[Federal Register: March 30, 2005 (Volume 70, Number 60)]
[Rules and Regulations]
[Page 16134-16141]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr05-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TX-154-2-7609; FRL-7892-6]
Approval of Revisions and Notice of Resolution of Deficiency for
Clean Air Act Operating Permit Program in Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving revisions to the Texas Title V operating
permits program submitted by the Texas Commission on Environmental
Quality (TCEQ) on December 9, 2002. In a Notice of Deficiency (NOD)
published on January 7, 2002, EPA notified Texas of EPA's finding that
the State's periodic monitoring regulations, compliance assurance
monitoring (CAM) regulations, periodic monitoring and CAM general
operating permits (GOP), statement of basis requirement, applicable
requirement definition, and potential to emit (PTE) registration
regulations did not meet the minimum Federal requirements of the Clean
Air Act and the regulations for State operating permits pfrograms. This
action approves the revisions that TCEQ submitted to correct the
identified deficiencies. Today's action also approves other revisions
to the Texas Title V Operating Permit Program submitted on December 9,
2002, which relate to concurrent review and credible evidence. The
December 9, 2002, submittal also included revisions to the Texas State
Implementation Plan (SIP). We published our final SIP approval in the
Federal Register on November 14, 2003 (68 FR 64543). These revisions to
Texas' operating permits program resolve all deficiencies identified in
the January 7, 2002, NOD and removes the potential for any resulting
consequences under the Act, including sanctions, with respect to the
January 7, 2002, NOD.
DATES: This final rule is effective on April 29, 2005.
ADDRESSES: Copies of the documents relevant to this action, including
EPA's Technical Support Document, are in the official file which is
available at the Air Permits Section (6PD-R), Environmental Protection
Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file
will be made available by appointment for public inspection in
[[Page 16135]]
the Region 6 Freedom of Information Act Review Room between the hours
of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact
Mr. Stanley M. Spruiell at 214-665-7212 to make an appointment. If
possible, please make the appointment at least two working days in
advance of your visit. There will be a 15 cent per page fee for making
photocopies of documents. On the day of the visit, please check in at
the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas,
Texas.
Copies of any State submittals are also available for public
inspection at the State Air Agency listed below during official
business hours by appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212,
; fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout the document ``we,'' ``us,'' or
``our'' means EPA.
Outline
I. Background
II. What is Being Addressed in This Action?
A. Periodic Monitoring Regulations
B. Compliance Assurance Monitoring Regulations
C. Periodic Monitoring and Compliance Assurance Monitoring
General Operating Permits
D. Statement of Basis Requirement
E. Definition of Applicable Requirement
F. Potential To Emit Registration Requirements
III. What Other Program Changes are We Approving?
A. Credible Evidence
B. Concurrent Review
IV. What is Our Response to Comments Received in Response to Our
Proposed Rulemaking?
V. What is our Final Action?
VI. Statutory and Executive Order Reviews
I. Background
The Clean Air Act (the Act) Amendments of 1990 required all States
to develop operating permits programs that meet Title V of the Act, 42
U.S.C. 7661-7661f, and its implementing regulations, 40 CFR part 70.
Texas' operating permit program was submitted in response to this
directive on November 15, 1993. We promulgated interim approval of the
Texas Title V program on June 25, 1996 (61 FR 32693) and the program
became effective on July 25, 1996. Subsequently, we promulgated full
approval of the Texas Title V program effective November 30, 2001 (66
FR 63318, December 6, 2001). As explained in the proposed and final
full approval, we granted full approval based on our finding that Texas
had corrected the deficiencies identified at the time of the interim
approval (66 FR at 51897 (October 11, 2001); 66 FR 63319). See also
Public Citizen v. EPA, 343 F.3d 449 (5th Cir. 2003) (denying petitions
for review challenging full approval).
Since the interim approval, members of the public filed comments
with EPA alleging other deficiencies in the Texas Title V program, and
EPA conducted a review of the issues raised. Section 502(i) of the Act
and 40 CFR 70.10(b)(1) provide that whenever EPA makes a determination
that a State is not adequately administering and enforcing its program
in accordance with the requirements of Title V, EPA shall issue a
notice to the State.
EPA published a notice of deficiency (NOD) for Texas' Title V
Operating Permit Program on January 7, 2002 (67 FR 732). The NOD was
based upon our finding that several State requirements did not meet the
minimum Federal requirements of 40 CFR part 70 and the Act. TCEQ
adopted rule revisions to resolve the deficiencies identified in the
January 7, 2002, NOD. These rule revisions became effective, as a
matter of State law, on December 11, 2002. TCEQ submitted these rule
changes to EPA as a revision to its Title V Operating Permit Program on
December 9, 2002. TCEQ also included, in the December 9, 2002,
submittal, other regulatory revisions that strengthen Texas' program.
