Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 116.
CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION
Subchapter F. STANDARD PERMITS
30 TAC §116.615
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts an amendment to §116.615. Section 116.615 is adopted
without change
to the proposed text as published in the September 8,
2006, issue of the
Texas Register
(31 TexReg
7245) and will not be republished.
The commission also withdraws the proposed amendments to §§116.110,
116.116, 116.710, 116.721, 116.787, 116.805, 116.820, 116.930, 116.1020, 116.1021,
and 116.1424 as published in the September 8, 2006, issue of the
Texas Register
.
Section 116.615 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 RULE
Senate Bill (SB) 1740, passed by the 79th Legislature, 2005, created new
Texas Health and Safety Code (THSC), §382.004, Construction While Permit
Application Pending. This section allows an applicant seeking a permit for
a modification (or lesser change) to an existing facility to begin construction
related to the application after the application is submitted, and before
the commission has issued the permit, to the extent permissible under federal
law. The decision to begin construction is at the applicant's own risk. The
provisions of THSC, §382.004 also prohibit the commission from considering
construction as a factor in determining whether to grant the permit sought
in the application. Because existing commission rules require persons to obtain
the permit prior to commencing construction, the commission proposed revisions
to Chapter 116, Control of Air Pollution by Permits for New Construction or
Modification, to maintain consistency with the revised statute. The proposed
revisions were published in the September 8, 2006, issue of the
Texas Register
. However, in response to adverse comments from the EPA,
the commission is withdrawing the proposed revisions associated with pre-permit
construction. The proposed changes to §§116.110, 116.116, 116.710,
116.721, 116.787, 116.805, 116.820, 116.930, 116.1020, 116.1021, and 116.1424
will not be adopted under this rulemaking action. The commission is continuing
discussions with the EPA to identify approvable methods to provide greater
flexibility for construction where appropriate.
Senate Bill 1740 also amended THSC, §382.05195, Standard Permit, to
modify how distance limits, setbacks, and buffers are evaluated at facilities
authorized by an air quality standard permit. Under new THSC, §382.05195(j),
if a standard permit requires a distance limit, setback, or buffer from other
properties or structures, the determination of whether the distance, setback,
or buffer is satisfied shall be made on the basis of conditions existing at
the earlier of: 1) the date new construction, expansion, or modification of
a facility begins; or 2) the date any application or notice of intent is first
filed with the commission to obtain approval for the construction or operation
of the facility. The commission proposed revisions to Chapter 116 to maintain
consistency with the new statutory requirements concerning distance limits,
setbacks, and buffers for standard permits. The adopted rule incorporates
the new distance limit, setback, and buffer zone provisions of THSC, §382.05195(j)
into the general rules for standard permits.
The commission is also adopting concurrent rulemaking to 30 TAC Chapter
321, Control of Certain Activities by Rule, in this issue of the
Texas Register
.
SECTION DISCUSSION
§116.615. General Conditions.
The commission adopts new §116.615(11) to implement THSC, §382.05195(j).
Under the adopted rule, if a standard permit requires a distance limit, setback,
or buffer from other properties or structures, the determination of whether
the distance, setback, or buffer is satisfied shall be made on the basis of
conditions existing at the earlier of: 1) the date new construction, expansion,
or modification of a facility begins; or 2) the date any application or notice
of intent is first filed with the commission to obtain approval for the construction
or operation of the facility. The rule overrides and supercedes any conflicting
requirement concerning distance limits, setbacks, or buffers in any standard
permit. As a clarification for situations where an existing standard permit
facility is relocated, or an existing standard permit facility is expanded
or modified, the determination as to whether the distance limit, setback,
or buffer is satisfied shall be made based on the earlier of the date the
application or notice of intent related to the proposed relocation, expansion,
or modification is filed, or the date the expansion or modification of the
facility begins (not the date of the original registration or notification
that authorized initial construction of the facility).
