
[Federal Register: July 15, 2010 (Volume 75, Number 135)]
[Rules and Regulations]               
[Page 41311-41335]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy10-16]                         


[[Page 41311]]

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Part III





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Implementation Plans; Texas; Revisions to 
the New Source Review (NSR) State Implementation Plan (SIP); Flexible 
Permits; Final Rule


[[Page 41312]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-TX-0032; FRL-9174-1]

 
Approval and Promulgation of Implementation Plans; Texas; 
Revisions to the New Source Review (NSR) State Implementation Plan 
(SIP); Flexible Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to disapprove revisions to the SIP 
submitted by the State of Texas that relate to the State's Flexible 
Permits Program (the Texas Flexible Permits Program or the Program). 
EPA is disapproving the Texas Flexible Permits Program because it does 
not meet the Minor NSR SIP requirements nor does it meet the NSR SIP 
requirements for a substitute Major NSR SIP revision. We are taking 
this action under section 110, part C, and part D, of Title I of the 
Federal Clean Air Act (the Act or CAA).

DATES: This rule is effective on August 16, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2005-TX-0032. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the Air 
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 Freedom 
of Information Act Review Room between the hours of 8:30 a.m. and 4:30 
p.m. weekdays except for legal holidays. Contact the person listed in 
the FOR FURTHER INFORMATION CONTACT paragraph below to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 15 cent per page 
fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittals, which are part of the EPA record, are also 
available for public inspection at the State Air Agency listed below 
during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; 
fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the following 
terms have the meanings described below:
     ``we,'' ``us,'' and ``our'' refer to EPA.
     ``Act'' and ``CAA'' mean the Federal Clean Air Act.
     ``40 CFR'' means Title 40 of the Code of Federal 
Regulations--Protection of the Environment.
     ``SIP'' means State Implementation Plan established under 
section 110 of the Act.
     ``NSR'' means new source review, a phrase intended to 
encompass the statutory and regulatory programs that regulate the 
construction and modification of stationary sources as provided under 
CAA Title I, section 110(a)(2)(C) and parts C and D, and 40 CFR 51.160 
through 51.166.
     ``Minor NSR'' means NSR established under section 110 of 
the Act and 40 CFR 51.160.
     ``NNSR'' means nonattainment NSR established under Title 
I, section 110 and part D of the Act, and 40 CFR 51.165.
     ``PSD'' means prevention of significant deterioration of 
air quality established under Title I, section 110 and part C of the 
Act, and 40 CFR 51.166.
     ``Major NSR'' means any new or modified source that is 
subject to NNSR and/or PSD.
     ``Program'' means the SIP revision submittals from the 
TCEQ concerning the Texas Flexible Permits State Program.
     ``TSD'' means the Technical Support Document for this 
action.
     ``NAAQS'' means any national ambient air quality standard 
established under 40 CFR part 50.
     ``MRR'' means monitoring, reporting, and recordkeeping 
requirements.

Table of Contents

I. What action is EPA taking?
II. What is the background?
    A. Summary of Our Proposed Action
    B. Summary of the Submittals Addressed in This Final Action
    C. Other Relevant Actions on the Texas Permitting SIP Revision 
Submittals
III. Response to Comments
    A. General Comments
    B. Whether the Flexible Permits Program Is Clearly a Minor, Not 
a Major, NSR SIP Revision
    C. Whether the Flexible Permits Program Meets the Requirements 
for a Substitute Major NSR SIP Revision
    1. General Comment on Whether the Program is a Substitute Major 
NSR SIP Revision
    2. Requirements for Major NSR Applicability Determinations
    3. Circumvention of Major NSR
    4. Use of Allowable Emissions in Major NSR
    5. Retention of Major NSR Permit Terms and Conditions
    6. Protection of the NAAQS Attainment Under Major NSR
    D. Whether the Flexible Permits Program Meets the Requirements 
for a Minor NSR SIP Revision
    1. Applicability for a Minor NSR Program
    2. Establishment of the Emission Cap Under Minor NSR
    3. Enforceability of a Minor NSR Program
    4. Revocation of Major NSR Permits Under a Minor NSR Program
    5. Protection of the NAAQS Under a Minor NSR Program
    E. Definition of Account
    F. Public Participation
IV. What are the grounds for this disapproval action of the Texas 
Flexible Permits State Program?
    A. The Texas Flexible Permits Program Is Unclear Whether it is 
for a Major or Minor NSR SIP Revision
    B. The Texas Flexible Permits Program Is Not Approvable as a 
Substitute Major NSR SIP Revision
    C. The Texas Flexible Permits Program Is Not Approvable as a 
Minor NSR SIP Revision
    D. The Texas Flexible Permits Program Does Not Meet the NSR 
Public Participation Requirements
    E. Definition of ``Account''
V. Final Action
VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is taking final action to disapprove the Texas Flexible Permits 
State Program, as submitted by Texas on November 29, 1994, as revised 
by severable portions of the March 13, 1996, SIP revision submittal, 
and severable portions of the July 22, 1998 SIP revision submittal that 
repealed and replaced portions of, as well as revised, the 1994 
submittal and repealed and replaced all of the 1996 submittal; and as 
revised by severable portions of the October 25, 1999; September 11, 
2000; April 12, 2001; September 4, 2002; October 4, 2002; and September 
25,

[[Page 41313]]

2003; SIP revision submittals. These submittals include revisions to 
Title 30 of the Texas Administrative Code (30 TAC) at 30 TAC Chapter 
116--Control of Air Pollution by Permits for New Construction or 
Modification. This includes the following regulations under Chapter 
116: 30 TAC 116.110(a)(3), 30 TAC Subchapter G-Flexible Permits, the 
definitions in 30 TAC 116.13--Flexible Permit Definitions, and the 
definition in 30 TAC 116.10(11)(F) of ``modification of existing 
facility.'' These State regulations and definitions do not meet the 
requirements of the Act and EPA's NSR regulations. EPA has concluded 
that none of these identified elements for the submitted Flexible 
Permits Program is severable from each other.
    EPA proposed an action for the above SIP revision submittals on 
September 23, 2009 (74 FR 48480). We accepted comments from the public 
on this proposal from September 23, 2009, until November 23, 2009. A 
summary of the comments received and our evaluation thereof is 
discussed in section III below. In the proposal and in the Technical 
Support Document (TSD), we described our basis for the actions 
identified above. The reader should refer to the proposal, the TSD, 
section IV of this preamble, and the Response to Comments in section 
III of this preamble for additional information relating to our final 
action.
    EPA is disapproving the submitted Texas Flexible Permits State 
Program as not meeting the requirements for a Minor NSR SIP revision. 
Our grounds for disapproval as a Minor NSR SIP revision include the 
following:
     The submitted 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, thereby potentially 
exempting new major stationary sources and major modifications from the 
EPA Major NSR SIP requirements;
     It is not an enforceable NSR permitting program. The 
submitted Program lacks requirements necessary for enforcement and 
assurance of compliance. There are no specific up-front methodologies 
in the Program to be able to determine compliance. It fails to meet the 
enforceability requirements as a program or by a holder of a Flexible 
Permit, and it cannot assure compliance with the Program or of the 
affected source;
     It lacks the necessary more specialized monitoring, 
recordkeeping, and reporting (MRR) requirements required for this type 
of Minor NSR program, as selected by Texas, to ensure accountability 
and provide a means to determine compliance. The submitted Program is 
generic concerning the types of monitoring that is required rather than 
identifying the employment of specific monitoring approaches, providing 
the technical specifications for each of the specific allowable 
monitoring systems, and requiring replicable procedures for the 
approval of any alternative monitoring system. It also lacks the 
replicable procedures that are necessary to ensure that (1) adequate 
monitoring is required that would accurately determine emissions under 
the Flexible Permit cap, (2) the Program is based upon sound science 
and meets generally acceptable scientific procedures for data quality 
and manipulation; and (3) the information generated by such system 
meets minimum legal requirements for admissibility in a judicial 
proceeding to enforce the Flexible Permit;
     It lacks replicable, specific, established implementation 
procedures for establishing the emissions cap in a Minor NSR Flexible 
Permit;
     It fails to ensure that the terms and conditions of Major 
NSR SIP permits are retained. Major stationary sources and major 
modifications can use this submitted Program to fundamentally change 
the way they comply with specific terms and conditions established in 
their Major NSR SIP permits. Holders of Major NSR SIP permits are not 
prohibited from using the submitted Program's allowables-based 
emissions cap. The Act prohibits the use of an allowables-based cap for 
Major NSR SIP permittees;
     It fails to meet the statutory and regulatory requirements 
for a Minor NSR SIP revision and is not consistent with EPA policy and 
guidance on Minor NSR SIP revisions; and
     Based upon, among other things, the lack of any objective, 
replicable methodology for establishing the emission cap, the too broad 
director discretion provision regarding whether or not to include MRR 
conditions in a Flexible Permit, the lack of sufficient MRR 
requirements for this type of permit program, and the lack of 
enforceability, EPA lacks sufficient information to determine that the 
requested revision to add the new permit option to the Texas Minor NSR 
SIP will not interfere with any applicable requirement concerning 
attainment and reasonable further progress (RFP), or any other 
requirement of the Act.
    We are disapproving the submitted Texas Flexible Permits State 
Program as not meeting the requirements for a substitute Major NSR SIP 
revision. EPA understands that the TCEQ intended for the submitted 
Program to be a Minor NSR program but we are required to review it as a 
substitute Major NSR SIP revision because the State should have 
included express language stating that, as it did in the two other 
Minor NSR SIP alternative permit options (Standard Permits and Permits 
by Rule), that the submitted Program is clearly limited to Minor NSR 
and prohibits circumvention of Major NSR. Our grounds for disapproval 
as a substitute Major NSR SIP revision include the following:
     It is not clearly limited to Minor NSR thereby potentially 
exempting new major stationary sources to construct and major 
modifications to occur without a Major NSR permit;
     It has no regulatory provisions clearly prohibiting the 
use of this Program from circumventing the Major NSR SIP requirements, 
thereby allowing sources to use a Flexible Permit to avoid the 
requirement to obtain preconstruction permit authorizations for 
projects that would otherwise require a Major NSR preconstruction 
permit;
     It does not include a demonstration from the TCEQ, as 
required by 40 CFR 51.165(a)(2)(ii) and 51.166(a)(7)(iv), showing how 
the use of ``modification'' is at least as stringent as the definition 
of ``modification'' in the EPA Major NSR SIP program and meets the Act;
     It does not include a demonstration from the TCEQ, as 
required by 40 CFR 51.165(a)(2)(ii) and 51.166(a)(7)(iv), showing the 
submitted Program is at least as stringent as the EPA Major NSR SIP 
program;
     It does not include the requirement to make Major NSR 
applicability determinations based on actual emissions and on emissions 
increases and decreases (netting) that occur within a major stationary 
source;
     To the extent that major stationary sources and major 
modifications are exempted from Major NSR, it fails to meet the 
statutory and regulatory requirements for a Major NSR SIP revision and 
is not consistent with EPA policy and guidance on Major NSR SIP 
revisions;
     Because it fails to include, among other things, the 
required demonstration from the State showing how the customized Major 
NSR SIP revision is in fact as stringent as EPA's Major NSR revised 
program, any objective, replicable methodology for calculating the 
emissions cap, provides too broad director discretion regarding whether 
or not to include monitoring, recordkeeping, and reporting (MRR)

[[Page 41314]]

conditions in a Flexible Permit, lacks sufficient MRR requirements for 
this type of permit program, and is not enforceable, EPA lacks 
sufficient information to make a finding that the submitted Program 
will ensure protection of the national ambient air quality standards 
(NAAQS), and noninterference with the Texas SIP control strategies and 
RFP.
    The provisions in these submittals relating to the Texas Flexible 
Permits State Program that include the Chapter 116 regulatory 
provisions and the nonseverab1e definitions in the Flexible Permits 
Definitions and the General Definitions were not submitted to meet a 
mandatory requirement of the Act. Therefore, this final action to 
disapprove the submitted Texas Flexible Permits State Program does not 
trigger a sanctions or Federal Implementation Plan clock. See CAA 
section l79(a).

II. What is the background?

A. Summary of 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 Permits 
Program. These affected provisions include regulatory provisions at 30 
TAC 116.110(a)(3) and 30 TAC Subchapter G--Flexible Permits, 
definitions in 30 TAC 116.13, Flexible Permits Definitions, and a 
nonseverable portion of the definition at subparagraph 116.10(11)(F) of 
``modification of existing facility'' under Texas's General Definitions 
in Chapter 116, Control of Air Pollution by Permits for New 
Construction or Modification. EPA finds that these submitted provisions 
and definitions are not severable from each other.

B. Summary of the Submittals Addressed in This Final Action

    Tables 1 and 2 below summarize the changes that are in the SIP 
revision submittals. A summary of EPA's evaluation of each section and 
the basis for this final action is discussed in sections III through V 
of this preamble. The TSD (which is in the docket) includes a detailed 
evaluation of the submittals.

                     Table 1--Summary of Each SIP Submittal That Is Affected by This Action
----------------------------------------------------------------------------------------------------------------
                                             Date submitted   Date of State
           Title of SIP submittal                to EPA         adoption             Regulations affected
----------------------------------------------------------------------------------------------------------------
Flexible Permits...........................      11/29/1994      11/16/1994   Revision to 30 TAC
                                                                              116.110.
                                                                              Adoption of New 30 TAC
                                                                              116.13 and New Subchapter G, 30
                                                                              TAC 116.710, 116.711, 116.714,
                                                                              116.715, 116.716, 116.717,
                                                                              116.718, 116.720, 116.721,
                                                                              116.722, 115.730, 116.740,
                                                                              116.750, and 116.760.
Qualified Facilities and Modifications to         3/13/1996       2/14/1996   Revision of 30 TAC 116.10
 Existing Facilities.                                                         to add new definition of
                                                                              ``modification of existing
                                                                              facility'' at (F).
NSR Rule Revisions; section 112(g) Rule           7/22/1998       6/17/1998   Repeal and new 30 TAC
 Review for Chapter 116.                                                      116.10(9)(F), 116.13 and
                                                                              116.110(a)(3) adopted.
                                                                              Revisions to Subchapter G,
                                                                              30 TAC 116.710, 116.711, 116.714,
                                                                              116.715, 116.721, 116.730, and
                                                                              116.750.
Public Participation (HB 801)..............      10/25/1999        9/2/1999   Revision to Subchapter G,
                                                                              30 TAC 116.740.
Air Permits (SB-766)--Phase II.............       9/11/2000        8/9/2000   Revisions to Subchapter G,
                                                                              30 TAC 116.710, 116.715, 116.721,
                                                                              116.722, and 116.750.
Emissions Banking and Trading..............       4/12/2001        3/7/2001   Revisions to Subchapter G,
                                                                              30 TAC 116.711 and 116.715.
House Bill 3040: Shipyard Facilities and           9/4/2002       8/21/2002   Revision to 30 TAC 116.10,
 NSR Maintenance Emissions.                                                   redesignating 30 TAC 116.10(9)(F)
                                                                              to 116.10(11)(F).
                                                                              Revisions to Subchapter G,
                                                                              30 TAC 116.711 and 116.715.
Air Fees...................................       10/4/2002       9/25/2002   Revisions to Subchapter G,
                                                                              30 TAC 116.750.
Offset Certification, New Source Review           9/25/2003       8/20/2003   Revision to Subchapter G,
 Permitting Processes and Extensions for                                      30 TAC 116.715.
 Construction.
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                       Table 2--Summary of Each Regulation That Is Affected by This Action
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                                                                         Date adopted
             Section                      Title         Date submitted     by State             Comments
----------------------------------------------------------------------------------------------------------------
              Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10(11)(F)............  General Definitions       3/13/1996       2/14/1996   Revised to add
                                                                                         new definition of
                                                                                         ``modification of
                                                                                         existing facility'' at
                                                                                         (F).
                                                             7/22/1998       6/17/1998   Repealed and
                                                                                         Adopted new 30 TAC
                                                                                         116.10(9)(F).
                                                              9/4/2002       8/21/2002   Redesignated 30
                                                                                         TAC 116.10(9)(F) to 30
                                                                                         TAC 116.10(11)(F).
Section 116.13...................  Flexible Permit          11/29/1994      11/16/1994   Initial
                                    Definitions.                                         Adoption.
                                                             7/22/1998       6/17/1998   Repealed and
                                                                                         Adopted new 30 TAC
                                                                                         116.13.
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                                 Subchapter B--New Source Review Permits
                                      Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.110..................  Applicability......      11/29/1994      11/16/1994   Revised (a) to
                                                                                         add reference to
                                                                                         Flexible Permits.
                                                             7/22/1998       6/17/1998   Repealed and
                                                                                         adopted a new 30 TAC
                                                                                         116.110.

