76R11946 JJT-F
By Brown S.B. No. 766
Substitute the following for S.B. No. 766:
By Howard C.S.S.B. No. 766
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 board required or would have required for
2-16 a facility of the same class or type as a condition of issuing a
2-17 permit or permit amendment 120 months before the change will occur;
2-18 (F) a physical change in, or change in the
2-19 method of operation of, a facility where the change is within the
2-20 scope of a flexible permit or a multiple plant permit; or
2-21 (G) a change in the method of operation of a
2-22 natural gas processing, treating, or compression facility connected
2-23 to or part of a natural gas gathering or transmission pipeline
2-24 which does not result in an annual emission rate of a pollutant in
2-25 excess of the volume emitted at the maximum designed capacity,
2-26 provided that the facility is one for which:
2-27 (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. Sections 382.051(a) and (b), Health and Safety
3-9 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 under a voluntary
3-14 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
3-27 located at the same site;
4-1 (6) a multiple plant permit for existing facilities at
4-2 multiple locations subject to Section 382.0518 or 382.0519; or
4-3 (7) [(5)] other permits as necessary.
4-4 SECTION 3. Subchapter C, Chapter 382, Health and Safety
4-5 Code, is amended by adding Section 382.05101 to read as follows:
4-6 Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The commission
4-7 may develop by rule the criteria to establish a de minimis level of
4-8 air contaminants for facilities or groups of facilities below which
4-9 a permit under Section 382.0518 or 382.0519, a standard permit
4-10 under Section 382.05195, or a permit by rule under Section
4-11 382.05196 is not required.
4-12 SECTION 4. Sections 382.0511(a) and (c), Health and Safety
4-13 Code, are amended to read as follows:
4-14 (a) The commission may consolidate into a single permit[:]
4-15 [(1)] any permits, special permits, standard permits,
4-16 permits by rule, or exemptions for a facility or federal source
4-17 [issued by the commission before December 1, 1991; or]
4-18 [(2) any permit issued by the commission on or after
4-19 December 1, 1991, with any permits, special permits, or exemptions
4-20 issued or qualified for by that date].
4-21 (c) The commission [by rule] may authorize changes in a
4-22 federal source to proceed before the owner or operator obtains a
4-23 federal operating permit or revisions to a federal operating permit
4-24 if the changes are de minimis under Section 382.05101 or the owner
4-25 or operator has obtained a preconstruction permit or permit
4-26 amendment required by Section 382.0518 or is operating under a
4-27 standard permit under Section 382.05195, a permit by rule under
5-1 Section 382.05196, or an exemption allowed under Section 382.057.
5-2 SECTION 5. Subchapter C, Chapter 382, Health and Safety
5-3 Code, is amended by adding Sections 382.0519 and
5-4 382.05191-382.05196 to read as follows:
5-5 Sec. 382.0519. VOLUNTARY EMISSIONS REDUCTION PERMIT. (a)
5-6 Before September 1, 2001, the owner or operator of an existing,
5-7 unpermitted facility not subject to the requirement to obtain a
5-8 permit under Section 382.0518(g) may apply for a permit to operate
5-9 that facility under this section.
5-10 (b) The commission shall grant within a reasonable time a
5-11 permit under this section if, from the information available to the
5-12 commission, including information presented at any public hearing
5-13 or through written comment, the commission finds that the facility
5-14 will use an air pollution control method at least as beneficial as
5-15 that described in Section 382.003(9)(E)(ii), considering the age
5-16 and remaining useful life of the facility.
5-17 (c) If the commission finds that the emissions from the
5-18 facility will contravene the standards under Subsection (b) or the
5-19 intent of this chapter, including protection of the public's health
5-20 and physical property, the commission may not grant the permit
5-21 under this section.
5-22 (d) A person planning the modification of a facility
5-23 previously permitted under this section must comply with Section
5-24 382.0518 before work is begun on the construction of the
5-25 modification.
