UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202·2733
I" Mark R. Vickery, P.G. Executive Director Texas Commission on Environmental Quality (TCEQ) P.O. Box 13087 Austin, Texas 78711-3087 Re: Texas Senate Bill 12 (2007) and Texas Title VProgram DearMr. Vickery: 

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As you know, the Texas Legislature amended the Texas Water Code in 2007 by passing Senate Bill 12. 1 S,B. 12 provides thatthe initiation offormal enforcement actions should be restricted for certainviolations where such violations are based on information the TCEQ receives from regulated entities as required by Title V ofthe Clean Air Act (e.g., Title V deviation reports). The TCEQ subsequently implemented S.B. 12 by revising its Enforcement Initiation Criteria (EIC)2 to reflect the language ofS.B. 12, Acomparison ofS.B. 12 (along with TCEQ's EIC) with Texas' authorized Title Vprogram indicates apossible program discrepancy. 

### In particular, ourconcern relates to 40 C.F.R. 

### §70.II(a), which provides that any agency administering the Title V program must have the enforcementauthority to address violations of program requirements by part70 sources, including the authority to seekinjunctive reliefand to assess civil and criminal penalties associated with the violations. We are also concerned with adherence to 40 C.F.R. § 70.11 (a)(3)(i), which provides that civil penalties shall be recoverable for the violation ofany applicable requirement; any permitcondition; any fee orfiling requirement; any duty to allow or carry out an inspection, entry or monitoring activities or, any regulations or orders issued by the permitting authority. 

### In accordance with 40 C.F.R. 

### §70.4(i)(3), wheneverEPA believes that circumstances have changed with respect to a state program, EPA may request and the state must provide a supplemental Attorney General's statement and such otherinformation as is determined necessary. Please provide a supporting Supplemental Attorney General's Statement along with the following information: 1. Ademonstration thatyou still have authority to assess acivil penalty for any violation ofan applicable requirement and thatyour program still complies with 40 C.F.R. § 70.11.3 2. An analysis ofwhetherapenalty can be collected without the initiation ofaformal enforcement action as that term is used in S.B. 12 and the EIC. Ifitis possible to collect acivil

1. Tex S.B. 12, 80'" Leg., R.S, (2007), codified at TEXAS WATER CODE § 7,00251 (Vernon 2007), 2, "TCEQ Enforcement Initiation Criteria," Revision No. 13 (effective Seplember, 2010). 3, EPA granted full approval ofTexas Title V program on November 30, 2001. 40 C.F,R. Part 70, Appendix A.IO. See 30 Tex, Admin. Code ch. 122,
Internet Address (URL) - http://www.epa.gov/earth1r6/ Recycled/Recyclable· Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)2 Re: Texas Senate Bill 12 and Texas Title VProgram penalty in an alternative manner, please provide the numberoftimes this alternative mannerhas been used and the amount ofany penalties assessed since the passage ofS.B. 12. 3. The numberand the nature ofthe violations thathave been subjectto S.B. 12 since the statute was passed in 2007 to the present. 4. An explanationofthe scopeofSB-12. What sources does it apply to? Is it limited in duration? Also, pleaseprovide any otherinformation orexplanationthatTCEQ feels may be helpful as EPA reviews this matter. Please provide the above requested Supplemental AG's Statement and information by July 1,2011. This information will help resolve issues surrounding S.B. 12 that have been raised to the Region's attention. Please do not hesitate to contact me (214) 665-2100 orhave your counsel contact Suzanne Murray at (214) 665-7386.

Lawrence E. d Deputy Regional Administrator

cc: Stephanie BergeronPerdue, TCEQ