HBA-SEP, AMW C.S.H.B. 128 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 128 By: West, George "Buddy" Environmental Regulation 4/6/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Congress gave states the authority to assess a demonstration filed by a federal land manager alleging that emissions from a proposed major emitting facility or a major modification of an existing facility will have adverse impacts to air-quality-related values in class I areas. The Clean Air Act provides that in "any case where the federal land manager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air-quality-related values (including visibility) of such lands ... a permit shall not be issued." C.S.H.B. 128 requires the Texas Natural Resource Conservation Commission (TNRCC) to represent the state for the purpose of assessing such a demonstration and provides that TNRCC may concur with a demonstration if it establishes by a preponderance of the evidence that emissions of a specific air pollutant from the proposed major emitting facility or major modification will result in an adverse impact on a specific air-quality-related value. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS C.S.H.B. 128 amends the Health and Safety Code to require the Texas Natural Resource Conservation Commission (TNRCC) to represent the state for the purpose of assessing a demonstration filed by a federal land manager alleging that the emissions from a proposed major emitting facility (proposed facility) or a major modification of an existing facility (major modification) will have an adverse impact on the air-qualityrelated values of a class I area. The bill defines "air-quality-related value" as a feature or property, including visibility, flora, fauna, a geologic feature, or a cultural resource, of an area that may be affected by air pollution. The bill defines "class I area" as an international park, national wilderness area greater than 5,000 acres, national memorial park greater than 5,000 acres, or national park greater than 6,000 acres. "Class I area" also includes an area that has been redesignated by the state as a class I area, and is greater than 10,000 acres, and is a national monument, national primitive area, national preserve, national recreation area, national wild and scenic river, national wildlife refuge, national lakeshore or seashore, or a national park or wilderness area established after August 7, 1977. The bill prohibits TNRCC from substituting publication of notice of a determination that an application for a federal operating permit or a preconstruction permit is administratively complete for mailing of the notice to a federal land manager. The bill requires TNRCC to accommodate reasonable requests from a federal land manager to be apprized of the status of TNRCC's review of a permit application. The bill authorizes TNRCC to concur in the demonstration if the area is a class I area, and the demonstration establishes by a preponderance of the evidence that emissions of a specific air pollutant from the proposed facility or major modification will result in an adverse impact on a specific air-quality-related value that was fundamental to the purpose for which the area was established or was an important attribute in the decision to redesignate the area as class I. The bill also authorizes TNRCC to concur in the demonstration if the area is a class I area and the demonstration relies on scientifically reliable evidence that concentrations of a specific air pollutant that are likely to occur as a result of emissions into the ambient air from the proposed facility or major modification will result in an adverse impact on a specific air-qualityrelated value of the area. The bill provides that the federal land manager must file the demonstration with TNRCC on or before 60 days after the date the administrator of the United States Environmental Protection Agency provides the federal land manager notice of a permit application relating to the proposed facility or major modification. The bill requires TNRCC to determine whether to concur in the demonstration not later than 60 days after receipt of the demonstration and to notify the federal land manager and the owner or operator of the major emitting facility of the determination not later than 10 days after the date the determination is made. The bill requires TNRCC to concur in the demonstration if the demonstration concerns a major emitting facility proposed to be located within 100 kilometers of a class I area and there is no scientifically reliable evidence contradicting the demonstration. C.S.H.B. 128 prohibits TNRCC from issuing a permit relating to the proposed facility or major modification, if TNRCC determines that the proposed facility or major modification will have an adverse impact on an air-quality-related value of a class I area, unless the owner or operator of the facility demonstrates by scientifically reliable evidence that it has mitigated that adverse impact by obtaining enforceable and permanent emissions reductions to offset the adverse impact. EFFECTIVE DATE On passage, or if the Act does not receive the necessary vote, the Act takes effect September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 128 differs from the original bill by changing "criteria air pollutant" to "air pollutant" and modifying the definition from an air pollutant for which the administrator has issued air quality criteria to an air pollutant regulated by the administrator. The substitute modifies the original bill by deleting "criteria" from all references to "criteria air pollutant." The substitute modifies the definition of "air-quality-related value" to add visibility to the features or property of an area that may be affected by air pollution. The substitute differs from the original bill by deleting "significant" from all references to "significant adverse impact." The substitute increases the amount of time from 30 days to 60 days that a federal land manager has to file a demonstration with the Texas Natural Resource Conservation Commission (TNRCC) and TNRCC has to make its determination to concur in the demonstration. The substitute differs from the original bill by authorizing TNRCC to concur in the demonstration if the area is a class I area and the demonstration relies on, rather than establishes by, scientifically reliable evidence that concentrations of a specific air pollutant will result in an adverse impact on a specific air-quality-related value of the area. The substitute adds requirements regarding TNRCC's concurrence in a demonstration concerning a major emitting facility proposed to be located within 100 kilometers of a class I area and mailing notices to and accommodating requests from a federal land manager. C.S.H.B. 128 adds new language to provide that, with respect to the potential of a major emitting facility to emit an air pollutant or with respect to the net increase in emissions of an air pollutant that may result from a major modification of an existing facility, "significant" has the meaning assigned by federal code. The substitute also specifies that these provisions only apply to a proposed major emitting facility that has the potential to emit an air pollutant in a significant amount or a proposed major modification of an existing facility that may result in a significant net increase in emissions of an air pollutant.