[Federal Register Volume 70, Number 60 (Wednesday, March 30, 2005)]
[Rules and Regulations]
[Pages 16134-16141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6314]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[TX-154-2-7609; FRL-7892-6]


Approval of Revisions and Notice of Resolution of Deficiency for 
Clean Air Act Operating Permit Program in Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the Texas Title V operating 
permits program submitted by the Texas Commission on Environmental 
Quality (TCEQ) on December 9, 2002. In a Notice of Deficiency (NOD) 
published on January 7, 2002, EPA notified Texas of EPA's finding that 
the State's periodic monitoring regulations, compliance assurance 
monitoring (CAM) regulations, periodic monitoring and CAM general 
operating permits (GOP), statement of basis requirement, applicable 
requirement definition, and potential to emit (PTE) registration 
regulations did not meet the minimum Federal requirements of the Clean 
Air Act and the regulations for State operating permits pfrograms. This 
action approves the revisions that TCEQ submitted to correct the 
identified deficiencies. Today's action also approves other revisions 
to the Texas Title V Operating Permit Program submitted on December 9, 
2002, which relate to concurrent review and credible evidence. The 
December 9, 2002, submittal also included revisions to the Texas State 
Implementation Plan (SIP). We published our final SIP approval in the 
Federal Register on November 14, 2003 (68 FR 64543). These revisions to 
Texas' operating permits program resolve all deficiencies identified in 
the January 7, 2002, NOD and removes the potential for any resulting 
consequences under the Act, including sanctions, with respect to the 
January 7, 2002, NOD.

DATES: This final rule is effective on April 29, 2005.

ADDRESSES: Copies of the documents relevant to this action, including 
EPA's Technical Support Document, are in the official file which is 
available at the Air Permits Section (6PD-R), Environmental Protection 
Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file 
will be made available by appointment for public inspection in

[[Page 16135]]

the Region 6 Freedom of Information Act Review Room between the hours 
of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact 
Mr. Stanley M. Spruiell at 214-665-7212 to make an appointment. If 
possible, please make the appointment at least two working days in 
advance of your visit. There will be a 15 cent per page fee for making 
photocopies of documents. On the day of the visit, please check in at 
the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, 
Texas.
    Copies of any State submittals are also available for public 
inspection at the State Air Agency listed below during official 
business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212, 
; fax number 214-665-7263; e-mail address [email protected].

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

Outline

I. Background
II. What is Being Addressed in This Action?
    A. Periodic Monitoring Regulations
    B. Compliance Assurance Monitoring Regulations
    C. Periodic Monitoring and Compliance Assurance Monitoring 
General Operating Permits
    D. Statement of Basis Requirement
    E. Definition of Applicable Requirement
    F. Potential To Emit Registration Requirements
III. What Other Program Changes are We Approving?
    A. Credible Evidence
    B. Concurrent Review
IV. What is Our Response to Comments Received in Response to Our 
Proposed Rulemaking?
V. What is our Final Action?
VI. Statutory and Executive Order Reviews

I. Background

    The Clean Air Act (the Act) Amendments of 1990 required all States 
to develop operating permits programs that meet Title V of the Act, 42 
U.S.C. 7661-7661f, and its implementing regulations, 40 CFR part 70. 
Texas' operating permit program was submitted in response to this 
directive on November 15, 1993. We promulgated interim approval of the 
Texas Title V program on June 25, 1996 (61 FR 32693) and the program 
became effective on July 25, 1996. Subsequently, we promulgated full 
approval of the Texas Title V program effective November 30, 2001 (66 
FR 63318, December 6, 2001). As explained in the proposed and final 
full approval, we granted full approval based on our finding that Texas 
had corrected the deficiencies identified at the time of the interim 
approval (66 FR at 51897 (October 11, 2001); 66 FR 63319). See also 
Public Citizen v. EPA, 343 F.3d 449 (5th Cir. 2003) (denying petitions 
for review challenging full approval).
    Since the interim approval, members of the public filed comments 
with EPA alleging other deficiencies in the Texas Title V program, and 
EPA conducted a review of the issues raised. Section 502(i) of the Act 
and 40 CFR 70.10(b)(1) provide that whenever EPA makes a determination 
that a State is not adequately administering and enforcing its program 
in accordance with the requirements of Title V, EPA shall issue a 
notice to the State.
    EPA published a notice of deficiency (NOD) for Texas' Title V 
Operating Permit Program on January 7, 2002 (67 FR 732). The NOD was 
based upon our finding that several State requirements did not meet the 
minimum Federal requirements of 40 CFR part 70 and the Act. TCEQ 
adopted rule revisions to resolve the deficiencies identified in the 
January 7, 2002, NOD. These rule revisions became effective, as a 
matter of State law, on December 11, 2002. TCEQ submitted these rule 
changes to EPA as a revision to its Title V Operating Permit Program on 
December 9, 2002. TCEQ also included, in the December 9, 2002, 
submittal, other regulatory revisions that strengthen Texas' program. 
On July 9, 2003 (68 FR 40871), we proposed to approve the revisions 
submitted December 9, 2002, as revisions to Texas Title V operating 
permits program. We received one comment letter in response to the 
proposal and our consideration of those comments is summarized in 
section IV of this preamble. We are approving the Texas rule revisions 
included in the December 9, 2002, submittal in today's action. The 
December 9, 2002, submittal also included provisions which TCEQ 
requested that we approve as revisions to its SIP. We approved those 
SIP revisions submitted December 9, 2002, on November 14, 2003 (68 FR 
64543). We have prepared a Technical Support Document which contains a 
detailed analysis of our evaluation of this action. The Technical 
Support Document is available at the address listed above. Elsewhere in 
today's Federal Register, we are also taking final action to grant 
limited SIP approval of revisions to Title 30 of the Texas 
Administrative Code (30 TAC) 101.211, 101.221, 101.222, and 101.223, 
addressing the reporting, recordkeeping and enforcement requirements 
for excess emissions during startup, shutdown, and malfunction 
activities. The State has incorporated these provisions into its 
definition of ``applicable requirement'' for the Title V program.

