[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Proposed Rules]
[Pages 30037-30046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13926]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TX-001; FRL-5217-7]
Clean Air Act Proposed Interim Approval Operating Permits Program
for the State of Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes source category-limited interim approval of
the operating permits program submitted by the Governor of Texas for
the State of Texas for the purpose of complying with Federal
requirements which mandate that States develop and submit to EPA
programs for issuing operating permits to all major stationary sources,
with the exception of sources on Indian Lands. Source category-limited
interim approval was specifically requested by the Governor for this
submission.
DATES: Comments on this proposed action must be received in writing by
July 7, 1995.
ADDRESSES: Written comments on this action should be addressed to Ms.
Jole C. Luehrs, Chief, New Source Review (NSR) Section, at the EPA
Region 6 Office listed below. Copies of the State's submittal and other
supporting information used in developing the proposed interim approval
are available for inspection during normal business hours at the
following locations. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before visiting day.
Environmental Protection Agency, Region 6, Air Programs Branch (6T-AN),
1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: David F. Garcia, New Source Review
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7217.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act, as amended on
November 15, 1990 (``the Act''), the EPA has promulgated rules which
define the minimum elements of an approvable State operating permits
program and the corresponding standards and procedures by which the EPA
will approve, oversee, and withdraw approval of a State operating
permits program (see 57 Federal Register 32250, July 21, 1992). These
rules are codified at 40 Code of Federal Regulations (CFR) part 70
(``the part 70 regulation''). Title V requires States to develop, and
submit to the EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
the EPA by November 15, 1993, and that the EPA act to approve or
disapprove each program within one year after receiving the submittal.
The EPA's program review occurs pursuant to section 502 of the Act and
the part 70 regulation which together outline criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, the EPA may grant the program interim approval
for a period of up to two years. Where a State requests source
category-limited interim approval and demonstrates compelling reasons
in support thereof, the EPA may also grant such an interim approval. If
the EPA has not fully approved a program by two years after the date of
November 15, 1993 or by the end of an interim program, it must
establish and implement a Federal program.
B. Federal Oversight and Sanctions
If the EPA were to finalize this proposed source category-limited
interim approval, it would grant that approval for a period of two
years following the effective date of final interim approval, and the
interim approval could not be renewed. During the interim approval
period, the State of Texas would be protected from sanctions, and the
EPA would not be obligated to promulgate, administer, and enforce a
Federal permits program for the State of Texas. Permits issued under a
program with interim approval have full standing with respect to part
70, and the State will permit sources based on the transition schedule
provided in Regulation XII, Title 31 of the Texas Administrative Code
(TAC).
Following final interim approval, if Texas has failed to submit a
complete corrective program for full approval by the date six months
before expiration of the interim approval, the EPA would start an 18-
month clock for mandatory sanctions. If Texas then failed to submit a
corrective program that the EPA found complete before the expiration of
that 18-month period, the EPA would be required to apply one of the
sanctions [[Page 30038]] in section 179(b) of the Act, which would
remain in effect until the EPA determined that Texas had corrected the
deficiency by submitting a complete corrective program. Moreover, if
the Administrator found a lack of good faith on the part of Texas, both
sanctions under section 179(b) would apply after the expiration of the
18-month period until the Administrator determined that Texas had come
into compliance. In any case, if six months after application of the
first sanction, Texas still had not submitted a corrective program that
the EPA found complete, a second sanction would be required.
If following final interim approval, the EPA were to disapprove
Texas' complete corrective program, the EPA would be required to apply
one of the section 179(b) sanctions on the date 18 months after the
effective date of the disapproval, unless prior to that date Texas had
submitted a revised program and the EPA had determined that it
corrected the deficiencies that prompted the disapproval. Moreover, if
the Administrator found a lack of good faith on the part of Texas, both
sanctions under section 179(b) would apply after the expiration of the
18-month period until the Administrator determined that Texas had come
into compliance. In any case, if six months after application of the
first sanction, Texas still had not submitted a corrective program that
the EPA found complete, a second sanction would be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if Texas has not
timely submitted a complete corrective program or the EPA has
disapproved a submitted corrective program. Moreover, if the EPA has
not granted full approval to Texas' program by the expiration of an
interim approval, and that expiration occurs after November 15, 1995,
the EPA must promulgate, administer, and enforce a Federal permits
program for Texas upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
Pursuant to section 502(d) of the Act, the Governor of each State
is required to develop and submit to the Administrator an operating
permits program under State or local law or under an interstate compact
meeting the requirements of title V of the Act. Texas submitted, under
the signature of former Governor Ann W. Richards, the operating permits
program submittal to be implemented in all areas of the State of Texas
with the exception of Indian Lands. The State of Texas requested that
the EPA approve its operating permit program as a source category-
limited interim program for a period of two years.
In the State's 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
air program in the State. Upon promulgation of regulations under
section 301(d) of the Act, Indian tribes will be able to apply for
treatment as States under the Act, and receive the authority from the
EPA to implement an operating permits program under title V of the Act.
The EPA will, where appropriate, conduct a Federal title V operating
permits program in accordance with forthcoming EPA regulations, for
those Indian tribes which do not apply for treatment as States under
the Act.
The Texas Air Control Board (TACB) was the traditional implementing
authority for the Act and all of its amendments. The submittal,
including the rules, were adopted by the TACB. The TACB's operations
and legal responsibilities were consolidated with operations of other
Texas environmental agencies. Therefore, effective September 1, 1993,
the Texas Air Control Board became part of a new State of Texas
environmental agency, the Texas Natural Resource Conservation
Commission (TNRCC). All rules, permits, orders, and any other final
actions of the TACB remain in full legal effect unless and until
revised by the TNRCC.
40 CFR 70.4(b)(1) requires that the submittal contain a program
description of the State's operating permits program describing how it
intends to carry out its responsibilities under the part 70
regulations. The Texas Federal Operating Permits program description,
volume 1 of the submittal, explains that the Texas operating permits
program was developed to satisfy all of the requirements of the part 70
regulation. The operating permit in Texas will be used to consolidate
relevant applicable requirements into one permit document.
The program description provides a broad overview of the State's
program, a broad description of how the Federal operating permits
program in Texas will be implemented in accordance with part 70, and a
description of how the program will implement the applicable
requirements set forth in other titles of the Act, specifically title
I, title III, title IV, and title VII. The State projects over 3,000
sites will be subject to the operating permits program.
