STATEMENT OF LEGAL AUTHORITY 

### FOR TEXAS’ PROGRAM TO IMPLEhIENT AND ENFORCEHAZARDOUS 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. 

## 9 7412(1), and 40 C.F.R. 

## 3 63.91(b)(l), 

### I certify that in my opinion the laws of the State ofTexas provide the necessary legal authority to implement and enforce the program submitted by the TexasNatural Resource Conservation Commission (“TNRCC”) for Federal National Emission Standards for Hazardous Air Pollutants (“NESHAPs”)for source categories for area sources subject to 40

F C.F.R. Part 63. The laws and the program regulate, at a minimum, the same sources asthe 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’sprogram 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’srequest 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)(l) of40 C.F.R. requires this statement to address the State’s authority in the categories set forth below. r*.L

### I. Enforcement 

### ofEmission Standards Pursuant to 40 C.F.R. 

## 3 63.91(b)(l)(i) state law must provide civil and criminal enforcement authority consistent with 40 C.F.R. 

## 3 70.1 1. 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. 

## 8 70.1 1. These statements also addressed the State’s enforcement authority as it related to the TNRCC’s federal operating permits program. The TNRCC submitted the first ofthese attorney general statements to the EPA onNovember 12, 1993 (the “1993 Statement”). In response to deficiencies noted by the 

### EPA and legislative modifications, the TNRCC

rc revised its federal operating permits 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 5.1 15ofthe 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 permits program on October 15, 1997. The Attorney General’s 1993Statement and 1998 Statement discussed, in detail, the TNRCC’s enforcement authority to implement the requirements of

### 40 C.F.R. 

## 3 70.1 1

# .‘ As stated therein, the TNRCC has the authority required by 40 C.F.R. 

## 8 70.1 1. This same enforcement authority is applicable to both major and area sources. As noted in the 1998Statement, in 1997

c” ‘See 1993 Statement pp. 13 - 18, 1998 Statement pp. 6

### - 7. 2e the TexasLegislature consolidated the TNRCC’s enforcement authority and moved the enforcement provisions ofthe Texas Clean Air Act (“TCLL~’~) from the Texas Health and Safety Code to Chapter 7 ofthe TexasWater Code. The TNRCC included a chart showing the disposition ofold TCAA enforcement provisions in the Revised Texas Federal Operating Permits Program Submittal, Appendix for Submittal Elements, section 70.4(b)(2), “Statutory and Regulatory Authority.” 11. Compliance Status Pursuant to 40 C.F.R. $ 63.91(b)(l)(ii) state law must also provide the authority to request information 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 of sources 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 determine violations of, and compliance with, the TNRCC’s rules and orders; and (3) the TNRCC is allowed to require permit holders to sample and monitor, require compliance certifications and to require permit holders to provide periodic reports ofthe results 

### ofthe sampling ormonitoring. Citation to State Laws and Regulations: 

# -

e TEX. HEALTH & SAFETY CODE ANN. 

### $0 382.016 (Monitoring Requirements, Examination ofRecords), 382.021 (Sampling Methods and Procedures), 382.05 14 (Sampling, Monitoring and Certification).



### 330 TEX. 

### ADMIN. CODE 

## $9 122.132 (Application and Required Information for

I 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).

0 30 TEX. ADMIN. CODE 

## $5 101.8 (Sampling), 101.9(Sampling 

### Ports). 111. Inspection and EntryAuthority. Pursuant to 40 C.F.R. 

## 9 63.91(b)(l)(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 of the TNRCC is allowed to enter public or private property’ 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 memorandarelating 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 of the TCAA and any ofthe TNRCC’s rules, orders and determinations, including investigations ofviolations and general air pollution problems or

’The authorization to enter private property does not extend to property designed for and used exclusively F as a private residence for three or less families. 4r”L conditions. Citation to State Laws and Reeulations:

0 TEX. 

### HEALTH &

### SAFETY CODE ANN. 

## $5 382.015 (Power to Enter Property), 352.016 (Monitoring Requirements; Examination ofRecords), 382.022 (Investigations). 30 TEX. ADMIN. CODE 

## $5 122.143(3) (General Terms and Conditions), 122.144(4) (Record Keeping Terms and Conditions). IV. Delegation ofEnforcement toLocal Agency Pursuant to 40 C.F.R. 

### $ 63.9l(b)(l)(iv), the State must retain enforcement authority unless the local agency granted enforcement authority has authorities that meet the requirements of40 C.F.R. 

### $ 70.1 1. 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’senforcement authority meets the requirements of 

### 40 C.F.R $ 70.11. Local government enforcement, therefore, also must meet the requirements of

### 9 70.1 1. The State has granted local governmentsTCAA enforcement authority in several areas. r”

Local governments are given the samepowers and restrictions that the TNRCC has under TCAA $ 382.015 to inspect the air and to enter public or private property in its temtorial 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, orvariance issued by the TNRCC.

5h There are five local governmentsthat contract with the TNRCC to conduct comprehensive compliance inspections. During those inspections the local governments are required, according to TNRCC protocol, to investigate status ofcompliancewith 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 conductedby the TNRCC regional offices or the TNRCC Office of Complianceand Enforcement. Municipalities also have the power to abatenuisances, to enact and enforce ordinances forthe control and abatementof airpollution, or to enact and enforce any other ordinancethat is consistent with the TCAA or the TNRCC’s rules or orders. Ordinances must be consistentwith 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 Governmentsmay bring civil enforcement suitsin the samemanner as the TNRCC for violations ofthe TCAA. The TNRCC, however, is a necessary and indispensableparty to all civil suits brought by a local government for TCAA violations. The civilpenalties 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.

### $0 382.1 11 (Inspections; Power to Enter Property), 382.115 (CooperativeAgreements), 382.113(Authority of Municipalities).
6s TEXAS WATER CODEANN. 

## $47.351 (Civil Suits), 7.353 (Commission Necessary 

### Party), 7.107 (Division of Civil Penalty).

Attorney General ofTexas

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