Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 25.
ENVIRONMENTAL TESTING LABORATORY ACCREDITATION AND CERTIFICATION
The Texas Commission on Environmental Quality (commission or TCEQ)
adopts amendments to §25.9 and §25.62
without changes
to the proposed text as published in the March 24,
2006, issue of the
Texas Register
(31 TexReg
2389) and the text will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the adopted rules is to refer to more recent laboratory
accreditation standards adopted by the National Environmental Laboratory Accreditation
Conference (NELAC) and to expand the sources of proficiency test samples for
drinking water laboratories seeking or holding certifications issued by the
commission.
SECTION BY SECTION DISCUSSION
Adopted §25.9, Standards for Environmental Testing Laboratory Accreditation,
replaces the phrase "Chapters 3, 4, and 5, adopted July 2002, and Chapters
1, 2, and 6, adopted June 2003" with "approved June 2003" to refer to the
most recent laboratory accreditation standards adopted by NELAC.
Adopted §25.62(d), Proficiency Test Sample Analyses, replaces the
phrase "Proficiency test samples shall be purchased from a provider approved
by the National Institute for Standards and Technology, if available" with
"Proficiency test samples, if available, shall be purchased from a National
Environmental Laboratory Accreditation Program-designated provider or a provider
approved by the National Institute of Standards and Technology." The change
expands the number of potential sources of proficiency test samples for drinking
water laboratories seeking or holding certifications issued by the commission.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rules 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. 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.
This rulemaking updates the agency’s standards for accreditation
and expands the number of potential sources of proficiency test samples for
drinking water laboratories seeking or holding certifications issued by the
commission. Thus, these rules do not meet the definition of a "major environmental
rule." These rules are not a major environmental rule and do not meet any
of the four applicability requirements that apply to a major environmental
rule. Under Texas Government Code, §2001.0225, the adopted rules do not
exceed a standard set by federal law or 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 adopted rules do
not exceed a standard set by federal law nor exceed the requirement of a delegation
agreement because there is no federal authority regarding laboratory accreditation.
These revisions do not adopt a rule solely under the general powers of
the commission and do not exceed an express requirement of state law. The
requirements that are implemented through these rules are expressly defined
under Texas Water Code (TWC), Chapter 5, Subchapter R, which requires the
commission to enact rules governing the accreditation of environmental laboratories.
TAKINGS IMPACT ASSESSMENT
The commission’s final assessment indicates that Texas Government
Code, Chapter 2007, does not apply to these adopted amendments because the
adopted amendments are not a taking as defined in Chapter 2007, nor are they
a constitutional taking of private real property. The purpose of the adopted
amendments is to update NELAC standards referenced in these rules.
Promulgation and enforcement of these adopted rules will not affect private
real property, which is the subject of the rules, because the adopted amendments
will neither restrict nor limit the owner’s right to the property, nor
cause a reduction of 25% or more in the market value of the property. The
adopted rules only apply to environmental testing laboratories that submit
data to the commission for use in its decisions. Property values will not
be decreased because the adopted amendments will not limit the use of real
property. Thus, these adopted rules will not constitute a taking under Texas
Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking and found that the adoption is
not a rulemaking subject to the Texas Coastal Management Program (CMP) because
the rulemaking was neither identified in 31 TAC §505.11, nor affected
any action or authorization identified in §505.11. Therefore, the adoption
is not subject to the CMP.
PUBLIC COMMENT
The commission received no comments concerning this rulemaking.
Subchapter B. ENVIRONMENTAL TESTING LABORATORY ACCREDITATION
30 TAC §25.9
STATUTORY AUTHORITY
The amendment is adopted under the general authority granted in TWC, §5.013,
which establishes the general jurisdiction of the commission over other areas
of responsibility as assigned to the commission under the TWC and other laws
of the state; §5.103 and §5.105, which authorize the commission
to adopt rules and policies necessary to carry out its responsibilities and
duties under the TWC; and §5.802 and §5.805, which require the agency
to adopt rules for the administration of the laboratory accreditation program.
The adopted amendment implements TWC, §§5.013, 5.103, 5.105,
5.802, and 5.805.
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 29, 2006.
TRD-200603518
Robert Martinez
Acting Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2006
Proposal publication date: March 24, 2006
For further information, please call: (512) 239-5017
30 TAC §25.62
STATUTORY AUTHORITY
The amendment is adopted under the general authority granted in TWC, §5.013,
which establishes the general jurisdiction of the commission over other areas
of responsibility as assigned to the commission under the TWC and other laws
of the state; §5.103 and §5.105, which authorize the commission
to adopt rules and policies necessary to carry out its responsibilities and
duties under the TWC; and §5.802 and §5.805, which require the agency
to adopt rules for the administration of the laboratory accreditation program.
The adopted amendment implements TWC, §§5.013, 5.103, 5.105,
5.802, and 5.805.
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 29, 2006.
TRD-200603519
Robert Martinez
Acting Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2006
Proposal publication date: March 24, 2006
For further information, please call: (512) 239-5017
Subchapter K. AIR ORDERS
30 TAC §§35.801, 35.802, 35.804, 35.805, 35.807, 35.808
The Texas Commission on Environmental Quality (commission
or TCEQ) adopts amendments to §§35.801, 35.802, 35.804, 35.805,
35.807, and 35.808
without changes
to the
proposed text as published in the March 10, 2006, issue of the
Texas Register
(31 TexReg 1599) and these sections will not be republished.
The amended sections will 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 ADOPTED RULES
House Bill (HB) 2949, 79th Legislature, 2005, amended Texas Water Code
(TWC), §5.515, to allow for authorization of emergency orders to repair
or replace roads, bridges, or other infrastructure improvements involving
public works projects destroyed during a catastrophe. The TWC previously only
authorized emergency orders to allow repair of a facility or control equipment.
Amended TWC, §5.515 adds language regarding the contents of the application
for an emergency order. The required language in the application pertaining
to the reason for allowing the construction and emissions was expanded to
include preventing a "loss of a critical transportation thoroughfare." The
purpose of this rulemaking is to reflect these changes in Subchapter K of
this chapter.
The adopted rules add language authorizing emergency orders to include
repair or replacement of roads, bridges, or other infrastructure improvements
to the list of actions that can be authorized by an emergency order. Additionally,
the adopted rules authorize an applicant to list loss of a critical transportation
thoroughfare as a reason why the construction and emissions are essential.
As a point of clarification, it is noted that the issuance of an emergency
order, under the adopted rules, to a rock crusher or concrete batch plant
that performs wet batching, dry batching, or central mixing will not be prohibited
under TWC, §5.5145, or subject to penalty under TWC, §7.052(b),
because the facility is considered to be operating under a temporary authorization
as provided in TWC, §5.501(a)(2)(A). A facility which has been issued
an emergency order has been provided a limited-term authorization and must
submit an application for a permit or permit modification within 60 days of
the order issuance, as described in 30 TAC §35.806.
SECTION BY SECTION DISCUSSION
The commission adopts administrative changes throughout the rules to conform
with Texas Register requirements and agency guidelines.
The adopted amendment to §35.801, Emergency Orders Because of Catastrophe,
adds roads, bridges, or other infrastructure to the list of repairs or replacements
for which the commission may authorize immediate action. The commission also
revises the definition of catastrophe by replacing the word "operator" with
the word "applicant" and by adding the language "or a road, bridge, or other
infrastructure."
The adopted amendment to §35.802, Application of an Emergency Order,
adds language, in paragraphs (1) and (5), allowing an applicant to state that
the proposed construction and emissions are essential to prevent the loss
of a critical transportation thoroughfare, and that the construction and emissions
are necessary for the repair or replacement of roads, bridges, or other infrastructure
to the list of possible statements in an application for an emergency order
of why the construction and emissions are necessary. In describing the limitations
on the proposed construction and emissions, the applicant may cite the public
works project as the specific basis for the emergency authorization.
The adopted amendment to §35.804, Issuance of Order, adds language
to the list in paragraph (1) of possible reasons that would allow the commission
to issue an emergency order, allowing the commission to issue an order under
this subchapter if it is found that the proposed construction and emissions
are essential to prevent the loss of a critical transportation thoroughfare,
and that the construction and emissions are necessary for the repair or replacement
of roads, bridges, or other infrastructure. New §35.804(5)(C), adds public
works projects needed to rebuild or repair damaged roads, bridges, or other
infrastructure destroyed during a catastrophe to the list of limitations of
the proposed construction and emissions.
The adopted amendment to §35.805, Contents of an Emergency Order,
adds in paragraph (3), public works projects needed to rebuild or repair damaged
roads, bridges, or other infrastructure destroyed during a catastrophe to
the list of limitations of the proposed construction and emissions.
