requirements of new Texas Utilities Code, §39.264, concerning
Emissions Reductions of "Grandfathered Facilities." Senate Bill 7 required
the commission to develop a mass cap and trade system to distribute emission
allowances for use by electric generating facilities (EGFs). Under SB 7, two
categories of EGFs are eligible to use the proposed trading system. The first
category consisted of EGFs in existence on January 1, 1999, which were not
subject to the requirement to obtain a permit under TCAA, §382.0518(g).
These facilities are commonly referred to as grandfathered facilities. Senate
Bill 7 also mandated that grandfathered EGFs apply for a permit on or before
September 1, 2000, and obtain a permit by or cease operation after May 1,
2003. The second category of EGFs consisted of permitted EGFs that were not
subject to the permitting requirements of SB 7, yet elected to participate
in the allowance trading system.
Most recently, the 77th Legislature, 2001, amended the Texas Health and
Safety Code (THSC), TCAA to require that all grandfathered facilities obtain
permits. The mandatory permitting requirements of HB 2912 are the culmination
of legislative efforts, beginning in 1997, to permit or otherwise authorize
all grandfathered facilities. House Bill 2912 created four new types of permits
for grandfathered facilities: existing facility permits, small business stationary
source permits, EGF permits, and pipeline facility permits. House Bill 2912
also mandated the dates by which grandfathered facilities must apply for a
permit and have controls operational or submit a shutdown notice. Grandfathered
facilities that are addressed by an application for a VERP are not required
to comply with the provisions of HB 2912 for grandfathered facilities. However,
grandfathered facilities that withdraw their VERP applications and elect to
submit a permit application for an authorization under HB 2912 will forfeit
their eligibility for amnesty from enforcement.
To implement these revisions to the TCAA, the commission proposes new and
amended rules in Chapter 116, Subchapter A, Definitions; Subchapter H, Voluntary
Emission Reduction Permits; and Subchapter I, Electric Generating Facilities,
which were published in the January 4, 2002 issue of the
Texas Register
.
Additionally, revisions to Chapter 39, Public Notice, are necessary to
implement the provisions of HB 2912, §§5.02 - 5.05. The revisions
to Chapter 39 are necessary to implement the public participation requirements
of HB 2912.
Texas Health and Safety Code, TCAA, §382.05181(h) provides that applications
for pipeline facility permits, existing facility permits, existing facility
flexible permits, and EGF permits are subject to the public notice and hearing
requirements of 382.05191. TCAA, §382.05191 provides that public participation
for initial issuance of a permit under 382.05183, 382.05185(c) or (d), 382.05186,
or 382.0519 will be done in the manner of TCAA, §382.0561, concerning
Federal Operating Permit; Hearing, and §382.0562, concerning Notice of
Decision.
Texas Health and Safety Code, TCAA, §382.0561 requires the commission
to provide a public comment period for an application, during which members
of the public can submit written statements to the commission regarding the
application. The commission must publish notice of the public comment period,
which must be at least 30 days, and may extend or reopen the comment period
if appropriate. The notice must meet the requirements of §382.056, which
provides specifications relating to the specifics of the newspaper notice
and sign-posting, and other requirements for notice.
Texas Health and Safety Code, TCAA, §382.0561 also requires that public
hearings are not conducted under Texas Government Code, Chapter 2001, so they
are not contested case hearings. The commission is required to hold a public
hearing on an application, prior to granting the permit, if a person who may
be affected by the emissions or a member of the legislature from the general
area in which the facility is located requests a hearing. However, the commission
is not required to hold a hearing if the basis of the request by a person
who may be affected is determined to be unreasonable. The commission is required
to consider all comments received during the comment period and hearing in
determining whether to issue the permit and what conditions should be included
if a permit is issued.
Texas Health and Safety Code, TCAA, §382.0562 provides for the mailing
of notice of the commission's decision on an application to all persons who
submitted comments, and to the applicant. The notice must include a response
to all comments, and identify any changes to the conditions of the draft permit
and the reasons for the change.
Additionally, TCAA, §382.05191 requires the opportunity for a motion
for rehearing and judicial review under §382.032. The commission will
utilize existing procedural rules concerning motions to overturn action by
the executive director, found in 30 TAC Chapter 50 (relating to Actions on
Applications and Other Authorizations), to give effect to the intent of the
legislature to provide for the intermediate review, by affected persons, of
commission actions on applications for grandfathered facility permits. Therefore,
the commission is not proposing new procedures for grandfathered facility
permits in this chapter.
