PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendments to §§116.110, 116.116, 116.710, and 116.721; and new §116.118.
The amendments to §§116.110, 116.116, 116.710, and 116.721; and new §116.118 are adopted without changes to the proposed text as published in the February 14, 2020, issue of the Texas Register (45 TexReg 989) and, therefore, will not be republished.
The adopted new and amended sections will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).
Background and Summary of the Factual Basis for the Adopted Rules
The adopted rulemaking revises Chapter 116 to implement provisions of House Bill (HB) 2726, 86th Texas Legislature, 2019. This legislation revised Texas Health and Safety Code (THSC), §382.004, Construction While Permit Application Pending, to allow an applicant for a permit amendment to begin construction after the executive director has issued a draft permit including the permit amendment. Traditionally, the permit applicant would have to wait to begin construction until the final permit is issued. The decision to begin construction is at the applicant's own risk, and the statute does not allow the commission to consider construction begun under THSC, §382.004 as a factor when determining whether to issue the amendment sought by the applicant. In addition, the statute does not allow for any construction which is prohibited by federal law. HB 2726 also added a restriction to THSC, §382.004 which prohibits the use of this option for early construction at concrete batch plants located within 880 yards of a property used as a residence. As stated in HB 2726, Section 2, the amended provisions of THSC, §382.004, which allows the applicant to begin construction when the draft permit amendment is issued, only apply to permit amendment applications filed with the TCEQ on or after January 1, 2020.
As revised by HB 2726, THSC, §382.004 allows a person who submits a permit amendment application to begin construction after the executive director has issued a draft permit including the permit amendment. In accordance with THSC, §382.056(f), the executive director must conduct a technical review of and issue a preliminary decision on a permit application. During the technical review of a permit amendment application, the executive director's staff reviews the application to determine whether it satisfies state and federal regulatory requirements. The permit reviewer evaluates the emission sources and proposed emission rates and confirms that the applicant has proposed air pollution controls which represent, at a minimum, best available control technology (BACT). The permit reviewer also reviews the proposed emissions to verify that public health will be protected and that applicable air quality standards (such as National Ambient Air Quality Standards or NAAQS) will be met. The applicant's air pollution control review, along with the permit reviewer's air pollution control evaluation and final recommendation provide a record that demonstrates that the operation of a proposed facility or related source will not cause or contribute to a condition of air pollution and will comply with all applicable federal regulations and state rules. Once the technical review is complete, by rule (30 TAC §39.419) the executive director files the preliminary decision and draft permit with the commission's chief clerk with instructions for the applicant to publish a Notice of Application and Preliminary Decision (NAPD) in the same newspaper that published the Notice of Receipt of Application and Intent to Obtain a Permit. By allowing construction to begin only after the technical review of the application is complete and the draft permit has been issued, the adopted rulemaking ensures that critical components of the permit review, including the determination of BACT, the review of applicable state distance limitations, and the protectiveness review to evaluate health effects and compliance with applicable air quality standards, have been completed.
In addition to the specific requirements of the legislation and statute, the commission adopts certain amendments to Chapter 116 which are necessary for the adopted rulemaking to obtain approval from the EPA as a revision to the Texas SIP. The commission's new source review (NSR) permitting rules for both minor and major sources are approved by the EPA into the SIP. State NSR programs approved by the EPA generally provide for preconstruction authorization in order to meet requirements of 40 Code of Federal Regulations (CFR) Part 51. However, states are given substantial latitude in crafting minor source preconstruction permitting programs that are also established under state law, such as is the case for Texas. Major NSR (both Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR)) rules in Chapter 116 are approved by the EPA as meeting the requirements of the Federal Clean Air Act (FCAA) and federal regulations. The EPA has approved other states' rules which allow the beginning of construction prior to permit issuance where those rules applied only to minor sources and specifically excluded major NSR sources and other federally authorized sources (See for example Mississippi's rules approved July 10, 2006, 71 FR 38773). The additional adopted amendments exclude certain permit actions from beginning construction under new §116.118 because it is not "permissible under federal law" and are discussed in more detail in the Section by Section Discussion portion of this preamble.
The adopted rulemaking also includes minor revisions to certain other rule sections in Chapter 116 to add cross-references to the adopted new §116.118 rules where necessary or appropriate.
Certain rule sections in Chapter 116, Subchapter H relating to grandfathered facilities which would otherwise be affected by the provisions of THSC, §382.004 were not included for revision in this rulemaking because those sections are planned for repeal in a separate rulemaking action (Rule Project Number 2020-001-116-AI) to implement the findings of a rules review conducted pursuant to Texas Government Code, §2001.039.
Section by Section Discussion
The commission adopts various stylistic changes, such as grammatical or reference corrections. These changes are non-substantive and are not specifically discussed in this preamble.
§116.110, Applicability
The commission adopts amended §116.110(a) to add a reference to adopted new §116.118 which implements HB 2726 and THSC, §382.004. The adopted change is necessary because the current rule language in §116.110(a) does not reflect the option under THSC, §382.004 to begin construction when the draft permit is issued.
§116.116, Changes to Facilities
The commission adopts amended §116.116(b)(1) and (2) to add a reference to adopted new §116.118 which implements HB 2726 and THSC, §382.004. The adopted change is necessary because the current rule language in §116.116(b)(1) and (2) does not reflect the option under THSC, §382.004 to begin construction when the draft permit is issued.
The commission also adopts amended §116.116(e)(3) and (f) to replace the term "notwithstanding" with the phrase "regardless of." This adopted change improves readability of the rule through the use of plain language.