[[Page 41315]]


                                                        ..............  ..............   Included
                                                                                         reference to Flexible
                                                                                         Permits in new 30 TAC
                                                                                         116.110(a)(3).
----------------------------------------------------------------------------------------------------------------
                                      Subchapter G--Flexible Permits
----------------------------------------------------------------------------------------------------------------
Section 116.710..................  Applicability......      11/29/1994      11/16/1994   Initial
                                                                                         adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         subsection (a).
                                                        ..............  ..............   Removed
                                                                                         subsection (b) and
                                                        ..............  ..............   Redesignated
                                                                                         existing subsections
                                                                                         (c)-(e) to subsections
                                                                                         (b)-(d).
                                                        ..............  ..............   Revised
                                                                                         subsections (b)-(d) as
                                                                                         redesignated.
                                                             9/11/2000        8/9/2000   Revised
                                                                                         subsection (b).
Section 116.711..................  Flexible Permit          11/29/1994      11/16/1994   Initial
                                    Application.                                         adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         introductory paragraph
                                                                                         and paragraphs (1)-(5);
                                                        ..............  ..............   Added new
                                                                                         paragraphs (6) and
                                                                                         (11):
                                                        ..............  ..............   Redesignated
                                                                                         existing paragraphs (6)-
                                                                                         (9) to paragraphs (7)-
                                                                                         (10) and existing
                                                                                         paragraphs (10)-(11) to
                                                                                         paragraphs (12)-(13);
                                                                                         and
                                                        ..............  ..............   Revised
                                                                                         paragraphs (8)-(10) as
                                                                                         redesignated.
                                                             4/12/2001        3/7/2001   Added new
                                                                                         paragraph (12); and
                                                        ..............  ..............   Redesignated
                                                                                         existing paragraphs
                                                                                         (12)-(13) to paragraphs
                                                                                         (13)-(14).
                                                              9/4/2002       8/21/2002   Designated
                                                                                         existing as subsection
                                                                                         (a);
                                                        ..............  ..............   Added new
                                                                                         subsection (b); and
                                                        ..............  ..............   Revised
                                                                                         paragraphs (a)(8)-(11)
                                                                                         as redesignated.
Section 116.714..................  Application Review       11/29/1994      11/16/1994   Initial
                                    Schedule.                                            adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         introductory paragraph.
Section 116.715..................  General and Special      11/29/1994      11/16/1994   Initial
                                    Conditions.                                          adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         subsection (a), and
                                                                                         paragraphs (c)(3)-(6),
                                                                                         and (9)-(10).
                                                             9/11/2000        8/9/2000   Revised
                                                                                         subsection (a).
                                                             4/12/2001        3/7/2001   Revised
                                                                                         paragraph (c)(3).
                                                              9/4/2002       8/21/2002   Revised
                                                                                         paragraph (c)(9).
                                                             9/25/2003       8/20/2003   Revised
                                                                                         paragraphs (c)(1) and
                                                                                         (c)(9).
Section 116.716..................  Emission Caps and        11/29/1994      11/16/1994   Initial
                                    Individual                                           adoption.
                                    Limitations.
Section 116.717..................  Implementation           11/29/1994      11/16/1994   Initial
                                    Schedule for                                         adoption.
                                    Addition Controls.
Section 116.718..................  Significant              11/29/1994      11/16/1994   Initial
                                    Emission Increase.                                   adoption.
Section 116.720..................  Limitation on            11/29/1994      11/16/1994   Initial
                                    Physical and                                         adoption.
                                    Operational
                                    Changes.
Section 116.721..................  Amendments and           11/29/1994      11/16/1994   Initial
                                    Alterations.                                         adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         paragraphs (b)(2) and
                                                                                         (d)(1)-(2).
                                                             9/11/2000        8/9/2000   Revised
                                                                                         subsection (d) and
                                                                                         paragraph (d)(1).
Section 116.722..................  Distance                 11/29/1994      11/16/1994   Initial
                                    Limitations.                                         adoption.
                                                             9/11/2000        8/9/2000   Revised
                                                                                         introductory paragraph.
Section 116.730..................  Compliance History.      11/29/1994      11/16/1994   Initial
                                                                                         adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         introductory paragraph.
Section 116.740..................  Public Notice and        11/29/1994      11/16/1994   Initial
                                    Comment.                                             adoption.
                                                             7/22/1998       6/17/1998   Designated
                                                                                         existing text as
                                                                                         subsection (a); and
                                                        ..............  ..............   Added new
                                                                                         subsection (b).
                                                            10/25/1999        9/2/1999   Revised
                                                                                         subsections (a)-(b).
Section 116.750..................  Flexible Permit Fee      11/29/1994      11/16/1994   Initial
                                                                                         adoption.
                                                             7/22/1998       6/17/1998   Revised
                                                                                         subsections (b)-(d).
                                                             9/11/2000        8/9/2000   Revised
                                                                                         subsection (d).
                                                             10/4/2002       9/25/2002   Revised
                                                                                         subsections (b)-(c).
Section 116.760..................  Flexible Permit          11/29/1994      11/16/1994   Initial
                                    Renewal.                                             adoption.
----------------------------------------------------------------------------------------------------------------


[[Page 41316]]

C. Other Relevant Actions on the Texas Permitting SIP Revision 
Submittals

    The Settlement Agreement in BCCA Appeal Group v. EPA, Case No. 
3:08-cv-01491-N (N.D. Tex), as amended, currently provides that EPA 
will take final action on the State's Public Participation SIP revision 
submittal by October 29, 2010. EPA intends to take final action on the 
submitted NSR SIP by August 31, 2010, as provided in the Consent Decree 
entered on January 21, 2010 in BCCA Appeal Group v. EPA, Case No. 3:08-
cv-01491-N (N.D. Tex). EPA published its final action on the Texas 
Qualified Facilities Program and its associated General Definitions on 
April 14, 2010 (See 75 FR 19467) as provided in the Consent Decree.
    Additionally, EPA acknowledges that TCEQ is developing a proposed 
rulemaking package to address EPA's concerns with the current Flexible 
Permits rules. We will, of course, consider any rule changes if and 
when they are submitted to EPA for review. However, the rules before us 
today are those of the current Flexible Permits Program, and we have 
concluded that the current Program is not approvable for the reasons 
set out in this notice.

III. Response to Comments

    In response to our September 23, 2009, proposal, we received 
comments from the following: Baker Botts, L.L.P., on behalf of BCCA 
Appeal Group (BCCA); Baker Botts, L.L.P., on behalf of Texas Industrial 
Project (TIP); Bracewell & Guiliani, L.L.P., on behalf of the Electric 
Reliability Coordinating Council (ERCC); Gulf Coast Lignite Coalition 
(GCLC); Office of the Mayor--City of Houston, Texas (City of Houston); 
Harris County Public Health and Environmental Services (HCPHES); Sierra 
Club--Houston Regional Group (Sierra Club); Sierra Club Membership 
Services (including 2,062 individual comment letters) (SCMS); Texas 
Chemical Council (TCC); Texas Commission on Environmental Quality 
(TCEQ); Members of the Texas House of Representatives; Texas 
Association of Business (TAB); Texas Oil and Gas Association (TxOGA); 
and University of Texas at Austin School of Law--Environmental Clinic 
on behalf of Environmental Integrity Project (the Clinic), 
Environmental Defense Fund, Galveston-Houston Association for Smog 
Prevention, Public Citizen, Citizens for Environmental Justice, Sierra 
Club Lone Star Chapter, Community-In-Power and Development Association, 
KIDS for Clean Air, Clean Air Institute of Texas, Sustainable Energy 
and Economic Development Coalition, Robertson County: Our Land, Our 
Lives, Texas Protecting Our Land, Water and Environment, Citizens for a 
Clean Environment, Multi-County Coalition and Citizens Opposing Power 
Plants for Clean Air.

A. General Comments

    Comment 1: The following commenters support EPA's decisions to 
disapprove the Flexible Permits State Program: HCPHES; several members 
of the Texas House of Representatives; the Sierra Club; the City of 
Houston, and the Clinic.
    Response: Generally, these comments support EPA's analysis of 
Texas's Flexible Permits Program as discussed in detail at 74 FR 48480, 
at 48485-48494, and further support EPA's action to disapprove the 
Flexible Permits Program submission.
    Comment 2: The SCMS sent numerous similar letters via e-mail that 
relate to this action. These comments include 1,789 identical letters 
(sent via e-mail), which support EPA's proposed ruling that major 
portions of the TCEQ air permitting program do not adhere to the CAA 
and should be thrown out. While agreeing that the proposed disapprovals 
are a good first step, the commenters state that EPA should take bold 
actions such as halting any new air pollution permits being issued by 
TCEQ utilizing TCEQ's current illegal policy; creating a moratorium on 
the operations of any new coal fired power plants; reviewing all 
permits issued since TCEQ adopted its illegal policies and requiring 
that these entities resubmit their applications in accordance with the 
Federal CAA; and putting stronger rules in place in order to reduce 
global-warming emissions and to make sure new laws and rules do not 
allow existing coal plants to continue polluting with global warming 
emissions.
    The commenters further state that Texas: (1) Has more proposed coal 
and petroleum coke fired power plants than any other State in the 
Nation; (2) Is number one in carbon emissions; and (3) Is on the list 
for the largest increase in emissions over the past five years. Strong 
rules are needed to make sure the coal industry is held responsible and 
that no permits are issued under TCEQ's illegal permitting process. 
Strong regulations are vital to cleaning up the energy industry and 
putting Texas on a path to clean energy technology that boosts economic 
growth, creates jobs in Texas, and protects the air quality, health, 
and communities.
    In addition, SCMS sent 273 similar letters (sent via e-mail) that 
contained additional comments that Texas should rely on wind power, 
solar energy, and natural gas as clean alternatives to coal. Other 
comments expressed general concerns related to: Impacts on global 
warming, lack of commitment by TCEQ to protect air quality, the need 
for clean energy efficient growth, impacts upon human health, 
endangerment of wildlife, impacts on creation of future jobs in Texas, 
plus numerous other similar concerns.
    Response: To the extent that the SCMS letters comment on the 
proposed disapproval of the Flexible Permits Program, they support 
EPA's action to disapprove the Flexible Permits submission. The 
remaining comments are outside the scope of our proposed action 
relating to the Flexible Permits Program.
    Comment 3: The Clinic comments that EPA should issue an immediate 
SIP call for Texas' failure to enforce the current SIP and should 
require those facilities operating under a Flexible Permit to apply for 
a SIP-approved permit.
    Response: This final rulemaking only addresses the approvability of 
the Texas Flexible Permits Program as a SIP revision submittal. 
Therefore, comments related to other EPA action are outside the scope 
of our proposed action relating to the Flexible Permits Program.
    Comment 4: The ERCC comments that to avoid negative economic 
consequences EPA should exercise enforcement discretion statewide for 
sources that obtained government authorization in good faith and as 
required by TCEQ, the primary permitting authority. EPA should not 
require any injunctive relief and should consider penalty only cases.
    Response: EPA enforcement of the CAA in Texas is outside the scope 
of our proposed action relating to the Flexible Permits Program.
    Comment 5: TIP, BCCA, TAB, and TxOGA comment that the Federal NSR 
SIP regulations recognize the importance of providing operational 
flexibility. In 1990, Congress added Title V to the CAA and it 
specifies that State Title V programs must include provisions to allow 
changes within a permitted facility without requiring a permit revision 
if the changes are not modifications under any provision of Title I of 
the Act and do not exceed the emissions allowable under the permit 
(whether expressed therein as a rate of emissions or in terms of total 
emissions). See section 502(b)(10) of the Act. In order to provide 
operational flexibility, EPA adopted 40 CFR 70.4(b)(12) which requires 
that States establish Title V programs that allow three specific 
avenues to establish

[[Page 41317]]

operational flexibility, including establishment of federally-
enforceable emission caps in their Title V programs. See 40 CFR 
70.4(b)(12)(iii). EPA emphasized the importance of enabling plant sites 
to maintain operational flexibility in the preamble of to 40 CFR part 
70. See 57 FR 32250, at 32267 (July 21, 1992).
    Response: EPA acknowledges that the Title V Federal program 
requirements allow a State to provide for operational flexibility using 
the establishment of federally enforceable emissions caps. EPA, 
however, must review the submitted Program as a SIP revision submittal 
under Title I of the Act, not Title V. We are not disapproving the 
submitted Program because it provides for the establishment of 
emissions caps. As discussed in the proposal and this final action, EPA 
is disapproving the submitted Program for inclusion in the Texas NSR 
SIP because it is not enforceable, does not include any replicable 
methodology for calculating the emissions caps, provides too broad 
director discretion regarding the monitoring, recordkeeping, and 
reporting (MRR) requirements, and lacks sufficient MRR requirements. 
The submitted Program fails to meet section 110 and parts C and D of 
the Act and the requirements of 40 CFR part 51. As stated elsewhere in 
the proposal and throughout this final action, we have identified areas 
in which the submitted Program does not meet these statutory 
requirements. See 74 FR 48480, at 48490, 48491-48492, and 48492-48493; 
and sections III.D.3 and IV.C, for further information.
    Comment 6: BCCA, TIP, TAB, and TxOGA comment on several Federal 
Flexibility Permitting rules in which EPA promotes permit flexibility. 
These include the following:
     Flexible Permit Pilot Study. EPA focused on the importance 
of operational flexibility in a decade-long Flexible Permit pilot study 
that included flexible emission cap permits in six states and found 
that flexible permits worked well and could be used to further both 
environmental protection and administrative flexibility. Both States 
and EPA recognized the need to respond rapidly to market signals and 
demand in today's increasingly global markets while delivering products 
faster, at lower cost, and of equal or better quality than their 
competitors. EPA recognized that the flexible permits could reduce the 
administrative ``friction'' of time, costs, delay, uncertainty, and 
risk associated with certain types of operational changes.
     Plantwide Applicability Limits (PALs). EPA recognized the 
advantages of emissions caps in permits in promulgating its NSR Reform 
in 1996 and 2002. These advantages include the ability to make changes 
an emissions cap that do not require a permit for each change so long 
as the plant's emissions do not exceed the cap rather than face 
piecemeal applicability decisions for each and every contemplated 
change. EPA further noted environmental benefits that could result from 
PALs because sources participating in a cap-based program strive to 
create enough headroom for future expansion by voluntarily controlling 
emissions.
     EPA's Proposed Indian Country Rule. In the 2006 proposed 
rule for Indian Country, EPA recognized the importance of flexibility 
in air permitting programs. EPA intended this rule to be a 
representative template of State NSR programs that serve to provide 
operational flexibility while leveling the regulatory playing field.
     EPA's Flexible Air Permit Rule. In October 2009, EPA 
promulgated the Federal Flexible Air Permit rule, which incorporated 
changes to the Title V rules that were intended to clarify and reaffirm 
opportunities for accessing operational flexibility under existing 
regulations. EPA recognized that State permitting authorities have 
discretion to pre-approve minor changes and re-affirms pre-existing 
authority for State to craft flexible air permits.
    Response: EPA acknowledges that each of these cap-based permitting 
programs has resulted in, or has the potential to result in, increased 
operational flexibility and may enable the owner or operator to make 
certain changes without the need to apply for and receive a permit for 
each individual change whenever the change does not result in emissions 
that exceed the cap. However, of the four identified programs, one was 
a pilot study and one has not been finalized. The State did not submit 
the Flexible Permits Program for consideration by EPA as a PALs NSR SIP 
revision. Moreover, the submitted Flexible Permits Program does not 
meet the minimum requirements contained in the PALs NSR SIP 
regulations, which include procedures for establishing replicable 
emission caps, protecting the NAAQS and control strategies, and MRR 
requirements sufficient to ensure compliance with the terms and 
conditions of the permit that establishes the emissions cap. As we 
discussed in the proposal and now through this final action, the 
submitted Flexible Program does not meet the requirements for the 
establishment of replicable emissions caps and sufficient MRR 
requirements. The submitted Program has no specific, only general, 
requirements pertaining to MRR. Paragraph (c)(6) of submitted 30 TAC 
116.715 generally requires maintenance of data sufficient to 
demonstrate continuous compliance with emission caps and individual 
emission limits contained in the Flexible Permit. That is all. To 
contrast, the submitted Flexible Permit Program lacks the specific 
requirements of another cap-base program, the Federal PAL SIP rule. The 
Federal PAL SIP rule requires that the program require each PAL permit 
to contain enforceable requirements for the monitoring system that 
accurately determines plantwide emissions of the PAL pollutant in terms 
of mass per unit of time. The PAL SIP rule further provides that the 
monitoring system must be based upon sound science and meet generally 
acceptable scientific procedures for data quality and manipulation; and 
the information generated by such system must meet minimum legal 
requirements for admissibility in a judicial proceeding to enforce the 
PAL permit. The SIP requirements for an approvable PAL monitoring 
system are the employment of one or more of the following approaches: 
Mass balance calculations for activities using coatings or solvents, 
continuous emission monitoring system, predictive emission monitoring 
system, continuous parameter monitoring system, and emission factors, 
if approved by the reviewing authority. The PAL SIP rule provides the 
technical specifications for each of the allowable monitoring systems 
and provides replicable procedures for the approval of any alternative 
monitoring system. See 40 CFR 51.165(f)(12) and 51.166(w)(12). The 
submitted Flexible Permit Program, in contrast, is generic concerning 
the types of monitoring that is required rather than identifying the 
employment of specific monitoring approaches, providing the technical 
specifications for each of the specific allowable monitoring systems, 
and requiring replicable procedures for the approval of any alternative 
monitoring system. It also lacks the replicable procedures that are 
necessary to ensure that (1) adequate monitoring is required that would 
accurately determine emissions under the Flexible Permit cap, (2) the 
Program is based upon sound science and meets generally acceptable 
scientific procedures for data quality and manipulation; and (3) the 
information generated by such system meets minimum legal requirements 
for admissibility in a judicial proceeding to enforce the Flexible 
Permit.
    The Federal Flexible Air Permit Rule, although it is not a NSR SIP 
program but