Pursuant to 40 CFR 70.4(b)(3), the Governor is required to submit a
legal opinion from the Attorney General (or the attorney for a State
air pollution control agency that has independent legal counsel),
demonstrating adequate authority to carry out all aspects of a title V
operating permits program. The Texas Attorney General submitted such an
opinion in Volume 5 (the submittal supplement), demonstrating adequate
legal authority as required by Federal law and regulation for interim
approval.
40 CFR 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
forms and relevant guidance to assist in the State's implementation of
its permits program. The State addresses this requirement in the Texas
Federal Operating Permits Program Submittal Supplement in Volume 5 (the
submittal supplement). The supplemental volume contains a model permit,
application forms (including the standard phase II acid rain forms),
monitoring, recordkeeping and reporting forms, public notice examples
and guidance to implement the operating permits program. The detailed
guidance addresses many part 70 requirements including documentation on
permit applicability, permit application procedures, permit issuance,
permit revisions and reopenings, permit renewals, compliance plan and
certifications, and monitoring, reporting and recordkeeping.
2. Regulations and Program Implementation
The State of Texas has submitted TACB Regulation XII, Title 31 of
TAC, Chapter 122--``Federal Operating Permits'' (``the Texas permit
regulation'') and TACB General Rules, Title 31 of TAC, section 101.27
(``the Texas fee regulation''), for implementing the State's operating
permits program as required by 40 CFR 70.4(b)(2). Sufficient evidence
of their procedurally correct adoption was submitted in the Texas
Federal Operating Permits Program Volumes 1 and 2 of the submittal.
Copies of all applicable State and local statutes and regulations which
authorize the part 70 program, including those governing State
administrative procedures, were submitted with the State's program in
Volumes 3 and 4.
The following discusses how the Texas permit regulation meets or
does not meet the existing part 70 regulation. However, due to pending
litigation involving sections of the part 70 regulation, revisions have
been proposed, and more proposed revisions may be forthcoming. Any
revisions to [[Page 30039]] the part 70 regulation may alter or obviate
the need for the State to make the regulatory changes identified in
this notice. During the State's rulemaking process proposing to make
changes necessary for full title V approval, the EPA will comment on
the State's proposal using the criteria in whatever regulation is in
place at that time. In the Federal Register notice proposing action on
the State's submittal for full approval, the EPA will use the criteria
in whatever is the final part 70 regulation, whether it be the existing
July 21, 1992, regulation or a later version (``part 70'').
The following requirements, set out in the part 70 regulation, are
addressed in the State's submittal: (1) Provisions to determine
applicability (40 CFR 70.3(a)): 31 TAC section 122.120; (2) Provisions
to determine complete applications (40 CFR 70.5(a)(2)): 31 TAC section
122.134 and the forms (40 CFR 70.4(b)(4)): Supplemental Volume,
Operating Permits Guidance; (3) Public Participation (40 CFR 70.7(h)):
31 TAC sections 122.150-122.155; (4) Provisions for minor permit
modifications (40 CFR 70.7(e)(2)): 31 TAC sections 122.215-122.217; (5)
Provisions for permit content (40 CFR 70.6(a)): 31 TAC sections
122.141-122.145; (6) Provisions for operational flexibility (40 CFR
70.4(b)(12)): 31 TAC section 122.221; (7) Provisions to determine
insignificant activities (40 CFR 70.5(c)): 31 TAC section 122.010
(definition of applicable requirement) and sections 122.215-122.217;
(8) Enforcement provisions (40 CFR 70.4(b)(5) and 70.4(b)(4)(ii)):
Supplemental Volume ``State of Texas Office of the Attorney General''
and Volume 3, ``Texas Health and Safety Code'', section 382.082(b).
The following requirements of 40 CFR part 70 are addressed in the
Texas permit regulation:
(a) Applicability criteria, including any criteria used to
determine insignificant activities or emissions levels (40 CFR
70.4(b)(2)). These provisions require all sources subject to the
operating permits regulations to have a permit to operate that assures
compliance by the source with all applicable requirements. The State is
to submit a program that, at a minimum, assures adequate authority to
issue permits in compliance with all the applicable requirements of
title V of the Act and the part 70 regulation. 40 CFR 70.2 defines the
term ``applicable requirement'' to include: any standard or other
requirement provided for in the applicable implementation plan approved
or promulgated by the EPA through rulemaking under title I of the Act
that implements the relevant requirements of the Act; any term or
condition of any preconstruction permit issued pursuant to regulation
approved or promulgated through rulemaking under title I including Part
C or D, of the Act; and additional requirements listed in 40 CFR 70.2.
40 CFR part 70 requires all applicable requirements to be adequately
addressed in the permit application and the operating permit.
Section 122.010 of the Texas permit regulation defines the term
``applicable requirement.'' Paragraph A of the definition makes
specific reference to the Texas State Implementation Plan (SIP)
approved chapters which the State considers relevant requirements of
title I of the Act. Paragraph B uses the qualifier ``Part C (Prevention
of Significant Deterioration) or Part D (Nonattainment Review)'' to
further specify what constitute applicable requirements. This
definition excludes certain minor NSR permitting activities as
applicable requirements. Under the Texas permitting structure, any
reasonably available control technology (RACT), maximum achievable
control technology (MACT), section 112, or section 111 requirements
applicable to minor units at major sources (whether reflected in a
minor source permit or not) will be included as part of major source's
original title V permit. Any non-RACT, non-111, and non-112 minor NSR
permitting requirement will not be included in the major source's title
V permit. For this reason, the proposed definition is inconsistent with
the definition contained in the part 70 regulation. The EPA interprets
the Federal definition of ``applicable requirement'' to include terms
and conditions of ``any preconstruction permits issued pursuant to
regulations approved or promulgated through rulemaking under title I'',
including all minor new source review permits.
However, on August 29, 1994, (see 59 FR 44574, Operating Permits
Program Interim Approval Criteria), the EPA proposed revisions to 40
CFR part 70 to allow interim approval for States such as Texas whose
programs do not provide for incorporating into permits all requirements
established through EPA-approved minor NSR programs, and that can show
compelling reasons for receiving interim approval. The State of Texas
has argued that the State's existing minor NSR program is so stringent
as to make the integration of a minor NSR permit into part 70 permits
infeasible, and from the standpoint of environmental protection,
unnecessary. The EPA acknowledges that Texas' minor NSR program is a
very stringent one. The Texas program requires authorization prior to
the construction of any new facility or the modification of an existing
facility. The term ``facility'' is broadly defined to include any
``point of origin'' of air contaminants, so there is no opportunity for
a source to ``net out'' of minor NSR. Moreover, Texas mandates best
available control technology (BACT) as the emission control technology
which applies to all minor NSR changes. Texas further subjects each
minor NSR permit and permit amendment to a health effects evaluation
which considers the cumulative effect of the proposed action, together
with other air contaminant sources, on ambient air quality. Finally,
where the Texas minor NSR program provides for public notice of a
permit action, the program provides citizens the right to request a
full evidentiary hearing on the action. Texas has also pointed to the
exceptionally large number of part 70 sources which are located in the
State and which are candidates for minor NSR. On the basis of the
showing of compelling reasons described above, the EPA believes that a
State or local permitting authority with minor NSR/part 70 integration
difficulties such as Texas would warrant interim approval.