SECTION BY SECTION DISCUSSION
Subchapter H, Applicability and General Provisions
The proposed new §39.404 is necessary to implement requirements of
HB 2912, §§5.02 - 5.05. The existing §39.403, Applicability,
is currently not available to be opened to propose changes to include applicability
of public notice procedures for the new grandfathered facility permits. The
commission believes that the requirements of HB 2912, §§5.02 - 5.05
should be implemented expeditiously, and therefore proposes new §39.404
to specify the applicability of Chapter 39 to the new grandfathered facility
permits. House Bill 2912, §5.03 created a new THSC, §382.05185 which
established a new EGF permit for certain facilities located at a site for
which the owner or operator has already applied for a permit under SB 7 and
for the permitting of additional criteria pollutants at grandfathered coal-fired
EGFs for which the owner or operator has already applied for a permit under
SB 7. Section 382.05185 also provided that the permit application for such
a permit be subject to notice and hearing requirements as provided by THSC, §382.05191,
as revised by HB 2912. The proposed new §39.404 implements this requirement
by specifying the portions of Chapter 39, Subchapters H and K, that apply
to applications for an EGF permit.
House Bill 2912 also created new THSC, §382.05183 and §382.05186
which established existing facility permits and pipeline facilities permits,
respectively, and §382.05181 required that the permit applications for
grandfathered facilities permits were subject to notice and hearing requirements
as provided by THSC, §382.05191. The proposed new §39.404 implements
this requirement by specifying the portions of Chapter 39, Subchapters H and
K, that apply to applications for existing facility permits and pipeline facilities
permits.
The proposed amendments to §39.411, Text of Public Notice, are necessary
due to the proposed addition of new §39.404 which adds existing facility
permits and pipeline facilities permits. The existing §39.411(b)(10)(B)
specifies the requirement to include a statement in the public notice concerning
the right to request a notice and comment hearing in the text of the public
notice for air applications described in §39.403(b)(11) or (12). The
proposed §39.411(b)(10)(B) specifies requirements for applications described
in §39.403(b)(11) or (12), or §39.404 to include existing facility,
pipeline facility, and EGF permits.
The proposed amendments to §39.419, Notice of Application and Preliminary
Decision, are necessary due to the proposed addition of new §39.404 which
adds existing facility permits and pipeline facilities permits. The existing §39.419(e)(1)(D)
refers to an application for initial issuance of a permit described in §39.403(b)(11)
or (12). The proposed §39.419(e)(1)(D) refers to an application for initial
issuance of a permit described in §39.403(b)(11) or (12), or 39.404.
Applicants for initial issuance of existing facility permits and pipeline
facilities permits will not be required to publish Notice of Application and
Preliminary Decision.
Additionally, revisions are proposed for §39.419(e)(3). The existing §39.419(e)(3)
specifies publication requirements for a Notice of Application and Preliminary
Decision for permits that are not exempt under §39.419(e)(1)(A) - (C)
from publication requirements. The exemptions from publication in §39.419(e)(1)
also include a subparagraph (D). The proposed §39.419(e)(3) correctly
refers to exemptions under §39.419(e)(1)(A) - (D).
The proposed amendments to §39.420, Transmittal of the Executive Director's
Response to Comments and Decision, are necessary to indicate that the transmittal
is not required to include instructions for reconsideration of the executive
director's decision or for requesting a contested case hearing for existing
facility permits, EGF permits, and pipeline facilities permits, in addition
to VERPs, because permits for grandfathered facilities are not subject to
the contested case hearing process. The proposed rules include a reference
to THSC, §§382.05183, 382.05185, and 382.05186 in §39.420(c)(1).
The existing §39.420(c)(1) only refers to applications for initial issuance
of VERPs under THSC, §382.0519. Additionally, the proposed revisions
delete the words "voluntary emission reduction" since multiple permit types
are referenced in the proposed language.
Subchapter K, Public Notice of Air Quality Applications
The proposed amendments to §39.603, Newspaper Notice, are necessary
to correct a subsection reference. In §39.603(e)(1), subsection (c)(2)
should be referenced instead of subsection (a)(2). The existing §39.603(e)(1)
specifies that a small business applicant does not have to comply with subsection
(a)(2) if certain conditions are met. The reference to (a)(2) is incorrect.
