[Federal Register Volume 67, Number 4 (Monday, January 7, 2002)]
[Notices]
[Pages 732-736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-298]


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ENVIRONMENTAL PROTECTION AGENCY

[TX-FRL-7126-1]


Notice of Deficiency for Clean Air Act Operating Permits Program; 
State of Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency.

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SUMMARY: Pursuant to its authority under section 502(i) of the Clean 
Air Act (Act) and the implementing regulations at 40 CFR 70.10(b)(1), 
EPA is publishing this Notice of Deficiency (NOD) for the Texas Clean 
Air Act title V Operating Permits Program. The Notice of Deficiency is 
based upon EPA's finding that the State's periodic monitoring 
regulations, compliance assurance monitoring (CAM) regulations, 
periodic monitoring and CAM general operating permits (GOPs), statement 
of basis requirement, applicable requirement definition, and potential 
to emit registration regulation do not meet the minimum federal 
requirements of the Act and 40 CFR part 70. Publication of this notice 
is a prerequisite for withdrawal of Texas' title V program approval, 
but EPA is not withdrawing the program through this action.

EFFECTIVE DATE: January 7, 2002. Because this NOD is an adjudication 
and not a final rule, the Administrative Procedure Act's 30-day 
deferral of the effective date of a rule does not apply.

FOR FURTHER INFORMATION CONTACT: Jole C. Luehrs, Chief, Air Permits 
Section, Multimedia Planning & Permitting Division, Environmental 
Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202, 
(214) 665-7250.

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

Table of Contents

I. Description of Action
II. Deficiencies
    A. Periodic Monitoring Regulations
    B. Compliance Assurance Monitoring Regulations
    C. Periodic Monitoring and Compliance Assurance Monitoring 
General Operating Permits
    D. Statement of Basis Requirement
    E. Applicable Requirement Definition
    F. Potential to Emit Registration Regulation
III. Effect of Notice of Deficiency
IV. Administrative Requirements

I. Description of Action

    We are publishing this NOD for the Texas Clean Air Act (CAA or Act) 
title V program, which was granted interim approval on June 25, 1996. 
61 FR 32693.\1\ On May 22, 2000, we promulgated a rulemaking that 
extended the interim approval 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, we agreed to publish a 
document in the Federal Register that would alert the public that it 
may identify and bring to our attention alleged programmatic and/or 
implementation deficiencies in title V programs, and that we would 
respond to the public's allegations within specified time periods if 
the comments were made within 90 days of publication of the Federal 
Register document (March 11, 2001).
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    \1\ On December 6, 2001, we promulgated full approval of Texas' 
Operating Permits Program. 66 FR 63318.
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    Public Citizen, on behalf of the American Lung Association of 
Texas, Environmental Defense, the law firm of Henry, Lowerre & 
Federick, Lone Star Chapter of the Sierra Club, Texas Center for Policy 
Studies, Sustainable Energy and Economic Development Coalition, Texas 
Campaign for the Environment, Galveston Houston Association for Smog 
Prevention, Neighbors for Neighbors, and Texas Impact (collectively 
referred to as ``commenters'') filed comments with EPA alleging several 
deficiencies with respect to the Texas title V program (Comment 
Letter). We have completed our review of those comments. We have 
identified deficiencies relating to Texas' periodic monitoring 
regulations, CAM regulations, periodic monitoring and CAM GOPs, 
statement of basis requirement, applicable requirement definition, and 
potential to emit registration regulation. These deficiencies are 
discussed below.
    Under EPA's permitting regulations, citizens may, at any time, 
petition EPA regarding alleged deficiencies in state title V operating 
permitting programs. In addition, EPA may identify deficiencies

[[Page 733]]

on its own. If, in the future, EPA agrees with a new citizen petition 
or otherwise identifies deficiencies, EPA may issue a new NOD or take 
other affirmative actions.

II. Deficiencies

    Below is a discussion of the comments that we have identified as 
deficiencies, and by this notice are requesting the State to correct 
the deficiencies.

