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The U.S. Environmental Protection Agency (EPA) provided notice to the Texas Commission on Environmental Quality on September 8, 2009 that they plan to disapprove three Texas air permitting programs. EPA contends that these three programs fall short of meeting federal requirements of the Clean Air Act.

The three TCEQ air permitting programs in question are:

  • Flexible permits,
  • SB1126 (changes to qualified facilities), and
  • New Source Review (NSR) reform.

EPA identified several concerns related to the TCEQ Flexible Permit program (30 TAC Chapter 116, Subchapter G - Flexible Permits). A key EPA concern is that the Flexible Permit program does not contain the necessary provisions to make sure that major NSR review is not circumvented. Changes subject to major NSR would trigger more stringent permitting requirements. EPA also contends that the TCEQ Flexible Permits lack necessary provisions (e.g., monitoring, reporting, recordkeeping) to determine compliance and ensure protection of air quality standards. TCEQ has said that its permits comply with federal law and have been successful in reducing air emissions in Texas. Steve Hagle, TCEQ Air Permits Division Director, spoke at the North Texas Chapter of the Air & Waste Management Association on Wednesday, September 16, 2009. He noted that sites could apply for a Subchapter B permit if they did not want to wait until a final decision was made by the EPA and TCEQ regarding the Flexible Permit program. However, he indicated a site would need to go through the complete Subchapter B permit application process from beginning to end including Best Available Control Technology review, impacts analyses, and public notice. In addition, the site would be required to submit applicable Subchapter B permit application fees.

EPA’s major concern with the Texas Qualified Facilities State Program (SB 1126) is that the program is not clearly limited to minor NSR and, therefore, allows major modifications to occur without a major NSR permit and has no previsions prohibiting the use of SB1126 from circumventing major NSR permitting requirements. EPA also cited that SB1126 is lacking the requirement for an applicability test for major NSR. In addition, EPA feels certain definitions, including “modification” and “Best Available Control Technology” (BACT) do not meet the Clean Air Act and EPA’s NSR regulations.

EPA is proposing to disapprove six identified portions in the submittals from the TCEQ to revise the Texas major and minor NSR SIP. The six identified portions include:

  1. The submitted 1997 8-hour ozone NAAQS Major Nonattainment NSR (NNSR) SIP revision,
  2. The submitted 1-hour ozone NAAQS Major NNSR SIP revision,
  3. The submitted Major NSR reform SIP revision with Plant-wide Applicability Limit (PAL) provisions,
  4. The submitted Major NSR reform SIP revision with no PAL provisions,
  5. The submitted Major NSR PSD SIP revision, and
  6. The submitted Minor NSR Standard Permit for Pollution Control Project (PCP) SIP revision.

Links to the summary of the proposals and the Federal Register Notices are provided below:

The EPA proposal is open for public comment for 60 days. Afterwards, negotiations with TCEQ will likely begin on revising these air permitting programs. EPA has less than one year to issue its final decisions on the three proposals outlined above which would require EPA to finalize the Qualified Facilities revision, Flexible Permit revision, and New Source Review Reform revision no later than March 2010, June 2010, and August 2010, respectively.