II. What Is Being Addressed in This Action?

    In today's action, we are approving revisions as identified below 
which TCEQ adopted November 20, 2002 (submitted to EPA December 9, 
2002) and find that those revisions and final SIP approval of revisions 
published on November 14, 2003 and elsewhere in today's Federal 
Register resolve the deficiencies identified in the January 7, 2002, 
NOD.

A. Periodic Monitoring Regulations

    The requirement for periodic monitoring set forth in 40 CFR 
70.6(a)(3)(i)(B) states that each Title V permit must include periodic 
monitoring sufficient to yield reliable data from the relevant time 
period that are representative of the source's compliance with the 
permit where the applicable requirement does not require periodic 
testing or instrumental or noninstrumental monitoring.
    TCEQ previously implemented periodic monitoring requirements 
through a phased approach which used either a periodic monitoring GOP 
or on a case-by-case determination. As a result, all permits did not 
have periodic monitoring when they were issued. To address the NOD, 
TCEQ has revised 30 TAC 122.132 and 122.142, and repealed 30 TAC 
122.600, 122.604, 122.606, 122.608, 122.610, and 122.612 to ensure that 
all Title V permits, including all GOPs, contain periodic monitoring 
requirements that meet the requirements of 40 CFR 70.6(a)(3)(i)(B) when 
issued. TCEQ has repealed the periodic monitoring and CAM GOPs 
identified in the NOD and adopted 30 TAC 122.132(e)(13) to require 
permit applications to include periodic monitoring requirements 
consistent with part 70. TCEQ has amended 30 TAC 122.142(c) and 30 TAC 
122.602 to require periodic monitoring which is consistent with part 70 
to be included in all Title V permits, including GOPs, when the permit 
is issued. The revisions require that periodic monitoring be included 
in Title V permits at initial issuance under 30 TAC 122.201, permit 
renewals under 30 TAC 122.243, permit reopenings under 30 TAC 
122.231(a) and (b), significant revisions under 30 TAC 122.221, and at 
minor permit revisions under 30 TAC 122.217. We are

[[Page 16136]]

today approving the revised rules and the State's repeals as a revision 
to Texas' Title V program and find that the revisions satisfy Texas' 
requirement to correct the program deficiency identified in the January 
7, 2002, NOD.

B. Compliance Assurance Regulations

    CAM is implemented through 40 CFR part 64 and 40 CFR 
70.6(a)(3)(i)(A) and requires Title V permits to include ``all 
monitoring and analysis procedures or test methods required under 
applicable monitoring and testing requirements, including [40 CFR part] 
64 . . .'' 40 CFR 64.5 provides that CAM applies at permit renewal 
unless the permit holder has not filed a Title V permit application by 
April 20, 1998, or the Title V permit application has not been 
determined to be administratively complete by April 20, 1998. CAM also 
applies to a Title V permit holder who filed a significant permit 
revision under Title V after April 20, 1998.
    TCEQ previously implemented CAM through either a CAM GOP or a case-
by-case CAM determination. TCEQ's use of a phased approach did not 
ensure that all permits would include CAM required by 40 CFR 
70.6(a)(3)(i)(A), according to the schedule in 40 CFR 64.5, because a 
facility did not have to apply for a CAM GOP until two years after the 
CAM GOP had been issued. To address the NOD, TCEQ has revised the 
sections of Chapter 122 relating to application content and permit 
content, to ensure that all permits, including GOPs, include CAM 
requirements according to the schedule in 40 CFR 64.5. TCEQ amended 30 
TAC 122.132(e)(12) to specify that applications for units subject to 
CAM must be submitted according to the schedule specified in 40 CFR 
64.5. TCEQ amended 30 TAC 122.142(h) to require that permits contain 
CAM in accordance with the schedule in 40 CFR 64.5. TCEQ adopted new 30 
TAC 122.221(b)(4) to specify that the Executive Director may issue a 
significant permit revision if CAM is included for large pollutant-
specific emission units, consistent with 40 CFR 64.5(a)(2). TCEQ also 
adopted 30 TAC 122.147, which specifies the terms and conditions that 
apply to units subject to CAM requirements, and 30 TAC 122.604 which 
address CAM applicability. These new and revised rules require that all 
permits issued after the effective date of the rule include CAM 
according to the schedule in 40 CFR part 64. We are today approving the 
revised, amended, and new rules as a revision to Texas' Title V program 
and find that the revisions satisfy Texas' requirement to correct the 
program deficiency identified in the January 7, 2002, NOD.

