Approval and Promulgation of Implementation Plans; Texas; Revisions to the New Source Review State Implementation Plan; Flexible Permit Program, 8368-8387 [2014-03119]
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Federal Register / Vol. 79, No. 29 / Wednesday, February 12, 2014 / Proposed Rules
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This proposed
rulemaking is promulgated under the
authority described in Subtitle VII, Part,
A, Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This proposed regulation is
within the scope of that authority as it
would establish Class E airspace at
Nashville International Airport,
Nashville, TN.
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1E,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
Issued in College Park, Georgia, on
February 4, 2014.
Eric Fox,
Acting Manager, Operations Support Group,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2014–03045 Filed 2–11–14; 8:45 am]
BILLING CODE 4910–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2013–0542; FRL–9906–37–
Region 6]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to the New Source Review
State Implementation Plan; Flexible
Permit Program
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
Lists of Subjects in 14 CFR Part 71:
Airspace, Incorporation by reference,
Navigation (air).
AGENCY:
The Proposed Amendment:
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
The Environmental Protection
Agency (EPA) is proposing to
conditionally approve revisions to the
Texas New Source Review (NSR) State
Implementation Plan (SIP) submitted by
the Texas Commission on
Environmental Quality (TCEQ) 1 and its
predecessor, the Texas Natural Resource
Conservation Commission (TNRCC), on
November 29, 1994; March 13, 1996;
July 22, 1998; October 25, 1999;
September 11, 2000; April 12, 2001; July
31, 2002, September 4, 2002; October 4,
2002; September 25, 2003; July 2, 2010;
October 5, 2010; and October 21, 2013.
These revisions to the Texas SIP
establish the Flexible Permit Program.
The flexible permit program is a minor
NSR permit program which functions as
an alternative to the traditional
preconstruction permit program that is
authorized in Title 30 of the Texas
Administrative Code (30 TAC) Chapter
116, Subchapter B. The flexible permit
program is intended to eliminate the
need for owners or operators of
participating facilities to submit an
amendment application each time
certain types of operational or physical
changes are made at a permitted facility.
EPA is proposing to conditionally
approve the Flexible Permit Program as
initially submitted in November 1994
and amended through the October 21,
2013, as consistent with federal
requirements for minor NSR programs.
Final approval of the Texas Flexible
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND CLASS E AIRSPACE
AREAS; AIR TRAFFIC SERVICE
ROUTES; AND REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(g); 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.9X, Airspace
Designations and Reporting Points,
dated August 7, 2013, effective
September 15, 2013, is amended as
follows:
■
Paragraph 6003 Designated as an Extension
to a Class C Surface Area
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ASO TN E3 Nashville, TN [New]
Nashville International Airport, TN
(Lat. 36°07′31″ N., long. 86°40′35″ W.)
Nashville VORTAC
(Lat. 36°07′62″ N., long. 86°40′95″ W.)
That airspace extending upward from the
surface extending from the 5-mile radius of
the Nashville International Airport to an
11.7-mile radius southeast of the airport,
from the Nashville VORTAC 161° radial
clockwise to the 195° radial, and to an 8.9mile radius southwest of the airport from the
195° radial of the VORTAC clockwise to the
231° radial of the VORTAC.
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SUMMARY:
1 On September 1, 2002, the Texas Legislature
(House Bill 2912) formally changed the name of
Texas Natural Resource Conservation Commission
to the Texas Commission on Environmental
Quality.
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Permit Program is contingent upon
TCEQ adopting and submitting to EPA
an approvable SIP revision addressing
the commitments made by the TCEQ in
its October 21, 2013, Flexible Permits
Commitment Letter. EPA is proposing
this action under Section 110 and part
C of the Clean Air Act (CAA or the Act).
DATES: Comments must be received on
or before March 14, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2013–0542, by one of the
following methods:
• https://www.regulations.gov. Follow
the online instructions for submitting
comments.
• Email: Ms. Stephanie Kordzi at
kordzi.stephanie@epa.gov.
• Fax: Ms. Stephanie Kordzi, Air
Permits Section (6PD–R), at fax number
214–665–6762.
• Mail or delivery: Ms. Stephanie
Kordzi, Air Permits Section (6PD–R),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2013–
0542. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
the disclosure of which is restricted by
statute. Do not submit information
through https://www.regulations.gov or
email, if you believe that it is CBI or
otherwise protected from disclosure.
The https://www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means that EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send an email
comment directly to EPA without going
through https://www.regulations.gov,
your email address will be
automatically captured and included as
part of the comment that is placed in the
public docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment along with any disk or CD–
ROM submitted. If EPA cannot read
your comment due to technical
difficulties and cannot contact you for
clarification, EPA may not be able to
consider your comment. Electronic files
should avoid the use of special
characters and any form of encryption
and should be free of any defects or
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viruses. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at EPA Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available at
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment with the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
214–665–7253.
FOR FURTHER INFORMATION CONTACT: Ms.
Stephanie Kordzi (6PD–R), Air Permits
Section, Environmental Protection
Agency, Region 6, 1445 Ross Avenue
(6PD–R), Suite 1200, Dallas, TX 75202–
2733. Telephone (214) 665–7520, fax
(214) 665–6762, email at
kordzi.stephanie@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
tkelley on DSK3SPTVN1PROD with PROPOSALS
Table of Contents
I. Background for Our Proposed Action
II. Summary of State SIP Submittals for the
Flexible Permit Program
A. November 29, 1994 Submittal
B. March 13, 1996 Submittal
C. July 22, 1998 Submittal
D. October 25, 1999 Submittal
E. September 11, 2000 Submittal
F. April 12, 2001 Submittal
G. July 31, 2002 Submittal
H. September 4, 2002 Submittal
I. October 4, 2002 Submittal
J. September 25, 2003 Submittal
K. July 2, 2010 Submittal
L. October 5, 2010 Submittal
M. October 21, 2013 Submittal
N. Overview of the Flexible Permit
Program and Establishment of the
Emission Cap
III. What action is EPA proposing?
A. What is a conditional approval?
B. What are the commitments?
IV. EPA’s Evaluation of the Texas Flexible
Permit Program as a Minor NSR Program
A. Federal Requirements for Enforceability
of the Minor NSR Program
1. Identifying the New Facilities and/or
Modifications for Inclusion in a Flexible
Permit
2. Inclusion of Appropriate Monitoring and
Recordkeeping Requirements in Flexible
Permits
3. Additional Elements Specific to
Emissions Caps
4. Provisions To Ensure the Flexible Permit
Program Is a Minor NSR Program
5. Provisions To Ensure the Flexible Permit
Program Demonstrates Compliance
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B. Federal Requirements for Public Notice
of Minor NSR Permitting
1. Overview of the Texas Public
Participation Process for Applications for
New Flexible Permits and Flexible
Permit Amendments
2. Analysis of the Submitted Public
Participation Rules for Flexible Permits
as Minor NSR Requirements
3. Minor NSR Public Notice Requirements
Specific to Two Types of Minor NSR
Flexible Permit Amendment
Applications
i. Identification of the Minor NSR Emission
Thresholds and Affected Source
Populations
ii. Discussion of the ‘‘De minimis’’ and
‘‘Insignificant’’ Thresholds for Minor
NSR Flexible Permit Amendments
4. How do the Texas Public Notice
Provisions for Applications for New and
Amended Flexible Permits address the
concerns identified in EPA’s November
26, 2008 Proposed Limited Approval/
Limited Disapproval for Texas public
participation?
5. Proposed Findings Specific to the Texas
Public Participation Provisions for the
Flexible Permit Program
C. Does proposed approval of the Texas
Flexible Permit Program interfere with
attainment, reasonable further progress,
or any other applicable requirement of
the act?
D. TCEQ’s Interpretive Letter
E. Summary of EPA’s Evaluation of the
Flexible Permit Program as a Minor NSR
Program
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background for Our Proposed Action
On September 23, 2009, EPA
proposed to disapprove revisions to the
SIP submitted by the State of Texas that
relate to the Flexible Permit Program.
On July 15, 2010, EPA took final action
on that proposal disapproving Texas’
Flexible Permit Program. 75 FR 41312.
This disapproval action is the only
action taken by EPA on the flexible
permit program. EPA has never taken
any other action to approve the flexible
permit program submittals. Below is a
summary of our grounds for initially
disapproving the Flexible Permit
Program as a Minor NSR SIP revision.
We originally found that:
• It had no express regulatory
prohibition clearly limiting its use to
Minor NSR and had no regulatory
provision clearly prohibiting the use of
this submitted Program from
circumventing the Major NSR SIP
requirements.
• It was not an enforceable NSR
program.
• It lacked requirements necessary for
enforcement and assurance of
compliance.
• It lacked the necessary more
specialized monitoring, recordkeeping
and reporting (MRR) requirements
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required for this type of Minor NSR
program (a compliance emission cap) to
ensure accountability and provide a
means to determine compliance.
• The types of monitoring were not
specified in the rule.
• It lacked specific, established
implementation procedures for
establishing the emissions cap in a
Minor NSR Flexible Permit.
• It did not ensure the terms and
conditions of Major NSR SIP permits are
retained. Holders of Major NSR SIP
permits were not prohibited from using
the submitted Program’s allowable
based emissions cap. The Clean Air Act
prohibits the use of an allowable based
cap for Major NSR SIP permittees.
For a more detailed discussion of our
rationale for the disapproval see 75 FR
41312 (July 15, 2010). Upon finalization
of the rule several parties appealed the
decision to the Fifth Circuit Court of
Appeals.
In July and August of 2010 the State
of Texas, Texas Oil & Gas Association,
Texas Association of Manufacturers,
and Business Coalition for Clean Air
(BCCA) Appeal Group all filed petitions
with the Fifth Circuit Court of Appeals
seeking to overturn EPA’s disapproval
of the Flexible Permit Program. During
the same time period the Environmental
Defense Fund (‘‘EDF’’) and
Environmental Integrity Project (‘‘EIP’’)
moved for leave to intervene in support
of EPA’s disapproval. Their request to
intervene was granted by the Court.
While the challenge was pending, the
state adopted a modified flexible
permits regulation, but did not submit it
to EPA.
On August 13, 2012, the Fifth Circuit
Court of Appeals granted the
petitioner’s review, vacated our
disapproval of the Texas Flexible Permit
Program and remanded the matter back
to EPA for further review. After the
Court remanded the Flexible Permit
Rule to EPA, the State, in a letter dated
September 12, 2012, requested that we
take action on the original Flexible
Permit program submittal package in
accordance with the ruling of the Fifth
Circuit Court of Appeals. Following
discussions with EPA, on September 24,
2013, Texas formally adopted and
approved this SIP revision which is
comprised of the original submittal that
EPA took its disapproval action on as
well as rule additions that EPA believes
are essential to the program’s
approvability. On October 21, 2013,
Texas formally submitted to EPA this
proposed revision to the SIP. EPA is
today proposing to conditionally
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approve the October 21, 2013,
submittal.2
II. Summary of State SIP Submittals for
the Flexible Permit Program
The TCEQ has developed and
submitted the Flexible Permit Program
as a series of revisions to the Texas
minor NSR Permit program. The TCEQ
developed the Flexible Permit Program
in 1994 and has adopted several
amendments and submitted these as
revisions to the Texas minor NSR SIP
program since that time. As discussed in
the Section I Background of this
rulemaking, EPA is proposing
conditional approval of the October 21,
2013, SIP revision approved by TCEQ
and submitted for EPA review. The
following is a brief summary of each of
the SIP revisions pertaining to the
Flexible Permit Program that is subject
to our proposed conditional approval.
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A. November 29, 1994 Submittal
On October 19, 1994, the TNRCC,
predecessor to the TCEQ, adopted
revisions to the Texas SIP to establish
and implement the Flexible Permit
Program in Texas. The TCEQ adopted
the rule for Flexible Permits at 30 Texas
Administrative Code (TAC) Chapter
116, Subchapter G—Flexible Permits;
adding Flexible Permit Definitions at 30
TAC Chapter 116, Subchapter A,
Section 116.13—Flexible Permit
Definitions; and revising the Permit
Application provisions at 30 TAC
Chapter 116, Subchapter B, Section
116.110(a) to authorize the use of a
Flexible Permit for construction of any
new minor facility and minor
modification of any existing facility.
Note that some portions of the
November 29, 1994, submittal were later
repealed and replaced in the July 22,
1998, submittal.
B. March 13, 1996 Submittal
On February 14, 1996, the TNRCC
adopted revisions to the Texas SIP to
modify air permit application
procedures and evaluation criteria to
provide more operational flexibility to
facilities. This submittal specifically
included revisions to the definition of
‘‘modification of existing facility’’ in the
General Definitions for Air Permitting at
30 TAC Section 116.10(F) to address
modifications under Flexible Permits.
This submittal of 30 TAC Section
116.10(F) for ‘‘modification of existing
2 This October 21, 2013 submittal, including the
Texas Order dated September 26, 2013, and the
accompanying cover letter (available in the docket
for this rulemaking), essentially resubmits all
relevant portions of the prior Flexible Permits
submittals and therefore constitutes the entire
Flexible Permit Program.
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facility’’ was later repealed and replaced
in the July 22, 1998, SIP submittal and
is therefore not before EPA for review.
C. July 22, 1998 Submittal
On June 17, 1998, the TNRCC adopted
severable revisions that included the
repeal and replacement of portions of
the November 29, 1994, submittal and
the entirety of the March 13, 1996
submittal. Specific to Flexible Permits,
the July 22, 1998, submittal included a
new definition of ‘‘modification of
existing facility,’’ at 30 TAC Section
116.10(9)(F); repeal of and new Flexible
Permit Definitions at 30 TAC Section
116.13 and Section 116.110; and
amendments to the 30 TAC Sections
116.710, 116.711, 116.714, 116.715,
116.721, 116.730, 116.740, and 116.750.
The definitions in section 116.13 were
non-substantive. An operations
certification requirement for flexible
permits was removed from 116.110. The
amendments to the remaining sections
added or clarified language regarding
BACT, compliance with FCAA Section
112(g), or were non-substantive changes.
D. October 25, 1999 Submittal
On September 2, 1999, the TNRCC
adopted revisions to the Texas SIP to
implement Texas House Bill 801 to
establish new procedures for public
participation in environmental
permitting. The TNRCC submitted these
amendments as revisions to the Texas
SIP in a letter dated October 25, 1999.
The October 25, 1999, submittal
included revisions to the Flexible
Permits public participation provisions
at 30 TAC Section 116.740.
E. September 11, 2000 Submittal
On August 9, 2000, the TNRCC
adopted amendments to 30 TAC
Chapters 101, 106, and 116 to
implement the remaining requirements
of Senate Bill 766 from the 76th
Legislature. This included amendments
to Chapter 116, Subchapter G, 30 TAC
Sections 116.710, 116.715, 116.721,
116.722, and 116.750. The amendments
to 30 TAC Chapters 101 and 116
implement the remaining requirements
of Senate Bill 766 from the 76th
Legislature. The amendments tripled
emission fees for grandfathered facilities
with emissions in excess of 4,000 tons
per year after September 1, 2001,
updated public participation
requirements for the issuance of
standard permits, and made
nonsubstantive changes to other related
provisions.
F. April 12, 2001 Submittal
On March 7, 2001, the TNRCC
adopted revisions to Subchapter G, 30
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TAC Sections 116.711 and 116.715. The
amendments supplement the cap and
trade program for the Houston/
Galveston (HGA) ozone nonattainment
area by clarifying that any source of
emissions of nitrogen oxides (NOX) in
the HGA area that uses certain permits,
including flexible permits, must obtain
allowances for those emissions if the
facility, or group of facilities, has a
collective design capacity to emit ten
tons or more of NOX per year and is
subject to an emission standard in 30
TAC Section Chapter 117 and by
allowing the use of NOX allowances to
meet the correlating portion of
emissions offset requirements.
G. July 31, 2002 Submittal
On May 22, 2002, the TNRCC adopted
amendments to Chapter 39, Public
Notice, and Chapter 116, Control of Air
Pollution by Permits for New
Construction or Modification. The
adopted changes concern requirements
of procedures for the permitting of
grandfathered facilities and an incentive
program for the reduction of emissions
of nitrogen oxides for certain types of
facilities.
H. September 4, 2002 Submittal
On August 21, 2002, the TNRCC
adopted revisions re-defining
‘‘modification of existing facility’’ from
30 TAC Section 116.10(9)(F) to 30 TAC
Section 116.10(11)(F). The revisions
also clarified permit renewal
application content requirements and
implemented new compliance history
evaluation requirements for permit
renewals.
I. October 4, 2002 Submittal
On September 25, 2002, the TCEQ
adopted amendments to various fee
rules in Chapters 101, 106, and 116
including 116.750, Flexible Permit Fee,
and corresponding revisions to the SIP.
The increases were established to
provide sufficient funding to meet the
current appropriation levels for air
program activities and to meet
operational funding requirements for
the Title V programs of the commission.
J. September 25, 2003 Submittal
On August 20, 2003, the TCEQ
adopted revisions to Subchapter G, 30
TAC Section 116.715. The revisions
require emission reductions to be
certified as emission reduction credits
under 30 TAC Chapter 101, Subchapter
H, except future internal offsets which
will continue to be certified under
Chapter 116.
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K. July 2, 2010 Submittal
On June 2, 2010, the TCEQ adopted
amendments to the Texas regulations
concerning Public Notice at 30 TAC
Chapter 39; Requests for
Reconsideration and Contested Case
Hearings; Public Notice at 30 TAC
Chapter 55; and Control of Air Pollution
by Permits for New Construction or
Modification at 30 TAC Chapter 116.
This particular rule package was
submitted to EPA on July 2, 2010, after
the EPA’s final disapproval of the
pending package of proposed SIP
revisions before it, and is not part of the
October 21, 2013, submittal, which
included only the program in effect as
of September 13, 2003 and select 2010
rule amendments.
The July 2, 2010 submittal included
30 TAC Sections 39.402(a)(4) and (a)(5)
establishing applicability of public
notice provisions for new Flexible
Permits and amendments to Flexible
Permits under 30 TAC Chapter 116.
On December 13, 2012, EPA proposed
to approve the July 2, 2010, Public
Participation SIP Revision. In doing so,
EPA severed the Flexible Permit public
participation provisions at 30 TAC
Section 39.402(a)(4) and (a)(5). We also
indicated it was our intent to address
the revisions to Chapter 39 for Flexible
Permits at the time we proposed action
on the Flexible Permit program. On
January 6, 2014, EPA finalized our
approval of the July 2, 2010, Public
Participation SIP revision; our final
approval severed and did not address
the public participation provisions at 30
TAC Sections 39.402(a)(4) and (a)(5)
specific to Flexible Permits. EPA now
finds it appropriate to address the July
2, 2010, submittal of 30 TAC Section
39.402(a)(4) and (a)(5) because we are
addressing the entirety of the Flexible
Permit program and the revisions of the
associated Flexible Permits public
participation provisions at 30 TAC
Section 116.740.
L. October 5, 2010 Submittal
On September 15, 2010, the TCEQ
adopted amendments to Section
116.10(9)(E) to change a portion of the
definition for ‘‘modification of existing
facility’’. Only this specific regulatory
definition is being acted on in this
action because it directly affects the
flexible permit rule. The entire
submittal package consisted of new and
amended sections prepared in response
to EPA’s disapproval of the TCEQ rules
that implemented the state’s qualified
facilities program. The October 5, 2010,
submittal came in after the EPA’s final
disapproval of July 15, 2010, and is not
part of the October 21, 2013, submittal,
which included only the program in
effect as of September 13, 2003, and
select 2010 rule amendments.
M. October 21, 2013 Submittal
On September 24, 2013, the TCEQ
adopted and approved for submission to
EPA the Flexible Permit Program at 30
TAC Chapter 116, Subchapter G. The
EPA received the formal submission on
October 21, 2013. The entire SIP
submittal included the flexible permit
rules first adopted by the TCEQ in
November 1994 in Chapter 116,
Subchapter G to establish the flexible
permit minor new source review
program. Some of the rules were
repealed and readopted in 1998, and
various amendments to the rules that
were adopted in 1999–2003. The
package also contained revisions as
adopted on December 14, 2010, which
included 30 TAC Sections 116.13(3) and
(5); 116.711(2)(M), and paragraphs (iv)
and (vii); 116.715(c)(5)(A) & (B),
116.715(6)(A)(i) and (ii), 116.715(d),
except the text ‘‘The permit shall
specify which of the monitoring options
under paragraph (2)(A)–(E) of this
subject shall be used to determine
compliance for facilities subject to
monitoring under this subsection,’’
116.715(d)(1), 116.715(f); 116.716(a),
116.716(c), 116.716(d) and 116.716(e),
with repeal of earlier Sections
116.716(d) and 116.716(e).
Further, the submittal included
various provisions that EPA believes are
essential to its approvability. These
include: Definitions for emission cap
8371
and individual emission limitation;
discussion on maintaining terms,
conditions, and representations of any
Subchapter B permits that will be
superseded by or incorporated into the
flexible permit; inclusion of
requirements for monitoring and
calculations for demonstration of
compliance with emission caps and
individual emission limits; revised
requirements for recordkeeping of
information and data sufficient to
demonstrate continuous compliance
with emission caps and individual
emission limits; requirements that
monitoring systems used to determine
compliance with pollutant emissions in
terms of mass per unit of time must be
based on sound science and meet
generally acceptable scientific
procedures for data quality and
manipulation; and provisions
addressing how to develop emission
caps based upon application of current
best available control technology at
expected maximum capacity. Further,
references to insignificant emission
factors were removed since they are no
longer allowed when calculating
emission caps. And finally, new
requirements for developing individual
emission limitations in flexible permits
were also included which require
permits to identify all facilities subject
to either emission caps or individual
emission limits.
Table 1 below summarizes the
changes that are in the SIP revision
submittals. A summary of EPA’s
evaluation of each Section and the basis
for our proposed conditional approval
of the Flexible Permit Program as a
minor NSR permit program is included
in this rulemaking. The accompanying
Technical Support Document (TSD)
includes a detailed evaluation of the
submittals and our rationale. The TSD
may be accessed online at
www.regulations.gov, Docket No. EPA–
R06–OAR–2013–0542.
TABLE 1—SUMMARY OF EACH FLEXIBLE PERMIT SIP SUBMITTAL AFFECTED BY THIS ACTION
Date
submitted
to EPA
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Title of SIP submittal
Date of State
adoption
Flexible Permits ............................................................
11/29/1994
11/16/1994
Qualified Facilities and Modifications to Existing Facilities.
3/13/1996
2/14/1996
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Regulations affected
Amendment to 30 TAC Section 116.110
Adoption of New 30 TAC Section 116.13 and New
Subchapter G, 30 TAC Sections 116.710, 116.711,
116.714, 116.715, 116.716, 116.717, 116.718,
116.720, 116.721, 116.722, 116.730, 116.740,
116.750, and 116.760.
Amendment of 30 TAC Section 116.10 to add new
definition of ‘‘modification of existing facility’’ at (F).
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TABLE 1—SUMMARY OF EACH FLEXIBLE PERMIT SIP SUBMITTAL AFFECTED BY THIS ACTION—Continued
Date
submitted
to EPA
Title of SIP submittal
Date of State
adoption
NSR Rule Amendments; section 112(g) Rule Review
for Chapter 116.
7/22/1998
6/17/1998
Public Participation (HB 801) .......................................
10/25/1999
9/2/1999
Air Permits (SB–766)—Phase II ...................................
9/11/2000
8/9/2000
Emissions Banking and Trading ...................................
4/12/2001
3/7/2001
House Bill 3040: Shipyard Facilities and NSR Maintenance Emissions.
9/4/2002
8/21/2002
Air Fees ........................................................................
10/4/2002
9/25/2002
Offset Certification, New Source Review Permitting
Processes and Extensions for Construction.
Public Notice Applicability to Air Quality Permits and
Permit Amendments.
9/25/2003
8/20/2003
7/2/2010
6/2/2010
BACT and Qualified Facility Air Permit Program .........
10/5/2010
9/15/2010
Flexible Permit Program ...............................................
10/21/2013
12/14/2010
Grandfathered Facilities ...............................................
5/22/2002
........................
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N. Overview of the Flexible Permit
Program and Establishment of the
Emission Cap
The Flexible Permit Program is a
minor NSR permitting program
developed to provide additional
flexibility to the regulated community.
As is evident in the preceding Section,
the Flexible Permit program has been
revised and evolved over time and
various sections have been submitted to
EPA for approval but then repealed and
withdrawn. To provide context to our
proposed conditional approval we
provide the following summary of the
key features of the Texas Flexible Permit
Program, as it exists before us for review
and as described in this preamble.
Importantly, Texas has also submitted
an interpretive letter, dated December 9,
2013, discussed more fully below, that
gives Texas’ interpretations of
provisions of its submittal that, in some
cases, EPA is relying on in this proposal
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Regulations affected
Repeal and new 30 TAC Section 116.10(9)(F),
116.13 and 116.110(a)(3) adopted.
Amendments to Subchapter G, 30 TAC Sections
116.710, 116.711, 116.714, 116.715, 116.721,
116.730, 116.740 and 116.750.
Amendment to Subchapter G, 30 TAC Section
116.740.
Amendments to Subchapter G, 30 TAC Sections
116.710, 116.715, 116.721, 116.722, and 116.750.
Amendments to Subchapter G, 30 TAC Sections
116.711 and 116.715.
Amendment to 30 TAC Section 116.10, re-designating 30 TAC Sections 116.10(9)(F) to
116.10(11)(F).
Amendments to Subchapter G, 30 TAC Sections
116.711 and 116.715.
Amendments to Subchapter G, 30 TAC Section
116.750.
Amendment to Subchapter G, 30 TAC Section
116.715
New Chapter 39.402(a)(4) and (a)(5) establishing applicability of the Chapter 39 public notice provisions
to applications for new and amended Flexible Permits.
Amendments to 30 TAC Section 116.10(9)(E) only in
this action.
Amendments to 30 TAC Sections 116.13(3) and (5);
116.711(2)(M)(iv) & (vii); 116.715(c)(5)(A) & (B),
116.715(c)(6)(A), (c)(6)A)(i) and (ii), 116.715(d), except specific text; 116.715(f), excluding 715(f)(2)(A),
116.716(a),
116.716(c),
(c)(1)(A)
and
(B),
116.716(c)(2), 116.716(c)(3), 116.716(c)(4), and
116.716(d)[new] and (e) and the repeal of
116.716(d).
Withdrawal 30 TAC Sections 116.793–116.802 and
116.804–116.807, adopted May 22, 2002, except
Section 116.794(11), 116.795(f) and 116.799(a),
which were returned to the Commission by letter
from EPA dated June 29, 2011; and Section
116.803, adopted August 21, 2002.
to conditionally approve the package.
For more information about the
Program, please see the SIP revisions
submitted by Texas, the interpretive
letter, and the accompanying TSD for
this proposed action, which are
available in the docket for this action.
Pursuant to the submitted Flexible
Permit Program, only one Flexible
Permit may be issued for an account
site.3 See submitted 30 TAC Section
116.710(a)(1). Therefore, a Flexible
Permit cannot cover sources at more
than one account. See submitted 30
TAC Section 116.710(a)(4). A person
may qualify for a Flexible Permit for
3 ‘‘Account’’ for NSR purposes is defined at 30
TAC Section 101.1(1), second sentence, as ‘‘any
combination of sources under common ownership
or control and located on one or more contiguous
properties, or properties contiguous except for
intervening roads, railroads, rights-of-way,
waterways, or similar divisions.’’ This definition is
approved as part of the Texas SIP (March 30, 2005
(70 FR 16129)).
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construction of a new facility at the
account site. 30 TAC Section
116.110(a)(3) and 30 TAC Section
116.710(a)(1). A person may qualify for
a Flexible Permit for a modification of
an existing facility at the account site.