§116.118, Construction While Permit Amendment Application Pending
The commission adopts new §116.118, which contains the technical and administrative requirements which are required for permit applicants seeking to begin construction under THSC, §382.004.
Adopted new §116.118(a) contains conditions relating to the purpose and applicability of the section, and certain exclusions. Adopted new §116.118(a)(1) explains that an applicant for a permit amendment may begin construction, at their own risk, after the executive director has completed the technical review and issued a draft permit. For purposes of clarification, a draft permit is deemed to be issued on the date when the TCEQ Chief Clerk mails the preliminary decision and the NAPD, as required by §39.419.
Adopted new §116.118(a)(2) codifies the statutory requirement in THSC, §382.004(c) which excludes certain concrete batch plant facilities from being eligible to begin construction under §116.118. Specifically, any concrete batch plant facility located within 880 yards of a property that is used as a residence is not eligible to begin construction under THSC, §382.004 or adopted new §116.118.
Adopted new §116.118(a)(3) specifies that projects which trigger federal PSD or federal NNSR permitting are not eligible to begin construction under adopted new §116.118. THSC, §382.004 only authorizes construction to the extent permissible under federal law, and federal regulations governing the PSD and NNSR programs do not allow construction to begin before the permit is issued. These conditions relating to permitting of major sources and major modifications are necessary for the adopted rulemaking to be approved by the EPA as a revision to the Texas SIP.
Adopted new §116.118(a)(4) specifies that this section does not apply to the amendment of a Plant-wide Applicability Limit (PAL) issued under Chapter 116, Subchapter C (Plant-wide Applicability Limits). A PAL is not a substitute for, or an exemption from, preconstruction NSR requirements of Chapter 116, Subchapter B (New Source Review Permits) or Subchapter G (Flexible Permits). A PAL establishes a pollutant-specific annual emissions level below which new and modified facilities will not be subject to major NSR for that pollutant. The commission's PAL rules are approved as part of the SIP to meet federal PAL requirements.
Adopted new §116.118(a)(5) specifies that projects which trigger requirements for a case-by-case determination of maximum achievable control technology under FCAA, §112(g) are not eligible to begin construction under adopted new §116.118. THSC, §382.004 authorizes construction only to the extent permissible under federal law, and federal regulations governing the permitting of major sources of hazardous air pollutants do not allow construction to begin before the permit is issued. This condition is necessary for the adopted rulemaking to be approved by the EPA as a revision to the Texas SIP.
Adopted new §116.118(a)(6) specifies that qualified facility changes implemented under §116.116(e) are not covered by the provisions of adopted new §116.118. Qualified facility changes under §116.116(e) were authorized by Senate Bill 1126, 74th Texas Legislature, 1995, as a streamlined method for qualifying facilities to make limited changes without applying for a permit or permit amendment. Although qualified facility changes under §116.116(e) and the beginning of construction allowed under adopted new §116.118 are both streamlined methods to authorize changes to a facility, the underlying requirements and documentation are different. Therefore, it is administratively and functionally necessary to structure them as separate processes. Typically, a change which would require a traditional permit amendment would not meet the criteria to be considered a qualified facility change under §116.116(e), but there may be exceptions. If a permit holder is planning a change which could meet the requirements for a qualified facility change under §116.116(e) and also potentially qualify to begin construction under adopted new §116.118, the permit holder will need to consider which streamlined option better meets their business needs.
Adopted new §116.118(a)(7) specifies that requests, claims, registrations, or applications for a standard permit under Chapter 116, Subchapter F (Standard Permits) or a permit by rule (PBR) under 30 TAC Chapter 106 (Permits by Rule) are not eligible to begin construction under adopted new §116.118. Standard permits and permits by rule already provide a highly streamlined mechanism to authorize facilities and changes to facilities. In addition, if a PBR or standard permit is used to authorize a change at an existing permitted facility, that change is not considered a permit amendment and is not within the scope of THSC, §382.004. Therefore, the commission adopts this restriction to make it clear that the provisions of adopted new §116.118 do not apply to claims, applications, or registrations for a standard permit or PBR.
Adopted new §116.118(a)(8) specifies that adopted §116.118 does not relieve or exempt the applicant or project from any other applicable state or federal requirements; including, but not limited to, requirements for public notice and participation; federal applicability; emission control technology; and distance limitations.
Adopted new §116.118(b) specifies that applicants seeking to begin construction under the provisions of adopted §116.118 must comply with the public notice requirements of Chapter 39, as is required for all permit amendments.
Adopted new §116.118(c)(1) states that projects which meet the criteria to begin construction are still prohibited from commencing operation until the final permit amendment has been issued. Although THSC, §382.004 allows for construction in certain circumstances, it does not authorize operation of the facility and does not supersede existing requirements (such as THSC, §382.0518(f) and 30 TAC §116.115(b)(2)(B)) which do not allow for the operation of a facility until the final permit or permit amendment has been issued. In addition, the EPA has stated that rules which allow construction prior to permit issuance must include a prohibition on operation until the final permit is issued in order to obtain approval as a SIP revision.
Adopted new §116.118(c)(2) codifies the requirement in THSC, §382.004(b) that the commission may not consider construction begun under §116.118 and THSC, §382.004 as a factor in determining whether to grant the permit amendment sought in the application.
§116.710, Applicability
The commission adopts amended §116.710(a) to add a reference to adopted new §116.118 which implements HB 2726 and THSC, §382.004. The adopted change is necessary because the current rule language in §116.710(a) does not reflect the option under THSC, §382.004 to begin construction when the draft permit is issued.
