[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Proposed Rules]
[Pages 72001-72016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28162]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2007-0209; FRL-8745-5]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to Chapters 39, 55, and 116 Which Relate to Public 
Participation on Permits for New and Modified Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing simultaneous limited approval and limited 
disapproval of revisions to the applicable implementation plan for the 
State of Texas which relate to public participation on air permits for 
new and modified sources. With noted exceptions, this proposed limited 
approval and limited disapproval affects portions of SIP revisions 
submitted by Texas on December 15, 1995; July 22, 1998; and the SIP 
revisions submitted October 25, 1999. EPA is taking comments on this 
proposal and plans to follow with a final action.

DATES: Any comments must arrive by January 26, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2007-0209, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.

[[Page 72002]]

     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Stanley M. Spruiell at 
[email protected].
     Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), 
at fax number 214-665-7263.
     Mail: Stanley M. Spruiell, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
     Hand or Courier Delivery: Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only 
between the hours of 8 a.m. and 4 p.m. weekdays except for legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0209. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below to make an appointment. If possible, please 
make the appointment at least two working days in advance of your 
visit. There will be a 15 cent per page fee for making photocopies of 
documents. On the day of the visit, please check in at the EPA Region 6 
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittals are also available for public inspection at 
the State Air Agency listed below during official business hours by 
appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; 
fax number 214-665-7263; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the following 
terms have the meanings described below:
     ``We,'' ``us,'' and ``our'' refer to EPA.
     ``NSR'' means new source review.
     ``PSD'' means prevention of significant deterioration of 
air quality, as established under 40 CFR 51.166.
     ``NNSR'' means nonattainment area new source review.
     ``Act'' and ``CAA'' mean the Clean Air Act.
     ``SIP'' means State Implementation Plan.
     ``TSD'' means Technical Support Document for this action.
     ``PAL'' means Plantwide Applicability Limitation, as 
established under 40 CFR 51.165(f) or 51.166(w).
     ``NAAQS'' means National Ambient Air Quality Standards, as 
established under 40 CFR part 50.

Table of Contents

I. What regulations did Texas submit for inclusion into the SIP?
II. What are we proposing?
III. How do the revised rules strengthen the existing SIP?
IV. What are the rule deficiencies?
V. Do Texas' public participation rules meet federal requirements?
VI. Other Public Participation Concerns
VII. Why are we taking no action on some provisions of the 
submittal?
VIII. Public Comment and Proposed Action
IX. Statutory and Executive Order Reviews

I. What regulations did Texas submit for inclusion into the SIP?

    On October 25, 1999, Texas submitted revisions to Chapters 39, 55, 
and 116 which include rules that relate to public participation on air 
permits for authorization of new and modified sources, including 
amendments and renewals. In addition, portions of the submittals dated 
December 15, 1995, and July 22, 1998, contain provisions relevant to 
this action. Hereafter, we refer to these submittals as the ``revised 
rules.'' These SIP packages include the following rules:
    A. The December 15, 1995, submittal includes Texas' submittal of 
section 116.312--Public Notification and Comment Procedures. Section 
II.A of this preamble contains additional information on the December 
15, 1995, submittal.
    B. The July 22, 1998, submittal includes Texas' submittal of repeal 
and readoption (with nonsubstantive revisions) of section 116.312--
Public Notification and Comment Procedures. Section II.A of this 
preamble contains additional information on the July 22, 1998, 
submittal.
    C. The October 25, 1999, submittal includes the following revisions 
related to this action. Section II.A of this preamble contains 
additional information on the October 25, 1999, submittal.
     New rules affecting Chapter 39--Public Notice \1\--are as 
follows: Section 39.201--Application for a Preconstruction Permit; 
section 39.401---Purpose; section 39.403--Applicability; section 
39.405--General Notice Provisions; section 39.409--Deadline for Public 
Comment, Requests for Reconsideration, contested Case Hearing, or 
Notice and Comment Hearing; section 39.411--Text of Public Notice; 
section 39.413--Mailed Notice; section 39.418--Notice of Receipt of 
Application and Intent to Obtain Permit;

[[Page 72003]]

section 39.419--Notice of Application and Preliminary Determination; 
section 39.420--Transmittal of the Executive Director's Response to 
Comments and Decision; section 39.423--Notice of Contested Case 
Hearing; section 39.601--Applicability; section 39.602--Mailed Notice; 
section 39.603--Newspaper Notice; section 39.604--Sign-Posting; and 
section 39.605--Notice to Affected Agencies.
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    \1\ Texas submitted subsequent revisions to Chapter 39 on July 
31, 2002; and March 9, 2006. These changes are parts of separate SIP 
revisions which are currently under review. EPA will address these 
changes to Chapter 39 in separate actions.
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     New rules affecting Chapter 55--Requests for 
Reconsideration and Contested Case Hearing--are as follows: Section 
55.1--Applicability; section 55.21--Requests for Contested Case 
Hearing, Public Comment; section 55.101--Applicability; section 
55.103--Definitions; section 55.150--Applicability; section 55.152--
Public Comment Period; section 55.154--Public Meetings; section 
55.156--Public Comment Processing; section 55.200--Applicability; 
section 55.201--Requests for Reconsideration and Contested Case 
Hearing; section 55.203--Determination of Affected Person; section 
55.205--Request by Group or Association; section 55.209--Processing 
Requests for Reconsideration or Contested Case Hearing; and section 
55.211--Commission Action or Requests for Reconsideration and Contested 
Case Hearing.
     Rules revisions affecting Chapter 116--Control of Air 
Pollution by Permits for New Construction and Modification are--as 
follows: Section 116.111--General Application; section 116.114--
Application Review Schedule; section 116.116--Changes to Facilities; 
section 116.183--Public Notice Requirements; section 116.312--Public 
Notification and Comment Procedures; and section 116.740--Public 
Notice.
     Texas submitted repeal of the following regulation: 
section 116.124--Public Notice of Compliance History.
    The existing SIP-approved regulations which relate to public 
participation for air quality permits are as follows: Sections 
116.130--Applicability; 116.131--Public Notification Requirements; 
116.132--Public Notice Format; 116.133--Sign Posting Requirements; 
116.134--Notification of Affected Agencies; 116.136--Public Comment 
Procedures; and 116.137--Notification of Final Agency Action. These 
regulations will now apply to air quality permits declared 
administratively complete before September 1, 1999. EPA proposes to add 
a notation, in addition to the applicability statement at section 
39.403 of the revised rule, to this effect to the existing SIP. In 
addition, section 116.312--Public Notification and Comment Procedures, 
which applies to permit renewals, was amended to replace cross 
references to the public notification procedures in sections 116.130 
through 116.137 with a cross reference to applicable procedure in 
Chapter 39.
    The revised rules will replace the existing SIP rules for public 
participation for air quality permits declared administratively 
complete on or after September 1, 1999. The Texas public participation 
procedures were previously located in the subchapter of the SIP 
applicable to each type of permitting action. Chapter 39 of the Texas 
Administrative Code (TAC) consolidates public participation 
requirements for most air quality permitting actions (as well as 
permits issued under other environmental statutes). Applicability of 
the rules in Chapter 39 to different types of air permits is determined 
by the general applicability statement in subchapter H. Additional 
requirements that are specific to air quality permits are found in 
subchapter K. Section 39.403(b) lists the types of air quality permits 
subject to the public participation requirements in Chapter 39:
     Air quality permits under Texas Health and Safety Code 
(THSC), Section 382.0518 (preconstruction permit) and Section 382.055 
(review and renewal of preconstruction permit).\2\ See section 
39.403(8).
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    \2\ Section 382.0518 and section 382.055 of the THSC currently 
apply to permit applications, modifications and renewals under 
Chapter 116 of the Texas SIP for minor and major new source review 
permits.
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     Applications for permit amendments to air quality permits 
under Section 116.116(b) (changes to facilities) that involve 
construction of a new facility; modification of an existing facility 
(as defined in Section 116.10) \3\ that results in an increase in 
allowable emissions equal to or greater than 250 tons per year (tpy) of 
carbon monoxide (CO) or nitrogen oxides (NOX); or 25 tpy of 
volatile organic compounds (VOC) or sulfur dioxide (SO2) or 
inhalable particulate matter (PM10); or 25 tpy of any other 
air contaminant except carbon dioxide, water, nitrogen, methane, 
ethane, hydrogen, and oxygen; or other changes within the discretion of 
the Executive Director.\4\ See section 39.403(8).
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    \3\ Note that EPA has not acted on the definition of 
``modification of an existing facility'' at section 116.10 and so it 
is not currently part of the approved SIP.
    \4\ Section 39.403(b)(8) refers to emission quantities defined 
in section 106.4(a)(1) of this title (relating to Requirements for 
Permitting by Rule) for sources defined in sections 106.4(a)(2) and 
(3). The defined emission quantities in Section 106.4 are emissions 
equal to or greater than 250 tpy of CO or NOX; or 25 tpy 
of VOC or SO2 or PM10; or 25 tpy of any other 
air contaminant except carbon dioxide, water, nitrogen, methane, 
ethane, hydrogen, and oxygen.
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     Initial issuance of flexible permits under Chapter 116, 
Subchapter G, and amendments to flexible permits under Sections 
116.710(a)(2) and (3) that involve construction of a new facility, 
modification of an existing facility that results in an increase in 
allowable emissions equal to or greater than 250 tpy of CO or 
NOX; or 25 tpy of VOC or SO2 or PM10; 
or 25 tpy of any other air contaminant except carbon dioxide, water, 
nitrogen, methane, ethane, hydrogen, and oxygen or other changes within 
the discretion of the Executive Director.\5\ See section 39.403(8).
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    \5\ Note that this provision also refers to the emission 
quantities defined in Section 106.4 of the SIP.
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     Applications for construction or reconstruction subject to 
Chapter 116, Subchapter C for hazardous air pollutants.\6\ See section 
39.403(9).
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    \6\ The provisions of Subchapter C were later recodified into 
Subchapter E in a separate SIP submittal. We will address this 
recodification in a separate action. Also see section VII.A of this 
document for further discussion on the provision for hazardous air 
pollutants.
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     Concrete batch plants under Chapter 106 unless the 
facility is to be temporarily located in or contiguous to the right of 
way of a public works project. See section 39.403(10).\7\
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    \7\ See discussion in section VI.G of this preamble for further 
information on public notice for concrete batch plants.
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     The Chapter 39 requirements also apply to PALs through a 
cross-reference at section 116.194.

