## TECHNICAL SUPPORT DOCUMENT July 24 , 2013

30 TAC Chapter 101

– General Air Quality Rules

Subchapter A : General Rules

§ 101.28

– Stringency Determination for Federal Operating

Permits

No material in this submittal package was designated as Confidential Business Information.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, United States Environmental Protection Agency Region 6, Air Permits Section (6PD

- R), 1445 Ross Avenue, Dallas, Texas,

75202

- 2733, (214) 665

- 21152 Subject: Review of Revisions to the State Implementation Plan

– Texas Administrative Code Title 30, Chapter 101: General Air Quality Rules , Subchapter A: General

Rules , Section 101.28

Contents:

I. Executive Summary

II. Technical Review

A. Part 51, Appendix V Completeness Checklists

B. Analysis of State Submittal

III. Conclusion3 I. Executive Summary

This technical support document (TSD) reviews a portion of one proposed revisions to the Texas State Implementation Plan (SIP) concerning stringency determinations for Federal Operating

Permits

. This review will determine if the program revision submitted on December 17, 1999, is consistent with the requiremen ts of the Clean Air Act and EPA’s policy and guidance and should be approved into the Texas SIP

.

December 17, 1999

In a letter dated December 17 1999 , Governor George W. Bush submitted revisions to the Texas SIP at Rule Log No. 99017

- 101

- AI that were adop ted by the Texas Natural Resources Conservation Commission (TNRCC) on December 1, 1999 , and became effective on December 23, 1999

. 1 This SIP submittal included revisions to the following parts of the Texas Air Code, Title 30, Chapter 101 : 1. Revisions to the General Air Quality Definitions at 30 TAC 101.1;

2. Revisions to Emissions Inventory Requirements at 30 TAC 101.10;

3. New provisions for Stringency Determinations for Federal Operating Permits at 30 TAC 101.28; and

4. Revisions to Conformity of General Federal and State Actions to State Implementation

Plans at 30 TAC 101.30.

The revisions to the General Air Quality Definitions at 30 TAC 101.1 were superceded by EPA’s November 14, 2001 approval of the Definitions adopted on September 26, 2001. See 66 FR

57252.

EPA approved the revisions to the Emissions Inventory Requirements at 30 TAC 101.10 and the revisions to Conformity of General Federal and State Actions to State Implementation Plans at 30 TAC 101.30 on July 23, 2010. See 75 FR 43062.

This review will be the first time EPA has evaluated the December 17, 1999, submittal of 30 TAC 101.28. TCEQ has made no revisions to 30 TAC 101.28 since the initial adoption and submittal of the regulatory language as a SIP revision.

1 Note that the Texas Natural Resource Conservation Commission (TNRCC) was a predecessor to the current Texas environmental agency, the Texas Commission on Environmental Quality. This analysis will identify the TNRCC when talking about a specific action tak en by the TNRCC such as rule adoption and SIP submittal, but will generally refer to the TCEQ when discussing current duties of the state environmental agency.4 II. Technical Review

II.A Evaluation of the December 17, 1999 SIP Submittal with respect to the Part 51, Appendix V Completeness Checklist Part 51, Appendix V Completeness Checklists

The criteria for completeness determination is Appendix V to Part 51

- Criteria for determining the completeness of plan submissions and is outlined below:

1.0 Purpose: This appendix V sets forth the minimum criteria for determining whether a State implementation plan submitted for consideration by EPA is an official submission for purposes of review under § 51.103.

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails to meet the criteria set forth in this appendix V, and request corrective action, identifyin g the component(s) absent or insufficient to perform a review of the submitted plan.

1.2 The EPA shall inform the submitting official whether or not a plan submission meets the requirements of this appendix V within 60 days of EPA's receipt of the submitt al, but no later than 6 months after the date which the State was required to submit the plan or

revision. If a completeness determination is not made by 6 months from receipt of a submittal, the submittal shall be deemed complete by operation of law on th e date 6 months from receipt. A determination of completeness under this paragraph means that the submission is an official submission for purposes of §51.103.

The attached checklist outlines the basic criteria included under 2.1 and 2.2 of Appendix V.

Section 2.3 of Appendix V describes the "parallel process procedure" which EPA had previously adopted to expedite the review of plans. This feature, however, is being deleted from the next revised CFR on completeness. Therefore, it is not included in the c hecklist.5 SIP Completeness Checklist

– December 17, 1999

Rule Log No: 99017

- 101

- AI

When preparing a SIP revision request, the SIP reviewer should go through this list to help identify that the package submitted to EPA is complete. States can use the ch eck list to assure SIP submittals meet Appendix V criteria.