30 TAC Sections 116.110(a)(3) and
116.710(a)(1). To ensure that there is no
confusion when we use the term
‘‘facility’’ in regard to Texas rules, the
EPA is providing the explanation given
by the TCEQ regarding how TCEQ
defines the term. TCEQ has explicitly
defined the term ‘‘facility’’ in
accordance with the definition under
the Texas Health and Safety Code
Section 382.003(6) and 30 TAC Section
116.10(6). The TCEQ translates EPA’s
term of ‘‘emission unit’’ (generally) to
mean ‘‘facility’’ under their rules and
provides a detailed explanation of the
term in its formal comments to the EPA
on the EPA’s earlier proposed
disapproval of the Texas Flexible
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Permits Program. The comments are
contained in Docket ID No. EPA–R06–
OAR–2005–TX–0032 in
www.regulations.gov. Under Major NSR,
EPA uses the term ‘‘emissions unit’’
(generally) when referring to part of a
‘‘stationary source’’.
A Flexible Permit holder may make a
change, through a NSR SIP case-by-case
permit amendment (codified in the SIP
at 30 TAC Section 116.116(b)) or a
Flexible Permit amendment. See
submitted 30 TAC Section 116.710(a)(2).
In lieu of either of these two options, the
Flexible Permit holder may qualify to
make the change by obtaining coverage
for a minor NSR SIP permit by rule
authorization, codified in the SIP at 30
TAC Section 116.116(d).
If the holder of a Flexible Permit
wishes to construct a new minor facility
at the location where the permit is
issued, he may qualify for a Flexible
Permit amendment. See submitted 30
TAC Section 116.710(a)(3). This is
analogous to the minor NSR SIP process
of using a minor NSR SIP Permit by
Rule or a minor NSR SIP permit, for
authorization to construct a new facility
on the site.
Texas already has an approved NSR
SIP under Subchapter B, which defines
a change to an existing facility as one
that would cause a change in the
method of control of emissions; a
change in the character of the emissions;
or an increase in the emission rate of
any air contaminant. 30 TAC Section
116.116(b)(1). Such a change is required
under the SIP to be authorized under a
minor NSR SIP permit amendment. If
the change is a decrease in allowable
emissions; or any change from a
representation in an application, general
condition, or special condition in a
permit that does not cause a change in
the method of control of emissions; a
change in the character of emissions; or
an increase in the emission rate of any
air contaminant (30 TAC Section
116.116(c)(1)), the change may be
authorized without public notification
requirements through a SIP-approved
minor NSR permit alteration or by
obtaining coverage under an existing
minor NSR SIP approved permit by rule
or standard permit. 30 TAC Section
116.116(b) and (d).
The submitted Program at 30 TAC
Section 116.721(a) has the same first
two SIP-approved definitions for a
change to an existing facility: One that
would cause either a change in the
method of control of emissions or a
change in the character of the emissions.
It, however, has a different definition for
the third type of change. Rather than the
change being ‘‘an increase in the
emission rate,’’ it is a change that is a
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‘‘significant increase in emissions.’’
Submitted 30 TAC Section 116.718
defines a ‘‘significant increase in
emissions.’’ First, the increase in
emissions must come from a facility
with a Flexible Permit and second, there
is no significant increase if the increase
does not exceed either the emission cap
or individual emission limitation.
The submitted Flexible Permit
program at 30 TAC Chapter 116,
Subchapter G establishes an aggregated
emission limit, based upon the
application of available technology that
limits emissions, as provided under the
minor NSR SIP and known as best
available control technology (BACT) 4 at
expected maximum capacity (or a
different limitation based on the
emission level that would result from
the application of a more stringent
required emission control) for each
covered facility, i.e., an emission cap is
determined. The cap for a specific
criteria pollutant addresses emissions
from each covered facility with its
individually calculated emission rates.
The total sum of the covered facilities’
calculated emission rates is the
emission cap. In other words, the
emission cap is a limit on the potential
to emit (PTE).
An emission cap established in a
Flexible Permit enables the holder to
have more operational flexibility than
would be allowed under SIP-approved
minor NSR Permits, which impose unitspecific mass emission limits. See
submitted 30 TAC Section 116.716.
Under the submitted 30 TAC Section
116.716(a), Texas may establish an
emission cap for a specific pollutant by
calculating the total emissions for all of
the facilities covered by a Flexible
Permit, using the application of minor
NSR SIP BACT at expected maximum
4 Texas adopted a revised NSR State rule on July
27, 1972, to add the requirement that a proposed
new facility and proposed modification utilize at
least best available control technology (BACT), with
consideration to the technical practicability and
economical reasonableness of reducing or
eliminating the emissions from the facility. EPA
approved the revised 603.16 into the Texas SIP,
presently codified in the Texas SIP at 30 TAC
Section 116.111(a)(2)(C). For more information,
please see the 74 FR 48450 (September 23, 2009),
concerning the Texas Qualified Facilities State
Program and the General Definitions. The Texas SIP
has been revised since our initial approval of 30
TAC 116.111(a)(2)(C). The Texas PSD Program at 30
TAC 116.160(c)(1)(A) incorporates the Federal PSD
BACT definition at 40 CFR 52.21(b)(12). EPA
approved the current Texas PSD program provision
on September 15, 2010, as revised by the July 16,
2010 SIP submittal. See 75 FR 55978. Upon EPA’s
September 15, 2010, approval of the Texas PSD SIP
submittals, both EPA and Texas interpreted the SIP
BACT provision now codified in the SIP at 30 TAC
Section 116.111(a)(2)(C) as being a minor NSR SIP
requirement for minor NSR permits, and thus
applicable to the Texas Minor NSR Flexible Permits
Program.
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8373
capacity for each covered facility.
Nevertheless, where the existing control
for a facility is more stringent than the
application of minor NSR SIP BACT,
e.g., NSPS, NESHAPS, or a control
strategy rule, then that level of control
for that facility is used in the calculation
methodologies for determining the cap.
See submitted 30 TAC Section
116.715(c)(9) and (10). Alternatively,
Texas will also set an individual
emission limitation in the same Flexible
Permit for each pollutant covered by an
emission cap for the covered facilities to
ensure the protection of human health
and the environment as may be required
by a state or federal rule. See submitted
30 TAC Section 116.716(b).
In the version of the Flexible Permit
program that was the subject of the July
15, 2010, disapproval, the calculation
methodologies for the cap and the
individual emission limitations
included allowing for inclusion of an
‘‘Insignificant Emissions Factor’’ (of up
to nine percent) in the summation.
However, the package submitted for
EPA approval that we are acting on
today revised the definition of emission
cap to omit such a provision. See
submitted (and revised with this action)
new 30 TAC Section 116.13(3).
Under the submitted Flexible Permit
Program, a pollutant’s cap must be
decreased if one of the facilities (defined
by Texas to generally mean an
‘‘emissions unit’’) under the Flexible
Permit shuts down for longer than 6
months. See submitted 30 TAC Section
116.716(f)(1), first sentence. If a new
facility is brought into the Flexible
Permit, the cap must be readjusted to
accommodate its calculated emission
rates. See submitted 30 TAC Section
116.716(f)(3). The cap must be adjusted
downward for any facility covered by a
Flexible Permit if that facility becomes
subject to any new State or Federal
regulation. See submitted 30 TAC
Section 116.716(f)(4). A readjustment of
the cap required by any new State or
Federal regulation must be made the
next time the Flexible Permit is either
amended or altered. If an amendment to
a Flexible Permit is not required to meet
the new regulation, the permittee must
submit a request for a permit alteration
within sixty days of making the change,
describing how compliance with the
new requirement will be demonstrated.
See submitted 30 TAC Section
116.716(f)(4), third sentence.
Under submitted 30 TAC Section
116.717, a Flexible Permit may include
an implementation schedule for the
installation of additional controls to
meet an emissions cap for a pollutant.
The section also provides that if a
schedule to install additional controls is
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included in the Flexible Permit and a
facility subject to such a schedule is
taken out of service, the emission cap
contained in the Flexible Permit will be
readjusted to reflect the period the unit
is out of service. Unless a special
provision in the Flexible Permit
specifies the method of readjustment of
the emission cap, the facility must
obtain a permit amendment or
alteration, as appropriate.
III. What action is EPA proposing?
The EPA is proposing to conditionally
approve the Texas Flexible Permit
Program, as submitted by Texas on
October 21, 2013, and as contained in
30 TAC Chapter 116—Control of Air
Pollution by Permits for New
Construction or Modification. This
action follows a decision made by the
Fifth Circuit Court on August 3, 2012,
which vacated EPA’s previous
disapproval and remanded it back to the
EPA for further reconsideration. Texas
v. EPA, 690 F.3d 670 (Fifth Cir. 2012).
The present submittal includes the
original SIP package dated November
29, 1994, which was addressed by the
court, and certain specified revisions as
submitted by TCEQ on October 21,
2013. In addition, the following
regulations under Chapter 116 including
30 TAC Section 116.110(a)(3) on July
22, 1998, and the definition in 30 TAC
Section 116.10(11)(F) submitted on July
22, 1998, for ‘‘modification of existing
facility’’ are included as part of this
package. EPA is also proposing to
conditionally approve the public
participation applicability provisions at
30 TAC Section 39.402(a)(4) and (a)(5)
submitted on July 2, 2010.
In order to better understand how the
submitted program will be
implemented, EPA asked for an
interpretive letter from the State
detailing how certain aspects of the
program will be operated. Based upon
our evaluation of the submittals and
further informed by the letter, EPA has
concluded that the Flexible Permit
Program as submitted October 21, 2013,
in conjunction with the conditions
included in the December 9, 2013,
commitment letter, does meet the
requirements of the CAA section 110(a)
which requires each State to include a
Minor NSR program in its SIP that
meets the 40 CFR part 51 Subpart I
requirements, including legally
enforceable procedures for a minor NSR
program.5
Table 2 below summarizes each
regulatory citation that is affected by
this action.
TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION
Section
Date submitted to EPA
as SIP
amendment
Title
Date adopted
by State
Comments
Chapter 39: Public Notice
Section 39.402 .......
Applicability to Air
July 2, 2010
Quality Permits and
Permit Amendments.
June 2, 2010
30 TAC Section 39.402(a)(4) and 39.402(a)(5) specific to flexible
permits only.
Chapter 116: Control of Air Pollution by Permits for New Construction or Modification
Subchapter A: Definitions
Section 116.10 .......
2/14/1996 .....
6/17/1998 .....
9/4/2002 .......
8/21/2002 .....
10/5/2010 .....
9/15/2010 .....
11/29/1994 ...
11/16/1994 ...
7/22/1998 .....
6/17/1998 .....
10/21/2013 ...
Flexible Permit Definitions.
03/13/1996 ...
07/22/1998 ...
Section 116.13 .......
General Definitions ....
12/14/2010 ...
Definition of ‘‘modification of existing facility’’ at 30 TAC Section
116.10(F).
Definition of ‘‘modification of existing facility’’ at 30 TAC Section
116.10(9)(F).
Redesignation of the Definition of ‘‘modification of existing facility’’ from 30 TAC Section 116.10(9)(F) to 116.10(11)(F).
Renumbered definition (9)(E) for ‘‘modification of existing facility’’.
Initial adoption.
Resubmitted 116.13 definitions for (1) emission cap-emission
limit, (2) expected maximum capacity, and (3) individual emission limitation.
• Revised definition of ‘‘emission cap’’ at 30 TAC Section
116.13(1).
• Revised definition of ‘‘individual emission limitation’’ at 30 TAC
Section 116.13(3) and (5). Deleted reference to ‘‘insignificant
factor’’ formally found in 30 TAC Section 116.13.
Subchapter B: New Source Review Permits
Division 1: Permit Application
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Section 116.110 .....
Applicability ................
11/29/1994 ...
7/22/1998 .....
11/16/1994 ...
6/17/1998 .....
30 TAC Section 116.110(a) specific to flexible permits only.
Revised 30 TAC Section 116.110(a)(3) applicability criteria.
Subchapter G: Flexible Permits
Section 116.710 .....
Applicability ................
5 This submittal does not include the submitted
rules for implementing Section 112(g) of the Clean
Air Act that were identified and returned by the
EPA to the TCEQ on June 29, 2011. This submittal
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11/29/1994 ...
11/16/1994 ...
Initial adoption.
also does not include those rules that were
withdrawn by the TCEQ as identified in the October
21, 2013, submittal cover letter. EPA’s position on
section 112(g) of the CAA is that the EPA does not
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delegate section 112(g) requirements in our MACT
delegations, nor do we approve them into the SIP.
Instead, the State must certify to EPA that the state
program satisfies all applicable requirements.
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TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION—Continued
Date submitted to EPA
as SIP
amendment
Section 116.720 .....
Section 116.721 .....
Distance Limitations ...
Section 116.730 .....
Compliance History ....
Section 116.740 .....
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Section 116.722 .....
Public Notice and
Comment.
Section 116.750 .....
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6/17/1998 .....
8/9/2000 .......
3/7/2001 .......
8/21/2002 .....
8/20/2003 .....
12/14/2010 ...
11/29/1994 ...
11/16/1994 ...
Revised 30 TAC Section 116.715 subsections (a) and (c)(1)–
(10)—General conditions applying to all flexible permit holders.
Revised 30 TAC Section 116.715 subsections (a)–(d).
Revised 30 TAC Sections 116.715(a) and (c)(3)(A), (c)(3)(B),
and (c)(3)C).
Revised 30 TAC Section 116.715 subsections (c)(1) and (c)(4).
Revised 30 TAC Section 116.715 subsection (c)(3)(C)(9).
• Revised 30 TAC Sections 116.715(c)(5)(A) & (B)—monitoring
requirements must be specified in permits for compliance with
emission caps.
• Revised 30 TAC Section 116.715(c)(6)(A)(i) & (ii)—recordkeeping for demonstrating emission cap and individual emission limitation calculations.
• Revised 30 TAC Section 116.715(d)(1)—monitoring must
demonstrate compliance based on sound science.
Initial adoption.
12/14/2010 ...
11/29/1994 ...
11/16/1994 ...
Revised 30 TAC Sections 116.716(a), 116.716(c), 116.716(d),
and 116.716(e) on establishing an emission cap and individual
emission limits.
Initial adoption.
11/29/1994 ...
11/16/1994 ...
Initial adoption.
11/29/1994 ...
11/16/1994 ...
Initial adoption.
11/29/1994 ...
10/19/1994 ...
Initial adoption.
6/17/1998 .....
9/11/2000 .....
11/29/1994 ...
9/11/2000 .....
11/29/1994 ...
10/21/2013 ...
11/29/1994 ...
8/9/2000 .......
10/19/1994 ...
8/9/2000 .......
10/19/1994 ...
12/14/2010 ...
10/19/1994 ...
Revised 30 TAC Sections 116.721(a), (b)(2), (d)(1), and (d)(2)—
Amendments and alterations for flexible permits.
Resubmittal 30 TAC Section 116.721.
Initial adoption.
Revised reference citation in Section.
Initial adoption
30 TAC Section 116.730 withdrawn.
Initial adoption.
7/22/1998 .....
10/25/1999 ...
10/21/2013 ...
Section 116.718 .....
Implementation
Schedule for Additional Controls.
Significant Emission
Increase.
Limitation on Physical
and Operational
Changes.
Amendments and Alterations.
Revised 30 TAC Section 116.714.
Initial adoption.
7/22/1998 .....
Section 116.717 .....
Emission Caps and
Individual Emission
Limitations.
6/17/1998 .....
11/16/1994 ...
10/21/2013 ...
Section 116.716 .....
11/16/1994 ...
9/4/2002 .......
9/25/2003 .....
10/21/2013 ...
General and Special
Conditions.
3/7/2001 .......
8/21/2002 .....
12/14/2010 ...
Revised 30 TAC Sections 116.711 (1)–(13)—Flexible permit application requirements.
Resubmittal 30 TAC Section 116.711.
Revised 30 TAC Sections 116.711 (8), (9), (10), and (11).
Revised 30 TAC Section 116.711(2)(M) [introductory text], and
paragraphs (iv) and (vii). It was submitted in the package as
30 TAC Section 116.711(13)(D) which requires permit applicants to provide a description of EPNs included in emission
cap and 30 TAC Section 116.711(13)(E)(vii) which ensures
PSD terms and conditions are retained in the flexible permit.
Initial adoption.
9/11/2000 .....
4/12/2001 .....
Section 116.715 .....
6/17/1998 .....
7/22/1998 .....
11/29/1994 ...
Application Review
Schedule.
8/9/2000 .......
11/16/1994 ...
7/22/1998 .....
Section 116.714 .....
9/11/2000 .....
11/29/1994 ...
Revised 30 TAC Section 116.710 subsections (a), (b), (c), and
(d)—Applicability criteria.
Resubmittal 30 TAC Section 116.710.
Initial adoption.
11/29/1994 ...
Flexible Permit Application.
6/17/1998 .....
4/12/2001 .....
9/4/2002 .......
10/21/2013 ...
Section 116.711 .....
Comments
7/22/1998 .....
Title
Date adopted
by State
7/22/1998 .....
Section
6/17/1998 .....
9/2/1999 .......
12/14/2010 ...
11/29/1994 ...
7/22/1998 .....
9/11/2000 .....
10/4/2002 .....
10/19/1994 ...
6/17/1998 .....
8/9/2000 .......
9/25/2002 .....
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Revised Section.
Revised 30 TAC Section 116.740(a).
• Revised resubmittal.
• 30 TAC Section 116.740(b) withdrawn.
Initial adoption
Revised 30 TAC Sections 116.750(b)–(d).
Revised 30 TAC Section 116.750(d).
Revised 30 TAC Section 116.750(b)–(c).
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TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION—Continued
Date submitted to EPA
as SIP
amendment
Section
Title
Section 116.760 .....
Flexible Permit Renewal.
Compliance Schedule
Section 116.765 .....
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A. What is a conditional approval?
Section 110(k) of the Act governs
EPA’s actions addressing SIP
submissions. Where EPA finds that a
SIP submission is not fully approvable,
we may choose to use a conditional
approval as provided under Section
110(k)(4). In this case EPA may
conditionally approve the plan based on
a commitment from the State to adopt
specific corrections to the Flexible
Permit Program by a date certain, but no
later than 1 year after the approval of
the revision. Guidance on the use of
conditional approvals was addressed by
EPA in 1992 in a memorandum from
John Calcagni.6 This guidance was
followed in the development by the
TCEQ of their submittal of October 21,
2013 and was the basis for their detailed
letter of commitment. A copy of TCEQ’s
letter of commitment and the Calcagni
memo are available in the docket to this
rulemaking. Upon TCEQ fully satisfying
their commitment and subsequent final
action by EPA, the Flexible Permit
Program for the first time will become
a fully approved federally enforceable
requirement in the Texas State
Implementation Plan. The TCEQ, in its
letter of December 9, 2013, committed to
adopt by November 30, 2014, certain
changes to the rules contained in the
SIP submittal.
Once EPA determines that all the
conditions in the commitment letter
have been met, EPA will publish in the
Federal Register a determination that
converts the conditional approval to a
full approval and provides a copy of the
Flexible Permit Program as revised to
meet the conditions. However, if the
State fails to submit a SIP revision
reflecting its December 9, 2013,
commitments by November 30, 2014, or
if EPA determines that the submitted
SIP revision does not address the
commitments, then in accordance with
110(k)(4) of the CAA, the conditional
approval converts to a disapproval
action. In that case, EPA would issue a
letter to the TCEQ converting the
6 John Calcagni’s July 1992, Memorandum,
‘‘Processing of State Implementation Plan (SIP)
Submittals’’, to Directors.
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Date adopted
by State
10/21/2013 ...
11/29/1994 ...
12/14/2010 ...
10/19/1994 ...
Revised resubmittal.
Initial adoption.
10/21/2013 ...
12/14/2010 ...
Submittal 30 TAC Section 116.765(b) and (c).
Comments
conditional approval of the Flexible
Permit Program to disapproval. Because
the Flexible Permit Program is a
discretionary variation of the SIP
approved minor program and was not
submitted to address a mandatory
requirement of the Act, disapproval of
the program would not trigger sanctions
under Section 179(b) or start a Federal
Implementation Plan clock.
letter is available in the docket for this
rulemaking. All the necessary
substantive provisions of the flexible
permit program were included in the
submissions and the conditions address
formatting and style requirements in
state law. The changes that Texas will
be making will not materially alter the
submitted program described in this
proposal.
B. What are the commitments?
IV. EPA’s Evaluation of the Texas
Flexible Permit Program as a Minor
NSR Program
TCEQ provided a commitment letter
on December 9, 2013, to EPA that
provides that the commission will
subsequently submit amended rules that
are consistent with the rulemaking
requirements of the Texas
Administrative Procedure Act. This
action is necessary because some of the
rules were repealed and readopted in
1998, and amendments to the rules were
adopted in the 1999 to 2003 timeframe.
The rulemaking would also include the
repeal of text adopted in 2010 but not
part of the submission by the
Commission on September 24, 2013.
More specifically, Texas will also make
rule changes to ensure that all
regulatory citations in the package are
labeled and referenced correctly and
placed in proper sequence. Without the
renumbering and referencing effort,
incorrect references in the rules could
result in applicable requirements being
overlooked and not being incorporated
into Flexible Permits during their
preparation or modification. Further,
the rules could cite to incorrect
requirements not applying to the
entities regulated through the Flexible
Permit Program. The TCEQ has
committed to providing a SIP submittal
by November 30, 2014, that will
reformat, reorganize and renumber the
Flexible Permit Program into a cohesive
rule that will ensure that the rules are
properly structured within and
according to the rulemaking
requirements of the Texas
Administrative Procedure Act and the
Texas Administrative Code. It will also
include the repeal of text adopted in
2010 that was not part of the submittal
adopted by the Commission on
September 24, 2013. This commitment
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The Act at Section 110(a)(2)(C)
requires states to develop and submit to
EPA for approval into the state SIP,
preconstruction review programs
applicable to new and modified
stationary sources of air pollutants for
attainment and nonattainment areas that
cover both major and minor new
sources and modifications, collectively
referred to as the New Source Review
(NSR) SIP. The CAA NSR SIP program
is composed of three separate programs:
Prevention of Significant Deterioration
(PSD), Nonattainment New Source
Review (NNSR), and Minor NSR. PSD is
established in part C of title I of the
CAA and applies in areas that meet the
National Ambient Air Quality Standards
(NAAQS), i.e., ‘‘attainment areas’’, as
well as areas where there is insufficient
information to determine if the area
meets the NAAQS, i.e., ‘‘unclassifiable
areas.’’ The NNSR SIP program is
established in part D of title I of the
CAA and applies in areas that are not in
attainment of the NAAQS, i.e.,
‘‘nonattainment areas.’’ The Minor NSR
SIP program addresses construction or
modification activities that do not emit,
or have the potential to emit, more than
certain major source thresholds and
thus do not qualify as ‘‘major’’ and
applies regardless of the designation of
the area in which a source is located.
EPA regulations governing the criteria
that states must satisfy for EPA approval
of the NSR programs as part of the SIP
are contained in 40 CFR 51.160–51.166.
Regulations specific to minor NSR
programs are contained in 40 CFR
51.160–51.164. In addition, there are
several provisions in 40 CFR Part 51
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that apply generally to all SIP revisions.
The TCEQ has developed the Flexible
Permit Program as a component of the
Texas Minor NSR program; therefore,
we evaluated the Texas Flexible Permit
Program as submitted in October 21,
2013, and the commitment letter against
the federal requirements for minor NSR
programs. EPA’s evaluation is also
informed by an interpretive letter sent
by TCEQ on December 9, 2013,
clarifying certain aspects of the
program. In an earlier Federal Register
proposed action, EPA articulated its
position on the use of interpretive
letters in evaluating SIPs:
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EPA believes that the use of interpretive
letters to clarify perceived ambiguity in the
provisions in a SIP submission is a
permissible and sometimes necessary
approach under the CAA. Used correctly, and
with adequate documentation in the Federal
Register and the docket for the underlying
rulemaking action, reliance on interpretive
letters can serve a useful purpose and still
meet the enforceability concerns of the
Petitioner. Regulated entities, regulators, and
the public can readily ascertain the existence
of interpretive letters relied upon in the
EPA’s approval that would be useful to
resolve any perceived ambiguity. By virtue of
being part of the stated basis for the EPA’s
approval of that provision, the interpretive
letters necessarily establish the correct
interpretation of any arguably ambiguous SIP
provision. In addition, reliance on
interpretive letters to address concerns about
perceived ambiguity can often be the most
efficient and timely way to resolve concerns
about the correct meaning of regulatory
provisions. Both air agencies and the EPA are
required to follow time- and resourceintensive administrative processes in order to
develop and evaluate SIP submissions. It is
reasonable for the EPA to exercise its
discretion to use interpretive letters to clarify
concerns about the meaning regulatory
provisions, rather than to require air agencies
to reinitiate a complete administrative
process merely to resolve perceived
ambiguity in a provision in a SIP submission.
In particular, the EPA considers this an
appropriate approach where reliance on such
an interpretive letter allows the air agency
and the EPA to put into place SIP provisions
that are necessary to meet important CAA
objectives and for which unnecessary delay
would be counterproductive. (78 FR 12460,
12475, February 22, 2013). Texas’
interpretive letter is in the docket for this
action and is discussed throughout this
notice.
As we stated above, 40 CFR 51.160
establishes the enforceable procedures
that all minor NSR programs must
include. We will address the specific
requirements for enforceability in
Section A below. 40 CFR 51.161
establishes the public notice
requirements for minor NSR programs.
We will address the public notice
requirements more fully in a following
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Section B. Sections 51.160–51.164
require that a SIP revision demonstrate
that the adopted rules will not interfere
with any applicable requirement
concerning attainment and reasonable
further progress, or any other applicable
requirement of the CAA. We will
address the specific requirements for
permitting activities that ensure
attainment more fully in a following
Section C.
EPA notes that in response to its final
disapproval on the Flexible Permits
Rule on July 15, 2010, the TCEQ
adopted, on December 14, 2010, revised
Sections of the Texas Administrative
Code which resulted in changes to
Chapter 116. In recent discussions with
EPA, the State agreed to submit for our
consideration portions of those rules in
conjunction with the prior submittal
addressed in EPA’s July 15, 2010,
action. A discussion of the portion of
the applicable December 14, 2010, rule
that was included in the submittal
package is also included in the section
A.(1–5) below.
A. Federal Requirements for
Enforceability of the Minor NSR
Program
The Federal requirements for
enforceability are found in 42 U.S.C.
7410(a)(2)(A) and 42 U.S.C.
7410(a)(2)(C) as interpreted by the EPA
guidance discussed below. The EPA has
several regulations that address all SIPs
and SIP revisions. In addition to the
generally applicable rules discussed
below, the requirement for
enforceability of a minor NSR program
is found at 40 CFR 51.160. This rule
specifically requires the state or local
agency to have the authority to prevent
the construction of a facility or
modification that will cause a violation
of applicable portions of the control
strategy or interfere with attainment or
maintenance of a NAAQS. To
accomplish this goal, the state’s minor
NSR program must include the means
by which the state agency will review
proposed new construction or
modification projects to determine that
such projects will not interfere with the
control strategy or cause a violation of
a NAAQS. The minor NSR program
must include the following in
accordance with 40 CFR 51.160(c):
• The minor NSR program must
provide for the submission, by the
owner or operator of the building,
facility, structure or installation to be
constructed or modified, such
information on the nature and amounts
of emissions to be emitted by it or
emitted by associated mobile sources;
and the design, construction and
operation of such facility, building,
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structure, or installation as may be
necessary to allow the permitting
authority to make a determination on
approvability.
• The minor NSR program must
provide that approval of any
construction or modification must not
affect the responsibility of the owner or
operator to comply with applicable
portions of the control strategy.
• The minor NSR program must
include procedures to identify the types
and sizes of facilities, buildings,
structures, or installations which will be
subject to review. The minor NSR
program must also discuss the basis for
determining which facilities will be
subject to review.
• The minor NSR program must also
discuss the air quality data and the
dispersion or other air quality modeling
used to make approval decisions.
