Buddy Garcia, Chairman 

Larry R. Soward, Commissioner 

Bryan W. Shaw, Ph.D., Commissioner 

Glenn Shankle, Executive Director 

RECEIVED - &?DL 

AIR PLANNING SEC 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

May 30,2008 

Docket No. 2007-161 1-RUL 

kchard E. Greene, Regional Administrator 

U.S. Environmental Protection Agency - Region 6 

1445 Ross Avenue 

Dallas, Texas 75202-2733 

Dear Mayor Greene: 

On May 7,2008, the Texas Commission on Environmental Quality (Commission) adopted a revision to the 

State Implementation Plan (SIP). 

The Commission adopted an amendment to $ 116.3 15 in 30 TAC Chapter 1 16, Control of Air Pollution by 

Permits for New Construction or Modification, Subchapter D, Permit Renewals; and corresponding revision 

to the SIP. The revision implements Senate Bill 1673, 80"' Legislature, 2007 by allowing the commission to 

process a renewal application at the same time as an amendment provided the amendment application is filed 

not more than three years before the date the permit is scheduled to expire, is subject to notice requirements 

under Texas Health and Safety Code, $382.056, and the applicant does not object. 

Enclosed are the proposed revision to the SIP, a public hearing certification, a complete record of the public 

hearing, and the accompanying order. I look forward to your expeditious approval of this SIP revision. 

Sincerely, 

H.S. 'Buddy' ~akia ' 

Chairman 

Enclosures 

cc: The Honorable Rick Perry, Governor of Texas 

Mr. Auburn Mitchell, Office of Budget, Planning and Policy, Office of the Governor 

Mr. Glenn Shankle, Executive Director, Texas Commission on Environmental Quality 

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us 

,,,ll,l~'l <,I> lLl\~itll lp*ll<, L,,Ill, ,u\ l>,,5, (1 1,lL 
Docket No. 2007-1611-RUL 

THE STATE OF TEXAS $ 

COUNTY OF TRAVIS $ 

This is to certify that the attached are true and correct copies of documents for revision to the Texas 

State Implementation Plan, adopted on May 7,2008, pursuant to 40 Code of Federal Regulations $5 1.104. I 

am the records administrator for the Air Permits Division of the Texas Commission on Environmental Quality 

(Commission). 

=@

Richard Hyde 

Director, Air Permits Division 

Texas Commission on Environmental Quality 
Texas Commission on 

Environmental Quality 

Public Hearing 

January 29,2008 

30 TAC Chapter 116 

Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Project No. 2007-024- 1 16-PR 

Senate Bill 1673 : Concurrent Renewals 

and Amendments 
INTRODUCTION 

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin 

on January 29, 2008, to receive testimony regarding revisions to 30 TAC Chapter 1 16, Control of 

Air Pollution by Permits for New Construction or Modification; and corresponding revisions to 

the Texas state implementation plan (SIP). 

The amendments to $1 16.3 15 add a description of the Senate Bill 1673 limitations for submitting 

a renewal application concurrently with an amendment application. 

The comment period closed on February 4,2008. All comments have been reviewed and 

seriously considered. This hearing record contains a complete record of the public hearings and 

is divided into the following four sections: 

Public Notification and Proposal 

Written and Oral Testimony 

Evaluation of Testimony 

Staff Recommendations 

Additional copies of this hearing record are maintained in the TCEQ central office at 12 100 Park 

35 Circle, Austin, Texas 78753. For further information, contact Becky Southard at (512) 239- 

1638. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1. Publication of the notice of public hearing in the following newspapers on the dates 

listed: 

Austin American-Statesman 

Fort Worth Star-Telegram 

Houston Chronicle 

December 14,2007 

December 14,2007 

December 14,2007 

2. Publication of the public hearing notice in the Tam Register on December 21,2007 (32 

TexReg 9842). 

3. Publication of the proposed rules in the Texas Register on December 21,2007 (32 

TexReg 9533). 

4. Correspondence forwarding the notice of public hearing to the following officials and 

agencies: 

Speaker of the House 

Lieutenant Governor 

Alamo Area Council of Governments 

Capital Area Planning Council 

City of Dallas Department of Aviation 

City of Dallas Environmental and Health Services 

City of Victoria Planning Department 
East Texas Council of Governments 

El Paso City-County Health District 

El Paso Metropolitan Planning Organization 

Federal Highway Administration 

Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Public Health and Environmental Services 

North Central Texas Council of Governments 

Houston-Galveston Area Council 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

Oklahoma Department of Environmental Quality 

U. S. Environmental Protection Agency 
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'itotlce Type : U ~ortirm Date : 1~1~2007 

Printer Friendly 

MRCE OF PUB= HE~NG ON PROPOSED RMSIONS m 30 TAC 

CNAPTER 116 AND THC =ATE IMPLCWWATION PUN me TmS 

Commis*on on Envimnrnerkal Qualltv (wmmksion) win mnduct a public'heating 

b rzceive testimony concerning proposed rwirions m 30 TAC Chapter 116, 

GanbOl of Air PDllutlon by Permlts Tor New Consbudlon or Modiicalion, and to the 

state Implementation plan (SIP), under the requlremenk of Texas Health and 

SakN Code. 6382.017: Texas Government Code. ChaDter 2001. SubchaMer 8: 

and 40 Code if ~ederai~epulatlons 551.102, ofthe ~Ated stat& ~nvimnmnbl Fmkckion hen- IEPAI mulatlom wmmlno SPs. The mmd rulemaklno 

wouldimpkkk&na& ~1~11673,BOth ~qi&km, kdu(;rkislon, 2007, th;t 

provides br submlsson of a prewmbucOon mal applletlon wnplrrsnUy with 

a pMmtructbn amendment appllemn under cvbln dmvnstancrc. The 

emended ruk would spedty that the amandmnt applletlon must be filed not 

more than thm vurs bahm th. dam (h. prmk k sd'WW to upin and must 

b. subjact to notice rcgulnmrnIs underloo5 Hulth and 5.W Coda, 5382.056, 

~abif lntel to Obbln Pmnit or Pmnlt Revkrr; Hsarlnp. Pmsrslno a renewal 

and amendment appllQtlon Wfmmntly would be optional for appllanh. me 

wmmirslon wlll hdd a pubk hcarino on thls pmpDUl In A&h on lanmry 29, 

2008 at 10:W a.m. at the Texas CDmfnlssbn on EnvirnnmanYl Oualltv ComDlu 

icatsd at 12100 Park 35 Urde In Bulldlnp E, RDom 201s. The &rlng wlll bi! -nd ............. hr the melot d oral at rrrlttan - clmmsnb - ..... bv 1nbmst.d -.-... oMons. 

RmgkmUon w1II bq(n 30 mln& prlor tD th. hunnp. Indkbdrpk nuy pruent 

oral staMntr when called upon In order of ngktntion. Th.ro wIII ba no open 

dlKuprion during the hearing; howavar, wmmlu)w, atan numben will be availabk to Informally dlxu?rr the pmpoal30 mhuta bclwc the hearing. Persons 

who haw rp.dal wmmuniotlon or otk ascwnmdatlon mads who an plannhg 

to attend the hcarlng should contact Kmn Smith, OlIice of Legal Swvlas, at , (512) 239-0177. Comments may be subnrtmd m KrhSn Smith, MC 205, Omce d 

lrpal Servka, Texas Comrmrslm on Envlmntnental pualltv, P.O. Box 13087. I 

Austin, Texas 78711-3M7, w hxed to (512) 239-4808. Oadmnk wmmank may 

be subm~tted at http.!lwww5.tnq.statsbus/~IeslgDmmenk. Ale sue 

restnctwns may apply to wmmenk subnrlned thmuoh the djxrmmk smm. All 

wmmenk should &fence Ruk Roject Number 2007-02CllCEN. The comment 

prlod dows February 4, 2W8. Copies of the proposed rules can be obtavld fmm 

the wmmksion's Web slbt at 

http:/lwwu.tceq stat8.b; ~5/nav/~les/pmpose-adcQthtmI. For further 

Intonation, please wntact Rebeaa Southard, Alr Rrmlts Dlnaon, (512) 239- 

1638 Issued In Austln, Texas on December 5,2007 

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: - i News I Business I Sports I Entertdlnment I Uwng ! Uanltieds I Jobs I Cars I Homes 

Legal Notices 

Search Results: 

-a'-@ per paO. 

Notiu Type r 

NOTlCE OF PUBUC HEARING ON PROPOSED REV 

N01ICE OF PUBLIC HEARING ON 

PROPOSED R-ONS TO 10 TAC 

CHAPTER 116 AND TOTHEZTITZ IMPLEMEHTAROH PLAN 

The Texas Commbsbn on hvlmnmengl 

~uality (commissii) win conduct m pu~k 

heating to recciv+ DutlmDny mncernlng 

pmporod revlsbns m 30 TAC Chapkr 116, 

Conml -. .. . -. af - Ak . Pollution - - - - bv - , Perm* - - ter . . .. Yn. .-. 

ConRruUbn or ModlRotbn, and to tne me 

lmplunenetlon pbn (SIP), under me 

mquhmnts &Tour Hulth and Sam Code. 

0382017; Tans Government Code. Chapter 

2001, Sukhsptcr 8; and 40 Code of Falcrbl 

Rcguladons 051.102. d the Unmd Slam 

Environmentdl Rorrctlon Agency (EPA) 

mguhticmr am~hg SIR. me pmpond 

~kmakmg would Impkment Senate 8J11673, 

80th Legblatwt, Regubr Scplon. 2W7, that 

svldcs for submlrrbn d a prrcarmvctbn 

ranwal appligUan mncumntly with a . p"CMstruQiOn amedment appXBtlon uader 

ecrbh cimmcanm. The amadad ruk would 

.rpacVy tht the dment applwon mumt be 

nled not mom hn thne yun before th~ dak 

the prmr k cchcduled to upk and must be 

SubJect m nmIQ rcquhments und.rTms 

W)lh and YrcY Codc, 0382.056, Not*. of 

Inum to Oataln Rrmlt or Permlt RNk*r; 

Heamp. Romskp a renewal and amendment 

eppirotla conwmtly wodd be optimal Ibr 

mpplluno. me awnmiulon wlll hold a pubDc 

hearlng on this pmpoaal h Awtln on January 

19.1008 at 10:00 a.m. at the Texas 

&kirsionon Envirmrnnul Quali Cornplot 

beaced at UlOO Far* 35 Urck In Bulllng E. Room 2015. me hcmrlng wUI ba srmcblmd for the -. . m~bt . . - .- . of -. an1 . -. ar .. . .. . . . mmanu - - . -. . - br . 

lnlcmlcd pcnms. Regbimtbn rlll beq; 30 

rnlnu(a prior to the hsrhg. lndlvldusk my 

went mi statements when u0.d upon h 

order of ragbmtlon. Them *sl be no open 

dbcusslon durlng the hcarlng; however, 

mmmbslon sen memben will be available m inhrmslly dtws the pmpcsal30 mlrmm 

bmbm the hearlng. Perrom who hare special 

COmmuniEstion or hr mmmodation needs 

wim are pbnnlng m attend the heating should con- Krbth Smith, ORa of Legal SwiEes, 

at (512) UP-0177. CommmU may ba 

sub- to Krlrtln Smith, MC 205,.Wnce of 

Legal Servica, Tarss Commksbn on 

Envlrnnmenel Quallw, P.O. Box 13087, ~usun, Texas 78711-3087, or hxed to (512) 239-4808. 