Administrative Materials (2.1)

1. The package is sent with a formal submittal letter from the Governor or his or her designee requesting EPA's approval of the revision.

The SIP revision was submitted by a letter from Governor George Bush dated December
17, 1999

.

2. Evidence is included that the State has adopted the revision in the State code or body of regulations, or that the State has issued the permit, order, consent agreement (hereafter document) in final form. This evidence would include the date of adoption or final issuance and the effective date of revision, if different from adoption/issuance date.

The revisions were adopted by the Texas Natural Resource Conser vation Commission on December 1, 1999 , and became effective December 23, 1999

.

3. Evidence is included that the State has necessary legal authority under State law to adopt and implement the revision, e.g., a citation of the appropriate State authority.

The authority for promulgating changes to the Texas State Implementation Plan, Chapter

1 01 , Subchapter A

, Section 101.28 is found in Chapter 382 of the Texas Health and Safety Code.

4. A copy is included of the actual regulation or document submitted for approval and incorporation by reference into the SIP including an indication of the changes made to the existing approved plan where applicable. The submittal shall be a copy of the official State regulation document signed, stamped, and dated by the appro priate State official indicating that it is fully enforceable by the State. The effective date of the regulation document shall, whenever possible, be indicated in the document itself.

The December 17, 1999 , submittal included a copy of the official Sta te regulation document, signed, stamped, and dated by Robert J. Huston, Chairman of the Texas

Natural Resource Conservation Commission.

5. Evidence is included that the State followed all the procedural requirements of its laws

and/or its constitution in the conducting and completing the adoption/issuance of the plan.6 A certification signed by LaDonna Castanuela, Chief Clerk of the Texas Natural

Resource Conservation Commission was included that demonstrated the SIP submittal was developed pursuant to 40 CFR 51.104.

6. Evidence is included that public notice was given of the proposed changes consistent with the procedures approved by EPA, including the date of publication of such notice, (e.g., notarized or certified copies of any public notices publishe d in newspapers). (The notice should be at least 30 days prior to the public hearing(s).

Notices of public hearing were published on July 6, 1999 in the Houston Chronicle; July
7, 1999 in the Austin American

- Statesman; and July 9, 1999 in the Fort Worth S tar

Telegram

.

7. A certification is included indicating that public hearing(s) was/were held in accordance with the information provided in the public notice(s) and the State's laws and constitution, if applicable.

A certification signed by Robert J. Hus ton, Chairman of the Texas Natural Resource

Conservation Commission was included. This certification states that the public hearing was held pursuant to 40 CFR § 51.102(a) and that notice of the hearing was given which conformed to 40 CFR § 51.102(d).

8. A compilation of public comments and the State's response is included.

The SIP submittal package did include a compilation of public comments and the State’s

responses. The Texas Natural Resource Conservation Commission received comments from 9 organizati ons during the public comment period.

Technical Support (2.2)

The State should include the following technical information in its SIP revision request package.

1. Identification of all regulated pollutants affected by the revision is included.

This is not applicable to the SIP revision under review. New section 101.28 provides streamlining mechanisms for title V permits

– therefore the pollutants covered would be all regulated pollutants

.

2. Identification of the locations of affected sources including the EPA attainment/nonattainment designation of the locations and the status of the attainment plan for the affected area(s) is included.

This SIP revision applies to all sources with title V permits issued by the TCEQ on a statewide basis.7 3. Quantific ation of the changes in SIP allowable emissions from the affected sources is

included. (Examples include estimates of changes in current actual emissions from affected sources and/or, where appropriate, quantification of changes in actual emissions

from af fected sources through calculations of the differences between certain baseline levels and allowable emissions anticipated if the revisions were approved.)

Not applicable to this SIP revision. The Streamlining Provisions at 30 TAC 101.28 will

not result in changes in SIP allowable emissions.

4. Demonstration is included that the NAAQS/PSD increments/RFP demonstration and visibility as applicable would be protected if the revision were approved and implemented.

Not applicable to this SIP revision. Sectio n 101.28 does not establish new permit requirements

– rather it provides a mechanism to streamline existing requirements. Therefore there will be no impact to the NAAQS/PSD increments/RFP demonstration or visibility.

5. FOR REDESIGNATIONS:

a. Is there a fully approved maintenance plan for the primary ambient air quality standards for at least 10 years as required by §175A of the Clean Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

(A). Modeling information, if applicable, is required to support the propose revision.

Modeling information is not necessary to support the SIP revision.

7. Evidence is included where necessary, that emission limitations are based on continuous emission reduction technology (e.g., a dd

- on controls, industrial/process equipment designs, reformulated materials, etc.).

Evidence of emission limitations based on CEM technology is not applicable.

