                                  MEMORANDUM

Tetra Tech, Inc.
10306 Eaton Place, Suite 340
Fairfax, VA 22030
phone<PHONE_NUMBER>
fax<PHONE_NUMBER>

DATE: 		November 14, 2008

TO:			Paul Shriner, EPA

FROM:		Christine Wong and Kelly Meadows, Tetra Tech

SUBJECT:	Substratum intakes

Introduction

Tetra Tech conducted a limited search of Internet resources to identify size, cost, and impingement and entrainment (I&E) reduction performance data for facilities using substratum intake technologies (also known as filter beds).  The information recovered is intended to inform the development of performance standards and supporting background information for the revised rule.

Tetra Tech performed general Web searches using combinations of search terms such as  subfloor water intake structure system, subsurface, substratum, cooling water, desalination, seafloor, beach well, sea well, impingement, entrainment, and infiltration bed and basin.

Tetra Tech (Tt) also researched a proposed project at the Shoreham site in New York.

Preliminary Findings

In general, the search yielded a moderate number of resources with a limited amount of detailed information.  Desalination drinking water facilities appear to be the predominant industry utilizing substratum intakes in their operations.  While extant in the United States, operation of desalination facilities has so far been concentrated in Europe, North Africa, and the Middle East.  Some non-desalination drinking water facilities also use substratum water intakes.  At the present, the use of substratum intakes for cooling water intake structures (CWIS) is mostly in the design and pilot stage.  Tetra Tech identified one facility that is seriously considering using a substratum intake to supply its cooling water (see below).

Intake flow and intake structure type are the most readily available information; there is little information on cost and concerns regarding I&E of aquatic organisms.  Most large desalination facilities use surface water intakes; only a few of the world's larger desalination plants use substratum or subsurface water intakes.  In general, "subsurface intakes are considered to be cost-competitive for plants of capacity smaller than 1 million gallons per day (mgd)."  These facilities most commonly make use of vertical or horizontal beach wells, which are shallow shoreline intake wells that use the overlying rock or sand layers as a filter medium.  As of 2005, "there were only four worldwide operational seawater reverse osmosis desalination facilities with capacity larger than 5.3 mgd using beach well intakes."  For these intake structures, concerns regarding I&E of aquatic organisms are not typically addressed; where they are mentioned, I&E is assumed to be zero and is considered to be part of the desired baseline performance of the intake design.

There are studies and pilot projects being conducted to investigate the viability of subsurface or substratum CWIS.  Early investigations have yielded positive results, including 100% reduction of I&E of aquatic organisms.  Only a few vendors appear to be working on substratum intake technologies for CWISs.  At least one manufacturer is pursuing or has obtained patents for substratum technology intended for use as CWIS.  Product and company contact information is available for at least one English-language manufacturer in Canada.

Many desalination facilities using surface water intakes in the United States are sited, or planned to be sited, along existing power plants or other facilities with water intake operations, so the water withdrawals may be conducted through existing water intake structures.  Poseidon Resources, a company that develops, invests in and manages water infrastructure projects throughout North America, is connected to many of the recent and ongoing desalination facility projects (using both surface and subsurface intakes) in the United States.

The attached chart details the main facilities, studies, and manufacturers identified in this search.

Shoreham

Tt contacted the New York Department of Environmental Conservation (NYDEC), who would regulate the proposed intake.  Kevin Kispert at NYDEC acknowledged that NYDEC had received an application for a substratum intake (including conducting a pilot study) but directed Tt to contact Energy & Environment Analysts (EEA) who is the primary consultant for the project.

On January 2, 2008, Tt spoke with Roy Stoecker and Jim McAleer from EEA regarding the proposal to install a substratum intake at the Shoreham Site which has appropriate and typical geological conditions.  EEA has been working with Keyspan Energy (a National Grid Company) for several years and initially conducted a feasibility study using existing technical, geological, and hydrological data.  In order to operate a 400MW power plant, it was assumed that a withdrawal rate of approximately 170,000 gallons per minute (gpm) would be required.  The study concluded that the aquifer could support such withdrawals, given a sufficiently large intake field.

The next step is to conduct a pilot study.  EEA developed a proposal and, through a funding program from a combination of KeySpan, LIPA and NYSERDA, the pilot study is scheduled to be conducted in the spring of 2008.  Currently, EEA, KeySpan and LIPA are awaiting approval of several permits to begin the testing.

EEA's staff generally assumes that the substratum intake will eliminate impingement and entrainment, as well as offer other benefits: reduced operations and maintenance costs, minimal downtime required at installation, and expected fuel savings in the summer.

As of November 14, 2008, EEA's website (via its sister company SIS Water Systems, http://www.siswatersystems.com/) indicates that the pilot project will begin construction in the fall of 2008.  Other projects are also under development.

                                Facility/Study/
                                 Manufacturer
                                   Location
                                     Size
                                    (flow)
                                     Cost
                     I&E reduction strategy/technology
                         I&E reduction performance
Long Island Sound Substratum CWIS Feasibility Study
Long Island, NY
Intake -700,000 gpm
Significant cost reduction of typical CWIS costs
Substratum Intake Structure to draw water from underneath the Long Island Sound
100% reduction
Initial Evaluation of the SWISS vs. Conventional Multimedia Pretreatment Techniques
USA

Estimated ~ 20-32% reduction of typical SWRO facility total costs
Subfloor Water Intake Structure System (SWISS); no I&E technology mentioned
100% reduction
Long Beach Desalination Prototype
Facility
Long Beach, CA
300,000 gpd

Design and construction phase of Under Ocean Floor Seawater Intake and Discharge Demonstration System
100% reduction planned
Elmosa Marine Works
Ontario, Canada
Max capacity - 60,000 gpm; intake flow - ~ 0.3 fps
"fractional cost" of other intake systems
Offshore and onshore infiltration intake systems
100% reduction
New Infiltration Intake System for Zebra Mussel Control and Larval Exclusion

Maximum intake - 3 m[3]/s
30% or less of conventional intake systems
Filtration bed intake system
100% reduction
Marine Coast Water District Seawater Desalination Facility
Monterey, CA
Intake - 450,000 gpd; Produces -300,000 gpd

Beach wells; no I&E technology mentioned

Cirkewwa Reverse Osmosis Desalination Plant
Malta
Intake - 4.9 mgd; Produces - 2 mdg

Beach wells; no I&E technology mentioned

Pembroke Reverse Osmosis Desalination Plant
Malta
Intake - 14.3 mgd; Produces - 6.4 mdg

Beach wells; no I&E technology mentioned

Ghar Lapsi  - Reverse Osmosis Desalination Plant
Malta
Intake - 6.3 mgd; Produces - 2 mgd

Beach wells; no I&E technology mentioned

Kalaeloa Desalination Plant
Honolulu, HI
Planned intake - 11 mgd; planned production - 5 mgd
Estimated at $45 million
Deep basal wells; no I&E technology mentioned

Bay of Palma Desalination Plant
Mallorca, Spain
Intake - 11 mgd

16 vertical beach wells; no I&E technology mentioned

Pemex Salina Cruz Refinery
Mexico
Intake - 3.8 mgd

Beach wells; no I&E technology mentioned

Tampa Bay Seawater Desalination Plant
Hillsborough County, FL
Intake- 44 mgd; Produces - 25 mgd
$75.5 million
Co-location with existing plant utilizing fine mesh screens
No additional I&E opportunity created


AUDIT AGREEMENT

FOR TEXAS FLEXIBLE PERMIT HOLDERS

between the

Environmental Protection Agency

and

[Audit Participant]

Whereas, the United States Environmental Protection Agency (“EPA”)
recognizes the value to Government Industry, and the Public, of clearly
defined emission, monitoring, and reporting obligations under federal
law for sources currently regulated under the Texas flexible permit
program.

Whereas, EPA has exercised its enforcement discretion to create a
voluntary Audit Program designed to allow Texas flexible permit holders
to establish and/or identify federally-enforceable Emission Unit
Requirements, as the term is defined herein, for inclusion in federal
Clean Air Act (“CAA”) Title V permits, and appropriate
federally-enforceable non-Title V permits.  See ___________ (“Program
Notice”).

Whereas, the Texas Commission on Environmental Quality (“TCEQ”) is
the authorized permitting entity for the State of Texas, providing
guidance on Texas permitting and regulations, and processing permit
applications filed pursuant to the Consent Agreement and Final Order
(“CAFO”) entered as part of this Audit Program.

Whereas, EPA and _______ (“Audit Participant”) intend to enter into
a CAFO memorializing the Audit Participant’s commitment to seek the
inclusion of agreed upon Emission Unit Requirements in both Title V and
appropriate federally-enforceable non-Title V permits.

Whereas, EPA is offering a release and covenant not to sue for those
alleged violations identified in the CAFO.

Whereas EPA and the Audit Participant (the “Parties”) desire to
enter into and be bound by the terms of this “Audit Agreement for
Texas Flexible Permit Holders” (“Agreement”).

Now, therefore, in consideration of the above, EPA and the Audit
Participant agree as follows:

I. Applicability

This Agreement shall apply to and be binding upon EPA and the Audit
Participant, including but not limited to, its officers, directors,
agents, servants, employees, successors, and assigns.  The Audit
Participant shall give notice of this Agreement to any successor in
interest prior to the transfer of the Facility or any ownership interest
in any Emission Source regulated under the Texas flexible permit.

II. Representations

The Audit Participant represents that:

The facility that shall be subject to the terms of this Agreement is
_____ and is located at ______ (“Facility”).

It is the owner and/or operator of the Facility.

It is submitting this executed Agreement to EPA within ___ days of the
Audit Program Notice.

III. General Provisions

For purposes of this Agreement and any proceeding, without trial or any
adjudication of facts, the Audit Participant admits that EPA has
jurisdiction over the subject-matter of the terms of this Agreement and
any materials submitted to EPA pursuant to this Agreement.

