By: Brown S.B. No. 766
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the issuance of certain permits for the emission of air
1-2 contaminants.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subdivision (9), Section 382.003, Health and
1-5 Safety Code, is amended to read as follows:
1-6 (9) "Modification of existing facility" means any
1-7 physical change in, or change in the method of operation of, a
1-8 facility in a manner that increases the amount of any air
1-9 contaminant emitted by the facility into the atmosphere or that
1-10 results in the emission of any air contaminant not previously
1-11 emitted. The term does not include:
1-12 (A) insignificant increases in the amount of any
1-13 air contaminant emitted that is authorized by one or more
1-14 commission exemptions;
1-15 (B) insignificant increases at a permitted
1-16 facility;
1-17 (C) maintenance or replacement of equipment
1-18 components that do not increase or tend to increase the amount or
1-19 change the characteristics of the air contaminants emitted into the
1-20 atmosphere;
1-21 (D) an increase in the annual hours of operation
1-22 unless the existing facility has received a preconstruction permit
1-23 or has been exempted, pursuant to Section 382.057, from
1-24 preconstruction permit requirements;
2-1 (E) a physical change in, or change in the
2-2 method of operation of, a facility that does not result in a net
2-3 increase in allowable emissions of any air contaminant and that
2-4 does not result in the emission of any air contaminant not
2-5 previously emitted, provided that the facility:
2-6 (i) has received a preconstruction permit
2-7 or permit amendment or has been exempted pursuant to Section
2-8 382.057 from preconstruction permit requirements no earlier than
2-9 120 months before the change will occur; or
2-10 (ii) uses, regardless of whether the
2-11 facility has received a permit, an air pollution control method
2-12 that is at least as effective as the best available control
2-13 technology, considering technical practicability and economic
2-14 reasonableness, that the board required or would have required for
2-15 a facility of the same class or type as a condition of issuing a
2-16 permit or permit amendment 120 months before the change will occur;
2-17 (F) a physical change in, or change in the
2-18 method of operation of, a facility where the change is within the
2-19 scope of a flexible permit or a multiple plant permit; or
2-20 (G) a change in the method of operation of a
2-21 natural gas processing, treating, or compression facility connected
2-22 to or part of a natural gas gathering or transmission pipeline
2-23 which does not result in an annual emission rate of a pollutant in
2-24 excess of the volume emitted at the maximum designed capacity,
2-25 provided that the facility is one for which:
2-26 (i) construction or operation started on
3-1 or before September 1, 1971, and at which either no modification
3-2 has occurred after September 1, 1971, or at which modifications
3-3 have occurred only pursuant to standard exemptions; or
3-4 (ii) construction started after September
3-5 1, 1971, and before March 1, 1972, and which registered in
3-6 accordance with Section 382.060 as that section existed prior to
3-7 September 1, 1991.
3-8 SECTION 2. Subsections (a) and (b), Section 382.051, Health
3-9 and Safety Code, are amended to read as follows:
3-10 (a) The commission may issue a permit:
3-11 (1) to construct a new facility or modify an existing
3-12 facility that may emit air contaminants; [or]
3-13 (2) to operate an existing facility pursuant to a
3-14 voluntary emissions reduction permit; or
3-15 (3) to operate a federal source.
3-16 (b) To assist in fulfilling its authorization provided by
3-17 Subsection (a), the commission may issue:
3-18 (1) special permits for certain facilities;
3-19 (2) a general permit [developed by rule] for numerous
3-20 similar sources subject to Section 382.054;
3-21 (3) a standard permit [developed by rule] for
3-22 [numerous] similar facilities [subject to Section 382.0518];
3-23 (4) a permit by rule for types of facilities that will
3-24 not significantly contribute air contaminants to the atmosphere;
3-25 (5) a single federal operating permit or
3-26 preconstruction permit for multiple federal sources or facilities
4-1 located at the same site;
4-2 (6) a multiple plant permit for existing facilities at
4-3 multiple locations subject to Section 382.0518 or 382.0519; or
4-4 (7) [(5)] other permits as necessary.