The adopted amendment to §35.807, Affirmation of an Emergency Order,
adds language to the list in paragraph (1) of possible reasons that would
allow the commission to issue an emergency order, allowing the commission
to affirm a proposed or issued order under this subchapter if the applicant
shows that the proposed construction and emissions are essential to prevent
the loss of a critical transportation thoroughfare, and that the construction
and emissions are necessary for the repair or replacement of roads, bridges,
or other infrastructure. New §35.807(5)(C) adds public works projects
needed to rebuild or repair damaged roads, bridges, or other infrastructure
destroyed during a catastrophe to the list of limitations of the proposed
construction and emissions.
The adopted amendment to §35.808, Modification of an Emergency Order,
adds language, in paragraph (1), allowing the commission to modify a proposed
or issued order under this subchapter if the applicant shows that the proposed
construction and emissions are essential to prevent the loss of a critical
transportation thoroughfare, and that the construction and emissions are necessary
for the repair or replacement of roads, bridges, or other infrastructure.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted 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 that statute.
A "major environmental rule" means a rule, the specific intent of which, is
to protect the environment or reduce risks to human health from exposure and
that may adversely affect in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, or the public health
and safety of the state or a sector of the state. The commission has determined
that the adopted rulemaking does not fall under the definition of a "major
environmental rule" because it does not adversely affect any of the categories
listed in §2001.0225, and the amendments do not mandate new requirements
for the regulated community. Rather, the adopted rules are intended to reflect
the statutory changes made to TWC, §5.515, by HB 2949, which provide
authorization for specific types of facilities that may emit air contaminants
in limited circumstances. Material adverse effects on the environment are
not anticipated, and the impacts on the economy and productivity are expected
to be significant and positive insofar as recoveries from catastrophic events
will be more quickly and efficiently realized.
Furthermore, the adopted rulemaking does not meet any of the four applicability
requirements listed in Texas Government Code, §2001.0225(a). Texas Government
Code, §2001.0225(a), only applies to a major environmental rule, the
result of which is to: 1) exceed a standard set by federal law, unless the
rule is specifically required by state law; 2) exceed an express requirement
of state law, unless the rule is specifically required by federal law; 3)
exceed a requirement of a delegation agreement or contract between the state
and an agency or representative of the federal government to implement a state
and federal program; or 4) adopt a rule solely under the general powers of
the agency instead of under a specific state law. This rulemaking does not
meet any of these four applicability requirements because this rulemaking:
1) does not exceed any standard set by federal law; 2) does not exceed the
requirements of state law under TWC, Chapter 5, Subchapter L; 3) 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 any
state and federal program; and 4) is not proposed solely under the general
powers of the agency, but rather specifically under TWC, §5.515.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these adopted rules and performed an analysis
of whether these rules constitute a takings under Texas Government Code, Chapter
2007. The specific purpose of the rules is to incorporate into commission
rules the changes made to TWC, §5.515, by the Texas Legislature, by adding
language to authorize emergency orders in the event of a catastrophe to include
the repair or replacement of roads, bridges, or other infrastructure.
Promulgation and enforcement of the amendments would constitute neither
a statutory nor a constitutional taking of private real property. There are
no burdens imposed on private real property under this rulemaking because
the amendments neither relate to, nor have any impact on, the use or enjoyment
of private real property, and there would be no reduction in value of property
as a result of this rulemaking. None of the adopted rules mandate any new
requirements, but rather, provide for a specific type of authorization.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rulemaking and found that the rulemaking
is one 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 CMP goal applicable to the adopted rules is to protect, preserve, restore,
and enhance the diversity, quality, quantity, functions, and values of coastal
natural resource areas. CMP policies applicable to the adopted rules include
the administrative policies and the policies for specific activities related
to the emission of air pollutants. Promulgation and enforcement of these rules
is consistent with the applicable CMP goals and policies because the rules
will establish clear and consistent requirements governing the issuance of
emergency and temporary orders for the repair or replacement of roads, bridges,
or other infrastructure when necessitated by a catastrophe, as authorized
by TWC, Chapter 5, Subchapter L. Under the authority granted by statute, the
commission may issue emergency or temporary orders to address unforeseen circumstances
such as potential catastrophes. Promulgation and enforcement of these rules
will not violate or exceed any standards identified in the applicable CMP
goals and policies because they will allow the commission to take steps to
mitigate emergency or potential emergency situations, which will result in
environmental benefits for the entire state, including coastal areas.
PUBLIC COMMENT
A public hearing on the proposed rules was held in Austin on April 4, 2006,
at the Texas Commission on Environmental Quality but no oral comments were
received. Written comments were submitted by the North Central Texas Council
of Governments (NCTCOG) and the EPA.
RESPONSE TO COMMENTS
NCTCOG supported the amendments and commented that construction associated
with emergency orders issued for the repair of infrastructure destroyed during
a catastrophe may mitigate long-term emissions due to congestion which may
result from an unresolved infrastructure failure.
The commission appreciates the support and concurs in the rationale proffered
by NCTCOG that identifies potential environmental benefits which may result
through the use of the emergency order authorization tool.
EPA commented that it interprets TWC, §5.501, to provide the commission
with the general authority to issue temporary or emergency orders. The EPA
further stated its understanding that through these orders, the commission
may issue a temporary permit or temporarily suspend or amend a permit condition.
Section 5.501 does include authority to issue a temporary permit or temporarily
suspend or amend a permit condition. However, the commission has never issued
a temporary permit in lieu of a conventional authorization method for facilities
with air emissions. The authority exercised through the Chapter 35 rules and
this rulemaking is for issuance of emergency orders. Emergency orders are
most accurately described as limited-term authorizations necessary to respond
to certain catastrophic events. For example, in one instance, an emergency
order was issued to install a larger boiler to replace two smaller boilers
that were damaged in a catastrophic event until the two smaller boilers could
be repaired. However, the larger boiler was not allowed to operate at a firing
rate that would create emissions greater than the permitted limit for the
two boilers, thus providing a limited-term authorization for the larger boiler,
with no greater impact on the environment. The emergency order rules require
that a facility which has been issued an emergency order submit an application
for a permit or permit modification within 60 days of the order issuance.
EPA expressed its understanding that the Chapter 35 emergency order rules
enable the commission to authorize a temporary permit or suspension of permit
requirements without necessitating the submission of any such action to the
EPA as a revision to the SIP. EPA stated that such an arrangement, which it
identified as "director discretion," would run afoul of the requirement for
the submission of a SIP revision contained in Federal Clean Air Act, §110(I).
The Chapter 35 emergency order rules, as amended through this adoption,
do not contemplate the issuance or suspension of a permit or permit conditions.
Rather, the rules authorize the issuance of a limited-term authorization necessary
to respond to certain catastrophic events.
EPA expressed concern that the proposed amendments would allow a source
to avoid preconstruction requirements and permit review procedures, while
authorizing emissions in contravention of state and federal requirements.
Specifically, EPA stated that any SIP revision submittal must demonstrate
that the proposed revision would not interfere with the attainment or maintenance
of the National Ambient Air Quality Standards (NAAQS), Prevention of Significant
Deterioration (PSD) requirements, or negatively affect the existing air quality
in Texas.
The Chapter 35 emergency order rules, as amended through this adoption,
contemplate and call for a comprehensive technical review. As set forth in
30 TAC §35.805, and other sections in Subchapter K, as well as within
each issued emergency order, any construction authorized by an emergency order
may not interfere with the attainment or maintenance of the NAAQS or violate
applicable portions of the control strategy. To that end, the review of emergency
order applications conducted by the commission consists of an evaluation of
best available control technology (BACT) and a review of potential impacts
of human health and the environment by the use of air dispersion modeling
and evaluation by the commission's Toxicology Section. The review also includes
input from the commission's applicable regional office and the commission's
Air Permits Division, as appropriate. The review will ensure that the construction
is subject to current and possibly more stringent requirements than were in
existence for facilities that are being replaced. The technical review process
is at least as comprehensive as the commission's review of permit applications.
Therefore, these rules, as a revision to the SIP, do not interfere with attainment
or maintenance of the NAAQS, violate PSD requirements, or negatively affect
existing air quality in Texas.
Additionally, the emergency order rules require that a facility which has
been issued an emergency order submit an application for a permit or permit
modification within 60 days of the order issuance. As set forth in 30 TAC §35.806,
the permit application will be considered without regard to the activity(ies)
authorized under an emergency order. Since 1993, the commission has issued
approximately 13 air emergency orders. The majority of these authorized replacement
or repairs of damaged facilities and/or control equipment, while a few authorized
new facilities and one authorized a different loading operation. In a number
of cases, operation under the emergency order authority actually lasted less
than the maximum 180-day term (one was operated for less than one week). Therefore,
the impact to the environment was relatively minimal, and permit applications
were not necessary for all of these authorizations.