The auditor’s identification of potential areas of noncompliance
pursuant to this Agreement shall not constitute an admission of any
violation of the CAA or any other environmental requirements for
purposes of this Agreement or any other civil, criminal, or
administrative proceeding.

No later than 30 days prior to the closing date of a transfer of the
facility to another party , the Audit Participant shall provide written
notice and a copy of this Agreement to each party accepting transfer of
the Facility.  Such notice shall include this Agreement and any
materials developed pursuant to this Agreement.  Further, the Audit
Participant shall notify EPA in writing of such a transfer of the
Facility at least 10 days prior to such transfer, including
identification of the purchaser and the Facility.

EPA will place executed Audit Agreements on EPA’s website to provide
upfront notification to communities of those facilities participating in
the Audit Program and to facilitate community engagement in the
development of Community Projects.

IV. Definitions

“Audit” shall mean the comprehensive third-party CAA compliance
audit as described in this Agreement and at __ Fed. Reg. ___ (Date).

“Audit Participant’s Report and Certification” shall mean the
report that provides the Audit Participant’s comments on the Audit
Report, including the Audit Participant’s proposed table of applicable
Emission Unit Requirements for each Emission Unit.  Proposal of Emission
Unit Requirements in the Audit Participant’s Report and Certification
binds the Audit Participant to apply for a revision to its Title V
permit, and to obtain appropriate federally-enforceable non-Title V
permits.  This obligation shall be memorialized in a federal
administrative CAFO between the Audit Participant and EPA.

“Audit Program” shall mean the Audit itself, all deliverables, and
process required under this Audit Agreement.

“Audit Report” shall mean the report drafted by the Third-Party
Auditor that presents the detailed results of the Audit and identifies
Emission Unit Requirements for each Emission Unit.

“Audit Team” shall mean the group of individuals representing the
Third-Party Auditor either as employees or under contract that are
conducting the Audit.     All members of the Audit Team must be
presented to EPA at the time of Third-Party Auditor approval.

“Best Available Control Technology” or “BACT” shall mean Best
Available Control Technology pursuant to PSD as defined in the
federally-approved Texas SIP or as defined in 40 C.F.R. § 52.21 where
no federally approved definition of BACT can be identified in the Texas
SIP.

“Change” shall mean the act, process, or result of altering or
modifying the physical or operational characteristics of an Emissions
Unit or Facility.

“Community-based Project” or “CP” shall mean a project completed
by or paid for by an Audit Participant focused on improving, protecting,
or reducing community risks to public health or the environment that
could have been caused by alleged violations by the Audit Participant.
The nature and valuation of community projects will be based upon the
outcome of the audit and will be finalized during post-audit
negotiations with EPA.

“Consent Agreement and Final Order” or “CAFO” shall mean the
final order memorializing the Audit Participant’s commitment to comply
with a compliance plan and apply for a Title V permit revision, and
appropriate federally-enforceable permit(s).

“Emission Determination(s)” shall mean the conclusions of the
Third-Party Auditor as to pollutant emission levels, increases, or
decreases at any Emission Unit and non-Texas Flexible Permit Emission
Units at the Facility.

“Emission Unit” shall mean any part of a stationary source regulated
under a Texas Flexible Permit that emits, or would have the potential to
emit, any pollutant subject to regulation under the Federal CAA.

“Emission Unit Requirements” shall mean: 1) pollutant emission
limitations/standards; 2) controls/operational changes/operational
practices needed to meet the emission limitations/standards; 3)
monitoring and reporting requirements necessary to determine continuous
compliance with emission limitations; 4) a compliance schedule, if
needed; and 5) interim emission limitations/standards, if needed.

“Facility” shall mean the ______ [type of facility, i.e., refinery,
olefins plant, power generating plant, etc.] located at _____ [address]
_____ [owned and/or operated] by ______ holding the Texas Flexible
Permit number(s) ______ [flexible permit number].

“Federal CAA Compliance Status” shall mean a determination of the
Emission Unit Requirements for a particular Emission Unit based on
review of the operational and physical history of the Emission Unit with
reference to applicable federal regulations and requirements in the
federally-approved Texas SIP.        The concept of Federal CAA
Compliance Status in the context of this program is further defined and
explained in paragraphs below.

“Hyperlinks” shall mean a reference to an external piece of
information in any of the work products generated pursuant to this
Agreement accessible by clicking on the Hyperlink.

“Hypertext” shall mean text, displayed on a computer, with
references (Hyperlinks) to other text that the reader can immediately
access by a mouse click.

“Lowest Achievable Emissions Rate” or “LAER”  shall mean Lowest
Achievable Emissions Rate as defined in the federally-approved Texas
SIP, or as defined in  40 C.F.R. § 52.21 where no federally-approved
definition of LAER can be identified in the Texas SIP.

“New Source Review” or “NSR” shall mean both the New Source
Review and Prevention of Significant Deterioration programs authorized
by Congress at       42 U.S.C. §§ 111 and 112, the federal rules at 40
C.F.R. Parts 51 and 52, and the Texas SIP requirements promulgated to
implement the same.

“Program Notice” shall mean EPA’s Texas Flexible Permit Audit
Program Notice published on _____ at __ Fed. Reg. _____.

“Texas Flexible Permit(s)” shall mean Texas air emission control
permits issued Texas to the Facility pursuant to 30 TAC 116.710.

“Texas State Implementation Plan” or “Texas SIP” shall mean the
portions of Texas state air regulations that were submitted by Texas and
approved by EPA for inclusion in the federally-recognized SIP.  The
current content of the SIP and a historical overview of previous
versions of the SIP can be found at
http://yosemite1.epa.gov/r6/Sip0304.nsf/home?Openview&Start=1&Count=30&E
xpand=6.

“Third-Party Auditor” shall mean the independent Third-Party
company(ies) hired by the Audit Participant to conduct the Audit and who
meet the requirements set forth in Paragraph 29 below.

V.  Specific Requirements and Instructions Regarding the Audit and
Reports

A.	Independence of and Requirements Regarding the Third-Party Auditor

The requirements of paragraphs 30 - 34 below, shall apply to the
Third-Party Auditor and employees of the Third-Party Auditor working on
the Audit performed to satisfy this Audit Agreement.

The Third-Party Auditor shall ensure that all audit team members meet
the qualification requirements for independence and professional care
found in ISO 19011(First edition, 2002-10-01) or as defined by the 2008
Board of Environmental, Health and Safety Auditor Certifications (BEAC)
Standards.

The Third-Party Auditor shall be paid by the Audit Participant in an
amount sufficient to carry-out the provisions of this Audit Agreement.
The service agreement between the Audit Participant and the Third-Party
Auditor should contain surety provisions satisfactory to both parties to
ensure that work is not terminated, either due to the Audit
Participant’s failure to make payment or other circumstances that may
lead to work stoppage.  The Third-Party Auditor must not be an employee
or former employee of the Audit Participant.  The Third-Party Auditor
must not directly own any stock in the Audit Participant or in any
parent or subsidiary, and must have no direct financial stake in the
outcome of the Audit conducted pursuant to this Audit Agreement.

The Third-Party Auditor and members of the audit team shall not have
been involved in any capacity in the development of any air permits or
authorizations held by the Audit Participant at the facility being
audited under this program.

If the Audit Participant has any contractual relationship with the
Third-Party Auditor, the Audit Participant shall disclose to EPA such
past or existing contractual relationships in an attachment to this
Audit Agreement.

The Audit Participant agrees to not enter into any contractual or
employment relationships with the Third-Party Auditor or any member of
the audit team for a period of one (1) year after the submission of the
Audit Report.

Within 15 days of the Audit Participant’s execution of this Audit
Agreement, EPA may choose to reject the Third-Party Auditor.  EPA may
elect to reject the Third-Party Auditor for failing to meet any of the
conditions identified in paragraphs 30 - 34 of this Audit Agreement or
where it has reason to believe that an actual or potential conflict may
exist between the Audit Participant and its proposed Third-Party
Auditor.  If EPA rejects the Third-Party Auditor, the Audit Participant
may choose another Third-Party Auditor, again subject to EPA rejection.

The conclusions of the Third-Party Auditor must be its own, based on
best professional judgment applied to the facts, materials, and
information collected, obtained, or learned during the course of the
Audit.  The Audit Report submitted by the Third-Party Auditor must be
stamped by a professional engineer or certified auditor.

The Audit Participant shall take all steps necessary to ensure that it
openly shares with the Third-Party Auditor confidential and business
sensitive information.

To the extent that documents needed to complete the Audit are not
available in the files of the Audit Participant, the Third-Party
Auditor, with assistance as necessary from the Audit Participant, shall
seek the needed documentation elsewhere.

This Audit Agreement includes requirements regarding the performance of
the Audit and the form of deliverables.  The Audit Participant and
Third-Party Auditor are responsible for abiding by these requirements.
Deliverables must be clear and detailed, and supporting information must
be submitted in a manageable form.  Lack of clarity, incomplete
documentation, and/or documentation submitted in an unorganized or
difficult to manage manner shall be grounds for rejection of the Audit.

As to all Emission Determinations made and Emission Unit Requirements
recommended pursuant to this Agreement, the Third-Party Auditor shall
make best professional efforts to ensure the information reported to EPA
is as accurate as possible.  The Third-Party Auditor may arrive at
Emission Determinations and Emission Unit Requirements by: verifying
emissions estimates and measurements made by the Audit Participant or a
predecessor in interest, re-calculating emission values previously used
in permitting or other contexts, or using its best professional judgment
to calculate emissions using the most accurate assumptions, emission
factors, or other available information and/or tools (eg. stack tests).

B.	Overview of Audit Requirements and Scope

The Audit Participant shall make best efforts to ensure that the Audit
represents:  a) an accurate determination of the applicable Emission
Unit Requirements for each Emission Unit; and; b) an accurate
determination of each Emission Unit’s current Federal CAA Compliance
Status.

