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STATEMENT OF LEGAL AUTHORITY FOR TEXAS' PROGRAl\l TO IMPLEl\IENT

AND ENFORCE HAZARDOUS AIR POLLUTANT EMISSION STANDARDS FOR

CATEGORIES OF AREA SOURCES

STATE OF TEXAS

OFFICE OF THE ATTORNEY GENERAL

Pursuant to my authority as the Attorney General ofTexas, and in accordance with

section 112(1) ofthe Federal Clean Air Act ("FCAA"), as amended, 42 U.S.C. § 7412(1), and 40

C.F.R. § 63.91(b)(l), I certify that in my opinion the laws ofthe State ofTexas provide the

necessary legal authority to implement and enforce the program submitted by the Texas Natural

Resource Conservation Commission ("TNRCC") for Federal National Emission Standards for

Hazardous Air Pollutants ("NESHAPs") for source categories for area sources subject to 40

C.F.R. Part 63. The laws and the program regulate, at a minimum, the same sources as the

FCAA and do so with standards that are no less stringent than those specified by the FCAA. The

specific authorities provided below are in effect as ofthe date ofthis statement.

This statement is part of a submission that continues the TNRCC's implementation of

NESHAPs for source categories. In 1996, the EPA approved the TNRCC's program for

implementation and enforcement ofNESHAPs for source categories that apply to major and

area sources that are subject to 40 C.F.R. Part 70. This statement supports the TNRCC's request

for approval ofits program for implementation and enforcement ofNESHAPs for source

categories that apply to area sources regulated by 40 C.F.R. Part 63.

Section 63.91(b)(I) of 40 C.F.R. requires this statement to address the State's authority in

the categories set forth below.
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I. Enforcement of Emission Standards

Pursuant to 40 C.F.R. § 63.91(b)(1)(i) state law must provide civil and criminal

enforcement authority consistent with 40 C.F.R. § 70.11. As part ofthe previous approval

process for NESHAPs for source categories that are subject to 40 C.F.R. Part 70, the TNRCC

submitted several attorney general statements addressing the state's enforcement authority and

the requirements of 40 C.F.R. § 70.11. These statements also addressed the State's enforcement

authority as it related to the TNRCC's federal operating pennits program. The TNRCC

submitted the first ofthese attorney general statements to the EPA on November 12, 1993 (the

"1993 Statement").

In response to deficiencies noted by the EPA and legislative modifications, the TNRCC

revised its federal operating pennits program and submitted two supplemental attorney general

statements. On May 6, 1996, the TNRCC submitted a supplemental attorney general statement

to address the Texas Legislature's 1995 modifications to section 5.115 ofthe Texas Water Code.

On August 6, 1998, the TNRCC submitted a supplemental attorney general statement (the "1998

Statement") in support ofrevisions made to the TNRCC's federal operating pennits program on

October 15, 1997.

The Attorney General's 1993 Statement and 1998 Statement discussed, in detail, the

TNRCC's enforcement authority to implement the requirements of40 C.F.R. § 70.11. 1 As stated

therein, the TNRCC has the authority required by 40 C.F.R. § 70.11. This same enforcement

authority is applicable to both major and area sources. As noted in the 1998 Statement, in 1997

ISee 1993 Statement pp. 13 - 18, 1998 Statement pp. 6 - 7.

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the Texas Legislature consolidated the TNRCC's enforcement authority and moved the

enforcement provisions ofthe Texas Clean Air Act ("TCAA") from the Texas Health and Safety

Code to Chapter 7 ofthe Texas Water Code. The TNRCC included a chart showing the

disposition ofold TCAA enforcement provisions in the Revised Texas Federal Operating

Pennits Program Submittal, Appendix for Submittal Elements, section 70.4(b)(2), "Statutory and

Regulatory Authority."

II. Compliance Status

Pursuant to 40 c.P.R. § 63.91(b)(1)(ii) state law must also provide the authority to

request infonnation from regulated sources concerning their compliance status. In this area, State

law provides the required authorities as follows: (1) the TNRCC is authorized to have reasonable

requirements for measuring and monitoring emissions of air contaminants and to require owners

or operators ofsources to make and maintain records on the measuring and monitoring of

emissions; (2) the TNRCC is allowed to prescribe sampling methods and procedures to be used

to detennine violations of, and compliance with, the TNRCC's rules and orders; and (3) the

TNRCC is allowed to require pennit holders to sample and monitor, require compliance

certifications and to require pennit holders to provide periodic reports ofthe results ofthe

sampling or monitoring.

