By Allen H.B. No. 2504
76R7003 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the issuance of certain permits for the emission of air
1-3 contaminants.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 382.003(9), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (9) "Modification of existing facility" means any
1-8 physical change in, or change in the method of operation of, a
1-9 facility in a manner that increases the amount of any air
1-10 contaminant emitted by the facility into the atmosphere or that
1-11 results in the emission of any air contaminant not previously
1-12 emitted. The term does not include:
1-13 (A) insignificant increases in the amount of any
1-14 air contaminant emitted that is authorized by one or more
1-15 commission exemptions;
1-16 (B) insignificant increases at a permitted
1-17 facility;
1-18 (C) maintenance or replacement of equipment
1-19 components that do not increase or tend to increase the amount or
1-20 change the characteristics of the air contaminants emitted into the
1-21 atmosphere;
1-22 (D) an increase in the annual hours of operation
1-23 unless the existing facility has received a preconstruction permit
1-24 or has been exempted, pursuant to Section 382.057, from
2-1 preconstruction permit requirements;
2-2 (E) a physical change in, or change in the
2-3 method of operation of, a facility that does not result in a net
2-4 increase in allowable emissions of any air contaminant and that
2-5 does not result in the emission of any air contaminant not
2-6 previously emitted, provided that the facility:
2-7 (i) has received a preconstruction permit
2-8 or permit amendment or has been exempted pursuant to Section
2-9 382.057 from preconstruction permit requirements no earlier than
2-10 120 months before the change will occur; or
2-11 (ii) uses, regardless of whether the
2-12 facility has received a permit, an air pollution control method
2-13 that is at least as effective as the best available control
2-14 technology, considering technical practicability and economic
2-15 reasonableness, that the commission required or would have required
2-16 for a facility of the same class or type as a condition of issuing
2-17 a permit or permit amendment 120 months before the change will
2-18 occur;
2-19 (F) a physical change in, or change in the
2-20 method of operation of, a facility where the change is within the
2-21 scope of a flexible permit, a multiple plant permit, or a standard
2-22 permit; or
2-23 (G) a change in the method of operation of a
2-24 natural gas processing, treating, or compression facility connected
2-25 to or part of a natural gas gathering or transmission pipeline
2-26 which does not result in an annual emission rate of a pollutant in
2-27 excess of the volume emitted at the maximum designed capacity,
3-1 provided that the facility is one for which:
3-2 (i) construction or operation started on
3-3 or before September 1, 1971, and at which either no modification
3-4 has occurred after September 1, 1971, or at which modifications
3-5 have occurred only pursuant to standard exemptions; or
3-6 (ii) construction started after September
3-7 1, 1971, and before March 1, 1972, and which registered in
3-8 accordance with Section 382.060 as that section existed prior to
3-9 September 1, 1991.
3-10 SECTION 2. Sections 382.051(a) and (b), Health and Safety
3-11 Code, are amended to read as follows:
3-12 (a) The commission may issue a permit:
3-13 (1) to construct a new facility or modify an existing
3-14 facility that may emit air contaminants; [or]
3-15 (2) to operate an existing facility pursuant to a
3-16 voluntary emissions reduction permit; or
3-17 (3) to operate a federal source.
3-18 (b) To assist in fulfilling its authorization provided by
3-19 Subsection (a), the commission may issue:
3-20 (1) special permits for certain facilities;
3-21 (2) a general permit [developed by rule] for numerous
3-22 similar sources subject to Section 382.054;
3-23 (3) a standard permit [developed by rule] for
3-24 [numerous] similar facilities subject to Section 382.0518,
3-25 382.0519, or 382.05195;
3-26 (4) a permit by rule for types of facilities that will
3-27 not significantly contribute air contaminants to the atmosphere;
4-1 (5) a single federal operating permit or
4-2 preconstruction permit for multiple federal sources or facilities
4-3 located at the same site;
4-4 (6) a multiple plant permit for existing facilities at
4-5 multiple locations subject to Section 382.0518 or 382.0519; or
4-6 (7) [(5)] other permits as necessary.