On July 9, 2003 (68 FR 40871), we proposed to approve the revisions
submitted December 9, 2002, as revisions to Texas Title V operating
permits program. We received one comment letter in response to the
proposal and our consideration of those comments is summarized in
section IV of this preamble. We are approving the Texas rule revisions
included in the December 9, 2002, submittal in today's action. The
December 9, 2002, submittal also included provisions which TCEQ
requested that we approve as revisions to its SIP. We approved those
SIP revisions submitted December 9, 2002, on November 14, 2003 (68 FR
64543). We have prepared a Technical Support Document which contains a
detailed analysis of our evaluation of this action. The Technical
Support Document is available at the address listed above. Elsewhere in
today's Federal Register, we are also taking final action to grant
limited SIP approval of revisions to Title 30 of the Texas
Administrative Code (30 TAC) 101.211, 101.221, 101.222, and 101.223,
addressing the reporting, recordkeeping and enforcement requirements
for excess emissions during startup, shutdown, and malfunction
activities. The State has incorporated these provisions into its
definition of ``applicable requirement'' for the Title V program.
II. What Is Being Addressed in This Action?
In today's action, we are approving revisions as identified below
which TCEQ adopted November 20, 2002 (submitted to EPA December 9,
2002) and find that those revisions and final SIP approval of revisions
published on November 14, 2003 and elsewhere in today's Federal
Register resolve the deficiencies identified in the January 7, 2002,
NOD.
A. Periodic Monitoring Regulations
The requirement for periodic monitoring set forth in 40 CFR
70.6(a)(3)(i)(B) states that each Title V permit must include periodic
monitoring sufficient to yield reliable data from the relevant time
period that are representative of the source's compliance with the
permit where the applicable requirement does not require periodic
testing or instrumental or noninstrumental monitoring.
TCEQ previously implemented periodic monitoring requirements
through a phased approach which used either a periodic monitoring GOP
or on a case-by-case determination. As a result, all permits did not
have periodic monitoring when they were issued. To address the NOD,
TCEQ has revised 30 TAC 122.132 and 122.142, and repealed 30 TAC
122.600, 122.604, 122.606, 122.608, 122.610, and 122.612 to ensure that
all Title V permits, including all GOPs, contain periodic monitoring
requirements that meet the requirements of 40 CFR 70.6(a)(3)(i)(B) when
issued. TCEQ has repealed the periodic monitoring and CAM GOPs
identified in the NOD and adopted 30 TAC 122.132(e)(13) to require
permit applications to include periodic monitoring requirements
consistent with part 70. TCEQ has amended 30 TAC 122.142(c) and 30 TAC
122.602 to require periodic monitoring which is consistent with part 70
to be included in all Title V permits, including GOPs, when the permit
is issued. The revisions require that periodic monitoring be included
in Title V permits at initial issuance under 30 TAC 122.201, permit
renewals under 30 TAC 122.243, permit reopenings under 30 TAC
122.231(a) and (b), significant revisions under 30 TAC 122.221, and at
minor permit revisions under 30 TAC 122.217. We are
[[Page 16136]]
today approving the revised rules and the State's repeals as a revision
to Texas' Title V program and find that the revisions satisfy Texas'
requirement to correct the program deficiency identified in the January
7, 2002, NOD.
B. Compliance Assurance Regulations
CAM is implemented through 40 CFR part 64 and 40 CFR
70.6(a)(3)(i)(A) and requires Title V permits to include ``all
monitoring and analysis procedures or test methods required under
applicable monitoring and testing requirements, including [40 CFR part]
64 . . .'' 40 CFR 64.5 provides that CAM applies at permit renewal
unless the permit holder has not filed a Title V permit application by
April 20, 1998, or the Title V permit application has not been
determined to be administratively complete by April 20, 1998. CAM also
applies to a Title V permit holder who filed a significant permit
revision under Title V after April 20, 1998.
TCEQ previously implemented CAM through either a CAM GOP or a case-
by-case CAM determination. TCEQ's use of a phased approach did not
ensure that all permits would include CAM required by 40 CFR
70.6(a)(3)(i)(A), according to the schedule in 40 CFR 64.5, because a
facility did not have to apply for a CAM GOP until two years after the
CAM GOP had been issued. To address the NOD, TCEQ has revised the
sections of Chapter 122 relating to application content and permit
content, to ensure that all permits, including GOPs, include CAM
requirements according to the schedule in 40 CFR 64.5. TCEQ amended 30
TAC 122.132(e)(12) to specify that applications for units subject to
CAM must be submitted according to the schedule specified in 40 CFR
64.5. TCEQ amended 30 TAC 122.142(h) to require that permits contain
CAM in accordance with the schedule in 40 CFR 64.5. TCEQ adopted new 30
TAC 122.221(b)(4) to specify that the Executive Director may issue a
significant permit revision if CAM is included for large pollutant-
specific emission units, consistent with 40 CFR 64.5(a)(2). TCEQ also
adopted 30 TAC 122.147, which specifies the terms and conditions that
apply to units subject to CAM requirements, and 30 TAC 122.604 which
address CAM applicability. These new and revised rules require that all
permits issued after the effective date of the rule include CAM
according to the schedule in 40 CFR part 64. We are today approving the
revised, amended, and new rules as a revision to Texas' Title V program
and find that the revisions satisfy Texas' requirement to correct the
program deficiency identified in the January 7, 2002, NOD.
