Audit Program for Texas Flexible Permit Holders, 59711-59716 [2010-24289]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Notices]
[Pages 59711-59716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-24289]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-R06-OAR-2010-0510; FRL-9207-4]


Audit Program for Texas Flexible Permit Holders

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Notice of Clean Air Act (CAA) voluntary audit compliance 
program for flexible permit holders in the State of Texas (hereinafter 
``Audit Program''); response to public comments.

-----------------------------------------------------------------------

SUMMARY: EPA is offering holders of Texas flexible air permits an 
opportunity to participate in a voluntary Audit Program that is 
intended to expeditiously identify the federally-enforceable CAA unit 
specific emission limitations, operating parameter requirements, and 
monitoring, reporting, and recordkeeping (MRR) requirements for 
determining compliance for all units covered by a facility's flexible 
permit. EPA believes that the program will generate environmental 
benefits for the public in Texas as well as a measure of regulatory 
stability for holders of Texas flexible permits. This Final Notice 
makes modifications to the Audit Program based on comments received 
during the public comment period. A separate document contains the 
Agency's Response to Comments (RTC).

DATES: Executed Audit Agreements may be submitted no later than 
December 27, 2010. Participants who execute an Audit Agreement by 
November 12, 2010 will receive a waiver of the gravity component of any 
penalties resulting from noncompliance uncovered by the Audit.

ADDRESSES: 
    Docket: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2010-0510. All documents in the docket 
are listed in the https://www.regulations.gov index. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, will be publicly 
available only in hard copy. Publicly available docket materials are 
available either electronically at https://www.regulations.gov or in 
hard copy at the Air Enforcement Section (6EN-AA), Environmental 
Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 
75202-2733. The file will be made available by appointment for public 
inspection in the Region 6 FOIA Review Room between the hours of 8:30 
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the 
person listed in the paragraph below to make an appointment. If 
possible, please make the appointment at least two working days in 
advance of your visit. There will be a 15 cent per page fee for making 
photocopies of documents. On the day of the visit, please check in at 
the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, 
Texas, 75202-2733.

FOR FURTHER INFORMATION CONTACT: To submit executed Audit Agreements or 
for more information on the Audit Program for Texas flexible permit 
holders, please contact Mr. John Jones, Air Enforcement Section (6EN-
AA), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
700, Dallas, Texas 75202-2733, telephone

[[Page 59712]]

(214) 665-7233; fax number (214) 665-3177; e-mail address, jones.john-l@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Audit Program for Texas Flexible Permit Holders