II. What are we proposing?

A. Our Proposal

    We have evaluated the revised rules for enforceability and 
consistency with the CAA, 40 CFR Part 51, and EPA policy and guidance. 
We have determined that the revised rules contain some provisions that 
meet or exceed federal requirements. We have also determined that some 
provisions are not consistent with federal requirements and therefore, 
are not fully approvable. The deficient provisions of the revised rule 
are not separable from the remainder of the rule. As authorized in 
sections 110(k)(3) and 301(a) of the Act, we are proposing simultaneous 
limited approval and limited disapproval of the revised rules. We are 
proposing limited approval because the rules, as a whole, strengthen 
the existing SIP and facilitate enforcement of the State's public 
participation requirements. We are simultaneously proposing limited 
disapproval because the provisions identified in section IV of

[[Page 72004]]

this preamble are not consistent with applicable federal requirements. 
Final limited approval will incorporate the revised rule in its 
entirety into the Texas SIP. We are not acting on the provisions of the 
submittal discussed in section VII of this notice. Note that some of 
the public participation rules we are considering today apply to other 
rules that have not yet been approved into the SIP. For example, we 
have not proposed action on Texas' NSR PAL, flexible permit, qualified 
facility or NSR reform rules, however some of the rules we are 
considering today are applicable to them. These other rules will be 
reviewed in separate actions. Our action on any provision of this rule 
which refers to or implements a provision that EPA has not approved 
does not imply EPA proposed action on the pending rule. The Chapter 39 
revised rules consolidate public participation requirements applicable 
to the pending rules. Final action on the revised rule will facilitate 
review of the pending rules.\8\
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    \8\ See letter in the docket for this action from Glenn Shankle, 
Executive Director of TCEQ, to Larry Starfield, Deputy Regional 
Administrator for EPA Region 6, dated June 13, 2008, noting that 
action on TCEQ's public participation rule was necessary to resolve 
issues in another pending SIP submission.
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    Except where noted below, EPA proposes limited approval and limited 
disapproval (LALD) of the following regulations:

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                                                                     State
       State citation              Title         Current SIP       submittal      Type of SIP    Proposed action
                                                    status           dates          revision
----------------------------------------------------------------------------------------------------------------
                                            Chapter 39--Public Notice
                               Subchapter D--Public Notice of Air Quality Permits
----------------------------------------------------------------------------------------------------------------
Section 39.201..............  Application for  Not in existing        10/25/99  New rule.......  LALD.
                               a                SIP.
                               Preconstructio
                               n Permit.
----------------------------------------------------------------------------------------------------------------
                               Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
Section 39.401..............  Purpose........  Not in existing        10/25/99  New rule.......  LALD.
                                                SIP.
Section 39.403..............  Applicability..  Not in existing        10/25/99  New rule State   LALD. The SIP
                                                SIP.                             did not submit   will not
                                                                                 paragraphs       include
                                                                                 (b)(1) through   paragraphs
                                                                                 (b)(7).          (b)(1) through
                                                                                No action on      (b)(7) and
                                                                                 paragraph        (b)(9).
                                                                                 (b)(9). See
                                                                                 section VII..
Section 39.405..............  General Notice   Not in existing        10/25/99  New rule. State  LALD. The SIP
                               Provisions.      SIP.                             did not submit   will not
                                                                                 subsections      include
                                                                                 (a) through      subsections
                                                                                 (e) and          (a) through
                                                                                 paragraph        (e) and
                                                                                 (f)(2).          paragraph
                                                                                                  (f)(2).
Section 39.409..............  Deadline for     Not in existing        10/25/99  New rule.......  LALD.
                               Public           SIP.
                               Comment,
                               Requests for
                               Reconsideratio
                               n, Contested
                               Case Hearing,
                               or Notice of
                               Comment
                               Hearing.
Section 39.411..............  Text of Public   Not in existing        10/25/99  New rule. State  LALD. The SIP
                               Notice.          SIP.                             did not submit   will not
                                                                                 paragraph        include
                                                                                 (b)(7).          paragraphs
                                                                                No action on      (b)(7),
                                                                                 paragraphs       (b)(11),
                                                                                 (b)(11),         (b)(13),
                                                                                 (b)(13),         (b)(14), and
                                                                                 (b)(14), and     (c)(7).
                                                                                 (c)(7). See
                                                                                 section VII..
Section 39.413..............  Mailed Notice..  Not in existing        10/25/99  New rule. State  LALD. The SIP
                                                SIP.                             did not submit   will not
                                                                                 paragraphs (1)   include
                                                                                 through (8),     paragraphs (1)
                                                                                 (10), and (13).  through (8),
                                                                                                  (10), and
                                                                                                  (13).
Section 39.418..............  Notice of        Not in existing        10/25/99  New rule. State  LALD. The SIP
                               Receipt of       SIP.                             did not submit   will not
                               Application                                       paragraphs       include
                               and Intent to                                     (b)(1) through   paragraphs
                               Obtain Permit.                                    (b)(2).          (b)(1) through
                                                                                                  (b)(2).
Section 39.419..............  Notice of        Not in existing        10/25/99  New rule. State  LALD. The SIP
                               Application      SIP.                             did not submit   will not
                               and                                               subsection (c).  include
                               Preliminary                                                        subsection
                               Determination.                                                     (c).
Section 39.420..............  Transmittal of   Not in existing        10/25/99  New rule. State  LALD. The SIP
                               Executive        SIP.                             did not submit   will not
                               Director's                                        paragraph        include
                               Response to                                       (c)(2) and       paragraph
                               Comments and                                      subsection (e).  (c)(2) and
                               Decision.                                                          subsection
                                                                                                  (e).
Section 39.423..............  Notice of        Not in existing        10/25/99  New rule.......  LALD.
                               Contested Case   SIP.
                               Hearing.
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                                Subpart K--Public Notice for Air Quality Permits
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Section 39.601..............  Applicability..  Not in existing        10/25/99  New rule.......  LALD.
                                                SIP.
Section 39.602..............  Mailed Notice..  Not in existing        10/25/99  New rule.......  LALD.
                                                SIP.
Section 39.603..............  Newspaper        Not in existing        10/25/99  New rule.......  LALD.
                               Notice.          SIP.

[[Page 72005]]

 
Section 39.604..............  Sign-Posting...  Not in existing        10/25/99  New rule.......  LALD.
                                                SIP.
Section 39.605..............  Notice to        Not in existing        10/25/99  New rule.......  LALD.
                               Affected         SIP.
                               Agencies.
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                       Chapter 55--Requests for Reconsideration and Contested Case Hearing
                                           Subchapter A--Applicability
----------------------------------------------------------------------------------------------------------------
Section 55.1................  Applicability..  Not in existing        10/25/99  New rule.......  No action. See
                                                SIP.                                              section VII.
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                                     Subchapter B--Requests, Public Comment
----------------------------------------------------------------------------------------------------------------
Section 55.21...............  Requests for     Not in existing        10/25/99  New rule.......  No action. See
                               Contested Case   SIP.                                              section VII.
                               Hearing,
                               Public Comment.
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                                   Subchapter D--Applicability and Definitions
----------------------------------------------------------------------------------------------------------------
Section 55.101..............  Applicability..  Not in existing        10/25/99  New rule.......  No action. See
                                                SIP.                                              section VII.
Section 55.103..............  Definitions....  Not in existing        10/25/99  New rule.......  No action. See
                                                SIP.                                              section VII.
----------------------------------------------------------------------------------------------------------------
                                Subchapter E--Public Comment and Public Meetings
----------------------------------------------------------------------------------------------------------------
Section 55.150..............  Applicability..  Not in existing        10/25/99  New rule.......  LALD.
                                                SIP.
Section 55.152..............  Public Comment   Not in existing        10/25/99  New rule. State  LALD. The SIP
                               Period.          SIP.                             did not submit   will not
                                                                                 paragraphs       include
                                                                                 (a)(3) through   paragraphs
                                                                                 (a)(5).          (a)(3) through
                                                                                                  (a)(5).
Section 55.154..............  Public Meetings  Not in existing        10/25/99  New rule.......  LALD.
                                                SIP.
Section 55.156..............  Public Comment   Not in existing        10/25/99  New rule.......  LALD.
                               Processing.      SIP.
----------------------------------------------------------------------------------------------------------------
              Subchapter F--Requests for Reconsideration and Contested Case Hearing; Public Comment
----------------------------------------------------------------------------------------------------------------
Section 55.200..............  Applicability..  Not in existing        10/25/99  New rule.......  No action. See
                                                SIP.                                              section VII.
Section 55.201..............  Requests for     Not in existing        10/25/99  New rule.......  No action. See
                               Reconsideratio   SIP.                                              section VII.
                               n and
                               Contested Case
                               Hearing.
Section 55.203..............  Determination    Not in existing        10/25/99  New rule.......  No action. See
                               of Affected      SIP.                                              section VII.
                               Person.
Section 55.205..............  Request by       Not in existing        10/25/99  New rule.......  No action. See
                               Group or         SIP.                                              section VII.
                               Association.
Section 55.209..............  Processing       Not in existing        10/25/99  New rule.......  No action. See
                               Requests for     SIP.                                              section VII.
                               Reconsideratio
                               n or Contested
                               Case Hearing.
Section 55.211..............  Commission       Not in existing        10/25/99  New rule.......  No action. See
                               Action on        SIP.                                              section VII.
                               Requests for
                               Reconsideratio
                               n and
                               Contested Case
                               Hearing.
----------------------------------------------------------------------------------------------------------------
              Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
                                     Subchapter B--New Source Review Permits
                                         Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.111.............  General          In existing SIP        10/25/99  Redesignated     LALD to add new
                               Application.     as approved 8/                   pre-existing     subsection
                                                28/07, 72 FR                     text as          (b). The SIP
                                                41998.                           subsection       will not
                                               The existing                      (a). This        include
                                                SIP does not                     change was       paragraph
                                                include                          approved 9/6/    (a)(2)(K).
                                                paragraph                        06, 71 FR
                                                (a)(2)(K) and                    52664.
                                                subsection                      Added new
                                                (b)..                            subsection
                                                                                 (b)..
Section 116.114.............  Application      In existing SIP        10/25/99  Revision to      LALD for all
                               Review           as approved 9/                   paragraphs       submitted SIP
                               Schedule.        18/02, 67 FR                     (a)(2),          revisions.
                                                58709.                           (b)(1), and
                                                                                 (b)(2); and
                                                                                 the addition
                                                                                 of new
                                                                                 subsection (c).