C. Periodic Monitoring and Compliance Assurance Monitoring General 
Operating Permits

    The content requirements for part 70 permits are set forth in 40 
CFR 70.6 and include periodic monitoring and CAM as permit conditions 
of all Title V permits. Also, 40 CFR 70.6(d)(1) provides that ``any 
general permit shall comply with all requirements applicable to other 
part 70 permits.'' TCEQ previously implemented CAM and periodic 
monitoring requirements through CAM and periodic monitoring GOPs which 
did not meet Title V's definition of, or requirements for, general 
permits. The terms and conditions of Texas' periodic monitoring GOPs 
and CAM GOPs contained only monitoring requirements, monitoring 
options, and related monitoring requirements for certain applicable 
requirements and therefore were missing a number of the requirements of 
40 CFR 70.6.
    To address the NOD, TCEQ amended Chapter 122 to require that all 
GOPs include periodic monitoring and CAM, and to eliminate the 
monitoring GOP process. To ensure that all permits are issued 
containing periodic monitoring and CAM, the TCEQ adopted amendments 
requiring periodic monitoring and CAM to be addressed in permit 
applications and to be included in issued permits. As discussed above, 
revised 30 TAC 122.132(e)(12) specifies that applications for units 
subject to CAM must contain elements specified in 40 CFR 64.3, 
Monitoring Design Criteria, and 40 CFR 64.4, Submittal Requirements. As 
revised, 30 TAC 122.132(e)(13) requires that applications for all 
initial permit issuances, renewals, reopenings, and significant and 
minor permit revisions include periodic monitoring requirements. TCEQ 
amended 30 TAC 122.142(c), which previously specified that periodic 
monitoring is only included as required by the Executive Director, and 
30 TAC 122.142(h), which previously specified that permits include CAM 
as specified in Subchapter H. The amendments state that permits must 
contain periodic monitoring and CAM in accordance with the schedule in 
40 CFR 64.5. These amendments will require permits to contain all 
requirements specified in 40 CFR 70.6. TCEQ eliminated the monitoring 
GOP process by adopting the repeal of all sections from Subchapters G 
and H that implemented monitoring through the GOP process. In addition 
to the previously mentioned periodic monitoring sections that were 
repealed, TCEQ repealed all of the CAM requirements contained in 
Subchapter H. The CAM applicability section and the section pertaining 
to quality improvement plans are adopted under Subchapter G, renamed 
Periodic Monitoring and Compliance Assurance Monitoring. TCEQ also 
adopted several amendments to Chapter 122 to clarify periodic 
monitoring and CAM implementation and to delete any reference to the 
monitoring GOP process.
    TCEQ also amended the GOP definition at 30 TAC 122.10(11) to 
specify that multiple similar sources may be authorized to operate 
under a GOP, consistent with the requirement at 40 CFR 70.6(d) that 
general permits are limited to numerous similar sources. 30 TAC 
122.501(a)(1) requires the Executive Director to issue GOPs with 
conditions that provide for compliance with all requirements of Chapter 
122. TCEQ also revised 30 TAC 122.161 to make related miscellaneous 
changes.
    We are today approving the new and revised rules and the repeals as 
a revision to Texas' Title V program and find that the revisions 
satisfy Texas' requirement to correct the program deficiency identified 
in the January 7, 2002, NOD.

D. Statement of Basis Requirement

    40 CFR 70.7(a)(5) requires that ``[t]he permitting authority shall 
provide a statement that sets forth the legal and factual basis for the 
draft permit conditions (including references to the applicable 
statutory or regulatory provisions). The permitting authority shall 
send this statement to EPA and to any other person who requests it.'' 
TCEQ regulations previously had no State regulation directly 
corresponding to 40 CFR 70.7(a)(5), and no other State regulations were 
identified that otherwise gave effect to this requirement. To address 
the NOD, TCEQ adopted new 30 TAC 122.201(a)(4), which requires that all 
permits issued by the Executive Director must include a statement that 
sets forth the legal and factual basis for the conditions of the 
permit, including references to the applicable statutory or regulatory 
provisions. The Executive Director will send this statement to EPA and 
any person who requests it. The statement of basis is required for all 
initial issuances, revisions, renewals and reopenings of permits. We 
are today approving the new rule as a revision to Texas' Title V 
program and find that the revisions satisfy Texas' requirement to 
correct the program deficiency identified in the January 7, 2002, NOD.

