By: Brown S.B. No. 766
99S0544/1
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 numerous
3-22 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 382.05181, or permit by rule under Section 382.05182 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 an exemption allowed
5-2 under Section 382.057.
5-3 SECTION 5. Subchapter C, Chapter 382, Health and Safety
5-4 Code, is amended by adding Sections 382.05181 and 382.05182 to read
5-5 as follows:
5-6 Sec. 382.05181. STANDARD PERMIT. (a) The commission may
5-7 issue a standard permit for similar facilities if the commission
5-8 finds that:
5-9 (1) the standard permit can be readily enforced;
5-10 (2) the commission can adequately monitor compliance
5-11 with the terms of the standard permit; and
5-12 (3) for facilities subject to Section 382.0518(a)-(d),
5-13 the facility will use control technology at least as effective as
5-14 that described in Section 382.0518(b).
5-15 (b) The commission shall publish notice of a proposed
5-16 standard permit in the Texas Register and in one or more statewide
5-17 or regional newspapers, designated by the commission by rule, that
5-18 will, in the commission's judgment, provide reasonable notice
5-19 throughout the state. If the standard permit will be effective for
5-20 only part of the state, the notice shall be published in a
5-21 newspaper of general circulation in the area to be affected. The
5-22 commission may by rule require additional notice to be given. The
5-23 notice must include an invitation for written comments by the
5-24 public to the commission regarding the proposed standard permit and
5-25 shall be published not later than the 30th day before the
5-26 commission issues the standard permit.
6-1 (c) The commission shall hold a public meeting to provide an
6-2 additional opportunity for public comment. The commission shall
6-3 give notice of a public meeting under this subsection as part of
6-4 the notice described in Subsection (b) not later than the 30th day
6-5 before the date of the meeting.
6-6 (d) If the commission receives public comment relating to
6-7 issuance of a standard permit, the commission shall issue a written
6-8 response to comments on the permit at the same time that the
6-9 commission issues or denies the permit. The response is available
6-10 to the public and shall be mailed to each person who made a
6-11 comment.
6-12 (e) The commission shall establish, by rule, the procedures
6-13 for application and approval for the use of a standard permit.
6-14 (f) The issuance, amendment, or revocation of a standard
6-15 permit by the commission is not subject to Chapter 2001, Government
6-16 Code.
6-17 (g) The commission may adopt rules as necessary to implement
6-18 and administer this section and may delegate to the executive
6-19 director under Section 382.061 the authority to issue, amend, or
6-20 revoke a standard permit.
6-21 Sec. 382.05182. PERMITS BY RULE. (a) Consistent with
6-22 Section 382.051, the commission may adopt permits by rule for
6-23 certain types of facilities if it is found on investigation that
6-24 such types of facilities will not make a significant contribution
6-25 of air contaminants to the atmosphere. The commission may not
6-26 adopt a permit by rule authorizing any facility defined as "major"
7-1 under the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) or
7-2 regulations adopted under that Act. Nothing in this subsection
7-3 shall be construed to limit the commission's general power to
7-4 control the state's air quality under Section 382.011(a).
7-5 (b) The commission shall adopt rules specifically defining
7-6 the terms and conditions for a permit by rule under this section in
7-7 a nonattainment area as defined by Title I of the federal Clean Air
7-8 Act (42 U.S.C. Section 7401 et seq.).
7-9 SECTION 6. Subchapter C, Chapter 382, Health and Safety
7-10 Code, is amended by adding Sections 382.0519, 382.05191, 382.05192,
7-11 and 382.05193 to read as follows:
7-12 Sec. 382.0519. VOLUNTARY EMISSION REDUCTION PERMIT.
7-13 (a) Prior to September 1, 2001, the owner or operator of an
7-14 existing, unpermitted facility not subject to the requirement to
7-15 obtain a permit under Section 382.0518(g) may apply for a permit to
7-16 operate that facility under this section.
7-17 (b) The commission shall grant within a reasonable time a
7-18 permit under this section if, from the information available to the
7-19 commission, including information presented at any public hearing
7-20 or through written comment, the commission finds that the facility
7-21 will use an air pollution control method at least as beneficial as
7-22 that described in Section 382.003(9)(E)(ii), considering the age
7-23 and remaining useful life of the facility.
7-24 (c) If the commission finds that the emissions from the
7-25 facility will contravene the standards under Subsection (b), or
7-26 that there is an indication that the emissions from the facility
8-1 will contravene the intent of this chapter, including protection of
8-2 the public's health and physical property, the commission may not
8-3 grant the permit under this section.
8-4 (d) Before work is begun on the modification of a facility
8-5 previously permitted under this section, the person planning the
8-6 modification must comply with Section 382.0518.
8-7 Sec. 382.05191. VOLUNTARY EMISSION REDUCTION PERMIT: NOTICE
8-8 AND HEARING. (a) An applicant for a permit under Section 382.0519
8-9 shall publish notice of intent to obtain the permit in accordance
8-10 with Section 382.056.
8-11 (b) The commission may authorize an applicant for a permit
8-12 for a facility which constitutes or is part of a small business
8-13 stationary source as defined in Section 382.0365(g)(2) to provide
8-14 notice using an alternative means if the commission finds that the
8-15 proposed method will result in equal or better communication with
8-16 the public, considering the effectiveness of the notice in reaching
8-17 potentially affected persons, cost, and consistency with federal
8-18 requirements.
8-19 (c) The commission shall afford an opportunity for a public
8-20 hearing and the submission of public comment and send notice of a
8-21 decision on an application for a permit under Section 382.0519 in
8-22 the same manner as provided by Sections 382.0561 and 382.0562.