C. Periodic Monitoring and Compliance Assurance Monitoring General
Operating Permits
The content requirements for part 70 permits are set forth in 40
CFR 70.6 and include periodic monitoring and CAM as permit conditions
of all Title V permits. Also, 40 CFR 70.6(d)(1) provides that ``any
general permit shall comply with all requirements applicable to other
part 70 permits.'' TCEQ previously implemented CAM and periodic
monitoring requirements through CAM and periodic monitoring GOPs which
did not meet Title V's definition of, or requirements for, general
permits. The terms and conditions of Texas' periodic monitoring GOPs
and CAM GOPs contained only monitoring requirements, monitoring
options, and related monitoring requirements for certain applicable
requirements and therefore were missing a number of the requirements of
40 CFR 70.6.
To address the NOD, TCEQ amended Chapter 122 to require that all
GOPs include periodic monitoring and CAM, and to eliminate the
monitoring GOP process. To ensure that all permits are issued
containing periodic monitoring and CAM, the TCEQ adopted amendments
requiring periodic monitoring and CAM to be addressed in permit
applications and to be included in issued permits. As discussed above,
revised 30 TAC 122.132(e)(12) specifies that applications for units
subject to CAM must contain elements specified in 40 CFR 64.3,
Monitoring Design Criteria, and 40 CFR 64.4, Submittal Requirements. As
revised, 30 TAC 122.132(e)(13) requires that applications for all
initial permit issuances, renewals, reopenings, and significant and
minor permit revisions include periodic monitoring requirements. TCEQ
amended 30 TAC 122.142(c), which previously specified that periodic
monitoring is only included as required by the Executive Director, and
30 TAC 122.142(h), which previously specified that permits include CAM
as specified in Subchapter H. The amendments state that permits must
contain periodic monitoring and CAM in accordance with the schedule in
40 CFR 64.5. These amendments will require permits to contain all
requirements specified in 40 CFR 70.6. TCEQ eliminated the monitoring
GOP process by adopting the repeal of all sections from Subchapters G
and H that implemented monitoring through the GOP process. In addition
to the previously mentioned periodic monitoring sections that were
repealed, TCEQ repealed all of the CAM requirements contained in
Subchapter H. The CAM applicability section and the section pertaining
to quality improvement plans are adopted under Subchapter G, renamed
Periodic Monitoring and Compliance Assurance Monitoring. TCEQ also
adopted several amendments to Chapter 122 to clarify periodic
monitoring and CAM implementation and to delete any reference to the
monitoring GOP process.
TCEQ also amended the GOP definition at 30 TAC 122.10(11) to
specify that multiple similar sources may be authorized to operate
under a GOP, consistent with the requirement at 40 CFR 70.6(d) that
general permits are limited to numerous similar sources. 30 TAC
122.501(a)(1) requires the Executive Director to issue GOPs with
conditions that provide for compliance with all requirements of Chapter
122. TCEQ also revised 30 TAC 122.161 to make related miscellaneous
changes.
We are today approving the new and revised rules and the repeals as
a revision to Texas' Title V program and find that the revisions
satisfy Texas' requirement to correct the program deficiency identified
in the January 7, 2002, NOD.
D. Statement of Basis Requirement
40 CFR 70.7(a)(5) requires that ``[t]he permitting authority shall
provide a statement that sets forth the legal and factual basis for the
draft permit conditions (including references to the applicable
statutory or regulatory provisions). The permitting authority shall
send this statement to EPA and to any other person who requests it.''
TCEQ regulations previously had no State regulation directly
corresponding to 40 CFR 70.7(a)(5), and no other State regulations were
identified that otherwise gave effect to this requirement. To address
the NOD, TCEQ adopted new 30 TAC 122.201(a)(4), which requires that all
permits issued by the Executive Director must include a statement that
sets forth the legal and factual basis for the conditions of the
permit, including references to the applicable statutory or regulatory
provisions. The Executive Director will send this statement to EPA and
any person who requests it. The statement of basis is required for all
initial issuances, revisions, renewals and reopenings of permits. We
are today approving the new rule as a revision to Texas' Title V
program and find that the revisions satisfy Texas' requirement to
correct the program deficiency identified in the January 7, 2002, NOD.
