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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R06-OAR-2010-0510; FRL - _______] 

Audit Program for Texas Flexible Permit Holders

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Notice of Clean Air Act (CAA) voluntary audit compliance program for 

flexible permit holders in the State of Texas (hereinafter “Audit Program”); response to public 

comments.

SUMMARY: EPA is offering holders of Texas flexible air permits an opportunity to participate 

in a voluntary Audit Program that is intended to expeditiously identify the federally-enforceable

CAA unit specific emission limitations, operating parameter requirements, and monitoring, 

reporting, and recordkeeping (MRR) requirements for determining compliance for all units 

covered by a facility’s flexible permit. EPA believes that the program will generate 

environmental benefits for the public in Texas as well as a measure of regulatory stability for 

holders of Texas flexible permits. This Final Notice makes modifications to the Audit Program 

based on comments received during the public comment period. A separate document contains 

the Agency’s Response to Comments (RTC).

DATES: Executed Audit Agreements may be submitted no later than [Insert date 90 days 

from date of publication in the Federal Register]. Participants who execute an Audit 

Agreement by [insert date 45 days from date of publication in the Federal Register] will 
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receive a waiver of the gravity component of any penalties resulting from noncompliance 

uncovered by the Audit. 

DOCKET: EPA has established a docket for this action under Docket Identification No. EPAR06-OAR-2010-0510. All documents in the docket are listed in the www.regulations.gov index.

Although listed in the index, some information is not publicly available, e.g., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 

material, will be publicly available only in hard copy. Publicly available docket materials are 

available either electronically at www.regulations.gov or in hard copy at the Air Enforcement 

Section (6EN-AA), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection 

in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 

except for legal holidays. Contact the person listed in the paragraph below to make an 

appointment. If possible, please make the appointment at least two working days in advance of 

your visit. There will be a 15 cent per page fee for making photocopies of documents. On the 

day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite

700, Dallas, Texas, 75202–2733.

FOR FURTHER INFORMATION CONTACT: To submit executed Audit Agreements or 

for more information on the Audit Program for Texas flexible permit holders, please contact 

Mr. John Jones, Air Enforcement Section (6EN-AA), Environmental Protection Agency, Region 

6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202–2733, telephone (214) 665–7233; fax 

number (214) 665–3177; e-mail address, jones.john-l@epa.gov.
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SUPPLEMENTARY INFORMATION:

I. Audit Program for Texas Flexible Permit Holders

Audit Program Overview

Texas flexible permits are not part of the federally - approved State Implementation Plan 

("SIP"), and thus, only contain applicable state permit requirements. Flexible permits are not the 

appropriate mechanisms for embodying federal requirements, and are not independently 

federally-enforceable. On September 25, 2007, EPA sent notice letters to all facilities that were 

issued a flexible permit informing them that flexible permits were pertinent only to Texas State 

air permit requirements and that facilities were "obligated to comply with the federal 

requirements applicable to (their) plant, in addition to any particular requirements of (their) 

flexible permit." Moreover, on September 23, 2009, EPA proposed the disapproval of the Texas 

flexible permit program as an amendment to the Texas SIP because it does not meet federal 

Nonattainment New Source Review or Prevention of Significant Deterioration (hereafter 

collectively referred to as “NSR”) requirements (74 FR 48480). EPA followed that proposal 

with several objections to Title V permits that relied on flexible permits to encompass federal 

NSR requirements because the terms of the Texas flexible permit are not incorporated into the 

federally - approved Texas SIP. EPA finalized disapproval of the Texas flexible permit program 

on July 15, 2010 (75 FR 41312).

EPA is proposing the Audit Program as a mechanism for Texas Flexible Permit holders 

to transition these permits into SIP approved NSR permits. Under the Audit Program, 

participants would need to commission a comprehensive third-party Audit to determine all 

federally-applicable unit-specific limitations and requirements and to evaluate the federal CAA
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compliance status of emission units covered under the facility’s Texas flexible permit. The 

terms and process of the Audit would be set forth in an agreement executed by EPA and 

participants. 

