1-1     By:  Brown                                             S.B. No. 766
 1-2           (In the Senate - Filed March 1, 1999; March 3, 1999, read
 1-3     first time and referred to Committee on Natural Resources;
 1-4     April 6, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 5, Nays 1; April 6, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 766                    By:  Brown
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the issuance of certain permits for the emission of air
1-11     contaminants.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Subdivision (9), Section 382.003, Health and
1-14     Safety Code, is amended to read as follows:
1-15                 (9)  "Modification of existing facility" means any
1-16     physical change in, or change in the method of operation of, a
1-17     facility in a manner that increases the amount of any air
1-18     contaminant emitted by the facility into the atmosphere or that
1-19     results in the emission of any air contaminant not previously
1-20     emitted.  The term does not include:
1-21                       (A)  insignificant increases in the amount of any
1-22     air contaminant emitted that is authorized by one or more
1-23     commission exemptions;
1-24                       (B)  insignificant increases at a permitted
1-25     facility;
1-26                       (C)  maintenance or replacement of equipment
1-27     components that do not increase or tend to increase the amount or
1-28     change the characteristics of the air contaminants emitted into the
1-29     atmosphere;
1-30                       (D)  an increase in the annual hours of operation
1-31     unless the existing facility has received a preconstruction permit
1-32     or has been exempted, pursuant to Section 382.057, from
1-33     preconstruction permit requirements;
1-34                       (E)  a physical change in, or change in the
1-35     method of operation of, a facility that does not result in a net
1-36     increase in allowable emissions of any air contaminant and that
1-37     does not result in the emission of any air contaminant not
1-38     previously emitted, provided that the facility:
1-39                             (i)  has received a preconstruction permit
1-40     or permit amendment or has been exempted pursuant to Section
1-41     382.057 from preconstruction permit requirements no earlier than
1-42     120 months before the change will occur; or
1-43                             (ii)  uses, regardless of whether the
1-44     facility has received a permit, an air pollution control method
1-45     that is at least as effective as the best available control
1-46     technology, considering technical practicability and economic
1-47     reasonableness, that the board required or would have required for
1-48     a facility of the same class or type as a condition of issuing a
1-49     permit or permit amendment 120 months before the change will occur;
1-50                       (F)  a physical change in, or change in the
1-51     method of operation of, a facility where the change is within the
1-52     scope of a flexible permit or a multiple plant permit; or
1-53                       (G)  a change in the method of operation of a
1-54     natural gas processing, treating, or compression facility connected
1-55     to or part of a natural gas gathering or transmission pipeline
1-56     which does not result in an annual emission rate of a pollutant in
1-57     excess of the volume emitted at the maximum designed capacity,
1-58     provided that the facility is one for which:
1-59                             (i)  construction or operation started on
1-60     or before September 1, 1971, and at which either no modification
1-61     has occurred after September 1, 1971, or at which modifications
1-62     have occurred only pursuant to standard exemptions; or
1-63                             (ii)  construction started after September
1-64     1, 1971, and before March 1, 1972, and which registered in
 2-1     accordance with Section 382.060 as that section existed prior to
 2-2     September 1, 1991.
 2-3           SECTION 2.  Subsections (a) and (b), Section 382.051, Health
 2-4     and Safety Code, are amended to read as follows:
 2-5           (a)  The commission may issue a permit:
 2-6                 (1)  to construct a new facility or modify an existing
 2-7     facility that may emit air contaminants; [or]
 2-8                 (2)  to operate an existing facility pursuant to a
 2-9     voluntary emissions reduction permit; or
2-10                 (3)  to operate a federal source.
2-11           (b)  To assist in fulfilling its authorization provided by
2-12     Subsection (a), the commission may issue:
2-13                 (1)  special permits for certain facilities;
2-14                 (2)  a general permit [developed by rule] for numerous
2-15     similar sources subject to Section 382.054;
2-16                 (3)  a standard permit [developed by rule] for
2-17     [numerous] similar facilities [subject to Section 382.0518];
2-18                 (4)  a permit by rule for types of facilities that will
2-19     not significantly contribute air contaminants to the atmosphere;
2-20                 (5)  a single federal operating permit or
2-21     preconstruction permit for multiple federal sources or facilities
2-22     located at the same site;
2-23                 (6)  a multiple plant permit for existing facilities at
2-24     multiple locations subject to Section 382.0518 or 382.0519; or
2-25                 (7) [(5)]  other permits as necessary.
