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          Texas Natural Resource Conservation Commission
                      Interoffice Memorandum

To:  Anne Inman, Team Leader, Mechanical Section, New Source Review Permits
Through:  David Duncan, Senior Attorney for Air, Environmental Law Division
From:  Kerri Rowland, Staff Attorney, Environmental Law Division
Date:  August 31, 1998
Subject:  Applicable Date of Conditions of an Exemption from Permitting

Question:  You have asked for a determination regarding the applicable date of the distance
requirements of the exemption from permitting in Texas Administrative Code (TAC) 106.142. 
Specifically, you have inquired whether a site approval at the time of registration locks in the
eligibility of facility for a particular exemption from permitting.

Short Answer:  The determination of whether a facility meets the requirements of an exemption
from permitting, including distance requirements, should be made at the time of construction of
that facility.  For exemptions from permitting which require registration, the TNRCC makes a
preliminary determination that a facility will or will not meet the conditions of the exemption
from permitting.  However, if the situation at the site change or if the exemption from permitting
is changed prior to construction, the preliminary determination does not allow construction if the
new situation does not meet the current exemption conditions.  

Explanation:  The rules regarding exemptions from permitting are found in 30 TAC Chapter 106. 
Subchapter A, General Requirements applies to all exemptions while the other subchapters apply
to particular exemptions.  Section 106.2 of Subchapter A states:

106.2 Applicability.  This chapter applies to facilities or types of facilities listed in this chapter
where construction is commenced on or after the effective date of the relevant exemption. 

Additionally, the rule goes on to state:

106.4(a)(6) Construction or modification of a facility commenced on or after the effective date of
a revision of this section or the effective date of a revision to a specific exemption in this chapter
must meet the revised requirements to qualify for an exemption.

It is clear from the language of the rule that crucial date upon which an initial determination of
compliance can be made is the date of construction.  For those exemption which require
registration and site approval, the TNRCC visits the site sometime before site approval is issued
to ensure that the distance requirements are met.  However, this is a preliminary determination. 
The distance requirements, as well as all other requirements, must be met on the date
construction begins.  If, after the site approval but before construction, a structure is built within
the distance limitations of the exemption, the preliminary determination is overridden and the
new structure must be taken into account.  Similarly if, after the site approval but before
construction, the exemption from permitting is changed to make the distance requirements more
stringent, the preliminary determination is overridden and the new exemption requirements must
be considered to determine compliance.

There may be exceptions to this memo if a particular rulemaking specifies otherwise.