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16134 Federal Register / Vol. 70, No.

60 / Wednesday, March 30, 2005 / Rules and Regulations


State ap-
State citation Title/subject proval/sub- EPA approval date Explanation
mittal date

* * * * * * *

Subchapter F—Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
Division 1—Emissions Events

Section 101.201 ............. Emissions Event Reporting and Recordkeeping 08/21/02 03/30/05 [Insert FR ci-
Requirements. tation from published

Division 2—Maintenance, Startup, and Shutdown Activities

Section 101.211 ............. Scheduled Maintenance, Startup, and Shut- 08/21/02 03/30/05 [Insert FR ci-
down Reporting and Recordkeeping Require- tation published date].

Division 3—Operational Requirements, Demonstrations, and Actions to Reduce Excessive Emissions

Section 101.221 ............. Operational Requirements .................................. 12/17/03 03/30/05 [Insert FR ci-
tation from published
Section 101.222 ............. Demonstrations ................................................... 12/17/03 03/30/05 [Insert FR ci-
tation from published
Section 101.223 ............. Actions to Reduce Excessive Emissions ........... 12/17/03 03/30/05 [Insert FR ci-
tation from published
Section 101.224 ............. Temporary Exemptions During Drought Condi- 08/21/02 03/30/05 [Insert FR ci-
tions. tation from published

Division 4—Variances

Section 101.231 ............. Petition for Variance ........................................... 08/21/02 03/30/05 [Insert FR ci-
tation from published
Section 101.232 ............. Effect of Acceptance of Variance or Permit ....... 08/21/02 03/30/05 [Insert FR ci-
tation from published
Section 101.233 ............. Variance Transfers ............................................. 08/21/02 03/30/05 [Insert FR ci-
tation from published

* * * * * * *

[FR Doc. 05–6313 Filed 3–29–05; 8:45 am] Notice of Deficiency (NOD) published submittal also included revisions to the
BILLING CODE 6560–50–P on January 7, 2002, EPA notified Texas Texas State Implementation Plan (SIP).
of EPA’s finding that the State’s periodic We published our final SIP approval in
monitoring regulations, compliance the Federal Register on November 14,
ENVIRONMENTAL PROTECTION assurance monitoring (CAM) 2003 (68 FR 64543). These revisions to
AGENCY regulations, periodic monitoring and Texas’ operating permits program
CAM general operating permits (GOP), resolve all deficiencies identified in the
40 CFR Part 70 statement of basis requirement, January 7, 2002, NOD and removes the
[TX–154–2–7609; FRL–7892–6] applicable requirement definition, and potential for any resulting consequences
potential to emit (PTE) registration under the Act, including sanctions, with
Approval of Revisions and Notice of regulations did not meet the minimum respect to the January 7, 2002, NOD.
Resolution of Deficiency for Clean Air Federal requirements of the Clean Air DATES: This final rule is effective on
Act Operating Permit Program in Texas Act and the regulations for State April 29, 2005.
AGENCY: Environmental Protection operating permits pfrograms. This ADDRESSES: Copies of the documents
Agency (EPA). action approves the revisions that TCEQ relevant to this action, including EPA’s
ACTION: Final rule.
submitted to correct the identified Technical Support Document, are in the
deficiencies. Today’s action also official file which is available at the Air
SUMMARY: EPA is approving revisions to approves other revisions to the Texas Permits Section (6PD–R), Environmental
the Texas Title V operating permits Title V Operating Permit Program Protection Agency, 1445 Ross Avenue,
program submitted by the Texas submitted on December 9, 2002, which Suite 700, Dallas, Texas 75202–2733.
Commission on Environmental Quality relate to concurrent review and credible The file will be made available by
(TCEQ) on December 9, 2002. In a evidence. The December 9, 2002, appointment for public inspection in

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Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations 16135