The proposed §39.603(e)(1) corrects this reference to (c)(2), which specifies
the requirements for the publication in the newspaper other than the legal
section of the newspaper.
The proposed amendments to §39.604, Sign-Posting, are necessary to
correct a typographical error in the existing rule.
The proposed amendments to §39.606, Alternative Means of Notice for
Voluntary Emission Reduction Permits, are necessary to ensure that alternative
means of notice are available for all small businesses who apply to permit
their grandfathered facilities.
FISCAL NOTE: COST TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed amendments
are in effect, there will be fiscal implications, which are not anticipated
to be significant, for certain units of state and local government including
institutions of higher education that operate grandfathered equipment that
will be required to obtain permits created by this rulemaking. For those affected
units of government that are required to obtain permits, there will be public
notice costs to comply with this rulemaking.
The State of Texas began permitting new and modified sources of air pollutants
in 1971. Sources built before the permitting rules became effective were not
required to obtain permits for air emissions as long as they were not modified.
These sources are known as grandfathered sources. The proposed amendments
implement certain provisions of HB 2912. Provisions in HB 2912 require grandfathered
air emission facilities, that apply for an existing facility permit, existing
facility flexible permit, pipeline facilities permit, or EGF permit, to comply
with the commission's public notice and hearing rules. This rulemaking is
only intended to implement the public notice provisions of HB 2912. The commission
has addressed the overall permitting requirements of HB 2912 in a separate
rulemaking.
The proposed amendments will update existing commission rules to reflect
that applications for existing facility permits, existing facility flexible
permits, pipeline facilities permits, and EGF permits, created by HB 2912
will be subject to the commission's public hearing and notice requirements.
Applicants for any of these permits will have to provide sufficient public
notice via notices in newspapers and public hearings, if required, to comply
with the proposed amendments.
Examples of grandfathered facilities affected by this rulemaking include
oil/coal/wood/gas-fired boilers; process heaters; kilns; gas turbines; duct
burners; flares; storage tanks; connections and valves used in piping located
at oil and gas production, processing, and transmission; chemical processing;
electricity generation; metal manufacturing; general manufacturing; and oil
refining operations. Additionally, grandfathered reciprocating internal combustion
engines used in pipeline operations would be affected by the proposed amendments.
The public notice requirements of this rulemaking will affect permit applicants
depending on when they are required to submit permit applications. Compliance
deadlines depend on whether the facility is located in East or West Texas.
The East Texas region includes all counties traversed by or east of Interstate
Highway 35 north of San Antonio or traversed by or east of Interstate Highway
37 south of San Antonio, and also including Bexar, Bosque, Coryell, Hood,
Parker, Somervell, and Wise Counties. All other counties in Texas are considered
to be in the West Texas region. Affected facilities in East Texas must submit
an application before September 1, 2003 and any controls required by the permit
must be in operation by March 1, 2007. Affected facilities in West Texas must
submit an application before September 1, 2004 and any control required by
the permit must be in operation by March 1, 2008.
Based on analysis of the 1997 emissions inventory, there are a total of
approximately 800 grandfathered facilities in Texas. Since 1997, it is estimated
that 300 of these sites have been authorized to continue operations under
a permit, permit-by-rule, or currently have a pending permit application.
The commission has identified three grandfathered natural gas-fired boilers
operated by Texas A&M University, and two grandfathered natural gas-fired
boilers operated by the University of Texas at Austin that would be affected
by the proposed amendments. The commission anticipates there will be additional
state and local government sites, including an unknown number of facilities
owned and operated by river authorities, that would be affected by the proposed
amendments.
The costs to affected units of state and local government to comply with
this rulemaking will be limited to public notice costs. The costs for public
notice vary significantly depending on the location of the facility and its
proximity to large metropolitan areas. Small town/city newspapers generally
charge much less for publication of a public notice. The commission estimates
a large city newspaper would charge approximately $3,000 for the display notice
and approximately $450 for the legal notice. A smaller city newspaper would
charge approximately $210 for the display notice and $20 for the legal notice.
The cost for alternative language publication, if needed, is estimated to
be $150. The cost for signs at affected facilities would cost approximately
$300. The total costs for public notice associated with permitting a grandfathered
facility would range from $680 to $3,900, assuming alternative language notice
is also required. If a request for notice and comment hearing is received
on an application, the applicant would also be required to publish a legal
notice for the hearing, which would cost an additional $450 for publication
in a large city newspaper, and $20 in a smaller city newspaper.
