Texas Natural Resource Conservation Commission Austin Texas Memoranda To: Jeff Saitas, P. E., Director, Permits Program New Source Review Section Through: Bill Zeis, Senior Staff Attorney, Legal Services Division From: Janis Hudson, Staff Attorney, Legal Services Division Date: November 2, 1993 Subject: Permit Renewal Issue Date Question Presented How is the renewal issue date of a state permit determined? Is it the anniversary date of an original permit or latest renewal or the date the permit renewal is issued? Terms Defined as used in this memo 1. Issue date of original permit: date shown on the permit certificate. 2. Anniversary date: date the original permit would have expired if no application for renewal was filed; this is prior to any renewal(s). 3. Renewal issue date: date the agency determines that the permit holder has qualified for a permit renewal. This is the date the renewal permit is signed. Discussion The TNRCC must consider certain minimum statutory and regulatory requirements before issuing a permit renewal. Texas Clean Air Act, Texas Health & Safety Code 382.055 (TCAA) and TNRCC Rules 30 Texas Administrative Code Chapter 116, Subchapter D (116.310-.314). Therefore, there is no renewal until the application is fully reviewed and a determination is made as to whether the permit holder's authority to operate should be renewed and, if so, under what conditions (including the length of the review term (1)) the permit should be renewed. TCAA 382.055(d) and (e). Existing operating permits for which a renewal application has been timely filed remain effective until the agency makes the renewal decision on the renewal issue date (or the Commission takes certain action). TCAA 382.055(f) and (g) and TNRCC Rule 116.314(c) [formerly TACB Rule 116.12(f)]. The anniversary date is the expiration date only for those permits for which a timely renewal application is not filed. TCAA 382.055(h). Because the TCAA specifically allows the permit to remain effective beyond the anniversary date, this has the effect of (1) providing the agency staff with additional time to conduct a thorough renewal review and (2) eliminating the possibility of enforcement action. There are limited agency resources available to respond to all permit projects and therefore there can be no guarantee that there will be adequate resources to conduct and conclude all permit renewal reviews prior to the anniversary date. In fact, the statute and agency rules allow up to 180 days (from the date the renewal application is filed) for a renewal decision. TCAA 383.055(f) and Rule 116.314(a). This can result in an agency decision deadline up to at least ninety days after the anniversary date. In addition, the permit remains effective during the renewal process so that there is no enforcement action for operating without a permit or for operating in violation of the renewal provision (which are usually not known to the permit holder on the anniversary date). The renewal process often leads to a permit which has additional and/or different provision in the permit which will apply prospectively. therefore, it is illogical to conclude that the renewal begins on the anniversary date rather than on the date the decision to renew is made. An example of this concept is as follows. Permit #XYZ was issued on October 1, 1978, which by stature was subject to review after fifteen, making its anniversary date October 1, 1993. The agency notified the company on or about April 4, 1993 that permit #XYZ would be subject to renewal criteria. The permit holder filed its renewal application on July 1, 1993; this gives the agency until January 1, 1994 to make its renewal decision. The agency began its review of the renewal application on September 20, 1993, eleven days prior to the anniversary date of permit #XYZ. In that review, the agency staff determined that when the original permit was issued, an error was made in the calculations of allowable emissions. The 1978 permit allows ten tons per hour (tph), but the renewal review determined that the correct emission should have been five tpy. The permit holder is allowed to continue emitting ten tph while the agency works with the permit holder on tighter provision (five tph rather than ten tph allowable emissions) until the renewal is ready to be issued on November 15, 1993 with a new anniversary date of November 15, 2003. In this example, the agency took more than four months (but well within its allotted review time) to complete its permit renewal review and the company was allowed to operate for an additional forty-five days at the old permit allowances without the risk of violating the TCAA or the TNRCC rules. If the renewal, completed on November 15, 1993, was dated October 1, 1993 (the anniversary date), the company technically has violated the terms of its permit for forty-five days. Conclusion The TCAA and rules promulgated thereunder provide for extension of a permit which is tied to prescribed review dates and subsequent action by the agency if the permit holder files a timely renewal application. A permit expires on the anniversary date only if the permit holder fails to file a renewal application. The renewal period is not required to begin on the anniversary date, but rather when the agency has determined that the applicant has the specified requirements. Therefore, the renewal issue date is the date the agency determines a permit holder has authority to continue operating and what conditions limit that authority. The date the renewal permit (or renewal letter, as is the current practice) is signed "starts the clock" for calculating (1) the term of the renewal, (2) the new anniversary date and (3) the date for mailing a notice of scheduled review to the permit holder. -------------------------------------------- 1 In 1993, a new review schedule was included in the TCAA, which increased the five year renewal term to a ten year renewal term for preconstruction permits. In addition, the agency was given flexibility in setting a review period of between five and ten years where cause is shown to support a shorter review term. TCAA 382.055(a). The new review period in this statute also applies when calculating the anniversary date for permit holders to whom notice of review is mailed and who fail to file a permit renewal application. TCAA 382.055(h). TNRCC Rule 116.311(c)(2) tracks the language of TCAA 382.055(a) prior to the statutory changes made by the 73rd Legislature in H.B. 2049 which were effective earlier this year. The statute controls, and the ten year renewal, or shorter term for cause, now applies.