EPA commented that under certain extraordinary circumstances, such as natural
disasters, the commission could exercise its enforcement discretion. EPA intends
to review such circumstances on a case-by-case basis.
Historically, the commission has not encountered unauthorized construction
after natural disasters or other catastrophic events, and therefore there
have been few opportunities, if any, to choose between exercising enforcement
discretion and consideration of issuance of an emergency order. The rules
in Subchapter K anticipate that an application for an emergency order be submitted
prior to construction of the replacement facilities. If a facility was constructed
without authorization, it would be operating without having undergone a BACT
or health impacts review. However, when confronted with an application for
a temporary authorization necessitated by the occurrence of a catastrophic
event, the commission prefers to rely upon the emergency order authorization
tool in order to ensure that a comprehensive review is conducted, which is
a case-by-case review that should meet EPA requirements. As noted earlier
in this preamble, the commission has issued very few emergency orders; some
were due to catastrophic events that were also natural disasters.
EPA indicated that it may be able to approve the emergency order program,
as submitted through previous SIP revisions, assuming that when considering
the issuance of an emergency order, the state incorporates a review process
which is equivalent to the process used in considering an application for
a regular permit.
As described earlier, the review of applications for emergency orders is
at least as comprehensive as the commission's review of permit applications.
Additionally, the emergency order rules require that a facility which has
been issued an emergency order submit an application for a permit or permit
modification within 60 days of the order issuance. As set forth in 30 TAC §35.806,
the permit application will be considered without regard to the activity(ies)
authorized under an emergency order. Therefore, a person who is granted an
emergency order is on notice that there is no guarantee that the subsequent
permit application will be granted and, if so, whether the construction and
operating requirements will be the same.
EPA requested clarification on what authority the TCEQ relies upon in requiring
a technical review of emergency order applications which contains modeling,
BACT, lowest achievable emission rate, Class I impacts, and impacts on soils,
vegetation, and visibility.
As indicated earlier, the Chapter 35 emergency order rules, as amended
through this adoption, contemplate and call for a comprehensive technical
review. As set forth in 30 TAC §35.805, as well as within each issued
emergency order, any construction authorized by an emergency order may not
interfere with the attainment or maintenance of NAAQS or violate applicable
portions of the control strategy. The commission interprets this directive
to necessitate a comprehensive impacts review as described in previous responses
to comments. This interpretation is grounded in Texas Health and Safety Code
(THSC), §382.024. Such a review is also predicated upon the required
showing that the activity authorized under an emergency order will not cause
or contribute to air pollution, as set forth in TWC, §5.515(d). The applicant
must also demonstrate that there will be no more than a
de minimus
increase in off-property air contaminant concentrations,
per TWC, §5.515(c). To ensure that the emergency order will not violate
applicable portions of the control strategy, the review will check for compliance
with such applicable portions, for example, as permitting requirements, federal
permitting applicability, new source performance standards (NSPS), national
emissions standards for hazardous air pollutants (NESHAPS), and rules adopted
for control of volatile organic compounds and nitrogen oxide emissions in
nonattainment areas. Additionally, the TCEQ has in the past conducted and
required applicants to conduct air dispersion modeling as appropriate to assure
compliance.
EPA inquired as to what would happen if an entity was found to be in violation
of a state or federal requirement after an emergency order was issued. Specifically,
EPA wondered whether the emergency order issuance would shield such an entity
from enforcement action.
An emergency order issued under Chapter 35 would not shield an entity from
an enforcement action brought for violating a state or federal requirement
or the terms of the emergency order. Additionally, each emergency order issued
by the executive director will be considered by the commission during an open
public meeting and must be affirmed, set aside, or modified, which provides
the commission the opportunity to ensure compliance with such requirements.
EPA commented that 30 TAC §116.410 allows a facility to apply for
an emergency order under TWC, §5.515, while Chapter 35 of the Texas Administrative
Code authorizes immediate action under an emergency order. EPA wondered whether
a source may submit a single application for an emergency order or must submit
two applications.
The rules pertaining to emergency orders have been moved in their entirety
to Chapter 35. There remains a reference to emergency orders in 30 TAC §116.1200,
renumbered from 30 TAC §116.410, effective February 1, 2006, which directs
the public to Chapter 35. Only one application is required.
EPA sought the commission's interpretation on whether TWC, §5.515
must be submitted and approved into the SIP.
The legal authority to adopt the emergency order rules adopted and submitted
to EPA in 1998 and these amendments is listed in the STATUTORY AUTHORITY sections
of the rulemaking documents, and as such, is submitted to EPA for its review
as part of this revision into the SIP.
EPA sought the commission's interpretation on what provisions of Chapter
35 need to be approved into the SIP for air purposes.
Through this rulemaking, the commission is submitting amendments to Subchapter
K of Chapter 35. Subchapter K has previously been submitted as a revision
to the SIP. Since this rulemaking is not opening Chapter 35, Subchapters A
- C, nor were subsections in Subchapters A - C proposed for removal from consideration
as a revision to the SIP, the commission cannot revise the SIP submission
at adoption of these rules to concurrently designate applicable subsections
within those subchapters.
EPA questioned where the term "
de minimis
increase"
as used in the current Chapter 35 emergency order provisions is defined for
all criteria pollutants. Further, EPA asks if there is an ambient
de minimis
threshold for ozone or ozone precursors and where the term
"national ambient air quality standards" is defined.
In determining
de minimus
amounts for purposes
of reviewing emergency order applications, the commission refers to the definition
of "
de minimis
impact" in 30 TAC §101.1(25)
as a guideline for assessing truly
de minimus
amounts
of air contaminants. A "
de minimis
impact"
is defined as "A change in ground level concentration of an air contaminant
as a result of the operation of any new major stationary source or of the
operation of any existing source that has undergone a major modification that
does not exceed the following specified amounts." The referenced specified
amounts are set forth in an attached chart. The chart provides various amounts
by NAAQS averaging times, for carbon monoxide, nitrogen dioxide, sulfur dioxide,
and particulate matter greater than 10 microns (PM
10
), ranging from 1 to 25 micrograms per cubic meter.
While there is no ambient
de minimus
threshold
for ozone or ozone precursors
per se
, the
commission reviews each emergency order application and identifies whether
there are any predicted adverse off-property concentrations of either criteria
or non-criteria pollutants regardless if there is any increase in emissions.
The definition of National Ambient Air Quality Standards is defined in 30
TAC §101.1(68).
STATUTORY AUTHORITY
These amendments are adopted under TWC, §5.102, which establishes
the commission's general authority necessary to carry out its jurisdiction; §5.103,
which establishes the commission's general authority to adopt rules to carry
out its duties under the TWC and the other laws of the state; §5.105,
which establishes the commission's authority to set policy by rule; §5.501,
which establishes the commission's authority to issue emergency orders; §5.502,
which sets forth requirements for emergency order applications; §5.504,
which establishes the commission's authority to hold a hearing on the issuance
of an emergency order; and §5.515, which allows the commission to issue
emergency orders for immediate action for the addition, replacement, or repair
of facilities or control equipment, or the repair or replacement of roads,
bridges, or other infrastructure, and authorizing associated emissions of
air contaminants, whenever a catastrophe necessitates such construction and
emissions otherwise precluded under the Texas Clean Air Act (TCAA). In addition,
these rules are adopted under THSC, §382.011, which gives the commission
the authority to control the quality of the state's air; §382.012, which
authorizes the commission to develop a state air control plan; §382.017,
which authorizes the commission to adopt rules implementing the TCAA; §382.024
and §382.025, which establish the authority of the commission to issue
air orders and what factors the commission must consider when issuing such
orders; and §382.063, which authorizes the commission to issue emergency
orders because of catastrophe.
The adopted amendments implement TWC, §§5.501, 5.502, 5.504,
and 5.515, and THSC, §§382.011, 382.012, 382.024, 382.025 and 382.063.
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 30, 2006.
TRD-200603529
Robert Martinez
Acting Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 20, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 239-0348
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts amendments to §§39.501, 39.503, and 39.651
with changes
to the text as published in the March 24, 2006, issue
of the
Texas Register
(31 TexReg 2403).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
House Bill (HB) 1609, 79th Legislature, 2005, amended Texas Health and
Safety Code, §§361.0666, 361.0791, and 361.082, by making the applicant’s
public meeting and the TCEQ’s public meeting on new hazardous waste
management facilities and new municipal solid waste management facilities
discretionary, rather than mandatory. In order to implement this change, the
commission adopts amendments to §§39.501, 39.503, and 39.651 to
reflect the change in statutory language from "shall hold a public meeting"
to "may hold a public meeting."
