### Buddy Garcia, 

### Chairman Larry 

### R. Soward, 

### Commissioner Bryan W. Shaw, Ph.D., 

### Commissioner Glenn Shankle,

### ExecutiveDirector 

# 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 1445Ross 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 116,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 doesnot 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 SIPrevision. 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 ofFederal Regulations 

## $5 1.104. I

am the records administrator for the Air Permits Division ofthe Texas Commission on Environmental Quality (Commission).

Richard Hyde 

# =@w

Director, Air Permits Division Texas Commission on Environmental Quality

## Texas Commission on Environmental Quality Public Hearing January 29,2008
30 TAC Chapter 116 Control ofAir Pollutionby Permits for New Construction or Modification

Rule Project No. 2007-024-1 

## 16-PR SenateBill 1673: 

## ConcurrentRenewals and Amendments

## INTRODUCTION

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

on January 29, 2008, toreceive testimony regarding revisions to 30 TAC Chapter 116, Control of
Air Pollution by Permits forNew Construction or Modification; and corresponding revisions to
the Texas stateimplementationplan (SIP).

The amendmentsto $1

## 16.3 15 add a description ofthe SenateBill 1673limitations for submitting a renewal application concurrently with an amendment application.

The commentperiod closed on February4,2008. All comments have been reviewed and seriouslyconsidered. Thishearing record contains a complete record ofthe public hearings and
is divided intothe following four sections:

Public Notification and Proposal
Written and Oral Testimony
Evaluation ofTestimony
Staff Recommendations

Additional copies of this hearing record are maintained in the TCEQ central office at 12100Park 35 Circle,Austin, Texas 78753. For further information, contact Becky Southard at (512) 239- 1638.

# PUBLIC NOTIFICATION AND PROPOSAL

## PUBLICNOTIFICATION

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

1. Publication ofthe notice ofpublic 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 ofthe public hearing notice in the 

## Tam Register on December 21,2007 (32 TexReg 9842).

3. Publication ofthe proposed rules in the 

## TexasRegister on December 21,2007 (32 TexReg 9533).

4. Correspondence forwarding the notice of public hearing to the following officialsand agencies:

Speakerofthe House
Lieutenant Governor
Alamo Area Council of Governments Capital Area Planning Council City ofDallas Department ofAviation City of Dallas Environmental and Health Services City ofVictoria Planning Department

## East Texas Council of Governments
El Paso City-CountyHealth District
El Paso MetropolitanPlanning 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
SouthEast TexasRegional 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 Departmentof Environmental Quality


## U. S. EnvironmentalProtection Agency

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MRCE OF PUB= HE~NG ON PROPOSEDRMSIONS m 30 TAC CNAPTER 116 AND THC =ATE IMPLCWWATION PUNme TmS Commis*on on Envimnrnerkal Qualltv (wmmksion) win mnduct a public'heating b rzceivetestimony concerning proposedrwirionsm 30 TAC Chapter 116, GanbOl of Air PDllutlonby PermltsTor New Consbudlonor Modiicalion, and to the state Implementation plan (SIP), under the requlremenk of Texas Healthand SakNCode. 6382.017: Texas Government Code. ChaDter2001. SubchaMer 8: and

### 40 Code if~ederai~epulatlons 551.102, ofthe ~Ated stat& ~nvimnmnbl Fmkckion hen- IEPAI mulatlomwmmlno SPs. The mmd rulemaklno wouldimpkkk&na& ~1~11673,BOth ~qi&km, kdu(;rkislon, 2007, th;t providesbrsubmlsson of a prewmbucOon mal applletlonwnplrrsnUy with a pMmtructbnamendment appllemn undercvblndmvnstancrc. The emended rukwould spedty that the amandmnt applletlon must be filed not more than thm vurs bahmth. dam (h. prmkk sd'WW to upin and must b.subjact to notice rcgulnmrnIs underloo5 Hulth and 5.W Coda, 5382.056, ~abif lntel to Obbln Pmnitor Pmnlt Revkrr; Hsarlnp. Pmsrslno a renewal and amendment appllQtlon Wfmmntly would be optional for appllanh. me wmmirslon wlll hdda pubk hcarino on thls pmpDUl InA&h on lanmry 29, 2008 at 10:W a.m. atthe Texas CDmfnlssbnon EnvirnnmanYlOualltv ComDlu icatsdat 12100 Park 35 Urde In Bulldlnp E, RDom 201s. The &rlng wlll bi! -nd hrthe melotd oral at rrrlttan clmmsnb bv 1nbmst.d oMons.

