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SUPPLEMENT TO 1993,1996, and 1998 STATEMENTS OF LEGAL AUTHORITY FOR

TEXAS'S FEDERAL CLEAN AIR ACT TITLE V OPERATING PERMIT PROGRAM

State ofTens

Office ofthe Attorney General

INTRODUCTION

This is the final statement ofthe Attorney General ofTexas concerning Texas"s authority

to carry out its state program to implement a federal Clean Air Act Title V operating pexmit

program in accordance with Part 70 ofTitle 40, Code ofFederal Regulations (40 C.F.R.). The

program will be referred to hereinafter as the Part 70 Operating Pennit Program.1

The fonn ofthis statement is based on the United States Environmental Protection

Agency's (EPA's) Title V Model Attorney General Opinion ofJWle I, 1993.2 The Texas Natw:al

Resource Conservation Commission (TNRCC or Commission) has submitted three previous

Attorney General statements to certify authorities required for its Part 70 Operating Pcnnit

Program. The TNRCC submitted the first ofthese on November 12, 1993 (the 1993 Statement).

A copy ofit is attached hereto as Attachment A. The 1993 Statement comprehensively covered

the requirements for certification listed in 40 C.F.R. section 70.4(bX3) and was also based on the

model BPA Title V certification document. The two additional Attorney Generalstatements

addressed specific issues raised by the EPA and revised the 1993 Statement for subsequent .

modifications to Texas's Part 70 Operating Permit Program.) The TNRCC submitted the first of

ITitle V ofthe federal Clean Air Act is codified at 42 U.S.C. §§ 7661-7661f.

2Tho BPA model opinion is organized into sections for each area ofcertification. Each

section in this Supplement document begins with a statement ofauthority based on the EPA

model opinion.

lSoc6on 70.4(i)(2){i) of40 C.P.R. r¢q\li~ n l;ta.te to !:ubrnit 3. :modified Attorney General

statement ifit revises its operating pennit regulations.
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these on May 6, 1996 (the 1996 Statement). A copy ofit is attached hereto as AttachmentB. It

includes a letter ofcommitmcnt by the Commission's Executive Director and Geoem1 Counsel.

The TNRCC submitted the second additional A.f:tomey GenecaI statement on August 6. 1998 (the

1998 Statement) as a supplement to the 1993 and 1996 Statements. A copy ofit is attached

hereto as Attachment C.

'Ibisstatement incorporates the contents ofthe earlier statements and does Dot repeat the

entire contents ofthe 1993, 1996, or 1998 Statements but instead notes whethec legislative or

regulatory changes mandate revision ofthose statements' analyses.

STATEMENT OF THE ATTORNEY GENERAL

As the Attorney General ofthe State ofTexas, in accordance with section 502(d) ofthe

federal Clean Air Act (eAA) as amended and BPA regulations.4 I certify that the laws of"the

State ofTexas. including the Texas Clean Air Act (TCAA). Texas Health and Safety Code

Chapter 382, provide adequate authority to carry out all aspects ofthe program submitted on

June 1, 200I, by the TNRCC to the EPA for final approval to administer and enforce Texas s

Part 70 Operating PermitProgram as required by Title V oCthe eM.

The State's Part 70 Operating Pennit Program has been previously submitted and

interimlyapproved by the EPA. On August 23, 1993, tho TNRCC adopted its inItial Port 70

Operating Permit Program regulations in 30 Texas Administrative Code (T.AC.) Otapter 122,

442 U.S.C. § 7661a(d); 40 C.F.R § 70.4(b)(3).

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Federal Openting Permits.s On SeptEmber 17, 1993, and iu two supplemental documen~s the

TNRCC submitted its proposed. Part 70 Operating Permit Program to the EPA.' On Iune 25,

1996, the EPA promulgated its.first interim approval ofthe program. The EPA noted continuing

deficiencies'in the program and called for their correction prior to full program approval.7 On

October IS, 1997, the Commission adopted revisions to 30T.A.C. Chapter 122 in part to address

some ofthe deficiencies noted by the EPA in its prior notices.' On three occasionsthe EPA has

extended its interim approval ofTexas's Part 10 Operating Permit Program. On August 29,

1m, the EPA extended the interim approval ofthe program until October 1, 1998.9 Again, on

July 21, 1998, the EPA extended the interim approval to June 1. 2000.10 On February 14. 2000,

the EPA published another extension that would have extended interim program approval to June

1,2002.11 On March 29, 2000, however, the EPA published a withdrawal ofthe February 14,

2000, extension based on an adverse comment that the extension was contrary to the express

$See 18 Tex. Reg. 5989 (1993).

'On June 7, 1995. EPA published a proposal to give the Commission's program interim

approval 60 Fed. Reg. 30,037 (1995). In that proposaL the EPA noted several deficiencies that

would require conootion prior to the CommilS6ion's obtaining both interim and tUll pr<>gnm

approval. The Commission responded in a letter dated. October 3, 1995.

7See 61 Fed. R.eg. 32,693 (1996).

'See 22 Tex. Reg. 10,677 (1997Xcodi1ied as amendment to 30 T.A.C. Chapter 122).

962 Fed. Reg. 45,732 (1997).

1063 Fed. Reg. 40.053 (1998).

1165 Fed. Reg. 7290 (2000).

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provisions oftheCAA.12 Subsequently, on May 22, 2000, the EPA published notice that all

states with interim approval would have untilJune 1, 2001. to submit a program for full program

approval and that the EPA would take action on those submittals by December 1,2001.))

Pursuant to 40 C.F.R. section 70.4(3), the Attorney General is to certifY that the laws of

Texas provide adequate legal authority for Texas to carry out all aspects ofits submitted Part 70

Operating Permit Program in accordance with the requirements ofTitle V ofthe eAA and 40

C.F.R. Part 70. Each enumerated requirement is listed below in its own section with the specific

requirement restated from the BPAModel Opinion.

L AUfHORITY TO ISSUE PERMITS14

State law provides authority for the TNRCC to issue operating permits to all air pollution

sources within the State that are required to have petmits pursuant to eAA section 502(a), Title

42, United States Code (42 U.S.C.) section 7661a(a), and 40 C.F.R. section 70.3 and to

incoIpOrate into permits and assure compliance with each applicable requirement ofthe eAA and

the teqUirements of40 C.F.R. Part 70. State law also provides authority to issue opera.ting

permits for solid waste incineration units cornbusting municipal solid waste PUI'5llallt to C~

Section 129(e), 42 U.S.C. section 7429(e), that assure compliance with all applicable

requ.jrements ofthe CAA and the requirements of40 C.F.R. Part 70.

12<)5 Fed. Reg. 16,523 (2000).

1365 Fed. Reg. 32,035 (2000).

1

4

This heading, like each other heading below that begins 'With a roman numeral, crossrefers to a section in the 1993 Statement with the same heading.

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Fedgal Authority:

CAA §§ 129(e), 502(a)-(b), 503, 504(a) (42 U.S.C. §§ 7429(e), 7661a(a)-(b), 766lb,

7661C(a».

40 C.F.R. §§ 70.4(bX3)(i), 70.4(b)(3Xiv), 70.4(bX3)(v), 70.5(a), 70.6, 70.7(b).

CItation ofState Laws and Regulations;

TEX. HBALm & SAFBTYCOOE §§ 382.051,382.0513,382.0514,382.054,3820541,

382.0543,382.056,382.0561,382.0562,382.0563,382.0564.