SECTION BY SECTION DISCUSSION
Administrative and grammatical changes are adopted throughout the sections
to bring the existing rule language into agreement with Texas Register requirements,
agency guidelines, and guidance provided in the
Texas Legislative Council Drafting Manual
, November 2004.
The adopted amendments to §39.501(e), Application for Municipal Solid
Waste Permit, distinguish between applications filed before September 1, 2005,
the effective date of HB 1609, and applications filed on or after September
1, 2005. The mandatory public meeting requirements in paragraph (1) for applications
filed before September 1, 2005, are left in place, changing the subject from
the "applicant" to the "application" to conform to the language in Section
6 of HB 1609. New paragraph (2) is adopted for discretionary public meetings
for applications filed on or after September 1, 2005, and removes the 45-day
requirement for the applicant’s public meeting. New paragraph (2)(A)(i)
also specifies that the agency’s public meeting will be held under 30
TAC §55.154 that, in turn, requires the executive director or the Office
of Public Assistance to hold a public meeting if the executive director determines
that there is a substantial or significant degree of public interest in an
application or if a member of the legislature who represents the general area
in which the facility is located or proposed to be located requests that a
public meeting be held. At the direction of the commission, guidance on the
executive director’s discretion in determining substantial public interest
in an application has been added by repeating a portion of Texas Water Code
(TWC), §5.554 in new clause (ii). New paragraph (3) defines "substantial
public interest" in terms of a local governmental entity with jurisdiction
over the location at which the facility is proposed to be located by formal
resolution of the entity's governing body; a council of governments with jurisdiction
over the location at which the facility is proposed to be located by formal
request of either the council’s solid waste advisory committee, executive
committee, or governing board; a homeowners’ or property owners’
association formally organized or chartered and having at least ten members
located in the general area in which the facility is proposed to be located;
or a group of ten or more local residents, property owners, or businesses
located in the general area in which the facility is proposed to be located.
Existing paragraphs (2) - (4) are renumbered as paragraphs (4) - (6), and
references back to paragraph (1)(A) in renumbered paragraphs (4) and (6) are
made to refer back to paragraph (1)(A) or (2)(A) while the reference back
to paragraph (1)(B) in renumbered paragraph (5) is made to refer back to paragraph
(1)(B) or (2)(B).
The adopted amendments to §39.503(e)(1), Application for Industrial
or Hazardous Waste Facility Permit, distinguish between applications filed
before September 1, 2005, the effective date of HB 1609, and applications
filed on or after September 1, 2005, changing the subject from the "applicant"
to the "application" to conform to the language in Section 6 of HB 1609. New
paragraph (1)(A) retains the mandatory public meeting for applications filed
before September 1, 2005, while new paragraph (1)(B) makes the public meeting
discretionary for applications filed on or after September 1, 2005. New paragraph
(1)(B)(i) also specifies that the agency’s public meeting will be held
under 30 TAC §55.154 that, in turn, requires the executive director or
the Office of Public Assistance to hold a public meeting if the executive
director determines that there is a substantial or significant degree of public
interest in an application or if a member of the legislature who represents
the general area in which the facility is located or proposed to be located
requests that a public meeting be held. At the direction of the commission,
guidance on the executive director’s discretion in determining substantial
public interest in an application has been added by repeating a portion of
TWC, §5.554 in new clause (ii).
The adopted amendments to §39.503(e)(2) distinguish between applications
filed before September 1, 2005, the effective date of HB 1609, and applications
filed on or after September 1, 2005, changing the subject from the "applicant"
to the "application" to conform to the language in Section 6 of HB 1609 and
including Class 3 modifications with major amendments. New paragraph (2)(A)
retains the mandatory public meeting for applications filed before September
1, 2005, if a person affected files a request for a public meeting with the
chief clerk concerning the application before the deadline to file public
comment or hearing requests. New paragraph (2)(B) makes the public meeting
discretionary for applications filed on or after September 1, 2005, and removes
the affected person requirement deleted from the statute in HB 1609. New paragraph
(2)(B)(i) also specifies that the agency's public meeting will be held under §55.154
that, in turn, requires the executive director or the Office of Public Assistance
to hold a public meeting if the executive director determines that there is
a substantial or significant degree of public interest in an application or
if a member of the legislature who represents the general area in which the
facility is located or proposed to be located requests that a public meeting
be held. At the direction of the commission, guidance on the executive director’s
discretion in determining substantial public interest in an application has
been added by repeating a portion of TWC, §5.554 in new clause (ii).
New paragraph (3) defines "substantial public interest" in terms of a local
governmental entity with jurisdiction over the location at which the facility
is located or proposed to be located by formal resolution of the entity’s
governing body; a council of governments with jurisdiction over the location
at which the facility is located or proposed to be located by formal request
of either the council’s solid waste advisory committee, executive committee,
or governing board; a homeowners’ or property owners’ association
formally organized or chartered and having at least ten members located in
the general area in which the facility is located or proposed to be located;
or a group of ten or more local residents, property owners, or businesses
located in the general area in which the facility is located or proposed to
be located. Existing paragraphs (3) - (6) are renumbered as paragraphs (4)
- (7).
The adopted amendments to renumbered §39.503(e)(4) distinguish between
applications filed before September 1, 2005, the effective date of HB 1609,
and applications filed on or after September 1, 2005, changing the subject
from the "applicant" to the "application" to conform to the language in Section
6 of HB 1609. New paragraph (3)(A) retains the applicant’s mandatory
public meeting for applications filed before September 1, 2005, and retains
the 45-day deadline. New paragraph (3)(B) makes the applicant’s public
meeting discretionary for applications filed on or after September 1, 2005.
The adopted amendments to renumbered §39.503(e)(5) and (7) make references
back to paragraph (1) refer back to paragraph (1) or (2).
The adopted amendments to §39.651(e)(1), Application for Injection
Well Permit, distinguish between applications filed before September 1, 2005,
the effective date of HB 1609, and applications filed on or after September
1, 2005, changing the subject from the "applicant" to the "application" to
conform to the language in Section 6 of HB 1609. New paragraph (1)(A) retains
the mandatory public meeting for applications filed before September 1, 2005,
while new paragraph (1)(B) makes the public meeting discretionary for applications
filed on or after September 1, 2005. New paragraph (1)(B)(i) also specifies
that the agency's public meeting will be held under §55.154 that, in
turn, requires the executive director or the Office of Public Assistance to
hold a public meeting if the executive director determines that there is a
substantial or significant degree of public interest in an application or
if a member of the legislature who represents the general area in which the
facility is located or proposed to be located requests that a public meeting
be held. At the direction of the commission, guidance on the executive director’s
discretion in determining substantial public interest in an application has
been added by repeating a portion of TWC, §5.554 in new clause (ii).
New §39.651(e)(2) separates the requirements for public meetings on
applications for major amendments from old paragraph (1) and distinguishes
between applications filed before September 1, 2005, the effective date of
HB 1609, and applications filed on or after September 1, 2005, changing the
subject from the "applicant" to the "application" to conform to the language
in Section 6 of HB 1609 and including Class 3 modifications with major amendments.
New paragraph (2)(A) retains the mandatory public meeting for applications
filed before September 1, 2005, if a person affected files a request for public
meeting with the chief clerk concerning the application before the deadline
to file public comment or hearing requests. New paragraph (2)(B) makes the
public meeting discretionary for applications filed on or after September
1, 2005, and removes the affected person requirement deleted from the statute
in HB 1609. New paragraph (2)(B)(i) also specifies that the agency's public
meeting will be held under §55.154 that, in turn, requires the executive
director or the Office of Public Assistance to hold a public meeting if the
executive director determines that there is a substantial or significant degree
of public interest in an application or if a member of the legislature who
represents the general area in which the facility is located or proposed to
be located requests that a public meeting be held. At the direction of the
commission, guidance on the executive director’s discretion in determining
substantial public interest in an application has been added by repeating
a portion of TWC, §5.554 in new clause (ii). New paragraph (3) defines
"substantial public interest" in terms of a local governmental entity with
jurisdiction over the location at which the facility is located or proposed
to be located by formal resolution of the entity's governing body; a council
of governments with jurisdiction over the location at which the facility is
located or proposed to be located by formal request of either the council's
solid waste advisory committee, executive committee, or governing board; a
homeowners' or property owners' association formally organized or chartered
and having at least ten members located in the general area in which the facility
is located or proposed to be located; or a group of ten or more local residents,
property owners, or businesses located in the general area in which the facility
is located or proposed to be located.