The Audit will include a detailed review of the physical, operational,
and regulatory history of each Emission Unit.  The review time frame,
except for NSR, shall be from the date the Texas Flexible Permit became
effective to the present.  In the case of the NSR review, the emissions
review time frame may need to include a period of time prior to the
issuance of the flexible permit in order to establish a NSR emissions
baseline.  The Audit Participant shall conduct a major/minor NSR
analysis of the operational and permitting history of each Emission Unit
under the Texas Flexible Permit beginning with the last
SIP-approved authorization issued prior to the issuance of the Texas
Flexible Permit (if any).  The review is critical to this process
because various types of Changes may have caused Emission Units to be
subject to various federal CAA regulations.  The Audit shall clearly
identify federal rules applicable to each Emission Unit and demonstrate
each Emission Unit’s compliance status with federal rules.

The Third-Party Auditor shall evaluate the Monitoring, Recordkeeping and
Reporting (MRR) provisions for each emissions unit to ensure that the
requirements are sufficient to determine continuous compliance with
applicable emissions limits.   If MRR is insufficient, the Auditor will
provide recommendations for additional MRR.

The Third-Party Auditor shall prepare a version of the Audit Report that
excludes any Confidential Business Information (“CBI”).  The Audit
Participant shall prepare a version of the Audit Participant’s Report
and Certification that excludes any CBI.  These CBI redacted reports,
along with the negotiated CAFO between the Audit Participant and EPA,
shall be posted on the Internet for public review .

All Audit deliverables shall be electronic Hypertext documents allowing
all supporting material related to the Audit to be accessed by clicking
on the Hyperlinks imbedded in the deliverables.

Documents supporting the analysis and conclusions of the Audit shall be
scanned into pdf files in the manner in which they were originally
produced and delivered by the author.  For example, in scanning a permit
application, the scan should include everything that was in the envelope
that was originally sent to the state of Texas.  Items like reports
should include the transmittal letter and all attachments as part of the
same pdf file that includes the report.  CBI documents shall be provided
separately.

Each scanned document shall be named in the following manner: date
[underscore] transmitting party [underscore] primary recipient
[underscore] beginning bates stamp number [underscore] .pdf.  For
example, a letter from John Doe, the plant manager of X corporation’s
facility to Tom Permit-Writer of TCEQ sent June 6, 2006 with a beginning
bates stamp of 0005555 should be titled:
06062006_xcorp_tceq_0005555.pdf.  In the situation where transmittal
letters have a different issuance date from the attached material, the
date of the transmittal letter shall be used in the title of the pdf.

C.	Development of Community-Based Projects

Community-Based Project(s) (CP(s)) are projects designed to address
community impacts resulting from noncompliance identified through the
Audit including the violations identified in the model CAFO.  Within 90
days of the completion of the Audit Report, the Audit Participant shall
present to EPA a community project(s) for post-audit negotiations.   In
developing their CP(s), Audit Participants will be required to work with
the local community representatives to develop the project details and
an implementation schedule that will be included in the final CAFO.
Outreach to the community groups should extend beyond any
pre-established community advisory panels.  EPA acknowledges that 90
days may not be sufficient time to engage the community and develop a
community project; therefore, EPA encourages the Audit Participant to
solicit input from the community earlier in the process (prior to the
completion of the Audit).  Each CP must have a clear nexus to potential
air emissions from the Facility and clearly identify the benefits to be
received by the community as a result of the project.

The required value of CPs to be implemented by each Audit Participant
will be based upon the outcome of the Audit and will be finalized during
post-audit negotiations with EPA.

Within 90 days of the Audit Report, the Audit Participant will submit to
EPA a final CP proposal for approval.  The CP proposal shall include a
detailed description of the project(s), a schedule for project
implementation (CPs must be completed within one year of the CAFO date),
a clear discussion of air nexus, and a discussion of the community
involvement and outreach conducted as the project was developed.

The final CP(s) will be specified in the CAFO and will include a
detailed description of the project and a schedule for implementation of
the project, interim status reports and a final project report to be
completed within the term of the CAFO.

D.	Applicable Law and Guidance for the NSR Portion of the Audit

The Third-Party Auditor shall apply the version of the NSR regulations
that were federally-approved and therefore included in the Texas SIP at
the time of the particular Change being reviewed.  In reviewing Changes
that triggered or should have triggered NSR review, the attainment
status of the area in which the Facility is located at the time of the
Changes under review shall be used for purposes of determining the major
modification threshold and the required level of control, unless NSR
non-compliance is identified.  In the case of non-compliance, the
current attainment status shall be used to determine the level of
control.

In addition to applying the version of NSR regulations in the approved
Texas SIP, the Third-Party Auditor shall also perform its NSR analysis
consistent with EPA NSR Guidance.

E.	Establishment of NSR Emission Unit Requirements

This Audit Program does not automatically require participants to seek
current LAER/BACT Emission Unit Requirements at every Emission Unit
regulated under a Texas Flexible Permit.

NSR Emission Unit Requirements shall be currently applicable, and
therefore approvable by EPA in the context of this Audit Program, where
during the term of the flexible permit the Emission Unit was not changed
in such a way so as to require new more stringent NSR Emission Unit
Requirements.

If NSR Emission Unit Requirements were developed during the term of the
Audit Participant’s Flexible Permit, such Emission Unit Requirements
may be currently applicable, and therefore approvable by EPA in the
context of this Audit Program, where such Emission Unit Requirements
were developed in a manner fully consistent with the federally-approved
SIP in effect at the time of the promulgation of the Emission Unit
Requirements.  The Third-Party Auditor shall make a specific
determination to ensure that each Emission Unit Requirement was issued
consistent with the processes outlined in the federally-approved SIP.

If EPA determines that the Audit Participant is in non-compliance with
NSR, installation of emission controls consistent with current year
LAER/BACT for the Emission Units implicated by the NSR non-compliance is
required under this program.   EPA may determine that non-compliance
with NSR should result in the collection of civil penalties from the
Audit Participant.  The Audit Participant must agree to the level of
such penalties prior to EPA’s issuance of a covenant-not-to-sue under
this program.  As indicated in the Audit FRN, Audit Participants who
proactively execute an Audit Agreement within 45 days of the publishing
of the Final Audit Program will be evaluated as meeting EPA’s
conditions for penalty mitigation under EPA’s Audit Policy and will
receive a waiver of the gravity component of any penalties resulting
from noncompliance uncovered by the Audit.

F.	Requirements for the NSR Section of the Audit Report

Part 1 of the NSR Section of the Audit Report shall consist of an
overview of the Audit process and scope.  This part shall include a
description of the personnel and data tools used, a general description
of the documents reviewed, and a discussion of any serious problems
encountered in conducting the Audit.

Part 2 of the NSR Section of the Audit Report shall consist of an
executive summary of the findings of the NSR portion of the Audit,
including, but not limited to:

A detailed description of all prior NSR permits that were replaced by
the flexible permit;

A description of the NSR potential noncompliance found, if any, at each
Emission Unit;

A list of Emission Unit projects/Changes that exceeded NSR significance
thresholds but that netted out of BACT review or LAER review;

A list of the recommended Emission Unit Requirements dictated by the NSR
review;

Summaries of all Emission Determinations;

Summaries of BACT or LAER determinations;

For all NSR Emission Unit Requirements established by TCEQ during the
term of the Flexible Permit, a detailed analysis of whether the process
used by TCEQ complied with the contemporaneous, federally-approved SIP;
and

For all instances of NSR non-compliance identified, a list of proposed
Emission Unit Requirements for each emissions unit where non-compliance
was identified.  The Third-Party Auditor will use the BACT/LAER Clearing
House to provide recommendations of present day (2010) BACT or LAER.

Part 3 of the NSR Section of the Audit Report shall consist of a
detailed narrative describing the Audit review process for each Emission
Unit, including, but not limited to, the process analyses, emissions
analyses, and regulatory analyses, emissions calculations (including any
formula, assumptions and/or emission factors used), and the conclusions.
 All supporting materials shall be referenced in footnotes with
Hyperlinks to historical and contemporaneous supporting documents.

Part 4 of the NSR Section of the Audit Report shall consist of a
chronological list of all documents produced in support of the NSR
portion of the audit.  The list shall state the name of the document,
its date, its bates stamp range, attachments appended to the document
and the bates stamp range of such attachments, and a Hyperlink to the
pdf of each document.  All documents shall be produced in searchable pdf
format utilizing optical character recognition.

Part 5 of the NSR Section of the Audit Report shall consist of a table
of all applicable NSR related Emission Unit Requirements for each
Emission Unit that will provide the basis for necessary permitting
revisions by the appropriate permitting authority.

G.	Requirements for Non-NSR Audit and Non-NSR section of the Audit
Report

The non-NSR CAA Audit shall determine the CAA compliance status and
recommended Emission Unit Requirements for each Emission Unit with
reference to the non-NSR federal CAA regulations in effect at the time
of the Emission Unit’s construction or at the time of any event that
may have caused the Emission Unit to be subject to non-NSR federal CAA
regulations or that may have changed the Emission Unit’s requirements
pursuant to non-NSR federal CAA regulations.  In the case of Emission
Units that triggered NSR and require BACT or LAER level controls, the
Audit Report shall also explicitly state all other applicable CAA
regulations and the corresponding Emission Unit Requirements.

Part 1 of the non-NSR Section of the Audit Report shall consist of a
detailed summary of the Audit process.  This section shall include a
description of the personnel and data tools used, a general description
of the documents reviewed, and a discussion of any serious problems
encountered in conducting the Audit.

Part 2 of the non-NSR Section of the Audit Report shall consist of an
executive summary of the findings of the non-NSR audit, including but
not limited to:

A detailed description of all prior SIP-based permits that were replaced
by the flexible permit;

A description of all non-NSR CAA potential violations found;

Summaries of all Emission Determinations; and

Recommended non-NSR Emission Unit Requirements.