§116.721, Amendments and Alterations
The commission adopts amended §116.721(a) to add a reference to adopted new §116.118 which implements HB 2726 and THSC, §382.004. The adopted change is necessary because the current rule language in §116.721(a) does not reflect the option under THSC, §382.004 to begin construction when the draft permit is issued.
The commission also adopts amended §116.721(d)(1) to replace the term "notwithstanding" with the phrase "regardless of." This adopted change improves readability of the rule through the use of plain language.
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking action in light of the regulatory analysis requirements of the Texas Government Code, §2001.0225, and determined that the action is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in that statute. A "Major environmental rule" is a rule with the specific intent to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendments to §§116.110, 116.116, 116.710, and 116.721; and new §116.118 are not specifically intended to protect the environment or reduce risks to human health from environmental exposure, nor do the new or amended rules affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Rather, this adopted rulemaking implements changes to THSC, §382.004 as enacted by passage of HB 2726.
Texas Government Code, §2001.0225 applies to a major environmental rule, the result of which is to: exceed a standard set by federal law, unless the rule is specifically required by state law; exceed an express requirement of federal law, unless the rule is specifically required by federal law; exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or adopt a rule solely under the general authority of the commission. The adopted amendments to §§116.110, 116.116, 116.710, and 116.721; and new §116.118 do not exceed a standard set by federal law or an express requirement of state law or a requirement of a delegation agreement and the rulemaking is not developed solely under the general powers of the agency but is authorized by THSC, §382.004. Therefore, this adopted rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225.
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments on the Draft Regulatory Impact Analysis Determination were received.
Takings Impact Assessment
The commission evaluated the adopted rulemaking and performed an analysis of whether Texas Government Code, Chapter 2007 is applicable. The adopted amendments to §§116.110, 116.116, 116.710, and 116.721; and new §116.118 implement changes to THSC, §382.004 as enacted by passage of HB 2726 to allow an applicant for an NSR permit amendment to begin construction, at their own risk, after the executive director has issued a preliminary decision and draft permit including the amendment. The adopted rulemaking will not burden private real property or affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Consequently, this adopted rulemaking action does not meet the definition of a taking under Texas Government Code, §2007.002(5). The adopted new and amended rules do not directly prevent a nuisance or prevent an immediate threat to life or property. Therefore, this rulemaking action will not constitute a taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the adopted rulemaking and found that the adoption is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act implementation rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies.
The CMP goal applicable to this adopted rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)). The adopted rules will increase flexibility for applicants for certain air permit amendments, by allowing them to begin construction on a project after the draft permit has been issued. However, the permit amendment is still required to meet all applicable state and federal rules, regulations, and standards applicable to emissions of air contaminants. The adopted rules will not authorize or allow increased emissions of air contaminants. The CMP policy applicable to the adopted rulemaking is the policy that commission rules comply with federal regulations in 40 CFR to protect and enhance air quality in the coastal areas (31 TAC §501.32). This rulemaking complies with 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans.
Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rules are consistent with these CMP goals and policies, and because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas.
The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments regarding consistency with the CMP were received.
Effect on Sites Subject to the Federal Operating Permits Program
This rulemaking will not have a significant effect on sites which are subject to the Federal Operating Permits Program. Federal Operating Permits do not directly regulate or restrict construction. Applicants seeking to initiate construction for a permit amendment under the adopted rules must comply with any applicable requirements of Chapter 122 that would apply to any NSR permit amendment.
Public Comment
The commission offered a public hearing on March 12, 2020. The comment period closed on March 17, 2020. The commission received comments from Texas Industry Project (TIP) and Texas Oil and Gas Association (TXOGA). Both commenters supported the proposed amendments.
Response to Comments
Comment
TIP and TXOGA stated that they strongly support the rules as proposed and encouraged timely adoption of the proposed revisions.
Response
The commission appreciates the support for the rulemaking. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that delays in the issuance of final minor NSR air permits results in substantial costs to industry each year, especially in cases where a contested case hearing has been requested. TIP and TXOGA stated that, at times, challenges to minor source permits may be unfounded and/or motivated by financial interests. TIP and TXOGA stated that by allowing an applicant to begin construction at their own risk when the draft permit is issued, the proposed rules would reduce delays while still providing for a full evaluation by the TCEQ for compliance with all applicable rules and regulations; including BACT, compliance with NAAQS and state standards, good engineering practices for stack heights, and health effects guidelines. In addition, TIP and TXOGA noted that the option to begin construction early is limited to minor projects at existing sites, and that all public notice and public hearing requirements remain in place.
Response
The commission agrees that, by allowing an applicant for a permit amendment to begin construction once the draft permit is issued, the proposed rules may allow projects to be completed sooner, while still providing for the protection of human health and compliance with all other applicable rules, regulations, and standards. However, the construction is at the applicant's own risk, and the applicant may be required to make changes to the project if necessary, for final issuance of the permit amendment. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that projects which trigger federal NNSR or PSD permitting cannot use the proposed rules for early construction. The commenters noted that, as part of the permitting process, major sources must submit netting tables to demonstrate that projects with significant project emission increases qualify for the minor NSR permitting process. The commenters stated that if a project that would result in a significant emissions increase does not net out of federal permitting, the project would not be eligible to use the proposed rules to begin construction.