Audit Program Overview

    Texas flexible permits are not part of the federally--approved 
State Implementation Plan (``SIP''), and thus, only contain applicable 
state permit requirements. Flexible permits are not the appropriate 
mechanisms for embodying federal requirements, and are not 
independently federally-enforceable. On September 25, 2007, EPA sent 
notice letters to all facilities that were issued a flexible permit 
informing them that flexible permits were pertinent only to Texas State 
air permit requirements and that facilities were ``obligated to comply 
with the federal requirements applicable to (their) plant, in addition 
to any particular requirements of (their) flexible permit.'' Moreover, 
on September 23, 2009, EPA proposed the disapproval of the Texas 
flexible permit program as an amendment to the Texas SIP because it 
does not meet federal Nonattainment New Source Review or Prevention of 
Significant Deterioration (hereafter collectively referred to as 
``NSR'') requirements (74 FR 48480). EPA followed that proposal with 
several objections to Title V permits that relied on flexible permits 
to encompass federal NSR requirements because the terms of the Texas 
flexible permit are not incorporated into the federally--approved Texas 
SIP. EPA finalized disapproval of the Texas flexible permit program on 
July 15, 2010 (75 FR 41312).
    EPA is proposing the Audit Program as a mechanism for Texas 
Flexible Permit holders to transition these permits into SIP approved 
NSR permits. Under the Audit Program, participants would need to 
commission a comprehensive third-party Audit to determine all 
federally-applicable unit-specific limitations and requirements and to 
evaluate the federal CAA compliance status of emission units covered 
under the facility's Texas flexible permit. The terms and process of 
the Audit would be set forth in an agreement executed by EPA and 
participants.
    Under the agreement, the third-party auditor would identify for 
each emission unit regulated under the source's flexible permit, all 
current federally--applicable CAA requirements, including: (1) Emission 
limitations/standards; (2) operational limitations/special conditions; 
(3) monitoring, recordkeeping, and reporting (MRR) requirements; and 
(4) specific references for all federal requirements identified (e.g., 
permit number, specific Maximum Achievable Control Technology, State 
Implementation Plan citation). The auditor will also need to review and 
assess the adequacy of the MRR requirements in current permits to 
evaluate whether MRR is sufficient to demonstrate compliance with all 
federally applicable emissions limitations and federal standards. Where 
deficiencies exist, the auditor will provide recommendations for more 
effective or supplemental MRR requirements.
    To the extent that it is determined that a source is not in 
compliance with NSR requirements with respect to a particular emission 
unit, the agreement provides that the auditor will include an 
evaluation of the current (2010) Lowest Achievable Emissions Rate or 
Best Available Control Technology (hereinafter collectively referred to 
as ``LAER/BACT'') for that emissions unit and will recommend an 
applicable LAER/BACT limit for that emissions unit. Identification of 
non-compliance with NSR requirements through the Audit Program may 
require further discussion with EPA regarding a path forward for 
bringing that emission unit into permanent, consistent compliance with 
the CAA.
    As set forth in the agreement, the third party auditor will perform 
a year-by-year examination of operational and permitting history of 
those emission units under the flexible permit. The primary deliverable 
from the third-party Audit will be a detailed Audit Report that 
describes the audit process and its conclusions, including clearly 
organized summary tables of all applicable CAA requirements for each 
emissions unit that will provide the basis for necessary permitting 
revisions by the Texas Commission on Environmental Quality (TCEQ). In 
addition to identifying all applicable unit specific emission 
limitations, special conditions, operating parameters, and MRR 
requirements, the auditor will also evaluate the CAA compliance status 
of the emissions units included under the Texas flexible permit.
    The agreement provides that the Audit Participant will then have an 
opportunity to comment on the results of the third-party Audit, and to 
propose to EPA alternative emission unit requirements. The parties may 
elect to negotiate emission unit requirements in the post-audit period.
    Finally, under the agreement, any emission unit requirements agreed 
upon during the post-audit negotiation with EPA, would be memorialized 
in a Consent Agreement and Final Order (``CAFO'') with EPA. The CAFO 
would set forth the agreed upon emission unit requirements and would 
require their inclusion in an amended Title V permit and appropriate 
federally-enforceable permits (e.g., NSR, Texas SIP permits).
    As part of this voluntary program, the Audit Participant will also 
agree to work with its surrounding community to develop Community 
Project(s) focused on improving, protecting, mitigating, and/or 
reducing community risks to public health or the environment. The 
nature and valuation of Community Projects will be based upon the 
outcome of the Audit and will be finalized during post-audit 
negotiations with EPA. The details of the Community Projects will be 
fully described in the CAFO memorializing the results of the Audit.
    EPA is offering this program under its discretionary CAA 
enforcement authority and participation in the Audit Program is purely 
voluntary. However, interested parties are required to submit an 
executed Audit Agreement to apply for this program. Participants 
choosing to enroll in the Audit Program will be required to meet the 
specific requirements of the third-party Audit set forth in this Notice 
and memorialized in an Audit Agreement signed by the Audit Participant 
and EPA. It is important to emphasize that although participation in 
this Audit Program is voluntary, participants who successfully complete 
the program and successfully resolve any non-compliance of specific 
alleged violations will receive appropriate covenants and releases as 
part of that non-compliance resolution. Merely conducting an Audit does 
not release a participant from potential liability.
    EPA's Audit Policy, ``Incentives for Self Policing: Discovery, 
Disclosure, Correction and Prevention of Violations,'' 65 FR 19,618 
(April 11, 2000) recognizes the critical role of environmental auditing 
in protecting human health and the environment by identifying, 
correcting, and ultimately preventing violations of environmental laws, 
particularly by responsible corporate citizens. This Audit Program 
reflects the purpose and incentives of EPA's Audit Policy, and 
participants who execute an Audit Agreement by November 12, 2010 will 
receive a waiver of the gravity component of any penalties resulting 
from noncompliance uncovered by the Audit; provided such noncompliance 
is successfully resolved through a Consent Agreement and Final Order 
(CAFO) under this audit process. EPA reserves the right to collect any

[[Page 59713]]

economic benefit that may have been realized as a result of 
noncompliance.
    Persons who have not secured independently federally-enforceable 
construction and/or operating permits for all CAA applicable 
requirements, through participation in this program or through other 
appropriate mechanisms, may be the subject of federal enforcement 
action. Nothing in this notice should be read to preclude EPA from 
taking enforcement action where it determines such action is 
appropriate to address non-compliance.