TEx. WATBR. CODE § 7.302 (replaces fonner TEx. H£AL1H & SAFBTY CODE § 382.059

(repealed».

30 T.A.C. Chapter 122.

The analysis in this section is unchanged except for a change to the scope ofthe

applicable requirements covered by the State's Part 70 Operating Pennit Program. As discussed

in Section VIII below, in 2001 the TNRCC amended its definition ofapplicable requirement in

30 T.AC. Chapter 122 to be consistent with 40 C.F.R Part 70.

ll. AUTHORITY TO ISSUE PERMITS TO NONCOMPLYING SOURCES

State law provides authority for the TNRCC to issue pemrlts to sources that are not in

compliance with applicable requirements and to include «::omplianoe SGhodulcs in permits to bring

sources into compliance.

Federal Authority:

CAA §§ 502(bX5)(A), 504(a) (42 U.S.C. §§ 7661a(bX5XA), 7661c(a».

40 C.F.R. §§ 70.5(c)(8), 70.6(cX3).

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Citation ofState Laws and Regulations:

TBx.HEALm& SAFETY CoDE § 382.051(c).

30 T.AC. §§ 122.t32(e), 122.142(e).

The analysis in this section is not changed.

m. PERMIT AGENCY l\1EMBERSHIP AND CONFLICTS OF INTEREST

State law provides that no State board or body that approves operating permits, either in

the first instance or upon appeal, shall be constituted ofless than a majority ofmembers who

represent the public interest and who do not derive a significant portion oftheir income from

persons subjeet to operating permits. State Jaw also provides that any potential conflicts of

interest by members ofsuch board or body or the head ofany executive agency with similar

powers be adequately disclosed. State law a100 provides that no pemUt for a solid waste

incinemtion unit may be issued by an agency, instIumentality or person that is also responsible,

in whole orin. part, for the design and construction or opention ofthe unit

Federal Authority:

eAA §§ 128(aXl)-(2), 129(e) (42 U.S.C. §§ 7428(a)(I)-(2), 7429(e».

40 C.F.R § 70.4(bX3)(iv).

Citation o(State LaWQ pnd R.egulations:

TBX. WATER CODE § 5.052(a), 5.053. 5.059.

TBx.1IBALrn& SAFETY C<>DB § 382.0591(b).

TEx. GoV'TCODE, Chapter 572.

The analysis in this section is unchanged.

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IV. PERMlT FEES

State law provides authority for the TNRCC to assess and collect annual pennit fees from

sources within the State that are subject to the requirements ofTitle V ofthe CM and 40 C.F.RPart 70, in an amoWlt sufficient to rover all reasonable direct and indirect costs required to

develop, administer, and enforce the State's Title V program.

Fedqal Authority;

eAA § 502(b)(3)(A) (42 U.S.C. § 7661a(b)(3)(A».

40 C.P.R. §§ 70.9(a)-(d).

Citation ofStateLaws and Regulations:

TEx. REALm & SAF'BTY CoDE §§ 382.0621, 382.0622(b)-(c).

30T.A.C. § 101.27.

30 T.A.C. § 122.l43(lO)~

The analysis in this section is not changed.

V. PERMIT TERM

State law generally provides authority to issue operating permits for a fixed teem not to

exceed five years. State law also provides authority to issue pennits with acid rain provi6ions for

a fixed term offive years.

Federal Authority:

eAA §§ 129(e), 408(a), 502(b)(5){B) (42 U.S.C. §§ 7429(c), 76S1g(a), 7661a(b)(5)(B».

40 C.F.R. §§ 70.4(b)(3)(i), 70.6(aX2), 72.7O(b), 72.72(a.).

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Citation ofState Laws and Regulations:

Tlpc. HEALTH & SAFETY CODE §§ 382.0541(a)(5), (12), 382.0S43(a).

30 T.A.C. §§ 122.143(2). 122.201{d), 122.241.122.410.

The analysis in this section is not changed.

VI. MONITORING, RECORDKEEfING, AND REPORTING

State law provides authority to incorporatemonitoring, reeoidkeepin& reporting, and

compliance certification requirements into operating permits consistent with 40 C.F.R. section

70.6. State law provides authority to incoxporate into the pennit periodic monitoring ortesting

requirements where the existing State Implementation Plan or other applicable requirement does

not contain such a requirement, consistent with 40 C.F.R section 70.6(a)(3)(i)(B).

Fedexal Anthority:

CAA §§ S02(b)(2), 503(b)(2), 504(a)-(c) (42 U.S.C. §§ 7661a(b)(2), 7661b(bX2),

7661o(a)-(c».

40 C.F.R. §§ 70.4(bX3Xii), 70.6(aX3), 70.6(c)(l}, 70.6(cX5).

Citation ofStateLaws and Regulations:

TEx.lIEALm&SAFETYCoDE §§ 382.016. 382.021. 382.0514.

30 T.A.C. §§ 122.140, 122.142(0), (h). 122.144, 12.2.145, 122.146. 122.600, 122.602,

122.604,122.606,122.608,122.610, 122.612, 122.700,122.702,122.704, 122.706, 122.708,

122.710,122.712,122.714,122.716.

30 T.A.C. §§ 101.8, 101.9.

The analysis in this section is not changed.

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VD. INSPECTIONIENTRY AUTHORITY

State law provides authority to incolpOI"ate into pennits inspection and entIy requirements

consistent with 40 C.F.R. section 70.6{c)(2).

. Federal Authority:

CAA § 504(0) (42 U.S.C. §7661c(c».

40 C.F.R. § 70.6{c)(2).

Citation ofState Laws and Reeutmions:

TEx.1IBAL'ni & SAFElY CoDE §§ 382.015.382.022.

30 T.A.c. §§ 122.143(3). (8), 122.144.

The analysis in this section is not changed.

VIIL INCORPORATION OFALL APPLICABLE REQUIREMENTS INTO PERMIT

State law provides authority to incoxporate into an operatingpermit, upon i~ce'or

renewal, an applicable requirements as defined in 40 C.F.R. section 70.2 and as provided

generally in the CM and 40 C.F.R. Part 70.

Federal Authority:

eAA §§ S02(b)(S)(C), 504(a) (42 U.S.C. §§ 7661a(b)(5)(C), 7661c(a»).

40 C.P.R. §§ 70.4(b)(3Xv). 70.6(a).

~tation ofState Laws and Regulations:

TBx. HEALTH & SAFETY CODE §§ 382.0541,382.0542,382.0543.

30 T.A.C. §§ 122.10(2), 122.131, 122.132, 122.136, 122.142. I22.201 (a), 122.231,

122.231(a), 122.241.

The analysis in this section is changed as follows.

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Section 70.4(bX3Xv) requires State programs to ''incorporate into pennits an applicable

requirements and requirements ofthis part." In the 1993 Statement, this secti~ discussed

whether or not a state's minor new source review permitting program (State Minor NSR) is an

applicable requirement that must be included in an operatingpermit IS As discussed previously,

in 1996 the EPA interimly approved Texas's Part 70 Operating Permit Program without State

Minor NSR included as an applicable requirement.

On June 3,2001, the Commission's final revisions to 30 T.A.C. Chapter 122 took

effect.16 These revisions modified the definition ofapplicable requirement to include State

Minor NSR.17 Applicable requirements ofthe submitted program now include all ofthe major

and minor new source review requirements of30 T.AC. Chapter 116, Control ofAir Pollution

by Pemrlts for New Construction or Modification, and 30 T.A.C. Chapter 106, Permits by Rule.