4-7 SECTION 3. Subchapter C, Chapter 382, Health and Safety
4-8 Code, is amended by adding Section 382.05101 to read as follows:
4-9 Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The commission
4-10 may develop by rule the criteria to establish a de minimis level of
4-11 air contaminants for facilities or groups of facilities below which
4-12 no permit under Section 382.0518 or 382.0519, standard permit under
4-13 Section 382.05195, or permit by rule under Section 382.05196 will
4-14 be required.
4-15 SECTION 4. Sections 382.0511(a) and (c), Health and Safety
4-16 Code, are amended to read as follows:
4-17 (a) The commission may consolidate into a single permit[:]
4-18 [(1)] any permits, special permits, standard permits,
4-19 permits by rule, or exemptions for a facility or federal source
4-20 [issued by the commission before December 1, 1991; or]
4-21 [(2) any permit issued by the commission on or after
4-22 December 1, 1991, with any permits, special permits, or exemptions
4-23 issued or qualified for by that date].
4-24 (c) The commission [by rule] may authorize changes in a
4-25 federal source to proceed before the owner or operator obtains a
4-26 federal operating permit or revisions to a federal operating permit
4-27 if the changes are de minimis under Section 382.05101 or the owner
5-1 or operator has obtained a preconstruction permit or permit
5-2 amendment required by Section 382.0518 or an exemption allowed
5-3 under Section 382.057.
5-4 SECTION 5. Subchapter C, Chapter 382, Health and Safety
5-5 Code, is amended by adding Sections 382.0519, 382.05191, 382.05192,
5-6 382.05193, 382.05194, 382.05195, and 382.05196 to read as follows:
5-7 Sec. 382.0519. VOLUNTARY EMISSION REDUCTION PERMIT. (a)
5-8 Before September 1, 2001, the owner or operator of an unpermitted
5-9 facility that, under Section 382.0518(g), is not subject to the
5-10 requirement to obtain a permit may apply for a permit to operate
5-11 the facility under this section.
5-12 (b) Within a reasonable time after the commission receives
5-13 an application under this section, the commission shall grant the
5-14 permit if, from the information available to the commission,
5-15 including information presented at any public hearing or through
5-16 written comment, the commission finds that the facility will use an
5-17 air pollution control method at least as beneficial as that
5-18 described in Section 382.003(9)(E)(ii), considering the age and
5-19 remaining useful life of the facility.
5-20 (c) If the commission finds that the emissions from the
5-21 facility will contravene the standards under Subsection (b) or the
5-22 intent of this chapter, including protection of the public's health
5-23 and physical property, the commission may not grant the permit
5-24 under this section.
5-25 (d) A person must comply with Section 382.0518 before work
5-26 may begin on the modification of a facility previously permitted
5-27 under this section.
6-1 Sec. 382.05191. VOLUNTARY EMISSION REDUCTION PERMIT: NOTICE
6-2 AND HEARING. (a) An applicant for a permit under Section 382.0519
6-3 shall publish notice of intent to obtain the permit in accordance
6-4 with Section 382.056.
6-5 (b) The commission may authorize an applicant for a permit
6-6 for a facility which constitutes or is part of a small business
6-7 stationary source as defined in Section 382.0365(g)(2) to provide
6-8 notice using an alternative means if the commission finds that the
6-9 proposed method will result in equal or better communication with
6-10 the public, considering the effectiveness of the notice in reaching
6-11 potentially affected persons, cost, and consistency with federal
6-12 requirements.
6-13 (c) The commission shall afford an opportunity for a public
6-14 hearing and the submission of public comment and send notice of a
6-15 decision on an application for a permit under Section 382.0519 in
6-16 the same manner as provided by Sections 382.0561 and 382.0562.
6-17 (d) A person affected by a decision of the commission to
6-18 issue or deny a voluntary emission reduction permit may move for
6-19 rehearing and is entitled to judicial review under Section 382.032.
6-20 Sec. 382.05192. VOLUNTARY EMISSION REDUCTION PERMITS:
6-21 REVIEW AND RENEWAL. Review and renewal of permits issued under
6-22 Section 382.0519 shall be conducted in accordance with Section
6-23 382.055.
