Title 30 TAC 116.130 - 116.143, September 13, 1993
Subchapter B New Source Review PermitsPUBLIC NOTIFICATION AND COMMENT PROCEDURES
§ 116.130 Applicability
§ 116.131 Public Notification Requirements
§ 116.132 Public Notice Format
§ 116.133 Sign Posting Requirements
§ 116.134 Notification of Affected Agencies
§ 116.136 Public Comment Procedures
§ 116.137 Notification of Final Action by the Texas Natural Resource Conservation Commission
(a) Any person who applies for a new permit shall be required to publish notice of intent to construct a new facility or modify an existing facility in a newspaper in general circulation in the municipality where the facility is located. Any person who applies for a permit amendment shall provide public notification as required by the executive director.
(b) Upon written request by the owner or operator of a facility which previously has received a permit or special permit from the TNRCC, the executive director, or designated representative may exempt the relocation of such facility from the requirements of this section if there is no indication that operation of the facility at the proposed new location will significantly affect ambient air quality and no indication that operation of the facility at the proposed new location will cause a condition of air pollution.
(a) Notification by applicant. If the application is complete, for any permit subject to the FCAA, Title I, Part C or D, or to Title 40 Code of Federal Regulations (CFR), Part 51.165(b), the executive director shall state a preliminary determination to issue or deny the permit and require the applicant to conduct public notice of the proposed construction. If an application is received for a permit not subject to the FCAA, Part C or D, or to 40 CFR 51.165(b), the executive director shall require the applicant to conduct public notice of the proposed construction. In all cases, public notice shall include the information specified in § 116.132 of this title (relating to Public Notice Format) and the applicant shall provide such notice using each of the methods specified in § 116.132 of this title. The executive director may specify that additional information needed to satisfy public notice requirements of 40 CFR § 52.21 also be included in the notice published pursuant to § 116.132 of this title.
(b) Availability of application for review. The executive director shall make the completed application (except sections relating to confidential information) and the preliminary analyses of the application completed prior to publication of the public notice available for public inspection during normal business hours at the TNRCC Austin office and at the appropriate TNRCC regional office in the region where construction is proposed throughout the comment period established in the notice published pursuant to § 116.132 of this title.
(a) Publication in public notices section of newspaper. At the applicant's expense, notice of intent to obtain a permit to construct a facility, modify an existing facility, or to seek permit renewal review shall be published in the public notice section of two successive issues of a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located, or in the municipality nearest to the location or proposed location of the facility. The notice shall contain the following information:
(1) permit application number;
(2) company name;
(3) type of facility;
(4) description of the location of facility or proposed location of the facility;
(5) contaminants to be emitted;
(6) preliminary determination of the executive director to issue or not issue the permit (for permits subject to the FCAA, Title I, Part C or D, or to 40 Code of Federal Regulations 51.165(b));
(7) location and availability of copies of the completed permit application and the Texas Natural Resource Conservation Commission's (TNRCC) preliminary analyses;
(8) public comment period;
(9) procedure for submission of public comments concerning the proposed construction;
(10) notification that a person who may be affected by emission of air contaminants from the facility is entitled to request a hearing in accordance with TNRCC rules; and
(11) name, address, and phone number of the regional TNRCC office to be contacted for further information.
(b) Publication elsewhere in the newspaper. Another notice with a size of at least 96.8 square centimeters (15 square inches) and whose shortest dimension is at least 7.6 centimeters (three inches) shall be published in a prominent location elsewhere in the same issue of the newspaper and shall contain the information specified in subsection (a)(1)-(4) of this section and note that additional information is contained in the notice published pursuant to subsection (a) of this section in the public notice section of the same issue.
(a) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of an application for a permit and stating the manner in which the TNRCC may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements:
(1) signs shall consist of dark lettering on a white background and shall be no smaller than 18 inches by 28 inches;
(2) signs shall be headed by the words "PROPOSED AIR QUALITY PERMIT" in no less than two-inch boldface block-printed capital lettering;
(3) signs shall include the words "APPLICATION NO." and the number of the permit application in no less than one-inch boldface block-printed capital lettering (more than one number may be included on the signs if the respective public comment periods coincide);
(4) signs shall include the words "for further information contact" in no less than 1/2-inch lettering;
(5) signs shall include the words "Texas Natural Resource Conservation Commission," and the address of the appropriate TNRCC regional office in no less than one-inch boldface capital lettering and 3/4-inch boldface lower case lettering; and
(6) signs shall include the phone number of the appropriate TNRCC regional office in no less than two-inch boldface numbers.
(b) The sign or signs must be in place by the date of publication of the newspaper notice required by § 116.132 of this title (relating to Public Notice Format) and must remain in place and legible throughout the period of public comment provided for in § 116.136(a) of this title (relating to Public Comment Procedures).
(c) Each sign placed at the site must be located within ten feet of each (every) property line paralleling a street or other public thoroughfare. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. The TNRCC may approve variations from these requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public.
(d) The TNRCC may approve variations from the requirements of subsection (c) of this section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval from the TNRCC under this subsection must be received before posting signs for purposes of satisfying the requirements of this section.
(e) These sign requirements do not apply to properties under the same ownership which are noncontiguous and/or separated by intervening public thoroughfares, unless directly involved by the permit application.
When newspaper notices are published in accordance with § 116.132 of this title (relating to Public Notice Format), the permit applicant shall furnish a copy of such notices and date of publication to the TNRCC in Austin; the EPA regional administrator in Dallas; all local air pollution control agencies with jurisdiction in the county in which the construction is to occur; and the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions from the new or modified facility. Along with such notices furnished to the TNRCC, the permit applicant shall certify that the signs required by § 116.133 of this title (relating to Sign Posting Requirements) have been posted in accordance with the provisions of that section.