The revised rules provide the procedw-es for incorporating State MinorNSR into existing

permits and pending permit applications. Pursuant to 30 T.AC. section 122.142(bX3). ifthe

TNRCC did not authorize the initiation ofpublic notice for an operating pernrit by June 3, 2001,

the issued permit must include all required preconstruction authorizations, including State Minor

NSR Permits for which 'the TNRCC did authorize the initiation ofpublic notice by June 3.

UIn the June 7, 1995, EPA notice and later in the June 25. 1996, EPA notice. EPA noted

that the 1993 version of30 T.A.C. Chapter 122 did Dot properly ad<kess State MinorNSR as an

applicable requirement Furthennore, the EPA has stated in both the June 7, 1995, and June 25.

1996, EPA notices that the State Minor NSR issue must be addressed in order fOf the

Commission to gain full program approval.

J~6 Tex. Reg. 3791-3807 (2001).

1726 Tex. Reg. at 3792.

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2001. will not include State Minor NSR at initial issuance. However, pmsuant to 30 T.A.C.

section 122.231, the TNRCC will institute proceedings to reopen previously issued operating

permits to incorporate the excluded State Minor NSR permits, as soon as practicable, but no later

than pennitrenewal.

IX. PERMIT REOPENING

State law provides authority to revise pennits with remaining tenns ofthree or more years

to incoxporate new applicable requirements that become effeeti'~e sfter issuance ofthe permit.

State law provides authority to reopen permits when additional acid rain requirements become

applicable, regardless ofthe remaining permit term. State law provides authority to terminate,

modify. orrevoke permits for at any time during the pennit term consistent with 40 C.F.R.

section 70.7(f)-(g).

Federal Authority;

eAA §§ 502(b)(5)(D), (bX9) (42 U.S.C. §§ 7661a(b)(S)(D), (b)(9».

40 C.F.R. §§ 70.4(b)(3Xvi). 70.6(a)(6)(rli). 70.7(%).

Citation ofState Laws and Regulations:

TEx. HSALnI & SAFETY CoOB §§ 382.0541(b), 382.0541(aX7), 382.0542(bX4).

fix. WATBRCoDE § 7.302.

30 T.A.C. §§ 122.143(7)-(8), 122.231, 122.414(a)(4).

The analysis in this section is not changed.

X. OPERATIONAL FLEXIBILITY

State law provides authority to issue pennits that allow changes within a pennitted

facility without requiring a permit revision ifthe changes are not modifications under any

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provision ofTitle I ofthe eM an~ the changes do not exceed the emissions allowable under the

penni~ provided that the source provides at least seven days (or fewer days ifthe State requires

less time in an emergency) written notice to the State and to EPA. State law provides authority

for pemrlts to include tenns and conditions for reasonably anticipated alternative opetating

scenarios in pmnits..

Federal Authority:

CM § 502(bXIO) (42 U.S.C. § 1661a(b)(lO».

40 C.F.R. §§ 70.4(bX12), 70.6(aX9).

Citation ofState Laws and Regulations:

TEx. HEALrn & SAFETY CQDE §§ 382.0S11(c). 382.0S41(aX3XA).

30 T.A.C. § 122.222.

The analysis in this seclion has changed as follows. In the June 7. 1995, EPA notice,

EPA stated that the operational flenbility section of30 T.A.C. Chapter 122, as submitted in

1993, was inconsistent with 40 C.F.R. section 70.4(b)(12) and eMsection 502(bXIO), 42

U.S.C. section 7661a(bXl 0), because it could potentially allow modifications that violate what

EPA considetS applicable requirements.II In addition, in the June 25,1996, EPA notice, EPA

stated that for Te~aB to receive full approval, 30 T.A.C. Chapter 122 must be consistent with the

version of40 C.F.R. Part 70 in effect at the time offull program submittal.IP In 1997, the

Commission deleted the operational flexibility rules in 30 T.AC. Chapter 122, in response to an

IllSee 60 Fed. Reg. 30,044 (1995)

19See 61 Fed. Reg. 32,696 (1996).

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August 31, 1995,.EPA rule proposal, in which EPA proposed to delete the definition of

"Section S02(bX10) changes" from 40 C.F.R section 70.2 and to delete the reference to

"Section 502(bXlO) changes" in 40 C.F.R. section 70.4(b)(l2). The August 31, 1995. pro~

however, waS not finally promulgated, so the Commission revised 30 T.A.C. Chapter 122 in

2001 to be consistent with provisions in 40 C.F.R section 70.4{b)(12).

XL PERMIT MODIfiCATIONS

State law provides authority to process permit modifications in a manner that conforms

to, or is substantially equivalent to, the procedures set forth under 40 C.F.R. section 70.7(e).

.Federal Authority:

CAA § 502(bX6) (42 U.S.C. § 7661a(bX6».

40 C.F.R.. §§ 70.4(bX13), 70.7(e).

Citation ofState Laws and Regulations:

TEx. HBALm & SAFETY CODE §§ 382.0S1(a), 382.056, 382.0561,382.0562.382.0563.

30 T.A.C. §§ 122.210, 122.215-122.218, 122.219, 122.221,122.312, 122.320, 122.330,

122.322, 122.340. 122.345, 122.350, 122.360.

The analysis in this section is unchanged except to note that 2001 revisions to 30 TAC.

Chapter 122 significantly roviaod the permit revision process to be consistent with 40 C.F.R..

section 70.7.

XIL PUBLIC PARTICIPATION

State law provides authority for procedures to allow public participation in the lNRCC's

action to issue ot' deny an operating pennit. to modify a pennit (except as provided in sections

70.7(eX2) and (3», or to renew a pennit. Public participation under State law includes the

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oppOrtunity for public comment and the opportunity for a heating on draft permitsin accordance

with the requirements ofthe eMand 40 C.F.R. section 70.7(h). State law provides for affected

states to review pennit applications in. accordance 'With the eMand 40 C.F.R. section 70.8(b).

Federal Authoritx:

CM §§ 502(bX6), SOS(aX2) (42 U.S.C. §§ 7661a(bX6), 7661d(aX2».

4OC.F.R §§ 70.7(1), 70.8(b).

Citation ofState Laws and Regulations:

TBx.lIBALrn& SAFETY CODB §§ 382.056,382.0561,382.0562,382.0563,382.0564.

30 T.A.C. §§ 122.312.122.320,122.330,122.322,122-340,122.345,122-350,122.360.

The analysis in this section is unchanged except as follows. Recent Texas legislation

revised the requirements in TeAA section 382.056, concerning pUblic notice for operating

permits.20 The legislation expanded the information that a notice must contain, to include

information about availability ofdocuments regarding the permit application.

.xm. PUBLIC ACCESS TO PERMIT INFORMATION

State lawprovides authority to make available to the pUblic any permit application,

compliance plan. penni!, and monitoring and compliance certification repo~ mccept for

information CDtitl~ to confidential treatment. State law provides that the contents ofan

operating pernrit shall not be entitled to confidential treatment

.. 20Act ofMay 30,1999, 76th Leg., RS., Ch. 1350, 1999 Tex. Oen Laws 4570.

