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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

  [Federal Register: July 9, 2003 (Volume 68, Number 131)]
[Proposed Rules]
[Page 40871-40876]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy03-45]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TX-154-2-7609; FRL-7525-4]

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve revisions to the Texas title V
Operating Permit 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 permit programs. This action proposes approval of revisions
TCEQ submitted to correct the identified deficiencies. Today's action
also proposes approval of 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). Elsewhere in today's Federal Register, we are proposing to
approve those SIP revisions which were submitted on December 9, 2002.

DATES: The EPA must receive your written comments on this proposal no
later than August 8, 2003.

ADDRESSES: Comments may be submitted to Guy Donaldson, Acting Section
Chief, Air Permits Section, Environmental Protection Agency, Region 6,
Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-
2733. Comments may also be submitted electronically or through hand
delivery/courier. Please follow the detailed

[[Page 40872]]

instructions described in Part (I)(B)(1)(i) through (iii) of the
Supplementary Information.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell of the Air
Permits Section at (214) 665-7212, or at spruiell.stanley@epa.gov.

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

Table of Contents

I. General Information
II. Background.
III. What is Being Addressed in This Action?
    A. Periodic Monitoring Regulations
    B. CAM Regulations
    C. Periodic Monitoring and CAM General Operating Permits
    D. Statement of Basis Requirement
    E. Definition of Applicable Requirement
    F. PTE Registration Requirements
IV. What Other Program Changes Are We Proposing to Approve?
    A. Credible Evidence
    B. Concurrent Review
V. What is our Proposed Action?
VI. Statutory and Executive Order Reviews

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public
rulemaking file available for inspection at the Regional Office. The
EPA has established an official public rulemaking file for this action
under TX-154-2-7609. The official public file consists of the documents
specifically referenced in this action, any public comments received,
and other information related to this action. Although a part of the
official docket, the public rulemaking file does not include
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. The official public
rulemaking file is the collection of materials that is available for
public viewing at the Air Permits Section, EPA Region 6, 1445 Ross
Avenue, Dallas, Texas 75202. The EPA requests that, if at all possible,
you contact the rulemaking contact listed as the FOR FURTHER
INFORMATION CONTACT section above to schedule your inspection. The
Regional Office's official hours of business are Monday through Friday,
8:30 am to 4:30 pm, excluding Federal Holidays.
    2. Copies of the State submittal and EPA's Technical Support
Document are also available for public inspection during normal
business hours, by appointment at the State Air Agency. TCEQ, Office of
Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
    3. Electronic Access. You may access this Federal Register document
electronically through the Regulations.gov web site located at http://
www.regulations.gov Exit Disclaimer where you can find, review, and submit 
comments on Federal rules that have been published in the Federal 
Register, the Government's legal newspaper, and that are open for comment.
    For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing at the EPA Regional Office,
as EPA receives them and without change, unless the comment contains
copyrighted material, CBI, or other information whose disclosure is
restricted by statute. When EPA identifies a comment containing
copyrighted material, EPA will provide a reference to that material in
the version of the comment that is placed in the official public
rulemaking file. The entire printed comment, including the copyrighted
material, will be available at the Regional Office for public
inspection. The EPA will process material marked as CBI as described in
section C.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate rulemaking identification number by including the text
``Public comment on proposed rulemaking TX-154-2-7609'' in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
    i. Electronic Mail (E-mail). Comments may be sent by e-mail to Mr.
Stanley M. Spruiell (spruiell.stanley@epa.gov). Please include the text
``Public comment on proposed rulemaking TX-154-2-7609'' in the subject
line. The EPA's e-mail system is not an ``anonymous access'' system. If
you send an e-mail comment directly without going through the
Regulations.gov website, EPA's e-mail system automatically captures
your e-mail address. E-mail addresses that are automatically captured
by EPA's e-mail system are included as part of the comment that is
placed in the official public docket, and made available in EPA's
electronic public docket.
    ii. Regulations.gov. Your use of the Regulations.gov Web site is an
alternative method of submitting electronic comments to EPA. Go
directly to Regulations.gov at http://www.regulations.gov, Exit Disclaimer 
then select Environmental Protection Agency at the top of the page and 
use the go button. The list of current EPA actions available for comment 
will be listed. Please follow the online instructions for submitting 
comments. The web-based system is an ``anonymous access'' system, which 
means EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Section 2, directly
below. These electronic submissions will be accepted in WordPerfect,
Word or ASCII file format. Avoid the use of special characters and any
form of encryption.
    2. By Mail. Send your comments to: Mr. Guy Donaldson, Acting Chief,
Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-
2733. Please include the text ``Public comment on proposed rulemaking
TX-154-2-7609'' in the subject line on the first page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments to: Mr. Guy
Donaldson, Acting Chief, Air Permits Section (6PD-R), 1445 Ross Avenue,
Dallas, Texas 75202-2733. Such deliveries are only accepted during the
Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through

