# - STATEMENT OFLEGAL AUTHORITY FORTEXAS' PROGRAl\l TO IMPLEl\IENT AND ENFORCE HAZARDOUS AIRPOLLUTANT EMISSION STANDARDS FOR CATEGORIES OF AREA SOURCES STATE OF TEXAS OFFICE OF THE ATTORNEY GENERAL Pursuantto my authority as the Attorney General ofTexas, and in accordance with section 112(1) ofthe Federal CleanAirAct ("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 submittedby the Texas Natural Resource Conservation Commission ("TNRCC") forFederal National Emission Standards for Hazardous AirPollutants ("NESHAPs") for source categories for area sources subjectto 40 C.F.R. Part 63. The laws andthe programregulate, at aminimum, the same sources as the FCAA and do so with standards that are no less stringentthan those specifiedby the FCAA. The specific authorities providedbelow are in effect as ofthe date ofthis statement. This statementis part ofa 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 

### majorand


### area sources that are subjectto 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) of40 C.F.R. requires this statement to address the State's authority in the categories set forth below.

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- I. Enforcement ofEmission Standards Pursuant to 40 C.F.R. 

### § 63.91(b)(1)(i) state lawmustprovide civil and criminal enforcement authority consistentwith 40 C.F.R. § 70.11. As part ofthe previous approval process for NESHAPs for source categories that are subjectto 40 C.F.R. Part 70, the TNRCC submitted several attorney general statements addressing the state's enforcement authority and the requirements of40 C.F.R. § 70.11. These statements also addressed the State's enforcement authority as itrelated 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. OnAugust 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 implementthe requirements of40 C.F.R. § 70.11. 1 As stated therein, the TNRCC has the authority requiredby 40 C.F.R. 

### § 70.11. This same enforcement authority is applicable to bothmajor and area sources. As noted in the 1998 Statement, in 1997

ISee 1993 Statementpp. 13

- 18, 1998 Statementpp. 6 - 7. 2

# - the Texas Legislature consolidated the TNRCC's enforcement authority and moved the enforcementprovisions ofthe Texas Clean AirAct ("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 enforcementprovisions 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 theircompliance 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 ofair contaminants and to require owners
or operators ofsources to make and maintainrecords onthe measuring and monitoring of emissions; (2) the TNRCC is allowedto prescribe sampling methods andprocedures to be used to detennine violations of, and compliance with, the TNRCC's rules and orders; and (3) the TNRCC is allowed to require pennitholders to sample and monitor, require compliance certifications and to require pennitholders to provide periodic reports ofthe results ofthe sampling ormonitoring. Citation to State Laws and Regulations:

• TEX. HEALTH & SAFETY CODEANN. §§ 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 ContentRequirements), 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 EntryAuthority. 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) amember, employee or agent ofthe TNRCC is allowed to enterpublic orprivate property2 at a reasonable time to inspect and investigate conditions relating to emissions ofair contaminants orthe concentration ofair contaminants in the atmosphere; (2) a member, employee or agent ofthe TNRCC is allowed to examine during regularbusiness hours any records ormemorandarelating to the operation ofany airpollution or emission control equipment or facility relating to emission ofair 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 ofviolations and general airpollutionproblems or

2 The authorization to enterprivate property does not extend to property designed for and used exclusively as aprivate residence for three or less families. 4

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-



# - conditions. Citation to State Laws and Regulations:

• TEX. HEALTH & SAFETY CODEANN. §§ 382.015 (Powerto EnterProperty), 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 ofEnforcementto Local Agency Pursuant to 40 C.F.R. 

### § 63.91(b)(I)(iv), the State mustretain enforcement authority unless the local agency granted enforcement authority has authorities that meet the requirements of40 C.F.R. 

### § 70.11. In Texas, all grants ofenforcement 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 of40 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 enterpublic orprivate property in its territorial jurisdiction. The local government can do inspections to determine ifthe emissions from a
source meet the emission limits determinedby the TNRCC orto determine compliance with an order, rule, orvariance issued by the TNRCC.

5There are five local governments that contractwith the TNRCC to conduct comprehensive compliance inspections. During those inspections the local governments are required, according to TNRCC protocol, to investigate status ofcompliance with all applicable requirements, including emission standards for hazardous airpollutants for source categories for
area sources subject to 40 C.F.R. Part 63. Ifviolations 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 powerto abate nuisances, to enact and enforce ordinances for the control and abatement ofairpollution, orto enact and enforce any otherordinance that is consistentwith the TCAA orthe TNRCC's rules ororders. Ordinances mustbe consistent with**.~** the TCAA and TNRCC rules and orders and may not make unlawful a condition or act approved
or authorized by the TCAA orthe TNRCC's rules ororders. Local Governments maybring 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 evenlybetween the State and the local government. Citation to State Laws and Regulations:

• TEX. HEALTH & SAFETY CODEANN. §§ 382.111 (Inspections; Power to Enter Property), 382.115 (Cooperative Agreements), 382.113 (Authority of Municipalities)
.

.

# - 6• 

### TEXAS WATERCODEANN. §§ 

### 7.351 (Civil Suits), 7.353 (CommissionNecessary Party), 7.107 (Division ofCivil Penalty).

7