PUBLIC BENEFIT AND COSTS
Mr. Davis has also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated from
enforcement of and compliance with the proposed amendments will be public
awareness concerning the status of grandfathered permit application proceedings.
The State of Texas began permitting new and modified sources of air pollutants
in 1971. Sources built before the permitting rules became effective were not
required to obtain permits for air emissions as long as they were not modified.
These sources are known as grandfathered sources. The proposed amendments
implement certain provisions of HB 2912. Provisions in HB 2912 require grandfathered
air emission facilities, that apply for existing facility permits, existing
facility flexible permits, pipeline facilities permits, and EGF permits to
comply with the commission's public notice and hearing rules. This rulemaking
is only intended to implement the public notice provisions of HB 2912.
The proposed amendments will update existing commission rules to reflect
that applications for existing facility permits, existing facility flexible
permits, pipeline facilities permits, and EGF permits, created by HB 2912
will be subject to the commission's public hearing and notice requirements.
Applicants for any of these permits will have to provide sufficient public
notice via notices in newspapers and public hearings, if required, to comply
with the proposed amendments.
The public notice requirements of this rulemaking will affect permit applicants
depending on when they are required to submit permit applications. Compliance
deadlines depend on whether the facility is located in East or West Texas.
Affected facilities in East Texas must submit an application before September
1, 2003 and any controls required by the permit must be in operation by March
1, 2007. Affected facilities in West Texas must submit an application before
September 1, 2004 and any control required by the permit must be in operation
by March 1, 2008.
Based on analysis of the 1997 emissions inventory, there are a total of
approximately 800 grandfathered facilities in Texas. Since 1997, it is estimated
that 300 of these sites have been authorized to continue operations under
a permit, permit-by-rule, or currently have a pending permit application.
The remaining 500 facilities, the vast majority of which are owned and operated
by large businesses, are oil/coal/wood/gas-fired boilers; process heaters;
kilns; gas turbines; duct burners; and flares used in oil and gas production,
processing, and transmission; chemical processing; electricity generation;
metal manufacturing; general manufacturing; and oil refining operations. The
commission estimates the actual number of affected large businesses will be
higher since there are probably additional operational grandfathered facilities
that were not included in the 1997 emissions inventory.
The costs to affected businesses and individuals to comply with this rulemaking
will be limited to public notice costs. The costs for public notice vary significantly
depending on the location of the facility and its proximity to large metropolitan
areas. Small town/city newspapers generally charge much less for publication
of a public notice. The commission estimates a large city newspaper would
charge approximately $3,000 for the display notice and approximately $450
for the legal notice. A smaller city newspaper would charge approximately
$210 for the display notice and $20 for the legal notice. The cost for alternative
language publication, if needed, is estimated to be $150. The cost for signs
at affected facilities would cost approximately $300. The total costs for
public notice associated with permitting a grandfathered facility would range
from $680 to $3,900, assuming alternative language notice is also required.
If a request for notice and comment hearing is received on an application,
the applicant would also be required to publish a legal notice for the hearing,
which would cost an additional $450 for publication in a large city newspaper,
and $20 in a smaller city newspaper.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There may be adverse fiscal implications, which are not anticipated to
be significant, for small and micro-businesses that have to obtain a permit
as a result of implementation and enforcement of the proposed amendments,
which are intended to implement the grandfather permitting public notice requirements
of HB 2912 by updating commission rules to reflect that applicants seeking
existing facility permits, existing facility flexible permits, pipeline facilities
permits, or EGF permits would be subject to existing commission public notice
and hearing rules.
The commission anticipates that grandfathered facilities owned and operated
by small and micro- businesses will likely apply for either existing facility
or small business stationary source permits. The are no known small or micro-businesses
that would be eligible for the EGF permit and the commission anticipates there
are very few small or micro-businesses with equipment that would qualify for
the pipeline facility permit. The commission anticipates that the owners or
operators of these facilities will obtain a small business stationary source
permit rather than a pipeline facility permit. In order to qualify for the
small businesses stationary source permit, the site must emit less than 50
tons per year (tpy)of any regulated air pollutant and cannot emit more than
75 tpy of all regulated air pollutants. Small or micro-businesses with emission
outputs above these thresholds would have to obtain an existing source permit.