[[Page 72006]]

 
Section 116.116.............  Changes to       In existing SIP        10/25/99  Revised          LALD for
                               Facilities.      as approved 11/                  subsection (d)   addition of
                                                14/03, 68 FR                     and paragraphs   paragraph
                                                64548.                           (d)(1) and       (b)(4). The
                                               The existing                      (d)(2). This     SIP will not
                                                SIP does not                     change was       include
                                                include                          approved 11/14/  paragraph
                                                sections                         03, 68 FR        (b)(3) and
                                                116.116(b)(3),                   64548.           subsections
                                                (b)(4), (e),                    Added new         (e) through
                                                and (f)..                        paragraph        (f).
                                                                                 (b)(4)..
----------------------------------------------------------------------------------------------------------------
                                         Division 2--Compliance History
----------------------------------------------------------------------------------------------------------------
Section 116.124.............  Public Notice    In existing SIP        10/25/99  Section          Removal of
                               of Compliance    as approved 9/                   repealed.        section
                               History          18/02, 67 FR                                      116.124 from
                               Section.         58709.                                            the SIP.
----------------------------------------------------------------------------------------------------------------
 Subchapter C--Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, Sec.
                                             112(g), 40 CFR Part 63)
----------------------------------------------------------------------------------------------------------------
Section 116.183.............  Public Notice    Not in existing         7/22/98  EPA took no      No action on
                               Requirements.    SIP.                             action on        revision to
                                                                                 section          section
                                                                                 116.183 as       116.183 as
                                                                                 submitted 7/22/  submitted 10/
                                                                                 98. See 67 FR    25/99. See
                                                                                 58699 (9/18/     section VII.
                                                                                 02).
                                                                      10/25/99  Revision to
                                                                                 change cross
                                                                                 reference from
                                                                                 sections
                                                                                 116.130
                                                                                 through
                                                                                 116.137 to
                                                                                 applicable
                                                                                 provisions in
                                                                                 Chapter 39.
----------------------------------------------------------------------------------------------------------------
                                          Subchapter D--Permit Renewals
----------------------------------------------------------------------------------------------------------------
Section 116.312.............  Public           In existing SIP  12/15/95 and 7/ 7/22/98          LALD for
                               Notification     as approved 3/           22/98   submittal        changes
                               and Comment      10/06, 71 FR                     repealed and     submitted 12/
                               Procedures.      12285.                           revised pre-     15/95, 7/22/
                                                                                 existing         98, and 10/25/
                                                                                 section.         99.
                                                                                Changes were
                                                                                 non-
                                                                                 substantive
                                                                                 housekeeping
                                                                                 changes to
                                                                                 include cross
                                                                                 references to
                                                                                 current rule..
                                                                      10/25/99  Revised to
                                                                                 change cross
                                                                                 reference from
                                                                                 Chapter 116 to
                                                                                 Chapter 39.
----------------------------------------------------------------------------------------------------------------
                                         Subchapter G--Flexible Permits
----------------------------------------------------------------------------------------------------------------
Section 116.740.............  Public Notice..  Not in existing        10/25/99  Revised to       No action. See
                                                SIP.                             change cross     section VII.
                                                                                 reference from
                                                                                 Chapter 116 to
                                                                                 Chapter 39.
----------------------------------------------------------------------------------------------------------------

B. What is limited approval and limited disapproval?

    Under section 110(k)(3) of the CAA, EPA may fully approve or fully 
disapprove a State submittal. Where portions of the State submittal are 
separable, EPA may approve the portions of the submittal that meet the 
requirements of the CAA, and disapprove the portions of the submittal 
that do not meet the requirements of the CAA. When a submittal is not 
separable, EPA can adopt a limited approval and limited disapproval 
consistent with section 301(a) and 110(k)(3) of the Act.
    A limited approval action applies to the entire rule because EPA 
finds that approval of the entire rule will strengthen the State's SIP. 
In proposing a limited approval, EPA simultaneously proposes a limited 
disapproval of the submittal because it contains deficiencies and, as 
such, does not fully meet all of the requirements of the Act. Under a 
final limited approval, the State's entire submittal is incorporated 
into the SIP and becomes fully federally enforceable. Where the 
submittal addresses a mandatory requirement of the Act, final limited 
disapproval starts a sanctions clock and a federal implementation plan 
(FIP) clock. Under section 179(a), if EPA disapproves a submittal of a 
requirement under the CAA, based on the submittal's failure to meet one 
or more of the elements required by the Act, the sanctions set forth in 
section 179(b) become applicable, unless the deficiency has been 
corrected within 18 months of disapproval. Section 179(b) of the Act 
and 40 CFR 52.31 of our regulations provide two sanctions available to 
the Agency: increasing the offset requirements and withholding highway 
funding. Moreover, the final limited disapproval may trigger a 24-month

[[Page 72007]]

clock to adopt a FIP requirement under section 110(c). If the State 
submits an approvable rule revision during the sanction clock period, 
EPA may propose approval of the rule and take interim final action, 
effective upon publication, to stay the sanctions. Final approval of 
the rule revision correcting the deficiency terminates the FIP clock.

III. How do the revised rules strengthen the existing SIP?

    The SIP revisions submitted on December 15, 1995; July 22, 1998; 
and October 25, 1999, as a whole, strengthen the SIP compared to the 
corresponding provisions in the existing SIP. Below is a summary of 
some revisions that strengthen the SIP. The TSD includes detailed 
analyses of how the SIP is strengthened.
     The general requirement for publishing notice in section 
116.130(a) was changed by section 39.418 to provide a uniform time for 
publication of the notice of the application (within 30 days of 
determination of administrative completeness).
     Previously, permit amendments were subject to notice at 
the discretion of the Executive Director of TCEQ, without specific 
criteria included in the rule (section 116.130(a)). This provision was 
removed, thus requiring notice of amendment applications (section 
39.403(b)(8)).
     Previously, a copy of the application was required to be 
available for public inspection in Austin, TX, and the appropriate 
regional offices of the TCEQ (sections 116.131(b) and 116.132(7)). The 
revised rules also require a copy of the notice to be placed in a 
public place, available for inspection and copying, in the municipality 
in or nearest to the location of the facility that is the subject of 
the application. See section 39.405.
     The revised rules add the opportunity to request a public 
meeting and allow the Executive Director to determine whether 
significant public interest exists to hold a public meeting. If held, a 
written response is provided to oral comments made together with any 
timely written comments. In addition, this response to comments (RTC) 
is considered by the Commission if it considers any contested case 
hearing requests in a Commission Meeting. The RTC is provided to all 
commenters and persons who request to be on a mailing list related to 
the application. See sections 39.420, 55.152, 55.154, and 55.156.
     Notice of preliminary decision and draft permit was 
extended from applying only to NNSR and PSD permits (see section 
116.132(a)(6)) to any minor permit or permit amendment for which a 
contested case hearing is requested by an affected person in response 
to the Notice of Receipt of Application and Intent to Obtain a Permit. 
See section 39.419.
     Note also that the Texas rule contains some provisions 
that exceed federal requirements, such as sign posting (section 
39.604), a ``display type'' newspaper notice (section 39.603(c)(2)), 
and alternate language notice in newspaper and sign posting (sections 
39.405(h) and 39.604(e)).

IV. What are the rule deficiencies?

    Notwithstanding the fact that these rules strengthen the existing 
SIP, they do not meet all of the minimum applicable federal 
requirements that relate to public participation. Each notation below 
is discussed in detail in Section V.

A. New or Modified Minor NSR Sources

    Generally, the minor NSR public participation rules identified 
below do not require any initial public participation for some 
permitting actions or do not require the TCEQ to provide the agency's 
air quality analysis and proposal to approve or disapprove the permit 
in other permitting actions.
     Under section 39.419(e), for new or modified minor NSR 
sources or minor modifications at major sources, the rules do not 
require public notice and the opportunity for comment on the State's 
analysis of the effect of construction or modification on ambient air 
quality, including the agency's proposed approval or disapproval, as 
required by 40 CFR 51.161(a) and (b), unless a contested case hearing 
is requested and not withdrawn after notice of application and intent 
to obtain a permit is published.
     Under section 39.403(b)(8), for a minor NSR permit 
amendment or minor modification under section 116.116(b), (where there 
is a change in the method of control of emissions; a change in the 
character of the emissions; or an increase in the emission rate of any 
air contaminant) the existing SIP requires the permit holder to apply 
for and receive approval of a permit amendment. However, the revised 
rules do not require any public participation as required by 40 CFR 
51.161(a) and (b) unless the change involves construction of a new 
facility or modification of an existing facility that results in an 
increase in allowable emissions equal to or greater than 250 tpy of CO 
or NOX; or 25 tpy of VOC or SO2 or 
PM10; or 25 tpy of any other air contaminant except carbon 
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or 
other changes within the discretion of the Executive Director.
     Under section 39.419(e)(1)(C), for any amendment, 
modification, or renewal of a major or minor source which requires a 
permit application, the rules do not require public notice and the 
opportunity for comment on the State's analysis of the effect of 
construction or modification on ambient air quality, including the 
agency's proposed approval or disapproval, as required by 40 CFR 
51.161(a) and (b), if the amendment, modification, or renewal would not 
result in an increase in allowable emissions and would not result in 
the emission of an air contaminant not previously emitted unless the 
application involves a facility for which the applicant's compliance 
history contains violations that are unresolved and that constitute a 
recurring pattern of egregious conduct which demonstrates a consistent 
disregard for the regulatory process, including the failure to make a 
timely and substantial attempt to correct the violations.
     Also, section 39.403(b)(8), Applicability, of the revised 
rule refers to two State statutory provisions, THSC section 382.0518 
(preconstruction permit) and section 382.055 (review and renewal of 
preconstruction permit). For clarity and for approvability into the 
SIP, section 39.403(b) should be revised to refer to the corresponding 
sections of the Texas SIP.