The following sections of the permit regulation are directly
related and are considered part of the minor NSR/part 70 integration
issue: permit application (sections 122.130-122.139), permit revisions
(sections 122.210-122.221), and permit content (section 122.141-
122.145). For full approval, these sections must be revised to be
consistent with part 70.
The August 29, 1994, proposal for Operating Permits Program Interim
Approval Criteria requires that, in such interim approval situations, a
State: (1) Include a statement in permits that certain minor NSR
requirements are not included in permits issued during the interim
period; (2) include a cross-reference in each operating permit to the
minor NSR permit for that source; and (3) require reopening of permits
for incorporation of minor NSR permit conditions upon completion of the
interim approval period. If the August proposal is finalized, it is the
EPA's position that the Texas program can be granted interim
authorization as long as the State complies with the three conditions
discussed above.
Section 122.120 of the Texas permit regulation addresses 40 CFR
70.3(a), regarding applicability of part 70. Section 122.120 requires
the owner or operator of a site to submit an application for a Federal
operating permit if the site contains one or more of the following: (1)
Any major source as defined in section 122.010 (relating to
[[Page 30040]] general definitions); (2) any affected source as defined
in section 122.012 (relating to acid rain definitions); (3) any solid
waste incineration unit required to obtain a Federal operating permit
pursuant to section 129(e) of title I of the Act; and (4) any non-major
source which the EPA, through further rulemaking, has designated as no
longer exempt from the obligation to obtain a Federal operating permit.
The State further identifies in sections 122.120(4) (A)-(C) any non-
major source subject to section 111, any non-major source subject to
section 112 or ``any source in a source category designated by the
Administrator pursuant to title III of the Act''. The State's provision
regarding applicability is inconsistent with the Federal definition.
Sections (4) (A) and (B) each appear to define non-major source as
``any source, including an area source,'' subject to standards under
section 111 or 112 of the Act. Section 122.120(4) could potentially be
interpreted as exempting any source, even a major source, from the
requirement to obtain a part 70 permit. For full approval, the State
must revise sections 122.120(4) (A) and (B) to clarify source
applicability. Additionally, section 122.120(4)(C) of the permit
regulation defines non-major source as ``any source in a source
category designated by the Administrator pursuant to Title III of the
Act.'' 40 CFR 70.3(a) includes a number of different types of sources
other than section 112 sources. For full approval, section
122.120(4)(C) of the permit regulation must be modified to be
consistent with 40 CFR 70.3(a).
Section 122.010 of the Texas permit regulation defines major source
as ``any site which emits or has the potential to emit air pollutants
as described in subparagraphs (A), (B), and (C) of this definition.''
The permit regulation defines ``site'' to allow research and
development (R & D) operations to be treated as a separate site from
any manufacturing facility with which they are co-located. The State's
permit regulation is inconsistent with 40 CFR 70.3 which requires that
a State's operating permits program provide for the permitting of all
major sources, and 40 CFR 70.4(b)(3)(i) which requires that the State
demonstrate adequate legal authority to issue permits and assure
compliance with each applicable requirement by all part 70 sources.
Confusion over this issue has occurred as a result of language in
the preamble to the final July 21, 1992, 40 CFR part 70 rulemaking (57
FR 32264). The preamble language indicates that States would have the
flexibility in many cases to treat R & D facilities separately from the
manufacturing facilities with which they are co-located. The EPA
intended for this language to clarify the flexibility in part 70 for
allowing R & D facilities to be treated separately in cases where the R
& D facility has a different two-digit Standard Industrial
Classification (``SIC'') code and is not a support facility. This
approach is consistent with the treatment of R & D facilities in the
New Source Review program.
The Texas permit regulation could cause certain part 70 major
sources, as defined in 40 CFR 70.2, or portions of such sources with
the same SIC code, to be treated as separate sources. This could cause
some part 70 sources to be exempted from coverage by part 70 permits
which must ensure all part 70 requirements for these sources are met.
For full part 70 approval, the Texas permit regulations must treat
research and development activities consistent with part 70.
Pursuant to 40 CFR 70.5(c), a permit application must describe all
emissions of regulated air pollutants emitted from any emission unit.
However, the Administrator may approve, as part of a State program, a
list of insignificant activities and emission levels which need not be
included in the permit application. The Texas operating permit program
is designed to require the applicant to certify all emission units
subject to an applicable or potential applicable requirement be
described in the permit application.
Section 122.132 of the Texas permit regulation discusses the
required information the permittee is to include in the operating
permit application. The permit application shall include for each
emission unit, or group of similar emission units: (1) Information
identifying each applicable requirement, any corresponding emission
limitation and any corresponding monitoring, reporting, and
recordkeeping requirements; and (2) information identifying potentially
applicable requirements for that particular type of emission unit and
the basis for the determination that those applicable requirements do
not apply.
Therefore, it is necessary for the applicant to identify all
potential applicable requirements for each unit and give a basis for
all negative applicable determinations. In other words, where a unit
has a limitation or a specific characteristic of an emission unit that
is limited by a regulation, but the applicant claims the unit is not
subject to that regulation, the applicant is required to justify why.
The applicant is responsible and is liable for including all applicable
and potentially applicable requirements in the permit application. The
potential applicable requirement language as a practical manner will
require the source to characterize operations and emissions in a manner
that is comprehensive enough to allow the State to independently verify
which requirements are applicable. This process is subject to audits by
State field inspectors, and action could be taken if violations of the
Texas Permit Regulation exist.
Pursuant to section 122.120(1) of the Texas permit regulation, the
owner or operator of a site shall submit an application to the TNRCC if
the source is a major source. Major source applicability is calculated
on a site's potential to emit air pollutants. When the applicant is
calculating major source applicability, all emissions at each unit will
be accounted for at the site, regardless if a unit is potentially
subject to an applicable requirement. The operating permit application
requires the applicant to indicate all air pollutants that are major at
the site. The operating permit will reference pre-construction permits
in which specific emission data for each emission unit will reside.
Additionally, more detail of specific emission data is contained in an
emission inventory database.