New §39.651(e)(4) separates the statements that a public meeting is
not a contested case proceeding and that a public meeting held as part of
a local review committee process meets the requirements of this subsection
if public notice is provided, similar to the separation of these statements
in §39.501(e)(4) and §39.503(e)(5). Existing paragraphs (2) and
(3) are renumbered as paragraphs (5) and (6).
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rules in light of the regulatory analysis requirements
of Texas Government Code, §2001.0225, and determined that the rules are
not subject to §2001.0225, because they do not meet the criteria for
a "major environmental rule" as defined in that statute.
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 specific intent of the rules is to make public meetings on applications
for new, major amendments, or Class 3 modifications for hazardous waste management
facilities or new municipal solid waste management facilities discretionary.
It is not anticipated that the rules will adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state. The commission concludes that these rules do not meet the definition
of a major environmental rule.
Furthermore, even if the rules did meet the definition of a major environmental
rule, the rules are not subject to Texas Government Code, §2001.0225,
because they do not meet any of the four applicable requirements specified
in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted by an
agency, 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.
In this case, the rules do not meet any of these requirements. First, the
applicable federal standard calls for discretionary public meetings if there
is a significant degree of public interest in a draft permit (40 Code of Federal
Regulations §124.12(a)). Second, the rules do not exceed an express requirement
of state law in Texas Health and Safety Code, §§361.0666(a), 361.0791(a)
and (b), and 361.082(d), as amended by HB 1609. Third, there is no delegation
agreement that would be exceeded by the rules. Fourth, the commission adopts
these rules under the specific authority of Texas Health and Safety Code, §§361.0666(a),
361.0791(a) and (b), and 361.082(d). These rules are also adopted under the
authority of Texas Health and Safety Code, §§361.011, 361.017, and
361.024, which provide the commission the authority to adopt rules necessary
to carry out its powers and duties under the Texas Solid Waste Disposal Act.
Therefore, the commission does not adopt these rules solely under the commission's
general powers.
The commission invited public comment on the draft regulatory impact analysis
determination. No comments were received.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these rules and performed a preliminary assessment
of whether the rules constitute a taking under Texas Government Code, Chapter
2007. The specific purpose of the rules is to make public meetings for solid
waste applications discretionary. The rules would substantially advance this
stated purpose by making public meetings on solid waste applications subject
to the same discretionary standards used for other waste programs.
Promulgation and enforcement of these rules would be neither a statutory
nor a constitutional taking of private real property because the rules do
not affect real property. These rules exercise commission jurisdiction over
public meetings for municipal solid waste and hazardous waste applications.
There are no burdens imposed on private real property, and the benefits
to society are more efficient use of agency staff resources in avoiding public
meetings where no one from the public attends. In addition, the rules do not
burden, restrict, or limit an owner's right to property or reduce its value
by 25% or more beyond that which would otherwise exist in the absence of the
regulation. Therefore, these rules will not constitute a taking under Texas
Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rules and found that they are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action or authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore,
the adopted rules are not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The proposed rules were published for comment in the March 24, 2006, issue
of the
Texas Register
(31 TexReg 2403). No
public hearing was held. The comment period closed April 24, 2006. A comment
was received from the appointed representative from Red River County on the
Solid Waste Advisory Committee of the Ark-Tex Council of Governments.
RESPONSE TO COMMENTS
Comment
The representative from Red River County commented that by making the public
meeting requirement discretionary, no public meetings would occur. He asked
that "shall" be preserved in the rule.
Response
The commission disagrees with this comment. The executive director’s
discretion is restricted by §55.154 that requires the executive director
or the Office of Public Assistance to hold a public meeting if the executive
director determines that there is a substantial or significant degree of public
interest in an application or if a member of the legislature who represents
the general area in which the facility is located or proposed to be located
requests that a public meeting be held. In addition, new language defines
"substantial public interest" in terms of a local governmental entity with
jurisdiction over the location at which the facility is located or proposed
to be located by formal resolution of the entity's governing body; a council
of governments with jurisdiction over the location at which the facility is
located or proposed to be located by formal request of either the council's
solid waste advisory committee, executive committee, or governing board; a
homeowners' or property owners' association formally organized or chartered
and having at least ten members located in the general area in which the facility
is located or proposed to be located; or a group of ten or more local residents,
property owners, or businesses located in the general area in which the facility
is located or proposed to be located.
No changes to the proposed rule were made in response to comments.
Subchapter I. PUBLIC NOTICE OF SOLID WASTE APPLICATIONS
30 TAC §39.501, §39.503
STATUTORY AUTHORITY
The amendments are adopted under Texas Health and Safety Code, §§361.0666,
361.0791, and 361.082, as amended by HB 1609, which makes public meetings
on solid waste applications discretionary; §361.011, which establishes
the commission's jurisdiction over all aspects of the management of municipal
solid waste with all powers necessary or convenient to carry out the responsibilities
of that jurisdiction; §361.017, which establishes the commission's jurisdiction
over all aspects of the management of industrial solid waste and hazardous
municipal waste with all powers necessary or convenient to carry out the responsibilities
of that jurisdiction; and §361.024, which provides the commission with
rulemaking authority.
The adopted amendments implement HB 1609, which amended Texas Health and
Safety Code, §§361.0666, 361.0791, and 361.082.
§39.501.Application for Municipal Solid Waste Permit.
(a)
Applicability. This section applies to applications for
municipal solid waste permits that are declared administratively complete
on or after September 1, 1999.
(b)
Preapplication local review committee process. If an applicant
for a municipal solid waste permit decides to participate in a local review
committee process under Texas Health and Safety Code, §361.063, the applicant
shall submit to the executive director a notice of intent to file an application,
setting forth the proposed location and type of facility. The executive director
shall mail notice to the county judge of the county in which the facility
is to be located. If the proposed facility is to be located in a municipality
or the extraterritorial jurisdiction of a municipality, a copy of the notice
must also be mailed to the mayor of the municipality. The executive director
shall also mail notice to the appropriate regional solid waste planning agency
or council of government. The mailing must be by certified mail.
(c)
Notice of Receipt of Application and Intent to Obtain a
Permit.
(1)
Upon the executive director's receipt of an application,
or notice of intent to file an application, the chief clerk shall mail notice
to the state senator and representative who represent the area in which the
facility is or will be located.
(2)
After the executive director determines that the application
is administratively complete:
(A)
notice must be given as required by §39.418 of this
title (relating to Notice of Receipt of Application and Intent to Obtain Permit)
and, if a newspaper is not published in the county, then the applicant shall
publish notice in a newspaper of circulation in the immediate vicinity in
which the facility is located or proposed to be located. This notice must
contain the text as required by §39.411(b)(1) - (9), (11), and (12) of
this title (relating to Text of Public Notice);
(B)
the chief clerk shall publish Notice of Receipt of Application
and Intent to Obtain Permit in the
Texas Register
; and
(C)
the executive director or chief clerk shall mail the Notice
of Receipt of Application and Intent to Obtain Permit, along with a copy of
the application or summary of its contents to the mayor and health authority
of a municipality in whose territorial limits or extraterritorial jurisdiction
the solid waste facility is located, and to the county judge and the health
authority of the county in which the facility is located.
(d)
Notice of Application and Preliminary Decision. The notice
required by §39.419 of this title (relating to Notice of Application
and Preliminary Decision) must be published once as required by §39.405(f)(2)
of this title (relating to General Notice Provisions). The notice must be
published after the chief clerk has mailed the Notice of Application and Preliminary
Decision to the applicant. The notice must contain the text as required by §39.411(c)(1)
- (6) of this title.
(e)
Notice of public meeting.
(1)
If an application for a new facility is filed before September
1, 2005:
(A)
the agency shall hold a public meeting in the county in
which the facility is proposed to be located to receive public comment concerning
the application; and
(B)
the applicant shall hold a public meeting in the county
in which the facility is proposed to be located. This meeting must be held
before the 45th day after the date the application is filed.
(2)
If an application for a new facility is filed on or after
September 1, 2005:
(A)
the agency:
(i)
may hold a public meeting under §55.154 of this title
(relating to Public Meetings) in the county in which the facility is proposed
to be located to receive public comment concerning the application; but
(ii)
shall hold a public meeting under §55.154 of this
title in the county in which the facility is proposed to be located to receive
public comment concerning the application:
(I)
on the request of a member of the legislature who represents
the general area in which the facility is proposed to be located; or
(II)
if the executive director determines that there is substantial
public interest in the proposed facility; and
(B)
the applicant may hold a public meeting in the county in
which the facility is proposed to be located.
