The Texas Commission on Environmental Quality (“TCEQ”) has prepared a rulemaking that will consolidate for certain New Source Review (“NSR”) air permit applications the Notice of Receipt of Application and Intent to Obtain Permit (“NORI”) and Notice of Application and Preliminary Decision (“NAPD”) to allow for a single 30-day notice period during which public comments and requests for public meetings or contested case hearings (“CCHs”) can be submitted. The rulemaking, which implements Senate Bill 1045 (85th Texas Legislature, 2017), is scheduled for adoption at TCEQ’s May 9, 2018 Commissioners’ Agenda meeting.
This streamlined notice process would be available for case-by-case NSR applications that can be declared administratively and technically complete and for which the Executive Director (“ED”) prepares a draft permit within 15 days of TCEQ’s receipt of the application. Under TCEQ’s current rules two separate public notice periods are required. First, air permit applicants must publish a NORI after TCEQ deems their application to be administratively complete. NORI publication begins a 30-day public comment period during which persons may submit comments, a public meeting request, and/or CCH request. The applicant must later publish an NAPD when TCEQ has finished preparing a draft permit. This begins a second 30-day public comment period. The new rulemaking consolidates these notice requirements into one 30-day public notice period. However, if a CCH request is received within the new single 30-day comment period, the opportunity to request a CCH will extend to 30 days after the ED files the Response to Comments.
The preamble to the proposed rulemaking explains that the applications that qualify for this streamlined public notice process will be limited. Specifically, the preamble provides that types of facilities eligible for the consolidated notice “is dependent upon the complexity of the project for which authorization is sought and the quality of the application, both of which affect APD's ability to prepare the draft permit within 15 days of receipt of the application.” The preamble offers the following as examples of relatively simple applications to which this process might apply:
- A new permit application submitted after an applicant failed to timely renew their permit, and no changes to the facilities previously authorized are proposed; and
- An application for a facility that was previously authorized but was not timely constructed for which the control technology and projected off-property impacts review have recently been conducted.
In contrast, TCEQ noted that “an application to add an additional similar facility at the same location for which the control technology and projected off-property impacts review has recently been conducted will not be a candidate for the 15-day processing time in cases where additional modeling is required.”