Part 3 of the non-NSR Section of the Audit Report shall consist of a
detailed narrative describing the review process of each Emission Unit,
including but not limited to, the process analyses, emissions analyses,
and regulatory analyses, emissions calculations (including any formula,
assumptions and/or emission factors used), and the conclusions.  All
supporting materials shall be referenced in footnotes with Hyperlinks to
historical and contemporaneous supporting documents.

Part 4 of the non-NSR Section of the Audit Report shall consist of a
chronological list of all documents produced in support of the non-NSR
portion of the audit.  The list shall state the name of the document,
its date, its bates stamp range, attachments appended to the document
and the bates stamp range of such attachments, and Hyperlinks to the pdf
of each document.  All documents shall be produced in searchable pdf
format utilizing optical character recognition.

Part 5 of the non-NSR Section of the Audit Report shall consist of a
table of all applicable non-NSR related Emission Unit Requirements for
each Emission Unit that will provide the basis for necessary permitting
revisions by the appropriate permitting authority.

H.	Audit Report Certifications

The Audit Report shall include the following certification executed by a
responsible official representing the Third-Party Auditor:

I certify under penalty of law that this document was prepared at my
direction, and to the best of my knowledge and belief, the information
submitted is true, accurate, and complete.

The Audit Report and all Emission Unit Requirements (including
underlying Emission Determinations and LAER/BACT analysis) shall be
certified as accurate by a registered professional engineer or certified
auditor.

The Audit Report shall include the following certification executed by a
responsible official representing the Audit Participant:

I certify under penalty of law that _____ [the Audit Participant] to the
best of my knowledge and belief has cooperated fully with _____ [the
Third-Party Auditor] in its efforts to prepare this document, has
provided all information requested by ____ [the Third-Party Auditor],
and that the information provided to ____ [the Third-Party Auditor] is
true, accurate, and complete.

I.	Audit Participant’s Report and Certification

The Audit Participant’s Report and Certification shall consist of the
following sections:

An Introduction/Executive Summary outlining the differences between the
conclusions made in the Audit Report and the conclusions made in the
Audit Participant’s Report and Certification, if any.

A version of the Audit Report with “redline” comments, deletions,
and insertions by the Audit Participant.  In this section, the Audit
Participant shall make, to the extent necessary, detailed presentations
on why its conclusions differ from those in the Audit Report.  The Audit
Participant may present information in the form of bracketed text within
the Audit Report redline or by adding Hyperlinks to more detailed
supplementary materials.

An Excel spreadsheet including a row for each Emission Unit regulated
pursuant to the Texas Flexible Permit with proposed Emission Unit
Requirements.  This spreadsheet shall include Hyperlinks to all material
supporting each proposed Emission Unit Requirement.

The following certification executed by a responsible official
representing the Audit Participant:

I certify under penalty of law that this document was prepared at my
direction, and to the best of my knowledge and belief, the information
submitted is true, accurate, and complete, and that all Emission Unit
Requirements, Emission Determinations, and LAER/BACT analyses were
reviewed and certified as accurate by a registered professional engineer
or certified auditor.

J.	Notification

The Audit Participant designates the following individual as its contact
person to receive all communication from EPA and the Third-Party Auditor
concerning this Agreement:

_______________________________________

(name, title, address, phone, email)

The Third-Party Auditor designates the following individual as its
contact person to receive all communication from EPA and the Audit
Participant concerning this Agreement:

_______________________________________

EPA designates the following individual as its contact person to receive
all communication from the Audit Participant and Third-Party Auditor
concerning this Agreement:

______________________________________

The parties may re-designate their contact persons in writing at any
time.

VI. Audit Schedule and CAFO Process

The Audit Report shall be delivered to EPA no later than 160 days or a
timeframe agreed upon by EPA, after the effective date of the Audit
Agreement.  A version of the Audit Report with CBI redacted will be
published on the Internet upon receipt by EPA.  EPA shall review the
independence of the Third-Party Auditor prior to executing the Audit
Agreement.

No later than 250 days after the effective date of the Audit Agreement,
the Audit Participant shall deliver to EPA the Audit Participant’s
Report and Certification.  A version of the Audit Participant’s Report
and Certification with CBI redacted will be published on the Internet
upon receipt by EPA.

No later than 90 days after the date of the Audit Report, the Audit
Participant will submit to EPA a final CP proposal for approval.

In the period subsequent to delivery of the Audit Participant’s Report
and Certification, EPA and the Audit Participant may discuss the content
of the Audit Report and the Audit Participant’s Report and
Certification.  EPA may seek additional information from the Audit
Participant.  The Audit Participant agrees to respond in a timely manner
to any such request.

At any time after the delivery of the Audit Participant’s Report and
Certification, EPA may propose to the Audit Participant a form of CAFO
that is consistent with the model CAFO attached to this agreement as
Attachment A.

If EPA agrees with all of the Emission Unit Requirements proposed in the
Audit Participant’s Report and Certification, the CAFO will require
that the Audit Participant comply with the compliance plan and schedule
attached and apply for a Title V permit revision to incorporate and
obtain appropriate federally-enforceable permits to memorialize all such
Emission Unit Requirements and require the Audit Participant to perform
agreed upon CP(s).  The Audit Participant hereby agrees to sign such a
CAFO within 15 days of receipt.  If the Audit Participant does not sign
the CAFO, the Audit process ends with no agreement as to Emission Unit
Requirements or CP(s) and EPA retains its enforcement authority.

If EPA agrees with some, but not all of the Emission Unit Requirements
proposed in the Audit Participant’s Report and Certification, the CAFO
may include a subset of the Emission Unit Requirements proposed in the
Audit Participant’s Report and Certification, along with either
Emission Unit Requirements agreed to by the Parties, and/or where no
agreement can be reached, Emission Unit Requirements chosen by EPA.  The
CAFO will require that the Audit Participant comply with the
requirements of the compliance schedule attached and apply for a Title V
permit revision to incorporate and obtain appropriate
federally-enforceable permits to memorialize all such Emission Unit
Requirements and require the Audit Participant to perform agreed upon
CP(s).  The Audit Participant shall have 30 days to sign the CAFO.  If
the Audit Participant does not sign the CAFO, the Audit process ends
with no agreement as to Emission Unit Requirements or CP(s) and EPA
retains its enforcement authority.

Once a CAFO has been signed by the Audit Participant and by EPA, EPA
will file the CAFO with the EPA Region 6 Judicial Officer.  At the same
time, the CAFO will be published on the Internet for a public comment
period of 30 days.

After the public comment period ends, EPA will consider any public
comments, and, as appropriate, seek to work with the Audit Participant
to revise the CAFO based on such public comments.  After any necessary
revisions are made, EPA will seek finalization of the CAFO by the Region
6 Judicial Officer.  The offering of the CAFO for public comment does
not explicitly create an obligation for EPA response or inclusion of
such comments nor does this create any rights for public objection to
the final CAFO.

VII.  Compliance with Laws and Regulations, Reservation of Rights, and
Modifications

Neither the existence of this Agreement nor compliance with this
Agreement relieves the Audit Participant of the obligation of continued
compliance with the regulations covered under this Agreement, and all
other applicable federal, state, and local laws and regulations.

This Audit and CAFO do not prejudge the permitting process or replace
it.      The agreed upon Emission Unit Requirements are minimum
requirements in order for the Audit Participant to receive a
covenant-not-to-sue pursuant to the Audit Program.  The permitting
authority will follow the rules and processes in place, including public
participation, at the appropriate time.

EPA reserves its rights to proceed against the Audit Participant for
violations outside the scope of the Audit and for violations within the
scope of this Audit that are not explicitly released in the CAFO.  EPA
reserves the right to commence an action against any person, including
the Audit Participant, in response to any condition which EPA determines
may present an imminent and substantial endangerment to the public
health, welfare, or environment.  This Agreement is not intended, and
shall not be construed, to resolve any claim for criminal sanctions now
pending or sought in the future, and shall not limit the right of the
United States to pursue criminal sanctions for violation of law.

Nothing in this Agreement shall limit the authority of EPA to conduct
any inspections or information gathering under applicable federal law.

A writing signed by the parties may modify this Agreement.

WE, THE UNDERSIGNED, HEREBY AGREE TO BE BOUND BY THIS AGREEMENT:

For U.S. EPA:

______________________________________
      __

John Blevins, 							Date

Director

Compliance Assurance and Enforcement Division

EPA, Region 6

For ___________ [Audit Participant]:

  ___________________				_______________________

							Date

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION 6

DALLAS, TEXAS

IN THE MATTER OF:	§

§

[NAME OF AUDIT PARTICIPANT]	§	EPA DOCKET NO. CAA-06-2010-xxxx

[NAME OF CITY, TEXAS]	§

§

§	COMPLAINT AND

§	CONSENT AGREEMENT AND

§	FINAL ORDER

	§

The Director of the Compliance Assurance and Enforcement Division of the
United States Environmental Protection Agency (EPA), Region 6
(Complainant), and [Name of Audit Participant, Name of City, Texas]
(Respondent) in the above referenced proceeding, hereby agree to resolve
this matter through the issuance of this Complaint and Consent Agreement
and Final Order (Complaint and CAFO).

I.   PRELIMINARY STATEMENT

This proceeding is for the assessment of civil penalties pursuant to
Section 113(d) of the Clean Air Act, as amended (CAA), 42 U.S.C. §
7413(d), and for additional terms of settlement as agreed to by
Respondent.  This proceeding was instituted by the issuance of a
Complaint and Notice of Opportunity for Hearing (Complaint) incorporated
herein, and is simultaneously concluded by the issuance of this CAFO
against Respondent pursuant to            40 C.F.R. §§ 22.13(b) and
22.34.

The Complaint alleges [Name of Audit Participant] (abbreviated name)
violated the CAA and specific requirements promulgated thereunder at its
[Name of Facility or Plant] located in [Name of City, County, Texas]
(Facility).

For purposes of this proceeding, Respondent admits the jurisdictional
allegations of this Complaint; however, Respondent neither admits nor
denies the specific factual allegations contained in this Complaint.