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E. Definition of Applicable Requirement

    Texas' definition of ``applicable requirement'' in 30 TAC 122.10(2) 
previously did not include all the applicable provisions of its SIP 
that implemented relevant requirements of the Act as required by 40 CFR 
70.2. To address the NOD, TCEQ has amended its definition of 
``applicable requirement'' in 30 TAC 122.10(2) to include citations to 
the relevant requirements of the Act which were identified in the NOD 
and others identified after issuance of that notice. The applicable 
requirement definition now includes 30 TAC 101.1, which relates to 
definitions; 30 TAC 101.3, which relates to circumvention; 30 TAC 
101.201, 101.211, 101.221, 101.222, and 101.223, which relate to 
emissions events and maintenance, startup, and shutdown (``MSS'') 
reporting requirements; 30 TAC 101.8 and 101.9, which relate to 
sampling and sampling ports, and 30 TAC 101.10, which relates to 
emissions inventory requirements.\1\ We are today approving the revised 
rule as a revision to Texas' Title V program and find that, together 
with the final SIP approval published elsewhere in this Federal 
Register, the revisions satisfy Texas' requirement to correct the 
program deficiency identified in the January 7, 2002, NOD.
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    \1\ The NOD identified the emissions event and MSS reporting 
requirements at 30 TAC 101.6, 101.7, and 101.11 as SIP provisions 
that must be included in the definition of ``applicable 
requirement.'' TCEQ has revised those rules and recodified them at 
30 TAC 101.201, 101.211, 101.221, 101.222, and 101.223 and submitted 
the rules to EPA for approval as a SIP revision. Our limited 
approval of these rules is published elsewhere in today's Federal 
Register. By incorporating the current SIP-approved emissions event 
and MSS reporting rules into the definition of ``applicable 
requirement,'' Texas has corrected the program deficiency identified 
in the January 7, 2002, NOD.
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F. Potential To Emit Registration Requirements

    Major sources subject to the requirement to obtain a Title V permit 
are those sources whose potential to emit certain air pollutants exceed 
threshold emissions levels specified in the Act. A source may legally 
avoid the requirement to obtain a Title V permit by limiting its 
potential to emit to levels below the applicable major source 
threshold. This can be done by taking a federally enforceable limit on 
the PTE, which ensures that the conditions placed on the emissions to 
limit a source's PTE are enforceable as both a legal and practical 
matter, or through PTE limits that are legally and practically 
enforceable by a State or local air pollution control agency.\2\ Those 
permit conditions, if violated, are subject to enforcement by EPA, the 
State or local agency, or by citizens.
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    \2\ Seitz and Van Heuvelen, Release of Interim Policy on Federal 
Enforceability of Limitations on Potential to Emit (January 22, 
1996); Stein, Guidance on Enforceability Requirements for Limiting 
Potential to Emit through SIP and section 112 Rules and General 
Permits (January 25, 1995).
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    Texas' Title V regulations previously allowed a facility to keep 
all documentation of its PTE limitation registrations on site without 
providing those documents to the State or to EPA; therefore, the PTE 
limitations were not practically enforceable. Also, the limitations 
were not federally enforceable because the Texas regulations at issue 
were not part of the Texas SIP. TCEQ has revised 30 TAC 122.122, and, 
though not required by the NOD, also revised similar PTE registration 
rules in its preconstruction review program (30 TAC 106.6, 116.115, 
116.611). These changes require registrations to be submitted to the 
Executive Director, to the appropriate Commission regional office, and 
all local air pollution control agencies, and a copy shall be 
maintained on-site of the facility. TCEQ is also required to make the 
records available to the public upon request. Thus, these changes cure 
the previous deficiency regarding practicable enforceability caused by 
the lack of notice to the State. TCEQ also submitted these changes for 
approval as a SIP revision. We approved the amended 30 TAC 106.6, 
116.115, 116.611, and 122.122 as revisions to the Texas SIP on November 
14, 2003 (68 FR 64543). Our final SIP approval of these changes made 
the PTE limits in the certified registrations legally enforceable by 
EPA. We are also today approving the revised rules in 30 TAC 122 as a 
revision to Texas' Title V program and find that, together with the 
final SIP approval which was published November 14, 2003, the revisions 
satisfy Texas' requirement to correct the program deficiency identified 
in the January 7, 2002, NOD.

III. What Other Program Changes Are We Approving?

    TCEQ also included in the December 9, 2002, submittal other 
regulatory revisions that strengthen Texas' program. Today's action 
also approves these revisions to the Texas Title V Operating Permit 
Program submitted on December 9, 2002, which relate to credible 
evidence and concurrent review.