Texas Flexible Permit Program History

    In the period from 1996 through 2002, the State of Texas proposed a 
series of modifications to its Federal CAA SIP intended to make its 
flexible permit program part of the SIP. The flexible permit program, 
currently codified at 30 TAC 116.710, allows groups of emission sources 
to be clustered together and issued permit limitations as if they were 
a single emission source.
    EPA has never approved the Texas flexible permit program for 
inclusion in the SIP. On September 25, 2007, EPA issued a letter to all 
flexible permit holders making the following points:
     Permits issued under the Texas flexible permit rules 
reflect Texas state requirements and not necessarily the federally-
applicable requirements.
     Texas flexible permit holders are obligated to comply with 
the applicable federal requirements (e.g., New Source Performance 
Standards (NSPS), National Emission Standards for Hazardous Air 
Pollutants (NESHAP), Prevention of Significant Deterioration (PSD), and 
Non-attainment New Source Review (NNSR), terms and conditions of 
permits approved under the federally-approved Texas SIP).
     EPA would consider enforcement against sources for failure 
to comply with applicable federal requirements on a case-by-case basis, 
including against emission sources that were modified or constructed 
without the issuance of a federally-enforceable permit.
    EPA could initiate enforcement proceedings against these sources on 
a case-by case basis, However, such an enforcement undertaking on a 
case-by case basis is not an efficient approach to improving air 
quality and achieving compliance with the CAA. Therefore, EPA is 
exercising its discretion to allow holders of flexible permits to 
participate in this voluntary Audit Program as a mechanism to 
proactively address the status of emission units operating under the 
Texas flexible permit program.

Audit Program Implementation

    Any facility that chooses to participate in the voluntary Audit 
Program will conduct an independent third-party audit of all emission 
units covered by the source's Texas flexible permit to identify/
reinstate all of an emission unit's federally-applicable requirements, 
and to identify each emission unit's CAA compliance status as discussed 
under the Audit Program Overview. A final CAFO will require that the 
facility submit applications for Title V and appropriate federally-
enforceable permits to the State of Texas in order to memorialize the 
requirements identified by the audit process for each emission unit.
    The Audit Program shall be implemented in the following steps:
    1. Submittal of an executed Audit Agreement by the Audit 
Participant. This agreement will memorialize the specific requirements 
of the independent third-party audit, as well as the company's 
commitment to work with its community to develop a Community 
Project(s). EPA will have 15 days to object to the third-party auditor 
selected by an Audit Participant. Any EPA objections shall be based on 
concerns regarding the independence of the auditor. Executed Audit 
Agreements under the Audit Program must be postmarked no later than 90 
days after the date of publication in the Federal Register.
    2. Completion of Audit Report. No later than 160 days, or a 
timeframe agreed upon by EPA, after the date that the Director of the 
Compliance Assurance and Enforcement Division of EPA Region 6 signs the 
Audit Agreement, the independent Third-Party Auditor shall submit an 
Audit Report to the Audit Participant and EPA. This report will include 
a table containing all of the applicable emission unit requirements for 
each unit covered by the Audit Participant's Texas flexible permit as 
well as an analysis of the CAA compliance status for each emissions 
unit. The Audit Report will include an examination of the operational 
and permitting history of process units covered by the flexible permit, 
and those affected by the flexible permit (i.e., in netting 
calculations). For the purpose of providing transparency to the 
community on the audit process, the Auditor will work with the Audit 
Participant to prepare a version of the Audit Report with any 
confidential business information removed. The non-confidential 
business information versions of the Audit Report will be made 
available to the public by EPA.
    3. Audit Participant's comments regarding the Audit Report. No 
later than 90 days from the completion of the Audit Report, the Audit 
Participant shall submit its comments, if any, regarding the Audit 
Report to EPA. The Audit Participant may specifically address its 
concerns regarding the CAA compliance determinations and the emission 
unit requirements identified in the Audit Report. For purposes of 
providing transparency to the community on the audit process, the Audit 
Participant will also prepare a version of the comments on the Audit 
Report with any CBI removed. The Audit Participant's comments regarding 
the Audit Report will be made available to the public by EPA.
    4. Audit Participant and community development of significant 
Community Project(s). After the completion of the Audit, the Audit 
Participant shall work with the community surrounding the facility to 
develop community project(s). Within 90 days after completion of the 
Audit Report, the Audit Participant will submit to EPA a final 
Community Project proposal for approval. The Community Project proposal 
shall include a detailed description of the project(s) and a schedule 
for project(s) implementation (projects must be completed within one 
year of the CAFO date), a clear discussion of air nexus, and a 
discussion of the community involvement and outreach conducted as the 
project was developed. The Audit Participant's Community Project 
proposal will be made available to the public for review.
    5. Resolution of NSR non-compliance. One of the major objectives of 
the third-party auditor will be the evaluation of the permitting 
history and operational changes and modifications made during the 
period of the Texas flexible permit for compliance with applicable 
Federal NSR requirements. Identification of non-compliance with the NSR 
program may require the installation of LAER/BACT and will require 
further discussion with EPA regarding a path forward for bringing non-
compliant emission units into permanent, consistent compliance. As 
previously discussed, EPA has elected to waive the gravity portion of 
any penalties resulting from noncompliance identified through the Audit 
for those Audit Participants that proactively initiate an Audit 
Agreement within 45 days of Final Audit FRN publication. In addition, 
any final CAFO will provide a release and covenant not to sue for the 
violations alleged.
    6. Filing of a Consent Agreement and Final Order (CAFO) with the 
Region 6