The Court in its Opinion stated that
in disapproving the Texas Flexible
Permit Program, the EPA failed to
explain or tie replicability, clarity and,
in general, elements of the enforcement
guidance to standards provided for in
the CAA. See, 690 F.3d 670, 683–4. 42
U.S.C. 7410(a)(2) provides that a SIP
must include enforceable emission
limitations. It is this CAA requirement
that the SIP be enforceable that provides
the legal basis for requiring that a
program meet criteria necessary for
enforceability. Enforceability is required
by the Act and without it the EPA, the
states, and the citizens who wish to
determine whether or not a regulated
entity is in compliance, and then to
enjoin any violations, will find it
difficult to take action to ensure
compliance. Being able to enforce
permits and rules adequately provides
interested parties the ability to return
regulated entities to compliance. The
collection of penalties both penalizes
the offender and provides deterrence of
future violations. Without adequate
enforceability, EPA cannot ensure that a
program submitted to be approved into
the SIP will be protective of the
NAAQS. See, 42 U.S.C. 7410(l). Minor
sources have the potential to impact the
NAAQS. EPA acknowledged this in the
1986 rulemaking establishing the
current version of 40 CFR 51.160–164
(the minor source rules). The EPA stated
that ‘‘The very fact that such [minor]
sources are subject to review indicates
that it would be appropriate to require
that EPA be notified of permitting
actions on such sources [minor] for
oversight purposes. Moreover, a large
number of minor sources could have a
significant cumulative effect on air
quality.’’ See, 51 FR 40656, 40658
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November 7, 1986. These sources 7 have
historically included some of the largest
refinery and petrochemical companies
in the State. These large sources very
frequently have the need for minor NSR
changes to their permits. The Appendix
to the TSD contains a list of companies
provided by the TCEQ on December 18,
2013, that currently have or historically
had coverage under a flexible permit
issued prior to the rules becoming SIP
approved.
In addition to ensuring protection of
the NAAQS, enforceability is required
by the Act and in several regulations
that are applicable to minor source
programs as well as to all SIPs and SIP
revisions. 42 U.S.C. 7410(a)(2) provides
that a SIP must include enforceable
emission limitations and control
measures, coupled with methods for
maintaining and analyzing data on air
quality. EPA’s regulations implementing
this provision require that: Each plan
must set forth legally enforceable
procedures that enable the State or local
agency to determine whether the
construction or modification of a
facility, building, structure or
installation, or combination of these
will result in (1) A violation of
applicable portions of the control
strategy; or (2) Interference with
attainment or maintenance of a national
standard in the State in which the
proposed source (or modification) is
located or in a neighboring State. In
addition, 42 U.S.C. 7410(a)(2)(C)
specifically provides that a program be
established to provide for the
enforcement of emission limitations.
While the statute provides for
considerably broader discretion for
States to craft minor source programs, it
does not in any way distinguish the
requirement for enforceability between
major and minor source programs.
Indeed, since (as noted above), very
large major sources obtain many minor
source permits for construction and
modification of emissions units, the
collection of such permits at such
sources should reflect similar levels of
enforceability. Congress recognized this
in establishing the Title V operating
permit program, which collects all
permits into a single comprehensive
document, and requires the permitting
authority to remedy past flaws related to
permit enforceability. In addition, the
following regulatory provisions lay out
the framework for requirements for
enforceability in SIPs, and in particular
minor source programs. Certainly the
statute makes no such distinction nor do
7 These sources include minor sources as well as
major sources seeking minor modifications to their
facilities.
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the regulations. 40 CFR 51.160 provides
in relevant part that each plan must set
forth legally enforceable procedures that
enable the State or local agency to
determine whether there is violation of
applicable portions of the control
strategy. 40 CFR 51.281 provides, in
relevant part, that emission limitations
and other measures adopted by the state
as rules and regulation must be
enforceable by the State Agency. 40 CFR
51.212(c) provides for an enforceable
test method for each emission
limitation. The Court discussed only the
requirements found in 40 CFR 51.160–
164, relating specifically to minor
source permitting as applicable in this
matter. However, all SIPs and SIP
revisions must also comply with some
additional requirements, found in part
51 such as Subparts F, K, L and O. Thus,
enforceability is a significant element in
the Act and our regulations.
EPA has, from time to time, also
issued guidance that provides the
Agency’s interpretation of what it means
to be enforceable under the Act and
implementing regulations.
One of the central documents that sets
forth our interpretation is the September
23, 1987, Memorandum from J. Craig
Potter, Assistant Administrator for Air
and Radiation, and Thomas L. Adams
Jr., Assistant Administrator for
Enforcement and Compliance
Monitoring, entitled ‘‘Review of State
Implementation Plans and Revisions for
Enforceability and Legal Sufficiency.’’ 8
In the memorandum, we explain that
submitted rules that are clearly worded,
clear as to who must comply, and
explicit in their applicability to
regulated sources are appropriate means
for achieving the statutory enforcement
requirement. Appropriate testing,
recordkeeping, reporting, and
monitoring provisions are necessary to
establish how compliance will be
determined and be sufficient to ensure
that the NAAQS and PSD increments
are protected. Attached to this
memorandum was an implementation
guidance which included a section
entitled ‘‘SIP APPROVABILITY
CHECKLIST—ENFORCEABILITY’’
regarding how to specifically evaluate
proposed rules and ensure they are
enforceable.
On November 3, 1993, EPA’s John S.
Seitz, Director, Office of Air Quality
Planning and Standards, issued a
memorandum titled ‘‘Approaches to
8 See 57 FR 13498, April 16, 1992. This is the
General Preamble to the 1990 CCA Amendments
which was meant to act as guidance for the State
in making revisions to their NSR programs. It
references the above memorandum as establishing
the enforceability criteria for writing rules and
permitting. See also Pgs, 13541, 13548.
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Creating Federally-Enforceable
Emissions Limits.’’ While its purpose
was to give guidance as to how
permitting authorities could create
permit programs that would allow
sources that would otherwise be major
sources to be considered ‘‘minor’’ for
the purposes of title V permitting and
various other requirements of the Act, it
also further articulates EPA’s
interpretation of statutes and regulations
as it relates to creating emissions limits
that are legally and practically
enforceable. It is EPA’s longstanding
interpretation of 42 U.S.C. 7410(a)(2) of
the CAA that in general federal
enforceability has two parts: legal
enforceability and practical
enforceability.
A requirement is ‘‘legally
enforceable’’ if some authority (as well
a citizen) has the right to enforce the
restriction. Practical enforceability for a
source-specific permit will be achieved
if the permit’s provisions specify: (1) A
technically accurate limitation and the
portions of the source subject to the
limitation; (2) the time period for the
limitation (hourly, daily, monthly, and
annual limits such as rolling annual
limits); and (3) the method to determine
compliance, including appropriate
monitoring, recordkeeping, and
reporting. For rules and general permits
that apply to categories of sources,
practical enforceability additionally
requires that the provisions: (1) Identify
the types or categories of sources that
are covered by the rule; (2) where
coverage is optional, provide for notice
to the permitting authority of the
source’s election to be covered by the
rule; and (3) specify the enforcement
consequences relevant to the rule.
‘‘Enforceable as a practical matter’’ will
be achieved if a requirement is both
legally and practically enforceable.9 The
above cited guidance and Federal
Register notices demonstrate that EPA
has consistently interpreted enforceable
requirements of the CAA in the manner
explained above, i.e., that they must be
both legally and practically enforceable.
We believe the Flexible Permit program
before us today meets our interpretation
of enforceable under the CAA.
The provisions from the October 21,
2013 submittal needed to ensure legal
and practical enforceability are
discussed in numbers 1–5 below.
1. Identifying the New Facilities and/or
Modifications for Inclusion in a Flexible
Permit
One key feature of an enforceable
minor NSR program is the ability to
9 See 67 FR 80186, 80190–80191 December 31,
2002.
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easily identify the facilities and
modifications subject to the program.
See, 40 CFR 51.160(e). For the Flexible
Permit program, the establishment and
identification of the facilities subject to
the emission cap is crucial to proper
implementation of the program. To
provide for legally enforceable emission
caps, the TCEQ adopted amendments to
30 TAC Section 116.711(2)(M) on
December 14, 2010, and included them
in the package submitted for EPA
approval on October 21, 2013. The
submitted package requires permit
applicants provide a complete
description of the facilities (with their
individually defined emission point
numbers) included in an emissions cap.
The package also allows a permit
applicant to establish an emission cap
for all facilities at an account, including
every facility at the account, or to
establish an emission cap comprised of
a designated group of facilities at the
account. Section 116.716(a) allows
permit applicants full flexibility to
designate facilities for inclusion in an
emission cap as they see fit, without
restriction on the type or location of the
facility, as long as it (1) complies with
the definition of account and 30 TAC
Section 116.716(a) as submitted; (2)
provides that emission caps be
established for a pollutant for all
facilities at an account or a designated
group of facilities at an account. Finally,
30 TAC Section 116.716(c) as submitted,
includes text to ensure that the rules
include procedures for establishing an
emissions cap. See 35 TexReg 11936–
11941.
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2. Inclusion of Appropriate Monitoring
and Recordkeeping Requirements in
Flexible Permits
In addition to establishing the
facilities and modifications subject to
the minor NSR program, the SIP must
require sufficient monitoring,
recordkeeping, and reporting (MRR) to
demonstrate that the source or
modification as permitted will not result
in a violation of the control strategy or
an applicable NAAQS and is
enforceable. One of the rationales for
our original disapproval was that the
program afforded excessively broad
discretion to the director regarding
whether or not to include MRR
conditions in a Flexible Permit. See, 75
FR 41312, 413213. Subsequent to the
Fifth Circuit’s vacatur of our
disapproval of the MRR and director’s
discretion provisions in the original
Flexible Permit program, EPA, in a
separate rulemaking action, has more
clearly articulated the Agency’s long
standing interpretation of the CAA as it
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relates to the use of director discretion
in SIPs.
On February 22, 2013, in a proposed
action involving how excess emissions
would be treated in state rules by
sources during periods of startup,
shutdown, or malfunction (SSM), EPA
extensively discusses the use of
director’s discretion in SIPs. For the full
discussion of this issue please see 78 FR
12460, February 22, 2013, and the
accompanying SSM legal memo:
‘‘Memorandum to Docket EPA–HQ–
OAR–2012–0322 Statutory, Regulatory,
and Policy Context for this Rulemaking
February 4, 2013.’’ In these documents
EPA articulates the rationale for its
longstanding interpretation that the
CAA does not allow ‘‘director’s
discretion’’ provisions in SIPs if they
provide unbounded discretion to
determine what requirements apply to
sources, in ways that would amount to
case-specific revisions of the SIP
without meeting the statutory
requirements of the CAA for SIP
revisions. See, 78 FR 12460, 12474.
The EPA has explained that director’s
discretion provisions can be acceptable
if such provisions are sufficiently
specific, provide for sufficient public
process, and are sufficiently bounded,
so that it is possible to anticipate at the
time of the EPA’s approval of the SIP
provision how that provision will
actually be applied and that the preauthorized exercise of director’s
discretion will not interfere with other
CAA requirements, such as providing
for attainment and maintenance of the
NAAQS. See, 78 FR 12460, 12485. In
the EPA’s judgment, the revised Flexible
Permit Rule before us today is
sufficiently bounded, provides for
public participation, protects the
NAAQS, and is enforceable.
The disapproved package had
provided that a source should have
provisions for measuring emissions of
air contaminants ‘‘as determined by the
Executive Director,’’ and imposed no
additional substantive requirements for
such measurements and did not prevent
the Director from exempting the source
from any requirements at all. Thus, it
did not comport with the requirements
specified in EPA’s recent notice. The
revised Flexible Permit Rule, as
submitted in October 2013, does not
contain any provision that could
constitute or authorize a complete
variance or an exemption from
monitoring. The State in its interpretive
letter clearly confirms that its rules do
not allow for an exemption from
monitoring requirements. The
requirements for monitoring are general
in nature but are sufficiently bounded to
be approvable. In particular, TCEQ
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adopted amendments to 30 TAC Section
116.715(d)(1) to satisfy EPA concerns
about the exercise of director’s
discretion. Section 116.715(d)(1)
provides that the ‘‘monitoring system
must accurately determine all emissions
of the pollutants in terms of mass per
unit of time. Any monitoring system
authorized for use in the permit must be
based on sound science and meet
generally acceptable scientific
procedures for data quality and
manipulation.’’ As explained in the
TCEQ interpretive letter, this
monitoring condition clearly constrains
the director’s discretion. As such, it is
consistent with the guidelines for
director’s discretion provisions set forth
in the EPA guidance just described.
The newly submitted rule tracks very
closely with the monitoring provisions
set forth in EPA’s major source
Plantwide Applicability Limitation
(PAL) provisions in the federal PSD
regulations (PAL). EPA’s PSD PAL
provisions at 40 CFR 52.21(aa)(12)
specify monitoring requirements for
PAL permits and requires that all
monitoring systems authorized for use
in a PAL permit must be based on sound
science and meet generally acceptable
scientific procedures for data quality
and manipulation.
Moreover, in our original disapproval
for the Flexible Permit Program, we
cited to the PAL rule as an appropriate
way to for the director to establish
monitoring requirements.10 As noted
above, TCEQ also submitted an
interpretive letter clarifying how this
provision in the program operates and
demonstrates it is consistent with EPA
requirements. In sum, these provisions
effectively impose necessary substantive
requirements on MRR provisions.
The newly submitted Flexible Permit
Program expands the MRR provisions to
ensure enforceability of the program. 30
TAC Section 116.715(c)(5)(A) requires
each flexible permit to specify
requirements for monitoring or
demonstrating compliance with
emission caps and individual emission
limits in the flexible permit. 30 TAC
Section 116.715(c)(5)(B) requires each
flexible permit to specify emission
calculation methods for calculating
annual and short term emissions for
each pollutant. We find that these
provisions of the Flexible Permit
Program were included in the revised
SIP submission by the TCEQ on October
21, 2013, See, 35 TexReg 11938–11939.
These provisions establish that the
overall program, and in particular the
MRR provisions, provide for sufficient
public process, and are sufficiently
10 See,
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bounded. It is possible to anticipate how
the provision will actually be applied
and that the pre-authorized exercise of
director’s discretion will not interfere
with other CAA requirements. They also
ensure that the limits on director’s
discretion are legally enforceable. See
40 CFR 51.160 (requiring that minor
source program include enforceable
procedures.).
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3. Additional Elements Specific to
Emissions Caps
EPA has also concluded that the
program, as submitted, contains other
specialized provisions needed to ensure
enforceability. Once the cap is
established the facilities are then able to
make changes without permit revisions
provided the emissions are below the
established emissions caps. The TCEQ
has consistently defined the flexible
permit program as a new type of minor
NSR permit program which functions as
an alternative to the traditional
preconstruction permits that are
authorized in Chapter 116, Subchapter
B, NSR Permits. The TCEQ states that
flexible permits were designed to
exchange flexibility for further emission
reductions without relaxation of unit
specific control requirements. In its
submittal, the TCEQ has included
provisions in 30 TAC Section
116.715(c)(5)(A) that satisfy the
requirements that each flexible permit
specify requirements for monitoring or
demonstrating compliance with
emission caps and individual emission
limits in the flexible permit; 30 TAC
Section 116.715(c)(5)(B) as submitted
satisfies the requirement that each
flexible permit specify emission
calculation methods for calculating
annual and short term emissions for
each pollutant; and 30 TAC Section
116.715(d)(1) to satisfy the requirements
concerning accountability/
enforceability. Each of these
amendments to the Flexible Permit
Program was submitted as a SIP revision
by the TCEQ on October 21, 2013. See,
35 TexReg 11938–11939.
4. Provisions To Ensure the Flexible
Permit Program Is a Minor NSR Program
Because the Flexible Permit program
can be used for both true minor sources
and for minor modifications at existing
major sources, the program must
include provisions to ensure that major
NSR requirements are protected and
that the Flexible Permit Program cannot
be used to circumvent the requirements
of either PSD or NNSR review. The
TCEQ adopted provisions on December
14, 2010, to further clarify the major
NSR permitting programs. The TCEQ
adopted amendments to 30 TAC Section
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116.711(2)(M)(vii) to specify that the
flexible permit application must
identify any terms, conditions, and
representations in any Subchapter B
permit which will be superseded by or
incorporated under a flexible permit
and provide an analysis of how the
conditions and control requirements of
a Subchapter B permit will be carried
forward in the proposed flexible permit.
Texas revised 30 TAC Section
116.716(c)(2) to require facilities subject
to lowest achievable emission rate
(LAER) in accordance with Subchapter
B, be included in a separate emissions
cap or provided with individual
emission limitations. This provision
ensures that sources subject to LAER are
fully controlled as required by federal
NSR regulations. Each of these
amendments to the Flexible Permit
Program was submitted as a SIP revision
by the TCEQ on October 21, 2013. Each
of these amendments to the Flexible
Permit Program ensures that the
program is for minor NSR actions and
that for any minor amendments to a
major source, the source will retain its
major source requirements (i.e., cannot
be used to circumvent the major source
requirements). Our evaluation of this
issue is also informed by the Fifth
Circuit Court of Appeals decision in
Texas v. EPA, 690 F3d 670, (5th Cir
2013) in which the Court overturned our
disapproval of the rule. One of the major
rationales of our earlier disapproval was
that the Program might allow major
sources to evade Major NSR. The EPA
found that the Flexible Permit Program
‘‘has no express regulatory prohibition
clearly limiting its use to Minor NSR
and has no regulatory provision clearly
prohibiting the use of this submitted
Program from circumventing the Major
NSR SIP requirements.’’ See, 75 FR
41312, 41,313. The Court dismissed
EPA’s concern and expressly ruled that
this was a program limited to minor
sources only. ‘‘The Flexible Permit
Program does not allow Major NSR
evasion because it affirmatively requires
compliance with Major NSR’’. Texas v.
EPA, 690 F3d 670, 678. TCEQ included,
as part of their October 21, 2013,
submittal 30 TAC Sections
116.711(8)&(9) which require
compliance with PSD and
Nonattainment review if it is found that
those provisions apply.
5. Provisions To Ensure the Flexible
Permit Program Demonstrates
Compliance
An emissions cap program such as the
Flexible Permit Program must include
provisions for calculating compliance
on a 12-month rolling average and
against applicable short term limits in
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order to meet the requirement of Section
302(k) of the CAA that the source be
able to demonstrate continuous
compliance. Appropriate emission
calculations will ensure that permit
conditions are protective of the control
strategy and the applicable NAAQS. To
provide for this, the TCEQ submitted
amendments to the Flexible Permit
Program on October 21, 2013, to 30 TAC
Section 116.715(c)(5) to address
monitoring, calculations, and
equivalency of methods so that each
flexible permit shall specify
requirements for monitoring or
demonstrating compliance with
emission caps and individual emission
limits in the flexible permit and revised
30 TAC Section 116.715(c)(6)(A)(i) so
that emission caps and individual
emission limitation calculations are
based on a 12-month rolling average and
emission caps and individual emission
limitation calculations correspond to
any short term emission limitations.
B. Federal Requirements for Public
Notice of Minor NSR Permitting
The requirements for public notice of
minor NSR permitting are outlined at 40
CFR 51.160 and 51.161. The legally
enforceable approval procedures for
Minor NSR programs at 40 CFR 51.160
must require the permitting authority to
provide opportunity for public comment
on information submitted by sources
and the agency’s analysis of the effects
of the proposed source on ambient air,
including its proposed approval or
disapproval. See, 40 CFR 51.161(a). The
opportunity for public comment must
include, at a minimum, a 30-day
comment period on the information
submitted by the applicant and the
permitting authority’s analysis of the
effect of the proposed application on air
quality. This information must be
noticed by prominent advertisement in
the area affected by the proposed source
and available for public inspection in at
least one location in the area affected.
See, 40 CFR 51.161(b).
1. Overview of the Texas Public
Participation Process for Applications
for New Flexible Permits and Flexible
Permit Amendments
The Texas public participation
process covers the variety of air quality
permit applications processed by the
TCEQ including applications for
permits for new major sources or
modifications subject to PSD or NNSR
requirements and minor NSR permit
actions such as Flexible Permits. EPA
has separately reviewed and approved
the public participation process for
major sources and modifications subject
to PSD/NNSR requirements, PAL permit
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authorizations at existing major sources,
new minor sources or minor
amendments, and permit renewals. See
our final rule dated January 6, 2014,
approving the Texas public
participation requirements for these
permit actions as consistent with the
requirements of the CAA and 40 CFR
51.160–51.166. See 79 FR 551. In
today’s action we are only reviewing the
Texas public participation program
specific to applications for new and
amended Flexible Permits pursuant to
Chapter 116, Subchapter G. The public
participation requirements for Flexible
Permits are found at 30 TAC Section
116.740, which requires any applicant
for a new Flexible Permit or amendment
to a Flexible Permit to comply with the
requirements established in Chapter 39
related to Public Notice. Among other
Sections that apply to both flexible
permit applications and other
applications, Chapter 39 separately
applies the public participation process
to applications for new Flexible Permits
at 30 TAC Section 39.402(a)(4) and
applications for amendments to a
Flexible Permit at 30 TAC Section
39.402(a)(5). Because the Flexible
Permits program is a minor NSR
authorization, our evaluation of the
public participation specific to flexible
permits will be based on minor NSR
public participation requirements of 40
CFR 51.161.
The following process is used to
publish notice of an application for a
new Flexible Permit or an amendment
to a Flexible Permit.:
1. Applicant submits air quality
permit application for new or amended
Flexible Permit to TCEQ. See 30 TAC
Section 116.711.
2. TCEQ reviews the application and
determines whether the application is
administratively complete. During this
process, the TCEQ has 90 days to
determine the application is complete or
request additional information. See 30
TAC 116.714, which cross-references
the requirements at30 TAC Section
116.114(a)(1).
3. Once the application is
administratively complete, the applicant
is required to publish the first notice,
the Notice of Receipt of Application and
Intent to Obtain Permit (NORI), as
applicable. See 30 TAC Section 39.418.
The NORI is a unique feature of the
Texas Public Notice Process. The NORI
provides information to the public about
the receipt of an application and
provides basic information about the
proposed new source or modification
such as a description of the location and
the nature of the proposed activity, a
description of the public comment
process, and the location where
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materials will be made available for
review. The NORI does not provide any
technical information, but rather serves
as an indicator of future public notices
and actions that may be of interest,
enabling the public to anticipate draft
permits. The NORI is required for all
new applications for Flexible Permits at
30 TAC Section 39.402(a)(4) and most
applications for amendments to Flexible
Permits at 30 TAC 39.402(a)(5). Note
that certain applications for Flexible
Permit amendments are exempted from
the Chapter 39 public notice provisions
as discussed in this proposed action at
Section IV.B.3.
4. TCEQ completes the technical
review and makes a preliminary
decision. The TCEQ has 180 days from
the date a new Flexible Permit
application is administratively
complete, or 150 days from the date a
Flexible Permit amendment application
is administratively complete, to conduct
the technical review and make a
preliminary decision. See 30 TAC
116.714, which cross-references the
requirements at 30 TAC Section
116.114(a)(2).
5. The applicant is required to publish
the second notice, the Notice of
Application and Preliminary Decision
(NAPD) when notified by TCEQ of the
preliminary decision. See 30 TAC
Section 39.419. The NAPD notice
provides the information and notice to
the public consistent with federal
requirements. The NAPD provides
details about the preliminary decision
and draft permit and the location where
applicable air quality analyses and other
technical materials will be made
available for public review. NAPD is
required for all air quality permit
applications for new Flexible Permits
and most Flexible Permit applications
subject to the Chapter 39 public notice
provisions. Note that certain
applications for Flexible Permit
amendments are exempted from the
Chapter 39 public notice provisions as
discussed in Section V.A.3. of the TSD
accompanying this proposed action at
section IV.B.3.
6. The TCEQ files the Executive
Director’s (ED) draft permit and
preliminary decision, the preliminary
determination summary and air quality
analysis with the chief clerk and the
clerk posts this information on the
TCEQ’s Web site. See 30 TAC Section
39.419(e).
7. The comment period runs for 30
days after the last publication of the
NAPD discussed in Step 5. See 30 TAC
Section 55.152(a)(1).
8. A public meeting is held if the ED
determines there is a substantial or
significant degree of public interest; if
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8381
the meeting is requested by a member of
the legislature representing the general
area of the proposed facility/
modification; if a public meeting is
otherwise required by law. See 30 TAC
Section 55.154(c).
9. The ED prepares a response to all
comments received. See 30 TAC Section
55.156(b)(1).
10. The ED files the response to
comments with the chief clerk as soon
as practicable, but not later than 60 days
after the end of the comment period. See
30 Section TAC Section 55.156(b)(3).
11. The chief clerk will mail or
transmit the ED decision and the RTC to
the applicant, any person who
submitted comments and any person on
the mailing list for the permit action.
See 30 TAC Section 55.156(c).
12. The ED will take final action on
the permit application within 150 days
of receipt of a Flexible Permit
amendment application or 180 days for
a new Flexible Permit application. The
TCEQ’s one-year clock is based on the
completion of the technical review and
the publication of the NAPD as
provided in Step 5. See 30 TAC 116.714,
which cross-references the requirements
at 30 TAC Section 116.114(c)(3).
2. Analysis of the Submitted Public
Participation Rules for Flexible Permits
as Minor NSR Requirements
The Texas public participation
requirements for Flexible Permit
applications are outlined at 30 TAC
Section 39.402 and apply to the
following types of permits.
• New flexible permits under Chapter
116, Subchapter G—30 TAC Section
39.402(a)(4).
• Amendments to flexible permits
under Chapter 116, Subchapter G when
the amendment involves:
(a) A change in character of emissions
or release of an air contaminant not
previously authorized under the permit
(i.e., change in control method or an
increase in emission rate)—30 TAC
Section 39.402(a)(5)(A);
(b) The total emissions increase from
all facilities to be authorized under the
amended Flexible Permit at a facility
not affected by THSC, section 382.020,11
exceeds the State’s established ‘‘de
minimis’’ levels—30 TAC Section
39.402(a)(5)(B);
(c) The total emissions increase from
all facilities to be authorized under the
amended permit at a facility affected by
THSC, section 382.020, exceeds the
State’s established ‘‘insignificant’’ levels
11 THSC, § 382.020 establishes emission control
requirements for selected agricultural facilities such
as cotton gins, corn mills, grain elevators, peanut
processing, or rice drying facilities.
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found in 30 TAC Section
39.402(a)(5)(C); or
(d) Other minor amendments to
Flexible Permits where the Executive
Director determines reasonable
likelihood for interest or impact—30
TAC Section 39.402(a)(5)(D)(i)–(iv).
Despite the thresholds established in
30 TAC Sections 39.402(a)(5)(B) and (C),
the TCEQ rules at 30 TAC Section
39.402(a)(5)(D) vest the TCEQ Executive
Director with the authority to require
public notice for an otherwise exempt
Flexible Permit amendment if there is
(1) reasonable likelihood of significant
public interest in the activity, (2)
reasonable likelihood for emissions
impact at a nearby receptor, (3)
reasonable likelihood of high nuisance
potential from the operation of the
facility, or (4) the application involves
a facility in the lowest classification
under Texas Water Code, Sections 5.753
and 5.754 and the Compliance History
Rules at 30 TAC Chapter 60. This type
of Director’s Discretion is appropriate
for a minor source program because the
exercise of that discretion is bounded by
the four criteria identified above, and
because the discretion allows the
director to increase requirements rather
than to authorize exceptions to those
requirements. See 78 FR at 12585–86
and the discussion above at IV, A, 2.
The notice requirements for each type
of Flexible Permit application listed
above are generally the same, meaning
that an application for a new Flexible
Permit and an application to amend a
Flexible Permit will have the same
public notice requirements. The
submitted Texas rules generally provide
that all applications for new Flexible
Permits and applications for qualifying
Flexible Permit amendments will go
through public notice using the Texas
NORI and NAPD notices. Therefore, the
public will receive notice of the
application and have the opportunity to
comment on the draft permit and
accompanying technical information.