B. Projects Subject to PSD

    The revised rules do not contain the following requirements for 
projects subject to the regulations for PSD:
     For a new or modified source subject to PSD, the revised 
rules do not require the TCEQ to provide an opportunity for a public 
hearing for interested persons to appear and submit written or oral 
comment on the air quality impact of the source, alternatives to it, 
the control technology required, and appropriate considerations and to 
provide notice of the opportunity for a public hearing, as required by 
40 CFR 51.166(q)(v) and section 165(a)(2) of the Act.
     For a new or modified source subject to PSD, the revised 
rules do not require that the public notice of a PSD permit contain the 
degree of increment consumption that is expected from the source or 
modification as required by 40 CFR 51.166(q)(iii) and CAA section 
165(a)(2).
     For a new or modified source subject to PSD, the revised 
rules do not require a copy of the public notice of a PSD permit to be 
sent to State and local air pollution control agencies, the chief

[[Page 72008]]

executives of the city and county where the source would be located and 
any State or Federal Land Manager or Indian Governing Body whose lands 
may be affected by emissions from the source or modification, as 
required by 40 CFR 51.166(q)(iv).
     For a new or modified source subject to PSD, the rules do 
not require that response to comments be available prior to final 
action on the PSD permit, as required by 40 CFR 51.166(q)(vi) and 
(viii).
     For a new or modified source subject to PSD, the revised 
rules do not contain a definition of a final appealable decision for a 
PSD permit. We request further information about how and when 
commenters are informed of the Agency's final decision, access to 
response to comments and timing for judicial appeal, in order to 
provide an opportunity for State court judicial review.

C. Project for a PAL

    The revised rules do not meet the following provisions for PALs:
     For PALs for existing major stationary sources, there is 
no provision that PALs be established, renewed, or increased through a 
procedure that is consistent with 40 CFR 51.160 and 51.161, including 
the requirement that the reviewing authority provide the public with 
notice of the proposed approval of a PAL permit and at least a 30-day 
period for submittal of public comment, consistent with the Federal PAL 
rules at 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11).
     For PALs for existing major stationary sources, there is 
no requirement that the State address all material comments before 
taking final action on the permit, consistent with 40 CFR 51.165(f)(5) 
and 51.166(w)(5).
     The applicability provision in section 39.403 does not 
include PALs, despite the cross-reference to Chapter 39 in Section 
116.194.

D. Project for a Flexible Permit

    The rules do not meet the following provisions for Flexible 
Permits:
     For initial issuance of a flexible permit to establish a 
minor NSR applicability cap or an increase in a flexible permit cap, 
the rules do not require 30-day notice and comment on information 
submitted by the owner or operator and the agency's analysis of the 
effect of the permit on ambient air quality, including the agency's 
proposed approval or disapproval as required by 40 CFR 51.161.
     Where PSD and NNSR terms and conditions are modified or 
eliminated when the permit is incorporated into a flexible permit, the 
rules do not require public participation consistent with 40 CFR 51.161 
and 51.166(q).

V. Do Texas's public participation rules meet federal requirements?

A. Minor NSR Regulatory Requirements

1. What public participation requirements for minor NSR programs are 
necessary for approval of the SIP revision?
    The CAA at section 110(a)(2)(C) requires states to include a minor 
NSR program in their SIP to regulate modifications and new construction 
of stationary sources within the area as necessary to assure the 
national ambient air quality standards (NAAQS) are achieved. EPA's 
implementing regulations at 40 CFR 51.160-51.164 are intended to ensure 
that new source growth is consistent with maintenance of the NAAQS. 40 
CFR 51.160(e) requires states to identify types and sizes of facilities 
which will be subject to review under their minor NSR program. For 
sources identified under Sec.  51.160(e), Sec.  51.160(a) requires that 
the SIP include legally enforceable procedures that enable the State or 
local agency to determine whether construction or modification of a 
facility, building, structure or installation, or combination of these 
will result in a violation of applicable portions of the control 
strategy; or interference with attainment or maintenance of a national 
standard in the State in which the proposed source (or modification) is 
located or in a neighboring State.
    Sources subject to the legally enforceable procedures under 40 CFR 
51.160(a) are also subject to the minimum public participation 
requirements at 40 CFR 51.161, entitled Public Availability of 
Information. In particular, 40 CFR 51.161(a) requires a State to 
provide the opportunity for public comments on information submitted by 
owners and operators. 40 CFR 51.161(a) also requires the public 
information to include the agency's analysis of the effect of 
construction or modification on ambient air quality, including the 
agency's proposed approval or disapproval. 40 CFR 51.161(b) requires 
that the State ensure availability of the information submitted by the 
owner or operator and the State's analysis of the effect on air quality 
for public inspection in at least one location in the affected area, 
that the State provide a 30-day public comment period on that 
information and that notice of the public comment period should be by 
prominent advertisement in the area affected.
    The minor NSR program is also important as a tool to implement 
changes related to major NSR, such as to adopt enforceable limitations 
on hours of operation and rates of production or the installation of 
pollution control equipment to limit potential to emit (PTE) to avoid 
major source applicability thresholds of NSR or title V permitting 
requirements. The minor NSR program also authorizes minor modifications 
at major sources, including netting demonstrations required by the PSD 
and NNSR major source program, or to establish a PAL to determine PSD 
or NNSR applicability.
    EPA recognizes that, under the applicable Federal regulations, 
states have broad discretion to determine the scope of their minor NSR 
programs as needed to attain and maintain the NAAQS. The State has 
significant discretion to tailor minor NSR requirements that are 
consistent with the requirements of Part 51. The State may also provide 
a rationale for why the rules are at least as stringent as the Part 51 
requirements where the revisions are different from Part 51. For 
further information, see recent SIP actions in other States concerning 
minor NSR approvals and disapprovals, such as 68 FR 2891 (January 22, 
2003), where EPA approved Oregon's minor NSR program establishing 
categories of minor NSR permit actions. However, EPA disapproved or 
gave less than full approval to minor NSR public participation 
requirements that provided a blanket exemption from one or more public 
notice requirements of Part 51 to all minor NSR permitting actions. See 
65 FR 2042 (January 13, 2000), disapproval of West Virginia minor NSR 
provisions providing 15-day public comment period for certain minor NSR 
permitting actions or 65 FR 2048 (January 13, 2000), limited approval 
of Delaware minor NSR public participation requirements because it 
strengthened the SIP, but limited disapproval of the rule due to less 
than 30-day comment period. See also the proposed approval of Review of 
New Sources and Modifications in Indian Country at 71 FR 48696 (August 
21, 2006) and 72 FR 45378 (August 14, 2007), approval of Alaska minor 
NSR public participation provisions.
2. What are the Texas minor NSR program public participation 
requirements?
    In general, the revised rules provide for two types of public 
notice and comment processes. These two public notices are Notice of 
Application and Intent to Obtain a Permit under section 39.418 (first 
notice) and Notice of

[[Page 72009]]

Application and Preliminary Decision (second notice) under section 
39.419 and subchapter K. The first notice requires the permittee to 
publish notice of the permit application and provide a copy of the 
administratively complete application in the public record available 
for public comment. An administratively complete application may, but 
is not required to, contain the applicant's information on the air 
quality impacts from the facility. Under Section 39.419(e)(1)(B), no 
further notice is required for minor NSR permits unless a contested 
case hearing is requested and not withdrawn before the second notice is 
published. Under section 55.21, a contested case hearing may be 
requested by: (1) The Commission; (2) the Executive Director; (3) the 
applicant; (4) affected persons, when authorized by law; and (5) for 
applications for air quality permits, or standard exemptions required 
to provide public notice, a legislator from the general area of the 
proposed facility. The request must identify the person's personal 
justiciable interest affected by the application, including the 
requestor's location and distance relative to the activity that is the 
subject of the application and how and why the requestor believes he or 
she will be affected by the activity in a manner not common to members 
of the general public. Requirements for a group or association to 
request a contested case hearing are found in section 55.23.\9\ A 
contested case hearing is an evidentiary hearing before an 
administrative law judge at the State Office of Administrative Hearings 
(SOAH). If a contested case hearing is requested, the permittee must 
publish notice of the opportunity to comment on the complete 
application and the State's analysis of air quality impacts and the 
State's proposal to approve or disapprove the permit.
---------------------------------------------------------------------------

    \9\ Section 55.23, Request by Group or Association, was not 
submitted in this SIP revision.
---------------------------------------------------------------------------

    Section 39.418 of the revised rule requires the applicant for a 
minor NSR permit new source or modification, amendments or renewal 
under Chapter 116 to publish Notice of Receipt of Application and 
Intent to Obtain Permit (first notice) within 30 days after the 
Executive Director determines the application to be administratively 
complete. (The rule does not provide a definition of administrative 
completeness.) Under sections 55.152(a)(1) and (2), 39.405(f)(1), and 
39.603, the notice of 30-day public comment period (15 days for 
renewals) must be published in a newspaper of general circulation in 
the municipality in which the facility is located or is proposed to be 
located or in the municipality nearest to the location or proposed 
location of the facility and State the end date of the public comment 
period. Section 39.405(e) requires the applicant to provide a copy of 
the notice to the TCEQ within 10 business days from the last date of 
publication. The applicant must also post a sign at the site of the 
existing or proposed facility declaring the filing of an application 
for a permit under section 39.604. The TCEQ is required to mail a copy 
of the notice to the State senator and representative who represent the 
area in which the facility is or will be located, the applicant, 
persons on a relevant mailing list, and any other person the Executive 
Director or Chief Clerk may elect to include under sections 39.413 and 
39.602. The applicant is required to mail a copy of the notice to EPA, 
all local air pollution control agencies with jurisdiction in the 
county in which the construction is to occur, and the air pollution 
control agency of any nearby State in which air quality may be 
adversely affected by the emissions from the new or modified facility 
under section 39.605. The applicant is also required to make a copy of 
the application available for review and copying at a public place in 
the county in which the facility is located or proposed to be located. 
The applicant must indicate when confidential business information is 
excluded from the public file. See section 39.405(g). The public record 
available during the comment period includes the administratively 
complete permit application and any other documents submitted by the 
applicant, as required by section 39.405(g).
    If a contested case hearing is requested by persons identified in 
section 55.21 or 55.23 in response to the Notice of Receipt of 
Application and Intent to Obtain Permit, and the request is not 
withdrawn before the date the preliminary decision is issued, section 
39.419 requires the applicant to publish Notice of Application and 
Preliminary Decision (second notice) of issuance or modification of a 
minor NSR action and provide a 30-day notice and comment period on the 
public record, which includes the draft permit and the State's analysis 
of its preliminary decision to approve or disapprove the permit.
    For minor and major sources authorized under section 116.116(b) of 
the approved SIP, a permittee must apply for and receive a prior permit 
amendment which authorizes a permittee to vary from terms of a permit 
if the change involves a change in the method of control of emissions, 
a change in the character of the emissions, or an increase in the 
emission rate of any air contaminant. Section 39.403(b)(8) requires 
public notice and the opportunity for comment only if the permit 
amendment involves construction of a new facility or modification of an 
existing facility that results in an increase in allowable emissions 
equal to or greater than 250 tpy of CO or NOX; or 25 tpy of 
VOC or SO2 or PM10; or 25 tpy of any other air 
contaminant except carbon dioxide, water, nitrogen, methane, ethane, 
hydrogen, and oxygen or other changes within the discretion of the 
Executive Director. Therefore, permit amendments authorized under 
section 116.116(b) are not subject to any public participation 
requirements unless the amendment involved an emission increase of 
allowable emission above the thresholds in section 39.403(b)(8).
    Under section 39.419(e)(1)(C), any amendment, modification, or 
renewal for a major or minor source that requires a permit application 
and would not result in an increase in allowable emissions and would 
not result in the emission of an air contaminant not previously 
emitted, is not required to provide second notice (which includes 
public notice and the opportunity for comment on the State's second 
notice which includes analysis of the effect of construction or 
modification on ambient air quality and includes the agency's proposed 
approval or disapproval) unless the application involves a facility for 
which the applicant's compliance history contains violations that are 
unresolved and that constitute a recurring pattern of egregious conduct 
which demonstrates a consistent disregard for the regulatory process, 
including the failure to make a timely and substantial attempt to 
correct the violations. Therefore, amendments, modifications or 
renewals for minor or major sources are not required to provide an air 
quality analysis or the State's proposal to approve or disapprove the 
permit unless there was an increase in allowable emissions or the 
release of a new air contaminant.
3. Does the Texas minor NSR public participation rule meet federal 
requirements for approval?
    The revised rules meet or exceed federal requirements for minor NSR 
public participation with four exceptions as described below.
    First, under section 39.419(e)(1)(B), the requirement at 40 CFR 
51.161(a) to provide opportunity for public comment on the State's 
analysis of the effect of construction or modification on ambient air 
quality from new minor sources or

