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 V Program

Dear Mr. Vickery:

20n.

As you know, the Texas Legislature amended the Texas Water Code in 2007 by passing

Senate Bill 12. 1 S,B. 12 provides that the initiation offormal enforcement actions should be

restricted for certain violations 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, A comparison ofS.B. 12 (along with

TCEQ's EIC) with Texas' authorized Title V program indicates a possible program discrepancy.

In particular, our concern relates to 40 C.F.R. § 70.II(a), which provides that any agency

administering the Title V program must have the enforcement authority to address violations of

program requirements by part 70 sources, including the authority to seek injunctive relief and 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 of any applicable requirement; any permit condition; any fee or filing

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), whenever EPA 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 other information as is determined

necessary. Please provide a supporting Supplemental Attorney General's Statement along with

the following information:

1. A demonstration that you still have authority to assess a civil penalty for any violation

of an applicable requirement and that your program still complies with 40 C.F.R. § 70.11.3

2. An analysis of whether a penalty can be collected without the initiation of a formal

enforcement action as that term is used in S.B. 12 and the EIC. Ifit is possible to collect a civil

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 of Texas 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/

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2

Re: Texas Senate Bill 12 and

Texas Title V Program

penalty in an alternative manner, please provide the number oftimes this alternative manner has

been used and the amount of any penalties assessed since the passage of S.B. 12.

3. The number and the nature ofthe violations that have been subject to S.B. 12 since the

statute was passed in 2007 to the present.

4. An explanation ofthe scope ofSB-12. What sources does it apply to? Is it limited in

duration? Also, please provide any other information or explanation that TCEQ 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 or have your

counsel contact Suzanne Murray at (214) 665-7386.

Lawrence E. d

Deputy Regional Administrator

cc: Stephanie Bergeron Perdue, TCEQ