Response
The commission agrees with the comment. In order for a project to be eligible to begin construction under the proposed rules, the project must not trigger federal NNSR or PSD permitting. The determination of whether a project is major or not (for the purposes of NNSR or PSD applicability) will be made by the time the draft permit is issued. A project that is demonstrated to net out at that stage of the review process would be allowed to begin construction prior to final issuance of the permit. In other words, the determination whether a project is eligible to use the early construction rule is made at the draft permit stage, not application. As the legislature made clear in amending THSC, §382.004, a person cannot begin construction on a project until the executive director has issued a draft permit. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules meet FCAA requirements and federal regulations governing minor NSR permitting programs. TIP and TXOGA commented that the FCAA provides states with substantial discretion in crafting minor NSR preconstruction permitting programs, and that TCEQ maintains one of the most stringent minor NSR programs in the country. TIP and TXOGA stated that EPA has approved other states' rules allowing for construction prior to permit issuance into those states' implementation plans; and at a much earlier stage in the permitting process than allowed under the proposed Texas rule changes. TIP and TXOGA commented that EPA has even approved rules for other states which allow construction shortly after submission of a permit application, prior to substantive technical review of that application or issuance of a draft permit.
Response
The commission agrees with the comment that the proposed rules satisfy the requirements of the FCAA and applicable federal regulations, and, in combination with other aspects of TCEQ's approved minor source program, provide greater protection than some other States' rules allowing construction prior to permit issuance which EPA has approved as SIP revisions. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA commented that the proposed rules meet FCAA, §110(a)(2)(C), which requires that state SIPs include a program for regulating the construction and modification of stationary sources to ensure that the NAAQS are achieved. The commenters stated that Texas rules require a TCEQ permit engineer to fully review the proposed project for compliance with all rules and regulations, including compliance with the NAAQS, prior to issuing a draft permit, and that applicants are often required to conduct modeling consistent with EPA modeling guidelines in order to make the requisite NAAQS demonstration. In addition, the commenters stated that the applicant cannot operate the changes until a final permit is issued. For these reasons, the commenters stated that allowing "at risk" construction for permit amendment projects at the draft minor NSR permit stage will have no effect on compliance with the NAAQS.
Response
The commission agrees with the comment that the proposed rules satisfy the requirements of FCAA, §110(a)(2)(C), and that the proposed rules will have no adverse effect on compliance with the NAAQS. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules satisfy 40 CFR §51.160(b), which requires that state minor NSR permitting programs ensure that a permitting authority reviewing an application to construct or modify a source must have the means to prevent such construction or modification if it will result in a violation of the applicable control strategy or will interfere with the attainment or maintenance of a NAAQS. The commenters stated that the TCEQ's proposed rule changes have no impact on control strategies or on the attainment or maintenance of a NAAQS. The commenters stated that, unlike some other EPA SIP-approved "at risk" construction programs, the Texas program will only allow at risk construction once a draft permit, including the permit amendment that is the subject of the permit amendment application, is issued. The commenters noted that in order to issue a draft permit, TCEQ must fully evaluate the proposed change for compliance with all rules and regulations, including BACT, health effects, and compliance with the NAAQS. In addition, the commenters noted that the proposed rules will not allow the change to be operated unless and until a final permit is issued.
Response
The commission agrees with the comment that the proposed rules satisfy the requirements of 40 CFR §51.160(b), as the proposed rules in combination with the overall TCEQ permitting process ensure that the permit amendment will not result in a violation of the control strategy or the attainment or maintenance of a NAAQS. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules satisfy 40 CFR §51.161, which requires that state minor NSR permitting programs require the permitting authority to provide opportunity for public comment on information submitted by applicants regarding proposed construction or modification. The commenters noted that TCEQ's proposed rules make no changes to the Texas public notice and comment provisions, which exceed the minimum requirements of 40 CFR §51.161 by requiring applicants to provide two rounds of 30-day public notice and opportunity to comment. The commenters also stated that, prior to issuance of a draft permit, the Texas minor NSR permitting program requires the applicant to make a copy of the permit amendment application publicly available and to publish (and post) notice of the intent to obtain a permit and of the opportunity to provide public comments for 30 days. In addition, the commenters stated that the permit amendment application itself is required to include all information required by 40 CFR §51.161.
Response
The commission agrees with the comment that the proposed rules meet the requirements of 40 CFR §51.161. The proposed revisions do not change TCEQ's SIP-approved rules relating to public notice and comment, which require an opportunity for public comment on information submitted by permit applicants and require that the information be made publicly available. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules satisfy 40 CFR §51.162, which requires identification of the state or local agency with permitting responsibility. TIP and TXOGA stated that TCEQ will remain the issuing authority for the Texas minor NSR program.
Response
The commission agrees with the comment that the proposed rules meet the requirements of 40 CFR §51.162. The proposed revisions do not affect or change TCEQ's status as the approved permitting authority for minor NSR permitting in Texas. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules satisfy 40 CFR §51.163, which requires a SIP to include administrative procedures which will be followed to make determinations required under 40 CFR §51.160(a) regarding air permitting programs. TIP and TXOGA noted that the proposed rules do not change any part of the current minor NSR permitting procedures, except to allow applicants (at their own risk) to choose to begin construction after the draft permit has been issued.
Response
The commission agrees with the comment that the proposed rules meet the requirements of 40 CFR §51.163. The proposed revisions do not affect or change the already-approved administrative procedures of the Texas minor NSR permitting program. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that 40 CFR §51.164 imposes "good engineering practices" standards on stack heights, and that stack heights will be evaluated as part of the technical evaluation of the amendment application. TIP and TXOGA noted that this technical evaluation includes evaluation of compliance with all rules and regulations, including BACT, health effects, and compliance with the NAAQS, prior to issuance of the draft minor NSR permit.