............. - - 

### ..... - .-... RmgkmUon w1II bq(n 30 mln& prlor tD th. hunnp. Indkbdrpk nuy pruent oral staMntrwhen called upon Inorder of ngktntion. Th.ro wIII ba no open dlKuprionduring the hearing; howavar, wmmlu)w,atan numbenwill be availabk to Informallydlxu?rrthe pmpoal30mhuta bclwcthe hearing. Persons who haw rp.dal wmmuniotlon orotk ascwnmdatlon mads who anplannhg to attend the hcarlng should contact Kmn Smith, OlIiceof Legal Swvlas, at 

### , (512) 239-0177. Comments may be subnrtmdm KrhSn Smith, MC 205, Omce d lrpalServka,Texas Comrmrslmon Envlmntnental pualltv, P.O. Box 13087. 

### I Austin, Texas 78711-3M7, w hxedto (512) 239-4808. Oadmnk wmmank may be subm~tted at http.!lwww5.tnq.statsbus/~IeslgDmmenk. Ale sue restnctwns may apply to wmmenk subnrlnedthmuoh the djxrmmk smm. All wmmenk should &fence Ruk Roject Number2007-02CllCEN. The comment prlod dows February4, 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. Forfurther Intonation, please wntact Rebeaa Southard, Alr Rrmlts Dlnaon, (512) 239- 1638 Issued In Austln, Texas on December 5,2007

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NOTlCE OF PUBUC HEARING ON PROPOSED REV
N01ICE OF PUBLIC HEARING ON PROPOSED R-ONS TO 10TAC CHAPTER 116 AND 

### TOTHEZTITZ IMPLEMEHTAROH PLAN The Texas Commbsbnon hvlmnmengl ~uality (commissii) win conduct m pu~k heatingto recciv+ DutlmDnymncernlng pmporod revlsbns m 30TAC Chapkr 116, Conmlaf Ak Pollutionbv Perm* ter Yn. -.

.. .

-. - . - - - - - , - - . . ...-. ConRruUbn or ModlRotbn, and to tne me lmplunenetlon pbn (SIP), under me mquhmnts&Tour Hulthand Sam Code. 0382017; Tans GovernmentCode. Chapter 2001, Sukhsptcr 8; and 40 Code of Falcrbl Rcguladons051.102. dthe Unmd Slam EnvironmentdlRorrctlon Agency (EPA) mguhticmr am~hg SIR. mepmpond ~kmakmg would Impkment Senate 8J11673, 80th Legblatwt, Regubr Scplon. 2W7, that svldcs for submlrrbn da prrcarmvctbn ranwalappligUan 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 thneyun before th~ dak the prmr k cchcduledto upk and must be SubJectm nmIQ rcquhments und.rTms W)lh and YrcY Codc, 0382.056, Not*. of Inum to Oataln Rrmltor Permlt RNk*r; Heamp. Romskpa renewaland amendment eppirotla conwmtly wodd be optimal Ibr mpplluno. me awnmiulonwlll hold a pubDc hearlng on this pmpoaal h Awtln on January 19.1008 at 10:00 a.m. at the Texas &kirsionon Envirmrnnul QualiCornplot beacedat UlOOFar* 35 Urck In Bulllng E. Room 2015. me hcmrlngwUI ba srmcblmd for the m~bt of an1ar mmanu br -..

. .

-.- .-. . -. . . ... . . . -- . -.. - . lnlcmlcd pcnms. Regbimtbn rlllbeq; 30 rnlnu(a prior to the hsrhg. lndlvldusk my wentmi statements when u0.d upon h orderof ragbmtlon. Them *sl be no open dbcusslon durlng the hcarlng; however, mmmbslonsenmembenwill be availablem inhrmslly dtws the pmpcsal30 mlrmm bmbmthe hearlng. Perrom who hare special COmmuniEstion or hr mmmodation needs wim are pbnnlng m attend the heatingshould con- Krbth Smith, ORaof Legal SwiEes, at (512) UP-0177. CommmU may ba sub- to Krlrtln Smith, MC 205,.Wnce of LegalServica, Tarss Commksbn on Envlrnnmenel Quallw, P.O. Box 13087, ~usun, Texas 78711-3087, or hxedto (512) 239-4808. Heurmk commenu may be NbmllQd at 

### ma:// nmLkeq. state.lx.us/rukrleSDmmentr. File size ramPtons may apply to mmmenusvknDIed through the ehmanB system. Ni camntr



### . . should iehmncm Rule hJeU Number2007- 024-116-EN. The comment prbddoses 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. huedIn Austin. Taxas on Decmmber5,2007 29215563

0ml.malLapalNoliceROWJY CamwaWn CUIRCS(solcwwtm rsgard lolhacontent pmuleby LNRC).