[[Page 41318]]

a Title V program that provides for an alternative NSR SIP approach, is 
a cap program but it too requires replicable methodologies and 
sufficient MRR requirements. The submitted Program does not contain a 
replicable methodology for establishing the emissions cap and 
sufficient MRR requirements. See 74 FR 48480, at 48490, 48491-48492, 
and 48492-48493; and sections III.D.3 and IV.C, for further 
information. Finally, see section III.D.3 (response to comment 4) 
concerning MRR for the proposed Indian Country Minor NSR rule.
    Comment 7: GCLC, TIP, BCCA, and TCC comment that EPA ignores the 
fact that the Texas Flexible Permit Program has had a significant 
impact on improving air quality in Texas. TCEQ commented that 
significant emission reductions have been achieved by the submitted 
Program through the large number of participating grandfathered 
facilities, which resulted in improved air quality based upon the 
monitoring data.
    BCCA, TAB, TxOGA, and ERCC comment that the legal standard for 
evaluating a SIP revision for approval is whether the submitted 
revision mitigates any efforts to attain compliance with a NAAQS. EPA's 
failure to assess the single most important factor in the submitted 
Program, the promotion of continued air quality improvement, is 
inconsistent with case law and the Act and is a deviation from the SIP 
consistency process and national policy. EPA should perform a detailed 
analysis of approved SIP programs through the United States and 
initiate the SIP consistency process within EPA to ensure fairness to 
Texas industries.
    Response: We are disapproving the submitted Program because it is 
not enforceable, it lacks an objective, replicable methodology for 
establishment of the emissions caps, it provides broad director 
discretion concerning whether or not to include a MRR condition in a 
Flexible Permit, lacks sufficient MRR requirements, is ambiguous 
regarding circumvention of Major NSR, and there is not sufficient 
information to enable EPA to make a finding that the submitted Program 
will protect the NAAQS and control strategies. EPA is required to 
review a SIP revision submission for its compliance with the Act and 
EPA regulations. CAA 110(k)(3); See also BCCA Appeal Group v. EPA, 355 
F 3d. 817, 822 (5th Cir. 2003); Natural Resources Defense Council, Inc. 
v. Browner, 57 F.3d 1122, 1123 (D.C Cir. 1995). Also see section III.A 
(response to comment 6) for further information.
    Even if the commenters' premises are to be accepted, they fail to 
substantiate their claim that the Texas Flexible Permit Program has had 
a significant impact on improving air quality in Texas by producing 
data showing that any such gains are directly attributable to the 
submitted Program, and are not attributable to the SIP-approved control 
strategies (both State and Federal programs) or other Federal and State 
programs. They provide no explanation or basis for how their numbers 
were derived. Moreover, since the submitted Program is not enforceable, 
claims of emission reductions are not assured on a continuous basis.
    EPA is not required to initiate the SIP consistency process within 
EPA unless the pending SIP revision appears to meet all the 
requirements of the Act and EPA's regulations but raises a novel issue. 
EPA is disapproving the submitted Program because it fails to meet the 
Act and EPA's regulations. Because the submitted Program fails to meet 
the requirements for a SIP revision, the SIP consistency process is not 
relevant.
    Furthermore, since the commenters thought EPA was acting 
inconsistently, they should have identified SIPs that are inconsistent 
with our actions and provided technical, factual information, not bare 
assertions.
    Comment 8: BCCA and ERCC comment that the concepts embedded in the 
Program have been part of the Title V, NSR, and PAL programs for many 
years and were upheld as consistent with the Clean Air Act by the U.S. 
Supreme Court in Chevron v. NRDC, 467 S.C. 837 (June 25,1984). Texas' 
Program is actually more stringent than EPA's interpretation of the NSR 
program upheld by the Supreme Court.
    Response: The U.S. Supreme Court found, in the cited case, that the 
pertinent legislative history was silent on the precise issue of the 
bubble concept as it related to what constituted a major stationary 
source and found that EPA should have wide discretion in implementing 
the policies of the 1977 amendments. Id at 862. This opinion is not 
relevant to EPA's grounds for disapproving the submitted Program. Not 
only is it not relevant but none of the concepts cited by the 
commenters was before the Court in Chevron. EPA's disapproval is not 
based on a per se finding that a preconstruction program based on 
emissions caps is unacceptable or more or less stringent than the SIP 
requirements. We are disapproving the submitted Program because it is 
not enforceable, it lacks a replicable methodology for establishment of 
the emissions caps, it provides broad director discretion concerning 
whether or not to include a MRR condition in a Flexible Permit, lacks 
sufficient MRR requirements, and there is not sufficient information to 
enable EPA to make a finding that the submitted Program will protect 
the NAAQS and control strategies. See section III.A (response to 
comment 6) for further information.

B. Whether the Flexible Permits Program Is Clearly a Minor, not a 
Major, NSR SIP Revision

    Comment 1: TCEQ comments that though it has always considered the 
Flexible Permit Program to be a Minor NSR program, this fact is not 
specifically stated in the rule. TCEQ, nevertheless, asserts that its 
implementation of the Program includes a review process that always 
determines the applicability of Federal Major NSR, as well as any other 
Federal and State requirements. The TCEQ states that it understands 
EPA's concerns regarding, among other things, applicability, clarity, 
enforceability, replicable procedures, recordkeeping, and compliance 
assurance.
    Response: We acknowledge TCEQ's description that it intends to 
implement the submitted Program in such a manner that the submitted 
Flexible Permit Program does not supersede the duty to comply with the 
Texas Major NSR SIP. In contrast to the submitted Program, however, in 
its Minor NSR SIP for Permits by Rule and Standard Permits, TCEQ 
included additional regulatory language that explicitly prohibits the 
use of the Permits by Rule alternative permit program and the Standard 
Permits alternative permit program from being used for major stationary 
sources and major modifications and explicitly prohibits circumvention 
of the Major NSR requirements.\1\ Specifically, the Standard Permits 
and Permits by Rule NSR SIP rules explicitly require a Major NSR 
applicability determination at 30 TAC 116.610(b) and 30 TAC 
106.4(a)(3). In each, the State specifically expressed its intention to 
require a Major NSR applicability determination. The Flexible Permits 
Program is also an alternative permit program. If the State wishes for 
it to be considered as solely a Minor NSR SIP revision submittal, the 
TCEQ should have included express language stating that it explicitly

[[Page 41319]]

prohibits the use of the Flexible Permit Program from being used for 
major stationary sources and major modifications and explicitly 
prohibits circumvention of the Major NSR requirements, as it did in the 
two other Minor NSR alternative permit options. This submitted Program 
lacks such language. While the inclusion of such specific language is 
not ordinarily a minimum NSR SIP program element, we conclude that the 
inconsistent treatment between the similar types of NSR programs 
creates the potential for an unacceptable ambiguity about a permit 
holder's obligations to continue to comply with the Major NSR 
requirements.
---------------------------------------------------------------------------

    \1\ Although the Texas Minor NSR SIP rules for Permits by Rule 
and Standard Permits remain acceptable for a Minor NSR SIP revision, 
EPA is conducting a review of each individual Permit by Rule and/or 
Standard Permit. EPA is conducting this review to ensure that the 
TCEQ is implementing the SIP appropriately and that each such 
individual Minor NSR SIP permit protects the NAAQS and control 
strategies and is enforceable.
---------------------------------------------------------------------------

    EPA reviews a SIP revision submission for its compliance with the 
Act and EPA regulations. CAA 110(k)(3). See also BCCA Appeal Group v. 
EPA, 355 F 3d. 817, 822 (5th Cir. 2003); Natural Resources Defense 
Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995). This 
includes an analysis of the submitted regulations for their legal 
interpretation. The Program's rules are ambiguous and therefore 
unapprovable. See 74 FR 48480, at 48485-48487 for further information.
    Comment 2: TCC notes that 30 TAC 116.711 identifies the use of 
Flexible Permits as only a Minor NSR option and concludes that TCEQ's 
rules therefore do not intend for the Flexible Permits Program to be an 
equivalent to a Major NSR program.
    Response: We disagree that 30 TAC 116.711 identifies the use of 
Flexible Permits as only a Minor NSR permitting option. Contrary to 
commenter's assertion, this rule merely replicates certain general 
permitting requirements that are also common to Subchapter B, that also 
apply to all Texas Major and Minor NSR SIP permits. There are no 
requirements or terms in 30 TAC 116.711 that expressly identify use of 
Flexible Permits as only a Minor NSR option. As noted above in section 
III.B (response to comment 1), the TCEQ should have included express 
additional regulatory language prohibiting the use of the submitted 
Program for Major NSR and explicitly prohibiting circumvention of the 
Major NSR requirements, as it did in the two other Minor NSR SIP 
alternative permit options.

C. Whether the Flexible Permits Program Meets the Requirements for a 
Substitute Major NSR SIP Revision

1. General Comment on Whether the Program Is a Substitute Major NSR SIP 
Revision
    Comment: TCEQ comments that it did not view the Flexible Permit 
Program as a substitute Major NSR SIP revision when it adopted it nor 
does it wish for it to be considered as a SIP revision submittal for a 
substitute Major NSR SIP revision. It has always viewed the Program as 
a Minor NSR program. In its implementation of the Program, TCEQ 
comments that it requires a Federal applicability demonstration but 
acknowledges that the submitted Program's rules are not clear on this 
point. TCEQ states that it will confirm through upcoming rulemaking and 
SIP revision that the Program is not a substitute Major NSR SIP 
revision.
    Response: EPA appreciates TCEQ's statement that it does not view 
its Flexible Permit Program as a substitute Major NSR SIP revision 
submittal. However, EPA must review the content of the Program as 
submitted for inclusion into the Texas SIP. The submitted Program is 
ambiguous when compared to the regulatory structure of existing similar 
Texas Minor NSR SIP programs, as it contains no express provision that 
clearly limits the Program to Minor NSR and no explicit provision that 
prohibits circumvention of the Major NSR SIP requirements. See 74 FR 
48480, at 48488 and section III.B (response to comment 1) of this 
notice for further information.
2. Requirements for Major NSR Applicability Determinations
    Comment 1: Although TCEQ comments that the Flexible Permit Program 
requires that the applicability of Major NSR requirements be evaluated 
prior to considering whether the new construction or modification can 
be authorized under a Flexible Permit, TCEQ also comments that it 
understands EPA's concerns with issues regarding Major NSR 
applicability vis a vis the submitted Program, based upon the 
application of today's legal requirements. TCEQ undertakes to consider 
rulemaking to ensure Major NSR applicability requirements are included 
in Flexible Permit reviews, and that the requirements of the 
appropriate Major NSR permitting program are met when triggered.
    Response: EPA appreciates TCEQ's understanding that the Program 
lacks clarity on the issue of the applicability of Major NSR 
requirements and that the State plans to revise its rules to ensure it 
is clear that the Major NSR applicability determination requirements 
are required before one can use the Program, and that the requirements 
of the appropriate Major NSR permitting program are met when triggered. 
Nonetheless, EPA must review the content of the Program as submitted 
for inclusion into the Texas SIP. The submitted Program's regulations 
do not contain any emission limitations, applicability statement, or 
regulatory provision restricting the construction or change to Minor 
NSR as was included in the SIP rules for Standard Permits and Permits 
by Rule. See section III.B (response to comment 1) for additional 
information.
    Comment 2: TAB, TxOGA, TIP, and BCCA comment that there are 
safeguards in the Texas Flexible Permit rules at 30 TAC 116.711(1), 
(8), (9), 116.718, and 116.720 that constrain regulated community from 
making major changes without complying with Major NSR requirements.
    Response: The regulations cited by the commenters do not explicitly 
require sources to comply with the Major NSR rules. 30 TAC 116.711(1) 
provides for protection of public health and welfare and does not 
address applicability of Major NSR. 30 TAC 116.711(8) and (9) generally 
require compliance with all applicable requirements for nonattainment 
and PSD review within that Chapter of the rules. Despite commenters 
contentions there are no express terms or requirements within the cited 
rules that compel a Major NSR applicability determination. The cited 
regulations do not contain any emission limitations, applicability 
statement, or regulatory provision restricting the construction or 
change to Minor NSR or clearly prohibiting circumvention of Major NSR, 
as was included in the SIP rules for Standard Permits and Permits by 
Rule. The absence of such provisions in the submitted Flexible Permit 
rules creates an unacceptable ambiguity. 30 TAC 116.718 and 116.720 do 
not address Major NSR. See section III.B (response to comment 1) for 
additional information.
    Comment 3: ERCC comments that the concepts embedded in the Flexible 
Permit Program have been a part of the NSR program for many years and 
are well-settled law. The fact that the emission rates used in the 
calculation of the cap(s) are reflected in a ``bubble'' permit is of no 
consequence and is consistent with applicable statutory and regulatory 
requirements under the Clean Air Act.
    The submitted Program explicitly requires any new source or major

[[Page 41320]]

modification that is applying for a Flexible Permit to go through Major 
NSR review and if necessary, have the Flexible Permit altered.
    Response: EPA disagrees with these comments. First, the submitted 
Program has not been a part of the Texas NSR SIP ``for many years.'' 
Therefore, it is not ``well-settled law.'' Furthermore, any source 
operating under a Flexible Permit risks potential Federal enforcement 
action. Second, it is being disapproved today because of not meeting 
the Federal NSR SIP requirements, not because it embeds the concepts of 
a cap program. The commenter's comments are also at odds with TCEQ's 
comments. TCEQ comments that its Program is intended to be a Minor NSR 
SIP program only and not intended to address Major NSR SIP 
requirements. In contrast, the commenter describes the submitted 
Program as covering major modifications and having a Flexible Permit 
(not a Major NSR SIP permit) altered to reflect the Major NSR review. 
TCEQ disputes this concept in its comments. See our response to TCEQ's 
comments section III.C.3 (response to comment 1).
3. Circumvention of Major NSR
    Comment 1: TCEQ comments that it understands EPA concerns regarding 
the ``the lack of specificity'' in its rules but maintains that the 
Program does not circumvent Federal Rules. TCEQ maintains that its 
implementation of the submitted rules includes Federal applicability 
review that includes determination of actual rates, project emission 
increases, and net emission increases. It also includes BACT analysis 
to establish the cap, NAAQS and increment analysis if PSD is triggered; 
and LAER and offsets if Nonattainment Review is triggered. TCEQ states 
that its implementation also includes a Federal Major NSR Review which 
is conducted parallel with the Minor NSR Review and TCEQ does not allow 
applicant to use Flexible Permits to circumvent Major NSR. TCEQ plans 
to confirm EPA's concerns in future rulemaking.
    Response: EPA appreciates TCEQ's understanding of its concerns 
regarding the ``lack of specificity.'' While it is commendable that 
TCEQ may implement the Program in a manner consistent with the Federal 
Major NSR requirements, we cannot approve the Program as submitted. See 
CAA 110(k)(3). See also BCCA Appeal Group v. EPA, 355 F 3d. 817, 822 
(5th Cir. 2003); Natural Resources Defense Council, Inc. v. Browner, 57 
F.3d 1122, 1123 (D.C. Cir. 1995). Moreover, relying upon an agency to 
continue to implement a program consistently with the Federal 
requirements even though not constrained to do so by its rules, makes 
EPA, the agency, industry, and the public vulnerable to the agency's 
unfettered discretion to change how it implements its program.
    In this instance, there is no express provision in the submitted 
Subchapter G similar to the Minor NSR SIP provisions for Minor NSR SIP 
Permits by Rule and Standard Permits that prohibit circumvention of the 
Major NSR requirements. Both the SIP-codified rules for Permits by Rule 
and the SIP-codified rules for Standard Permits contain clear 
regulatory provisions prohibiting the use of these Minor NSR permits 
from circumventing Major NSR. There are no regulatory provisions 
prohibiting circumvention of Major NSR in the submitted Chapter 116, 
Subchapter G, for Flexible Permits. See 74 FR 48480, at 48488 and 
section III.B (response to comment 1) for further information. The BACT 
analysis that TCEQ references for establishing the cap upon a plain 
reading of the rules and the associated Texas Registers means the Texas 
Minor NSR SIP BACT requirement, not the PSD Major NSR SIP BACT 
requirement. The failure to distinguish in the Program's rules that it 
is Minor NSR SIP BACT that is used to create the cap contributes to the 
confusion of the reach of the Program.
    Comment 2: TCC and ERCC comment that the Flexible Permit Program 
does not circumvent Major NSR review. The Program is explicit in that 
any new major stationary source or major modification must go through 
Major NSR and the Flexible Permit must be altered. See 30 TAC 116.805. 
Moreover, the Flexible Permits employ two emissions cap, an initial cap 
and a final cap, which combine to ensure that the Major NSR permitting 
requirements are not circumvented.
    Response: EPA disagrees with commenters. Unlike the Texas Minor NSR 
SIP rules for Permits by Rule and Standard Permits, the submitted 
Program's regulations do not contain any express regulatory provision 
that prohibits circumvention of the Major NSR requirements. This lack 
of such express provisions distinguishes the Flexible Permit Program 
and contributes to its nonapprovability. See 74 FR 48480, at 48488, and 
section III.B (response to comment 1) of this notice. Furthermore, the 
referenced 30 TAC 116.805 does not add an explicit requirement to the 
submitted Program. Rather, it applies to a separate class of Existing 
Facility Flexible Permits that is severable from the Flexible Permits 
Program.
4. Use of Allowable Emissions in Major NSR
    Comment: TCC, TAB, and TxOGA comment that when TCEQ is evaluating 
emissions increases on a project level, the Program requires the use of 
actual baseline emissions to determine whether a project will result in 
an increase that triggers Major NSR applicability. TCC further states 
that the application of BACT to facilities subject to the emission cap 
results in an allowable that is lower than the pre-change actual 
emissions.
    Response: As noted above in the preceding response, EPA must 
evaluate the submitted Program based upon the content of the 
regulations and associated record that have been submitted and are 
currently before EPA for appropriate approval or disapproval action. 
The commenters are not clear whether they are referring to PSD BACT or 
the Texas Minor NSR SIP BACT. This lack of specificity by industry 
contributes to EPA's concerns about whether the submitted Program is 
clearly limited to Minor NSR. We recognize that the application of 
either type of BACT to facilities subject to the emission cap could 
result in allowable emissions that are lower than the pre-change actual 
emissions at the initial issuance of a Flexible Permit. However, the 
commenter provided no information to show a comparison of actual 
emission to potential to emit for changes that occur after the Flexible 
Permit is issued to evaluate that the net emission increase is based 
upon changes from baseline actual to either projected actual emissions 
or potential to emit. In such case, the baseline actual emissions 
resulting from such proposed change must be established as provided 
under applicable Federal requirements. See 40 CFR 51.165(a)(2)(ii) and 
(a)(1)(vi)(A)(2) and 51.166(a)(7)(iv)(c)-(d) and (b)(3)(i)(b). 
Accordingly, there are no provisions in the Program that require the 
use of actual baseline emissions to determine whether a project will 
result in an increase that triggers Major NSR applicability. See 74 FR 
48480, at 48489-48490, for further information.
5. Retention of Major NSR Permit Terms and Conditions
    Comment: TAB, ERCC, and TxOGA comment that the submitted Program 
requires that conditions of an existing PSD or Nonattainment permit be 
carried forward into a Flexible Permit. The submitted Program does not 
``void'' the pre-existing Major NSR SIP permits.

