30 TAC §116.603
The Texas Commission on Environmental Quality (agency or
commission) proposes an amendment to §116.603.
The amended section is proposed to be submitted to the United States Environmental
Protection Agency as a revision to the state implementation plan.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The commission is proposing to revise §116.603 by requiring newspaper
notice of proposed standard permits with statewide applicability in Austin,
Dallas, Houston, and any other regional newspapers designated by the executive
director on a case-by-case basis. Also, the executive director would use press
releases and appropriate electronic means to inform state and local officials.
Electronic means would include, but is not limited to, the use of e-mail addresses,
Web sites, or electronic bulletin boards and publications. This change would
increase notification with state and local officials and provide an opportunity
for more statewide newspaper coverage through commission press releases.
Texas Health and Safety Code, §382.05195(b), requires the commission
to publish notice of a standard permit in one or more statewide or regional
newspapers designated by the executive director by rule that will, in the
executive director's judgement, provide reasonable notice throughout the state.
The regulation in §116.603 requires publication in 11 newspapers. Six
standard permits have been issued under the requirements of §116.603
and over 80% of the comments originated from the Austin, Dallas, and Houston
areas. The amendment would also save up to $4,500 per standard permit notice
at a time that an increase in the number of new standard permits may be expected.
Publishing notice in Austin, Dallas, Houston, and any other regional newspapers
designated by the executive director on a case-by-case basis, along with the
required
Texas Register
publication and posting
on the agency Web site will provide reasonable notice of proposed standard
permits and would give the commission discretion to target the specific areas
affected.
The amendment would make the standard permit public notice more consistent
with the agency's existing non-individual permit requirements. This includes
the Water Quality General Permits, which require publication in at least one
newspaper of statewide or regional circulation. Also, air standard permit
amendments and revocations, permits by rule, and Title V general operating
permits with statewide applicability are required to be published in newspapers
in Austin, Dallas, and Houston.
SECTION DISCUSSION
The commission proposes an amendment to §116.603(a). The amendment
would require newspaper notice of proposed standard permits with statewide
applicability in Austin, Dallas, Houston, and any other regional newspapers
designated by the executive director on a case-by-case basis. This would allow
the commission to focus its efforts in areas most affected by standard permits.
The commission will continue to post each draft standard permit on its Web
site and conduct stakeholder meetings, as appropriate. The executive director
would issue a press release and will publish notice in the
Texas Register
. The executive director may also use appropriate electronic
means to notify selected state and local officials in the affected area. The
rule would no longer require newspaper notice for each standard permit proposal
in Amarillo, Corpus Christi, El Paso, the Lower Rio Grande Valley, Lubbock,
the Permian Basin, San Antonio, or Tyler.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, has determined
that for the first five-year period the proposed amendment is in effect, no
significant fiscal implications are anticipated for the agency or other units
of state or local government.
The proposed rule would provide an opportunity for more statewide newspaper
coverage through commission press releases, posting of notice on the agency
Web site, and increased notification of state and local officials through
the use of electronic means. The rulemaking would reduce the number of newspapers
the agency would be required to publish notices of proposed standard permits
from 11 to three. The proposed rulemaking would require a public notice to
be published in the Austin, Dallas, and Houston newspapers as well as any
regional newspapers designated by the executive director on a case-by-case
basis. Publication of notice in the
Texas Register
would continue under the proposed rule. These proposed changes are
not anticipated to have significant fiscal implications for the agency. The
rulemaking would result in a maximum cost savings to the agency of $4,500
for each standard permit proposal if the public notice was published in only
the Austin, Dallas, and Houston newspapers. The actual cost savings realized
would be dependent upon the actual number of published public notices. The
agency anticipates issuing between four and seven standard permits over the
next two years. The estimated cost savings to the agency would be between
$18,000 and $31,500.
The proposed rule would result in no fiscal implications for other units
of state or local government. The rulemaking is specific to the notification
requirements imposed upon the commission. The proposed rule would provide
the opportunity of select state and local officials to be notified by electronic
means of notices regarding standard permits.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed amendment is in effect, the public benefit anticipated from the changes
seen in the proposed rule will be a more efficient method of notifying the
public as well as state and local officials regarding standard permits proposed
to be issued by the agency.
No fiscal implications are anticipated for businesses and individuals as
a result of the proposed rulemaking. The rulemaking would reduce the number
of newspapers the agency would be required to publish notices of proposed
standard permits from 11 to three. The proposed rulemaking would require a
public notice to be published in the Austin, Dallas, and Houston newspapers
as well as any regional newspapers designated by the executive director on
a case-by-case basis. Publication of notice in the
Texas Register
would continue under the proposed rule.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. Small and micro-businesses would experience
the same improved notification benefits as larger businesses but would realize
no fiscal benefit as a result of the proposed amendment.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that this proposal is not subject to §2001.0025 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 environmental
exposure and that may adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. The specific intent is not to protect the
environment. This rulemaking changes notice requirements and does not affect
any environmental standards.
The proposed amendment to §116.603(a) modifies the existing rule in
accordance with Texas Health and Safety Code, §382.05195(b), which requires
the commission to publish notice of a proposed standard permit in the Texas Register
and in one or more statewide or regional
newspapers designated by the executive director by rule that will, in the
executive director's judgement, provide reasonable notice throughout the state.