(3)
For purposes of this subsection, "substantial public interest"
is demonstrated if a request for a public meeting is filed by:
(A)
a local governmental entity with jurisdiction over the
location at which the facility is proposed to be located by formal resolution
of the entity's governing body;
(B)
a council of governments with jurisdiction over the location
at which the facility is proposed to be located by formal request of either
the council's solid waste advisory committee, executive committee, or governing
board;
(C)
a homeowners' or property owners' association formally
organized or chartered and having at least ten members located in the general
area in which the facility is proposed to be located; or
(D)
a group of ten or more local residents, property owners,
or businesses located in the general area in which the facility is proposed
to be located.
(4)
A public meeting is not a contested case proceeding under
the Administrative Procedure Act. A public meeting held as part of a local
review committee process under subsection (b) of this section meets the requirements
of paragraph (1)(A) or (2)(A) of this subsection if public notice is provided
under this subsection.
(5)
The applicant shall publish notice of any public meeting
under this subsection, in accordance with §39.405(f)(2) of this title,
once each week during the three weeks preceding a public meeting. The published
notice must be at least 15 square inches (96.8 square centimeters) with a
shortest dimension of at least three inches (7.6 centimeters). For public
meetings under paragraph (1)(B) or (2)(B) of this subsection, the notice of
public meeting is not subject to §39.411(d) of this title, but instead
must contain at least the following information:
(A)
permit application number;
(B)
applicant's name;
(C)
proposed location of the facility;
(D)
location and availability of copies of the application;
(E)
location, date, and time of the public meeting; and
(F)
name, address, and telephone number of the contact person
for the applicant from whom interested persons may obtain further information.
(6)
For public meetings held by the agency under paragraph
(1)(A) or (2)(A) of this subsection, the chief clerk shall mail notice to
the persons listed in §39.413 of this title (relating to Mailed Notice).
(f)
Notice of hearing.
(1)
This subsection applies if an application is referred to
the State Office of Administrative Hearings for a contested case hearing under
Chapter 80 of this title (relating to Contested Case Hearings).
(2)
The applicant shall publish notice at least once under §39.405(f)(2)
of this title.
(3)
Mailed notice.
(A)
If the applicant proposes a new facility, the applicant
shall mail notice of the hearing to each residential or business address located
within 1/2 mile of the facility and to each owner of real property located
within 1/2 mile of the facility listed in the real property appraisal records
of the appraisal district in which the facility is located. The notice must
be mailed to the persons listed as owners in the real property appraisal records
on the date the application is determined to be administratively complete.
The notice must be mailed no more than 45 days and no less than 30 days before
the hearing. Within 30 days after the date of mailing, the applicant shall
file with the chief clerk an affidavit certifying compliance with its obligations
under this subsection. Filing an affidavit certifying facts that constitute
compliance with notice requirements creates a rebuttable presumption of compliance
with this subparagraph.
(B)
If the applicant proposes to amend a permit, the chief
clerk shall mail notice to the persons listed in §39.413 of this title.
(4)
Notice under paragraphs (2) and (3)(B) of this subsection
must be completed at least 30 days before the hearing.
§39.503.Application for Industrial or Hazardous Waste Facility Permit.
(a)
Applicability. This section applies to applications for
industrial or hazardous waste facility permits that are declared administratively
complete on or after September 1, 1999.
(b)
Preapplication requirements.
(1)
If an applicant for an industrial or hazardous waste facility
permit decides to participate in a local review committee process under Texas
Health and Safety Code, §361.063, the applicant shall submit a notice
of intent to file an application to the executive director, setting forth
the proposed location and type of facility. The applicant shall mail notice
to the county judge of the county in which the facility is to be located.
If the proposed facility is to be located in a municipality or the extraterritorial
jurisdiction of a municipality, a copy of the notice must also be mailed to
the mayor of the municipality. Mailed notice must be by certified mail. When
the applicant submits the notice of intent to the executive director, the
applicant shall publish notice of the submission in a paper of general circulation
in the county in which the facility is to be located.
(2)
The requirements of this paragraph are set forth in 40
Code of Federal Regulations (CFR) §124.31(b) - (d), which is adopted
by reference as amended and adopted in the CFR through December 11, 1995,
(60 FR 63417) and apply to all hazardous waste part B applications for initial
permits for hazardous waste management units, hazardous waste part B permit
applications for major amendments, and hazardous waste part B applications
for renewal of permits, where the renewal application is proposing a significant
change in facility operations. For the purposes of this paragraph, a "significant
change" is any change that would qualify as a Class 3 permit modification
under §305.69 of this title (relating to Solid Waste Permit Modification
at the Request of the Permittee). The requirements of this paragraph do not
apply to an application for minor amendment under §305.62 of this title
(relating to Amendment), correction under §50.45 of this title (relating
to Corrections to Permits), or modification under §305.69 of this title,
or to an application that is submitted for the sole purpose of conducting
post-closure activities or post-closure activities and corrective action at
a facility, unless the application is also for an initial permit for hazardous
waste management unit(s), or the application is also for renewal of the permit,
where the renewal application is proposing a significant change in facility
operations.
(c)
Notice of Receipt of Application and Intent to Obtain Permit.
(1)
Upon the executive director’s receipt of an application,
or notice of intent to file an application, the chief clerk shall mail notice
to the state senator and representative who represent the area in which the
facility is or will be located and to the persons listed in §39.413 of
this title (relating to Mailed Notice). For all hazardous waste part B applications
for initial permits for hazardous waste management units, hazardous waste
part B permit applications for major amendments, and hazardous waste part
B applications for renewal of permits, the chief clerk shall provide notice
to meet the requirements of this subsection and 40 CFR §124.32(b), which
is adopted by reference as amended and adopted in the CFR through December
11, 1995, (60 FR 63417) and the executive director shall meet the requirements
of 40 CFR §124.32(c), which is adopted by reference as amended and adopted
in the CFR through December 11, 1995, (60 FR 63417). The requirements of this
paragraph relating to 40 CFR §124.32(b) and (c) do not apply to an application
for minor amendment under §305.62 of this title, correction under §50.45
of this title, or modification under §305.69 of this title, or to an
application that is submitted for the sole purpose of conducting post-closure
activities or post-closure activities and corrective action at a facility,
unless the application is also for an initial permit for hazardous waste management
unit(s), or the application is also for renewal of the permit.
(2)
After the executive director determines that the application
is administratively complete:
(A)
notice must be given as required by §39.418 of this
title (relating to Receipt of Application and Intent to Obtain Permit). Notice
under §39.418 of this title will satisfy the notice of receipt of application
required by §281.17(d) of this title (relating to Notice of Receipt of
Application and Declaration of Administrative Completeness); and
(B)
the executive director or chief clerk shall mail notice
of this determination along with a copy of the application or summary of its
contents to the mayor and health authority of a municipality in whose territorial
limits or extraterritorial jurisdiction the solid waste facility is located,
and to the county judge and the health authority of the county in which the
facility is located.
(d)
Notice of Application and Preliminary Decision. The notice
required by §39.419 of this title (relating to Notice of Application
and Preliminary Decision) must be published once as required by §39.405(f)(2)
of this title (relating to General Notice Provisions). In addition to the
requirements of §39.405(h) and §39.419 of this title, the following
requirements apply.
(1)
The applicant shall publish notice at least once in a newspaper
of general circulation in each county that is adjacent or contiguous to each
county in which the facility is located. One notice may satisfy the requirements
of §39.405(f)(2) of this title and of this subsection, if the newspaper
meets the requirements of both rules.
(2)
If the application concerns a hazardous waste facility,
the applicant shall broadcast notice of the application on one or more local
radio stations that broadcast to an area that includes all of the county in
which the facility is located. The executive director may require that the
broadcasts be made to an area that also includes contiguous counties.
(3)
The notice must comply with §39.411 of this title
(relating to Text of Public Notice). The deadline for public comments on industrial
solid waste applications will be not less than 30 days after newspaper publication,
and for hazardous waste applications, not less than 45 days after newspaper
publication.
(e)
Notice of public meeting.
(1)
If an application for a new hazardous waste facility is
filed:
(A)
before September 1, 2005, the agency shall hold a public
meeting in the county in which the facility is proposed to be located to receive
public comment concerning the application; or
(B)
on or after September 1, 2005, the agency:
(i)
may hold a public meeting under §55.154 of this title
(relating to Public Meetings) in the county in which the facility is proposed
to be located to receive public comment concerning the application; but
(ii)
shall hold a public meeting under §55.154 of this
title in the county in which the facility is proposed to be located to receive
public comment concerning this application:
(I)
on the request of a member of the legislature who represents
the general area in which the facility is proposed to be located; or
(II)
if the executive director determines that there is substantial
public interest in the proposed facility.