the Region 6 Freedom of Information Title V program effective November 30, 101.222, and 101.223, addressing the
Act Review Room between the hours of 2001 (66 FR 63318, December 6, 2001). reporting, recordkeeping and
8:30 a.m. and 4:30 p.m. weekdays As explained in the proposed and final enforcement requirements for excess
except for legal holidays. Contact Mr. full approval, we granted full approval emissions during startup, shutdown,
Stanley M. Spruiell at 214–665–7212 to based on our finding that Texas had and malfunction activities. The State
make an appointment. If possible, corrected the deficiencies identified at has incorporated these provisions into
please make the appointment at least the time of the interim approval (66 FR its definition of ‘‘applicable
two working days in advance of your at 51897 (October 11, 2001); 66 FR requirement’’ for the Title V program.
visit. There will be a 15 cent per page 63319). See also Public Citizen v. EPA,
II. What Is Being Addressed in This
fee for making photocopies of 343 F.3d 449 (5th Cir. 2003) (denying
documents. On the day of the visit, petitions for review challenging full
please check in at the EPA Region 6 approval). In today’s action, we are approving
reception area at 1445 Ross Avenue, Since the interim approval, members revisions as identified below which
Suite 700, Dallas, Texas. of the public filed comments with EPA TCEQ adopted November 20, 2002
Copies of any State submittals are also alleging other deficiencies in the Texas (submitted to EPA December 9, 2002)
available for public inspection at the Title V program, and EPA conducted a and find that those revisions and final
State Air Agency listed below during review of the issues raised. Section SIP approval of revisions published on
official business hours by appointment: 502(i) of the Act and 40 CFR 70.10(b)(1) November 14, 2003 and elsewhere in
Texas Commission on Environmental provide that whenever EPA makes a today’s Federal Register resolve the
Quality, Office of Air Quality, 12124 determination that a State is not deficiencies identified in the January 7,
Park 35 Circle, Austin, Texas 78753. adequately administering and enforcing 2002, NOD.
FOR FURTHER INFORMATION CONTACT: Mr. its program in accordance with the A. Periodic Monitoring Regulations
Stanley M. Spruiell, Air Permits Section requirements of Title V, EPA shall issue
a notice to the State. The requirement for periodic
(6PD–R), Environmental Protection
EPA published a notice of deficiency monitoring set forth in 40 CFR
Agency, Region 6, 1445 Ross Avenue,
(NOD) for Texas’ Title V Operating 70.6(a)(3)(i)(B) states that each Title V
Suite 700, Dallas, Texas 75202–2733,
Permit Program on January 7, 2002 (67 permit must include periodic
telephone (214) 665–7212, ; fax number
FR 732). The NOD was based upon our monitoring sufficient to yield reliable
214–665–7263; e-mail address
finding that several State requirements data from the relevant time period that
spruiell.stanley@epa.gov. are representative of the source’s
did not meet the minimum Federal
SUPPLEMENTARY INFORMATION: requirements of 40 CFR part 70 and the compliance with the permit where the
Throughout the document ‘‘we,’’ ‘‘us,’’ Act. TCEQ adopted rule revisions to applicable requirement does not require
or ‘‘our’’ means EPA. resolve the deficiencies identified in the periodic testing or instrumental or
Outline January 7, 2002, NOD. These rule noninstrumental monitoring.
revisions became effective, as a matter TCEQ previously implemented
I. Background
II. What is Being Addressed in This Action? of State law, on December 11, 2002. periodic monitoring requirements
A. Periodic Monitoring Regulations TCEQ submitted these rule changes to through a phased approach which used
B. Compliance Assurance Monitoring EPA as a revision to its Title V either a periodic monitoring GOP or on
Regulations Operating Permit Program on December a case-by-case determination. As a
C. Periodic Monitoring and Compliance 9, 2002. TCEQ also included, in the result, all permits did not have periodic
Assurance Monitoring General Operating December 9, 2002, submittal, other monitoring when they were issued. To
Permits address the NOD, TCEQ has revised 30
D. Statement of Basis Requirement regulatory revisions that strengthen
Texas’ program. On July 9, 2003 (68 FR TAC 122.132 and 122.142, and repealed
E. Definition of Applicable Requirement
F. Potential To Emit Registration 40871), we proposed to approve the 30 TAC 122.600, 122.604, 122.606,
Requirements revisions submitted December 9, 2002, 122.608, 122.610, and 122.612 to ensure
III. What Other Program Changes are We as revisions to Texas Title V operating that all Title V permits, including all
Approving? permits program. We received one GOPs, contain periodic monitoring
A. Credible Evidence comment letter in response to the requirements that meet the requirements
B. Concurrent Review proposal and our consideration of those of 40 CFR 70.6(a)(3)(i)(B) when issued.
IV. What is Our Response to Comments TCEQ has repealed the periodic
Received in Response to Our Proposed comments is summarized in section IV
Rulemaking? of this preamble. We are approving the monitoring and CAM GOPs identified in
V. What is our Final Action? Texas rule revisions included in the the NOD and adopted 30 TAC
VI. Statutory and Executive Order Reviews December 9, 2002, submittal in today’s 122.132(e)(13) to require permit
action. The December 9, 2002, submittal applications to include periodic
I. Background also included provisions which TCEQ monitoring requirements consistent
The Clean Air Act (the Act) requested that we approve as revisions with part 70. TCEQ has amended 30
Amendments of 1990 required all States to its SIP. We approved those SIP TAC 122.142(c) and 30 TAC 122.602 to
to develop operating permits programs revisions submitted December 9, 2002, require periodic monitoring which is
that meet Title V of the Act, 42 U.S.C. on November 14, 2003 (68 FR 64543). consistent with part 70 to be included
7661–7661f, and its implementing We have prepared a Technical Support in all Title V permits, including GOPs,
regulations, 40 CFR part 70. Texas’ Document which contains a detailed when the permit is issued. The revisions
operating permit program was analysis of our evaluation of this action. require that periodic monitoring be
submitted in response to this directive The Technical Support Document is included in Title V permits at initial
on November 15, 1993. We promulgated available at the address listed above. issuance under 30 TAC 122.201, permit
interim approval of the Texas Title V Elsewhere in today’s Federal Register, renewals under 30 TAC 122.243, permit
program on June 25, 1996 (61 FR 32693) we are also taking final action to grant reopenings under 30 TAC 122.231(a)
and the program became effective on limited SIP approval of revisions to and (b), significant revisions under 30
July 25, 1996. Subsequently, we Title 30 of the Texas Administrative TAC 122.221, and at minor permit
promulgated full approval of the Texas Code (30 TAC) 101.211, 101.221, revisions under 30 TAC 122.217. We are

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16136 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations

today approving the revised rules and correct the program deficiency TCEQ repealed all of the CAM
the State’s repeals as a revision to Texas’ identified in the January 7, 2002, NOD. requirements contained in Subchapter
Title V program and find that the H. The CAM applicability section and
C. Periodic Monitoring and Compliance
revisions satisfy Texas’ requirement to the section pertaining to quality
Assurance Monitoring General
correct the program deficiency Operating Permits
improvement plans are adopted under
identified in the January 7, 2002, NOD. Subchapter G, renamed Periodic
The content requirements for part 70 Monitoring and Compliance Assurance
B. Compliance Assurance Regulations permits are set forth in 40 CFR 70.6 and Monitoring. TCEQ also adopted several
CAM is implemented through 40 CFR include periodic monitoring and CAM amendments to Chapter 122 to clarify
part 64 and 40 CFR 70.6(a)(3)(i)(A) and as permit conditions of all Title V periodic monitoring and CAM
requires Title V permits to include ‘‘all permits. Also, 40 CFR 70.6(d)(1) implementation and to delete any
monitoring and analysis procedures or provides that ‘‘any general permit shall reference to the monitoring GOP
test methods required under applicable comply with all requirements applicable process.
monitoring and testing requirements, to other part 70 permits.’’ TCEQ TCEQ also amended the GOP
including [40 CFR part] 64 . . .’’ 40 CFR previously implemented CAM and definition at 30 TAC 122.10(11) to
64.5 provides that CAM applies at periodic monitoring requirements specify that multiple similar sources
permit renewal unless the permit holder through CAM and periodic monitoring may be authorized to operate under a
has not filed a Title V permit GOPs which did not meet Title V’s GOP, consistent with the requirement at
application by April 20, 1998, or the definition of, or requirements for, 40 CFR 70.6(d) that general permits are
Title V permit application has not been general permits. The terms and
limited to numerous similar sources. 30
determined to be administratively conditions of Texas’ periodic
TAC 122.501(a)(1) requires the
complete by April 20, 1998. CAM also monitoring GOPs and CAM GOPs
Executive Director to issue GOPs with
applies to a Title V permit holder who contained only monitoring
conditions that provide for compliance
requirements, monitoring options, and
filed a significant permit revision under with all requirements of Chapter 122.
related monitoring requirements for
Title V after April 20, 1998. TCEQ also revised 30 TAC 122.161 to
certain applicable requirements and
TCEQ previously implemented CAM make related miscellaneous changes.
therefore were missing a number of the
through either a CAM GOP or a case-by- requirements of 40 CFR 70.6. We are today approving the new and
case CAM determination. TCEQ’s use of To address the NOD, TCEQ amended revised rules and the repeals as a
a phased approach did not ensure that Chapter 122 to require that all GOPs revision to Texas’ Title V program and
all permits would include CAM include periodic monitoring and CAM, find that the revisions satisfy Texas’
required by 40 CFR 70.6(a)(3)(i)(A), and to eliminate the monitoring GOP requirement to correct the program
according to the schedule in 40 CFR process. To ensure that all permits are deficiency identified in the January 7,
64.5, because a facility did not have to issued containing periodic monitoring 2002, NOD.
apply for a CAM GOP until two years and CAM, the TCEQ adopted D. Statement of Basis Requirement
after the CAM GOP had been issued. To amendments requiring periodic
address the NOD, TCEQ has revised the monitoring and CAM to be addressed in 40 CFR 70.7(a)(5) requires that ‘‘[t]he
sections of Chapter 122 relating to permit applications and to be included permitting authority shall provide a
application content and permit content, in issued permits. As discussed above, statement that sets forth the legal and
to ensure that all permits, including revised 30 TAC 122.132(e)(12) specifies factual basis for the draft permit
GOPs, include CAM requirements that applications for units subject to conditions (including references to the
according to the schedule in 40 CFR CAM must contain elements specified applicable statutory or regulatory
64.5. TCEQ amended 30 TAC in 40 CFR 64.3, Monitoring Design provisions). The permitting authority
122.132(e)(12) to specify that Criteria, and 40 CFR 64.4, Submittal shall send this statement to EPA and to
applications for units subject to CAM Requirements. As revised, 30 TAC any other person who requests it.’’
must be submitted according to the 122.132(e)(13) requires that applications TCEQ regulations previously had no
schedule specified in 40 CFR 64.5. for all initial permit issuances, State regulation directly corresponding
TCEQ amended 30 TAC 122.142(h) to renewals, reopenings, and significant to 40 CFR 70.7(a)(5), and no other State
require that permits contain CAM in and minor permit revisions include regulations were identified that
accordance with the schedule in 40 CFR periodic monitoring requirements. otherwise gave effect to this
64.5. TCEQ adopted new 30 TAC TCEQ amended 30 TAC 122.142(c), requirement. To address the NOD,
122.221(b)(4) to specify that the which previously specified that periodic TCEQ adopted new 30 TAC
Executive Director may issue a monitoring is only included as required 122.201(a)(4), which requires that all
significant permit revision if CAM is by the Executive Director, and 30 TAC permits issued by the Executive Director
included for large pollutant-specific 122.142(h), which previously specified must include a statement that sets forth
emission units, consistent with 40 CFR that permits include CAM as specified the legal and factual basis for the
64.5(a)(2). TCEQ also adopted 30 TAC in Subchapter H. The amendments state conditions of the permit, including
122.147, which specifies the terms and that permits must contain periodic references to the applicable statutory or
conditions that apply to units subject to monitoring and CAM in accordance regulatory provisions. The Executive
CAM requirements, and 30 TAC 122.604 with the schedule in 40 CFR 64.5. These Director will send this statement to EPA
which address CAM applicability. amendments will require permits to and any person who requests it. The
These new and revised rules require contain all requirements specified in 40 statement of basis is required for all
that all permits issued after the effective CFR 70.6. TCEQ eliminated the initial issuances, revisions, renewals
date of the rule include CAM according monitoring GOP process by adopting the and reopenings of permits. We are today
to the schedule in 40 CFR part 64. We repeal of all sections from Subchapters approving the new rule as a revision to
are today approving the revised, G and H that implemented monitoring Texas’ Title V program and find that the
amended, and new rules as a revision to through the GOP process. In addition to revisions satisfy Texas’ requirement to
Texas’ Title V program and find that the the previously mentioned periodic correct the program deficiency
revisions satisfy Texas’ requirement to monitoring sections that were repealed, identified in the January 7, 2002, NOD.