2-26           SECTION 3.  Subchapter C, Chapter 382, Health and Safety
2-27     Code, is amended by adding Section 382.05101 to read as follows:
2-28           Sec. 382.05101.  DE MINIMIS AIR CONTAMINANTS.  The commission
2-29     may develop by rule the criteria to establish a de minimis level of
2-30     air contaminants for facilities or groups of facilities below which
2-31     no permit under Section 382.0518 or 382.0519, standard permit under
2-32     Section 382.05194, or permit by rule under Section 382.05195 will
2-33     be required.
2-34           SECTION 4.  Subsections (a) and (c), Section 382.0511, Health
2-35     and Safety Code, are amended to read as follows:
2-36           (a)  The commission may consolidate into a single permit[:]
2-37                 [(1)]  any permits, special permits, standard permits,
2-38     permits by rule, or exemptions for a facility or federal source
2-39     [issued by the commission before December 1, 1991; or]
2-40                 [(2)  any permit issued by the commission on or after
2-41     December 1, 1991, with any permits, special permits, or exemptions
2-42     issued or qualified for by that date].
2-43           (c)  The commission [by rule] may authorize changes in a
2-44     federal source to proceed before the owner or operator obtains a
2-45     federal operating permit or revisions to a federal operating permit
2-46     if the changes are de minimis under Section 382.05101 or the owner
2-47     or operator has obtained a preconstruction permit or permit
2-48     amendment required by Section 382.0518 or is operating under a
2-49     standard permit under Section 382.05194, a permit by rule under
2-50     Section 382.05195, or an exemption allowed under Section 382.057.
2-51           SECTION 5.  Subchapter C, Chapter 382, Health and Safety
2-52     Code, is amended by adding Sections 382.0519, 382.05191, 382.05192,
2-53     382.05193, 382.05194, and 382.05195 to read as follows:
2-54           Sec. 382.0519.  VOLUNTARY EMISSION REDUCTION PERMIT.
2-55     (a)  Prior to September 1, 2001, the owner or operator of an
2-56     existing, unpermitted facility not subject to the requirement to
2-57     obtain a permit under Section 382.0518(g) may apply for a permit to
2-58     operate that facility under this section.
2-59           (b)  The commission shall grant within a reasonable time a
2-60     permit under this section if, from the information available to the
2-61     commission, including information presented at any public hearing
2-62     or through written comment, the commission finds that the facility
2-63     will use an air pollution control method at least as beneficial as
2-64     that described in Section 382.003(9)(E)(ii), considering the age
2-65     and remaining useful life of the facility.
2-66           (c)  If the commission finds that the emissions from the
2-67     facility will contravene the standards under Subsection (b) or the
2-68     intent of this chapter, including protection of the public's health
2-69     and physical property, the commission may not grant the permit
 3-1     under this section.
 3-2           (d)  A person planning the modification of a facility
 3-3     previously permitted under this section must comply with Section
 3-4     382.0518 prior to commencement of the construction of the
 3-5     modification.
 3-6           (e)  A permit issued by the commission under this section may
 3-7     defer the implementation of the requirement of reductions in the
 3-8     emissions of certain air contaminants provided that the applicant
 3-9     will make substantial emission reductions in other specific air
3-10     contaminants.  Such deferral shall be based upon a prioritization
3-11     of air contaminants by the commission as necessary to meet local,
3-12     regional, and statewide air quality needs.
3-13           Sec. 382.05191.  VOLUNTARY EMISSION REDUCTION PERMIT:  NOTICE
3-14     AND HEARING.  (a)  An applicant for a permit under Section 382.0519
3-15     shall publish notice of intent to obtain the permit in accordance
3-16     with Section 382.056.