[[Page 41321]]

    Response: The submitted Program does not explicitly provide that 
the holder of a Flexible Permit still be required to continue to comply 
with all of the terms and conditions in the pre-existing Major NSR SIP 
permits. Federal NSR SIP regulations do not provide for a blanket 
elimination of emission limits at individual units. The submitted 
Program does not assure the retention of the pre-existing Major NSR SIP 
permits' terms and conditions.
    EPA's long-held position is that permits issued under federally 
approved PSD, NNSR, and Minor NSR SIP programs must remain in effect 
because they are the legal mechanism through which the underlying NSR 
requirements (from the Act, Federal regulations, and federally approved 
SIP regulations) become applicable, and remain applicable, to 
individual sources. NSR programs enable the relevant permitting 
authority to impose source-specific NSR terms and conditions in legally 
enforceable permits, and provide states, EPA, and citizens with the 
authority to enforce these permits. SIP-approved permits impose 
continual operational requirements and restrictions upon a source's air 
pollution activities and, accordingly, may not expire so long as the 
source operates.\2\
---------------------------------------------------------------------------

    \2\ See EPA Letter from John Seitz, Director, Office of Air 
Quality Planning and Standards, to Robert Hodanbosi and Charles 
Lagges, STAPPA/ALAPCO, dated May 20, 1999.
---------------------------------------------------------------------------

    The lack of enforceability and adequacy of the MRR requirements in 
the submitted Program contributes to EPA's concern that not all of the 
conditions of a PSD or NNSR SIP permit existing before the issuance of 
a Flexible Permit were carried forward into the Flexible Permit fully 
and completely. See section III.A (response to comment 6) for further 
information. The submitted Program does not meet the requirements of 
section 110(a)(2)(A)-(C) of the Act, which requires that SIP revision 
submittals be enforceable. Section 116.711(2) of the submitted Program 
provides that emissions will be measured ``as determined by the 
executive director.'' This broad discretion lacks accountability, 
replicability and fails to provide for a full evaluation of the 
enforceability of permits issued under the Program. We are concerned 
with the broad director discretion whether to include MRR requirements 
in a Flexible Permit and the lack of adequacy of the MRR requirements 
in the submitted Program.\3\ EPA has interpreted the Act's requirements 
for enforceability as specifying that SIP revision submittals must 
``specify clear, unambiguous, and measurable requirements.'' See 57 FR 
at 13567. There must be legal means in a SIP revision for ensuring 
compliance when conditions of an existing PSD or Nonattainment permit 
are carried forward in a Flexible Permit. The submitted Program does 
not contain sufficient enforceable means. This submitted Program is an 
intricate program, thus to be approved as a Major (as well as a Minor) 
NSR SIP revision, it requires detailed MRR requirements in order to 
ensure, among other things, that a project triggering the Major NSR SIP 
requirements is covered under Major NSR or there are adequate means for 
ensuring compliance of each affected entity.
---------------------------------------------------------------------------

    \3\ EPA's letter of March 12, 2008, on pages 12 to 13 of the 
Enclosure provides some examples of, and concepts on how to 
establish replicable recordkeeping, reporting, tracking, and 
monitoring requirements up-front in a NSR program without requiring 
every director discretion decision to be adopted and submitted to 
EPA for approval as a source-specific SIP revision.
---------------------------------------------------------------------------

    Without clear, objective, requirements in the submitted Program for 
retaining and distinguishing the Flexible Permits terms and conditions 
from the Texas Major NSR SIP permits terms and conditions, the 
submitted Program lacks clear, unambiguous, and measurable requirements 
necessary for approval as a SIP revision. The submitted Program does 
not ensure the retention of the pre-existing Major NSR SIP permits' 
terms and conditions.
6. Protection of the NAAQS Attainment Under Major NSR
    Comment: The Clinic comments that the Program represents a 
relaxation of the current SIP and is inadequate to assure protection of 
the NAAQS, increments, and control strategies.
    Response: Without the required demonstration from the State showing 
how the customized Major NSR SIP revision is in fact as stringent as 
EPA's Major NSR revised program and without, among other things, an 
objective, replicable methodology for establishing the emission cap, 
the too broad director discretion provision for whether or not to 
include MRR conditions in a Flexible Permit, the lack of sufficient MRR 
requirements for this type of permit program, and the lack of 
enforceability of the submitted Program, EPA lacks sufficient 
information to make a finding that the submitted Program, as a 
substitute for a Major NSR SIP program, will ensure protection of the 
NAAQS, and noninterference with the Texas SIP control strategies and 
RFP, as required by section 110(l) of the Act. See section III.A 
(response to comment 6) for further information.

D. Whether the Flexible Permits Program Meets the Requirements for a 
Minor NSR SIP Revision

1. Applicability for a Minor NSR Program
    Comment 1: The Clinic comments that the Flexible Permit rules do 
not include adequate provisions for ensuring that changes that should 
trigger Major NSR are subject to technology and air quality analysis 
requirements.
    Response: EPA agrees with this comment. See section III.B 
(responses to comments 1 and 2), section III.C.1 (response to comment), 
and section III.C.2 (responses to comments 1, 2, and 3), and section 
III.C.3 (responses to comments 1 and 2) for further information.
    Comment 2: TCC comments that the Flexible Permit authorization 
method used at a source does not exempt any facilities located at a 
source from Major NSR permitting requirements. If a source has a 
Flexible Permit that does not contain all the facilities located at 
that source and a project within the Flexible Permit triggers netting, 
all facilities (under the cap and outside the cap) at the source are 
evaluated to determine whether a net significant emissions increase at 
the source has occurred. If a resulting net emissions increase is 
significant, Major NSR is triggered.
    Response: We disagree with this comment. See section III.D.1 
(response to comment 1, above) for further information.
    Comment 3: TIP, BCCA, and TCC comment that TCEQ rules provide two 
separate ``modification'' definitions. The first is at 30 TAC 
116.12(18) for Major NSR applicability. The second is at 30 TAC 
116.10(11) for Minor NSR sources and does not limit its scope to 
federally regulated pollutants. EPA applies the term ``modification'' 
differently in the Minor NSR context and the Major NSR context. 
Therefore, it also is within Texas's discretion to define the term 
differently for purposes of Minor NSR. Citing the EAB in In re 
Tennessee Valley Authority, 9 EAD 357,461 (EAB Sept. 15, 2000) 
commenters maintain that Texas has the discretion to define the term 
differently for purposes of Minor NSR.
    Response: EPA acknowledges that that TCEQ defines the term 
``modification'' differently for Major NSR and for Minor NSR. However, 
the submitted Program does not specifically state which definition of 
modification it uses the one for Major NSR or the one for Minor NSR. 
This contributes to making the submitted Program not clear

[[Page 41322]]

on its face that the Major NSR applicability requirements must be 
evaluated and met when triggered and that the State is required under 
its submitted Program to apply the Major NSR applicability concepts 
during the technical review of a Flexible Permit. Therefore based upon 
the ambiguities in the Program's rules, we disagree that the Flexible 
Permit Program is exclusively a Minor NSR program. EPA is required to 
review a SIP revision submission for its compliance with the Act and 
EPA regulations. This includes an analysis of the submitted regulations 
for their legal interpretation. The Program's rules are ambiguous and 
therefore do not adequately prohibit use under Major NSR. See section 
III.B (response to comment 1) for further information.
2. Establishment of the Emission Cap Under Minor NSR
    Comment: TIP and BCCA comment that the submitted Program's rules do 
contain an established and replicable method for determining an 
emissions cap. TAB and TxOGA comment that EPA provides no example of 
any unsuccessful attempt to replicate an emission cap using the current 
TCEQ rules. TAB and TxOGA comment that the submitted Program requires 
that each Flexible Permit establish a cap by simple summation of BACT 
emission rates. Each Flexible Permit involves the summing of BACT 
emission rates. While BACT determinations may vary between specific 
types of sources, the use of Federal and State BACT guidance results in 
a replicable procedure for establishing caps. In addition, the 
authorization under a Flexible Permit has no effect on sources or 
pollutants not covered in the Flexible Permit for a particular site. 
Both sources and emissions that are not incorporated into a Flexible 
Permit are subject to whatever rules or authorizations are in effect or 
should be applied to those emissions. An applicant for a Flexible 
Permit is required to meet BACT standards as applicable to all 
facilities individually contributing to an emission cap. In addition to 
an emission cap, a Flexible Permit may also impose individual emission 
limits where necessary to ensure satisfaction of off site screening 
levels of hazardous air pollutants or NAAQS for criteria pollutants, or 
to prevent violation of any Federal permitting requirement.
    Response: The proper scope of review for this SIP revision 
submittal does not include a review of the State's individually issued 
Flexible Permits to determine whether there are replicable caps in each 
permit. Instead, EPA's review is focused on the structure of the 
submitted Program, ensuring that it includes legally sufficient 
objective and replicable criteria for establishment of the cap in each 
Flexible Permit and information submitted by the State to demonstrate 
that the program meets the requirements of the Act. Review based on the 
submittal, rather than improper implementation, is necessary to ensure 
that as structured the submitted Program does not interfere with NAAQS 
attainment, the Texas SIP control strategies, and RFP, and is 
enforceable pursuant to section 110(a) (2)(A)-(C) of the Act. 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'' provides EPA's guidance for interpreting this 
provision in the Act. A copy of this document is in the docket at 
document ID EPA-R06-OAR-2005-TX-0032-0022.\4\ See also the ``General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990,'' (GP) 57 FR 13498 at page 13556 (April 10, 1992).
---------------------------------------------------------------------------

    \4\ You can access this document directly at: http://
www.regulations.gov/search/Regs/
home.html#documentDetail?R=0900006480a2bccd.
---------------------------------------------------------------------------

    The submitted Program establishes a cap in a Flexible Permit that 
is a summation of BACT requirements (or a more stringent requirement if 
applicable). The submitted rules are not clear as to how the State does 
the summation. Even the State fails in its comment letter to clarify 
whether the cap includes the summation of not only the minor stationary 
sources and minor modifications but also the major stationary sources' 
and major modifications' emissions limitations. This failure to clarify 
the methodology for the establishment of the cap contributes to the 
ambiguity of the submitted Program. Specific, objective, and replicable 
criteria are to be set forth for determining the emissions cap.
    The commenter states that if a source or emissions are not covered 
under a Flexible Permit, then they are subject to whatever rules or 
authorizations are in effect or should be applied to those emissions. 
EPA is however concerned that it is not clear which facilities are 
covered by a Flexible Permit. The submitted Program does not clearly 
delineate which emissions are covered by a Flexible Permit. EPA 
proposed disapproval because the submittal lacks specific, established, 
replicable procedures providing available means to determine 
independently how the source or the State will calculate an emission 
cap; determine the coverage of a Flexible Permit; establish individual 
emissions limitations for each site, a facility on the site, a group of 
units on the site; or for one pollutant but not another. Without a 
clearly defined replicable process for determining what the process is, 
and how the emission cap is adjusted for the addition of new 
facilities, the public and EPA cannot independently calculate an 
emission cap and reach the same conclusions as the State. Therefore, 
the submitted Program is unapprovable. This conclusion was reached 
based on our review of the submitted Program pursuant to the CAA.
3. Enforceability of a Minor NSR Program
    Comment 1: TCEQ comments that although the submitted rules do not 
specify special conditions that ensure recordkeeping, reporting, and 
testing to assure compliance with the Flexible Permit, the State issues 
Flexible Permits containing special conditions requiring periodic stack 
testing, continuous emissions monitoring, and other parametric 
monitoring requirements, along with recordkeeping requirements to 
ensure compliance with the Flexible Permit cap and BACT. Because of the 
wide variety of industrial source types, TCEQ has carefully drafted its 
rules to ensure it has the ability to adequately implement specific and 
detailed MRR requirements. TCEQ will address EPA concerns in a 
forthcoming rulemaking and SIP revision.
    Response: Although TCEQ plans in a future rulemaking action to add 
specific conditions as part of the Program to address MRR requirements, 
the submitted Program lacks these requirements. See section III.A 
(response to comment 6) for further information. EPA must evaluate the 
Program based upon the content of the regulations and associated record 
that have been submitted and are currently before EPA for appropriate 
approval or disapproval action. Any SIP revision must have adequate 
recordkeeping, reporting, testing, and monitoring requirements to 
assure there can be compliance with the submitted plan and ensure that 
the plan is enforceable, as well as ensure that each affected entity 
can be easily identified and that there are means to determine its 
compliance. See New York I, 413 F.3d at 33-36. There is further 
discussion in the General Preamble about EPA's interpretation of the 
Act's requirements for enforceability and that submitted rules must 
``specify clear, unambiguous,

[[Page 41323]]

and measurable requirements.'' See the GP 57 FR 13498 at page 13567.
    Comment 2: The City of Houston states that it has long opposed the 
use of Flexible Permits. Quoting its comments on TCEQ's proposed 
renewal of the Flexible Permit issued to a refinery in Houston, it 
states that ``[t]he permit terms violate Federal law and are not 
federally enforceable. This refinery (and others) could have sought 
other SIP-approved permitting.'' The City of Houston also noted that 
the structure of the Flexible Permit Program fails to assure compliance 
with the Major NSR requirements and that these Flexible Permits are 
essentially unenforceable. The City of Houston strongly supports the 
EPA's decision to seek the changes necessary in the Flexible Permit 
Program to make it federally enforceable, consistent with the CAA and 
ensure that emissions are controlled and reduced from the State's 
largest sources of pollutants.
    Response: EPA agrees with these comments. Texas has opted for a 
program that allows the permit holder to select which new facilities 
and/or new modifications to include under the umbrella of a Flexible 
Permit. The submitted Program fails to provide clear criteria for 
determining what type of MRR requirements are needed and furthermore 
leaves the choice to the director, including whether to include any MRR 
requirements in a Flexible Permit. See section III.A (response to 
comment 6) for further information. Without the appropriate specialized 
MRR requirements, it is generally impractical to determine for 
instance, which emission points are covered, which modifications of 
existing non-covered emission points are covered, etc. Texas also chose 
to allow both a cap and an individual emission limitation to apply to 
selected units, or just the cap, or just the individual emission 
limitation. Without the appropriate MRR requirements, it is generally 
impractical to determine if a covered unit is subject to the cap or an 
individual emission limitation, if a unit is subject to both the cap 
and a limitation, or whether a cap or a limitation applies at what 
time. Further, there can be existing units on the site not covered 
under the Flexible Permit cap that may be modified, and use the 
provisions of the Flexible Permit Program for the modification. Without 
replicable implementation procedures for establishing the emission cap 
and sufficient MRR requirements, EPA cannot find that the submitted 
Program is enforceable, as required by section 110(a)(2)(A) and (C) of 
the Act. See 74 FR 48480, at 48492.
    The submitted Program lacks provisions explicitly addressing the 
type of MRR requirements that are necessary to ensure that all of the 
movement of emissions between the emission points, units, facilities, 
plants, etc., still meet the cap for the pollutant, still meet the 
individual emissions limitations, and still meet any other applicable 
State or Federal requirement. In addition, there are no limits on the 
types of sources that can be included in the cap. It is also difficult 
to quantify emissions from some units, such as tanks, fugitive 
emissions from leaking valves, or wastewater emissions points that can 
be included in a Flexible Permit under this Program.
    Without specialized MRR requirements, it is difficult for EPA or 
the public to determine which units are covered by a Flexible Permit, 
which modifications to non-covered units are covered by a Flexible 
Permit, whether a covered unit is subject to the emission cap or an 
individual emission limitation, whether a unit is subject to both the 
cap and a limitation, or whether a cap or a limitation applies and at 
what time.
    Comment 3: TIP, BCCA, TAB, and TxOGA comment that the submitted 
Program contains comprehensive and stringent provisions for monitoring, 
recordkeeping, and reporting. These are more than adequate to ensure 
compliance on the part of permit holders, enforceability by TCEQ, and 
protection of public health. See 30 TAC 116.715(c). They require the 
regulated community to monitor and submit information sufficient to 
safeguard environmental quality.
    Response: EPA disagrees with commenters. The commenters failed to 
point to any such specific provisions. The submitted Program lacks 
adequate program requirements for the tracking of existing SIP permits' 
major and minor NSR terms, limits and conditions, and whether such 
requirements are incorporated into a Flexible Permit or they remain 
outside the coverage of the Flexible Permit. Minor and Major NSR 
permits, as well as Minor NSR SIP Permits by Rule and Standard Permits, 
can be incorporated into a Flexible Permit without any program 
requirement in place that ensures the SIP permits' terms and conditions 
are included in the Flexible Permit. EPA finds that there are not 
sufficient provisions requiring the holder of a Flexible Permit to 
maintain recordkeeping sufficient to ensure that all terms and 
conditions of existing permits (including representations in the 
applications for such permits) that are incorporated into the Flexible 
Permit continue to be met. Paragraph (c)(6) of submitted 30 TAC 116.715 
generally requires maintenance of data sufficient to demonstrate 
continuous compliance with emission caps and individual emission limits 
contained in the Flexible Permit but lacks the necessary specificity 
and replicability needed to ensure the enforceability of the submitted 
Program and the protection of the NAAQS and control strategies. See 
section III.A (response to comment 6) for further information.
    Comment 4: TIP, BCCA, TAB, and TxOGA note that TCEQ also may impose 
additional recordkeeping requirements appropriate for a specific source 
covered by a Flexible Permit. The submitted Program's rules contemplate 
that additional recordkeeping requirements may be tailored to the type 
of source covered by a Flexible Permit. TIP comments that the submitted 
Flexible Permits rules are as stringent as EPA's proposed Indian 
Country Minor NSR rules. This commenter claims that with respect to 
emission events and maintenance, startup, and shutdown emissions (SSM), 
the submitted rules go far beyond Federal benchmarks because they 
require compliance with 30 TAC 101.201 and 101.211. Section 101.201 
includes record-keeping requirements to report all reportable and non-
reportable emissions events within two weeks, which in the view of this 
commenter is more stringent than the ``prompt'' reporting requirement 
of the proposed Indian Country counterpart. Again citing Section 
101.201, commenter claims the record retention requirements of the 
submitted Program for records of reportable and non-reportable 
emissions events are similar to their proposed Indian Country 
counterparts.
    Response: EPA disagrees with this comment. Commenters' reliance 
upon the Texas rules for malfunction emissions and maintenance, 
startup, and shutdown emissions is misplaced. Section 101.201 concerns 
Emissions Event Reporting and Recordkeeping Requirements; and Section 
101.211 concerns Scheduled Maintenance, Startup, Shutdown Reporting and 
Recordkeeping Requirements. These two referenced sections concern 
emission events that are a subset of the universe of air emissions. 
Emission events are unauthorized emissions by nature. See 30 TAC 
101.1(28). Malfunction related emissions are those unauthorized 
emissions that result from