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E. Definition of Applicable Requirement local air pollution control agency.2 A. Credible Evidence
Those permit conditions, if violated, are TCEQ has revised its definition of
Texas’ definition of ‘‘applicable subject to enforcement by EPA, the State
requirement’’ in 30 TAC 122.10(2) ‘‘deviation’’ at 30 TAC 122.10(5) and
or local agency, or by citizens. 122.132(e)(4)(B) to require sources to
previously did not include all the
applicable provisions of its SIP that Texas’ Title V regulations previously consider ‘‘any credible evidence or
implemented relevant requirements of allowed a facility to keep all information’’ to certify compliance. We
the Act as required by 40 CFR 70.2. To documentation of its PTE limitation are today approving this revision as
address the NOD, TCEQ has amended registrations on site without providing consistent with part 70 and EPA’s
those documents to the State or to EPA; credible evidence rule, 62 FR 8314
its definition of ‘‘applicable
therefore, the PTE limitations were not (February 24, 1997).
requirement’’ in 30 TAC 122.10(2) to
include citations to the relevant practically enforceable. Also, the B. Concurrent Review
requirements of the Act which were limitations were not federally
enforceable because the Texas TCEQ has revised its regulations
identified in the NOD and others concerning EPA review of Title V
identified after issuance of that notice. regulations at issue were not part of the
Texas SIP. TCEQ has revised 30 TAC permits at 30 TAC 122.350(B)(1) to
The applicable requirement definition provide that EPA’s review period may
now includes 30 TAC 101.1, which 122.122, and, though not required by
not run concurrently with the State
relates to definitions; 30 TAC 101.3, the NOD, also revised similar PTE
public review period if any comments
which relates to circumvention; 30 TAC registration rules in its preconstruction
are submitted or if a public hearing is
101.201, 101.211, 101.221, 101.222, and review program (30 TAC 106.6, 116.115,
requested. We are today approving this
101.223, which relate to emissions 116.611). These changes require revision as consistent with section
events and maintenance, startup, and registrations to be submitted to the 505(b) of the Act and 40 CFR 70.8.
shutdown (‘‘MSS’’) reporting Executive Director, to the appropriate
requirements; 30 TAC 101.8 and 101.9, Commission regional office, and all IV. What Is Our Response to Comments
which relate to sampling and sampling local air pollution control agencies, and Received in Response to Our Proposed
ports, and 30 TAC 101.10, which relates a copy shall be maintained on-site of the Rulemaking?
to emissions inventory requirements.1 facility. TCEQ is also required to make On July 9, 2003 (68 FR 40871), we
We are today approving the revised rule the records available to the public upon proposed to approve the revisions
as a revision to Texas’ Title V program request. Thus, these changes cure the submitted December 9, 2002, as
and find that, together with the final SIP previous deficiency regarding revisions to Texas Title V operating
approval published elsewhere in this practicable enforceability caused by the permits program. In the proposal, we
Federal Register, the revisions satisfy lack of notice to the State. TCEQ also requested that the public submit
Texas’ requirement to correct the submitted these changes for approval as comments no later than August 8, 2003.
program deficiency identified in the a SIP revision. We approved the We received one comment letter
January 7, 2002, NOD. amended 30 TAC 106.6, 116.115, submitted jointly by Public Citizen, Inc.,
116.611, and 122.122 as revisions to the SEED Coalition, Galveston-Houston
F. Potential To Emit Registration Association for Smog Prevention, Sierra
Texas SIP on November 14, 2003 (68 FR
Requirements Club and Hilton Kelley with four
64543). Our final SIP approval of these
Major sources subject to the changes made the PTE limits in the comments. Our response to those
requirement to obtain a Title V permit certified registrations legally enforceable comments follows:
are those sources whose potential to by EPA. We are also today approving Comment 1. Lack of Monitoring in
emit certain air pollutants exceed the revised rules in 30 TAC 122 as a General Operating Permits (GOPs). The
threshold emissions levels specified in revision to Texas’ Title V program and commenters provided the following
the Act. A source may legally avoid the find that, together with the final SIP comments relating to lack of monitoring
requirement to obtain a Title V permit approval which was published in GOPs that are applicable to certain
by limiting its potential to emit to levels November 14, 2003, the revisions satisfy categories of sources.
below the applicable major source Texas’ requirement to correct the Comment 1A. Commenters stated that
threshold. This can be done by taking a program deficiency identified in the Texas has not acted to revise its existing
federally enforceable limit on the PTE, January 7, 2002, NOD. GOPs which fail to include applicable
requirements and fail to include
which ensures that the conditions
III. What Other Program Changes Are required monitoring for those
placed on the emissions to limit a
We Approving? requirements. Commenters also note
source’s PTE are enforceable as both a
that Texas issues GOPs to facilities that
legal and practical matter, or through TCEQ also included in the December have site-specific requirements that are
PTE limits that are legally and 9, 2002, submittal other regulatory not included in the GOP, such as minor
practically enforceable by a State or revisions that strengthen Texas’ or major new source review (NSR) or
program. Today’s action also approves prevention of significant deterioration
1 The NOD identified the emissions event and
these revisions to the Texas Title V (PSD) permit terms. Therefore, those
MSS reporting requirements at 30 TAC 101.6, 101.7,
and 101.11 as SIP provisions that must be included
Operating Permit Program submitted on applicable requirements cannot be
in the definition of ‘‘applicable requirement.’’ TCEQ December 9, 2002, which relate to reviewed by EPA or the public to ensure
has revised those rules and recodified them at 30 credible evidence and concurrent that monitoring sufficient to assure
TAC 101.201, 101.211, 101.221, 101.222, and review.
101.223 and submitted the rules to EPA for
compliance with those permit terms is
approval as a SIP revision. Our limited approval of included in the Title V operating
these rules is published elsewhere in today’s 2 Seitz and Van Heuvelen, Release of Interim permit.
Federal Register. By incorporating the current SIP- Policy on Federal Enforceability of Limitations on Response 1A. This comment raises an
approved emissions event and MSS reporting rules Potential to Emit (January 22, 1996); Stein,
into the definition of ‘‘applicable requirement,’’ Guidance on Enforceability Requirements for
issue beyond the scope of the deficiency
Texas has corrected the program deficiency Limiting Potential to Emit through SIP and section identified in the NOD. EPA identified
identified in the January 7, 2002, NOD. 112 Rules and General Permits (January 25, 1995). the deficiency regarding periodic