(2)
If an application for a major amendment to or a Class 3
modification of an existing hazardous waste facility permit is filed:
(A)
before September 1, 2005, the agency shall hold a public
meeting in the county in which the facility is located to receive public comment
concerning the application if a person affected files a request for a public
meeting with the chief clerk concerning the application before the deadline
to file public comment or hearing requests; or
(B)
on or after September 1, 2005, the agency:
(i)
may hold a public meeting under §55.154 of this title
in the county in which the facility is located to receive public comment concerning
the application; but
(ii)
shall hold a public meeting under §55.154 of this
title in the county in which the facility is located to receive public comment
concerning the application:
(I)
on the request of a member of the legislature who represents
the general area in which the facility is located; or
(II)
if the executive director determines that there is substantial
public interest in the facility.
(3)
For purposes of this subsection, "substantial public interest"
is demonstrated if a request for a public meeting is filed by:
(A)
a local governmental entity with jurisdiction over the
location at which the facility is located or proposed to be located by formal
resolution of the entity's governing body;
(B)
a council of governments with jurisdiction over the location
at which the facility is located or proposed to be located by formal request
of either the council's solid waste advisory committee, executive committee,
or governing board;
(C)
a homeowners( or property owners( association formally
organized or chartered and having at least ten members located in the general
area in which the facility is located or proposed to be located; or
(D)
a group of ten or more local residents, property owners,
or businesses located in the general area in which the facility is located
or proposed to be located.
(4)
If an application for a new industrial or hazardous waste
facility that would accept municipal solid waste is filed:
(A)
before September 1, 2005, the applicant shall hold a public
meeting in the county in which the facility is proposed to be located. This
meeting must be held before the 45th day after the date the application is
filed; or
(B)
on or after September 1, 2005, the applicant may hold a
public meeting in the county in which the facility is proposed to be located.
(5)
A public meeting is not a contested case proceeding under
the Administrative Procedure Act. A public meeting held as part of a local
review committee process under subsection (b) of this section meets the requirements
of paragraph (1) or (2) of this subsection if public notice is provided under
this subsection.
(6)
The applicant shall publish notice of any public meeting
under this subsection, in accordance with §39.405(f)(2) of this title,
once each week during the three weeks preceding a public meeting. The published
notice must be at least 15 square inches (96.8 square centimeters) with a
shortest dimension of at least three inches (7.6 centimeters). For public
meetings under paragraph (3) of this subsection, the notice of public meeting
is not subject to §39.411(d) of this title, but instead must contain
at least the following information:
(A)
permit application number;
(B)
applicant’s name;
(C)
proposed location of the facility;
(D)
location and availability of copies of the application;
(E)
location, date, and time of the public meeting; and
(F)
name, address, and telephone number of the contact person
for the applicant from whom interested persons may obtain further information.
(7)
For public meetings held by the agency under paragraph
(1) or (2) of this subsection, the chief clerk shall mail notice to the persons
listed in §39.413 of this title.
(f)
Notice of hearing.
(1)
Applicability. This subsection applies if an application
is referred to the State Office of Administrative Hearings for a contested
case hearing under Chapter 80 of this title (concerning Contested Case Hearings).
(2)
Newspaper notice.
(A)
The applicant shall publish notice at least once in a newspaper
of general circulation in the county in which the facility is located and
in each county and area that is adjacent or contiguous to each county in which
the proposed facility is located.
(B)
If the application concerns a hazardous waste facility,
the hearing must include one session held in the county in which the facility
is located. The applicant shall publish notice of the hearing once each week
during the three weeks preceding the hearing under §39.405(f)(2) of this
title. The published notice must be at least 15 square inches (96.8 square
centimeters) with a shortest dimension of at least three inches (7.6 centimeters)
or have a total size of at least nine column inches (18 square inches). The
text of the notice must include the statement that at least one session of
the hearing will be held in the county in which the facility is located.
(3)
Mailed notice.
(A)
If the applicant proposes a new solid waste management
facility, the applicant shall mail notice to each residential or business
address located within 1/2 mile of the facility and to each owner of real
property located within 1/2 mile of the facility listed in the real property
appraisal records of the appraisal district in which the facility is located.
The notice must be mailed to the persons listed as owners in the real property
appraisal records on the date the application is determined to be administratively
complete. The chief clerk shall mail notice to the persons listed in §39.413
of this title, except that the chief clerk shall not mail notice to the persons
listed in paragraph (1) of that section. The notice must be mailed no more
than 45 days and no less than 30 days before the hearing. Within 30 days after
the date of mailing, the applicant shall file with the chief clerk an affidavit
certifying compliance with its obligations under this subsection. Filing an
affidavit certifying facts that constitute compliance with notice requirements
creates a rebuttable presumption of compliance with this subparagraph.
(B)
If the applicant proposes to amend or renew an existing
permit, the chief clerk shall mail notice to the persons listed in §39.413
of this title.
(4)
Radio broadcast. If the application concerns a hazardous
waste facility, the applicant shall broadcast notice of the hearing under
subsection (d)(2) of this section.
(5)
Deadline. Notice under paragraphs (2)(A), (3), and (4)
of this subsection must be completed at least 30 days before the hearing.
(g)
Injection wells. This section does not apply to applications
for an injection well permit.
(h)
Information repository. The requirements of 40 CFR §124.33(b)
- (f), which is adopted by reference as amended and adopted in the CFR through
December 11, 1995, (60 FR 63417) apply to all applications for hazardous waste
permits.
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 29, 2006.
TRD-200603520
Robert Martinez
Acting Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2006
Proposal publication date: March 24, 2006
For further information, please call: (512) 239-5017
30 TAC §39.651
STATUTORY AUTHORITY
The amendment is adopted under Texas Health and Safety Code, §§361.0666,
361.0791, and 361.082, as amended by HB 1609, which makes public meetings
on solid waste applications discretionary; §361.011, which establishes
the commission's jurisdiction over all aspects of the management of municipal
solid waste with all powers necessary or convenient to carry out the responsibilities
of that jurisdiction; §361.017, which establishes the commission's jurisdiction
over all aspects of the management of industrial solid waste and hazardous
municipal waste with all powers necessary or convenient to carry out the responsibilities
of that jurisdiction; and §361.024, which provides the commission with
rulemaking authority.
The adopted amendment implements HB 1609, which amended Texas Health and
Safety Code, §§361.0666, 361.0791, and 361.082.
§39.651.Application for Injection Well Permit.
(a)
Applicability. This subchapter applies to applications
for injection well permits that are declared administratively complete on
or after September 1, 1999.
(b)
Preapplication local review committee process. If an applicant
decides to participate in a local review committee process under Texas Health
and Safety Code, §361.063, the applicant shall submit a notice of intent
to file an application to the executive director, setting forth the proposed
location and type of facility. The applicant shall mail notice to the county
judge of the county in which the facility is to be located. In addition, if
the proposed facility is to be located in a municipality or the extraterritorial
jurisdiction of a municipality, a copy of the notice must be mailed to the
mayor of the municipality.
(c)
Notice of Receipt of Application and Intent to Obtain Permit.
(1)
On the executive director’s receipt of an application,
or notice of intent to file an application, the chief clerk shall mail notice
to the state senator and representative who represent the area in which the
facility is or will be located.
(2)
After the executive director determines that the application
is administratively complete, notice must be given as required by §39.418
of this title (relating to Notice of Receipt of Application and Intent to
Obtain a Permit). This notice must contain the text as required by §39.411(b)(1)
- (9) and (12) of this title (relating to Text of Public Notice). Notice under §39.418
of this title will satisfy the notice of receipt of application required by §281.17(d)
of this title (relating to Notice of Receipt of Application and Declaration
of Administrative Completeness).
(3)
After the executive director determines that the application
is administratively complete, in addition to the requirements of §39.418
of this title, notice must be given to the School Land Board, if the application
will affect lands dedicated to the permanent school fund. The notice must
be in the form required by Texas Water Code, §5.115(c).
(4)
For notice of receipt of application and intent to obtain
a permit concerning Class I underground injection wells, the chief clerk shall
also mail notice to:
(A)
persons who own the property on which the existing or proposed
injection well facility is or will be located, if different from the applicant;
(B)
landowners adjacent to the property on which the existing
or proposed injection well facility is or will be located;
(C)
persons who own mineral rights underlying the existing
or proposed injection well facility; and
(D)
persons who own mineral rights underlying the tracts of
land adjacent to the property on which the existing or proposed injection
well facility is or will be located.
(5)
The chief clerk or executive director shall also mail a
copy of the application or a summary of its contents to the mayor and health
authority of a municipality in whose territorial limits or extraterritorial
jurisdiction the solid waste facility is located and to the county judge and
the health authority of the county in which the facility is located.