The design and approach the State uses to keep activities out of
the operating permit application is considered practical and equivalent
to part 70. This design attains the same results as a list of
insignificant activities or emissions thresholds for units. The EPA
believes the procedure set forth in the Texas permit regulation to
identify insignificant activities achieves the goal and intent of the
part 70 regulation and therefore is consistent and acceptable.
The part 70 regulation requires the permit application to describe
all emissions of regulated air pollutants emitted from any emissions
unit. A regulated air pollutant includes any pollutant subject to a
standard promulgated under section 112 or other requirement established
under section 112 of the Act, including sections 112(g), (j), and (r).
The Texas permit regulation defines the term ``air pollutant'' and does
not define ``regulated air pollutant.'' It defines air pollutant to
include ``any pollutant listed in section 112(b) or section 112(r) of
the Act and subject to a standard promulgated under section 112 of the
Act.'' The term ``air pollutant'' is also used in the Texas definitions
for ``potential to emit'' and ``major source.'' This creates an
inconsistency with the part 70 regulation, in which applicability is
based on a source's potential to emit any air pollutant,
[[Page 30041]] including those listed pursuant to section 112, rather
than on pollutants which are subject to a promulgated standard. For
full approval, the definition of ``air pollutant'' must be modified to
be consistent with the part 70 regulation.
Section 122.010 of the Texas permit regulation defines ``major
source'' and further identifies the twenty-seven stationary source
categories required to include a source's fugitive emissions in
determining when a source is major. Category xxvii states that, for
``any other stationary source category which, as of August 7, 1980, is
being regulated under sections 111 or 112 of the Act,'' fugitives must
be counted in determining if the source is major. This is inconsistent
with the current 40 CFR 70.2 which requires fugitive emissions to be
counted for all section 111 and 112 standards, and which does not limit
the stationary source categories to those which existed as of August 7,
1980. For full approval, the State must be consistent with part 70.
Section 122.010 of the Texas permit regulation defines ``title I
modification'' as a change at a site that qualifies as a modification
under section 111 of title I of the Act or section 112(g) of title I of
the Act, or as a major modification under part C or part D of title I
of the Act. The State's definition of ``title I modification'' does not
include changes reviewed under a minor source preconstruction review
program (``minor NSR changes''), nor does it include changes that
trigger the application of National Emission Standards for Hazardous
Air Pollutants (NESHAP) established pursuant to section 112 of the Act
prior to the 1990 Amendments. The EPA is currently in the process of
determining the appropriate interpretation of ``title I modification''.
As further explained below, the EPA has solicited public comment on
whether the phrase ``modification under any provision of title I of the
Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) should be interpreted to mean
literally any change at a source that would trigger permitting
authority review under regulations approved or promulgated under title
I of the Act. This would include minor State preconstruction review
programs approved by the EPA as part of the State Implementation Plan
under section 110(a)(2)(C) of the Clean Air Act and regulations
addressing source changes that trigger the application of NESHAP
established pursuant to section 112 of the Act prior to the 1990
Amendments.
In the August 29, 1994, proposed revisions to the interim approval
criteria at 40 CFR section 70.4(d) the EPA proposes to allow State
programs with a narrower definition of ``title I modification'' to
receive interim approval (59 FR 44572). The EPA in that notice states
its belief that the better reading of ``title I modification'' would
include minor NSR and pre-1990 NESHAP requirements, but solicited
public comment on the appropriate interpretation of the term (59 FR
44573). If the definition of ``title I modification'' is finalized to
include minor NSR changes, States such as Texas which have a narrower
definition are eligible for interim but not final approval. If the
final definition excludes changes reviewed under minor NSR and changes
that trigger a pre-1990 NESHAP requirement, the State's definition of
``title I modification'' would be consistent with part 70.
For similar reasons, the EPA will not construe 40 CFR section
70.7(e)(2)(i)(A)(3) to prohibit the State from receiving interim
approval because it allows minor NSR case-by-case determination changes
to be processed as minor permit modifications. Again, although the EPA
has reasons for believing that the better interpretation of ``title I
modification'' is the broader one, the EPA does not believe that it is
appropriate to deny interim approval to a State such as Texas on such
grounds.
(b) Permit application requirements (40 CFR 70.5(c)). These
requirements are addressed in sections 122.130-122.139 of the Texas
permit regulation. A transition plan is included in the permit
regulation which accounts for six SIC codes subject to the Texas
interim approval program. The Texas permit regulation requires the
owner or operator to submit a timely and complete application for each
site subject to the requirements of the permit regulations.
Pursuant to 40 CFR 70.5(c)(8)(iii)(C), a compliance schedule is
required for sources out of compliance at the time of permit issuance.
Section 122.132(b)(3)(B) of the Texas permit regulation addresses
compliance schedules but appears to not require that schedules be at
least as stringent as any consent decree or administrative order to
which the source is subject. For full part 70 approval, the State must
revise the permit regulation to be consistent with the part 70
regulation.
(c) Permit issuance and revision procedures (40 CFR 70.7). These
requirements are provided for in subchapter C of the permit regulation.
The State has requested that the EPA approve the proposed operating
permits program as a source category-limited interim program for a
period of two years. Section (II)(B) of this notice (referring to
options for approval/disapproval and implications) further discusses
the sites subject to the interim approval program and the Texas
rationale for requesting interim approval.
Section 122.241 of the Texas permit regulation requires permit
applications for renewal at least six months prior to the date of
permit expiration, but not more than eighteen months prior to the date
of permit expiration. The permit regulation contains criteria for
determining completeness of applications consistent with 40 CFR
70.5(a)(2).
Pursuant to 40 CFR 70.7, the State's program must prohibit a source
from operating after the time that the source is required to submit a
timely and complete application, except in compliance with a permit
issued under a part 70 program. Section 122.138 of the Texas permit
regulation allows an application shield if there is a timely and
complete application for permit issuance, significant permit
modification to a permit, or renewal. The site's failure to have a
Federal operating permit is not a violation until the State takes final
action on the permit. The application shield provided for in 40 CFR
70.7(b) does not apply to significant modifications, but only applies
to a ``complete application for permit issuance (including for
renewal)''. For this reason, section 122.138 of the Texas permit
regulation is inconsistent with 40 CFR 70.7. For full approval, the
Texas permit regulation must be made consistent with the part 70
regulation by deleting the reference in section 122.138 to
``significant permit modification to a permit.''