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monitoring and compliance assurance generally have site-specific applicable Comment 3. PTE Limits in
monitoring as a deficiency in the requirements. Once all SOPs are issued, Registrations. Commenters submitted
regulations. EPA stated: ‘‘Texas’s the GOPs No. 515 and 516 will be the following comments related to PTE
periodic monitoring regulations do not rescinded. The Oil and Gas GOPs 511– registrations:
meet the requirements of part 70 and 514 and Municipal Solid Waste Landfill Comment 3A. The commenters
must be revised,’’ citing problems with GOP 517 will also be revised in 2005 to believe that the rules should require that
the approach of implementing the include the specific permits by rule and registrations used to limit PTE below
requirement through a monitoring GOP standard permits that apply to those any federal limit, including
and use of a phased approach which facilities and to exclude sources with nonattainment NSR and PSD, be
could delay implementation of periodic site-specific requirements from the submitted to the agency. As EPA noted
monitoring after issuance of a Title V applicability criteria for those GOPs. in the NOD, if PTE limits are merely
permit. 67 FR at 733. We then Comment 1B. Commenters also kept on site, they are not practically
concluded that the State ‘‘must revise its requested that their comments and enforceable. Because NSR and PSD are
regulations to ensure that all Title V attachments be treated as a Petition to applicable requirements under Title V,
permits, including all GOPs, when Reopen all existing GOPs pursuant to 40 Title V must assure compliance with
issued, contain periodic monitoring that CFR 70.7(g) to clarify that no source these requirements.
meets the requirements of with case or permit-specific applicable Response to Comment 3A. Although
70.6(a)(3)(i)(B).’’ Id. (emphasis added). requirements may be covered by a GOP the NOD cited only the deficiency in the
EPA made parallel findings for the if EPA failed to resolve this issue during PTE registration requirements in
State’s CAM regulations. 67 FR at 734 our review of changes to the Texas Chapter 122, the State made conforming
(‘‘The TNRCC 3 regulations do operating permits program in response changes in its preconstruction review
not meet the requirements of the Act to the NOD. provisions which address the
and part 70, and TNRCC must revise its Response 1B. In light of the State’s commenter’s concerns. The regulations
regulations to ensure that all Title V commitment to make the required require such PTE registrations to be
permits, including all GOPs, will have changes to its GOPs and the State’s incorporated into the Title V permit as
the CAM required by [40] CFR actions to initiate those changes, EPA applicable requirements. The PTE
70.6(a)(3)(i)(A), according to the believes there is no need to reopen the registrations under 30 TAC 106.6 and
schedule in 40 CFR 64.5’’). EPA also existing GOPs as commenter requests. 116.611 are approved as part of the SIP
provided instructions to the State on EPA has reviewed and provided and are applicable requirements under
proper implementation of the periodic comments on the first revision to the the part 70 5. As applicable
monitoring and CAM requirements in Bulk Fuel Terminal and Site-Wide requirements, these PTE registrations
individual Title V permits.4 However, GOPs. Also, commenters have the must be submitted to the reviewing
these instructions did not render the opportunity to review and comment on agency (the TCEQ) for incorporation
monitoring provisions of all Title V the draft GOP permits under 40 CFR into the source’s Title V operating
permits in the State subject to the NOD. 70.7(h), and if necessary, petition EPA permit. In order to be incorporated into
The NOD is clear on its face that only to object to a proposed permit under 40 the Title V permit, the owner or
the monitoring regulations were the CFR 70.8(a) and (c). operator must provide the relevant
subject of the NOD and thus were Comment 2. Statement of Basis. information concerning the registration
required to be revised. Commenters state that the current to the permitting authority for
Nonetheless, EPA notes that it is statements of basis being drafted by incorporation into the Title V permit.
exercising its oversight authority to TCEQ do not provide the public with an Such information must be subject to
ensure that the existing GOPs are understanding of the decision-making public participation and review by EPA
corrected. Thus, EPA obtained a that went into development of the Title under 40 CFR 70.7(h) and 70.8.
commitment and time line from the V permit. Because Texas is still not For permits by rule, relevant
TCEQ Executive Director in December implementing the statement of basis information that must be incorporated
2003 to revise all existing GOPs to requirement as specified in EPA’s rules includes all representations with regard
include periodic monitoring and and guidance, this deficiency has not to construction plans, operating
compliance assurance monitoring. been corrected. procedures, and maximum emission
Under this commitment and time line, Response 2. By adopting regulatory rates, which become conditions upon
TCEQ will revise all existing GOPs to language which tracks the requirement which the facility permitted by rule
ensure the applicability requirements in 40 CFR 70.7(a)(5), Texas has satisfied shall be constructed and operated. See
for existing GOPs exclude sources with the requirement to revise its regulations 30 TAC 106.6(b). This includes
site-specific requirements. On February consistent with 70.7(a)(5). Whether any certification of maximum emission rates
27, 2004 Texas revised the Bulk Fuel individual Title V permit contains an which establish federally enforceable
Terminal GOP 515 and the Site-Wide inadequate statement of basis is beyond allowable emission rates which are
GOP 516 to require all affected sources the scope of the deficiency identified in below the emission limitations in 30
to submit an application for a site the NOD. EPA intends to address TAC 106.4.
operating permit (‘‘SOP’’) by September concerns about the adequacy of For standard permits, relevant
1, 2004. Facilities subject to these GOPs individual statements of basis through information that must be incorporated
the permit review process. This process include the basis of emission rates,
3 On September 1, 2002, the Texas Natural
includes opportunity for the public to
Resource Commission (TNRCC) changed its name to 5 30 TAC 106.6 and 116.611 were approved as
the Texas Commission on Environmental Quality. review and comment on the draft permit revisions to the SIP on November 14, 2003 (68 FR
4 To the extent that this portion of the NOD under 40 CFR 70.7(h), EPA’s review, 64543). SIP provisions are applicable requirements
suggested the implementation of enhanced and, if necessary, EPA objection to a under Title V under 40 CFR 70.2 (paragraph (1)
monitoring beyond that required by 70.6(a)(3)(i)(B) proposed permit under 40 CFR 70.8(a) under definition of ‘‘applicable requirement’’) and
or beyond monitoring required by ‘‘applicable under 30 TAC 122.10(2)(F), which include the
requirements’’ under the Act (as described in 69 FR
and (c), affected state review under 40 requirements of Chapter 106—Permits by Rule and
3202 (January 22, 2004)), this part of the NOD has CFR 70.7(b), and the public petition Chapter 116—Control of Air Pollution by Permits
been superceded by the January 22, 2004, action. process under 40 CFR 70.8(d). for New Construction or Modification.