[[Page 72010]]

minor modification identified under 40 CFR 51.160, including the 
State's proposed approval or disapproval, is not met. Sources regulated 
under 40 CFR 51.160 are subject to the public participation 
requirements of 40 CFR 51.161. Under the Texas rule, sources subject to 
minor NSR requirements must publish the first notice, Notice of Receipt 
of Application and Intent to Obtain Permit, and provide a 30-day notice 
and comment period on the administratively complete permit application 
only. The publically available information during the comment period 
does not include and, the public notice fails to inform the public how 
to obtain, the State's analysis of air quality impacts and proposal to 
approve or disapprove the application. The public record for the first 
notice is required to contain only a copy of the administratively 
complete permit application as required by section 39.405(g). As a 
result, the public does not have an opportunity to adequately review 
and comment upon the potential air quality effects from the source and 
on the State's proposed action on the application. In order to obtain 
the State's air quality analysis, an interested person must request a 
contested case hearing. However, sections 55.21(b) and 55.23 limit who 
may request a contested case hearing before SOAH and so some members of 
the public may not be able to review and comment on air quality impacts 
from the facility. The request for a contested case hearing must be 
filed within the first notice public comment period and must be based 
solely upon information in the administratively complete application. 
EPA has concluded that the burden of requesting an evidentiary 
administrative hearing based solely on the information in the permit 
application does not provide the public with the minimum public 
information required by 40 CFR 51.161(a) and (b).
    Second, section 39.403(b)(8) excludes permit amendments authorized 
by section 116.116(b) from any public participation requirements of 
Chapter 39, including the requirement to publish the first notice, 
unless the change involves construction of a new facility or 
modification of an existing facility that results in an increase in 
allowable emissions equal to or greater than 250 tpy of CO or 
NOX; or 25 tpy of VOC or SO2 or PM10; 
or 25 tpy of any other air contaminant except carbon dioxide, water, 
nitrogen, methane, ethane, hydrogen, and oxygen or other changes within 
the discretion of the Executive Director. Changes that result in an 
increase in emissions are subject to a permit amendment under sections 
116.110 or 116.116(a) or (b) of the approved SIP. As stated, section 
39.403(b)(8) provides an exemption from public participation for 
sources otherwise required to obtain a permit amendment. As discussed 
in more detail above, sources regulated under 40 CFR 51.160(a) are 
subject to the minimal public participation requirements in 40 CFR 
51.160(a) and (b). We also have concerns that this provision does not 
exclude public participation requirements for major modifications 
subject to PSD or NNSR permitting requirements, which are based on 
actual rather than allowable emissions and may be interpreted to apply 
to those permitting actions.\10\ EPA has concluded that 39.403(b)(8) 
fails to provide the minimum public participation requirements of 40 
CFR 51.161.
---------------------------------------------------------------------------

    \10\ See NSR Reform ruling, New York v. EPA, 413 F.3d 3 (D.C. 
Cir. June 24, 2005). The court held that the major NSR modification 
requirement, which incorporates by reference CAA Sec.  111(a)(4), 
``unambiguously defines `increases' in terms of actual emissions.''
---------------------------------------------------------------------------

    Third, under section 39.419(e)(1)(c), for any amendment, 
modification, or renewal application for a minor or major source, the 
revised rules do not require second notice, which includes the State's 
air quality analysis, unless the change would result in an increase in 
allowable emissions and would not result in the emission of an air 
contaminant not previously emitted. The requirement at 40 CFR 51.161(a) 
to provide opportunity for public comment on the State's analysis of 
the effect of modification on ambient air quality from minor sources 
identified under 40 CFR 51.160, including State's proposed approval or 
disapproval, is not met. We recognize that States may tailor minor NSR 
programs to allow permit amendments for certain minor sources required 
to be based upon increases in allowable emissions. However, section 
39.419(e)(1)(C) applies to major and minor sources required to obtain a 
permit amendment under Chapter 116 of the approved SIP. As described in 
the previous paragraph, sources required to obtain a permit under 40 
CFR 51.160(a) are subject to the public participation requirements of 
40 CFR 51.161. Under 40 CFR 51.161, a modification application for a 
major or minor source regulated under the SIP is subject to public 
notice and opportunity for public comment on the State's air quality 
analysis and proposal to approve or disapprove the permit. We also have 
concerns that this provision does not exclude public participation 
requirements for major modifications subject to PSD or NNSR permitting 
requirements, which are based on actual rather than allowable emissions 
and may be interpreted to apply to those permitting actions. EPA has 
concluded that section 39.419(e)(1)(c) fails to provide the minimum 
public participation requirements of 40 CFR 51.161.
    Fourth, section 39.403(b) (Applicability) of the revised rule 
refers to two State statutory provisions, THSC section 382.0518 
(preconstruction permit) and section 382.055 (review and renewal of 
preconstruction permit). For clarity and for approvability into the 
SIP, we recommend that section 39.403(b) be revised to refer to the 
corresponding sections of the Texas SIP.
    In summary, EPA has determined that the Texas minor NSR public 
participation rules do not require that the publicly available 
information include the State's analysis of air quality impacts or the 
State's decision to approve or disapprove the permit. EPA's review of 
section 39.419(e)(1)(A) and (B) indicates that public notice of the 
State's analysis of air quality impacts for minor new sources or minor 
modifications is not required unless a contested case hearing is 
requested. We are concerned that the rules at sections 55.21 and 55.23 
limit who may request a contested case hearing. In other words, the 
first notice (Notice of Application and Intent to Obtain a Permit) does 
not contain the agency's analysis of the effect of construction or 
modification on ambient air quality, including the agency's proposed 
approval or disapproval as required by 40 CFR 51.161(b). The only way 
to obtain that information is by requesting a contested case hearing 
and the rules limit which members of the public can do so. Moreover, we 
believe that the State's requirement to submit a request for an 
evidentiary administrative hearing in order to obtain the air quality 
analysis is too large a burden for potential commenters, may exclude 
some interested persons, and is not consistent with the minimum 
requirements of 40 CFR 51.161(a) and (b). We note that Texas did not 
provide a demonstration of how the Chapter 39 and 55 rules for public 
participation for minor NSR sources regulated under the SIP meet the 
public participation requirements of 40 CFR Part 51 with this SIP 
submittal.\11\
---------------------------------------------------------------------------

    \11\ See also correspondence between EPA Region 6 and TCEQ in 
the docket for this action.

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

[[Page 72011]]

B. PSD Regulatory Requirements

1. What public participation requirements for PSD programs are 
necessary for approval of the SIP revision?
    The PSD provisions of the CAA emphasize the importance of public 
participation in permitting decisions. See section 160(5) of the CAA. 
The criteria for approval of a PSD program are set out in Section 165 
of the CAA and 40 CFR 51.166. The requirements for public participation 
for an approved PSD program are found at 40 CFR 51.166(q). States may 
incorporate these requirements by reference or establish equivalent 
provisions. Section 307(b) of the CAA expressly provides an opportunity 
for judicial review of PSD permitting decisions when EPA is the 
permitting authority. In a federal PSD program, any member of the 
public who has participated in the public comment process and meets the 
threshold standing requirements of Article III of the U.S. Constitution 
may petition for administrative review of the permit within 30 days of 
issuance before the Environmental Appeals Board (EAB) and ultimately 
seek judicial review of the administrative disposition of the permit. 
We interpret the statute and regulations to require, at a minimum, an 
opportunity for State court judicial review of PSD permits under an 
approved PSD program. See 61 FR 1880, 1882 (Jan. 24, 1996) and 72 FR 
72617, 72619 (December 21, 2007). The legislative history of the 1977 
CAA amendments supports this interpretation.\12\ Although permits 
issued under SIP approved programs are not subject to appeal to EPA's 
EAB, those actions are instead subject to the opportunities for review 
and appeal provided under State law.
---------------------------------------------------------------------------

    \12\ See Staff of the Subcommittee on Environmental Pollution of 
the Senate Committee on Environment and Public Works, 95th Congress, 
1st Session, A Section-by-section Analysis of S. 252 and S. 253, 
Clean Air Act Amendments 36 (1977), reprinted in 5 Legislative 
History of the Clean Air Act Amendments of 1977 (1977 Legislative 
History) 3892 (1977).
---------------------------------------------------------------------------

