Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 122.
FEDERAL OPERATING PERMITS PROGRAM
The Texas Commission on Environnmental Quality (commission) proposes
the repeal of §122.131 and §§122.511 - 122.516.
These sections provide for an application option that has not been used
and is now expired, and for industry and county-specific general operating
permits that have now become non-rule general operating permits. The commission
will also be accepting public comment on the submission of previously adopted §122.217
to the United States Environmental Protection Agency (EPA) as a revision to
the state implementation plan (SIP). No changes are being proposed to §122.217.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEALS
Title V of the Federal Clean Air Act Amendments of 1990 (FCAA) as codified
in 42 United States Code (USC) required all states to develop operating permit
programs that met federal criteria. The EPA has promulgated a final rule identifying
the criteria for state operating permit programs, 40 Code of Federal Regulations
(CFR) Part 70, State Operating Permit Programs. The general goal of the operating
permit program requirement is to facilitate compliance and improve enforcement
by issuing permits that consolidate all applicable requirements into a federally-enforceable
document.
The rules in Chapter 122 were originally developed to meet this federal
requirement. The commission is now proposing to repeal §122.131 because
the phased permit process has not been used by any facilities and the scheduled
dates have since passed. The commission is also proposing the repeal of §§122.511
- 122.516 since the types of permits referenced have been converted to non-
rule general operating permits and no longer exist.
On November 20, 2002, the commission adopted amendments to §122.217
regarding minor revision procedures. However, the commission did not submit §122.217
to the EPA as a revision to the SIP. Public comment will be accepted on this
section being submitted as a revision to the SIP. The adopted rule for §122.217
can be viewed on the
Texas Register web site at:
http://www.sos.state.tx.us
SECTION BY SECTION DISCUSSION
The commission proposes the repeal of §122.131, Phased Permit Detail.
The phased permit process has not been used by any facilities and the scheduled
dates have since passed. The commission also proposes the repeal of §§122.511
- 122.516, Oil and Gas General Operating Permit - Brazoria, Chambers, Collin,
Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson,
Liberty, Montgomery, Orange, Tarrant, and Waller Counties; Oil and Gas General
Operating Permit - Gregg, Nueces, and Victoria Counties; Oil and Gas General
Operating Permit - Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis
Counties; Oil and Gas General Operating Permit - All Texas Counties Except
for Aransas, Bexar, Brazoria, Calhoun, Chambers, Collin, Dallas, Denton, El
Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Matagorda,
Montgomery, San Patricio, Tarrant, Travis, Victoria, and Waller Counties;
Bulk Fuel Storage Terminal General Operating Permit; and Site-wide General
Operating Permit. The contents of these sections were industry and county-specific
general operating permits that have now become non- rule general operating
permits.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Analyst with Strategic Planning and Appropriations, has
determined that for each year of the first five-year period the proposed repeals
are in effect, there will be no fiscal implications to units of state or local
government as a result of the implementation and administration of the proposed
repeals.
The proposed repeals are intended to simplify current rules relating to
the Federal Operating Permits Program under Title V of the FCAA. Title V of
the FCAA required all states to develop operating permit programs that met
federal criteria and the original rules were developed to meet these requirements.
The proposed rulemaking repeals provisions relating to a phased permit process
and provisions referencing certain types of permits in certain areas.
The phased permit provision allows sites with 75 or more emission units
in a nonattainment area, and sites with 150 or more emission units in an attainment
area to submit permit applications in phases to allow for flexibility in the
permit application process. However, regulated entities have never used the
phased permit process and the deadline for submitting a phased permit application
has passed (July 2000).
The proposed repeals also remove provisions relating to certain types of
general operating permits, including oil and gas general operating permits
in specific counties, bulk fuel storage terminal general operating permits,
and site-wide general operating permits. The contents of these sections for
industry and county-specific general operating permits have already been incorporated
into non-rule general operating permits now used by the agency and regulated
facilities, resulting in no change to current practices.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
the proposed repeals are in effect, the public benefit anticipated from the
enforcement of and compliance with the proposed repeals would be the clarification
and simplification of rule language relating to the Title V Operating Permits
Program by removing outdated and unused rule language.