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quantification of all emission increases demonstrate compliance with a provisions. Thus, some SIP provisions
and decreases associated with the certification in a manner that is that implement the CAA requirements
project being registered, sufficient practically enforceable. This includes are excluded from the Texas definition
information as may be necessary to information that enables the of ‘‘applicable requirement.’’
demonstrate that the project will enforcement authority to verify at any Commenters cite as an example the
comply with 30 TAC 116.610(b) 6, time that the source is in compliance State’s newly adopted regulation for the
information that describes efforts being with the terms of its registration. TCEQ definition of reportable quantities at 30
taken to minimize any collateral rules require registrations to ‘‘include TAC 101.1(84)(p) and (q) rather than the
emissions increases that will result from documentation of basis of emission SIP-approved rule. Texas submitted its
the project, a description of the project rates.’’ See 30 TAC 122.122(c). Such new definition of reportable quantities
and related process, and a description of documentation may include appropriate to EPA for approval as a SIP revision on
any equipment being installed. See 30 restrictions on operation and/or September 12, 2002.
TAC 116.611(a). production which the source relies
Thus, the registrations which limit a Commenters also disagree with EPA’s
upon to limit its PTE below major
source’s PTE to below a threshold source threshold. Similar requirements decision in the NOD to confine
which triggers applicability of PSD or are also in 30 TAC 106.6(d) (for permits applicable requirements to those
NSR under 30 TAC 106.6 and 116.611 by rule) and 30 TAC 116.611(a)(1)–(6) requirements that implement the
are applicable requirements under Title (for standard permits).The monitoring relevant requirements of the Act, on the
V and must be documented in each Title and reporting are generally required in ground that it is at odds with Title V,
V permit as described above. 30 TAC 106.8 (for permits by rule), 30 citing 42 U.S.C. 7661a(b)(5)(C). They
Comment 3B. The rules should TAC 116.115(8) (for standard permits), state that SIPs may include emission
include a short-term limit on emissions and 30 TAC 122.122(f) (for Title V PTE limits that transcend the requirements
so that compliance can be determined in registrations). Furthermore, a specific of the Act.
a timely manner (not a tons per year permit by rule, standard permit, or Response 4. EPA disagrees with the
limit). The rules should include registration will also contain additional commenter. As a threshold matter, EPA
production or operational limits (not requirements for monitoring and reasonably determined in the NOD that
just emission limits) and specific recordkeeping which the source is ‘‘there is no requirement that the State
monitoring and reporting to required to maintain and which is adopt a definition to generally state that
demonstrate compliance with the limit. sufficient to limit the source’s PTE.
The general requirement to keep records any current provision of the SIP is an
In summary, the regulations which applicable requirement. A State may
necessary to demonstrate compliance is pertain to the registration of emissions
not practically enforceable because it is cite to specific provisions of its
in 30 TAC 106.6, 116.115, 116.611, and administrative code. * * *’’ We
too vague. 122.122 were approved on November
Response to Comment 3B. This described the SIP provisions that must
14, 2003 (68 FR 64543).7 The be included in the definition of
comment raises issues beyond the scope
regulations allow a source limit its PTE ‘‘applicable requirement’’ as those that
of the deficiency identified in the NOD.
of a pollutant below the level of a major ‘‘implement the relevant requirements
The NOD identified the lack of
source defined in the Act. This includes of the Act,’’ the standard set forth in 40
practicably enforceable PTE limits as
regulations which Texas revised to CFR 70.2. It is inappropriate to revisit
being caused by the lack of notice of
allow an owner or operator of a source those determinations here, as the time
PTE registrations to the State. We stated:
to register and certify restrictions and for a challenge to 30 TAC 70.2 or the
‘‘One of the requirements for practicable
limitations that the owner or operator
enforceability is notice to the State. NOD has expired [and the State has
will meet to maintain its PTE below the
Under 30 TAC 122.122, there is no reasonably relied on the standards set
requirement that the State be notified major source threshold. The changes
forth in 30 TAC 70.2 and the NOD in
and the registrations are kept on site. require the owner or operator to submit
undertaking its corrective action].
Therefore, neither the public, TNRCC, the certified registrations to the
Executive Director of TCEQ, the Furthermore, EPA has reviewed the
or EPA know what the PTE limit is rule cited by commenters (30 TAC
without going to the site. A facility appropriate TCEQ regional office, and
all local air pollution control agencies 101.1(84)(p) and (q)) and found it to be
could change its PTE limit several times
having jurisdiction over the site. The approvable. The proposed approval was
without the public or TNRCC knowing
changes to 30 TAC 122.122 satisfactorily published in the Federal Register on
about the change. Therefore, these
limitations are not practically address the NOD by requiring that PTE March 2, 2004 (41 FR 9776). We are
enforceable, and TNRCC must revise registrations are submitted to the State. today granting limited approval of the
this regulation to make the regulation Comment 4. ‘‘Applicable SIP revision elsewhere in this Federal
practically enforceable.’’ Thus, the State requirement’’ Definition. Commenters Register which ensures that Texas’
has cured the deficiency by providing believe that Texas’ applicable definition of ‘‘applicable requirement’’
that PTE registrations must be submitted requirement definition at 30 TAC is complete with respect to the SIP-
to the State. Nevertheless, EPA notes 122.10(2) does not incorporate all of the approved emissions event and MSS
that the rules under these citations relevant provisions of the Texas SIP reporting rules. Because Texas has
require that a source be able to because it defines the term by reference chosen to adopt a definition of
to specific State regulations, instead of applicable requirement that lists SIP
6 30 TAC 116.610(b) provides that ‘‘[a]ny project a general reference to the ‘‘relevant citations rather than the general
* * * which constitutes a new major source, or requirements of the SIP.’’ There is not definition as set forth in 40 CFR 70.2,
major modification under the new source review a one-to-one correlation between the
requirements of the FCAA, Part C (Prevention of
the State will be required to revise its
Significant Deterioration Review) or Part D
State’s regulation and the SIP Title V program in the future as it
(Nonattainment Review) and regulations adopts an applicable requirement
promulgated thereunder is subject to the 7 We note that we proposed approval of the PTE

registration requirements as SIP revisions, and

elsewhere in the SIP that is not listed in
requirements of 30 TAC 116.110 of this title
(relating to Applicability) rather than this received no comments. See 68 FR 40865 (July 9, the definition of applicable requirement
subchapter.’’ 2003); 68 FR 64543 (November 14, 2003). in its Title V regulations.