    40 CFR 51.166(q) requires, in part, that the permitting authority 
make available all the materials submitted by the applicant, a copy of 
the preliminary determination and a copy or summary of other materials 
considered in making the determination. The State must notify the 
public, by advertisement in a newspaper of general circulation, of the 
application, the preliminary determination, the degree of increment 
consumed, and of the opportunity to comment at a public hearing or in 
writing. The State must also provide a copy of the notice to any other 
State or local air pollution control agencies, the chief executive of 
the city and county where the source would be located, any regional 
land use planning agency, any State or Federal Land Manager or Indian 
Governing body whose lands may be affected. The State must also provide 
an opportunity for public hearing for interested persons to appear and 
submit written or oral comments on the air quality impacts of the 
source, alternatives to it, the control technology required, and other 
appropriate considerations. See CAA section 165(a)(2). The State must 
also consider all written and oral comments in making a final 
permitting decision and make all comments available for public 
inspection.
2. What are the Texas PSD program public participation requirements?
    Under section 39.419, for sources subject to PSD or nonattainment 
NSR review the applicant must publish notice of two 30-day public 
comment periods, Notice of Application and Intent to Obtain a Permit 
(first notice) and Notice of Application and Preliminary Decision 
(second notice). The applicant must also mail a copy of the notices to 
the EPA Regional Administrator in Dallas, all local air pollution 
control agencies with jurisdiction in the county in which the 
construction is to occur, the air pollution control agency of any 
nearby State in which air quality may be adversely affected by the 
emissions from the new or modified facility, the applicant, persons who 
filed comments or hearing requests before the deadline, persons on a 
mailing list under Section 39.407 and the State senator or 
representative from the region where the source will be located. Under 
section 55.154, TCEQ may provide a public meeting if the Executive 
Director determines that there is a substantial or significant degree 
of public interest in an application or if a member of the legislature 
who represents the general area in which the facility is located or 
proposed to be located requests that a public meeting be held.
    Texas provides an opportunity for judicial review of PSD permitting 
decisions under THSC 382.032, which states that a person affected by a 
ruling, order, decision, or other act of the Commission or of the 
Executive Director, if an appeal to the Commission is not provided, may 
appeal the action by filing a petition in a district court of Travis 
County. The petition must be filed within 30 days after the date of the 
Commission's or the Executive Director's action or, in the case of a 
ruling, order, or decision, within 30 days after the effective date of 
the ruling, order or decision. Note that Texas law requires exhaustion 
of administrative remedies, including requesting a contested case 
hearing, to appeal to State court.
3. Do the Texas PSD public participation requirements meet federal 
requirements for approval?
    The Texas PSD program, including the public participation 
provisions, was approved in 1992. See 54 FR 52823, 826 (December 22, 
1989 and 57 FR 28093 (June 24, 1992). This SIP revision replaces the 
public participation rules adopted under the approved PSD program and 
therefore, we review the rules for consistency with federal PSD 
requirements of 40 CFR 51.166(q). Our review of Chapters 39 and 55 
indicates that the Texas rules meet or exceed federal requirements with 
the following exceptions. We have not identified provisions to satisfy 
the following federal requirements:
     A requirement that the State provide an opportunity for a 
public hearing for interested persons to appear and submit written or 
oral comment on the air quality impact of the source, alternatives to 
it, the control technology required, and appropriate considerations, 
along with public notice of the public hearing as required by 40 CFR 
51.166(q)(v) and section 165(a)(2) of the CAA. The provision in section 
55.154 that provides the Executive Director with discretion to hold a 
public meeting if the Executive Director determines that there is a 
substantial or significant degree of public interest in an application 
is not consistent with the federal requirements. Under the Texas rule, 
the decision to grant a public hearing is within the Executive 
Director's discretion and must be based upon substantial or significant 
public interest. In contrast, the CAA provides for the opportunity of 
interested persons to request a public hearing and public notice of 
that opportunity. Under section 55.154, the public is not guaranteed 
notice of such opportunity or that such an opportunity will be provided 
on request.
     A requirement that the public notice of a PSD permit 
contain the degree of increment consumption that is expected from the 
source or modification as required by 40 CFR 51.166(q)(iii).\13\
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    \13\ EPA's final approval of the Texas PSD program (57 FR 28093, 
June 24, 1992) included a supplemental document that provided an 
enforceable commitment from Texas to implement the requirements of 
40 CFR 51.166(q)(iii) (state the degree of increment consumption in 
the public notice) and 51.166(q)(iv) (mail notice to affected 
agencies). The supplement remains a part of the Texas SIP. See 40 
CFR 52.2270, EPA Approved Nonregulatory Provisions and Quasi-
Regulatory Measures in the Texas SIP. We cite these requirements as 
missing from the Texas submittal because the adoption of Chapters 39 
and 55 replaced all existing public participation requirements for 
PSD permits under the Texas PSD program as State law and seeks to 
repeal existing SIP PSD public participation requirements applicable 
to permit applications complete on or after September 1, 1999. Texas 
did not address the SIP supplement in its submittal. For several 
reasons, we believe these PSD requirements should be included as 
regulatory, rather than quasi-regulatory, requirements of the SIP. 
Given that the applicant rather than Texas publishes notice and 
sends the notice to affected agencies, we believe regulatory 
provisions in Chapter 39 would provide more clarity to the applicant 
and the public to ensure compliance with these requirements than a 
document that does not explicitly appear in the SIP. Also, we 
believe this approach will avoid confusion since section 39.605 of 
the revised rules lists some, but not all, agencies that must be 
notified under Sec.  51.166(q)(iv).

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[[Page 72012]]

     A requirement to provide a copy of the public notice of a 
PSD permit to be sent to State and local air pollution control 
agencies, the chief executives of the city and county where the source 
would be located and any State or Federal Land Manager or Indian 
Governing Body whose lands may be affected by emissions from the source 
or modification, as required by 40 CFR 51.166(q)(iv) and CAA 
165(d).\14\
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    \14\ Ibid. at 13.
---------------------------------------------------------------------------

     A requirement that response to comments be available prior 
to final action on the PSD permit, as required by 40 CFR 51.166(q)(vi) 
and (viii) and to facilitate the appeals process.
     For a new or modified source subject to PSD, the revised 
rules do not contain a definition of a final appealable decision for a 
PSD permit. We request further information about how and when the 
commenters are informed of the Agency's final decision, access to 
response to comments and timing for judicial appeal, in order to 
provide an opportunity for State court judicial review.
    We request comments on an additional issue related to PSD permit 
public notice requirements. Under the approved SIP and under the 
revised rule, Texas requires the permit applicant to publish public 
notice for an air permit and to mail a copy of the notice to TCEQ and 
EPA. Although the federal PSD rules at 40 CFR 51.166(q)(2) State ``* * 
* the reviewing authority shall * * * provide notice,'' we believe 
Texas has authority to delegate responsibility to publish notice to the 
applicant. Under Section 39.405(e), TCEQ allows 10 business days for 
the applicant to notify TCEQ and EPA that the public notice has been 
published. A review of the TCEQ permitting database indicates TCEQ 
generally receives a copy of the public notice within two weeks after 
the date of publication.\15\ EPA has experienced delays in receiving 
the PSD public notice and we have received complaints from citizens 
that it is often not possible to identify the start and end date of a 
public comment period until much of the comment period has passed. 
While we believe that TCEQ does have authority to delegate 
responsibility to publish notice of a PSD permit to the applicant, we 
request comments on how the public information can be made available to 
ensure that interested persons can fully participate in the public 
comment process in accordance with the intent of the Act.
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    \15\ The TCEQ permitting database can be accessed at http://www4.tceq.state.tx.us/cid/CCD/index.cfm?fuseaction=main.SearchPublicNotice.
---------------------------------------------------------------------------

C. PAL Regulatory Requirements

1. What public participation requirements for PALs are necessary for 
approval?\16\
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    \16\ Texas' regulations for PALs are not in the existing Texas 
SIP. EPA will address approvability of the entire PAL requirements 
in a separate action.
---------------------------------------------------------------------------

    The Federal PAL rules at 40 CFR 51.165(f)(5) and (11) and 
51.166(w)(5) and (11) require PALs for existing major stationary 
sources to be established, renewed, or increased through a procedure 
that is consistent with 40 CFR 51.160 and 51.161, including the 
requirement that the reviewing authority provide the public with notice 
of the proposed approval of a PAL permit and at least a 30-day period 
for submittal of public comment. The State must address all material 
comments before taking final action on the permit.
2. What are the public participation requirements under the Texas PAL 
rule?
    Texas PAL rules address public participation in section 116.194, 
which states:

    Applications for initial issuance of plant-wide applicability 
limit permits under this division are subject only to Sec. Sec.  
39.401, 39.405, 39.407 \17\, 39.409, 39.411, 39.419, 39.420, and 
39.605 of this title (relating to Purpose; General Notice 
Provisions; Mailing Lists; Deadline for Public Comment, and for 
Requests for Reconsideration, Contested Case Hearing, or Notice of 
Contested case Hearing; Text of Public Notice; Notice of Application 
and Preliminary Decision; Transmittal of the Executive Director's 
Response to Comments and Decision; Applicability; Mailed Notice; 
Newspaper Notice; Sign-Posting; and Notice to Affected Agencies, 
respectively), except that any requests for reconsideration or 
contested case hearings in Sec. Sec.  39.409 or 39.411 of this title 
shall not apply. Nothing in this section exempts an applicant for a 
new source review permit from the requirements of Subchapter B of 
this chapter (relating to New Source Review).
---------------------------------------------------------------------------

    \17\ Section 39.407 was not submitted as a SIP revision. See 
discussion of the cross references to non-SIP rules in section VII.A 
of this preamble.
---------------------------------------------------------------------------

3. How does the Texas PAL rule meet Federal requirements for approval?
    We are addressing public participation for PALs in this notice to 
facilitate our review of the Texas PAL rule SIP submittal that cross-
references Chapter 39, even though the PAL rule was adopted after the 
revised rules.\18\ We note that Texas did not make any revisions 
related to PALs to Chapter 39. The applicability section in Chapter 
39.403 does not include PALs, despite the cross-reference to Chapter 39 
in Section 116.194. Therefore, the two rules are not consistent. We 
believe Texas must revise the applicability section in Chapter 39.403 
in order to make the Chapter 39 public participation requirements 
applicable to new permitting rules, such as the PAL rule.
---------------------------------------------------------------------------

    \18\ See letter from Glenn Shankle, Executive Director of TCEQ, 
to Larry Starfield, Deputy Regional Administrator for EPA Region 6, 
dated June 13, 2008, noting that action on TCEQ's public 
participation rule was necessary to resolve issues in another 
pending SIP submission.
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    Our review of the Chapter 39 requirements applicable to PALs 
indicates that public participation for initial issuance, renewal, or 
increase of a PAL is not consistent with the Federal requirements. 
Section 39.419(e)(3) does not require PAL permit applications to 
provide public notice and comment on the Agency's preliminary analysis 
and the draft permit unless a contested case hearing is requested. We 
have identified no provisions which address renewal or increase of a 
PAL. Furthermore, Texas provided no demonstration of how section 
116.194, which cross references Chapter 39 requirements, is consistent 
with the Federal PAL rules at 40 CFR 51.165(f)(5) and (11) and 
51.166(w)(5) and (11). We have not identified provisions in Chapter 39 
to comply with the following requirements of 40 CFR 51.165(f)(5) and 
(11) and 51.166(w)(5) and (11):
     Public participation requirements for PALs existing major 
stationary sources to be established, renewed, or increased through a 
procedure that is consistent with 40 CFR 51.160 and 51.161.
     A requirement that the reviewing authority provide the 
public with notice of the proposed approval of a PAL permit and at 
least a 30-day period for submittal of public comment.