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E. Definition of Applicable Requirement
Texas' definition of ``applicable requirement'' in 30 TAC 122.10(2)
previously did not include all the applicable provisions of its SIP
that implemented relevant requirements of the Act as required by 40 CFR
70.2. To address the NOD, TCEQ has amended its definition of
``applicable requirement'' in 30 TAC 122.10(2) to include citations to
the relevant requirements of the Act which were identified in the NOD
and others identified after issuance of that notice. The applicable
requirement definition now includes 30 TAC 101.1, which relates to
definitions; 30 TAC 101.3, which relates to circumvention; 30 TAC
101.201, 101.211, 101.221, 101.222, and 101.223, which relate to
emissions events and maintenance, startup, and shutdown (``MSS'')
reporting requirements; 30 TAC 101.8 and 101.9, which relate to
sampling and sampling ports, and 30 TAC 101.10, which relates to
emissions inventory requirements.\1\ We are today approving the revised
rule as a revision to Texas' Title V program and find that, together
with the final SIP approval published elsewhere in this Federal
Register, the revisions satisfy Texas' requirement to correct the
program deficiency identified in the January 7, 2002, NOD.
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\1\ The NOD identified the emissions event and MSS reporting
requirements at 30 TAC 101.6, 101.7, and 101.11 as SIP provisions
that must be included in the definition of ``applicable
requirement.'' TCEQ has revised those rules and recodified them at
30 TAC 101.201, 101.211, 101.221, 101.222, and 101.223 and submitted
the rules to EPA for approval as a SIP revision. Our limited
approval of these rules is published elsewhere in today's Federal
Register. By incorporating the current SIP-approved emissions event
and MSS reporting rules into the definition of ``applicable
requirement,'' Texas has corrected the program deficiency identified
in the January 7, 2002, NOD.
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F. Potential To Emit Registration Requirements
Major sources subject to the requirement to obtain a Title V permit
are those sources whose potential to emit certain air pollutants exceed
threshold emissions levels specified in the Act. A source may legally
avoid the requirement to obtain a Title V permit by limiting its
potential to emit to levels below the applicable major source
threshold. This can be done by taking a federally enforceable limit on
the PTE, which ensures that the conditions placed on the emissions to
limit a source's PTE are enforceable as both a legal and practical
matter, or through PTE limits that are legally and practically
enforceable by a State or local air pollution control agency.\2\ Those
permit conditions, if violated, are subject to enforcement by EPA, the
State or local agency, or by citizens.
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\2\ Seitz and Van Heuvelen, Release of Interim Policy on Federal
Enforceability of Limitations on Potential to Emit (January 22,
1996); Stein, Guidance on Enforceability Requirements for Limiting
Potential to Emit through SIP and section 112 Rules and General
Permits (January 25, 1995).
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Texas' Title V regulations previously allowed a facility to keep
all documentation of its PTE limitation registrations on site without
providing those documents to the State or to EPA; therefore, the PTE
limitations were not practically enforceable. Also, the limitations
were not federally enforceable because the Texas regulations at issue
were not part of the Texas SIP. TCEQ has revised 30 TAC 122.122, and,
though not required by the NOD, also revised similar PTE registration
rules in its preconstruction review program (30 TAC 106.6, 116.115,
116.611). These changes require registrations to be submitted to the
Executive Director, to the appropriate Commission regional office, and
all local air pollution control agencies, and a copy shall be
maintained on-site of the facility. TCEQ is also required to make the
records available to the public upon request. Thus, these changes cure
the previous deficiency regarding practicable enforceability caused by
the lack of notice to the State. TCEQ also submitted these changes for
approval as a SIP revision. We approved the amended 30 TAC 106.6,
116.115, 116.611, and 122.122 as revisions to the Texas SIP on November
14, 2003 (68 FR 64543). Our final SIP approval of these changes made
the PTE limits in the certified registrations legally enforceable by
EPA. We are also today approving the revised rules in 30 TAC 122 as a
revision to Texas' Title V program and find that, together with the
final SIP approval which was published November 14, 2003, the revisions
satisfy Texas' requirement to correct the program deficiency identified
in the January 7, 2002, NOD.
III. What Other Program Changes Are We Approving?
TCEQ also included in the December 9, 2002, submittal other
regulatory revisions that strengthen Texas' program. Today's action
also approves these revisions to the Texas Title V Operating Permit
Program submitted on December 9, 2002, which relate to credible
evidence and concurrent review.
A. Credible Evidence
TCEQ has revised its definition of ``deviation'' at 30 TAC
122.10(5) and 122.132(e)(4)(B) to require sources to consider ``any
credible evidence or information'' to certify compliance. We are today
approving this revision as consistent with part 70 and EPA's credible
evidence rule, 62 FR 8314 (February 24, 1997).