6-24 Sec. 382.05193. EMISSIONS PERMITS THROUGH ENVIRONMENTAL
6-25 MITIGATION PROJECT. (a) The commission may issue a permit under
6-26 Section 382.0519 for a facility:
6-27 (1) that makes a good faith effort to make equipment
7-1 improvements and emissions reductions necessary to meet the
7-2 requirements of that section;
7-3 (2) that, in spite of the effort, cannot reduce the
7-4 facility's emissions to the degree necessary for the issuance of
7-5 the permit; and
7-6 (3) the owner or operator of which acquires a
7-7 sufficient number of emissions reduction credits to offset the
7-8 facility's excessive emissions under the program established under
7-9 Subsection (b).
7-10 (b) The commission by rule shall establish a program to
7-11 grant emissions reduction credits to a facility if the owner or
7-12 operator conducts a special environmental project to offset the
7-13 facility's excessive emissions. The rules must establish two
7-14 categories of projects eligible for credits under the program
7-15 including:
7-16 (1) emissions reduction projects; and
7-17 (2) environmental protection projects.
7-18 (c) A project included in the emissions reduction projects
7-19 category must reduce net emissions from one or more sources in this
7-20 state in an amount and type sufficient to prevent air pollution to
7-21 a degree comparable to the amount of the reduction in the
7-22 facility's emissions that would be necessary to meet the permit
7-23 requirement. The emissions reduction projects category must
7-24 include:
7-25 (1) generation of electric energy by a low-emission
7-26 method including:
7-27 (A) wind power;
8-1 (B) biomass gasification power; and
8-2 (C) solar power;
8-3 (2) the purchase and destruction of high-emission
8-4 automobiles or other mobile sources; and
8-5 (3) reducing emissions from a permitted facility that
8-6 emits air contaminants to a level significantly below the levels
8-7 necessary under the facility's permit.
8-8 (d) A project included in the environmental protection
8-9 projects category must benefit, preserve, or protect environmental
8-10 quality in this state to a degree that the value of the project to
8-11 the status of the state's environment is comparable to the value to
8-12 the environment of reducing the facility's emissions to the extent
8-13 necessary to meet the permit requirements. The environmental
8-14 protection projects category must include:
8-15 (1) the creation of a wildlife or plant preserve;
8-16 (2) the creation of an environmental easement;
8-17 (3) surface or ground water or soil pollution
8-18 prevention or remediation;
8-19 (4) wetlands enhancement, remediation, or
8-20 preservation; and
8-21 (5) environmental education.
8-22 (e) A permit issued under Section 382.0519 for a facility
8-23 participating in the program established under this section must be
8-24 conditioned on the successful and timely completion of the project
8-25 or projects for which the facility owner or operator acquires the
8-26 credits.
8-27 (f) To renew the permit of a facility permitted under
9-1 Section 382.0519 with credits acquired under the program
9-2 established under this section, the commission shall require the
9-3 owner or operator of the facility to have:
9-4 (1) made equipment improvements and emissions
9-5 reductions necessary to meet the permit requirements under that
9-6 chapter for a new permit; or
9-7 (2) acquired additional credits under the program as
9-8 necessary to meet the permit requirements under that section for a
9-9 new permit.
9-10 (g) Emissions reduction credits acquired under the program
9-11 established under this section are not transferrable.
9-12 Sec. 382.05194. MULTIPLE PLANT PERMIT. (a) The commission
9-13 may issue a multiple plant permit for multiple existing facilities
9-14 owned or operated by the same person if the commission finds that:
9-15 (1) the aggregate rate of emission of air contaminants
9-16 to be authorized under the permit does not exceed:
9-17 (A) the rate that would be authorized under
9-18 Section 382.0518 for a previously permitted facility; or
9-19 (B) the rate that would be authorized under
9-20 Section 382.0519 for:
9-21 (i) an unpermitted facility that, under
9-22 Section 382.0518(g), is not subject to the requirement to obtain a
9-23 preconstruction authorization; or
9-24 (ii) a facility permitted under Section
9-25 382.0519; and
9-26 (2) there is no indication that the emissions from the
9-27 facilities will contravene the intent of this chapter, including
10-1 protection of the public's health and physical property.