[[Page 72013]]

     A provision to require the State to address all material 
comments before taking final action on the PAL permit.
     An applicability provision in section 39.403 that subjects 
PALs to the requirements of Chapter 39.

D. Flexible Permits

1. What are the public participation requirements for Flexible Permits 
necessary for approval? \19\
---------------------------------------------------------------------------

    \19\ Texas' rules for Flexible Permits are not in the existing 
Texas SIP. EPA is reviewing the Texas' SIP submittal which relates 
to Flexible Permits and will address its concerns in a separate 
action.
---------------------------------------------------------------------------

    EPA has recognized that States may provide a site-wide cap to 
determine minor NSR applicability, similar to the Federal PAL rule for 
major NSR applicability. See our proposed rule for Review of New 
Sources and Modifications in Indian Country, 71 FR 48696. 48705 or 
Evaluation of Implementation Experiences with Innovative Air Permits, 
Summary Report,\20\ which discuss minor NSR applicability caps and 
public participation requirements at 40 CFR 51.160-51.164. 40 CFR 
51.161(b) requires that the State ensure availability of the 
information submitted by the owner or operators and the State's 
analysis of the effect on air quality and proposal for approval or 
disapproval in at least one location in the affected area, that the 
State provide a 30-day public comment period on that information and 
that notice of the public comment period should be by prominent 
advertisement in the area affected.
---------------------------------------------------------------------------

    \20\ Report prepared by EPA Office of Air Quality Planning and 
Standards and OPEI at http://www.epa.gov/ttn/oarpg/t5/memoranda/iap_eier.pdf.
---------------------------------------------------------------------------

2. What are the public participation requirements under the Texas 
Flexible Permit rule?
    Section 39.403(b)(8)(A) and (B) states that initial issuance of a 
flexible permit is not required to comply with the public participation 
requirements of Chapter 39 unless the action involves new construction 
or an increase in allowable emissions equal to or greater than 250 tpy 
of CO or NOX; or 25 tpy of VOC, SO2, 
PM10; or 25 tpy of any other air contaminant except carbon 
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.
    When a flexible permit is established under the Texas rules in 
Subchapter G of Chapter 116, PSD or NNSR terms may be revised or 
eliminated when they are incorporated into the flexible permit. The 
rule does not provide for public participation for initial issuance of 
a flexible permit unless the action involves new construction or an 
increase in allowable emissions equal to or greater than 250 tpy of CO 
or NOX; or 25 tpy of VOC, SO2, or 
PM10; or 25 tpy of any other air contaminant except carbon 
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.
3. Do the public participation requirements for Texas flexible permits 
meet the Federal requirements for approvability?
    Sections 39.403(b)(8)(A) and (B), as they apply to the initial 
issuance of flexible permits do not meet the requirements in 40 CFR 
51.161(a) and (b). Section 39.403 (Public Notice Applicability) fails 
to require 30-day public notice and comment on the State's analysis of 
the effects on ambient air quality and its proposed approval or 
disapproval. PSD and NNSR permit terms and conditions are not revised 
with public process required by sections 51.161(a) and (b) and 
51.166(q).

VI. Other Public Participation Concerns

A. Cross References to Non-SIP Rules and Regulations

    The following provisions cross reference to rules that are not in 
the federally approved SIP, nor submitted to EPA for SIP approval:
     Section 39.201(a)(1). Cross references to Chapter 30.
     Section 39.403(b)(8). Cross reference to State statutory 
provisions in THSC section 382.0518 and section 382.055 of the Texas 
Health and Safety Code.
     Section 39.403(b)(8). Cross references to Chapter 116, 
Subchapter G, sections 116.710(a)(2) and (3).
     Section 39.403(b)(8)(B). Cross reference to section 
116.10(9).
     Section 39.409. Cross references to Chapter 50.
     Section 39.411(b)(10)--1st sentence. Cross references to 
Sec.  39.403(b)(11).
     Section 39.413(11). Cross references to section 39.407.
     Section 39.419(e)(4). Cross references to Sec.  90.30.
    Approving a rule which cross references to a non-SIP provision is 
problematic because: (1) It could imply tacit approval of the non-SIP 
provision, without EPA's review of the cross referenced provision to 
verify whether it meets the requirements of the Act and of 40 CFR part 
51; and (2) if the State later revises the cross referenced non-SIP 
provision, the revised cross referenced provision could be interpreted 
to be enforceable under the SIP even if such provision, as revised, 
does not meet the requirements of the Act and of 40 CFR part 51. 
Furthermore, there is no demonstration whether these cross referenced 
provisions are separable from the rules that are submitted. Texas 
should either remove the cross references to the non-SIP provisions or 
submit the cross referenced provisions to EPA for SIP approval. Note 
that our action on any provision which refers to or implements a 
provision that EPA has not approved does not imply EPA proposed 
approval of such non-SIP requirement.

B. Use of Undefined Acronyms.

    Several sections use the acronyms ``APA'' ``SOAH'' and ``WQMP.'' 
However, we do not see where these terms are defined.

C. Cross References to Obsolete Provision for Permits by Rule for 
Concrete Batch Plants

    The following provisions cross reference to public notice provision 
for permit by rule for concrete batch plants: section 39.403(a)(3) and 
(b)(10); section 39.411(a)(10)(iv)(C); section 39.601; and section 
55.152(a)(2). TCEQ has repealed all permits by rule for concrete batch 
plants and replaced them with a Standard Permit for concrete batch 
plants. This change is discussed in EPA's approval of this action at 71 
FR 13549 (March 16, 2006). Texas has not revised these provisions in 
Chapters 39 and 55 to reflect the change that EPA approved March 16, 
2006.

D. Cross Reference to Section 116.10(9)

    Section 39.303(b)(8)(B) cross references section 116.10(9) which is 
the definition of ``modification of existing facility'' (later 
recodified as section 116.10(11)). Texas submitted this definition in 
separate SIP submittals which are currently under review. EPA will 
address this definition in a separate action.

 E. Alternative Publication Procedures for Small Businesses

    Section 39.603(e) provides an alternative requirement to publish a 
notice under section 39.603(a)(2)\21\ if the applicant and source meet 
the definition of a small business stationary source in section 
382.0365 of the Texas Health and Safety Code including, but not

[[Page 72014]]

limited to, those which: are not a major stationary source for federal 
air quality permitting; do not emit 50 or more tpy of any regulated 
pollutant; do not emit 75 or more tpy of all regulated pollutants; are 
owned or operated by a person that employs 100 or fewer individuals; 
and if the applicant's site meets emission limits in section 106.4(a), 
it will be considered to not have an effect on air quality. If all of 
the above conditions are met, the Executive Director may post 
information pending permit applications on its Web site, such as the 
permit number, project type, facility type, nearest city, county, date 
public notice authorized, information on comment periods, and 
information on how to contact the agency for further information.
---------------------------------------------------------------------------

    \21\ Section 39.603(e)(1) refers to Sec.  39.601(a)(2), which is 
not in the submitted rule. On July 31, 2002, Texas submitted a 
revision to Section 39.603 which revised subsection (e) to refer to 
paragraph (c)(2) rather than paragraph (a)(2). EPA is reviewing the 
July 31, 2002, SIP submittal and will address this change in a 
separate action. Paragraph (c)(2) refers to a different larger 
display notice that must be published in the same issue of the 
newspaper as the primary notice published under paragraph (c)(1).
---------------------------------------------------------------------------

    The existing SIP has no provision for alternative public notice for 
small businesses. As a relaxation of the existing SIP, we request that 
Texas provide a demonstration of how this provision is consistent with 
section 110(l) of the Act. Section 30.603(e)(1)(A) refers to a 
definition of ``small business stationary source in section 382.0365 of 
the Texas Health and Safety Code. For clarity and approvability into 
the SIP, Sec.  39.603(e) should be revised to refer to corresponding 
provisions of the Texas SIP.

F. Relaxation of Sign Posting Requirements Under Section 39.604

    We have identified two provisions which relax the sign posting 
requirements of the existing SIP.
     Section 39.604(c) includes a provision that the section's 
sign posting requirements do not apply to properties under the same 
ownership which are noncontiguous and/or separated by intervening 
public highway, street, or road, unless directly involved by the permit 
application. This exclusion from the sign posting requirements is not 
in the existing SIP. As a relaxation of the existing SIP, we request 
that Texas provide a demonstration how this provision is consistent 
with section 110(l) of the Act.
     Section 116.133(f)(1) provides that if the nearest 
elementary or middle school has waived out of the requirements of 19 
TAC section 89.1205(a) under 19 TAC section 89.1205(g), the alternate 
language signs shall be published in the alternate languages in which 
the bilingual education program would have been taught had the school 
not waived out of the bilingual education program. We do not see where 
this provision is included in the revised rules. Because omission of 
this provision is a relaxation of the existing SIP, we request that 
Texas provide a demonstration how omission of this provision is 
consistent with section 110(l) of the Act.

VII. Why are we taking no action on some provisions of the submittal?

A. Provisions Which Implement Section 112(G) of the Act

    There are cross references to Chapter 116, Subchapter C\22\ of this 
title relating to Hazardous Air Pollutants: Regulations Governing 
Constructed or Reconstructed Major Sources (FCAA, Sec.  112(g), 40 Code 
of Federal Regulations Part 63)) in the following provisions: sections 
39.403(b)(9); 39.419(e)(3)(C); and 116.183. In an EPA SIP approval 
published September 18, 2002, we addressed the Sec.  112(g) provisions 
(then located in Subchapter C of Chapter 116). We stated:
---------------------------------------------------------------------------

    \22\ These provisions were recodified from Subchapter C to 
Subchapter E of Chapter 116 in a SIP revision submitted February 1, 
2006. EPA is currently reviewing the February 1, 2006, revisions and 
will address this provision in a separate action.