Under the agreement, the third-party auditor would identify for each emission unit 

regulated under the source’s flexible permit, all current federally - applicable CAA requirements, 

including: 1) emission limitations/standards; 2) operational limitations/special conditions; 

3) monitoring, recordkeeping, and reporting (MRR) requirements; and 4) specific references for 

all federal requirements identified (e.g., permit number, specific Maximum Achievable Control 

Technology, State Implementation Plan citation). The auditor will also need to review and 

assess the adequacy of the MRR requirements in current permits to evaluate whether MRR is 

sufficient to demonstrate compliance with all federally applicable emissions limitations and 

federal standards. Where deficiencies exist, the auditor will provide recommendations for more 

effective or supplemental MRR requirements.

To the extent that it is determined that a source is not in compliance with NSR

requirements with respect to a particular emission unit, the agreement provides that the auditor 

will include an evaluation of the current (2010) Lowest Achievable Emissions Rate or Best 

Available Control Technology (hereinafter collectively referred to as “LAER/BACT”) for that 

emissions unit and will recommend an applicable LAER/BACT limit for that emissions unit. 

Identification of non-compliance with NSR requirements through the Audit Program may require 

further discussion with EPA regarding a path forward for bringing that emission unit into 

permanent, consistent compliance with the CAA. 
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As set forth in the agreement, the third party auditor will perform a year-by-year 

examination of operational and permitting history of those emission units under the flexible 

permit. The primary deliverable from the third-party Audit will be a detailed Audit Report that 

describes the audit process and its conclusions, including clearly organized summary tables of all 

applicable CAA requirements for each emissions unit that will provide the basis for necessary

permitting revisions by the Texas Commission on Environmental Quality (TCEQ). In addition 

to identifying all applicable unit specific emission limitations, special conditions, operating 

parameters, and MRR requirements, the auditor will also evaluate the CAA compliance status of 

the emissions units included under the Texas flexible permit. 

The agreement provides that the Audit Participant will then have an opportunity to 

comment on the results of the third-party Audit, and to propose to EPA alternative emission unit 

requirements. The parties may elect to negotiate emission unit requirements in the post-audit 

period. 

Finally, under the agreement, any emission unit requirements agreed upon during the 

post-audit negotiation with EPA, would be memorialized in a Consent Agreement and Final 

Order (“CAFO”) with EPA. The CAFO would set forth the agreed upon emission unit 

requirements and would require their inclusion in an amended Title V permit and appropriate 

federally-enforceable permits (e.g., NSR, Texas SIP permits). 

As part of this voluntary program, the Audit Participant will also agree to work with its 
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surrounding community to develop Community Project(s) focused on improving, protecting, 

mitigating, and/or reducing community risks to public health or the environment. The nature and 

valuation of Community Projects will be based upon the outcome of the Audit and will be 

finalized during post-audit negotiations with EPA. The details of the Community Projects will 

be fully described in the CAFO memorializing the results of the Audit.

EPA is offering this program under its discretionary CAA enforcement authority and 

participation in the Audit Program is purely voluntary. However, interested parties are required 

to submit an executed Audit Agreement to apply for this program. Participants choosing to 

enroll in the Audit Program will be required to meet the specific requirements of the third-party 

Audit set forth in this Notice and memorialized in an Audit Agreement signed by the Audit 

Participant and EPA. It is important to emphasize that although participation in this Audit 

Program is voluntary, participants who successfully complete the program and successfully

resolve any non-compliance of specific alleged violations will receive appropriate covenants and 

releases as part of that non-compliance resolution. Merely conducting an Audit does not release 

a participant from potential liability. 

EPA’s Audit Policy, "Incentives for Self Policing: Discovery, Disclosure, Correction and 

Prevention of Violations," 65 Fed. Reg. 19,618 (April 11, 2000) recognizes the critical role of 

environmental auditing in protecting human health and the environment by identifying, 

correcting, and ultimately preventing violations of environmental laws, particularly by

responsible corporate citizens. This Audit Program reflects the purpose and incentives of EPA's 

Audit Policy, and participants who execute an Audit Agreement by [insert date 45 days from 

date of publication in the Federal Register] will receive a waiver of the gravity component of 
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any penalties resulting from noncompliance uncovered by the Audit; provided such 

noncompliance is successfully resolved through a Consent Agreement and Final Order (CAFO) 

under this audit process. EPA reserves the right to collect any economic benefit that may have 

been realized as a result of noncompliance.