Note that the applicant is legally
responsible for the publication of the
NORI and NAPD, using the specific
notice text provided through regulations
by the TCEQ. The applicant is also
legally responsible for providing copies
of the public notice documents to the
EPA Regional Office, local air pollution
control agencies with jurisdiction in the
county, and air pollution control
agencies of nearby states that may be
impacted by the proposed new source or
modification. The NORI and NAPD both
identify locations where materials,
including the draft permit and all
technical materials supporting the
decision, will be made available for
public review. The TCEQ will respond
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to each comment received when making
a final permit decision. The TCEQ will
also provide opportunity for a public
meeting on the permit application if
requested. On January 6, 2014, the EPA
approved the Texas Public Participation
rule, which includes the general notice
requirements of the NORI and NAPD as
consistent with federal requirements at
40 CFR 51.160 and 51.161. See 79 FR
551. See docket EPA–R06–OAR–2010–
0612 in www. regulations.gov. EPA
views the public participation
applicability provisions at 30 TAC
Sections 39.402(a)(4) and (a)(5) as
integral to the functionality and
implementation of the Texas Flexible
Permits Program. As such, it is
inappropriate to give full approval for
these public participation provisions
that apply to the Texas Flexible Permits
Program until the underlying program is
fully approved. Additionally, fully
approving these public participation
provisions without full approval of the
underlying Flexible Permits Program
may create confusion for the public and
the regulated community. Therefore, we
propose to find it appropriate to
conditionally approve the notice
provisions consistent with our actions
on the underlying Flexible Permits
Program. In today’s notice we are
proposing to conditionally approve the
applicability requirements at 30 TAC
Sections 39.402(a)(4) and (a)(5) that
require an applicant to follow the NORI
and NAPD processes for applications for
new and amended Flexible Permits.
3. Minor NSR Public Notice
Requirements Specific to Two Types of
Minor NSR Flexible Permit Amendment
Applications
As explained above, the submitted
Texas public participation provisions
create a tiered program, wherein two
certain types of Minor NSR Flexible
Permit amendment applications that
have been defined by TCEQ as ‘‘de
minimis’’ or ‘‘insignificant’’ will not
automatically require public notice. The
following outlines the specific
thresholds that qualify as ‘‘de minimis’’
or ‘‘insignificant’’ under the revised
rules, and the basis for TCEQ’s
determination.
i. Identification of the Minor NSR
Flexible Permits Emission Thresholds
and Affected Source Populations
• Thresholds are only used for
Flexible Permit amendment
applications. Applications for new
Minor NSR Flexible Permits are
required by these submitted rules to go
through the public procedures of the
NORI and NAPD. The applications for
amendments to Flexible Permits are
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further divided based on the amount of
emission increases at issue and whether
the facility is affected by THSC section
382.020.
• THSC section 382.020 applies to
agricultural facilities such as corn mill,
cotton gin, feed mill, grain elevator,
peanut processing facility or rice drying
facility.
Æ 30 TAC Section 39.402(a)(5)(B)
provides that if the application for the
amendment of a Flexible Permit is not
for an affected agricultural facility then
the public notice provided through the
NORI and NAPD apply, unless the total
emissions increase from all facilities
authorized in the Flexible Permit
amendment does not exceed any of the
following levels established by the State
as ‘‘de minimis’’ levels:
D 50 tons per year (TPY) carbon
monoxide (CO)
D 10 TPY sulfur dioxide (SO2)
D 0.6 TPY lead (Pb)
D 5 TPY of NOX, volatile organic
compounds (VOC), particulate matter
(PM), or any other contaminant except
carbon dioxide, water, nitrogen,
methane, ethane, hydrogen, and oxygen.
Æ 30 TAC Section 39.402(a)(5)(C)
provides that if the amendment for a
Flexible Permit is for an affected
agricultural facility, then the public
notice requirements of the NORI and
NAPD apply, unless the total emissions
increase from all authorized facilities in
the Flexible Permit amendment does not
exceed any of the following thresholds
established by the State as
‘‘insignificant’’ thresholds:
D 250 TPY CO or NOX
D 25 TPY of VOC, SO2, PM or any
other air contaminant except carbon
dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen.
D A new major stationary source or
major modification threshold as defined
in 30 TAC Section 116.12 of this title
D A new major stationary source or
major modification threshold, as
defined in 40 CFR 52.21 under the PSD
requirements
• If the Flexible Permit amendment
application includes proposed
emissions increases of any air
contaminant above the identified
threshold then the amendment
application is required to go through
notice pursuant to Chapter 39
requirements. That means the Flexible
Permit amendment application will go
through the NORI and NAPD
publication process.
ii. Discussion of the ‘‘De minimis’’ and
‘‘Insignificant’’ Thresholds for Minor
NSR Flexible Permit Amendments
The thresholds established by the
State as ‘‘de minimis’’ thresholds at 30
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TAC Section 39.402(a)(5)(B) apply to all
minor NSR Flexible Permit amendment
applications, except those for affected
agricultural facilities. The thresholds
selected by the State at 30 TAC Section
39.402(a)(5)(C), and called
‘‘insignificant’’ thresholds, apply only to
minor NSR Flexible Permit amendment
applications for affected agricultural
facilities.
Within the scope of the Texas Minor
NSR program, the ‘‘de minimis’’ and
‘‘insignificant’’ thresholds distinguish
those minor Flexible Permit amendment
applications that require full review
from those that may not. But, the
thresholds do not affect any part of the
technical review of these minor NSR
Flexible Permit amendment
applications or the requirement to
comply with other requirements such as
application of required control
technology, reporting when required to
the emissions inventory, and analysis of
monitoring data. Additionally, being
below the ‘‘de minimis’’ or
‘‘insignificant’’ threshold does not
override any notice or technical
requirements for PSD, NNSR or new
Minor NSR Flexible Permit
applications.
In our January 6, 2014, final
rulemaking approving Texas public
participation, we found that TCEQ
provided an adequate demonstration to
show that their selected ‘‘de minimis’’
and ‘‘insignificant’’ thresholds for Minor
NSR permitting are adequate to meet
federal requirements for Minor NSR. See
79 FR 551. The State’s demonstration is
also applicable to the thresholds as they
apply to minor amendments to existing
Flexible Permits. TCEQ also provided
supplemental information concerning
the Flexible Permit holders’ use of these
thresholds since they were adopted by
the State.12 13 The supplemental data are
also included in the docket for this
rulemaking. Our analysis of this
supplemental information demonstrates
that from Fiscal Year 1994 through
Fiscal Year 2013, the TCEQ issued only
one Flexible Permit to a facility that
would be classified as an agricultural
facility under THSC 382.020. This
agricultural facility never applied for a
flexible permit amendment and has
subsequently gone through the de-flex
process. Consequently, there are no
existing Flexible Permits for affected
agricultural sources; therefore the
‘‘insignificant’’ thresholds are not
12 Email from Janis Hudson, TCEQ to Adina
Wiley, EPA titled ‘‘Flexible Permit Amendment
Applications’’ dated September 11, 2013.
13 Email from Janis Hudson, TCEQ to Adina
Wiley, EPA, titled ‘‘Flexible Permit Amendment
Applications—Clarification’’ dated October 23,
2013.
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available for use for any current flexible
permit holders. Additionally, this
supplemental information demonstrates
that prior to Texas Fiscal Year 2002,
flexible permit amendments issued to
non-agricultural facilities did not go
through public notice. Fiscal Year 2002
represents the time period where TCEQ
adopted and implemented the ‘‘de
minimis’’ and ‘‘insignificant’’
thresholds. Since the time of adoption
and implementation at the state level of
the ‘‘de minimis’’ and ‘‘insignificant’’
thresholds in Fiscal Year 2002, the
TCEQ records indicate that 326
amendments to flexible permits have
been issued. Of the 326 applications for
amendments to Flexible Permits, 135
applications have been required to go
through notice due to the application of
the thresholds. Our analysis of this
supplemental information leads us to
conclude that the application of the ‘‘de
minimis’’ and ‘‘insignificant’’ thresholds
specific to applications for Flexible
Permit amendments increases the
opportunity for public notice and
participation in Texas. In the TSD for
this rulemaking, we have included
EPA’s full analysis of the State’s
rationale for these thresholds and a
discussion of the supplemental data
provided by TCEQ. We propose to find
this demonstration meets 40 CFR 51.160
and 51.161.
4. How do the Texas public notice
provisions for applications for new and
amended flexible permits address the
concerns identified in EPA’s November
26, 2008 proposed limited approval/
limited disapproval for Texas public
participation?
On November 26, 2008, EPA
identified two deficiencies in the Texas
public participation rules specific to
applications for new Flexible Permits
and amendments to Flexible Permits.
See 73 FR 72001, at 72008. Below we
reiterate the deficiencies and discuss
how the revised Texas public
participation process for applications
for new Flexible Permits and
amendments to Flexible Permits
addresses our concerns.
• For initial issuance of a flexible
permit to establish a minor NSR
applicability cap or an increase in a
flexible permit cap, the rules do not
require 30-day notice and comment on
information submitted by the owner or
operator and the agency’s analysis of the
effect of the permit on ambient air
quality, including the agency’s proposed
approval or disapproval as required by
40 CFR 51.161.
The public participation requirements
specific to applications for new Flexible
Permits and amendments to Flexible
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Permits at 30 TAC Sections 39.402(a)(4)
and (a)(5) address the deficiency
identified on November 26, 2008. All
applications for new Flexible Permits
are required at 30 TAC Section
39.402(a)(4) to go through public notice
as specified in Chapter 39; which means
that all applications for new Flexible
Permits must publish the NORI
pursuant to 30 TAC Section 39.418 and
the NAPD pursuant to 30 TAC Section
39.419. The public notice process for a
new Flexible Permit will run through
two different publication dates. The first
public notice announces the company
has applied to the TCEQ for a flexible
permit. This date is initially published
first using the NORI. The second public
notice announces the release of the draft
permit. The entire public notice period
runs through the end of the second 30day comment period on the draft
permit. The date may be extended
through the date of any public meeting
that was scheduled wherein the public
can review TCEQ’s analysis and
preliminary determination. All
applications for amendments to Flexible
Permits are required at 30 TAC Section
39.402(a)(5) to go through public notice
as specified in Chapter 39 using the
NORI and NAPD process if the
amendment will exceed the ‘‘de
minimis’’ or ‘‘insignificant’’ thresholds.
• Where PSD and NNSR terms and
conditions are modified or eliminated
when the permit is incorporated into a
flexible permit, the rules do not require
public participation consistent with 40
CFR 51.161 and 51.166(q).
As explained in Section IV.A.4 of this
proposed rulemaking, the TCEQ
adopted amendments to 30 TAC Section
116.711(2)(M)(vii) to specify that the
flexible permit application must
identify any terms, conditions, and
representations in any Subchapter B
permit which will be superseded by or
incorporated under a flexible permit
and provide an analysis of how the
conditions and control requirements of
a Subchapter B permit will be carried
forward in the proposed flexible permit.
This amendment to the Flexible Permit
Program was submitted as a SIP revision
by the TCEQ on October 21, 2013, and
will ensure that the Flexible Permit
Program is for minor NSR actions only
and will not circumvent the major
source requirements.
Section 30 TAC Section 39.402(a)(4)
provides that an application for a new
flexible permit must go through Chapter
39 public notice. Therefore, where a
new flexible permit application will
supersede or incorporate any term,
condition, and/or representation of a
Subchapter B permit, this information
will be available for review and
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comment during the required NORI and
NAPD publication for an application for
a new flexible permit. Similarly, 30 TAC
Section 39.402(a)(5)(A)–(C) requires that
an application for an amendment to a
flexible permit application must go
through Chapter 39 public notice if the
amendment is for an air contaminant
not previously authorized or the
amendment exceeds the identified ‘‘de
minimis’’ or ‘‘insignificant’’ thresholds.
The TCEQ Executive Director also has
the discretion under 30 TAC Section
39.402(a)(5)(D) to require notice for an
application for a Flexible Permit
amendment that would not otherwise be
required to provide notice.
5. Proposed Findings Specific to the
Texas Public Participation Provisions
for the Flexible Permit Program
EPA proposes to find that TCEQ’s
public participation program
requirements specific to applications for
new Flexible Permits and applications
for amendments to Flexible Permits at
30 TAC Sections 39.402(a)(4) and (5)
satisfy the provisions of 40 CFR
51.160(e) and 51.161. Moreover, we also
propose to find that the TCEQ revised
rules for discretionary public notice for
new Flexible Permits and applications
for amendments to Flexible Permits are
approvable, because the provisions
adequately confine Executive Director
discretion by authorizing the use of
discretion under specified criteria that
are consistent with the goals and
purposes of the Act to provide an
adequate opportunity for informed
public participation. EPA is proposing
to find that the submitted Texas public
participation regulations identifying the
applicant as the legally responsible
party also meet the requirements to
provide opportunity for public comment
and for information availability at 40
CFR 51.161, because the NORI and
NAPD both identify locations where
materials, including the draft permit
and all technical materials supporting
the decision will be made available for
public review and the required
information is submitted to EPA.
Finally, as explained above, we
propose to find that the submitted
provisions address all deficiencies
specific to public notice for Flexible
Permits that we previously cited in our
November 26, 2008, proposed limited
approval/limited disapproval of Texas
public notice requirements. However,
EPA views the public participation
applicability provisions at 30 TAC
Sections 39.402(a)(4) and (a)(5) as
integral to the functionality and
implementation of the Texas Flexible
Permits Program. As such, it is
inappropriate to give full approval for
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these public participation provisions
that apply to the Texas Flexible Permits
Program until the underlying program is
fully approved. Additionally, fully
approving these public participation
provisions without full approval of the
underlying Flexible Permits Program
may create confusion for the public and
the regulated community. Therefore, we
propose to find it appropriate to
conditionally approve the notice
provisions consistent with our actions
on the underlying Flexible Permits
Program. Accordingly, we propose
conditional approval of the Texas public
notice provisions at 30 TAC Sections
39.402(a)(4) and (a)(5) for applications
for new Flexible Permits and
applications for amendments to Flexible
Permits as submitted on July 2, 2010.
Additionally, we propose conditional
approval of the public participation
requirement in the Flexible Permit
Program at 30 TAC Section 116.740 as
initially submitted on November 29,
1994; and further revised on July 22,
1998; October 25, 1999; and October 21,
2013.
C. Does proposed approval of the Texas
Flexible Permit Program interfere with
attainment, reasonable further progress,
or any other applicable requirement of
the Act?
Under Section 110(l) of the CAA, the
regulations submitted as a SIP revision
adopting and implementing the Texas
Flexible Permit Program must meet the
procedural requirements of Section
110(l) by demonstrating that the State
followed all necessary procedural
requirements such as providing
reasonable notice and public hearing of
the SIP revision. Additionally, the SIP
revision must demonstrate that the
adopted rules will not interfere with any
applicable requirement concerning
attainment and reasonable further
progress, or any other applicable
requirement of the CAA. We propose to
find that the TCEQ satisfied all
requirements pursuant to Section 110(l).
See Section IV.A. of the accompanying
TSD developed in support of this action
including the sections Administrative
Materials (2.1) and Technical Support
(2.2).
The regulation of minor sources is a
requirement of the CAA and EPA’s
regulations at 40 CFR 51.160–51.164. As
discussed in this proposed action and in
the accompanying TSD, EPA proposes
that the Flexible Permit Program as
submitted October 21, 2013, satisfies the
minimum requirements for minor NSR
programs, including adequate
provisions for enforceability and public
participation to ensure protection of the
control strategy and any applicable
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NAAQS. The Flexible Permit Program
also contains sufficient safeguards to
prevent circumvention of major NSR
permitting requirements. Therefore, we
propose that the Flexible Permit
Program is protective of the NAAQS and
applicable control strategy requirements
and satisfies the requirements of 110(l)
of the Act.
D. TCEQ’s Interpretive Letter
Below are excerpts from the December
9, 2013, interpretive letter (letter)
provided by the TCEQ. This letter was
requested by EPA to clarify perceived
ambiguity in certain provisions in the
SIP submission and to also describe
how the program will be implemented.
The full text of the letter can be found
in the Docket for this action. We believe
this letter clarifies the following aspects
of the Flexible Permit Program and
supports our determination that the
Submittal is conditionally approvable.
• EPA asked for clarification on how
director discretion is used in the rule in
establishing monitoring and
recordkeeping. The letter states that
director discretion does not act as a
variance to the monitoring and
recordkeeping requirements. Texas
asserts in its letter that ‘‘TCEQ does not
allow an exemption or waiver from
these statutory and regulatory
monitoring and recordkeeping
requirements.’’ They further assert that
the ‘‘monitoring condition is bounded
by the requirement to be based on sound
science and meet generally acceptable
scientific procedures for data quality
and manipulation. The sampling
methods and procedures are those
generally recognized in the field of air
pollution or new methods or procedures
with demonstrated scientific
applicability.’’ Whatever the
requirements the Executive Director
imposes, permit holders must maintain
information ‘‘sufficient to demonstrate
continuous compliance’’ with the
emission caps and individual limits. 30
TAC Section 116.715(c)(6). We agree
with TCEQ that this ensures the
Program’s enforceability and conclude
that the information in the letter
supports our proposed conditional
approval.
• EPA asked for clarification
regarding how pollution control
equipment should be maintained and
operated during startup/shutdown. The
State explained in its letter that the
process works as follows: ‘‘The Flexible
Permit Program (FPP) requires controls
to be operated during normal facility
operation. This rule may be construed to
require operation of emission controls
only during routine facility operations,
potentially exempting sources during
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startups or shutdowns (not
malfunctions), but that is accurate only
to the extent that the permit only
authorizes routine operations. Emission
limits for startups and shutdowns,
appropriately modeled during permit
development, may be authorized and be
subject to a separate emissions cap in
the flexible permit. The TCEQ does not
authorize malfunctions, and therefore
those emissions are not subject to any
use of control equipment, although the
control equipment must be used where
feasible, to minimize emissions where
possible during periods of unauthorized
emissions. Excess emissions that occur
during unauthorized startups,
shutdowns or malfunctions are not
excused by the FPP.’’ We agree with
TCEQ that this interpretation of their
rule adequately addresses startups,
shutdowns, and malfunctions and
conclude that the information in the
letter supports our proposed conditional
approval. EPA asked for clarification on
how the Texas SIP approved alternative
permitting mechanisms may be used to
alter a flexible permit. Also we wanted
to understand in detail that any such
changes, using alternative permit
mechanisms (Standard permits or
Permits by Rule (PBR)), would not be
allowed if they violate the terms of an
existing flexible permit. For example, if
the flexible permit contains a 100 tpy
cap then a facility (see Section II.M.
regarding an explanation of how TCEQ
defines ‘‘facility’’) should not be able to
use a PBR to get authorization to
increase emissions by 10 tons without
amending the flexible permit. The State
responded, in part, that ‘‘Either of these
authorizations may be used for facilities
that are subject to a flexible permit cap,
but the Standard Permit or PBR limits
must be contained within the flexible
permit cap, and cannot be used to relax
or minimize any existing permit
condition (such as recordkeeping,
monitoring, reporting, testing, BACT,
etc.). If one of these authorizations was
allowed without being part of the
emissions subject to the cap, such an
approach would circumvent the basis
used to establish the flexible permit,
and could potentially affect the control
technology, monitoring and testing
requirements that were used to establish
the emission cap.’’ In addition, Texas
explained that ‘‘standard permits and
PBRs cannot be used to alter compliance
obligations in a flexible permit. Further,
if more than one state or federal rule or
regulation or permit conditions are
applicable, the most stringent limit or
condition shall govern and be the
standard by which compliance shall be
demonstrated’’. We agree with TCEQ
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that this clarification about how
alternative permitting mechanisms may
be used to alter a flexible permit
resolves our concern and conclude that
the information in the letter supports
our proposed conditional approval. EPA
asked for clarification on the
relationship between an issued permit
and the permit application. Specifically,
do the Texas rules require the permit
application be updated with the permit
terms so there is never a situation where
compliance with the permit application
would not be the same as compliance
with the permit? In response Texas
stated, ‘‘The permit application, and all
the representations in it, is part of the
permit when it is issued and as such is
enforceable. If more than one state or
federal rule or regulation or flexible
permit condition are applicable, then
the most stringent limit or condition
shall govern and be the standard by
which compliance shall be
demonstrated. The permit application is
not updated after permit issuance
except as necessary to demonstrate that
the facilities can comply with the
performance specified in the permit.’’ In
addition, Texas stated, ‘‘As is the case
with all TCEQ air quality permits, the
permit application, which is part of the
issued permit, continues to be read
together with any permit changes made
via an alteration or amendment.’’ We
agree with TCEQ that this clarification
about the relationship between an
issued permit and the permit
application resolves our concern and
conclude that the information in the
letter supports our proposed conditional
approval.
• EPA asked for clarification on how
the State uses BACT to create the
emissions cap. We specifically
requested an interpretation on how
BACT will be established and
implemented for facilities (see
discussion on TCEQ’s definition of
‘‘facility’’) constructed prior to 1972
(commonly referred to as grandfathered
facilities); facilities constructed after
1971 that will be under an emissions
cap; and facilities that are subject to
PSD permit requirements. In relevant
part, Texas stated that with regard to
grandfathered facilities, there are no
longer any grandfathered facilities, for
state permitting purposes, in Texas. At
the time the Texas Clean Air Act
(TCAA) was amended in 2001 to require
these facilities to be permitted (or shut
down), each had to install BACT that
was at least ten years old. For facilities
constructed after 1971, the TCEQ’s NSR
permit rules require new or modified
major or minor sources meet BACT
regardless of whether there is or will be
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8385
a cap in a minor NSR permit. The cap
is established using a current BACT
analysis, and, although minor sources
may not have to add controls, removal
of existing controls (which would be
backsliding under the SIP) is not
allowed. Therefore, all facilities under
the cap must meet overall/collective
BACT. When a new facility is
authorized, the new facility must meet
the current BACT level at the time it is
authorized regardless of whether it is
subject to an emissions cap. For
facilities that are subject to a cap, BACT
is evaluated for any new facility that is
proposed to be added to what is already
authorized under the cap. When
existing facilities are modified, and the
existing facilities are authorized under
an existing emissions cap, BACT is
reviewed and the cap is adjusted
accordingly. Emission limitation caps
are developed based on the potential to
emit after the application of BACT (or,
if applicable, lowest achievable
emission rate) emission controls.
Further, allowable emission limits,
expressed as a cap for an individual
facility, are expressed in terms of annual
(tons per year) or short-term (e.g.,
pounds per hour) units. BACT is
typically expressed in terms of a mass
emission calculation, such as pounds
per million British thermal units (lb/
MMBtu) or parts per million (ppm).
Establishment of caps after application
of the appropriate control technology
does not relax the control technology.’’
We agree with TCEQ that this
clarification about how BACT is used to
create an emissions cap resolves our
concern and conclude that the
information in the letter supports our
proposed conditional approval.
• EPA asked for clarification on how
the Flexible Permit Program relates to
major source permitting. In response
Texas stated, ‘‘facilities subject to PSD
or non-attainment NSR requirements
must meet control technology
determined in accordance with SIP
approved 30 TAC Chapter 116,
Subchapter B requirements and
removal, avoidance or circumvention of
control equipment is not allowed for
facilities subject to PSD or nonattainment NSR. We agree with TCEQ
that this interpretation further supports
that the Flexible Permit Program does
not allow circumvention of major NSR
and conclude that the information in the
letter supports our proposed conditional
approval.
E. Summary of EPA’s Evaluation of the
Flexible Permit Program as a Minor NSR
Program
For the reasons presented above, EPA
finds that the Flexible Permit Program,
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as submitted on October 21, 2013, is
limited to minor NSR permitting. EPA
finds that the program satisfies the
federal requirements for minor NSR
programs and contains sufficient
enforceable safeguards to ensure that the
NAAQS and applicable control
strategies are protected. Further, the
Flexible Permit Program prevents
circumvention of major NSR
requirements by stating at 30 TAC
Section 116.716(c)(1)(A) that if a new
source or modification subject to either
a flexible permit or flexible permit
amendment is subject to major NSR
requirements, either PSD or NNSR,
under 30 TAC Chapter 116, Subchapter
B, then the major NSR permitting
requirements will apply.
Therefore, the EPA is proposing to
conditionally approve the Flexible
Permit Program based on the
commitment from the TCEQ to adopt
and submit Flexible Permit Program SIP
revisions by November 30, 2014, that
will reformat and organize the full
program into a cohesive,
understandable, and enforceable
program as TCEQ proposed to do in its
December 9, 2013, commitment letter.
V. Proposed Action
EPA proposes to conditionally
approve the Texas Flexible Permit
Program that was originally submitted
as a revision to the Texas Minor NSR
SIP Permit Program on November 29,
1994. We also proposed to conditionally
approve the Texas Flexible Permit
Program as further amended on March
13, 1996; July 22, 1998; October 25,
1999; September 11, 2000; April 12,
2001; July 31, 2002, September 4, 2002;
October 4, 2002; September 25, 2003;
July 2, 2010; October 5, 2010; and
October 21, 2013. Our proposed
conditional approval of the Texas
Flexible Permit Program is conditioned
on the TCEQ adopting and submitting a
SIP revision addressing the December 9,
2013, commitment letter provided by
the TCEQ. The commitment states that
TCEQ will submit amended rules that
are properly structured and consistent,
as discussed earlier, with the actions
taken by the Commission on September
24, 2013, and with rulemaking
requirements of the Texas
Administrative Procedure Act by
November 30, 2014. EPA has made the
preliminary determination that the
Flexible Permit Program is conditionally
approvable as a minor NSR permit
program in accordance with the CAA
Section 110 and part C, and EPA
regulations at 40 CFR 51.160–51.164 for
the reasons presented above and in our
accompanying TSD. EPA invites the
public to make comments on all aspects
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of the EPA proposed conditional
approval of the Texas Flexible Permit
Program, and to submit them by the
Date listed above.
EPA proposes to conditionally
approve the specific revisions to the
Texas SIP identified below.
• Revisions to 30 TAC Section
39.402(a)(4) and (a)(5)—Applicability to
applications for new and amended
Flexible Permits—submitted July 2,
2010.
• Revisions to 30 TAC Section
116.10—General Definitions—submitted
March 13, 1996; Repealed, adopted and
submitted July 22, 1998; Redesignated
and submitted October 4, 2002;
Amended 116.10(9)(E)—submitted
October 5, 2010.
• Revisions to 30 TAC Section
116.13—Flexible Permit Definitions—
submitted November 29, 1994;
Repealed, adopted and submitted July
22, 1998; Adopted revisions submitted
October 21, 2013.
• Revisions to 30 TAC Section
116.110—Applicability—submitted
November 29, 1994; Section
116.110(a)(3) Repealed, adopted and
submitted July 22, 1998.
• Revisions to 30 TAC Section
116.710—Applicability—submitted
November 29, 1994; Revised and
submitted July 22, 1998; Revised and
submitted September 11, 2000.
• Revisions to 30 TAC Section
116.711—Flexible Permit Application—
submitted November 29, 1994; Revised
and submitted July 22, 1998; Added,
redesignated and submitted April 12,
2001; Designated, added, revised and
submitted September 4, 2002; and
Adopted revisions submitted October
21, 2013.
• Revisions to 30 TAC Section
116.714—Application Review
Schedule—submitted November 29,
1994; Revised and submitted July 22,
1998.
• Revisions to 30 TAC Section
116.715—General and Special
Conditions—Submitted November 29,
1994; Revised and submitted July 22,
1998; Revised and submitted September
11, 2000; Revised and submitted April
12, 2001; Revised and submitted
September 4, 2002; Revised and
submitted September 25, 2003.
• Revisions to 30 TAC Section
116.716—Emission Caps and Individual
Emission Limitations—submitted
November 29, 1994; and Adopted
revisions submitted October 21, 2013.
• Revisions to 30 TAC Section
116.717—Implementation Schedule for
Additional Controls—submitted
November 29, 1994.
• Revisions to 30 TAC Section
116.718—Significant Emission
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Increase—submitted November 29,
1994.
• Revisions to 30 TAC Section
116.720—Limitation on Physical and
Operational Changes—submitted
November 29, 1994.