    We are taking no action on Subchapter C of Chapter 116--
Hazardous Air Pollutants: Regulations Governing Constructed or 
Reconstructed Major Sources (FCAA Section 112(g), 40 CFR part 63) as 
submitted in 1998. The program for reviewing and permitting 
constructed and reconstructed major sources of HAP is regulated 
under section 112 of the Act and under 40 CFR part 63, subpart B. 
Under these provisions, States establish case-by-case determinations 
of maximum achievable control technology for new and reconstructed 
sources of HAP. The process for these provisions is carried out 
separately from the SIP activities. For the reasons discussed above, 
we are not approving Subchapter C of [Chapter] 116 as submitted in 
---------------------------------------------------------------------------
1998.

67 FR 58699 (September 18, 2002).
    Section 112(g) of the Act applies to the review and permitting of 
constructed and reconstructed major sources of hazardous air pollutants 
(HAP) under Sec.  112 of the Act and 40 CFR part 63, subpart B. The 
process for implementing these provisions is carried out separately 
from the SIP. Because the requirements under section 112(g) are self-
implementing under section 112 of the Act and under 40 CFR part 63, 
subpart B, EPA will take no action on sections 39.403(b)(9), 
39.419(e)(3)(C), and 116.183.

B. Provisions Which Do Not Relate to Air Quality Permits

    Texas submitted the following provisions to EPA for SIP approval 
which do not relate to air quality permits or to provisions that are 
not in the approved SIP:
     Section 39.411(b)(11)--Applies to radioactive material 
licenses under Chapter 336;
     Section 39.411(b)(13)--Applies to municipal solid waste 
applications;
     Section 39.411(b)(14)--Applies to class 3 modifications of 
hazardous industrial solid waste permits;
     Section 39.411(c)(7)--Applies to radioactive material 
licenses under Chapter 336
     Section 39.419(d)--Subsection (d) only relates to 
subsection (c), which was not submitted;
    Because these provisions do not relate to air quality permitting or 
to any applicable requirement of the Clean Air Act, they are outside 
the scope of the SIP. The TCEQ should withdraw these provisions from 
this SIP submittal package. Consequently, EPA will take no action these 
provisions.

C. Portions of Chapter 55

    The revised rules submitted to EPA include selected provisions from 
Chapter 55, Requests for Reconsideration and Contested Case Hearing. 
The existing SIP does not contain provisions which implement Texas' air 
permitting administrative appeal process. Note that PSD permits issued 
by EPA or States with a delegated PSD program provide appeal to the 
Environmental Appeals Board under 40 CFR Part 124. EPA interprets the 
CAA to require the opportunity for State court review under a State 
approved PSD program, as discussed in section V.B. of this notice, but 
the Act does not specifically require an administrative appeal process 
for an approved SIP PSD program. The requirements under 40 CFR part 124 
are not applicable to State approved PSD programs. Therefore, we are 
taking no action today on the portions of this SIP submittal that 
relate to requests for reconsideration or contested case hearings. 
Specifically, we are taking no action today on section 55.1--
Applicability; section 55.21--Requests for Contested Case Hearing, 
Public Comment; section 55.101--Applicability; section 55.103--
Definitions; section 55.150--Applicability; section 55.201--Requests 
for Reconsideration and Contested Case Hearing; section 55.203--
Determination of Affected Person; section 55.205--Request by Group or 
Association; section 55.209--Processing Requests for Reconsideration or 
Contested Case Hearing; and section 55.211--Commission Action or 
Requests for Reconsideration and Contested Case Hearing.
    We propose to grant limited approval and limited disapproval to 
Subchapter E of Chapter 55 related to Public Comment and Public 
Meetings including sections 55.150--Applicability; section 55.152--
Public

[[Page 72015]]

Comment Period; section 55.154--Public Meetings; section 55.156--Public 
Comment Processing.

D. Revisions to Section 116.740--Public Notice

    The October 25, 1999, SIP submittal includes revisions to section 
116.740--Public Notice in Chapter 116, Subchapter G which relates to 
Flexible Permits. This submittal revised earlier SIP submittals of this 
section as submitted November 29, 1994, and July 22, 1998. EPA is 
currently reviewing the November 29, 1994, and July 22, 1998, SIP 
submittals and will propose appropriate action on section 116.740 in a 
separate action. EPA will take no action on section 116.740 at this 
time.

VIII. Public Comment and Proposed Action

    Under the CAA sections 110(k)(3) and 301(a) for the reasons stated 
above, EPA is proposing simultaneous limited approval and limited 
disapproval of portions of the SIP revisions identified in section II.A 
which Texas submitted on December 15, 1995; July 22, 1998; and October 
25, 1999. EPA is taking no action on certain sections as identified in 
section VII because they are outside the scope of the SIP or because 
they revise a prior SIP submittal which is currently under review for 
approval or disapproval in a separate action. As discussed in this 
proposal, we have identified the following inconsistencies between the 
Texas revised rules and minimum Federal requirements for public 
participation. In summary, the provisions which preclude full approval 
of the revised rules include, but may not be limited to, the following:

A. Provisions Relating to Public Participation for Projects Subject to 
Minor NSR

     Section 39.419(e) fails to require the State's air quality 
analysis and proposed approval or disapproval in the publicly available 
information for new or modified minor NSR sources or minor 
modifications at major sources,
     Section 39.403(b)(8) fails to require any public 
participation for a minor NSR permit amendment or minor modification 
under section 116.116(b), unless the change involves construction of a 
new facility or modification of an existing facility that results in an 
increase in allowable emissions equal to or greater than 250 tpy of CO 
or NOX; or 25 tpy of VOC or SO2 or 
PM10; or 25 tpy of any other air contaminant except carbon 
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or 
other changes within the discretion of the Executive Director.
     Section 39.419(e)(1)(C) fails to require the State's air 
quality analysis and proposed approval or disapproval in the publicly 
available information, for any permit amendment, modification, or 
renewal application of a major or minor source, unless the action would 
result in an increase in allowable emissions and would not result in 
the emission of an air contaminant not previously emitted.
     Section 39.403(b)(8) (Applicability) references to two 
State statutory provisions, THSC Section 382.0518 (preconstruction 
permit) and section 382.055 (review and renewal of preconstruction 
permit) which are not part of the SIP.

B. Provisions Relating to Public Participation for Projects Subject to 
PSD

     The revised rules do not provide opportunity for a public 
hearing for interested persons to appear and submit written or oral 
comment on the air quality impact of the source, alternatives to it, 
the control technology required, and appropriate considerations and to 
provide notice of the opportunity for a public hearing for a PSD 
permit.
     Public notice of a PSD permit is not required by the 
revised rules to contain the degree of increment consumption that is 
expected from the source or modification.
     There is no requirement in the revised rules that a copy 
of the public notice of a PSD permit to be sent to State and local air 
pollution control agencies, the chief executives of the city and county 
where the source would be located and any State or Federal Land Manager 
or Indian Governing Body whose lands may be affected by emissions from 
the source or modification.
     There is no requirement in the revised rules that response 
to comments be available prior to final action on the PSD permit.
     There is no definition of a final appealable decision for 
a PSD permit in the revised rules. We request further information about 
how and when the commenters are informed of the Agency's final decision 
and how commenters are informed of access to response to comments and 
timing for judicial appeal, in order to provide an opportunity for 
State court judicial review.

C. Provisions Relating to Public Participation for Projects Subject to 
PALs

     There is no requirement in the revised rules that PALs be 
established, renewed, or increased through a procedure that is 
consistent with 40 CFR 51.160 and 51.161, including the requirement 
that the reviewing authority provide the public with notice of the 
proposed approval of a PAL permit and at least a 30-day period for 
submittal of public comment, consistent with the Federal PAL rules at 
40 CFR 51.166(w)(5) and (11).
     There is no requirement in the revised rules that the 
State address all material comments before taking final action on the 
PAL permit, consistent with 40 CFR 51.166(w)(5).
     There is no reference to PALs in the applicability section 
in Chapter 39.403.

D. Provisions Relating to Public Participation for Projects Subject to 
Flexible Permits

     For initial issuance of a flexible permit to establish a 
minor NSR applicability cap or an increase in a flexible permit cap, 
there is no requirement in the revised rules for 30-day notice and 
comment on information submitted by the owner or operator and the 
agency's analysis of the effect of the permit on ambient air quality, 
including the agency's proposed approval or disapproval.
     Where PSD and NNSR terms and conditions are modified or 
eliminated when the permit is incorporated into a flexible permit, 
there is no requirement in the revised rules for public participation 
consistent with 40 CFR 51.161 and 51.166(q).

E. Other Concerns

     The issues identified in section VII of this preamble.
    We are proposing simultaneous limited approval and limited 
disapproval of the revised rules because we have determined that the 
rules strengthen the existing SIP, but do not meet the minimum public 
participation requirements of the Act and our regulations. We request 
comments on this proposal. After review and response to public comment, 
EPA plans to take final action on the revised rules. Final limited 
approval would incorporate the revised rules identified in section II 
into the Texas SIP and the new public participation rules would become 
fully federally enforceable. Final limited disapproval would make a 
finding of how the revised rules fail to meet minimum criteria 
established by the Act and our regulations. If EPA determines that, for 
rules required by the CAA, the deficiencies forming the basis of final 
limited disapproval have not been corrected, the Agency may apply the 
sanctions listed in section 179(b) of the Act and 40 CFR 52.31 within 
18 months of the finding. If the State submits an

[[Page 72016]]

approvable rule revision within 18 months of such a finding, EPA may 
take interim final action, effective upon publication, to stay the 
sanctions prior to proposing approval and taking comment on the 
submittal. Also, a FIP may be promulgated under section 110(c)(1) of 
the Act, if EPA finds that a SIP revision does not satisfy the minimum 
criteria established under section 110(k)(2) of the CAA. The FIP may be 
adopted at any time within 2 years of such a finding, unless the State 
corrects the deficiency and EPA approves the revision before the FIP is 
promulgated. Final approval of the revision correcting the identified 
deficiencies would terminate imposition of the FIP.
    We will accept comments on this proposal for the next 60 days. 
After review of public comments, we intend to publish a rule to 
promulgate final limited approval and final limited disapproval of the 
provisions identified above into the Texas SIP.

IX. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

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

    Dated: November 18, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E8-28162 Filed 11-25-08; 8:45 am]
BILLING CODE 6560-50-P