Heurmk commenu may be NbmllQd at ma:// nmLkeq. 

state.lx.us/rukrleSDmmentr. File size ramPtons may apply to mmmenu svknDIed 

through the ehmanB system. Ni camntr 

. . should iehmncm Rule hJeU Number 2007- 

024-116-EN. The comment prbd doses February 4,2000. (hpks of the poposcd rula 

wn be obtained tmm the mmmlu)on's Web 5lte 

at http://www. mq-rtaa.bc. 

uP/nav/rukr/pmpoSe -a&pthhnl. Fw turthrr 

informatlon, please contact Rebecu Soulhard, 

Ar hrmb Oivlslon, (512) 239-1638. hued In Austin. Taxas on Decmmber 5,2007 

29215563 

0ml.mal Lapal Nolice ROWJY CamwaWn CUIRCS (solcwwtm rsgard lo lha content pmule by LNRC). 

News I Business I Sporis I Enteltaient I Uving I Travel I Shop Local Classifieds I Jobs I Cars 1 Homes 

,Mcn,r Aboul the Real Cilies Network I Terms o( Ure a Privacy Slaternant 1 Copyight I Abart the McClalchy Company 
§382.085(b), by failing to operate according to representations made Mary R. Risner 

in the 2000 permit application for NSR Permit Number 9442; and 30 Director, Litigation Division 

TAC 9 116.1 16(a)(1), THSC, §382.085(b). and NSR Permit Number Texas Commission on Environmental Quality 9442, Special Condition Number 1 O.A., by failing to operate according Filed: December 7, 2007 

to representations made in the 2000 permit application for NSR Permit 

Number 9442; PENALTY: $77,276; SEP offset amount of $38.638 + + 4 

applied to Harris County Fourier Transform lnfra Red Air ~onitoiin~; 

STAFF AITORNEY Kathleen Decker, Litigation Division, MC 175, 

(512) 239-6500; REGIONAL OFFICE: Houston Regional Ofice, 

5425 Polk Street, Suite H, Houston, Texas 77023, (713) 767-3500. 

Mary R. Risner 

Director, Litigation Division 

Texas Commission on Environmental Quality 

Filed: December 11, 2007 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 37 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony concerning proposed revisions to 30 TAC Chapter 37, Financial Assurance, under the requirements of Texas Health and Safety Code, 5382.01 7; and Texas Government Code, Chapter 2001, Subchapter B. 

The proposed rulemaking would implement House Bill 1956, 80th 

Legislature, 2007, Regular Session. The proposed rulemaking would 

also require underground storage tank (UST) owners or operators to 

include evidence of financial assurance along with self-certification 

forms; require UST owners or operators to empty their tanks within 

90 days of a termination of their financial assurance coverage unless 

they obtain coverage; and clarify and simplify the wording of financial 

assurance mechanisms to minimize confusion. 

The commission will hold a public hearing on this proposal in Austin on 

January 17,2008 at 10:OO a.m. at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in Building 

E, Room 201 S. The hearing will be structured for the receipt of oral 

or written comments by interested persons. Registration will begin 30 

minutes prior to the hearing. Individuals may present oral statements 

when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff members will 

be available to informally discuss the proposal 30 minutes before the 

hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Kristin 

Smith, Office of Legal Services, at (5 12) 239-0 177. 

Comments may be submitted to Kristin Smith, MC 205, Office of Legal Services, Texas Commission on Environmental 

Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed 

to (512) 239-4808. Electronic comments may be submitted at 

hrrp://~~~~5.rceq.srare.tr.us/rules/ecommenrs. File size restrictions 

may apply to comments submitted through the ecomments system. All 

comments should reference Rule Roject Number 2007-038-037-AS. 

The comment period closes January 22, 2008. Copies of the proposed rules can be obtained from the commission's Web site at 

hrrp://ww~ceq.srare.rx.us/nav/rules/pmpme~adop~.h~l. For further 

information, please contact Rob Nonis, Financial Administration 

Division, (5 12) 239-6239. 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 116 and to the State Implementation Plan 

The Texas Commission on Environmental Quality (commission) will 

conduct a public hearing to receive testimony concerning proposed revisions to 30 TAC Chapter 116, Control of Air Pollution by Permits 

for New Construction or Modification, and to the state implementation 

plan (SIP), under the requirements of Texas Health and Safety Code, 

5382.01 7; Texas Government Code, Chapter 2001, Subchapter B; and 

40 Code of Federal Regulations 55 1 .I 02, of the United States Environmental Protection Agency (EPA) regulations concerning SIPS. 

The proposed rulemaking would implement Senate Bill 1673, 80th 

Legislature, Regular Session. 2007, that provides for submission of 

a preconstruction renewal application concurrently with a preconstruction amendment application under certain circumstances. The 

amended rule would specify that the amendment application must be 

filed not more than three years before the date the permit is scheduled 

to expire and must be subject to notice requirements under Texas 

Health and Safety Code, 5382.056, Notice of Intent to Obtain Permit 

or Permit Review; Hearing. Processing a renewal and amendment 

application concurrently would be optional for applicants. 

The commission will hold a public hearing on this proposal in Austinon 

January 29, 2008 at 10:OO a.m. at the Texas Commission on Environmental Quality Complex located at 12 100 Park 35 Circle in Building 

E, Room 201 S. The hearing will be structured for the receipt of oral 

or written comments by interested persons. Registration will begin 30 

minutes prior to the hearing. Individuals may present oral statements 

when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff members will 

be available to informally discuss the proposal 30 minutes before the 

hearing. 

Persons who have special communication or other accommodation 

needs who are planning to attend the hearing should contact Kristin 

Smith, Ofice of Legal Services, at (5 12) 239-0 1 77. 

Comments may be submitted to Kristin Smith, MC 205, Office of Legal Services, Texas Commission on Environmental 

Quality, P.O. Box 13087, Austin, Texas 7871 1-3087, or faxed 

to (512) 239-4808. Electronic comments may be submitted at 

hr~p://www5.rceq.srare.tr.us/rules/ecommenrs. File size restrictions 

may apply to comments submitted through the ecomments system. All 

comments should reference Rule Project Number 2007-024-1 16-EN. 

The comment period closes February 4, 2008. Copies of the proposed rules can be obtained from the commission's Web site at 

hrrp://www. ~ce~.stale. rx.us/nav/rules/pmpose-adopt. I. For further 

information, please contact Rebecca Southard, Air Permits Division, 

(5 12) 239-1 638. 

TRD-200706174 

Robert Martinez 

Director. Environmental Law Division 

Texas Commission on Environmental Quality 

Filed: December 7, 2007 

Notice of Public Hearing on Proposed Revisions to 30 TAC 

Chapter 328 

32 TexReg 9842 December 21, 2007 Texas Register 
(dJ An owner or operator may demonstrate that the owner or operator had been released from financial assurance requirements by 

having met all the requirements of 637.885 of this title (relating to Release from the Requirements) prior to the date of financial assurance 

termination. However, even in the case where a tank has been properly 

tcmorarily removed from service by having met all the requirements 

of 6334.54 of th~s title, ~ncludit~g corrosion protectio~i and leak detection, re~ulated substances may not remain in the tank longer than 90 

days, in accordance with subsection (a) of this section. 

@ Subsection (a) of this section does not affect the commission's authority to require a shutdown of a facility under Texas Water 

Code, 626.3475(e), nor any other sections, rules, or statutes, with regard to financial assurance. 

$3 7.870. Reporting. Registration. and Certification. 

(a) Reporting. An owneror operator must submit the appropriate forms listed in 937.875(b) of this title (relating to Financial Assurance Recordkeeping) documenting current proof of financial assurance 

to the executive director: 

(I) within 30 days after the owner or operator identifies a 

release from an underground storage tank (UST) required to be reported 

under Chapter 334, Subchapter D of this title (relating to Release Reporting and Corrective Action), unless current financial assurance documentation is already on file with the agency; 

(2) if the owner or operator fails to obtain alternate cover- age as required by this subchapter, within 30 days after the owner or 

operator receives notice of: 

(A) commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming a 

provider of financial assurance as a debtor; 

(B) suspension or revocation of the authority of a 

provider of financial assurance to issue a financial assurance mechanism; 

(C) failure of a guarantor to meet the requirements of 

the financial test; or 

(D) other incapacity of a provider of financial assurance; 

(3) as required by 537.825 of this title (relating to Financial 

Test of Selflnsurance) and 537.865 of this title (relating to Cancellation 

or Non-renewal by a Provider of Financial Assurance); or 

(4) when requested by the agency. 

(b) Registration. An owner or operator must register and update the registration whenever there is a change in the financial assurance mechanism or coverage amount, as specified in 9334.7 ofthis title 

(relating to Registration for Underground Storage Tanks (USTs) and 

UST Systems [sy%ems]). The owner or operator must identify, in the 

appropriate space on the authorized agency form, the financial assurance mechanisms used to demonstrate compliance with corrective action and third party liability as described in this subchapter. The owner 

or operator must submit with the form documentation evidencing current financial assurance. Appropriate documentation is that described 

in this subchapter, or otherwise indicated by the comtnission in instructions on the form. 

(c) For certification requirements for petroleum USTs, refer to 

9334.8(b) of this title (relating to Certification for Underground Storage 

Tanks (USTs) and UST Systems [-I). 