This proposed amendment provides more efficient public notice of proposed
standard permits. The proposed rule will not adversely affect in a material
way the economy, a sector of the economy, productivity, competition, jobs,
the environment, or the public health and safety of the state or a sector
of the state.
In addition, a draft regulatory impact analysis is not required because
the proposed rule does not meet any of the four applicability criteria for
requiring a regulatory analysis of a "major environmental rule" as defined
in the Texas Government Code. Texas Government Code, §2001.0225 applies
only to a major environmental rule, the result of which is to: 1) exceed a
standard set by federal law, unless the rule is specifically required by state
law; 2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
This rulemaking does not exceed a standard set by federal law, and the proposed
requirements are consistent with applicable federal standards. In addition,
this proposal does not exceed an express requirement of state law and is not
adopted solely under the general powers of the agency, but is specifically
authorized by the provisions cited in the STATUTORY AUTHORITY section of this
preamble. Finally, this rulemaking does not exceed a requirement of a delegation
agreement or contract to implement a state and federal program.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an analysis
of whether the adopted rules are subject to Texas Government Code, Chapter
2007. The primary purpose of the rulemaking is to amend §116.603(a) in
accordance with Texas Health and Safety Code, §382.05195(b), which requires
the commission to publish notice of a proposed standard permit in the Texas Register
and in one or more statewide or regional
newspapers designated by the executive director by rule that will, in the
executive director's judgement, provide reasonable notice throughout the state.
This amendment does not affect private property in a manner that restricts
or limits an owner's right to the property that would otherwise exist in the
absence of the governmental action. Therefore, promulgation and enforcement
of this proposed rule is neither a statutory nor a constitutional taking because
it does not affect private real property. Therefore, this rulemaking does
not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.), and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the Texas Coastal Management Program. As required by §281.45(a)(3)
and 31 TAC §505.11(b)(2), Actions and Rules Subject to the Coastal Management
Program, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission reviewed
this action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council and determined that the
action is consistent with the applicable CMP goals and policies. The CMP goal
applicable to this rulemaking action is the goal to protect, preserve, and
enhance the diversity, quality, quantity, functions, and values of coastal
natural resource areas (31 TAC §501.12(l)). No new sources of air contaminants
will be authorized and the proposed revisions will maintain the same level
of emissions control as the existing rules. The CMP policy applicable to this
rulemaking action is the policy that commission rules comply with federal
regulations in 40 Code of Federal Regulations, to protect and enhance air
quality in the coastal areas (31 TAC §501.14(q)). This rulemaking action
complies with 40 Code of Federal Regulations Part 51, Requirements for Preparation,
Adoption, and Submittal of Implementation Plans. Therefore, in accordance
with 31 TAC §505.22(e), the commission affirms that this proposed rulemaking
action is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The proposed revisions will not affect sites subject to the Federal Operating
Permits Program.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
June 12, 2006, at 10:00 a.m. in Building B, Room 201A, at the commission's
central office located at 12100 Park 35 Circle. The hearing is structured
for the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not be permitted during the hearing; however, commission staff
members will be available to discuss the proposal 30 minutes before the hearing.
Persons with special needs who have special communication or other accommodation
needs who are planning to attend the hearing should contact Patricia Durón,
Office of Legal Services, at (512) 239-6087. Requests should be made as far
in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, Texas Register Team,
Office of Legal Services, Texas Commission on Environmental Quality, MC 205,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Project Number 2005- 038-116-PR. Comments must
be received by 5:00 p.m., June 14, 2006. Copies of the proposed rule can be
obtained from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further information, please contact Phil Harwell, Air Permits
Division, at (512) 239-1517.
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.102, which
provides the commission with the general powers to carry out its duties under
the TWC; §5.103, which authorizes the commission to adopt any rules necessary
to carry out the powers and duties under the provisions of the TWC and other
laws of this state; and §5.105, which authorizes the commission by rule
to establish and approve all general policy of the commission. The amendment
is also proposed under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the TCAA; §382.011, which authorizes the commission to
establish the level of quality to be maintained in the state's air and to
control the quality of the state's air; §382.012, which authorizes the
commission to prepare and develop a general, comprehensive plan for the control
of the state's air; and §382.05195, which authorizes the commission to
issue a standard permit.
The proposed amendment implements Texas Health and Safety Code, §§382.017,
382.011, 382.012, and 382.05195.
§116.603.Public Participation in Issuance of Standard Permits.
(a)
The commission will publish notice of a proposed standard
permit in a daily or weekly newspaper of general circulation in the area affected
by the activity that is the subject of the proposed standard permit. If the
proposed standard permit will have statewide applicability, notice will be
published in the daily newspaper of largest general circulation within each
of the following metropolitan areas: [
Amarillo,
] Austin, [
Corpus Christi,
] Dallas, [
El Paso,
]
and
Houston
and any other regional newspapers designated by the executive director on
a case-by-case basis
[
, the Lower Rio Grande Valley, Lubbock, the
Permian Basin, San Antonio, and Tyler
]. In
all
[
both
] cases, the commission will publish notice in the
Texas Register
and issue a press release. Electronic means may
be used to transmit notice to selected state and local officials.
(b) - (f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 27, 2006.
TRD-200602352
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 239-6087