A. Credible Evidence

    TCEQ has revised its definition of ``deviation'' at 30 TAC 
122.10(5) and 122.132(e)(4)(B) to require sources to consider ``any 
credible evidence or information'' to certify compliance. We are today 
approving this revision as consistent with part 70 and EPA's credible 
evidence rule, 62 FR 8314 (February 24, 1997).

B. Concurrent Review

    TCEQ has revised its regulations concerning EPA review of Title V 
permits at 30 TAC 122.350(B)(1) to provide that EPA's review period may 
not run concurrently with the State public review period if any 
comments are submitted or if a public hearing is requested. We are 
today approving this revision as consistent with section 505(b) of the 
Act and 40 CFR 70.8.

IV. What Is Our Response to Comments Received in Response to Our 
Proposed Rulemaking?

    On July 9, 2003 (68 FR 40871), we proposed to approve the revisions 
submitted December 9, 2002, as revisions to Texas Title V operating 
permits program. In the proposal, we requested that the public submit 
comments no later than August 8, 2003. We received one comment letter 
submitted jointly by Public Citizen, Inc., SEED Coalition, Galveston-
Houston Association for Smog Prevention, Sierra Club and Hilton Kelley 
with four comments. Our response to those comments follows:
    Comment 1. Lack of Monitoring in General Operating Permits (GOPs). 
The commenters provided the following comments relating to lack of 
monitoring in GOPs that are applicable to certain categories of 
sources.
    Comment 1A. Commenters stated that Texas has not acted to revise 
its existing GOPs which fail to include applicable requirements and 
fail to include required monitoring for those requirements. Commenters 
also note that Texas issues GOPs to facilities that have site-specific 
requirements that are not included in the GOP, such as minor or major 
new source review (NSR) or prevention of significant deterioration 
(PSD) permit terms. Therefore, those applicable requirements cannot be 
reviewed by EPA or the public to ensure that monitoring sufficient to 
assure compliance with those permit terms is included in the Title V 
operating permit.
    Response 1A. This comment raises an issue beyond the scope of the 
deficiency identified in the NOD. EPA identified the deficiency 
regarding periodic