,f37.885. Relense,/rarn the Requirements. 

An owner or operator is no longer required to maintain 

financial assurance under this subchapter for an underground storage 

tank afler the tank has been; [d h sePuiee; of; ifeemehe 

&~~&~t?€WF&&&~kitsh~dk 

caRkkitsbeenftreeeFGlteffteue$h~k~ee~~e 

requirements of $33455 of this title (relating 40 Permanent Removal 

ffeRt-1 

properly temporarily removed from service, in accordance with the requirements of $334.54 of this title (relating to Temporary Removal from Service); 

properly permanently removed from service in accordance with the requirements of $334.55 of this title (relating to Permanent Removal from Service); or 

QJ if corrective action is required, after corrective action 

has been completed and the tank has been properly removed from service in accordance with the requirements of 4334.55 of this title. 

(bJ In order to be released from financial assurance requirements under this section, the owner or operator must notify the commission of the change in status in accordance with 4334.7 of this title 

(relating to Registration for Unde~round Storage Tanks (USTs) and 

UST Systems). 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's legal authority to adopt. 

Filed with the Office of the Secretary of State on December 7, 

2007. 

TRD-200706175 

Mary R. Risner 

Director. Litigation Division 

Texas Commission on Environmental Quality 

Earliest possible date of adoption: January 20.2008 

For further information, please call: (512) 239-0177 

4 4 4 

CHAPTER 1 16. CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

SUBCHAPTER D. PERMIT RENEWALS 

30 TAC 5116.315 

The Texas Commission on Environmental Quality (TCEQ or 

commission) proposes an amendment to 9116.315. 

The amended section will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state 

implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULE 

The commission proposes revisions to Chapter 116, Control of 

Air Pollution by Permits for New Construction or Modification, 

9116.315, Permit Renewal Submittal, as a result of passage of 

Senate Bill 1673 (SB 1673), 80th Legislature, Regular Session, 

2007. This legislation amended Texas Health and Safety Code, 

9382.055, Review and Renewal of Preconstruction Permit. Senate Bill 1673 allows the cornrnission.to process a renewal application at the same time as an amendment for a preconstruction permit, provided the amendment application is filed not more 

than three years before the date the permit is scheduled to expire 

and is subject to notice requirements under Texas Health and 

PROPOSED RULES December 21,2007 32 TexReg 9533 
Safety Code. 9382.056, Notice of Intent to Obtain Permit or Permit Review; Hearing. In order for the commission to process a renewal application concurrently with such an amendment application, the applicant must not object. The changes to Texas Health 

and Safety Code. 9382.055 became effective May 9, 2007. 

SECTION DISCUSSION 

31 16.31 5. Permit Renewal Submittal. 

The commission proposes to modify the language in this section to account for applications that will be submitted earlier than 

18 months prior to the expiration of the permit. The commission 

proposes to add a description of the SB 1673 limitations for submitting a renewal application concurrently with an amendment 

application. The commission also proposes to delete a reference 

to the May 1, 2004, effective date. as it is no longer needed. 

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

Nina Chamness, Analysl, Strategic Planning and Assessment, 

has determined that, for the first five-year period the proposed 

rule is in effect, no significant fiscal implications are anticipated 

for the agency or other units of state or local governments as a 

result of administration or enforcement of the proposed rule. 

The proposed rule would amend Chapter 116 to implement the 

provisions of SB 1673,801h Legislature, Regular Session, which 

make it possible to process certain renewal applications at the 

same time as an amendment for preconstruction permits under 

the Clean Air Act. Under the proposed rule, an amendment application must be filed not more than three years before the date 

the permit is scheduled to expire. Submitting the renewal application in conjunction with an amendment application is optional 

for the applicant, and the amendment application must be subject to notice requirements required by Texas Health and Safety 

Code, 9382.056. The proposed rule does not impose any new 

fees or change the amount of current fees. 

The proposed rule provides applicants with more flexibility 

and convenience during the renewal process. If an applicant 

chooses to process a renewal application at the same time 

as an amendment for a preconstruction permit, the applicant 

would be required to pay the existing renewal and amendment 

fees concurrently. Staff is unable to estimate the number of 

local governments that might choose the combined application 

process. 

Amendment fees for preconstruction permits can range from 

$900 to $75,000 depending on the capital size of the project. 

Renewal fees can range from $600 to $10,000 based on a facility's total allowable emissions. If a local government chooses 

to process a renewal application along with an amendment 

for a preconstruction permit, combined fees could be as much 

as $1,500 to $85,000. By submitting a combined renewal and 

amendment application, local govemments would only have to 

track one instead of two application packages and would also 

only be required to publish one public notice instead of two. 

The cost savings for not publishing an additional public notice 

could be as much as $6,000 depending on the rates charged by 

newspapers in the surrounding area. 

PUBLIC BENEFITS AND COSTS 

Ms. Chamness also determined that for each year of the first five 

years the proposed rule is in effect, the public benefit anticipated 

from the changes seen in the proposed rule will be the addition of 

an optional, more efficient air permitting process that continues 

to protect the environment and public health and safety. 

Under the proposed rule, applicants could choose to process 

a renewal application at the same time as an amendment for a 

preconstruction permit. Staff is unable to estimate the number of 

businesses that would choose to utilize the combined application 

process. 

Instead of tracking two separate applications as is done under 

current rule, applicants would have to track only one application 

if they choose this option. Although permit fees for these applications are not changing, applicants would have to pay both fees if 

they submit the combined package. Combined fees could range 

from $1,500 to $85,000 depending on capital requirements and 

the amount of a facility's emission limits. Cost savings associated with publishing one instead of two public notices could be 

as much as $6,000 depending on the rates charged by newspapers in the surrounding area. Since submitting a combined application is an option for permit holders and merely changes the 

timing of paying permit fees, the proposed rule is not expected 

to have a significant fiscal irnpact on individuals and large businesses. 

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

No adverse fiscal implicalions are anticipated for small or micro-businesses as a result of the proposed rule. The proposed 

rule does not change the amount of fees paid and gives small 

or micro-businesses the option of choosing a more efficient permitting process regarding amendments to preconstruction permits and permit renewals. If a small business chooses the optional application process, it would incurthe same combined application fees and experience the same savings regarding public 

notices as those incurred by local governments and large businesses. 

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS 

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not 

required because the proposed rule does not adversely affect a 

small or micro-business in a material way for the first five years 

that the proposed rule is in effect. 

LOCAL EMPLOYMENT IMPACT STATEMENT 

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a 

local economy in a material way for the first five years that the 

proposed rule is in effect. 

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the proposed rulemaking action in 

light of the regulatory analysis requirements of Texas Government Code. §2001.0225, and determined that the proposed 

amendment does not meet the definition of a (major environmental rule( as defined in that statute. According to Texas 

Government Code, §2001.0225(9)(3), a "major environmental 

rule" is a rule which is specifically intended to protect the environment or reduce risks to human health from environmental 

exposure, and that may adversely affect in a material way the 

economy, a sector of the economy, productivity, competition, 

jobs, the environment, or the public health and safety of the 

state or a sector of lhe state. The intent of this proposed 

rulemaking is to implement SB 1673, passed during the 80th 

Legislature, Regular Session, 2007. This legislation allows the 

32 TexReg 9534 December 21,2007 Texas Register 
commission to process a renewal application at the same time CONSISTENCY WITH THE COASTAL MANAGEMENT PROas an amendment provided the amendment application is filed GRAM 

not more than three years before the date the.permit is scheduled to expire, is subject to notice requirements under Texas 

Health and Safety Code, 9382.056, and the applicant does 

not object. In addition, the regulatory analysis requirements of 

Texas Government Code. 92001.0225, only apply to a major 

environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required 

by state law; 2) exceed an express requirement of state law, 

unless the rule is specifically required by federal law; 3) exceed 

a requirement of a delegation agreement or contract between 

the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a 

rule solely under the general powers of the agency instead of 

under a specific state law. Specifically, the proposal will amend 

the commission rule regarding permit renewal application submittals that will allow renewal applications be processed by the 

commission concurrently with amendment applications provided 

certain conditions are met. The proposed amendment would 

implement changes to rule as a result of passage of SB 1673 

in the 80th Legislature, Regular Session, 2007. This proposal 

therefore does not exceed an express requirement of federal 

law. The amendment is needed to implement state law but does 

not exceed those new requirements. The proposed rule does, 

not involve a delegation agreement or contract between the 

state and federal government to implement a state and federal 

program. Finally, this proposed rulemaking was not developed 

solely under the general powers of the agency, but is authorized by specific sections of Texas Health and Safety Code, 

Chapter 382, which are cited in the STATUTORY AUTHORITY 

section of this preamble, including Texas Health and Safety 

Code, s9382.0518, 382.055, and 382.056. Written comments 

on the draft regulatory impact analysis determination may be 

submitted to the contact person at the address listed under the 

SUBMITTAL OF COMMENTS section of this preamble. 

TAKINGS IMPACT ASSESSMENT 

Under Texas Govemment Code, §2007.002(5). "taking" means 

a governmental action that affects private real property, in whole 

The commission reviewed the proposed rulemaking and found 

the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC 9505.11(b)(2) relating 

to rules subject to the Coastal Management Program, and will. 

therefore, require that goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the 

regulations of the Coastal Coordination Council and determined 

that the rulemaking is procedural in nature and will have no substantive effect on commission actions subject to the CMP and is. 

therefore, consistent with CMP goals and policies. Written comments on the consistency of this rulemaking may be submitted to 

the contact person at the address listed under the SUBMITTAL 

OF COMMENTS section of this preamble. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

The amended sections are applicable requirements under the 

Federal Operating Permits Program, but no revisions to operating permits will be required as a result of this rulemaking. 

ANNOUNCEMENT OF HEARING 

The commission will hold a public.hearing on this proposal in 

Austin on January 29. 2008. at 10:OO a.m. in Building E. Room 

201S, at the commission's central office located at 12100 Park 

35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present 

oral statements when called upon in order of registration. There 

will be no open discussion during the hearing; however, commission staff members will be available to discuss the proposal 

30 minutes before the hearing. Persons who have special communication or other accommodation needs who are planning to 

attend the hearing should contact Kristin Smith, Office of Legal 

Services, at (512) 239-0177. Requests should be made as far 

in advance as possible. 