4-5 SECTION 3. Subchapter C, Chapter 382, Health and Safety
4-6 Code, is amended by adding Section 382.05101 to read as follows:
4-7 Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The commission
4-8 may develop by rule the criteria to establish a de minimis level of
4-9 air contaminants for facilities or groups of facilities below which
4-10 no permit under Section 382.0518 or 382.0519, standard permit under
4-11 Section 382.05194, or permit by rule under Section 382.05195 will
4-12 be required.
4-13 SECTION 4. Subsections (a) and (c), Section 382.0511, Health
4-14 and Safety Code, are amended to read as follows:
4-15 (a) The commission may consolidate into a single permit[:]
4-16 [(1)] any permits, special permits, standard permits,
4-17 permits by rule, or exemptions for a facility or federal source
4-18 [issued by the commission before December 1, 1991; or]
4-19 [(2) any permit issued by the commission on or after
4-20 December 1, 1991, with any permits, special permits, or exemptions
4-21 issued or qualified for by that date].
4-22 (c) The commission [by rule] may authorize changes in a
4-23 federal source to proceed before the owner or operator obtains a
4-24 federal operating permit or revisions to a federal operating permit
4-25 if the changes are de minimis under Section 382.05101 or the owner
4-26 or operator has obtained a preconstruction permit or permit
5-1 amendment required by Section 382.0518 or is operating under a
5-2 standard permit under Section 382.05194, a permit by rule under
5-3 Section 382.05195, or an exemption allowed 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, and 382.05195 to read as follows:
5-7 Sec. 382.0519. VOLUNTARY EMISSION REDUCTION PERMIT.
5-8 (a) Prior to September 1, 2001, the owner or operator of an
5-9 existing, unpermitted facility not subject to the requirement to
5-10 obtain a permit under Section 382.0518(g) may apply for a permit to
5-11 operate that facility under this section.
5-12 (b) The commission shall grant within a reasonable time a
5-13 permit under this section if, from the information available to the
5-14 commission, including information presented at any public hearing
5-15 or through written comment, the commission finds that the facility
5-16 will use an air pollution control method at least as beneficial as
5-17 that described in Section 382.003(9)(E)(ii), considering the age
5-18 and remaining useful life of the facility.
5-19 (c) If the commission finds that the emissions from the
5-20 facility will contravene the standards under Subsection (b) or the
5-21 intent of this chapter, including protection of the public's health
5-22 and physical property, the commission may not grant the permit
5-23 under this section.
5-24 (d) A person planning the modification of a facility
5-25 previously permitted under this section must comply with Section
5-26 382.0518 prior to commencement of the construction of the
6-1 modification.
6-2 (e) A permit issued by the commission under this section may
6-3 defer the implementation of the requirement of reductions in the
6-4 emissions of certain air contaminants provided that the applicant
6-5 will make substantial emission reductions in other specific air
6-6 contaminants. Such deferral shall be based upon a prioritization
6-7 of air contaminants by the commission as necessary to meet local,
6-8 regional, and statewide air quality needs.
6-9 Sec. 382.05191. VOLUNTARY EMISSION REDUCTION PERMIT: NOTICE
6-10 AND HEARING. (a) An applicant for a permit under Section 382.0519
6-11 shall publish notice of intent to obtain the permit in accordance
6-12 with Section 382.056.
6-13 (b) The commission may authorize an applicant for a permit
6-14 for a facility which constitutes or is part of a small business
6-15 stationary source as defined in Section 382.0365(g)(2) to provide
6-16 notice using an alternative means if the commission finds that the
6-17 proposed method will result in equal or better communication with
6-18 the public, considering the effectiveness of the notice in reaching
6-19 potentially affected persons, cost, and consistency with federal
6-20 requirements.