[[Page 40873]]

Friday, 8:30 am to 4:30 pm excluding Federal Holidays.

C. How Should I Submit CBI To the Agency?

    Do not submit information that you consider to be CBI
electronically to EPA. You may claim information that you submit to EPA
as CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
    In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the official public regional rulemaking file. If you submit the copy
that does not contain CBI on disk or CD ROM, mark the outside of the
disk or CD ROM clearly that it does not contain CBI. Information not
marked as CBI will be included in the public file and available for
public inspection without prior notice. If you have any questions about
CBI or the procedures for claiming CBI, please consult the person
identified in the FOR FURTHER INFORMATION CONTACT section above.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that
support your views.
    4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline
identified.
    8. To ensure proper receipt by EPA, identify the appropriate
regional file/rulemaking identification number in the subject line on
the first page of your response. It would also be helpful if you
provided the name, date, and Federal Register citation related to your
comments.

II. 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 Permits 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).
    Since the interim approval, other deficiencies in the Texas title V
program were identified. 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 NOD.
    The EPA published an 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. The 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. The TCEQ submitted these rule changes to EPA
as a revision to its title V Operating Permit Program on December 9,
2002. The TCEQ also included, in the December 9, 2002, submittal, other
regulatory revisions that strengthen Texas' program. We are proposing
to approve 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. Elsewhere in today's Federal Register, we are proposing to
approve those SIP revisions submitted on December 9, 2002. We have
prepared a Technical Support Document (TSD) which contains a detailed
analysis of our evaluation of this action. The TSD is available at the
addresses listed above.

III. What Is Being Addressed in This Action?

    In today's action, we are proposing to approve revisions as
identified below which TCEQ adopted November 20, 2002 (submitted to EPA
December 9, 2002) and to find that upon final SIP approval of two of
the changes those revisions 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.
    The 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 Texas Administrative Code (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. The TCEQ has
repealed the periodic monitoring and CAM GOPs identified in the NOD and
adopted Section 122.132(e)(13) to require permit applications to
include periodic monitoring requirements consistent with part 70. The
TCEQ has amended Section 122.142(c) and Section 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 Section 122.201, permit renewals
under Section 122.243, permit reopenings under Section 122.231(a) and
(b), significant revisions under Section 122.221, and at minor permit
revisions under Section 122.217. We are today proposing to approve the
revised rules and the State's repeals as a revision to Texas' title V
program and to find that the revisions satisfy Texas' requirement to
correct the program deficiency identified in the January 7, 2002, NOD.

[[Page 40874]]

B. CAM 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.
    The TCEQ previously implemented CAM through either a CAM GOP or a
case-by-case CAM determination. The 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. The TCEQ amended
Section 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. The TCEQ amended Section 122.142(h) to require that permits
contain CAM in accordance with the schedule in 40 CFR 64.5. The TCEQ
adopted new Section 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). The TCEQ also adopted Section 122.147, which specifies the
terms and conditions that apply to units subject to CAM requirements,
and Section 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 proposing to approve the revised, amended, and new rules as a
revision to Texas' title V program and to find that the revisions
satisfy Texas' requirement to correct the program deficiency identified
in the January 7, 2002, NOD.

C. Periodic Monitoring and CAM 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.'' The 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 Section 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.
Revised Section 122.132(e)(13) requires that applications for all
initial permit issuances, renewals, reopenings, and significant and
minor permit revisions include periodic monitoring requirements. The
TCEQ amended Section 122.142(c), which previously specified that
periodic monitoring is only included as required by the Executive
Director, and Section 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. The 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. The 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.
    The TCEQ also amended the GOP definition at Section 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. Section
122.501(a)(1) requires the Executive Director to issue GOPs with
conditions that provide for compliance with all requirements of Chapter
122. The TCEQ also revised Section 122.161 to make related
miscellaneous changes.
    We are today proposing to approve the new and revised rules and the
repeals as a revision to Texas' title V program and to 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.''
The TCEQ regulations previously had no State regulation directly
corresponding to 40 CFR 70.7(a)(5). To address the NOD, TCEQ adopted
new Section 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
proposing to approve the new rule as a revision to Texas' title V
program and to find that the revisions satisfy Texas' requirement to
correct the program deficiency identified in the January 7, 2002, NOD.

