[Federal Register Volume 77, Number 240 (Thursday, December 13, 2012)]
[Proposed Rules]
[Pages 74129-74142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30098]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0612; FRL-9761-2]


Approval and Promulgation of Implementation Plans; Texas; Public 
Participation for Air Quality Permit Applications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Texas State 
Implementation Plan (SIP) that establish the public participation 
requirements for air quality permits. EPA proposes to find that these 
revisions to the Texas SIP comply with the Federal Clean Air Act (the 
Act or CAA) and EPA regulations and are consistent with EPA policies. 
Texas submitted the public participation provisions in four separate 
revisions to the SIP on July 22, 1998; October 25, 1999; July 2, 2010; 
and March 11, 2011. EPA is proposing this action under section 110 and 
parts C and D of the Clean Air Act (the Act).

DATES: Comments must be received on or before February 11, 2013.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2010-0612, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Email: Ms. Adina Wiley at [email protected].
     Fax: Ms. Adina Wiley, Air Permits Section (6PD-R), at fax 
number 214-665-6762.
     Mail: Ms. Adina Wiley, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
     Hand or Courier Delivery: Ms. Adina Wiley, 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 8:30 a.m. and 4:30 p.m. weekdays, and not on legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2010-0612. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
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 
at www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), 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 or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page 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 75202. The State submittals, which are part of 
the EPA docket, are also available for public inspection during 
official business hours by appointment: Texas Commission on 
Environmental Quality (TCEQ), Office of Air Quality, 12124 Park 35 
Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-2115; fax number 
214-665-6762; email address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background for Our Proposed Action
    A. What action is EPA proposing?
    B. History of EPA Actions on Texas Public Participation for Air 
Quality Permit Applications
II. Summary of the State Submittals That EPA Is Reviewing
    A. July 22, 1998
    B. October 25, 1999
    C. July 2, 2010
    D. March 11, 2011
    E. What are we not addressing in this proposed action?
III. Technical Analysis of the Texas Public Participation for Air 
Quality Permit Applications
    A. Public Participation for Prevention of Significant 
Deterioration (PSD) Permit Applications
    1. Analysis of Submitted Rules
    2. How do the Texas public notice provisions for PSD permit 
applications address the deficiencies identified in the proposed LA/
LD?
    3. Proposed Findings Specific to the Texas Public Participation 
Provisions for PSD Permit Applications
    B. Public Participation for Nonattainment New Source Review 
(NNSR) Permit Applications
    1. Analysis of Submitted Rules
    2. Proposed Findings Specific to the Texas Public Participation 
Provisions for NNSR Permit Applications
    C. Public Participation for Plant-Wide Applicability Limit (PAL) 
Permit Applications
    1. Analysis of Submitted Rules
    2. How do the Texas public notice provisions for PAL permit 
applications address the deficiencies identified in the proposed LA/
LD?

[[Page 74130]]

    3. Proposed Findings Specific to the Texas Public Participation 
Provisions for PAL Permit Applications
    D. Public Participation for Minor NSR Permit Applications
    1. Analysis of Submitted Rules
    2. Minor NSR Public Notice Requirements Specific to Two Types of 
Minor NSR Permit Amendment Applications
    i. Identification of the Minor NSR Emission Thresholds and 
Affected Source Populations
    ii. How were the ``De Minimis'' and ``Insignificant'' thresholds 
for minor NSR permit amendments established?
    (A). Texas ``De Minimis'' Thresholds for Minor Permit Amendments
    (B). Texas ``Insignificant'' Thresholds for Minor Permit 
Amendments for Selected Agricultural Facilities
    3. How do the Texas public notice provisions for minor NSR 
permit applications address the deficiencies identified in the 
proposed LA/LD?
    4. Proposed Findings Specific to the Texas Public Participation 
Provisions for Minor NSR Permitting
    E. Public Participation for Permit Renewal Applications
    1. Analysis of Submitted Rules
    2. Proposed Findings Specific to the Texas Public Participation 
Provisions for Permit Renewal Applications
    F. Does proposed approval of the Texas public participation 
provisions for air quality permit applications interfere with 
attainment, reasonable further progress, or any other applicable 
requirement of the Act?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background for Our Proposed Action

A. What action is EPA proposing?

    The Clean Air Act at section 110(a)(2)(C) requires states to 
develop and implement permitting programs for attainment and 
nonattainment areas that cover both construction and modification of 
stationary sources. EPA codified minimum requirements for these State 
permitting programs including public participation and notification 
requirements at 40 CFR 51.160-51.164. The EPA originally adopted these 
rules prior to the creation of the PSD permit program in 1977, which 
has additional detailed public participation requirements in 40 CFR 
51.166(q).\1\
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    \1\ EPA expanded the NSR regulations in 1973 to require public 
participation because EPA determined that public participation was 
necessary to maintain air quality as required by the CAA. See 60 FR 
45530, at 45548 (citing 38 FR 15834, 15836 (1973) and NRDC v. EPA, 
No. 72-1522 (D.C. Cir.)). See also See 61 FR 38250, at 38276 and 
38320.
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    EPA is proposing to approve submittals from the State of Texas as 
revisions to the Texas State Implementation Plan (SIP) that establish 
the public participation requirements for air quality permits. EPA 
proposes to find that these submitted revisions to the Texas SIP comply 
with the CAA and EPA regulations and are consistent with EPA policies. 
Texas submitted the public participation provisions in four separate 
submittals for approval to EPA as revisions to the SIP on July 22, 
1998, October 25, 1999, July 2, 2010, and March 11, 2011. EPA is 
proposing this action under section 110 and parts C and D of the Clean 
Air Act (the Act).

B. History of EPA Actions on Texas Public Participation for Air Quality 
Permit Applications

    The Texas SIP currently addresses public notice provisions for air 
quality permits through regulations adopted by the State on June 17, 
1998, effective July 8, 1998, at 30 TAC section 116.130--Applicability; 
section 116.131--Public Notification Requirements; section 116.132--
Public Notice Format; section 116.133--Sign Posting Requirements; 
section 116.134--Notification of Affected Agencies; section 116.136--
Public Comment Procedures; and section 116.137--Notification of Final 
Agency Action. EPA SIP-approved the submitted Sections 116.130, 
116.131, 116.132 (except subsections (c) and (d)), 116.133 (except 
subsections (f) and (g)), 116.134, 116.136, and 116.137 on September 
18, 2002 (67 FR 58697), effective October 18, 2002. EPA SIP-approved 
the submitted Sections 116.132(c) and (d) and 116.133(f) and (g) on 
March 10, 2006 (71 FR 12285), effective May 9, 2006.
    On November 26, 2008, EPA published a proposed limited approval/
limited disapproval (LA/LD) of three submittals from the State 
requesting approval of them as revisions to the Texas SIP pertaining to 
public notice for air quality permits (see 73 FR 72001). Our proposed 
LA/LD encompassed revisions submitted by the TCEQ on December 15, 1995; 
July 22, 1998; and October 25, 1999. Please see the Technical Support 
Document (TSD) accompanying this action for a complete list of the 
sections that were the subject of our proposed LA/LD.
    On June 2, 2010, the TCEQ adopted amendments to 30 TAC Chapter 39, 
Public Notice; Chapter 55, Requests for Reconsideration and Contested 
Case Hearings; Public Comment; and Chapter 116, Control of Air 
Pollution by Permits for New Construction or Modification; and 
corresponding revisions to the Texas SIP. These revised rules were 
submitted for EPA approval as a SIP revision on July 2, 2010, to 
address our identified concerns in the proposed LA/LD.
    At that time, TCEQ also adopted and submitted to EPA the withdrawal 
from consideration by EPA of revisions to the Texas SIP that were 
previously submitted to EPA on October 25, 1999; July 31, 2002; and 
March 9, 2006. Please see the July 2, 2010 SIP submittal cover letter 
and the TSD for a complete listing of the sections withdrawn. The cover 
letter and TSD can be found in the rulemaking docket for this action. 
To summarize the cover letter, on July 2, 2010, the TCEQ withdrew from 
EPA's consideration as revisions to the SIP all of the public 
participation rules previously submitted, except for three subsections: 
30 TAC sections 39.411(a) and 55.152(b) as adopted in 1999, and 
currently amended 30 TAC section 39.418(b)(3), submitted to EPA in 1999 
as section 39.418(b)(4).
    Upon receipt of the new public notice SIP revision submittal, EPA 
published a withdrawal of our proposed LA/LD on November 5, 2010 (see 
75 FR 68291). In that notice we state that we withdrew our proposed LA/
LD of 30 TAC sections 39.201, 39.401, 39.403, 39.405, 39.409, 39.411, 
39.413, 39.418, 39.419, 39.420, 39.423, 39.601-39.605, 55.1, 55.21, 
55.101, 55.103, 55.150, 55.152, 55.154, 55.156, 55.200, 55.201, 55.203, 
55.205, 55.209, and 55.211 because these sections are no longer before 
us for consideration. Additionally, even though the TCEQ left before us 
for review sections 30 TAC 39.411(a), 39.418(b)(4) and 55.152(b) as 
adopted October 25, 1999, we withdrew our proposed LA/LD of these 
subsections. We did not take any further action on these three 
subsections in the November 5, 2010, notice because we concluded that 
it was the TCEQ's intent that these three subsections be evaluated with 
the entirety of the new public participation submittal from July 2, 
2010. Our rationale for this approach is fully explained in our 
November 5, 2010 notice, which can be found in the docket for this 
rulemaking. In our November 5, 2010 FRN we also withdrew our proposed 
LA/LD of the submitted sections 116.111, 116.114, 116.116, 116.183, 
116.312 and 116.740. We withdrew our action on these submitted sections 
because they included cross-references to the Chapter 39 public 
participation rules and we again concluded that it was the TCEQ's 
intent for these sections to be evaluated with the entirety of the 
public participation submittal from July 2, 2010. Our November 5, 2010 
FRN did not address the submitted repeal of section 116.124; nor has 
TCEQ withdrawn this repeal from our consideration. Therefore, the 
October

[[Page 74131]]

25, 1999 submitted repeal of section 116.124 remains before EPA for 
review.