A. Periodic Monitoring Regulations

    The commenters allege that instead of ensuring that every title V 
permit includes periodic monitoring, as required by 40 CFR 
70.6(a)(3)(i)(B), 30 TAC 122.142(c) makes periodic monitoring optional 
because it only requires permits to include periodic monitoring ``as 
required by the executive director.'' \2\ Further, the commenters 
contend that the Texas Natural Resource Conservation Commission's 
(TNRCC) rules specifically state that no facility need submit an 
application for periodic monitoring for approximately two years, or 
longer.\3\ Therefore, the commenters conclude that these provisions are 
inconsistent with federal requirements. The commenters also assert that 
TNRCC's failure to require timely periodic monitoring has caused the 
issuance of numerous defective title V permits. Comment Letter at 12.
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    \2\ 30 TAC 122.142(c) provides that ``each permit shall contain 
periodic monitoring requirements, as required by the executive 
director, that are designed to produce data that are representative 
of the emission unit's compliance with the applicable 
requirements.''
    \3\ 30 TAC 122.604(a)(1) & (2) provide that ``for an emission 
unit that is subject to an emission limitation or standard on or 
before the issuance date of a periodic monitoring GOP containing the 
emission limitation or standard, the permit holder shall submit an 
application no later than 30 days after the end of the second permit 
anniversary following issuance of the periodic monitoring GOP. For 
an emission unit that becomes subject to an emission limitation or 
standard after the issuance date of a periodic monitoring GOP 
containing the emission limitation or standard, the permit holder 
shall submit an application no later than 30 days after the second 
permit anniversary following the date that the emission unit became 
subject to the emission limitation or standard.''
    The provisions of 30 TAC Chapter 122, Subchapter G 
(Sec. 122.600-122.612) ``[do] not apply to emission limitations or 
standards for which the executive director has determined that the 
applicable requirement has sufficient periodic monitoring (which may 
consistent of recordkeeping * * *.'' 30 TAC 122.602(b).
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    According to TNRCC,

periodic monitoring is implemented in two phases. The first phase is 
at initial issuance for those emission limitations or standards with 
no monitoring, testing, recordkeeping, or reporting. The second 
phase is through the GOPs for those emission limitations or 
standards which only require a one-time test at start-up or when 
requested by the EPA. Each permit will contain periodic monitoring 
as appropriate.

26 TexReg 3747, 3785 (May 25, 2001).\4\
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    \4\ However, a one-time test is not considered periodic 
monitoring. Appalachian Power Company v. EPA, 208 F.3d 1015, 1028 
(D.C. Cir. 2000).
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    However, TNRCC's approach to implementing periodic monitoring does 
not comply with the requirements of part 70. The requirement for 
periodic monitoring is set forth in 40 CFR 70.6(a)(3)(i)(B), which 
requires that each permit must include:

    where the applicable requirement does not require periodic 
testing or instrumental or noninstrumental monitoring (which may 
consist of recordkeeping designed to serve as monitoring), periodic 
monitoring sufficient to yield reliable data from the relevant time 
period that are representative of the source's compliance with the 
permit * * *.''