The adopted rule also includes minor administrative changes to address
outdated references, typographical errors, and conformity to Texas Register
requirements and other agency rules and guidelines.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking considering the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking action 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, 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 action implements Section 2 of SB 1740, passed
by the 79th Legislature, that amended THSC, §382.05195. The amendment
to §116.615 modifies when compliance with distance limits, setbacks,
and buffers is to be determined at facilities authorized by an air quality
standard permit. The amendment does not specifically protect human health
or the environment.
The amendment to Chapter 116 is not subject to the regulatory analysis
provisions of Texas Government Code, §2001.0225(b), because the rule
does not meet any of the four applicability requirements. Texas Government
Code, §2001.0225, only applies to a major environmental rule, the result
of which is to: 1) exceed a standard set by federal law; 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.
Specifically, this amendment implements Section 2 of SB 1740, passed by
the 79th Legislature, that amended THSC, §382.05195, and therefore specifically
meets an express requirement of state law. SB 1740, as implemented in this
rulemaking, only modifies when compliance with distance limits, buffers, and
setbacks for air quality standard permits issued by the commission is to be
determined and therefore does not exceed a standard set by federal law. There
is no contract or delegation agreement that covers the topic that is the subject
of this action. Therefore, the rulemaking does not exceed a standard set by
federal law, exceed an express requirement of state law, or exceed a requirement
of a delegation agreement. Finally, this rulemaking action was not developed
solely under the general powers of the agency, but is authorized by specific
sections of THSC, Chapter 382 (also known as the Texas Clean Air Act (TCAA)),
and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY
section of this preamble, including THSC, §§382.002, 382.017, and
382.05195. Therefore, this rulemaking action is not subject to the regulatory
analysis provisions of Texas Government Code, §2001.0225(b), because
the rule does not meet any of the four applicability requirements.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this amendment and performed an assessment of
whether Texas Government Code, Chapter 2007, is applicable. The specific purpose
of this rulemaking is to implement Section 2 of SB 1740, passed by the 79th
Legislature, that amended THSC, 382.05195.
The amendment would substantially advance this stated purpose by changing
a section of Chapter 116 to modify when compliance with distance limits, setbacks,
and buffers is determined at facilities authorized by an air quality standard
permit.
Promulgation and enforcement of these rules would be neither a statutory
nor a constitutional taking of private real property. Specifically, the regulations
do not affect a landowner's rights in private real property because this rulemaking
does not burden (constitutionally); nor restrict or limit the owner's right
to property and reduce its value by 25% or more beyond that which would otherwise
exist in the absence of the regulations. In other words, this rule provides
more clarity and certainty as to when a buffer or setback is to be determined
for facilities subject to a standard permit. Therefore, this rule will not
constitute a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking 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 Texas Coastal Management Program. As required by §281.45(a)(3),
Actions Subject to Consistency with the Goals and Policies of the Texas Coastal
Management Program (CMP), and 31 TAC §505.11(b)(2), relating to Actions
and Rules Subject to the Coastal Management Program, commission rules governing
air pollutant emissions must be consistent with the applicable goals and policies
of the CMP. The commission reviewed this rulemaking 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 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)). The
revisions are necessary to ensure that commission rules maintain consistency
with applicable statutes. The revisions do not authorize or allow increased
emissions of air contaminants. The CMP policy applicable to this rulemaking
is the policy that commission rules comply with federal regulations in 40
Code of Federal Regulations (CFR) to protect and enhance air quality in the
coastal areas (31 TAC §501.14(q)). This rulemaking complies with 40 CFR
Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation
Plans. Therefore, in accordance with 31 TAC §505.22(e), the commission
affirms that this rulemaking is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The adopted rule affects all sites, regardless of the applicability of
the Federal Operating Permits Program. The rule has no specific effect on
federal operating permit sites.