News IBusiness ISporis IEnteltaient I Uving I Travel IShop Local Classifieds IJobs ICars 1 Homes ,Mcn,r Aboulthe Real Cilies Network I Terms o( Urea Privacy Slaternant1 Copyight IAbart 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 

### 9 116.116(a)(1), THSC, §382.085(b). and NSR Permit Number Texas Commission on EnvironmentalQuality 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, SuiteH, Houston, Texas 77023, (713)767-3500.
Mary R. Risner Director, Litigation Division Texas Commission on Environmental Quality Filed: December 11,2007

Notice ofPublic Hearing on Proposed Revisions to 

### 30 TAC Chapter 

### 37 The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony concerningproposed revisions to 30 TAC Chapter 37, Financial Assurance, under therequirements ofTexas Health and Safety Code, 5382.017; 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 thewording offinancial assurance mechanisms to minimize confusion. Thecommission will hold a public hearing onthisproposal in Austin on January 17,2008at 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 commentsby 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)239-0 177. 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 ecommentssystem. 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 ofPublic 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 toreceive 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, 5382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40CodeofFederal 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. Thecommissionwill hold a public hearing onthisproposal in Austinon 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 201 S. The hearing will be structured for the receipt of oral or written commentsby 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, OficeofLegal 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 ecommentssystem. 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. EnvironmentalLaw Division Texas Commission on Environmental Quality Filed: December 7, 2007

Notice ofPublic Hearing on Proposed Revisions to 

### 30 TAC Chapter 

### 328



## 32 TexReg 9842 December 21, 2007 TexasRegister(dJ 

### An owner or operatormay demonstrate that the owner or operator had been released from financial assurance requirements by having met all the requirements of 637.885 ofthis title (relatingto 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) ofthis 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 operatormust submit the appropriate forms listed in 937.875(b) ofthis title (relating to Financial AssuranceRecordkeeping) documenting current proof of financial assurance to the executive director: (I) within 30days after the owner or operator identifies a release from anunderground storagetank (UST)required tobe 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) asrequired by 537.825 ofthis title (relatingto Financial Test of Selflnsurance)and 537.865 ofthistitle (relatingto Cancellation or Non-renewal by a Provider ofFinancial 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 assurancemechanism orcoverage amount, as specified in 9334.7 ofthistitle (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) ofthis 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 toPermanent 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 accordancewith 4334.7 of this title (relating to Registration for Unde~round Storage Tanks (USTs) and UST Systems). This agencyhereby certifiesthat theproposal has been reviewed by legal counsel andfoundtobewithin theagency'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 anamendment to 9116.315. 

### The amended section will besubmitted to the United StatesEnvironmental 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 sametime 

### as an amendment for 

### a preconstruction permit, provided the amendment application isfiled not more than three yearsbefore the date thepermit 

### is scheduled toexpire and 

### is subject to notice requirements under Texas Health and



## PROPOSED RULES December 21,2007 32 TexReg 9533Safety Code. 9382.056, Noticeof Intentto Obtain Permit or Permit Review; Hearing. Inorderfor the commission to process a renewal application concurrently with such an amendmentapplication, the applicant must not object. The changesto Texas Health and Safety Code. 9382.055 became effective May 9, 2007. SECTION DISCUSSION 

### 31 16.315. Permit Renewal Submittal. The commission proposes to modify the language in this section to account for applications thatwill be submitted earlierthan 18 months prior to the expiration of the permit. The commission proposes to add a descriptionof the SB 1673limitationsfor submitting a renewal application concurrently with an amendment application. The commissionalso proposesto 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 administrationor enforcement of the proposed rule. The proposed rule would amend Chapter 116 to implementthe provisions of SB 1673,801hLegislature, 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. Underthe proposed rule, an amendment application must befiled not more thanthree years beforethe date the permit isscheduledto 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'stotal 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 eachyear of thefirst five years the proposed rule is ineffect, the public benefit anticipated from the changes seen inthe proposedrulewill bethe 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 unableto estimate the number of businessesthatwould chooseto utilizethe combinedapplication process. Instead of trackingtwo separate applications as is done under current rule, applicantswould haveto track only one application ifthey choose thisoption. Although permitfees for theseapplications are not changing, applicants would haveto pay bothfees if they submit the combined package. Combinedfees 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 publishingone instead of two public notices could 

### be as much as $6,000 depending on the rates charged by newspapers inthe surroundingarea. Since submitting a combined applicationis an optionfor permit holdersand 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 BUSINESSAND MICRO-BUSINESSASSESSMENT 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-businessesthe option of choosing a more efficient permitting process regarding amendments to preconstruction permits and permit renewals. If a small business chooses the optional applicationprocess, it would incurthe same combinedapplicationfees and experiencethe same savings regarding public notices as those incurred by local governments and large businesses. SMALL BUSINESS REGULATORY FLEXIBILITYANALYSIS Thecommission has reviewed this proposed rulemakingand determined that a small business regulatoryflexibility analysisis not required because the proposed rule does not adversely affect a small or micro-business in a materialway for the first five years that the proposed rule is in effect. LOCAL EMPLOYMENT IMPACT STATEMENT The commission has reviewedthis proposed rulemakingand 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 