Sections 122.211-122.213 of the Texas permit regulation contain the
requirements of 40 CFR 70.7(d) for administrative amendments, but do
not require the Administrator's approval for similar changes allowed by
section 122.211. This is inconsistent with 40 CFR 70.7(d)(1)(vi) which
requires that, in order for changes other than those specified in 40
CFR 70.7(d) (i) through (v) to be made as administrative amendments,
they must first be determined by the Administrator, as part of the
approved part 70 program, to be similar to those specified in
70.7(d)(1) (i) through (iv). For full approval, section 122.211 must be
revised to specifically list the types of changes that the State
proposes to be eligible for processing as administrative amendments,
for the Administrator's approval as part of the State's part 70
program. [[Page 30042]]
Sections 122.215-122.217 of the Texas permit regulation requires
certain permit revisions to be processed as ``permit additions''. The
criteria for ``permit additions'' appear to be the same as the Federal
criteria for some types of changes noted under minor permit
modification provisions (40 CFR 70.7) and for some changes allowed as
``off permit'' changes under 40 CFR 70.4(b)(14). The State proposes to
implement the ``permit addition'' criteria in the interest of providing
adequate, streamlined, and reasonable procedures for processing permit
revisions. However, the EPA does not consider the streamlined
procedures set out in sections 122.215-122.217 of the Texas permit
regulation to be equivalent to the minor permit modification procedures
found in the part 70 regulation. For full approval, the permit
additions rule and all other Texas permit revisions rules must be
modified to be consistent with part 70.
The criteria to qualify for permit additions in section 122.215
include the following: A change at a site may qualify as a permit
addition if the change is not addressed or prohibited by the Federal
operating permit, does not violate any existing term or condition of
the Federal operating permit, does not violate any applicable
requirement, and is not a title I modification.
Section 122.215(c) also allows a change at a site to be processed
as a permit addition if the change ``does not require or change a
determination of an emission limitation under section 112(g) or section
112(j) of title I of the Act * * *''. The Federal part 70 regulation
contains a similar provision at 40 CFR 70.7(e)(2)(i)(A)(3) with respect
to minor permit modification procedures, but the Federal provision is
written in general terms to prohibit modifications that change a
``case-by-case'' determination of an emission limitation or standard.
Section 122.215(c) of the Texas permit regulation does not require
case-by-case reasonably available control technology (RACT) changes to
be processed as significant permit modifications. The EPA interprets 40
CFR 70.7(e)(2)(i)(A)(3) provisions prohibiting changes in ``case-by-
case'' determinations to apply to RACT equivalency determinations.
Therefore, the EPA does not consider the Texas provision to be
equivalent to the part 70 regulation. For full approval, the permit
regulation must be modified consistent with part 70.
Section 122.215(c)(2) of the Texas permit regulation defines
``significant changes to monitoring, reporting or recordkeeping
requirements in the permit.'' The definition includes the ``removal of
monitoring, recordkeeping, or reporting terms and conditions, or a
substitution in those terms and conditions promulgated pursuant to
Federal New Source Performance Standards or National Emission Standards
for Hazardous Air Pollutants.'' This definition of significant changes
to monitoring, reporting or recordkeeping requirements is acceptable
under the current part 70 rule. If any additional rulemaking is
promulgated by the EPA on this subject, the State must change its
definition consistent with the new rulemaking.
Section 122.216 of the Texas permit regulation allows applications
for permit additions to be submitted to the State no later than 90 days
after the owner or operator has obtained or qualified for a
preconstruction authorization. However, under this rule after the
source receives its preconstruction permit, it may make the requested
operating change before submitting the operating permit application
within the 90-day timeframe. 40 CFR 70.7(e)(2)(v) requires that no
operating change be made if a source is changing a term in its original
part 70 permit until the source has submitted the operating permit
revision application. For full approval, the Texas permit regulation
must be revised to be consistent with part 70.
Section 122.217 addresses the procedures used to process permit
additions and states ``the permit addition shall not become final until
after the EPA's 45-day review period at renewal.'' For the EPA to
consider permit additions equivalent to the procedures in 40 CFR
70.7(e)(2), the EPA must have the opportunity to review and object to
the issuance in writing within 45 days of receipt of the proposed
permit. For full approval, the Texas permit regulation must be
consistent with part 70 and allow for timely EPA review.
The Texas permit addition procedures addressed in section 122.217
provide that, within 90 days after receipt of a complete application,
the agency is to determine that the requested modification does not
meet the permit addition criteria and that it should therefore be
reviewed under the significant modification procedure, or the agency is
to revise the draft permit addition and transmit to the EPA the new
proposed permit addition. This section does not include a deadline for
the TNRCC to issue or deny a permit addition modification. The minor
permit modification procedures contained in 40 CFR 70.7(e)(2) require a
State to issue or deny the permit modification within 90 days or 15
days after the end of the Administrator's 45 day review period,
whichever is later. For full approval, the Texas permit regulation must
be consistent with part 70.
Subchapter E of the Texas permit regulation contains the acid rain
provisions, as well as the deadlines for submitting acid rain permit
applications. The provisions and timelines are consistent with those
required by title IV of the Act. Section 122.139 of the Texas permit
regulation regarding action on permit applications and section 122.136
regarding additional information are consistent with 40 CFR 70.4(b)(6)
and 70.7(a)(4).
Pursuant to the part 70 regulation, a permit must be reopened and
revised for cause when an additional applicable requirement becomes
applicable to a permitted site with a remaining permit term of three or
more years. Sections 122.231 and 122.233 of the Texas permit regulation
discuss the criteria and procedures for permit reopenings and meet the
requirements of 40 CFR 70.7(f).
Provisions for public notice have been contained in section 122.153
of the Texas permit regulation and in section 122.202(a)(3) for general
permits. Those sections provide for procedures for public notice and an
opportunity for public comment for all permit issuance proceedings,
including initial permit issuance, significant modifications, renewals,
and initial general permits. 40 CFR 70.7(h) requires the public notice
to include the emissions change involved in any permit modification.
For full approval, the State must revise its permit regulation to be
consistent with part 70.
Provisions for the EPA and affected State review to be accomplished
in an expeditious manner as required by 40 CFR 70.8 have been provided
for in sections 122.310 and 122.311 of the Texas permit regulation.
Section 122.132 of the Texas permit regulation requires the applicant,
rather than the permitting authority, to submit the permit application
directly to the Administrator. This is acceptable and meets the
requirements of 40 CFR 70.8.
40 CFR 70.8(a)(3) requires each State permitting authority to keep
records for five years. The State did not address this requirement in
the Texas permit regulation. However, the TNRCC is subject to, and must
comply with, the State of Texas Records Retention Schedule that is
approved by the State Auditor's Office and the Texas State Library and
Archives Commission (signed and dated April 7, 1993) requiring permit
files to be maintained for three years after a file is closed. A closed
file is one that is closed, terminated, expired, or settled.