B. Concurrent Review
TCEQ has revised its regulations concerning EPA review of Title V
permits at 30 TAC 122.350(B)(1) to provide that EPA's review period may
not run concurrently with the State public review period if any
comments are submitted or if a public hearing is requested. We are
today approving this revision as consistent with section 505(b) of the
Act and 40 CFR 70.8.
IV. What Is Our Response to Comments Received in Response to Our
Proposed Rulemaking?
On July 9, 2003 (68 FR 40871), we proposed to approve the revisions
submitted December 9, 2002, as revisions to Texas Title V operating
permits program. In the proposal, we requested that the public submit
comments no later than August 8, 2003. We received one comment letter
submitted jointly by Public Citizen, Inc., SEED Coalition, Galveston-
Houston Association for Smog Prevention, Sierra Club and Hilton Kelley
with four comments. Our response to those comments follows:
Comment 1. Lack of Monitoring in General Operating Permits (GOPs).
The commenters provided the following comments relating to lack of
monitoring in GOPs that are applicable to certain categories of
sources.
Comment 1A. Commenters stated that Texas has not acted to revise
its existing GOPs which fail to include applicable requirements and
fail to include required monitoring for those requirements. Commenters
also note that Texas issues GOPs to facilities that have site-specific
requirements that are not included in the GOP, such as minor or major
new source review (NSR) or prevention of significant deterioration
(PSD) permit terms. Therefore, those applicable requirements cannot be
reviewed by EPA or the public to ensure that monitoring sufficient to
assure compliance with those permit terms is included in the Title V
operating permit.
Response 1A. This comment raises an issue beyond the scope of the
deficiency identified in the NOD. EPA identified the deficiency
regarding periodic
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monitoring and compliance assurance monitoring as a deficiency in the
regulations. EPA stated: ``Texas's periodic monitoring regulations do
not meet the requirements of part 70 and must be revised,'' citing
problems with the approach of implementing the requirement through a
monitoring GOP and use of a phased approach which could delay
implementation of periodic monitoring after issuance of a Title V
permit. 67 FR at 733. We then concluded that the State ``must revise
its regulations to ensure that all Title V permits, including all GOPs,
when issued, contain periodic monitoring that meets the requirements of
70.6(a)(3)(i)(B).'' Id. (emphasis added). EPA made parallel findings
for the State's CAM regulations. 67 FR at 734 (``The TNRCC \3\
regulations do not meet the requirements of the Act and part 70, and
TNRCC must revise its regulations to ensure that all Title V permits,
including all GOPs, will have the CAM required by [40] CFR
70.6(a)(3)(i)(A), according to the schedule in 40 CFR 64.5''). EPA also
provided instructions to the State on proper implementation of the
periodic monitoring and CAM requirements in individual Title V
permits.\4\ However, these instructions did not render the monitoring
provisions of all Title V permits in the State subject to the NOD. The
NOD is clear on its face that only the monitoring regulations were the
subject of the NOD and thus were required to be revised.
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\3\ On September 1, 2002, the Texas Natural Resource Commission
(TNRCC) changed its name to the Texas Commission on Environmental
Quality.
\4\ To the extent that this portion of the NOD suggested the
implementation of enhanced monitoring beyond that required by
70.6(a)(3)(i)(B) or beyond monitoring required by ``applicable
requirements'' under the Act (as described in 69 FR 3202 (January
22, 2004)), this part of the NOD has been superceded by the January
22, 2004, action.
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Nonetheless, EPA notes that it is exercising its oversight
authority to ensure that the existing GOPs are corrected. Thus, EPA
obtained a commitment and time line from the TCEQ Executive Director in
December 2003 to revise all existing GOPs to include periodic
monitoring and compliance assurance monitoring. Under this commitment
and time line, TCEQ will revise all existing GOPs to ensure the
applicability requirements for existing GOPs exclude sources with site-
specific requirements. On February 27, 2004 Texas revised the Bulk Fuel
Terminal GOP 515 and the Site-Wide GOP 516 to require all affected
sources to submit an application for a site operating permit (``SOP'')
by September 1, 2004. Facilities subject to these GOPs generally have
site-specific applicable requirements. Once all SOPs are issued, the
GOPs No. 515 and 516 will be rescinded. The Oil and Gas GOPs 511-514
and Municipal Solid Waste Landfill GOP 517 will also be revised in 2005
to include the specific permits by rule and standard permits that apply
to those facilities and to exclude sources with site-specific
requirements from the applicability criteria for those GOPs.
Comment 1B. Commenters also requested that their comments and
attachments be treated as a Petition to Reopen all existing GOPs
pursuant to 40 CFR 70.7(g) to clarify that no source with case or
permit-specific applicable requirements may be covered by a GOP if EPA
failed to resolve this issue during our review of changes to the Texas
operating permits program in response to the NOD.