PUBLIC COMMENT
The proposed revisions were published in the September 8, 2006, issue of
the
Texas Register
. A public hearing for this
rulemaking was held on October 2, 2006, and the comment period closed on October
9, 2006. The commission received comments on the proposed rule from Brown
McCarroll, L.L.P., on behalf of the Texas Chemical Council (TCC), Corrugated
Services L.P. (Corrugated Services), Dow Chemical Company (Dow), Galveston
Houston Association for Smog Prevention (GHASP), HCS Group, Inc. (HCS Group),
Locke Liddell and Sapp, L.L.P., representing Clean COALition and Robertson
County: Our Land Our Lives (Locke Liddell & Sapp), Sierra Club Houston
Regional Group (HSC), Solar Turbines, Inc. (Solar), and the United States
Environmental Protection Agency, Region 6 (EPA).
RESPONSE TO COMMENTS
EPA provided detailed comments about the proposed rules. Overall, EPA indicated
that the rules, as proposed, were not consistent with certain requirements
of 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, and were generally not approvable as a SIP revision
without a number of significant changes.
EPA stated that 40 CFR Part 51 (in part) requires states to establish legally
enforceable procedures to review new and modified sources to ensure that the
change will not violate a SIP control strategy or interfere with attainment
or maintenance of National Ambient Air Quality Standards (NAAQS). EPA commented
that 40 CFR §51.160(b), Legally Enforceable Procedures, requires a state
to maintain the authority to prevent construction or modification that would
violate the control strategy or interfere with attainment or maintenance of
NAAQS. EPA also commented that 40 CFR §51.161(a), Public Availability
of Information, requires that the state provide an opportunity for public
comment on information submitted by the owner or operator, including the agency's
analysis of the effect of the construction or modification on air quality,
and the agency's proposed approval or disapproval. However, EPA commented
that minor new source review (NSR) programs that allow for early construction
have been approved, where the pre-permit construction rule provided for: 1)
exclusion for major sources and major modifications; 2) notice to the state
prior to commencement of construction; 3) prohibition on operation prior to
issuance of the final permit; 4) public notice of the proposed pre-permit
construction; 5) pre-permit construction approval from the state, including
state authority to prevent construction if the change would violate the control
strategy or interfere with attainment or maintenance of NAAQS; and 6) certification
that the construction is at the applicant's own risk and the applicant will
not contest the final permit on the basis that construction has begun. EPA
commented that the proposed rule is silent on several of these requirements,
and as proposed, is not consistent with the requirements of 40 CFR Part 51.
EPA commented that, at a minimum, the rule should include a requirement for
pre-approval from the state prior to construction, and public notice of the
pre-permit construction.
EPA commented that the rule as proposed could render TCEQ's preconstruction
permit program deficient, because the proposed rules do not provide TCEQ with
the authority to prevent the construction or modification as required by 40
CFR §51.160(b). EPA recommended amending the proposed rule to provide
an approval process prior to allowing construction.
EPA commented that, before approval of any final rule that authorizes pre-permit
construction, and on the record, TCEQ must be able to verify that the construction
or modification of these sources prior to receiving a permit will neither
cause nor contribute to a violation of any NAAQS nor result in a violation
of a SIP control strategy. EPA stated that TCEQ must address the cumulative
effect of pre-permit construction-generated emissions that the proposed rules
would allow.
EPA commented that compliance with certain permit requirements (such as
best available control technology (BACT), or applicable distance limitations)
must be determined prior to commencement of construction. EPA commented that
public notice prior to construction is required so that EPA and the public
can provide meaningful comment on those requirements. EPA commented that public
notice prior to construction is required to satisfy the requirements of 40
CFR §51.161(a), and this requirement should be added to the rule to ensure
SIP approval.
EPA commented that the TCEQ should add additional safeguards by requiring
the submittal of a comprehensive permit application, public notice of the
application for pre-permit construction approval, and written approval from
TCEQ before a source can commence pre-permit construction. EPA stated that
TCEQ should also require that the permit application include the request for
pre-permit construction (including a list of activities that the owner or
operator plans to undertake prior to receiving a final permit), certification
by the applicant that the construction is at their own risk, certification
that the applicant will not contest the final permit on the basis that construction
has begun, and certification by the applicant that they will comply with any
restrictions being sought to limit potential to emit, including applicable
monitoring and recordkeeping requirements.