    A review of the relevant Texas regulations reveals that Texas' 
periodic monitoring regulations do not meet the requirements of part 70 
and must be revised. Under 30 TAC 122.600, the periodic monitoring 
requirements of 30 TAC 122.142(c) are implemented through a periodic 
monitoring GOP, or a periodic monitoring case by case determination, in 
accordance with 30 TAC Chapter 122, Subchapter G--Periodic 
Monitoring.\5\ TNRCC's use of a phased approach through the GOP process 
does not ensure that all permits have periodic monitoring when they are 
issued, as required by 40 CFR 70.6(a)(3)(i)(B). The regulations do not 
meet the requirements of part 70 because a facility does not have to 
apply for a periodic monitoring GOP until two years after the periodic 
monitoring GOP has been issued. 30 TAC 122.604(a)(1). Since the two 
year period starts after issuance of the GOP, a source's title V permit 
could be in effect for longer than two years before periodic monitoring 
is incorporated into the permit.\6\ Therefore, this regulatory 
deficiency must be corrected. TNRCC must revise its regulations to 
ensure that all title V permits, including all GOPs, when issued, 
contain periodic monitoring requirements that meet the requirements of 
40 CFR 70.6(a)(3)(i)(B).
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    \5\ 30 TAC 122.600(b) does allow TNRCC to establish periodic 
monitoring requirements through the permitting process for specific 
emission limitations or standards to satisfy 30 TAC 122.142(c).
    \6\ If the emission unit becomes subject to an emission 
limitation or standard after the issuance date of a period 
monitoring GOP, the permit holder must submit the application no 
later than 30 days after the end of the second permit anniversary 
following the date that the emission unit became subject to the 
emission limitation or standard. 30 TAC 122.604(a)(2).
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    In addition, in implementing the periodic monitoring requirement, 
TNRCC must ensure that each permit includes monitoring sufficient to 
assure compliance with the terms and conditions of the permit. See 40 
CFR 70.6(c)(1).\7\ Each permit must also include periodic monitoring 
sufficient to yield reliable data from the relevant time period that 
are representative of the source's compliance with the permit. See 40 
CFR 70.6(a)(3)(i)(B). Thus, if the periodic monitoring for a particular 
applicable requirement is inadequate to assure compliance with the 
terms and conditions of the permit, 40 CFR 70.6(c)(1) and 30 TAC 
122.142(b)(2)(B)(ii) require TNRCC to provide enhanced monitoring to 
assure compliance with the permit.
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    \7\ Also note that
    Where the applicable requirement already requires periodic 
testing or instrumental or non-instrumental monitoring, however, * * 
* the periodic monitoring rule in Sec. 70.6(a)(3) does not apply 
even if that monitoring is not sufficient to assure compliance. In 
such cases, the separate regulatory standard at Sec. 70.6(c)(1) 
applies instead. By its terms, Sec. 70.6(c0(1)--like the statutory 
provisions it implements--calls for sufficiency reviews of periodic 
testing and monitoring in applicable requirements, and enhancement 
of that testing or monitoring through the permit as necessary to be 
sufficient to assure compliance with the terms and conditions of the 
permit. In the Matter of Pacificorp's Jim Bridger and Naughton 
Electric Utility Steam Generating Plants, Petition No. VIII-00-1 at 
18-19 (Administrator November 16, 2000).
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B. Compliance Assurance Monitoring Regulations

    The commenters allege that TNRCC's permit content rules do not 
require that title V permits include testing and monitoring sufficient 
to assure compliance. Instead, the rules provide that applications for 
CAM need not be submitted for approximately two years, and maybe 
longer. 30 TAC 122.704.\8\ Thus, the commenters assert that TNRCC's 
failure to require sufficient testing and monitoring in its title V 
permits is a defect in its title V program and has resulted in the 
issuance of many ineffective and incomplete title V permits. Comment 
Letter at 12--14.
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    \8\ 30 TAC 122.704(a)(1) & (2) provide that ``for an emission 
unit that subject to this subchapter on or before the issuance unit 
that subject to this subchapter on or before the issuance date of a 
CAM GOP containing an emission limitation or standard that applies 
to that emission unit, the permit holder shall submit an application 
no later than 30 days after the end of the second permit anniversary 
following issuance of the CAM GOP. For an emission unit that becomes 
subject to this subchapter after the issuance date of a CAM GOP that 
applies to that emission unit, the permit holder shall submit an 
application no later than 30 days after the second permit 
anniversary following the date that the emission unit became subject 
to this subchapter.''
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    According to TNRCC, CAM, like periodic monitoring, is also being 
implemented in a phased approach:


[[Page 734]]


