Regulatory Text: 
                   SUBCHAPTER B : NEW SOURCE REVIEW PERMITS

                       DIVISION 2 : COMPLIANCE HISTORY

Outline:
§116.120.  Applicability.
§116.121.  Exemptions.
§116.122.  Contents of Compliance History.
§116.123.  Effective Dates.
§116.124.  Public Notice of Compliance History.
§116.125.  Preservation of Existing Rights and Procedures.
§116.126.  Voidance of Permit Applications.


§116.120.  Applicability.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


     As part of the review of a construction permit, amendment, or renewal:

          (1)  The executive director shall compile a compliance history for:

               (A)  the existing site when the application is for a new permit, amendment, or renewal at the existing site;

               (B)  a site with similar facilities, if any, owned or operated by the applicant in Texas when the application is for a new facility at a new site.  The commission may require the applicant to indicate which facilities the applicant considers to be similar.

          (2)  The applicant shall provide the commission with a compliance history for sites with similar facilities, if any, owned or operated by the applicant in other states when:

               (A)  the application is for a new facility at a new site; and

               (B)  the applicant does not own or operate similar facilities in Texas.

          (3)  If the applicant has no compliance history in the United States, the applicant shall provide the commission with a compliance history for any similar facilities owned or operated by:

               (A)  a person who is presently an officer, director, or agent of the applicant;

               (B)  a parent corporation, subsidiary, or predecessor in interest of the applicant;

               (C)  one who owns 20% or more of the applicant, whether directly, as a shareholder, partner, beneficiary, or otherwise; or

               (D)  one who controls the applicant or has the ability to direct the conduct of the applicant.

********************end tx 116.120 adopted 06/17/98******ecxi*****cxr**


§116.121.  Exemptions.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


     The compliance history is not required if the total increased actual emissions of any specific air contaminant (e.g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1.1 to 1 reduction of the same specific air contaminant at the site.

********************end tx 116.121 adopted 06/17/98******ecxi*****cxr**


§116.122.  Contents of Compliance History.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


     (a)  The compliance history shall include all of the following compliance events and associated information involving the facility that is the subject of the permit application:

          (1)  for Texas facilities:

               (A)  criminal convictions known to the commission and civil orders, judgments, and decrees identified by stating:

                    (i)  the style of the case;

                    (ii)  the tribunal issuing the conviction or judgment;

                    (iii)  the docket number and the date of action; and

                    (iv)  the general nature of the alleged violation;

               (B) administrative enforcement orders identified by stating:

                    (i)  the name or style of action;

                    (ii)  the agency issuing the order;

                    (iii)  the docket number and the date of the order; and

                    (iv)  the general nature of the alleged violation;

               (C)  compliance proceedings identified by stating:

                    (i)  the name or style of action;

                    (ii)  the general nature of the alleged violation;

          (2)  for United States facilities outside Texas:

               (A)  criminal convictions and civil judgments identified by stating:

                    (i)  the style of the case;

                    (ii)  the tribunal issuing the conviction or judgment;

                    (iii)  the docket number and date of action; and

                    (iv)  the general nature of the alleged violation;

               (B)  administrative enforcement orders identified by stating:

                    (i)  the name or style of action;

                    (ii)  the agency issuing the order;

                    (iii)  the docket number and the date of the order; and

                    (iv)  the general nature of the alleged violation;

               (C)  for notices of violation issued by the EPA:

                    (i)  the name of the action;

                    (ii)  the EPA identification number and date of notice; and

                    (iii)  the general nature of the alleged violation.

     (b)  Violations of fugitive emission monitoring and recordkeeping requirements imposed either by §101.20(1) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards), or state implementation plan requirements applicable to major sources in nonattainment areas shall not be included in the compliance history where:

          (1)  the violations occurred after the effective date of this rule, and have been the subject of a commission administrative enforcement action, and the commission classified the violations as not being subject to compliance history review; or

          (2)  the violations occurred during the five years preceding the effective date of this rule and have been the subject of a commission administrative enforcement action in which:

               (A)  the commission did not classify the violations as either major seriousness or major impact for the purpose of administrative review; and

               (B)  the commission assessed a total administrative penalty of less than $20,000 for the violations.

     (c)  The commission may request an analysis of the significance of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application.  The commission request shall list specific compliance events requiring such an analysis.

********************end tx 116.122 adopted 06/17/98******ecxi*****cxr**


§116.123.  Effective Dates.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


     (a)  The requirements under §§116.120-116.126 of this title (relating to Compliance History) apply only to applications filed on or after December 9, 1992.

     (b)  For applications filed:

          (1)  before June 1, 1993, neither the commission nor the applicant is required to include compliance events occurring before June 1, 1988;

          (2)  on or after June 1, 1993, neither the commission nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application is filed.

********************end tx 116.123 adopted 06/17/98******ecxi*****cxr**


§116.124.  Public Notice of Compliance History.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


When public notice is required under §116.131 of this title (relating to Public Notification Requirements), the applicant shall include the following statement in the notice:  "The facility's compliance file, if any exists, is available for public review in the regional office of the Texas Natural Resource Conservation Commission."

********************end tx 116.124 adopted 06/17/98**********ecxi****cxr**


§116.125.  Preservation of Existing Rights and Procedures.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


     Nothing in this subchapter (concerning Compliance History) shall:

          (1)  diminish the rights of any party in a contested case hearing to raise any issue authorized by Texas Health and Safety Code, §382.0518(c);

          (2)  diminish the rights of any person to request and obtain compliance history information from the commission;

          (3)  limit the authority of the commission to request and consider any other information that is relevant to the application under the law; or

          (4)  create any right in third parties which did not exist before the effective date of this subchapter.

********************end tx 116.125 adopted 06/17/98******ecxi*****cxr**


§116.126.  Voidance of Permit Applications.
As adopted by TNRCC June 17, 1998, effective July 8, 1998.
Approved by EPA September 18, 2002 (67 FR 58697) effective October 18, 2002.


     If an applicant does not submit compliance history information within 180 days after written request from the executive director, the commission will void the permit application.  The applicant shall also forfeit the fees associated with the permit application.  A new permit application shall be required for further consideration by the commission.

********************end tx 116.126 adopted 06/17/98******ecxi*****cxr**