II. Summary of the State Submittals That EPA Is Reviewing

    EPA's proposed approval action today addresses portions of four 
revisions to the Texas SIP submitted on July 22, 1998, October 25, 
1999, July 2, 2010, and March 11, 2011.

A. July 22, 1998

    On June 17, 1998, the Texas Natural Resource Conservation 
Commission \2\ made general corrections and clarifications to 30 TAC 
Chapter 116--Control of Air Pollution by Permits for New Construction 
or Modification. Governor George W. Bush submitted these amendments to 
EPA for approval as revisions to the Texas SIP in a letter dated July 
22, 1998. EPA has taken several rulemaking actions over the years on 
this submitted SIP revision package. However, we have not previously 
addressed the submittal of the public participation provisions for 
permit renewal applications at 30 TAC 116.312. Note that the July 22, 
1998 submittal of section 116.312 included a repeal and replacement of 
section 116.312 as submitted December 15, 1995. Therefore, section 
116.312 as submitted July 22, 1998 remains before us for review and 
supersedes the December 15, 1995 submittal.
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    \2\ The Texas Natural Resource Conservation Commission is a 
predecessor agency to the Texas Commission on Environmental Quality. 
In general, this proposed action will refer to the agency as the 
TCEQ.
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B. October 25, 1999

    On September 2 and September 29, 1999, the TCEQ adopted regulations 
to implement Texas House Bill 801 to establish new procedures for 
public participation in environmental permitting. Governor George W. 
Bush submitted these amendments to EPA for approval as revisions to the 
Texas SIP in a letter dated October 25, 1999. The State also submitted 
the repeal of section 116.124 at that time. On July 2, 2010, the TCEQ 
formally withdrew from our consideration all submitted components of 
the October 25, 1999, submittal, with the exception of sections 
39.411(a), 39.418(b)(4), 55.152(b), 116.111(b), 116.114(a)(2), 
116.114(a)(2)(A), 116.114(a)(2)(B), 116.114(b)(1), 116.114(c)(1)-(3), 
116.116(b)(4) and 116.312. These sections were retained for EPA review 
and will be analyzed with the entirety of the Public Participation 
revisions submitted on July 2, 2010.

C. July 2, 2010

    On June 2, 2010, the TCEQ adopted new and revised regulations 
concerning Public Notice at 30 TAC Chapter 39; Requests for 
Reconsideration and Contested Case Hearings; Public Notice at 30 TAC 
Chapter 55; and Control of Air Pollution by Permits for New 
Construction or Modification at 30 TAC Chapter 116. Chairman Bryan W. 
Shaw, Ph.D., submitted these amendments to EPA for approval as 
revisions to the Texas SIP in a letter dated July 2, 2010. The 
amendments submitted for approval as revisions to the Texas SIP are as 
follows: 30 TAC Sections 39.402(a)(1)-(6), (8), and (10)-(12); 
39.405(f)(3) and (g), (h)(1)(A)-(4), (6), (8)-(11), (i) and (j); 
39.407; 39.409; 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and 
(B), (6)-(10), (11)(A)(i) and (iii) and (iv), (11)(B)-(F), (13) and 
(15), and (f)(1)-(8), (g) and (h); 39.418(a), (b)(2)(A) and (c); 
39.419(e); 39.420(c)(1)(A)-(D)(i)(I) and (II), (D)(ii), (c)(2), (d)-
(e), and (h); 39.601; 39.602; 39.603; 39.604; 39.605; 55.150; 
55.152(a)(1), (2), (5) and (6); 55.154(a), (b), (c)(1)-(3) and (5), and 
(d)-(g); 55.156(a), (b), (c)(1), (e) and (g); 116.114(a)(2)(B), 
(a)(2)(C), (c)(2), and (c)(3); and 116.194. As a result of the 
submitted amendments to 30 TAC Sections 39.411(f)(8)(A) and 
39.605(1)(D), the TCEQ requested on July 2, 2010, that EPA remove from 
the Texas SIP the corresponding two commitments from paragraph 7 of the 
July 17, 1987 Texas PSD Supplement.
    On July 2, 2010, the TCEQ also submitted a request to withdraw from 
consideration by the EPA, the new and amended rules that were 
previously submitted to EPA for approval as revisions to the SIP on 
October 25, 1999; July 31, 2002; and March 9, 2006. The TCEQ's letter 
withdrew from our consideration all sections of the 1999, 2002, and 
2006 submittals except for 30 TAC sections 39.411(a) and 55.152(b) as 
adopted in 1999, and section 39.418(b)(3), submitted in 1999 as section 
39.418(b)(4).

D. March 11, 2011

    The TCEQ originally adopted 30 TAC Section 116.194 on January 11, 
2006, to establish the public notice provisions for PAL permit 
applications. The TCEQ submitted these revisions to EPA on February 1, 
2006 as a SIP submittal. EPA disapproved these provisions for PAL 
public notice on September 15, 2010. See 75 FR 56424. On March 11, 
2011, the TCEQ resubmitted section 116.194 as adopted January 11, 2006, 
in addition to the July 2, 2010 amendments to section 116.194. 
Therefore, section 116.194 as adopted on January 11, 2006, and amended 
on July 2, 2010, remains before us for review.
    The following table identifies the specific sections that were 
submitted for EPA review and approval into the Texas SIP.

        Table 1--Rules Submitted in Each SIP Revision Submittal That Are Affected by This Proposed Action
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                                Texas rule project    State submittal     State adoption     Rules addressed in
         Section title                number               date                date             this action
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30 TAC 39.402--Applicability    2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.402(a)(1)-(3),
 to Air Quality Permits and                                                                 (a)(6) proposed for
 Permit Amendments.                                                                         approval.
30 TAC 39.405--General Notice   2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.405(f)(3) and (g),
 Provisions.                                                                                (h)(1)(A), (h)(2)-
                                                                                            (h)(4), (h)(6),
                                                                                            (h)(8)-(h)(11), (i)
                                                                                            and (j) proposed for
                                                                                            approval.
30 TAC 39.407--Mailing Lists..  2010-004-039-LS...  July 2, 2010......  September 2, 1999  39.407 resubmitted on
                                                                                            July 2, 2010.
30 TAC 39.409--Deadline for     2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.409 proposed for
 Public Comment, and Requests                                                               approval.
 for Reconsideration,
 Contested Case Hearing, or
 Notice and Comment Hearing.

[[Page 74132]]

 
30 TAC 39.411--Text of Public   99030-039-AD......  October 25, 1999..  September 2, 1999  39.411(a) proposed
 Notice.                                                                                    for approval.
                                2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.411(e)(1)-(4)(A)(i
                                                                                            ) and (iii), (4)(B),
                                                                                            (5)(A) and (B), (6)-
                                                                                            (10), (11)(A)(i),
                                                                                            (iii) and (iv),
                                                                                            (11)(B)-(F), (13)
                                                                                            and (15), and (f)(1)-
                                                                                            (8), (g) and (h)
                                                                                            proposed for
                                                                                            approval.
30 TAC 39.418--Notice of        99030-039-AD......  October 25, 1999..  September 2, 1999  39.418(b)(4) proposed
 Receipt of Application and                                                                 for approval; note
 Intent to Obtain Permit.                                                                   that this section
                                                                                            was renumbered to
                                                                                            39.418(b)(3) as a
                                                                                            result of the July
                                                                                            2010 submittal.
                                2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.418(a), (b)(2)(A),
                                                                                            (b)(3) and (c)
                                                                                            Proposed for
                                                                                            approval.
30 TAC 39.419--Notice of        2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.419(e) proposed
 Application and Preliminary                                                                for approval.
 Decision.
30 TAC 39.420--Transmittal of   2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.420(c)(1)(A)--(D)(
 the Executive Director's                                                                   i)(I) and (II),
 Response to Comments and                                                                   (D)(ii), (c)(2), (d)-
 Decision.                                                                                  (e) proposed for
                                                                                            approval.
30 TAC 39.601--Applicability..  2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.601 proposed for
                                                                                            approval.
30 TAC 39.602--Mailed Notice..  2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.602 proposed for
                                                                                            approval.
30 TAC 39.603--Newspaper        2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.603 proposed for
 Notice.                                                                                    approval.
30 TAC 39.604--Sign-Posting...  2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.604 proposed for
                                                                                            approval.
30 TAC 39.605--Notice to        2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  39.605 proposed for
 Affected Agencies.                                                                         approval.
30 TAC 55.150--Applicability..  2010-004-039-LS...  July 2, 2010......  June 14, 2006....  55.150 was adopted in
                                                                                            2006 but submitted
                                                                                            as part of the 2010
                                                                                            SIP package.
30 TAC 55.152--Public Comment   99030-039-AD......  October 25, 1999..  September 2, 1999  55.152(b) proposed
 Period.                                                                                    for approval.
                                2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  Subsections
                                                                                            55.152(a)(1), (2),
                                                                                            (5) and (6) proposed
                                                                                            for approval.
30 TAC 55.154--Public Meetings  2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  Subsections
                                                                                            55.154(a), (b),
                                                                                            (c)(1)-(3) and (5),
                                                                                            (d)-(g) proposed for
                                                                                            approval.
30 TAC 55.156--Public Comment   2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  Subsections
 Processing.                                                                                55.156(a), (b),
                                                                                            (c)(1), (e) and (g)
                                                                                            proposed for
                                                                                            approval.
30 TAC 116.111--General         99030-039-AD......  October 25, 1999..  September 2, 1999  116.111(b)
 Application.                                                                               introductory
                                                                                            paragraph and (1)
                                                                                            and (2) proposed for
                                                                                            approval.
30 TAC 116.114--Application     99030-039-AD......  October 25, 1999..  September 2, 1999  Revisions to
 Review Schedule.                                                                           116.114(a)(2)
                                                                                            introductory
                                                                                            paragraph, new
                                                                                            (a)(2)(A), new
                                                                                            (a)(2)(B), revisions
                                                                                            to (b)(1), and new
                                                                                            (c)(1)-(3) proposed
                                                                                            for approval.
                                2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  Revisions to
                                                                                            116.114(a)(2)(B) and
                                                                                            (a)(2)(C), (c)(2)
                                                                                            and revisions to
                                                                                            (c)(3) proposed for
                                                                                            approval.
30 TAC 116.116--Changes to      99030-039-AD......  October 25, 1999..  September 2, 1999  New 116.116(b)(4)
 Facilities.                                                                                proposed for
                                                                                            approval.
30 TAC 116.124--Public Notice   98001-116-AI......  July 22, 1998.....  SECTION REPEALED.  SECTION PROPOSED FOR
 of Compliance History.                                                                     REPEAL.
30 TAC 116.194--Public          2005-010-116-PR...  February 1, 2006..  January 11, 2006.  Disapproved by EPA
 Notification and Comment.                                                                  September 15, 2010.
                                                                                            See 75 FR 56424.
                                2010-004-039-LS...  July 2, 2010......  June 2, 2010.....  116.194(a) and (b)
                                                                                            proposed for
                                                                                            approval.
                                2010-008-116-PR...  March 11, 2011....  January 11, 2006.  Resubmittal of the
                                                                                            January 11, 2006
                                                                                            adoption of 116.194
                                                                                            Proposed for
                                                                                            approval.

