Bryan W. Shaw, Ph.D., P.E., Chairman 

Toby Baker, Commissioner 

Zak Covar, Commissioner 

Richard A Hyde, P.E., Executive Director 

'i' \-. 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

Mr. Ron Curry 

Regional Administrator 

May30, 2014 

United States Environmental Protection Agency, Region 6 

1445 Ross Avenue, Suite 1200 

Dallas, Texas 75202-2733 

Dear Mr. Curry: 

As part of U.S. Environmental Protection Agency's (EPA) review of the rules submitted by the 

Texas Commission on Environmental Quality (TCEQ) to implement Greenhouse Gas (GHG) 

Prevention of Signification Deterioration (PSD) permitting, you requested TCEQ address the 

administrative and judicial. review processes for GHG PSD permits issued by the executive 

director or the commissioners that will apply upon EPA approval of the TCEQ's GHG PSD 

permitting program and rescission of the Federal Implementation Plan (FIP). 

When applicants apply for a GHG PSD permit, theylllay file ,<mapplication seeking 

authorization only for a GHG PSD permit, or they may filean ~pplication that is consolidated' 

with applications for· certain other authorizations; and notice of an opportunity for public 

comment is provided for both. Therefore, my response is organized to address these scenarios. 

GHG PSD Permit Issuance by the Executive Director 

Separate GHG PSD Application 

If no timely comments are received, the executive director may issue the permit. If timely 

comments are submitted, the executive director may issue the permiton or after the date that 

his Response to Comments is filed? 

The Texas Clean Air Act exempts GHG PSD applications from the contested case hearing (CCH) 

process. Therefore, even if hearing requests are submitted, the executive director may issue the 

permit, as allowed by TCEQ rule. 

To appeal a GHG PSD permit issued by the executive director, a person must exhaust the 

available administrative remedies, specifically by filing a Motion to Overturn (MT0).3, 4 No 

affected-person5 determination is necessary by TCEQ as prerequisite to the filing or the 

1 The use of the term "consolidated application" in thjs letter means that one application is filed for a GHG PSD 

permit, together with applicatioris'·fo:f. an·e or more of the following types of permits: minor-New Source Review 

(NSR), minor NSR flexible permit, non-GHG PSD, and nonattainment. 

'30 Tex. Admin. Code§ 50.133. 

3fd. 

P .0. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • tceq.texas.gov 

How is our customer service? tceq.texas.govjcustomersurvey 

printed on recycled paper using vegetable-based ink 
Mr. Ron Curry 

Regional Administrator 

U.S. Environmental Protection Agency, Region 6 

Page 2 

May30, 2014 

commissioners' consideration of an MTO. If the commissioners grant the MTO, the application 

would be remanded to the executive director. If an MTO is denied by the commissioners or 

overruled by operation of law, the final order may be appealed to a Travis County District 

Court. 6 If appealed to district court, the judge will, pursuant to statute, determine whether the 

appellant is a person affected by the decision of the TCEQ and thus whether the appellant has 

standing.' In other words, if the legislature has eliminated contested-case hearings as an 

available administrative remedy (and thus obviated affected-person determinations by TCEQ), 

an affected person may still obtain judicial review if the person has exhausted the remedies that 

are available. 

Consolidated GHG PSD Application8 

The process for consolidated applications will be the same as it is·for separate applications, 

unless a request for a CCH is received regarding the non-GHG portions of the application. If a 

CCH request is received, the entire application will be forwarded to the commissioners for 

consideration, which is discussed below. 

GHG PSD Permit Issued by the Commission 

Separate GHG PSD Application 

If the commissioners issue a GHG PSD permit, a person must exhaust the available 

administrative remedies, specifically by filing a Motion for Rehearing (MFR) on the order issued 

by the commissioners, to appeal the decision.9 

The commissioners may grant the MFR in whole or in part; if the commissioners grant the MFR, 

the decision or order is nullified.10 If the commissioners deny the MFR or if the MFR is 

overruled by operation of law, the final order may be appealed to a Travis County District 

Court. n If appealed to district court, the judge will, pursuant to statute, determine whether the 

appellant is a person affected by the decision of the TCEQ and thus whether the appellant has 

standing. '

2 And, as noted above, the absence of an opportunity for a contested-case hearing and 

an affected-person determination byTCEQ do not determine whether a person has standing to 

file suit in district court challenging the issuance of a GHG PSD permit by the commissioners. 

4 Information regarding MTOs was previously submitted to EPA witb the amendments to the public participation 

rules for air quality permit applications at 35 Tex. Reg. 5198, 5201 (June 18, 2010). 

'As that term is defined in Tex. Water Code§ 5.115(a) and TCEQ rule 30 Tex. Admin. Code§ 55.103. 