Persons who have not secured independently federally-enforceable construction and/or 

operating permits for all CAA applicable requirements, through participation in this program or 

through other appropriate mechanisms, may be the subject of federal enforcement action. 

Nothing in this notice should be read to preclude EPA from taking enforcement action where it 

determines such action is appropriate to address non-compliance. 

Texas Flexible Permit Program History

In the period from 1996 through 2002, the State of Texas proposed a series of 

modifications to its Federal CAA SIP intended to make its flexible permit program part of the 

SIP. The flexible permit program, currently codified at 30 TAC 116.710, allows groups of 

emission sources to be clustered together and issued permit limitations as if they were a single 

emission source. 

EPA has never approved the Texas flexible permit program for inclusion in the SIP. 

On September 25, 2007, EPA issued a letter to all flexible permit holders making the following 

points:

 Permits issued under the Texas flexible permit rules reflect Texas state 

requirements and not necessarily the federally-applicable requirements.
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 Texas flexible permit holders are obligated to comply with the applicable 

federal requirements (e.g., New Source Performance Standards (NSPS), 

National Emission Standards for Hazardous Air Pollutants (NESHAP), 

Prevention of Significant Deterioration (PSD), and Non-attainment New 

Source Review (NNSR), terms and conditions of permits approved under 

the federally-approved Texas SIP).

 EPA would consider enforcement against sources for failure to comply 

with applicable federal requirements on a case-by-case basis, including 

against emission sources that were modified or constructed without the 

issuance of a federally-enforceable permit.

EPA could initiate enforcement proceedings against these sources on a case-by case basis, 

However, such an enforcement undertaking on a case-by case basis is not an efficient approach 

to improving air quality and achieving compliance with the CAA. Therefore, EPA is exercising 

its discretion to allow holders of flexible permits to participate in this voluntary Audit Program 

as a mechanism to proactively address the status of emission units operating under the Texas 

flexible permit program. 

Audit Program Implementation 

Any facility that chooses to participate in the voluntary Audit Program will conduct an 

independent third-party audit of all emission units covered by the source’s Texas flexible permit 

to identify/reinstate all of an emission unit’s federally-applicable requirements, and to identify
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each emission unit’s CAA compliance status as discussed under the Audit Program Overview. A

final CAFO will require that the facility submit applications for Title V and appropriate 

federally-enforceable permits to the State of Texas in order to memorialize the requirements

identified by the audit process for each emission unit.

The Audit Program shall be implemented in the following steps:

1. Submittal of an executed Audit Agreement by the Audit Participant. This agreement 

will memorialize the specific requirements of the independent third-party audit, as well as 

the company’s commitment to work with its community to develop a Community

Project(s). EPA will have 15 days to object to the third-party auditor selected by an 

Audit Participant. Any EPA objections shall be based on concerns regarding the 

independence of the auditor. Executed Audit Agreements under the Audit Program must 

be postmarked no later than 90 days after the date of publication in the Federal Register. 

2. Completion of Audit Report. No later than 160 days, or a timeframe agreed upon by

EPA, after the date that the Director of the Compliance Assurance and Enforcement 

Division of EPA Region 6 signs the Audit Agreement, the independent Third-Party

Auditor shall submit an Audit Report to the Audit Participant and EPA. This report will 

include a table containing all of the applicable emission unit requirements for each unit 

covered by the Audit Participant’s Texas flexible permit as well as an analysis of the 

CAA compliance status for each emissions unit. The Audit Report will include an 

examination of the operational and permitting history of process units covered by the 

flexible permit, and those affected by the flexible permit (i.e., in netting calculations). 

For the purpose of providing transparency to the community on the audit process, the 
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Auditor will work with the Audit Participant to prepare a version of the Audit Report 

with any confidential business information removed. The non-confidential business 

information versions of the Audit Report will be made available to the public by EPA. 

3. Audit Participant’s comments regarding the Audit Report. No later than 90 days 

from the completion of the Audit Report, the Audit Participant shall submit its comments, 

if any, regarding the Audit Report to EPA. The Audit Participant may specifically

address its concerns regarding the CAA compliance determinations and the emission unit 

requirements identified in the Audit Report. For purposes of providing transparency to 

the community on the audit process, the Audit Participant will also prepare a version of 

the comments on the Audit Report with any CBI removed. The Audit Participant’s 

comments regarding the Audit Report will be made available to the public by EPA. 