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monitoring and compliance assurance monitoring as a deficiency in the 
regulations. EPA stated: ``Texas's periodic monitoring regulations do 
not meet the requirements of part 70 and must be revised,'' citing 
problems with the approach of implementing the requirement through a 
monitoring GOP and use of a phased approach which could delay 
implementation of periodic monitoring after issuance of a Title V 
permit. 67 FR at 733. We then concluded that the State ``must revise 
its regulations to ensure that all Title V permits, including all GOPs, 
when issued, contain periodic monitoring that meets the requirements of 
70.6(a)(3)(i)(B).'' Id. (emphasis added). EPA made parallel findings 
for the State's CAM regulations. 67 FR at 734 (``The TNRCC \3\ 
regulations do not meet the requirements of the Act and part 70, and 
TNRCC must revise its regulations to ensure that all Title V permits, 
including all GOPs, will have the CAM required by [40] CFR 
70.6(a)(3)(i)(A), according to the schedule in 40 CFR 64.5''). EPA also 
provided instructions to the State on proper implementation of the 
periodic monitoring and CAM requirements in individual Title V 
permits.\4\ However, these instructions did not render the monitoring 
provisions of all Title V permits in the State subject to the NOD. The 
NOD is clear on its face that only the monitoring regulations were the 
subject of the NOD and thus were required to be revised.
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    \3\ On September 1, 2002, the Texas Natural Resource Commission 
(TNRCC) changed its name to the Texas Commission on Environmental 
Quality.
    \4\ To the extent that this portion of the NOD suggested the 
implementation of enhanced monitoring beyond that required by 
70.6(a)(3)(i)(B) or beyond monitoring required by ``applicable 
requirements'' under the Act (as described in 69 FR 3202 (January 
22, 2004)), this part of the NOD has been superceded by the January 
22, 2004, action.
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    Nonetheless, EPA notes that it is exercising its oversight 
authority to ensure that the existing GOPs are corrected. Thus, EPA 
obtained a commitment and time line from the TCEQ Executive Director in 
December 2003 to revise all existing GOPs to include periodic 
monitoring and compliance assurance monitoring. Under this commitment 
and time line, TCEQ will revise all existing GOPs to ensure the 
applicability requirements for existing GOPs exclude sources with site-
specific requirements. On February 27, 2004 Texas revised the Bulk Fuel 
Terminal GOP 515 and the Site-Wide GOP 516 to require all affected 
sources to submit an application for a site operating permit (``SOP'') 
by September 1, 2004. Facilities subject to these GOPs generally have 
site-specific applicable requirements. Once all SOPs are issued, the 
GOPs No. 515 and 516 will be rescinded. The Oil and Gas GOPs 511-514 
and Municipal Solid Waste Landfill GOP 517 will also be revised in 2005 
to include the specific permits by rule and standard permits that apply 
to those facilities and to exclude sources with site-specific 
requirements from the applicability criteria for those GOPs.
    Comment 1B. Commenters also requested that their comments and 
attachments be treated as a Petition to Reopen all existing GOPs 
pursuant to 40 CFR 70.7(g) to clarify that no source with case or 
permit-specific applicable requirements may be covered by a GOP if EPA 
failed to resolve this issue during our review of changes to the Texas 
operating permits program in response to the NOD.
    Response 1B. In light of the State's commitment to make the 
required changes to its GOPs and the State's actions to initiate those 
changes, EPA believes there is no need to reopen the existing GOPs as 
commenter requests. EPA has reviewed and provided comments on the first 
revision to the Bulk Fuel Terminal and Site-Wide GOPs. Also, commenters 
have the opportunity to review and comment on the draft GOP permits 
under 40 CFR 70.7(h), and if necessary, petition EPA to object to a 
proposed permit under 40 CFR 70.8(a) and (c).
    Comment 2. Statement of Basis. Commenters state that the current 
statements of basis being drafted by TCEQ do not provide the public 
with an understanding of the decision-making that went into development 
of the Title V permit. Because Texas is still not implementing the 
statement of basis requirement as specified in EPA's rules and 
guidance, this deficiency has not been corrected.
    Response 2. By adopting regulatory language which tracks the 
requirement in 40 CFR 70.7(a)(5), Texas has satisfied the requirement 
to revise its regulations consistent with 70.7(a)(5). Whether any 
individual Title V permit contains an inadequate statement of basis is 
beyond the scope of the deficiency identified in the NOD. EPA intends 
to address concerns about the adequacy of individual statements of 
basis through the permit review process. This process includes 
opportunity for the public to review and comment on the draft permit 
under 40 CFR 70.7(h), EPA's review, and, if necessary, EPA objection to 
a proposed permit under 40 CFR 70.8(a) and (c), affected state review 
under 40 CFR 70.7(b), and the public petition process under 40 CFR 
70.8(d).
    Comment 3. PTE Limits in Registrations. Commenters submitted the 
following comments related to PTE registrations:
    Comment 3A. The commenters believe that the rules should require 
that registrations used to limit PTE below any federal limit, including 
nonattainment NSR and PSD, be submitted to the agency. As EPA noted in 
the NOD, if PTE limits are merely kept on site, they are not 
practically enforceable. Because NSR and PSD are applicable 
requirements under Title V, Title V must assure compliance with these 
requirements.
    Response to Comment 3A. Although the NOD cited only the deficiency 
in the PTE registration requirements in Chapter 122, the State made 
conforming changes in its preconstruction review provisions which 
address the commenter's concerns. The regulations require such PTE 
registrations to be incorporated into the Title V permit as applicable 
requirements. The PTE registrations under 30 TAC 106.6 and 116.611 are 
approved as part of the SIP and are applicable requirements under the 
part 70 \5\. As applicable requirements, these PTE registrations must 
be submitted to the reviewing agency (the TCEQ) for incorporation into 
the source's Title V operating permit. In order to be incorporated into 
the Title V permit, the owner or operator must provide the relevant 
information concerning the registration to the permitting authority for 
incorporation into the Title V permit. Such information must be subject 
to public participation and review by EPA under 40 CFR 70.7(h) and 
70.8.
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    \5\ 30 TAC 106.6 and 116.611 were approved as revisions to the 
SIP on November 14, 2003 (68 FR 64543). SIP provisions are 
applicable requirements under Title V under 40 CFR 70.2 (paragraph 
(1) under definition of ``applicable requirement'') and under 30 TAC 
122.10(2)(F), which include the requirements of Chapter 106--Permits 
by Rule and Chapter 116--Control of Air Pollution by Permits for New 
Construction or Modification.
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    For permits by rule, relevant information that must be incorporated 
includes all representations with regard to construction plans, 
operating procedures, and maximum emission rates, which become 
conditions upon which the facility permitted by rule shall be 
constructed and operated. See 30 TAC 106.6(b). This includes 
certification of maximum emission rates which establish federally 
enforceable allowable emission rates which are below the emission 
limitations in 30 TAC 106.4.
    For standard permits, relevant information that must be 
incorporated include the basis of emission rates,

[[Page 16139]]