'Tex. Health & Safety Code§ 382.032, Tex. Water Code§ 5.351. 

'I d. 

8 See Footnote 1. 

'30 Tex. Admin. Code §50.119. 

w 30 Tex. Admin. Code§ 8o.272(d)(2). 

"Tex. Health & Safety Code§ 382.032, Tex. Water Code§ 5.351. 

12Jd. 
Mr. Ron Curry 

Regional Administrator 

U.S. Environmental Protection Agency, Region 6 

Page 3 

May3o, 2014 

An administrative agency may establish a rehearing process by rule'3 which the TCEQ has done 

in § 50.119. In § 50.119, the commission incorporated by reference the process found in § 

80.272.'• It is important to note that the reference to § 80.272 in § 50.119 is included as a 

matter of drafting convenience only. When adopting both of these new rules in 1999, the 

commission elected to use the cross reference rather than repeating the requirements specified 

in § 80.272. Therefore, the procedural aspects of filing an MFR, such as the deadline and 

contents, are the same regardless of whether an application is subject to a CCH. 

Consolidated GHG PSD Application 

Unless the application is directly referred to the State Office of Administrative Hearings (SOAH) 

for a CCH at the request of the applicant or the executive director, any hearing requests for the 

non-GHG portion of the application will be considered by the commissioners. 

If the commissioners deny the hearing requests, they may approve the application and issue all 

of the permits, 's which will be contained in a consolidated permit document. 16 

If the commissioners grant any hearing requests, the application and draft permit will be 

referred to the SOAH for a CCH on issues related to the non-GHG portion of the application and 

draft permit as allowed by statute and commission rules.'' If a CCH is held, SOAH will conduct 

an evidentiary hearing and prepare a Proposal for Decision (PFD) regarding the contested 

portion of the application and draft permit for consideration by the commissioners. When the 

PFD is considered by the commissioners in an open meeting, the commissioners will also 

consider the GHG PSD portion of the application and draft permit, and action will be taken on 

the entire application at one time. 

After consideration of the PFD, the commissioners may approve the consolidated application 

and issue a consolidated GHG PSD permit document, or deny the application for such permits. 

Each of these final actions by the commissioners on a consolidated application is subject to the 

MFR requirement.'8 To appeal a final order of the commissioners, a person must first file an 

MFR. If the commissioners deny the MFR or if the MFR is overruled by operation of law, the 

final order may be appealed to a Travis County District Court.'' If appealed to district court, the 

"Tex. Air Control Bd. v. Travis Cnty, 502 S.W.zd 213, 215 (Tex. Civ. App.-Austin 1973, no writ); see also Sproles 

Motor Freight Line, Inc. v. Smith, 130 S.W.zd 1087, 1088 (Tex. Civ. App.-Austin 1939, writ ref d) (requiring plaintiff 

to exhaust administrative remedy created by rule; because writ was refused, opinion has precedential value of opinion 

by Texas Supreme Court). 

'4 30 Tex. Admin. Code § 80.272. 

"30 Tex. Admin. Code§ 50.113(c)(2). 

''For example, the permit document will be for Air Quality Permit No. 12345 and GHG PSD TX Permit No. 101. 

'' 30 Tex. Admin. Code§ 50.115. See also 30 Tex. Admin. Code§ 50.113(b), which provides that rules regarding 

action of the commission do not create a right to a CCH where the opportunity for a CCH does not exist under other 

law. 

'' 30 Tex. Admin. Code § 50.119. 

''Tex. Health & Safety Code§ 382.032, Tex. Water Code§ 5.351. 
Mr. Ron Curry 

Regional Administrator 

U.S. Environmental Protection Agency, Region 6 

Page4 

May30, 2014 

judge will, pursuant to statute, determine whether the appellant is a person affected by the 

decision of the TCEQ and thus whether the appellant has standing. 20 

Conclusion 

I am confident that the proposed rule changes together with the information submitted in this 

correspondence will ensure SIP approval of the rules adopted to implement GHG PSD 

permitting. If you have any questions or need further information, please contact me or Janis 

Hudson, Attorney in our Environmental Law Division at 512-239-0466. 

Sincerely, 

~A;,~.a_ Executive Director 

Texas Commission on Environmental Quality 

RAH/jbh 

cc: Steve Hagle, P.E., Deputy Director, Office of Air 

2o Id. 

Mike Wilson, P .E., Director, Air Permits Division, Office of Air 

Caroline Sweeney, Deputy Director, Office of Legal Services 

Booker Harrison, Senior Attorney, Environmental Law Division, Office of Legal Services 

Janis Boyd Hudson, Attorney, Environmental Law Division, Office of Legal Services