[[Page 41324]]

a sudden and unavoidable breakdown of process or control equipment.\5\
---------------------------------------------------------------------------

    \5\ See Footnote 1 of the Attachment to the Memo entitled 
``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup, and Shutdown'' (September 1999 Policy) 
from Steve Herman and Robert Perciasepe. You can access this 
document at: http://epa.gov/ttn/oarpg/t5/memoranda/
exemmpol092099.pdf.
---------------------------------------------------------------------------

    EPA agrees that the submitted Program's rules contemplate that 
additional recordkeeping requirements may be required (at the 
discretion of the director). Yet as EPA noted in the proposal, the 
submitted Program is an intricate program and therefore, for 
approvability as a Major or Minor NSR SIP revision, there is a greater 
need for detailed MRR requirements to ensure, among other things, there 
are adequate means for ensuring compliance by each holder of a Flexible 
Permit. Without detailed MRR requirements, the program is 
unenforceable. The MRR requirements are needed additionally to ensure 
that the issuance of the Flexible Permits does not cause or contribute 
to a NAAQS violation, violate the Texas control strategy, or violate 
any other CAA requirement. See 74 FR 48480, at 48490. The submitted 
Program lacks provisions explicitly addressing the type of MRR 
requirements that are necessary to ensure that all of the movement of 
emissions between the emission points, units, facilities, plants, etc., 
still meet the cap for the pollutant, still meet the individual 
emissions limitations, and still meet any other applicable State or 
Federal requirement. In addition, there are no limits on the types of 
sources that can be included in the cap. It is also difficult to 
quantify emissions from some units, such as tanks, fugitive emissions 
from leaking valves, or wastewater emissions points that can be 
included in a Flexible Permit under this Program. The underpinnings of 
the submitted Program are so complex as to necessitate more detailed 
MRR requirements to ensure that the emission cap and/or individual 
emissions limitations in the issued Flexible Permits are enforceable.
    Without the appropriate specialized MRR requirements, it is 
generally impractical to determine for instance, which emission points 
are covered, which modifications of existing non-covered emission 
points are covered, etc. See section III.D.3 (response to comment 2) 
for further information.
    Commenter's comparison of the submitted Program to EPA's proposed 
Indian Country Minor NSR rules is misplaced in the context of this 
action. As an initial point, we clearly stated in the proposed rule 
that we did not intend for this regulation of national scope to serve 
as a model or comparison for development of State Minor NSR programs. 
See 71 FR 48695, at 48700 (August 21, 2006). EPA regulations require 
that it review a Minor NSR SIP revision to determine if a plan includes 
``legally enforceable procedures'' that enable the permitting agency to 
determine whether a minor source will cause or contribute to violations 
of applicable portions of the control strategy, 40 CFR 51.160(a)(1), or 
``interference with a national ambient air quality standard,'' 40 CFR 
51.160(a)(2), and to prevent the source from doing so, 40 CFR 
51.160(b).
    We believe the reporting requirements we proposed for the Indian 
Country Minor NSR rules will ensure protection of the NAAQS and control 
strategy. Moreover, the standard of review in this instance is not a 
comparison between the MRR provisions in the submitted Program and any 
MRR provisions in the proposed Indian Country Minor NSR rules but a 
determination whether the submitted Program has sufficient legally 
enforceable procedures that enable the permitting agency to determine 
whether a minor source will cause or contribute to violations of 
applicable portions of the control strategy. As stated above, the 
submitted Program lacks provisions explicitly addressing the type of 
MRR requirements that are necessary to ensure that all of the movement 
of emissions between the emission points, units, facilities, plants, 
etc., still meet the cap for the pollutant, still meet the individual 
emissions limitations, and still meet any other applicable State or 
Federal requirement.
    Comment 5: TIP, BCCA, TAB, and TxOGA also point out that there is a 
wide array of additional Texas rules specifying monitoring, 
recordkeeping, and reporting requirements. For instance, the Texas 
Flexible Permit rules also require compliance with section 101.201, 
related to reporting and recordkeeping of malfunction emissions, and 
section 101.211, related to reporting of maintenance, startup, and 
shutdown emissions. Commenters claim that there are many detailed 
monitoring, recordkeeping and reporting requirements that Flexible 
Permit holders are subject to and there are indeed very explicit 
requirements that adequately document the operations of sources covered 
by Flexible Permits.
    Response: EPA disagrees with this comment. The submitted Program 
does not have provisions explicitly specifying the monitoring 
requirements for this Program.
    Without the appropriate specialized MRR requirements, it is 
generally impractical to determine information such as which emission 
points are covered, and which modifications of existing non-covered 
emission points are covered. See section III.D.3 (response to comment 
2) for further information. Without replicable implementation 
procedures for establishing the emission cap and sufficient and MRR 
requirements, EPA lacks sufficient information to make a finding that 
the submitted Program, as a Minor NSR SIP program, will ensure 
protection of the NAAQS, and noninterference with the Texas SIP control 
strategies and RFP.
    Further, commenters' reliance upon the Texas rules for malfunction 
emissions and maintenance, startup, and shutdown emissions is 
misplaced. Section 101.201 concerns Emissions Event Reporting and 
Recordkeeping Requirements; and Section 101.211 concerns Scheduled 
Maintenance, Startup, Shutdown Reporting and Recordkeeping 
Requirements. These two referenced sections concern emission events 
that are a subset of the universe of air emissions. Emission events are 
unauthorized emissions by nature. See 30 TAC 101.1(28). Malfunction 
related emissions are those unauthorized emissions that result from a 
sudden and unavoidable breakdown of process or control equipment.\6\ 
EPA's concern with the structure of the Program and its lack of 
specific MRR requirements is not with how malfunction and SSM emissions 
are treated concerning MRR but with the emissions that are normally 
emitted and how one can determine if the emitted emissions are meeting 
the Flexible Permit's emission limitations. See section III.A (response 
to comment 6) for further information.
---------------------------------------------------------------------------

    \6\ See Footnote 1 of the Attachment to the Memo entitled 
``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup, and Shutdown'' (September 1999 Policy) 
from Steve Herman and Robert Perciasepe. You can access this 
document at: http://epa.gov/ttn/oarpg/t5/memoranda/
exemmpol092099.pdf.
---------------------------------------------------------------------------

    As EPA noted in the proposal, the submitted Program is an intricate 
program and therefore, for approvability as a Major or Minor NSR SIP 
revision, there is a greater need for detailed MRR requirements whether 
to ensure, among other things, that a project triggering the Major NSR 
SIP requirements is covered under Major NSR or there are adequate means 
for ensuring compliance by each holder of a Flexible Permit. These are 
needed additionally to ensure that the issuance of the Flexible Permits 
does not cause or contribute to a NAAQS violation, violate the Texas 
control strategy, or violate any other CAA

[[Page 41325]]

requirement. See 74 FR 48480, at 48490, and section III.D.3 (response 
to comment 4) for further information.
    Comment 6: TAB and TxOGA comment that the submitted Flexible Permit 
rules provide for the enumeration of special conditions including 
requirements for monitoring, testing, recordkeeping, and reporting 
(MRR). Commenter also asserts that EPA does not include any analysis 
that might lead one to understand what additional specificity or detail 
is necessary, or how or why the many detailed requirements in TCEQ's 
rules (specifically 30 TAC 101.10, 115.116, 117.801 and 111.111) are 
inadequate.
    Response: EPA disagrees with this comment that the Agency has not 
provided a reasonable basis for it findings. Appropriate MRR provisions 
are necessary to establish how compliance will be determined and be 
sufficient to ensure that the NAAQS and control strategies are 
protected. There is further discussion in the General Preamble about 
EPA's interpretation of the Act's requirements for enforceability and 
that submitted rules must ``specify clear, unambiguous, and measurable 
requirements.'' See 57 FR at 13567. The Program's rules do not contain 
specific enumerated requirements for MRR. It is not legally sufficient 
even if the State is issuing individual Flexible Permits with special 
conditions requiring MRR. In order for the Program to be approvable as 
a SIP revision, the Program itself must contain specific objective, 
replicable MRR requirements that ensure compliance with all terms and 
conditions of each Flexible Permit issued by the TCEQ. There are no 
provisions providing clear criteria for determining what type of MRR 
requirements are needed. The Program is too complex to leave the choice 
of MRR requirements up to the individual issuance of a Flexible Permit, 
and up to the discretion of the Executive Director of the TCEQ. EPA 
finds such director discretion provisions are not acceptable for 
inclusion in SIPs, unless each director decision is required under the 
plan to be submitted to EPA for approval as a single-source SIP 
revision. This Program does not contain specific, objective, and 
replicable criteria for determining whether the Executive Director's 
choice of MRR requirements will be effective in terms of 
enforceability, compliance assurance, and ambient impacts. See 74 FR 
48480, at 48490, and section III.A (response to comment 6) for further 
information.
    Comment 7: TAB and TxOGA comment that EPA does not provide any 
example of a permit or permits the review of which led to that 
conclusion that absence of certain recordkeeping and reporting made it 
difficult to derive information from Flexible Permits. TCC notes that 
there is significant difference in the types of sources that apply for 
a Flexible Permit; therefore, it is difficult for TCEQ to implement 
rulemaking for every type of recordkeeping, monitoring and tracking 
requirements that may apply. Attempting to incorporate these variable 
components into one comprehensive rule could severely limit TCEQ's 
ability to implement adequately these requirements. BCCA comments that 
the Flexible Permit rules contemplate that additional recordkeeping 
requirements many be tailored to the type of source covered by a 
Flexible Permit making them as least as stringent as their Federal 
counterparts. BCCA highlights a comparison to the proposed Indian 
Country Minor NSR rules to make this point.
    Response: The proper scope of review for this SIP revision 
submittal does not include a review of the State's individually issued 
Flexible Permits to determine whether there are adequate recordkeeping 
and reporting requirements in each permit. These Flexible Permits never 
should have been issued since the submitted Program is not part of the 
Texas NSR SIP. EPA's review is instead focused on the structure of the 
submitted Program, ensuring that it includes legally sufficient 
recordkeeping and reporting requirements. This is necessary to ensure 
that not only does the submitted Program not interfere with NAAQS 
attainment, the Texas SIP control strategies, and RFP, but the proposed 
revision is enforceable pursuant to section 110(a))(2)(A)-(C) of the 
Act. 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'' provides EPA's guidance for interpreting this 
provision in the Act. See also the General Preamble at page 13566. 
Submitted rules that are clear as to who must comply, and explicit in 
their applicability to regulated sources are appropriate means for 
achieving the statutory enforcement requirement. Specific, objective, 
and replicable criteria are to be set forth for determining whether 
this new type of NSR permit will be truly equivalent to the other minor 
NSR SIP permits in terms of being consistent with the levels specified 
in the control strategies, including air quality impacts, etc. 
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. See 74 FR 48480, at 48492. Furthermore, any permitting rule 
will apply to a variety of sources (unless it is a permit adopted 
specifically for a source category and limited to that affected source 
category).
    The submitted Program allows a Flexible Permit holder to 
selectively include new facilities and/or new modifications under the 
umbrella of a Flexible Permit. Without the appropriate specialized MRR 
requirements, it is generally impractical to determine information such 
as which emission points are covered, and which modifications of 
existing non-covered emission points are covered. See section III.D.3 
(response to comment 2) for further information. Submitted 116.711(7) 
is an illustration of our concerns. It states that initial compliance 
testing with ongoing compliance by engineering calculations ``may be 
required.'' This means that under the Program, compliance testing may, 
or may not, be required and provides no guidance for when monitoring 
will be required. See section III.A (response to comment 6) for further 
information.
    The submitted Flexible Permit Program does not compare favorably 
with the MRR requirements that are proposed in the proposed Indian 
Country Minor NSR rules. The proposed Indian Country Minor NSR Rules 
would require the permit to include monitoring sufficient to assure 
compliance with any control technology requirements contained in the 
permit. Monitoring approaches may include continuous emission 
monitoring systems, predictive emission monitoring systems, continuous 
parameter monitoring systems, periodic manual logging of monitor 
readings, equipment inspections, mass balances, periodic performance 
tests, and/or emission factors, as appropriate for the minor source. 
None of these monitoring approaches is addressed in the submitted 
Program. The proposed Indian County Minor NSR Rules also would require 
the permit to include recordkeeping sufficient to assure compliance 
with enforceable emission limitations in the permit and require 
retention of the records for five years from the date of the record. 
The submitted Program lacks this specificity for the recordkeeping 
requirements. The proposed Indian County Minor NSR Rules also would 
require annual

[[Page 41326]]

monitoring reports showing whether the permittee has complied with the 
permit emission limitations and prompt reports of deviations from 
permit requirements, including those attributable to upset conditions, 
probable cause of such deviations, and any corrective or preventative 
measures taken. See 71 FR 48695, at 48715-48716 and 48738 (August 21, 
2006). Thus even assuming such a comparison represented the proper 
scope of review, the MRR provisions of the submitted Program do not 
compare favorably to those in the proposed Indian Country Minor NSR 
Program. The MRR provisions of the Texas Flexible Permit Program do not 
contain this level of MRR or otherwise sufficient MRR provisions given 
the features of the Program.
    Comment 8: The Clinic comments that there are no provisions for 
ensuring that emission reductions are real, permanent, and enforceable.
    Response: Specific, objective, and replicable criteria are required 
to be set forth for determining whether this new type of NSR permit 
program will be truly equivalent to the other Minor NSR SIP permit 
programs in terms of being consistent with the levels specified in the 
control strategies, including air quality impacts, etc. Appropriate MRR 
provisions are necessary to establish how compliance will be determined 
and be sufficient to ensure that the NAAQS and Texas control strategies 
are protected. Without replicable procedures for establishing the 
emissions caps, the lack of enforceability, the director discretion 
regarding whether or not to require MRR and the lack of sufficient MRR 
requirements, EPA cannot be assured that the submitted Program does 
indeed produce permanent emission reductions. See section III.A 
(response to comment 6) for further information.
    Comment 9: The Clinic comments that the Flexible Permit rules fail 
to assure that permits include enforceable limits, as required by the 
Clean Air Act. There is no required monitoring or reporting to assure 
compliance with the terms and conditions. Likewise, the Flexible Permit 
rules fail to require adequate monitoring and reporting for those 
emission limits and requirements that are included in the Flexible 
Permit. The rules require measurement of emissions ``as determined by 
the executive director.'' See submitted 30 TAC 116.711(2). They also 
require that unspecified ``information and data sufficient to 
demonstrate continuous compliance with the emission caps and individual 
emission limitations contained in the flexible permit'' be kept at the 
plant site and made available for TCEQ inspection. See submitted 30 TAC 
116.715(c)(6). These requirements are clearly insufficient to 
demonstrate compliance with emission caps applicable to dozens of 
dissimilar emission units. For a program as complex as the Texas 
Program, stringent monitoring must not be left up to the discretion of 
the Executive Director. Instead, stringent monitoring and reporting 
requirements must be required by regulation for all units covered under 
a Flexible Permit. Because the Texas Flexible Permit is more complex 
than either the PAL or the Green Groups proposal, it should include 
monitoring at least as stringent as required by those rules.
    Response: EPA generally agrees with these comments. The submitted 
Program does not meet the requirements of section 110(a)(2)(A)-(C) of 
the Act, which require that SIP revision submittals be enforceable.\7\ 
There are no specific up-front methodologies in the submitted Program 
to be able to determine compliance. There are no sufficient MRR 
provisions in the submitted Program. Accordingly, the Program lacks 
requirements necessary for enforcement and assurance of compliance. 
There are no specific up-front methodologies in the Program to be able 
to determine compliance. It fails to meet the enforceability 
requirements as a program or for an affected source, and it cannot 
assure compliance with the Program or by the holder of a Flexible 
Permit. See 74 FR 48480, at 48490, section III.A (response to comment 
6) for further information.
---------------------------------------------------------------------------