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Federal Authority:

CAA §§ 114(c). 502(b)(8). S03(e) (42 U.S.C. §§ 7414(c») 766JQ(b)(8), 7661b(e».

40 C.F.R. § 10.4(bX3)(viii).

Citation ofStateJ..aws and Regulations:

TEx. HEALm & SAFETY CODe §§ 382.040. 382.041.

30T.A.C. §§ 122.143(8») 122.320(g).

30 T.A.C. § 1.5(d).

The analysis in this section is unchanged except as follows. Recent Texas legislation

revised the requirements in TCM section 382.056 concerning public notice for operating

permits.21 A newspaper notice for an opcnting pennit must now include information regarding

the location at which a copy ofthe application is available for public review and copying; a

description ofthe procedure by which a person may be placed on a mailing list in orderto

receive additional infonnation about the application; and the time and location ofany public

meeting to be held concerning the application. These requirements are in addition to those

required by 40 C.F.R Part 70.

On April14, 2000, the Commission and the EPA entered into a memorandum of

agreen1ent regarding the transmission ofconfidQUtial infonnation to thQ BPA. The; BPA agreed

to adhere to the provisions ofTCAA section 382.041 and federal law regarding claims of

confidentiality. A copy ofthe memorandum ofagreement is attached hereto as Attaclnnent D.

21Act ofMay 30) 1999, 76th Leg., RS.• Ch. 1350, 1999 Tex. Gen Laws 4570.

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XIV. ENFORCEMENT OF PERMIT PROGRAM REQUIREMENTS

State law provides civil and criminal enforcement authority consistent with 40 C.FoR

section 70.11t including DUthOrity to recover penalties in a maximum amount ofnot less than

$10,000 per day per violation.

FederaiAuthority;

CAA §502(b)(S)(E) (42 U.S.C. § 7661a(b)(5)(E».

40 C.F.R. §§ 70.4(b)(3)(vii), 70.11.

Citation ofState Laws and Regulations;

TEx. WATERCOOE §§ 5.501, 5.514,7.002,7.032, 7.051-7.068. 7.075, 7.102,7.105.

7.106, 7.110, 7.141, 7.177-7.183, 7.186-7.188, 7.202, 7.251-7.252.

TEx. HEALTII& SAPETY CODE §§382.0518, 382.0519.

The analysisin this section is unchanged except as follows.

Consolidation ofState Enforcement Provisions .

The Legislature re'Vised the State's statutory authority for enforcement under the TCAA

in 1997, by consolidating many enforcement provisions into Chapter 7 ofthe Texas Water

Code.22 A chart showing the disposition ofthe old TCAA enforcement provisionsis included in

the TNRCC's June J, 2001, submittal to the EPA, "Section n - Additional Elcmentls Section."

Modificationsto 30 T.A.C. Chapter 122

In its draft comments to the 1997 revisions to 30 T.A.C. Cb.apter 122, EPA objected to

the reference to requirements that have been promulgated by EPA but not adopted by and

22Act ofMay 28, 1997, 75mLeg.) R.S., ch. 1072, § 2, 1997 Tex. Gen. Laws 4094, 4099-

4126 (codified at TEx. WATER CODE §§ 7.01 et seq.).

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delegated to the State as "federallyenforceable only." The TNRCC in its 2001 revisions to 30

T.A.C. Chapter 122 deleted the reference to «federally enforceable only" in 30 T.A.C. section

122.10(2)(K). The TNRCC made this change since Part 70 does not define this term nor embody

this concept.· Notwithstanding this amendment, the analysis provided in the 1998 Statement

concerning this issue is unchanged.

Modifications to Remili;ements for State Gran4fathered Facilities

The Legislature modified air permit requirements for State grandfathered facilities during

the 1~ and 2001 legislative sessions. Under TCAA section 382.0518(g), a facility is

grandfathered, i.e., not required to have a State prec<>nstruction pennit, ifthe facility was built

(including newly constructed. altered, modifi~ or added-to) on or before August 30, 1971, and

has not been modified since then in a mannerrequiring new source review.2J The rationale for

grandfathering was that it would not have made sense to apply a Statepreconstruetion permit

mandate to facilities that already had been constructed when the requirement was added to the

23TBx. HJ!ALm & SAFElY CODE § 382.0518(g). State grandfathered facilities also include

facilities on which construction, though not complete on or before August 30, 1971. began by

then, or was contracted for by then and began within six months thereafter. To achieve and

maintain grandfathered status, companies had to comply with the requirements ofTCAA section

382.060, as it formerly existed. That provision required registration ofgrandfathered facilitjes

with the TNRCC's predecessor agenoy and payment of any fees set by agency rule.

24Facilities may also be grandfathered from federal permit requirements. See, e.g., eM

§ 165 (42 U.S.C- § 7475(a» (exempting facilities ~sting on or before August 7,1977, and

unmodified since that date, from prevention ofsignificant deterioration pennit requirements); 30

T.AC. § 116.150 (exempting Texas facilities with submitted pezmit applications on or before

November 15, 1992, and unmodified since that date, from nonattainment new source review

requirements).

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In 1999 in Senate Bill 766, the 76* Legislature created a program for an owner or

operator ofa State grandfathered facility to request, pursuant to new TCAA section 382.0519, a

voluntary emission reduction permit (VERP).'5 Ifa State grandfathered facility applied for a

VERP on or before August 31, 2001, Section 12 ofSenate Bi11766 (Section 12) prevoo.ts the

" TNRCC from initiating an enforcement action against the facility's owner or operator for

modi1ications constructed on or before March I, 1999, that would have required. a TCAA section

382.0518 permit.2

' Section 382.0518 ofthe TCAA applies only to State preconstructioll permits,

commonly referred to by the BPA as '~tate Minor NSR" permits.

Tn 2001, the 77" Legislature instituted a gradual phase-out ofthe State grandfather

exemption by passing certain new permitrequirements.v Pursuant to new TCAA section

382.05181 a State grandfathered facility that bas no pending application for a permit underthe

TeM(otherthan an application for a Part 70 operating pennit) or has not submitted a notice of

shutdown under new TCAA section 382.05182 may not emit air contaminants on or after

September I, 2003, in the East Texas region or on or afterScptember 1,2004, in the West Texas

region.2t

.........~--------

25Act ofMay 30,1999,76" Leg., RS., ch. 406, § 5,1999 Tex. Gen. Laws 2626, 2627~28;

see 0180 1'£x. HEALm & SAFETY CoDE § 382.0519.

Z6'fix. HEALm & SAFETYCOD~ § 382.0518 historical note [Act ofMay 30, 1999, 7f1t

Leg., R.S., ch. 406, § 12, 1999 Tex. Gen. Laws 2626, 2632}.

27&e generally Act ofMay 28,2001, H.B. 2912, 77* Leg., R.S., ch. 965, § 5.03,2001

Tex. Sess. Law Servo 1825, 1848-51.

21Id at 1848-49. The East Texas region is defined by TCAA section 382.05181 as

containing all counties traversed by or east ofInterstate Highway 35 north ofSan Antonio or

traversed by or east ofInterstate Highway 37 south ofSan Antonio and includes Bexar, Bosque,

Coryell, Hood, Parker. Somervell and Wise counties. The West Texas region includes all

18
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Small business statioI13ry sources are not subject to the deadlines in TCAA section

382.05181 and may apply for a small business permit under TCAA section 382.05184 before

Septanber 1. 2004. Ifan application for a pennit under the TCAA is not pending by April 30,

2008, or a notice ofshutdown has not been submitted, the small business stationary source may

not emit air eontamimmts. Othec State grandfathered facilities, such as electrio generating

facilities and reciprocating internal combustion engines that are part ofprocessin& tJ:eatin&

compression or pumping facilities connected to or part ofa gathering or transmission pipeline.

have permitting options specifically for those types offaciliti~.