8-23 (d) A person affected by a decision of the commission to
8-24 issue or deny a voluntary emission reduction permit may move for
8-25 rehearing and is entitled to judicial review under Section 382.032.
8-26 Sec. 382.05192. VOLUNTARY EMISSION REDUCTION PERMITS:
9-1 REVIEW AND RENEWAL. Review and renewal of permits issued under
9-2 Section 382.0519 shall be conducted in accordance with Section
9-3 382.055.
9-4 Sec. 382.05193. MULTIPLE PLANT PERMIT. (a) The commission
9-5 may issue a multiple plant permit for multiple existing facilities
9-6 owned or operated by the same person if the commission finds that:
9-7 (1) the aggregate rate of emission of air contaminants
9-8 to be authorized under the permit does not exceed:
9-9 (A) for previously permitted facilities, the
9-10 rate that would be authorized under Section 382.0518; or
9-11 (B) for existing unpermitted facilities not
9-12 subject to the requirement to obtain a preconstruction
9-13 authorization under Section 382.0518(g), the rate that would be
9-14 authorized under Section 382.0519; and
9-15 (2) there is no indication that the emissions from the
9-16 facilities will contravene the intent of this chapter, including
9-17 protection of the public's health and physical property.
9-18 (b) A permit issued under this section shall provide that
9-19 the emissions from any of the facilities authorized under the
9-20 permit shall not exceed that facility's highest historic annual
9-21 rate. In the absence of records extending back to the original
9-22 construction of the facility, best engineering judgment shall be
9-23 used to demonstrate the facility's highest historic annual rate to
9-24 the commission.
9-25 (c) Emissions control equipment previously installed at a
9-26 facility permitted under this section may not be removed or
10-1 disabled unless the action is undertaken to maintain or upgrade the
10-2 control equipment.
10-3 SECTION 7. Subsection (a), Section 382.057, Health and
10-4 Safety Code, is amended to read as follows:
10-5 (a) Consistent with Section 382.0511, the commission by rule
10-6 may exempt from the requirements of Section 382.0518 changes within
10-7 any facility [and certain types of facilities] if it is found on
10-8 investigation that such changes [or types of facilities] will not
10-9 make a significant contribution of air contaminants to the
10-10 atmosphere. The commission by rule shall exempt from the
10-11 requirements of Section 382.0518 or issue a standard permit for the
10-12 installation of emission control equipment that constitutes a
10-13 modification or a new facility, subject to such conditions
10-14 restricting the applicability of such exemption or standard permit
10-15 that the commission deems necessary to accomplish the intent of
10-16 this chapter. The commission may not exempt [any facility or] any
10-17 modification of an existing facility defined as "major" under the
10-18 federal Clean Air Act or regulations adopted under that Act.
10-19 Nothing in this subsection shall be construed to limit the
10-20 commission's general power to control the state's air quality under
10-21 Section 382.011(a).
10-22 SECTION 8. Section 382.058, Health and Safety Code, is
10-23 amended to read as follows:
10-24 Sec. 382.058. LIMITATION ON COMMISSION PERMITS BY RULE OR
10-25 STANDARD PERMITS [EXEMPTION] FOR CONSTRUCTION OF CERTAIN CONCRETE
10-26 PLANTS. (a) A person may not begin construction on any concrete
11-1 plant that performs wet batching, dry batching, or central mixing
11-2 under a standard permit under Section 382.05181 or a permit by rule
11-3 [an exemption] adopted by the commission under Section 382.05182
11-4 [382.057] unless the person has complied with the notice and
11-5 opportunity for hearing provisions under Section 382.056.
11-6 (b) This section does not apply to a concrete plant located
11-7 temporarily in the right-of-way, or contiguous to the right-of-way,
11-8 of a public works project.
11-9 (c) For purposes of this section, only those persons
11-10 actually residing in a permanent residence within 440 yards of the
11-11 proposed plant may request a hearing under Section 382.056(d) as a
11-12 person who may be affected.
11-13 SECTION 9. Subsection (b), Section 382.062, Health and
11-14 Safety Code, is amended to read as follows:
11-15 (b) The commission may adopt rules relating to charging and
11-16 collecting a fee for an exemption, for [from] a permit by rule, or
11-17 for a standard permit [authorized by commission rule] and for a
11-18 variance.
11-19 SECTION 10. The Texas Natural Resource Conservation
11-20 Commission shall adopt, as soon as practicable after the effective
11-21 date of this Act, any rules necessary to implement the changes in
11-22 law made by this Act.
11-23 SECTION 11. Not later than January 15, 2001, the Texas
11-24 Natural Resource Conservation Commission shall prepare and
11-25 distribute to the governor, the lieutenant governor, the speaker of
11-26 the house of representatives, the chairman of the Senate Committee
12-1 on Natural Resources, and the chairman of the House Committee on
12-2 Environmental Regulation a report on the number of companies that
12-3 have obtained or applied for a permit under Section 382.0519,
12-4 Health and Safety Code, as added by this Act, and the reductions in
12-5 emissions anticipated to result from issuance of such permits.
12-6 SECTION 12. The importance of this legislation and the
12-7 crowded condition of the calendars in both houses create an
12-8 emergency and an imperative public necessity that the
12-9 constitutional rule requiring bills to be read on three several
12-10 days in each house be suspended, and this rule is hereby suspended,
12-11 and that this Act take effect and be in force from and after its
12-12 passage, and it is so enacted.