[[Page 30043]] Therefore, records will be maintained for the life of
the permitted facility plus an additional three years. This is
consistent with and meets the requirements of 40 CFR 70.8(a)(3).
(d) Permit Content (40 CFR 70.6(a)). The permit content
requirements are contained in sections 122.141-122.145 of the Texas
permit regulation. 40 CFR 70.3(d) requires fugitive emissions from a
part 70 source to be included in the operating permit in the same
manner as stack emissions. The definition of an ``emission unit'' in
section 122.010 of the Texas permit regulation includes fugitive
emissions to be collectively considered as an emission unit. The
operating permit will consolidate already existing federally
enforceable requirements at relevant emission units. This raises the
minor NSR/part 70 integration issue as discussed in section II(A)(2)(a)
above because of the manner in which Texas has defined ``applicable
requirement''. Under 40 CFR 70.3, a permit application must describe
all emissions of regulated air pollutants emitted from any emission
unit, including fugitive emissions from emission units not subject to
an applicable requirement. Because of the issue discussed in section
II(A)(2)(a) of this notice regarding the State's definition of
applicable requirement, the State's operating permit program does not
ensure that this part 70 requirement will be met. For full approval,
Texas must revise the Texas permitting regulation to be consistent with
part 70.
The Texas permit regulation allows for such changes as emission
trading and anticipated operating scenarios provided the permittee
meets the requirements set forth in section 122.221 (operational
flexibility), that the permittee comply with Regulation VI (Control of
Air Pollution by Permits for New Construction or Modification), and
provided the Texas SIP allows it. Regulation VI does not allow for a
facility to ``trade emissions'' without best available control
technology and an impacts review, nor does Regulation VI allow a source
to vary its operating scenario, unless expressly allowed under an
existing preconstruction authorization. The Texas permit regulation has
adequately addressed emission trading and operating scenarios.
40 CFR 70.6(b) requires all terms and conditions of a permit,
including any provisions designed to limit a source's potential to
emit, to be enforceable by the EPA and citizens, unless such terms and
conditions are specifically designated as not federally enforceable.
The State submitted section 122.122 (relating to establishment of
federally enforceable restrictions on potential to emit) as a SIP
revision on September 17, 1993. Section 122.122 establishes a procedure
for grandfathered sources, (i.e. sources exempted from having a State
NSR permit because they were constructed or operated prior to 1971), to
submit a certification to the State that establishes a limit on
potential to emit that is enforceable as a matter of State law. If
section 122.122 is approved by the EPA into the SIP, these limits would
be federally enforceable as well. The EPA is taking no action on
section 122.122 in this notice. A separate action will be taken on the
State's proposed SIP revision at a later date.
On January 25, 1995, the EPA's Office of Air Quality Planning and
Standards issued guidance which, among other things, announced the
availability of a two-year transition period during which a State could
give sources additional options for seeking federally enforceable
limitations on potential to emit. These options allow a source with a
practicably enforceable limit on potential to emit in a State
enforceable permit and/or limitations established by State rule (such
as by certificates of registration issued pursuant to section 122.122),
to certify to the EPA that it accepts the Federal enforceability of
that limit for the duration of the transition period. Certifications
developed pursuant to section 122.122 will serve as the basis for
exercise of this transition policy, provided Texas wishes to exercise
this option, and an acceptable certification process is developed
between Texas and the EPA addressing the source's acceptance of Federal
enforceability.
40 CFR 70.4 requires the State to issue permits for a fixed term of
five years in the case of permits for acid rain and all other permits
for a period not to exceed five years. 40 CFR 70.4(b)(3)(iv) provides
that permits issued for solid waste incineration units combusting
municipal waste subject to provisions under section 129(e) of the Act
can have a fixed permit term of twelve years. Rather than making the
distinction between five and twelve years, section 382.0543(a) of the
Texas Clean Air Act provides that an operating permit is subject to
renewal at least every five years. This approach for solid waste
incineration units combusting municipal waste is acceptable and meets
the requirements of the part 70 regulation. The Texas permit regulation
does not, however, limit the general permit term to a maximum of five
years. For full approval, the State of Texas must revise the general
permit term to be consistent with part 70.
Temporary sources, as allowed by 40 CFR 70.6(e), are provided for
in section 122.204 of the Texas permit regulation. This section meets
the requirements of the part 70 regulation.
The concept of a permit shield is discussed in 40 CFR 70.6(f) as a
means by which States could allow an enforcement shield as a permit
provision, provided certain criteria were met. The State determined
that the permit shield was too broad in scope and too difficult to
apply properly. Therefore, the State chose not to include the permit
shield as described in the part 70 regulation. Instead, the State
adopted section 122.145(e) through which the State intends to provide
for an enforcement shield in those situations where the interpretation
of a rule is required and may be subject to change.
The EPA believes the intent of the rule is worthy, but is concerned
about its ambiguities. Therefore, the EPA believes it can not go
forward with a final action granting interim approval to the State of
Texas unless the EPA receives a written commitment from the board of
the TNRCC or designee agreeing to process any actions taken pursuant to
section 122.145(e) as follows: (1) The interpretation made pursuant to
section 122.145(e) shall be limited to applicability issues only; (2)
the EPA shall have the opportunity to review and veto every section
122.145(e) action; and (3) the interpretation will be based upon the
most current EPA guidance, and any guidance developed by the TNRCC must
be in writing and preapproved by the EPA. Additionally, for full part
70 approval, the TNRCC must revise section 122.145(e) of the Texas
permit regulation to reflect the three previous provisions.
Emergency provisions are provided for in 40 CFR 70.6(g). Section
122.143 of the Texas permit regulation references chapter 101 (General
Rules), which contains notification requirements for major upsets.
Under this chapter, the owner or operator of a facility must notify the
Executive Director of the TNRCC as soon as possible of any major upset
condition which causes or may cause an excessive emission that
contravenes the intent of the statute or the regulations. In the event
that the information required in the notification is unknown at the
time of the initial notification, then such information must be
provided as soon as possible, and submitted as a written report no
later than two weeks from the onset of the upset condition. This
allowance for time of agency notification by the permittee is
[[Page 30044]] inconsistent with the part 70 regulation. 40 CFR
70.6(g)(3) requires the permittee to submit notice of the emergency to
the permitting authority within two working days. For full approval,
the Texas permitting rule must be consistent with the part 70
regulation.
