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Frequently Asked Questions EPA’s Fair Notice Letter regarding TCEQ’s Flexible Permits

Purpose of Letter: What is the purpose of the letter?

Response: The purpose of the letter is to remind owners and operators of sources of their obligation to comply with all federal and state air permitting requirements. Both EPA and TCEQ expect sources to operate in compliance with all federal and state air permitting requirements. EPA may enforce the provisions of any permit issued to a source under a SIP-approved process, and it is not bound by changes made to those permits by non-SIP approved mechanisms, such as the current Texas flexible permit provisions. EPA also understands that some emission units covered by flexible permits may no longer be operating in the same manner as they had under previous SIP permits or that new emission units may be covered by a flexible permit that have not previously been permitted under any SIP-approved permitting program. Owners and operators must continue to meet their obligations under the federal Clean Air Act, including the requirement to comply with all federal programs such as the NSPS, NESHAP, PSD, non- attainment NSR, and SIP-approved permits. In particular, the letter reminds the recipient that EPA has not approved the Texas flexible permit rules and, consequently, Texas issued flexible permits are not federally-approved and are not federally-enforceable. More precisely, changes to SIP-approved permits may only be accomplished through SIP-approved procedures, and the flexible permit mechanism is not yet a SIP-approved process to effect changes to a SIP permit.

Timing of Letter - Why the Sudden Interest? I’ve had my flexible permit for over 10 years now, why is EPA suddenly concerned about my flexible permit?

Response: TCEQ and EPA both agree that it is now time to focus resources on ensuring that all major sources with the State of Texas have federally-enforceable, SIP-approved permits. The two agencies are working together to develop a flexible permit rule that can be approved as part of the Texas SIP. Both TCEQ and EPA have been aware of issues related to the flexible permit rule and have worked over the last several years to address various permitting issues as part of EPA program revisions, including permit streamlining within the context of Title V, the federal PAL program and NSR reform. Because TCEQ is committed to ensuring the continuing success of its efforts to maintain and improve the air quality of Texas, EPA is providing its assistance to ensure that sources are also meeting their federal obligations under the Clean Air Act. One way for EPA to assist Texas in its efforts is to ensure that there are no adverse air quality impacts associated with the implementation of the flexible permitting rules prior to EPA action on the program.

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