Citation to State Laws and Regulations:

• TEX. HEALTH & SAFETY CODE ANN. §§ 382.016 (Monitoring Requirements,

Examination ofRecords), 382.021 (Sampling Methods and Procedures), 382.0514

(Sampling, Monitoring and Certification).

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• 30 TEX. ADMIN. CODE §§ 122.132 (Application and Required Information for

.Initial Permit Issuance, Reopening, Renewal, or General Operating Permits),

122.134 (Complete Application), 122.136 (Application Deficiencies), 122.142

(Permit Content Requirements), 122.143 (General Terms and Conditions),

122.144 (Recordkeeping Terms and Conditions), 122.145 (Reporting Terms and

Conditions), 122.146 (Compliance Certification Terms and Conditions), 122.165

(Certification by Responsible Official).

• 30 TEX. ADMIN. CODE §§ 101.8 (Sampling), 101.9 (Sampling Ports).

III. Inspection and Entry Authority.

Pursuant to 40 C.P.R. § 63.91(b)(I)(iii) the state must have authority to inspect sources

and any records required to determine a source's compliance status. In this area, State law

provides the required authority as follows: (1) a member, employee or agent ofthe TNRCC is

allowed to enter public or private property2 at a reasonable time to inspect and investigate

conditions relating to emissions of air contaminants or the concentration of air contaminants in

the atmosphere; (2) a member, employee or agent ofthe TNRCC is allowed to examine during

regular business hours any records or memoranda relating to the operation of any air pollution or

emission control equipment or facility relating to emission of air contaminants; and (3) the

TNRCC executive director is authorized to conduct investigations considered advisable in order

to administer the provisions ofthe TCAA and any ofthe TNRCC's rules, orders and

determinations, including investigations of violations and general air pollution problems or

2The authorization to enter private property does not extend to property designed for and used exclusively

as a private residence for three or less families.

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conditions.

Citation to State Laws and Regulations:

• TEX. HEALTH & SAFETY CODE ANN. §§ 382.015 (Power to Enter Property),

382.016 (Monitoring Requirements; Examination ofRecords), 382.022

(Investigations).

• 30 TEX. ADMIN. CODE §§ 122.143(3) (General Terms and Conditions), 122.144(4)

(Record Keeping Terms and Conditions).

IV. Delegation of Enforcement to Local Agency

Pursuant to 40 C.F.R. § 63.91(b)(I)(iv), the State must retain enforcement authority

unless the local agency granted enforcement authority has authorities that meet the requirements

of 40 C.F.R. § 70.11. In Texas, all grants of enforcement authority to a local government are

limited to the authority granted to the State. As discussed in Section I, the State's enforcement

authority meets the requirements of 40 C.F.R § 70.11. Local government enforcement, therefore,

also must meet the requirements of § 70.11. The State has granted local governments TCAA

enforcement authority in several areas.

Local governments are given the same powers and restrictions that the TNRCC has under

TCAA § 382.015 to inspect the air and to enter public or private property in its territorial

jurisdiction. The local government can do inspections to determine ifthe emissions from a

source meet the emission limits determined by the TNRCC or to determine compliance with an

order, rule, or variance issued by the TNRCC.

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There are five local governments that contract with the TNRCC to conduct

comprehensive compliance inspections. During those inspections the local governments are

required, according to TNRCC protocol, to investigate status of compliance with all applicable

requirements, including emission standards for hazardous air pollutants for source categories for

area sources subject to 40 C.F.R. Part 63. If violations are found, the local governments can

notify the company, but enforcement actions are conducted by the TNRCC regional offices or

the TNRCC Office ofCompliance and Enforcement.

Municipalities also have the power to abate nuisances, to enact and enforce ordinances

for the control and abatement of air pollution, or to enact and enforce any other ordinance that is

consistent with the TCAA or the TNRCC's rules or orders. Ordinances must be consistent with

.~ the TCAA and TNRCC rules and orders and may not make unlawful a condition or act approved

or authorized by the TCAA or the TNRCC's rules or orders.

Local Governments may bring civil enforcement suits in the same manner as the TNRCC

for violations ofthe TCAA. The TNRCC, however, is a necessary and indispensable party to all

civil suits brought by a local government for TCAA violations. The civil penalties recovered by

a local government in a suit ofthis type are split evenly between the State and the local

government.

Citation to State Laws and Regulations:

• TEX. HEALTH & SAFETY CODE ANN. §§ 382.111 (Inspections; Power to Enter

Property), 382.115 (Cooperative Agreements), 382.113 (Authority of

Municipalities).

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• TEXAS WATER CODE ANN. §§ 7.351 (Civil Suits), 7.353 (Commission Necessary

Party), 7.107 (Division ofCivil Penalty).

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