## TexasRegistercommission 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 representativeof 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 proposalwill 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 neededto 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 autho

### rized 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, inwhole The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal CoordinationAct 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 consideredduringthe rulemaking process. The commission reviewedthis rulemaking for consistency with the CMP goals and policies in accordance with the regulationsof the Coastal Coordination Council and determined that the rulemakingis procedural in natureand will have no substantive effect on commission actionssubjectto the CMP and is. therefore, consistentwith CMP goals and policies. Written commentson the consistency of this rulemaking may be submittedto the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble. EFFECT ON SITES SUBJECTTO THE FEDERALOPERATING PERMITS PROGRAM The amended sections are applicable requirements under the Federal Operating Permits Program, but no revisions to operating permitswill be requiredas 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 statementswhen called upon inorder 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 accommodationneedswho 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 partortemporarilyor permanently, ina 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 FourteenthAmendmentsto mental Quality, P.0, Box 13087, Austin, Texas 78711-3087, the UnitedStates Constitutionor 917ors19, Article I, Texas Con

### or faxed to (512) 239-4808. Electronic comments 

### may be stitution; or a governmental action that affectsan 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 rightto the propertythat 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 Constitutionor 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 authorizesthe commission to control the quality of the state's air; 9382.012, which authorizes the commission



## PROPOSED RULES December 21,2007 32 TexReg 9535to prepare and develop a general, comprehensive plan for the control of the state's air; 9382.0518. which authorizesthe commission to issue permitsfor modification to anexisting facility that may emit air contaminants; 9382.055, which authorizesthecommissionto 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 renewalto 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. PermitRenewal 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 noearlierthan 18 months, priorto expiration ofthe permit or the permitwill expire. 

### [atis beefkkw

### en

### Mq % 

## m1 (b) With executive director approval, the application may be submitted beforeor after the time periodspecified insubsection (a) of this section. @ A renewal applicationwithappropriatefee may be submittedat the sametime as an amendmentapplicationto modifyan existing facility as long as it issubmitted not more than three years before the permit's expirationdate and the amendment issubject to public notice requirements under Texas Health and Safety Code, 5382.056, Notice 

## p (cJ 

## [+$I Any permit issued: (1) before December 1, 1991, issubject for review 15

### years after the date of issuance; 

### (2) on or after December 1, 1991, issubject 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, containaprovision requiring renewal betweenfive and ten years. Thisagency herebycertifiesthat the proposalhas been reviewed by legalcounseland foundto 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 Forfurther 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 99328.131. 328.133, 328.135, 328.137, 328.139, 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 responsibilityamong 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 ruleswere adopted. The legislation alsostatesthat any rulesthe 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 meetingand up untilJuly 21,2007. The commission's duties under HB2714 will be incorporatedinto procedures. $328.131, Purpose Proposed new 9328.131 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,Applicabilityand EffectiveDate Proposed new $328.133 seeks to clarify the legislation in two ways. One, in proposedsubsection (c) of this section. it adds a descriptionof the personsto 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 proposeddefinitionof "computet' isfrom the dictionary. The commissionproposes a definitionof "retailer" based on stakeholder input. Theterm, "tuner," is uncommonenough in everyday dialect that defining it would be helpful. Its proposed definition is from the dictionary. The commission also proposes to addtwo itemsto the legislation'sdefinitionof "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 TexReg9536 December 21, 200

## 7 

## TexasRegister

## 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 concerningproposed revisionsto 30 TAC Chapter 116,Control ofAir Pollution by Permits for New Constructionor Modification, and to the state implementationplan (SIP), under the requirements of Texas Health and Safety Code, $382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederal Regulations 95 1.102, of the United States Environmental Protection Agency (EPA) regulations concerning SIPS.
Theproposed rulemalung would implement SenateBill 1673, 80th Legislature,Regular Session, 2007, that provides for submissionof a preconstructionrenewal application concurrently with a preconstruction amendment application under certain circumstances. The amended rule would specifythat 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 requirementsunder TexasHealth and Safety Code, 9382.056, Notice of Intent to Obtain Permit or Permit Review; Hearing. Processing a renewal and amendment application concurrentlywould be optional for applicants.
The commission will hold a public hearing on thisproposal in Austin on January 29,2008 at 10:OO a.m. at the TexasCommission on Environmental Quality Complex located at 12100Park 35 Circlein Building E, Room 201s. The hearing will be structured for the receipt of oral or written commentsby interested persons. Registration will begin 30 minutesprior to the hearing. Individualsmay present oral statements when called upon in order ofregistration. There will be no open discussionduring 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 areplanningto 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 commentsmay 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 pnntcdon recycled paper using soy-based ink