(a) Comment period. Interested persons may submit written comments, including requests for public hearings pursuant to the Texas Clean Air Act, § 382.056, on the permit application and on the executive director's preliminary decision to issue or not to issue the permit. All such comments and hearing requests must be received in writing within 30 days of the last publication date of the notices specified in § 116.132 of this title (relating to Public Notice Format). The comment period for permit renewals and for concrete batch plants which meet the conditions of a standard exemption is 15 days. Any requests for a contested case hearing shall include a brief, but specific, written statement of interest and basis for challenging the application. Such statement shall convey in plain language the requestor's location relative to the proposed facility, why the requestor believes he or she will be affected by emissions from the proposed facility, what the requestor's concerns are about the emissions from the proposed facility, and how the requestor believes emissions from the facility will affect him or her if permitted. This statement shall not be used as the basis for denial of party status in any contested case hearing. Party status determinations will be made based on evidence developed at the initial prehearing conferences.
(b) Consideration of comments. All written comments received by the executive director during the period specified in subsection (a) of this section shall be considered in determining whether to issue or not to issue the permit. The executive director shall make record of all comments received together with the agency analysis of such comments available for public inspection during normal business hours at the Austin office of the Texas Natural Resource Conservation Commission and appropriate regional office.
(a) Notification of applicant. Within 180 days of receipt of a completed application, the executive director shall notify the permit applicant of the final decision to grant or deny the permit, provided:
(1) no requests for public hearing or public meeting on the proposed facility have been received;
(2) the applicant has satisfied all public notification requirements of this section; and
(3) the federal regulations for Prevention of Significant Deterioration of Air Quality and nonattainment review do not apply.
(b) Notification of commenters. Persons submitting written comments in accordance with § 116.136(a) of this title (relating to Public Comment Procedures) or persons submitting a written request to be notified of the final agency action within the comment period specified in § 116.136(a) of this title will be notified of the executive director's final decision at the same time that the applicant is notified.
Any person who applies for a permit to construct a new facility or to modify an existing facility, or for an amendment to an existing permit under § 116.110 of this title (relating to Applicability) shall remit, at the time of application for such permit, a fee based on the estimated capital cost of the project. The fee will be determined as set forth in § 116.141 of this title (relating to Determination of Fees). Fees will not be charged for operating permits, permit alterations, amendments to special permits, standard exemptions, site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities.
(a) The estimated capital cost of the project is the estimated total cost of the equipment and services that would normally be capitalized according to standard and generally accepted corporate financing and accounting procedures.
(b) The following fee schedule may be used by a permit applicant to determine the fee to be remitted with a permit application.
(1) If the estimated capital cost of the project is less than $300,000 or if the project consists of new facilities controlled and operated directly by the federal government for which an application is submitted after January 1, 1987, and the federal regulations for Prevention of Significant Deterioration (PSD) Review do not apply, the fee is $450. The provisions of subsections (c) and (d) of this section do not apply to a project consisting of new facilities controlled and operated directly by the federal government.
(2) If the estimated capital cost of the project is $300,000 or more and the PSD regulations do not apply, the fee is 0.15% of the estimated capital cost of the project. The maximum fee is $75,000. For determination of fees for projects applicable to PSD regulations, see § 116.163 of this title (relating to Prevention of Significant Deterioration Permit Fees).
(c) If the estimated capital cost of the project is less than $50 million, the permit applicant shall include a certification that the estimated capital cost of the project is correct. Certification of the estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows.
(1) Direct costs are as follows:
(A) process and control equipment not previously owned by the applicant and permitted in Texas;
(B) auxiliary equipment, including exhaust hoods, ducting, fans, pumps, piping, conveyors, stacks, storage tanks, waste-disposal facilities, and air pollution control equipment specifically needed to meet permit and regulation requirements;
(C) freight charges;
(D) site preparation (including demolition), construction of fences, outdoor lighting, road, and parking areas;
(E) installation (including foundations), erection of supporting structures, enclosures or weather protection, insulation and painting, utilities and connections, process integration, and process control equipment;
(F) auxiliary buildings, including materials storage, employee facilities, and changes to existing structures;
(G) ambient air monitoring network.
(2) Indirect costs are as follows:
(A) final engineering design and supervision, and administrative overhead;
(B) construction expense (including construction liaison), securing local building permits, insurance, temporary construction facilities, and construction clean-up;
(C) contractor's fee and overhead.
(d) A fee of $75,000 shall be required if no estimate of capital project cost is included with a permit application.
(e) An applicant for a permit or permit amendment not involving any capital expenditure shall be required to remit the minimum permit fee of $450.
All permit fees will be remitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission or TNRCC and delivered with the application for permit or amendment to the TNRCC, 12124 Park Circle, Austin, Texas 78753. Required fees must be received before the agency will begin examination of the application.
(1) Single fee. The executive director shall charge only one fee for multiple permits issued for one project if it is determined that the following conditions are met:
(A) all the component or separate processes being permitted are integral or related to the overall project;
(B) the project is under continuous construction of the component parts;
(C) the permitted facilities are to be located on the same or contiguous property; and
(D) applications for all permits for the project must be submitted at the same time.
(2) Return of fees. Fees must be paid at the time an application for a permit or amendment is submitted. If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one-half of the fee will be refunded except that the entire fee will be refunded for any such application for which a standard exemption is allowed. No fees will be refunded after a deficient application has been voided or after a permit or amendment has been issued by the agency.
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