The intended purpose of SB 1740 and the proposed rule is to provide a streamlined
and expedient process for applicants to begin construction on non-major projects
at existing permitted sites, without waiting for the associated permit to
be reviewed and issued. Under the proposed rules, the prospective facility
would remain subject to the same control technology review and impacts review
as any other project subject to permit review. In addition, the proposed facility
would not be allowed to operate until after the permit is issued.
However, based on EPA's comments on the proposed rule, and EPA's comments
on similar rules proposed or adopted in other states, it appears that EPA
will not approve the proposed rules as a SIP revision unless a number of substantial
changes are made. If the proposed rule was modified to include the additional
conditions and processes identified by EPA, it would largely negate the intended
benefits of SB 1740. Therefore, the commission is withdrawing the proposed
rules relating to early construction. This withdrawal includes all proposed
changes to §§116.110, 116.116, 116.710, 116.721, 116.787, 116.805,
116.820, 116.930, 116.1020, 116.1021, and 116.1424.
EPA stated that it cannot approve the cross-reference in proposed §116.110(a)(2)(D)
to the new Municipal Solid Waste Landfill standard permit in Chapter 330.
EPA commented that any SIP approval of a cross-reference to another chapter
that was not submitted to EPA for review would be a tacit approval of that
chapter.
The commission disagrees with this comment. The proposed change to §116.110(a)(2)(D)
was merely to update the reference to a subchapter in Chapter 330 that was
recently changed. The commission did not intend to request EPA approval of
that subchapter in this rulemaking. However, as stated above and for other
reasons, the proposed changes to §116.110 are being withdrawn and will
not be submitted to EPA as a revision to the SIP.
EPA commented that the proposed revision to §116.110(c) cannot be
approved because it references Chapter 60, Compliance History, that Texas
has not submitted to EPA as a SIP revision.
Although the intended purpose of the proposed change to §116.110(c)
was to delete unnecessary bracketing in the rule text, as stated above and
for other reasons, the proposed changes to §116.110 are being withdrawn
and will not be submitted to EPA as a revision to the SIP.
EPA also commented that some of the proposed revisions in Chapter 116 include
sections or subsections that have not yet been SIP approved; have not been
submitted to EPA; or require that Texas address specific EPA concerns in order
to be approved into the SIP. These sections include those relating to flexible
permits and qualified facilities.
As a result of adverse EPA comments regarding approval of pre-permit construction
authorization in §116.116(g), the proposed changes in Chapter 116 that
reference §116.116(g) or fix cross-references are also being withdrawn
and will not be submitted to EPA.
Locke Liddell & Sapp commented that the amendment to §116.116(f),
concerning use of credits, does not limit the use of credits to facilities
that have implemented BACT, and stated that the exchange of credits or offsets
between BACT facilities and non-BACT facilities is a violation of the Federal
Clean Air Act.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction. This
includes all proposed changes to §116.116, including the proposed change
to §116.116(f).
HSC generally opposed the changes to proposed §116.116(g) and associated
rules that would allow a company to begin construction or modification without
having permit approval. Locke Liddell & Sapp commented that proposed §116.116(g),
and all proposed rules referencing §116.116(g), are in conflict with
the Federal Clean Air Act, 42 United States Code (USC), §7475(a)(1) -
(8), because the proposed rule allows construction to begin prior to the commission
issuing the appropriate permit. Locke Liddell & Sapp also commented that
proposed §116.116(g)(4) is vague and unenforceable. Locke Liddell &
Sapp also commented that proposed §116.116(g)(5) is contrary to and in
violation of 42 USC, §7475(a)(1) - (8).
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction, including
proposed §116.116(g).
Dow and TCC commented that, for consistency with the statutory language
of THSC, §382.004(a), the term "received" as used in §116.116(g)
should be replaced with the term "submitted." Dow further commented that the
preamble could be used to clarify how to determine the date of submission,
including, but not limited to, the postmark date for regular or certified
mail, or submittal receipt date for express mail.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction, including
proposed §116.116(g).