• Revisions to 30 TAC Section
116.721—Amendments and
Alterations—submitted November 29,
1994; Revised and submitted July 22,
1998; Revised and submitted September
11, 2000.
• Revisions to 30 TAC Section
116.722—Distance Limitations—
submitted November 29, 1994; Revised
and submitted September 11, 2000.
• 30 TAC Section 116.730—
Compliance History—submitted
November 29, 1994; Withdrawn October
21, 2013.
• Revisions to 30 TAC Section
116.740(a)—Public Notice and
Comment—submitted November 29,
1994; Designated, added and submitted
July 22, 1998; Revised and submitted
October 25, 1999; and Adopted
revisions submitted October 21, 2013.
• Revisions to 30 TAC Section
116.750—Flexible Permit Fee—
submitted November 29, 1994; Revised
and submitted July 22, 1998; Revised
and submitted September 11, 2000;
Revised and submitted October 4, 2002;
and Adopted revisions submitted
October 21, 2013.
• Revisions to 30 TAC Section
116.760 Flexible Permit Renewal—
submitted November 29, 1994.
• Revisions to 30 TAC Section
116.765—Compliance Schedule—
submitted October 21, 2013.
Those regulatory sections that were
identified as being withdrawn by the
TCEQ in the October 21, 2013, submittal
and identified in the cover letter to the
package are also identified below:
• 30 TAC Section 116.711(3) (last
sentence only) and (11), as amended
August 21, 2002, and all earlier versions
withdrawn October 21, 2013.
• Adopted revisions submitted
October 21, 2013. 30 TAC Section
116.715(a), only with regard to the text
‘‘or Subchapter C of this chapter
(relating to Hazardous Air Pollutants:
Regulations Governing Constructed or
Reconstructed Major Sources (FCAA
Section 112(g), 40 CFR Part 63))’’, as
amended August 21, 2002, and all
earlier versions withdrawn on October
21, 2013.
• 30 TAC Section 116.715(c)(6) as
amended August 20, 2003, and all
earlier versions withdrawn October 21,
2013. 30 TAC Section 116.716(a) and
(d), as adopted November 16, 1994,
withdrawn October 21, 2013.
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• 30 TAC Section 116.730 adopted
November 16, 1994, and repealed and
readopted June 17, 1998.
• 30 TAC Section 116.740(b), adopted
June 17, 1998, and amended September
2, 1999, withdrawn October 21, 2013. 30
TAC Section 116.803, adopted August
21, 2002, withdrawn October 21, 2013.
If the conditional approval of the
Texas Flexible Permit Program is
finalized following EPA’s review of
comments received and the TCEQ
satisfies the terms of the commitment
letter, the TCEQ will then submit a SIP
revision to the EPA for review which
must contain all the terms of the
commitment letter. If the EPA
determines that the TCEQ has met all
the conditions, we will make such a
finding in the Federal Register.
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
See, 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds and Incorporation
by reference.
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Authority: 42 U.S.C. 7401 et seq.
Dated: January 29, 2014.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2014–03119 Filed 2–11–14; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 225, and 252
RIN 0750–AH94
Defense Federal Acquisition
Regulation Supplement: Clauses With
Alternates—Foreign Acquisition
(DFARS Case 2013–D005)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
create separate prescriptions for the
basic clause as well as each alternate in
each set of foreign acquisition-related
provisions/clauses with one or more
alternates. In addition, the proposed
rule would include the full text of each
provision or clause alternate.
DATES: Comment Date: Comments on
the proposed rule should be submitted
SUMMARY:
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8387
in writing to the address shown below
on or before April 14, 2014, to be
considered in the formation of a final
rule.
Submit comments
identified by DFARS Case 2013–D005,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2013–D005’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2013–
D005.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2013–
D005’’ on your attached document.
Æ Email: dfars@mail.mil. Include
DFARS Case 2013–D005 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP/DARS, Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Telephone 571–372–6106.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Background
DoD is proposing to amend the
DFARS to add a separate prescription
for the basic clause as well as each
alternate. In addition, the proposed rule
would include the full text of each
provision/clause alternate. For clarity,
the preface of the alternate will continue
to explain what portions of that
alternate are different from the basic
provision/clause. Separate prescriptions
for the basic and alternates of DFARS
provisions and clauses will facilitate the
use of automated contract writing
systems. The proposed rule will not
revise the prescriptions in any
substantive way or change the
applicability of the provisions/clauses
or their alternates.
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]]>Agencies
[Federal Register Volume 79, Number 29 (Wednesday, February 12, 2014)]
[Proposed Rules]
[Pages 8368-8387]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03119]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2013-0542; FRL-9906-37-Region 6]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to the New Source Review State Implementation Plan; Flexible
Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
conditionally approve revisions to the Texas New Source Review (NSR)
State Implementation Plan (SIP) submitted by the Texas Commission on
Environmental Quality (TCEQ) \1\ and its predecessor, the Texas Natural
Resource Conservation Commission (TNRCC), on November 29, 1994; March
13, 1996; July 22, 1998; October 25, 1999; September 11, 2000; April
12, 2001; July 31, 2002, September 4, 2002; October 4, 2002; September
25, 2003; July 2, 2010; October 5, 2010; and October 21, 2013. These
revisions to the Texas SIP establish the Flexible Permit Program. The
flexible permit program is a minor NSR permit program which functions
as an alternative to the traditional preconstruction permit program
that is authorized in Title 30 of the Texas Administrative Code (30
TAC) Chapter 116, Subchapter B. The flexible permit program is intended
to eliminate the need for owners or operators of participating
facilities to submit an amendment application each time certain types
of operational or physical changes are made at a permitted facility.
EPA is proposing to conditionally approve the Flexible Permit Program
as initially submitted in November 1994 and amended through the October
21, 2013, as consistent with federal requirements for minor NSR
programs. Final approval of the Texas Flexible Permit Program is
contingent upon TCEQ adopting and submitting to EPA an approvable SIP
revision addressing the commitments made by the TCEQ in its October 21,
2013, Flexible Permits Commitment Letter. EPA is proposing this action
under Section 110 and part C of the Clean Air Act (CAA or the Act).
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\1\ On September 1, 2002, the Texas Legislature (House Bill
2912) formally changed the name of Texas Natural Resource
Conservation Commission to the Texas Commission on Environmental
Quality.
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DATES: Comments must be received on or before March 14, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2013-0542, by one of the following methods:
https://www.regulations.gov. Follow the online instructions
for submitting comments.
Email: Ms. Stephanie Kordzi at kordzi.stephanie@epa.gov.
Fax: Ms. Stephanie Kordzi, Air Permits Section (6PD-R), at
fax number 214-665-6762.
Mail or delivery: Ms. Stephanie Kordzi, Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2013-0542. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through https://www.regulations.gov or email, if you believe that it is
CBI or otherwise protected from disclosure. The https://www.regulations.gov Web site is an ``anonymous access'' system, which
means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through https://www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment along with any disk or CD-ROM
submitted. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters and any form of encryption and should be free of any
defects or
[[Page 8369]]
viruses. For additional information about EPA's public docket, visit
the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment with
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph
below or Mr. Bill Deese at 214-665-7253.
FOR FURTHER INFORMATION CONTACT: Ms. Stephanie Kordzi (6PD-R), Air
Permits Section, Environmental Protection Agency, Region 6, 1445 Ross
Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. Telephone (214) 665-
7520, fax (214) 665-6762, email at kordzi.stephanie@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background for Our Proposed Action
II. Summary of State SIP Submittals for the Flexible Permit Program
A. November 29, 1994 Submittal
B. March 13, 1996 Submittal
C. July 22, 1998 Submittal
D. October 25, 1999 Submittal
E. September 11, 2000 Submittal
F. April 12, 2001 Submittal
G. July 31, 2002 Submittal
H. September 4, 2002 Submittal
I. October 4, 2002 Submittal
J. September 25, 2003 Submittal
K. July 2, 2010 Submittal
L. October 5, 2010 Submittal
M. October 21, 2013 Submittal
N. Overview of the Flexible Permit Program and Establishment of
the Emission Cap
III. What action is EPA proposing?
A. What is a conditional approval?
B. What are the commitments?
IV. EPA's Evaluation of the Texas Flexible Permit Program as a Minor
NSR Program
A. Federal Requirements for Enforceability of the Minor NSR
Program
1. Identifying the New Facilities and/or Modifications for
Inclusion in a Flexible Permit
2. Inclusion of Appropriate Monitoring and Recordkeeping
Requirements in Flexible Permits
3. Additional Elements Specific to Emissions Caps
4. Provisions To Ensure the Flexible Permit Program Is a Minor
NSR Program
5. Provisions To Ensure the Flexible Permit Program Demonstrates
Compliance
B. Federal Requirements for Public Notice of Minor NSR
Permitting
1. Overview of the Texas Public Participation Process for
Applications for New Flexible Permits and Flexible Permit Amendments
2. Analysis of the Submitted Public Participation Rules for
Flexible Permits as Minor NSR Requirements
3. Minor NSR Public Notice Requirements Specific to Two Types of
Minor NSR Flexible Permit Amendment Applications
i. Identification of the Minor NSR Emission Thresholds and
Affected Source Populations
ii. Discussion of the ``De minimis'' and ``Insignificant''
Thresholds for Minor NSR Flexible Permit Amendments
4. How do the Texas Public Notice Provisions for Applications
for New and Amended Flexible Permits address the concerns identified
in EPA's November 26, 2008 Proposed Limited Approval/Limited
Disapproval for Texas public participation?
5. Proposed Findings Specific to the Texas Public Participation
Provisions for the Flexible Permit Program
C. Does proposed approval of the Texas Flexible Permit Program
interfere with attainment, reasonable further progress, or any other
applicable requirement of the act?
D. TCEQ's Interpretive Letter
E. Summary of EPA's Evaluation of the Flexible Permit Program as
a Minor NSR Program
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background for Our Proposed Action
On September 23, 2009, EPA proposed to disapprove revisions to the
SIP submitted by the State of Texas that relate to the Flexible Permit
Program. On July 15, 2010, EPA took final action on that proposal
disapproving Texas' Flexible Permit Program. 75 FR 41312. This
disapproval action is the only action taken by EPA on the flexible
permit program. EPA has never taken any other action to approve the
flexible permit program submittals. Below is a summary of our grounds
for initially disapproving the Flexible Permit Program as a Minor NSR
SIP revision. We originally found that:
It had no express regulatory prohibition clearly limiting
its use to Minor NSR and had no regulatory provision clearly
prohibiting the use of this submitted Program from circumventing the
Major NSR SIP requirements.
It was not an enforceable NSR program.
It lacked requirements necessary for enforcement and
assurance of compliance.
It lacked the necessary more specialized monitoring,
recordkeeping and reporting (MRR) requirements required for this type
of Minor NSR program (a compliance emission cap) to ensure
accountability and provide a means to determine compliance.
The types of monitoring were not specified in the rule.
It lacked specific, established implementation procedures
for establishing the emissions cap in a Minor NSR Flexible Permit.
It did not ensure the terms and conditions of Major NSR
SIP permits are retained. Holders of Major NSR SIP permits were not
prohibited from using the submitted Program's allowable based emissions
cap. The Clean Air Act prohibits the use of an allowable based cap for
Major NSR SIP permittees.
For a more detailed discussion of our rationale for the disapproval
see 75 FR 41312 (July 15, 2010). Upon finalization of the rule several
parties appealed the decision to the Fifth Circuit Court of Appeals.
In July and August of 2010 the State of Texas, Texas Oil & Gas
Association, Texas Association of Manufacturers, and Business Coalition
for Clean Air (BCCA) Appeal Group all filed petitions with the Fifth
Circuit Court of Appeals seeking to overturn EPA's disapproval of the
Flexible Permit Program. During the same time period the Environmental
Defense Fund (``EDF'') and Environmental Integrity Project (``EIP'')
moved for leave to intervene in support of EPA's disapproval. Their
request to intervene was granted by the Court. While the challenge was
pending, the state adopted a modified flexible permits regulation, but
did not submit it to EPA.
On August 13, 2012, the Fifth Circuit Court of Appeals granted the
petitioner's review, vacated our disapproval of the Texas Flexible
Permit Program and remanded the matter back to EPA for further review.
After the Court remanded the Flexible Permit Rule to EPA, the State, in
a letter dated September 12, 2012, requested that we take action on the
original Flexible Permit program submittal package in accordance with
the ruling of the Fifth Circuit Court of Appeals. Following discussions
with EPA, on September 24, 2013, Texas formally adopted and approved
this SIP revision which is comprised of the original submittal that EPA
took its disapproval action on as well as rule additions that EPA
believes are essential to the program's approvability. On October 21,
2013, Texas formally submitted to EPA this proposed revision to the
SIP. EPA is today proposing to conditionally
[[Page 8370]]
approve the October 21, 2013, submittal.\2\
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\2\ This October 21, 2013 submittal, including the Texas Order
dated September 26, 2013, and the accompanying cover letter
(available in the docket for this rulemaking), essentially resubmits
all relevant portions of the prior Flexible Permits submittals and
therefore constitutes the entire Flexible Permit Program.
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II. Summary of State SIP Submittals for the Flexible Permit Program
The TCEQ has developed and submitted the Flexible Permit Program as
a series of revisions to the Texas minor NSR Permit program. The TCEQ
developed the Flexible Permit Program in 1994 and has adopted several
amendments and submitted these as revisions to the Texas minor NSR SIP
program since that time. As discussed in the Section I Background of
this rulemaking, EPA is proposing conditional approval of the October
21, 2013, SIP revision approved by TCEQ and submitted for EPA review.
The following is a brief summary of each of the SIP revisions
pertaining to the Flexible Permit Program that is subject to our
proposed conditional approval.
A. November 29, 1994 Submittal
On October 19, 1994, the TNRCC, predecessor to the TCEQ, adopted
revisions to the Texas SIP to establish and implement the Flexible
Permit Program in Texas. The TCEQ adopted the rule for Flexible Permits
at 30 Texas Administrative Code (TAC) Chapter 116, Subchapter G--
Flexible Permits; adding Flexible Permit Definitions at 30 TAC Chapter
116, Subchapter A, Section 116.13--Flexible Permit Definitions; and
revising the Permit Application provisions at 30 TAC Chapter 116,
Subchapter B, Section 116.110(a) to authorize the use of a Flexible
Permit for construction of any new minor facility and minor
modification of any existing facility. Note that some portions of the
November 29, 1994, submittal were later repealed and replaced in the
July 22, 1998, submittal.
B. March 13, 1996 Submittal
On February 14, 1996, the TNRCC adopted revisions to the Texas SIP
to modify air permit application procedures and evaluation criteria to
provide more operational flexibility to facilities. This submittal
specifically included revisions to the definition of ``modification of
existing facility'' in the General Definitions for Air Permitting at 30
TAC Section 116.10(F) to address modifications under Flexible Permits.
This submittal of 30 TAC Section 116.10(F) for ``modification of
existing facility'' was later repealed and replaced in the July 22,
1998, SIP submittal and is therefore not before EPA for review.
C. July 22, 1998 Submittal
On June 17, 1998, the TNRCC adopted severable revisions that
included the repeal and replacement of portions of the November 29,
1994, submittal and the entirety of the March 13, 1996 submittal.
Specific to Flexible Permits, the July 22, 1998, submittal included a
new definition of ``modification of existing facility,'' at 30 TAC
Section 116.10(9)(F); repeal of and new Flexible Permit Definitions at
30 TAC Section 116.13 and Section 116.110; and amendments to the 30 TAC
Sections 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740,
and 116.750. The definitions in section 116.13 were non-substantive. An
operations certification requirement for flexible permits was removed
from 116.110. The amendments to the remaining sections added or
clarified language regarding BACT, compliance with FCAA Section 112(g),
or were non-substantive changes.
D. October 25, 1999 Submittal
On September 2, 1999, the TNRCC adopted revisions to the Texas SIP
to implement Texas House Bill 801 to establish new procedures for
public participation in environmental permitting. The TNRCC submitted
these amendments as revisions to the Texas SIP in a letter dated
October 25, 1999. The October 25, 1999, submittal included revisions to
the Flexible Permits public participation provisions at 30 TAC Section
116.740.
E. September 11, 2000 Submittal
On August 9, 2000, the TNRCC adopted amendments to 30 TAC Chapters
101, 106, and 116 to implement the remaining requirements of Senate
Bill 766 from the 76th Legislature. This included amendments to Chapter
116, Subchapter G, 30 TAC Sections 116.710, 116.715, 116.721, 116.722,
and 116.750. The amendments to 30 TAC Chapters 101 and 116 implement
the remaining requirements of Senate Bill 766 from the 76th
Legislature. The amendments tripled emission fees for grandfathered
facilities with emissions in excess of 4,000 tons per year after
September 1, 2001, updated public participation requirements for the
issuance of standard permits, and made nonsubstantive changes to other
related provisions.
F. April 12, 2001 Submittal
On March 7, 2001, the TNRCC adopted revisions to Subchapter G, 30
TAC Sections 116.711 and 116.715. The amendments supplement the cap and
trade program for the Houston/Galveston (HGA) ozone nonattainment area
by clarifying that any source of emissions of nitrogen oxides
(NOX) in the HGA area that uses certain permits, including
flexible permits, must obtain allowances for those emissions if the
facility, or group of facilities, has a collective design capacity to
emit ten tons or more of NOX per year and is subject to an
emission standard in 30 TAC Section Chapter 117 and by allowing the use
of NOX allowances to meet the correlating portion of
emissions offset requirements.
G. July 31, 2002 Submittal
On May 22, 2002, the TNRCC adopted amendments to Chapter 39, Public
Notice, and Chapter 116, Control of Air Pollution by Permits for New
Construction or Modification. The adopted changes concern requirements
of procedures for the permitting of grandfathered facilities and an
incentive program for the reduction of emissions of nitrogen oxides for
certain types of facilities.
H. September 4, 2002 Submittal
On August 21, 2002, the TNRCC adopted revisions re-defining
``modification of existing facility'' from 30 TAC Section 116.10(9)(F)
to 30 TAC Section 116.10(11)(F). The revisions also clarified permit
renewal application content requirements and implemented new compliance
history evaluation requirements for permit renewals.
I. October 4, 2002 Submittal
On September 25, 2002, the TCEQ adopted amendments to various fee
rules in Chapters 101, 106, and 116 including 116.750, Flexible Permit
Fee, and corresponding revisions to the SIP. The increases were
established to provide sufficient funding to meet the current
appropriation levels for air program activities and to meet operational
funding requirements for the Title V programs of the commission.
J. September 25, 2003 Submittal
On August 20, 2003, the TCEQ adopted revisions to Subchapter G, 30
TAC Section 116.715. The revisions require emission reductions to be
certified as emission reduction credits under 30 TAC Chapter 101,
Subchapter H, except future internal offsets which will continue to be
certified under Chapter 116.
[[Page 8371]]
K. July 2, 2010 Submittal
On June 2, 2010, the TCEQ adopted amendments to the Texas
regulations concerning Public Notice at 30 TAC Chapter 39; Requests for
Reconsideration and Contested Case Hearings; Public Notice at 30 TAC
Chapter 55; and Control of Air Pollution by Permits for New
Construction or Modification at 30 TAC Chapter 116. This particular
rule package was submitted to EPA on July 2, 2010, after the EPA's
final disapproval of the pending package of proposed SIP revisions
before it, and is not part of the October 21, 2013, submittal, which
included only the program in effect as of September 13, 2003 and select
2010 rule amendments.
The July 2, 2010 submittal included 30 TAC Sections 39.402(a)(4)
and (a)(5) establishing applicability of public notice provisions for
new Flexible Permits and amendments to Flexible Permits under 30 TAC
Chapter 116.
On December 13, 2012, EPA proposed to approve the July 2, 2010,
Public Participation SIP Revision. In doing so, EPA severed the
Flexible Permit public participation provisions at 30 TAC Section
39.402(a)(4) and (a)(5). We also indicated it was our intent to address
the revisions to Chapter 39 for Flexible Permits at the time we
proposed action on the Flexible Permit program. On January 6, 2014, EPA
finalized our approval of the July 2, 2010, Public Participation SIP
revision; our final approval severed and did not address the public
participation provisions at 30 TAC Sections 39.402(a)(4) and (a)(5)
specific to Flexible Permits. EPA now finds it appropriate to address
the July 2, 2010, submittal of 30 TAC Section 39.402(a)(4) and (a)(5)
because we are addressing the entirety of the Flexible Permit program
and the revisions of the associated Flexible Permits public
participation provisions at 30 TAC Section 116.740.
L. October 5, 2010 Submittal
On September 15, 2010, the TCEQ adopted amendments to Section
116.10(9)(E) to change a portion of the definition for ``modification
of existing facility''. Only this specific regulatory definition is
being acted on in this action because it directly affects the flexible
permit rule. The entire submittal package consisted of new and amended
sections prepared in response to EPA's disapproval of the TCEQ rules
that implemented the state's qualified facilities program. The October
5, 2010, submittal came in after the EPA's final disapproval of July
15, 2010, and is not part of the October 21, 2013, submittal, which
included only the program in effect as of September 13, 2003, and
select 2010 rule amendments.
M. October 21, 2013 Submittal
On September 24, 2013, the TCEQ adopted and approved for submission
to EPA the Flexible Permit Program at 30 TAC Chapter 116, Subchapter G.
The EPA received the formal submission on October 21, 2013. The entire
SIP submittal included the flexible permit rules first adopted by the
TCEQ in November 1994 in Chapter 116, Subchapter G to establish the
flexible permit minor new source review program. Some of the rules were
repealed and readopted in 1998, and various amendments to the rules
that were adopted in 1999-2003. The package also contained revisions as
adopted on December 14, 2010, which included 30 TAC Sections 116.13(3)
and (5); 116.711(2)(M), and paragraphs (iv) and (vii); 116.715(c)(5)(A)
& (B), 116.715(6)(A)(i) and (ii), 116.715(d), except the text ``The
permit shall specify which of the monitoring options under paragraph
(2)(A)-(E) of this subject shall be used to determine compliance for
facilities subject to monitoring under this subsection,''
116.715(d)(1), 116.715(f); 116.716(a), 116.716(c), 116.716(d) and
116.716(e), with repeal of earlier Sections 116.716(d) and 116.716(e).
Further, the submittal included various provisions that EPA
believes are essential to its approvability. These include: Definitions
for emission cap and individual emission limitation; discussion on
maintaining terms, conditions, and representations of any Subchapter B
permits that will be superseded by or incorporated into the flexible
permit; inclusion of requirements for monitoring and calculations for
demonstration of compliance with emission caps and individual emission
limits; revised requirements for recordkeeping of information and data
sufficient to demonstrate continuous compliance with emission caps and
individual emission limits; requirements that monitoring systems used
to determine compliance with pollutant emissions in terms of mass per
unit of time must be based on sound science and meet generally
acceptable scientific procedures for data quality and manipulation; and
provisions addressing how to develop emission caps based upon
application of current best available control technology at expected
maximum capacity. Further, references to insignificant emission factors
were removed since they are no longer allowed when calculating emission
caps. And finally, new requirements for developing individual emission
limitations in flexible permits were also included which require
permits to identify all facilities subject to either emission caps or
individual emission limits.
Table 1 below summarizes the changes that are in the SIP revision
submittals. A summary of EPA's evaluation of each Section and the basis
for our proposed conditional approval of the Flexible Permit Program as
a minor NSR permit program is included in this rulemaking. The
accompanying Technical Support Document (TSD) includes a detailed
evaluation of the submittals and our rationale. The TSD may be accessed
online at www.regulations.gov, Docket No. EPA-R06-OAR-2013-0542.
Table 1--Summary of Each Flexible Permit SIP Submittal Affected by This Action
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Date
Title of SIP submittal submitted to Date of State Regulations affected
EPA adoption
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Flexible Permits........................... 11/29/1994 11/16/1994 Amendment to 30 TAC Section 116.110
Adoption of New 30 TAC Section
116.13 and New Subchapter G, 30
TAC Sections 116.710, 116.711,
116.714, 116.715, 116.716,
116.717, 116.718, 116.720,
116.721, 116.722, 116.730,
116.740, 116.750, and 116.760.
Qualified Facilities and Modifications to 3/13/1996 2/14/1996 Amendment of 30 TAC Section 116.10
Existing Facilities. to add new definition of
``modification of existing
facility'' at (F).
[[Page 8372]]
NSR Rule Amendments; section 112(g) Rule 7/22/1998 6/17/1998 Repeal and new 30 TAC Section
Review for Chapter 116. 116.10(9)(F), 116.13 and
116.110(a)(3) adopted.
Amendments to Subchapter G, 30 TAC
Sections 116.710, 116.711,
116.714, 116.715, 116.721,
116.730, 116.740 and 116.750.
Public Participation (HB 801).............. 10/25/1999 9/2/1999 Amendment to Subchapter G, 30 TAC
Section 116.740.
Air Permits (SB-766)--Phase II............. 9/11/2000 8/9/2000 Amendments to Subchapter G, 30 TAC
Sections 116.710, 116.715,
116.721, 116.722, and 116.750.
Emissions Banking and Trading.............. 4/12/2001 3/7/2001 Amendments to Subchapter G, 30 TAC
Sections 116.711 and 116.715.
House Bill 3040: Shipyard Facilities and 9/4/2002 8/21/2002 Amendment to 30 TAC Section 116.10,
NSR Maintenance Emissions. re-designating 30 TAC Sections
116.10(9)(F) to 116.10(11)(F).
Amendments to Subchapter G, 30 TAC
Sections 116.711 and 116.715.
Air Fees................................... 10/4/2002 9/25/2002 Amendments to Subchapter G, 30 TAC
Section 116.750.
Offset Certification, New Source Review 9/25/2003 8/20/2003 Amendment to Subchapter G, 30 TAC
Permitting Processes and Extensions for Section 116.715
Construction.
Public Notice Applicability to Air Quality 7/2/2010 6/2/2010 New Chapter 39.402(a)(4) and (a)(5)
Permits and Permit Amendments. establishing applicability of the
Chapter 39 public notice
provisions to applications for new
and amended Flexible Permits.
BACT and Qualified Facility Air Permit 10/5/2010 9/15/2010 Amendments to 30 TAC Section
Program. 116.10(9)(E) only in this action.
Flexible Permit Program.................... 10/21/2013 12/14/2010 Amendments to 30 TAC Sections
116.13(3) and (5);
116.711(2)(M)(iv) & (vii);
116.715(c)(5)(A) & (B),
116.715(c)(6)(A), (c)(6)A)(i) and
(ii), 116.715(d), except specific
text; 116.715(f), excluding
715(f)(2)(A), 116.716(a),
116.716(c), (c)(1)(A) and (B),
116.716(c)(2), 116.716(c)(3),
116.716(c)(4), and 116.716(d)[new]
and (e) and the repeal of
116.716(d).
Grandfathered Facilities................... 5/22/2002 .............. Withdrawal 30 TAC Sections 116.793-
116.802 and 116.804-116.807,
adopted May 22, 2002, except
Section 116.794(11), 116.795(f)
and 116.799(a), which were
returned to the Commission by
letter from EPA dated June 29,
2011; and Section 116.803, adopted
August 21, 2002.
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N. Overview of the Flexible Permit Program and Establishment of the
Emission Cap
The Flexible Permit Program is a minor NSR permitting program
developed to provide additional flexibility to the regulated community.
As is evident in the preceding Section, the Flexible Permit program has
been revised and evolved over time and various sections have been
submitted to EPA for approval but then repealed and withdrawn. To
provide context to our proposed conditional approval we provide the
following summary of the key features of the Texas Flexible Permit
Program, as it exists before us for review and as described in this
preamble. Importantly, Texas has also submitted an interpretive letter,
dated December 9, 2013, discussed more fully below, that gives Texas'
interpretations of provisions of its submittal that, in some cases, EPA
is relying on in this proposal to conditionally approve the package.
For more information about the Program, please see the SIP revisions
submitted by Texas, the interpretive letter, and the accompanying TSD
for this proposed action, which are available in the docket for this
action.
