LoginDonate

The Wise Report - November 9, 2013

The Wise Report
Henry M. Wise, P.G
November 9, 2013

The Texas Commission on Environmental Quality (TCEQ) proposes amendments to §§39 (public notice), 55 (requests for reconsideration and contested case hearings, public comment), 101 (general air quality rules), 106 (permits by rule), 116 (control of air pollution by permits for new construction or modification), and 122 (federal operating permits program).  If adopted, the TCEQ will submit these changes to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP).  These changes are the result of the recent U.S. Supreme Court ruling that greenhouse gases (GHGs) fit within the Federal Clean Air Act (FCAA or Act) definition of air pollutant.  This ruling gave EPA the authority to regulate GHGs from new motor vehicles and engines if EPA made a finding under FCAA, §202(a) that six key GHGs taken in combination endanger both public health and welfare, and that combined emissions of GHGs from new motor vehicles and engines contribute to pollution that endangers public health and welfare. EPA issued its "Endangerment Finding" for GHGs on December 15, 2009, (Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Final Rule, as published in the December 15, 2009, issue of the Federal Register (74 FR 66496)). Based on the Endangerment Finding, EPA subsequently adopted new emissions standards for motor vehicles (the "Tailpipe Rule" as published in the May 7, 2010, issue of the Federal Register (75 FR 25324)). The rule established standards for light-duty motor vehicles to improve fuel economy thereby reducing emissions of GHGs. The standards were effective January 2, 2011. EPA also reconsidered its interpretation of the timing of applicability of Prevention of Significant Deterioration (PSD) under the FCAA (the "Timing Rule" as published in the April 2, 2010, issue of the Federal Register (75 FR 17004)). EPA's interpretation of the FCAA is that PSD requirements for stationary sources of GHGs take effect when the first national rule subjects GHGs to regulation under the Act. EPA determined that once GHGs were actually being controlled under any part of the Act they were subject to regulation under the PSD program. Specifically, EPA took the position that beginning on January 2, 2011, GHG control requirements would be required under the PSD and Title V permitting programs because national standards for GHGs under the Tailpipe Rule were effective on January 2, 2011.

House Bill (HB) 788, 83rd Legislature, 2013, added new Texas Health and Safety Code (THSC), §382.05102. The new section grants TCEQ authority to authorize emissions of GHGs consistent with THSC, §382.051, to the extent required under federal law. THSC, §382.05102 directs the commission to adopt implementing rules, including a procedure to transition GHG PSD applications currently under EPA review to the TCEQ. Upon adoption, the rules must be submitted to EPA for review and approval into the Texas SIP. THSC, §382.05102 excludes permitting processes for GHGs from the contested case hearing procedures in THSC, Chapter 382; Texas Water Code, Chapter 5; and Texas Government Code, Chapter 2001. THSC, §382.05102 also requires that the commission repeal the rules adopted under this authority and submit a SIP revision to EPA, if (at a future date) GHG emissions are no longer required to be authorized under federal law.

The proposed rulemaking in Chapters 39 and 55 would make two changes to the commission's rules that are distinguishable from current public participation rules and the Texas SIP. First, PSD GHG permit applications would not be subject to an opportunity to request a contested case hearing or reconsideration of the executive director's decision. Second, based on EPA interpretation of its rules, there may be no requirement for the commission to prepare an air quality analysis for proposed emissions of GHG, and, if so, there will be no such analysis available for public comment.

HB 788 specifically excludes PSD GHG permit applications from the requirements relating to a contested case hearing. Requests for reconsideration were added by HB 801 (76th Legislature, 1999) as an alternative to the opportunity to request a contested case hearing. However, this remedy is not independent of the right to request a contested case hearing. Absent a right to request a contested case hearing, there is no independent right to request reconsideration of the executive director's decision. The TCEQ interprets HB 788 to require that all other HB 801 requirements, apply to GHG permit applications.

For more information go to: 

----------------------------------------------------------------------------------------------------------------------------------------------------------

The TCEQ adopts an amendment to §336.1115 with changes to the proposed text as published in the July 5, 2013, issue of the Texas Register (38 TexReg 4300), as corrected in the July 19, 2013, issue of the Texas Register (38 TexReg 4653). This rule is the result of a petition for rulemaking by Barrett & Associates, PLLC on behalf of Uranium Energy Corp. (UEC), Radioactive Materials License Number R06064, to amend the decommissioning standards applicable to radioactive source material (i.e., uranium mining) sites and by-product disposal sites so that the standards will conform to federal requirements.

As requested in the petition, the commission adopts the amendment to §336.1115(e) to remove paragraph (3) and amend paragraph (4) to reflect the Radium Benchmark Dose approach as the clean-up standard (in addition to the radium standard) for release of outdoor areas for unrestricted use. In considering the petition, agency staff reviewed the current language in §336.1115(e) and determined that inclusion of a specific soil standard for the concentration of uranium in soil is not consistent with the federal requirements of the United States Nuclear Regulatory Commission (NRC). The federal regulations set a standard for the concentration of radium in soil and require a risk-based dose assessment, but do not establish a specific concentration limit for uranium. A decommissioning standard for the concentration of uranium in soil is not necessary because the required risk-based radium benchmark dose assessment approach accounts for the radioactivity of the radionuclides in soil, including uranium.

The licensing program for uranium mining has transferred several times from the TCEQ and the Texas Department of State Health Services (DSHS). When the program was previously at TCEQ, the TCEQ proposed rules and invited comments on including a standard for the concentration of uranium in soils in a 1997 rulemaking (Rule Log Number 1997-154-336-WS). In response to comments from the NRC, however, the TCEQ did not adopt a standard for uranium (See May 27, 1997, issue of the Texas Register (22 TexReg 4593)). After the program was transferred to DSHS in 1997, it appears the standard for uranium was picked up as a requirement in DSHS rules without any specific explanation. The current TCEQ rule language was carried back over from the rules of DSHS when the licensing program was transferred by Senate Bill 1604 in 2007 (Rule Project Number 2007-060-336-PR). The dose-based approach was added in the rule in response to a comment from the NRC, but the limit for the uranium concentration was not removed from the rule. Accordingly, the commission now adopts the rule to remove the uranium concentration requirement to be consistent with the applicable federal requirements.

For more information go to: http://www.sos.state.tx.us/texreg/sos/Adopted%20Rules/30.ENVIRONMENTAL%2...

Henry M. Wise, P.G.
The Wise Report
11/9//2013


source: 
Henry M. Wise, P.G.
releasedate: 
Saturday, November 9, 2013
category: 
Articles
subcategory: 
Government Update