Section 12 oiS.B. 766 (999)

The EPA asked that this opinion include a discussion ofwhether or not the enforcement

protection in Section 12 impairs the TNRCC's ability to assure compliance with Part 70

applieable requirements. Section 12 states:

(a) The Texas Natural Resource Conseivation Commission may not initiate an

enforcement action against a person for the :failure to obtain a preconstmctionpermit

under Section 382.0518. Health and SafetyCode. or a rule adopted or orderissued by the

Commission under that section, that is related to the modification ofa facility that may

emit air contaminants if: on or before August 31, 2001, the person files an application for

a permit for a facility under Section 382.0519, Health and Safety Code. as added by this

Act.

(b) This section does not apply to an act related to the modification ofIl facility that

occurs after March 1t 1999.

TEx. HEALTH & SAFETY CODE § 382.0518 historical note [Act ofMay 30, 1999, 76~ Leg., R.S.,

ch. 406, § 12, 1999 Tex. Gen. Laws 2626, 2632J.

co~ties not in the East Texas region.

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Section 12 does not affect the TNRCC's ability to assure compliance with Part 70

applicable requirements. Moreover, to the extent Section 12 does affect the enforcement ofthe

State's Minor NSR requirements, the effect is limited The intent oftbe Legislature to strictly

limit coverage for Section 12 is shown by direct statements in the statutes and by the structure of

the statutes, regulations, and regulatory practices that fonned the backdrop for the section's

enactment

'[By its express terms the enforcement protection in Section 12 covers only violations of .

TCAA section 382.0518 for constnlcting ormodifying without a State preconstruction permit.

Only a person who in the past has claimed grandfather-ed status under the TCAA is entitled to

protection.3 Protection extends only to owners or operators whose unfulfilled legal obligation to

have obtained a preconstruction permit arose because they modified a facility on or before March

1, 1999, and then only ifthey applied for a VBRP on or before August 31, 2001.

A further limitation is that section 12 applies only to State Minor NSR pemrits issued

pursuant to TCAA section 382.0518. Before beginning construction, TCAA section 382.0518

requires the owner or opexator ofa new facility or a modification to an existing facility that ''may

emit air contaminants» ofany type 01:" in any amount to obtain a State Minor NSRpennit. There

are~tiona1 preo<>nstruction pennitB requirod by the c~ for certain types ofpollutants at

specified emission rates-permits Texas now issues underfederally approved butstate-lawbased. programs.30 These federal preconstmetion permit programs include prevention of

29SuTBx.HBALnI&SAFElYCODE § 382.0519.

~e State Minor NSR program has also been submitted and approved by the EPA as a

measure in the State's Implementation Plan to regulate all modification and construction of

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significant deterioration (''PSD '') permits, nonattaimnent new somce review("Nonattainm~ NSR") permits, and eAA section 112(g), 42 U.S.C. section 7412(g). pennits. v·

Section 12 grants110 enforcement protection for the failure to have obtained PSD or

Nooattainment NSR permits prior to constmction. Itspeaks of"an enforcement action against a

person for the failure to obtain a preconstroction pennit under Section 382.0518 -...» This

provision does not apply to the failure to get PSD or Nonattainment NSR pennits because the

requirement for a facility to obtain a PSD or Nonattaimnent NSR permit is not located in TCAA

section 382.0518, as discussed in the next paragraphs.

The requirement to obtain a PSD permit is located in 30 T.AC. section 116.16O(a), which

incoJPOrates by reference 40 C.FeR section 5221(i)(I)"s requirement. The statutory authority

the TNRCC invoked in support ofadoption was TeAA section 382.017, not the predecessor of

TCAA section 382.0518. Nor hasthe agency relied on TeAA section 382.0518 or any ofits

predecessors in adopting intervening amendments to what is now 30 T.AC. section 116.16O(a).31

As a result, an enforcement ~tion by the State for failure to obtain a PSD permit would be

exclusively for the failure to comply with 30 T.A.C. section 116.160(a) and 40 C.FeR section

S2.21(i)(I). Section 382.0518 oftile TeAA would not be invoked, and therefore the limited

onroroement protection ofSection 12 would be inappo~itc.

sources to assure that national ambient air quality standards are achieved as required by CAA

section IIO(a)(2)(C), 42 U.S.C. section 7410(aX2)(C).

3130 T.A.C. section I 16.l60(a) was adopted pursuant to Texas Health and Safety Code

section 382.017 and thus is also not "a rule ... adopted" under TCAA section 382.0518. See 18

Tex. Reg. 5746, 5765 (1993).

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The requirement to obtain a Nonattainment NSR pennit is located in 30 T.A.C. sections

116.150 and 116.151. Ag~ when the T.NR.CC originally added these sections to its

regulations, and when it amended them through the years, the agency did not cite TeM section

382.0518, or any ofits pred«;essors as authority.~2 And, again, an enforcement action for the

failure to cany out nonattainment permit requirements would be an action for failure to comply

with one orthe other ofthosc sections, not TCM section 382.0518.

Moreover. the State MinorNSR permit requirement located in TCM section 382.0518

has never included the requirement to obtain PSD orNo~en~NSRpermi&~

when the Legislature originally passed the predecessor provision ofTCM section}82.0518"

.and created the State pz:econstroction permit requirement, the concepts-federal COll(;epts - of

PSD new source review and nonattainment new source review did not exist. The United States

CoDgx<:s3 did not malo PSD and Nonattaimncnt NSR pennitsin their modern 1i>mls

Perloree, the Texas Legislature could not have intended the predecessor ofTCAA =section

382.0518 to create requirements with respect to such review. The 1971 grandtathering date

identified in what is now TCAA section 382.0518(g) lUldecscores this point It would have made

no sense for the Texas lawmakers in 1971 to exempt existin,g facilities from PSD o{

3230 T.A.C. sections 116.150 and 116.151 were adopted pursuant to TCAA section

382.017 and thus are also not "rulers] ... adoptC(f' lUlder TCAA section 382.0518. See 18 Tex.

Reg. 5746, 5764 (1993).

"Act ofMay 26,1971, 62d Leg., R.S., ch. 619, §§ 1-3. 1971 Texas General Laws 2003

(adding § 3.27 to Tex. Rev. Civ. Stat. art. 4477-5).

34See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, Title I, §§ 127(a), 91 Stat.

685, 735; id § 129(b), 91 Stat. at 746, 748.

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Nonattainment NSR when no such review was then legally required.