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16140 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations

What Is Our Final Action? This rule does not contain any or adopted by voluntary consensus to
We are approving revisions to Texas’ unfunded mandates and does not carry out policy objectives, so long as
regulations for periodic monitoring significantly or uniquely affect small such standards are not inconsistent with
regulations, CAM regulations, periodic governments, as described in the applicable law or otherwise
monitoring and CAM GOPs, statement Unfunded Mandates Reform Act of 1995 impracticable. In reviewing State
of basis requirement, applicable (Pub. L. 104–4) because it approves pre- Operating Permit Programs submitted
requirement definition, and PTE existing requirements under State law pursuant to Title V of the Clean Air Act,
registration regulations as revisions to and does not impose any additional EPA will approve such regulations
Texas’ Title V air operating permits enforceable duties beyond that required provided that they meet the
program. We are also approving by State law. This rule also does not requirements of the Clean Air Act and
revisions to the Texas Title V operating have tribal implications because it will EPA’s regulations codified at 40 CFR
permits program submitted on not have a substantial direct effect on part 70. In this context, in the absence
December 9, 2002, which relate to one or more Indian tribes, on the of a prior existing requirement for the
credible evidence and concurrent relationship between the Federal State to use voluntary consensus
review. The rule revisions submitted by Government and Indian tribes, or on the standards (VCS), EPA has no authority
Texas, as stated above, are in response distribution of power and to disapprove such regulations for
to the NOD. Based upon our limited responsibilities between the Federal failure to use VCS. It would, thus, be
approval of the revisions to Chapter 101 Government and Indian tribes, as inconsistent with applicable law for
elsewhere in today’s Federal Register, specified by Executive Order 13175, EPA, when it reviews such regulations,
our approval today of the December 9, ‘‘Consultation and Coordination with to use VCS in place of a State regulation
2002 revisions to the Texas operating Indian Tribal Governments’’ (65 FR that otherwise satisfies the provisions of
permits program, and our November 14, 67249, November 9, 2000). This rule the Clean Air Act. Thus, the
2003, final SIP approval of potential to also does not have Federalism requirements of section 12(d) of the
emit requirements, Texas has implications because it will not have NTTAA do not apply.
satisfactorily addressed the deficiencies substantial direct effects on the States, The Congressional Review Act, 5
identified by EPA in the January 7, 2002 on the relationship between the national U.S.C. 801 et seq., as added by the Small
NOD. This final action also removes any government and the States, or on the Business Regulatory Enforcement
resulting consequences under the Act, distribution of power and Fairness Act of 1996, generally provides
including sanctions, with respect to the responsibilities among the various that before a rule may take effect, the
January 7, 2002 NOD. levels of government, as specified in agency promulgating the rule must
This approval does not extend to Executive Order 13132, ‘‘Federalism’’ submit a rule report, which includes a
‘‘Indian Country’’, as defined in 18 (64 FR 43255, August 10, 1999). The copy of the rule, to each House of the
U.S.C. 1151. In its operating permits action merely approves existing Congress and to the Comptroller General
program submittal, Texas does not requirements under State law, and does of the United States. EPA will submit a
assert jurisdiction over Indian lands or not alter the relationship or the report containing this rule and other
reservations. To date, no tribal distribution of power and required information to the U.S. Senate,
government in Texas has authority to responsibilities between the State and the U.S. House of Representatives, and
administer an independent Title V the Federal government established in the Comptroller General of the United
program in the State. On February 12, the Clean Air Act. This rule also is not States prior to publication of the rule in
1998, EPA promulgated regulations subject to Executive Order 13045, the Federal Register. A major rule
under which Indian tribes could apply ‘‘Protection of Children from cannot take effect until 60 days after it
and be approved by EPA to implement Environmental Health Risks and Safety is published in the Federal Register.
a Title V operating permit program (40 Risks’’ (62 FR 19885, April 23, 1997) or This action is not a ‘‘major rule’’ as
CFR part 49). For those Indian tribes Executive Order 13211, ‘‘Actions defined by 5 U.S.C. 804(2).
that do not seek to conduct a Title V Concerning Regulations That Under section 307(b)(1) of the Clean
operating permit program, EPA has Significantly Affect Energy Supply, Air Act, petitions for judicial review of
promulgated regulations (40 CFR part Distribution, or Use’’ (66 FR 28355) this action must be filed in the United
71) governing the issuance of Federal (May 22, 2001), because it is not a States Court of Appeals for the
operating permits in Indian country. 64 significant regulatory action under appropriate circuit by May 31, 2005.
FR 8247, February 19, 1999. Executive Order 12866. This action will Filing a petition for reconsideration by
not impose any collection of the Administrator of this final rule does
V. Statutory and Executive Order information subject to the provisions of not affect the finality of this rule for the
Reviews the Paperwork Reduction Act, 44 U.S.C. purposes of judicial review nor does it
Under Executive Order 12866, 3501 et seq., other than those previously extend the time within which a petition
‘‘Regulatory Planning and Review’’ (58 approved and assigned OMB control for judicial review may be filed, and
FR 51735, October 4, 1993), this action number 2060–0243. For additional shall not postpone the effectiveness of
is not a ‘‘significant regulatory action’’ information concerning these such rule or action. This action may not
and therefore is not subject to review by requirements, see 40 CFR part 70. An be challenged later in proceedings to
the Office of Management and Budget agency may not conduct or sponsor, and enforce its requirements. (See section
(OMB). Under the Regulatory Flexibility a person is not required to respond to, 307(b)(2).)
Act (5 U.S.C. 601 et seq.), the a collection of information unless it
List of Subjects in 40 CFR Part 70
Administrator certifies that this rule displays a currently valid OMB control
will not have a significant economic number. Environmental protection,
impact on a substantial number of small Section 12(d) of the National Administrative practice and procedure,
entities because it merely approves State Technology Transfer and Advancement Air pollution control, Intergovernmental
law as meeting Federal requirements Act of 1995 (NTTAA), 15 U.S.C. 272 relations, Operating permits, Reporting
and imposes no additional requirements note, requires Federal agencies to use and recordkeeping requirements.
beyond those imposed by State law. technical standards that are developed Authority: 42 U.S.C. 7401–7671q.