[[Page 74133]]

 
30 TAC 116.312--Public          98001-116-AI......  July 22, 1998.....  June 17, 1998....  Repealed previous
 Notification and Comment                                                                   116.312 that was SIP
 Procedures.                                                                                approved;
                                                                                           New adoption of
                                                                                            116.312 proposed for
                                                                                            approval.
                                99030-039-AD......  October 25, 1999..  September 2, 1999  Revised to cross-
                                                                                            reference Chapter 39
                                                                                            procedures.
----------------------------------------------------------------------------------------------------------------

E. What are we not addressing in this proposed action?

    EPA is severing and taking no action on section 116.116(b)(3) as it 
was submitted on October 25, 1999. Section 116.116(b)(3) applies to the 
review and permitting of constructed and reconstructed major sources of 
hazardous air pollutants (HAPs) under section 112(g) of the Act and 40 
CFR Part 63, Subpart B. The process for implementing these provisions 
is carried out separately from a SIP. SIPs cover criteria pollutants 
and their precursors, as regulated by NAAQS. Section 112(g) of the Act 
regulates HAPs, this program is not under the auspices of a CAA section 
110 SIP, and this program should not be approved into a SIP. 
Additionally, the submitted section 116.116(b)(3) is severable from the 
remainder of the Texas public participation submittals. Because the 
requirements under section 112(g) are self-implementing under section 
112(g) of the Act and under 40 CFR part 63, Subpart B, EPA is severing 
and taking no action on section 116.116(b)(3).
    Additionally, EPA is severing and taking no action at this time on 
the following public participation provisions that were submitted as 
SIP revisions in the July 2, 2010 submittal:
     Sections 39.402(a)(4) and (a)(5) establishing 
applicability of public notice provisions for new Flexible Permits and 
amendments to Flexible Permits under 30 TAC Chapter 116. EPA finds it 
appropriate to sever and take no action on these Flexible Permit 
provisions because the Flexible Permits Program is not currently in the 
Texas SIP. We disapproved the Flexible Permits Program on July 15, 2010 
(75 FR 41312). EPA's disapproval was remanded for further action on 
August 13, 2012. State of Texas, et al. v. EPA, Case No. 10-60614 (5th 
Circuit, Aug. 13, 2012). TCEQ has revised its rules for the Flexible 
Permits Program, but the State has not yet submitted those revised 
rules. If TCEQ submits revised rules for the Flexible Permits Program 
in the near future, EPA will analyze the public notice provisions for 
Flexible Permits when we take action on that submittal. Alternatively, 
EPA will analyze and act on the public notice provisions for Flexible 
Permits when we address the Flexible Permits Program submittal that is 
in front of us for SIP approval.
     Sections 39.402(a)(10) and 39.419(e)(3) establishing 
applicability of public notice provisions for applications for permits, 
registrations, licenses, or other types of authorizations required to 
construct, operate or authorize a component of the Future Gen. We are 
severing and taking no action on Section 39.420(h) which establishes 
response to comment (RTC) procedures for permit applications for 
Permits for Specific Designated Facilities under 30 TAC Chapter 116, 
Subchapter L. EPA finds it appropriate to sever and take no action on 
the Future Gen public notice provisions and the response to comment 
procedures because we have not yet acted on the underlying Future Gen 
permit rules at 30 TAC Chapter 116, Subchapter L. We will review and 
analyze the public notice provisions for Future Gen when we take action 
on this permit program.
     Section 39.402(a)(12) establishing public participation 
provisions pertaining to change of location of a portable facility, 
consistent with the requirements of 30 TAC section 116.178. EPA has not 
taken action on the underlying permit provisions for the Relocations 
and Changes of Location of Portable Facilities. We will analyze the 
public notice provisions for change of location of portable facilities 
when we take action on the underlying permit provisions at section 
116.178.
     Section 39.405(h)(1)(B) providing alternate language 
newspaper notice requirements for permit applications that are not air 
quality permit applications. Permit applications that are not air 
quality permit applications are beyond the scope of the Texas SIP.

III. Technical Analysis of the Texas Public Participation for Air 
Quality Permit Applications

    The Texas air quality permitting program consists of several 
different types of permit actions including permits for new major 
sources or modifications subject to PSD or NNSR requirements, PAL 
permit authorizations at existing major sources, new minor sources or 
minor amendments, and permit renewals. The Texas public participation 
program is also tiered, providing different levels and scope of public 
participation to correspond with the type of permit action. The 
following sections of this proposed action and the accompanying TSD 
will analyze the public participation process for each type of permit 
action to determine whether the submitted process is consistent with 
federal requirements.
    The Texas public participation requirements for air quality permit 
applications are found in three chapters of the TAC: Chapters 39, 55, 
and 116. Chapter 39 establishes applicability and general processes and 
requirements for the public notice documentation. Chapter 55 
establishes general requirements for public comment periods, public 
meetings and processing of public comments. Chapter 116 provides 
general timelines for public comment period and applicability. Each 
type of air quality permit application follows the same general public 
notice procedures as outlined below:
    1. Applicant submits air quality permit application to TCEQ.
    2. TCEQ reviews the application and determines whether the 
application is administratively complete. During this process, the TCEQ 
has 90 days to determine the application is complete or request 
additional information. See 30 TAC 116.114(a)(1).
    3. Once the application is administratively complete, the applicant 
is required to publish the first notice, the Notice of Receipt of 
Application and Intent to Obtain Permit (NORI), as applicable. See 30 
TAC 39.418. The NORI is a unique feature of the Texas Public Notice 
Process. The NORI provides information to the public about the receipt 
of an application and provides basic information about the proposed new 
source or modification

[[Page 74134]]

such as a description of the location and the nature of the proposed 
activity, a description of the public comment process, and the location 
where materials will be made available for review. The NORI does not 
provide any technical information, but rather serves as an indicator of 
future public notices and actions that may be of interest, enabling the 
public to anticipate draft permits. The NORI is required for all air 
quality permit applications subject to the Chapter 39 public notice 
provisions except for PAL permit applications. Note that certain permit 
amendments are exempted from the Chapter 39 public notice provisions as 
discussed in Section III.D of this proposed action.
    4. TCEQ completes the technical review and makes a preliminary 
decision. The TCEQ has 180 days from the date a new permit application 
is administratively complete, or 150 days from the date a permit 
amendment application is administratively complete, to conduct the 
technical review and make a preliminary decision. See 30 TAC 
116.114(a)(2).
    5. The applicant is required to publish the second notice, the 
Notice of Application and Preliminary Decision (NAPD) when notified by 
TCEQ of the preliminary decision. See 30 TAC 39.419. The NAPD notice 
provides the information and notice to the public consistent with 
federal requirements. The NAPD provides details about the preliminary 
decision and draft permit and the location where applicable air quality 
analyses and other technical materials will be made available for 
public review. Additionally for PSD permit applications, the NAPD 
includes the degree of increment consumption that is expected. The NAPD 
is required for all air quality permit applications subject to the 
Chapter 39 public notice provisions with the exception of permit 
renewals. The NAPD may be required for permit renewal applications 
depending on the details of the action. Note that certain permit 
amendments are exempted from the Chapter 39 public notice provisions as 
discussed in Section III.D of this proposed action.
    6. The TCEQ files the Executive Director's (ED) draft permit and 
preliminary decision, the preliminary determination summary and air 
quality analysis with the chief clerk and the clerk posts this 
information on the TCEQ's Web site. See 30 TAC 39.419(e).
    7. The comment period runs for 30 days after the last publication 
of the NAPD discussed in Step 5. See 30 TAC 55.152(a)(1).
    8. A public meeting is held if the ED determines there is a 
substantial or significant degree of public interest; if the meeting is 
requested by a member of the legislature representing the general area 
of the proposed facility/modification; if a public meeting is otherwise 
required by law; or, in the case of a PSD or NNSR permits, the meeting 
is requested by an interested person. See 30 TAC 55.154(c).
    9. The ED prepares a response to all comments received. See 30 TAC 
55.156(b)(1).
    10. The ED files the response to comments with the chief clerk as 
soon as practicable, but not later than 60 days after the end of the 
comment period. See 30 TAC 55.156(b)(3).
    11. The chief clerk will mail or transmit the ED decision and the 
RTC to the applicant, any person who submitted comments and any person 
on the mailing list for the permit action. See 30 TAC 55.156(c).
    12. The ED will take final action on the permit application within 
one year of a complete PSD, NNSR, or PAL permit application. The ED 
will take final action on the permit application within 150 days of 
receipt of a permit amendment application or 180 days for a permit 
application that is not a PSD/NNSR/PAL application (i.e, application 
for new minor or a renewal application). The TCEQ's one-year clock is 
based on the completion of the technical review and the publication of 
the NAPD as provided in Step 5. See 30 TAC 116.114(c)(3).