Fllrthermore, PSD and Nonattainment NSR requirements have not been placed in TCAA

section 382.0518 in the intervening years. As mentioned above, the Legislature has amended

and modified·the requirement to obtain a State Minor NSR pemlit many times since 1971.35

None of1hese legislative acts directly Of indirectly required a facility to obtain a PSD or

Nonattainment NSR permit

The text ofTCAA section 382.0518 concerning the requirements foc a State Minor NSR

permit furthersupports the view that the section contains the legal obligation to obtain only a

State MinorNSR permit, not a PSD or Nonattaimnent NSR permit Subsection 382.0518(b)

contains the requirements for approval of a State Minor NSRpermit In considering the best

available control technology for the facility, the agencymust take into account technical

practicability and economic reasonableness. This cannot apply to Nonattainment NSR, under

which the permitting authority-Texas, pursuant to its approved SIP-must impose on the

facility the lowest achievable emission rate, or LAER which is not based on economic

reasonableness.30

35See Act ofMay 14, 1979, 66th Leg.~ R.S.• ch. 726. § 7. 1979 Tex. Gen. Laws 1787,

1791; Act ofMay 27, 19~5, 69th Leg.• R.S., ch. 637, § 26, 1985 Tex:. Gen. Lam 2350, 2355; Act

ofMay 28, 1987, 70thLeg., RS., ell. 793, § 1, 1987 Tex. Gen. Laws 2783, 2783; Act ofMay 16.

1989, 7lst Leg., RS., ch. 678, § I, 1989 Tex. Gen. Laws 2230,2723.24; Act ofJuly 25. 1991,

72nd Leg., 1st C.S., ch. 3, § 2.08, 199J Tex. Gen. Laws 4,51-52.

30See CAA § 171(a)(3) (42 U.S.C. § 7051(3» (defining LAER). Economics ofa control

strategy considered for LAER are only ofconcern when determining the strategy's achievability.

See Guidance on Detennining Lowest Achievable Emission Rate. EPA Director ofAir Quality

Management Division, John Calgani (February 28, 1989).

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Similarly, undersubsection 382.05l8(bX2) the Commission must engage in health effects

review for a State MlOOr NSRpermit. It must find DO indication that the emissions from the

facility will undennine protection ofthe public's health and physical property. Health effeots

review is noirequired for PSD and Nonattainment pennitreviews.

TNRCC's historical permit practice, including the relationship between that pcadice and

EPA's practice, buttress the J><?ints made above. ~ntil199~ the TNRCC carried out review of

PSD permit applications, but since Texas did not yet have BPA authorization to issuePsD

pennits,. theJWAissued PSD pccmits entirely separate from Texas State Minor NSR permits.

Since authorization ofTexas's program in 1992, the TNRCC has combined a MinorNSRpermit

and a PSD permit in one document, but the document always lists two pennit numbers. one for

the State Minor NSR permit and another for the PSD pennit. A similar approach is followed

with respect to the relatively rare Nonattainment NSR. permits.

Section 12 does not relieve an unauthorized grandfathered facility from the requirement

to be pennitted. On the contrary, by applying for and obtaining a VERP - which is one ofthe

preconditions for Section 12's applicability - the facility will come into the preconsttuction

permit program, will give up its State grandfathered status, and may have to upgrade its

pollution-<;ontrol technology. Emission reductions may r~lt. Tho nowty revised Texas

definition ofappUcable requirements, in 30 T.A.C. section 122.10, includes VBRPs, so eM

Title V enforceability will also be ensured.

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ThRCC/ENVIRCl£NTAL Fax:512-239-0606 Nov 5 2001 17:16 P.26

Further, because a TNRCC enforcement action is not initiated under Texas law until the

Executive Directorserves an administrative petition seeking enforcement against the violator,'?

the TNRCC will be able to investigate and document any past unauthorized modification, even

though initiation ofenforcement may be barred against an owner or operator who meets all of

Section 12's criteria. The TNRCC could use such a modification in advocating enhanced

penalties in a future action for enforcement with respect to other kinds ofviolations.

StateMinor NSR Not Part ofCurrently Approved Title V Program

Setting aside the limitations discussed above, Section 12 has no effect On the certification

herein because it protects from enforcement only those violations that occurred before State

Minor NSR was included in the State's Part 70 Operating Permit Program. Texas is CWTetttly

operating its programpursuant to the EPA'sinterim approval given June 25, 1996. At the time

ofinterim approval, Texas did not include State Minor NSR in its Part 70 source definition

regulations in 30 T.A.C. Chapter 122. BPA noted the non-inclusion ofState Minor NSR and set

forth conditions for Texas Part 70 operating ~nnits to explicitlystate that State Minor NSR was

37]:t is the practice ofthe TNRCC Executive Director to conduct inspections and, upon

discovery ofa potential enforcement situation, to issue a notice ofviolation (NOV). The

issuance of an NOV does not constitute the initiation ofan enforcement action. The Commission

defines "enforcement action" in 30 T.A.C. section 3.2(12), as "an action, initiated by the

Executive Director, seeking an enforcement order.t. The Executive Director initiates an

enforcement action ifan NOV is not resolved or an agreement is not reached with the

respondent. The enforcement action is initiated~~and service ofan

"Executive Director's Preliminary Report and Pe -oIiDPRP. is the EDPRP that serves as

the petition which states a cause ofaction against a. respondent and initiates an enforcement

action.

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Fax:512-239-0606 Nov 5 2001 17:16 P.27

not included in the operating pennit.3S By delaying the inclusion ofState MinorNSR as an

applicable requirement in the Texas Part 70 Operating Permit Program, the State delayed the

applicability ofthe operating pennit program7s requirements~ enumerated in Part 70, including

its requirements for compliance and enforcement, until final program subnrittal. In its intuim

approval notict; the EPA acknowledged this position: "Although the exclusion ofminor NSR

means that hnportant title V compliance measures (e.g., compliance certification. public review,

etc.) will be deferred for 2 years for minorNSR the proposed provisions would limit the

scope and duration ofthe effects ofthis deferral, and would assure that the public could examino,

in federally-enforceable NSR pemrits. any terms which are not subject to title V's compliance

measures during the interim period.'J39

Before the TNRCC's addition ofState Minor NSR permits to the State's Part 70

Operating Permit Pro~ which was effective on June 3, 2001,40 facilities did not violate the

State's Part 70 Operating Permit Program by modifying an emission unit without a State Minor

NSR pemUt~ Even absent Section 12, the TNRCC could not validly plead a State enforcement

action under its Port 70 OperatingPermit Progrom for a failure to have obtained a State Minor

NSR permit for facility modifications made before March I, 1999. Such a failure would only be

a violation ofTCAA section 382.0518(a)'s prohibition. Therefore, Section 12'5 allorcement

3161 Fed. Reg. 32,693, 32,698 (1996). See also id. at 32,694-95 (allowing for states to

receive interim program approval despite postponing the obligation to incOIporate by reference

State minor NSR pemrits in the first group ofTitIe V permits).

3961 Fed. Reg. 31,443, 31,444 (1996).

~See 26 Tex. Reg. 3747. 3792 (2001).

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protection does not impair a viable State Part 70 Operating Permit Program enforcement claim.

This certification ofthe State's enforcement authority under the State's submitted

program is prospective from the date ofrecent modifications to the State's program which

included state Minor NSR for the first time. Section 12's limited enforcement protection does

not affect the Attorney GeneraPs certification ofthe enforcement authority in the 6Ubmitted State

program because it applies to failures to obtain State Minor NSR permits that occmred before the

beginning ofthe applicable period for certifYing enforcement. State grandfathered facilities are

protected from enforcement only for unauthorized modifications made on or before March I,

1999. As discussed abov~ these violations would not be subject to a State Part 70 enforcement

action because State Minor NSRpennits were not included in the interimly approved Title V

program. Effective June 3,2001, Texas's final revisions to its Part 70 Operating Permit Program

in 30 T.A.C. Chapter 122 first began to include all ofTitle V's requirements. This is the

program submitted for approval, and this is the program under which the Attorney General is

certifying enforcement. Since June 3,2001, Texas bas had the full enforcement authority

required by Part 70 for State Minor NSR violators.