8. Evidence is included indicating that a SIP revision contains emission limitations, work

p ractice standards, and recordkeeping/reporting requirements to ensure stated emission

levels.8 Enforceability is determined on case

- by

- case basis in each individual permit.

9. Compliance/enforcement strategies including how compliance will be determined in practice (including at what frequency).

Determination of compliance is specified on case

- by

- case basis in each individual permit.

10. As appropriate, special economic and technological justifications are included per applicable EPA policies or an exp lanation why such justifications are not necessary

should be included. For example, requests for alternative RACT may require such justification.

These justifications are not necessary for this SIP revision.

The SIP submittal of Rule Log No.: 99017

- 10 1

- AI meets the completeness criteria.9 II.B Analysis State Submittal

30 TAC Section 101.28 provides a mechanism for a permit holder of a federal operating permit (Title V permit issued under 30 TAC 122) to streamline multiple applicable requirements into a more stringent or equivalent requirement. The TCEQ adopted these str eamlining provisions as a result of the guidance EPA provided in our March 5, 1996 “White Paper Number 2 for Improved Implementation of The Part 70 Operating Permits Program” (WP2). In WP2, EPA explains that EPA and the state permitting authorities have de veloped different and often overlapping applicable requirements for stationary source control. This results in some emissions units at stationary sources being subjected to multiple requirements

– some of which may be duplicative or contradictory. To reduc e the permit burden on the sources, the state permitting authorities, and the EPA Regional Offices, EPA provided guidance in WP2 on how best to streamline these multiple requirements into one requirement that is at least as stringent as the most stringent limit. Generally, the streamlined monitoring, recordkeeping, and reporting requirements would generally be those associated with the most stringent emission limit, providing that the streamlined requirements would assure compliance to the same extent as th e subsumed requirements.

The following table provides an analysis of each provision of 30 TAC 101.28 to ensure the new provisions are consistent with the requirements of the CAA and EPA’s policy and guidance.

30 TAC 101.28

– Stringency

Determination for Federal Operating

Permits. Adopted: December 1, 1999 Effective: December 23, 1999 Submitted as a SIP Revision: December 17,

1999 EPA’s Analysis of the Submitted SIP

Revision

a) Instead of the requirements imposed by an applicable requirement or a state only requirement as defined in § 122.10 of this title (relating to General Definitions), a permit holder of a federal operating permit may comply with more stringent or equivalent requirements, provided the requirements: Adopted provisions at 30 TAC 101.28(c)

a re consistent with the guidance provided

in Section II of WP2 See pages 6

– 12.

Specifically, EPA provides that a permit shield should be used to identify the otherwise applicable requirements that

have been subsumed into the streamlined requirement. Furt her, EPA finds that “a permit shield will result in an essential degree of certainty by providing that when the source complies with the streamlined requirement, the source will be considered to be in compliance with all of the applicable requirements subs umed under the streamlined requirement.” 1. are established by § 122.148(c)(l)(B) of this title (relating to Permit Shield) for streamlining multiple, duplicative, redundant, and/or contradicting applicable requirements or state only requirements; and

2. are adequate to assure compliance to the same extent as the applicable10 requirements or state

- only requirements being superseded by a more stringent or equivalent requirement. b) A determination under subsection (a) of this section may include a method change (i.e., either a change to a commission monitoring or testing procedure which was previously approved by EPA or an alternative to

an EPA

- approved monitoring or test method) if approved by EPA. Adopted provisions at 30 TAC 101.28(c) are consistent with the g uidance provided in Section II of WP2. See pages 6

– 12.

c) The more stringent, equivalent, or alternative requirement established by

the executive director under this section is approved for the emission unit by

EPA if: Adopted provisions at 30 TAC 101.28(c)

are consistent with the At tachment B of

WP2 . See Section II. Example Language

for Part 70 Sources to Establish Alternative SIP Requirements:

“For sources subject to an approved part 70 program, an alternative requirement is approved for the

sour ce by EPA if it is incorporated in an issued part 70 permit to which EPA has not objected.”

The provisions at 30 TAC 101.28(c) are approvable. 1. it is a term or condition of a federal operating permit; and

2. EPA has not objected to the permit as required by § 122.350 of this title (relating to EPA Review).

EPA submitted a comment letter on August 13, 1999, that identified no concerns with the adoption of 30 TAC 101.28.

The provisions adopted by the TCEQ at 30 TAC 101.28 and submitted as a revision to the Texas SIP on December 17, 1999, are approvable.

Does TCEQ have the necessary legal authorit y to implement the provisions of 30 TAC 101.28 as part of the SIP?