A. Public Participation for Prevention of Significant Deterioration 
(PSD) Permit Applications

1. Analysis of Submitted Rules
    Federal public participation requirements for PSD permit 
applications are at 40 CFR 51.160, 51.161, and 51.166(q). In Texas, 30 
TAC 39.402(a)(2) establishes that the requirements found in 30 TAC 
Chapter 39, Subchapters H and K apply to applications for the new major 
sources or major modifications for facilities subject to Chapter 116, 
Subchapter B, Division 6 (PSD permits). Every application for a new 
major source or major modification subject to PSD permitting 
requirements will go through public notice with both the NORI and NAPD. 
Note that the applicant is legally responsible for the publication of 
the NORI and NAPD, using the specific notice text provided through 
regulations by the TCEQ. The applicant is also legally responsible for 
providing copies of the public notice documents to the EPA Regional 
Office, local air pollution control agencies with jurisdiction in the 
county, and air pollution control agencies of nearby states that may be 
impacted by the proposed new source or modification. The submitted 
Texas public participation rules establish that the applicant, rather 
than the State permitting authority, as the legally responsible party 
for satisfying the public notice requirements for PSD applications. The 
applicant is required to follow the Texas public notice regulations, 
which specify the text for the notice documents and specify the 
additional agencies that will receive notice. EPA is proposing to find 
that the submitted Texas public participation regulations identifying 
the applicant as the legally responsible party meet the requirements to 
provide opportunity for public comment and for information availability 
at 40 CFR 51.161 and 51.166. The NORI and NAPD both identify locations 
where materials, including the draft permit and all technical materials 
supporting the decision, will be made available for public review. The 
TCEQ will also respond to each comment received when making a final 
permit decision. The TCEQ will provide opportunity for a public meeting 
on the permit application if requested.
2. How do the Texas public notice provisions for PSD permit 
applications address the deficiencies identified in the proposed LA/LD?
    On November 26, 2008, EPA identified several deficiencies in the 
Texas public participation rules specific to new major sources and 
modifications subject to PSD permitting requirements. See 73 FR 72001, 
at 72007-72008. Below we reiterate the deficiencies and discuss how the 
revised Texas public participation process for PSD applications 
addresses our concerns. Please also see section IV.B. of the 
accompanying TSD.
     The public participation 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)(2)(v).
    In the Texas air permit program, the term ``public meeting'' is 
equivalent to EPA's term ``public hearing''. Section 55.154(a) as 
submitted July 2, 2010, supports this by stating the purpose of a 
public meeting is to take public comment. Section 55.154(c)(3) as 
submitted July 2, 2010, specifies that a public meeting will be held 
for PSD permit applications when requested by interested persons. 
Additionally, the

[[Page 74135]]

NAPD notice for the PSD permit includes the statement that a public 
meeting will be held upon request by interested individuals. See 30 TAC 
39.411(f)(8)(D). The revised public participation SIP submittals 
address EPA's concerns and resolve the identified deficiency.
     The public participation 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)(2)(iii).
    The revised public participation SIP submittals address EPA's 
concerns. The NAPD notice provisions at 39.411(f)(8)(A) require the 
public notice document to include the expected degree of increment 
consumption. Note that the requirement to public notice the expected 
degree of increment consumption was previously part of paragraph 7 of 
the Texas PSD Supplement, as submitted to EPA on July 17, 1987, and 
approved as part of the Texas PSD SIP. On July 2, 2010, the TCEQ 
officially requested to withdraw this provision of the Texas PSD 
Supplement from the Texas SIP and requested that EPA approve the 
provision at 39.411(f)(8) into the Texas SIP in its place. We are 
proposing that upon final EPA-approval of 30 TAC 39.411(f)(8) into the 
Texas SIP, EPA will also revise the table at 40 CFR 52.2270(e) to state 
that the corresponding commitment in paragraph 7 of the PSD supplement 
has been removed from the Texas SIP and replaced by SIP-approved 
regulation at 39.411(f)(8)(A).
     The public participation 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 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)(2)(iv).
    The revised public participation SIP submittals address EPA's 
concerns. Section 39.605 specifies that the applicant will provide a 
copy of the public notice to the list of individuals who will receive 
notice of PSD permit applications, consistent with federal 
requirements. Note that the requirement to send a copy of the public 
notice of a PSD permit application was previously part of paragraph 7 
of the Texas PSD Supplement, as submitted to EPA on July 17, 1987, and 
approved as part of the Texas PSD SIP. On July 2, 2010, the TCEQ 
officially requested to withdraw this provision of the Texas PSD 
Supplement from the Texas SIP and requested that EPA approve the 
provision at 39.605 into the Texas SIP in its place. We are proposing 
that upon final EPA-approval of 30 TAC 39.605 into the Texas SIP, EPA 
will also revise the table at 40 CFR 52.2270(e) to state that the 
corresponding commitment in paragraph 7 of the PSD supplement has been 
removed from the Texas SIP and replaced by SIP-approved regulation at 
39.605(1)(D).
     The public participation rules do not require that a 
response to comments be available prior to final action on the PSD 
permit, as required by 40 CFR 51.166(q)(2)(vi) and (viii).
    The current public participation SIP submittals address EPA's 
concerns and resolve the identified deficiency. EPA's PSD rules do not 
require that a permitting authority provide a response to comments 
prior to final action on the PSD permit. Rather, EPA's rules at 40 CFR 
51.166(q)(2)(vi) require that the permitting authority consider all 
timely comments and make said comments available at the same location 
as the preconstruction materials used in the permitting decision. The 
Texas rules at 30 TAC 55.156(b)(1) comply with EPA regulations by 
requiring that the TCEQ consider all timely, relevant and material, or 
significant public comment before an application is approved. Further, 
when making PSD permit decisions, 30 TAC 55.156(b)(1) specifically 
requires that the TCEQ ED prepare a response to all comments received. 
The Texas rules at 30 TAC 55.156(b)(1) also require that a response to 
comments document be prepared prior to the final action on the permit. 
Interested individuals have access to the response to comments document 
for each permitting action through the TCEQ's Web site; the address of 
which is provided in each NAPD notice. The RTC includes a summary of 
each comment received. The actual comment letters can be obtained from 
the TCEQ offices.
3. Proposed Findings Specific to the Texas Public Participation 
Provisions for PSD Permit Applications
    EPA's analysis of the Texas public participation requirements for 
PSD permit applications demonstrates that the submitted provisions are 
consistent with the Act and EPA regulations at 40 CFR 51.160, 51.161 
and 51.166(q). Further, the submitted provisions address all 
deficiencies previously cited in our November 26, 2008 proposed limited 
approval/limited disapproval of Texas public notice requirements. 
Therefore, we propose full approval of the Texas public notice 
provisions for PSD permit applications submitted on July 22, 1998; 
October 25, 1999; and July 2, 2010.

B. Public Participation for Nonattainment New Source Review (NNSR) 
Permit Applications

1. Analysis of Submitted Rules
    Federal public participation requirements for NNSR permit 
applications are at 40 CFR 51.160 and 51.161. Submitted section 30 TAC 
39.402(a)(2) establishes that the requirements found in 30 TAC Chapter 
39, Subchapters H and K apply to applications for new major sources or 
major modifications for facilities subject to Chapter 116, Subchapter 
B, Division 5 (NNSR permits). Every application for a new major source 
or major modification subject to NNSR permitting requirements will go 
through public notice with both NORI and NAPD. Note that the applicant 
is legally responsible for the publication of the NORI and NAPD, using 
the specific notice text provided through regulations by the TCEQ. The 
applicant is also legally responsible for providing copies of the 
public notice documents to the EPA Regional Office, local air pollution 
control agencies with jurisdiction in the county, and air pollution 
control agencies of nearby states that may be impacted by the proposed 
new source or modification. The submitted Texas public participation 
rules establish the applicant, instead of the State permitting 
authority, as the legally responsible party for satisfying the public 
notice requirements for PSD applications. The applicant is required to 
follow the Texas public notice regulations, which specify the text for 
the notice documents and specify the additional agencies that will 
receive notice. EPA is proposing to find that the submitted Texas 
public participation regulations identifying the applicant as the 
legally responsible party meet the requirements to provide opportunity 
for public comment and for information availability at 40 CFR 51.161. 
The NORI and NAPD both identify locations where materials, including 
the draft permit and all technical materials supporting the decision, 
will be made available for public review. The TCEQ will respond to each 
comment received when making a final permit decision. The TCEQ will 
also provide opportunity for a public meeting on the permit application 
if requested.