Respondent consents to the issuance of this CAFO hereinafter recited and
consents to the assessment and payment of any stated civil penalty in
the amount and by the method set out in this CAFO; in addition,
Respondent agrees to perform the additional terms of settlement set
forth in Paragraphs 28 through 41 as a condition precedent for the
release and covenant not to sue provisions set forth in Paragraph 42
through 44 below.

5.	Respondent waives any right to contest the allegations in the CAFO
and its right

to appeal the Final Order set forth herein, and Respondent waives all
defenses which have been

raised or could have been raised to the claims set forth in the CAFO.

6.	This CAFO shall only resolve Respondent’s liability for federal
civil penalties for the violations and facts alleged in this Complaint;
furthermore, Respondent shall not assert, and may not maintain, any
defense or claim based upon the principles of waiver, res judicata,
collateral estoppel, issue preclusion, or claim-splitting for violations
not alleged in this Complaint.

7.	Nothing in this CAFO shall be construed to prevent or limit EPA's
civil and criminal authorities, or that of other Federal, State, or
local agencies or departments to obtain penalties or injunctive relief
under other Federal, State, or local laws or regulations.

8.	Respondent represents that it is duly authorized to execute this CAFO
and that the party signing this CAFO on behalf of the Respondent is duly
authorized to bind the Respondent to the terms and conditions of this
CAFO.

9.	Respondent agrees that the provisions of this CAFO shall be binding
on its officers, directors, employees, agents, servants, authorized
representatives, successors, and assigns.

II.   FINDINGS OF FACT AND CONCLUSIONS OF LAW

10.	Respondent is a [insert nature of business, e.g., corporation,
partnership, etc.] doing business in the State of Texas and is a
“person” as that term is defined in Section 302(e) of the Act, 42
U.S.C. § 7602(e), and within the meaning of Section 113(d) of the CAA,
42 U.S.C.    § 7413(d).

11.	At all relevant times, Respondent owned and operated a [insert type
of facility, e.g., refinery, chemical manufacturing facility, etc.]
located in [insert name of city], Texas.

12.	Pursuant to Section 110 of the Act, 42 U.S.C. § 7410, Texas has
submitted and EPA has approved a state implementation plan (Texas SIP)
which contains, inter alia, the group of control strategies and
regulations designed to attain and maintain the national ambient air
quality standards (NAAQS) for criteria air pollutants.

13.	The Texas SIP includes an air permitting program for new and
modified sources of air pollution which provides various mechanisms for
sources to obtain authorizations for their air emissions.  In 1994,
Texas created a flexible air permit program (Texas Flexible Permit
Program), found at 30 TAC Chapter 116, Subchapter G, and submitted that
program to EPA for approval as a revision to the Texas SIP.  EPA
disapproved the Texas Flexible Permit Program effective July 15, 2010.
See 75 Fed. Reg. 41312 (July 15, 2010).  Sources remain subject to the
federally-approved Texas SIP and the mechanisms contained therein to
effect changes to their operations that may affect air emissions.

14.	Pursuant to Title V of the Act, 42 U.S.C. §§ 7661-7661f, and the
implementing regulations at 40 C.F.R. Part 70, EPA has approved an air
operating permits program for major and area sources of air pollution in
Texas (Texas Title V program).  30 TAC § 122.132(e)(2) of the Texas
Title V program requires major sources to submit permit applications
that identify all applicable requirements, including the requirements of
the Texas SIP.  See also 40 C.F.R.

§ 70.5 (a),(c).   Requirements imposed by state-only programs, such as
the Texas Flexible Permit Program which is not part of the Texas SIP,
should be designated as not being federally enforceable in a source’s
Title V permit, as required by 30 TAC § 122.142(b)(2) and 40 C.F.R.

§ 70.6(b)(2).

Count 1

15.	On or about [INSERT date of issuance of Flexible Permit], Respondent
was issued [Permit No. xxxxxxx], an air permit issued under the Texas
Flexible Permit Program.  Permit No. xxxxxx covers various emission
units at Respondent’s facility, including [Insert general description
of the emission units covered by Flexible permit, identifying each
emission point number (EPN) covered by the flexible permit].

16.	Under the flexible permit referenced above, Respondent effected
changes at the [name of facility] which altered the nature and quantity
of air emissions authorized from emission units covered by the flexible
permit; these emission units were either previously authorized by
permits issued under the federally-approved Texas SIP or had never been
authorized under the federally-approved Texas SIP.

17.	Respondent failed to seek and obtain authorization(s) under the
federally-approved Texas SIP for the unit-specific changes in emission
rates/limitations and other requirements when obtaining their flexible
permit, Permit No. xxxxxx.

18.	Therefore, Respondent violated the requirements of 30 TAC Chapter
116 of the federally-approved Texas SIP, approved by EPA under Section
110 of the Act, 42 U.S.C.           § 7410.  On [Insert date], notice
of these violations was provided to Respondent and Texas, as required by
Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1).

Count 2

19.	On [date of issuance], Respondent was issued an air operating
permit, Permit No. O-xxxxx, a permit issued under the EPA-approved Texas
Title V program.

20.	Permit No. O-xxxx fails to designate the requirements of
Respondent’s flexible permit, Permit No. xxxxxx, as not being
federally enforceable and fails to include all applicable requirements,
such as those requirements contained in permits issued under the
federally-approved Texas SIP.

21.	Respondent’s failure to identify the terms and conditions of all
permits issued under the federally-approved Texas SIP, as applicable
requirements, in its Title V permit application constitutes a violation
of 30 TAC § 122.132(e)(2) of the federally-approved Texas Title V
program, Title V of the Act and the requirements of  40 C.F.R. § 70.5.

III. TERMS OF SETTLEMENT

A.	CIVIL PENALTY

22.	For the reasons set forth above, Respondent has agreed to pay a
civil penalty which has been determined in accordance with Section
113(d) of the CAA, 42 U.S.C. § 7413(d), which authorizes EPA to assess
a civil penalty of up to twenty-five thousand dollars ($25,000) per day
for each violation of the Act.  Upon consideration of the entire record
herein, including the Findings of Fact and Conclusions of Law, which are
hereby adopted and made a part hereof, and upon consideration of the
size of the business, the economic impact of the penalty on the
business, the violator’s full compliance history and good faith
efforts to comply, the duration of the violation, payment by the
violator of penalties previously assessed for the same violation, the
economic benefit of noncompliance, the seriousness of the violation,
specific facts and equities, litigation risks, and other factors as
justice may require, INCLUDING Respondent’s agreement to perform the
additional terms of settlement set forth below, it is ORDERED that
Respondent be assessed a civil penalty in the amount of  XXXXXXXXXXXX
dollars ($xxxxxxx).

23.	Within thirty (30) days of Respondent’s receipt of this fully
executed CAFO,  Respondent shall pay xxxxxxxxxxxx dollars ($xxxxxxx) by
cashier’s or certified check made payable to “Treasurer, United
States of America, EPA - Region 6.”  Payment shall be remitted in one
of four (4) ways:  regular U.S. Postal Service mail, to include
certified mail; overnight mail; wire transfer; or On Line Payment.  For
regular U.S. Postal Service mail, U.S. Postal Service certified mail, or
U.S. Postal Service express mail, the check(s) should be remitted to:

		U.S. Environmental Protection Agency

Fines and Penalties

Cincinnati Finance Center

		PO Box 979077

		St. Louis, MO  63197-9000

For overnight mail (non-U.S. Postal Service, e.g. Fed Ex), the check(s)
should be remitted to:

		U.S. Bank

		1005 Convention Plaza

		Mail Station SL-MO-C2GL

		St. Louis, MO  63101

		Contact: Natalie Pearson

<PHONE_NUMBER>

For wire transfer, the payment should be remitted to:

		Federal Reserve Bank of New York

		ABA = 021030004

		Account = 68010727

		SWIFT address = FRNYUS33

		33 Liberty Street

		New York, NY  10045

		Field Tag 4200 of the Fedwire message should read “D 68010727

		   Environmental Protection Agency”

		phone number<PHONE_NUMBER>.

For On-line Payment:

  HYPERLINK "http://WWW.PAY.GOV"  WWW.PAY.GOV

		Enter sfo 1.1 in search field

		Open form and complete required fields.

PLEASE

NOTE:  	Docket Number CAA-06-2010-xxxx shall be clearly typed on the
check to ensure proper credit.  The check shall also be accompanied by a
transmittal letter and shall reference Respondent’s name and address,
the case name, and docket number of the administrative complaint and
CAFO.  Respondent’s adherence to this request will ensure proper
credit is given when penalties are received for the Region.  Respondent
shall also send a simultaneous notice of such payment, including a copy
of the money order, or check, and transmittal letter to the following:

		Steve Thompson (6EN-AA)

	U.S. EPA, Region 6

		1445 Ross Avenue, Suite 1200

		Dallas, TX  75202-2733

		Region 6 Hearing Clerk

		U.S. EPA, Region 6

		1445 Ross Avenue, Suite 1200

		Dallas, TX  75202-2733

24.	Respondent agrees not to claim, or attempt to claim, a federal
income tax deduction or credit covering all or any part of the civil
penalty paid to the United States Treasurer.

25.	Pursuant to 31 U.S.C. § 3717 and 40 C.F.R. § 13.11, unless
otherwise prohibited by law, EPA will assess interest and late payment
penalties on outstanding debts owed to the United States and a charge to
cover the costs of processing and handling a delinquent claim.
Interest on the civil penalty assessed in this CAFO will begin to accrue
thirty (30) days after the effective date of the CAFO and will be
recovered by EPA on any amount of the civil penalty that is not paid by
the respective due date.  Interest will be assessed at the rate of the
United States Treasury tax and loan rate in accordance with 40 C.F.R. §
13.11(a).  Moreover, the costs of the Agency’s administrative handling
of overdue debts will be charged and assessed monthly throughout the
period the debt is overdue.  See 40 C.F.R. § 13.11(b).