The application of penalties or obtaining corrective action, and citizen filing of lawsuits are not

addressed in Section 101.28 of the Texas SIP

. Texas enforcement provisions are not typically in individual rules but are separately codified. Texas Water Co de Chapter 7 contains the statutory provisions for enforcement of the Federal Operating Permits Program. In particular, TWC § 7.051 provides for the assessment of administrative penalties, and § 7.032 provides for injunctive

relief. The TCEQ enforcement ru le at 30 TAC § 70.5 incorporates remedies found in the state statutes (Texas Water Code and the Texas Health and Safety Code), and permits referrals to EPA for civil, judicial or administrative action. Once the rule is approved into the SIP, EPA will be

ab le to enforce it under section 113 of the Clean Air Act.11 The 40 CFR part 70, CAA Title V operating permits program has been reviewed and found to have sufficient enforcement provisions. The Office of the Attorney General of the State of Texas has provided a written opinion for this program . The opinion state s that TCEQ has the necessary legal authority to implement and enforce the Title V operating permits program . TCEQ has the authority to have reasonable requirements for measuring and monitoring air emis sions and to require owners and operators of sources to make and maintain records of the emissions. Therefore, TCEQ has the necessary legal authority to implement and enforce the minor permit revision procedures in accordance with the requirements of the C AA.

The Office of the Attorney General of the State of Texas cited State laws and regulations that regulate, at a minimum, the same sources as the Clean Air Act and do so with standards that are no less stringent than those specified by the CAA. The cit ed laws and regulations are: Texas Health and Safety Code Ann. sections 382.016 (Monitoring Requirements, Examination of Records), 382.021 (Sampling Methods and Procedures), 382.0514 (Sampling, Monitoring and Certification); 30 TAC sections 122.132 (Applic ation and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits), 122.134 (Complete Application), 122.136 (Application Deficiencies), 122.142 (Permit Content Requirements), 122.143 (General Terms and Conditions) , 122.144 (Recordkeeping Terms and Conditions), 122.145 (Reporting Terms and Conditions), 122.146 (Compliance Certification Terms and Conditions), 122.165 (Certification by Responsible Official; 30 TAC sections 101.8 (Sampling), 101.9 (Sampling Ports).

What is EPA’s analysis of the Stringency Determination for Federal Operating Permits at 30

TAC 101.28 with respect to section 110(l) of the Clean Air Act?

Section 110(l) of the Clean Air Act states:

Each revision to an implementa tion plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning att ainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.

Thus, under section 110(l), this SIP revision must not interfere with attainment or reasonable further progress or any other applicable requirement of the Act.

30 TAC 101.28 does not establish any new applicable requirements or emissions limitations on a permitted source. Rather, Section 101.28 provides a mechanism for a permit holder to streamline multiple, duplicative, redundant, and/or contradicting applicable requirements into a more stringent or equivalent method. The more stringent or equivalent me thod must be adequate to assure compliance to the same extent as the applicable requirements being subsumed. Therefore, because the applicable requirements being replaced were developed as part of either the Texas SIP approved preconstruction permitting pr ogram or the approved Texas Part 70 program for

Title V sources

– the more stringent or equivalent streamlined requirement will by nature be12 protective of the CAA and will not interfere with attainment, maintenance or any other applicable requirement of th e Act.

III. Conclusion

The technical analysis provided in the preceding sections has provided an adequate justification

for the inclusion in the Texas SIP of the provisions at 30 TAC 101.28 for the Stringency

Determination for Fede ral Operating Permits

. These provisions were adopted and submitted as revisions to the Texas SIP as a direct result of EPA’s White Paper 2 for the Improved Implementation of the Part 70 Operating Permits Program. Further, the streamlining provisions

will s erve to reduce the permitting burden on the TCEQ and provide for more effective implementation of the TCEQ permit program. Therefore, it is recommended that EPA propose full approval of the December 17, 1999 submittal of 30 TAC 101.28

.

It is recommended that a direct final approval of section 101.28 be published. Direct final approvals are appropriate for non

- controversial rulemakings. EPA feels that the SIP

- approval of

the December 17, 1999 SIP Submittals for the Stringency Determination for Federal Op erating

Permits i s non

- controversial because comparable provisions have already been approved into the Texas Part 70 program and have been in effect and operational since 1999 , without any negative impact to attainment or maintenance in Texas.

Note that the December 17, 1999, submittal of 30 TAC 101.28, and EPA’s subsequent inaction to evaluate and take a final action regarding SIP approvability is a specific line item in the January 25, 2013, Notice of Intent to File Citizen Suit submitted by the BCCA Ap peal Group. Upon final approval, 30 TAC 101.28 would no longer be subject to the NOI.