Response 1B. In light of the State's commitment to make the
required changes to its GOPs and the State's actions to initiate those
changes, EPA believes there is no need to reopen the existing GOPs as
commenter requests. EPA has reviewed and provided comments on the first
revision to the Bulk Fuel Terminal and Site-Wide GOPs. Also, commenters
have the opportunity to review and comment on the draft GOP permits
under 40 CFR 70.7(h), and if necessary, petition EPA to object to a
proposed permit under 40 CFR 70.8(a) and (c).
Comment 2. Statement of Basis. Commenters state that the current
statements of basis being drafted by TCEQ do not provide the public
with an understanding of the decision-making that went into development
of the Title V permit. Because Texas is still not implementing the
statement of basis requirement as specified in EPA's rules and
guidance, this deficiency has not been corrected.
Response 2. By adopting regulatory language which tracks the
requirement in 40 CFR 70.7(a)(5), Texas has satisfied the requirement
to revise its regulations consistent with 70.7(a)(5). Whether any
individual Title V permit contains an inadequate statement of basis is
beyond the scope of the deficiency identified in the NOD. EPA intends
to address concerns about the adequacy of individual statements of
basis through the permit review process. This process includes
opportunity for the public to review and comment on the draft permit
under 40 CFR 70.7(h), EPA's review, and, if necessary, EPA objection to
a proposed permit under 40 CFR 70.8(a) and (c), affected state review
under 40 CFR 70.7(b), and the public petition process under 40 CFR
70.8(d).
Comment 3. PTE Limits in Registrations. Commenters submitted the
following comments related to PTE registrations:
Comment 3A. The commenters believe that the rules should require
that registrations used to limit PTE below any federal limit, including
nonattainment NSR and PSD, be submitted to the agency. As EPA noted in
the NOD, if PTE limits are merely kept on site, they are not
practically enforceable. Because NSR and PSD are applicable
requirements under Title V, Title V must assure compliance with these
requirements.
Response to Comment 3A. Although the NOD cited only the deficiency
in the PTE registration requirements in Chapter 122, the State made
conforming changes in its preconstruction review provisions which
address the commenter's concerns. The regulations require such PTE
registrations to be incorporated into the Title V permit as applicable
requirements. The PTE registrations under 30 TAC 106.6 and 116.611 are
approved as part of the SIP and are applicable requirements under the
part 70 \5\. As applicable requirements, these PTE registrations must
be submitted to the reviewing agency (the TCEQ) for incorporation into
the source's Title V operating permit. In order to be incorporated into
the Title V permit, the owner or operator must provide the relevant
information concerning the registration to the permitting authority for
incorporation into the Title V permit. Such information must be subject
to public participation and review by EPA under 40 CFR 70.7(h) and
70.8.
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\5\ 30 TAC 106.6 and 116.611 were approved as revisions to the
SIP on November 14, 2003 (68 FR 64543). SIP provisions are
applicable requirements under Title V under 40 CFR 70.2 (paragraph
(1) under definition of ``applicable requirement'') and under 30 TAC
122.10(2)(F), which include the requirements of Chapter 106--Permits
by Rule and Chapter 116--Control of Air Pollution by Permits for New
Construction or Modification.
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For permits by rule, relevant information that must be incorporated
includes all representations with regard to construction plans,
operating procedures, and maximum emission rates, which become
conditions upon which the facility permitted by rule shall be
constructed and operated. See 30 TAC 106.6(b). This includes
certification of maximum emission rates which establish federally
enforceable allowable emission rates which are below the emission
limitations in 30 TAC 106.4.
For standard permits, relevant information that must be
incorporated include the basis of emission rates,
[[Page 16139]]
quantification of all emission increases and decreases associated with
the project being registered, sufficient information as may be
necessary to demonstrate that the project will comply with 30 TAC
116.610(b) \6\, information that describes efforts being taken to
minimize any collateral emissions increases that will result from the
project, a description of the project and related process, and a
description of any equipment being installed. See 30 TAC 116.611(a).
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\6\ 30 TAC 116.610(b) provides that ``[a]ny project * * * which
constitutes a new major source, or major modification under the new
source review requirements of the FCAA, Part C (Prevention of
Significant Deterioration Review) or Part D (Nonattainment Review)
and regulations promulgated thereunder is subject to the
requirements of 30 TAC 116.110 of this title (relating to
Applicability) rather than this subchapter.''
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Thus, the registrations which limit a source's PTE to below a
threshold which triggers applicability of PSD or NSR under 30 TAC 106.6
and 116.611 are applicable requirements under Title V and must be
documented in each Title V permit as described above.