# WRITTEN AND ORAL TESTIMONY

### Index of Written Testimony Page 1 Rule Project No. 2007-024-116-PR Docket No. 2007-161 1-RUL


## INDEX OF WRITTEN TESTIMONY

Reference Number

W-1 Submitted

## By

The United StatesEnvironmental Protection Agency

### UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY REGION 6 1445 

### ROSS AVENUE, SUITE 1200 

### DALLAS. TX 75202-2733



# JAN 3 

# 0 2008

Ms. &stin Smith MC 205 

## Officeof 

## 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

## ImplementationPlan 

# (SIP);Rule Project Number 2007-024-116-PR


## Dear 

## Ms. Smith:
Thank you forthe opportunityto provide comments on this proposedrevision 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 preconstructionpermit. Under theproposed rule, an amendment must be filed not more than three years before the date the permit is scheduled to expire. Based upon ourreview of this proposed rule, we have the followingcommentsfor 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 stringentof the two (permitrenewalslpermit amendments). The current SIP-approved provisions for public notice and comment for permit amendments arein 

# $0 116.116, 116.130

# - 116.134, 

## and 116.136

# - 116.137 

## and the SIP-approved provisions for public notice and comment for permit renewals are in § 

## 116.312. 

## The TCEQ must ensure that this revision does

InternetAddress (URL) http:/hww.epa.gov RecycledlRecycleble Pdntedwlth Vegelable 011 Based Inkson 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 51.161when it consolidates the renewal and amendment applicationprocess. 2. 

## Texas has submitted earlierversions of 

# 5 116.315to the U.S. EnvironmentalProtection Agency (EPA) for SIP approval on September4,2002, and September25,2003. The EPA has not completed its review of these earlier SIP 

## submittals and has not approved them into the SIP. Otherrelated 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 submittedDecember 15, 1995; July 22,1998;October 25,1999; September4,2002; October4,2002; and September25,2003. Accordingly, EPA's approval of the currentlyproposed revisions to 

# 5 116.315is contingent upon EPA approval of these previous in-house SIP submittal revisions.
3. The TCEQ needs to explain why, in the proposed fj 

## 116.315(c),it cites to the Health and Safety Code, 

# 5 382.056 instead of the agency's implementingregulations. Does TCEQ implementHealth 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 standardsand requirements. Furthermore,if the requirements of $ 382.056 are implementedunder 30 TAC Chapter39, 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 regulatoryrequirement related to applications and fees for both amendments and renewals. Because the fees are differentunder 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 ExecutiveDirectorhas discretion to allow an applicant to submit a permit application forrenewal 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 116.3 15(a). The 

## EPA discourages the use of

## "director discretion" provisions that allow for a variance from 

## SIP requirements in contrast to section 110of 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 appreciatethis opportunity toprovide these comments on this proposed rule. If you have any questions, please call 

## Mr. Stanley

## M. Spruiell of my staff at (214) 665-7212. Sincerelyyours,

Jeff Robinson Chief Air Permits Section

# No Oral Testimony With State Submittal

# EVALUATION OF

TESTIMONY

# Texas 

# Commission on Environmental Quality INTEROFFICEMEMORANDUM



### To: 

## Commissioners Date: 

## April 18,2008 Thru: 

## LaDonna Castaiiuela, ChiefClerk Glenn Shankle,Executive Director
From: an 

## Eden, Deputy Director @%ce ofPermitting,Remediation,and Registration

, 

### Docket No.: 

## 2007-161 1 -RUL Subject: 

## Commission Approval forRul-g Adoption Chapter 116, Control of

## Air Pollutionby Permits forNew Construction orModification SenateBill 

## (SB) 1673: ConcurrentRenewals and Amendments Rule ProjectNo. 2007-024-1 16-PR Scopeofthe rulemaking: 

## The amendmentswould add a descriptionof the SB 1673 limitationsfor submiitingarenewal applicationconcurrently with an amendmentapplication.