    The executive director is implementing CAM and periodic 
monitoring through a phased approach based on permit issuance and 
SIC codes. The commission considered several factors when developing 
the schedule for application due dates. Due to the technical 
requirements in 40 CFR part 64, compliance with CAM and periodic 
monitoring may require permit holders to purchase and install new 
equipment or conduct performance testing. The application submittal 
schedule should allow permit holders a reasonable amount of time to 
budget for, purchase, install, and test equipment necessary to 
comply with CAM and periodic monitoring requirements. Furthermore, 
the schedule allows the executive director time to develop 
comprehensive monitoring options for inclusion in various CAM and 
periodic monitoring GOPs issued over time. Finally, under the 
schedule, permit holders will submit applications to the executive 
director in manageable numbers throughout each calendar year. The 
executive director will be able to review these applications in a 
more timely fashion than if all applications were due at the same 
time.

26 TexReg at 3786-87.
    CAM is implemented through 40 CFR part 64 and 40 CFR 
70.6(a)(3)(i)(A). 40 CFR 64.5 provides that CAM applies at permit 
renewal unless the permit holder has not filed a title V permit 
application by April 20, 1998, or the title V permit application has 
not been determined to be administratively complete by April 20, 1998. 
CAM also applies to a title V permit holder who filed a significant 
permit revision under title V after April 20, 1998. However, in this 
case, CAM would only apply to pollutant specific emission units for 
which the proposed permit revision is applicable.
    40 CFR 70.6(a)(3)(i)(A) requires that each permit include ``all 
monitoring and analysis procedures or test methods required under 
applicable monitoring and testing requirements, including part 64 of 
this chapter [CAM] * * * ''
    The TNRCC implements CAM through either CAM GOPs or a CAM case-by 
case determination, in accordance with 30 TAC Chapter 122, Subchapter 
G--Compliance Assurance Monitoring. 30 TAC 122.700(a). The TNRCC's use 
of a phased approach does not ensure that all permits will have the CAM 
required by 40 CFR 70.6(a)(3)(i)(A), according to the schedule in 40 
CFR 64.5 because a facility does not have to apply for a CAM GOP until 
two years after the CAM GOP has been issued. Since the two year period 
starts after issuance of the GOP, a source's title V permit could be 
renewed (or a significant permit revision issued) before CAM is 
incorporated into the permit.\9\ The TNRCC regulations do not meet the 
requirements of the Act and part 70 and TNRCC must revise its 
regulations to ensure that all title V permits, including all GOPs, 
will have the CAM required by CFR 70.6(a)(3)(i)(A), according to the 
schedule in 40 CFR 64.5.
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    \9\ If the emission unit that becomes subject to Subchapter G 
after the issuance date of a CAM GOP that applies to that emission 
unit, the permit holder must submit an application no later than 30 
days after the second permit anniversary following the date that the 
emission unit became subject to this subchapter. 30 TAC 
122.704(a)(2).
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C. Periodic Monitoring and Compliance Assurance Monitoring General 
Operating Permits

    The commenters allege that periodic monitoring and CAM are permit 
conditions which are required to be included in each title V permit. 
The TNRCC, however, is issuing title V permits without periodic 
monitoring or CAM, and allowing facilities to utilize the GOP process 
to adopt periodic monitoring and CAM. The commenters assert that 
because periodic monitoring and CAM are permit conditions, and not 
operating permits, the periodic monitoring and CAM GOPs do not comply 
with the requirement in 40 CFR 70.6(d) that GOPs must ``comply with all 
requirements applicable to other part 70 permits.'' For example, the 
commenters claim the periodic monitoring and CAM GOPs do not include 
enforceable emission limitations and standards, a schedule of 
compliance, and a requirement that the permittee submit to the 
permitting authority no less often than every six months, the results 
of any required monitoring, as required by title V. The commenters also 
assert that the CAM and periodic monitoring GOPs do not apply to 
``numerous similar sources'', as required by 40 CFR 70.6(d). They apply 
statewide to any source that has to comply with applicable requirements 
which are listed in the GOP. Therefore, the commenters believe that CAM 
and periodic monitoring GOPs simply do not meet title V's definition of 
or requirements for general permits. Comment Letter at 21-22.
    The TNRCC argues that