No fiscal implications are anticipated to individuals or businesses as
a result of implementing and administering the proposed repeals, as the proposed
repeals have no effect on current practices of the agency, businesses, or
individuals regarding the Federal Operating Permits Program. The proposed
repeals are intended to simplify current rules relating to the Federal Operating
Permits Program under Title V of the FCAA. The proposed rulemaking repeals
provisions relating to a phased permit process and provisions referencing
certain types of permits in certain areas.
The phased permit provision allows sites with 75 or more emission units
in a nonattainment area, and sites with 150 or more emission units in an attainment
area to submit permit applications in phases to allow for flexibility in the
permit application process. However, regulated entities have never used the
phased permit process and the deadline for submitting a phased permit application
has passed (July 2000).
The proposed repeals also remove provisions relating to types of general
operating permits, including oil and gas general operating permits in specific
counties, bulk fuel storage terminal general operating permits, and site-wide
general operating permits. The contents of these sections for industry and
county-specific general operating permits have already been incorporated into
non-rule general operating permits now used by the agency and regulated facilities.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
resulting from the implementation of the proposed repeals, as they are intended
to simplify rule language relating to the Title V Operating Permits Program
by removing outdated and unused rule language. In addition, the proposed repeals
have no effect on current practices of the agency, businesses, or individuals
regarding the Federal Operating Permits Program.
The proposed rulemaking is intended to simplify current rules by repealing
provisions relating to a phased permit process and provisions referencing
certain types of general operating permits in certain areas.
The phased permit provision allows sites with 75 or more emission units
in a nonattainment area, and sites with 150 or more emission units in an attainment
area to submit permit applications in phases to allow for flexibility in the
permit application process. However, regulated entities have never used the
phased permit process and the deadline for submitting a phased permit application
has passed (July 2000).
The proposed repeals also remove provisions relating to certain types of
general operating permits, including oil and gas general operating permits
in specific counties, bulk fuel storage terminal general operating permits,
and site-wide general operating permits. The contents of these sections for
industry and county-specific general operating permits have already been incorporated
into non-rule general operating permits now used by the agency and regulated
facilities, resulting in no change to current practices.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rulemaking
does not adversely affect a local economy in a material way for the first
five years that the proposed rulemaking will be in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the proposed rulemaking in accordance with
the regulatory analysis requirements of Texas Government Code, §2001.0225,
and determined that the rulemaking does not meet the definition of a major
environmental rule. 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.
Although the rules adopted by the commission to implement the requirements
of 42 USC, §§7661 - 7661e, are intended to protect the environment
or reduce risks to human health from environmental exposure through increased
compliance with requirements already applicable to facilities, the proposed
rules are not anticipated to 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 rulemaking merely repeals sections
that are unnecessary.
The requirements of the proposed repeals are expected to result in little
or no impacts on the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state. All
facilities affected by the proposed repeals no longer have the opportunity
to select the phased permit detail process since the deadlines have passed
and have the option of using non-rule general operating permits in place of
the rule-based general operating permits proposed for repeal in this rulemaking.
Additionally, the analysis required by Texas Government Code, §2001.0225(c),
does not apply because the proposed repeals do not meet any of the four applicability
requirements of a major environmental rule. The proposed repeals 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 proposed repeals do not exceed the requirements
of either 42 USC, §§7661 - 7661e (the requirements for the federal
operating permit program), or related provisions of the Texas Clean Air Act
(TCAA). Additionally, the proposed repeals do not exceed a requirement of
a delegation agreement, since there is no agreement that is applicable to
this rulemaking, and are not proposed solely under the general powers of the
agency.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed repeals and performed an analysis
of whether the proposed repeals are subject to Texas Government Code, Chapter
2007. The purpose of the proposed repeals is to remove unnecessary provisions
of the state operating permit program, required by 42 USC, §§7661
- 7661e and 40 CFR Part 70. All facilities affected by the proposed repeals
no longer have the opportunity to select the phased permit detail process
since the deadlines have passed and have the option of using non-rule general
operating permits in place of the rule-based general operating permits proposed
for repeal in this rulemaking.