SUBMITTAL OF COMMENTS 

ofin part ortemporarily or permanently, in a manner that requires 

the governmental entity to compensate the private real property Comments may be submitted to Kristin Smith, MC 205, 

Office of Legal Services. Texas Commission on EnvironOwner as provided by the Fifth and Fourteenth Amendments to mental Quality, P.0, Box 13087, Austin, Texas 78711-3087, the United States Constitution or 917 ors19, Article I, Texas Conor faxed to (512) 239-4808. Electronic comments may be stitution; or a governmental action that affects an owner's private submitted at hnp:/~5.tceq.state.tx.us/ruledecommentd. real property that is the subject of the governmental action. in File size restrictions may apply to comments via 

Or in part Or Or P~~~~~~~~~Y, in a manner that the Comments system, All comments should reference 

restricts or limits the owner's right to the property that would 0th- Rule Project Number 2007-024-116~PR, The comment pe- erwise exist in the absence of the governmental action; and is riod closes February 4, 2008. Copies of the proposed the producing cause of a reduction of at least 25% in the market rule can be obtained from the commission,s Web site at 

Of the affected private real property' determined by 'Om- http://www.tceq.state.tx.ushav/~edpropose-adopt.html. For paring the market value of the property as if the governmental further information, please contact Becky Southard, Air Permits action is not in effect and the market value of the property deter- , Division, at (512) 239-1638, mined as if the governmental action - is in effect. 

The commission completed a takings impact assessment for the 

proposed rule. Promulgation and enforcement of the rule will 

not affect private real property in a manner that would require 

compensation to private real property owners under the United 

States Constitution or the Texas Constitution. The proposed rule 

also will not affect private real property in a manner that restricts 

or limits an owner's right to the property that would otherwise 

exist in the absence of the government action. Therefore, the 

proposed rule will not cause a "taking," as defined under Texas 

Govemment Code, 92007.002(5). 

STATUTORY AUTHORITY 

The amendment is proposed under Texas Water Code (TWC), 

s5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC, and 

under Texas Health and Safety Code (THSC), Texas Clean Air 

Act (TCAA), 5382.017, which provides the commission with the 

authority to adopt rules consistent with the policy and purposes 

of the TCAA. The amendment is also proposed under THSC, 

s382.011, which authorizes the commission to control the quality of the state's air; 9382.012, which authorizes the commission 

PROPOSED RULES December 21,2007 32 TexReg 9535 
to prepare and develop a general, comprehensive plan for the 

control of the state's air; 9382.0518. which authorizes the commission to issue permits for modification to an existing facility that 

may emit air contaminants; 9382.055, which authorizes the commission to review and renew prewnstruction permits according 

to a specific schedule; and 9382.056, which authorizes the commission to require applicants for a permit amendment or permit 

renewal to publish notice of intent to obtain the authorizalion. 

The proposed amendment implements TWC, 95.103, THSC, 

99382.011.382.012, 382.017, 382.0518, 382.055, and 382.056, 

and SB 1673,801h Legislature, Regular Session, 2007. 

$11 6.315. Permit Renewal Submi~tal. 

(a) With the exception of subsections (b] and (c] of this section, an [An] application for renewal must be submitted at least six 

months, but no earlier than 18 months, prior to expiration of the permit 

or the permit will expire. [atis be efkkw en Mq % 

m1 

(b) With executive director approval, the application may be 

submitted before or after the time period specified in subsection (a) of 

this section. 

@ A renewal application withappropriate fee may be submittedat the same time as an amendment application to modify an existing 

facility as long as it is submitted not more than three years before the 

permit's expiration date and the amendment is subject to public notice 

p 

requirements under Texas Health and Safety Code, 5382.056, Notice 

(cJ [+$I Any permit issued: 

(1) before December 1, 1991, is subject for review 15 years 

after the date of issuance; 

(2) on or after December 1, 199 1, is subject for review every ten years after the date of issuance; or 

(3) at non-federal sources on or after December 1, 1991, 

may, for cause, contain a provision requiring renewal between five and 

ten years. 

This agency hereby certifies that the proposal has been reviewed 

by legal counsel and found to be within the agency's legal authority toadopt. 

Filed with the Office of the Secretary of State on December 7, 

2007. 

TRD-200706173 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Qualiiy 

Earliest possible dale of adoplion: January 20, 2008 

For further information, please call: (512) 239-0177 

CHAPTER 328. WASTE MINIMIZATION AND 

RECYCLING 

SUBCHAPTER I. COMPUTER EQUIPMENT 

RECYCLING PROGRAM 

30 TAC §§328.131, 328.133, 328.135, 328.137, 328.139, 

328.141, 328.143, 328.145, 328.147, 328.149, 328.151, 

328.153, 328.155 

The Texas Commission on Environmental Quality (TCEQ or 

commission) proposes new 99328.1 31. 328.133, 328.135, 

328.137, 328.1 39, 328.141, 328.143, 328.145. 328.147, 

328.149, 328.151, 328.153, and 328.155. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE PROPOSED RULES 

House Bill (HB) 2714. passed by the 80th Legislature. 2007, 

requires the commission to help implement a computer-recycling program based on individual manufacturer responsibility 

and shared responsibility among consumers, retailers, and the 

government of this state. The legislation authorizes the wmmission to adopt rules to help implement the program. The TCEQ 

would be able to help implement the program more efficiently if 

rules were adopted. The legislation also states that any rules the 

commission does adopt must be adopted by May 1,2008. 

SECTION BY SECTION DISCUSSION 

A stakeholder meeting was held on July 13, 2007. Since there 

was no draft rule before the stakeholder meeting, the proposed 

rules have been based directly on stakeholder input, including 

much of the proposed rules that are essentially unchanged language from the legislation. The proposed rules reflect stakeholder input made at the meeting and up until July 21,2007. The 

commission's duties under HB 2714 will be incorporated into procedures. 

$328.131, Purpose 

Proposed new 9328.1 31 explains the purpose of proposed new 

Subchapter I, Computer Equipment Recycling Program, which 

is to help establish a comprehensive. convenient, and environmentally sound program for the collection, recycling, and reuse 

of computer equipment. 

$328.133, Applicability and Effective Date 

Proposed new $328.133 seeks to clarify the legislation in two 

ways. One, in proposed subsection (c) of this section. it adds a 

description of the persons to whom the subchapter would apply. 

Two, it makes clear in proposed subsection (e) which rules apply to computer recyclers. Also note, pursuant to HB 2714, the 

effective date of the enforcement provisions of §328.143(d) and 

(e) and of the penalty provisions of 9328.153 and 9328.155 is 

September 1, 2008, regardless of the effective date of the rest 

of this rule. 

$328.135, Definitions 

Proposed new 9328.135 defines terms. The commission prcposes to include three definitions in addition to those listed in 

HB 2714: for "computer," "retailer." and "tuner." This is because 

the terms. "computer" and "retailer," are used, but not defined, in 

HB 2714. The proposed definition of "computet' is from the dictionary. The commission proposes a definition of "retailer" based 

on stakeholder input. The term, "tuner," is uncommon enough in 

everyday dialect that defining it would be helpful. Its proposed 

definition is from the dictionary. The commission also proposes 

to add two items to the legislation's definition of "computer equipment:" a keyboard and a mouse. From the practical standpoint 

of discarding one's "computer." keyboards and mice are essentially synonymous with "computer." 

$328.137, Manufacturer Responsibilities 

The commission proposes new 9328.137 to list the responsibilities of manufacturers under the proposed subchapter. The 

proposed responsibilities are essentially unchanged from those 

32 TexReg 9536 December 21, 200 7 Texas Register 
Buddy Garcia, Chairman 

Larry R. Soward, Commissioner 

Bryan W. Shaw, Ph.D., Commissioner 

Glenn Shankle, Executive Director 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Protecting Texas by Reducing and Preventing Pollution 

NOTICE OF PUBLIC HEARING ON PROPOSED REVISIONS 

TO 30 TAC CHAPTER 116 AND TO THE STATE IMPLEMENTATION PLAN 

The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive 

testimony concerning proposed revisions to 30 TAC Chapter 116, Control of Air Pollution by Permits for 

New Construction or Modification, and to the state implementation plan (SIP), under the requirements of 

Texas Health and Safety Code, $382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 

Code of Federal Regulations 95 1.102, of the United States Environmental Protection Agency (EPA) 

regulations concerning SIPS. 

The proposed rulemalung would implement Senate Bill 1673, 80th Legislature, Regular Session, 2007, 

that provides for submission of a preconstruction renewal application concurrently with a preconstruction 

amendment application under certain circumstances. The amended rule would specify that the 

amendment application must be filed not more than three years before the date the permit is scheduled to 

expire and must be subject to notice requirements under Texas Health and Safety Code, 9382.056, Notice 

of Intent to Obtain Permit or Permit Review; Hearing. Processing a renewal and amendment application 

concurrently would be optional for applicants. 

The commission will hold a public hearing on this proposal in Austin on January 29,2008 at 10:OO a.m. 

at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in Building 

E, Room 201s. The hearing will be structured for the receipt of oral or written comments by interested 

persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements 

when called upon in order of registration. There will be no open discussion during the hearing; however, 

commission staff members will be available to informally discuss the proposal 30 minutes before the 

hearing. 

Persons who have special communication or other accommodation needs who are planning to attend the 

hearing should contact Kristin Smith, Office of Legal Services, at (512) 239-0177. 

Comments may be submitted to Kristin Smith, MC 205, Office of Legal Services, Texas Commission on 

Environmental Quality, P.O. Box 13087, Austin, Texas 7871 1-3087, or faxed to (512) 239-4808. 

Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments. File size 

restrictions may apply to comments submitted through the ecomments system. All comments should 

reference Rule Project Number 2007-024-1 16-EN. The comment period closes February 4,2008. Copies 

of the proposed rules can be obtained from the commission's Web site at 

http://www. tceqstate. tx. us/nav/rules/propose_adopt. html. For further information, please contact 

Rebecca Southard, Air Permits Division, (5 12) 239-1638. 