26.	EPA will also assess a fifteen dollar ($15.00) administrative
handling charge for administrative costs on unpaid penalties for the
first thirty (30) day period after the payment is due and an additional
fifteen dollars ($15.00) for each subsequent thirty (30) day period that
the penalty remains unpaid.  In addition, a penalty charge of up to six
percent per year will be assessed monthly on any portion of the debt
which remains delinquent more than ninety (90) days.  See 40 C.F.R. §
13.11(c).  Should a penalty charge on the debt be required, it shall
accrue from the first day payment is delinquent.  See 31 C.F.R. §
901.9(d).  Other penalties for failure to make a payment may also apply.

27.	Pursuant to Section 113(d)(5) of the Act, 42 U.S.C. § 7413(d)(5),
any person who fails to pay on a timely basis a civil penalty ordered or
assessed under this section shall be required to pay, in addition to
such penalty and interest, the United States enforcement expenses,
including, but not limited to, attorneys fees and costs incurred by the
United States for collection proceedings, and a quarterly nonpayment
penalty for each quarter during which such failure to pay persists.
Such nonpayment penalty shall be 10 percent of the aggregate amount of
such person’s outstanding penalties and nonpayment penalties accrued
as of the beginning of each quarter.

B.	ADDITIONAL TERMS OF SETTLEMENT

Community Projects

28.	[Insert language describing the community project(s) (CPs) in
general and referencing the approved final CPs specifically described in
Attachment A to the CAFO]

29.	The Respondent shall submit a Community Project Completion Report
(Completion Report) to EPA within thirty (30) days of the completion of
the community projects described in Paragraph 28 above and Attachment A
to this CAFO.  The Completion Report shall contain the following
information:

A.  	A detailed description of the community project(s) as implemented;

B. 	A description of any operating or logistical problems encountered
and the solutions thereto;

C.  	Itemized final costs with copies of receipts for all expenditures;

D.	Certification that the community projects have been fully implemented
pursuant to the provisions of this CAFO; and

A description of the environmental, emergency preparedness, and/or
public health benefits resulting from implementation of the community
projects.

30.	In itemizing its costs in the Completion Report, Respondent shall
clearly identify and provide acceptable documentation for all eligible
costs.  For purposes of this Paragraph, “acceptable documentation”
includes invoices, purchase orders, or other documentation that
specifically identifies and itemizes the individual costs of the goods
and/or services for which payment is being made.  Canceled drafts do not
constitute acceptable documentation unless such drafts specifically
identify and itemize the individual costs of the goods and/or services
for which payment is being made.

31.     The Respondent shall submit the following certification in the
Completion Report, signed by a responsible corporate official:

I certify under penalty of law that I have examined and am familiar with
the information submitted in this document and all attachments and that,
based on my inquiry of those individuals immediately responsible for
obtaining the information, I believe that the information is true,
accurate, and complete.  I am aware that there are significant penalties
for submitting false information, including the possibility of fines and
imprisonment.

32.	After receipt of the Completion Report described in Paragraph 29
above, EPA will notify the Respondent, in writing, regarding:  (a) any
deficiencies in the Completion Report itself along with a grant of an
additional thirty (30) days for Respondent to correct any deficiencies;
or (b) indicate that EPA concludes that the project has been completed
satisfactorily; or (c) determine that the project has not been completed
satisfactorily.

33. 	If EPA elects to exercise option (a) in Paragraph 32 above, i.e.,
if the Completion Report is determined to be deficient but EPA has not
yet made a final determination about the adequacy of completion itself,
EPA shall permit the Respondent the opportunity to object in writing to
the notification of deficiency given pursuant to Paragraph 32 within ten
(10) days of receipt of such notification.  EPA and the Respondent shall
have an additional thirty (30) days from the receipt by EPA of the
notification of objection to reach agreement on changes necessary to the
Completion Report.  If agreement cannot be reached on any such issue
within this thirty (30) day period, EPA shall provide a written
statement of its decision on adequacy of the completion of the Community
Project(s) to Respondent, which decision shall be final and binding upon
the Respondent.  The Respondent agrees to comply with any requirements
imposed by EPA as a result of any failure to comply with the terms of
this CAFO.  In the event the Community Project(s) are not completed as
contemplated herein, as determined by EPA, the conditions precedent to
the release and covenant not to sue provisions set forth in Paragraph 42
herein shall be deemed not to have been satisfied and Respondent is not
afforded the protections provided by those provisions.

Emission Unit Requirements

34.	Respondent agrees to immediately comply with all emission
limitations/standards and monitoring, recordkeeping, and reporting
requirements set forth in the Emission Unit Requirements Table, except
as provided for in this paragraph.  For those emission units identified
in Attachment B that require additional emission authorizations under
the federally-approved Texas SIP and/or additional monitoring,
recordkeeping, or reporting requirements to ensure continuous compliance
with emission limitations or standards, a written compliance plan and
schedule has been developed as discussed in Paragraph 35 below.  For
those emission units identified in Attachment B that cannot achieve
immediate compliance, the written compliance plan and schedule discussed
in Paragraph 35 below includes provisions sufficient to bring those
units into compliance as expeditiously as possible.

Application for Title V Permit Revision

[Preamble- not be included in final CAFO - This section relates to the
Compliance Plan and Schedule which will form the basis for effecting the
changes identified by the audit report and the Emission Unit
Requirements Table (Attachment B) necessary to bring all emission units
covered by Respondent’s flexible permit back into compliance with the
requirements of the CAA and the federally-approved Texas SIP.  The
Compliance Plan and Schedule will be submitted by the Respondent to the
permitting authority, as part of an application for a Title V revision
request, and it will include, at a minimum, a detailed schedule meeting
the requirements of 30 TAC

§ 122.132 and 40 C.F.R. § 70.5(c)(8), to obtain full emission
requirements for all emission units regulated under Respondent’s
flexible permit, accomplished through applications for amendments to
existing or new authorizations under the federally-approved Texas SIP,
otherwise known as the appropriate federally-enforceable  permits).  If
an additional legally appropriate permitting mechanism is agreed to by
EPA and TCEQ, another permitting option may be agreed to in a CAFO.  The
final CAFOs will be posted for public review before they become final. ]

35.	Within thirty (30) days of the effective date of this CAFO,
Respondent agrees to submit an application to the appropriate permitting
authority for a Title V permit revision to incorporate the requirements
of the Compliance Plan and Schedule, attached as Attachment C to this
CAFO and incorporated herein by reference.  The Compliance Plan and
Schedule is designed to be at least as stringent as the requirements set
for in 40 C.F.R. § 70.5(c)(8) and 30 TAC § 122.132 of the
federally-approved Texas Title V operating permits program.

36.	Respondent agrees to comply with the requirements of the Compliance
Plan and Schedule set forth in Attachment C to this CAFO until the
Compliance Plan and Schedule is approved into  Respondent’s Title V
permit(s) and the revised Title V permit(s) becomes effective, after
which time Respondent will comply with the Compliance Plan and Schedule
in the effective revised Title V permit.

37. 	Nothing in the Compliance Plan and Schedule or this CAFO shall be
interpreted to limit the authority to impose more stringent requirements
in Respondent’s Title V permit(s) or in Respondent’s underlying
authorizations or requirements of the Texas SIP, including the
appropriate federally-enforceable permit(s).

Other Settlement Terms

	38.  	Nothing in this agreement shall be construed as prohibiting,
altering or in any way limiting the ability of EPA to seek any other
remedies or sanctions available by virtue of the Respondent's violation
of this agreement or of the statutes and regulations upon which this
agreement is based, or for the Respondent's violation of any applicable
provision of law.

39.	Any public statement, oral or written, in print, film, or other
media, made by the Respondent making reference to the Community
Project(s) shall include the following language, "This project was
undertaken in connection with the settlement of an enforcement action
taken by the U.S. Environmental Protection Agency for violations of the
federal CAA.”

40.	This CAFO shall not relieve the Respondent of its obligation to
comply with all applicable provisions of federal, state or local law,
nor shall it be construed to be a ruling on, or determination of, any
issue related to any federal, state or local permit, nor shall it be
construed to constitute EPA approval of any equipment or technology
installed by the Respondent in connection with any Community Project
undertaken pursuant to this CAFO.  Nothing in this CAFO shall be
construed to prohibit or prevent the federal, state, or local government
from developing, implementing, and enforcing more stringent standards
through rulemaking, the permit process, or as otherwise authorized or
required.

41.	This document is a “Final Order” as that term is defined in the
CAA Penalty Policy for the purpose of demonstrating a history of
“prior such violations.”

IV. RELEASE AND COVENANT NOT TO SUE

	42.	In consideration of Respondent's obligations under this CAFO and
subject to the limitations and conditions herein, EPA releases and
covenants not to sue Respondent, with respect to the emission units
listed in the Emission Unit Requirements Table in Attachment B to this
CAFO, for the civil violations alleged herein that may have occurred
prior to the effective date of this CAFO.

	43.		The release and covenant not to sue described above does not
extend to any other requirements of the Act, including but not limited
to, requirements that relate to emission units at Respondent’s
facility which are not listed in the Emission Unit Requirements Table
(Attachment B to this CAFO).

44.	The release and covenant not to sue described herein covers
Respondent’s liability for civil violations with respect to an
emission unit listed in the Emission Unit Requirements Table (Attachment
B to this CAFO) if, and only if, Respondent complies with all terms and
conditions of this CAFO, including the receipt of a revised and
effective Title V permit incorporating the Compliance Schedule set forth
in this CAFO.

V.  RETENTION OF ENFORCEMENT RIGHTS

	45.	EPA does not waive any rights or remedies available to EPA for any
violations by the Respondent of any other Federal laws, regulations,
statutes, or permitting programs not the subject of this action.