The public notice requirements of this rulemaking will affect permit applicants
depending on when they are required to submit permit applications. Grandfathered
facilities owned and operated by small or micro-business that intend to obtain
a small business stationary source permit must submit an application before
September 1, 2004 and any controls required by the permit must be in operation
by March 1, 2008. Small and micro-businesses that do not qualify for, or choose
not to obtain a small business stationary source permit, must submit a permit
application by March 1, 2008 or shut down.
Based on analysis of the 1997 emissions inventory, there are a total of
approximately 800 grandfathered facilities in Texas. Since 1997, it is estimated
that 300 of these sites have been authorized to continue operations under
a permit, permit-by-rule, or currently have a pending permit application.
Of the remaining 500 facilities identified on the emissions inventory, the
commission estimates that fewer than ten are small or micro-businesses. The
commission estimates there may be other grandfathered facilities owned and
operated at small and micro-businesses that qualify for the small business
stationary source permit, and therefore would not have shown up on the emissions
inventory. Examples of grandfathered equipment owned and operated by small
and micro-businesses include small industrial, institutional, and commercial
boilers, process heaters, and internal combustion engines.
The costs to affected small and micro-businesses to comply with this rulemaking
will be limited to public notice costs for those facilities that do not qualify
for a small business stationary source permit. The costs for public notice
will be decreased for small and micro-businesses compared to larger businesses,
because they would not be required to publish a display notice. The public
notice costs will vary depending on the location of the facility and its proximity
to large metropolitan areas. Small town/city newspapers generally charge much
less for publication of a public notice. The commission estimates a large
city newspaper would charge approximately $450 for the legal notice. A smaller
city newspaper would charge approximately $20 for the legal notice. The cost
for alternative language publication, if needed, is estimated to be $150.
The cost for signs at affected facilities would cost approximately $300. The
total costs for public notice associated with permitting a grandfathered facility
owned and operated by a small or micro-business would range from $470 to $900,
assuming alternative language notice is also required. If a request for notice
and comment hearing is received on an application, the applicant would also
be required to publish a legal notice for the hearing, which would cost an
additional $450 for publication in a large city newspaper, and $20 in a smaller
city newspaper.
The following is an analysis of the cost per employee for small or micro-businesses
affected by the proposed amendments. Small and micro-business are defined
as having fewer than 100 or 20 employees respectively. A small business that
applies for an existing facility permit for one natural gas-fired boiler would
incur additional costs of approximately $13.50 per employee, assuming alternative
language notice and a comment is required. A micro-business that applies for
an existing facility permit for one natural gas-fired boiler would incur additional
costs of approximately $67.50 per employee, assuming alternative language
notice and a comment is required. The cost to comply with the public notice
requirements of this rulemaking is anticipated to be less for small and micro-
businesses, compared to larger businesses, because a small business would
not have to pay for a display notice in a newspaper.
LOCAL EMPLOYMENT IMPACT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in affect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that this rulemaking implementing HB 2912, §§5.02 - 5.04 does not
meet the definition of a "major environmental rule" as defined in that statute.
The 77th Legislature, 2001 amended the THSC to require that all grandfathered
facilities obtain permits. These rules implement the procedural requirements
associated with the permitting system created by HB 2912, including four different
types of permits which will cover all grandfathered facilities, and provide
for emission reductions of nitrogen oxides (NO
x
)
and volatile organic compound (VOC). The substantive requirements of the permitting
system created by HB 2912 are contained in a different proposed action by
the commission, published in an earlier edition of the
Texas Register
.
A "major environmental rule" means a rule, the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. While the proposed rules to implement the
HB 2912 sections concerning the substantive permitting requirements are intended
to protect the environment or reduce risks to human health from environmental
exposure and may have adverse effects on the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state, the proposed new sections of Chapter 39 are merely procedural.
Furthermore, the analysis required by Texas Government Code, §2001.0225(c)
does not apply because the proposed rules do not meet any of the four applicability
requirements of a major environmental rule. The proposed rules do not exceed
a standard set by federal law, exceed an express requirement of state law,
exceed a requirement of a delegation agreement, or adopt a rule solely under
the general powers of the agency. The rules are proposed specifically to comply
with HB 2912, and do not exceed the requirements of that bill.