6-21 (c) The commission shall afford an opportunity for a public
6-22 hearing and the submission of public comment and send notice of a
6-23 decision on an application for a permit under Section 382.0519 in
6-24 the same manner as provided by Sections 382.0561 and 382.0562.
6-25 (d) A person affected by a decision of the commission to
6-26 issue or deny a voluntary emission reduction permit may move for
7-1 rehearing and is entitled to judicial review under Section 382.032.
7-2 Sec. 382.05192. VOLUNTARY EMISSION REDUCTION PERMITS:
7-3 REVIEW AND RENEWAL. Review and renewal of permits issued under
7-4 Section 382.0519 shall be conducted in accordance with Section
7-5 382.055.
7-6 Sec. 382.05193. MULTIPLE PLANT PERMIT. (a) The commission
7-7 may issue a multiple plant permit for multiple plant sites that are
7-8 owned or operated by the same person or persons under common
7-9 control if the commission finds that:
7-10 (1) the aggregate rate of emission of air contaminants
7-11 to be authorized under the permit does not exceed the total of:
7-12 (A) for previously permitted facilities, the
7-13 rates authorized in the existing permits; and
7-14 (B) for existing unpermitted facilities not
7-15 subject to the requirement to obtain a preconstruction
7-16 authorization under Section 382.0518(g) or for facilities
7-17 authorized under Section 382.0519, the rates that would be
7-18 authorized under Section 382.0519; and
7-19 (2) there is no indication that the emissions from the
7-20 facilities will contravene the intent of this chapter, including
7-21 protection of the public's health and physical property.
7-22 (b) A permit issued under this section shall not authorize
7-23 emissions from any of the facilities authorized under the permit
7-24 that exceed that facility's highest historic annual rate or the
7-25 levels authorized in the facility's most recent permit. In the
7-26 absence of records extending back to the original construction of
8-1 the facility, best engineering judgment shall be used to
8-2 demonstrate the facility's highest historic annual rate to the
8-3 commission.
8-4 (c) Emissions control equipment previously installed at a
8-5 facility permitted under this section may not be removed or
8-6 disabled unless the action is undertaken to maintain or upgrade the
8-7 control equipment or to otherwise reduce the impact of emissions
8-8 authorized by the commission.
8-9 (d) The commission shall publish notice of a proposed
8-10 multiple plant permit for existing facilities in the Texas Register
8-11 and in one or more statewide or regional newspapers, designated by
8-12 the commission by rule, that will, in the commission's judgment,
8-13 provide reasonable notice throughout the state. If the multiple
8-14 plant permit for existing facilities will be effective for only
8-15 part of the state, the notice shall be published in a newspaper of
8-16 general circulation in the area to be affected. The commission may
8-17 by rule require additional notice to be given. The notice must
8-18 include an invitation for written comments by the public to the
8-19 commission regarding the proposed multiple plant permit and shall
8-20 be published not later than the 30th day before the commission
8-21 issues the multiple plant permit.
8-22 (e) For existing facilities, the commission shall hold a
8-23 public meeting to provide an additional opportunity for public
8-24 comment. The commission shall give notice of a public meeting
8-25 under this subsection as part of the notice described in Subsection
8-26 (d) not later than the 30th day before the date of the meeting.
9-1 (f) If the commission receives public comment relating to
9-2 issuance of a multiple plant permit for existing facilities, the
9-3 commission shall issue a written response to comments on the permit
9-4 at the same time that the commission issues or denies the permit.
9-5 The response is available to the public and shall be mailed to each
9-6 person who made a comment.
9-7 (g) The commission shall establish by rule the procedures
9-8 for application and approval for the use of a multiple plant
9-9 permit.
9-10 (h) For a multiple plant permit that applies only to
9-11 existing facilities for which an application is filed prior to
9-12 September 1, 2001, the issuance, amendment, or revocation by the
9-13 commission of the permit is not subject to Chapter 2001, Government
9-14 Code.