The part 70 regulation requires an operating permits program to
allow for operational flexibility. 40 CFR 70.4(b)(12) allows for
``section 502(b)(10) changes without requiring a permit revision, if
the changes are not modifications under any provision of title I of the
Act and the changes do not exceed emissions allowable under the
permit.'' ``Section 502(b)(10) changes'' are not defined or included in
the Texas permit regulation; therefore, it is not clear what types of
changes can be processed through the State's operational flexibility
provision. Section 122.221 of the Texas permit regulation could be
interpreted to allow changes which violate what the EPA considers an
applicable requirement. This is inconsistent with the definition of
``Section 502(b)(10) changes'' in the part 70 regulation. Therefore,
for full approval, the State must revise its permit regulation such
that the definition of ``Section 502(b)(10) changes'' is consistent
with part 70.
(e) Off-permit (40 CFR 70.4(b)(14) and 70.4(b)(15)). Section
122.215 of the Texas permit regulation defines off-permit changes under
part 70 as changes which qualify as permit additions. Because of the
State's narrow definition of applicable requirement, some changes which
would be allowed as ``off-permit'' changes under the Texas rule would
not be considered ``off-permit'' under the Federal definition of
changes which can be made without a permit revision under 40 CFR
70.4(b)(14). Section (II)(A)(2)(a) of this notice identifies issues
regarding the definition of applicable requirement that must be
addressed prior to full approval.
3. Permit Fee Demonstration
In the fee regulation, the State proposes to charge an emission fee
for sources subject to title V in Fiscal Year 1994 (FY 1994) and FY
1995 equivalent to at least the part 70 presumptive minimum fee of $25
per ton of regulated air pollutants, adjusted per the consumer price
index (CPI). The emission fee rate for FY 1994 is set at $25 per ton of
regulated pollutants including carbon monoxide (CO). Texas does not
charge fees above the 4,000 ton per year cap. The State will collect
$40 million per year to support all applicable part 70 activities. The
generation of $40 million in revenue, if CO emissions were excluded,
corresponds to an average of $30.77 per ton of regulated pollutants.
This average rate is above the presumptive minimum adjusted by the CPI.
The emission fee rate for FY 1995 averages $26 per ton of criteria
pollutants including the collection for CO emissions. The fee rate will
be reviewed in early calendar year 1995 and every two years thereafter.
The fee review will account for projected CPI adjustment, additional
staffing needs, and/or emission reductions that may require increasing
the fee rate.
Pursuant to 40 CFR 70.4(b)(8), the State must include in the fee
demonstration an estimate of the permit program costs for the first
four years after approval and a plan detailing how the State plans to
cover these costs. The EPA has received the TNRCC FY 1994 and FY 1995
operating budget. Since the EPA has not received a complete four year
projection, this will be required for full approval.
4. Provisions Implementing the Requirements of Other Titles of the Act
The State of Texas request for approval of a part 70 program also
serves as a request for approval of the State's rulemaking process as a
mechanism to gain delegation, when requested by the State for a
particular standard, of unchanged section 112 standards under the
authority of section 112(l). At this time, the State plans to use the
mechanisms of adoption-by-reference and case-by-case adoption to adopt
unchanged Federal section 112 requirements into its regulations. The
State of Texas may, at any time, exercise its option to request, under
section 112(l) of the Act, delegation of section 112 requirements in
the form of State regulations which the State demonstrates are
equivalent to the corresponding section 112 provisions promulgated by
the EPA. The State will receive delegation of those remaining standards
and programs through the section 112(l) delegation process.
The radionuclide NESHAP is a section 112 regulation and therefore
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition of
``major'' for radionuclide sources. Therefore, until a major source
definition for radionuclides is promulgated, no source would be a major
section 112 source solely due to its radionuclide emissions. However, a
radionuclide source may, in the interim, be a major source under part
70 for another reason, thus requiring a part 70 permit. The EPA will
work with the State in the development of its radionuclide program to
ensure that permits are issued in a timely manner.
Texas has demonstrated in its operating permits program submittal
adequate legal authority to implement and enforce all section 112
requirements through the title V permit. This legal authority is
contained in Texas enabling legislation and in regulatory provisions
defining ``applicable requirements'' and stating that the permit must
incorporate all applicable requirements. The EPA has determined that
this legal authority is sufficient to allow Texas to issue permits that
assure compliance with all section 112 requirements.
The State of Texas will pursue delegation of rules and programs, as
appropriate, to implement and enforce the existing and future
requirements of sections 111, 112, and 129 of the Act, and all MACT
standards promulgated in the future, in a manner consistent with State
law, to ensure all applicable requirements of part 70 are met.
Section 112(g) of the Act requires that, after the effective date
of a permits program under title V, no person may construct,
reconstruct, or modify any major source of hazardous air pollutants
unless the State determines that the MACT emission limitation under
section 112(g) will be met. The EPA has announced its interpretation of
the Act in the Federal Register (see 60 FR 8333, February 14, 1995)
(hereafter Interpretive Notice). The Interpretive Notice postpones the
effective date of section 112(g) until after the EPA has promulgated a
final rule addressing that provision. The rationale for the revised
interpretation was explained in detail in the Interpretive Notice.
The Interpretive Notice explains that the EPA is still considering
whether the effective date of section 112(g) should be delayed beyond
the date of promulgation of the Federal rule to allow States time to
adopt rules implementing the Federal rule. If a decision is made to
allow such additional delay in the implementation of section 112(g),
the EPA will announce that decision in the final section 112(g)
rulemaking.
The State of Texas adopted, and incorporated by reference, the
provisions of 40 CFR part 72 in effect on the date of this action for
purposes of implementing an acid rain program that meets the
requirements of title IV of the Act. It is the EPA's position that this
State program meets the requirements of the Federal acid rain program.
5. Enforcement Provisions
40 CFR part 70 requires each operating permit program to provide
enforcement authority to address [[Page 30045]] violations of program
requirements by permitted sources. The Texas enforcement provisions are
contained in the Texas Clean Air Act (TCAA) and are discussed in the
Attorney General's Opinion. Pursuant to 40 CFR 70.11(a)(3)(ii), the
permitting authority shall have the authority to recover penalties
against any person who knowingly violates any applicable requirement,
any permit condition, or any fee or filing requirement. These fees
shall be recoverable in a maximum amount of not less than $10,000 per
day per violation. The TCAA contains provisions which exceed the
$10,000 per day per violation for all cases except for the filing fee
criminal enforcement provision. This filing fee provision contained in
section 382.092 of the TCAA imposes a penalty for failing to pay a
required fee which is punishable ``for an individual by a fine of not
more than twice the amount of the required fee, confined in jail not to
exceed 90 days, or both fine and confinement and, for a corporation or
association, by a fine of not more than twice the amount of the
required fee.'' The preamble to part 70 regulation recommends that
State enforcement authorities consider as criminal penalties not only
fines, but also incarceration, so that State prosecutors will have more
inducement to prosecute environmental crimes. Because this provision
imposes a range of fines, confinement in jail, and imprisonment, the
EPA is proposing to accept that the TCAA meets the criminal enforcement
provisions of part 70. The EPA believes the filing fee provision
achieves the goal and intent of 40 CFR part 70. The EPA is soliciting
comments on the proposed position.