Response
The commission agrees with the comment. The evaluation of stack height and compliance with 40 CFR §51.164 will be evaluated during the technical review, prior to the issuance of the draft permit. The proposed rules do not affect this process and do not violate or conflict with the requirements of 40 CFR §51.164. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules are not a relaxation of the SIP. The commenters stated that the only effect of the proposed rulemaking will be to allow permit amendment applicants, at their own risk, to begin construction after issuance of a draft minor NSR permit. The commenters noted that, prior to issuing a draft permit, a TCEQ permit reviewer must fully review the proposed project for compliance with all rules and regulations, including compliance with the NAAQS, and that no changes can be operated until a final permit is issued. The commenters also noted that the applicant is required to comply with the terms and conditions of the final issued permit. The commenters stated that the proposed rule changes will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in FCAA, §171), or any other applicable requirement of the FCAA and can be incorporated into the Texas SIP.
Response
The commission agrees with the comment that the proposed rule changes, considered in the context of the TCEQ's existing, SIP-approved program for minor NSR, will not interfere with attainment or reasonable further progress, and are not a relaxation of the SIP. The proposed rules meet applicable requirements of the FCAA and are approvable as a revision to the Texas SIP. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the proposed rules would not affect the existing contested case hearing process. The commenters noted that the contested case hearing process is not part of the Texas SIP and is not required by the FCAA and implementing federal regulations for minor NSR programs. TIP and TXOGA stated that some commenters may take the position that allowing an applicant to begin construction prior to final issuance of the minor NSR permit amendment will affect the timing and availability of a contested case hearing on the permit amendment; however, TIP and TXOGA stated that the proposed rules will not have such an effect. TIP and TXOGA stated that, because the TCEQ is prohibited by statute from taking into consideration whether the applicant has started construction under the proposed rules, concerns that this proposed rulemaking will interfere with the contested case hearing process are unfounded. The commenters further stated that, under the proposed rules, a permit amendment application would remain subject to the same permitting and contested case hearing procedures already in effect for other minor NSR permit and permit amendment applications.
Response
The commission agrees with the comment that the proposed rule changes do not affect the existing contested case hearing process. The proposed rules would not affect the public's ability to request a contested case hearing, and the commission is prohibited from considering construction initiated under the proposed rules as a factor when evaluating whether to grant a request for a contested case hearing. No changes to the rules were made in response to these comments.
Comment
TIP and TXOGA stated that the Texas Legislature has previously determined that "at risk" construction prior to a contested case hearing is appropriate. The commenters noted that in 2005, the 79th Texas Legislature created Texas Clean Air Act (TCAA), §382.004 to allow for "at risk" construction after submission of a minor NSR permit application. The commenters stated that the enactment of TCAA, §382.004 is evidence that the Texas Legislature recognized that there are circumstances where an applicant should be allowed to begin construction prior to the completion of the contested case hearing process (itself a creation of the legislature) and issuance of a final permit.
The commenters also stated that Texas Water Code, §26.027(c) and the EPA-approved Texas Pollutant Discharge Elimination System implementing rules found in 30 TAC §217.11(a) provide an exception to the bar against commencing construction of wastewater treatment facilities prior to issuance of the wastewater permit, when the commission specifically approves pre-permit construction. The commenters noted that those wastewater facilities are subject to contested case hearing requests; and therefore, both EPA and TCEQ have authorized Texas applicants to begin construction prior to the issuance of a final permit.
Response
The commission acknowledges the comments. No changes to the rules were made in response to these comments.
SUBCHAPTER B. NEW SOURCE REVIEW PERMITS
DIVISION 1. PERMIT APPLICATION
30 TAC §§116.110, 116.116, 116.118
Statutory Authority
The amendments and new section are adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amendments and new section are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.004, concerning Construction While Permit Application Pending, which allows, to the extent permissible under federal law, an applicant for a permit amendment to begin construction at the person's own risk, upon issuance of a draft permit including the amendment; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.0518, concerning Preconstruction Permit, which prescribes the permitting and review procedures for obtaining a permit to construct a new facility or modification of an existing facility that may emit air contaminants; and THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission. In addition, the amendments and new section are adopted under the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state, including preconstruction permitting program requirements.
The adopted amendments and new section implement THSC, §382.004.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 17, 2020.
TRD-202002937
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: August 6, 2020
Proposal publication date: February 14, 2020
For further information, please call: (512) 239-1806
Statutory Authority
The amendments are adopted under Texas Water Code (TWC), §5.013, concerning General Jurisdiction of Commission, which establishes the general jurisdiction of the commission; TWC, §5.102, concerning General Powers, which provides the commission with the general powers to carry out its duties under the TWC; TWC, §5.103, concerning Rules, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and TWC, §5.105, concerning General Policy, which authorizes the commission by rule to establish and approve all general policy of the commission. The amendments are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.004, concerning Construction While Permit Application Pending, which allows, to the extent permissible under federal law, an applicant for a permit amendment to begin construction at the person's own risk, upon issuance of a draft permit including the amendment; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.0518, concerning Preconstruction Permit, which prescribes the permitting and review procedures for obtaining a permit to construct a new facility or modification of an existing facility that may emit air contaminants; and THSC, §382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, which prescribes the public participation requirements for certain applications filed with the commission. In addition, the amendments are adopted under the Federal Clean Air Act, 42 United States Code, §§7401, et seq., which requires states to submit state implementation plan revisions that specify the manner in which the national ambient air quality standards will be achieved and maintained within each air quality control region of the state, including preconstruction permitting program requirements.
