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.