Issued in Austin, Texas on December 5, 2007 

P.O. Box 13087 Austin, Texas 787 1 1-3087 5 12-239-1000 Internet address: www.tceq.state.tx.us 

pnntcd on recycled paper using soy-based ink 
WRITTEN AND 

ORAL TESTIMONY
Index of Written Testimony 

Page 1 

Rule Project No. 2007-024-1 16-PR 

Docket No. 2007-161 1-RUL 

INDEX OF WRITTEN TESTIMONY 

Reference Number 

W-1 

Submitted By 

The United States Environmental Protection Agency 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS. TX 75202-2733 

JAN 3 0 2008 

Ms. &stin Smith 

MC 205 

Office of Legal Services 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 7871 1-3087 

RE: Comments on Proposed Amendments to 30 Texas Administrative Code (TAC) 

Chapter 116, Control of Air Pollution by Permits for New Construction or Modification 

and to the State Implementation Plan (SIP); Rule Project Number 2007-024-1 16-PR 

Dear Ms. Smith: 

Thank you for the opportunity to provide comments on this proposed revision to 30 TAC 

Chapter 116 and the SIP. In this action, the Texas Commission on Environmental Quality 

(TCEQ) proposed to amend 30 TAC $ 116.315 to make it possible to process renewal 

applications at the same time as an amendment to preconstruction permit. Under the proposed 

rule, an amendment must be filed not more than three years before the date the permit is 

scheduled to expire. 

Based upon our review of this proposed rule, we have the following comments for your 

consideration: 

1. The TCEQ must ensure that any requirements relating to public notice and 

comment procedures meet all Federal requirements and be the more 

stringent of the two (permit renewalslpermit amendments). The current 

SIP-approved provisions for public notice and comment for permit 

amendments are in $0 116.1 16, 116.130 - 116.134, and 116.136 - 116.137 

and the SIP-approved provisions for public notice and comment for permit 

renewals are in § 1 16.312. The TCEQ must ensure that this revision does 

Internet Address (URL) http:/hww.epa.gov 

RecycledlRecycleble Pdnted wlth Vegelable 011 Based Inks on Recycled Paper (Mlnlmum 25% Postconsumer) 
not relax those requirements, and continues to meet the 

Federal requirements for public notice and comment in 40 Code of 

Federal Regulations 5 1.16 1 when it consolidates the renewal and 

amendment application process. 

2. Texas has submitted earlier versions of 5 116.3 15 to the U.S. 

Environmental Protection Agency (EPA) for SIP approval on 

September 4,2002, and September 25,2003. The EPA has not completed 

its review of these earlier SIP submittals and has not approved them into 

the SIP. Other related revisions that are pending before EPA include 

revisions to §$ 116.310, 116.31 1, 116.312, 116.313, 116.314, and 

revisions to Chapter 39 submitted December 15, 1995; 

July 22,1998; October 25,1999; September 4,2002; October 4,2002; and 

September 25,2003. Accordingly, EPA's approval of the currently proposed 

revisions to 5 116.315 is contingent upon EPA approval of these previous 

in-house SIP submittal revisions. 

3. The TCEQ needs to explain why, in the proposed fj 1 16.3 15(c), it cites to 

the Health and Safety Code, 5 382.056 instead of the agency's 

implementing regulations. Does TCEQ implement Health and Safety 

Code, $382.056 through 30 TAC Chapter 39? The way the rule is 

currently written, it does not give the public clear notice of current 

regulatory standards and requirements. Furthermore, if the requirements 

of $ 382.056 are implemented under 30 TAC Chapter 39, TCEQ may need 

to address the concerns that EPA has previously provided to TCEQ on 

August 14,2006, concerning public participation. 

4. 5 116.315(c) should explain what is meant by "renewal application with 

appropriate fee" and "amendment application to modify the existing 

facility." The rule should include a cross-reference to the appropriate 

regulatory requirement related to applications and fees for both 

amendments and renewals. Because the fees are different under the 

programs for permit amendment and permit renewal, the rule should make 

it clear what fee should be paid. The rule should specify whether the 

source must pay the higher of the two fees or pay a fee that is the sum of 

the fees that would be paid if the amendment and renewal were processed 

separately and a statement of the basis for the decision of which fee must 

be paid. 

5. Under the existing provisions in 5 116.315(b), the Executive Director has 

discretion to allow an applicant to submit a permit application for renewal 

past the 6-month deadline. Texas must include replicable provisions to 

determine when a permit application may be submitted before or after the 

time period specified in 1 16.3 15(a). The EPA discourages the use of 
"director discretion" provisions that allow for a variance from SIP 

requirements in contrast to section 110 of the Clean Air Act. We also 

request that Texas clarify whether a timely submittal of a renewal 

application under 8 116.315(a) or (b), allows the permit to remain in the 

event that TCEQ does not complete action on the renewal request prior to 

the expiration date. 

We appreciate this opportunity to provide these comments on this proposed rule. If you 

have any questions, please call Mr. Stanley M. Spruiell of my staff at (214) 665-7212. 

Sincerely yours, 

Jeff Robinson 

Chief 

Air Permits Section 
No Oral Testimony

With State Submittal
EVALUATION OF

TESTIMONY
Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM 

To: Commissioners Date: April 18,2008 

Thru: LaDonna Castaiiuela, Chief Clerk 

Glenn Shankle, Executive Director 

From: an Eden, Deputy Director 

@%ce of Permitting, Remediation, and Registration , 

Docket No.: 2007-1 61 1 -RUL 

Subject: Commission Approval for Rul-g Adoption 

Chapter 1 16, Control of Air Pollution by Permits for New Construction or Modification 

Senate Bill (SB) 1673: Concurrent Renewals and Amendments 

Rule Project No. 2007-024-1 16-PR 

Scope of the rulemaking: The amendments would add a description of the SB 1673 limitations for 

submiiting a renewal application concurrently with an amendment application. 

~easons for the rule package: Updating Chapter 1 16 would make it consistent with SB 1673 that allows a 

permit to be renewed when amended. Although there are no official deadlines, SB 1673 was effective 

May 9,2007. These changes are to make Chapter 116 consistent with this bill. 

Statutory Authority: Texas Water Code, $5.103, Rules; and Texas Health and Safety Code, $382.01 1, 

General Powers and Duties, $382.012, State Air Control Plan, $382.017, Rules, 9382.055, Review and 

Renewal of Preconstruction Permit, $382.056, Notice of Intent to Obtain Permit or Permit Review; Hearing, 

and $382.05 18, Reconstruction Permit. 

Potentially controversial matters: None. 

Public comment: ~Lcomments were made at the public hearing. The United States Environmental 

Protection Agency (EPA) provided written comments. These comments requested clarification regarding 

public notice and fees. The EPA also commented that earlier vers~ons of 30 TAC $1 16.315 have been 

submitted for state implementation plan (SIP) approval on September 4,2002 and September 25,2003, but 

have not yet been approved by the EPA, so the revision to $ 1 16.3 15 cannot be p~ocessed until the EPA has 

approved the previously submitted SIP revisions. The EPA discouraged the inclusion of a citation that was 

not being ~evised in this rulemaking. The comments did not result in any changes to the rule. 

f 

Significant changes from proposal: None. 

Key points in adoption rulemaking schedule: 

Texas Register proposal publication date: December 2 1,2007 . 

Six-month Texns Register fding deadline: June 23,2008 

Anticipated Texas Register publication date: May 23,2008 

Anticipated effective date: May 29,2008 

Agency contacts: 

Becky Southard, Rule Project Manager, 239-1638, Air Permits Division 

John Minter, Staff Attorney, 239-0663 

Kristin Smith, Texas Register Coordinator, 239-01 77 
Commissioners 

Page 2 

April 18,2008 

Re: Docket No. 2007-1 6 1 I -RUL 

'Attachments 

cc: Chief Clerk, 5 copies 

Executive Director's Office 

David C. Schanbacher, P.E. 

Ashley K. Wadick 

Daniel Womack 

Zak Covar 

Ofice of General Counsel 

Becky Southard 

Kristin Smith 
Texas Commission on Environmental Quality Page 1 

Chapter 1 16 - Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2007-024- 1 16-PR 

The Texas Commission on Environmental Quality (TCEQ or commission) adopts an amendment to 

5 1 16.3 15 without changes to the proposed text as published in the December 21,2007, issue of the Texas 

Register (32 TexReg 9533) and will not be republished. 

The amended section will be submitted to the United States Environmental Protection Agency (EPA) as a 

revision to the state implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE 

The commission has adopted revisions to Chapter 116, Control of Air Pollution by Permits for New 

Construction or Modification, 5 1 16.3 15, Permit Renewal Submittal, as a result of passage of Senate Bill 

1673 (SB 1673), 80th Legislature, 2007. This legislation amended Texas Health and Safety Code 

(THSC), 8382.055, Review and Renewal of Preconstmction Permit. SB 1673 allows the commission to 

process a renewal application at the same time as an amendment for a preconstmction pernlit, provided 

the amendment application is filed not more than three years before the date the permit is scheduled to 

expire and is subject to notice requirements under THSC, 5382.056, Notice of Intent to Obtain Permit or 

Permit Review; Hearing. In order for the commission to process a renewal application concurrently with 

such an amendment application, the applicailt must not object. The changes to THSC, 5382.055 became 

effective May 9, 2007. Guidance documents will be updated to clarify that the notice must be clear that 

the actions include both the renewal and amendment and that both fees must be paid, even if the actions 

are processed concurrently. 

SECTION DISCUSSION 
Texas Commission on Environmental Quality Page 2 

Chapter 116 - Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2007-024- 1 16-PR 

$1 16.31 5. Permit Renewal Submittal. 

The commission adopts the modification of this section to account for applications that can be submitted 

earlier than 18 months prior to the expiration of the permit. The commission adopts the addition of a 

description of the SB 1673 prerequisites for processing a renewal applicationconcurrently with an 

amendment application. The commission also adopts the deletion of a reference to the May 1,2004, 

effective date, as it is no longer needed. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking action in light of the regulatory analysis requirements 

of Texas Government Code, $2001.0225, and determined that the amendment does not meet the 

definition of a "major environmental rule" as defined in that statute. According to Texas Government 

Code, $2001.0225(g)(3), a "major environmental rule" is a rule which is specifically intended to protect 

the environment or reduce risks to human health from environnlental exposure, and that may adversely 

affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the 

environment, or the public health and safety of the state or a sector of the state. The intent of this 

rulemaking is to implement SB 1673, passed during the 80th Legislature, 2007. This legislation allows 

the coinmission to process a renewal application at the. same time as an amendment provided the 

amendment application is filed not more than three years before the date the permit is scheduled to expire, 

is subject to notice requirements under THSC, $382.056, and the applicant does not object. In addition, 

the regulato~y analysis requirements of Texas Govenlrnent Code, $2001.0225, only apply to a major 

envirorunental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is 

specifically required by state law; 2) exceed an express requirement of state law, unless the rule is 

specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract 
Texas Coinrnissio~~ onEnvironmental Quality Page 3 

Chapter 116 - Control of Air Pollution by Permits for New Constniction or Modification 

Rule Project No. 2007-024-1 16-PR 

between the state and an agency or representative of the federal government to implement a state and 

federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a 

specific state law. Specifically, the adoption will amend the commission rule regarding permit renewal 

application submittals that will allow renewal applications to be processed by the commission 

concurrently with amendment applications provided certain conditions are met. This adoption therefore 

does not exceed an express requirement of federal law. The amendment will implement changes to THSC, 

5382.055 as a result of passage of SB 1673 in the 80th Legislature, 2007. The amendment is needed to 

implement state law but does not exceed those new requirements. The rule does not involve a delegation 

agreement or contract between the state and federal government to implement a state and federal program. 

