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 * * * * *