Texas Natural Resource Conservation Commission Interoffice Memorandum To: Anne Inman, Team Leader, Mechanical Section, New Source Review Permits Through: David Duncan, Senior Attorney for Air, Environmental Law Division From: Kerri Rowland, Staff Attorney, Environmental Law Division Date: August 31, 1998 Subject: Applicable Date of Conditions of an Exemption from Permitting Question: You have asked for a determination regarding the applicable date of the distance requirements of the exemption from permitting in Texas Administrative Code (TAC) 106.142. Specifically, you have inquired whether a site approval at the time of registration locks in the eligibility of facility for a particular exemption from permitting. Short Answer: The determination of whether a facility meets the requirements of an exemption from permitting, including distance requirements, should be made at the time of construction of that facility. For exemptions from permitting which require registration, the TNRCC makes a preliminary determination that a facility will or will not meet the conditions of the exemption from permitting. However, if the situation at the site change or if the exemption from permitting is changed prior to construction, the preliminary determination does not allow construction if the new situation does not meet the current exemption conditions. Explanation: The rules regarding exemptions from permitting are found in 30 TAC Chapter 106. Subchapter A, General Requirements applies to all exemptions while the other subchapters apply to particular exemptions. Section 106.2 of Subchapter A states: 106.2 Applicability. This chapter applies to facilities or types of facilities listed in this chapter where construction is commenced on or after the effective date of the relevant exemption. Additionally, the rule goes on to state: 106.4(a)(6) Construction or modification of a facility commenced on or after the effective date of a revision of this section or the effective date of a revision to a specific exemption in this chapter must meet the revised requirements to qualify for an exemption. It is clear from the language of the rule that crucial date upon which an initial determination of compliance can be made is the date of construction. For those exemption which require registration and site approval, the TNRCC visits the site sometime before site approval is issued to ensure that the distance requirements are met. However, this is a preliminary determination. The distance requirements, as well as all other requirements, must be met on the date construction begins. If, after the site approval but before construction, a structure is built within the distance limitations of the exemption, the preliminary determination is overridden and the new structure must be taken into account. Similarly if, after the site approval but before construction, the exemption from permitting is changed to make the distance requirements more stringent, the preliminary determination is overridden and the new exemption requirements must be considered to determine compliance. There may be exceptions to this memo if a particular rulemaking specifies otherwise.