    \7\ Section 116.711(2) of the submitted Program provides that 
emissions will be measured ``as determined by the executive 
director.'' This broad discretion lacks accountability, 
replicability and fails to provide for a full evaluation of the 
enforceability of permits issued under the Program.
---------------------------------------------------------------------------

    Instead, MRR requirements appropriate for such a complex Program 
must be required by regulation for all units covered under a Flexible 
Permit. Whether or not to require MRR requirements in a Flexible Permit 
should not be left to director discretion. This complex and intricate 
Program, for enforceability purposes, requires sufficient MRR 
requirements for each Flexible Permit. In the proposal, we stated that 
we are concerned with the adequacy of the MRR requirements in the 
submitted Program.\8\ This submitted Program is an intricate program 
and therefore, for approvability as a NSR SIP revision, there is a 
greater need for detailed MRR requirements whether to ensure that a 
project triggering the Major NSR SIP requirements is covered under 
Major NSR or to ensure that there are adequate means for ensuring 
compliance of each affected entity under both Major and Minor NSR. See 
section III.D.3 (response to comment 2) for further information.
---------------------------------------------------------------------------

    \8\ EPA's letter of March 12, 2008, on pages 12 to 13 of the 
Enclosure provides some examples of, and concepts on how to 
establish replicable recordkeeping, reporting, tracking, and 
monitoring requirements up-front in a NSR program without requiring 
every director discretion decision to be adopted and submitted to 
EPA for approval as a source-specific SIP revision.
---------------------------------------------------------------------------

    Finally, the commenter stated that because the Texas Flexible 
Permit Program is more complex than either the Federal PAL SIP rule or 
the Federal Green Groups proposal, it should include monitoring at 
least as stringent as required by those rules. EPA is not requiring 
that the Program include the specific MRR as required or proposed for 
another program. As stated above, to be approvable as a SIP revision, 
the Program must contain specific, replicable MRR requirements that 
ensure compliance with all terms and conditions of each Flexible Permit 
issued by the TCEQ. See section III.C.6 (response to comment 2) for 
additional information.
    Comment 10: The Clinic comments that the Program does not assure 
that permit terms of pre-existing NSR permits remain as part of the 
Flexible Permit and therefore enforceable. The Clinic provided 
information on a refinery that had a PSD permit and subsequently 
received a Flexible Permit from TCEQ. The PSD permit included emission 
limits for two fluid catalytic cracking units (FCCUs). When the 
Flexible Permit was issued, these emission limits in the PSD permit 
were not included as separate from the limits in the Flexible Permit; 
instead, the Flexible Permit included the FCCUs among the units subject 
to the emission caps. When the refinery subsequently reported emission 
events, it reported only the Flexible Permit and its associated caps as 
the applicable limits, rather than the limits from the pre-existing 
Major NSR SIP permits.
    Response: The submitted Program lacks adequate program requirements 
for whether or not the terms and conditions of pre-existing Major and 
Minor SIP permits are incorporated into a Flexible Permit or they 
remain outside the coverage of the Flexible Permit. While the comments 
on implementation of the submitted Program as related to a particular 
source are not relevant to this action, they do highlight EPA's 
concerns about why the submitted Program is not approvable. The 
submitted Flexible Permit Program also lacks sufficient recordkeeping 
provisions to ensure that all terms and conditions of pre-existing 
Major and

[[Page 41327]]

Minor NSR SIP permits (including representations in the applications 
for such permits) that are incorporated into the Flexible Permit 
continue to be met. These underlying Major and Minor NSR SIP permits 
remain legally enforceable but the lack of specificity in the submitted 
Program impacts practical enforceability. See 74 FR 48493, and section 
III.A (response to comment 6) and section III.D.3 (response to comment 
11, below) for further information.
    Comment 11: A member of the Sierra Club cites to references from 
the proposal that relate to the lack of appropriate MRR requirements in 
the Program. An individual commenter states that as an air quality 
investigator for the City of Houston Bureau of Air Quality Control, 
investigating documentation of compliance for a Flexible Permit was 
presented an entire roomful of binders, containing emissions 
information for different sources under one cap. The company 
representative said that this was the documentation of the company's 
compliance with the Flexible Permit. Confronted with these practical 
difficulties, the commenter was unable to determine the company's 
compliance with its Flexible Permit Cap.
    Response: The EPA agrees with these comments. While the comments on 
implementation of the submitted Program are not relevant to this 
action, they do highlight EPA's concerns about why the submitted 
Program is not approvable. The submitted Program lacks provisions 
explicitly addressing the type of monitoring requirements that are 
necessary to ensure that all of the movement of emissions between the 
emission points, units, facilities, plants, etc., still meet the cap 
for the pollutant, still meet the individual emissions limitations, and 
still meet any other applicable State or Federal requirement. In 
addition, there are no limits on the types of sources that can be 
included in the cap. It is also difficult to quantify emissions from 
some units, such as tanks, fugitive emissions from leaking valves, or 
wastewater emissions points that can be included in a Flexible Permit 
under this Program. This comment also highlights the lack of adequate 
program requirements for the tracking of existing SIP permits' major 
and minor NSR terms, limits and conditions, and whether such 
requirements are incorporated into a Flexible Permit or they remain 
outside the coverage of the Flexible Permit. This further highlights 
the lack of MRR sufficient to establish how compliance will be 
determined and to ensure that NAAQS and Texas control strategies are 
protected. See 74 FR 40480, at 40493, section III.D.3 (responses to 
comment 1, 2, 4, 5, 7, and 10, above), and section III.A (response to 
comment 6) for further information.
4. Revocation of Major NSR Permits Under a Minor NSR Program
    Comment: The Clinic comments that Flexible Permits are used to 
eliminate or amend existing Nonattainment NSR and PSD permit terms 
without following SIP required procedures for permit amendments.
    Response: We are disapproving the submitted Program because it is 
ambiguous and could be interpreted to allow holders of a Flexible 
Permit to make de facto amendments of existing SIP permits, including 
changes in the terms and conditions (such as throughput, fuel type, 
hours of operation) of minor and major NSR permits, without a 
preconstruction review by Texas. While we have recognized that under 
certain circumstances changes to PSD permits may be appropriate, such 
changes are generally not allowed without a review of the new 
circumstances by the permitting authority. As EPA has explained, any 
time a change to a permit limit founded in BACT is being considered, a 
corresponding reevaluation (or reopening) of the original BACT 
determination may be necessary. See, ``Request for Determination on 
Best Available Control Technology (BACT) Issues--Ogden Martin Tulsa 
Municipal Waste Incinerator Facility,'' from Gary McCutchen, Chief of 
OAQPS NSR Section (Nov. 19, 1987). See 74 FR 40480, at 48493 and a copy 
of the document is in the docket at document ID EPA-R06-OAR-2005-TX-
0032-0025.\9\
---------------------------------------------------------------------------

    \9\ You can access this document directly at: http://
www.regulations.gov/search/Regs/
home.html#documentDetail?R=0900006480a2bd1d.
---------------------------------------------------------------------------

5. Protection of the NAAQS Under a Minor NSR Program
    Comment: The Clinic comments that the submitted Flexible Permits 
Program is inadequate to assure protection of the NAAQS, increments, 
and control strategy.
    Response: Approval of the submitted Program as a Minor NSR SIP 
revision requires that it include legally enforceable procedures that 
enable the State to determine whether construction or modification by a 
holder of a Flexible Permit would violate a control strategy or 
interfere with attainment or maintenance of the NAAQS. See 40 CFR 
51.160(a)-(b). Without a replicable methodology for establishing the 
emissions caps, the lack of enforceability, the director discretion 
concerning whether or not to require MRR conditions in a Flexible 
Permit, and the lack of sufficient MRR requirements in the submitted 
Program, EPA lacks sufficient information to make a finding that the 
submitted Program, as a Minor NSR SIP program, will ensure protection 
of the NAAQS, and noninterference with the Texas SIP control strategies 
and RFP. See 74 FR 48480, at 48490-48492, and section III.A (response 
to comment 6) for further information.

E. Definition of Account

    Comment 1: TCEQ does not agree with EPA's understanding of the term 
``account'' as applied by TCEQ. TCEQ maintains that it has included in 
each of its permitting rules appropriate definitions to meet State and 
Federal requirements. TCEQ interprets an ``account'' to include 
multiple ``sources.'' Within this rule, it interprets ``sources'' as 
being equivalent to multiple ``facilities'' (a facility is a discrete 
piece of equipment or source of air contaminants) under Texas Minor 
Source definitions. A Flexible Permit cannot cover more than one major 
stationary source, as the term is used by EPA and TCEQ for Federal NSR 
purposes.
    Response: We appreciate TCEQ's explanation of the terms 
``account,'' ``facility'' and ``source'' as it intends them to apply in 
the submitted Program. We are pleased to learn that the State does not 
intend to allow a Flexible Permit to cover multiple major stationary 
sources and that companies complying with a Flexible Permit understand 
the continued obligation to comply with the SIP-approved Major NSR 
program at all major stationary sources and major modifications. 
Nonetheless, we believe that the definitions are not sufficiently 
limiting to preclude issuance of a Flexible Permit to multiple major 
stationary sources. This is because the terms ``source'' and 
``account'' rely on the term ``site'' which does not contain the SIC 
code limitation contained in the Federal definitions. Without this 
limitation, the broad terms can encompass more than one major 
stationary source. For example, a petroleum refiner (SIC code 2911) may 
be collocated with a Plastic Materials and Resins manufacturer (SIC 
code 2821) and be under common control and ownership, and neither 
source is a support facility to the other. But, under the Major NSR 
program, these two facilities would be considered separate major 
stationary sources by virtue of a

[[Page 41328]]

difference in each facility's SIC irrespective of the fact that they 
are located at the same ``site.'' Notably this is not the case for the 
Title V and Section 112 programs. A single Title V permit can be issued 
to the ``site.'' TCEQ asserts that an account includes multiple sources 
and that the term ``source'' is limited to a discrete piece of 
equipment or source of air contaminants. There is nothing in the 
submitted Program's rules and definitions that limit the term 
``account'' to one ``major stationary source'' much less to a discrete 
piece of equipment. This submitted Program establishes an emissions cap 
over a group of one or more emissions points located at an ``account'' 
site. 30 TAC 101.1(1). The Texas SIP defines an ``account'' to include 
an entire company site, which could include more than one plant and 
certainly more than one major stationary source. See the approved SIP 
rule 30 TAC 101.1(1), second sentence. On its plain face, the term 
``account'' cannot be interpreted to be limited to a single major 
stationary source.
    Comment 2: BCCA, TCC, TIP and TAB, and TxOGA comment that the 
definition of ``account'' is tied to the definition of ``site'' at 30 
TAC 101.1(1) and (87). These commenters view this as limiting an 
account to a specific plant site. Commenters also point to the Title V 
rules as providing additional limitation. Citing 30 TAC 116.710(a)(1) 
and (4), the commenters point out that only one Flexible Permit may be 
issued at an account site and a Flexible Permit may not cover sources 
at more than one account site. In summary, commenters conclude that if 
these rules are read together they provide sufficient safeguards 
against a major stationary source netting a significant emissions 
increase against a decrease occurring outside a site using a Flexible 
Permit. TAB comments if a Flexible Permit could be obtained for more 
than one site, the only reasonable construction of the rule would be 
``* * * a facility, group of facilities, account or accounts * * *'' 
but the rule is not so constructed because it does not extend a 
Flexible Permit to more than one site.
    Response: EPA disagrees with the comment. Concerning the comment 
that an account is limited to a site and that the submitted Flexible 
Permit Program limits only one Flexible Permit at an account does not 
address our concern that an account may include more than one major 
stationary source. See the section III.D.1 (response to comment 1) and 
74 FR 48480, at 48489 for further information. The commenter's reliance 
on the Title V rules does not identify a specific provision in the 
Texas Title V program that supports the commenter's position.
    Furthermore, the reliance on the Title V program as providing 
additional limitation for limiting an account to a major stationary 
source does not address this matter. The Title V program is an 
operating permit program that incorporates the applicable requirements 
of the CAA (including the requirements of the approved SIP) into the 
operating permit. See 40 CFR 70.2--definition of ``applicable 
requirement'' and 70.6(a)(1). The Title V Program generally does not 
create applicable requirements independently of the applicable 
requirements in the approved SIP and other requirements of the CAA. 
Public Citizen v. EPA, 343 F.3d 449, 453 (5th Cir. 2003) (``Title V 
permits do not impose additional requirements on sources but, to 
facilitate compliance, consolidate all applicable requirements in a 
single document. See 42 U.S.C. 7661a(a); see also Virginia v. Browner, 
80 F.3d 869, 873 (4th Cir.1996) (Title V permit ``is a source-specific 
bible for [CAA] compliance''), cert. denied, 519 U.S. 1090, 117 S.Ct. 
764, 136 L.Ed.2d 711 (1997).''); Sierra Club v. Georgia Power Co., 443 
F.3d 1346, 1348 (11th Cir. 2006) (Title V ``generally does not impose 
new substantive air quality control requirements.'')
    In summary, for the reasons stated above, the definition of 
``account'' is not limited to a single major stationary source and may 
include multiple major stationary sources, or in other circumstances, 
may include a subset of a major stationary source.

F. Public Participation

    Comment 1: TCC comments that any future changes in the public 
participation aspects of the Flexible Permit program should apply 
prospectively and have no effect on the existing permits.
    Response: EPA cannot comment on what actions it will take regarding 
any future changes in the public participation aspects of the Flexible 
Permit Program and therefore defers responding because those changes 
are outside the scope of the present rulemaking. We wish to note, 
however, existing Flexible Permits were not issued under the Texas NSR 
SIP, and any future Flexible Permits also will not be issued under the 
Texas NSR SIP.
    Comment 2: The Clinic comments that the CAA and its implementing 
regulations include minimal requirements for public participation in 
permitting. This includes, for Major and Minor NSR permits and 
modifications, the requirements under 40 CFR 51.161 and for PSD 
permits, additional requirements as provided under 40 CFR 51.166(q). 
Texas public participation rules for Flexible Permits in 30 TAC Chapter 
39 require 30-days public notice and comment on initial issuance of 
Flexible Permits and amendments to a Flexible Permit if the action 
involves construction of a new facility or meets certain criteria, 
including modifications resulting in allowable emissions increases of 
250 tons per year of carbon monoxide and nitrogen oxides or 25 tons per 
year of other pollutants. See 30 TAC 39.403(b). This restriction is 
inconsistent with Federal requirements for both Major and Minor NSR. 
The commenters further object to the use of alterations and permits by 
rule to change Flexible Permit terms and conditions; such changes 
should be made through permit amendment with at least 30-days public 
notice and comment.
    Response: In the proposal, EPA proposed to disapprove 30 TAC 
116.740 because this submitted rule relates to the public participation 
requirements of the submitted Flexible Permit Program, and is not 
severable from the Program. Because we are disapproving the Flexible 
Permit Program, we are likewise disapproving the inseverable provisions 
in 30 TAC 116.740, Public Notice, for the Program. See 74 FR 40480, at 
48491 and 48493.
    The comments relating to the provisions in 30 TAC Chapter 39, the 
use of permit alterations and Permits by Rule in lieu of permit 
amendment with at least 30-days public notice and comment are outside 
the scope of this action.
    Comment 3: GCLC provided comments on Texas's submitted public 
participation program that it is robust and fully compliant with 
Federal requirements and in fact exceeds Federal requirements. GCLC 
comments that even parties not residing in the State may comment on an 
air permit application and TCEQ is obligated to respond whereas under 
Federal requirements only affected persons are allowed to comment and 
trigger a response obligation. GCLC asserts that the ``public meeting'' 
component of the State program is equivalent to the ``public hearing'' 
component of the Federal program. GCLC comments that the trial-type 
contested hearing process in the Texas program goes well beyond the 
Federal requirements which permit only interested parties to 
participate during the notice and comment period.
    Response: We recognize that our proposal included a brief 
discussion of how the submitted Flexible Permit Program requires 
compliance with provisions in Chapter 39 of the Texas

[[Page 41329]]

Administrative Code. On November 26, 2008, EPA proposed limited 
approval/limited disapproval of the Texas submittals relating to public 
participation for air permits of new and modified facilities (73 FR 
72001). In our November 26, 2008, proposal of the Texas Public 
Participation rules, we proposed no action on 30 TAC 116.740 and stated 
that we would address that section in a separate action. See 73 FR 
72001, at 72015. In our proposal of the Texas Flexible Permits Program, 
we proposed to disapprove 30 TAC 116.740 because this submitted rule 
relates to the public participation requirements of the submitted 
Flexible Permit Program, and is not severable from the Program. Because 
we are disapproving the Flexible Permit Program, we are likewise 
disapproving the inseverable provisions in 30 TAC 116.740, Public 
Notice, for the Program. See 74 FR 40480, at 48491 and 48493.