~easons for the rule package: 

## Updating Chapter 116would make it consistentwith SB 1673 that allows a permittoberenewed when amended. Although there areno official deadlines, SB 1673was effective May 9,2007. These changes are 

## to

## make Chapter 116consistent with this 

## bill. Statutory Authority: 

## Texas Water Code, $5.103, Rules; and TexasHealth and Safety Code, $382.01 1, GeneralPowers and Duties, $382.012, State

## Air Control Plan, $382.017,Rules, 9382.055, Review and Renewal ofPreconstruction Permit, $382.056,Notice of Intentto ObtainPermit orPermitReview; Hearing, and $382.05 18, ReconstructionPermit. Potentially controversial matters: 

## None.
Public comment: 

## ~Lcomments 

## were made at the publichearing. The United 

## StatesEnvironmental Protection Agency (EPA) provided written comments. These commentsrequested clarification regarding public notice and fees. The EPA also commentedthat earliervers~ons of 30TAC $116.315 havebeen submitted for state implementationplan (SIP) approval 

## on September4,2002 and 

## September25,2003, but have notyet been approved by the EPA, sothe revision to $ 

## 116.3 15 cannotbe p~ocessed until the EPA has 

## approvedthe previously submittedSIPrevisions. The EPA discouraged the inclusionof a citationthatwas not being ~evised 

## in thisrulemaking. The comments did not result in any changesto the rule.

f 

### Significant changesfrom proposal: 

## None. Key points in adoption rulemakingschedule: 

## TexasRegister proposal publication date: 

## December 2 1,2007

. 

### Six-month 

## TexnsRegisterfdingdeadline: 

## June 23,2008 Anticipated 

## TexasRegister publication date: 

## May 23,2008 Anticipated effective date: 

## May 29,2008 Agency contacts: 

## Becky Southard,Rule Project Manager, 239-1638, Air PermitsDivision John Minter, StaffAttorney, 239-0663 Kristin Smith, 

## TexasRegister Coordinator, 239-01 77

### Commissioners Page 2 

### April 18,2008 

## Re: Docket No.2007-161

## I 

## -RUL
'Attachments

cc: Chief Clerk, 5 

### copies ExecutiveDirector'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 116 - 

### Control of Air Pollutionby Permits for New Construction or Modification Rule Project No. 2007-024- 116-PR

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

# 5 116.315 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 implementationplan (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 forNew Construction or Modification,

# 5 116.3 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 1673allows the commission to
process a renewal applicationat the same time as an amendment for a preconstmctionpernlit, provided
the amendment application is filed not more than three years before the datethe 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 commissionto process a renewal application concurrently with
such an amendment application,the applicailt must not object. The changes to THSC, 5382.055 became
effectiveMay 

### 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 Pollutionby Permits forNew Constructionor Modification Rule Project No. 2007-024-116-PR

$1 

### 16.31

### 5.Permit Renewal Submittal.


### The commission adopts the modification of this sectionto account for applications that can be submitted
earlier than 18months prior to the expiration of the permit. The commission adopts the addition of a description ofthe SB 1673prerequisites 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. Accordingto Texas Government Code, $2001.0225(g)(3), a "major environmentalrule" is a rule which is specifically intended toprotect
the environment or reduce risks to human health from environnlentalexposure, and that may adversely
affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or thepublic health and safety of the state or a sector of the state. The intent ofthis 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 requirementsunder THSC, $382.056, and the applicant does not object. In addition,
the regulato~y analysis requirementsof Texas GovenlrnentCode, $2001.0225, only apply to a major
envirorunentalrule, the result ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specificallyrequired 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~~ on Environmental 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; or4) 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 submittalsthat 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 1673in 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 ofTHSC, 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 Page4 Chapter 116 

## - Control of Air Pollutionby Permits for New Construction or Modification Rule Project No. 2007-024-116-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 affectedprivate real property,
determined by comparing the market value of the property as if the governmental action is not in effect
and the market value ofthe property determined as if the governmental action is in effect.

The commission completed a takings impact assessment for the n~le. Promulgationand 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 Constitutionor the Texas Constitution. The rule also will not
affectprivate 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 OPERATINGPERMITS 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 TexasRegister. 

### A public hearing on the proposal was held in Austin on January 29,2008, at the TCEQ. No commentswere 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 suggestedmodificationsto 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 commentprocedures for renewing
and amending a permit concurrently must meet all federal requirements. It also noted that the more stringent ofthe renewal and amendment public notice proceduresmust 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 

### 116 

## - Control of Air Pollution by Permits forNew Construction or Modification Rule Project No. 

### 2007-024- 116-PR

federal requirements and the associated public notice requirements have not been relaxed. In a
concurrent review, therenewal and amendment applications could be noticed together andwould requirepublication in a newspaper with at least a 30-day public comment period, which are required under federal rules. Thepurpose of this rulemaking is to implement the statutorychange

to 

### THSC, 5382.055, that establishes the timing of permit renewals and does not change public
notice requirements orpermit fees. No change has been made as a result of this comment.