Finally, this rulemaking was not developed solely under the general powers of the agency, but is 

authorized by specific sections of THSC, Chapter 382, which are cited in the STATUTORY 

AUTHORITY section of this preamble, including THSC, 55382.05 18,382.055, and 382.056. 

The commission solicited comments on the draft regulatory impact analysis determination and no 

comments were received. 

TAKINGS IMPACT ASSESSMENT 

Under Texas Governn~ent Code, 52007.002(5), "taking" means a govemmental action that affects private 

real property, in whole or in part or temporarily or permanently, in a manner that requires the 

governmental entity to compensate the private real property owner as provided by the Fifth and 

Fourteenth Amendments to the United States Constitution or $17 or 519, Article I, Texas Constitution; or 

a govemmental action that affects an owner's private real property that is the subject of the governmental 

action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's 
Texas Commission on Environmental Quality Page 4 

Chapter 1 16 - Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2007-024-1 16-PR 

right to the property that would otherwise exist in the absence of the governmental action; and is the 

producing cause of a reduction of at least 25% in the market value of the affected private real property, 

determined by comparing the market value of the property as if the governmental action is not in effect 

and the market value of the property determined as if the governmental action is in effect. 

The commission completed a takings impact assessment for the n~le. Promulgation and enforcement of 

the rule will not affect private real property in a manner that would require compensation to private real 

property owners under the United States Constitution or the Texas Constitution. The rule also will not 

affect private real property in a manner that restricts or limits an owner's right to the property that would 

otherwise exist in the absence of the government action. Therefore, the rule will not cause a "taking," as 

defined under Texas Government Code, $2007.002(5). 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in 

the Coastal Coordination Act Implementation Rules, 31 TAC 5505.1 1(b)(2), relating to rules subject to 

the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. The commission reviewed 

this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the 

Coastal Coordination Council and determined that the rulemaking is procedural in nature and will have no 

substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals 

and policies. 

The commission solicited comments on the consistency of this ruleinaking, but no comments on the CMP 
Texas Coinmission on Environmental Quality Page 5 

Chapter 1 16 - Control of Air Pollution by Permits for New Construction or Modification 

Rille Project No. 2007-024- 1 16-PR 

were received. 

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM 

The amended sections are applicable requirements under the Federal Operating Permits Program, but no 

revisions to operating permits will be required as a result of this n~lemaking. 

PUBLIC COMMENT 

The proposed revisions were published in the December 2 1,2007, issue of the Texas Register. A public 

hearing on the proposal was held in Austin on January 29,2008, at the TCEQ. No comments were 

received at the public hearing. The commission received written comments from the EPA during the 

public comment period, which closed on February 4,2008. 

EPA suggested modifications to the rules as stated in the RESPONSE TO COMMENTS section of this 

preamble. 

RESPONSE TO COMMENTS 

The EPA commented that requirements relating to public notice and comment procedures for renewing 

and amending a permit concurrently must meet all federal requirements. It also noted that the more 

stringent of the renewal and amendment public notice procedures must be used. The EPA expressed 

concern that the public notice requirements should not be relaxed if a renewal and amendment is 

processed concurrently. 

The requirements concerning the concurrent processing of renewals and amendments meet all 
Texas Commission on Environmental Quality Page 6 

Chapter 11 6 - Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2007-024- 1 16-PR 

federal requirements and the associated public notice requirements have not been relaxed. In a 

concurrent review, the renewal and amendment applications could be noticed together and would 

require publication in a newspaper with at least a 30-day public comment period, which are 

required under federal rules. The purpose of this rulemaking is to implement the statutory change 

to THSC, 5382.055, that establishes the timing of permit renewals and does not change public 

notice requirements or permit fees. No change has been made as a result of this comment. 

The EPA commented that earlier versions of $1 16.31 5 have been submitted for SIP approval on 

September 4,2002, and September 25,2003, but have not yet been approved by the EPA. The EPA 

stated that other related pending reviews for SIP approval include revisions to $5 1 16.3 10, 1 16.3 1 1, 

1 16.312, 1 16.3 13, 1 16.3 14, and revisions to 30 TAC Chapter 39 submitted December 15, 1995; July 22, 

1998; October 25,1999; September 4,2002; October 4,2002; and September 25,2003. The EPA 

commented that the revision to $ 11 6.3 15 cannot be processed until the EPA has approved the previously 

submitted SIP revisions. 

The commission anticipates that this SIP revision can be processed simultaneously with previous 

revisions governing permit review and public notice. While this amendment adds language to 

5116.315 concerning the concurrent processing of renewals and amendments, this amendment does 

not change the intent of the existing rule language that was submitted to the EPA in previous SIP 

revisions. No change has been made as a result of this comment. 

The EPA asked for clarification regarding public notice references and suggested that the current 

language does not clearly state what is required. EPA asked if THSC, $382.056, requirements are 
Texas Conunission on 

Chapter 116 - Control 

Rule Project No. 2007 

Environmental Quality Page 7 

of Air Pollution by Permits for New Construction or Modification 

-024- 1 16-PR 

implemented under Chapter 39. It also stated that if THSC, 9382.056, requirements are implemented 

under Chapter 39, the concerns provided in a letter dated August 14,2006, concerning public 

participation should be addressed. 

Reference to THSC, 5382.056, in amended 5116.315 follows the text of SB 1673. This rulemaking 

provides an alternative means of submitting and reviewing renewal and amendment applications 

concurrently; however, it does not alter or eliminate the requirements for public notice as required 

in Chapter 39. The requirements in THSC, $382.056 are implemented under Chapter 39. 

Commission staff is in the process of reviewing the EPA's concerns with the October 25,1999, SIP 

revision as expressed in the EPA's August 14,2006, letter. While this amendment addresses public 

participation, it does not change the existing rule language that was submitted to the EPA in 

previous SIP revisions. No change has been made as a result of this comment. 

The EPA commented that $1 16.315(c) should further explain what an application and fee for renewals 

and amendments entails by including cross references to the appropriate regulatory requirements. EPA 

also stated that clarification was needed as to what fees would be incurred during concurrent renewal and 

amendment review. EPA also requested that the agency provide a statement of basis for the decision of 

which fee must be paid. 

As stated in the previous response, the purpose of this rulemaking is to implement the statutory 

change to THSC, 5382.055 that establishes the timing of permit renewals. Concurrent processing of 

a renewal and an amendment does not change the fee amount from what it would have been if they 

were processed separately, but the fees would be due when the applications are submitted. since 
Texas Conmission on Environmental Quality Page 8 

Chapter 116 - Control of Air Pollution by Pennits for New Co~lstruction or Modification 

Rule Project No. 2007-024- 1 16-PR 

one fee amount was not chosen over another, a statement of basis was not provided. No change has 

been made as a result of this comment. 

The EPA discouraged the inclusion of $1 16.315(b) that granted executive discretion to allow a variance 

from the six-month renewal application deadline and asked for replicable provisions to determine when a 

variance wouid be allowed. EPA also requested clarification as to whether a timely submittal of a 

renewal appiication under 5 1 16.3 15(a) or (b) allows the permit to remain in effect in the event that the 

action on the renewal request is not completed prior to the expiration date. 

The basis of the inclusion of §116.315(b) is not within the scope of this rulemaking. Variances are 

allowed in instances where the executive director did not send out a timely renewal notice. It is also 

possible for an applicant to request an extension. If the request was provided before the expiration 

date to allow for executive director approval, and if the executive director approves the request, a 

variance may be allowed. As long as the agency receives the renewal application before the 

expiration date, the application is considered timely and the applicant can continue to operate 

under the original permit until the permit is renewed. Issuance of the renewal does not necessarily 

have to occur before the expiration date in order for the permit to remain in effect. No change has 

been made as a result of this comment. 
STAFF

RECOMMENDATIONS
Texas Commission on Environmental Quality 

Chapter 116 - Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2007-024- 1 16-PR 

Page 9 

SUBCHAPTER D: PERMIT RENEWALS 

5116.315 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Water Code (TWC), 55.103, which authorizes the commission to 

adopt rules necessary to carry out its powers and duties under the TWC, and under Texas Health and 

Safety Code (THSC), Texas Clean Air Act (TCAA), $382.017, which provides the commission with the 

authority to adopt rules consistent with the policy and purposes of the TCAA. The amendment is also 

adopted under THSC, $382.01 1, which authorizes the commission to control the quality of the state's air; 

$382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the 

control of the state's air; 5382.05 18, whch authorizes the commission to issue permits for modification to 

an existing facility that may emit air contaminants; $382.055, which authorizes the commission to review 

and renew preconstruction permits according to a specific schedule; and $382.056, which authorizes the 

commission to require applicants for a permit amendment or permit renewal to publish notice of intent to 

obtain the authorization. 

The amendment implements TWC, $5.103, THSC, $$382.011,382.012,382.017,382.0518,382.055, and 

382.056, and SB 1673, 80th Legislature, Regular Session, 2007. 

5116.315. Permit Renewal Submittal. 

(a) With the exception of subsections (b) and (c) of this section. an [An] application for renewal 

must be submitted at least six months, but no earlier than 18 months, prior to expiration of the permit or 

the permit will expire. [This subsection will be effective on May 1,2004.1 
Texas Commission on Environmental Quality Page 10 

Chapter 116 - Control of Air Pollution by Permits for New Construction or Modification 

Rule Project No. 2007-024- 1 16-PR 

(b) With executive director approval, the application may be submitted before or after the time 

period specified in subsection (a) of this section. 