In summary, Section 12 did not revise the enforcement provisions ofChapter 7 ofthe

Texas Water Codo. Scction12 is linUltXl to protciotion from c:nforcemmt for an act ofmodit)'ing

a grandfathered facili~y without a required State Minor NSR pennit on or before March J, 1999.

Section 12 is limited to facilities that applied for a VERP on or before August 31, 2001. Section

12 is limited to failures to obtain State Minor NSRpennits only; it does not affect enforcement

ofPSD and Nonattainment NSR requirements. Finally, Section 12 limits enforcement ofonly

State Minor NSR permit violations that occurred prior to the addition ofState Minor NSR to the

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State's Part 70 Operating Pennit Program. TherefQr~ Section 12 does not surrender the

TNRCC's ability to assure compliance with Part 70's federal operating pennit program

enforcement requirements.

Response to EPA Questions:

In its comments on the TNRCC', proposed 2001 revisions to 30 T.A.C. Chapter 122, the

EPA requested a response to the following enumerated questions:

I. Please identify which penni!§.. tulS'S- or orders (including citation to the ap~ate

statute orregulation) are subject to Section 12's 8II1Ile§(y provision. Also exPlain how each

source would not be subject to the Title V operating permits program. Please note that Section

382.0518 was enacted in 1991. and became effective Se.ptemb~ I. 1991. Also. any mles or

ordas adopted pursuant to Section 382.0518 would be enacted after September 1. 1991.

Therefore. in your explanation. also discuss wJx@.et a pe;rwn WQuld 1x eHgible for amnesty ifa

modification took place prior to enactment ofSection 382.0518 or prior to the promulgation of

any rules or orders adQPted pursuant to Section 382.0518.

As set forth above, Section 12 applies only to State Minor NSR pennits.

It is not clear what the last part ofthe question seeks. Although codified in its current

location in 1991, TCAA section 382.0518 is derived from section 3.27 of article 4477-5 ofthe

Texas Revised Civil Statutes, which the Legisla.ture adopted in 1971.41 Section 12'sreference to

TCAA section 382.0518 refers back to this section and its predecessor provisions.

"Modifications" taking place "prior to the enactment ofsection 382.0518" in 1971 would not be

violations ofTCAA section 382.0518 and its predecessor provisions in the first place.

Therefore, Section 12's enl'OI«mOfit protection would be irrelevant to such m.odifications.

'USee TEx. CIv. STAT. art. 4477-5, § 3.27, adopted by Act ofMay 26, 1971, 62ad Leg.,

RS., ch. 6195 §§ 1-3, 1971 Tex. Gen. Laws 2003.2004-05, recodified as TEx. lIEALm &

SAFBTYCODE. § 382.051, Act ofMay 16, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen.

Laws 2230, 2723-24, renumbered as TEx. HBALm & SAPETY CODE. § 382.0518, Act ofJuly 25,

1991, 72nd Leg.• 1Sf C.S.• ch. 3. § 2.08. 1991 Tex. Gen. Laws 4.51-52.

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2. Explain how Section 12ls amnesty provision would not apply to the failure to obtain a

permit required by the }>SD ornonattainment NSR program, as stated in the preamble to the

proposed Chapter 122 revisions (26 Tex. Reg. at 898).

As set forth above, Section 12 provides enforcement protection only for the failure to

have obtained a State Minor NSR pennit for modifications made without authorization prior to

March I. 1999.

3. According to th.egrandfathered Facilities Report. grandfathered facilities can and have

been pennitted under: (I) state new soUl'Ce review permits; (Q) permits-by-roIe; (c) exgtions:

fd) standard permits; and (el flexible permits. Facilities Report. Texas Natural RCSO\irce

Conservation Commission. Executive Summary at 7 (January 4. 2(01) (SFR~711. Pl~e

address how these five pennitting authorities would not fall under Texas' definition ofapplicable

requirement in 30 T.AC. 122.10(2). FOT example. the pmposed definition ofapplicable

requirement includes ChaPter 106. Subchapter A and Chapter 116. Chapter 106. Subchapter A

involves general J::Mwrements for permits by role. Chapter 116 includes standard permits.

flexible permits. and voltmtary emission reduction pennits. Assuming that the revised definition

ofapplicable requirement is adopted as currently proposed. explain how each permitting

authority for a grandfathered SOW'Ce would not be subject to the Title V operating pennits

program. For example. how would a grandfatb«ed source that was issued a standard permit

under Chapter 116 not be subject to the Title V operating pennits program at a Part 70 source.

The listed permits and authorizations are now included as applicable requirements in 30

T.A.C. Chapter 1227 which is part oftlte state·s current proposOO Part 70 Operating Pennit

Program submittal. Therefore, ifa grandfathe.red facility is authorized by any ofthe

preconstruction authorizations listed above and the facility is located at a majorsource, the

facility and those: authQrizations witl be inoluded in the site's operating pennit as applioable

requirements.

As discussed in Section VITI ofthis Statement, the 2001 revisions to 30 T.A.C. Chapter

122 modified the definition ofapplicable requirement to include the major and minor new source

review requirements of30 T.A.C. Chapter 116. Control ofAir Pollution by Permits for New

Construction or Modification, and 30 T.A.C. Chapter 106, Pennits by Rule. Section

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122.l42(bX3) of30 T.A.C. requires pemrits for which the Executive Director has not authorized

initiation ofpublic notice by the effective date ofthe 2001 revisions to 30 TAC. Chapter 122

.(June 3, 2001) to include State Minor NSR at initial issuance. Permits as to whioh the pUblio

notice process was authorized to begin before 1une 3. 2001. will not include State MinorNSR at

initial issuance, and instead will have State Minor NSR ineoIpOrated no later than pemrit

renewal. Consistent with the requirements in 40 C.F.R. section 70.4(dX3XiiXl), the revised

requirements of30 T.AC. section 122.231. Permit Reopenings, provide that the commission will

institute proceedings to reopen previously issued operating pemrits to incorporate excluded State

Minor NSR permits 8$ tenns ofoperating permits. Th~ operating permits will be reopened to

inolude all State Minor NSR authorizations for facilities at a site. After an operating permit is

issued, reopened orrenewed to include State Minor NSR authorizations. those authorizations

will be an enforceable applicable requirement in the pennit and subject to the compliance

conditions of30 T.A.C. Chapter 122.

4. Ifa grandfathered source b;is been subsequently pennitted by either a State new source

review permit. pemrit-by-roJe, exemptioo, standard permits. or flexible penni!, bas it lost its

grandfathered status. and thus is Dot eligible for amnestY?

Ifa State grandfathered source obtains a pennit or other authorization it will no longer be

grandfathered and it will have to comply with 1be requirements ofits pcnnit or authorization or

be subject to enforcement. Ifa State grandfatheced facility obtained one ofthe listed pemtits or

authorizations, it would appear the facility would not be entitled to the enforcement proteotion of

Section 12. The enforcement protection ofSection 12 only applies to qualified VERP applicants.

not applicants for the permits listed in the question.