46.	Nothing in this CAFO shall relieve Respondent of the duty to comply
with all applicable provisions of the CAA.

						VI.  COSTS

	47.		Each party shall bear its own costs and attorneys fees.

IT IS SO AGREED:

FOR THE RESPONDENT:

Date:  ________________

					Name of Authorized party: ___________________

						Title of Authorized Party:____________________

						[Name of Audit Participant]

FOR THE COMPLAINANT:

Date:  _________________

						John Blevins

						Director

						Compliance Assurance and

						    Enforcement Division

FINAL ORDER

	Pursuant to Section 113(d) of the CAA (Act), 42 U.S.C. § 7413(d), and
the Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties,  40 C.F.R. Part 22, the foregoing Consent
Agreement is hereby ratified.  This Final Order shall not in any case
affect the right of EPA or the United States to pursue appropriate
injunctive or other equitable relief or criminal sanctions for any
violations of law.  This Final Order shall resolve only those causes of
action alleged in this CAFO.  The successful completion of the terms of
settlement set forth in Paragraphs 28 through 41 are conditions
precedent to the release and covenant not to sue provisions set forth in
Paragraphs 42 through 44 of the this CAFO.  Nothing in this Final Order
shall be construed to waive, extinguish, or otherwise affect
Respondent’s (or its officers, agents, servants, employees,
successors, or assigns) obligation to comply with all applicable
federal, state, and local statutes and regulations, including the
regulations that were the subject of this action.  The Respondent is
ordered to comply with the terms of settlement as they relate to the
assessment of civil penalties as set forth in the Consent Agreement.  In
accordance with

40 C.F.R. § 22.31(b), this Final Order shall become effective upon
filing with the Regional Hearing Clerk.

Dated __________________

							Michael Barra

							Regional Judicial Officer

							U.S. EPA, Region 6

CERTIFICATE OF SERVICE

	I hereby certify that on the               day of
   , 2010, the original and one copy of the foregoing Complaint and
Consent Agreement and Final Order (“Complaint and CAFO”) was hand
delivered to the Regional Hearing Clerk, U.S. EPA - Region 6, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733, and a true and correct
copy was delivered to the following individual(s) by the method
indicated below:

CERTIFIED MAIL - RETURN RECEIPT REQUESTED: ________________________

Name of authorized party: _______________________

Title of authorized party: ________________________

[Name of Audit Participant]

Address:

	U.S. EPA, Region 6

							Dallas, Texas

 The Civil Penalty Inflation Adjustment Act of 1990, 28 U.S.C. § 2461,
as amended by 31 U.S.C. § 3701 provides for increases in the statutory
penalty provisions ($25,000) cited in the Clean Air Act Stationary
Source Civil Penalty Policy dated October 25, 1991 (CAA Penalty Policy).
 It provides for up to $25,000 per day of violation for violations
occurring on or before January 30, 1997; up to $27,500 per day for each
such violation occurring after January 30, 1997 through March 15, 2004;
up to $32,500 per day for each such violation occurring after March 15,
2004 through January 12, 2009; and up to $37,500 per day for each such
violation occurring after January 12, 2009.

 PAGE

Page   PAGE  31  of 31

 PAGE

Page A-  PAGE  17

Attachment A to Audit Agreement

Model Consent Agreement and Final Order (CAFO)

Texas Flexible Permit Audit Program


[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Rules and Regulations]
[Pages 87934-87937]
[FR Doc No: 2023-27687]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2023-0477; FRL-11532-02-R9]

Interim Final Determination To Stay or Defer Sanctions;
California; San Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is making an interim
final determination that the State of California has submitted
revisions to the California State Implementation Plan (SIP) that
satisfy the requirements under the Clean Air Act (CAA or ``Act'') for
nonattainment areas classified as ``Serious'' for the 1997 annual fine
particulate matter (PM2.5) national ambient air quality
standards (NAAQS), and for contingency measures for the 2006 24-hour
PM2.5 NAAQS and the 2012 annual PM2.5 NAAQS, in
the San Joaquin Valley (SJV) nonattainment area. This determination is
based on a proposed approval, published on July 14, 2023, of SIP
revisions addressing the Serious area requirements for the 1997 annual
PM2.5 NAAQS (except contingency measures) and on proposed
approvals, published elsewhere in this issue of the Federal Register,
of SIP revisions addressing the contingency measure requirements for
the 1997 annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, and the 2012 annual PM2.5 NAAQS. The
effect of this interim final determination is to stay the application
of the offset sanction and to defer the application of the highway
sanction that were triggered by previous EPA actions that included
disapproval of the certain Serious area SIP elements submitted for the
San Joaquin Valley for the 1997 annual PM2.5 NAAQS
(including the contingency measure element), and disapproval of the
contingency measure SIP elements for the 2006 24-hour PM2.5
NAAQS and the 2012 annual PM2.5 NAAQS.

DATES: This interim final determination is effective on December 20,
2023. However, comments will be accepted until January 19, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0477 at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Multimedia submissions
(audio, video, etc.) must be accompanied by a written comment. The
written comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rory Mays, Planning and Analysis
Branch (AIR-2), Air and Radiation Division, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105,<PHONE_NUMBER>, or by email at
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to the EPA.

Table of Contents

I. Background
II. EPA Action
III. Statutory and Executive Order Reviews

I. Background

    On November 26, 2021, the EPA took final action to approve in part
and disapprove in part portions of SIP revisions submitted by the
California Air Resources Board (CARB) to address CAA requirements for
the 1997 annual PM2.5 NAAQS in the San Joaquin Valley
PM2.5 nonattainment area.\1\ Specifically, the EPA approved
the 2013 base year emissions inventories but disapproved the attainment
demonstration and related elements, including the comprehensive
precursor demonstration, five percent annual emissions reductions
demonstration, best available control measures demonstration,
reasonable further progress demonstration, quantitative milestones,
contingency measures, and motor vehicle emissions budgets. In our
November 26, 2021 action, we determined that while the SIP revisions
met the requirements for base year inventories, the SIP revisions did
not meet the applicable requirements for the other listed plan elements
under title I, part D, of the Act and the EPA's implementing
regulations for Serious PM2.5 nonattainment areas that are
subject to CAA section 189(d). Pursuant to section 179 of the CAA and
our regulations at 40 CFR 52.31, this partial disapproval action
started an 18-month clock for the application of the offset sanction
and a 24-month clock for the application of the highway sanction,
beginning on the effective date of our November 26, 2021 action (i.e.,
December 27, 2021), unless the State submits, and the EPA approves, a
SIP revision or revisions that address the deficiencies that formed the
basis for the partial disapproval prior to the expiration of the
sanctions clocks. Application of the offset sanction has been in effect
since June 27, 2023, and the clock for the highway sanction will expire
on December 27, 2023.
---------------------------------------------------------------------------

    \1\ 86 FR 67329.
---------------------------------------------------------------------------

    On November 8, 2021, CARB submitted the ``Attainment Plan Revision
for the 1997 Annual PM2.5 Standard'' (herein referred to as
the ``15 [micro]g/m\3\ SIP Revision'') to amend the previously
disapproved SIP revisions and to address all CAA requirements for the
1997 annual PM2.5 NAAQS except for contingency measures.\2\
On July 14, 2023, the EPA proposed approval of the relevant SIP
revisions, including the 15 [micro]g/m\3\ SIP Revision, that address
all the applicable requirements for the 1997 annual PM2.5
NAAQS in the San Joaquin Valley that had been the subject of our
November 26, 2021 final partial disapproval action, except for the
contingency measure requirements.\3\ On December 5, 2023, the EPA
Region IX Regional Administrator signed a final rule taking action to
approve the SIP revisions that the EPA had proposed to approve on July
14, 2023.
---------------------------------------------------------------------------

    \2\ 88 FR 45276, 45278-45279 (July 14, 2023).
    \3\ 88 FR 45276.
---------------------------------------------------------------------------

    Also on November 26, 2021, the EPA published a separate final rule
to approve in part and disapprove in part portions of SIP revisions
submitted by CARB to address CAA requirements for the 2006 24-hour
PM2.5 NAAQS and the 2012 annual PM2.5 NAAQS in
the San Joaquin Valley.\4\ Specifically, we approved all but the
contingency measure element of the SIP revisions as they pertained to
the Moderate area plan requirements for the 2012 PM2.5
NAAQS, and we disapproved the

contingency measure elements for the 2006 24-hour PM2.5
NAAQS and the 2012 annual PM2.5 NAAQS. Like our final action
on the Serious area plan for the 1997 annual PM2.5 NAAQS,
pursuant to section 179 of the CAA and our regulations at 40 CFR 52.31,
our partial disapproval action started an 18-month clock for the
application of the offset sanction and a 24-month clock for the
application of the highway sanction, beginning on the effective date of
our November 26, 2021 action (i.e., December 27, 2021), unless the
State submits, and the EPA approves, a SIP revision or revisions that
address the deficiencies that formed the basis for the disapproval
prior to the expiration of the sanctions clocks. Application of the
offset sanction has been in effect since June 27, 2023, and the clock
for the highway sanction will expire on December 27, 2023.
---------------------------------------------------------------------------

    \4\ 86 FR 67343 (November 26, 2021).
---------------------------------------------------------------------------