IV. What are the Grounds for This Disapproval Action of the Texas 
Flexible Permits State Program?

    EPA is disapproving revisions to the SIP submitted by the State of 
Texas that relate to the Flexible Permits State Program, identified in 
the above Tables 1 and 2. Sources are reminded that they remain subject 
to the requirements of the federally approved Texas SIP and may be 
subject to enforcement actions for violations of the SIP. See EPA's 
Revised Guidance on Enforcement during Pending SIP Revisions, (March 1, 
1991). You can access this document at: http://www.epa.gov/compliance/
resources/policies/civil/caa/stationary/enf-siprev-rpt.pdf. However, 
this final disapproval action does not affect Federal enforceability of 
Major and Minor NSR SIP permits.
    The provisions affected by this disapproval action include 
regulatory provisions at 30 TAC 116.110(a)(3), 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; and definitions at 30 TAC 
116.10(11)(F), and 30 TAC 116.13 under 30 TAC Chapter 116, Control of 
Air Pollution by Permits for New Construction or Modification. EPA 
finds that these submitted provisions and definitions in the submittals 
affecting the Texas Flexible Permits State Program are not severable 
from each other. Specifically, EPA is making the following findings and 
taking the following actions as described below:

A. The Texas Flexible Permits Program is Unclear Whether It is for a 
Major or Minor NSR SIP Revision

    Several commenters claim that the submitted Program is clear that 
every project for which a Flexible Permit is issued must also comply 
with Major NSR requirements, and therefore was not intended to be a 
Major NSR SIP revision. Other commenters disagree and say the rules are 
not clear on their face that the Program requires compliance with the 
Major NSR requirements. The latter commenters agree with EPA's analysis 
of the submitted Program in the proposal and comment that we correctly 
stated that we were required to review the submittal as a substitute 
for a Major NSR program because the submittal is not clearly limited to 
minor sources and minor modifications. TCEQ states that the Flexible 
Permit Program was not intended to be a substitute for the Major NSR 
permitting requirements but that it understands EPA's concerns with 
ambiguity regarding the applicability of the submitted Program, that 
this is not specifically stated in the submitted Program's regulations. 
Furthermore, the TCEQ commits to revise its rules to make it clear that 
the Program is limited to Minor NSR.
    The submitted Program is analogous to two other Minor NSR programs 
(Standard Permits and Permits by Rule) in Texas's SIP because they too 
provide a different permit option for facilities. In particular, these 
programs exempt facilities from obtaining a source-specific (i.e., 
case-by case) permit. Unlike the submitted Program, however, the SIP 
rules for Standard Permits and Permits by Rule include an applicability 
statement and a regulatory provision that expressly limits 
applicability to minor sources and minor modifications. The Standard 
Permits rules explicitly require a Major NSR applicability 
determination at 30 TAC 116.610(b), and prohibit circumvention of Major 
NSR at 30 TAC 116.610(c). Likewise, the Permits by Rule provisions 
explicitly require a Major NSR applicability determination at 30 TAC 
106.4(a)(3), and prohibit circumvention of Major NSR at 30 TAC 
106.4(b). In each, the State specifically expressed its intention to 
require a Major NSR applicability determination and prohibit 
circumvention of Major NSR. The absence of a similar Major NSR 
applicability determination requirement and a similar regulatory 
prohibition for circumvention of the Major NSR SIP permitting 
requirements in the submitted Flexible Permits Program creates 
unacceptable ambiguity. The commenters opposing our proposed action 
fail to provide an explanation of why the TCEQ did not write the 
submitted Flexible Permit rules with the same provisions as the Texas 
Minor NSR Permits by Rule and Standard Permit SIP rules. A clear 
intention to limit the submitted Program to minor sources and minor 
modifications would have resulted in a similar structure to the Texas 
Minor NSR Permits by Rule and Standard Permit SIP rules. The State, 
however, did not include such provision in the submitted Flexible 
Permits Program. See 74 FR 48480, at 48487, and section III.B (response 
to comment 1) for further information.

B. The Texas Flexible Permits Program is Not Approvable as a Substitute 
Major NSR SIP Revision

    Because of the State's disavowal of any intent to have this SIP 
revision submittal treated as a substitute for a Major NSR SIP program, 
it did not submit a demonstration as required by 40 CFR 
51.165(a)(2)(ii) and 51.166(a)(7)(iv) to show that its Program was as 
stringent as the EPA Major NSR SIP program requirements. It also did 
not explain how the submitted Program is consistent with the Act's 
requirements for a Major NSR SIP revision. As discussed at 74 FR 38480, 
at 48487, and in section III.B (response to comments 1 and 2), section 
III.C.1 (responses to comments 1 and 2), and section III.C.3 (responses 
to comments 1 and 2) of this notice, the State did not structure the 
submitted Program in a similar fashion as the Texas Minor Standard 
Permits and Permits by Rule NSR SIP programs. This lack of a similar 
regulatory structure creates the ambiguities whether the submitted 
Program is truly limited to Minor NSR and whether it prohibits the 
circumvention of the Federal Major NSR SIP requirements. Without the 
required demonstration and with the ambiguities, EPA is disapproving 
the Program as not meeting the Major NSR SIP requirements that require 
the Major NSR applicability requirements be met and that prevent 
circumvention of Major NSR. See 74 FR 48480, at 48488, section III.B 
(response to comment 1) and section III.C.1 of this notice for further 
information.
    Some commenters assert that the submitted Program meets the netting 
criteria for a Major NSR SIP revision. Others argue differently. Under 
the submitted Program, not all emission points, units, facilities, 
major stationary sources, minor modifications to an existing major 
stationary source, and so forth, at a site are required to be included 
in the site's Flexible Permit.

[[Page 41330]]

The submitted Program allows an emission cap to be established under a 
Flexible Permit account to include multiple major stationary sources 
and allow a major stationary source to net a significant emissions 
increase against a decrease occurring outside the major stationary 
source, from facilities on the account's site, and, in other 
circumstances, allowing an evaluation of emissions of a subset of units 
at a major stationary source. As a result, the regulated community may 
apply these regulations inconsistently and in a way that fails to 
evaluate emissions changes at the entire major stationary source 
correctly as required by the Major NSR SIP regulations. See section 
III.E (responses to comments 1 and 2) for further information.
    Therefore, the submitted Program does not meet the CAA's definition 
of ``modification'' and the Major NSR SIP requirements and is 
inconsistent with Alabama Power v. Costle, 636 F.2d 323, 401-403 (D.C. 
Cir. 1980) and Asarco v. EPA, 578 F.2d 320 (D.C. Cir.1978). The 
submitted Program does not meet the Major NSR SIP requirements for 
netting. Second, the Program authorizes existing allowable emissions, 
rather than actual emissions, to be used as a baseline to determine 
applicability. Therefore, this use of allowables is inconsistent with 
the requirements of the Act for Major NSR and is contrary to New York 
v. EPA, 413 F.3d 3, 38-40 (D.C. Cir. 2005) (``New York I''). See 74 FR 
48480, at 48489-48490, and section III.C.2 (response to comment 2) for 
further information.
    Several commenters claim that the submitted Program requires the 
retention of the conditions of an existing PSD or Nonattainment NSR 
permit and that the TCEQ is required under the submitted Program to 
carry forward such terms and conditions in a Flexible Permit. On the 
other hand, there was a comment that the submitted Program contains no 
such requirement and that TCEQ regularly voids existing Nonattainment 
and PSD NSR permits when it issues a Flexible Permit. The submitted 
Flexible Permit Program is not clear and explicit that Flexible Permits 
cannot be used to eliminate or amend existing Nonattainment and PSD NSR 
SIP permit terms and conditions. There are not sufficient provisions in 
the submitted Program requiring the holder of a Flexible Permit to 
maintain recordkeeping sufficient to ensure that all terms and 
conditions of pre-existing permits (including representations in the 
applications for such permits) that are incorporated into the Flexible 
Permit continue to be met. The submitted Program lacks adequate program 
requirements for the tracking of existing SIP permits' Major NSR terms, 
limits and conditions, and whether such requirements are incorporated 
into a Flexible Permit or they remain outside the coverage of the 
Flexible Permit. The submitted Program is ambiguous and can be 
interpreted to allow holders of a Flexible Permit to make de facto 
amendments of existing SIP permits, including changes in the terms and 
conditions (such as throughput, fuel type, hours of operation) of Major 
NSR permits, without a preconstruction review by Texas. See section 
III.C.5 for further information.
    Therefore, the submitted Program does not require the retention of 
the conditions of Major NSR SIP permits upon the issuance of a Flexible 
Permit, as is required for a Major NSR SIP revision.
    Pursuant to 40 CFR 51.165(a)(2)(ii) and 51.166(a)(7)(iv), where a 
State submits a revision to its Major NSR SIP that differs from the 
Federal Major NSR base program SIP requirements, the State has an 
affirmative obligation to explain how the submitted program satisfies 
the CAA and to demonstrate why the submitted program is in fact at 
least as stringent as the Major NSR SIP requirements of the Federal 
base program. It is not EPA's obligation to surmise how the submitted 
program might work and if it may under certain circumstances be more or 
less stringent than the Federal Major NSR SIP base program. The State 
did not submit such a demonstration because it did not view the 
submitted Program as a substitute for a Major NSR SIP revision.
    Without the required customized Major NSR demonstration, the lack 
of a replicable methodology for the establishment of the emissions cap, 
the provision allowing director discretion in deciding whether or not 
to include a MRR condition in a Flexible Permit, the lack of sufficient 
MRR requirements, and the lack of enforceability, EPA lacks sufficient 
information to make a finding that the submitted Flexible Permits 
Program will prevent interference with NAAQS attainment and RFP or 
violations of any State control strategy that is required by the Texas 
NSR SIP, or any other applicable CAA requirement. See 74 FR 48480, at 
48492, section III.D.3, and section III.A (response to comment 6) for 
further information.
    Therefore, the Program does not meet the requirements of the Act 
and EPA regulations for a substitute Major NSR SIP.
    In summary, EPA is disapproving the submitted Flexible Permits 
Program as not meeting the Major NSR SIP requirements.

C. The Texas Flexible Permits Program Is Not Approvable as a Minor NSR 
SIP Revision

    Several commenters claim the Texas Flexible Permit Program 
explicitly requires permit holders to comply with the Federal Major NSR 
rules. In contrast, another commenter says that the submitted Program 
does not include adequate provisions for ensuring that changes that 
should trigger Major NSR are subject to technology and air quality 
analysis requirements. Commenters assert that the submitted Program 
prohibits circumvention of Major NSR. Another commenter notes to the 
contrary. We evaluated the submitted Program under CAA section 
110(a)(2)(C), which requires each State to include a Minor NSR program 
in its SIP. EPA regulations implementing the Act require that a plan 
include ``legally enforceable procedures that enable'' the permitting 
agency to determine whether a minor source will cause or contribute to 
violations of applicable portions of the control strategy (see 40 CFR 
51.160(a)(1)), or ``interference with a national ambient air quality 
standard,'' (see 40 CFR 51.160(a)(2)), and to prevent the source from 
doing so (see 40 CFR 51.160(b)). There is, however, no express 
provision in the submitted Flexible Permit Program rules that prohibits 
its use for Major NSR. There is no express regulatory provision in the 
submitted Program requiring that it cannot be used to circumvent the 
requirements of Major NSR. There are no regulatory provisions clearly 
prohibiting circumvention of Major NSR. See 74 FR 48480, at 48486, and 
section III.D.1 for further information.
    Therefore, EPA is disapproving the submitted Program as a Minor NSR 
SIP revision because it is not clearly limited to Minor NSR and it does 
not prevent circumvention of the Major NSR SIP requirements.
    Several commenters state that the submitted Program does contain 
comprehensive and stringent provisions for MRR or assert that there is 
a wide array of additional Texas rules specifying MRR requirements. A 
commenter notes that there is significant difference in the types of 
sources that apply for a Flexible Permit; therefore, requiring one 
comprehensive rule could severely limit TCEQ's ability to implement 
adequately these requirements. In contrast, another commenter notes 
that the submitted Program does not contain adequate MRR requirements 
to assure compliance with the emission limits in Flexible Permits.

[[Page 41331]]

On the other hand, TCEQ admits the submitted Program does not specify 
special conditions that ensure recordkeeping, reporting, testing, and 
reporting to assure compliance with the Flexible Permit.
    The submitted Program is an intricate and complex program and 
therefore, for approvability as a Major NSR SIP revision, there is a 
greater need for detailed MRR requirements whether to ensure that a 
project triggering the Major NSR SIP requirements is covered under 
Major NSR or to ensure that there are adequate means for ensuring 
compliance of each affected source under both Major and Minor NSR. 
These are needed to make the submitted Program enforceable and to 
ensure that the issuance of the Flexible Permits does not cause or 
contribute to a NAAQS violation, the Texas control strategy, or violate 
any other CAA requirement. The submitted Flexible Permit Program is 
generic concerning the types of monitoring that is required rather than 
identifying the employment of specific monitoring approaches, providing 
the technical specifications for each of the specific allowable 
monitoring systems, and requiring replicable procedures for the 
approval of any alternative monitoring system. It also lacks the 
replicable procedures that are necessary to ensure that (1) adequate 
monitoring is required that would accurately determine emissions under 
the Flexible Permit cap, (2) the Program is based upon sound science 
and meets generally acceptable scientific procedures for data quality 
and manipulation; and (3) the information generated by such system 
meets minimum legal requirements for admissibility in a judicial 
proceeding to enforce the Flexible Permit.
    The submitted Program therefore lacks provisions explicitly 
addressing the type of MRR requirements that are necessary to ensure 
that all of the movement of emissions between the emission points, 
units, facilities, plants, etc., still meet the cap for the pollutant, 
still meet the individual emissions limitations, and still meet any 
other applicable State or Federal requirement. The commenters' 
assertion that there are additional MRR SIP requirements applicable to 
the submitted Program is incorrect; there are no such additional 
applicable MRR SIP requirements. Moreover, the submitted Program leaves 
it to the director's discretion to require a MRR condition in a 
Flexible Permit. See 74 FR 48480, at 48490, and section III.C.5 
(response to comment), III.D.3 (response to comments 4, 5, and 9), and 
section III.A (response to comment 6) for further information.
    Without specialized MRR requirements in the submitted Program, it 
is difficult for EPA or the public to determine which units are covered 
by a Flexible Permit, which modifications to non-covered units are 
covered by a Flexible Permit, whether a covered unit is subject to the 
emission cap or an individual emission limitation, whether a unit is 
subject to both the cap and a limitation, or whether a cap or a 
limitation applies and at what time. See 74 FR 48480, at 48492, and 
section III.D.3 for further information. Accordingly, the submitted 
Program lacks requirements necessary for enforcement and assurance of 
compliance. There are no specific up-front methodologies in the Program 
to be able to determine compliance. It fails to meet the enforceability 
requirements as a program or by a holder of a Flexible Permit, and it 
cannot assure compliance with the Program or of the affected source.
    Several commenters state that the submitted Program does contain 
comprehensive and stringent provisions for MRR or assert that there is 
a wide array of additional Texas rules specifying MRR requirements. A 
commenter notes that there is significant difference in the types of 
sources that apply for a Flexible Permit; therefore, requiring one 
comprehensive rule could severely limit TCEQ's ability to implement 
adequately these requirements. In contrast, another commenter notes 
that the submitted Program does not contain adequate MRR requirements 
to assure compliance with the emission limits in Flexible Permits.
    First, the commenters point to no other specific SIP rules that 
apply to Flexible Permits and are detailed MRR requirements. Although 
the submitted Program requires the same MRR requirements at 30 TAC 
116.711(2) and 116.715(c)(4)-(6), as do the SIP rules codified in 
Subchapter B of Chapter 116, the underpinnings of the submitted Program 
are so complex that even for a Minor NSR SIP program, there should be 
more detailed MRR requirements to ensure that the emission cap and/or 
individual emissions limitations in the issued Flexible Permits are 
enforceable. See 74 FR 48480, at 48492, and section III.D.3 for further 
information. Secondly, the submitted Flexible Permit Program is complex 
and intricate and therefore, for approvability as a NSR SIP revision, 
there is a greater need for detailed MRR requirements whether to ensure 
that a project triggering the Major NSR SIP requirements is covered 
under Major NSR or to ensure that there are adequate means for ensuring 
compliance of each affected entity under both Major and Minor NSR. See 
74 FR 48480, at 48490, section III.A (response to comment 6), and 
section III.D.3 (response to comment 2) for further information.
    Moreover without specialized MRR requirements in the submitted 
Program, it is difficult for EPA or the public to determine which units 
are covered by a Flexible Permit, which modifications to non-covered 
units are covered by a Flexible Permit, whether a covered unit is 
subject to the emission cap or an individual emission limitation, 
whether a unit is subject to both the cap and a limitation, or whether 
a cap or a limitation applies and when it applies. See 74 FR 48480, at 
48492, and section III.D.3 of this notice for further information. 
Accordingly, the Program lacks requirements necessary for enforcement 
and assurance of compliance. There are no specific up-front 
methodologies in the Program to be able to determine compliance. It 
fails to meet the enforceability requirements as a program or for a 
holder of a Flexible Permit, and it cannot assure compliance with the 
Program or by the holder of a Flexible Permit.
    Therefore, the submitted Program is not enforceable, as required by 
section 110(a)(2)(A)-(C) of the Act for a Minor NSR SIP revision, and 
it fails to prohibit the issuance of a Flexible Permit that could 
interfere with attainment of a NAAQS or violate a control strategy. 
Because of its lack of enforceability, EPA lacks sufficient information 
to make a finding that the Flexible Permits Program is adequate to 
ensure that no construction and changes authorized under the Program 
will prevent interference with attainment and maintenance of the NAAQS 
or violations of any State control strategy that is required by the 
Texas NSR SIP. See 74 FR 48480, at 48492, and section III.D.3 for 
further information.
    Several commenters claim that the submitted Program requires the 
retention of the conditions of an existing PSD or Nonattainment NSR 
permit and that the TCEQ is required under the submitted Program to 
carry forward such terms and conditions in a Flexible Permit. On the 
other hand, there was a comment that the submitted Program contains no 
such requirement and that TCEQ regularly voids existing Nonattainment 
and PSD NSR permits when it issues a Flexible Permit. The submitted 
Flexible Permit Program is not clear and explicit that Flexible Permits 
cannot be used to eliminate or amend existing Nonattainment and PSD NSR 
SIP permit terms and conditions. The regulatory structure of the 
submitted Program does not ensure that existing Major NSR SIP permits' 
terms