The EPA commented that earlier versions of 

### $1 16.315 have been submitted for SIPapproval 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 

# $5116.310, 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 

### $ 116.3 15 cannot be processed until the EPA has approved the previously
submitted SIP revisions.

Thecommission 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 

### ofAir Pollution by Permits for New Construction or Modification -024- 1 16-PR
implemented under Chapter 39. It also stated that ifTHSC, 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 oreliminate 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 $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
amendmentreview. 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 ofAir 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 replicableprovisions to determine when a variance wouid be allowed. EPA also requested clarification as to whether a timely submittal of a
renewal appiication under 

# 51 

### 16.315(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 ofAir Pollution by Permits forNew Constructionor Modification Rule Project No. 2007-024-

### 1 16-PR Page 9



### SUBCHAPTERD: 

### PERMIT RENEWALS
5116.315
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), 55.103, which authorizes the commissionto adopt rulesnecessary to carry out itspowers and duties under the TWC, and under TexasHealth 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, $382.011,which authorizes the commission to control the quality of the state's air; $382.012, which authorizesthe commission to prepare and develop a general, comprehensive plan for the
control of the state's air; 5382.05 18, whch authorizesthe commissionto issue permits for modification to

an existingfacility that may emit air contaminants; $382.055, which authorizes the commissionto review and renew preconstruction permits according to a specific schedule; and $382.056, which authorizes the
commissionto require applicants for a permit amendment or permit renewal to publish notice of intent to
obtain the authorization.

The amendment implementsTWC, $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 submittedat least sixmonths, but no earlierthan 18months, prior to expiration of the permit or the permit will expire. [This subsection will be effectiveon May 1,2004.1

### Texas Commission on Environmental Quality Page 10 Chapter 116

## - Control ofAir Pollutionby Permits for New Constructionor Modification Rule Project No. 2007-024-116-PR

(b) With executive director approval, the applicationmay be submitted before or after the time period specified in subsection (a) of this section.

Jc) A renewal avvlication with apvrovriatefee 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 subjectto 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 afterDecember 1, 1991, 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 

### herebycertifythai ih~s I.: ;; !,I:.+i:rlrj Grrectwofr 

## Texas Commiss~~rt on Envrronm3ntelQuelttyw 

### whlch 

### isfiled inthe permanant recordsofthe

### CMnrnm, Given unjer my 

### handano tilt. seal of Dfficeon



### ~adonna ~ast&uela,ChiefClerk 

### Texas

### Commissionon EnnronmentalQuality 

## ORDER ADOPTING AMENDED RULE

## AND REVISION TO 

## THE STATEIMPLEMENTATION PLAN

Docket No. 2007- 161

## 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 ofthe Texas Clean Air Act, Chapter 382 ofthe Tex. Health & 

## Safety Code. The proposed rule was published for comment in the December 21,2007 issue of the 

## TexasRegister (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 hearingwas 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 SIPrevision and their position concerningthe 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 ofEPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air Act, 

## $ 110, 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 &-VernonSupp. 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 ofthe remaining portions.

Date issued: 

# MAY 

# 12 2008 TEXASCOMMISSION 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 

## 116. 

## 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 inthe December 21. 2007, issue of the Texas Register (32 TexReg 9533) and will not be republished. The amended section will be submittedto 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 amendedTexas Healthand Safety Code (THSC), 9382.055, Review and Renewalof Preconstruction Permit. SB 1673 allows the commission to process a renewal application at the same timeas an amendmentfor a preconstructionpermit, provided the amendmentapplication isfiled not more than three years before the datethe permit isscheduledto expire and issubject to notice requirementsunder THSC, 9382.056, Notice of Intentto Obtain Permitor Permit Review; Hearing. Inorder for the commissionto process a renewal application concurrently with such an amendment application, the applicant must not object. The changesto 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 

### §116.3 15. Permit RenewalSubmittal. 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. effectivedate, as it is no longer needed. FINAL REGULATORY IMPACTANALYSIS 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 environmentalrule" isa rulewhich is specifically intended to protect the environment or reduce risks to human health fromenvironmentalexposure, and that mayadversely affect in a material way the economy, a sector of the economy, productivity,competition. jobs, the environment,or the public health and safetyof the state or a sectorof the state. The intent of this rulemaking is to implement SB 1673, passed during the 80th Legislature, 2007. This legislationallows the com mission to process a renewal application at the same time as an amendment provided the amendment application is filed not morethan three years beforethe datethe permit is scheduledto expire. issubject to notice requirementsunderTHSC, 9382.056, and the applicant does not object. In addiiion, the regulatory analysis requirements of Texas GovernmentCode, 92001.0225. only applyto a major environmental rule, the result ofwhich isto: 1)exceed a standardset byfederal law, unlessthe rule isspecifically required by state law; 2) exceed an express requirementof 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 concurrentlywith amendment applications providedcertainconditionsare met. This adoption therefore does not exceed an express requirementof federal law. The amendmentwill implement changestoTHSC. 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 ruledoes 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 actionthat affects private real properly, inwhole or in part or temporarily or permanently, ina mannerthat requires the govemmental entity to compensatethe private real property owner as provided by the Fifth and FourteenthAmendments to the United StatesConstitution or 917 or 919, Article 