Jc) A renewal avvlication with apvrovriate fee may be submitted at the same time as an 

amendment application to modify an existing facility as long as it is submitted not more than three years 

before the permit's expiration date and the amendment is subject to vublic notice reauirements under 

Texas Health and Safety Code. 4382.056, Notice of Intent to Obtain Permit or Permit Review: Hearing. 

(cIJ [(c)] Any permit issued: 

(1) before December 1,1991, is subject for review 15 years after the date of issuance; 

(2) on or after December 1, 199 1, is subject for review every ten years after the date of 

issuance; or 

(3) at non-federal sources on or after December 1, 1991, may, for cause, contain a 

provision requiring renewal between five and ten years. 
I hereby certify thai ih~s I.: ;; !,I:.+ i:rlrj Grrectwofr 

Texas Commiss~~rt on Envrronm3ntel Quelttyw 

whlch is filed in the permanant records ofthe CMnrnm, 

Given unjer my handano tilt. seal of Dffice on 

~adonna ~ast&uela, Chief Clerk 

Texas Commission on Ennronmental Quality 

ORDER ADOPTING AMENDED RULE AND 

REVISION TO THE STATE IMPLEMENTATION PLAN 

Docket No. 2007- 16 1 1 -RUL 

On May 7, 2008, the Texas Commission on Environmental Quality (Commission), during a public 

meeting, considered adoption of amended 5 116.315. The Commission adopts this amendment, in Chapter 

116, Control of Air Pollution by Permits for New Construction or Modification, Subchapter D, Permit 

Renewals; and corresponding revision the state implementation plan (SIP). The amendment allows the 

commission to process a renewal application at the same time as an amendment provided the amendment 

application is filed not more than three years before the date the permit is scheduled to expire, is subject to 

notice requirements under Texas Health and Safety Code, $382.056, and the applicant does not object. Under 

Tex. Health & Safety Code Ann. $5 382.01 1, 382.012, and 382.023 (Vernon 2001), the Commission has the 

authority to control the quality of the state's air and to issue orders consistent with the policies and purposes 

of the Texas Clean Air Act, Chapter 382 of the Tex. Health & Safety Code. The proposed rule was published 

for comment in the December 21,2007 issue of the Texas Register (32 TexReg 9533). 

Pursuant to Tex. Health & Safety Code Ann. 5 382.017 (Vernon 2001), Tex. Gov't Code Chapter 

2001 (Vernon 2000 & Vernon Supp. 2005), and 40 Code of Federal Regulations 5 5 1 .lo2 and after proper 

notice, the Commission conducted a public hearing to consider the amendment and revision to the SIP. 

Proper notice included prominent advertisement in the areas affected at least 30 days prior to the date of the 

hearing. A public hearing was held in Austin on January29,2008. 

The Commission circulated hearing notices of its intended action to the public, including interested 

persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The 

public was invited to submit data, views, and recommendations on the proposed amended rule and SIP 

revision, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled 

hearing, copies of the proposed amended rule and SIP revision were available for public inspection at the 

Commission's central office and on the Commission's Web site. 

Data, views, and recommendations of interested persons regarding the proposed amended rule and 

SIP revision were submitted to the Commission during the comment period, and were considered by the 

Commission as reflected in the analysis of testimony incorporated by reference to this Order. The 

Commission finds that the analysis of testimony includes the names of all interested groups or associations 

offering comment on the proposed amended rule and the SIP revision and their position concerning the same. 

IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rule and revision to the 

SIP incorporated by reference to this Order are hereby adopted. The Commission further authorizes staff to 

make any non-substantive revisions to the rule necessary to comply with Texm Register requirements. The 
adopted rule and the preamble to the adopted rule and the revision to the SIP are incorporated by reference in 

this Order as if set forth at length verbatim in this Order. 

IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the 

. chai~n should transmit a copy of this Order, together with the adopted rule and revision to the SIP, to the 

Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, 

$ 1 10, codified at 42 U.S. Code Ann. §$ 74 10 - 7671q, as amended. 

This Order constitutes the Order of the Commission required by the Administrative Procedure Act, 

Tex. Gov't Code, $2001.033 (Vernon 2000 &-Vernon Supp. 2005). 

If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, 

the invalidity of any portion shall not affect the validity of the remaining portions. 

Date issued: MAY 1 2 2008 TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

clb/e;cd 

H.S. 'Buddy' d$rcia,l~hairman 
TITLE 30. ENVIRONMENTAL QUALITY 

PART 1. TEXAS COMMISSION ON 

ENVIRONMENTAL QUALITY 

CHAPTER 1 16. CONTROL OF AIR 

POLLUTION BY PERMITS FOR NEW 

CONSTRUCTION OR MODIFICATION 

SUBCHAPTER D. PERMIT RENEWALS 

30 TAC $116.315 

The Texas Commission on Environmental Quality (TCEQ 

or commission) adopts an amendment to 9116.315 without 

changes to the proposed text as published in the December 21. 

2007, issue of the Texas Register (32 TexReg 9533) and will 

not be republished. 

The amended section will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state 

implementation plan (SIP). 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULE 

The commission has adopted revisions to Chapter 116. Control 

of Air Pollution by Permits for New Construction or Modification, 

9116.315. Permit Renewal Submittal, as a result of passage of 

Senate Bill 1673 (SB 1673). 80th Legislature. 2007. This legislation amended Texas Health and Safety Code (THSC), 9382.055, 

Review and Renewal of Preconstruction Permit. SB 1673 allows 

the commission to process a renewal application at the same 

time as an amendment for a preconstruction permit, provided the 

amendment application is filed not more than three years before 

the date the permit is scheduled to expire and is subject to notice 

requirements under THSC, 9382.056, Notice of Intent to Obtain 

Permit or Permit Review; Hearing. In order for the commission to 

process a renewal application concurrently with such an amendment application, the applicant must not object. The changes to 

THSC, 9382.055 became effective May 9,2007. Guidance documents will be updated to clarify that the notice must be clear 

that the actions include both the renewal and amendment and 

that both fees must be paid, even if the actions are processed 

concurrently. 

SECTION DISCUSSION 

§ 11 6.3 15. Permit Renewal Submittal. 

The commission adopts the modification of this section to 

account for applications that can be submitted earlier than 18 

months prior to the expiration of the permit. The commission 

adopts the addition of a description of the SB 1673 prerequisites for processing a renewal application concurrently with 

an amendment application. The commission also adopts the 

deletion of a reference to the May 1. 2004. effective date, as it 

is no longer needed. 

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION 

The commission reviewed the adopted rulemaking action in light 

of the regulatory analysis requirements of Texas Government 

Code. 92001.0225, and determined that the amendment does 

not meet the definition of a "major environmental rule" as defined in that statute. According to Texas Government Code. 

92001.0225(9)(3), a "major environmental rule" is a rule which is 

specifically intended to protect the environment or reduce risks 

to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the 

economy, productivity, competition. jobs, the environment, or the 

public health and safety of the state or a sector of the state. The 

intent of this rulemaking is to implement SB 1673, passed during the 80th Legislature, 2007. This legislation allows the com 

mission to process a renewal application at the same time as 

an amendment provided the amendment application is filed not 

more than three years before the date the permit is scheduled to 

expire. is subject to notice requirements under THSC, 9382.056, 

and the applicant does not object. In addiiion, the regulatory 

analysis requirements of Texas Government Code, 92001.0225. 

only apply to a major environmental rule, the result of which is to: 

1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of 

state law, unless the rule is specifically required by federal law; 

3) exceed a requirement of a delegation agreement or contract 

between the state and an agency or representative of the federal government to implement a state and federal program; or 

4) adopt a rule solely under the general powers of the agency 

instead of under a specific state law. Specifically, the adoption 

will amend the commission rule regarding permit renewal application submittals that will allow renewal applications to be processed by the commission concurrently with amendment applications provided certain conditions are met. This adoption therefore does not exceed an express requirement of federal law. The 

amendment will implement changes to THSC. 9382.055 as a result of passage of SB 1673 in the 80th Legislature, 2007. The 

amendment is needed to implement state law but does not exceed those new requirements. The rule does not involve a delegation agreement or contract between the state and federal government to implement a state and federal program. Finally, this 

rulemaking was not developed solely under the general powers 

of the agency, but is authorized by specific sections of THSC, 

Chapter 382, which are cited in the STATUTORY AUTHORITY 

section of this preamble. including THSC. 99382.0518.382.055. 

and 382.056. 

The commission solicited comments on the draft regulatory im 

pact analysis determination and no comments were received. 

TAKINGS IMPACT ASSESSMENT 

Under Texas Government Code. 92007.002(5). "taking" means 

a govemmental action that affects private real properly, in whole 

or in part or temporarily or permanently, in a manner that requires 

the govemmental entity to compensate the private real property 

owner as provided by the Fifth and Fourteenth Amendments to 

the United States Constitution or 91 7 or 91 9, Article I. Texas Constitution; or a govemmental action that affects an owner's private 

real property that is the subject of the govemmental action, in 

whole or in part or temporarily or permanently, in a manner that 

restricts or limits the owner's right to the properly that would otherwise exist in the absence of the governmental action; and is 

the producing cause of a reduction of at least 25% in the market 

value of the affected private real property, determined by comparing the market value of the properly as if the governmental 

action is not in effect and the market value of the properly determined as if the governmental action is in effect. 

The commission completed a takings impact assessment for the 

rule. Promulgation and enforcement of the rule will not affect private real properly in a manner that would require compensation 

to private real property owners under the United States ConstituADOPTED RULES May 23,2008 33 Tdeg 41 55 
tion or the Texas Constitution. The rule also will not affect private 

real property in a manner that restricts or limits an owner's right 

to the property that would otherwise exist in the absence of the 

government action. Therefore, the rule will not cause a "taking," 

as defined under Texas Government Code, 92007.002(5). 

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

The commission reviewed the adopted rulemaking and found 

the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules. 31 TAC 9505.11(b)(2), relating 

to rules subject to the Coastal Management Program, and will, 

therefore, require that goals and policies of the Texas Coastal 

Management Program (CMP) be considered during the rulemaking process. The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the 

regulations of the Coastal Coordination Council and determined 

that the rulemaking is procedural in nature and will have no sub 

stantive effect on commission actions subject to the CMP and is, 

therefore, consistent with CMP goals and policies. 