Comment 3B. The rules should include a short-term limit on
emissions so that compliance can be determined in a timely manner (not
a tons per year limit). The rules should include production or
operational limits (not just emission limits) and specific monitoring
and reporting to demonstrate compliance with the limit. The general
requirement to keep records necessary to demonstrate compliance is not
practically enforceable because it is too vague.
Response to Comment 3B. This comment raises issues beyond the scope
of the deficiency identified in the NOD. The NOD identified the lack of
practicably enforceable PTE limits as being caused by the lack of
notice of PTE registrations to the State. We stated: ``One of the
requirements for practicable enforceability is notice to the State.
Under 30 TAC 122.122, there is no requirement that the State be
notified and the registrations are kept on site. Therefore, neither the
public, TNRCC, or EPA know what the PTE limit is without going to the
site. A facility could change its PTE limit several times without the
public or TNRCC knowing about the change. Therefore, these limitations
are not practically enforceable, and TNRCC must revise this regulation
to make the regulation practically enforceable.'' Thus, the State has
cured the deficiency by providing that PTE registrations must be
submitted to the State. Nevertheless, EPA notes that the rules under
these citations require that a source be able to demonstrate compliance
with a certification in a manner that is practically enforceable. This
includes information that enables the enforcement authority to verify
at any time that the source is in compliance with the terms of its
registration. TCEQ rules require registrations to ``include
documentation of basis of emission rates.'' See 30 TAC 122.122(c). Such
documentation may include appropriate restrictions on operation and/or
production which the source relies upon to limit its PTE below major
source threshold. Similar requirements are also in 30 TAC 106.6(d) (for
permits by rule) and 30 TAC 116.611(a)(1)-(6) (for standard
permits).The monitoring and reporting are generally required in 30 TAC
106.8 (for permits by rule), 30 TAC 116.115(8) (for standard permits),
and 30 TAC 122.122(f) (for Title V PTE registrations). Furthermore, a
specific permit by rule, standard permit, or registration will also
contain additional requirements for monitoring and recordkeeping which
the source is required to maintain and which is sufficient to limit the
source's PTE.
In summary, the regulations which pertain to the registration of
emissions in 30 TAC 106.6, 116.115, 116.611, and 122.122 were approved
on November 14, 2003 (68 FR 64543).\7\ The regulations allow a source
limit its PTE of a pollutant below the level of a major source defined
in the Act. This includes regulations which Texas revised to allow an
owner or operator of a source to register and certify restrictions and
limitations that the owner or operator will meet to maintain its PTE
below the major source threshold. The changes require the owner or
operator to submit the certified registrations to the Executive
Director of TCEQ, the appropriate TCEQ regional office, and all local
air pollution control agencies having jurisdiction over the site. The
changes to 30 TAC 122.122 satisfactorily address the NOD by requiring
that PTE registrations are submitted to the State.
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\7\ We note that we proposed approval of the PTE registration
requirements as SIP revisions, and received no comments. See 68 FR
40865 (July 9, 2003); 68 FR 64543 (November 14, 2003).
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Comment 4. ``Applicable requirement'' Definition. Commenters
believe that Texas' applicable requirement definition at 30 TAC
122.10(2) does not incorporate all of the relevant provisions of the
Texas SIP because it defines the term by reference to specific State
regulations, instead of a general reference to the ``relevant
requirements of the SIP.'' There is not a one-to-one correlation
between the State's regulation and the SIP provisions. Thus, some SIP
provisions that implement the CAA requirements are excluded from the
Texas definition of ``applicable requirement.'' Commenters cite as an
example the State's newly adopted regulation for the definition of
reportable quantities at 30 TAC 101.1(84)(p) and (q) rather than the
SIP-approved rule. Texas submitted its new definition of reportable
quantities to EPA for approval as a SIP revision on September 12, 2002.
Commenters also disagree with EPA's decision in the NOD to confine
applicable requirements to those requirements that implement the
relevant requirements of the Act, on the ground that it is at odds with
Title V, citing 42 U.S.C. 7661a(b)(5)(C). They state that SIPs may
include emission limits that transcend the requirements of the Act.
Response 4. EPA disagrees with the commenter. As a threshold
matter, EPA reasonably determined in the NOD that ``there is no
requirement that the State adopt a definition to generally state that
any current provision of the SIP is an applicable requirement. A State
may cite to specific provisions of its administrative code. * * *'' We
described the SIP provisions that must be included in the definition of
``applicable requirement'' as those that ``implement the relevant
requirements of the Act,'' the standard set forth in 40 CFR 70.2. It is
inappropriate to revisit those determinations here, as the time for a
challenge to 30 TAC 70.2 or the NOD has expired [and the State has
reasonably relied on the standards set forth in 30 TAC 70.2 and the NOD
in undertaking its corrective action].
