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Notice of Deficiency for Clean Air Act Operating Permits Program; State of Texas
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Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 7, 2002 (Volume 67, Number 4)]
[Notices]
[Page 732-736]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja02-41]
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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