HSC commented that allowing a company to construct before receiving a permit
biases the decision-making process and places undue psychological and political
pressure on TCEQ to approve a permit. GHASP indicated skepticism regarding
the effectiveness of the provision that prohibits the commission from considering
construction as a factor in approving the permit. GHASP commented that the
construction itself, along with testing and startup, can have environmental
consequences which should be considered before authorizing a modification.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
HSC commented that TCEQ does not have the authority to broaden the regulation
(concerning the addition of new facilities under an existing permit) beyond
the statutory language contained in THSC, §382.004. HSC commented that
if there is an error in the statute, then it is the responsibility of the
legislature to correct the error.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
Locke Liddell & Sapp commented that the proposed amendments violate
various portions of the SIP.
As previously explained, the commission is withdrawing the proposed changes
associated with early construction.
GHASP opposed the proposed rules because they provide another mechanism
for applicants to increase harmful emissions without making proper accommodations
for human health.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
GHASP commented that TCEQ is statutorily obliged to protect human health,
and allowing applicants to construct before receiving the appropriate authorization
abdicates that responsibility. GHASP also commented that the exclusion of
projects that trigger federal Prevention of Significant Deterioration, or
Nonattainment New Source Review permitting, is not sufficient, because some
harmful air pollutants may not be considered when determining applicability
of those federal permitting regulations. GHASP commented that TCEQ should
not provide an incentive for applicants to avoid federal requirements.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
Dow and TCC generally supported the proposed rules relating to pre-permit
construction. Dow commented that the proposed rules would serve as an example
demonstrating Texas' competitiveness in the national and international marketplace.
The commission appreciates the support for the proposed rules; however,
as explained previously, the commission is withdrawing the proposed changes
associated with early construction.
Dow commented that TCEQ could minimize risk to the regulated community
by establishing an informal, optional process where applicants could meet
with TCEQ staff to review pending changes to TCEQ and EPA rules and guidance
pertaining to the NSR permitting process. Dow also commented that TCEQ should
continue to communicate pending changes to TCEQ permitting guidance in advance
of formal policy changes.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction. Whenever
possible, the TCEQ will continue to communicate policy changes as far in advance
as possible.
Dow commented that THSC, §382.004(a) does not address whether the
facility may operate before the permit is issued. Dow suggested that operation
of the new or modified facilities should be allowed prior to issuance of the
permit amendment, once the "impacts review" portion of the permit amendment
is completed. This would allow facilities to begin operation as soon as possible
while ensuring that public health and environmental concerns are addressed.
Dow commented that this change would benefit projects that have a short construction
time.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
TCC and Dow indicated support for the TCEQ's interpretation of the statute
that would allow a broader range of applications to modify permits.
The commission appreciates the support; however, as explained previously,
the commission is withdrawing the proposed changes associated with early construction.
HCS Group indicated general support for the proposed rule, but requested
that the commission reconsider the proposed exclusion for standard permit
projects. The proposed rule excludes standard permit projects from initiating
early construction. HCS Group commented that the electric generating unit
(EGU) standard permit provides an incentive for companies to embrace stringent
environmental controls, in order to gain the most rapid, predictable schedule
for their projects. HCS Group commented that the proposed rule would tend
to remove some of the incentive for seeking the standard permit. HCS Group
commented that allowing standard permits to be eligible for early construction
could reduce overall project time by two to three months.
The commission appreciates the support for the proposed rules; however,
as explained previously, the commission is withdrawing the proposed changes
associated with early construction.
Corrugated Services and Solar requested that TCEQ extend the pre-permit
construction rule to include registrants for the EGU standard permit. Solar
commented that inclusion of the EGU standard permit in the proposed rule will
preserve the advantages of investing in technologies that reduce emissions,
and help to bring such projects online more quickly. Solar provided examples
where expedited authorization of projects under the EGU standard permit resulted
in a net reduction of emissions. Corrugated Services commented that the EGU
standard permit provides industry with incentives to invest in the most energy
efficient processes and the best emission control systems. Corrugated Services
commented that expanding the SB 1740 rules to include standard permits would
increase investor confidence and hasten environmental improvements by improving
the speed at which clean, energy efficient units replace older units.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
Corrugated Services commented that the existing EGU standard permit was
recently proposed to be amended, and the commission could include language
within the EGU standard permit to reference SB 1740, to ensure that the amended
standard permit is compatible with SB 1740.