[[Page 74136]]

2. Proposed Findings Specific to the Texas Public Participation 
Provisions for NNSR Permit Applications
    As explained fully in the accompanying TSD, EPA finds that the 
public notice process described above for NNSR permit applications 
satisfies the federal requirements for public notice found at 40 CFR 
51.160, 51.161. Also, EPA did not identify any NNSR-specific 
deficiencies in our November 26, 2008 proposed limited approval/limited 
disapproval. Therefore, we propose full approval of the Texas public 
notice provisions for NNSR permit applications submitted on July 22, 
1998; October 25, 1999; and July 2, 2010.

C. Public Participation for Plant-Wide Applicability Limit (PAL) Permit 
Applications

1. Analysis of Submitted Rules
    Federal public participation requirements for PALs are established 
at 40 CFR 51.165(f)(4)(B) and (f)(5) and 51.166(w)(4)(b) and (w)(5). 
Each of these sections specify that PALs for existing major stationary 
sources shall be established, renewed, or increased through a procedure 
that is consistent with 40 CFR 51.160 and 51.161. Additionally, 
sections 51.165(f)(5) and 51.166(w)(5) require the reviewing authority 
provide the public with notice of the proposed approval of a PAL 
permit; at least a 30-day period for submittal of public comment; and 
the reviewing authority must address all material comments before 
taking final action on the permit. Submitted Section 39.402(a)(8) 
establishes that the requirements found in 30 TAC Chapter 39, 
Subchapters H and K apply to applications for the establishment or 
renewal of, or an increase in, plant-wide applicability limit permits 
under 30 TAC Chapter 116, Subchapter C. Unlike the public notice 
provisions for PSD and NNSR permit applications, the Texas public 
notice process for PAL permit applications only requires publication of 
the NAPD. Because the NORI is a unique element to the Texas permit 
program that is not federally required, the NAPD is sufficient to 
satisfy federal requirements for notice. The Texas rules at 30 TAC 
55.152(a)(1) require a 30-day comment period following the publication 
of the NAPD. And TCEQ's comment processing procedures at 30 TAC 
55.156(b)(1) require that the TCEQ ED prepare a response to all 
comments received for any application for the establishment or renewal 
of, or an increase in, a PAL permit.
2. How do the Texas public notice provisions for PAL permit 
applications address the deficiencies identified in the proposed LA/LD?
    On November 26, 2008, EPA identified several PAL-specific 
deficiencies in the Texas public participation rules. See 73 FR 72001, 
at 72008. Below we reiterate the deficiencies and discuss how the 
revised Texas public participation process for PAL applications 
addresses our concerns. Please also see section IV.D. of the 
accompanying TSD.
     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 federal PAL 
rules at 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11).
    The July 2, 2010 public participation submittal includes section 
39.402(a)(8). Section 39.402(a)(8) specifies that the Chapter 39 
provisions apply to the applications for the establishment or renewal 
of, or an increase in, PAL permit. Tables IV.D-1 and D-2 in our TSD 
demonstrate that the July 2, 2010 submittal satisfies requirements at 
40 CFR 51.160 and 161. Table IV.D-3 in our TSD demonstrates how the 
July 2, 2010 submittal satisfies 40 CFR 51.165(f)(5) and (11) and 
51.166(w)(5) and (11). The July 2, 2010 public participation submittal 
addresses EPA's concerns and resolves the identified deficiency.
     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).
    Sections 39.411(e)(4)(A)(i), 39.411(f)(1) and 55.156(b)(1) as 
submitted July 2, 2010 satisfy the requirement that the TCEQ address 
all comments before approving a PAL permit application. The July 2, 
2010 public participation submittal addresses EPA's concerns and 
resolves the identified deficiency.
     The applicability provision in section 39.403 does not 
include PALs, despite the cross-reference to Chapter 39 in Section 
116.194.
    The July 2, 2010 public participation submittal included section 
39.402(a)(8). Section 39.402(a)(8) specifies that the Chapter 39 
provisions apply to the applications for the establishment or renewal 
of, or an increase in, a PAL permit. The July 2, 2010 public 
participation SIP submittal addresses EPA's concerns and resolves the 
identified deficiency.
3. Proposed Findings Specific to the Texas Public Participation 
Provisions for PAL Permit Applications
    EPA's analysis of the Texas public participation requirements for 
PAL permit applications demonstrates that the submitted provisions are 
consistent with the Act, EPA regulations at 40 CFR 51.160, 51.161, 
51.165(f)(4)(B) and (f)(5) and 51.166(w)(f)(4)(b) and (w)(5). Further, 
the submitted rules address all deficiencies previously cited in our 
November 26, 2008 proposed limited approval/limited disapproval of 
Texas public notice requirements. Therefore, we propose full approval 
of the Texas public notice provisions for PAL permit applications 
submitted on July 2, 2010, and March 11, 2011.

D. Public Participation for Minor NSR Permit Applications

1. Analysis of Submitted Rules
    TCEQ's revised regulations for public participation increase 
opportunities for public involvement in Minor NSR permitting decisions 
compared to the current SIP-approved provisions. TCEQ's current SIP-
approved rules at 30 TAC 116.130(a) require public notice with the NORI 
and NAPD for every application for a new minor source. However, for 
permit amendment applications, the current SIP-approved rules only 
require public notice at the discretion of the TCEQ Executive Director. 
This means that under the existing SIP-approved regulations, many 
permit amendments are not subject to public notice requirements, and 
that these rules do not specifically define the conditions upon which 
the Executive Director can require public notice. TCEQ's revised rules 
continue to require that all applications for new Minor NSR sources go 
through full public notice with the NORI and NAPD, improve the public 
notice opportunities for permit amendments, and define conditions for 
use of the Executive Director's discretion.
    TCEQ's revised rules enhance public participation by creating 
tiered, public notice requirements for permit amendments. Unlike the 
existing SIP regulations, the revised rules now require that most of 
permit amendments go through full public notice with the NORI and NAPD. 
This includes changes to the permits that authorize a change in the 
character of emissions or a release of an air contaminant not 
previously

[[Page 74137]]

authorized, and changes that increase emissions above certain 
thresholds. But, the new rules retain and refine the TCEQ's director's 
discretion provisions for two specific types of minor permit 
amendments--for ``de minimis'' or ``insignificant'' activities. For 
these amendments, TCEQ will not automatically require an opportunity 
for public participation. TCEQ justified its approach for permit 
amendment applications with emissions less than these thresholds using 
de minimis principles like those established in Alabama Power.\3\
---------------------------------------------------------------------------

    \3\ See Ala. Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979).
---------------------------------------------------------------------------

    Despite these thresholds however, the TCEQ revised rules vest the 
TCEQ Executive Director with the authority to require public notice for 
an otherwise exempt permit amendment if there is (1) reasonable 
likelihood of significant public interest in the activity, (2) 
reasonable likelihood for emissions impact at a nearby receptor, (3) 
reasonable likelihood of high nuisance potential from the operation of 
the facility, or (4) the application involves a facility in the lowest 
classification under Texas Water Code, Section 5.753 and 5.754 and the 
Compliance History Rules at 30 TAC Chapter 60.
    In sum, the applicability of the Texas public participation 
requirements for Minor NSR permit applications is outlined at 30 TAC 
39.402 as follows:
     New minors--39.402(a)(1). A new minor source can be any 
source statewide that submits a permit application under Chapter 116, 
Subchapter B that is not subject to the requirements for new major 
sources or major modifications for NNSR or PSD at Chapter 116, 
Subchapter B, Divisions 5 and 6.\4\
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    \4\ New minor permit actions do not include Permits-by-Rule 
(PBRs) or Standard Permits (SPs). New minor permit actions are 
authorized under the SIP-approved provisions at 30 TAC Chapter 116, 
Subchapter B. PBRs and SPs are separately authorized under SIP-
approved provisions at 30 TAC Chapter 106 and Chapter 116, 
Subchapter F, respectively. Public notice for PBRs and SPs is 
outside the scope of the state's July 2, 2010 SIP submittal or the 
action today.
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     Air quality amendments \5\ under 30 TAC Chapter 116. Note 
that a permit amendment is a SIP-approved revision mechanism for an 
existing Chapter 116, Subchapter B permit. Minor amendments can occur 
at minor sources or sources that are major for PSD or NNSR whenever:
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    \5\ EPA SIP-approved the Texas permit amendment process at 30 
TAC 116.116(b)(1) and (b)(2) on November 14, 2003 as adopted by the 
TCEQ on August 9, 2000 (see 68 FR 64543). These provisions provide 
that the permit holder shall not vary from any representation or 
permit condition without obtaining a permit amendment if the change 
will cause (A) a change in the method of control of emissions; (B) a 
change in the character of the emissions; or (C) an increase in the 
emission rate of any air contaminant. Further, any applicant who 
requests permit amendments must receive prior approval by the TCEQ 
ED or the commission. Applications for amendments are subject to the 
requirements of 30 TAC 116.111. The current SIP requirements of 30 
TAC 116.111 were SIP-approved by EPA on August 28, 2007 as adopted 
by the TCEQ on August 21, 2002 (see 72 FR 49198).
---------------------------------------------------------------------------