    the CAM and periodic monitoring GOPs were not designed to mimic 
a [site operating permit (SOP)]; therefore, the content will not be 
identical to the requirements of 40 CFR 70.6(a) and (b). The CAM and 
periodic monitoring GOPs are unique in that the information 
submitted will become a part of the existing SOP or GOP and are 
supplemental to an existing operating permit. The commission 
believes that Part 70 implements the requirements listed in 42 
U.S.C. 7661b, Permit Applications. The commission believes its 
application requirement is consistent with 40 CFR 70.6(a) and (b). 
These requirements have been incorporated into a previously issued 
SOP or GOP and are not required for CAM or periodic monitoring GOP 
applications.

26 TexReg at 3786.
    The TNRCC's use of GOPs to implement periodic monitoring and CAM 
does not comply with part 70. The requirements for GOPs are set forth 
in 40 CFR 70.6(d). 40 CFR 70.6(d)(1) provides that ``any general permit 
shall comply with all requirements applicable to other part 70 
permits.'' The requirements for part 70 permits are set forth in 40 CFR 
70.6. A review of Periodic Monitoring GOP No. 1 and CAM GOP No. 1 shows 
that the terms and conditions of these GOPs only relate to the 
respective monitoring requirements, monitoring options, and related 
monitoring requirements for certain applicable requirements.\10\ Thus, 
they are missing a number of the requirements of 40 CFR 70.6, and 
therefore do not meet the requirements for GOPs set forth in 40 CFR 
70.6(d). The fact that the missing requirements may be in another 
permit or permit application is irrelevant. 40 CFR 70.6(d) requires 
that all the requirements of 40 CFR 70.6 be included in a GOP. 
Therefore, Texas must revise its regulations to ensure that each GOP 
issued includes all of the requirements in 40 CFR 70.6, including the 
periodic monitoring and CAM requirements discussed in Sections II.A. 
and B above.\11\ Furthermore, Texas must ensure that any GOP issued 
covers similar sources, as required by 40 CFR 70.6(d).
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    \10\ Periodic monitoring GOP No. 1 and CAM GOP No. 1 apply to 
nine different New Source Performance Standards, 40 CFR part 60, 
Subparts F, Y, CC, DD, HH, LL, NN, OOO, PPP; 30 TAC 111.111 (Visible 
Emissions), 30 TAC 111.151 (Emission Limits on Nonagricultural 
Processes), and 30 TAC 111.171 (Emission Limits on Agricultural 
Processes).
    \11\ Inclusion of CAM in GOPs is subject to the schedule set 
forth in 40 CFR 64.5.
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D. Statement of Basis Requirement

    The commenters claim that TNRCC's rules do not require that it 
prepare and make available a statement setting forth the ``legal and 
factual basis for the draft permit conditions (including references to 
the applicable statutory or regulatory provisions)'', otherwise known 
as a ``statement of basis''.\12\ Further, the commenters assert that 
there have been no statements of basis in the title V facility files 
they have reviewed. The files, however, do include a ``Technical 
Summary'', which includes a process description and tracks the 
facility's movement through the permitting process. The commenters 
claim that these ``Technical Summaries'' do not

[[Page 735]]

explain the basis for the draft permit conditions. Therefore, the 
commenters contend that EPA should require TNRCC to prepare a statement 
of basis that meets the part 70 requirements. Comment Letter at 21-22.
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    \12\ 40 CFR 70.7(a)(5).
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    According to TNRCC:

    [t]he executive director does not prepare a specific ``statement 
of basis'' for each permit, but rather has implemented this Part 70 
provision by developing a permit that states a regulatory citation 
for each applicable requirement. The commission is unaware of any 
self-implementing statutory requirements that do not have parallel 
regulatory provisions. These permit conditions are based on the 
application and the technical review which includes a site 
inspection. The commission believes including this detail in the 
permits meets the requirements of Part 70 for including a statement 
of basis.