quantification of all emission increases and decreases associated with 
the project being registered, sufficient information as may be 
necessary to demonstrate that the project will comply with 30 TAC 
116.610(b) \6\, information that describes efforts being taken to 
minimize any collateral emissions increases that will result from the 
project, a description of the project and related process, and a 
description of any equipment being installed. See 30 TAC 116.611(a).
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    \6\ 30 TAC 116.610(b) provides that ``[a]ny project * * * which 
constitutes a new major source, or major modification under the new 
source review requirements of the FCAA, Part C (Prevention of 
Significant Deterioration Review) or Part D (Nonattainment Review) 
and regulations promulgated thereunder is subject to the 
requirements of 30 TAC 116.110 of this title (relating to 
Applicability) rather than this subchapter.''
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    Thus, the registrations which limit a source's PTE to below a 
threshold which triggers applicability of PSD or NSR under 30 TAC 106.6 
and 116.611 are applicable requirements under Title V and must be 
documented in each Title V permit as described above.
    Comment 3B. The rules should include a short-term limit on 
emissions so that compliance can be determined in a timely manner (not 
a tons per year limit). The rules should include production or 
operational limits (not just emission limits) and specific monitoring 
and reporting to demonstrate compliance with the limit. The general 
requirement to keep records necessary to demonstrate compliance is not 
practically enforceable because it is too vague.
    Response to Comment 3B. This comment raises issues beyond the scope 
of the deficiency identified in the NOD. The NOD identified the lack of 
practicably enforceable PTE limits as being caused by the lack of 
notice of PTE registrations to the State. We stated: ``One of the 
requirements for practicable enforceability is notice to the State. 
Under 30 TAC 122.122, there is no requirement that the State be 
notified and the registrations are kept on site. Therefore, neither the 
public, TNRCC, or EPA know what the PTE limit is without going to the 
site. A facility could change its PTE limit several times without the 
public or TNRCC knowing about the change. Therefore, these limitations 
are not practically enforceable, and TNRCC must revise this regulation 
to make the regulation practically enforceable.'' Thus, the State has 
cured the deficiency by providing that PTE registrations must be 
submitted to the State. Nevertheless, EPA notes that the rules under 
these citations require that a source be able to demonstrate compliance 
with a certification in a manner that is practically enforceable. This 
includes information that enables the enforcement authority to verify 
at any time that the source is in compliance with the terms of its 
registration. TCEQ rules require registrations to ``include 
documentation of basis of emission rates.'' See 30 TAC 122.122(c). Such 
documentation may include appropriate restrictions on operation and/or 
production which the source relies upon to limit its PTE below major 
source threshold. Similar requirements are also in 30 TAC 106.6(d) (for 
permits by rule) and 30 TAC 116.611(a)(1)-(6) (for standard 
permits).The monitoring and reporting are generally required in 30 TAC 
106.8 (for permits by rule), 30 TAC 116.115(8) (for standard permits), 
and 30 TAC 122.122(f) (for Title V PTE registrations). Furthermore, a 
specific permit by rule, standard permit, or registration will also 
contain additional requirements for monitoring and recordkeeping which 
the source is required to maintain and which is sufficient to limit the 
source's PTE.
    In summary, the regulations which pertain to the registration of 
emissions in 30 TAC 106.6, 116.115, 116.611, and 122.122 were approved 
on November 14, 2003 (68 FR 64543).\7\ The regulations allow a source 
limit its PTE of a pollutant below the level of a major source defined 
in the Act. This includes regulations which Texas revised to allow an 
owner or operator of a source to register and certify restrictions and 
limitations that the owner or operator will meet to maintain its PTE 
below the major source threshold. The changes require the owner or 
operator to submit the certified registrations to the Executive 
Director of TCEQ, the appropriate TCEQ regional office, and all local 
air pollution control agencies having jurisdiction over the site. The 
changes to 30 TAC 122.122 satisfactorily address the NOD by requiring 
that PTE registrations are submitted to the State.
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    \7\ We note that we proposed approval of the PTE registration 
requirements as SIP revisions, and received no comments. See 68 FR 
40865 (July 9, 2003); 68 FR 64543 (November 14, 2003).
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    Comment 4. ``Applicable requirement'' Definition. Commenters 
believe that Texas' applicable requirement definition at 30 TAC 
122.10(2) does not incorporate all of the relevant provisions of the 
Texas SIP because it defines the term by reference to specific State 
regulations, instead of a general reference to the ``relevant 
requirements of the SIP.'' There is not a one-to-one correlation 
between the State's regulation and the SIP provisions. Thus, some SIP 
provisions that implement the CAA requirements are excluded from the 
Texas definition of ``applicable requirement.'' Commenters cite as an 
example the State's newly adopted regulation for the definition of 
reportable quantities at 30 TAC 101.1(84)(p) and (q) rather than the 
SIP-approved rule. Texas submitted its new definition of reportable 
quantities to EPA for approval as a SIP revision on September 12, 2002.
    Commenters also disagree with EPA's decision in the NOD to confine 
applicable requirements to those requirements that implement the 
relevant requirements of the Act, on the ground that it is at odds with 
Title V, citing 42 U.S.C. 7661a(b)(5)(C). They state that SIPs may 
include emission limits that transcend the requirements of the Act.
    Response 4. EPA disagrees with the commenter. As a threshold 
matter, EPA reasonably determined in the NOD that ``there is no 
requirement that the State adopt a definition to generally state that 
any current provision of the SIP is an applicable requirement. A State 
may cite to specific provisions of its administrative code. * * *'' We 
described the SIP provisions that must be included in the definition of 
``applicable requirement'' as those that ``implement the relevant 
requirements of the Act,'' the standard set forth in 40 CFR 70.2. It is 
inappropriate to revisit those determinations here, as the time for a 
challenge to 30 TAC 70.2 or the NOD has expired [and the State has 
reasonably relied on the standards set forth in 30 TAC 70.2 and the NOD 
in undertaking its corrective action].
    Furthermore, EPA has reviewed the rule cited by commenters (30 TAC 
101.1(84)(p) and (q)) and found it to be approvable. The proposed 
approval was published in the Federal Register on March 2, 2004 (41 FR 
9776). We are today granting limited approval of the SIP revision 
elsewhere in this Federal Register which ensures that Texas' definition 
of ``applicable requirement'' is complete with respect to the SIP-
approved emissions event and MSS reporting rules. Because Texas has 
chosen to adopt a definition of applicable requirement that lists SIP 
citations rather than the general definition as set forth in 40 CFR 
70.2, the State will be required to revise its Title V program in the 
future as it adopts an applicable requirement elsewhere in the SIP that 
is not listed in the definition of applicable requirement in its Title 
V regulations.