4. Audit Participant and community development of significant Community Project(s). 

After the completion of the Audit, the Audit Participant shall work with the community

surrounding the facility to develop community projects(s). Within 90 days after 

completion of the Audit Report, the Audit Participant will submit to EPA a final

Community Project proposal for approval. The Community Project proposal shall 

include a detailed description of the project(s) and a schedule for project(s)

implementation (projects must be completed within one year of the CAFO date), a clear 

discussion of air nexus, and a discussion of the community involvement and outreach 

conducted as the project was developed. The Audit Participant’s Community Project 

proposal will be made available to the public for review. 

5. Resolution of NSR non-compliance. One of the major objectives of the third-party 

auditor will be the evaluation of the permitting history and operational changes and 
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modifications made during the period of the Texas flexible permit for compliance with 

applicable Federal NSR requirements. Identification of non-compliance with the NSR 

program may require the installation of LAER/BACT and will require further discussion 

with EPA regarding a path forward for bringing non-compliant emission units into 

permanent, consistent compliance. As previously discussed, EPA has elected to waive 

the gravity portion of any penalties resulting from noncompliance identified through the 

Audit for those Audit Participants that proactively initiate an Audit Agreement within 45 

days of Final Audit FRN publication. In addition, any final CAFO will provide a release 

and covenant not to sue for the violations alleged.

6. Filing of a Consent Agreement and Final Order (CAFO) with the Region 6 Judicial 

Officer. The CAFO would set forth the Audit Participant’s obligation to comply with the 

requirements of the attached CAFO Compliance Plan and Schedule and commitment to 

seek the inclusion of agreed upon emission unit requirements in its Title V permit and 

appropriate federally-enforceable permits. No later than 30-days after the effective date 

of the CAFO, the Audit Participant will apply to the appropriate permitting authority for 

a modification of its existing Title V permit to include emission unit requirements (as 

defined in the model below), a compliance plan, and, if warranted, a compliance schedule 

as outlined in 30 TAC 122 §132(e)(4) and 40 CFR 70.5(c)(8). In addition, the Audit 

Participant shall apply for modifications or for new permits memorializing the emission 

unit requirements set forth in the CAFO. The CAFO must address all emission units 

under the flexible permit. EPA will not negotiate settlements where certain emission 

units are excluded from the settlement discussions. A source will receive a covenantnot-to-sue and release regarding civil liability for possible past violations of the CAA
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addressed in this CAFO provided that CAA compliant emission unit specific 

requirements are incorporated into a federally-enforceable permit. 

The proposed CAFO shall be made available for public comment for a period of 

30 days. EPA will consider any public comments, and as appropriate, seek to work with 

the Audit Participant to revise the CAFO based on such public comments. After the 

endof the CAFO public comment period and after any revisions are made, EPA will seek 

finalization of the CAFO by the Region 6 Judicial Officer. The Agency reserves its right 

to modify the CAFO. The offering of the CAFO for public comment does not explicitly

create an obligation for EPA response or inclusion of such comments in the final CAFO 

or elsewhere, nor does this create any rights for public objection to the final CAFO.

The text of the Audit Agreement is available for download in either a Word version file 

or as a portable document format (pdf) file at www.regulations.gov. Unless explicitly indicated, 

the text of the Audit Agreement is not subject to negotiation. Entities wishing to participate shall 

submit: an executed copy of the Audit Agreement with specific site details filled into the 

provided blanks; a list of emission units covered under its Texas flexible permit; a copy of its 

current Texas flexible permit, and all permits or other authorizations that applied to the facility

prior to the issuance of the Texas flexible permit.

Conclusion: The above represents a short summary of the Audit Program. The Texas Flexible 

Permit Audit Agreement is available in the public docket for this notice at www.regulations.gov, 
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and represents the full requirements of the program. In addition, EPA has provided a Model 

CAFO for Audit Participants in the docket at www.regulations.gov.

EPA is proposing the Audit Program to ensure that Texas flexible permit holders have a 

path forward to secure compliance with the requirements of the CAA. As EPA has stated that 

Texas flexible permits are not independently federally-enforceable permits, industry

representatives have expressed concern regarding the legal ramifications of operating facilities 

and making changes at facilities that do not have independently federally-enforceable permits. 