[[Page 59714]]

Judicial Officer. The CAFO would set forth the Audit Participant's 
obligation to comply with the requirements of the attached CAFO 
Compliance Plan and Schedule and commitment to seek the inclusion of 
agreed upon emission unit requirements in its Title V permit and 
appropriate federally-enforceable permits. No later than 30-days after 
the effective date of the CAFO, the Audit Participant will apply to the 
appropriate permitting authority for a modification of its existing 
Title V permit to include emission unit requirements (as defined in the 
model below), a compliance plan, and, if warranted, a compliance 
schedule as outlined in 30 TAC 122 Sec.  132(e)(4) and 40 CFR 
70.5(c)(8). In addition, the Audit Participant shall apply for 
modifications or for new permits memorializing the emission unit 
requirements set forth in the CAFO. The CAFO must address all emission 
units under the flexible permit. EPA will not negotiate settlements 
where certain emission units are excluded from the settlement 
discussions. A source will receive a covenant-not-to-sue and release 
regarding civil liability for possible past violations of the CAA 
addressed in this CAFO provided that CAA compliant emission unit 
specific requirements are incorporated into a federally-enforceable 
permit.
    The proposed CAFO shall be made available for public comment for a 
period of 30 days. EPA will consider any public comments, and as 
appropriate, seek to work with the Audit Participant to revise the CAFO 
based on such public comments. After the end of the CAFO public comment 
period and after any revisions are made, EPA will seek finalization of 
the CAFO by the Region 6 Judicial Officer. The Agency reserves its 
right to modify the CAFO. The offering of the CAFO for public comment 
does not explicitly create an obligation for EPA response or inclusion 
of such comments in the final CAFO or elsewhere, nor does this create 
any rights for public objection to the final CAFO.
    The text of the Audit Agreement is available for download in either 
a Word version file or as a portable document format (pdf) file at 
https://www.regulations.gov. Unless explicitly indicated, the text of 
the Audit Agreement is not subject to negotiation. Entities wishing to 
participate shall submit: an executed copy of the Audit Agreement with 
specific site details filled into the provided blanks; a list of 
emission units covered under its Texas flexible permit; a copy of its 
current Texas flexible permit, and all permits or other authorizations 
that applied to the facility prior to the issuance of the Texas 
flexible permit.
    Conclusion: The above represents a short summary of the Audit 
Program. The Texas Flexible Permit Audit Agreement is available in the 
public docket for this notice at https://www.regulations.gov, and 
represents the full requirements of the program. In addition, EPA has 
provided a Model CAFO for Audit Participants in the docket at https://www.regulations.gov.
    EPA is proposing the Audit Program to ensure that Texas flexible 
permit holders have a path forward to secure compliance with the 
requirements of the CAA. As EPA has stated that Texas flexible permits 
are not independently federally-enforceable permits, industry 
representatives have expressed concern regarding the legal 
ramifications of operating facilities and making changes at facilities 
that do not have independently federally-enforceable permits. 
Representatives of citizens living in areas near facilities regulated 
under flexible permits are concerned that in some instances flexible 
permits allow facilities to emit more harmful pollution than would be 
allowed under federal law. We believe the Audit Program has the 
potential to result in beneficial reductions in the levels of air 
pollutants being emitted by flexible permit holders as well as 
providing industry a legal framework for continuing operations until 
independently federally-enforceable permitting authorizations can be 
obtained.