As previously explained in the response to EPA's comments, the commission
is withdrawing the proposed changes associated with early construction.
HSC opposed the proposed changes to §116.615(11) and §321.43(j)(2)(A),
which specify how compliance with distance limits and buffer zones are evaluated.
HSC commented that these changes create the potential for nuisance situations
(such as odors from confined animal feeding operations), leading to citizen
complaints, diminished citizen confidence in government, and wasted state
resources.
The proposed changes are necessary to implement provisions of SB 1740 and
maintain consistency with the TCAA. Under existing rules and policies, standard
permit facilities are already allowed to continue operation in the event a
new residence, school, place of worship, or other structure is built in close
proximity, at some time after the standard permit facility was authorized.
If nuisance conditions are confirmed, these situations can be addressed through
existing rules under 30 TAC §101.4, Nuisance. No changes were made in
response to this comment.
HSC commented that the proposed rules allow a company to bypass using the
required authorization (an air quality permit under §116.110, Applicability),
when it does not meet the distance limit, setback, or buffer zone. HSC suggested
that compliance with distance limits and buffer zones could be determined
at the time TCEQ determines that the application is administratively complete.
The proposed changes are necessary to implement provisions of SB 1740 and
maintain consistency with the TCAA. The commission does not agree that the
proposed rules allow a company to bypass using a required authorization (such
as an air quality permit). The rules still require the registrant to comply
with all distance limits, setbacks, and buffer zones, as determined at the
time the notification or registration is filed, or at the time construction,
expansion, or modification begins. The statute specifies that the date is
determined the earlier of when the application or notice is filed with the
commission, or when new construction, expansion, or modification of a facility
begins, not the date that the application is found to be administratively
complete. Most standard permit registrations are processed in less than 45
days, so there will typically not be a long period of time between when the
registration is filed, and when the executive director authorizes the request.
No changes were made in response to this comment.
GHASP commented that nothing in the proposed regulations concerning setbacks,
buffers, and distance limits would prohibit an applicant from filing applications
for standard permits simply to limit prospective obligations to nearby property
owners without their knowledge.
The proposed changes are necessary to implement provisions of SB 1740 and
maintain consistency with the TCAA. A registrant for a standard permit must
begin construction within a certain period of time once the permit (including
a standard permit) is issued, or the permit is considered to be void. This
restriction, combined with the fee associated with standard permit registrations,
should be sufficient to deter speculative registrations that are not intended
to be acted upon. No changes were made in response to this comment.
STATUTORY AUTHORITY
The amendment is adopted under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under the TWC and other laws of the state.
The amendment is also adopted under THSC, §382.002, concerning Policy
and Purpose, which establishes the commission's purpose to safeguard the state's
air resources, consistent with the protection of public health, general welfare,
and physical property, including the esthetic enjoyment of air resources by
the public and maintenance of adequate visibility; §382.011, concerning
General Powers and Duties, which authorizes the commission to establish and
control the level of quality to be maintained in the state's air; §382.012,
concerning State Air Control Plan, which authorizes the commission to prepare
and develop a comprehensive plan for the control of the state's air; §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purpose of the TCAA; and §382.05195, concerning Standard
Permit, which authorizes the commission to issue standard permits for new
or existing similar facilities.
The adopted amendment implements TWC, §5.103 and §5.105; and
THSC, §§382.002, 382.011, 382.012, 382.017, and 382.05195.
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 February 23 2007.
TRD-200700726
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: March 15, 2007
Proposal publication date: September 8, 2006
For further information, please call: (512) 239-0348
Subchapter B. CONCENTRATED ANIMAL FEEDING OPERATIONS
Chapter 321.
CONTROL OF CERTAIN ACTIVITIES BY RULE