26 TexReg at 3769-70.
    The TNRCC's approach to the ``statement of basis'' requirement does 
not comply with the requirements of part 70. 40 CFR 70.7(a)(5) requires 
that ``[t]he permitting authority shall provide a statement that sets 
forth the legal and factual basis for the draft permit conditions 
(including references to the applicable statutory or regulatory 
provisions). The permitting authority shall send this statement to EPA 
and to any other person who requests it.'' For example, in the Fort 
James Camas Mill title V Petition Response, EPA stated that this 
section required that ``the rationale for the selected monitoring 
method must be clear and documented in the permit record.'' In the 
Matter of Fort James Camas Mill, Petition No. X-1999-1 at 8 
(Administrator December 22, 2000).
    Our review of TNRCC's regulations reveals that there is no state 
regulation corresponding to 40 CFR 70.7(a)(5). The ``Technical 
Summaries'' do not set forth the legal and factual basis for the draft 
permit conditions. Furthermore, the elements of the statement of basis 
may change depending on the type and complexity of the facility, and 
would also be subject to change because of future regulatory revisions. 
Accordingly, a statement of basis should include, but is not limited 
to, a description of the facility, a discussion of any operational 
flexibility that will be utilized at the facility, the basis for 
applying the permit shield, any federal regulatory applicability 
determinations, and the rationale for the monitoring methods selected.
    Therefore, Texas must revise its regulations to require that it 
prepare and make available a statement setting forth the legal and 
factual basis for the draft permit conditions (including references to 
the applicable statutory or regulatory provisions), and that this 
statement be sent to EPA and any person who requests it, as required by 
40 CFR 70.7(a)(5). This provision will require TNRCC to explain why 
certain specific requirements, as set forth above, were included in the 
permit. See In the Matter of Fort James Camas Mill, Petition No. X-
1999-1 at 8 (``rationale for selected monitoring method must be clear 
and documented in the permit record'').

E. Applicable Requirement Definition

    The commenters allege that Texas' definition of ``applicable 
requirement'' does not include all applicable provisions of the Texas 
State Implementation Plan (SIP). For example, 30 TAC Chapter 101, 
Sections 101.1 through 101.30 (Subchapter A), are included in the Texas 
SIP. Yet the TNRCC only includes Subchapter H of Chapter 101 as an 
``applicable requirement.'' Second, the commenters contend that the 
TNRCC's applicable requirement definition refers to Texas 
Administrative Code sections which may change without corresponding 
changes in the Texas SIP. Because title V facilities are obligated to 
comply with all provisions of the Texas SIP, the commenters assert that 
the Texas rules should generally state that any current provision of 
the Texas SIP is an applicable requirement. Comment Letter at 22-23.
    The definition of applicable requirement in 40 CFR 70.2 includes, 
as they apply to emission units in a part 70 source, ``any standard or 
other requirement provided for in the applicable implementation plan 
approved or promulgated by EPA through rulemaking under title I of the 
Act, that implements the relevant requirements of the Act, including 
any revisions to that plan promulgated in [40 CFR part 52]''. Thus, the 
phrase ``relevant requirements of the Act'' is not limited to 
requirements relating to permit content.'' \13\
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    \13\ TNRCC has stated that it ``includes in the definition of 
applicable requirement those chapters and portions of chapters 
provided in the SIP that are relevant to permit content.'' 26 TexReg 
at 3759 (emphasis added).
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    A review of Chapter 101, Subchapter A reveals that a number of 
these regulations are applicable requirements of the Act, including, 
but not limited to, 30 TAC 101.1, 101.6, 101.7, and 101.11.\14\ 
Therefore, TNRCC must revise its definition of ``applicable 
requirement'' in 30 TAC 122.10(2) to include all the applicable 
provisions of its SIP in its definition of applicable requirement.
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    \14\ This is not an exhaustive list. We will work with TNRCC to 
identify all applicable requirements that must be included in its 
definition of applicable requirements, including any regulations 
outside of Chapter 101.
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    However, contrary to the commenters' assertions, we have concluded 
there is no requirement that TNRCC adopt a definition to generally 
state that any current provision of the Texas SIP is an applicable 
requirement. A State may cite to specific provisions of its 
administrative code, as Texas has done. Failing to adopt the general 
definition as set forth in 40 CFR 70.2 may result in TNRCC having to 
revise its title V program if it adopts an applicable requirement 
elsewhere in the SIP that does not fit within its definition of 
applicable requirement in its title V regulations.