II. Response to Comments Received on EPA Audit Program for Flexible 
Permit Holders

    On June 17, 2010, EPA solicited comments on an audit program for 
Texas flexible permit holders (75 FR 34445). The following are EPA's 
responses to comments received during the comment period on EPA's Audit 
Program for Flexible Permit Holders. EPA thanks those individuals for 
their comments and as indicated below, the Agency made several 
modifications to the Audit Program based upon these comments. As 
indicated in the Federal Register Notice, EPA has chosen to generally 
respond to comments received.

A. Community Projects

I. Community Projects as a Condition of the Audit
    We received numerous comments regarding the requirement to conduct 
a Community Project as part of the Audit Agreement. Commenters stated 
that by requiring a Community Project as a prerequisite to 
participation in the Audit Program, EPA was presuming noncompliance.
    In response to these comments, EPA clarified in the Audit Agreement 
that the condition regarding Community Project(s) would address the SIP 
and Title V violations identified in the attached model CAFO inherent 
to all flexible permit holders in addition to any other noncompliance 
issues identified by the audit. As a result, the agency believes that a 
commitment from the Audit Participants to conduct a Community Project 
is a critical element in addressing noncompliance in addition to 
proactively addressing community concerns regarding potential impacts 
from noncompliance.
II. Community Project Upfront Valuation
    Several Commenters indicated that the Community Project valuation 
should not occur until after the Audit is completed. Additional 
comments received indicated that the large upfront expenditure for the 
Community Projects would have a ``chilling effect'' on voluntary 
participation in the Audit Program.
    EPA has addressed the concerns regarding the significant upfront 
costs regarding these projects by removing the upfront Community 
Project valuation and the Tiering table. EPA has elected to link the 
valuation of the Community Projects to the findings of the third-party 
Audit. Noncompliance identified by the Audit will result in Community 
Projects, injunctive relief and potentially civil penalties. As 
referenced in the Audit FRN, this Audit Program reflects the purpose 
and incentives of EPA's Audit Policy, and participants who execute an 
Audit Agreement within 45 days of the Final Audit publication will 
receive a waiver of the gravity component of any penalties resulting 
from noncompliance uncovered by the Audit.
III. Community Involvement
    A Commenter requested that the outreach regarding the Community 
Projects extend beyond the currently established groups and involve the 
impacted communities. The Commenter further requested that EPA take 
further steps to encourage meaningful participation from the community 
by providing notification to the community or establishing a Web site 
to identify those participating in the Audit Program.
    In response to these comments, EPA included language in the Audit 
Agreement specifying that outreach to the community to obtain input on

[[Page 59715]]

Community Projects should extend beyond any pre-established community 
advisory panels.
    EPA has also added language to the Audit Agreement committing the 
Agency to establish a Web site of all executed Audit Agreements. The 
Agreements will identify the points of contact for the company, and EPA 
encourages individuals with ideas specific to the Community Projects to 
submit them to the company representative for consideration.

B. Tiering of Facilities

I. Additional Clarification on Tiering Process
    EPA received numerous comments regarding the tiering process 
including numerous requests for clarification on how the facility tiers 
were established.
    As indicated above, EPA has elected to remove the Tiering table and 
upfront valuation for Community Projects and link the valuation of the 
Community Projects to the findings of the third-party Audit including 
the initial violations identified in the model CAFO.