[[Page 16140]]

What Is Our Final Action?

    We are approving revisions to Texas' regulations for periodic 
monitoring regulations, CAM regulations, periodic monitoring and CAM 
GOPs, statement of basis requirement, applicable requirement 
definition, and PTE registration regulations as revisions to Texas' 
Title V air operating permits program. We are also approving revisions 
to the Texas Title V operating permits program submitted on December 9, 
2002, which relate to credible evidence and concurrent review. The rule 
revisions submitted by Texas, as stated above, are in response to the 
NOD. Based upon our limited approval of the revisions to Chapter 101 
elsewhere in today's Federal Register, our approval today of the 
December 9, 2002 revisions to the Texas operating permits program, and 
our November 14, 2003, final SIP approval of potential to emit 
requirements, Texas has satisfactorily addressed the deficiencies 
identified by EPA in the January 7, 2002 NOD. This final action also 
removes any resulting consequences under the Act, including sanctions, 
with respect to the January 7, 2002 NOD.
    This approval does not extend to ``Indian Country'', as defined in 
18 U.S.C. 1151. In its operating permits program submittal, Texas does 
not assert jurisdiction over Indian lands or reservations. To date, no 
tribal government in Texas has authority to administer an independent 
Title V program in the State. On February 12, 1998, EPA promulgated 
regulations under which Indian tribes could apply and be approved by 
EPA to implement a Title V operating permit program (40 CFR part 49). 
For those Indian tribes that do not seek to conduct a Title V operating 
permit program, EPA has promulgated regulations (40 CFR part 71) 
governing the issuance of Federal operating permits in Indian country. 
64 FR 8247, February 19, 1999.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget (OMB). Under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.), the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities because it merely approves State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. This rule does not contain any unfunded mandates 
and does not significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 
because it approves pre-existing requirements under State law and does 
not impose any additional enforceable duties beyond that required by 
State law. This rule also does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175, ``Consultation and Coordination with Indian Tribal Governments'' 
(65 FR 67249, November 9, 2000). This rule also does not have 
Federalism implications because it will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999). The action merely approves existing requirements under State 
law, and does not alter the relationship or the distribution of power 
and responsibilities between the State and the Federal government 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) or 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355) (May 22, 2001), because it is not a significant regulatory 
action under Executive Order 12866. This action will not impose any 
collection of information subject to the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., other than those previously 
approved and assigned OMB control number 2060-0243. For additional 
information concerning these requirements, see 40 CFR part 70. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272 note, requires Federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing State Operating Permit Programs submitted pursuant to Title V 
of the Clean Air Act, EPA will approve such regulations provided that 
they meet the requirements of the Clean Air Act and EPA's regulations 
codified at 40 CFR part 70. In this context, in the absence of a prior 
existing requirement for the State to use voluntary consensus standards 
(VCS), EPA has no authority to disapprove such regulations for failure 
to use VCS. It would, thus, be inconsistent with applicable law for 
EPA, when it reviews such regulations, to use VCS in place of a State 
regulation that otherwise satisfies the provisions of the Clean Air 
Act. Thus, the requirements of section 12(d) of the NTTAA do not apply.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 31, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.


[[Page 16141]]


    Dated: March 18, 2005.
Richard E. Greene,
Regional Administrator, Region 6.

0
For the reasons set out in the preamble, appendix A of part 70 of Title 
40 of the Code of Federal Regulations is amended as follows:

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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


0
2. Appendix A to part 70 is amended under the entry for Texas by adding 
paragraph (c) to read as follows:

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

* * * * *

Texas

    (c) The Texas Commission on Environmental Quality: program 
revisions submitted on December 9, 2002, and supplementary 
information submitted on December 10, 2003, effective on April 29, 
2005. The rule amendments contained in the submissions adequately 
addressed the deficiencies identified in the notice of deficiency 
published on January 7, 2002.

[FR Doc. 05-6314 Filed 3-29-05; 8:45 am]
BILLING CODE 6560-50-P