9-15 (i) The commission may adopt rules as necessary to implement
9-16 and administer this section and may delegate to the executive
9-17 director under Section 382.061 the authority to issue, amend, or
9-18 revoke a multiple plant permit.
9-19 Sec. 382.05194. STANDARD PERMIT. (a) The commission may
9-20 issue a standard permit for new or existing similar facilities if
9-21 the commission finds that:
9-22 (1) the standard permit can be enforceable;
9-23 (2) the commission can adequately monitor compliance
9-24 with the terms of the standard permit; and
9-25 (3) for permit applications for facilities subject to
9-26 Section 382.0518(a)-(d) filed prior to September 1, 2001, the
10-1 facilities will use control technology at least as effective as
10-2 that described in Section 382.0518(b). For permit applications
10-3 filed after August 31, 2001, all facilities permitted under this
10-4 section will use control technology at least as effective as that
10-5 described in Section 382.0518(b).
10-6 (b) The commission shall publish notice of a proposed
10-7 standard permit in the Texas Register and in one or more statewide
10-8 or regional newspapers, designated by the commission by rule, that
10-9 will, in the commission's judgment, provide reasonable notice
10-10 throughout the state. If the standard permit will be effective for
10-11 only part of the state, the notice shall be published in a
10-12 newspaper of general circulation in the area to be affected. The
10-13 commission may by rule require additional notice to be given. The
10-14 notice must include an invitation for written comments by the
10-15 public to the commission regarding the proposed standard permit and
10-16 shall be published not later than the 30th day before the
10-17 commission issues the standard permit.
10-18 (c) The commission shall hold a public meeting to provide an
10-19 additional opportunity for public comment. The commission shall
10-20 give notice of a public meeting under this subsection as part of
10-21 the notice described in Subsection (b) not later than the 30th day
10-22 before the date of the meeting.
10-23 (d) If the commission receives public comment relating to
10-24 issuance of a standard permit, the commission shall issue a written
10-25 response to comments on the permit at the same time that the
10-26 commission issues or denies the permit. The response is available
11-1 to the public and shall be mailed to each person who made a
11-2 comment.
11-3 (e) The commission shall establish by rule the procedures
11-4 for application and approval for the use of a standard permit.
11-5 (f) The issuance, amendment, or revocation of a standard
11-6 permit by the commission is not subject to Chapter 2001, Government
11-7 Code.
11-8 (g) The commission may adopt rules as necessary to implement
11-9 and administer this section and may delegate to the executive
11-10 director under Section 382.061 the authority to issue, amend, or
11-11 revoke a standard permit.
11-12 Sec. 382.05195. PERMITS BY RULE. (a) Consistent with
11-13 Section 382.051, the commission may adopt permits by rule for
11-14 certain types of facilities if it is found on investigation that
11-15 such types of facilities will not make a significant contribution
11-16 of air contaminants to the atmosphere. The commission may not
11-17 adopt a permit by rule authorizing any facility defined as a "major
11-18 source" under the federal Clean Air Act (42 U.S.C. Section 7401 et
11-19 seq.) or regulations adopted under that Act. Nothing in this
11-20 subsection shall be construed to limit the commission's general
11-21 power to control the state's air quality under Section 382.011(a).
11-22 (b) The commission shall adopt rules specifically defining
11-23 the terms and conditions for a permit by rule under this section.
11-24 SECTION 6. Subsection (a), Section 382.057, Health and
11-25 Safety Code, is amended to read as follows:
11-26 (a) Consistent with Section 382.0511, the commission by rule
12-1 may exempt from the requirements of Section 382.0518 changes within
12-2 any facility [and certain types of facilities] if it is found on
12-3 investigation that such changes [or types of facilities] will not
12-4 make a significant contribution of air contaminants to the
12-5 atmosphere. The commission by rule shall exempt from the
12-6 requirements of Section 382.0518 or issue a standard permit for the
12-7 installation of emission control equipment that constitutes a
12-8 modification or a new facility, subject to such conditions
12-9 restricting the applicability of such exemption or standard permit
12-10 that the commission deems necessary to accomplish the intent of
12-11 this chapter. The commission may not exempt [any facility or] any
12-12 modification of an existing facility defined as "major" under the
12-13 federal Clean Air Act or regulations adopted under that Act.