C. Third-Party Auditor

I. Auditor Qualifications
    Several Commenters provided comments and recommendations regarding 
the qualifications and certifications of the third-party Auditor.
    In response to these comments, we made numerous changes to the 
Auditor qualifications to include flexibility with regard to the 
Auditor's familiarity with the concepts of independence and 
professional care while conducting the Audit. Specifically, we added an 
additional certification option by the Board of Environmental Health & 
Safety Auditor Certifications (BEAC), along with the current ISO 19011 
requirement.
    We also modified the certification condition that the Third-Party 
Audit results be certified by a professional engineer in the State of 
Texas. We modified the Audit Agreement to allow for additional 
flexibility by removing the condition that the professional engineer be 
certified in Texas and, in addition, we are allowing for a 
certification by a certified auditor.
II. Auditor Guidance
    One Commenter requested that EPA provide specific direction to the 
Third-Party Auditor regarding EPA's policies and guidance related to 
RMRR--Routine Maintenance Documentation in Audit Report from EDF
    In response to this comment, EPA added additional language to the 
Audit Agreement specifying that in addition to applying the version of 
NSR regulations in the approved Texas SIP, the Third-Party Auditor 
shall also perform their NSR analysis consistent with Agency principles 
formally identified in EPA NSR Guidance Documents.

D. Audit Program

I. Procedural Concerns
    A Commenter expressed procedural concerns with EPA's process for 
taking comments on this voluntary approach as well as procedural 
concerns with the Audit Program.
    With this notice, EPA has proposed a voluntary path forward under 
its enforcement discretion that the agency would find acceptable toward 
settlement of violations associated with Texas Flexible Permits. This 
is a voluntary process, and does not replace or change any existing 
rules, regulations, or policies. Given the universe of permittees, EPA 
is attempting to provide upfront clarity on an acceptable enforcement 
path where the Agency would resolve existing or potential liability 
associated with flexible permits. EPA provided additional process by 
taking comments on the approach. All other options remain. This 
approach does not take the place of appropriate and required 
permitting. Obtaining an appropriate valid federal permit is a 
condition of such a settlement. While the auditor will make 
recommendations and control levels will be agreed to for a settlement, 
the Audit and CAFO are clear that these are minimum levels of control 
for settlement and do not prejudge what Lowest Achievable Emission 
Rate/Best Available Control Technology (LAER/BACT) determinations are 
made by the permitting authority. All permitting requirements and 
procedures must be met at that time.
II. Audit Timeline
    One Commenter expressed concern that 160 days was not adequate time 
to conduct a detailed permitting and compliance audit of a complex 
facility.
    In response to this comment, EPA added language to allow for 
additional time for audit completion if agreed upon by EPA. EPA 
recognizes the importance of having adequate time to conduct the 
comprehensive audit and does not want a hard timeframe to limit 
participation or encourage a cursory review.
III. CBI
    A Commenter requested that EPA establish an expedited CBI challenge 
process so that the community can have meaningful participation in the 
Audit process.
    EPA understands the Commenter's concerns and is in agreement that 
the Audit process should be as transparent as possible. However, EPA is 
required to follow 40 CFR Part 2, Subpart B, which specifies the extent 
to which information subject to a business confidentiality claim is 
available to the public and the challenge and determination process the 
Agency must follow.

E. CAFO

I. Releases Given to Audit Participants
    A Commenter expressed concern that the scope of EPA's proposed 
release and covenant not to sue could be interpreted over broadly.
    The Commenter was correct that EPA's intent is to release only 
those CAA violations expressly alleged and addressed in the CAFO. EPA 
will tailor each CAFO beyond the limited example provided to include 
case specific facts and clarify the scope of the release and covenant 
not to sue.
    The Commenter made a related comment concerning detail that should 
be required in the Audit Report regarding what emission requirements 
and changes in operational measures or control technologies must be 
implemented to ensure that disclosed non-NSR violations are eliminated 
by complying with the CAFO.
    EPA recognizes more detail will be required if the Audit identifies 
noncompliance or concerns broader than NSR and would expect such 
additional information to be provided in the audit. If insufficient 
information is provided to make a decision on appropriate measures to 
address a violation, it would not be alleged or resolved in the audit 
CAFO but more appropriately handled separately.
II. Stipulated Penalties
    A Commenter urged EPA to incorporate stipulated penalties into the 
CAFO to sanction failing to fully and timely comply with all the 
substantive requirements of the CAFO.
    While we understand the comment, the agency's interest is in 
compliant permits and this is why we made any release and covenant 
conditional on full compliance with the CAFO and obtaining the 
necessary permit(s). Many of the milestones of the audit will be prior 
to the CAFO and the emission limits of the CAFO will be enforceable 
until the emission limits are incorporated into valid federal permits.


[[Page 59716]]


    Dated: September 20, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010-24289 Filed 9-27-10; 8:45 am]
BILLING CODE 6560-50-P