    (a) A change occurs in the character of emissions or release of an 
air contaminant not previously authorized under the permit (i.e., 
change in control method or an increase in emission rate)--
39.402(a)(3)(A);
    (b) The total emissions increase from all facilities to be 
authorized under the amended permit at a facility not affected by THSC, 
section 382.020,\6\ exceeds the State's established ``de minimis'' 
levels--39.402(a)(3)(B);
---------------------------------------------------------------------------

    \6\ THSC, Sec.  382.020 establishes emission control 
requirements for selected agricultural facilities such as cotton 
gins, corn mills, grain elevators, peanut processing and rice drying 
facilities. THSC Sec.  382.020 applies statewide.
---------------------------------------------------------------------------

    (c) The total emissions increase from all facilities to be 
authorized under the amended permit at a facility affected by THSC, 
section 382.020, exceeds the State's established ``insignificant'' 
levels--39.402(a)(3)(C); or
    (d) Other minor amendments where the Executive Director determines 
reasonable likelihood for interest or impact--39.402(a)(3)(D)(i)-(iv).
     Applications for concrete batch plants without enhanced 
controls authorized by a standard permit under 30 TAC Chapter 116, 
Subchapter F \7\--39.402(a)(11).
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    \7\ EPA SIP-approved the Texas Standard Permit process and 
public participation process on November 14, 2003, as adopted by 
TCEQ on December 16, 1999 (see 68 FR 64543). EPA also SIP-approved 
revisions to the public participation process for the development of 
standard permits on September 17, 2008, as adopted by TCEQ September 
20, 2006 (see 73 FR 53716).
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    The notice requirements for each type of Minor NSR permit 
application listed above are generally the same--meaning that a permit 
amendment will have the same public notice requirements as an 
application for a new minor source. The submitted Texas rules generally 
provide that the identified Minor NSR permit applications (all new 
minor sources, qualifying minor permit amendments, and concrete batch 
plants without enhanced controls authorized by a standard permit \8\) 
will go through public notice consistent with federal requirements at 
40 CFR 51.160 and 51.161. These types of Minor NSR permit applications 
are required to have both NORI and NAPD; therefore, the public will 
receive notice of the application and have the opportunity to comment 
on the draft permit and accompanying technical information. Note that 
the applicant is legally responsible for the publication of the NORI 
and NAPD, using the specific notice text provided through regulations 
by the TCEQ. The applicant is also legally responsible for providing 
copies of the public notice documents to the EPA Regional Office, local 
air pollution control agencies with jurisdiction in the county, and air 
pollution control agencies of nearby states that may be impacted by the 
proposed new source or modification. EPA is proposing to find that the 
submitted Texas public participation regulations identifying the 
applicant as the legally responsible party meet the requirements to 
provide opportunity for public comment and for information availability 
at 40 CFR 51.161. The NORI and NAPD both identify locations where 
materials, including the draft permit and all technical materials 
supporting the decision, will be made available for public review. The 
TCEQ will respond to each comment received when making a final permit 
decision. The TCEQ will also provide opportunity for a public meeting 
on the permit application if requested.
---------------------------------------------------------------------------

    \8\ There are two standard permits applicable to concrete batch 
plants in the Texas Standard Permit program at 30 TAC Chapter 116, 
Subchapter F. As discussed previously, EPA approved revisions to the 
public participation process for the development of standard permits 
on September 17, 2008, as adopted by TCEQ September 20, 2006 (see 73 
FR 53716). Under the Texas SP Program, SPs for concrete batch plants 
with enhanced controls (i.e., more extensive controls than adequate 
suction shrouds and filters as specified in the SP) go through no 
further public notice. However, concrete batch plants without 
enhanced controls as identified in the SP program are subject to 
NORI and NAPD publication under 30 TAC Chapter 39.
---------------------------------------------------------------------------

2. Minor NSR Public Notice Requirements Specific to Two Types of Minor 
NSR Permit Amendment Applications
    As explained above, the submitted Texas public participation 
provisions create a tiered program, wherein two certain types of Minor 
NSR amendment applications that have been defined by TCEQ as ``de 
minimis'' or ``insignificant'' will not automatically require public 
notice. The following outlines the specific thresholds that qualify as 
``de minimis'' or ``insignificant'' under the revised rules, and the 
basis for TCEQ's determination.
i. Identification of the Minor NSR Emission Thresholds and Affected 
Source Populations
     Thresholds are only used for permit amendment 
applications. Applications for new Minor NSR sources are now required 
by these submitted rules to go

[[Page 74138]]

through the public procedures of the NORI and NAPD. The minor permit 
amendment applications are further divided based on the amount of 
emission increases at issue and whether the facility is affected by 
THSC section 382.020.
     THSC section 382.020 applies to an agricultural facility 
such as corn mill, cotton gin, feed mill, grain elevator, peanut 
processing facility or rice drying facility.
    [cir] Section 39.402(a)(3)(B) provides that if the permit amendment 
application is not for an affected agricultural facility then the 
public notice provided through the NORI and NAPD apply, unless the 
total emissions increase from all facilities authorized in the 
amendment does not exceed any of the following levels established by 
the State as ``de minimis'' levels:
    [ssquf] 50 TPY CO
    [ssquf] 10 TPY SO2
    [ssquf] 0.6 TPY lead
    [ssquf] 5 TPY of NOX, VOC, PM, or any other contaminant 
except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and 
oxygen.
    [cir] Section 39.402(a)(3)(C) provides that if the permit amendment 
is for an affected agricultural facility, then the public notice 
requirements of the NORI and NAPD apply, unless the total emissions 
increase from all authorized facilities in the amendment does not 
exceed any of the following thresholds established by the State as 
``insignificant'' thresholds:
    [ssquf] 250 TPY CO or NOX
    [ssquf] 25 TPY of VOC, SO2, PM or any other air 
contaminant except CO2, H2O, N2, 
CH4, C2H6, H2 and 
O2.
    [ssquf] A new major stationary source or major modification 
threshold as defined in section 116.12 of this title
    [ssquf] A new major stationary source or major modification 
threshold, as defined in 40 CFR 52.21 under the PSD requirements
     If the permit amendment application includes proposed 
emissions increases of any air contaminant above the identified 
threshold then the amendment application is required to go through 
notice pursuant to Chapter 39 requirements. That means the permit 
amendment application will go through the NORI and NAPD publication 
process.
ii. How were the ``De minimis'' and ``Insignificant'' thresholds for 
minor NSR permit amendments established?
(A). Texas ``De Minimis'' Thresholds for Minor Permit Amendments
    The thresholds established by the State as ``de minimis'' 
thresholds apply to all minor permit amendment applications, except 
those for affected agricultural facilities. The Texas ``de minimis'' 
thresholds submitted on July 2, 2010, were originally adopted by the 
TCEQ in 2001 after a rulemaking process consistent with the Texas 
Administrative Procedure Act, Texas Government Code, Chapter 2001. TCEQ 
solicited, received and responded to comments during the 2001 
rulemaking process. The TCEQ provided further opportunity to comment on 
the scope of its minor NSR program, and on the selected ``de minimis'' 
thresholds during the proposal of the July 2010 rulemaking, but there 
were no additional comments on the ``de minimis'' threshold values.
    During the State's rulemaking process for the current Texas public 
participation rules that have been submitted to the EPA, the TCEQ 
reviewed its rationale for the scope of the minor NSR program and its 
rationale for the selection of the ``de minimis'' thresholds. TCEQ 
found that the rationale developed in 2001 was still relevant and 
factual; therefore the rationale was resubmitted as part of the July 2, 
2010 Public Participation SIP submittal. The TCEQ presents the 
rationale for the selection of the ``de minimis'' thresholds in the 
June 18, 2010 Texas Register, pages 5226-5228. The ``de minimis'' 
thresholds are generally based on EPA's significant emission rates and 
significant impact levels (which are themselves a percentage of the 
applicable NAAQS) that together are used to determine whether a 
proposed source or modification will have a significant impact. The 
TCEQ also accounted for all averaging periods for each NAAQS in the 
development of the ``de minimis'' thresholds.
    For example, in developing the ``de minimis'' threshold for 
SO2, the TCEQ noted that EPA's federal significance level of 
40 TPY was based on a design value concentration of 4% of the 24-hour 
NAAQS. See 45 FR 52675, at 52705-52710 (August 7, 1980), for further 
information on how EPA established the significance levels for criteria 
pollutants. The TCEQ determined that a ``de minimis'' emission rate of 
10 TPY is more appropriate because it is based on a design value 
concentration of 1% of the lowest significant impact level (SIL) to 
NAAQS ratio that would trigger a detailed air quality analysis for any 
of the three SO2 NAAQS averaging periods.
    Within the scope of the Texas Minor NSR program, the ``de minimis'' 
thresholds distinguish those minor permit amendment applications that 
require full review from those that may not. But, the thresholds do not 
affect any part of the technical review of these minor permit amendment 
applications or the requirement to comply with other requirements such 
as application of required control technology, reporting when required 
to the emissions inventory, and analysis of monitoring data. 
Additionally, being below the ``de minimis'' threshold does not 
override any notice or technical requirements for PSD, NNSR or new 
Minor NSR permit applications. We propose to find that TCEQ provided an 
adequate demonstration to show that their selected ``de minimis'' 
thresholds for permit amendments are based on insignificant emission 
rates and insignificant emissions impact.
(B). Texas ``Insignificant'' Thresholds for Minor Permit Amendments for 
Selected Agricultural Facilities
    The thresholds selected by the State and called ``insignificant'' 
thresholds apply only to minor permit amendment applications for 
affected agricultural facilities. TCEQ originally adopted the 
``insignificant'' thresholds submitted on July 2, 2010, for minor 
permit amendment applications at affected agricultural facilities in 
2001 after a rulemaking process consistent with the Texas 
Administrative Procedure Act, Texas Government Code, Chapter 2001. TCEQ 
solicited, received, and responded to comments during the 2001 
rulemaking process. The TCEQ provided further opportunity to comment on 
the selected ``insignificant'' thresholds during the proposal of the 
July 2010 rulemaking but received no additional comments on the 
``insignificant'' threshold values.
    During the rulemaking process for the current Texas public 
participation rules, the TCEQ reviewed the rationale for the selection 
of the ``insignificant'' thresholds. TCEQ found that the rationale 
developed in 2001 was still relevant and factual; therefore the 
rationale was resubmitted as part of the July 2, 2010 Public 
Participation SIP submittal. The TCEQ presents the rationale for the 
selection of the ``insignificant'' thresholds in the June 18, 2010 
Texas Register, pages 5228-5230. TCEQ states that its discretionary 
public participation program for selected agricultural facilities with 
emissions increases below the State's defined ``insignificant'' 
thresholds is ``intended to focus the attention of the public and the 
commission on emission increases that could have a greater potential 
for public interest and