5-26 (e) A permit issued by the commission under this section may
5-27 defer the implementation of the requirement of reductions in the
6-1 emissions of certain air contaminants only if the applicant will
6-2 make substantial emissions reductions in other specific air
6-3 contaminants. The deferral shall be based on a prioritization of
6-4 air contaminants by the commission as necessary to meet local,
6-5 regional, and statewide air quality needs.
6-6 Sec. 382.05191. VOLUNTARY EMISSIONS REDUCTION PERMIT:
6-7 NOTICE AND HEARING. (a) An applicant for a permit under Section
6-8 382.0519 shall publish notice of intent to obtain the permit in
6-9 accordance with Section 382.056.
6-10 (b) The commission may authorize an applicant for a permit
6-11 for a facility that constitutes or is part of a small business
6-12 stationary source as defined in Section 382.0365(g)(2) to provide
6-13 notice using an alternative means if the commission finds that the
6-14 proposed method will result in equal or better communication with
6-15 the public, considering the effectiveness of the notice in reaching
6-16 potentially affected persons, cost, and consistency with federal
6-17 requirements.
6-18 (c) The commission shall provide an opportunity for a public
6-19 hearing and the submission of public comment and send notice of a
6-20 decision on an application for a permit under Section 382.0519 in
6-21 the same manner as provided by Sections 382.0561 and 382.0562.
6-22 (d) A person affected by a decision of the commission to
6-23 issue or deny a voluntary emissions reduction permit may move for
6-24 rehearing and is entitled to judicial review under Section 382.032.
6-25 Sec. 382.05192. VOLUNTARY EMISSIONS REDUCTION PERMITS:
6-26 REVIEW AND RENEWAL. Review and renewal of permits issued under
6-27 Section 382.0519 shall be conducted in accordance with Section
7-1 382.055.
7-2 Sec. 382.05193. EMISSIONS PERMITS THROUGH ENVIRONMENTAL
7-3 MITIGATION PROJECT. (a) The commission may issue a permit under
7-4 Section 382.0519 for a facility:
7-5 (1) that makes a good faith effort to make equipment
7-6 improvements and emissions reductions necessary to meet the
7-7 requirements of that section;
7-8 (2) that, in spite of the effort, cannot reduce the
7-9 facility's emissions to the degree necessary for the issuance of
7-10 the permit; and
7-11 (3) the owner or operator of which acquires a
7-12 sufficient number of emissions reduction credits to offset the
7-13 facility's excessive emissions under the program established under
7-14 Subsection (b).
7-15 (b) The commission by rule shall establish a program to
7-16 grant emissions reduction credits to a facility if the owner or
7-17 operator conducts a special environmental project to offset the
7-18 facility's excessive emissions. The rules must establish two
7-19 categories of projects eligible for credits under the program,
7-20 including:
7-21 (1) emissions reduction projects; and
7-22 (2) environmental protection projects.
7-23 (c) A project included in the emissions reduction projects
7-24 category must reduce net emissions from one or more sources in this
7-25 state in an amount and type sufficient to prevent air pollution to
7-26 a degree comparable to the amount of the reduction in the
7-27 facility's emissions that would be necessary to meet the permit
8-1 requirement. The emissions reduction projects category must
8-2 include:
8-3 (1) generation of electric energy by a low-emission
8-4 method, including:
8-5 (A) wind power;
8-6 (B) biomass gasification power; and
8-7 (C) solar power;
8-8 (2) the purchase and destruction of high-emission
8-9 automobiles or other mobile sources;
8-10 (3) the reduction of emissions from a permitted
8-11 facility that emits air contaminants to a level significantly below
8-12 the levels necessary to comply with the facility's permit;
8-13 (4) a carpooling or alternative transportation program
8-14 for the owner's or operator's employees;
8-15 (5) a telecommuting program for the owner's or
8-16 operator's employees; and
8-17 (6) conversion of a motor vehicle fleet operated by
8-18 the owner or operator to a low-sulphur fuel or an alternative fuel
8-19 approved by the commission.
