Texas Register, Volume 33, Number 1, Pages 1-358, January 4, 2008 Page: 192
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adopted rule affects all sites equally and has no specific effect
on sites subject to the Federal Operating Permits Program.
PUBLIC COMMENT
The proposed revisions were published in the September 7,
2007, issue of the Texas Register. A public hearing for this
rulemaking was held on September 24, 2007, and the comment
period closed on September 26, 2007. The commission re-
ceived comments on the proposed rule from the City of Dallas,
the City of Houston, the Clean Coal Technology Foundation of
Texas (CCTFT), Jackson Walker L.L.P. on behalf of the Gulf
Coast Lignite Coalition, the TCEQ Office of Public Interest
Counsel (OPIC), the Texas Mining and Reclamation Association
(TMRA), and the EPA Region 6.
RESPONSE TO COMMENTS
The Cities of Dallas and Houston indicated general support for
HB 3732, but expressed concern that the emission specifica-
tions in the definition of ACEP, particularly the NOx emission rate
of 0.05 Ib/MM BTU, may not be representative of the cleanest
energy production possible. The City of Dallas and the City of
Houston commented that several existing power plants meet or
exceed the NOX criteria, and recommended that any project certi-
fied under this program result in NOX emissions below 0.05 Ib/MM
BTU.
The emission specifications in the definition of ACEP were es-
tablished by HB 3732 and incorporated into THSC, 382.003,
Definitions. Commission rules implementing HB 3732 must be
consistent with the statutory definition of ACEP and the associ-
ated emission specifications. The commission is not changing
the rule in response to this comment.
The Cities of Dallas and Houston expressed general concern
about the air quality impacts associated with coal power plants.
The commission is required to adopt rules to implement HB 3732
and THSC, 382.0566. The commission does not have the au-
thority to reject projects that meet the eligibility requirements of
the legislation and associated statutes, regardless of the type of
fuel used. The commission is not changing the rule in response
to this comment.
CCTFT, TMRA, and Jackson Walker, L.L.P. expressed support
for the rules as proposed.
The commission appreciates the support.
OPIC recommended requiring that the executive director directly
refer all ACEP permit applications to the State Office of Admin-
istrative Hearings (SOAH). OPIC commented that this direct re-
ferral of all ACEP permit applications would be the most efficient
method of ensuring that the public has the greatest amount of
time to participate in the hearing process. CCTFT, TMRA, and
Jackson Walker L.L.P. commented that the rule should not pro-
vide for the mandatory direct referral of ACEP permit applica-
tions to SOAH. Jackson Walker L.L.P. incorporated the com-
ments submitted by CCTFT into its comments, and TMRA sup-
ported the comments submitted by CCTFT. CCTFT commented
that neither the language nor the intent of HB 3732 provide a ba-
sis for such a direct referral to SOAH. CCTFT commented that
such a direct referral would not be fully consistent with the public
notice and participation process established by HB 801. CCTFT
also commented that the authors of HB 3732 gave ample con-
sideration to the timelines contained in the legislation. CCTFT
stated that the introduced version of the bill required that the
permit be issued or denied within 12 months of the date the ex-ecutive director determined the application was administratively
complete, and did not provide for any extension. CCTFT stated
that the bill was later modified to extend the overall permitting
timeline by six months, and include a provision for an additional
three-month extension, which is in the adopted version. CCTFT
commented that these changes to the bill were made after con-
sultation with TCEQ staff and stakeholders from environmental
groups to address their concerns that the initial timeline was too
short. CCTFT expressed confidence that the commission would
be capable of processing ACEP permit applications within the
18-month timeline.
Existing rules at 30 TAC 55.210, Direct Referrals, already allow
the executive director (or the permit applicant) to directly refer a
permit application to SOAH where appropriate. House Bill 3732
did not specify any changes to existing rules or practices con-
cerning direct referrals. Therefore, it does not appear necessary
to address direct referrals in this rulemaking. The commission is
not changing the rule in response to these comments.
OPIC recommended that the executive director require publi-
cation of a dual Notice of Application and Preliminary Decision
(NAPD) and Notice of Contested Case Hearing within one week
of determining that the application is technically complete. OPIC
commented that the hearing should take place no later than 30
days from the date of publication of the NAPD.
The recommended change is not necessary, as the rule will not
include the mandatory direct referral of ACEP permit applica-
tions to SOAH. In cases where a hearing request is received, the
NAPD and Notice of Contested Case Hearing will be published
according to the processes and deadlines specified in existing
rules. The date of any hearing must be at least 30 days after
publication of the newspaper hearing notice in order to comply
with the provisions of 30 TAC 39.603(e).
OPIC recommended that the rule require the Administrative Law
Judge(s) to issue a proposal for decision (PFD) on HB 3732
applications within one month, rather than the customary two
months, from the close of the record. OPIC stated that this would
allow all parties more time to fully develop the record through
discovery, the hearing on the merits, and closing briefing. OPIC
also recommended that the rules require that SOAH issue the
PFD no later than six weeks before the date when a final order
from the commission is due.
Although the commission acknowledges that it would generally
be desirable for the PFD to be issued more quickly for HB 3732
applications, the commission does not consider it appropriate to
set formal deadlines for SOAH's process within Chapter 116. No
changes were made in response to this comment.
The EPA indicated general support for the proposed amendment
concerning the deadlines for ACEP permit applications.
The commission appreciates the support.
The EPA commented that, although the term ACEP is defined in
the Texas Health and Safety Code, it would be helpful to include
a definition of ACEP in the proposed rules.
The commission agrees that it would generally be preferable to
include relevant definitions in commission rules. However, the
commission did not propose to open the applicable definitions
section of Chapter 116. The general practice is to include def-
initions applicable to Chapter 116 in Subchapter A. Therefore,
the commission is not changing the rule in response to this com-
ment.33 TexReg 192 January 4, 2008 Texas Register
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Texas. Secretary of State. Texas Register, Volume 33, Number 1, Pages 1-358, January 4, 2008, periodical, January 4, 2008; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth90775/m1/190/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.