The adopted amendments implement THSC, §382.004.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 17, 2020.
TRD-202002938
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: August 6, 2020
Proposal publication date: February 14, 2020
For further information, please call: (512) 239-1806
SUBCHAPTER N. FEES FOR LOW-LEVEL RADIOACTIVE WASTE DISPOSAL
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §336.1310 without change to the proposed text as published in the May 8, 2020, issue of the Texas Register (45 TexReg 3022). Therefore, the rule will not be republished.
Background and Summary of the Factual Basis for the Adopted Rule
Texas Health and Safety Code (THSC), §401.245, requires the TCEQ by rule to adopt and periodically revise party-state compact waste disposal fees. Section 336.1310 sets the fees for disposal of low-level radioactive waste (LLRW).
In 2017, House Bill (HB) 2662, passed during the 85th Texas Legislature, reduced the disposal surcharge for non-compact generators from 20% to 10% and suspended the 5% state fee for all compact waste until September 1, 2019. During the 86th Texas Legislature (2019), an amendment was made to Senate Bill (SB) 1804 that would retain the reduction of this surcharge and the suspension of the state fee until September 1, 2021. Because SB 1804 was vetoed, the surcharge reverted back to 20% and the 5% state fee was reinstated on September 1, 2019.
The licensee and operator of the Compact Waste Disposal Facility (CWF) in Andrews County, Texas, originally requested a similar reduction to the curie inventory charge (mCi) among other items as part of a rulemaking petition in order to be competitive and to generate sufficient funds so that they do not operate at a financial loss. The rulemaking petition was withdrawn and resubmitted as a request to the executive director to initiate rulemaking for good cause, consistent with the rule requirements in §336.1311.
Therefore, the executive director has taken all of these factors into consideration and determined that the reduction in the mCi is appropriate at this time.
Section Discussion
§336.1310, Rate Schedule
The commission adopts amended §336.1310 to reduce the mCi from $0.40 mCi to $0.05 mCi. The commission also adopts amended §336.1310 to correct the acronym LLW to LLRW to be consistent with the current definition in §336.2.
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "Major environmental rule" as defined in the Texas Administrative Procedure Act. A "Major environmental rule" is a rule that is specifically intended to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.
This rulemaking does not meet the statutory definition of a "Major environmental rule" because it is not the specific intent of the rule amendment to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the adopted rulemaking is to modify the mCi and may offset the increase in the total disposal fee for out-of-compact generators due to the increase of surcharges on this waste that went into effect on September 1, 2019. The reduction of the curie inventory fee in the LLRW disposal rate table of §336.1310 will require the license holder of the CWF to adjust the rate setting for generators as follows. The LLRW fee adjustment will result in a lowering of the maximum rate that the license holder can charge Compact generators of LLRW and a lowering of the minimum rate that the license holder can charge Out-of-Compact generators of LLRW.
Further, the rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted rule will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or public health and safety of the state or a sector of the state. The cost of complying with the adopted amendment is not expected to be significant with respect to the economy as a whole or a sector of the economy; therefore, the adopted rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs.
Furthermore, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because it does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a), only applies to a major environmental rule, the result of which is to: (1) exceed a standard set by federal law, unless the rule is specifically required by state law; (2) exceed an express requirement of state law, unless the rule is specifically required by federal law; (3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The adopted rulemaking does not meet the four applicability requirements because the adopted amendment: (1) does not exceed a standard set by federal law; (2) does not exceed an express requirement of state law; (3) does not exceed a requirement of federal delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program as no such federal delegation agreement exists with regard to the adopted rule; and (4) is not an adoption of a rule solely under the general powers of the commission as the adopted amendment is required by THSC, §401.245. THSC, §401.245, requires the TCEQ by rule to adopt and periodically revise party-state compact waste disposal fees.
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received on the Draft Regulatory Impact Analysis Determination.
Takings Impact Assessment
The commission evaluated this adopted rulemaking and performed an assessment of whether the adopted rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The adopted rulemaking amends §336.1310 to adjust one fee charged in the rates. The specific intent of the adopted rulemaking is to modify the mCi to offset the increase in the total disposal fee for out-of-compact generators due to the increase of surcharges on this waste that went into effect on September 1, 2019. The reduction of the mCi fee on LLRW disposal rate schedule solely impacts the license holder of the CWF in rate setting for generators as follows. The LLRW fee adjustment will result in a lowering of the maximum rate that the license holder can charge Compact generators of LLRW and a lowering of the minimum rate that the license holder can charge Out-of-Compact generators of LLRW. The commission's analysis revealed that amending the fee in the rate table section of §336.1310 is consistent with THSC, §401.245, which requires the TCEQ by rule to adopt and periodically revise party-state compact waste disposal fees.
A "taking" under Texas Government Code, Chapter 2007 means a governmental action that affects private real property in a manner that requires compensation to the owner under the United States or Texas Constitution, or a governmental action that affects real private property in a manner that restricts or limits the owner's right to the property and reduces the market value of affected real property by at least 25%. Because no taking of private real property will occur by amending the maximum disposal rate that a licensee may charge a party state generator for disposal to reduce the mCi, the commission determined that promulgation and enforcement of this adopted rulemaking will be neither a statutory nor a constitutional taking of private real property. Specifically, there are no burdens imposed on private real property under the rule because the adopted rulemaking neither relates to, nor has any impact on, the use or enjoyment of private real property, and there will be no reduction in real property value as a result of the rulemaking. Therefore, the adopted rulemaking will not constitute a taking under Texas Government Code, Chapter 2007.