8-20 (d) A project included in the environmental protection
8-21 projects category must benefit, preserve, or protect environmental
8-22 quality in this state to a degree that the value of the project to
8-23 the status of the state's environment is comparable to the value to
8-24 the environment of reducing the facility's emissions to the extent
8-25 necessary to meet the permit requirements. The environmental
8-26 protection projects category must include:
8-27 (1) the creation of a wildlife or plant preserve;
9-1 (2) the creation of an environmental easement;
9-2 (3) surface water, groundwater, or soil pollution
9-3 prevention or remediation; and
9-4 (4) wetlands enhancement, remediation, or
9-5 preservation.
9-6 (e) A permit issued under Section 382.0519 for a facility
9-7 participating in the program established under this section must be
9-8 conditioned on the successful and timely completion of the project
9-9 or projects for which the facility owner or operator acquires the
9-10 credits.
9-11 (f) To renew the permit of a facility permitted under
9-12 Section 382.0519 with credits acquired under the program
9-13 established under this section, the commission shall require the
9-14 owner or operator of the facility to have:
9-15 (1) made equipment improvements and emissions
9-16 reductions necessary to meet the permit requirements under that
9-17 section for a new permit; or
9-18 (2) acquired additional credits under the program as
9-19 necessary to meet the permit requirements under that section for a
9-20 new permit.
9-21 (g) Emissions reduction credits acquired under the program
9-22 established under this section are not transferrable.
9-23 Sec. 382.05194. MULTIPLE PLANT PERMIT. (a) The commission
9-24 may issue a multiple plant permit for multiple plant sites that are
9-25 owned or operated by the same person or persons under common
9-26 control if the commission finds that:
9-27 (1) the aggregate rate of emission of air contaminants
10-1 to be authorized under the permit does not exceed the total of:
10-2 (A) for previously permitted facilities, the
10-3 rates authorized in the existing permits; and
10-4 (B) for existing unpermitted facilities not
10-5 subject to the requirement to obtain a preconstruction
10-6 authorization under Section 382.0518(g) or for facilities
10-7 authorized under Section 382.0519, the rates that would be
10-8 authorized under Section 382.0519; and
10-9 (2) there is no indication that the emissions from the
10-10 facilities will contravene the intent of this chapter, including
10-11 protection of the public's health and physical property.
10-12 (b) A permit issued under this section may not authorize
10-13 emissions from any of the facilities authorized under the permit
10-14 that exceed the facility's highest historic annual rate or the
10-15 levels authorized in the facility's most recent permit. In the
10-16 absence of records extending back to the original construction of
10-17 the facility, best engineering judgment shall be used to
10-18 demonstrate the facility's highest historic annual rate to the
10-19 commission.
10-20 (c) Emissions control equipment previously installed at a
10-21 facility permitted under this section may not be removed or
10-22 disabled unless the action is undertaken to maintain or upgrade the
10-23 control equipment or to otherwise reduce the impact of emissions
10-24 authorized by the commission.
10-25 (d) The commission shall publish notice of a proposed
10-26 multiple plant permit for existing facilities in the Texas Register
10-27 and in one or more statewide or regional newspapers designated by
11-1 the commission by rule that will, in the commission's judgment,
11-2 provide reasonable notice throughout the state. If the multiple
11-3 plant permit for existing facilities will be effective for only
11-4 part of the state, the notice shall be published in a newspaper of
11-5 general circulation in the area to be affected. The commission by
11-6 rule may require additional notice to be given. The notice must
11-7 include an invitation for written comments by the public to the
11-8 commission regarding the proposed multiple plant permit and must be
11-9 published not later than the 30th day before the date the
11-10 commission issues the multiple plant permit.
11-11 (e) For existing facilities, the commission shall hold a
11-12 public meeting to provide an additional opportunity for public
11-13 comment. The commission shall give notice of a public meeting
11-14 under this subsection as part of the notice described in Subsection
11-15 (d) not later than the 30th day before the date of the meeting.
11-16 (f) If the commission receives public comment related to the
11-17 issuance of a multiple plant permit for existing facilities, the
11-18 commission shall issue a written response to the comments at the
11-19 same time the commission issues or denies the permit. The response
11-20 must be made available to the public, and the commission shall mail
11-21 the response to each person who made a comment.