Pursuant to the submitted Flexible Permit Program, only one
Flexible Permit may be issued for an account site.\3\ See submitted 30
TAC Section 116.710(a)(1). Therefore, a Flexible Permit cannot cover
sources at more than one account. See submitted 30 TAC Section
116.710(a)(4). A person may qualify for a Flexible Permit for
construction of a new facility at the account site. 30 TAC Section
116.110(a)(3) and 30 TAC Section 116.710(a)(1). A person may qualify
for a Flexible Permit for a modification of an existing facility at the
account site. 30 TAC Sections 116.110(a)(3) and 116.710(a)(1). To
ensure that there is no confusion when we use the term ``facility'' in
regard to Texas rules, the EPA is providing the explanation given by
the TCEQ regarding how TCEQ defines the term. TCEQ has explicitly
defined the term ``facility'' in accordance with the definition under
the Texas Health and Safety Code Section 382.003(6) and 30 TAC Section
116.10(6). The TCEQ translates EPA's term of ``emission unit''
(generally) to mean ``facility'' under their rules and provides a
detailed explanation of the term in its formal comments to the EPA on
the EPA's earlier proposed disapproval of the Texas Flexible
[[Page 8373]]
Permits Program. The comments are contained in Docket ID No. EPA-R06-
OAR-2005-TX-0032 in www.regulations.gov. Under Major NSR, EPA uses the
term ``emissions unit'' (generally) when referring to part of a
``stationary source''.
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\3\ ``Account'' for NSR purposes is defined at 30 TAC Section
101.1(1), second sentence, as ``any combination of sources under
common ownership or control and located on one or more contiguous
properties, or properties contiguous except for intervening roads,
railroads, rights-of-way, waterways, or similar divisions.'' This
definition is approved as part of the Texas SIP (March 30, 2005 (70
FR 16129)).
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A Flexible Permit holder may make a change, through a NSR SIP case-
by-case permit amendment (codified in the SIP at 30 TAC Section
116.116(b)) or a Flexible Permit amendment. See submitted 30 TAC
Section 116.710(a)(2). In lieu of either of these two options, the
Flexible Permit holder may qualify to make the change by obtaining
coverage for a minor NSR SIP permit by rule authorization, codified in
the SIP at 30 TAC Section 116.116(d).
If the holder of a Flexible Permit wishes to construct a new minor
facility at the location where the permit is issued, he may qualify for
a Flexible Permit amendment. See submitted 30 TAC Section
116.710(a)(3). This is analogous to the minor NSR SIP process of using
a minor NSR SIP Permit by Rule or a minor NSR SIP permit, for
authorization to construct a new facility on the site.
Texas already has an approved NSR SIP under Subchapter B, which
defines a change to an existing facility as one that would cause a
change in the method of control of emissions; a change in the character
of the emissions; or an increase in the emission rate of any air
contaminant. 30 TAC Section 116.116(b)(1). Such a change is required
under the SIP to be authorized under a minor NSR SIP permit amendment.
If the change is a decrease in allowable emissions; or any change from
a representation in an application, general condition, or special
condition in a permit that does not cause a change in the method of
control of emissions; a change in the character of emissions; or an
increase in the emission rate of any air contaminant (30 TAC Section
116.116(c)(1)), the change may be authorized without public
notification requirements through a SIP-approved minor NSR permit
alteration or by obtaining coverage under an existing minor NSR SIP
approved permit by rule or standard permit. 30 TAC Section 116.116(b)
and (d).
The submitted Program at 30 TAC Section 116.721(a) has the same
first two SIP-approved definitions for a change to an existing
facility: One that would cause either a change in the method of control
of emissions or a change in the character of the emissions. It,
however, has a different definition for the third type of change.
Rather than the change being ``an increase in the emission rate,'' it
is a change that is a ``significant increase in emissions.'' Submitted
30 TAC Section 116.718 defines a ``significant increase in emissions.''
First, the increase in emissions must come from a facility with a
Flexible Permit and second, there is no significant increase if the
increase does not exceed either the emission cap or individual emission
limitation.
The submitted Flexible Permit program at 30 TAC Chapter 116,
Subchapter G establishes an aggregated emission limit, based upon the
application of available technology that limits emissions, as provided
under the minor NSR SIP and known as best available control technology
(BACT) \4\ at expected maximum capacity (or a different limitation
based on the emission level that would result from the application of a
more stringent required emission control) for each covered facility,
i.e., an emission cap is determined. The cap for a specific criteria
pollutant addresses emissions from each covered facility with its
individually calculated emission rates. The total sum of the covered
facilities' calculated emission rates is the emission cap. In other
words, the emission cap is a limit on the potential to emit (PTE).
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\4\ Texas adopted a revised NSR State rule on July 27, 1972, to
add the requirement that a proposed new facility and proposed
modification utilize at least best available control technology
(BACT), with consideration to the technical practicability and
economical reasonableness of reducing or eliminating the emissions
from the facility. EPA approved the revised 603.16 into the Texas
SIP, presently codified in the Texas SIP at 30 TAC Section
116.111(a)(2)(C). For more information, please see the 74 FR 48450
(September 23, 2009), concerning the Texas Qualified Facilities
State Program and the General Definitions. The Texas SIP has been
revised since our initial approval of 30 TAC 116.111(a)(2)(C). The
Texas PSD Program at 30 TAC 116.160(c)(1)(A) incorporates the
Federal PSD BACT definition at 40 CFR 52.21(b)(12). EPA approved the
current Texas PSD program provision on September 15, 2010, as
revised by the July 16, 2010 SIP submittal. See 75 FR 55978. Upon
EPA's September 15, 2010, approval of the Texas PSD SIP submittals,
both EPA and Texas interpreted the SIP BACT provision now codified
in the SIP at 30 TAC Section 116.111(a)(2)(C) as being a minor NSR
SIP requirement for minor NSR permits, and thus applicable to the
Texas Minor NSR Flexible Permits Program.
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An emission cap established in a Flexible Permit enables the holder
to have more operational flexibility than would be allowed under SIP-
approved minor NSR Permits, which impose unit-specific mass emission
limits. See submitted 30 TAC Section 116.716. Under the submitted 30
TAC Section 116.716(a), Texas may establish an emission cap for a
specific pollutant by calculating the total emissions for all of the
facilities covered by a Flexible Permit, using the application of minor
NSR SIP BACT at expected maximum capacity for each covered facility.
Nevertheless, where the existing control for a facility is more
stringent than the application of minor NSR SIP BACT, e.g., NSPS,
NESHAPS, or a control strategy rule, then that level of control for
that facility is used in the calculation methodologies for determining
the cap. See submitted 30 TAC Section 116.715(c)(9) and (10).
Alternatively, Texas will also set an individual emission limitation in
the same Flexible Permit for each pollutant covered by an emission cap
for the covered facilities to ensure the protection of human health and
the environment as may be required by a state or federal rule. See
submitted 30 TAC Section 116.716(b).
In the version of the Flexible Permit program that was the subject
of the July 15, 2010, disapproval, the calculation methodologies for
the cap and the individual emission limitations included allowing for
inclusion of an ``Insignificant Emissions Factor'' (of up to nine
percent) in the summation. However, the package submitted for EPA
approval that we are acting on today revised the definition of emission
cap to omit such a provision. See submitted (and revised with this
action) new 30 TAC Section 116.13(3).
Under the submitted Flexible Permit Program, a pollutant's cap must
be decreased if one of the facilities (defined by Texas to generally
mean an ``emissions unit'') under the Flexible Permit shuts down for
longer than 6 months. See submitted 30 TAC Section 116.716(f)(1), first
sentence. If a new facility is brought into the Flexible Permit, the
cap must be readjusted to accommodate its calculated emission rates.
See submitted 30 TAC Section 116.716(f)(3). The cap must be adjusted
downward for any facility covered by a Flexible Permit if that facility
becomes subject to any new State or Federal regulation. See submitted
30 TAC Section 116.716(f)(4). A readjustment of the cap required by any
new State or Federal regulation must be made the next time the Flexible
Permit is either amended or altered. If an amendment to a Flexible
Permit is not required to meet the new regulation, the permittee must
submit a request for a permit alteration within sixty days of making
the change, describing how compliance with the new requirement will be
demonstrated. See submitted 30 TAC Section 116.716(f)(4), third
sentence.
Under submitted 30 TAC Section 116.717, a Flexible Permit may
include an implementation schedule for the installation of additional
controls to meet an emissions cap for a pollutant. The section also
provides that if a schedule to install additional controls is
[[Page 8374]]
included in the Flexible Permit and a facility subject to such a
schedule is taken out of service, the emission cap contained in the
Flexible Permit will be readjusted to reflect the period the unit is
out of service. Unless a special provision in the Flexible Permit
specifies the method of readjustment of the emission cap, the facility
must obtain a permit amendment or alteration, as appropriate.
III. What action is EPA proposing?
The EPA is proposing to conditionally approve the Texas Flexible
Permit Program, as submitted by Texas on October 21, 2013, and as
contained in 30 TAC Chapter 116--Control of Air Pollution by Permits
for New Construction or Modification. This action follows a decision
made by the Fifth Circuit Court on August 3, 2012, which vacated EPA's
previous disapproval and remanded it back to the EPA for further
reconsideration. Texas v. EPA, 690 F.3d 670 (Fifth Cir. 2012). The
present submittal includes the original SIP package dated November 29,
1994, which was addressed by the court, and certain specified revisions
as submitted by TCEQ on October 21, 2013. In addition, the following
regulations under Chapter 116 including 30 TAC Section 116.110(a)(3) on
July 22, 1998, and the definition in 30 TAC Section 116.10(11)(F)
submitted on July 22, 1998, for ``modification of existing facility''
are included as part of this package. EPA is also proposing to
conditionally approve the public participation applicability provisions
at 30 TAC Section 39.402(a)(4) and (a)(5) submitted on July 2, 2010.
In order to better understand how the submitted program will be
implemented, EPA asked for an interpretive letter from the State
detailing how certain aspects of the program will be operated. Based
upon our evaluation of the submittals and further informed by the
letter, EPA has concluded that the Flexible Permit Program as submitted
October 21, 2013, in conjunction with the conditions included in the
December 9, 2013, commitment letter, does meet the requirements of the
CAA section 110(a) which requires each State to include a Minor NSR
program in its SIP that meets the 40 CFR part 51 Subpart I
requirements, including legally enforceable procedures for a minor NSR
program.\5\
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\5\ This submittal does not include the submitted rules for
implementing Section 112(g) of the Clean Air Act that were
identified and returned by the EPA to the TCEQ on June 29, 2011.
This submittal also does not include those rules that were withdrawn
by the TCEQ as identified in the October 21, 2013, submittal cover
letter. EPA's position on section 112(g) of the CAA is that the EPA
does not delegate section 112(g) requirements in our MACT
delegations, nor do we approve them into the SIP. Instead, the State
must certify to EPA that the state program satisfies all applicable
requirements.
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Table 2 below summarizes each regulatory citation that is affected
by this action.
Table 2--Summary of Each Regulation That Is Affected by This Action
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Date submitted to EPA
Section Title as SIP amendment Date adopted by State Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chapter 39: Public Notice
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 39.402................ Applicability to Air July 2, 2010........... June 2, 2010........... 30 TAC Section 39.402(a)(4) and 39.402(a)(5)
Quality Permits and specific to flexible permits only.
Permit Amendments.
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Chapter 116: Control of Air Pollution by Permits for New Construction or Modification
Subchapter A: Definitions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 116.10................ General Definitions... 03/13/1996............. 2/14/1996.............. Definition of ``modification of existing
facility'' at 30 TAC Section 116.10(F).
07/22/1998............. 6/17/1998.............. Definition of ``modification of existing
facility'' at 30 TAC Section 116.10(9)(F).
9/4/2002............... 8/21/2002.............. Redesignation of the Definition of
``modification of existing facility'' from 30
TAC Section 116.10(9)(F) to 116.10(11)(F).
10/5/2010.............. 9/15/2010.............. Renumbered definition (9)(E) for
``modification of existing facility''.
Section 116.13................ Flexible Permit 11/29/1994............. 11/16/1994............. Initial adoption.
Definitions.
7/22/1998.............. 6/17/1998.............. Resubmitted 116.13 definitions for (1)
emission cap-emission limit, (2) expected
maximum capacity, and (3) individual emission
limitation.
10/21/2013............. 12/14/2010............. Revised definition of ``emission
cap'' at 30 TAC Section 116.13(1).
Revised definition of ``individual
emission limitation'' at 30 TAC Section
116.13(3) and (5). Deleted reference to
``insignificant factor'' formally found in 30
TAC Section 116.13.
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Subchapter B: New Source Review Permits
Division 1: Permit Application
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Section 116.110............... Applicability......... 11/29/1994............. 11/16/1994............. 30 TAC Section 116.110(a) specific to flexible
permits only.
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Section 116.110(a)(3)
applicability criteria.
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Subchapter G: Flexible Permits
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Section 116.710............... Applicability......... 11/29/1994............. 11/16/1994............. Initial adoption.
[[Page 8375]]
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Section 116.710 subsections
(a), (b), (c), and (d)--Applicability
criteria.
9/11/2000.............. 8/9/2000............... Resubmittal 30 TAC Section 116.710.
Section 116.711............... Flexible Permit 11/29/1994............. 11/16/1994............. Initial adoption.
Application.
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Sections 116.711 (1)-(13)--
Flexible permit application requirements.
4/12/2001.............. 3/7/2001............... Resubmittal 30 TAC Section 116.711.
9/4/2002............... 8/21/2002.............. Revised 30 TAC Sections 116.711 (8), (9),
(10), and (11).
10/21/2013............. 12/14/2010............. Revised 30 TAC Section 116.711(2)(M)
[introductory text], and paragraphs (iv) and
(vii). It was submitted in the package as 30
TAC Section 116.711(13)(D) which requires
permit applicants to provide a description of
EPNs included in emission cap and 30 TAC
Section 116.711(13)(E)(vii) which ensures PSD
terms and conditions are retained in the
flexible permit.
Section 116.714............... Application Review 11/29/1994............. 11/16/1994............. Initial adoption.
Schedule.
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Section 116.714.
Section 116.715............... General and Special 11/29/1994............. 11/16/1994............. Initial adoption.
Conditions.
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Section 116.715 subsections (a)
and (c)(1)-(10)--General conditions applying
to all flexible permit holders.
9/11/2000.............. 8/9/2000............... Revised 30 TAC Section 116.715 subsections (a)-
(d).
4/12/2001.............. 3/7/2001............... Revised 30 TAC Sections 116.715(a) and
(c)(3)(A), (c)(3)(B), and (c)(3)C).
9/4/2002............... 8/21/2002.............. Revised 30 TAC Section 116.715 subsections
(c)(1) and (c)(4).
9/25/2003.............. 8/20/2003.............. Revised 30 TAC Section 116.715 subsection
(c)(3)(C)(9).
10/21/2013............. 12/14/2010............. Revised 30 TAC Sections
116.715(c)(5)(A) & (B)--monitoring
requirements must be specified in permits for
compliance with emission caps.
Revised 30 TAC Section
116.715(c)(6)(A)(i) & (ii)--recordkeeping for
demonstrating emission cap and individual
emission limitation calculations.
Revised 30 TAC Section 116.715(d)(1)--
monitoring must demonstrate compliance based
on sound science.
Section 116.716............... Emission Caps and 11/29/1994............. 11/16/1994............. Initial adoption.
Individual Emission
Limitations.
10/21/2013............. 12/14/2010............. Revised 30 TAC Sections 116.716(a),
116.716(c), 116.716(d), and 116.716(e) on
establishing an emission cap and individual
emission limits.
Section 116.717............... Implementation 11/29/1994............. 11/16/1994............. Initial adoption.
Schedule for
Additional Controls.
Section 116.718............... Significant Emission 11/29/1994............. 11/16/1994............. Initial adoption.
Increase.
Section 116.720............... Limitation on Physical 11/29/1994............. 11/16/1994............. Initial adoption.
and Operational
Changes.
Section 116.721............... Amendments and 11/29/1994............. 10/19/1994............. Initial adoption.
Alterations.
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Sections 116.721(a), (b)(2),
(d)(1), and (d)(2)--Amendments and
alterations for flexible permits.
9/11/2000.............. 8/9/2000............... Resubmittal 30 TAC Section 116.721.
Section 116.722............... Distance Limitations.. 11/29/1994............. 10/19/1994............. Initial adoption.
9/11/2000.............. 8/9/2000............... Revised reference citation in Section.
Section 116.730............... Compliance History.... 11/29/1994............. 10/19/1994............. Initial adoption
10/21/2013............. 12/14/2010............. 30 TAC Section 116.730 withdrawn.
Section 116.740............... Public Notice and 11/29/1994............. 10/19/1994............. Initial adoption.
Comment.
7/22/1998.............. 6/17/1998.............. Revised Section.
10/25/1999............. 9/2/1999............... Revised 30 TAC Section 116.740(a).
10/21/2013............. 12/14/2010............. Revised resubmittal.
30 TAC Section 116.740(b) withdrawn.
Section 116.750............... Flexible Permit Fee... 11/29/1994............. 10/19/1994............. Initial adoption
7/22/1998.............. 6/17/1998.............. Revised 30 TAC Sections 116.750(b)-(d).
9/11/2000.............. 8/9/2000............... Revised 30 TAC Section 116.750(d).
10/4/2002.............. 9/25/2002.............. Revised 30 TAC Section 116.750(b)-(c).
[[Page 8376]]
10/21/2013............. 12/14/2010............. Revised resubmittal.
Section 116.760............... Flexible Permit 11/29/1994............. 10/19/1994............. Initial adoption.
Renewal.
Section 116.765............... Compliance Schedule... 10/21/2013............. 12/14/2010............. Submittal 30 TAC Section 116.765(b) and (c).
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A. What is a conditional approval?
Section 110(k) of the Act governs EPA's actions addressing SIP
submissions. Where EPA finds that a SIP submission is not fully
approvable, we may choose to use a conditional approval as provided
under Section 110(k)(4). In this case EPA may conditionally approve the
plan based on a commitment from the State to adopt specific corrections
to the Flexible Permit Program by a date certain, but no later than 1
year after the approval of the revision. Guidance on the use of
conditional approvals was addressed by EPA in 1992 in a memorandum from
John Calcagni.\6\ This guidance was followed in the development by the
TCEQ of their submittal of October 21, 2013 and was the basis for their
detailed letter of commitment. A copy of TCEQ's letter of commitment
and the Calcagni memo are available in the docket to this rulemaking.
Upon TCEQ fully satisfying their commitment and subsequent final action
by EPA, the Flexible Permit Program for the first time will become a
fully approved federally enforceable requirement in the Texas State
Implementation Plan. The TCEQ, in its letter of December 9, 2013,
committed to adopt by November 30, 2014, certain changes to the rules
contained in the SIP submittal.
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\6\ John Calcagni's July 1992, Memorandum, ``Processing of State
Implementation Plan (SIP) Submittals'', to Directors.
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Once EPA determines that all the conditions in the commitment
letter have been met, EPA will publish in the Federal Register a
determination that converts the conditional approval to a full approval
and provides a copy of the Flexible Permit Program as revised to meet
the conditions. However, if the State fails to submit a SIP revision
reflecting its December 9, 2013, commitments by November 30, 2014, or
if EPA determines that the submitted SIP revision does not address the
commitments, then in accordance with 110(k)(4) of the CAA, the
conditional approval converts to a disapproval action. In that case,
EPA would issue a letter to the TCEQ converting the conditional
approval of the Flexible Permit Program to disapproval. Because the
Flexible Permit Program is a discretionary variation of the SIP
approved minor program and was not submitted to address a mandatory
requirement of the Act, disapproval of the program would not trigger
sanctions under Section 179(b) or start a Federal Implementation Plan
clock.
B. What are the commitments?
TCEQ provided a commitment letter on December 9, 2013, to EPA that
provides that the commission will subsequently submit amended rules
that are consistent with the rulemaking requirements of the Texas
Administrative Procedure Act. This action is necessary because some of
the rules were repealed and readopted in 1998, and amendments to the
rules were adopted in the 1999 to 2003 timeframe. The rulemaking would
also include the repeal of text adopted in 2010 but not part of the
submission by the Commission on September 24, 2013. More specifically,
Texas will also make rule changes to ensure that all regulatory
citations in the package are labeled and referenced correctly and
placed in proper sequence. Without the renumbering and referencing
effort, incorrect references in the rules could result in applicable
requirements being overlooked and not being incorporated into Flexible
Permits during their preparation or modification. Further, the rules
could cite to incorrect requirements not applying to the entities
regulated through the Flexible Permit Program. The TCEQ has committed
to providing a SIP submittal by November 30, 2014, that will reformat,
reorganize and renumber the Flexible Permit Program into a cohesive
rule that will ensure that the rules are properly structured within and
according to the rulemaking requirements of the Texas Administrative
Procedure Act and the Texas Administrative Code. It will also include
the repeal of text adopted in 2010 that was not part of the submittal
adopted by the Commission on September 24, 2013. This commitment letter
is available in the docket for this rulemaking. All the necessary
substantive provisions of the flexible permit program were included in
the submissions and the conditions address formatting and style
requirements in state law. The changes that Texas will be making will
not materially alter the submitted program described in this proposal.
IV. EPA's Evaluation of the Texas Flexible Permit Program as a Minor
NSR Program
The Act at Section 110(a)(2)(C) requires states to develop and
submit to EPA for approval into the state SIP, preconstruction review
programs applicable to new and modified stationary sources of air
pollutants for attainment and nonattainment areas that cover both major
and minor new sources and modifications, collectively referred to as
the New Source Review (NSR) SIP. The CAA NSR SIP program is composed of
three separate programs: Prevention of Significant Deterioration (PSD),
Nonattainment New Source Review (NNSR), and Minor NSR. PSD is
established in part C of title I of the CAA and applies in areas that
meet the National Ambient Air Quality Standards (NAAQS), i.e.,
``attainment areas'', as well as areas where there is insufficient
information to determine if the area meets the NAAQS, i.e.,
``unclassifiable areas.'' The NNSR SIP program is established in part D
of title I of the CAA and applies in areas that are not in attainment
of the NAAQS, i.e., ``nonattainment areas.'' The Minor NSR SIP program
addresses construction or modification activities that do not emit, or
have the potential to emit, more than certain major source thresholds
and thus do not qualify as ``major'' and applies regardless of the
designation of the area in which a source is located.
EPA regulations governing the criteria that states must satisfy for
EPA approval of the NSR programs as part of the SIP are contained in 40
CFR 51.160-51.166. Regulations specific to minor NSR programs are
contained in 40 CFR 51.160-51.164. In addition, there are several
provisions in 40 CFR Part 51
[[Page 8377]]
that apply generally to all SIP revisions. The TCEQ has developed the
Flexible Permit Program as a component of the Texas Minor NSR program;
therefore, we evaluated the Texas Flexible Permit Program as submitted
in October 21, 2013, and the commitment letter against the federal
requirements for minor NSR programs. EPA's evaluation is also informed
by an interpretive letter sent by TCEQ on December 9, 2013, clarifying
certain aspects of the program. In an earlier Federal Register proposed
action, EPA articulated its position on the use of interpretive letters
in evaluating SIPs:
EPA believes that the use of interpretive letters to clarify
perceived ambiguity in the provisions in a SIP submission is a
permissible and sometimes necessary approach under the CAA. Used
correctly, and with adequate documentation in the Federal Register
and the docket for the underlying rulemaking action, reliance on
interpretive letters can serve a useful purpose and still meet the
enforceability concerns of the Petitioner. Regulated entities,
regulators, and the public can readily ascertain the existence of
interpretive letters relied upon in the EPA's approval that would be
useful to resolve any perceived ambiguity. By virtue of being part
of the stated basis for the EPA's approval of that provision, the
interpretive letters necessarily establish the correct
interpretation of any arguably ambiguous SIP provision. In addition,
reliance on interpretive letters to address concerns about perceived
ambiguity can often be the most efficient and timely way to resolve
concerns about the correct meaning of regulatory provisions. Both
air agencies and the EPA are required to follow time- and resource-
intensive administrative processes in order to develop and evaluate
SIP submissions. It is reasonable for the EPA to exercise its
discretion to use interpretive letters to clarify concerns about the
meaning regulatory provisions, rather than to require air agencies
to reinitiate a complete administrative process merely to resolve
perceived ambiguity in a provision in a SIP submission. In
particular, the EPA considers this an appropriate approach where
reliance on such an interpretive letter allows the air agency and
the EPA to put into place SIP provisions that are necessary to meet
important CAA objectives and for which unnecessary delay would be
counterproductive. (78 FR 12460, 12475, February 22, 2013). Texas'
interpretive letter is in the docket for this action and is
discussed throughout this notice.
As we stated above, 40 CFR 51.160 establishes the enforceable
procedures that all minor NSR programs must include. We will address
the specific requirements for enforceability in Section A below. 40 CFR
51.161 establishes the public notice requirements for minor NSR
programs. We will address the public notice requirements more fully in
a following Section B. Sections 51.160-51.164 require that a SIP
revision demonstrate that the adopted rules will not interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA. We will
address the specific requirements for permitting activities that ensure
attainment more fully in a following Section C.
EPA notes that in response to its final disapproval on the Flexible
Permits Rule on July 15, 2010, the TCEQ adopted, on December 14, 2010,
revised Sections of the Texas Administrative Code which resulted in
changes to Chapter 116. In recent discussions with EPA, the State
agreed to submit for our consideration portions of those rules in
conjunction with the prior submittal addressed in EPA's July 15, 2010,
action. A discussion of the portion of the applicable December 14,
2010, rule that was included in the submittal package is also included
in the section A.(1-5) below.
A. Federal Requirements for Enforceability of the Minor NSR Program
The Federal requirements for enforceability are found in 42 U.S.C.
7410(a)(2)(A) and 42 U.S.C. 7410(a)(2)(C) as interpreted by the EPA
guidance discussed below. The EPA has several regulations that address
all SIPs and SIP revisions. In addition to the generally applicable
rules discussed below, the requirement for enforceability of a minor
NSR program is found at 40 CFR 51.160. This rule specifically requires
the state or local agency to have the authority to prevent the
construction of a facility or modification that will cause a violation
of applicable portions of the control strategy or interfere with
attainment or maintenance of a NAAQS. To accomplish this goal, the
state's minor NSR program must include the means by which the state
agency will review proposed new construction or modification projects
to determine that such projects will not interfere with the control
strategy or cause a violation of a NAAQS. The minor NSR program must
include the following in accordance with 40 CFR 51.160(c):
The minor NSR program must provide for the submission, by
the owner or operator of the building, facility, structure or
installation to be constructed or modified, such information on the
nature and amounts of emissions to be emitted by it or emitted by
associated mobile sources; and the design, construction and operation
of such facility, building, structure, or installation as may be
necessary to allow the permitting authority to make a determination on
approvability.
The minor NSR program must provide that approval of any
construction or modification must not affect the responsibility of the
owner or operator to comply with applicable portions of the control
strategy.
The minor NSR program must include procedures to identify
the types and sizes of facilities, buildings, structures, or
installations which will be subject to review. The minor NSR program
must also discuss the basis for determining which facilities will be
subject to review.
The minor NSR program must also discuss the air quality
data and the dispersion or other air quality modeling used to make
approval decisions.
The Court in its Opinion stated that in disapproving the Texas
Flexible Permit Program, the EPA failed to explain or tie
replicability, clarity and, in general, elements of the enforcement
guidance to standards provided for in the CAA. See, 690 F.3d 670, 683-
4. 42 U.S.C. 7410(a)(2) provides that a SIP must include enforceable
emission limitations. It is this CAA requirement that the SIP be
enforceable that provides the legal basis for requiring that a program
meet criteria necessary for enforceability. Enforceability is required
by the Act and without it the EPA, the states, and the citizens who
wish to determine whether or not a regulated entity is in compliance,
and then to enjoin any violations, will find it difficult to take
action to ensure compliance. Being able to enforce permits and rules
adequately provides interested parties the ability to return regulated
entities to compliance. The collection of penalties both penalizes the
offender and provides deterrence of future violations. Without adequate
enforceability, EPA cannot ensure that a program submitted to be
approved into the SIP will be protective of the NAAQS. See, 42 U.S.C.