[[Page 74139]]

questions regarding impacts to public health and welfare.''
    TCEQ further provided a review of the sources subject to THSC 
382.020 from September 2001 through March 2010. This review indicates 
that the TCEQ processed 356 permit amendment applications for subject 
agricultural facilities. These agricultural facilities are located in 
approximately 88 counties, many of which are rural areas in west Texas, 
and many of these applications were associated with cotton gins. These 
amendment applications accounted for about 10% of the amendment 
applications for all types of facilities (not just these selected 
agricultural facilities) processed during that time period. The primary 
pollutant of concern in these applications is particulate matter (PM). 
No area in Texas is designated as nonattainment for PM2.5 
(or PM less than 2.5 microns in diameter). El Paso, Texas is designated 
as nonattainment for PM10 (or PM less than 10 microns in 
diameter); but the designation is based on historical transport of 
particulate emissions from the Ciudad Juarez, Mexico area. See 59 FR 
02532, January 18, 1994. TCEQ reviewed dispersion modeling results from 
1990 and 1994 and found that El Paso would be in attainment for the PM 
standards, but for the emissions transport from Ciudad Juarez. Because 
the TCEQ has issued no nonattainment or PSD permits for agricultural 
facilities in the El Paso area and none of the permit amendment 
applications during the applicable time period were for facilities in 
El Paso County, the TCEQ has determined that PM emissions generated by 
the handling, loading, unloading, drying, manufacturing or processing 
of grain, seed, legumes or vegetable fibers are not of concern in El 
Paso. Further, the TCEQ has only issued one PSD permit statewide for an 
agricultural facility under THSC 382.020, and that is for a brewery. 
Therefore, TCEQ concluded that the ``insignificant'' thresholds for 
agricultural facilities would not negatively impact the El Paso area or 
any other area in Texas.
    Like, the selected ``de minimis'' thresholds, the state's chosen 
``insignificant'' thresholds are used to distinguish those agricultural 
facilities for which permit amendments require full review from those 
that may not. However, within the scope of Texas's revised rules, the 
thresholds do not affect any part of the technical review of these 
permit amendment applications; or the requirement to continue to comply 
with other requirements such as application of appropriate control 
technology, reporting when required to the emissions inventory, and 
analysis of monitoring data. Further, the discretionary public notice 
for minor permit amendments at selected agricultural facilities does 
not override any notice or technical requirements for PSD, NNSR or new 
Minor NSR permit applications. We believe that TCEQ provided an 
adequate demonstration to show that their selected ``insignificant'' 
thresholds for permit amendments for selected agricultural facilities 
are limited in scope, apply to a limited subcategory of sources, and 
represent a small subset of the permit amendment universe. We propose 
to find this demonstration meets 40 CFR 51.160 and 51.161.
3. How do the Texas public notice provisions for minor NSR permit 
applications address the deficiencies identified in the proposed LA/LD?
    The Federal requirements for Minor NSR permit applications and 
public notice requirements are at 40 CFR 51.160 and 161. These 
requirements establish the minimum requirements for approvability of a 
state's Minor NSR SIP, which a state develops to prevent construction 
and modification of stationary sources from interfering with an area's 
ability to achieve compliance with a NAAQS. These requirements 
generally require 30 days public review for all sources subject to the 
Minor NSR; however, these requirements also allow a State to identify 
the types and sizes of facilities, buildings, structures, or 
installations, which will require full preconstruction review by 
justifying the basis for the State's determination of the proper scope 
of its program.\9\ Importantly, our decision to approve a State's scope 
of its Minor NSR program must consider the individual air quality 
concerns of each jurisdiction, and therefore will vary from state to 
state.
---------------------------------------------------------------------------

    \9\ For example, under the federal Tribal NSR regulations, EPA 
did not require permits for sources with emissions below ``de 
minimis'' levels, and for sources in ``insignificant source 
categories''. 76 FR 38748, at 38755. In sum, under these Tribal NSR 
regulations, some sources are not required to obtain permits, and 
have no public notice requirements.
---------------------------------------------------------------------------

    On November 26, 2008, EPA identified several Minor NSR-specific 
deficiencies in the Texas public participation rules. See 73 FR 72001, 
at 72007. Below we reiterate the deficiencies and discuss how the 
revised Texas public participation process for Minor NSR applications 
submitted for EPA approval on July 2, 2010, address our concerns. In 
sum, as discussed more fully in the following section, we propose to 
find that that the July 2, 2010 submitted Tiered public participation 
requirements improve upon the existing SIP-approved requirements for 
public notice, that the rules resolve the concerns we expressed in 
November 2008, and that the regulations satisfy the requirements of 
51.160 and 51.161.
    Please note that the July 2, 2010 public participation SIP 
submittal reorganized and restructured some of the previous rule 
language. As such, the italicized passages below contain references to 
specific rule citations and provisions that do not have a direct 
corollary to the July 2, 2010 rules before us now. See the discussion 
in section I.B of this proposed action for a history of the Texas 
Public Participation rule submittals. The bulleted list and subsequent 
analysis demonstrates that the deficiencies EPA previously identified 
on November 26, 2008, have been addressed through the current public 
participation submittal of July 2, 2010. Please also see section IV.E. 
of the accompanying TSD.
     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 (NORI) is published.
    The July 2, 2010 public participation SIP submittal has expanded 
the requirement to publish the NAPD to all new minor sources or minor 
modifications under Chapter 116, Subchapter B. See 30 TAC 39.419(e). As 
demonstrated in the accompanying TSD, the NAPD notice is consistent 
with 40 CFR 51.161(a) and (b) to provide notice and opportunity to 
comment on the state's analysis and the preliminary determination. The 
public participation provisions submitted July 2, 2010 address the 
identified deficiency.
     Under section 39.402(a)(3)(C) [Note that during the 
proposed LA/LD the section we cited was section 39.403(b)(8), this 
section number was changed to 39.402(a)(3)(C) when the rule was 
submitted July 2, 2010], 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

[[Page 74140]]

[submitted October 25, 1999] 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.
    The concern as stated at the time of our proposed LA/LD was that a 
permit amendment below the identified thresholds would not receive 
public notice. Nonetheless, as explained above, EPA recognizes a 
State's ability to tailor the scope of its minor NSR program as 
necessary to achieve and maintain the NAAQS. As outlined above, the 
State justified the scope of its regulatory program, and thus the 
permit applications for which full public review is necessary using de 
minimis principles like those established in Alabama Power to identify 
amendments that are not environmentally significant. Specifically, it 
identified ``de minimis'' and ``insignificant'' thresholds for which 
review with public participation may or may not be necessary depending 
on whether the amendment triggers public review under the specified 
Executive Director's criteria.
     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.
    At the time of the November 26, 2008 proposed limited approval/
limited disapproval, section 39.419 included subsection (e)(1)(C) which 
exempted minor NSR permit applications from publication of the second 
notice, or NAPD. In response to our proposed limited approval/limited 
disapproval, the TCEQ expanded the publication of the NAPD to cover 
Minor NSR permit applications and specified Minor NSR permit amendment 
applications. The July 2, 2010 public notice SIP submittal requires 
NORI and NAPD public notice for all new minor sources and all permit 
amendments above identified ``de minimis'' and ``insignificant'' 
emission thresholds. For permit amendment applications with emissions 
less than these thresholds, the TCEQ justified its approach using de 
minimis principles like those established in Alabama Power. See the 
June 18, 2010 Texas Register, pages 5224-5230. Additionally, requiring 
NORI and NAPD notice for amendments above a specified emissions 
threshold is more stringent than the existing SIP; which only requires 
public notice of minor amendments at the discretion of the Executive 
Director. The July 2, 2010 SIP submittal addresses the identified 
concerns.
     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.
    Subsequent to our withdrawal of the proposed rule, EPA has 
determined that this provision does not contravene federal 
requirements. Generally, we do not approve cross-references that are 
not otherwise SIP-approved. But, in these instances, the statutory 
provisions serve to provide more clarity to the subset of sources 
identified in the rule language. Note that since the time of the 
proposed limited approval/limited disapproval, TCEQ has withdrawn from 
our consideration the prior version of Chapter 39 that was submitted 
for SIP approval, and resubmitted a new version of Chapter 39. The 
sections discussing Applicability of the public participation program 
that include cross-references to statutes are now located at Section 
39.402(a)(3)(B) and (C). In this instance, the statute mentioned is 
THSC section 382.020 concerning agricultural facilities. Inclusion of 
the statutory citation to THSC section 382.020 provides additional 
clarity to the submitted provision.
4. Proposed Findings Specific to the Texas Public Participation 
Provisions for Minor NSR Permitting
    We propose to find that the July 2, 2010 submitted public notice 
provisions, including the tiered public participation approach for 
permit amendments, improve upon the existing SIP-approved requirements 
for public notice by expanding opportunities for public involvement in 
minor NSR permitting decision. We further propose to find that TCEQ's 
demonstrations in the July 2, 2010 public notice SIP submittal 
adequately justify the scope of activities that require full review 
with public participation, because it potentially excludes only those 
permit amendments that meet the state's selected ``de minimis'' and 
``insignificant'' thresholds that the State has shown are 
environmentally insignificant. Accordingly, EPA proposes to find that 
TCEQ's tiered public participation program satisfies the provisions of 
51.160(e) and 51.161. Moreover, we also propose to find that the TCEQ 
revised rules for discretionary public notice are approvable, because 
the provisions adequately confine Executive Director discretion by 
authorizing the use of discretion under specified criteria that are 
consistent with the goals and purposes of the Act to provide an 
adequate opportunity for informed public participation. EPA is 
proposing to find that the submitted Texas public participation 
regulations identifying the applicant as the legally responsible party 
also meet the requirements to provide opportunity for public comment 
and for information availability at 40 CFR 51.161, because the NORI and 
NAPD both identify locations where materials, including the draft 
permit and all technical materials supporting the decision will be made 
available for public review and the required information is submitted 
to EPA.
    Finally, as explained above, we propose to find that the submitted 
provisions address all deficiencies we previously cited in our November 
26, 2008 proposed limited approval/limited disapproval of Texas public 
notice requirements. Accordingly, we propose full approval of the Texas 
public notice provisions for Minor NSR permit applications submitted on 
July 22, 1998; October 25, 1999; and July 2, 2010.