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

[[Page 40875]]

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 Section 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 Section 101.1, which relates to
definitions; Section 101.3, which relates to circumvention; Sections
101.201, 101.211, 101.221, 101.222, and 101.223, which relate to
emissions events and maintenance, startup, and shutdown (``MSS'')
reporting requirements; Section 101.8 and Section 101.9, which relate
to sampling and sampling ports, and Section 101.10, which relates to
emissions inventory requirements.\1\ We are today proposing to approve
the revised rule as a revision to Texas' title V program and to find
that upon final SIP approval the revisions will satisfy Texas'
requirement to correct the program deficiency identified in the January
7, 2001, NOD.
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    \1\ The NOD identified the emissions event and MSS reporting
requirements at 30 TAC Sections 101.6, 101.7, and 101.11 as SIP
provisions that must be included in the definition of ``applicable
requirements.'' Since then, TCEQ has revised those rules and
recodified them at Sections 101.201, 101.211, 101.221, 101.222, and
101.223 and submitted the rules to EPA for approval as a SIP
revision. The EPA is reviewing those rules and will address the SIP
submission in a separate rulemaking prior to EPA's final approval of
Texas' definition of applicable requirement.
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F. PTE Registration Requirements

    Many stationary source requirements of the Act apply only to major
sources, which are those sources whose emissions of air pollutants
exceed threshold emissions levels specified in the Act. However, such
sources may legally avoid program requirements by taking federally-
enforceable permit conditions which limit emissions to levels below the
applicable major source threshold. Those permit conditions, if
violated, are subject to enforcement by EPA, the State or local agency,
or by citizens. Federal enforceability ensures the conditions placed on
emissions to limit a source's PTE are enforceable as both a legal and
practical matter.
    Texas' 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. The TCEQ has revised Sections 106.6,
116.115, 116.611, and 122.122. 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. The TCEQ is also
required to make the records available to the public upon request. The
TCEQ also submitted these changes for approval as a SIP revision. We
are proposing to approve the amended Sections 106.6, 116.115, 116.611,
and 122.122 as revisions to the Texas SIP in a separate Federal
Register notice. Upon final SIP approval, these changes will make the
PTE limits in the certified registrations practically enforceable and
federally enforceable. We are also today proposing to approve the
revised rules in Section 122.122 as a revision to Texas' title V
program and to find that upon final SIP approval the revisions will
satisfy Texas' requirement to correct the program deficiency identified
in the January 7, 2002, NOD.

IV. What Other Program Changes Are We Proposing To Approve?

    The TCEQ also included in the December 9, 2002, submittal other
regulatory revisions that strengthen Texas' program. Today's action
also proposes approval of 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

    The 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
proposing to approve this revision as consistent with part 70 and EPA's
credible evidence rule, 62 FR 8314 (February 24, 1997).

B. Concurrent Review

    The TCEQ has revised its regulations concerning EPA review of title
V permits at Section 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 proposing to approve this revision as consistent with Section
505(b) of the Act and 40 CFR 70.8.

V. What Is Our Proposed Action?

    We are proposing to approve 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. Elsewhere in today's Federal
Register, we are proposing to approve related SIP revisions submitted
to EPA on December 9, 2002. We are also proposing to approve revisions
to the Texas title V Operating Permit 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.
    This proposed 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 Permits Program (40
CFR part 49).
    For those Indian tribes that do not seek to conduct a title V
Operating Permits 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.

VI. 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 proposes to approve 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 proposes to approve pre-existing
requirements under State law and does not impose any additional
enforceable duties beyond those 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

[[Page 40876]]

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'' (59 FR 22951, November 9, 2000). This proposed
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 proposes to approve 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 proposed
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.

List of Subjects in 40 CFR Part 70

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

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

    Dated: June 30, 2003.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 03-17338 Filed 7-8-03; 8:45 am]
BILLING CODE 6560-50-P

 
 

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