Consistency with the Coastal Management Program
The commission reviewed the adopted rule and found it is neither identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rule is not subject to the Texas Coastal Management Program.
The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received regarding the CMP.
Public Comment
The comment period closed on Tuesday, June 9, 2020. No comments were received regarding the rulemaking.
Statutory Authority
The amendment is adopted under the Texas Radiation Control Act, Texas Health and Safety Code (THSC), §401.011, which provides the commission the authority to regulate and license the disposal of radioactive substances; and THSC, §401.245, which requires the commission, by rule, to adopt and periodically revise party state compact waste disposal fees. The adopted amendment is also authorized by Texas Water Code (TWC), §5.103, which establishes the commission's general authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of this state.
The adopted amendment implements THSC, §401.245.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 17, 2020.
TRD-202002939
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: August 6, 2020
Proposal publication date: May 8, 2020
For further information, please call: (512) 239-1806
SUBCHAPTER B. REGISTRATION AND FEES
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §342.26.
The amendment to §342.26 is adopted without change to the proposed text as published in the February 28, 2020, issue of the Texas Register (45 TexReg 1314). Therefore, the rule will not be republished.
Background and Summary of the Factual Basis for the Adopted Rule
House Bill 907 (HB 907 or bill), 86th Texas Legislature, 2019, amended Texas Water Code (TWC), Chapter 28A, relating to Aggregate Production Operations (APOs) by requiring the TCEQ to investigate APOs every two years during the first six years in which the APO is registered, and at least once every three years thereafter. The TCEQ may also conduct unannounced periodic inspections at APOs that were issued notices of violations during the preceding three-year period. The bill also requires investigations to be conducted by one or more inspectors trained in the regulatory requirements under the jurisdiction of the TCEQ that are applicable to an active APO.
Additionally, HB 907 increases the maximum annual registration fee for APOs from $1,000 to $1,500, as well as, increases the maximum penalty assessed to an unregistered APO from $10,000 to $20,000 for each year the APO operates without a registration. HB 907 also increases the maximum total penalty assessed to an APO that is operated three or more years without being registered from $25,000 to $40,000.
The adopted rulemaking amends §342.26 by revising the APO annual registration fee in accordance with HB 907.
Section Discussion
§342.26, Registration Fees
The commission adopts the amendment to §342.26(b) to replace the monetary amount of "$1,000" with the phrase, "the amount specified in Texas Water Code, Chapter 28A" in order to implement TWC, §28A.101(b), as amended by HB 907. The commission recommends that a dollar amount not be stated in §342.26(b), but instead, refer to the amount provided in TWC, Chapter 28A. The adopted language will implement the increased maximum annual registration fee and offer flexibility to the commission when determining the tier-based fee structure. Additionally, referencing the governing TWC chapter instead of specifying the monetary amount will provide consistency between Chapter 342 and TWC, Chapter 28A, as well as, maintain compliance with future legislation.
Final Regulatory Impact Determination
The commission reviewed the adopted rulemaking in consideration of the regulatory analysis of major environmental rules required by Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to Texas Government Code, §2001.0225(a), because it does not meet the definition of a "Major environmental rule" as defined in Texas Government Code, §2001.0225(g)(3). The following is a summary of that review.
Texas Government Code, §2001.0225, applies to a "Major environmental rule" adopted by a state agency, the result of which is to exceed standards set by federal law, exceed express requirements of state law, exceed requirements of delegation agreements between the state and the federal government to implement a state and federal program, or adopt a rule solely under the general powers of the agency instead of under a specific state law. A "Major environmental rule" is a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.
The legislature enacted HB 907, amending TWC, Chapter 28A, which relates to APOs. As the Bill Analysis from the Environmental Regulation Committee of the Texas House of Representatives makes clear, the 86th Texas Legislature enacted HB 907 with the aim of addressing the continued release of eroded sand and silt into waterways from unauthorized APOs by strengthening enforcement on unregistered APOs. HB 907 seeks to address this issue by amending the TWC to increase fines for active APOs that operate without being registered, as mandated in applicable environmental laws and rules; change how the TCEQ regulates APOs; and increase the registration fee collected from APOs by the TCEQ.
Specifically, HB 907 amends TWC, Chapter 28A, by increasing the maximum penalty assessed to an unregistered APO from $10,000 to $20,000 for each year the APO operates without a registration, and increases the maximum total penalty assessed to an APO that is operated three or more years without being registered from $25,000 to $40,000. HB 907 also requires that the TCEQ investigate APOs every two years during the first six years in which the APO is registered, at least once every three years thereafter, allows the TCEQ to conduct unannounced periodic inspections at APOs that were issued notices of violations during the preceding three-year period, requires investigations to be conducted by one or more inspectors trained in the regulatory requirements under the jurisdiction of the TCEQ that are applicable to an active APO, and increases the maximum annual registration fee for APOs from $1,000 to $1,500. This adopted rulemaking will amend §342.26 to revise the APO annual registration fee in accordance with HB 907.
Therefore, the specific intent of the adopted rulemaking is related to strengthening the enforcement of unauthorized APOs by increasing fees for APOs. The adopted rulemaking amends Chapter 342 to revise the APO annual registration fee in accordance with HB 907. As for the other elements of HB 907, annual regional workplans will be updated to address the bill's increase in investigation frequency of all APOs in the first six years of registration. TCEQ will ensure its APO investigators are trained to be familiar with all regulatory requirements applicable to active APOs under the jurisdiction of the TCEQ, and the TCEQ's Penalty Policy and Penalty Calculation Worksheet will be revised to incorporate the statutorily authorized administrative penalty amounts and changed to the assessed penalty amounts.
