Texas Natural Resource Conservation Commission Austin Texas Interoffice From: Bridget C. Bohac, Attorney, Legal Division To: Lawrence E. Pewitt, P.E., Director Permits Division Date: March 6, 1987 Subject: Request for Legal Opinion - Permit Renewals This is in response to your request for a legal opinion concerning methods you have formulated to determine the expiration of fifteen years and ten years for permit renewal purposes as required by Rule 116.12 (Review and Renewal of Operating Permits) now 116.310. I will address each method separately. Change of Ownership For facilities which have undergone a change (or changes) of ownership within the fifteen years since the issuance of the initial operating permit, you propose to calculate the expiration of the fifteenth year by using the date the initial operating permit was issued prior to December 1, 1991. The same is true for permits issued on and after December 1, 1991 except ten years is the new time frame for permit renewal. This would not only be the most logical and straightforward method of calculating the fifteen year and ten year periods but would yield the result clearly contemplated by the statute. Change of Location For facilities which have undergone a change (or changes) of location within the fifteen years since the issuance of the initial operating permit, you propose to calculate the expiration of the fifteenth year by using the date the operating permit was last issued pursuant to a request for a change of location issued prior to December 1, 1991. The same is true for permits issued on and after December 1, 1991 except ten years is the new time frame for permit renewal. You have indicated that the rationale behind using a date other than the date the initial operating permit was issued for calculating the expiration of the fifteenth year and tenth year is that each time the same facility applies for a change of location a full permit review is conducted. It is my understanding that there are facilities which change locations pursuant to conditions contained in the original operating permit (transient facilities). This type of relocation does not involve a new permit review, nor is the permit reissued. For this type of relocation the above of calculating the fifteen year and ten year term is not appropriate. Such a calculation might result in some such facilities, which have relocated on a frequent basis, completely avoiding a subsequent technical review and public notice. This would be contrary to the clear intent of the Texas Clean Air Act (TCAA) that operating permits be reviewed every fifteen years and ten years and that the public be given notice of such a review. This intent is amply supported by the history of the promulgation of the corresponding Rule 116.12 now 116.310 of Regulation VI. (Analysis of Testimony, Record of Public Hearings on Regulation VI, May 28, 1986, p. 3-4). Therefore, facilities which relocate solely under the conditions of an original operating permit should be reviewed at the expiration of the fifteenth year or tenth year following issuance of the initial operating permit. Some facilities which were originally permitted as transient facilities, but are not able to relocate at a given site pursuant to conditions in the existing operating permit. This type of relocation is authorized only after a full permit review is conducted and a new construction permit is issued. A facility which relocates in this manner may, by written request of the owner or operator, be exempted from public notice pursuant to Rule 116.10(a)(7) (Exemption of Previously Permitted Facilities) now 116.130(b). If the owner or operator does not request exemption from public notice, it would be appropriate to calculate the expiration of the fifteenth year or tenth year by using the last date the operating permit was subject to a full permit review and a new operating permit was issued. However, this method of calculation may not be proper for facilities which are exempt from the public notice requirements of Rule 116.10 now 116.130 (Notification and Comment Procedure) despite full permit review and issuance of a new operating permit. The renewal process clearly requires public participation and to the extent that relocation without notice defers or eliminates renewal, the practice is subject to criticism and challenge. The basis of the challenge would probably be that the statute requires public notice for permits, that relocations omit public notice and are therefore not permits, leaving the original permit as the subject of renewal. We see that approach has merit and would therefore recommend a rule amendment to establish that relocation begins a new renewal period if the agency finds that approach best implements statutory goals. Relocation of a Permitted Facility to a Standard Exemption A facility which originally constructs under a permit, but which subsequently relocates pursuant to a standard exemption may give rise to two separate situations. The first case would involve the holder of the permit who asks that the operating permit be voided and builds the facility pursuant to a standard exemption. The other case would involve a permit holder who does not ask that the operating permit for the facility be voided because the holder may intend to construct elsewhere under that operating permit at some other time. In my opinion, if the operating permit has been voided, there is no need for notification of permit renewal since there is no permit. However, if the permit has not been voided, the permit holder should be notified at the expiration of the fifteenth year or tenth year from the permit's issuance. Based on the clear directives of the TCAA and the recently enacted Rule 116.12 now 116.310, a permit must be subject to review every fifteen years if the permit was issued before December 1, 1991 or ten years if the permit was issued on or after December 1, 1991 and the public must receive notice of this review by newspaper publication and sign posting at the site. The TACB now TNRCC must review a permit every fifteen years or ten years using the date the last operating permit was issued pursuant to full permit review as the beginning point for determining the fifteen year or ten year term. Also, notification of review of a permit must be sent to the holder of a permit as long as the permit is not void regardless of whether or not the facility authorized by the permit is currently located or constructed pursuant to that permit. Updated August 30, 1994