The commission's analysis indicates that Texas Government Code, Chapter
2007, does not apply to the proposed repeals because this is an action that
is reasonably taken to fulfill an obligation mandated by federal law, which
is exempt under Texas Government Code, §2007.003(b)(4). The proposed
repeals will implement requirements of 42 USC, §§7661 - 7661e. While
the proposed repeals are not specifically mandated by federal law, the state
is required to maintain a state operating permit program to avoid the imposition
of sanctions under 42 USC, §7509, and the deletion of these unnecessary
sections will provide for a better, more clear program. Additionally, promulgation
and enforcement of the repeals will not burden private real property. The
proposed repeals 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 repeals do not
meet the definition of a takings under Texas Government Code, §2007.002(5).
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal
Management Program, and will, therefore, require that goals and policies of
the Texas Coastal Management Program (CMP) be considered during the rulemaking
process. The commission reviewed this action for consistency and has determined
that the repeal of §§122.131 and 122.511 -122.516 does not impact
any CMP goals or policies because it is administrative. Additionally, the
repeals will not adversely impact any CMP goals or policies since the deadline
for submitting an application under the phased permit detail process has passed,
and there are non-rule general operating permits available to those facilities
which would previously have used the general operating permits proposed for
repeal in this rulemaking. The commission seeks public comment on the consistency
of the proposed repeals with applicable CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
This proposal has no impact on owners and operators of sites subject to
the operating permit program since the repeal of the sections merely deletes
unnecessary sections. The dates of the phased permit detail have passed and
the only general operating permits that are now available are non-rule general
operating permits which are now being used by those subject to the Federal
Operating Permits Program.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
April 14, 2003 at 10:00 a.m. in Building F, Room 2210, at the commission's
central office located at 12100 Park 35 Circle. The hearing is structured
for the receipt of oral or written comments by interested persons. Registration
will begin 30 minutes prior to the hearing. Individuals may present oral statements
when called upon in order of registration. Open discussion will not occur
during the hearing; however, commission staff members will be available to
discuss the proposal 30 minutes before the hearing, and will answer questions
before and after the hearing.
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 faxed to (512) 239-4808. Comments must be received by 5:00 p.m., April
21, 2003, and should reference Rule Log Number 2002-056-122-AI. For further
information, please contact Debra Barber, Policy and Regulations Division
at (512) 239-0412.
Subchapter B. PERMIT REQUIREMENTS
3.
PERMIT APPLICATION
30 TAC §122.131
(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 Commission on Environmental Quality or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Health and Safety Code (THSC), TCAA, §382.011,
which authorizes the commission to administer the requirements of the TCAA; §382.017,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the TCAA; §382.051, which authorizes the commission to
issue permits and adopt rules as necessary to comply with changes in federal
law or regulations applicable to permits issued under this chapter; §382.054,
which requires sources to obtain a federal operating permit; §382.0541,
which authorizes the administration and enforcement of federal operating permits;
and Texas Water Code (TWC), §5.103, which authorizes the commission
to propose rules.
The repeal implements THSC, §382.011, concerning General Powers and
Duties; §382.017, concerning Rules; §382.051, concerning Permitting
Authority of Board and Rules; §382.054, concerning Federal Operating
Permits; §382.0541, concerning the Administration and Enforcement of
Federal Operating Permits; and TWC, §5.103, concerning Rules.
§122.131.Phased Permit Detail.
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 March 7, 2003.
TRD-200301616
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 20, 2003
For further information, please call: (512) 239-5017
Subchapter F. GENERAL OPERATING PERMITS