F. Potential to Emit Registration Regulation

    The commenters state that although part 70 allows facilities to 
avoid title V permitting by limiting their potential to emit (PTE), EPA 
Guidance requires that the limits be practically enforceable. However, 
the commenters assert that 30 TAC 122.122(e), which allows a facility 
to keep all documentation of its PTE limitations on site without 
providing those documents to the State or to EPA, is not practically 
enforceable.\15\ The public files on the facility would contain no 
information regarding the limitations that the facility has adopted. 
Neither the State nor EPA would know about the limitations unless they 
specifically inquire about them at the facility, and therefore these 
limits would not be practically enforceable. Thus, the commenters 
contend that EPA should require that any limitations Texas allows on 
PTE be recorded in public files and practically enforceable. Comment 
Letter at 26--27.
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    \15\ 30 TAC 122.122 reads as follows:
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    (a) For purposes of determining applicability of the Federal 
Operating Permit Program under this chapter, the owner or operator of 
stationary sources without any other federally enforceable emission 
rate may limit their sources' potential to emit by maintaining a 
certified registration of emissions, which shall be federally 
enforceable. * * *
* * * * *
    (d) In order to qualify for registrations of emissions under this 
section, the maximum emission rates listed in the registration must be 
less than those rates defined for a major source in Sec. 122.10 of this 
title (relating to General Definitions).
    (e) The certified registrations of emissions and records 
demonstrating compliance with such registration shall

[[Page 736]]

be maintained on-site, or at an accessible designated location, and 
shall be provided, upon request, during regular business hours to 
representatives of the Texas Air Control Board or any air pollution 
control agency having jurisdiction.
    According to TNRCC,

    [it] agrees that a regulation limiting a site's potential to 
emit must be practically enforceable, but that certified 
registrations kept on site meet this requirement. The Sec. 122.10 
potential to emit definition specifies that ``any certified 
registration or preconstruction authorization restricting emissions 
* * * shall be treated as part of its design if the limitation is 
enforceable by the EPA.'' The EPA, in 40 CFR 52.21(b)(17), defines 
federally enforceable as ``all limitations and conditions which are 
enforceable by the administrator, including those * * * requirements 
within any applicable SIP.'' Since the commission submitted 
Sec. 122.122 for incorporation into the SIP, the commission 
considers limits established under Sec. 122.122 to be federally 
enforceable. Further, Sec. 122.122 specifies that certain 
registration of emissions and records demonstrating compliance with 
the registration must be kept on-site, or at an accessible location, 
and shall, upon request, be provided to the commission or any air 
pollution control agency having jurisdiction. The commission does 
not believe that a certified registration of emissions must be 
submitted in order to be practically enforceable since the owner or 
operator must make the registration and any supporting documentation 
available during an inspection.