12-14 Nothing in this subsection shall be construed to limit the
12-15 commission's general power to control the state's air quality under
12-16 Section 382.011(a).
12-17 SECTION 7. Section 382.058, Health and Safety Code, is
12-18 amended to read as follows:
12-19 Sec. 382.058. PROVISIONS RELATING TO [LIMITATION ON]
12-20 COMMISSION PERMITS BY RULE OR STANDARD PERMITS [EXEMPTION] FOR
12-21 CONSTRUCTION OF CERTAIN CONCRETE PLANTS. (a) A person may not
12-22 begin construction on any concrete plant that performs wet
12-23 batching, dry batching, or central mixing under a standard permit
12-24 under Section 382.05194 or a permit by rule [an exemption] adopted
12-25 by the commission under Section 382.05195 [382.057] unless the
12-26 person has complied with the notice and opportunity for hearing
13-1 provisions under Section 382.056.
13-2 (b) This section does not apply to a concrete plant located
13-3 temporarily in the right-of-way, or contiguous to the right-of-way,
13-4 of a public works project.
13-5 (c) For purposes of this section, only those persons
13-6 actually residing in a permanent residence within 440 yards of the
13-7 proposed plant may request a hearing under Section 382.056(d) as a
13-8 person who may be affected.
13-9 SECTION 8. Subsection (b), Section 382.062, Health and
13-10 Safety Code, is amended to read as follows:
13-11 (b) The commission may adopt rules relating to charging and
13-12 collecting a fee for an exemption, for [from] a permit, for a
13-13 permit by rule, for a voluntary emission reduction permit, for a
13-14 multiple plant permit, or for a standard permit [authorized by
13-15 commission rule] and for a variance.
13-16 SECTION 9. The Texas Natural Resource Conservation
13-17 Commission shall adopt, as soon as practicable after the effective
13-18 date of this Act, any rules necessary to implement the changes in
13-19 law made by this Act.
13-20 SECTION 10. Not later than January 15, 2001, the Texas
13-21 Natural Resource Conservation Commission shall prepare and
13-22 distribute to the governor, the lieutenant governor, the speaker of
13-23 the house of representatives, the chairman of the Senate Committee
13-24 on Natural Resources, and the chairman of the House Committee on
13-25 Environmental Regulation a report on the number of companies that
13-26 have obtained or applied for a permit under Section 382.0519,
14-1 Health and Safety Code, as added by this Act, and the reductions in
14-2 emissions anticipated to result from issuance of such permits.
14-3 SECTION 11. (a) The Texas Natural Resource Conservation
14-4 Commission may not initiate an enforcement action against a person
14-5 for the failure to obtain a preconstruction permit under Section
14-6 382.0518, Health and Safety Code, or a rule adopted or order issued
14-7 by the commission under that section, that is related to the
14-8 modification of a facility that may emit air contaminants if, on or
14-9 before August 31, 2001, the person files an application for a
14-10 permit for the facility under Section 382.0519, Health and Safety
14-11 Code, as added by this Act.
14-12 (b) This section does not apply to an act related to the
14-13 modification of a facility that occurs after March 1, 1999.
14-14 SECTION 12. The importance of this legislation and the
14-15 crowded condition of the calendars in both houses create an
14-16 emergency and an imperative public necessity that the
14-17 constitutional rule requiring bills to be read on three several
14-18 days in each house be suspended, and this rule is hereby suspended,
14-19 and that this Act take effect and be in force from and after its
14-20 passage, and it is so enacted.