STATEMENT OF LEGAL AUTHORITY FOR TEXAS’ PROGRAM TO IMPLEhIENT 

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 of Texas, and in accordance with 

section 112(1) of the 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 of Texas 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 

F 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 of the date of this 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 of NESHAPs 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 of its program for implementation and enforcement of NESHAPs for source 

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

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

the categories set forth below. r*.L 
I. Enforcement of Emission 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 of the 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 of these 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 

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 15 of the Texas Water Code. 

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

Statement”) in support of revisions made to the TNRCC’s federal operating permits 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 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 1998 Statement, in 1997 

c” ‘See 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 of the Texas Clean Air Act (“TCLL~’~) from the Texas Health and Safety 

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

disposition of old 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 of the results of the 

sampling or monitoring. 

Citation to State Laws and Regulations: 

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e TEX. HEALTH & SAFETY CODE ANN. $0 382.016 (Monitoring Requirements, 

Examination of Records), 382.021 (Sampling Methods and Procedures), 382.05 14 

(Sampling, Monitoring and Certification). 

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30 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 Entry Authority. 

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 of the 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 of the TCAA and any of the TNRCC’s rules, orders and 

determinations, including investigations of violations 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. 

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conditions. 

Citation to State Laws and Reeulations: 

0 TEX. HEALTH & SAFETY CODE ANN. $5 382.015 (Power to Enter Property), 

352.01 6 (Monitoring Requirements; Examination of Records), 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 of Enforcement to Local 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 

of 40 C.F.R. $ 70.1 1. 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 9 70.1 1. The State has granted local governments TCAA 

enforcement authority in several areas. 

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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 temtorial 

jurisdiction. The local government can do inspections to determine if the 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 of Compliance 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 of the 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 of this 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), 382.1 15 (Cooperative Agreements), 382.1 13 (Authority of 

Municipalities). 

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s TEXAS WATER CODE ANN. $4 7.351 (Civil Suits), 7.353 (Commission Necessary 

Party), 7.107 (Division of Civil Penalty). 

Attorney General of Texas 

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