(6)
For Class I underground injection wells, the published
notice must be at least 15 square inches (96.8 square centimeters) with a
shortest dimension of at least three inches (7.6 centimeters) and the notice
must appear in the section of the newspaper containing state or local news
items.
(d)
Notice of Application and Preliminary Decision. The notice
required by §39.419 of this title (relating to Notice of Application
and Preliminary Decision) must be published once under §39.405(f)(2)
of this title (relating to General Notice Provisions) after the chief clerk
has mailed the preliminary decision and the Notice of Application and Preliminary
Decision to the applicant. This notice must contain the text as required by §39.411(c)(1)
- (6) of this title. In addition to the requirements of §39.405(h) and §39.419
of this title, the following requirements apply.
(1)
The applicant shall publish notice at least once in a newspaper
of general circulation in each county that is adjacent or contiguous to each
county in which the proposed facility is located. One notice may satisfy the
requirements of §39.405(f)(2) of this title and of this subsection, if
the newspaper meets the requirements of both rules.
(2)
For Class I underground injection wells, the published
notice must be at least 15 square inches (96.8 square centimeters) with a
shortest dimension of at least three inches (7.6 centimeters) and the notice
must appear in the section of the newspaper containing state or local news
items.
(3)
The chief clerk shall mail notice to the persons listed
in §39.413 of this title (relating to Mailed Notice) and to local governments
located in the county of the facility. "Local governments" have the meaning
as defined in Texas Water Code, Chapter 26.
(4)
For Notice of Application and Preliminary Decision concerning
Class I underground injection wells, the chief clerk shall also mail notice
to:
(A)
persons who own the property on which the existing or proposed
injection well facility is or will be located, if different from the applicant;
(B)
landowners adjacent to the property on which the existing
or proposed injection well facility is or will be located;
(C)
persons who own mineral rights underlying the existing
or proposed injection well facility; and
(D)
persons who own mineral rights underlying the tracts of
land adjacent to the property on which the existing or proposed injection
well facility is or will be located.
(5)
If the application concerns a hazardous waste facility,
the applicant shall broadcast notice under §39.503(d)(2) of this title
(relating to Application for Industrial or Hazardous Waste Facility Permit).
(6)
The deadline for public comments on industrial solid waste
applications will be not less than 30 days after newspaper publication, and
for hazardous waste applications, not less than 45 days after newspaper publication.
(e)
Notice of public meeting.
(1)
If an application for a new hazardous waste facility is
filed:
(A)
before September 1, 2005, the agency shall hold a public
meeting in the county in which the facility is proposed to be located to receive
public comment concerning the application; or
(B)
on or after September 1, 2005, the agency:
(i)
may hold a public meeting under §55.154 of this title
(relating to Public Meetings) in the county in which the facility is proposed
to be located to receive public comment concerning the application; but
(ii)
shall hold a public meeting under §55.154 of this
title in the county in which the facility is proposed to be located to receive
public comment concerning the application:
(I)
on the request of a member of the legislature who represents
the general area in which the facility is proposed to be located; or
(II)
if the executive director determines that there is substantial
public interest in the proposed facility.
(2)
If an application for a major amendment to or a Class 3
modification of an existing hazardous waste facility permit is filed:
(A)
before September 1, 2005, the agency shall hold a public
meeting in the county in which the facility is located to receive public comment
on the application if a person affected files with the chief clerk a request
for a public meeting concerning the application before the deadline to file
public comment or to file requests for reconsideration or hearing; or
(B)
on or after September 1, 2005, the agency:
(i)
may hold a public meeting under §55.154 of this title
in the county in which the facility is located to receive public comment on
the application; but
(ii)
shall hold a public meeting under §55.154 of this
title in the county in which the facility is located to receive public comment
concerning the application:
(I)
on the request of a member of the legislature who represents
the general area in which the facility is located; or
(II)
if the executive director determines that there is substantial
public interest in the facility.
(3)
For purposes of this subsection, "substantial public interest"
is demonstrated if a request for a public meeting is filed by:
(A)
a local governmental entity with jurisdiction over the
location in which the facility is located or proposed to be located by formal
resolution of the entity's governing body;
(B)
a council of governments with jurisdiction over the location
in which the facility is located or proposed to be located by formal request
of either the council’s solid waste advisory committee, executive committee,
or governing board;
(C)
a homeowners’ or property owners’ association
formally organized or chartered and having at least ten members located in
the general area in which the facility is located or proposed to be located;
or
(D)
a group of ten or more local residents, property owners,
or businesses located in the general area in which the facility is located
or proposed to be located.
(4)
A public meeting is not a contested case proceeding under
the Administrative Procedure Act. A public meeting held as part of a local
review committee process under subsection (a) of this section meets the requirements
of this subsection if public notice is provided in accordance with this subsection.
(5)
The applicant shall publish notice of the public meeting
once each week during the three weeks preceding a public meeting under §39.405(f)(2)
of this title. The published notice must be at least 15 square inches (96.8
square centimeters) with a shortest dimension of at least three inches (7.6
centimeters).
(6)
The chief clerk shall mail notice to the persons listed
in §39.413 of this title.
(f)
Notice of contested case hearing.
(1)
Applicability. This subsection applies if an application
is referred to the State Office of Administrative Hearings for a contested
case hearing under Chapter 80 of this title (relating to Contested Case Hearings).
(2)
Newspaper notice.
(A)
If the application concerns a facility other than a hazardous
waste facility, the applicant shall publish notice at least once in a newspaper
of general circulation in the county in which the facility is located and
in each county and area that is adjacent or contiguous to each county in which
the proposed facility is located.
(B)
For Class I underground injection wells, the published
notice must be at least 15 square inches (96.8 square centimeters) with a
shortest dimension of at least three inches (7.6 centimeters) and the notice
must appear in the section of the newspaper containing state or local news
items.
(C)
If the application concerns a hazardous waste facility,
the hearing must include one session held in the county in which the facility
is located. The applicant shall publish notice of the hearing once each week
during the three weeks preceding the hearing under §39.405(f)(2) of this
title. The published notice must be at least 15 square inches (96.8 square
centimeters) with a shortest dimension of at least three inches (7.6 centimeters).
The notice must appear in the section of the newspaper containing state or
local news items. The text of the notice must include the statement that at
least one session of the hearing will be held in the county in which the facility
is located.
(3)
Mailed notice.
(A)
For all applications concerning underground injection wells,
the chief clerk shall mail notice to persons listed in §39.413 of this
title.
(B)
For notice of hearings concerning Class I underground injection
wells, the chief clerk shall also mail notice to:
(i)
persons who own the property on which the existing or proposed
injection well facility is or will be located, if different from the applicant;
(ii)
landowners adjacent to the property on which the existing
or proposed injection well facility is or will be located;
(iii)
persons who own mineral rights underlying the existing
or proposed injection well facility; and
(iv)
persons who own mineral rights underlying the tracts of
land adjacent to the property on which the existing or proposed injection
well facility is or will be located.
(C)
If the applicant proposes a new solid waste management
facility, the applicant shall mail notice to each residential or business
address, not listed under subparagraph (A) of this paragraph, located within
1/2 mile of the facility and to each owner of real property located within
1/2 mile of the facility listed in the real property appraisal records of
the appraisal district in which the facility is located. The notice must be
mailed to the persons listed as owners in the real property appraisal records
on the date the application is determined to be administratively complete.
The notice must be mailed no more than 45 days and no less than 30 days before
the contested case hearing. Within 30 days after the date of mailing, the
applicant shall file with the chief clerk an affidavit certifying compliance
with its obligations under this subsection. Filing an affidavit certifying
facts that constitute compliance with notice requirements creates a rebuttable
presumption of compliance with this subparagraph.
(4)
Radio broadcast. If the application concerns a hazardous
waste facility, the applicant shall broadcast notice under §39.503(d)(2)
of this title.
(5)
Deadline. Notice under paragraphs (2)(A), (3), and (4)
of this subsection must be completed at least 30 days before the contested
case hearing.
(g)
Approval. All published notices required by this section
must be in a form approved by the executive director prior to publication.
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 29, 2006.
TRD-200603521
Robert Martinez
Acting Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2006
Proposal publication date: March 24, 2006
For further information, please call: (512) 239-5017
Subchapter B. OUTDOOR BURNING
Subchapter C. ENVIRONMENTAL TESTING LABORATORY CERTIFICATION
Chapter 35.
EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS
Chapter 39.
PUBLIC NOTICE
Subchapter L. PUBLIC NOTICE OF INJECTION WELL AND OTHER SPECIFIC APPLICATIONS
Chapter 111.
CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER