[Federal Register Volume 66, Number 235 (Thursday, December 6, 2001)]
[Rules and Regulations]
[Pages 63318-63331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30270]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[TX-002; FRL-7113-6]


Clean Air Act Full Approval of Operating Permits Program; State 
of Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is promulgating full approval of the Operating Permit 
Program submitted by the Texas Natural Resource Conservation Commission 
(TNRCC or Commission) based on the revisions submitted on June 12, 
1998, and June 1, 2001, which satisfactorily address the program 
deficiencies identified in EPA's June 7, 1995, and June 25, 1996, 
Interim Approval (IA) Rulemakings. See 60 FR 30037 and 61 FR 32693. The 
TNRCC revised its program to satisfy the conditions for full approval, 
and EPA proposed full approval in the Federal Register on October 11, 
2001 (66 FR 51895). This notice only takes action on issues related to 
correcting interim approval issues. We will address other issues at a 
later date as described in sections V.C and V.D of this document.

EFFECTIVE DATE: This rule is effective on November 30, 2001.

ADDRESSES: Copies of documents relevant to this action are available 
inspection during normal business hours at the following locations. 
Anyone wanting to examine these documents should make an appointment 
with the appropriate office at least two days in advance.

Environmental Protection Agency, Region 6, Air Permitting Section (6PD-
R), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air 
Permitting Section (6PD-R), EPA, Region 6, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733, telephone (214) 665-7212 or e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. What is the Operating Permit Program?
II. What Is Being Addressed in This Document?
III. What Is Our Response to Comments?
IV. Did Texas Submit Other Title V Program Revisions?
V. What is Involved in This Final Action?
VI. What is the Effective Date of EPA's Full Approval of the Texas 
Title V Program?
VII. Administrative Requirements

I. What Is the Operating Permit Program?

    Title V of the Clean Air Act (the ``Act'') Amendments of 1990 
required all States to develop Operating Permit Programs that meet 
certain Federal criteria. In implementing the title V Operating Permit 
Programs, permitting authorities require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the Act. The focus of the title V Operating Permit Program is to 
facilitate compliance and improve enforcement by issuing each source a 
permit that consolidates all of the applicable requirements of the Act 
into a federally enforceable document. This consolidation of all 
applicable requirements enables the source, the public, and the 
permitting authority to readily determine which of the Act's 
requirements apply and how compliance with those requirements is 
determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution as defined by title V and 
certain other sources specified in the Act or in EPA's implementing 
regulations. This includes all sources regulated under the acid rain 
program, regardless of size, which must obtain operating permits. 
Examples of major sources include those that have the potential to emit 
100 tons per year (tpy) or more of volatile organic compounds (VOC), 
carbon monoxide (CO), lead, sulfur dioxide, nitrogen oxides ( 
NOX), or particulate matter (PM-10); those that emit 10 tpy 
of any single hazardous air pollutant (HAP) specifically listed under 
the Act; or those that emit 25 tpy or more of a combination of HAP. In 
areas that are not meeting the National Ambient Air Quality Standards 
for ozone, CO, or PM-10, major sources are defined by the gravity of 
the nonattainment classification. For example, in ozone nonattainment 
areas classified as ``serious,'' major sources include those with the 
potential of emitting 50 tpy or more of VOC or NOX.

II. What Is Being Addressed in This Document?

    Where a title V Operating Permit Program substantially, but not 
fully, met the criteria outlined in the implementing regulations 
codified at 40 CFR part 70, we granted IA contingent on the State 
revising its program to correct the deficiencies. Because Texas's 
Operating Permit Program substantially, but not fully, met the 
requirements of part 70, we granted a source category-limited IA to the 
program in a rulemaking published on June 25, 1996 (61 FR 32693). The 
IA notice stipulated numerous conditions that had to be met in order 
for the State's program to receive full approval. Texas submitted 
revisions to its interim approved Operating Permit Program dated June 
12, 1998, and June 1, 2001. Texas also submitted supplementary 
information to EPA on August 22, 2001, August 23, 2001, and September 
20, 2001. On November 5, 2001, EPA received a Statement by the Attorney 
General of Texas stating that the laws of Texas provide adequate 
authority to carry out all aspects of the program.
    On October 11, 2001 (66 FR 51895), we proposed full approval of 
Texas's title V Operating Permits Program based on our determination 
that Texas had corrected the IA deficiencies identified in our June 7, 
1995 and June 25, 1996 actions. On November 13, 2001, we received 
comments on our proposal. Our response to the comments are in section 
III of this action.

[[Page 63319]]

    In today's action, we are promulgating final full approval of the 
Texas Operating Permits Program based upon our determination that Texas 
has corrected the deficiencies identified in the IA rulemaking. We are 
approving revisions which the TNRCC adopted October 15, 1997 (submitted 
June 12, 1998) and May 9, 2001 (submitted June 1, 2001). We will take 
appropriate action on the remaining provisions of the June 1, 2001, 
submittal in a separate Federal Register action. We are also not taking 
action on issues unrelated to correcting IA issues. We will address 
these issues at a later date as described in sections V.C and V.D of 
this notice.

III. What Is Our Response to Comments?

    On November 13, 2001, we received two comment letters on the 
proposed full approval of the Texas program. We received comments from 
Public Citizen, on behalf of the Public Citizen's Texas Office, Lone 
Star Chapter of the Sierra Club, Environmental Defense, Citizens for 
Health Growth, Galveston Houston Association for Smog Prevention, 
Neighbors for Neighbors, Quality of Life El Paso, Clean Water Action, 
Texas Center for Policy Studies, and the law firm of Lowerre & Kelly 
(collectively referred to as Public Citizen). We also received comments 
from the law firm of Baker Botts, L.L.P., on behalf of the Texas 
Industry Project.
    Below is our response to the comments received on the proposed full 
approval of the Texas Operating Permits program. In this notice, we are 
only addressing the comments which relate to our determination that 
Texas has corrected the IA deficiencies in its title V program. We also 
received comments which relate to (and in many cases are the same as) 
comments the we received from citizens in response to our Federal 
Register Notice published December 11, 2000. Because these comments are 
not related to the correction of IA deficiencies, they will be 
addressed in a separate Federal Register action as described in section 
V.C of this preamble. In addition, we also received comments not 
related to the correction of IA deficiencies and which were not raised 
in response to the December 11, 2000 Federal Register notice. These 
issues will be handled as described in section V.D.

A. Comment A--EPA Failed To Determine Whether Texas's Current Operating 
Permits Program Complies With Part 70 and Title V

    Public Citizen states that since receiving IA, Texas has completely 
revised its operating permits program. However, EPA has never reviewed 
these changes to determine whether the interim program that Texas has 
been running substantially complies with the requirements of part 70. 
Public Citizen contends that EPA is proposing to grant Texas full 
approval of its federal operating program without ever analyzing 
whether or not Texas current program actually meets the minimum 
requirements of part 70. Public Citizen does not agree with EPA's 
position to only look narrowly at whether the problems in the 1996 
program have been remedied.
    Public Citizen believes that, in order to be granted full approval, 
EPA must evaluate whether Texas's entire program meets the requirements 
of part 70 and title V and that EPA's notice of proposed approval 
indicates that such an evaluation has not been undertaken. 66 FR 51895, 
51896 (October 11, 2001). Public Citizen does not believe that EPA can 
turn a blind eye to elements of the program which were not raised as 
interim deficiency issues and which do not comply with part 70. Public 
Citizen realizes that EPA is proposing to look at the additional 
elements of the current program after full approval is granted; 
however, they believe that EPA has a duty to ensure that Texas's 
program meets statutory and regulatory requirements before approval can 
be granted. For the reasons noted below, Public citizen believes that 
Texas's program does not comply with part 70 and that full approval 
should be denied.
EPA Response to Comment A
    We are aware that issues other than those listed in the June 25, 
1996, IA exist in the Texas program and that the Texas regulations have 
undergone changes since 1996 that EPA has not approved. We agree that 
these issues must be addressed and that Texas must submit all changes 
made since 1996 to EPA for review and approval. For the reasons 
discussed below, however, we disagree that limiting our review to 
correction of IA deficiencies prohibits us from granting Texas full 
program approval at this time.
    In 1990, Congress amended the Clean Air Act, 42 U.S.C. 7401 et 
seq.), by adding title V, 42 U.S.C. 7661 to 7661f, which requires 
certain air pollutant emitting facilities, including ``major 
source[s]'' and ``affected source[s],'' to obtain and comply with 
operating permits. See 42 U.S.C. 7661a(a). Title V is intended to be 
administered by local, state or interstate air pollution control 
agencies, through permitting programs that have been approved by EPA. 
See 42 U.S.C. 7661a(a). The EPA is charged with overseeing the State's 
efforts to implement an approved program, including reviewing proposed 
permits and vetoing improper permits. See 42 U.S.C. 7661a(i) and 
7661d(b). Accordingly, title V of the Act provides a framework for the 
development, submission and approval of state operating permit 
programs. Following the development and submission of a state program, 
the Act provides two different approval options that EPA may utilize in 
acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to 
section 502(d), EPA ``may approve a program to the extent that the 
program meets the requirements of the Act * * *'' The EPA may act on 
such program submittals by approving or disapproving, in whole or in 
part, the state program. An alternative option for acting on state 
programs is provided by the IA provision of section 502(g). This 
section states: ``[i]f a program * * * substantially meets the 
requirements of this title, but is not fully approvable, the 
Administrator may by rule grant the program interim approval.'' This 
provision provides EPA with the authority to act on State programs that 
substantially, but do not fully, meet the requirements of title V and 
part 70. Only those program submittals that meet the requirements of 
eleven key program areas are eligible to receive IA. See 40 CFR 
70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to ``specify 
the changes that must be made before the program can receive full 
approval.'' 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit 
directive encompasses another, implicit one: once a state corrects the 
specified deficiencies then it will be eligible for full program 
approval. The EPA believes this is so even if deficiencies have been 
identified sometime after final IA, either because the deficiencies 
arose after EPA granted IA or, if the deficiencies existed at that 
time, EPA failed to identify them as such in proposing to grant IA.
    Thus, an apparent tension exists between these two statutory 
provisions. Standing alone, section 502(d) appears to prevent EPA from 
granting a state operating permit program full approval until the state 
has corrected all deficiencies in its program no matter how 
insignificant, and without consideration as to when such deficiency was 
identified. Alternatively, section 502(g) appears to require that EPA 
grant a state program full approval if the state has corrected those 
issues that the EPA identified in the final IA. The central question, 
therefore, is whether Texas by virtue of correcting the deficiencies 
identified in the final IA is eligible at this time for full

[[Page 63320]]

approval, or whether Texas must also correct any new or recently 
identified deficiencies as a prerequisite to receiving full program 
approval.
    According to settled principles of statutory construction, 
statutory provisions should be interpreted so that they are consistent 
with one another. See Citizens to Save Spencer County v. EPA, 600 F.2d 
844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent 
statutory provisions, it must give maximum possible effect to all of 
the provisions, while remaining within the bounds of its statutory 
authority. Id. at 870-71. Whenever possible, the agency's 
interpretation should not render any of the provisions null or void. 
Id. Courts have recognized that agencies are often delegated the 
responsibility to interpret ambiguous statutory terms in such a 
fashion. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always 
possible, however, and furthermore should not be sought if it requires 
distorting the language in a fashion never imagined by Congress. 
Citizens to Save Spencer County, 600 F.2d at 870.
    In this situation, in order to give effect to the principles 
embodied in title V that major stationary sources of air pollution be 
required to have an operating permit that conforms to certain statutory 
and regulatory requirements, and that operating permit programs be 
administered and enforced by state permitting authorities, the 
appropriate and more cohesive reading of the statute recognizes EPA's 
authority to grant Texas full approval in this situation while working 
simultaneously with the State, in its oversight capacity, on any 
additional problems that were identified. To conclude otherwise would 
disrupt the current administration of the state program and cause 
further delay in Texas's ability to issue operating permits to major 
stationary sources. A smooth transition from IA to full approval is in 
the best interest of the public and the regulated community and best 
reconciles the statutory directives of title V.
    Furthermore, requiring the State to fix any deficiencies that may 
exist and that have been identified in the past year to receive full 
approval runs counter to the established regulatory process that is 
already in place to deal with newly identified program deficiencies. 
Section 502(i)(4) of the Act and 40 CFR 70.4(i) and 70.10 provides EPA 
with the authority to issue notices of deficiency (``NODs'') whenever 
EPA makes a determination that a permitting authority is not adequately 
administering or enforcing a part 70 program, or that the State's 
permit program is inadequate in any other way. Consistent with these 
provisions, in its NOD, EPA will specify a reasonable time frame for 
the permitting authority to correct any identified deficiencies. The 
Texas title V IA expires on December 1, 2001. This deadline does not 
provide adequate time for the State to correct any deficiencies that 
may be identified at this time prior to the expiration of IA. Allowing 
the State's program to expire because of issues identified as recently 
as March 2001 will cause disruption and further delay in the issuance 
of permits to major stationary sources in Texas. As explained above, we 
do not believe that title V requires such a result. Rather, the 
appropriate mechanism for dealing with additional deficiencies that are 
identified sometime after a program received IA but prior to being 
granted full approval is a notice of program deficiency or 
administrative deficiency as discussed herein. This process provides 
the State an adequate amount of time after such findings to implement 
any necessary changes without unduly disrupting the entire state 
operating permit program. As a result, addressing newly identified 
problems separately from the full approval process will not cause these 
issues to go unaddressed. To the contrary, Texas will be placed on 
notice that it must promptly correct the non-IA deficiencies within a 
specified time period or face the imposition of sanctions and 
disapproval of its program. Furthermore, because Texas is also required 
to submit for review and approval all changes that it has made to its 
title V program since we granted IA, EPA will also disapprove any 
program revisions that are inconsistent with part 70 through formal 
notice and comment rulemaking.

B. Comment B--Lack of Sufficient Attorney General (AG) Statement

    Public Citizen contends that in the preamble to Texas's 2001 
revisions to its program, Texas stated that it would provide an AG 
Opinion with its submittal package for full approval that would address 
such issues as Texas Audit Privilege Act.\1\ Likewise, in Part I of 
Texas's Submittal Package, Texas stated that ``a legal opinion from the 
Office of the AG (AG) will be forwarded as a supplement to this 
submittal after the end of the 2001 Texas Legislative Session.'' Public 
Citizen also asserts that Texas had not, however, submitted an AG 
statement at the time EPA proposed full approval of Texas's program. 
Public Citizen contends that, in fact, Texas did not file an AG 
statement with EPA until November 8, 2001, five days before the end of 
the public comment period on EPA's proposed full approval, and that 
there was no notice to the public that such statement was available for 
comment.
---------------------------------------------------------------------------

    \1\ The EPA is unaware of such a statement in the preamble to 
Texas's Chapter 122 revisions. The TNRCC, however, did agree to 
address amnesty provisions of SB 766 in an AG statement. 26 TexReg 
3747, 3758-59 (May 25, 2001).
---------------------------------------------------------------------------

    Because an AG statement was not produced prior to EPA's proposed 
full approval of Texas's program, Public Citizen claims that EPA cannot 
possibly have had sufficient information to determine that Texas's 
program complied with the requirements of part 70. Likewise, Public 
Citizen contends that because an AG statement was not provided until 
five days before the close of the comment period, the public has not 
had an adequate opportunity to comment on the opinion.
    Public Citizen also asserts that there were issues that should have 
been addressed in the AG statement, such as the Sunset legislation 
(House Bill 2912), as well as other statutes or regulations adopted by 
Texas since IA.
    Furthermore, because the statement ``incorporates'' earlier AG 
statements, Public Citizen contends that it is impossible to determine 
exactly what is included in this certification and the statement is so 
vague that it is difficult to determine what authority is being 
certified. For example, Public Citizen refers to Section IV of the AG 
Statement which states that state law provides authority to incorporate 
monitoring consistent with 40 CFR 70.6.\2\ It goes on, however, to 
state that Texas has authority to incorporate monitoring consistent 
with 40 CFR 70.6(a)(3)(i)(B). Public Citizen asserts that the Texas's 
program is flawed in that it does not include monitoring ``sufficient 
to assure compliance'' as required by 40 CFR 70.6(c)(1), and that the 
AG statement does not even address this issue.
---------------------------------------------------------------------------

    \2\ This provision is actually in Section VI of the AG 
statement.
---------------------------------------------------------------------------

    Likewise, Public Citizen contends that the statement's analysis of 
SB766 is flawed. First, Public Citizen contends that the AG argues that 
Section 12 of SB766 does not impact the enforceability of title V 
permits because it only excuses modifications which occurred before 
March 1, 1999 and Texas's operating permits program did not include 
minor new source review conditions until 2001. Public Citizen contends 
that what the AG fails to state is that each day of operation after 
modification without the required permit is an ongoing violation.

[[Page 63321]]

Therefore, Public Citizen contends that facilities covered by title V 
may be in continuous violation for modifications made prior to March 1, 
1999. Public citizen also argues that the statement argues that Section 
12 does not excuse violations of PSD or Nonattainment NSR requirements. 
Public Citizen contends that while the AG crafts an argument based on 
legislative history, the AG will not be the final authority on whether 
or not Section 12 applies to PSD or Nonattainment NSR violations. 
Public Citizen also contends that the courts will have to decide this 
issue. Finally, Public citizen believes that the statement misstates 
important facts. For example, the statement says that applying for and 
obtaining a Voluntary Emission Reduction Permit (VERP) permit is one of 
the preconditions of Section 12's applicability. Public Citizen argues 
that SB766 only requires, however, that sources apply for a VERP permit 
to be eligible for Section 12's immunity and that the statute does not 
require that such a permit be issued. Public Citizen believes SB766 
impermissibly limits Texas's enforcement authority.
EPA Response to Comment B
    As stated in our response to Comment A above, EPA believes that 
Texas only needs to correct the IA deficiencies in order for EPA to 
grant the State full program approval. As such, for the purpose of this 
approval, the revised AG statement must only address issues related to 
the correction of IA deficiencies. The EPA will address the AG 
discussion of SB 766 in its response to the Citizen Comment letters, as 
explained in section V.C. Any potential flaws in Texas's program that 
EPA did not identify as IA deficiencies will also be addressed as set 
forth in Sections V.C and D.
    The EPA believes that it did have sufficient information to propose 
full approval even though it had not yet received the revised AG 
statement. The EPA received three previous AG opinions (1993, 1996, and 
1998) stating that the laws of Texas provide adequate authority to 
carry out all aspects of the program. Furthermore, EPA worked closely 
with TNRCC to correct the IA deficiencies, and was well aware of the 
changes that were made by TNRCC regarding the IA deficiencies prior to 
proposing full approval. The EPA did not find any problems in the 
previous AG statements relating to TNRCC's authority to correct the IA 
deficiencies to meet the part 70 requirements. In fact, all of the IA 
deficiencies that EPA identified were corrected by regulatory changes. 
Based on the three prior AG statements, EPA believed that these changes 
were within the authority of TNRCC to promulgate. Furthermore, Public 
Citizen did not raise any issues regarding TNRCC's authority to revise 
its regulations to correct the IA deficiencies or that the revisions 
were beyond the scope of TNRCC's authority in its comments. Therefore, 
EPA believes that it did have sufficient information to propose full 
approval even though it had not yet received the revised AG statement. 
For the same reasons, EPA also believes that although Public Citizen 
had less than 30 days to review the AG statement, this does not prevent 
EPA from promulgating final approval of the Operating Permits Program.
    We also believe, contrary to Public Citizen's assertion, that one 
can determine what authority is included in the AG statement. For 
example, Public Citizen claims that the AG states that state law 
provides authority to incorporate monitoring consistent with 40 CFR 
70.6. However, Public Citizen asserts that the Texas's program is 
flawed in that it does not include monitoring ``sufficient to assure 
compliance'' as required by 40 CFR 70.6(c)(1), and that the AG 
statement does not even address this issue.
    40 CFR 70.4(b)(3) provides that the AG statement must include 
citations to administrative regulations that demonstrate adequate 
authority to carry out the program. In section VI of the AG statement 
(Monitoring, Recordkeeping and Reporting), the Texas AG cites to 
several provisions of the Texas Administrative Code which relate to 
monitoring. These regulations include 30 TAC 122.142(c) & (h), and 30 
TAC Chapter 122, Subchapters G (Periodic Monitoring--122.600 et seq.) 
and H (Compliance Assurance Monitoring--122.700 et seq.). Sections 
122.142(c) and (h) require permits to contain periodic monitoring and 
compliance assurance monitoring. Subchapters G and H implement the 
periodic monitoring and compliance assurance monitoring requirements. 
Therefore, one can determine what authority is included in the AG 
statement, and the AG statement addresses the issue of monitoring 
sufficient to determine compliance. The issue of whether Texas's 
periodic monitoring regulations and compliance assurance monitoring 
regulations are deficient will be addressed in our response to the 
citizen comment letters, as set forth in section V.C. Therefore, we do 
not agree with these comments.

C. Comments on Minor New Source Review (MNSR)/Part 70 Integration

    The EPA received six comments pertaining to minor new source review 
(MNSR)/Part 70 Integration. The comments pertain to (1) Incorporation 
of MNSR, (2) Timing of incorporation on minor new source review 
requirements, (3) Procedure for incorporation of MNSR requirements, (4) 
Lack of sufficient monitoring, (5) Lack of specificity in MNSR permits, 
and (6) TNRCC's schedule for incorporating MNSR requirements into 
existing title V permit and authorizations.

1. Comment C1--Incorporation of Minor New Source Review (MNSR)

    Public Citizen acknowledged that Texas has included Chapters 106 
and 116 as applicable requirements. While Chapters 106 and 116 are the 
chapters that provide for preconstruction permits, Public Citizen is 
concerned that Texas's language is not as clear as the part 70 
requirement that the definition of applicable requirement include ``any 
term or condition of any preconstruction permits issued pursuant to 
regulations approved or promulgated through rulemaking under title I, 
including parts C or D, of the Act.'' 40 CFR 70.2. Public Citizen 
believes that EPA should explain whether and how the Texas definition 
of applicable requirement is consistent with the part 70 definition and 
includes both past and future minor new source review requirements. In 
addition, because of the facial discrepancy between the Texas 
regulations and the part 70 definition, Public Citizen believes that 
the Texas AG should provide a legal opinion affirming this 
understanding.
EPA Response to Comment C1
    As the commenter noted, Chapters 106 and 116 implement Texas's 
preconstruction permit program. These chapters are part of the 
definition of applicable requirements. Texas's regulations also defines 
``applicable requirement'' to include the terms and conditions of all 
preconstruction permits. The definition of ``applicable requirement'' 
in Section 122.10(2)(H) now provides that an applicable requirement 
includes:

    (H) All of the requirements of Chapter 106, Subchapter A of this 
title (relating to permits by rule), or Chapter 116 of this title 
(relating to Control of Air Pollution by Permits for New 
Construction or Modification) and any term or condition of any 
preconstruction permit. (Emphasis added).

Furthermore, Section 122.231(c) provides that:


[[Page 63322]]


    The executive director shall institute proceeding to reopen 
permits * * * to incorporate the requirements of Chapter 106, 
Subchapter A * * * or Chapter 116 of this title or any term or 
condition of any preconstruction permit.'' (Emphasis added).

Thus, the definition for ``applicable requirement'' and the regulations 
for incorporating MNSR permits include the terms and conditions of 
preconstruction permits, and includes the Texas regulations which 
implement Texas's preconstruction review program. The preconstruction 
review program in Chapters 106 and 116 includes MNSR. Therefore, EPA 
believes that the definition of applicable requirement in 30 TAC 
122.10(2)(H) includes any term or condition of any preconstruction 
permit issued pursuant to regulations approved or promulgated through 
rulemaking under title I, including parts C or D, of the Act and is 
consistent with part 70.
    We disagree with Public Citizen's contention that an AG statement 
must confirm this understanding. State regulations must be consistent 
with the part 70 regulations, but they do not have to track the exact 
language of part 70. The EPA believes that Section 122.10(2)(H) is 
consistent with part 70 definition, and therefore disagrees with this 
comment.

2. Comment C2--Timing of Incorporation of MNSR Requirements

    Public Citizen asserts that under Texas's proposal, MNSR 
requirements will not be incorporated before or upon transition to full 
approval. In fact, Public Citizen argues that some permits will not be 
reopened to include minor new source review permit terms and conditions 
for up to four years, or even up to renewal. Public Citizen also 
contends that Texas proposes to merely send notification to permit 
holders upon transition to full approval that their permits will have 
to be reopened at some time in the future to include minor new source 
review.
    Further, Public Citizen contends that Texas's program does not 
assure that all permits issued by the State after full approval would 
include minor new source review permit terms and conditions. Public 
Citizen argues that the state is allowing those permits that went out 
for public notice prior to June 3, 2001 to be issued without 
incorporating minor new source review permit terms and conditions. 
Public Citizen contends that this violates 40 CFR 70.4(d)(3)(ii)(D) and 
should not be permitted.
EPA Response to Comment C2
    We disagree that the procedures Texas will use to incorporate MNSR 
requirements into title V permits violates part 70. Texas will reopen 
its title V permits consistent with 40 CFR 70.4(d)(3)(ii)(D). The 
September 20, 2001 agreement, as set forth in the Federal Register, 
describes the process for reopening permits to incorporate MNSR 
requirements. 66 FR at 51897.
    The reopening procedure (which begins no later than December 1, 
2001) consists of notification of title V permit holders as follows: 
(1) Direct notification in writing to each individual permit holder no 
later than December 1, 2001; (2) during stakeholder meetings; (3) 
through the TNRCC website; and (4) another follow-up letter which will 
be sent to each permit holder when it is time to reopen the permit 
holder's permit to incorporate the MNSR permits and permits by rule 
(PBR).\3\
---------------------------------------------------------------------------

    \3\ Although the September 20, 2001 letter from Texas did not 
reference PBRs as to this issue, the letter did state that PBRs will 
be cited to the lowest level of citation necessary to make clear 
what requirements apply to the facility. Furthermore, PBRs also fall 
under Texas's MNSR program.
---------------------------------------------------------------------------

    The procedure provides that all title V permits will be reopened to 
incorporate MNSR. Permits nearing renewal (i.e., those with less than 
two years remaining until renewal) will be reopened at renewal to 
incorporate MNSR. Permits not close to renewal (i.e., those with two or 
more years remaining until renewal (which includes permits issued prior 
to June 3, 2001)) will be reopened within three to four years initial 
issuance to incorporate MNSR. 66 FR at 51898.
    This process is consistent with the requirement in 40 CFR 
70.4(d)(3)(ii)(D) that a state ``institute proceedings to reopen part 
70 permits,'' and provides for a reasonable transition time for a State 
to reopen title V permits to incorporate MNSR. The reopening process 
that TNRCC described in its September 20, 2001 letter, and is described 
above, represents an agreement between EPA and TNRCC on how proceedings 
will be instituted to reopen all title V permits and ensure that they 
will have the MNSR requirements. This agreement meets the requirements 
of part 70 and ensures that all title V permits will be reopened in a 
timely manner to incorporate MNSR. Furthermore, the requirements of the 
MNSR permits are enforceable by Texas and EPA even if they have not yet 
been incorporated into the title V permit. Therefore, we do not agree 
with this comment.

3. Comment C3--Procedure for Incorporation of MNSR Requirements

    Public Citizen alleges the following:
    First, Texas is not proposing to use the reopening provisions of 40 
CFR 70.7(f) and (g) in order to incorporate minor new source review 
requirements into its existing title V permits, but instead will 
utilize its minor revision process. Public Citizen contends that part 
70 only allows the use of streamlined procedures during the interim 
period. Because Texas did not adopt provisions during the IA period to 
ensure that MNSR would be properly incorporated into all title V 
permits upon full approval, Texas must follow the reopening provisions 
of 40 CFR 70.7(f) and (g) to incorporate MNSR into title V permits.
    Second, Public Citizen argues that the 40 CFR 70.4(d)(3)(ii)(D) 
requirement that states ``institute proceedings to reopen permits * * * 
upon or before granting of full approval'' requires the immediate 
submission of applications or updates to pending applications and does 
not allow for the delay provided by Texas rules.
    Third, Public Citizen argues that Texas is proposing to assume that 
applicants who have already certified compliance are in compliance with 
the minor new source review permit terms and conditions which are now 
applicable. Consequently, Public Citizen contends that Texas will not 
require an updated compliance certification to certify compliance with 
these permit terms and conditions, contrary to 40 CFR 70.5(c)(8) and 
70.5(b) for compliance certifications and supplementary information.
EPA Response to Comment C3
    In response to the first allegation, EPA disagrees that the 
streamlined procedures set forth in part 70 may only be used during the 
interim period, and that Texas must use the reopening provisions of 40 
CFR 70.7(f) and (g) to incorporate MNSR into its existing title V 
permits. To the contrary, 40 CFR 70.4(d)(3)(ii)(D) specifies that the 
State must upon or prior to receiving full approval, ``institute 
proceedings to reopen part 70 permits to incorporate excluded minor NSR 
permits * * * [and] * * * [s]uch reopenings need not follow full permit 
issuance procedures nor the notice requirement of Sec. 70.7(f)(3), but 
may instead follow the permit revision procedure in effect under the 
State's approved part 70 program for incorporation of minor NSR 
permits.'' As described in our Federal Register notice proposing 
approval of the Texas Operating Permits Program,

[[Page 63323]]

Texas will institute proceedings to reopen its part 70 permits on or 
before full program approval and will use the provisions in 30 TAC 
122.215 and 122.217 to incorporate the MNSR permits into existing title 
V permits, which is the permit revision procedure in effect under 
Texas's approved part 70 program. 66 FR 51897-98. Thus, for the reasons 
stated herein, EPA believes that Texas's procedures for reopening title 
V permits to incorporate MNSR is consistent with the requirements of 
part 70.
    In response to the second allegation, EPA disagrees that 40 CFR 
70.4(d)(3)(ii)(D) requires the immediate submission of applications or 
updates to pending applications. As previously discussed, this section 
requires a state to ``institute proceedings to reopen part 70 permits'' 
to incorporate MNSR on or before a State receives full approval. The 
TNRCC will institute proceedings to reopen previously issued title V 
permits and draft title V permits for which TNRCC issued or authorized 
the initiation of public notice prior to June 3, 2001. The TNRCC has 
stated that it will begin these proceedings no later than December 1, 
2001. The TNRCC will accomplish this reopening through direct 
notification in writing to each individual permit holder, during 
stakeholder meetings, and through the TNRCC website. Another follow-up 
letter will be sent to each permit holder when it is time to reopen the 
permit holder's permit to incorporate the MNSR permits and PBRs. 66 FR 
at 41897-98. Thus, as required by part 70, TNRCC will have instituted 
proceedings to incorporate MNSR prior to full approval. Part 70 does 
not require that the reopening occur prior to full approval, just that 
the process begin.
    In response to the third allegation, EPA disagrees that Texas will 
assume that applicants who have already certified compliance are in 
compliance with the MNSR permit terms and conditions which are now 
applicable. Furthermore, we believe that the allegation is consistent 
with of the September 20, 2001, agreement set forth in the October 11, 
2001 Federal Register notice. 66 FR 51897-98. The process described in 
the agreement contains no provision which would allow Texas to assume 
the applicants who have already certified compliance are in compliance 
with the MNSR permit terms and conditions. To the contrary, 30 TAC 
122.142(e) provides that if an emission unit is not in compliance with 
the applicable requirements (e.g., MNSR requirements) at time of permit 
issuance, the permit must contain a compliance schedule. Furthermore, 
Public Citizen's assertion is not consistent with the provisions in 30 
TAC 122.146--Compliance Certification Terms and Conditions, which 
contains no provision which would allow Texas to assume the applicants 
who have already certified compliance are in compliance with the MNSR 
permit terms and conditions. Thus, we do not agree with these comments.

4. Comment C4--Lack of Sufficient Monitoring

    Public Citizen alleges that Texas has stated that all minor new 
source review permits incorporated into title V permits will include 
monitoring that complies with 40 CFR 70.6(a)(3) and (c)(1). Public 
Citizen argues that those Texas operating permits that were issued or 
sent to public notice prior to June 3, 2001, clearly will not include 
adequate monitoring. Thus Public Citizen contends that these operating 
permits will not include all required applicable requirements or the 
monitoring sufficient to assure compliance with those requirements. 
Further, as discussed below, Public Citizen maintains that Texas's 
program does not provide for incorporation of sufficient monitoring 
into its title V permit. Public Citizen argues that Texas's program 
does not require that monitoring sufficient to assure compliance be 
incorporated into its title V permits. Further, Public Citizen contends 
that the provisions for incorporation of 40 CFR 70.6(a)(3) monitoring 
allow this monitoring to be incorporated in an untimely manner that 
does not provide for sufficient public participation. Public Citizen 
argues that Texas's program does not assure that adequate monitoring 
for minor new source review requirements will be incorporated into 
Texas permits.
EPA Response to Comment C4
    The first allegation is that permits that were issued or sent to 
public notice prior to June 3, 2001 will not include all applicable 
requirements (e.g. MNSR is missing) and will not include all required 
monitoring. As described in the October 11, 2001 Federal Register 
notice, the TNRCC will reopen all title V permits which the TNRCC had 
authorized for public notice before June 3, 2001. Those permits which 
as of December 1, 2001, are two years or less before renewal will be 
reopened to incorporate MNSR no later than renewal. Permits for which 
renewal is longer than two years after December 1, 2001 will be 
reopened within three to four years of initial issuance, which is more 
expeditious than renewal. The September 20, 2001 agreement provides 
that all the MNSR permits include all monitoring, reporting and 
recordkeeping (MRR) requirements as required by part 70. 66 FR at 
51898. Thus, Texas will add any necessary provisions to its title V 
permits to ensure that the requirements of part 70 concerning periodic 
monitoring (40 CFR 70.6(a)(3)(i)(B)) and monitoring sufficient to 
assure compliance as required by 40 CFR 70.6(c)(1) are met. It is the 
continuing responsibility of the source and permitting authority to 
ensure that a title V permit is not issued until it fully complies with 
the requirements of part 70. Therefore, we do not agree with this 
comment.
    Public Citizen further alleges that Texas's program does not 
require that monitoring sufficient to assure compliance be incorporated 
into its title V permits. Under 30 TAC 122.142(c), each permit must 
contain periodic monitoring requirements that are designed to produce 
data that is representative of the emissions unit's compliance with 
applicable requirements. This is consistent with 40 CFR 70.6(c)(1) 
which provides that title V permits must contain ``periodic monitoring 
sufficient to yield reliable data from the relevant time period that 
are representative of the source's compliance with the permit * * *'' 
In addition, 30 TAC 122.142(b)(2)(B)(ii) provides that each emission 
unit in the permit must contain specific terms and conditions for 
monitoring requirements associated with the applicable requirement 
sufficient to ensure compliance with the permit. Therefore, we do not 
agree with this comment.
    Finally, Public Citizen alleges that the Texas program does not 
provide for sufficient public participation when Texas incorporates 
monitoring requirements into its title V permits. As stated above, the 
September 20, 2001, agreement assures that Texas will reopen title V 
permits in a timely manner to incorporate MNSR and that the 
incorporation procedures are consistent with part 70. 66 FR at 51897-
98. Finally, with regard to the public participation aspect of the 
comment, if Texas adds MRR when the permit is reopened, then Texas is 
not required to follow the public participation requirements of 
70.7(f)(3) when it adds monitoring. However, if MRR is not included at 
this time, then Texas would be required to provide for public 
participation (see 40 CFR 70.7(e)(4)(i)). Therefore, we do not agree 
with this comment.

5. Comment C5--Lack of Specificity in MNSR Permits

    Public Citizen alleges the following:

[[Page 63324]]

    First, Texas is not requiring permittees to identify all applicable 
MNSR provisions, but will instead produce a list of all PBRs (one type 
of minor new source review authorization) developed before 1991. 
Permittees would then attach the list of PBRs to their title V permit 
and application and indicate that some of the authorizations on the 
list applied to them. Permittees would not be required to identify 
which specific authorizations applied to them until a later date. 
Public Citizen contends that this makes it impossible for the public to 
evaluate whether a permittee has correctly identified applicable 
requirements and will prevent the addition of required monitoring to 
assure compliance with the applicable pre-1991 PBRs.
    Second, Texas will not require all MNSR authorizations to be 
incorporated into its title V permits. Only those authorizations listed 
on the unit attribute form will be required to be incorporated into 
Texas's title V permits.
    Third, the Texas approach for incorporating MNSR permit terms and 
conditions and PBR into title V permits violates title V and part 70. 
Public Citizen argues that the statute and EPA regulations require 
title V permits to assure compliance with all applicable requirements, 
including enforceable emissions limitations and standards. For example, 
Public Citizen refers to section 504(c) which requires each permit to 
``set forth inspection, entry, monitoring, compliance certification, 
and reporting requirements to assure compliance with the permit terms 
and conditions.'' Public Citizen also contends that 40 CFR 70.2 defines 
applicable requirements to include ``[a]ny term or condition of any 
preconstruction permits issued pursuant to regulations approved or 
promulgated through rulemaking under title I, including parts C or D, 
of the Act.'' Public Citizen also contends that section 70.6(a)(1) 
further requires that each permit shall include ``emission limitations 
and standards, including those operational requirements and limitations 
that assure compliance with all applicable requirements at the time of 
permit issuance. Public Citizen contends that the permit shall specify 
and reference the origin of and authority for each term or condition, 
and identify any difference in form as compared to the applicable 
requirement upon which the term or condition is based.'' Similarly, 
Public Citizen contends that 40 CFR 70.6(a)(3) requires each operating 
permit to contain all monitoring and testing associated with applicable 
requirements, such as minor NSR permit terms and conditions.
    Therefore, Public Citizen contends that the Texas approach for 
assuring compliance with minor NSR permit terms and conditions by 
identifying and cross-referencing the minor NSR permit by permit 
number, and PBRs by their Section number, fails to comply with the 
aforementioned requirements of title V and part 70. Public Citizen 
contends that the aforementioned provisions require the terms and 
conditions of minor NSR permits, including actual enforceable emissions 
limitations and standards, operational requirements, and monitoring, 
for example, to be identified in title V permits, an obligation that is 
not fulfilled by unhelpful cross-references to permit numbers or rule 
sections.
EPA Response to Comment C5
    In response to the first allegation, in the September 20, 2001 
agreement, as set forth in the October 11, 2001 Federal Register 
notice, the TNRCC agreed that each title V permit will state: (1) That 
the terms and conditions of MNSR permits and PBR identified and cross-
referenced in the title V permit are included as applicable 
requirements; \4\ (2) the MNSR permits and PBR are incorporated by 
reference into the title V permit by identifying its permit number or 
the PBR by its Section number; and (3) the terms and conditions of each 
MNSR permit and PBR are included in the title V permits and are subject 
to part 70 requirements. 66 FR at 51897. The September 20, 2001, 
agreement further ensures that TNRCC will ensure availability of all 
MNSR permits and files to the public. The table of contents to the 
title V permit will also indicate the location within the title V 
permit of each MNSR preconstruction authorization numbers (file 
numbers).\5\ 66 FR at 51898.
---------------------------------------------------------------------------

    \4\ As previously stated, although the September 20, 2001 did 
not reference PBRs as to this issue, it did state that PBRs will be 
cited to the lowest level of citation necessary to make clear what 
requirements apply to the facility. PBRs also fall under Texas's 
MNSR program.
    \5\ The September 20, 2001 agreement does not mention a table of 
contents, as was indicated in the Federal Register notice. 66 FR at 
51898. This was not part of the agreement because TNRCC was already 
including a table of contents in its title V permits which 
references attachments for preconstruction authorizations. The 
attachment lists the relevant preconstruction authorizations, 
including PBRs. Likewise, the reference to providing the entire 
permit file to the requestor in Items 4 and the modification 
procedures in Item 5 of the MNSR procedures (66 FR at 51898) were 
not included in the September 20, 2001 agreement. TNRCC will, of 
course, provide the entire permit file to anyone to requests it. As 
to Item 5, this relates to modification permit revision procedures, 
as required by its regulations.
---------------------------------------------------------------------------

    In response to the second allegation, the September 20, 2001, 
agreement, as set forth in the October 11, 2001 Federal Register 
notice, requires all MNSR permits and PBR to be incorporated into title 
V permits. The September 20, 2001 agreement does not contain any 
provision which would limit Texas only to incorporating only those 
authorizations listed on the unit attribute form as alleged by Public 
Citizen.
    In response to the third allegation, we do not agree that Texas's 
approach for incorporating MNSR permits and PBR violates title V and 
part 70. As stated above, all the title V permits will incorporate the 
necessary MRR which will assure compliance with the title V permit, 
including MNSR and PBR requirements. Texas's program provides for 
inspection, entry, monitoring, compliance certification, and reporting 
requirements. See 30 TAC 122.142--122.146. Furthermore, the September 
20, 2001 agreement provides that under the incorporation by reference 
process, Texas must incorporate all terms and conditions of the MNSR 
permits and PBR, which would include emission limits, operational and 
production limits, and monitoring requirements. We therefore believe 
that the terms and conditions of the MNSR permits so incorporated are 
fully enforceable under the full approved title V program that we are 
approving in this action. We therefore do not agree with these 
comments.

6. TNRCC's Schedule for Incorporating MNSR Requirements Into Existing 
Title V Permit and Authorizations

    Baker Botts, L.L.P., does not support TNRCC's schedule for 
incorporating MNSR requirements into existing title V permits. The 
commenter believes that such incorporation should take place no sooner 
than renewal of the operating permit.
EPA Response to Comment C6
    As set forth in our response to Comment C2--Timing of Incorporation 
of MNSR requirements, Texas will reopen its title V permits as follows: 
permits nearing renewal (i.e., those with less than two years remaining 
until renewal) will be reopened at renewal to incorporate MNSR. Permits 
not close to renewal (i.e., those with two or more years remaining 
until renewal (which includes permits issued prior to June 3, 2001)) 
will be reopened within three to four years initial issuance to 
incorporate MNSR. 66 FR at 51898. This schedule provides for a 
reasonable transition time for a State to reopen title V permits to 
incorporate MNSR. Baker Botts'

[[Page 63325]]

proposal would delay this incorporation for permits with two or more 
years until renewal until the permit is renewed, thus further delaying 
the incorporation of MNSR requirements. The EPA believes that the 
commenter's approach is not consistent with part 70, and therefore 
disagrees with this comment.

D. Comment D--Emergency Provisions and TNRCC Upset/Maintenance 
Reporting Rules

    Baker Botts, L.L.P. acknowledges that the TNRCC had removed its 
upset/maintenance reporting rules from its June 2001 submittal and is 
not proposing to use the upset/maintenance reporting rules to satisfy 
emergency provisions of 40 CFR part 70. As a result of TNRCC's actions, 
this deficiency no longer exists. However, Baker Botts also believes 
that the TNRCC's upset/maintenance reporting rules do not undermine the 
part 70 deviation reporting requirements. If a site's upset report 
previously submitted to TNRCC contains the information required for 
title V deviation reporting purposes, that report may be referenced in 
a site's deviation report; however, if a site has not already reported 
a deviation under sections 101.6 or 101.7, the Texas title V program 
requires the site to include the event in its next title V deviation 
repot. Thus, Baker Botts believes TNRCC's upset/maintenance reporting 
rules are not grounds for finding of deficiency.
EPA Response to Comment D
    The EPA agrees that emergency provision deficiency has been 
corrected. However, Baker Botts claims that the upset/maintenance rules 
do not undermine part 70 deviation reporting requirements, and that the 
upset/reporting rules are not grounds for a finding of deficiency. The 
EPA did not state in its October 11, 2001 Federal Register notice that 
the upset/maintenance rules undermine Part 70 deviation reporting 
requirements, or that the upset/reporting rules are deficient. 
Therefore, this comment is beyond the scope of this action.

E. Comment E--Definition of ``Major Source''

    Public Citizen asserts that part 70 requires fugitive emissions for 
all sources subject to Clean Air Act section 111 and 112 standards to 
be included in the calculation to determine whether a source is 
``major.'' Public Citizen contends that Texas current definition of 
``major source'' only requires inclusion of fugitives for source 
categories regulated under section 111 or 112 as of August 7, 1980.
    Public Citizen states that Texas has not changed its regulations in 
response to this deficiency. The EPA's proposed approval acknowledges 
that Texas definition does not match the current requirement in 40 CFR 
70.2. 66 FR 51895, 51899 (October 11, 2001). The fact that EPA has 
proposed to amend the regulation does not alter Texas's obligation to 
comply with it.
EPA Response to Comment E
    Texas' definition of major source for category 27 reads as follows:

    (xxvii) any stationary source category regulated under FCAA, 
Sec. 111 (Standards of Performance for New Stationary Sources) or 
Sec. 112 for which EPA has made an affirmative determination under 
FCAA, Sec. 302(j) (Definitions).

On November 27, 2001, EPA revised the definition of ``major source'' 
for category 27 to read as follows:

    (xxvii) Any other stationary source category, which as of August 
7, 1980 is being regulated under section 111 or 112 of the Act.

66 FR 59161, 59166. Texas' regulation is consistent with the revised 
definition because both cover the same universe of sources. The Texas 
requirement to count fugitive emissions applies to sources ``for which 
EPA has made an affirmative determination under FCAA section 302(j)'' 
whereas the part 70 definition applies to sources which were ``subject 
to section 111 or 112 standards promulgated as of August 7, 1980.'' 
Because, August 7, 1980, was the date of EPA's last ``affirmative 
determination under section 302(j)'' the Texas requirement is now 
consistent with the current requirements of both parts 70 and part 71. 
Therefore, EPA does not agree with this comment.

F. Comment F--Definition of ``Title I Modification''

    Public Citizen asserts that part 70 states that minor permit 
modification procedures may be used only for those permit modifications 
which ``are not modifications under any provision of title I of the 
Act.'' 40 CFR 70.7 (e)(2)(i)(A)(5). Public Citizen further argues that 
part 70 states that off-permit changes may be made if certain 
conditions are met, including the requirement that the changes not be 
``modifications under any provision of title I of the Act.'' 40 CFR 
70.4(b)(12).
    Public Citizen states that in EPA's notice of proposed interim 
approval for Texas, EPA interpreted ``title I modifications'' to 
include minor new source review and pre-1990 National Emissions 
Standards for Hazardous Air Pollutant (``NESHAP'') requirements. 60 FR 
30037, 30041 (June 7, 1995). Public Citizen argues that because Texas 
defined title I modification to exclude changes reviewed under a minor 
new source review program or changes that trigger the application of 
NESHAPS established prior to the 1990 amendments, EPA found Texas's 
program deficient. Id.
    Public Citizen maintains that Texas removed the definition of title 
I modification from its regulations in response to EPA's comments. They 
contend that Texas has clearly stated, however, that it maintains its 
interpretation that largely excludes modifications made pursuant to 
Texas's minor new source review program from the definition of title I 
modification. As a result Public Citizen argues that Texas is proposing 
to allow minor new source review authorizations and modifications to be 
incorporated into its title V permits through minor modification and 
off-permit procedures.
    Public Citizen contends that ``title I modifications'' clearly 
include modifications under State minor new source review programs. 
Public Citizen refers to Section 110(a) of the Clean Air Act is clearly 
within title I of the Act. Further, Public Citizen contends that 
section 110(a)(2)(c) refers to ``modifications'' of minor new source 
review authorizations. Public Citizen contends that the interpretation 
adopted by EPA in the preamble to the 1994 proposal for revisions to 
part 70 constitutes the Agency's initial, definitive interpretation of 
``title I modification.'' 59 FR 44460, 44462 (Aug. 29, 1994). 
Accordingly, Public Citizen contends that EPA may only change such an 
interpretation pursuant to notice and comment rulemaking. See 
generally, Paralyzed Veterans v. D.C. Arena, 111 F.3d 579, 586 (D.C. 
Cir. 1997).
EPA Response to Comment F
    As stated in proposal and in the June 7, 1995 Federal Register 
notice, we noted that at the time of interim approval Texas's 
definition of ``title I modification'' in Section 122.10 did not 
include changes reviewed under a minor source preconstruction review 
plan (MNSR), nor did it include changes that trigger the application of 
National Emission Standards for Hazardous Air Pollutants (NESHAP) 
established pursuant to section 112 of the Act prior to the 1990 
Amendments. 60 FR at 30041. In the 1998 submittal, Texas deleted the 
definition of title I modification from Section 122.10. Since part 70 
does not have a definition of title I modification, Texas's elimination 
of its definition of title I modification corrected the deficiency by 
removing

[[Page 63326]]

the possibility of a conflicting regulatory definition.
    Thus, as to the adequacy of the Texas regulations, the commenter's 
assertions regarding the meaning and status of EPA's statements in the 
August 29, 1994 proposed Part 70 revisions, and the June 7, 1995 
proposed approval concerning the definition of ``Title I modification'' 
have been rendered moot by Texas' removal of the definition from its 
regulations. It follows that there is no need for EPA to respond to the 
commenter's views regarding EPA's statements for the purpose of 
resolving a possible regulatory conflict. Moreover, to the extent that 
the commenter remains concerned about this issue due to the manner in 
which Texas has implemented its program, the commenter's generalized 
allegations that Texas maintains interpretations that are at odds with 
what the commenter believes EPA's interpretations are, or should be, 
such allegations lack sufficient specificity to require a response. If 
there are specific permits as to which the commenter believes Texas is 
implementing its program in a manner inconsistent with the requirements 
of applicable Federal law, it may of course present them to EPA for 
response.

G. Comment G--Fugitive Emissions in Applications

    Public Citizen states that EPA noted in the June 7, 1995, notice of 
proposed IA that Texas did not require fugitive emissions to be 
included in permit applications in the manner required by 40 CFR 70.3. 
60 FR 30037 (June 7, 1995). Public Citizen contends that Texas still 
does not require that complete permit applications include fugitive 
emissions. While Texas did adopt Section 122.132(e)(10), as indicated 
in the proposed full approval notice, Public Citizen contends that this 
provision does not ensure that applications and permits will include 
fugitive emissions. Public Citizen contends that Texas allows 
facilities to submit ``abbreviated applications,'' which are required 
to include only: (1) Identifying information regarding the site and 
applicant, (2) certification by a responsible official and (3) any 
other information deemed necessary by the executive director. 30 TAC 
122.132(c). Public Citizen contends that these applications do not 
require the submissions of fugitive emission information.
    Similarly, Public Citizen contends that Texas's regulations provide 
for a ``phased permit detail process.'' 30 TAC 122.131. Public Citizen 
contends that this process allows sites with 75 or more emission units 
in nonattainment areas, or with 150 or more emission units in 
attainment areas, to qualify for the phased permit detail process. 
Public Citizen contends that these sites are allowed to submit permit 
applications that include fugitive emission information and all other 
detailed information for only a portion of their emissions units. 
Public Citizen contends that the sites are then required to follow a 
schedule, included as a term and condition of the permit, for 
submitting the additional detailed information. 30 TAC 122.131(b).
    Thus, Public Citizen contends that Texas's abbreviated application 
and phased permit detail process do not comply with Part 70's 
requirement that permit applications include fugitive emissions in the 
same manner as stack emissions. 40 CFR 70.3(d).
EPA Response to Comment G
    Although TNRCC does allow facilities to submit an abbreviated 
application, the fact remains that the remaining information, including 
fugitive emissions information, is required for every operating permit. 
The TNRCC informs the facility when the remaining information needs to 
be submitted. 30 TAC 122.132(c) & 122.132(e)(10). This applies even if 
the ``phased permit detail process'' is followed. 30 TAC 122.131(b). 
The abbreviated application procedure was developed to allow TNRCC to 
develop the application submittal schedule without requiring the 
applicant to continually update and certify the detailed application 
information prior to the technical review of the permit. 26 TexReg at 
3762. It does not make any difference that the abbreviated application 
does not contain fugitive emissions information so long as this 
information is submitted when requested by TNRCC and is available to 
the public when the draft permit goes out for public comment. A full 
application, including fugitive emissions information, is required 
prior to TNRCC issuing a draft permit. 30 TAC 122.132(c) & (e); 26 
TexReg at 3762. Therefore, EPA does not agree with this comment.

H. Comment H--Inadequate Personnel and Funding

    Public Citizen contends that EPA noted in the proposed approval 
that Texas had to provide complete projection of program costs for four 
years after approval was required for full approval. 66 FR 51895, 51902 
(Oct. 11, 2001). Public Citizen argues that Section 70.4(b)(8) of EPA's 
regulations require states to submit a statement that adequate 
personnel and funding have been made available to develop, administer, 
and enforce the operating permit program. Public Citizen contends that 
this statement must include an estimate of the permit program costs for 
the first four years after approval and a description of how the state 
plans to cover those costs. 40 CFR 70.4(b).
    Public Citizen further contends that Texas's supplemental 
``Statement of Adequate Personnel and Funding'' submitted on August 22, 
2001, acknowledges that the agency will face a funding shortfall for 
its operating permits program in 2003 unless the fees charged by the 
State are increased. The statement says, ``staff will recommend to the 
Commission to raise the emissions fee to $30 per ton. Public Citizen 
contends that this increase is necessary to provide the funding to 
support the title V activities of the state and is contingent on 
approval by the Commission.'' Likewise, Public Citizen contends that 
the Texas Sunset Commission Staff Report on the TNRCC noted that the 
title V fund--the Clean Air Account--will have a $3.2 million shortfall 
by fiscal year 2003. Commenters believe that the State must commit to 
raising the emission fee in 2003, rather than merely stating that staff 
will recommend such an increase.
    Even with the increase in fees, however, Commenters do not believe 
that Texas has demonstrated adequate personnel and funding to run the 
state operating permits program. Public Citizen argues that the most 
complex and time-consuming title V facilities in Texas are due to be 
permitted over the next few years. Further, minor new source review 
requirements will have to be incorporated into Texas permits during 
this period. Public Citizen contends that in EPA's proposal for 
revisions to IA criteria, EPA noted:

    Texas has pointed to the exceptionally large number of part 70 
sources which are located in the State and which are candidates for 
minor NSR. Texas estimates that it has over 3,000 part 70 sources, 
including the nations largest concentration of chemical 
manufacturing and petroleum refining facilities. Many of these 
sources have large numbers of emission units, making part 70 
permitting difficult and time-consuming. * * * While Texas's burden 
of processing part 70 applications will be heavy in any event, Texas 
contends that the added burden of integrating minor NSR into part 70 
permits will completely overwhelm the State's processing system in 
the initial years of implementation.

59 FR 44572, 44574-44575 (Aug. 29, 1994).
    Public Citizen contends that despite this huge increase in 
workload, Texas has projected that only a very small increase in the 
percentage of time,

[[Page 63327]]

required by only some of the divisions assigned to title V, will be 
needed in the coming years. For example, Public Citizen argues that the 
air permits division is projected to only provide an 8.3% increase in 
staff time, while the field operations and enforcement divisions 
project no increase. Public Citizen does believe Texas had projected 
costs for staff adequate to handle incorporation of minor new source 
review and the processing and enforcement of the large, complex sites 
that will require permitting in the next few years.
    In addition, Public Citizen contends that as a result of the low 
salaries offered by the Texas Natural Resource Conservation Commission 
(TNRCC), the agency often has numerous vacancies. Public Citizen 
contends that the high turnover means that there is often a lack of 
trained, experienced personnel and that remaining personnel must 
shoulder an unreasonable workload.
EPA Response to Comment H
    As stated in the proposal, on August 22, 2001, Texas submitted a 
complete four-year projection. In its fee demonstration, Texas 
documented that it requires an average of $34,274,000 per year to cover 
the cost of the title V program. Texas projects that it will collect an 
average of approximately $36,840,000 per year in fees from title V 
sources. This demonstration indicates that the title V fees that Texas 
anticipates will be collected are sufficient to cover the program costs 
with an adequate margin of safety. The TNRCC has the authority to 
adjust the emissions fee as necessary using its rulemaking authority 
(Texas Health & Safety Code Section 382.0621). The demonstration 
submitted by Texas meets the requirements of 40 CFR 70.4(b)(7) and (8), 
and therefore we do not agree with this comment.

I. Comment I--Monitoring Requirements and Public Participation

    Baker Botts L.L.P. responded to our proposal to take no action on 
TNRCC's Chapter 122 revisions relating to periodic monitoring (PM), 
compliance assurance monitoring (CAM), and public participation. It 
believes that these provisions meet the requirements of part 70 and 
that we should approve them. Baker Botts further states that Texas's 
part 70 program satisfies all part 70 requirements with respect to 
compliance and deviation reporting based on the monitoring requirements 
and that the deviation reporting and compliance certification of 30 TAC 
Chapter 122 fully comply with part 70.
EPA Response to Comment I
    As stated in the October 11, 2001, proposal and in section IV of 
this preamble, we are not taking action on provisions relating to 
General Operating Permits (promulgated February 26, 1999), Public 
Participation (promulgated September 24, 1999), and Compliance 
Assurance Monitoring and Periodic Monitoring (promulgated September 1, 
2000) at this time. Texas submitted these revisions to EPA for approval 
on June 1, 2001. Some of these revisions are related to the comments we 
received from citizens in response to our Federal Register notice 
published December 11, 2000. The citizens identified areas where they 
believe that certain of these provisions are deficient. The rationale 
for taking no action on these provisions is outlined in detail in our 
response to Comment A, section III of this notice. We will respond to 
the citizen comments as described in section V.C of this preamble which 
provides additional information on the citizen comment letters. As 
discussed therein, we will respond either by publishing a notice of 
deficiency if we determine that a deficiency exists, or we will notify 
the commenter in writing to explain our reasons for not making a 
finding of deficiency. Any provisions unrelated to the citizen comment 
letters will be addressed in accordance with section V.D.

J. Comment J--Statutory Changes Enacted After State Submittal of 
Operating Program

    Public Citizen claims that several statutory changes adopted since 
1995 constitute program deficiencies, and that these changes were not 
adequately addressed, or not addressed at all, in the AG statement. 
These statutes include the following:
    a. Audit Privilege--Tex. Rev. Civ. Stat. Art. 4447cc. (2 
commenters);
    b. Voluntary Emissions Reduction Permit Program--SB766;
    c. Regulatory Flexibility--SB 1591 (1997) Section 5.123, Texas 
Water Code; and
    d. TNRCC Sunset Legislation--HB2912.
Audit Privilege Act Comments
    Baker Botts, L.L.P. states that the Audit Privilege Act does not 
limit the TNRCC's ability to adequately administer and enforce the 
title V program.
    Public Citizen states that the Audit Privilege Act prevents the 
State from having the authority to seek appropriate penalties and 
injunctive relief for Clean Air Act violations. Public Citizen argues 
that there is no AG statement reflecting the interpretation or 
implementation of the Texas audit privilege law to respond to the 
deficiency noted in EPA's IA of the Texas title V Program. Public 
Citizen further argues that Texas has implemented and interpreted the 
law contrary to EPA's audit policy and the requirements for state title 
V permit programs. While the EPA reached an agreement with Texas on 
amendments to its law in 1997, Public Citizen contends that EPA made it 
clear that the actual implementation of the law would be a critical 
factor in EPA's future evaluation of the law.
    Public Citizen contends that the Audit Privilege Act violates EPA 
guidance \6\ because of inadequate limits on privileged information. 
Public Citizen contends that The EPA guidance limits the circumstances 
under which information may be ``privileged'' pursuant to an audit law. 
Public Citizen also contends that Information may not be privileged if 
(1) it is required by law, regulation or permit (2) state access is 
needed to verify compliance, or (3) an audit presents evidence of 
criminal conduct. It also contends that it is unclear under the Texas 
audit law whether information required to be reported or maintained 
pursuant to title V or a title V permit may be considered exempt. Thus, 
Public Citizen contends that EPA must require Texas law to be amended 
to make clear that none of this information may be privileged, withheld 
from the public, or excluded from any judicial or administrative 
proceeding involving any party.
---------------------------------------------------------------------------

    \6\ Herman & Nichols, Effect of Audit Immunity/Privilege Laws on 
States' Ability to Enforce title V Requirements (April 5, 1996).
---------------------------------------------------------------------------

    Also, Public Citizen alleges that Texas law does not have a 
sufficient limit on claims of privilege regarding documents needed to 
verify compliance. Because Texas Audit law allows certain information 
collected during an audit to be held as privileged, even if no notice 
of audit is filed with the state, Public Citizen contends that many 
companies do audits just to claim the privilege. Thus, Public Citizen 
contends that whether violations were found during an audit cannot be 
determined under Texas law because industry can simply claim privilege 
for all information collected during the audit. Public Citizen contends 
that no subsequent inspection will include inspection of the 
``privileged'' documents because TNRCC has instructed its personnel to 
not ask for information from audits and to even refuse to look at 
information offered by the regulated entity. There is no provision for 
reviewing documents

[[Page 63328]]

that are required to be made available or public under Texas law.
    Furthermore, Public Citizen contends that the law does not prevent 
all evidence of criminal conduct from being disclosed. While the law 
provides that such information may be used in criminal proceedings, it 
does not remove the barrier to obtaining such information for use in 
criminal investigations.
    Public Citizen also claims that the Audit Privilege Act violates 
EPA guidance by providing inadequate limits on immunity from penalties. 
Public Citizen contends that EPA's guidance requires state audit laws 
to limit the types of violations that may be exempt from penalties. 
Public Citizen argues that the guidance provides that state audit laws 
must not exempt (1) repeat violations, (2) violations of previous court 
or administrative orders, (3) violations resulting in serious harm or 
risk of harm, or (4) violations resulting in substantial economic 
benefit to the violator. Id. at p. 4. The Texas Audit Privilege Law 
exempts repeat violations and violations of previous court orders or 
administrative orders. Tex. Rev. Civ. Stat. art. 4447cc, Sec. 10. 
(2000).
    Public Citizen contends that the Texas audit law does provide that 
a violation is not exempt if the violation resulted in ``injury or 
imminent and substantial risk of serious injury to one or more persons 
at the site or off-site substantial actual harm or imminent and 
substantial risk of harm to persons, property, or the environment.'' 
Id. at Sec. 10(b)(7). Public Citizen argues that this standard is 
higher than the ``resulting in serious harm or risk of harm'' provided 
by EPA guidance. Likewise, the Texas law provides that immunity does 
not apply if ``the violations have resulted in a substantial economic 
benefit which gives the violator a clear advantage over its business 
competitors'' conflicts with EPA's requirement that immunity not be 
granted where the violation resulted in a substantial economic benefit.
    Public Citizen contends that these problems with Texas law are 
exacerbated by the fact that Texas does not require facilities to prove 
their entitlement to immunity. Public Citizen contends that facilities 
are not required to submit proof of such entitlement to the State when 
they conduct an audit. The audit documents themselves are simply 
labeled as privileged by the permittee. Further, Public Citizen 
contends that the Audit Privilege Act expressly states that in a civil 
or administrative enforcement action ``[a]fter the person claiming the 
immunity establishes a prima facie case of voluntary disclosure * * * 
the enforcement authority has the burden of rebutting the presumption 
by a preponderance of the evidence or, in a criminal case, by proof 
beyond a reasonable doubt.'' Tex. Rev. Civ. Stat. art. 4447cc, Sec. 
10(f) (2000).
    Although more than 500 disclosures of violation have been filed, 
Public Citizen contends that TNRCC has never collected a penalty 
because a violation was a continuous or repeat violation, caused the 
risk of serious injury, or because a competitive advantage or economic 
benefit was obtained through the violation.
    Public Citizen also claims that as a result of its audit law, Texas 
lacks the minimum enforcement authority required by title V to 
administer a state operating permits program because Texas lacks 
authority to recover civil penalties for ``each violation'' occurring 
at a title V source, if that violation qualifies for the immunity 
provisions of the Texas Audit Privileges Law. Therefore, EPA must 
disapprove the Texas program as a result of the state's inadequate 
enforcement authority.
EPA Response to Audit Privilege Act Comments
    Public Citizen has raised a mixture of authority and implementation 
issues regarding the Audit Privilege Act. EPA is responding below to 
the authority issue and will respond to the implementation issues at a 
later date, as the implementation issues are unrelated to correcting 
interim approval deficiencies.
    The EPA believes that the Texas Audit Privilege Act (Audit Act) is 
not in conflict with Texas's authority to enforce Title V. In 
evaluating the Audit Act, as well as those of other states, EPA has 
looked to the requirements for enforcement authority contained in the 
federal environmental statutes and their implementing regulations for 
all federal programs to determine if the state retains the minimum 
requirements necessary for approval or authorization of those federal 
programs.\7\
---------------------------------------------------------------------------

    \7\ See, for example, Clean Air Act sections 110, 114, and 502 
and 40 CFR 70.11; Resource Conservation and Recovery Act section 
3006 and 40 CFR part 271; Clean Water Act Section 402 and 40 CFR 
123.27.
---------------------------------------------------------------------------

    With respect to the issue regarding alleged inadequate limits on 
privileged information, Texas has said that it will interpret Section 
9(c) of the Audit Act \8\ as giving the public the right to obtain any 
information in the state's possession required to be made available 
under federal or Texas law, irrespective of whether it is privileged 
under Texas law. This interpretation is consistent with federal 
delegation provisions that require States to make information publicly 
available. For example, Section 3006(f) of the Resource Conservation 
and Recovery Act (RCRA) requires that to be authorized, a state must 
make public any information it has obtained on ``facilities and sites 
for the treatment, storage and disposal of hazardous waste * * * in 
substantially the same manner * * * as would be the case if the 
Administrator [of EPA] was carrying out the provisions of this 
subchapter in such state.'' Section 3007(b) of RCRA goes even further 
in requiring public availability of information obtained from ``any 
person'' by the state or EPA, as long as the information may not be 
claimed as confidential under the Freedom of Information Act (FOIA). 
Federal regulations governing the Safe Drinking Water Act provide the 
same degree of public access.
---------------------------------------------------------------------------

    \8\ ``If information is required to be available to the public 
by operation of a specific state or federal law, the governmental 
authority shall notify the person claiming the privilege of the 
potential for public disclosure prior to obtaining such information 
under Subsection (a) or (b).'' Tex. Rev. Civ. Stat. Art. 4447cc, 
Sec. 9(c).
---------------------------------------------------------------------------

    Likewise, under Section 114(c) of the Act, any records, reports or 
information obtained under section 114(a) of the Act must be available 
to the public, as long as the information may not be claimed as 
confidential under FOIA. Sections 502(b)(8) and 503(c) of the Act and 
40 CFR 70.4(b)(3)(viii) provide that the permit application, compliance 
plan, permit, monitoring and compliance report are available to the 
public, subject to the same protections under FOIA. In addition, these 
same authorities provide that the contents of a Title V permit cannot 
be claimed as confidential. The Texas AG has certified that:

    State law provides authority to make available to the public any 
permit application, compliance plan, permit, and monitoring and 
compliance certification report, except for information entitled to 
confidential treatment. State law provides that the contents of an 
operating permit shall not be entitled to confidential treatment.

Attorney General Statement, Section XIII (October 29, 2001). Therefore, 
EPA believes that the Audit Privilege Act meets the minimum federal 
statutory and regulatory requirements for access to information.
    Furthermore, EPA disagrees that the Audit Privilege Act provides a 
barrier to obtaining information for use in criminal investigations. 
The Audit Privilege Act limits the application of the privilege to 
``civil or administrative proceedings'', which cannot reasonably be 
read as encompassing criminal investigations. See Tex. Rev. Civ. Stat. 
Art. 4447cc, Sec. 5(b). In addition,

[[Page 63329]]

Section 9(b) removes any limit on the State's ability to review any 
information that is required to be made available under federal or 
state law prior to any in camera determination that such material may 
be privileged.\9\ Those requirements encompass virtually all 
information that is relevant to determining a violation, leaving the 
State with ample authority to conduct both civil and criminal 
investigations without the encumbrance of a prior hearing to determine 
whether the material can be reviewed.
---------------------------------------------------------------------------

    \9\ ``Notwithstanding the privilege established under this Act, 
a regulatory agency may review information that is required to be 
available under a specific state or federal law, but such review 
does not waive or eliminate the administrative or civil evidentiary 
privilege where applicable. Tex. Rev. Civ. Stat. Art. 4447cc, Sec. 
9(b).
---------------------------------------------------------------------------

    As to the issues regarding alleged inadequate limits on immunity 
from penalties, EPA points out that if the violation ``results in 
injury or imminent and substantial risk of serious injury to one or 
more persons at the site or off-site substantial actual harm or 
imminent and substantial risk of harm to persons, property, or the 
environment'', or ``the violation has resulted in a substantial 
economic benefit which gives the violator a clear advantage over its 
business competitors'', immunity does not apply. Tex. Rev. Civ. Stat. 
Art. 4447cc, Sec. 10(b)(7) and 10(c)(5). Furthermore, EPA believes that 
Texas has retained authority to curb abuses because it can issue 
administrative or consent orders for violations even if these are 
voluntarily disclosed, and the subsequent violation of such orders is 
not entitled to immunity under State law. In addition, Texas has the 
discretion to determine that a pattern of significant violations should 
disqualify a company from further penalty amnesty.
    Therefore, for the reasons set forth in the Federal Register notice 
(66 FR at 51903) and as set forth above, EPA believes that TNRCC has 
adequate authority to enforce Title V. Because implementation issues 
are not related to interim approval issues, we will address those 
allegations as set forth in Section V.D.

