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       Texas Natural Resource Conservation Commission
              Austin                       Texas
                           Memoranda

To:  Jeff Saitas, P. E., Director, Permits Program
     New Source Review Section
Through:  Bill Zeis, Senior Staff Attorney, Legal Services
          Division
From:  Janis Hudson, Staff Attorney, Legal Services Division
Date:  November 2, 1993
Subject:  Permit Renewal Issue Date

Question Presented

How is the renewal issue date of a state permit determined? 
Is it the anniversary date of an original permit or latest
renewal or the date the permit renewal is issued?  

Terms Defined as used in this memo

1.  Issue date of original permit:  date shown on the permit
    certificate.
2.  Anniversary date:  date the original permit would have
    expired if no application for renewal was filed; this is
    prior to any renewal(s).
3.  Renewal issue date:  date the agency determines that the
    permit holder has qualified for a permit renewal.  This is
    the date the renewal permit is signed.  

Discussion  

The TNRCC must consider certain minimum statutory and
regulatory requirements before issuing a permit renewal. 
Texas Clean Air Act, Texas Health & Safety Code 382.055 (TCAA)
and TNRCC Rules 30 Texas Administrative Code Chapter 116,
Subchapter D (116.310-.314).  Therefore, there is no renewal
until the application is fully reviewed and a determination is
made as to whether the permit holder's authority to operate
should be renewed and, if so, under what conditions (including
the length of the review term (1)) the permit should be
renewed.  TCAA 382.055(d) and (e).  Existing operating permits
for which a renewal application has been timely filed remain
effective until the agency makes the renewal decision on the
renewal issue date (or the Commission takes certain action). 
TCAA 382.055(f) and (g) and TNRCC Rule 116.314(c) [formerly
TACB Rule 116.12(f)].  The anniversary date is the expiration
date only for those permits for which a timely renewal
application is not filed.  TCAA 382.055(h).  

Because the TCAA specifically allows the permit to remain
effective beyond the anniversary date, this has the effect of
(1) providing the agency staff with additional time to conduct
a thorough renewal review and (2) eliminating the possibility
of enforcement action.  There are limited agency resources
available to respond to all permit projects and therefore
there can be no guarantee that there will be adequate
resources to conduct and conclude all permit renewal reviews
prior to the anniversary date.  In fact, the statute and
agency rules allow up to 180 days (from the date the renewal
application is filed) for a renewal decision.  TCAA 383.055(f)
and Rule 116.314(a).  This can result in an agency decision
deadline up to at least ninety days after the anniversary
date.  In addition, the permit remains effective during the
renewal process so that there is no enforcement action for
operating without a permit or for operating in violation of
the renewal provision (which are usually not known to the
permit holder on the anniversary date).  The renewal process
often leads to a permit which has additional and/or different
provision in the permit which will apply prospectively. 
therefore, it is illogical to conclude that the renewal begins
on the anniversary date rather than on the date the decision
to renew is made.  

An example of this concept is as follows.  Permit #XYZ was
issued on October 1, 1978, which by stature was subject to
review after fifteen, making its anniversary date October 1,
1993.  The agency notified the company on or about April 4,
1993 that permit #XYZ would be subject to renewal criteria. 
The permit holder filed its renewal application on July 1,
1993; this gives the agency until January 1, 1994 to make its
renewal decision.  The agency began its review of the renewal
application on September 20, 1993, eleven days prior to the
anniversary date of permit #XYZ.  In that review, the agency
staff determined that when the original permit was issued, an
error was made in the calculations of allowable emissions. 
The 1978 permit allows ten tons per hour (tph), but the
renewal review determined that the correct emission should
have been five tpy.  The permit holder is allowed to continue
emitting ten tph while the agency works with the permit holder
on tighter provision (five tph rather than ten tph allowable
emissions) until the renewal is ready to be issued on November
15, 1993 with a new anniversary date of November 15, 2003.  In
this example, the agency took more than four months (but well
within its allotted review time) to complete its permit
renewal review and the company was allowed to operate for an
additional forty-five days at the old permit allowances
without the risk of violating the TCAA or the TNRCC rules.  If
the renewal, completed on November 15, 1993, was dated October
1, 1993 (the anniversary date), the company technically has
violated the terms of its permit for forty-five days.   

Conclusion 

The TCAA and rules promulgated thereunder provide for
extension of a permit which is tied to prescribed review dates
and subsequent action by the agency if the permit holder files
a timely renewal application.  A permit expires on the
anniversary date only if the permit holder fails to file a
renewal application.  The renewal period is not required to
begin on the anniversary date, but rather when the agency has
determined that the applicant has the specified requirements. 
Therefore, the renewal issue date is the date the agency
determines a permit holder has authority to continue operating
and what conditions limit that authority.  The date the
renewal permit (or renewal letter, as is the current practice)
is signed "starts the clock" for calculating (1) the term of
the renewal, (2) the new anniversary date and (3) the date for
mailing a notice of scheduled review to the permit holder.  

--------------------------------------------
     1  In 1993, a new review schedule was included in the
TCAA, which increased the five year renewal term to a ten year
renewal term for preconstruction permits.  In addition, the
agency was given flexibility in setting a review period of
between five and ten years where cause is shown to support a
shorter review term.  TCAA 382.055(a).  The new review period
in this statute also applies when calculating the anniversary
date for permit holders to whom notice of review is mailed and
who fail to file a permit renewal application.  TCAA
382.055(h).  

TNRCC Rule 116.311(c)(2) tracks the language of TCAA
382.055(a) prior to the statutory changes made by the 73rd
Legislature in H.B. 2049 which were effective earlier this
year.  The statute controls, and the ten year renewal, or
shorter term for cause, now applies.