7410(l). Minor sources have the potential to impact the NAAQS. EPA
acknowledged this in the 1986 rulemaking establishing the current
version of 40 CFR 51.160-164 (the minor source rules). The EPA stated
that ``The very fact that such [minor] sources are subject to review
indicates that it would be appropriate to require that EPA be notified
of permitting actions on such sources [minor] for oversight purposes.
Moreover, a large number of minor sources could have a significant
cumulative effect on air quality.'' See, 51 FR 40656, 40658
[[Page 8378]]
November 7, 1986. These sources \7\ have historically included some of
the largest refinery and petrochemical companies in the State. These
large sources very frequently have the need for minor NSR changes to
their permits. The Appendix to the TSD contains a list of companies
provided by the TCEQ on December 18, 2013, that currently have or
historically had coverage under a flexible permit issued prior to the
rules becoming SIP approved.
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\7\ These sources include minor sources as well as major sources
seeking minor modifications to their facilities.
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In addition to ensuring protection of the NAAQS, enforceability is
required by the Act and in several regulations that are applicable to
minor source programs as well as to all SIPs and SIP revisions. 42
U.S.C. 7410(a)(2) provides that a SIP must include enforceable emission
limitations and control measures, coupled with methods for maintaining
and analyzing data on air quality. EPA's regulations implementing this
provision require that: Each plan must set forth legally enforceable
procedures that enable the State or local agency to determine whether
the construction or modification of a facility, building, structure or
installation, or combination of these will result in (1) A violation of
applicable portions of the control strategy; or (2) Interference with
attainment or maintenance of a national standard in the State in which
the proposed source (or modification) is located or in a neighboring
State. In addition, 42 U.S.C. 7410(a)(2)(C) specifically provides that
a program be established to provide for the enforcement of emission
limitations. While the statute provides for considerably broader
discretion for States to craft minor source programs, it does not in
any way distinguish the requirement for enforceability between major
and minor source programs. Indeed, since (as noted above), very large
major sources obtain many minor source permits for construction and
modification of emissions units, the collection of such permits at such
sources should reflect similar levels of enforceability. Congress
recognized this in establishing the Title V operating permit program,
which collects all permits into a single comprehensive document, and
requires the permitting authority to remedy past flaws related to
permit enforceability. In addition, the following regulatory provisions
lay out the framework for requirements for enforceability in SIPs, and
in particular minor source programs. Certainly the statute makes no
such distinction nor do the regulations. 40 CFR 51.160 provides in
relevant part that each plan must set forth legally enforceable
procedures that enable the State or local agency to determine whether
there is violation of applicable portions of the control strategy. 40
CFR 51.281 provides, in relevant part, that emission limitations and
other measures adopted by the state as rules and regulation must be
enforceable by the State Agency. 40 CFR 51.212(c) provides for an
enforceable test method for each emission limitation. The Court
discussed only the requirements found in 40 CFR 51.160-164, relating
specifically to minor source permitting as applicable in this matter.
However, all SIPs and SIP revisions must also comply with some
additional requirements, found in part 51 such as Subparts F, K, L and
O. Thus, enforceability is a significant element in the Act and our
regulations.
EPA has, from time to time, also issued guidance that provides the
Agency's interpretation of what it means to be enforceable under the
Act and implementing regulations.
One of the central documents that sets forth our interpretation is
the September 23, 1987, Memorandum from J. Craig Potter, Assistant
Administrator for Air and Radiation, and Thomas L. Adams Jr., Assistant
Administrator for Enforcement and Compliance Monitoring, entitled
``Review of State Implementation Plans and Revisions for Enforceability
and Legal Sufficiency.'' \8\ In the memorandum, we explain that
submitted rules that are clearly worded, clear as to who must comply,
and explicit in their applicability to regulated sources are
appropriate means for achieving the statutory enforcement requirement.
Appropriate testing, recordkeeping, reporting, and monitoring
provisions are necessary to establish how compliance will be determined
and be sufficient to ensure that the NAAQS and PSD increments are
protected. Attached to this memorandum was an implementation guidance
which included a section entitled ``SIP APPROVABILITY CHECKLIST--
ENFORCEABILITY'' regarding how to specifically evaluate proposed rules
and ensure they are enforceable.
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\8\ See 57 FR 13498, April 16, 1992. This is the General
Preamble to the 1990 CCA Amendments which was meant to act as
guidance for the State in making revisions to their NSR programs. It
references the above memorandum as establishing the enforceability
criteria for writing rules and permitting. See also Pgs, 13541,
13548.
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On November 3, 1993, EPA's John S. Seitz, Director, Office of Air
Quality Planning and Standards, issued a memorandum titled ``Approaches
to Creating Federally-Enforceable Emissions Limits.'' While its purpose
was to give guidance as to how permitting authorities could create
permit programs that would allow sources that would otherwise be major
sources to be considered ``minor'' for the purposes of title V
permitting and various other requirements of the Act, it also further
articulates EPA's interpretation of statutes and regulations as it
relates to creating emissions limits that are legally and practically
enforceable. It is EPA's longstanding interpretation of 42 U.S.C.
7410(a)(2) of the CAA that in general federal enforceability has two
parts: legal enforceability and practical enforceability.
A requirement is ``legally enforceable'' if some authority (as well
a citizen) has the right to enforce the restriction. Practical
enforceability for a source-specific permit will be achieved if the
permit's provisions specify: (1) A technically accurate limitation and
the portions of the source subject to the limitation; (2) the time
period for the limitation (hourly, daily, monthly, and annual limits
such as rolling annual limits); and (3) the method to determine
compliance, including appropriate monitoring, recordkeeping, and
reporting. For rules and general permits that apply to categories of
sources, practical enforceability additionally requires that the
provisions: (1) Identify the types or categories of sources that are
covered by the rule; (2) where coverage is optional, provide for notice
to the permitting authority of the source's election to be covered by
the rule; and (3) specify the enforcement consequences relevant to the
rule. ``Enforceable as a practical matter'' will be achieved if a
requirement is both legally and practically enforceable.\9\ The above
cited guidance and Federal Register notices demonstrate that EPA has
consistently interpreted enforceable requirements of the CAA in the
manner explained above, i.e., that they must be both legally and
practically enforceable. We believe the Flexible Permit program before
us today meets our interpretation of enforceable under the CAA.
The provisions from the October 21, 2013 submittal needed to ensure
legal and practical enforceability are discussed in numbers 1-5 below.
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\9\ See 67 FR 80186, 80190-80191 December 31, 2002.
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1. Identifying the New Facilities and/or Modifications for Inclusion in
a Flexible Permit
One key feature of an enforceable minor NSR program is the ability
to
[[Page 8379]]
easily identify the facilities and modifications subject to the
program. See, 40 CFR 51.160(e). For the Flexible Permit program, the
establishment and identification of the facilities subject to the
emission cap is crucial to proper implementation of the program. To
provide for legally enforceable emission caps, the TCEQ adopted
amendments to 30 TAC Section 116.711(2)(M) on December 14, 2010, and
included them in the package submitted for EPA approval on October 21,
2013. The submitted package requires permit applicants provide a
complete description of the facilities (with their individually defined
emission point numbers) included in an emissions cap. The package also
allows a permit applicant to establish an emission cap for all
facilities at an account, including every facility at the account, or
to establish an emission cap comprised of a designated group of
facilities at the account. Section 116.716(a) allows permit applicants
full flexibility to designate facilities for inclusion in an emission
cap as they see fit, without restriction on the type or location of the
facility, as long as it (1) complies with the definition of account and
30 TAC Section 116.716(a) as submitted; (2) provides that emission caps
be established for a pollutant for all facilities at an account or a
designated group of facilities at an account. Finally, 30 TAC Section
116.716(c) as submitted, includes text to ensure that the rules include
procedures for establishing an emissions cap. See 35 TexReg 11936-
11941.
2. Inclusion of Appropriate Monitoring and Recordkeeping Requirements
in Flexible Permits
In addition to establishing the facilities and modifications
subject to the minor NSR program, the SIP must require sufficient
monitoring, recordkeeping, and reporting (MRR) to demonstrate that the
source or modification as permitted will not result in a violation of
the control strategy or an applicable NAAQS and is enforceable. One of
the rationales for our original disapproval was that the program
afforded excessively broad discretion to the director regarding whether
or not to include MRR conditions in a Flexible Permit. See, 75 FR
41312, 413213. Subsequent to the Fifth Circuit's vacatur of our
disapproval of the MRR and director's discretion provisions in the
original Flexible Permit program, EPA, in a separate rulemaking action,
has more clearly articulated the Agency's long standing interpretation
of the CAA as it relates to the use of director discretion in SIPs.
On February 22, 2013, in a proposed action involving how excess
emissions would be treated in state rules by sources during periods of
startup, shutdown, or malfunction (SSM), EPA extensively discusses the
use of director's discretion in SIPs. For the full discussion of this
issue please see 78 FR 12460, February 22, 2013, and the accompanying
SSM legal memo: ``Memorandum to Docket EPA-HQ-OAR-2012-0322 Statutory,
Regulatory, and Policy Context for this Rulemaking February 4, 2013.''
In these documents EPA articulates the rationale for its longstanding
interpretation that the CAA does not allow ``director's discretion''
provisions in SIPs if they provide unbounded discretion to determine
what requirements apply to sources, in ways that would amount to case-
specific revisions of the SIP without meeting the statutory
requirements of the CAA for SIP revisions. See, 78 FR 12460, 12474.
The EPA has explained that director's discretion provisions can be
acceptable if such provisions are sufficiently specific, provide for
sufficient public process, and are sufficiently bounded, so that it is
possible to anticipate at the time of the EPA's approval of the SIP
provision how that provision will actually be applied and that the pre-
authorized exercise of director's discretion will not interfere with
other CAA requirements, such as providing for attainment and
maintenance of the NAAQS. See, 78 FR 12460, 12485. In the EPA's
judgment, the revised Flexible Permit Rule before us today is
sufficiently bounded, provides for public participation, protects the
NAAQS, and is enforceable.
The disapproved package had provided that a source should have
provisions for measuring emissions of air contaminants ``as determined
by the Executive Director,'' and imposed no additional substantive
requirements for such measurements and did not prevent the Director
from exempting the source from any requirements at all. Thus, it did
not comport with the requirements specified in EPA's recent notice. The
revised Flexible Permit Rule, as submitted in October 2013, does not
contain any provision that could constitute or authorize a complete
variance or an exemption from monitoring. The State in its interpretive
letter clearly confirms that its rules do not allow for an exemption
from monitoring requirements. The requirements for monitoring are
general in nature but are sufficiently bounded to be approvable. In
particular, TCEQ adopted amendments to 30 TAC Section 116.715(d)(1) to
satisfy EPA concerns about the exercise of director's discretion.
Section 116.715(d)(1) provides that the ``monitoring system must
accurately determine all emissions of the pollutants in terms of mass
per unit of time. Any monitoring system authorized for use in the
permit must be based on sound science and meet generally acceptable
scientific procedures for data quality and manipulation.'' As explained
in the TCEQ interpretive letter, this monitoring condition clearly
constrains the director's discretion. As such, it is consistent with
the guidelines for director's discretion provisions set forth in the
EPA guidance just described.
The newly submitted rule tracks very closely with the monitoring
provisions set forth in EPA's major source Plantwide Applicability
Limitation (PAL) provisions in the federal PSD regulations (PAL). EPA's
PSD PAL provisions at 40 CFR 52.21(aa)(12) specify monitoring
requirements for PAL permits and requires that all monitoring systems
authorized for use in a PAL permit must be based on sound science and
meet generally acceptable scientific procedures for data quality and
manipulation.
Moreover, in our original disapproval for the Flexible Permit
Program, we cited to the PAL rule as an appropriate way to for the
director to establish monitoring requirements.\10\ As noted above, TCEQ
also submitted an interpretive letter clarifying how this provision in
the program operates and demonstrates it is consistent with EPA
requirements. In sum, these provisions effectively impose necessary
substantive requirements on MRR provisions.
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\10\ See, 75 FR 41312, 41317.
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The newly submitted Flexible Permit Program expands the MRR
provisions to ensure enforceability of the program. 30 TAC Section
116.715(c)(5)(A) requires each flexible permit to specify requirements
for monitoring or demonstrating compliance with emission caps and
individual emission limits in the flexible permit. 30 TAC Section
116.715(c)(5)(B) requires each flexible permit to specify emission
calculation methods for calculating annual and short term emissions for
each pollutant. We find that these provisions of the Flexible Permit
Program were included in the revised SIP submission by the TCEQ on
October 21, 2013, See, 35 TexReg 11938-11939. These provisions
establish that the overall program, and in particular the MRR
provisions, provide for sufficient public process, and are sufficiently
[[Page 8380]]
bounded. It is possible to anticipate how the provision will actually
be applied and that the pre-authorized exercise of director's
discretion will not interfere with other CAA requirements. They also
ensure that the limits on director's discretion are legally
enforceable. See 40 CFR 51.160 (requiring that minor source program
include enforceable procedures.).
3. Additional Elements Specific to Emissions Caps
EPA has also concluded that the program, as submitted, contains
other specialized provisions needed to ensure enforceability. Once the
cap is established the facilities are then able to make changes without
permit revisions provided the emissions are below the established
emissions caps. The TCEQ has consistently defined the flexible permit
program as a new type of minor NSR permit program which functions as an
alternative to the traditional preconstruction permits that are
authorized in Chapter 116, Subchapter B, NSR Permits. The TCEQ states
that flexible permits were designed to exchange flexibility for further
emission reductions without relaxation of unit specific control
requirements. In its submittal, the TCEQ has included provisions in 30
TAC Section 116.715(c)(5)(A) that satisfy the requirements that each
flexible permit specify requirements for monitoring or demonstrating
compliance with emission caps and individual emission limits in the
flexible permit; 30 TAC Section 116.715(c)(5)(B) as submitted satisfies
the requirement that each flexible permit specify emission calculation
methods for calculating annual and short term emissions for each
pollutant; and 30 TAC Section 116.715(d)(1) to satisfy the requirements
concerning accountability/enforceability. Each of these amendments to
the Flexible Permit Program was submitted as a SIP revision by the TCEQ
on October 21, 2013. See, 35 TexReg 11938-11939.
4. Provisions To Ensure the Flexible Permit Program Is a Minor NSR
Program
Because the Flexible Permit program can be used for both true minor
sources and for minor modifications at existing major sources, the
program must include provisions to ensure that major NSR requirements
are protected and that the Flexible Permit Program cannot be used to
circumvent the requirements of either PSD or NNSR review. The TCEQ
adopted provisions on December 14, 2010, to further clarify the major
NSR permitting programs. The TCEQ adopted amendments to 30 TAC Section
116.711(2)(M)(vii) to specify that the flexible permit application must
identify any terms, conditions, and representations in any Subchapter B
permit which will be superseded by or incorporated under a flexible
permit and provide an analysis of how the conditions and control
requirements of a Subchapter B permit will be carried forward in the
proposed flexible permit. Texas revised 30 TAC Section 116.716(c)(2) to
require facilities subject to lowest achievable emission rate (LAER) in
accordance with Subchapter B, be included in a separate emissions cap
or provided with individual emission limitations. This provision
ensures that sources subject to LAER are fully controlled as required
by federal NSR regulations. Each of these amendments to the Flexible
Permit Program was submitted as a SIP revision by the TCEQ on October
21, 2013. Each of these amendments to the Flexible Permit Program
ensures that the program is for minor NSR actions and that for any
minor amendments to a major source, the source will retain its major
source requirements (i.e., cannot be used to circumvent the major
source requirements). Our evaluation of this issue is also informed by
the Fifth Circuit Court of Appeals decision in Texas v. EPA, 690 F3d
670, (5th Cir 2013) in which the Court overturned our disapproval of
the rule. One of the major rationales of our earlier disapproval was
that the Program might allow major sources to evade Major NSR. The EPA
found that the Flexible Permit Program ``has no express regulatory
prohibition clearly limiting its use to Minor NSR and has no regulatory
provision clearly prohibiting the use of this submitted Program from
circumventing the Major NSR SIP requirements.'' See, 75 FR 41312,
41,313. The Court dismissed EPA's concern and expressly ruled that this
was a program limited to minor sources only. ``The Flexible Permit
Program does not allow Major NSR evasion because it affirmatively
requires compliance with Major NSR''. Texas v. EPA, 690 F3d 670, 678.
TCEQ included, as part of their October 21, 2013, submittal 30 TAC
Sections 116.711(8)&(9) which require compliance with PSD and
Nonattainment review if it is found that those provisions apply.
5. Provisions To Ensure the Flexible Permit Program Demonstrates
Compliance
An emissions cap program such as the Flexible Permit Program must
include provisions for calculating compliance on a 12-month rolling
average and against applicable short term limits in order to meet the
requirement of Section 302(k) of the CAA that the source be able to
demonstrate continuous compliance. Appropriate emission calculations
will ensure that permit conditions are protective of the control
strategy and the applicable NAAQS. To provide for this, the TCEQ
submitted amendments to the Flexible Permit Program on October 21,
2013, to 30 TAC Section 116.715(c)(5) to address monitoring,
calculations, and equivalency of methods so that each flexible permit
shall specify requirements for monitoring or demonstrating compliance
with emission caps and individual emission limits in the flexible
permit and revised 30 TAC Section 116.715(c)(6)(A)(i) so that emission
caps and individual emission limitation calculations are based on a 12-
month rolling average and emission caps and individual emission
limitation calculations correspond to any short term emission
limitations.
B. Federal Requirements for Public Notice of Minor NSR Permitting
The requirements for public notice of minor NSR permitting are
outlined at 40 CFR 51.160 and 51.161. The legally enforceable approval
procedures for Minor NSR programs at 40 CFR 51.160 must require the
permitting authority to provide opportunity for public comment on
information submitted by sources and the agency's analysis of the
effects of the proposed source on ambient air, including its proposed
approval or disapproval. See, 40 CFR 51.161(a). The opportunity for
public comment must include, at a minimum, a 30-day comment period on
the information submitted by the applicant and the permitting
authority's analysis of the effect of the proposed application on air
quality. This information must be noticed by prominent advertisement in
the area affected by the proposed source and available for public
inspection in at least one location in the area affected. See, 40 CFR
51.161(b).
1. Overview of the Texas Public Participation Process for Applications
for New Flexible Permits and Flexible Permit Amendments
The Texas public participation process covers the variety of air
quality permit applications processed by the TCEQ including
applications for permits for new major sources or modifications subject
to PSD or NNSR requirements and minor NSR permit actions such as
Flexible Permits. EPA has separately reviewed and approved the public
participation process for major sources and modifications subject to
PSD/NNSR requirements, PAL permit
[[Page 8381]]
authorizations at existing major sources, new minor sources or minor
amendments, and permit renewals. See our final rule dated January 6,
2014, approving the Texas public participation requirements for these
permit actions as consistent with the requirements of the CAA and 40
CFR 51.160-51.166. See 79 FR 551. In today's action we are only
reviewing the Texas public participation program specific to
applications for new and amended Flexible Permits pursuant to Chapter
116, Subchapter G. The public participation requirements for Flexible
Permits are found at 30 TAC Section 116.740, which requires any
applicant for a new Flexible Permit or amendment to a Flexible Permit
to comply with the requirements established in Chapter 39 related to
Public Notice. Among other Sections that apply to both flexible permit
applications and other applications, Chapter 39 separately applies the
public participation process to applications for new Flexible Permits
at 30 TAC Section 39.402(a)(4) and applications for amendments to a
Flexible Permit at 30 TAC Section 39.402(a)(5). Because the Flexible
Permits program is a minor NSR authorization, our evaluation of the
public participation specific to flexible permits will be based on
minor NSR public participation requirements of 40 CFR 51.161.
The following process is used to publish notice of an application
for a new Flexible Permit or an amendment to a Flexible Permit.:
1. Applicant submits air quality permit application for new or
amended Flexible Permit to TCEQ. See 30 TAC Section 116.711.
2. TCEQ reviews the application and determines whether the
application is administratively complete. During this process, the TCEQ
has 90 days to determine the application is complete or request
additional information. See 30 TAC 116.714, which cross-references the
requirements at30 TAC Section 116.114(a)(1).
3. Once the application is administratively complete, the applicant
is required to publish the first notice, the Notice of Receipt of
Application and Intent to Obtain Permit (NORI), as applicable. See 30
TAC Section 39.418. The NORI is a unique feature of the Texas Public
Notice Process. The NORI provides information to the public about the
receipt of an application and provides basic information about the
proposed new source or modification such as a description of the
location and the nature of the proposed activity, a description of the
public comment process, and the location where materials will be made
available for review. The NORI does not provide any technical
information, but rather serves as an indicator of future public notices
and actions that may be of interest, enabling the public to anticipate
draft permits. The NORI is required for all new applications for
Flexible Permits at 30 TAC Section 39.402(a)(4) and most applications
for amendments to Flexible Permits at 30 TAC 39.402(a)(5). Note that
certain applications for Flexible Permit amendments are exempted from
the Chapter 39 public notice provisions as discussed in this proposed
action at Section IV.B.3.
4. TCEQ completes the technical review and makes a preliminary
decision. The TCEQ has 180 days from the date a new Flexible Permit
application is administratively complete, or 150 days from the date a
Flexible Permit amendment application is administratively complete, to
conduct the technical review and make a preliminary decision. See 30
TAC 116.714, which cross-references the requirements at 30 TAC Section
116.114(a)(2).
5. The applicant is required to publish the second notice, the
Notice of Application and Preliminary Decision (NAPD) when notified by
TCEQ of the preliminary decision. See 30 TAC Section 39.419. The NAPD
notice provides the information and notice to the public consistent
with federal requirements. The NAPD provides details about the
preliminary decision and draft permit and the location where applicable
air quality analyses and other technical materials will be made
available for public review. NAPD is required for all air quality
permit applications for new Flexible Permits and most Flexible Permit
applications subject to the Chapter 39 public notice provisions. Note
that certain applications for Flexible Permit amendments are exempted
from the Chapter 39 public notice provisions as discussed in Section
V.A.3. of the TSD accompanying this proposed action at section IV.B.3.
6. The TCEQ files the Executive Director's (ED) draft permit and
preliminary decision, the preliminary determination summary and air
quality analysis with the chief clerk and the clerk posts this
information on the TCEQ's Web site. See 30 TAC Section 39.419(e).
7. The comment period runs for 30 days after the last publication
of the NAPD discussed in Step 5. See 30 TAC Section 55.152(a)(1).
8. A public meeting is held if the ED determines there is a
substantial or significant degree of public interest; if the meeting is
requested by a member of the legislature representing the general area
of the proposed facility/modification; if a public meeting is otherwise
required by law. See 30 TAC Section 55.154(c).
9. The ED prepares a response to all comments received. See 30 TAC
Section 55.156(b)(1).
10. The ED files the response to comments with the chief clerk as
soon as practicable, but not later than 60 days after the end of the
comment period. See 30 Section TAC Section 55.156(b)(3).
11. The chief clerk will mail or transmit the ED decision and the
RTC to the applicant, any person who submitted comments and any person
on the mailing list for the permit action. See 30 TAC Section
55.156(c).
12. The ED will take final action on the permit application within
150 days of receipt of a Flexible Permit amendment application or 180
days for a new Flexible Permit application. The TCEQ's one-year clock
is based on the completion of the technical review and the publication
of the NAPD as provided in Step 5. See 30 TAC 116.714, which cross-
references the requirements at 30 TAC Section 116.114(c)(3).
2. Analysis of the Submitted Public Participation Rules for Flexible
Permits as Minor NSR Requirements
The Texas public participation requirements for Flexible Permit
applications are outlined at 30 TAC Section 39.402 and apply to the
following types of permits.
New flexible permits under Chapter 116, Subchapter G--30
TAC Section 39.402(a)(4).
Amendments to flexible permits under Chapter 116,
Subchapter G when the amendment involves:
(a) A change in character of emissions or release of an air
contaminant not previously authorized under the permit (i.e., change in
control method or an increase in emission rate)--30 TAC Section
39.402(a)(5)(A);
(b) The total emissions increase from all facilities to be
authorized under the amended Flexible Permit at a facility not affected
by THSC, section 382.020,\11\ exceeds the State's established ``de
minimis'' levels--30 TAC Section 39.402(a)(5)(B);
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\11\ THSC, Sec. 382.020 establishes emission control
requirements for selected agricultural facilities such as cotton
gins, corn mills, grain elevators, peanut processing, or rice drying
facilities.
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(c) The total emissions increase from all facilities to be
authorized under the amended permit at a facility affected by THSC,
section 382.020, exceeds the State's established ``insignificant''
levels
[[Page 8382]]
found in 30 TAC Section 39.402(a)(5)(C); or
(d) Other minor amendments to Flexible Permits where the Executive
Director determines reasonable likelihood for interest or impact--30
TAC Section 39.402(a)(5)(D)(i)-(iv).
Despite the thresholds established in 30 TAC Sections
39.402(a)(5)(B) and (C), the TCEQ rules at 30 TAC Section
39.402(a)(5)(D) vest the TCEQ Executive Director with the authority to
require public notice for an otherwise exempt Flexible Permit amendment
if there is (1) reasonable likelihood of significant public interest in
the activity, (2) reasonable likelihood for emissions impact at a
nearby receptor, (3) reasonable likelihood of high nuisance potential
from the operation of the facility, or (4) the application involves a
facility in the lowest classification under Texas Water Code, Sections
5.753 and 5.754 and the Compliance History Rules at 30 TAC Chapter 60.
This type of Director's Discretion is appropriate for a minor source
program because the exercise of that discretion is bounded by the four
criteria identified above, and because the discretion allows the
director to increase requirements rather than to authorize exceptions
to those requirements. See 78 FR at 12585-86 and the discussion above
at IV, A, 2.
The notice requirements for each type of Flexible Permit
application listed above are generally the same, meaning that an
application for a new Flexible Permit and an application to amend a
Flexible Permit will have the same public notice requirements. The
submitted Texas rules generally provide that all applications for new
Flexible Permits and applications for qualifying Flexible Permit
amendments will go through public notice using the Texas NORI and NAPD
notices. Therefore, the public will receive notice of the application
and have the opportunity to comment on the draft permit and
accompanying technical information. Note that the applicant is legally
responsible for the publication of the NORI and NAPD, using the
specific notice text provided through regulations by the TCEQ. The
applicant is also legally responsible for providing copies of the
public notice documents to the EPA Regional Office, local air pollution
control agencies with jurisdiction in the county, and air pollution
control agencies of nearby states that may be impacted by the proposed
new source or modification. The NORI and NAPD both identify locations
where materials, including the draft permit and all technical materials
supporting the decision, will be made available for public review. The
TCEQ will respond to each comment received when making a final permit
decision. The TCEQ will also provide opportunity for a public meeting
on the permit application if requested. On January 6, 2014, the EPA
approved the Texas Public Participation rule, which includes the
general notice requirements of the NORI and NAPD as consistent with
federal requirements at 40 CFR 51.160 and 51.161. See 79 FR 551. See
docket EPA-R06-OAR-2010-0612 in www. regulations.gov. EPA views the
public participation applicability provisions at 30 TAC Sections
39.402(a)(4) and (a)(5) as integral to the functionality and
implementation of the Texas Flexible Permits Program. As such, it is
inappropriate to give full approval for these public participation
provisions that apply to the Texas Flexible Permits Program until the
underlying program is fully approved. Additionally, fully approving
these public participation provisions without full approval of the
underlying Flexible Permits Program may create confusion for the public
and the regulated community. Therefore, we propose to find it
appropriate to conditionally approve the notice provisions consistent
with our actions on the underlying Flexible Permits Program. In today's
notice we are proposing to conditionally approve the applicability
requirements at 30 TAC Sections 39.402(a)(4) and (a)(5) that require an
applicant to follow the NORI and NAPD processes for applications for
new and amended Flexible Permits.