Certain aspects of the TCEQ's APO rules are intended to protect the environment or reduce risks to human health from environmental exposure. However, the adopted rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs; nor will the adopted rulemaking adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state. Therefore, the adopted rulemaking does not fit the Texas Government Code, §2001.0225 definition of "Major environmental rule."
Even if this rulemaking were a "Major environmental rule," this rulemaking meets none of the criteria in Texas Government Code, §2001.0225 for the requirement to prepare a full Regulatory Impact Analysis. First, this rulemaking is not governed by federal law. Second, it does not exceed state law but rather conforms TCEQ rules to adopted and effective state laws. Third, it does not come under a delegation agreement or contract with a federal program, and finally, it is not being adopted under the TCEQ's general rulemaking authority. This rulemaking is being adopted under specific state statutes enacted in HB 907. Because this adoption does not constitute a major environmental rule, a regulatory impact analysis is not required. Therefore, the commission does not adopt the rule solely under the commission's general powers.
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. The commission received no comments regarding the Draft Regulatory Impact Analysis Determination.
Takings Impact Assessment
The commission evaluated the adopted rulemaking and performed an analysis of whether it constitutes a taking under Texas Government Code, Chapter 2007. The following is a summary of that analysis.
Under Texas Government Code, §2007.002(5), "Taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Texas Constitution, Article I, Section 17 or 19; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action and is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.
The specific purpose of the adopted rulemaking is to implement the legislative amendments in HB 907 by increasing the APO registration fee, which the legislature deemed an effective avenue to strengthen the regulation of APOs. The adopted rulemaking will substantially advance this stated purpose by adopting rule language that increases the registration fee from $1,000 to $1,500.
Promulgation and enforcement of the adopted rule will not be a statutory or constitutional taking of private real property because, as the commission's analysis indicates, Texas Government Code, Chapter 2007 does not apply to this adopted rule because the rule does not impact private real property in a manner that will require compensation to private real property owners under the United States Constitution or the Texas Constitution. Specifically, the adopted rulemaking will not apply to or affect any landowner's rights in any private real property because it will not burden (constitutionally), restrict, or limit any landowner's right to real property and reduce any property's value by 25% or more beyond that which would otherwise exist in the absence of the regulations. The adopted rule is administrative and will not impose any new regulatory requirements. The primary purpose of the adopted rule is to implement HB 907 by increasing the maximum APO registration fee from $1,000 to $1,500. The adopted rulemaking is reasonably taken to fulfill requirements of state law. Therefore, the adopted rulemaking does not constitute a taking under Texas Government Code, Chapter 2007.
The commission invited public comment on the Takings Impact Assessment Determination during the public comment period. The commission received no comments regarding the Takings Impact Assessment Determination.
Consistency with the Coastal Management Program
The commission reviewed the adopted rule and found that it is neither identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the adopted rule is not subject to the Texas Coastal Management Program (CMP).
The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received regarding the CMP.
Public Comment
The commission invited public comment on this rulemaking. The comment period closed on March 30, 2020. The commission received comments from four individuals.
Response to Comments
Comment
Three of the individuals were not in support of the rulemaking as proposed. One individual commented that the amendment represents the TCEQ not taking responsibility for meaningful legislation, not enforcing current regulations on the APO industry, and not having the resources to regulate the APO industry. One individual commented that a few increased fees for registration and penalties will do nothing to offset the degradation and damage done to the natural resources of the state by APOs, specifically both water quality and quantity, and clean air free of particulate matter. One individual commented that the amendment is meant to fund additional APO registrations and does nothing to enhance TCEQ's ability to regulate the APO industry.
One individual commented generally in support of the adopted amendment stating that the commission is taking a step in the right direction for applying more strict regulation of APOs. However, the individual stated that it is up to the TCEQ and the agency's ability to execute and enforce its regulatory requirements because there is no excuse for Texas not to have appropriate APO regulations.
Response
The commission appreciates the supportive and concerned interest displayed by the public in the state's natural resources and how to protect them. The scope of the rulemaking is limited to implementing the legislation passed by the Texas Legislature during the 86th Legislative Session. The specific intent of the amendment is related to strengthening the enforcement of unauthorized APOs by increasing fees for APOs. The adopted rulemaking amends Chapter 342 to revise the APO annual registration fee in accordance with HB 907. As for the other elements of HB 907, annual regional workplans will be updated to address the bill's increase in investigation frequency of all APOs in the first six years of registration. TCEQ will ensure its APO investigators are trained to be familiar with all regulatory requirements applicable to active APOs under the jurisdiction of the TCEQ, and the TCEQ's Penalty Policy and Penalty Calculation Worksheet will be revised to incorporate the statutorily authorized administrative penalty amounts and changed to the assessed penalty amounts. The adopted rulemaking does not fund APO registrations, the registration fee is paid by APOs to the TCEQ and is used to fund the existing full-time employees appropriated for this program.
Statutory Authority
The amendment is adopted under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC, §5.103; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under the TWC and other laws of the state; and TWC, §5.120, which requires the commission to administer the law so as to promote judicious use and maximum conservation and protection of the environment and the natural resources of the state.
The amendment implements House Bill 907, 86th Texas Legislature (2019), TWC, §§5.013, 5.102, 5.103, and 5.120.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 17, 2020.
TRD-202002940
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: August 6, 2020
Proposal publication date: February 28, 2020
For further information, please call: (512) 239-1806