TAKINGS IMPACT ASSESSMENT
The commission has completed a takings impact assessment for the proposed
rules. The following is a summary of that assessment. The purpose of the proposed
rules is to create the procedural provisions necessary for the implementation
of the substantive permitting requirements of HB 2912, and will advance this
purpose by supporting the permitting system created by HB 2912. This system
includes four different types of permits which will cover all grandfathered
facilities, and provide for emission reductions of NO
x
and VOC.
The commission evaluated these proposed rules and performed a preliminary
assessment of whether Texas Government Code, Chapter 2007 is applicable. The
commission's preliminary assessment indicates that Texas Government Code,
Chapter 2007 does not apply to these proposed rules because this action qualifies
for two exceptions to the application of Chapter 2007. First, this action
is reasonably taken to fulfill an obligation mandated by federal law, and
is, therefore, exempt under Texas Government Code, §2007.003(b)(4). The
action is mandated by federal law because the rules will be submitted for
the EPA approval as part of the SIP, which is mandated by 42 USC, §7410.
Also, the proposed rules are a necessary component of the permitting program
created by HB 2912 and proposed to be implemented by changes to 30 TAC Chapter
116 in an action proposed in an earlier
Texas Register
, and will implement requirements of 42 USC, §7410. Second, §2007.003(b)(13)
states that Chapter 2007 does not apply to an action that: (1) is taken in
response to a real and substantial threat to public health and safety; (2)
is designed to significantly advance the health and safety purpose; and (3)
does not impose a greater burden than is necessary to achieve the health and
safety purpose. Although the rule revisions do not directly prevent a nuisance
or prevent an immediate threat to life or property, they do prevent a real
and substantial threat to public health and safety. The revisions also significantly
advance the health and safety purpose. The reductions in NO
x
and VOC that will occur through the implementation of the permitting
program created by HB 2912 significantly advance a health and safety purpose
by assisting the state's efforts to attain the ozone national ambient air
quality standards set by the EPA under 42 USC, §7409, for nonattainment
areas of the state and maintain the quality of the state's air in attainment
areas. Because the reductions required by these rules will be no greater than
those required by HB 2912 to implement the procedural requirements specified
by the legislature, this action does not impose a greater burden than is necessary
to achieve the health and safety purpose. In conclusion, this action is taken
in response to a real and substantial threat to public health and safety,
designed to significantly advance the health and safety purpose, and does
not impose a greater burden than is necessary to achieve the health and safety
purpose. Thus, this action is exempt from the application of Texas Government
Code, Chapter 2007 under §2007.003(b)(4) and §2007.003(b)(13).
Finally, promulgation and enforcement of these rules will not burden private
real property. The proposed rules do not affect private property in a manner
which restricts or limits an owner's right to the property that would otherwise
exist in the absence of governmental action. Consequently, the proposed rules
do not meet the definition of a taking under Texas Government Code, §2007.002(5).
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rules
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, nor will they affect any action or authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Although
commission rules governing air pollutant emissions are subject to the Coastal
Management Program (CMP), the proposed actions concern only the procedural
rules of the commission; do not govern or authorize any actions subject to
the CMP; and are not themselves capable of adversely affecting a coastal natural
resource area. Therefore, the proposed rulemaking is not subject to the CMP.
ANNOUNCEMENT OF HEARING
Public hearings on the proposal will be held at the following times and
locations: January 22, 2002, 7:00 p.m., Tyler Junior College Regional Training
and Development Center, Room 104, 1530 South Southwest Loop 323, Tyler; January
23, 2002, 7:00 p.m., City of Houston City Council Chambers, 2nd Floor, 901
Bagby, Houston; January 24, 2002, 7:00 p.m., City of Odessa City Council Chambers;
5th Floor, 411 West 8th Street, Odessa; January 28, 2002, 6:30 p.m., City
of Irving Central Library Auditorium, 801 West Irving Boulevard, Irving; and
January 29, 2002, 2:00 p.m., Texas Natural Resource Conservation Commission,
12100 North I-35, Building F, Room 2210, Austin.
The hearings are 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 discussion will not occur during the hearings;
however, an agency staff member will be available to discuss the proposal
30 minutes prior to the hearings, and answer questions before and after the
hearings.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, 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 by 5:00 p.m. on
January 29, 2002. All comments should reference Rule Log No. 2001-076-116-AI.
For further information, please contact Steve Hagle, Air Permits Division,
at (512) 239-1295; or Jill Burditt, Policy and Regulations Division, at (512)
239-0560.
Subchapter H. APPLICABILITY AND GENERAL PROVISIONS