The commission solicited comments on the consistency of this 

rulemaking, but no comments on the CMP were received. 

EFFECTON SITES SUBJECT TO THE FEDERAL OPERATING 

PERMITS PROGRAM 

The amended sections are applicable requirements under the 

Federal Operating Permits Program, but no revisions to operating permits will be required as a result of this rulemaking. 

PUBLIC COMMENT 

The proposed revisions were published in the December 21. 

2007. issue of the Texas Register. A public hearing on the proposal was held in Austin on January 29.2008, at the TCEQ. No 

comments were received at the public hearing. The commission 

received written comments from the EPA during the public corn 

ment period,.which closed on February 4. 2008. 

EPA suggested modifications to the rules as stated in the RESPONSE TO COMMENTS section of this preamble. 

RESPONSE TO COMMENTS 

The EPA commented that requirements relating to public notice 

and comment procedures for renewing and amending a permit 

concurrentlv must meet all federal requirements. It also noted 

SIP approval include revisions to 99116.310, 116.311, 116.312. 

116.313, 116.314. and revisions to 30 TAC Chapter 39 submitted December 15. 1995; July 22. 1998; October 25. 1999; 

September 4,2002; October 4, 2002; and September 25.2003. 

The EPA commented that the revision to 9116.315 cannot be 

processed until the EPA has approved the previously submitted 

SIP revisions. 

The commission anticipates that this SIP revision can be processed simultaneously with previous revisions governing permit 

review and public notice. While this amendment adds language 

to 9116.315 conceming the concurrent processing of renewals 

and amendments, this amendment does not change the intent 

of the existing rule language that was submitted to the EPA in 

previous SIP revisions. No change has been made as a result 

of this comment. 

The EPA asked for clarification regarding public notice references and suggested that the current language does not clearly 

state what is reauired. EPA asked if THSC. 8382.056. reauirements are imdeinented under Cha~ter 39. .lialso stated that if 

THSC. 9382.056. requirements are implemented under Chapter 39, the concerns provided in a letter dated August 14, 2006, 

conceming public participation should be addressed. 

Reference to THSC. 9382.056. in amended 9116.315follows the 

text of SB 1673. This rulemaking provides an alternative means 

of submitting and reviewing renewal and amendment applications concurrently; however, it does not alter or eliminate the 

requirements for public notice as required in Chapter 39. The 

requirements in THSC. 9382.056 are implemented under Chapter 39. Commission staff is in the process of reviewing the EPA's 

concerns with the October 25. 1999. SIP revision as expressed 

in the EPA's August 14. 2006. letter. While this amendment addresses public participation, it does not change the existing rule 

language that was submitted to the EPA in previous SIP revisions. No change has been made as a result of this comment. 

The EPA commented that §116.315(c) should further explain 

what an application and fee for renewals and amendments entails by including cross references to the appropriate regulatory 

requirements. EPA also stated that clarification was needed as 

to what fees would be incurred during concurrent renewal and 

amendment review. EPA also requested that the agency prck 

vide a statement of basis for the decision of which fee must be 

paid. 

that the nore stringent of the renewal and amendment public stated in the previous response, the pumose of this rulemak- notice procedures must be The EPA expressed ing is to implement the statutory change to THSC, 9382.055 that that the public notice requirements should not be relaxed if a establishes the timing of permit renewals. Concurrent process- renewal and amendment is processed concurrently. ina of a renewal and an amendment does not chanw the fee 

The requirements conceming the concurrent processing of re- atkunt from what it would have been if they were processed 

newals and amendments meet all federal requirements and the separately, but the fees would be due when the applications are 

associated public 'notice requirements have not been relaxed. submitted. Since one fee amount was not chosen over another, 

In a concurrent review, the renewal and amendment applica- a statement of basis was not provided. No change has been 

tions could be noticed together and would require publication in a made as a result of this comment. 

newspaper with at leasla =day public cokeit period, which The EPA disrmraged the inclusion of g1(6.315(b) that granted are required under federal rules. The purpose of this rulemaking executive discretion to allow a variance from the six-mnth re- is to implement the statutory change to THSC. 9382.055s that newal application deadline and asked for repliable provisions establishes the timing of permit renewals and does not change to determine when a variance would be allowed. EPA also re- public notice Or permit fees. No change has been quested clarification as to whether a timely submittal of a renewal made as a result of this comment. a~~lication under 8116.315(al or (bl allows the ~ermit to remain 

The EPA commented that earlier versions of 5116.315 have in effect in the eveh that the action on the renewal request is not 

been submitted for SIP approval on Se~tember 4. 2002. and completed ~rior to the expiration date. 

September 25, Zoo3, but' have not yet been a~~kved the The basis d he inclusion' of 911 6.31 Hb) is not within he scope EPA. The EPA stated that other related pending reviews for of this rulemaking. Variances are allowed in where 

33 TexReg 41 56 May 23, 2008 Texas Register 
the executive director did not send out a timely renewal notice. 

It is also possible for an applicant to request an extension. If the 

request was provided before the expiration date to allow for executive director approval, and if the executive director approves 

the request, a variance may be allowed. As long as the agency 

receives the renewal application before the expiration date, the 

application is considered timely and the applicant can continue 

to operate under the original permit until the permit is renewed. 

Issuance of the renewal does not necessarily have to occur before the expiration date in order for the permit to remain in effect. 

No change has been made as a result of this comment. 

STATUTORY AUTHORITY 

The amendment is adopted under Texas Water Code (TWC), 

95.103. which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC, and 

under Texas Health and Safety Code (THSC), Texas Clean Air 

Act (TCAA), 9382.017. which provides the commission with the 

authority to adopt rules consistent with the policy and purposes 

of the TCAA. The amendment is also adopted under THSC, 

5382.011, which authorizes the commission to control the quality of the state's air; 9382.012, which authorizes the commission 

to prepare and develop a general, comprehensive plan for the 

control of the state's air. 9382.0518, which authorizes the corn 

mission to issue permits for modification to an existing facility that 

may emit air contaminants; 5382.055. which authorizes the corn 

sequent hearing for some substantive permit changes are limited to the specific requested change and directly related issues. 

This applies to most changes that currently meet the definition 

of a major amendment for an MSW facility. 

This rulemaking also adopts additional changes to: 1) definitively 

state that an MSW Temporary Authorization may apply to either 

major or minor changes to a permit or registration; 2) specify 

that the means of transferring an MSW permit or registration is 

a permit or registration modification with public notice; 3) require 

public notice for some modifications which previously did not require notice and to require a major amendment for some permit 

actions previously processed as a modification with public notice; and 4) clan6 that for municipal solid waste fauliies, it is 

the duty of the owner of a facility to submit an application for a 

perrnit unless a facility is owned by one person and operated by 

another, in which case the owner may authorize, in writing, the 

operator to submit an application. 

Concurrent with this rulemaking, the commission adopts amendments to 30 TAC Chapter 330. Municipal Solid Waste, to revise 

the notice requirements for new permits and majoramendments, 

and to revise the distance that public notice would be required 

for certain actions on permits and registrations. 

SECTION BY SECTION DISCUSSION 

Section 305.43, Who Applies . . 

mission to review and renew preconstruction permits according 

to a specific schedule; and 9382.056, which authorizes the corn The commission adopts amendments to 5305.43(a) to make 

mission to require applicants for a permit amendment or permit a grammatical change; adopts the amendment to §305.43(b) 

by adding the word "industrial"; and adopts the addition of renewal to publish notice of intent to obtain the authorization. 6305.431c, to darifv that for MSW aDDlications it is the dutv of 

The amendment implements TWC, 55.103. THSC. $9382.011, ;he ownerof a faciity to submit an Gplication, unless a faiility 

382.012. 382.017. 382.0518. 382.055. and 382.056. and SB is owned bv one Derson and o~erated bv another. in which case 

1673, 80th ~e~islature, ~e~uiar session, 2007. the owner hay ahhorize, in &ting. theoperator.to submit new 

applications. For a new facility. the operator may submit an Thisagency hereby certifies that theadoption has been reviewed application for a permit with the written consent of the owners by legal counsel and found to be a valid exercise of the agency's of the land. legal authority. 

Filed with the Office of the Secretary of State on May 9, 2008. 

T RD-200802427 

Robert Martinez 

Director, Environmental Law Division 

Texas Commission on Environmental Quality 

Effective date: May 29. 2008 

Proposal publication date: December 21. 2007 

For further information. please call: (512) 2340177 

CHAPTER 305. CONSOLIDATED PERMITS 

The Texas Commission on Environmental Quality (TCEQ. 

agency or commission) adopts the amendments to 99305.43. 

305.62. and 305.70 with changes to the proposed text as published in the November 30, 2007. issue of the Texas Register 

(32 TexReg 8681) and will be republished. 

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS 

FOR THE ADOPTED RULES 

Section 305.62, Amendment 

The commission adopts amendments to 9305.62 to correct the 

reference to the title of 9305.70 by changing Municipal Solid 

Waste Class I Modifications to Municipal Solid Waste Permit and 

Registration Modifications. 

The commission adopts 5305.62(i) to identrfy that a full permit 

application must be submitted if the permittee proposes an increase in the facility maximum permitted elevation or lateral extent, an increase in waste capacity, or upgrade of a facility to 

meet federal Subtitle D standards. The commission determined 

that some substantive changes to facility design or operation, 

such as an alternate liner design or the acceptance of a new 

waste stream, may in some circumstances have little or no impact on the surrounding community. and could effectively be addressed through a new processing type referred to as a "limited application." The rule also allows other substantive changes 

to the permit to be proposed by submittal of only related permit 

documents and attachments. In these cases, a contested case 

hearing or other procedure related to the amendment would be 

limited to only the requested amendment and the related permit 

documents and attachments. The rule is revised from proposal 

This rulemaking provides applicants a method of requesting a to: 1) remove reference to the term "site operator; 2) allow a 

substantive change to a permitted municipal solid waste (MSW) lateral expansion for the purpose of adding to the buffer zone 

facility through submittal of only those portions of a permit af- through a permit modification with public notice; 3) clarify referfected by the proposed change. These adopted rules specify ence to the volumetric capacity of a landfill and the maximum 

that under certain criteria, the application, review, and any sub- daily rate of waste acceptance at a Type V processing facility; 

ADOPTED RULES May 23,2008 33 TaReg 4157