E. Public Participation for Permit Renewal Applications

1. Analysis of Submitted Rules
    EPA SIP-approved the Texas provisions for renewal of Title I 
permits at 30 TAC Chapter 116, Subchapter D,

[[Page 74141]]

Sections 116.310-116.315, on March 10, 2006 (71 FR 12285), with 
revisions approved on March 20, 2009 (74 FR 11851), March 11, 2010 (75 
FR 11464) and November 14, 2011 (76 FR 70354). Therefore, permit 
renewals issued under 30 TAC Chapter 116, Subchapter D are SIP-approved 
Title I permits and we have evaluated the public participation 
requirements for said permits. Section 39.402(a)(6) establishes that 
the requirements found in 30 TAC Chapter 39, Subchapters H and K apply 
to applications for renewal of Chapter 116 permits. Section 116.312, 
Public Notification and Comment Procedures specific to permit renewals, 
provides a cross-reference to the public participation rules under 
Chapter 39. Generally, permit renewal applications are required to 
publish NORI and provide a 15-day comment period. In some instances, 
permit renewal applications will be required to publish NAPD and 
provide a 30-day comment period. The TCEQ is required to respond to any 
comments received and provide a response to comments with the final 
permit decision. Under the Texas SIP-approved permit renewal process, a 
Title I permit is required to be renewed every ten years. A permit 
renewal application is approved based upon a demonstration in the 
renewal application that the permitted facility will operate in 
accordance with all requirements and conditions of the existing permit, 
including representations in the application to construct, any 
subsequent amendments, any previously granted renewal, and the 
compliance history of the facility. Parts C and D of the Act and EPA's 
federal NSR requirements regulate preconstruction of sources and 
neither prohibit, nor require Title I permits (PSD/NNSR/Minor NSR) to 
be periodically renewed. As such, the State's renewals provisions go 
beyond the minimum requirements of the Act. While neither the Act nor 
EPA's regulations address the public notice of permit renewals, we 
propose to find that approval of public notice for permit renewals will 
enhance the SIP-approved renewals program.
2. Proposed Findings Specific to the Texas Public Participation 
Provisions for Permit Renewal Applications
    As explained fully in the accompanying TSD, EPA proposes to find 
that the public notice process described above for permit renewal 
applications satisfies the federal requirements for public notice found 
at 40 CFR 51.160 and 51.161 and is consistent with the requirements at 
section 110(a)(2)(C) of the Act to provide continued implementation and 
enforcement of the NSR SIP permitting program. EPA did not identify any 
renewal-specific deficiencies in our November 26, 2008 proposed limited 
approval/limited disapproval. Therefore, we propose full approval of 
the Texas public notice provisions for permit renewal applications 
submitted on July 22, 1998; October 25, 1999; and July 2, 2010.

F. Does proposed approval of the Texas public participation provisions 
for air quality permit applications interfere with attainment, 
reasonable further progress, or any other applicable requirement of the 
Act?

    Section 110(l) of the CAA states:
    Each revision to an implementation plan submitted by a State under 
this Act shall be adopted by such State after reasonable notice and 
public hearing. The Administrator shall not approve a revision of a 
plan if the revision would interfere with any applicable requirement 
concerning attainment and reasonable further progress (as defined in 
section 171), or any other applicable requirement of this Act.
    Thus, under section 110(l), the regulations submitted as a SIP 
revision for public participation for air quality permit applications 
must meet the procedural requirements of section 110(l) by 
demonstrating that the State followed all necessary procedural 
requirements such as providing reasonable notice and public hearing of 
the SIP revision. Additionally, the SIP revision must demonstrate that 
the adopted rules will not interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the CAA. We propose to find that the TCEQ 
satisfied all procedural requirements pursuant to section 110(l) as 
detailed in our accompanying TSD.
    Public participation in air quality permitting is a requirement of 
the CAA. EPA regulations at 40 CFR Part 51, sections 51.160 and 51.161 
provide the general requirements that all air quality permits must 
address; sections 51.165(f)(5) and 51.166(w)(5) provide the 
requirements specific to PAL permitting; and section 51.166(q) provides 
further public notice provisions specific to PSD permitting. As 
discussed in this proposed action and in the accompanying TSD, EPA 
proposes that the public notice processes as submitted by the TCEQ 
satisfy the minimum requirements of 40 CFR 51.160, 51.161, and where 
applicable, 51.165 and 51.166. Additionally, we propose that TCEQ 
provided an adequate demonstration to show that the Minor NSR public 
notice tiers and exemptions will assure the NAAQS are achieved and that 
the tiers and exemptions meet the de minimis principles set forth in 
Alabama Power. Our review and analysis demonstrates that the submitted 
regulations are at least as stringent as the minimum federal 
requirements and existing SIP requirements; and in some instances the 
Texas program provides notice beyond the minimum federal requirements. 
The act of providing notice on air quality permit applications 
consistent with the provisions submitted by the TCEQ on July 22, 1998; 
October 25, 1999; July 2, 2010; and March 11, 2011 will provide more 
visibility and detail of the air permitting process. The Texas Public 
Participation SIP submittals satisfy section 110(l) of the CAA.

IV. Proposed Action

    Under section 110 and parts C and D of the Act, and for the reasons 
stated above, EPA proposes to approve the following revisions to the 
Texas SIP:
     30 TAC Section 116.312 and the repeal of 30 TAC Section 
116.124 as submitted on July 22, 1998.
     30 TAC Sections 39.411(a); 39.418(b)(4); 55.152(b); 
116.111(b); 116.114(a)(2), (a)(2)(A), (a)(2)(B), (b)(1), and (c)(1)-
(3); 116.116(b)(4); and 116.312 as submitted on October 25, 1999.
     30 TAC Sections 39.402(a)(1)-(3), (a)(6); 39.405(f)(3) and 
(g), (h)(1)(A), (h)(2)-(h)(4), (h)(6), (h)(8)-(h)(11), (i) and (j); 
39.407; 39.409; 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and 
(B), (6)-(10), (11)(A)(i), (iii) and (iv), (11)(B)-(F), (13) and (15), 
and (f)(1)-(8), (g) and (h); 39.418(a), (b)(2)(A), (b)(3) and (c); 
39.419(e); 39.420(c)(1)(A)-(D)(i)(I) and (II), (D)(ii), (c)(2), (d)-
(e); 39.601; 39.602; 39.603; 39.604; 39.605; 55.150; 55.152(a)(1), (2), 
(5) and (6); 55.154(a), (b), (c)(1)-(3) and (5), (d)-(g); 55.156(a), 
(b), (c)(1), (e) and (g); 116.114(a)(2)(B), (a)(2)(C), (c)(2) and 
(c)(3); and 116.194(a) and (b) as submitted on July 2, 2010.
     30 TAC Section 116.194 as adopted January 11, 2006 and 
resubmitted on March 11, 2011.
    Note that EPA is proposing to approve provisions at 30 TAC 
39.411(f)(8)(A) and 39.605(1)(D) that will replace two provisions of 
the Texas SIP, found in the Texas PSD SIP Supplement. Upon finalization 
of this action, EPA will revise the table at 40 CFR 52.2270(e) to 
reflect these approvals.
    Consistent with the analysis presented in today's proposed notice 
and the accompanying TSD, EPA is severing and taking no action on the 
following provisions submitted on July

[[Page 74142]]

2, 2010: 30 TAC Sections 39.402(a)(4), 39.402(a)(5), 39.402(a)(10), 
39.402(a)(12), 39.405(h)(1)(B), 39.419(e)(3), 39.420(h). EPA is also 
severing and taking no action on the following provisions submitted on 
October 25, 1999: 30 TAC Sections 116.111(a)(2)(K), and 116.116(b)(3).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 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 CAA. Accordingly, this 
notice merely proposes to approve 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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 30, 2012.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2012-30098 Filed 12-12-12; 8:45 am]
BILLING CODE 6560-50-P