3-17           (b)  The commission may authorize an applicant for a permit
3-18     for a facility which constitutes or is part of a small business
3-19     stationary source as defined in Section 382.0365(g)(2) to provide
3-20     notice using an alternative means if the commission finds that the
3-21     proposed method will result in equal or better communication with
3-22     the public, considering the effectiveness of the notice in reaching
3-23     potentially affected persons, cost, and consistency with federal
3-24     requirements.
3-25           (c)  The commission shall afford an opportunity for a public
3-26     hearing and the submission of public comment and send notice of a
3-27     decision on an application for a permit under Section 382.0519 in
3-28     the same manner as provided by Sections 382.0561 and 382.0562.
3-29           (d)  A person affected by a decision of the commission to
3-30     issue or deny a voluntary emission reduction permit may move for
3-31     rehearing and is entitled to judicial review under Section 382.032.
3-32           Sec. 382.05192.  VOLUNTARY EMISSION REDUCTION PERMITS:
3-33     REVIEW AND RENEWAL.  Review and renewal of permits issued under
3-34     Section 382.0519 shall be conducted in accordance with Section
3-35     382.055.
3-36           Sec. 382.05193.  MULTIPLE PLANT PERMIT.  (a)  The commission
3-37     may issue a multiple plant permit for multiple plant sites that are
3-38     owned or operated by the same person or persons under common
3-39     control if the commission finds that:
3-40                 (1)  the aggregate rate of emission of air contaminants
3-41     to be authorized under the permit does not exceed the total of:
3-42                       (A)  for previously permitted facilities, the
3-43     rates authorized in the existing permits; and
3-44                       (B)  for existing unpermitted facilities not
3-45     subject to the requirement to obtain a preconstruction
3-46     authorization under Section 382.0518(g) or for facilities
3-47     authorized under Section 382.0519, the rates that would be
3-48     authorized under Section 382.0519; and
3-49                 (2)  there is no indication that the emissions from the
3-50     facilities will contravene the intent of this chapter, including
3-51     protection of the public's health and physical property.
3-52           (b)  A permit issued under this section shall not authorize
3-53     emissions from any of the facilities authorized under the permit
3-54     that exceed that facility's highest historic annual rate or the
3-55     levels authorized in the facility's most recent permit.  In the
3-56     absence of records extending back to the original construction of
3-57     the facility, best engineering judgment shall be used to
3-58     demonstrate the facility's highest historic annual rate to the
3-59     commission.
3-60           (c)  Emissions control equipment previously installed at a
3-61     facility permitted under this section may not be removed or
3-62     disabled unless the action is undertaken to maintain or upgrade the
3-63     control equipment or to otherwise reduce the impact of emissions
3-64     authorized by the commission.
3-65           (d)  The commission shall publish notice of a proposed
3-66     multiple plant permit for existing facilities in the Texas Register
3-67     and in one or more statewide or regional newspapers, designated by
3-68     the commission by rule, that will, in the commission's judgment,
3-69     provide reasonable notice throughout the state.  If the multiple
 4-1     plant permit for existing facilities will be effective for only
 4-2     part of the state, the notice shall be published in a newspaper of
 4-3     general circulation in the area to be affected.  The commission may
 4-4     by rule require additional notice to be given.  The notice must
 4-5     include an invitation for written comments by the public to the
 4-6     commission regarding the proposed multiple plant permit and shall
 4-7     be published not later than the 30th day before the commission
 4-8     issues the multiple plant permit.
 4-9           (e)  For existing facilities, the commission shall hold a
4-10     public meeting to provide an additional opportunity for public
4-11     comment.  The commission shall give notice of a public meeting
4-12     under this subsection as part of the notice described in Subsection
4-13     (d) not later than the 30th day before the date of the meeting.
4-14           (f)  If the commission receives public comment relating to
4-15     issuance of a multiple plant permit for existing facilities, the
4-16     commission shall issue a written response to comments on the permit
4-17     at the same time that the commission issues or denies the permit.
4-18     The response is available to the public and shall be mailed to each
4-19     person who made a comment.
4-20           (g)  The commission shall establish by rule the procedures
4-21     for application and approval for the use of a multiple plant
4-22     permit.