Representatives of citizens living in areas near facilities regulated under flexible permits are 

concerned that in some instances flexible permits allow facilities to emit more harmful pollution 

than would be allowed under federal law. We believe the Audit Program has the potential to 

result in beneficial reductions in the levels of air pollutants being emitted by flexible permit 

holders as well as providing industry a legal framework for continuing operations until 

independently federally-enforceable permitting authorizations can be obtained. 

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

On June 17, 2010, EPA solicited comments on an audit program for Texas flexible permit 

holders (75 FR 34445). The following are EPA’s responses to comments received during the 

comment period on EPA’s Audit Program for Flexible Permit Holders. EPA thanks those 

individuals for their comments and as indicated below, the Agency made several modifications 

to the Audit Program based upon these comments. As indicated in the Federal Register Notice, 

EPA has chosen to generally respond to comments received.
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A. Community Projects

I. Community Projects as a condition of the Audit 

We received numerous comments regarding the requirement to conduct a Community

Project as part of the Audit Agreement Commenters stated that by requiring a Community

Project as a prerequisite to participation in the Audit Program, EPA was presuming 

noncompliance. 

In response to these comments, EPA clarified in the Audit Agreement that the condition 

regarding Community Project(s) would address the SIP and Title V violations identified in the 

attached model CAFO inherent to all flexible permit holders in addition to any other 

noncompliance issues identified by the audit. As a result, the agency believes that a commitment 

from the Audit Participants to conduct a Community Project is a critical element in addressing 

noncompliance in addition to proactively addressing community concerns regarding potential 

impacts from noncompliance. 

II. Community Project Upfront Valuation

Several Commenters indicated that the Community Project valuation should not occur 

until after the Audit is completed. Additional comments received indicated that the large upfront 

expenditure for the Community Projects would have a “chilling effect” on voluntary

participation in the Audit Program. 

EPA has addressed the concerns regarding the significant upfront costs regarding these 

projects by removing the upfront Community Project valuation and the Tiering table. EPA has 
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elected to link the valuation of the Community Projects to the findings of the third-party Audit. 

Noncompliance identified by the Audit will result in Community Projects, injunctive relief and 

potentially civil penalties. As referenced in the Audit FRN, this Audit Program reflects the 

purpose and incentives of EPA's Audit Policy, and participants who execute an Audit Agreement 

within 45 days of the Final Audit publication will receive a waiver of the gravity component of 

any penalties resulting from noncompliance uncovered by the Audit. 

III. Community Involvement

A Commenter requested that the outreach regarding the Community Projects extend 

beyond the currently established groups and involve the impacted communities. The Commenter 

further requested that EPA take further steps to encourage meaningful participation from the 

community by providing notification to the community or establishing a website to identify those 

participating in the Audit Program.

In response to these comments, EPA included language in the Audit Agreement 

specifying that outreach to the community to obtain input on Community Projects should extend 

beyond any pre-established community advisory panels. 

EPA has also added language to the Audit Agreement committing the Agency to 

establish a website of all executed Audit Agreements. The Agreements will identify the points 

of contact for the company, and EPA encourages individuals with ideas specific to the 

Community Projects to submit them to the company representative for consideration. 
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B. Tiering of Facilities

I. Additional Clarification on Tiering Process

EPA received numerous comments regarding the tiering process including numerous 

requests for clarification on how the facility tiers were established.

As indicated above, EPA has elected to remove the Tiering table and upfront valuation 

for Community Projects and link the valuation of the Community Projects to the findings of the 

third-party Audit including the initial violations identified in the model CAFO. 

C. Third-Party Auditor

I. Auditor Qualifications

Several Commenters provided comments and recommendations regarding the 

qualifications and certifications of the third-party Auditor. 

In response to these comments, we made numerous changes to the Auditor qualifications 

to include flexibility with regard to the Auditor’s familiarity with the concepts of independence 

and professional care while conducting the Audit. Specifically, we added an additional 

certification option by the Board of Environmental Health & Safety Auditor Certifications 

(BEAC) , along with the current ISO 19011 requirement. 