26 TexReg at 3761.
    The TNRCC's approach to PTE limitations does not comply with the 
requirements of the Act. First, 30 TAC 122.122 is not part of the Texas 
SIP. The EPA has not approved 30 TAC 122.122, into the SIP. Therefore 
it is not federally enforceable.\16\
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    \16\ Texas' definition of ``federally enforceable'' in 30 TAC 
101.1(31) also supports this conclusion. Federally enforceable is 
defined as ``all limitations and conditions which are enforceable by 
the EPA administrator, including those requirements developed under 
40 CFR parts 60 and 61, requirements within any applicable state 
implementation plan (SIP), any permit requirements established under 
40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 
51, subpart I, including operating permits issued under the approved 
program that is incorporated into the SIP and that expressly 
requires adherence to any permit issued under such program.''
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    Even if the rule were federally enforceable, the rule must also be 
practically enforceable.\17\ One of the requirements for practical 
enforceability is notice to the State.\18\ Under 30 TAC 122.122, there 
is no requirement that the State be notified and the registrations are 
kept on site. Therefore, neither the public, TNRCC, or EPA know what 
the PTE limit is without going to the site. A facility could change its 
PTE limit several times without the public or TNRCC knowing about the 
change. Therefore, these limitations are not practically enforceable, 
and TNRCC must revise this regulation to make the regulation 
practically enforceable. The revised regulation must also be approved 
into the SIP before it, and the registrations, become federally 
enforceable.
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    \17\ Seitz and Van Heuvelen, Release of Interim Policy on 
Federal Enforceability of Limitations on Potential to Emit (January 
22, 1996), and Stein, Guidance on Enforceability Requirements for 
Limiting Potential to Emit through SIP and Sec. 112 Rules and 
General Permits (January 25, 1995)
    \18\ Stein, Guidance on Enforceability Requirements for Limits 
Potential to Emit through SIP and Sec. 112 Rules and General Permits 
at 6-8.
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III. Effect of Notice of Deficiency

    Title V of the Act provides for the approval of state programs for 
the issuance of operating permits that incorporate the applicable 
requirements of the Act. To receive title V program approval, a state 
permitting authority must submit a program to EPA that meets certain 
minimum criteria, and EPA must disapprove a program that fails, or 
withdraw an approved program that subsequently fails, to meet these 
criteria. These criteria include requirements that the state permitting 
authority have authority to ``assure compliance by all sources required 
to have a permit under this subchapter with each applicable standard, 
regulation or requirement under this chapter.'' CAA Section 
502(b)(5)(A).
    40 CFR 70.10(c)(1) provides that EPA may withdraw a part 70 program 
approval, in whole or in part, whenever the approved program no longer 
complies with the requirements of part 70. This section goes on to list 
a number of potential bases for program withdrawal, including the case 
where the permitting authority fails to promulgate or enact new 
authorities when necessary. 40 CFR 70.10(c)(1)(i)(A).
    40 CFR 70.10(b) sets forth the procedures for program withdrawal, 
and requires as a prerequisite to withdrawal that the permitting 
authority be notified of any finding of deficiency by the Administrator 
and that the notice be published in the Federal Register. Today's 
notice satisfies this requirement and constitutes a finding of 
deficiency. If the permitting authority has not taken ``significant 
action to assure adequate administration and enforcement of the 
program'' within 90 days after publication of a notice of deficiency, 
EPA may take action under 40 CFR 70.10(b)(2). 40 CFR 70.10(b)(3) 
provides that, if a state has not corrected the deficiency within 18 
months of the NOD, EPA will apply the sanctions under section 179(b) of 
the Act, in accordance with section 179(a) of the Act. Upon EPA action, 
the sanctions will go into effect unless the state has corrected the 
deficiencies identified in this notice within 18 months after signature 
of this notice.\19\ 40 CFR 70.10(b)(4) provides that, if the state has 
not corrected the deficiency within 18 months after the date of finding 
of deficiency, EPA must promulgate, administer, and enforce a whole or 
partial program within 2 years of the date of the finding.
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    \19\ The EPA is developing an Order of Sanctions rule to 
determine which sanction applies at the end of this 18 month period.
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    This document is not a proposal to withdraw Texas' title V program. 
Consistent with 40 CFR 70.10(b)(2), EPA will wait at least 90 days, at 
which point it will determine whether Texas has taken significant 
action to correct the deficiencies.

IV. Administrative Requirements

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of today's action may be filed in the United States 
Court of Appeals for the appropriate circuit by March 8, 2002.

    Dated: December 20, 2001.
Gregg A. Cooke,
Regional Administrator, Region 6.
[FR Doc. 02-298 Filed 1-4-02; 8:45 am]
BILLING CODE 6560-50-P