4-23           (h)  For a multiple plant permit that applies only to
4-24     existing facilities for which an application is filed prior to
4-25     September 1, 2001, the issuance, amendment, or revocation by the
4-26     commission of the permit is not subject to Chapter 2001, Government
4-27     Code.
4-28           (i)  The commission may adopt rules as necessary to implement
4-29     and administer this section and may delegate to the executive
4-30     director under Section 382.061 the authority to issue, amend, or
4-31     revoke a multiple plant permit.
4-32           Sec. 382.05194.  STANDARD PERMIT.  (a)  The commission may
4-33     issue a standard permit for new or existing similar facilities if
4-34     the commission finds that:
4-35                 (1)  the standard permit can be enforceable;
4-36                 (2)  the commission can adequately monitor compliance
4-37     with the terms of the standard permit; and
4-38                 (3)  for permit applications for facilities subject to
4-39     Section 382.0518(a)-(d) filed prior to September 1, 2001, the
4-40     facilities will use control technology at least as effective as
4-41     that described in Section 382.0518(b).  For permit applications
4-42     filed after August 31, 2001, all facilities permitted under this
4-43     section will use control technology at least as effective as that
4-44     described in Section 382.0518(b).
4-45           (b)  The commission shall publish notice of a proposed
4-46     standard permit in the Texas Register and in one or more statewide
4-47     or regional newspapers, designated by the commission by rule, that
4-48     will, in the commission's judgment, provide reasonable notice
4-49     throughout the state.  If the standard permit will be effective for
4-50     only part of the state, the notice shall be published in a
4-51     newspaper of general circulation in the area to be affected.  The
4-52     commission may by rule require additional notice to be given.  The
4-53     notice must include an invitation for written comments by the
4-54     public to the commission regarding the proposed standard permit and
4-55     shall be published not later than the 30th day before the
4-56     commission issues the standard permit.
4-57           (c)  The commission shall hold a public meeting to provide an
4-58     additional opportunity for public comment.  The commission shall
4-59     give notice of a public meeting under this subsection as part of
4-60     the notice described in Subsection (b) not later than the 30th day
4-61     before the date of the meeting.
4-62           (d)  If the commission receives public comment relating to
4-63     issuance of a standard permit, the commission shall issue a written
4-64     response to comments on the permit at the same time that the
4-65     commission issues or denies the permit.  The response is available
4-66     to the public and shall be mailed to each person who made a
4-67     comment.
4-68           (e)  The commission shall establish by rule the procedures
4-69     for application and approval for the use of a standard permit.
 5-1           (f)  The issuance, amendment, or revocation of a standard
 5-2     permit by the commission is not subject to Chapter 2001, Government
 5-3     Code.
 5-4           (g)  The commission may adopt rules as necessary to implement
 5-5     and administer this section and may delegate to the executive
 5-6     director under Section 382.061 the authority to issue, amend, or
 5-7     revoke a standard permit.
 5-8           Sec. 382.05195.  PERMITS BY RULE.  (a)  Consistent with
 5-9     Section 382.051, the commission may adopt permits by rule for
5-10     certain types of facilities if it is found on investigation that
5-11     such types of facilities will not make a significant contribution
5-12     of air contaminants to the atmosphere.  The commission may not
5-13     adopt a permit by rule authorizing any facility defined as a "major
5-14     source" under the federal Clean Air Act (42 U.S.C. Section 7401 et
5-15     seq.) or regulations adopted under that Act.  Nothing in this
5-16     subsection shall be construed to limit the commission's general
5-17     power to control the state's air quality under Section 382.011(a).
5-18           (b)  The commission shall adopt rules specifically defining
5-19     the terms and conditions for a permit by rule under this section.