We also modified the certification condition that the Third-Party Audit results be certified 

by a professional engineer in the State of Texas. We modified the Audit Agreement to allow for 
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additional flexibility by removing the condition that the professional engineer be certified in 

Texas and, in addition, we are allowing for a certification by a certified auditor.

II Auditor Guidance

One Commenter requested that EPA provide specific direction to the Third-Party Auditor 

regarding EPA’s policies and guidance related to RMRR - Routine Maintenance Documentation 

in Audit Report from EDF

In response to this comment, EPA added additional language to the Audit Agreement 

specifying that in addition to applying the version of NSR regulations in the approved Texas SIP, 

the Third-Party Auditor shall also perform their NSR analysis consistent with Agency principles 

formally identified in EPA NSR Guidance Documents.

D. Audit Program 

I. Procedural Concerns 

A Commenter expressed procedural concerns with EPA’s process for taking comments 

on this voluntary approach as well as procedural concerns with the Audit Program.

With this notice, EPA has proposed a voluntary path forward under its enforcement discretion 

that the agency would find acceptable toward settlement of violations associated with Texas 

Flexible Permits. This is a voluntary process, and does not replace or change any existing rules,

regulations, or policies. Given the universe of permittees, EPA is attempting to provide upfront 

clarity on an acceptable enforcement path where the Agency would resolve existing or potential 
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liability associated with flexible permits. EPA provided additional process by taking comments 

on the approach. All other options remain. This approach does not take the place of appropriate 

and required permitting. Obtaining an appropriate valid federal permit is a condition of such a 

settlement. While the auditor will make recommendations and control levels will be agreed to 

for a settlement, the Audit and CAFO are clear that these are minimum levels of control for 

settlement and do not prejudge what Lowest Achievable Emission Rate/Best Available Control 

Technology (LAER/BACT) determinations are made by the permitting authority. All permitting 

requirements and procedures must be met at that time.

II. Audit Timeline

One Commenter expressed concern that 160 days was not adequate time to conduct a 

detailed permitting and compliance audit of a complex facility. 

In response to this comment, EPA added language to allow for additional time for audit 

completion if agreed upon by EPA. EPA recognizes the importance of having adequate time to 

conduct the comprehensive audit and does not want a hard timeframe to limit participation or 

encourage a cursory review. 

III. CBI

A Commenter requested that EPA establish an expedited CBI challenge process so that 

the community can have meaningful participation in the Audit process.
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EPA understands the Commenter’s concerns and is in agreement that the Audit process 

should be as transparent as possible. However, EPA is required to follow 40 C.F.R. Part 2, 

Subpart B, which specifies the extent to which information subject to a business confidentiality

claim is available to the public and the challenge and determination process the Agency must 

follow. 

E. CAFO 

I Releases Given to Audit Participants 

A Commenter expressed concern that the scope of EPA’s proposed release and covenant 

not to sue could be interpreted over broadly. 

The Commenter was correct that EPA’s intent is to release only those CAA violations 

expressly alleged and addressed in the CAFO. EPA will tailor each CAFO beyond the limited 

example provided to include case specific facts and clarify the scope of the release and covenant 

not to sue.

The Commenter made a related comment concerning detail that should be required in the 

Audit Report regarding what emission requirements and changes in operational measures or 

control technologies must be implemented to ensure that disclosed non-NSR violations are 

eliminated by complying with the CAFO.

EPA recognizes more detail will be required if the Audit identifies noncompliance or 

concerns broader than NSR and would expect such additional information to be provided in the 
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audit. If insufficient information is provided to make a decision on appropriate measures to 

address a violation, it would not be alleged or resolved in the audit CAFO but more appropriately

handled separately.

II Stipulated Penalties 

A Commenter urged EPA to incorporate stipulated penalties into the CAFO to sanction 

failing to fully and timely comply with all the substantive requirements of the CAFO.

While we understand the comment, the agency’s interest is in compliant permits and this 

is why we made any release and covenant conditional on full compliance with the CAFO and 

obtaining the necessary permit(s). Many of the milestones of the audit will be prior to the CAFO 

and the emission limits of the CAFO will be enforceable until the emission limits are 

incorporated into valid federal permits.

Dated: September 20, 2010.

Al Armendariz, 

Regional Administrator, Region 6.