Furthermore, EPA has reviewed the rule cited by commenters (30 TAC
101.1(84)(p) and (q)) and found it to be approvable. The proposed
approval was published in the Federal Register on March 2, 2004 (41 FR
9776). We are today granting limited approval of the SIP revision
elsewhere in this Federal Register which ensures that Texas' definition
of ``applicable requirement'' is complete with respect to the SIP-
approved emissions event and MSS reporting rules. Because Texas has
chosen to adopt a definition of applicable requirement that lists SIP
citations rather than the general definition as set forth in 40 CFR
70.2, the State will be required to revise its Title V program in the
future as it adopts an applicable requirement elsewhere in the SIP that
is not listed in the definition of applicable requirement in its Title
V regulations.
[[Page 16140]]
What Is Our Final Action?
We are approving revisions to Texas' regulations for periodic
monitoring regulations, CAM regulations, periodic monitoring and CAM
GOPs, statement of basis requirement, applicable requirement
definition, and PTE registration regulations as revisions to Texas'
Title V air operating permits program. We are also approving revisions
to the Texas Title V operating permits program submitted on December 9,
2002, which relate to credible evidence and concurrent review. The rule
revisions submitted by Texas, as stated above, are in response to the
NOD. Based upon our limited approval of the revisions to Chapter 101
elsewhere in today's Federal Register, our approval today of the
December 9, 2002 revisions to the Texas operating permits program, and
our November 14, 2003, final SIP approval of potential to emit
requirements, Texas has satisfactorily addressed the deficiencies
identified by EPA in the January 7, 2002 NOD. This final action also
removes any resulting consequences under the Act, including sanctions,
with respect to the January 7, 2002 NOD.
This approval does not extend to ``Indian Country'', as defined in
18 U.S.C. 1151. In its operating permits program submittal, Texas does
not assert jurisdiction over Indian lands or reservations. To date, no
tribal government in Texas has authority to administer an independent
Title V program in the State. On February 12, 1998, EPA promulgated
regulations under which Indian tribes could apply and be approved by
EPA to implement a Title V operating permit program (40 CFR part 49).
For those Indian tribes that do not seek to conduct a Title V operating
permit program, EPA has promulgated regulations (40 CFR part 71)
governing the issuance of Federal operating permits in Indian country.
64 FR 8247, February 19, 1999.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget (OMB). Under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.), the Administrator certifies that this rule
will not have a significant economic impact on a substantial number of
small entities because it merely approves State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. This rule does not contain any unfunded mandates
and does not significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4)
because it approves pre-existing requirements under State law and does
not impose any additional enforceable duties beyond that required by
State law. This rule also does not have tribal implications because it
will not have a substantial direct effect on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes, as specified by Executive Order
13175, ``Consultation and Coordination with Indian Tribal Governments''
(65 FR 67249, November 9, 2000). This rule also does not have
Federalism implications because it will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, ``Federalism'' (64 FR 43255, August 10,
1999). The action merely approves existing requirements under State
law, and does not alter the relationship or the distribution of power
and responsibilities between the State and the Federal government
established in the Clean Air Act. This rule also is not subject to
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) or
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355) (May 22, 2001), because it is not a significant regulatory
action under Executive Order 12866. This action will not impose any
collection of information subject to the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., other than those previously
approved and assigned OMB control number 2060-0243. For additional
information concerning these requirements, see 40 CFR part 70. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 15 U.S.C. 272 note, requires Federal agencies to
use technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impracticable. In
reviewing State Operating Permit Programs submitted pursuant to Title V
of the Clean Air Act, EPA will approve such regulations provided that
they meet the requirements of the Clean Air Act and EPA's regulations
codified at 40 CFR part 70. In this context, in the absence of a prior
existing requirement for the State to use voluntary consensus standards
(VCS), EPA has no authority to disapprove such regulations for failure
to use VCS. It would, thus, be inconsistent with applicable law for
EPA, when it reviews such regulations, to use VCS in place of a State
regulation that otherwise satisfies the provisions of the Clean Air
Act. Thus, the requirements of section 12(d) of the NTTAA do not apply.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 31, 2005. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
[[Page 16141]]
Dated: March 18, 2005.
Richard E. Greene,
Regional Administrator, Region 6.
0
For the reasons set out in the preamble, appendix A of part 70 of Title
40 of the Code of Federal Regulations is amended as follows:
PART 70--[AMENDED]
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Appendix A to part 70 is amended under the entry for Texas by adding
paragraph (c) to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Texas
(c) The Texas Commission on Environmental Quality: program
revisions submitted on December 9, 2002, and supplementary
information submitted on December 10, 2003, effective on April 29,
2005. The rule amendments contained in the submissions adequately
addressed the deficiencies identified in the notice of deficiency
published on January 7, 2002.
[FR Doc. 05-6314 Filed 3-29-05; 8:45 am]
BILLING CODE 6560-50-P