10-2 (b) A permit issued under this section shall provide that
10-3 the emissions from any of the facilities authorized under the
10-4 permit shall not exceed that facility's highest historic annual
10-5 rate. In the absence of records extending back to the original
10-6 construction of the facility, best engineering judgment shall be
10-7 used to demonstrate the facility's highest historic annual rate to
10-8 the commission.
10-9 (c) Emissions control equipment previously installed at a
10-10 facility permitted under this section may not be removed or
10-11 disabled unless the action is undertaken to maintain or upgrade the
10-12 control equipment.
10-13 Sec. 382.05195. STANDARD PERMIT. (a) The commission may
10-14 issue a standard permit for similar facilities if the commission
10-15 finds that:
10-16 (1) the standard permit can be readily enforced;
10-17 (2) the commission can adequately monitor compliance
10-18 with the terms of the standard permit; and
10-19 (3) for facilities subject to Section 382.0518(a)-(d),
10-20 the facility will use control technology at least as effective as
10-21 that described in Section 382.0518(b).
10-22 (b) The commission shall publish notice of a proposed
10-23 standard permit in the Texas Register and in one or more statewide
10-24 or regional newspapers, designated by the commission by rule, that
10-25 will, in the commission's judgment, provide reasonable notice
10-26 throughout the state. If the standard permit will be effective for
10-27 only part of the state, the notice shall be published in a
11-1 newspaper of general circulation in the area to be affected. The
11-2 commission may by rule require additional notice to be given. The
11-3 notice must include an invitation for written comments by the
11-4 public to the commission regarding the proposed standard permit and
11-5 shall be published not later than the 30th day before the
11-6 commission issues the standard permit.
11-7 (c) The commission shall hold a public meeting to provide an
11-8 additional opportunity for public comment. The commission shall
11-9 give notice of a public meeting under this subsection as part of
11-10 the notice described in Subsection (b) not later than the 30th day
11-11 before the date of the meeting.
11-12 (d) If the commission receives public comment relating to
11-13 issuance of a standard permit, the commission shall issue a written
11-14 response to comments on the permit at the same time that the
11-15 commission issues or denies the permit. The response is available
11-16 to the public and shall be mailed to each person who made a
11-17 comment.
11-18 (e) The commission shall establish, by rule, the procedures
11-19 for application and approval for the use of a standard permit.
11-20 (f) The issuance, amendment, or revocation of a standard
11-21 permit by the commission is not subject to Chapter 2001, Government
11-22 Code.
11-23 (g) The commission may adopt rules as necessary to implement
11-24 and administer this section and may delegate to the executive
11-25 director the authority to issue, amend, or revoke a standard permit
11-26 as provided by Section 382.061.
11-27 Sec. 382.05196. PERMITS BY RULE. (a) Consistent with
12-1 Section 382.051, the commission may adopt permits by rule for
12-2 certain types of facilities if it is found on investigation that
12-3 such types of facilities will not make a significant contribution
12-4 of air contaminants to the atmosphere. The commission may not
12-5 adopt a permit by rule authorizing any facility defined as "major"
12-6 under the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) or
12-7 regulations adopted under that Act. Nothing in this subsection
12-8 shall be construed to limit the commission's general power to
12-9 control the state's air quality under Section 382.011(a).
12-10 (b) The commission shall adopt rules specifically defining
12-11 the terms and conditions for a permit by rule under this section in
12-12 a nonattainment area as defined by Title I of the federal Clean Air
12-13 Act (42 U.S.C. Section 7401 et seq.).
