30 TAC §§101.221 - 101.223
The Texas Commission on Environmental Quality (commission)
adopts the amendments to §§101.221 - 101.223. Sections 101.221 -
101.223 are adopted
without changes
to the
proposed text as published in the April 8, 2005, issue of the
Texas Register
(30 TexReg 2030), and will not be republished.
The amendments will be submitted to the United States Environmental Protection
Agency (EPA) as revisions to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
This rulemaking action would extend the expiration date of June 30, 2005,
to January 15, 2006, unless the commission submits a revised version of §§101.221
- 101.223 to the EPA for review and approval into the SIP. If the commission
submits these revisions to the EPA, these sections would expire on June 30,
2006.
SECTION BY SECTION DISCUSSION
The adopted revisions to §§101.221 - 101.223 delete references
to the June 30, 2005, expiration and replace it with a new expiration date
of January 15, 2006, unless the commission submits a revised version of these
sections to the EPA for review and approval into the SIP. The adopted revisions
further provide that if the commission submits a revised version of these
sections, these sections expire on June 30, 2006.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory impact
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking does not meet the definition of a "major environmental
rule." Furthermore, it does not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). 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, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. The amendments are intended to extend the
expiration date of June 30, 2005, to January 15, 2006, unless the commission
submits a revised version of these sections to the EPA for review and approval
into the SIP. If the commission submits a revised version of these sections,
these sections expire on June 30, 2006. The amendments will not adversely
affect, in a material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state.
In addition, Texas Government Code, §2001.0225, only applies to a
major environmental rule, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
The amendments do not exceed a standard set by federal law or exceed an express
requirement of state law. There is no contract or delegation agreement that
covers the topic that is the subject of this rulemaking. Finally, this rulemaking
was not developed solely under the general powers of the agency, but is authorized
by specific sections of the Texas Health and Safety Code and Texas Water Code,
which are cited in the STATUTORY AUTHORITY section of this preamble. Therefore,
this rulemaking is not subject to the regulatory analysis provisions of Texas
Government Code, §2001.0225(b), because the amendments do not meet any
of the four applicability requirements.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the rulemaking action
under Texas Government Code, §2007.043. The specific purpose of this
rulemaking is to extend the expiration date of June 30, 2005, to January 15,
2006, unless the commission submits a revised version of these sections to
the EPA for review and approval into the SIP. If the commission submits a
revised version of these sections, these sections expire on June 30, 2006.
Promulgation and enforcement of the amendments would be neither a statutory
nor a constitutional taking because they do not affect private real property.
Specifically, the amendments do not affect private property in a manner which
restricts or limits an owner's right to the property that would otherwise
exist in the absence of a governmental action. Therefore, the amendments do
not constitute a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action 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
commission 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 Coastal Management Program, 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, quality,
quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)).
No new sources of air contaminants will be authorized and the adopted amendments
will maintain the same level of emissions control as the existing rules. The
CMP policy applicable to this rulemaking action is the policy that commission
rules comply with federal regulations in 40 Code of Federal Regulations (CFR),
to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation,
Adoption, and Submittal of Implementation Plans. Therefore, in accordance
with 31 TAC §505.22(e), the commission affirms that this rulemaking action
is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Sections 101.221 - 101.223 are applicable requirements under 30 TAC Chapter
122, Federal Operating Permits. Upon the effective date of this rulemaking,
owners or operators subject to the Federal Operating Permits Program will
be required to certify compliance with amended §§101.221 - 101.223.
PUBLIC COMMENT
A public hearing for this rulemaking was held on April 26, 2005, in Austin,
and no oral comments were received. The public comment period ended at 5:00
p.m. on April 26, 2005, and written comments were submitted by Environmental
Integrity Project.
Comment
Comments were submitted by Environmental Integrity Project, who suggested
changes to §101.222(b) - (e) to ensure that these subsections comply
with the federal Clean Air Act.
Response
These comments address subsections of the rule that were not proposed for
change, and are therefore, outside the scope of this rulemaking. These comments
are, however, related to rulemaking (Rule Project No. 2005-024-101-CE), which
is planned for proposal in the near future. The commission urges EIP to review
that future rulemaking proposal and re-submit these comments, as applicable,
during the designated comment period.
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code, §382.017, concerning
Rules, which authorizes the commission to adopt rules consistent with the
policy and purposes of the Texas Clean Air Act. The amendments are also adopted
under Texas Health and Safety Code, §382.002, concerning Policy and Purpose,
which establishes the commission's purpose to safeguard the state air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, concerning General Powers and Duties, which authorizes
the commission to control the quality of the state air; §382.012, concerning
State Air Control Plan, which authorizes the commission to prepare and develop
a general, comprehensive plan for the control of the state air; §382.085,
concerning Unauthorized Emissions Prohibited, which prohibits emissions except
as authorized by commission rule or order; §382.0215, concerning Assessment
of Emissions Due to Emissions Events, which authorizes the commission to collect
and assess unauthorized emissions data due to emissions events; §382.0216,
concerning Regulation of Emissions Events, which authorizes the commission
to establish criteria for determining when emissions events are excessive
and to require facilities to take action to reduce emissions from excessive
emissions events; and §382.05101, concerning
De Minimis
Air Contaminants, which authorizes the commission to develop
by rule the criteria to establish a
de minimis
level
of air contaminants for which a permit is not required.
The adopted amendments implement Texas Health and Safety Code, §§382.002,
382.011, 382.012, and 382.017.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 3, 2005.
TRD-200502234
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: June 23, 2005
Proposal publication date: April 8, 2005
For further information, please call: (512) 239-6087