    On June 8, 2023, CARB submitted SIP revisions (herein referred to
as the ``SJV PM2.5 Contingency Measure SIP'' and the
``Residential Wood Burning Contingency Measure'') addressing the
contingency measure requirements for the 1997 annual PM2.5
NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2012 annual
PM2.5 NAAQS for the San Joaquin Valley. The Residential Wood
Burning Contingency Measure would, following a triggering event, expand
the residential wood burning curtailment restrictions if certain
determinations are made by the EPA. On October 16, 2023, CARB
supplemented the SJV PM2.5 Contingency Measure SIP with the
submission of a second PM2.5 contingency measure (referred
to herein as the ``Rural Open Areas Contingency Measure'') that would,
following a triggering event, expand applicability of certain fugitive
dust controls if triggered by a contingency event. In addition, on
November 13, 2023, CARB submitted a state-wide contingency measure SIP
revision, including provisions for PM2.5 contingency
measures in the San Joaquin Valley (herein referred to as the ``Smog
Check Contingency Measure'') that would, following a triggering event,
reduce the model-year vehicle exemption in the State's vehicle
inspection and maintenance program (referred to as the ``Smog Check''
program) by one year.
    In the Proposed Rules section of this issue of the Federal
Register, we have proposed approval of the SJV PM2.5
Contingency Measure SIP, the Residential Wood Burning Contingency
Measure, and the Rural Open Areas Contingency Measure, and, in a
separate rulemaking, we have proposed approval of the Smog Check
Contingency Measure. Based on our July 14, 2023 proposed approval
action with respect to the Serious area SIP elements for the San
Joaquin Valley for the 1997 annual PM2.5 NAAQS (other than
the contingency measure element), and on the proposed approval actions
in this issue of the Federal Register with respect to the contingency
measure SIP and related contingency measures, we are taking this final
rulemaking action, effective upon publication, to stay application of
the offset sanction and defer application of the highway sanction that
were triggered by the EPA's November 26, 2021 disapprovals of the
Serious area plan for the 1997 annual PM2.5 NAAQS, including
the contingency measure element, and the contingency measure elements
for the 2006 24-hour PM2.5 NAAQS and the 2012 annual
PM2.5 NAAQS. We are doing so because we find that the
submissions of the 15 [micro]g/m\3\ SIP Revision, the SJV
PM2.5 Contingency Measure SIP, the Residential Wood Burning
Contingency Measure, the Rural Open Areas Contingency Measure, and the
Smog Check Contingency Measure correct the deficiencies that triggered
such sanctions.
    The EPA is providing the public with an opportunity to comment on
this stay of the offset sanction and deferral of the highway sanction.
If comments are submitted that change our assessment, as described in
this final determination and in our proposed approvals of the SJV
PM2.5 Contingency Measure SIP, the Residential Wood Burning
Contingency Measure, the Rural Open Areas Contingency Measure, and the
Smog Check Contingency Measure, with respect to the deficiencies
identified as the basis for our disapprovals of the contingency measure
elements, we will take final action proposing to lift this stay of the
offset sanction and deferral of the highway sanction under 40 CFR
52.31. If no comments are submitted that change our assessment, then
all sanctions and any sanction clocks triggered by our November 26,
2021 final actions will be permanently terminated on the effective date
of our final approvals of the SJV PM2.5 Contingency Measure
SIP, the Residential Wood Burning Contingency Measure, the Rural Open
Areas Contingency Measure, and the Smog Check Contingency Measure.
    All sanctions and any sanctions clocks associated with the Serious
area SIP elements for the 1997 annual PM2.5 NAAQS for the
San Joaquin Valley (except the contingency measures element) will be
permanently terminated on the effective date of the final approval of
the 15 [micro]g/m\3\ SIP Revision, which was signed by the EPA Region
IX Regional Administrator on December 5, 2023.

II. EPA Action

    We are making an interim final determination to stay the
application of the offset sanction and to defer the application of the
highway sanction associated with our November 26, 2021 disapprovals of
certain Serious area plan elements for the 1997 annual PM2.5
NAAQS for the San Joaquin Valley (including the contingency measure
element) and of the contingency measure elements for the 2006 24-hour
PM2.5 NAAQS and the 2012 annual PM2.5 NAAQS for
the San Joaquin Valley. This determination is based on our concurrent
proposals to approve the SJV PM2.5 Contingency Measure SIP,
the Residential Wood Burning Contingency Measure, the Rural Open Areas
Contingency Measure, and the Smog Check Contingency Measure, and our
July 14, 2023 proposed approval of the 15 [micro]g/m\3\ SIP Revision,
which resolve the deficiencies that triggered sanctions under section
179 of the CAA.
    Because the EPA has preliminarily determined that the submissions
of the 15 [micro]g/m\3\ SIP Revision, the SJV PM2.5
Contingency Measure SIP, the Residential Wood Burning Contingency
Measure, the Rural Open Areas Contingency Measure, and the Smog Check
Contingency Measure, address the deficiencies identified in the
November 26, 2021 partial disapproval actions and are fully approvable,
relief from sanctions should be provided as quickly as possible.
Therefore, the EPA is invoking the good cause exception under the
Administrative Procedure Act (APA) in not providing an opportunity for
comment before this action takes effect (5 U.S.C. 553(b)(3)). However,
by this action, the EPA is providing the public with an opportunity to
comment on the EPA's determination after the effective date, and the
EPA will consider any comments received in determining whether to
reverse such action.
    The EPA believes that notice-and-comment rulemaking before the
effective date of this action is impracticable and contrary to the
public interest. The EPA has reviewed the submissions of the 15
[micro]g/m\3\ SIP Revision, the SJV PM2.5 Contingency
Measure SIP, Residential Wood Burning Contingency Measure, the Rural
Open Areas Contingency Measure, and the Smog Check Contingency Measure
and, through its proposed actions, is indicating that it is more likely
than not that they correct the deficiencies that were the basis for the
actions that started the sanctions clocks. Therefore,

it is not in the public interest to apply sanctions. The EPA believes
that it is necessary to use the interim final rulemaking process to
stay the application of the offset sanction and defer the application
of the highway sanction while we complete our rulemaking process on the
approvability of the CARB's submissions of SIP revisions intended to
address the Serious area plan elements for the San Joaquin Valley for
the 1997 annual PM2.5 NAAQS (including contingency measures)
and the contingency measure requirements for the 2006 24-hour
PM2.5 NAAQS and the 2012 annual PM2.5 NAAQS.
Moreover, with respect to the effective date of this action, the EPA is
invoking the good cause exception to the 30-day notice requirement of
the APA because the purpose of this document is to relieve a
restriction (5 U.S.C. 553(d)(1)).

III. Statutory and Executive Order Reviews

    This action stays or defers application of sanctions and imposes no
additional requirements.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA. This action stays or defers application of sanctions and
imposes no new requirements.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
stays or defers application of sanctions and imposes no new
requirements.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. This action stays or defers application of
sanctions and imposes no new requirements. In addition, this action
does not apply on any Indian reservation land or in any other area
where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. Thus, Executive Order 13175 does not apply to this
action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations. The EPA believes that this type of action does not concern
human health or environmental conditions and therefore cannot be
evaluated with respect to potentially disproportionate and adverse
effects on people of color, low-income populations, and/or Indigenous
peoples. This action stays or defers application of sanctions in
accordance with CAA regulatory provisions and imposes no additional
requirements. Although this action does not concern human health or
environmental conditions, the EPA identifies and addresses
environmental justice concerns by promoting meaningful involvement in
this action through providing the public with an opportunity to comment
on this stay of the offset sanction and the deferral of the highway
sanction as well as the opportunity to comment on our proposed
approvals of the submissions of the SJV PM2.5 Contingency
Measure SIP, Residential Wood Burning Contingency Measure, the Rural
Open Areas Contingency Measure, and the Smog Check Contingency Measure
in the Proposed Rules section of this Federal Register.

K. Congressional Review Act (CRA)

    This action is subject to the Congressional Review Act (CRA), and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. The CRA allows the
issuing agency to make a rule effective sooner than otherwise provided
by the CRA if the agency makes a good cause finding that notice and
comment rulemaking procedures are impracticable, unnecessary, or
contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a
good cause finding for this action as discussed in section II of this
preamble, including the basis for that finding.
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 20, 2024. Filing a petition for
reconsideration by the EPA Administrator of this action does not affect
the finality of this action for the purpose of judicial review nor does
it extend the time within which petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting

and recordkeeping requirements, Sulfur dioxide, Volatile organic
compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-27687 Filed 12-19-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Notices]
[Page 76034]
[FR Doc No: 2012-31089]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2011-0943; FRL9716-6]

National Water Program 2012 Strategy: Response to Climate Change

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is publishing the
final ``National Water Program 2012 Strategy: Response to Climate
Change'' (2012 Strategy). The Strategy describes a set of long-term
visions and goals for the management of water resources in light of
climate change and charts key strategic actions to be taken to achieve
the goals in 2012 and subsequent years. The Strategy will be a roadmap
to inform the National Water Program planning process. The Strategy
also includes goals and strategic actions for EPA in ten geographic
climate regions, largely patterned after the climate regions
established by the U.S. Global Change Research Program (USGCRP). The
final version of the Strategy reflects public comments. The final
Strategy, is available on the Internet at: http://www.epa.gov/water/climatechange.

ADDRESSES: Public comments received on the draft strategy and the final
Strategy are available at the Water Docket, located at the EPA Docket
Center (EPA/DC), EPA West 1301 Constitution Avenue NW., Washington, DC
20004. These documents are also available via the EPA Dockets at http://www.regulations.gov under docket number EPA-HQ-OW-2012-0943.

FOR FURTHER INFORMATION CONTACT: Ms. Elana Goldstein, Office of Water
(4101M), Environmental Protection Agency, Ariel Rios Building, Mail
Code 4101M, 1200 Pennsylvania Avenue NW., Washington, DC 20460;
telephone number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>For more information, visit: http://www.epa.gov/water/climatechange.

SUPPLEMENTARY INFORMATION: Climate change alters the hydrological
background in which EPA's water programs function. Climate change poses
challenges to various aspects of water resource management, including
how to: address risks to drinking water, wastewater and storm water
infrastructure; protect the quality of surface water, ground water and
drinking water; build resilience of watersheds, wetlands, and coastal
and ocean waters; and work with tribal communities to understand the
implications of climate change to their economy and culture. To remain
effective and continue to fulfill its mission, the National Water
Program will need to adapt to already observed and projected climatic
changes. To that end, EPA will continue to collaborate with partners at
the federal, state, tribal, and local levels to develop the requisite
information, tools and strategies.

    Dated: December 17, 2012.
Nancy K. Stoner,
Acting Assistant Administrator for Water.
[FR Doc. 2012-31089 Filed 12-21-12; 4:15 pm]
BILLING CODE 6560-50-P