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Environmental News contact Vinson & Elkins lawyers Sharon Mattox at 713.758.4598 or Taylor Pullins at 713.758.3432. Radioactive Waste Regulation Transferred From TDSHS to TCEQ TCEQ has proposed changes to the rules that regulate radioactive waste www.tceq.state.tx.us/rules/prop.html. The rulemaking implements Senate Bill (SB) 1604 from the 80th Legislative Session www.legis.state.tx.us/tlodocs/80R/billtext/ pdf/SB01604F.pdf. SB 1604 mandates the transfer of regulatory and licensing responsibilities for uranium mining, byproduct disposal, and commercial radioactive substance processing from the Texas Department of State Health Services (TDSHS) to TCEQ. Currently, TDSHS regulates these activities, while TCEQ regulates other radioactive waste disposal, including disposal of low-level radioactive waste. SB 1604 consolidates the regulatory jurisdiction of all these activities under TCEQ. Personnel from TDSHS have already relocated to TCEQ. Members of the regulated community impacted by the changes are radioactive waste storage and processing industries, uranium miners, and by-product disposal facilities. TCEQ has emphasized that the proposed changes should not impose new regulatory requirements on businesses or individuals or increase fiscal obligations for currently regulated businesses or individuals. Rather, the TCEQ’s rulemaking is intended simply to transfer regulation from TDSHS to TCEQ. In addition to the ministerial transfer of functions, contested hearings over license applications now will be held under TCEQ, not TDSHS, rules. The practical impact of this change is that TCEQ’s definition of “affected person” (30 TAC § 55.3) is broader than TDSHS’s (25 TAC § 289.205) and thus will offer more opportunities for challenging such applications. The rulemaking alters four chapters of Title 30 of the Texas Administrative Code: (1) Chapter 37, financial assurance; (2) Chapter 39, public notice; (3) Chapter 281, applications processing; and (4) Chapter 336, radioactive substance rules. A public hearing regarding this rulemaking will be held in Austin on September 25, 2007. Public comments are being solicited through October 8, 2007. The anticipated adoption date for the rules is December 19, 2007. SB 1604 also amends the TCEQ’s underground injection control program for regulation of uranium mining and requires TCEQ to establish a new state fee for the disposal of radioactive waste. TCEQ does not address these statutory changes in this rulemaking but instead will develop a separate, future rulemaking. TCEQ also may take a fresh look at the by-product disposal rules within the next year. For more information on TCEQ radioactive waste rulemaking, contact Vinson & Elkins lawyers Lewis Sutherland at 713.758.2367 or Mary Conner at 713.758.3365. 8
TCEQ Regulatory Watch Air Rules The following significant new air rule adoption has been published since the August 2007 issue of the V&E Environmental News. New Proposed Rules General Air Quality Rules • 32 Tex. Reg. 5296 – August 24, 2007 • 30 TAC Chapter 113 • TCEQ proposes amendments to certain sections of Chapter 113. The proposed amendments to Chapter 113 would incorporate amendments that EPA made to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories, under 40 Code of Federal Regulations (CFR) Part 63 and add six NESHAPs that have not previously been incorporated into Chapter 113. The proposed amendments would incorporate by reference amendments that EPA made to NESHAP for Source Categories under 40 CFR Part 63. These are technology-based standards commonly referred to as the maximum achievable control technology (MACT) standards. The MACT standards are required by the Federal Clean Air Act Amendments of 1990 (FCAA), Section 112, which requires EPA to develop national technology-based standards for new and existing sources of hazardous air pollutants listed in Section 112. The MACT standards are generally required to be based on the maximum degree of emission control that is achievable, taking into consideration cost and any nonair quality health and environmental impacts and energy requirements. In addition, the proposed new sections would incorporate by reference six MACT standards that have not been previously incorporated into Chapter 113. EPA is developing these national standards to regulate emissions of hazardous air pollutants as required under FCAA, Section 112, as codified in 42 United States Code, Section 7412. • Comments due by: September 24, 2007 • Need additional information? Please contact Vinson & Elkins lawyer Chris Amandes at 713.758.1146. Control of Air Pollution From Motor Vehicles • 32 Tex. Reg. 5315 – August 24, 2007 • 30 TAC Chapter 114 • TCEQ proposes amendments to Sections 114.7, 114.62, 114.64, 114.66, and 114.70. The Commission proposes these revisions in order to implement requirements of Senate Bill (SB) 12, authored by the Honorable Senator Averitt, passed during the 80th Legislature, 2007. During the 77th Legislature, 2001, the legislature adopted provisions, House Bill (HB) 2134, to assist low-income individuals with repairs, retrofits, or retirement of vehicles that fail emissions inspections. As required by HB 2134, the Commission adopted rules providing the minimum guidelines for counties to implement a low income vehicle repair assistance, retrofit, and accelerated vehicle retirement program (LIRAP). • Comments due by: September 12, 2007 • Need additional information? Please contact Vinson & Elkins lawyer Larry Nettles at 713.758.4586. Control of Air Pollution by Permits for New Construction or Modification • 32 Tex. Reg. 6053 – September 7, 2007 • 30 TAC Chapter 116 • TCEQ proposes amendments to Section 116.114. The proposed rule amendment is required by House Bill (HB) 3732, passed by the 80th Legislature, Regular Session, which sets the deadlines and directed TCEQ to adopt corresponding rules no later than January 1, 2008. The intent of HB 3732 and the associated rules is to provide an incentive to encourage the development of certain types of electric power projects that meet stringent emission limits. The proposed rule amendment would establish deadlines for the Agency's review of air permit applications for Advanced Clean Energy Projects (ACEP), in order to ensure that those permits are issued in an expedited manner. The rule proposal would require that the executive director complete the technical review of an ACEP permit application within nine months of determining the application is administratively complete. The rule proposal also requires the Commission to issue a final order issuing or denying the permit within nine months of the date the executive director determines the application is technically complete. The Commission has discretion to extend this deadline by up to three months, if meeting the deadline would create an extraordinary burden on Commission resources. The Commission specifically invites comment on whether or not the executive director should directly refer all ACEP air permit applications to the State Office of 9
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