3. Minor NSR Public Notice Requirements Specific to Two Types of Minor
NSR Flexible Permit Amendment Applications
As explained above, the submitted Texas public participation
provisions create a tiered program, wherein two certain types of Minor
NSR Flexible Permit amendment applications that have been defined by
TCEQ as ``de minimis'' or ``insignificant'' will not automatically
require public notice. The following outlines the specific thresholds
that qualify as ``de minimis'' or ``insignificant'' under the revised
rules, and the basis for TCEQ's determination.
i. Identification of the Minor NSR Flexible Permits Emission Thresholds
and Affected Source Populations
Thresholds are only used for Flexible Permit amendment
applications. Applications for new Minor NSR Flexible Permits are
required by these submitted rules to go through the public procedures
of the NORI and NAPD. The applications for amendments to Flexible
Permits are further divided based on the amount of emission increases
at issue and whether the facility is affected by THSC section 382.020.
THSC section 382.020 applies to agricultural facilities
such as corn mill, cotton gin, feed mill, grain elevator, peanut
processing facility or rice drying facility.
[cir] 30 TAC Section 39.402(a)(5)(B) provides that if the
application for the amendment of a Flexible Permit is not for an
affected agricultural facility then the public notice provided through
the NORI and NAPD apply, unless the total emissions increase from all
facilities authorized in the Flexible Permit amendment does not exceed
any of the following levels established by the State as ``de minimis''
levels:
[ssquf] 50 tons per year (TPY) carbon monoxide (CO)
[ssquf] 10 TPY sulfur dioxide (SO2)
[ssquf] 0.6 TPY lead (Pb)
[ssquf] 5 TPY of NOX, volatile organic compounds (VOC),
particulate matter (PM), or any other contaminant except carbon
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.
[cir] 30 TAC Section 39.402(a)(5)(C) provides that if the amendment
for a Flexible Permit is for an affected agricultural facility, then
the public notice requirements of the NORI and NAPD apply, unless the
total emissions increase from all authorized facilities in the Flexible
Permit amendment does not exceed any of the following thresholds
established by the State as ``insignificant'' thresholds:
[ssquf] 250 TPY CO or NOX
[ssquf] 25 TPY of VOC, SO2, PM or any other air
contaminant except carbon dioxide, water, nitrogen, methane, ethane,
hydrogen, and oxygen.
[ssquf] A new major stationary source or major modification
threshold as defined in 30 TAC Section 116.12 of this title
[ssquf] A new major stationary source or major modification
threshold, as defined in 40 CFR 52.21 under the PSD requirements
If the Flexible Permit amendment application includes
proposed emissions increases of any air contaminant above the
identified threshold then the amendment application is required to go
through notice pursuant to Chapter 39 requirements. That means the
Flexible Permit amendment application will go through the NORI and NAPD
publication process.
ii. Discussion of the ``De minimis'' and ``Insignificant'' Thresholds
for Minor NSR Flexible Permit Amendments
The thresholds established by the State as ``de minimis''
thresholds at 30
[[Page 8383]]
TAC Section 39.402(a)(5)(B) apply to all minor NSR Flexible Permit
amendment applications, except those for affected agricultural
facilities. The thresholds selected by the State at 30 TAC Section
39.402(a)(5)(C), and called ``insignificant'' thresholds, apply only to
minor NSR Flexible Permit amendment applications for affected
agricultural facilities.
Within the scope of the Texas Minor NSR program, the ``de minimis''
and ``insignificant'' thresholds distinguish those minor Flexible
Permit amendment applications that require full review from those that
may not. But, the thresholds do not affect any part of the technical
review of these minor NSR Flexible Permit amendment applications or the
requirement to comply with other requirements such as application of
required control technology, reporting when required to the emissions
inventory, and analysis of monitoring data. Additionally, being below
the ``de minimis'' or ``insignificant'' threshold does not override any
notice or technical requirements for PSD, NNSR or new Minor NSR
Flexible Permit applications.
In our January 6, 2014, final rulemaking approving Texas public
participation, we found that TCEQ provided an adequate demonstration to
show that their selected ``de minimis'' and ``insignificant''
thresholds for Minor NSR permitting are adequate to meet federal
requirements for Minor NSR. See 79 FR 551. The State's demonstration is
also applicable to the thresholds as they apply to minor amendments to
existing Flexible Permits. TCEQ also provided supplemental information
concerning the Flexible Permit holders' use of these thresholds since
they were adopted by the State.12 13 The supplemental data
are also included in the docket for this rulemaking. Our analysis of
this supplemental information demonstrates that from Fiscal Year 1994
through Fiscal Year 2013, the TCEQ issued only one Flexible Permit to a
facility that would be classified as an agricultural facility under
THSC 382.020. This agricultural facility never applied for a flexible
permit amendment and has subsequently gone through the de-flex process.
Consequently, there are no existing Flexible Permits for affected
agricultural sources; therefore the ``insignificant'' thresholds are
not available for use for any current flexible permit holders.
Additionally, this supplemental information demonstrates that prior to
Texas Fiscal Year 2002, flexible permit amendments issued to non-
agricultural facilities did not go through public notice. Fiscal Year
2002 represents the time period where TCEQ adopted and implemented the
``de minimis'' and ``insignificant'' thresholds. Since the time of
adoption and implementation at the state level of the ``de minimis''
and ``insignificant'' thresholds in Fiscal Year 2002, the TCEQ records
indicate that 326 amendments to flexible permits have been issued. Of
the 326 applications for amendments to Flexible Permits, 135
applications have been required to go through notice due to the
application of the thresholds. Our analysis of this supplemental
information leads us to conclude that the application of the ``de
minimis'' and ``insignificant'' thresholds specific to applications for
Flexible Permit amendments increases the opportunity for public notice
and participation in Texas. In the TSD for this rulemaking, we have
included EPA's full analysis of the State's rationale for these
thresholds and a discussion of the supplemental data provided by TCEQ.
We propose to find this demonstration meets 40 CFR 51.160 and 51.161.
---------------------------------------------------------------------------
\12\ Email from Janis Hudson, TCEQ to Adina Wiley, EPA titled
``Flexible Permit Amendment Applications'' dated September 11, 2013.
\13\ Email from Janis Hudson, TCEQ to Adina Wiley, EPA, titled
``Flexible Permit Amendment Applications--Clarification'' dated
October 23, 2013.
---------------------------------------------------------------------------
4. How do the Texas public notice provisions for applications for new
and amended flexible permits address the concerns identified in EPA's
November 26, 2008 proposed limited approval/limited disapproval for
Texas public participation?
On November 26, 2008, EPA identified two deficiencies in the Texas
public participation rules specific to applications for new Flexible
Permits and amendments to Flexible Permits. See 73 FR 72001, at 72008.
Below we reiterate the deficiencies and discuss how the revised Texas
public participation process for applications for new Flexible Permits
and amendments to Flexible Permits addresses our concerns.
For initial issuance of a flexible permit to establish a
minor NSR applicability cap or an increase in a flexible permit cap,
the rules do not require 30-day notice and comment on information
submitted by the owner or operator and the agency's analysis of the
effect of the permit on ambient air quality, including the agency's
proposed approval or disapproval as required by 40 CFR 51.161.
The public participation requirements specific to applications for
new Flexible Permits and amendments to Flexible Permits at 30 TAC
Sections 39.402(a)(4) and (a)(5) address the deficiency identified on
November 26, 2008. All applications for new Flexible Permits are
required at 30 TAC Section 39.402(a)(4) to go through public notice as
specified in Chapter 39; which means that all applications for new
Flexible Permits must publish the NORI pursuant to 30 TAC Section
39.418 and the NAPD pursuant to 30 TAC Section 39.419. The public
notice process for a new Flexible Permit will run through two different
publication dates. The first public notice announces the company has
applied to the TCEQ for a flexible permit. This date is initially
published first using the NORI. The second public notice announces the
release of the draft permit. The entire public notice period runs
through the end of the second 30-day comment period on the draft
permit. The date may be extended through the date of any public meeting
that was scheduled wherein the public can review TCEQ's analysis and
preliminary determination. All applications for amendments to Flexible
Permits are required at 30 TAC Section 39.402(a)(5) to go through
public notice as specified in Chapter 39 using the NORI and NAPD
process if the amendment will exceed the ``de minimis'' or
``insignificant'' thresholds.
Where PSD and NNSR terms and conditions are modified or
eliminated when the permit is incorporated into a flexible permit, the
rules do not require public participation consistent with 40 CFR 51.161
and 51.166(q).
As explained in Section IV.A.4 of this proposed rulemaking, the
TCEQ adopted amendments to 30 TAC Section 116.711(2)(M)(vii) to specify
that the flexible permit application must identify any terms,
conditions, and representations in any Subchapter B permit which will
be superseded by or incorporated under a flexible permit and provide an
analysis of how the conditions and control requirements of a Subchapter
B permit will be carried forward in the proposed flexible permit. This
amendment to the Flexible Permit Program was submitted as a SIP
revision by the TCEQ on October 21, 2013, and will ensure that the
Flexible Permit Program is for minor NSR actions only and will not
circumvent the major source requirements.
Section 30 TAC Section 39.402(a)(4) provides that an application
for a new flexible permit must go through Chapter 39 public notice.
Therefore, where a new flexible permit application will supersede or
incorporate any term, condition, and/or representation of a Subchapter
B permit, this information will be available for review and
[[Page 8384]]
comment during the required NORI and NAPD publication for an
application for a new flexible permit. Similarly, 30 TAC Section
39.402(a)(5)(A)-(C) requires that an application for an amendment to a
flexible permit application must go through Chapter 39 public notice if
the amendment is for an air contaminant not previously authorized or
the amendment exceeds the identified ``de minimis'' or
``insignificant'' thresholds. The TCEQ Executive Director also has the
discretion under 30 TAC Section 39.402(a)(5)(D) to require notice for
an application for a Flexible Permit amendment that would not otherwise
be required to provide notice.
5. Proposed Findings Specific to the Texas Public Participation
Provisions for the Flexible Permit Program
EPA proposes to find that TCEQ's public participation program
requirements specific to applications for new Flexible Permits and
applications for amendments to Flexible Permits at 30 TAC Sections
39.402(a)(4) and (5) satisfy the provisions of 40 CFR 51.160(e) and
51.161. Moreover, we also propose to find that the TCEQ revised rules
for discretionary public notice for new Flexible Permits and
applications for amendments to Flexible Permits are approvable, because
the provisions adequately confine Executive Director discretion by
authorizing the use of discretion under specified criteria that are
consistent with the goals and purposes of the Act to provide an
adequate opportunity for informed public participation. EPA is
proposing to find that the submitted Texas public participation
regulations identifying the applicant as the legally responsible party
also meet the requirements to provide opportunity for public comment
and for information availability at 40 CFR 51.161, because the NORI and
NAPD both identify locations where materials, including the draft
permit and all technical materials supporting the decision will be made
available for public review and the required information is submitted
to EPA.
Finally, as explained above, we propose to find that the submitted
provisions address all deficiencies specific to public notice for
Flexible Permits that we previously cited in our November 26, 2008,
proposed limited approval/limited disapproval of Texas public notice
requirements. However, EPA views the public participation applicability
provisions at 30 TAC Sections 39.402(a)(4) and (a)(5) as integral to
the functionality and implementation of the Texas Flexible Permits
Program. As such, it is inappropriate to give full approval for these
public participation provisions that apply to the Texas Flexible
Permits Program until the underlying program is fully approved.
Additionally, fully approving these public participation provisions
without full approval of the underlying Flexible Permits Program may
create confusion for the public and the regulated community. Therefore,
we propose to find it appropriate to conditionally approve the notice
provisions consistent with our actions on the underlying Flexible
Permits Program. Accordingly, we propose conditional approval of the
Texas public notice provisions at 30 TAC Sections 39.402(a)(4) and
(a)(5) for applications for new Flexible Permits and applications for
amendments to Flexible Permits as submitted on July 2, 2010.
Additionally, we propose conditional approval of the public
participation requirement in the Flexible Permit Program at 30 TAC
Section 116.740 as initially submitted on November 29, 1994; and
further revised on July 22, 1998; October 25, 1999; and October 21,
2013.
C. Does proposed approval of the Texas Flexible Permit Program
interfere with attainment, reasonable further progress, or any other
applicable requirement of the Act?
Under Section 110(l) of the CAA, the regulations submitted as a SIP
revision adopting and implementing the Texas Flexible Permit Program
must meet the procedural requirements of Section 110(l) by
demonstrating that the State followed all necessary procedural
requirements such as providing reasonable notice and public hearing of
the SIP revision. Additionally, the SIP revision must demonstrate that
the adopted rules will not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the CAA. We propose to find that the TCEQ
satisfied all requirements pursuant to Section 110(l). See Section
IV.A. of the accompanying TSD developed in support of this action
including the sections Administrative Materials (2.1) and Technical
Support (2.2).
The regulation of minor sources is a requirement of the CAA and
EPA's regulations at 40 CFR 51.160-51.164. As discussed in this
proposed action and in the accompanying TSD, EPA proposes that the
Flexible Permit Program as submitted October 21, 2013, satisfies the
minimum requirements for minor NSR programs, including adequate
provisions for enforceability and public participation to ensure
protection of the control strategy and any applicable NAAQS. The
Flexible Permit Program also contains sufficient safeguards to prevent
circumvention of major NSR permitting requirements. Therefore, we
propose that the Flexible Permit Program is protective of the NAAQS and
applicable control strategy requirements and satisfies the requirements
of 110(l) of the Act.
D. TCEQ's Interpretive Letter
Below are excerpts from the December 9, 2013, interpretive letter
(letter) provided by the TCEQ. This letter was requested by EPA to
clarify perceived ambiguity in certain provisions in the SIP submission
and to also describe how the program will be implemented. The full text
of the letter can be found in the Docket for this action. We believe
this letter clarifies the following aspects of the Flexible Permit
Program and supports our determination that the Submittal is
conditionally approvable.
EPA asked for clarification on how director discretion is
used in the rule in establishing monitoring and recordkeeping. The
letter states that director discretion does not act as a variance to
the monitoring and recordkeeping requirements. Texas asserts in its
letter that ``TCEQ does not allow an exemption or waiver from these
statutory and regulatory monitoring and recordkeeping requirements.''
They further assert that the ``monitoring condition is bounded by the
requirement to be based on sound science and meet generally acceptable
scientific procedures for data quality and manipulation. The sampling
methods and procedures are those generally recognized in the field of
air pollution or new methods or procedures with demonstrated scientific
applicability.'' Whatever the requirements the Executive Director
imposes, permit holders must maintain information ``sufficient to
demonstrate continuous compliance'' with the emission caps and
individual limits. 30 TAC Section 116.715(c)(6). We agree with TCEQ
that this ensures the Program's enforceability and conclude that the
information in the letter supports our proposed conditional approval.
EPA asked for clarification regarding how pollution
control equipment should be maintained and operated during startup/
shutdown. The State explained in its letter that the process works as
follows: ``The Flexible Permit Program (FPP) requires controls to be
operated during normal facility operation. This rule may be construed
to require operation of emission controls only during routine facility
operations, potentially exempting sources during
[[Page 8385]]
startups or shutdowns (not malfunctions), but that is accurate only to
the extent that the permit only authorizes routine operations. Emission
limits for startups and shutdowns, appropriately modeled during permit
development, may be authorized and be subject to a separate emissions
cap in the flexible permit. The TCEQ does not authorize malfunctions,
and therefore those emissions are not subject to any use of control
equipment, although the control equipment must be used where feasible,
to minimize emissions where possible during periods of unauthorized
emissions. Excess emissions that occur during unauthorized startups,
shutdowns or malfunctions are not excused by the FPP.'' We agree with
TCEQ that this interpretation of their rule adequately addresses
startups, shutdowns, and malfunctions and conclude that the information
in the letter supports our proposed conditional approval. EPA asked for
clarification on how the Texas SIP approved alternative permitting
mechanisms may be used to alter a flexible permit. Also we wanted to
understand in detail that any such changes, using alternative permit
mechanisms (Standard permits or Permits by Rule (PBR)), would not be
allowed if they violate the terms of an existing flexible permit. For
example, if the flexible permit contains a 100 tpy cap then a facility
(see Section II.M. regarding an explanation of how TCEQ defines
``facility'') should not be able to use a PBR to get authorization to
increase emissions by 10 tons without amending the flexible permit. The
State responded, in part, that ``Either of these authorizations may be
used for facilities that are subject to a flexible permit cap, but the
Standard Permit or PBR limits must be contained within the flexible
permit cap, and cannot be used to relax or minimize any existing permit
condition (such as recordkeeping, monitoring, reporting, testing, BACT,
etc.). If one of these authorizations was allowed without being part of
the emissions subject to the cap, such an approach would circumvent the
basis used to establish the flexible permit, and could potentially
affect the control technology, monitoring and testing requirements that
were used to establish the emission cap.'' In addition, Texas explained
that ``standard permits and PBRs cannot be used to alter compliance
obligations in a flexible permit. Further, if more than one state or
federal rule or regulation or permit conditions are applicable, the
most stringent limit or condition shall govern and be the standard by
which compliance shall be demonstrated''. We agree with TCEQ that this
clarification about how alternative permitting mechanisms may be used
to alter a flexible permit resolves our concern and conclude that the
information in the letter supports our proposed conditional approval.
EPA asked for clarification on the relationship between an issued
permit and the permit application. Specifically, do the Texas rules
require the permit application be updated with the permit terms so
there is never a situation where compliance with the permit application
would not be the same as compliance with the permit? In response Texas
stated, ``The permit application, and all the representations in it, is
part of the permit when it is issued and as such is enforceable. If
more than one state or federal rule or regulation or flexible permit
condition are applicable, then the most stringent limit or condition
shall govern and be the standard by which compliance shall be
demonstrated. The permit application is not updated after permit
issuance except as necessary to demonstrate that the facilities can
comply with the performance specified in the permit.'' In addition,
Texas stated, ``As is the case with all TCEQ air quality permits, the
permit application, which is part of the issued permit, continues to be
read together with any permit changes made via an alteration or
amendment.'' We agree with TCEQ that this clarification about the
relationship between an issued permit and the permit application
resolves our concern and conclude that the information in the letter
supports our proposed conditional approval.
EPA asked for clarification on how the State uses BACT to
create the emissions cap. We specifically requested an interpretation
on how BACT will be established and implemented for facilities (see
discussion on TCEQ's definition of ``facility'') constructed prior to
1972 (commonly referred to as grandfathered facilities); facilities
constructed after 1971 that will be under an emissions cap; and
facilities that are subject to PSD permit requirements. In relevant
part, Texas stated that with regard to grandfathered facilities, there
are no longer any grandfathered facilities, for state permitting
purposes, in Texas. At the time the Texas Clean Air Act (TCAA) was
amended in 2001 to require these facilities to be permitted (or shut
down), each had to install BACT that was at least ten years old. For
facilities constructed after 1971, the TCEQ's NSR permit rules require
new or modified major or minor sources meet BACT regardless of whether
there is or will be a cap in a minor NSR permit. The cap is established
using a current BACT analysis, and, although minor sources may not have
to add controls, removal of existing controls (which would be
backsliding under the SIP) is not allowed. Therefore, all facilities
under the cap must meet overall/collective BACT. When a new facility is
authorized, the new facility must meet the current BACT level at the
time it is authorized regardless of whether it is subject to an
emissions cap. For facilities that are subject to a cap, BACT is
evaluated for any new facility that is proposed to be added to what is
already authorized under the cap. When existing facilities are
modified, and the existing facilities are authorized under an existing
emissions cap, BACT is reviewed and the cap is adjusted accordingly.
Emission limitation caps are developed based on the potential to emit
after the application of BACT (or, if applicable, lowest achievable
emission rate) emission controls. Further, allowable emission limits,
expressed as a cap for an individual facility, are expressed in terms
of annual (tons per year) or short-term (e.g., pounds per hour) units.
BACT is typically expressed in terms of a mass emission calculation,
such as pounds per million British thermal units (lb/MMBtu) or parts
per million (ppm). Establishment of caps after application of the
appropriate control technology does not relax the control technology.''
We agree with TCEQ that this clarification about how BACT is used to
create an emissions cap resolves our concern and conclude that the
information in the letter supports our proposed conditional approval.
EPA asked for clarification on how the Flexible Permit
Program relates to major source permitting. In response Texas stated,
``facilities subject to PSD or non-attainment NSR requirements must
meet control technology determined in accordance with SIP approved 30
TAC Chapter 116, Subchapter B requirements and removal, avoidance or
circumvention of control equipment is not allowed for facilities
subject to PSD or non-attainment NSR. We agree with TCEQ that this
interpretation further supports that the Flexible Permit Program does
not allow circumvention of major NSR and conclude that the information
in the letter supports our proposed conditional approval.
E. Summary of EPA's Evaluation of the Flexible Permit Program as a
Minor NSR Program
For the reasons presented above, EPA finds that the Flexible Permit
Program,
[[Page 8386]]
as submitted on October 21, 2013, is limited to minor NSR permitting.
EPA finds that the program satisfies the federal requirements for minor
NSR programs and contains sufficient enforceable safeguards to ensure
that the NAAQS and applicable control strategies are protected.
Further, the Flexible Permit Program prevents circumvention of major
NSR requirements by stating at 30 TAC Section 116.716(c)(1)(A) that if
a new source or modification subject to either a flexible permit or
flexible permit amendment is subject to major NSR requirements, either
PSD or NNSR, under 30 TAC Chapter 116, Subchapter B, then the major NSR
permitting requirements will apply.
Therefore, the EPA is proposing to conditionally approve the
Flexible Permit Program based on the commitment from the TCEQ to adopt
and submit Flexible Permit Program SIP revisions by November 30, 2014,
that will reformat and organize the full program into a cohesive,
understandable, and enforceable program as TCEQ proposed to do in its
December 9, 2013, commitment letter.
V. Proposed Action
EPA proposes to conditionally approve the Texas Flexible Permit
Program that was originally submitted as a revision to the Texas Minor
NSR SIP Permit Program on November 29, 1994. We also proposed to
conditionally approve the Texas Flexible Permit Program as further
amended on March 13, 1996; July 22, 1998; October 25, 1999; September
11, 2000; April 12, 2001; July 31, 2002, September 4, 2002; October 4,
2002; September 25, 2003; July 2, 2010; October 5, 2010; and October
21, 2013. Our proposed conditional approval of the Texas Flexible
Permit Program is conditioned on the TCEQ adopting and submitting a SIP
revision addressing the December 9, 2013, commitment letter provided by
the TCEQ. The commitment states that TCEQ will submit amended rules
that are properly structured and consistent, as discussed earlier, with
the actions taken by the Commission on September 24, 2013, and with
rulemaking requirements of the Texas Administrative Procedure Act by
November 30, 2014. EPA has made the preliminary determination that the
Flexible Permit Program is conditionally approvable as a minor NSR
permit program in accordance with the CAA Section 110 and part C, and
EPA regulations at 40 CFR 51.160-51.164 for the reasons presented above
and in our accompanying TSD. EPA invites the public to make comments on
all aspects of the EPA proposed conditional approval of the Texas
Flexible Permit Program, and to submit them by the Date listed above.
EPA proposes to conditionally approve the specific revisions to the
Texas SIP identified below.
Revisions to 30 TAC Section 39.402(a)(4) and (a)(5)--
Applicability to applications for new and amended Flexible Permits--
submitted July 2, 2010.
Revisions to 30 TAC Section 116.10--General Definitions--
submitted March 13, 1996; Repealed, adopted and submitted July 22,
1998; Redesignated and submitted October 4, 2002; Amended
116.10(9)(E)--submitted October 5, 2010.
Revisions to 30 TAC Section 116.13--Flexible Permit
Definitions--submitted November 29, 1994; Repealed, adopted and
submitted July 22, 1998; Adopted revisions submitted October 21, 2013.
Revisions to 30 TAC Section 116.110--Applicability--
submitted November 29, 1994; Section 116.110(a)(3) Repealed, adopted
and submitted July 22, 1998.
Revisions to 30 TAC Section 116.710--Applicability--
submitted November 29, 1994; Revised and submitted July 22, 1998;
Revised and submitted September 11, 2000.
Revisions to 30 TAC Section 116.711--Flexible Permit
Application--submitted November 29, 1994; Revised and submitted July
22, 1998; Added, redesignated and submitted April 12, 2001; Designated,
added, revised and submitted September 4, 2002; and Adopted revisions
submitted October 21, 2013.
Revisions to 30 TAC Section 116.714--Application Review
Schedule--submitted November 29, 1994; Revised and submitted July 22,
1998.
Revisions to 30 TAC Section 116.715--General and Special
Conditions--Submitted November 29, 1994; Revised and submitted July 22,
1998; Revised and submitted September 11, 2000; Revised and submitted
April 12, 2001; Revised and submitted September 4, 2002; Revised and
submitted September 25, 2003.
Revisions to 30 TAC Section 116.716--Emission Caps and
Individual Emission Limitations--submitted November 29, 1994; and
Adopted revisions submitted October 21, 2013.
Revisions to 30 TAC Section 116.717--Implementation
Schedule for Additional Controls--submitted November 29, 1994.
Revisions to 30 TAC Section 116.718--Significant Emission
Increase--submitted November 29, 1994.
Revisions to 30 TAC Section 116.720--Limitation on
Physical and Operational Changes--submitted November 29, 1994.
Revisions to 30 TAC Section 116.721--Amendments and
Alterations--submitted November 29, 1994; Revised and submitted July
22, 1998; Revised and submitted September 11, 2000.
Revisions to 30 TAC Section 116.722--Distance
Limitations--submitted November 29, 1994; Revised and submitted
September 11, 2000.
30 TAC Section 116.730--Compliance History--submitted
November 29, 1994; Withdrawn October 21, 2013.
Revisions to 30 TAC Section 116.740(a)--Public Notice and
Comment--submitted November 29, 1994; Designated, added and submitted
July 22, 1998; Revised and submitted October 25, 1999; and Adopted
revisions submitted October 21, 2013.
Revisions to 30 TAC Section 116.750--Flexible Permit Fee--
submitted November 29, 1994; Revised and submitted July 22, 1998;
Revised and submitted September 11, 2000; Revised and submitted October
4, 2002; and Adopted revisions submitted October 21, 2013.
Revisions to 30 TAC Section 116.760 Flexible Permit
Renewal--submitted November 29, 1994.
Revisions to 30 TAC Section 116.765--Compliance Schedule--
submitted October 21, 2013.
Those regulatory sections that were identified as being withdrawn
by the TCEQ in the October 21, 2013, submittal and identified in the
cover letter to the package are also identified below:
30 TAC Section 116.711(3) (last sentence only) and (11),
as amended August 21, 2002, and all earlier versions withdrawn October
21, 2013.
Adopted revisions submitted October 21, 2013. 30 TAC
Section 116.715(a), only with regard to the text ``or Subchapter C of
this chapter (relating to Hazardous Air Pollutants: Regulations
Governing Constructed or Reconstructed Major Sources (FCAA Section
112(g), 40 CFR Part 63))'', as amended August 21, 2002, and all earlier
versions withdrawn on October 21, 2013.
30 TAC Section 116.715(c)(6) as amended August 20, 2003,
and all earlier versions withdrawn October 21, 2013. 30 TAC Section
116.716(a) and (d), as adopted November 16, 1994, withdrawn October 21,
2013.
[[Page 8387]]
30 TAC Section 116.730 adopted November 16, 1994, and
repealed and readopted June 17, 1998.
30 TAC Section 116.740(b), adopted June 17, 1998, and
amended September 2, 1999, withdrawn October 21, 2013. 30 TAC Section
116.803, adopted August 21, 2002, withdrawn October 21, 2013.
If the conditional approval of the Texas Flexible Permit Program is
finalized following EPA's review of comments received and the TCEQ
satisfies the terms of the commitment letter, the TCEQ will then submit
a SIP revision to the EPA for review which must contain all the terms
of the commitment letter. If the EPA determines that the TCEQ has met
all the conditions, we will make such a finding in the Federal
Register.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. See, 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds and Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 29, 2014.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2014-03119 Filed 2-11-14; 8:45 am]
BILLING CODE 6560-50-P