Texas' operating permits program submittal adequately addressed the
enforcement requirements of 40 CFR 70.4(b)(4) and 70.4(b)(5) in Volume
1 and the supplemental volume. The submittal contains permit program
documentation such as draft copies of the permit forms, application
forms, public notice forms, certification forms, and compliance/
enforcement reporting forms. Monitoring requirements are contained in
this guidance material including the types of monitoring used to
demonstrate compliance. However, this guidance may be subject to change
once the part 64 enhanced monitoring rules are promulgated. The
enforcement program is described in the document ``Guidance on
Compliance and Enforcement Matters'' found in attachment IV of the
State's submittal. Volume 1 contains a complete description of the
State's compliance tracking and enforcement program which includes an
agreement between the State and the EPA, entitled ``Fiscal Year 1993
Memorandum of Understanding between the Texas Air Control Board and the
U.S. Environmental Protection Agency.''
6. Summary
The State of Texas submitted to the EPA its operating permits
program, requesting the EPA to grant interim approval to the Texas
operating permits program. The submittal has been reviewed for adequacy
to meet the requirements of 40 CFR part 70 (1992). The results of this
review are included in the technical support document, which will be
available at the docket at the locations noted above. The submittal has
adequately addressed all 11 elements required for interim approval as
discussed in the part 70 regulation. However, the EPA has in this
notice described inconsistencies between the Texas permit regulation
and the part 70 regulation. These inconsistencies involve both the
permit regulation and program implementation, with regard to
applicability, permit application requirements, and permit issuance and
revision. It is essential that these inconsistencies be remedied by the
State consistent with the Act and 40 CFR part 70 prior to the EPA
granting full approval of the State's operating permits program.
Due to pending litigation involving sections of 40 CFR part 70, the
part 70 regulation may be revised. Any final revisions may require the
State to make regulatory and statutory changes.
The State of Texas addressed all requirements necessary to receive
interim approval of the State operating permits program pursuant to
title V, 1990 Amendments and part 70 (1992).
B. Options for Approval/Disapproval and Implications
Pursuant to 40 CFR 70.4(d), Texas requested that the EPA approve
the Texas Operating Permits Program as a source category-limited
interim program for a period of two years. The EPA is proposing to
grant interim approval to the operating permits program submitted by
Texas on November 15, 1993, for a period of two years.
Volume 1 of the Texas operating permits program submittal includes
the rationale for requesting interim approval. The State projects that
over 3,000 major sources will be subject to the operating permits
program. Many of these sources are complex. The EPA recognizes that a
large percentage of the Nation's title V sources will be permitted by a
single agency and that a ramp-up period is essential. The time
following interim approval will allow the State to hire additional
engineers and train experienced engineers to write quality permits that
consolidate all applicable requirements into one document. Furthermore,
the additional time is necessary to develop a computer information
management system that will manage the permits, permit applications,
and additional documentation. This computer system will be the
mechanism used to interchange information between the TNRCC, the EPA,
the affected States, the regulated community, and the general public.
Such a database will give interested parties an efficient mechanism to
review the current applicable requirements and the compliance status of
a source. The EPA is satisfied that the State has demonstrated
compelling reasons for a source category-limited interim approval.
Between the interim program and the full program, the transition
schedule requires the State to take final action on applications for
400 sites each of the first two years, 1,000 sites the third year, and
600 sites each of the last two years. Therefore, it is projected that
60 percent of the sources required to obtain operating permits will
obtain those permits in the first three years of the program.
State-specific circumstances preclude the TNRCC from demonstrating
coverage of sources which are responsible for at least 80 percent of
the aggregate emissions during the interim period. The State will be
required to permit complex stationary sources such as refineries and
petrochemical plants. These complex plants can have as many as 3,000
emission units per source. The State's rationale for requesting interim
approval is to permit these complex sources toward the end of the
permit issuance period (rather than during the first two years). The
State designed the interim program to bring in similar types of sources
and those which have the fewest number of emission points. This will
enable the State to spend its resources on writing quality permits that
are federally enforceable. The EPA is confident that the State is
addressing enough sources in those first three years to represent a
significant portion of the program.
III. Proposed Rulemaking Action
In this action, the EPA is proposing source category-limited
interim approval of the operating permits program submitted by the
State of Texas. The program was submitted by the State to the EPA for
the purpose of complying with Federal requirements [[Page 30046]] found
in title V of the Act and in 40 CFR part 70, which mandate that States
develop, and submit to the EPA, programs for issuing operating permits
to all major stationary sources, and to certain other sources with the
exception of Indian Lands.
Requirements for title V approval, specified in 40 CFR 70.4(b),
encompass section 112(l)(5) requirements for approval of a mechanism
for delegation of Federal section 112 standards as they apply to part
70 sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under 40
CFR part 70. Therefore, as part of this interim approval, the EPA is
also proposing to grant approval under section 112(l)(5) and 40 CFR
63.91 of the State's mechanism for receiving delegation of section 112
standards that are unchanged from Federal standards as promulgated when
requested by the State. The State will receive delegation of the
remaining standards through other section 112(l) delegation processes.
The EPA has reviewed this submittal of the Texas operating permits
program and is proposing source category-limited interim approval for a
period of two years. Certain defects in the State's permit regulation
and program implementation preclude the EPA from granting full approval
of the State's operating permits program at this time. The EPA is
proposing to grant interim approval, subject to the State obtaining the
needed regulatory and program implementation revisions within 18 months
after the Administrator's approval of the Texas title V program
pursuant to 40 CFR 70.4.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the State's submittal and other information
relied upon for the proposed interim approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, the EPA in the development of this proposed interim
approval. The principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by July 7, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permit programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Intergovernmental relations, Operating
permits, and Reporting and recordkeeping requirements.
VI. Miscellaneous
A. Interim Approval
Proposed interim approval of the part 70 operating permits program
for the State of Texas.
Authority: 42 U.S.C. 7401-7671q.
Dated: May 3, 1995.
A. Stanley Meiburg,
Deputy Regional Administrator (6D).
[FR Doc. 95-13926 Filed 6-6-95; 8:45 am]
BILLING CODE 6560-50-P