K. Comment K--Confidentiality

    In this comment, Public Citizen is concerned that public air-
related information that should not be classified as confidential is 
being withheld under claims of confidentiality. Much of this comment is 
identical to a comment received in a citizen comment letter. This 
portion of the comment will be addressed as set forth in section V.C. 
Public Citizen did raise one additional issue, namely, the alleged 
change in the treatment of emissions data by the Texas AG. Public 
Citizen contends that previously, a 1975 AG statement prevented 
companies from stopping the release of emissions data to the public if 
a company had claimed the emissions data as confidential. Now, Public 
Citizen contends that the AG has stated that emissions related data, 
including modeling of impacts, and information in a number of other 
documents of impacts, and information in a number of a other documents 
claims as confidential business information must be excluded from 
public access. Thus, Public Citizen asserts that Texas should submit a 
supplemental AG statement on this issue, and EPA should withhold 
approval until this issue is resolved.
EPA Response to Comment K
    As previously noted, EPA is fully approving the Texas operating 
permit program because we believe that Texas has adequately addressed 
the IA deficiencies we identified in our 1995 and 1996 Federal Register 
notices. As such, for the purpose of this approval, Texas is only 
required to address issues related to the correction of IA 
deficiencies. The EPA will address the issue relating to the 
confidentiality of emissions data as set forth in section V.D.

IV. Did Texas Submit Other Title V Program Revisions?

    The June 1, 2001, submittal included other changes that Texas made 
to Chapter 122. These changes were made after we granted IA of Texas's 
operating permits program and do not address the IA deficiencies. 
Because the following changes do not address the IA issues, they do not 
affect our decision to grant full approval of Texas operating permits 
program. The additional revisions to Chapter 122 relate to General 
Operating Permits (promulgated February 26, 1999), Public Participation 
(promulgated September 24, 1999) and Compliance Assurance Monitoring 
and Periodic Monitoring (promulgated September 1, 2000).
    We have received comments from citizens concerning these additional 
provisions in response to our Federal Register notice published 
December 11, 2000. The citizens identified areas where they believe 
these provisions are deficient. We will respond to the citizen comments 
as described in section V.C of this preamble which provides additional 
information on the citizen comment letters. We will take appropriate 
action on the other revisions to Chapter 122 at a later date.

V. What Is Involved in This Final Action?

A. Final Action

    In this action, we are promulgating full approval of the operating 
permits program submitted by the State of Texas. The program was 
submitted by Texas to us for the purpose of complying with federal 
requirements found in title V of the Act and in part 70, which mandate 
that States develop, and submit to us, programs for issuing operating 
permits to all major stationary sources, and to certain other sources 
with the exception of Indian Lands. We have reviewed this submittal of 
the Texas operating permits program and are granting full approval.

B. Indian Lands and Reservations

    In its program submission, Texas did not assert jurisdiction over 
Indian country. To date, no tribal government in Texas has applied to 
EPA for approval to administer a title V program in Indian country 
within the state. The EPA regulations at 40 CFR part 49 govern how 
eligible Indian tribes may be approved by EPA to implement a title V 
program on Indian reservations and in non-reservation areas over which 
the tribe has jurisdiction. EPA's part 71 regulations govern the 
issuance of federal operating permits in Indian country. EPA's 
authority to issue permits in Indian country was challenged in Michigan 
v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued 
its decision in the case, vacating a provision that would have allowed 
EPA to treat areas over which EPA determines there is a question 
regarding the area's status as if it is Indian country, and remanding 
to EPA for further proceedings. The EPA will respond to the court's 
remand and explain EPA's approach for further implementation of part 71 
in Indian country in a future action.

C. Citizen Comment Letters

    On May 22, 2000, EPA promulgated a rulemaking that extended the IA 
period of 86 operating permits programs until December 1, 2001. 65 FR 
32035. The action was subsequently challenged by the Sierra Club and 
the New York Public Interest Research Group (NYPIRG). In settling the 
litigation, EPA agreed to publish a notice in the Federal Register that 
would alert the public that they may identify and bring to EPA's 
attention alleged programmatic and/or implementation deficiencies in 
title V programs and that EPA would respond to their allegations within 
specified time periods if the comments were made

[[Page 63330]]

within 90 days of publication of the Federal Register notice.
    Several citizens commented on what they believe to be deficiencies 
with respect to the Texas title V program. As stated in the October 11, 
2001 Federal Register notice proposing to fully approve the Texas 
operating permit program, EPA takes no action on those comments in 
today's action. Rather, EPA expects to respond by December 14, 2001 to 
timely public comments on programs that have obtained IA. We will 
publish a notice of deficiency (NOD) when we determine that a 
deficiency exists, or we will notify the commenter in writing to 
explain our reasons for not making a finding of deficiency. In 
addition, we will publish a notice of availability in the Federal 
Register notifying the public that we have responded in writing to 
these comments and how the public may obtain a copy of our response. An 
NOD will not necessarily be limited to deficiencies identified by 
citizens and may include any deficiencies that we have identified 
through our program oversight. Furthermore, in the future, EPA may 
issue an additional NOD if EPA or a citizen identifies other 
deficiencies.

D. Non IA Issues Not Addressed in Citizen Comment Letter Responses

    Public Citizen raised many issues in response to our October 11, 
2001, proposal that are not related to the IA issues and were not 
raised in response to EPA's December 2000 notice soliciting citizen 
comments on state operating permit programs. These issues include 
sufficiency of the AG Statement, statutory changes enacted after 1995, 
Audit Privilege Act implementation, confidentiality of emissions data, 
alleged failure of Texas's compliance assurance monitoring provisions 
to comply with part 64, public participation in enforcement, emergency 
orders, temporary sources, alleged violation of statutory deadlines, 
insignificant emission units, and acid rain requirement. For the 
reasons set forth in our response to Comment A in section III, EPA 
believes that limiting our review to IA issues does not limit our 
ability to grant full approval to Texas. Therefore, EPA will address 
the issues at a later date.

VI. What Is the Effective Date of EPA's Full Approval of the Texas 
Title V Program?

    The EPA is using the good cause exception under the Administrative 
Procedure Act (APA) to make the full approval of the state's program 
effective on November 30, 2001. In relevant part, the APA provides that 
publication of ``a substantive rule shall be made not less than 30 days 
before its effective date, except-- * * * (3) as otherwise provided by 
the agency for good cause found and published with the rule. 5 U.S.C. 
553(d)(3). Section 553(b)(3)(B) of the APA provides that good cause may 
be supported by an agency determination that a delay in the effective 
date is impracticable, unnecessary, or contrary to the public interest. 
The EPA finds that it is necessary and in the public interest to make 
this action effective sooner than 30 days following publication. In 
this case, EPA believes that it is in the public interest for the 
program to take effect before December 1, 2001. EPA's IA of Texas's 
prior program expires on December 1, 2001. In the absence of this full 
approval of Texas's amended program taking effect on November 30, 2001, 
the federal program under 40 CFR part 71 would automatically take 
effect in Texas and would remain in place until the effective date of 
the fully-approved state program. The EPA believes it is in the public 
interest for sources, the public and Texas to avoid any gap in coverage 
of the state program, as such a gap could cause confusion regarding 
permitting obligations. Furthermore, a delay in the effective date is 
unnecessary because Texas has been administering the title V permit 
program for six years under an IA. Through this action, EPA is 
approving a few revisions to the existing and currently operational 
program. The change from the interim approved program which 
substantially met the part 70 requirements, to the fully approved 
program is relatively minor, in particular if compared to the changes 
between a state-established and administered program and the federal 
program.

VII. Administrative Requirements

    Under Executive Order 12866, Regulatory Planning and Review (58 FR 
51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this final 
approval 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 
(Public Law 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). This rule 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 final approval 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.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs 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 a State 
operating permit

[[Page 63331]]

program for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews an operating permit program, to 
use VCS in place of a State program that otherwise satisfies the 
provisions of the Clean Air Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) 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. The 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). This rule will be effective on November 30, 2001.
    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 February 4, 2002. 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.

    Dated: November 29, 2001.
Lawrence E. Starfield,
Acting Deputy Regional Administrator, Region 6.

    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]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.


    2. Appendix A to part 70 is amended under the entry for Texas by 
adding paragraph (b) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Texas

* * * * *
    (b) The Texas Natural Resource Conservation Commission submitted 
program revisions on June 12, 1998, and June 1, 2001, and 
supplementary information on August 22, 2001; August 23, 2001; 
September 20, 2001; and November 5, 2001. The rule revisions 
adequately addressed the conditions of the IA effective on July 25, 
1996, and which will expire on December 1, 2001. The State is hereby 
granted final full approval effective on November 30, 2001.
* * * * *
[FR Doc. 01-30270 Filed 12-5-01; 8:45 am]
BILLING CODE 6560-50-P