12-14 SECTION 6. Section 382.057(a), Health and Safety Code, is
12-15 amended to read as follows:
12-16 (a) Consistent with Section 382.0511, the commission by rule
12-17 may exempt from the requirements of Section 382.0518 changes within
12-18 any facility [and certain types of facilities] if it is found on
12-19 investigation that such changes [or types of facilities] will not
12-20 make a significant contribution of air contaminants to the
12-21 atmosphere. The commission by rule shall exempt from the
12-22 requirements of Section 382.0518 or issue a standard permit for the
12-23 installation of emission control equipment that constitutes a
12-24 modification or a new facility, subject to such conditions
12-25 restricting the applicability of such exemption or standard permit
12-26 that the commission deems necessary to accomplish the intent of
12-27 this chapter. The commission may not exempt [any facility or] any
13-1 modification of an existing facility defined as "major" under the
13-2 federal Clean Air Act or regulations adopted under that Act.
13-3 Nothing in this subsection shall be construed to limit the
13-4 commission's general power to control the state's air quality under
13-5 Section 382.011(a).
13-6 SECTION 7. Section 382.058, Health and Safety Code, is
13-7 amended to read as follows:
13-8 Sec. 382.058. LIMITATION ON COMMISSION PERMITS BY RULE OR
13-9 STANDARD PERMITS [EXEMPTION] FOR CONSTRUCTION OF CERTAIN CONCRETE
13-10 PLANTS. (a) A person may not begin construction on any concrete
13-11 plant that performs wet batching, dry batching, or central mixing
13-12 under a standard permit under Section 382.05195 or a permit by rule
13-13 [an exemption] adopted by the commission under Section 382.05196
13-14 [382.057] unless the person has complied with the notice and
13-15 opportunity for hearing provisions under Section 382.056.
13-16 (b) This section does not apply to a concrete plant located
13-17 temporarily in the right-of-way, or contiguous to the right-of-way,
13-18 of a public works project.
13-19 (c) For purposes of this section, only those persons
13-20 actually residing in a permanent residence within 440 yards of the
13-21 proposed plant may request a hearing under Section 382.056(d) as a
13-22 person who may be affected.
13-23 SECTION 8. Section 382.062(b), Health and Safety Code, is
13-24 amended to read as follows:
13-25 (b) The commission may adopt rules relating to charging and
13-26 collecting a fee for an exemption, a voluntary emissions reduction
13-27 permit, [from] a permit by rule, a multiple plant permit, or [for]
14-1 a standard permit [authorized by commission rule] and for a
14-2 variance.
14-3 SECTION 9. The Texas Natural Resource Conservation
14-4 Commission shall adopt, as soon as practicable after the effective
14-5 date of this Act, any rules necessary to implement the changes in
14-6 law made by this Act.
14-7 SECTION 10. Not later than January 15, 2001, the Texas
14-8 Natural Resource Conservation Commission shall prepare and
14-9 distribute to the governor, the lieutenant governor, the speaker of
14-10 the house of representatives, the chairman of the Senate Committee
14-11 on Natural Resources, and the chairman of the House Committee on
14-12 Environmental Regulation a report on the number of companies that
14-13 have obtained or applied for a permit under Section 382.0519,
14-14 Health and Safety Code, as added by this Act, and the reductions in
14-15 emissions anticipated to result from issuance of such permits.
14-16 SECTION 11. (a) In accordance with Section 311.031(c),
14-17 Government Code, which gives effect to a substantive amendment
14-18 enacted by the same legislature that codifies the amended statute,
14-19 the text of Section 382.003(9), Health and Safety Code, as set out
14-20 in Section 1 of this Act, gives effect to changes made by Chapter
14-21 3, Acts of the 72nd Legislature, 1st Called Session, 1991, and
14-22 Chapter 76, Acts of the 74th Legislature, Regular Session, 1995.
14-23 (b) To the extent of any conflict, this Act prevails over
14-24 another Act of the 76th Legislature, Regular Session, 1999,
14-25 relating to nonsubstantive additions and corrections in enacted
14-26 codes.
14-27 SECTION 12. The importance of this legislation and the
15-1 crowded condition of the calendars in both houses create an
15-2 emergency and an imperative public necessity that the
15-3 constitutional rule requiring bills to be read on three several
15-4 days in each house be suspended, and this rule is hereby suspended,
15-5 and that this Act take effect and be in force from and after its
15-6 passage, and it is so enacted.