### I.Texas Constitution; or a govemmentalactionthat 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 limitsthe owner's right to the properlythat would otherwise exist in the absence of the governmental action; and is the producing cause of a reductionof at least 25% inthe 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. Promulgationand enforcement of the rulewill not affect private real properly in a manner that would require compensation to private real propertyowners underthe United States Constitu

## ADOPTED RULES May 

## 23,2008 33 Tdeg 41

## 55tion or theTexas Constitution. The rulealsowill not affect private real property in a manner that restrictsor 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 underTexas 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 ManagementProgram(CMP) be considered during the rulemaking process. The commission reviewed this rulemakingfor 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 natureandwill have no sub stantive effect on commissionactionssubject tothe 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. EFFECTONSITES SUBJECT TO THE FEDERALOPERATING PERMITS PROGRAM The amended sections are applicable requirements under the Federal Operating Permits Program, but no revisionsto operating permitswill be requiredas a result of this rulemaking. PUBLIC COMMENT The proposed revisions were published in the December 21. 2007. issue of the Texas Register. A public hearingon the 

### proposalwas held inAustin on January 29.2008, at the TCEQ. No comments were received at the public hearing. The commission receivedwritten comments from the EPA during the public corn ment period,.whichclosed on February4. 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 proceduresfor 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; September4,2002; October4, 2002; and September25.2003. The EPA commented that the revision to 9116.315 cannot be processed until the EPA has approved the previouslysubmitted SIP revisions. The commission anticipates that this SIP revision can be processed simultaneously with previous revisionsgoverning permit review and public notice. While this amendment adds language to 9116.315 conceming the concurrent processingof 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 languagedoes 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. ReferencetoTHSC. 9382.056. inamended 9116.315follows the text of SB 1673. This rulemaking providesan 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 requirementsinTHSC. 9382.056 are implementedunderChapter 39. Commission staff is inthe processof 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 referencesto the appropriate regulatory requirements. EPA also stated that clarificationwas 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 implementthe statutorychange 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 requirementsand 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 noticedtogether andwould require publicationina made as a result of this comment. newspaperwith at leasla =day public cokeitperiod, which 

### The EPA disrmraged the 

### inclusion of g1(6.315(b) that 

### granted are required underfederal rules. The purposeofthis rulemaking 

### executive discretion to 

### allow 

### a variance 

### from the six-mnth re- 

### is to implement 

### the statutory change to THSC. 

## 9382.055s that newal applicationdeadline 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 questedclarificationas to whether atimelysubmittalof a renewal made as a result of this comment. a~~lication under 8116.315(al or (blallows the ~ermit 

### to remain The EPA commented that earlier versions of 5116.315 have in effect in the evehthat the actionon 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 9116.31Hb) 

### isnot within 

### he scope EPA. The EPA stated that other related pending reviews for 

### of this rulemaking. 

### Variances are 

### allowed in 

### where



## 33 

## TexReg4156 May 23, 2008 

## TexasRegisterthe executive director did not send out a timely renewal notice. It is also possiblefor an applicant to request an extension. Ifthe 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 inorder 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 commissionto control the quality of the state's air; 9382.012, which authorizesthe commission to prepare and develop a general, comprehensive plan for the control of the state's air. 9382.0518, which authorizes the corn missionto issuepermitsfor modificationto an existingfacilitythat mayemit air contaminants; 5382.055. which authorizes the corn sequent hearing for some substantive permit changes are limitedto the specific requestedchange 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 adoptsadditionalchanges 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 majoramendment 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 applicationfor a perrnit unless a facility is owned by one person and operated by another, in which case the owner may authorize, inwriting, the operator to submit an application. Concurrentwith this rulemaking, the commissionadopts 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

. . missionto 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 applicantsfor 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. inwhich case 1673, 80th ~e~islature, ~e~uiar session, 2007. the owner hayahhorize, in &ting. theoperator.tosubmit new applications. For a new facility. the operator may submit an Thisagency herebycertifiesthat theadoption has been reviewed 

### application 

### for a 

### permit with 

### the 

### written consent 

### of the 

### owners by legal counsel andfound 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 publicationdate: December21. 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 IModificationsto Municipal SolidWaste 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 commissiondetermined 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 allowsother substantivechanges to the permit to be proposed by submittal of only related permit documents and attachments. Inthese cases, a contested case hearing or other procedure related to the amendment would be limitedto 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 TaReg4157