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Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations 16141

Dated: March 18, 2005. Mobile Radio Service (CMRS) traffic. Intercarrier Compensation Regime. In
Richard E. Greene, Additionally, to ensure that incumbent this proceeding, the Commission had
Regional Administrator, Region 6. local exchange carriers (LECs) are able released a Notice of Proposed
■ For the reasons set out in the preamble, to obtain a negotiated agreement, the Rulemaking (Intercarrier Compensation
appendix A of part 70 of Title 40 of the Commission adds new rules to clarify NPRM), 66 FR 28410, May 23, 2001,
Code of Federal Regulations is amended that an incumbent local exchange which initiated a comprehensive review
as follows: carrier (LEC) may request of interconnection compensation issues
interconnection from a CMRS provider and raised questions concerning, among
PART 70—[AMENDED] and invoke the negotiation and other things, the appropriate regulatory
arbitration procedures set forth in framework to govern interconnection,
■ 1. The authority citation for part 70 section 252 of the Communications Act including compensation arrangements,
continues to read as follows: and that during the period of between LECs and CMRS providers. The
Authority: 42 U.S.C. 7401 et seq. negotiation and arbitration, the parties Commission therefore incorporated the
will be entitled to compensation in T-Mobile Petition and responsive
■ 2. Appendix A to part 70 is amended comments into the rulemaking record.
accordance with the interim rate
under the entry for Texas by adding Discussion: Because the Act and the
provisions set forth in § 51.715 of the
paragraph (c) to read as follows: existing rules do not preclude tariffed
Commission’s rules, 47 CFR 51.715.
Appendix A to Part 70—Approval These rules will ensure that both compensation arrangements, and
Status of State and Local Operating incumbent and competitive carriers can because wireless termination tariffs that
Permits Programs obtain compensation terms consistent apply only in the absence of an
with the Act’s standards through interconnection agreement are not
* * * * * inconsistent with the compensation
negotiated or arbitrated agreements.
Texas DATES: Effective April 29, 2005.
standards of sections 251 and 252 of the
(c) The Texas Commission on Act or of § 20.11 of the Commission’s
Environmental Quality: program revisions rules, and because the tariffs do not
Victoria Goldberg, Pricing Policy prevent a competitive carrier from
submitted on December 9, 2002, and
Division, Wireline Competition Bureau, obtaining a compensation agreement
supplementary information submitted on
December 10, 2003, effective on April 29, 202–418–7353, or Peter Trachtenberg, through the negotiation and arbitration
2005. The rule amendments contained in the Spectrum and Competition Policy procedures of section 252, we find that
submissions adequately addressed the Division, Wireless Telecommunications incumbent LECs were not prohibited
deficiencies identified in the notice of Bureau, 202–418–7369. under federal law from filing such
deficiency published on January 7, 2002. SUPPLEMENTARY INFORMATION: This is a tariffs. Going forward, however, we
[FR Doc. 05–6314 Filed 3–29–05; 8:45 am] summary of the Commission’s amend our rules to make clear our
Declaratory Ruling and Report and preference for contractual arrangements
Order in CC Docket 01–92, adopted by prohibiting LECs from imposing
February 17, 2005, and released compensation obligations for non-access
FEDERAL COMMUNICATIONS February 24, 2005. The full text of this CMRS traffic pursuant to tariff. In
COMMISSION document may be purchased from the addition, we amend our rules to clarify
Commission’s duplicating contractor, that an incumbent LEC may request
47 CFR Part 20 Best Copy and Printing, Inc., Portals II, interconnection from a CMRS provider
445 12th Street, SW., Room CY–B402, and invoke the negotiation and
[CC Docket No. 01–92; FCC 05–42] Washington, DC 20554, telephone 1– arbitration procedures set forth in
800–378–3160. It is also available on the section 252 of the Act.
Intercarrier Compensation
Commission’s Web site at http:// We find that negotiated agreements
AGENCY: Federal Communications www.fcc.gov. between carriers are more consistent
Commission. with the pro-competitive process and
Synopsis of the Declaratory Ruling and
ACTION: Final rule. policies reflected in the 1996 Act.
Report and Order
Accordingly, we amend § 20.11 of the
SUMMARY: In this document, the Federal Background: On September 6, 2002, Commission’s rules to prohibit LECs
Communication Commission T-Mobile USA, Inc., Western Wireless from imposing compensation
(Commission) denies a petition for Corporation, Nextel Communications obligations for non-access traffic
declaratory ruling filed by T-Mobile and Nextel Partners jointly filed a pursuant to tariff. Therefore, any
USA, Inc., Western Wireless petition for declaratory ruling asking the existing wireless termination tariffs
Corporation, Nextel Communications Commission to affirm that wireless shall no longer apply upon the effective
and Nextel Partners, which asked the termination tariffs are inconsistent with date of these amendments to our rules.
Commission to find that wireless federal law governing reciprocal After that date, in the absence of a
termination tariffs are not a proper compensation arrangements for the request for an interconnection
mechanism for establishing reciprocal transport and termination of traffic and, agreement, no compensation will be
compensation arrangements for the therefore, not a proper mechanism for owed for termination of non-access
transport and termination of traffic. establishing such arrangements. In a traffic. We take this action pursuant to
Because negotiated agreements between public notice published in the Federal our plenary authority under sections
carriers are more consistent with the Register, 67 FR 64120–01, October 17, 201 and 332 of the Act.
pro-competitive process and policies 2002, the Commission sought comment In light of our decision to prohibit the
reflected in the 1996 Act than on the issues raised in the T-Mobile use of tariffs to impose termination
unilaterally imposed tariffs, however, Petition. Further, the Commission charges on non-access traffic, we find it
the Commission also amends its rules to determined that the T-Mobile Petition necessary to ensure that LECs have the
prohibit the use of tariffs in the future raised issues under consideration in an ability to compel negotiations and
to impose compensation obligations ongoing rulemaking proceeding, CC arbitrations, as CMRS providers may do
with respect to non-access Commercial Docket 01–92, Developing a Unified today. Accordingly, we amend § 20.11

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