5-20           SECTION 6.  Subsection (a), Section 382.057, Health and
5-21     Safety Code, is amended to read as follows:
5-22           (a)  Consistent with Section 382.0511, the commission by rule
5-23     may exempt from the requirements of Section 382.0518 changes within
5-24     any facility [and certain types of facilities] if it is found on
5-25     investigation that such changes [or types of facilities] will not
5-26     make a significant contribution of air contaminants to the
5-27     atmosphere.  The commission by rule shall exempt from the
5-28     requirements of Section 382.0518 or issue a standard permit for the
5-29     installation of emission control equipment that constitutes a
5-30     modification or a new facility, subject to such conditions
5-31     restricting the applicability of such exemption or standard permit
5-32     that the commission deems necessary to accomplish the intent of
5-33     this chapter.  The commission may not exempt [any facility or] any
5-34     modification of an existing facility defined as "major" under the
5-35     federal Clean Air Act or regulations adopted under that Act.
5-36     Nothing in this subsection shall be construed to limit the
5-37     commission's general power to control the state's air quality under
5-38     Section 382.011(a).
5-39           SECTION 7.  Section 382.058, Health and Safety Code, is
5-40     amended to read as follows:
5-41           Sec. 382.058.  PROVISIONS RELATING TO [LIMITATION ON]
5-42     COMMISSION PERMITS BY RULE OR STANDARD PERMITS [EXEMPTION] FOR
5-43     CONSTRUCTION OF CERTAIN CONCRETE PLANTS.  (a)  A person may not
5-44     begin construction on any concrete plant that performs wet
5-45     batching, dry batching, or central mixing under a standard permit
5-46     under Section 382.05194 or a permit by rule [an exemption] adopted
5-47     by the commission under Section 382.05195 [382.057] unless the
5-48     person has complied with the notice and opportunity for hearing
5-49     provisions under Section 382.056.
5-50           (b)  This section does not apply to a concrete plant located
5-51     temporarily in the right-of-way, or contiguous to the right-of-way,
5-52     of a public works project.
5-53           (c)  For purposes of this section, only those persons
5-54     actually residing in a permanent residence within 440 yards of the
5-55     proposed plant may request a hearing under Section 382.056(d) as a
5-56     person who may be affected.
5-57           SECTION 8.  Subsection (b), Section 382.062, Health and
5-58     Safety Code, is amended to read as follows:
5-59           (b)  The commission may adopt rules relating to charging and
5-60     collecting a fee for an exemption, for [from] a permit, for a
5-61     permit by rule, for a voluntary emission reduction permit, for a
5-62     multiple plant permit, or for a standard permit [authorized by
5-63     commission rule] and for a variance.
5-64           SECTION 9.  The Texas Natural Resource Conservation
5-65     Commission shall adopt, as soon as practicable after the effective
5-66     date of this Act, any rules necessary to implement the changes in
5-67     law made by this Act.
5-68           SECTION 10.  Not later than January 15, 2001, the Texas
5-69     Natural Resource Conservation Commission shall prepare and
 6-1     distribute to the governor, the lieutenant governor, the speaker of
 6-2     the house of representatives, the chairman of the Senate Committee
 6-3     on Natural Resources, and the chairman of the House Committee on
 6-4     Environmental Regulation a report on the number of companies that
 6-5     have obtained or applied for a permit under Section 382.0519,
 6-6     Health and Safety Code, as added by this Act, and the reductions in
 6-7     emissions anticipated to result from issuance of such permits.
 6-8           SECTION 11.  (a)  The Texas Natural Resource Conservation
 6-9     Commission may not initiate an enforcement action against a person
6-10     for the failure to obtain a preconstruction permit under Section
6-11     382.0518, Health and Safety Code, or a rule adopted or order issued
6-12     by the commission under that section, that is related to the
6-13     modification of a facility that may emit air contaminants if, on or
6-14     before August 31, 2001, the person files an application for a
6-15     permit for the facility under Section 382.0519, Health and Safety
6-16     Code, as added by this Act.
6-17           (b)  This section does not apply to an act related to the
6-18     modification of a facility that occurs after March 1, 1999.
6-19           SECTION 12.  The importance of this legislation and the
6-20     crowded condition of the calendars in both houses create an
6-21     emergency and an imperative public necessity that the
6-22     constitutional rule requiring bills to be read on three several
6-23     days in each house be suspended, and this rule is hereby suspended,
6-24     and that this Act take effect and be in force from and after its
6-25     passage, and it is so enacted.
6-26                                  * * * * *