11-22 (g) The commission by rule shall establish the procedures
11-23 for application and approval for the use of a multiple plant
11-24 permit.
11-25 (h) For a multiple plant permit that applies only to
11-26 existing facilities for which an application is filed before
11-27 September 1, 2001, the issuance, amendment, or revocation by the
12-1 commission of the permit is not subject to Chapter 2001, Government
12-2 Code.
12-3 (i) The commission may adopt rules as necessary to implement
12-4 and administer this section and may delegate to the executive
12-5 director under Section 382.061 the authority to issue, amend, or
12-6 revoke a multiple plant permit.
12-7 Sec. 382.05195. STANDARD PERMIT. (a) The commission may
12-8 issue a standard permit for new or existing similar facilities if
12-9 the commission finds that:
12-10 (1) the standard permit can be enforceable;
12-11 (2) the commission can adequately monitor compliance
12-12 with the terms of the standard permit; and
12-13 (3) for permit applications for facilities subject to
12-14 Sections 382.0518(a)-(d) filed before September 1, 2001, the
12-15 facilities will use control technology at least as effective as
12-16 that described in Section 382.0518(b). For permit applications
12-17 filed after August 31, 2001, all facilities permitted under this
12-18 section will use control technology at least as effective as that
12-19 described in Section 382.0518(b).
12-20 (b) The commission shall publish notice of a proposed
12-21 standard permit in the Texas Register and in one or more statewide
12-22 or regional newspapers designated by the commission by rule that
12-23 will, in the commission's judgment, provide reasonable notice
12-24 throughout the state. If the standard permit will be effective for
12-25 only part of the state, the notice shall be published in a
12-26 newspaper of general circulation in the area to be affected. The
12-27 commission by rule may require additional notice to be given. The
13-1 notice must include an invitation for written comments by the
13-2 public to the commission regarding the proposed standard permit and
13-3 must be published not later than the 30th day before the date the
13-4 commission issues the standard permit.
13-5 (c) The commission shall hold a public meeting to provide an
13-6 additional opportunity for public comment. The commission shall
13-7 give notice of a public meeting under this subsection as part of
13-8 the notice described in Subsection (b) not later than the 30th day
13-9 before the date of the meeting.
13-10 (d) If the commission receives public comment related to the
13-11 issuance of a standard permit, the commission shall issue a written
13-12 response to the comments at the same time the commission issues or
13-13 denies the permit. The response must be made available to the
13-14 public, and the commission shall mail the response to each person
13-15 who made a comment.
13-16 (e) The commission by rule shall establish the procedures
13-17 for application and approval for the use of a standard permit.
13-18 (f) The issuance, amendment, or revocation of a standard
13-19 permit by the commission is not subject to Chapter 2001, Government
13-20 Code.
13-21 (g) The commission may adopt rules as necessary to implement
13-22 and administer this section and may delegate to the executive
13-23 director under Section 382.061 the authority to issue, amend, or
13-24 revoke a standard permit.
13-25 Sec. 382.05196. PERMITS BY RULE. (a) Consistent with
13-26 Section 382.051, the commission may adopt permits by rule for
13-27 certain types of facilities if it is found on investigation that
14-1 the types of facilities will not make a significant contribution of
14-2 air contaminants to the atmosphere. The commission may not adopt a
14-3 permit by rule authorizing any facility defined as a "major source"
14-4 under the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) or
14-5 regulations adopted under that Act. Nothing in this subsection
14-6 shall be construed to limit the commission's general power to
14-7 control the state's air quality under Section 382.011(a).
14-8 (b) The commission by rule shall specifically define the
14-9 terms and conditions for a permit by rule under this section.