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5. Ifa person receives amnesty for failing to obtain a preconstruction pgmit for a

modification. is the source pennitted retroactively [i.e.. under the pennitting requirements that

existed at the time it should have been ~itted (e.g.• best available control teclmology @AC1)

that existed at the time it would have gotten a permit)]. or will it be permitted under the current

permitting requirements and required to use current BACT? lfit is pemritted retroactively,

please explain why it is not pennitted under the current permitting reguirements.

As discussed above, in Senate Bill 766 (1999) the 76lb Legislature modified the TCAA's

pennitting program and created two new permits with conditions that allow for control

technology requirements suited to State grandfathered facilities: VERPs or multiple plant

permits. The VERP permit allows a State grandfathered facility to meet the more stringent of

ten-year old BACT ot a generally achievable control technology (which is interpreted as first tier

BACT, minus age and remaining useful life). Ifa. State grandfathered facility cannot comply

with the control requirements for a VERP, it can create emission reduction credits under TCAA

section 382.05193. Emissions Pennits ThroUgh Emissions Reduction. State grandfath«ed

facilities at multiple plant sites that are owned ot operated by the same person may apply for a

multiple plant pennit which will set an aggregate rate ofemissions. Senate Bill 766 (1999)

provided these control requirements instead ofrequiring a retroactive application ofBACT, as it

is defined today or as it existed at the time the facility was modified. Current BACT is not

required because the Legislature determined that an alternative control requirement was better

suited for these facilities. Besides the two specific pennit options, owners or operators ofState

grandfathered facilities can choose to apply for othCl" pennitting authorizations under the TCAA

which do require BACT. Examples are a pennit under section 382.0518. a standard permit, a

flexible permit, or a pemrit by mle.

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xv. AUTIIORITY TO ENFORCE LAPSED PERMITS

State law provides authority to enforce the tenus and conditions ofa pennit which has

expired, ifthe source has filed a timely and complete application forrenewa4 so as to assure

compliance With all applicable requirements.

Federal Authority:

CAA § S02(bX5XA) (42 U.s.C. § 7661a(b)(5XA».

40 C.F.R. § 70.4(b)(lO).

Citation ofState Laws and Regulations:

nx.1IEALm & SAF£1Y CODE § 382.0543(g), (h).

30 T.A.C.§ 122.241(g).

The analysis in this section is not changed.

XVL EPAPERMITVETO

State law provides that an operating pennit will not issue ifthe EPA objects in a timely

manner to its issuance pursuant to 40 C.F.R. section 70.8(c), or, ifthe pennit has been issued, the

EPA objects pursuant to 40 C.F.R. section 70.S(d).

Federal Authority:

CAA §§ S02(b)(5)(F), 50S(b) (42 U.S.C. §§ 7061a(b)(5)(P), 7661d(b».

40 C.F.R.. §§ 70.4(bX3)(ix), 70.8(c)-(d).

Citation ofState Laws and Regulations: .

TEx. HBALm &SAPETY CODE §§ 382.0541(b), 382.0563.

30 T.A.C. §§ 122.350, 122.360.

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The analysis in this section is unchanged except to note that the 1993 version of30

T.A.C. Chapter 122 only allowed for EPA veto on initial pmnit issuance, significant permit

modifications, renewals and reopenings. The 1997 revisions to 30 T.A.C. Chapter 122 allow for

BPA veto on all ofthe above, and on minor pennit revisions.

XVIL FINAL AGENCY ACTION ON PERMITS

State law provides.that solely for the PUIpOses ofobtaining judicial review in State court

for the TNRCC's failure to take final action, ''final pennit action" shall include the failure ofthe

TNRCC to take final action on an application for a permit, pennit renewal, or pennit revision

within eighteen months.

federal Aytho~ty:

CAA § S02(bX7) (42 U.S.C. § 7661a(bX7).

40 C.F.R. § 70.4(bX3Xxi).

Citation ofState Laws and Regulations:

TBx. lIBALnI & SAFElY CODE §§ 382.032(b), 382.0542(c), 382.0543(d).

30 T.AC. § 122.139.

The analysisin this section is not changed.

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XVID. DEFAULT PERMIT ISSUANCE

State law does not authorize the issuance, modification, orrenewal ofany permit based

on the passage ofa specified time period when the TNRCC has failed to take action on the

application, and State law does not include any othersimilar provision providing for default

issuance ofa permit unless EPA has specifically waived the right ofreview for itselfand affected

States.

Federal Authority;

CAA § 505(a)-(e) (42 U.S.C. § 7661d(a)-(e».

40 C.F.R § 70.8(e).

The analysis in this section is not changed.

XIX. OPPORTUNITY FOR JUDICIAL REVIE\V OF PERMIT ACTIONS

State law provides an opportunity forjudicial review in State court ofany final pcnnit

action. Those eligIDIe to sue are the applicant, any person who participated in the public

participation process provided pursuant to the eAA and 40 C.F.R. section 70.7(h), or any other

person who could obtain jUdicial review ofsuch actions under State law. Any provisions ofState

law that limit access to judicial review do not exceed the corresponding limits on judicial review

imposed by the standing requirements ofArticle m ofthe United States Constitution.

Federal Authority;

CAA § 502(bX6) (42 U.s.C. § 7661a(bX6».

40 C.F.R. § 70.4(bX3X~)·

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Citation ofState Laws and Regulations:

TEx. HF.ALrn& SAFElY CoDE §§ 382.032, 382.0562,382.0563, 382.061(c).

The analysis in this sectio~ including that contained in the 1996 statement and letter of

commitmen~is not changed.

xx. LIMITATIONS ON mnlCIAL REVIEW

State law provides that the opportunity forjudicialreview ofa final pennit action in State

court descn"bed in paragraph XIX ofthis Opinion shall be'the exclusive means for obtaining

judicial review ofthe terms and conditions ofpermits. State law provides that petitions for

judicial review must be filed no laterthan thirty days after the final permit action. State law

provides that ifthe final pennit action being cballenged is the TNRCC's failure to take final

action, a petition for judicial review may be,filed at any time before the TNRCC denies the

pennit orissues the final pennit.

Federal Authority;

eM § 502(b)(6) (42 u.S.C. § 7661a(b)(6».

40 C.F.R. § 70.4(b)(3Xxii).

Citation ofState Laws and Re,gu.lations:

TEx. REALm & SAFETY CODE §§ 382.032~ 3&2.0542(0), 382.0S43(d).

The analysisin this section is not changed.

XXI. COORDINATION WITH ACID RAIN PROGRAM REQUIREMENTS

State law is consistent with and cannot be used to modify the Acid Rain Program

requirements of40 C.F.R.. Part 72.

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P.37 Tl'RCClENVIRIl'1ENTFL

Federal Authority:

Fax:S12-239-0606 Nov S?Oa1 17:17 ---------

eM §§ 408(a), S06(b) (42 U.S.C. §§ 7651g(a), 7661e(b».

40 C.F.R. §§ 70.4(bX3)(xiii), 72.7O(b), 72.72(a).

Citation ofSiate Laws and RqroJations:

TBx.1IBALm & SAFETY CODE §§ 382.0541(10)-(12), 382.0542(3)(F).

"30T.A.C. § 122.410.

The analysis in this section is not changed.

XXII. AUTHORITY FOR LOCAlJINTERSTATE PROGRAMS

No lo<?al entities in Texas will be hnplementing theil" own operating pennit programs.

JOHN CO

Attorney General ofTexas

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Date