renew.txt

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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