14-10 SECTION 6. Section 382.057(a), Health and Safety Code, is
14-11 amended to read as follows:
14-12 (a) Consistent with Section 382.0511, the commission by rule
14-13 may exempt from the requirements of Section 382.0518 changes within
14-14 any facility [and certain types of facilities] if it is found on
14-15 investigation that such changes [or types of facilities] will not
14-16 make a significant contribution of air contaminants to the
14-17 atmosphere. The commission by rule shall exempt from the
14-18 requirements of Section 382.0518 or issue a standard permit for the
14-19 installation of emission control equipment that constitutes a
14-20 modification or a new facility, subject to such conditions
14-21 restricting the applicability of such exemption or standard permit
14-22 that the commission deems necessary to accomplish the intent of
14-23 this chapter. The commission may not exempt [any facility or] any
14-24 modification of an existing facility defined as "major" under the
14-25 federal Clean Air Act or regulations adopted under that Act.
14-26 Nothing in this subsection shall be construed to limit the
14-27 commission's general power to control the state's air quality under
15-1 Section 382.011(a).
15-2 SECTION 7. Section 382.058, Health and Safety Code, is
15-3 amended to read as follows:
15-4 Sec. 382.058. PERMITS BY RULE OR STANDARD PERMITS
15-5 [LIMITATION ON COMMISSION EXEMPTION] FOR CONSTRUCTION OF CERTAIN
15-6 CONCRETE PLANTS. (a) A person may not begin construction on any
15-7 concrete plant that performs wet batching, dry batching, or central
15-8 mixing under a standard permit under Section 382.05195 or a permit
15-9 by rule [an exemption] adopted by the commission under Section
15-10 382.05196 [382.057] unless the person has complied with the notice
15-11 and opportunity for hearing provisions under Section 382.056.
15-12 (b) This section does not apply to a concrete plant located
15-13 temporarily in the right-of-way, or contiguous to the right-of-way,
15-14 of a public works project.
15-15 (c) For purposes of this section, only those persons
15-16 actually residing in a permanent residence within 440 yards of the
15-17 proposed plant may request a hearing under Section 382.056(d) as a
15-18 person who may be affected.
15-19 SECTION 8. Section 382.062(b), Health and Safety Code, is
15-20 amended to read as follows:
15-21 (b) The commission may adopt rules relating to charging and
15-22 collecting a fee for an exemption, for [from] a permit, for a
15-23 permit by rule, for a voluntary emissions reduction permit, for a
15-24 multiple plant permit, or for a standard permit [authorized by
15-25 commission rule] and for a variance.
15-26 SECTION 9. The Texas Natural Resource Conservation
15-27 Commission shall adopt, as soon as practicable after the effective
16-1 date of this Act, any rules necessary to implement the changes in
16-2 law made by this Act.
16-3 SECTION 10. Not later than January 15, 2001, the Texas
16-4 Natural Resource Conservation Commission shall prepare and
16-5 distribute to the governor, the lieutenant governor, the speaker of
16-6 the house of representatives, the chair of the Senate Committee on
16-7 Natural Resources, and the chair of the House Committee on
16-8 Environmental Regulation a report on the number of companies that
16-9 have obtained or applied for a permit under Section 382.0519,
16-10 Health and Safety Code, as added by this Act, and the reductions in
16-11 emissions anticipated to result from issuance of such permits.
16-12 SECTION 11. (a) The Texas Natural Resource Conservation
16-13 Commission may not initiate an enforcement action against a person
16-14 for the failure to obtain a preconstruction permit under Section
16-15 382.0518, Health and Safety Code, or a rule adopted or order issued
16-16 by the commission under that section, that is related to the
16-17 modification of a facility that may emit air contaminants if, on or
16-18 before August 31, 2001, the person files an application for a
16-19 permit for the facility under Section 382.0519, Health and Safety
16-20 Code, as added by this Act.
16-21 (b) This section does not apply to an act related to the
16-22 modification of a facility that occurs after March 1, 1999.
16-23 SECTION 12. The importance of this legislation and the
16-24 crowded condition of the calendars in both houses create an
16-25 emergency and an imperative public necessity that the
16-26 constitutional rule requiring bills to be read on three several
16-27 days in each house be suspended, and this rule is hereby suspended,
17-1 and that this Act take effect and be in force from and after its
17-2 passage, and it is so enacted.