[[Page 41332]]

and conditions are retained. It lacks legally enforceable procedures to 
ensure that both the permit application and the State's permitting 
processes (i.e., the State's review, supporting technical information, 
the public notice and comment process, the record, and most importantly 
the structuring of each Flexible Permit) clearly identify each covered 
point of emissions; which existing Minor NSR permits and their types 
(e.g., Minor NSR SIP permit, Minor NSR SIP standard permit, Minor NSR 
SIP permit by rule); and which of their permitted terms, limits, 
conditions and representations in the permit application, are moved 
into the Flexible Permit. The regulatory structure of the submitted 
Program also is not clear which existing permits and their types and 
terms, limits, conditions and representations in the permit 
application, are not being moved into the Flexible Permit. Finally, 
there are not sufficient provisions in the submitted Program requiring 
the holder of a Flexible Permit to maintain recordkeeping sufficient to 
ensure that all terms and conditions of existing permits (including 
representations in the applications for such permits) that are 
incorporated into the Flexible Permit continue to be met. The submitted 
Program lacks adequate program requirements for the tracking of 
existing SIP permits' Major and Minor NSR terms, limits and conditions, 
and whether or not such requirements are incorporated into a Flexible 
Permit. Minor and Major NSR permits, as well as Minor NSR SIP Permits 
by Rule and Standard Permits, can be incorporated into a Flexible 
Permit without any program requirement in place that ensures the SIP 
permits' terms and conditions are included in the Flexible Permit. The 
submitted Program also allows holders of a Flexible Permit to make de 
facto amendments of existing SIP permits, including changes in the 
terms and conditions (such as throughput, fuel type, hours of 
operation) of Minor and Major NSR permits, without a preconstruction 
review by Texas. See section III.C.5 and section III.D.3 (response to 
comment 10) for further information.
    Therefore, the submitted Program does not require the retention of 
the conditions of Major NSR SIP permits upon the issuance of a Flexible 
Permit, as is required for a Minor NSR SIP revision and allows for 
revision of existing permits without adequate public notice and comment 
as required by 40 CFR 51.160-161.
    Several commenters claim that the submitted Program does contain an 
established and replicable method for determining an established 
emissions cap; others claim differently. The submitted Program does not 
describe in sufficient detail the calculation methodologies and 
underlying technical analyses used to determine a cap. It lacks 
specific, established, replicable procedures in the submitted 
regulations providing available means to determine independently, and 
for different scenarios, how the State will calculate a Flexible 
Permit's cap and/or individual emissions limitations for a company's 
site, plants on the site, major stationary sources on the site, a 
facility within a major stationary source on the site, facilities on 
the site, a group of units on the site, for one pollutant but not 
another, etc. The process also is not clear for how the emission cap is 
adjusted for the addition of new facilities. See 74 FR 48480, at 48491 
and section III.D.2 for additional information.
    Therefore, the submitted Program lacks replicable procedures for 
the establishment of the emissions cap, as is required for a Minor NSR 
SIP revision.
    The submitted Program provides an alternative permit option but 
there is not sufficient information to determine whether this 
alternative is as stringent as the existing Texas Minor NSR SIP. 
Consequently, the submitted Program could create a risk of interference 
with NAAQS attainment, RFP, or any other requirement of the Act. 
Additionally, the legal test for whether an alternative Minor NSR 
permit approach can be approved is whether it is consistent with the 
need for a plan to include legally enforceable procedures to ensure 
that the State will not permit a source that will violate the control 
strategy or interfere with NAAQS attainment, as required by 40 CFR 
51.160(a)-(b). 74 FR 48480, at 48491. Therefore, we are disapproving 
the submitted Flexible Permits Program as a Minor NSR SIP revision 
because it does not meet sections 110(a)(2)(C) and 110(1) of the Act 
and 40 CFR 51.160. Without a replicable methodology for establishing 
the emission caps, the provision allowing director discretion whether 
or not to include a MRR condition in a Flexible Permit, the lack of 
sufficient MRR requirements and the lack of enforceability of the 
submitted Program, EPA lacks sufficient information to make a finding 
that the submitted Program, as a Minor NSR SIP program, will ensure 
protection of the NAAQS, and noninterference with the Texas SIP control 
strategies and RFP. See 74 FR 48480, at 48492, and section III.A 
(response to comment 6) for further information.
    Based upon the above, overall, the submitted Program fails to 
include sufficient legally enforceable safeguards to ensure that the 
NAAQS and control strategies are protected. Therefore, EPA is 
disapproving the Program for not meeting the requirements for a Minor 
NSR SIP revision.

D. The Texas Flexible Permits Program Does Not Meet the NSR Public 
Participation Requirements

    A commenter stated that any future changes in public participation 
aspects of the Flexible Permit Program should apply prospectively and 
should have no effect on existing permits. Another commenter stated 
that the submitted Program lacks the minimum public participation in 40 
CFR 51.161 for a NSR SIP submittal and for a PSD SIP submittal, the 
public participation requirements in 40 CFR 51.166(q). Another 
commenter asserts that the submitted public participation program is 
robust and fully compliant with Federal requirements and in fact 
exceeds Federal requirements because of its broader scope and trial-
type contested hearings process.
    The submitted rule is not severable from the Program because it 
relates to the public participation requirements of the submitted 
Program. We are disapproving the Texas Flexible Permits State Program, 
and we are disapproving the submitted 30 TAC 116.740, because this 
submitted rule for public participation is not severable from the 
submitted Program. See 74 FR 48480, at 48490 and 48493 and section 
III.F for further information.

E. Definition of ``Account''

    TCEQ does not agree with EPA's understanding of the term 
``account'' as applied by TCEQ. It further states that it has 
integrated and translated the many Federal definitions of the 
``source'' in an attempt to maintain consistent terminology between 
State and Federal programs. TCEQ comments that its definition of an 
``account'' references the term ``source'' as defined in Texas law. 
According to TCEQ, within this rule, it interprets ``sources'' as being 
equivalent to multiple ``facilities'' (a discrete piece of equipment or 
source of air contaminants) under Texas Minor Source definitions. TCEQ 
further commented that a Flexible Permit cannot cover more than one 
major stationary source, as the term is used by EPA and TCEQ for 
Federal NSR purposes. See comment 1 under section III.E. To be 
approvable, a Flexible Permit cannot cover more than one major 
stationary source, as the term is used by EPA and TCEQ for Federal NSR

[[Page 41333]]

purposes. Other commenters note that the definition of ``account'' is 
tied to the definition of ``site'' at 30 TAC 101.1(1) and (87). This, 
in their view limits an account to a specific plant site. These 
commenters also point to the Title V rules as providing additional 
limitation. Citing 30 TAC 116.710(a)(1) and (4), these commenters point 
out that only one Flexible Permit may be issued at an account site and 
a Flexible Permit may not cover sources at more than one account site. 
In summary, these commenters conclude that if these rules are read 
together they provide sufficient safeguards against a major stationary 
source netting a significant emissions increase against a decrease 
occurring outside a site using a Flexible Permit. Another commenter 
comments if a Flexible Permit could be obtained for more than one site, 
the only reasonable construction of the rule would be ``* * * a 
facility, group of facilities, account or account * * *'' but the rule 
is not so constructed because it does not extend a Flexible Permit to 
more than one site. After considering these comments EPA observes that 
that an account could include an entire company site, which could 
include multiple major stationary sources, the submitted SIP revisions 
may allow a major stationary source to net a significant emissions 
increase against a decrease occurring outside the stationary source 
from facilities on the account site that are covered under a Flexible 
Permit. An account may also allow an emission increase to be determined 
based on an evaluation of a subset of facilities within a major 
stationary source. See section III.E (response to comment 1) above and 
74 FR 48480, at 48489 for further information. The commenter's reliance 
on the Title V rules does not identify a specific provision in the 
Texas Title V program that supports the commenter's position.
    In summary, for the reasons stated above, the definition of 
``account'' is not clearly limited to a single major stationary source 
and may include multiple major stationary sources, or in other 
circumstances, may include a subset of a major stationary source. The 
submitted Program is not approvable because it does not include legally 
enforceable procedures for ensuring that both the permit application 
and the State's permitting processes (i.e., the State's review, 
supporting technical information, the public notice and comment 
process, the record, and most importantly the structuring of each 
Flexible Permit in such a manner as to be clear) will clearly inform 
the public, other governmental agencies, or a court, which facilities 
are included under the permit and cap, and which are included under the 
permit but subject to individual limitations. See 74 FR 48480, at 48485 
and section III.E for further information.

V. Final Action

    EPA is disapproving the Texas Flexible Permits State Program 
submitted in a series of SIP revisions, identified in the Tables in 
section II of this preamble. These affected provisions are addressed in 
Texas' November 29, 1994 SIP revision submittal, as revised by 
severable portions in the March 13, 1996, SIP revision submittal, and 
severable portions of the July 22, 1998 SIP revision submittal that 
repealed and replaced portions of, as well as revised, the 1994 
submittal and repealed and replaced all of the 1996 submittal; and as 
revised by severable portions in the October 25, 1999, September 11, 
2000, April 12, 2001, September 4, 2002, October 4, 2002, and September 
25, 2003, SIP revision submittals.
    EPA is disapproving the submitted Texas Flexible Permits State 
Program as a Minor NSR SIP revision because it does not meet the Act 
and EPA's regulations and is not consistent with applicable statutory 
and regulatory requirements as interpreted in EPA guidance and policy. 
We also are disapproving the submitted Texas Flexible Permits State 
Program as a substitute Major NSR SIP revision, because it does not 
meet the Act and EPA's regulations and is not consistent with 
applicable statutory and regulatory requirements as interpreted in EPA 
guidance and policy.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This final action has been determined not to be a ``significant 
regulatory action'' subject to review by the Office of Management and 
Budget under Executive Order 12866 (58 FR 51735, October 4, 1993).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this SIP disapproval under section 110 and subchapter I, part D 
of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b). Because this final action does not impose an information 
collection burden, the Paperwork Reduction Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. This rule will not have a significant 
impact on a substantial number of small entities because SIP approvals 
and disapprovals under section 110 and part D of the Clean Air Act do 
not create any new requirements but simply approve or disapprove 
requirements that the States are already imposing.
    Furthermore, as explained in this action, the submissions do not 
meet the requirements of the Act and EPA cannot approve the 
submissions. The final disapproval will not affect any existing State 
requirements applicable to small entities in the State of Texas. 
Federal disapproval of a State submittal does not affect its State 
enforceability. After considering the economic impacts of today's 
rulemaking on small entities, and because the Federal SIP disapproval 
does not create any new requirements or impact a substantial number of 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of State action. The Clean Air 
Act forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 
7410(a)(2).

[[Page 41334]]

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 ``for State, local, or tribal governments or the private 
sector.'' EPA has determined that the disapproval action does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action determines 
that pre-existing requirements under State or local law should not be 
approved as part of the Federally approved SIP. It imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP 
EPA is disapproving would not 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. This final rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). 
This SIP disapproval under section 110 and subchapter I, part D of the 
Clean Air Act will not in-and-of itself create any new regulations but 
simply disapproves certain State requirements for inclusion into the 
SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 (66 FR 28355, May 
22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act. Today's action does not require 
the public to perform activities conducive to the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove State choices, based on the criteria of the Clean 
Air Act. Accordingly, this action merely disapproves certain State 
requirements for inclusion into the SIP under section 110 and 
subchapter I, part D of the Clean Air Act and will not in-and-of itself 
create any new requirements. Accordingly, it 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.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of

[[Page 41335]]

this action must be filed in the United States Court of Appeals for the 
appropriate circuit by September 13, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

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.

    Dated: June 30, 2010.
Al Armendariz,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7410 et seq.

Subpart SS--Texas

0
2. Section 52.2273 is amended by adding a new paragraph (c) to read as 
follows:


Sec.  52.2273  Approval status.

* * * * *
    (c) EPA is disapproving the Texas SIP revision submittals under 30 
TAC Chapter 116--Control of Air Pollution by Permits for New 
Construction or Modification as follows:
    (1) The following provisions under 30 TAC Chapter 116, Subchapter 
A--Definitions:
    (i) Portion of the definition of ``modification of existing 
facility'' in 30 TAC 116.10(11)(F), submitted March 13, 1996; repealed 
and readopted June 17, 1998 and submitted July 22, 1998; adopted August 
9, 2000 and submitted September 11, 2000; and revised August 21, 2002 
and submitted September 4, 2002;
    (ii) 30 TAC 116.13--Flexible Permit Definitions, adopted November 
16, 1994 and submitted November 29, 1994; repealed and readopted June 
17, 1998 and submitted July 22, 1998;
    (2) The following provision in 30 TAC Chapter 116, Subchapter B--
New Source Review Permits, Division 1--Permit Application: 30 TAC 
116.110(a)(3)--Applicability, adopted November 16, 1994 and submitted 
November 29, 1994; repealed and readopted June 17, 1998 and submitted 
July 22, 1998;
    (3) The following sections in 40 TAC Chapter 116, Subchapter G--
Flexible Permits:
    (i) 30 TAC 116.710--Applicability--adopted November 16, 1994 and 
submitted November 29, 1994; revised June 17, 1998 and submitted July 
22, 1998; and adopted August 9, 2000 and September 11, 2000;
    (ii) 30 TAC 116.711--Flexible Permit Application--adopted November 
16, 1994 and submitted November 29, 1994; revised June 17, 1998 and 
submitted July 22, 1998; revised March 7, 2001 and submitted April 12, 
2001; and revised August 21, 2002 and submitted September 4, 2002;
    (iii) 30 TAC 116.714--Application Review Schedule--adopted November 
16, 1994 and submitted November 29, 1994, and revised June 17, 1998 and 
submitted July 22, 1998;
    (iv) 30 TAC 116.715--General and Special Conditions--adopted 
November 16, 1994 and submitted November 29, 1994; revised June 17, 
1998 and submitted July 22, 1998; adopted August 9, 2000 and submitted 
September 11, 2000; revised March 7, 2001 and submitted April 12, 2001; 
revised August 21, 2002 and submitted September 4, 2002; and revised 
August 20, 2003 and submitted September 25, 2003;
    (v) 30 TAC 116.716--Emission Caps and Individual Limitations--
adopted November 16, 1994 and submitted November 29, 1994;
    (vi) 30 TAC 116.717--Implementation Schedule for Additional 
Controls--adopted November 16, 1994 and submitted November 29, 1994;
    (vii) 30 TAC 116.718--Significant Emission Increase--adopted 
November 16, 1994 and submitted November 29, 1994;
    (viii) 30 TAC 116.720--Limitation on Physical and Operational 
Changes--adopted November 16, 1994 and submitted November 29, 1994;
    (ix) 30 TAC 116.721--Amendments and Alterations--adopted November 
16, 1994 and submitted November 29, 1994; revised June 17, 1998 and 
submitted July 22, 1998; and revision adopted August 9, 2000 and 
submitted September 11, 2000;
    (x) 30 TAC 116.722--Distance Limitations--adopted November 16, 1994 
and submitted November 29, 1994; and revision adopted August 9, 2000 
and submitted September 11, 2000;
    (xi) 30 TAC 116.730--Compliance History--adopted November 16, 1994 
and submitted November 29, 1994; and revised June 17, 1998 and 
submitted July 22, 1998;
    (xii) 30 TAC 116.740--Public Notice and Comment--adopted November 
16, 1994 and submitted November 29, 1994; revised June 17, 1998 and 
submitted July 22, 1998; and revision adopted September 2, 1999 and 
submitted October 25, 1999;
    (xiii) 30 TAC 116.750--Flexible Permit Fee--adopted November 16, 
1994 and submitted November 29, 1994; revised June 17, 1998 and 
submitted July 22, 1998; adopted August 9, 2000 and submitted September 
11, 2000; and revision adopted September 25, 2002 and submitted October 
4, 2002;
    (xiv) 30 TAC 116.760--Flexible Permit Renewal--adopted November 16, 
1994 and submitted November 29, 1994.
[FR Doc. 2010-16776 Filed 7-14-10; 8:45 am]
BILLING CODE 6560-50-P

