[Federal Register Volume 79, Number 3 (Monday, January 6, 2014)]
[Rules and Regulations]
[Pages 551-573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30229]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0612; FRL-9904-03-Region-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
revisions to the Texas State Implementation Plan (SIP) that establish 
the public participation requirements for air quality permits. EPA 
finds 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 finalizing this action 
under section 110 and parts C and D of the Clean Air Act (the Act).

DATES: This final rule will be effective on February 5, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2010-0612. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information the disclosure of which is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available only in hard copy. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733. While all documents in the docket are listed in the 
index, some information may be publicly available only at the hard copy 
location (e.g., copyrighted material), and some may not be publicly 
available at either location (e.g., CBI). To inspect the hard copy 
materials, please schedule an appointment with the person listed in the 
FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 
214-665-7253.

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 whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background for this Final Action
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

[[Page 552]]

I. Background for this Final Action

    On December 13, 2012, EPA proposed approval of the July 22, 1998; 
October 25, 1999; July 2, 2010; and March 11, 2011, revisions to the 
Texas SIP that establish the public participation requirements for air 
quality permits. See 77 FR 74129. In this proposed action we explained 
that 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. There are additional detailed 
public participation requirements in 40 CFR 51.166(q) for the 
Prevention of Significant Deterioration (PSD) major permitting program.
    Our December 13, 2012, proposed approval and the accompanying 
Technical Support Document provided the history of the Texas Public 
Participation provisions in the Texas SIP and a summary of each of the 
submitted revisions to the Texas SIP. The proposal identifies the 
specific sections that were proposed for approval from the July 22, 
1998; October 25, 1999; July 2, 2010; and March 11, 2011 SIP 
submittals. Note that while we are acting on revisions to the Texas SIP 
that were submitted in four separate packages, we collectively refer to 
these rules as the Texas Public Participation SIP submittal from July 
2, 2010 since the majority of the revisions were submitted on that 
date.

II. Response to Comments

    EPA accepted comments on our proposed approval of the Texas public 
participation SIP revisions for 60 days, through February 11, 2013. We 
received comments from 7 organizations--the Texas Commission on 
Environmental Quality (TCEQ), the Gulf Coast Lignite Coalition (GCLC), 
the Association of Electric Companies of Texas (AECT), the Texas 
Industry Project (TIP), the BCCA Appeal Group (BCCAAG), Luminant, and 
the University of Texas Law Clinic on behalf of Air Alliance Houston, 
Citizens for Environmental Justice, Texas Environmental Justice 
Advocacy Services, Public Citizen and Environmental Integrity Project. 
All comment letters can be found in their entirety in the docket for 
this rulemaking. The following section summarizes the comments received 
and provides responses to each. Note that comments are grouped together 
into categories to assist the reader.

General Comments in Support of the Proposed Approval

    Comment 1: AECT stated that EPA's December 13, 2012, proposed 
approval of the Texas Public Participation Rules as revisions to the 
Texas SIP were adequately supported. As a result, the AECT requested 
that EPA issue final approval of the Texas Public Participation 
submittals as revisions to the Texas SIP.
    Response 1: EPA appreciates the support for our proposed approval. 
No changes were made to the final rule as a result of this comment.
    Comment 2: GCLC and Luminant support EPA's December 13, 2012, 
proposed approval of the Texas Public Participation rules as revisions 
to the Texas SIP. The GCLC states that the submitted public 
participation requirements are fully protective of Texans' ability to 
thoroughly and adequately comment on air permit applications in the 
state and meet and exceed federal public participation requirements. 
Luminant states that the TCEQ has a robust regulatory program to ensure 
the protection of human health and the environment in Texas, including 
opportunity for public participation regarding issues before the 
Commission.
    Response 2: EPA appreciates the support for our proposed approval. 
Our December 13, 2012, proposal and the accompanying Technical Support 
Document identified the manner in which the submitted rules satisfy all 
necessary requirements for public participation under the CAA and EPA's 
regulations. No changes were made to the final rule as a result of 
these comments.
    Comment 3: GCLC believes that existing public participation 
requirements and previous SIP submittals were more than adequate to 
comply with the CAA, particularly with regard to Texas' contested-case 
hearing process which is far more than required by federal law.
    Response 3: EPA appreciates GCLC taking the opportunity to comment 
on our December 13, 2012, proposed approval of the Texas Public 
Participation rules. However, we disagree with the commenter's 
statement that the previous public participation requirements were 
adequate under federal law. EPA believes the previous public 
participation requirements were inadequate to implement the 
requirements of the CAA and EPA's regulations, thus we proposed limited 
approval/limited disapproval on November 26, 2008. See 73 FR 72003. EPA 
withdrew our proposed limited approval/limited disapproval on November 
5, 2010, only after the TCEQ had adopted and submitted revised public 
participation rules that replaced the previous SIP submissions and 
addressed our concerns identified in the proposed limited approval/
limited disapproval. See 75 FR 68291. TCEQ's own comment letter 
acknowledges that the ``new and amended rules submitted to EPA in July 
2010 were adopted in response to EPA's notice proposing limited 
approval and limited disapproval of TCEQ's outstanding SIP revisions 
regarding public participation.'' See February 11, 2013 letter from 
TCEQ to EPA in the docket for this rulemaking.
    Regardless, our December 13, 2012, proposed action evaluated the 
revised public participation rules submitted as revisions to the Texas 
SIP on July 2, 2010, by the TCEQ and found the submitted rules to be 
adequate under federal law as described in our proposal and 
accompanying TSD. We note that contested case hearings were not 
submitted for EPA's review and therefore the contested case hearing 
process is outside the scope of this final rule action.
    Comment 4: The BCCAAG and TIP supports EPA's December 13, 2012, 
proposed approvals of each applicable Texas regulation in EPA's 
proposed notice at 77 FR 74129. The BCCAAG and TIP state that these 
regulations comply with the FCAA and are an important part of the Texas 
air quality permitting program.
    Response 4: EPA appreciates the support for our proposed approval. 
No changes were made to the final rule as a result of this comment.
    Comment 5: The TCEQ commented that the new and amended rules 
submitted to EPA in July 2010 were adopted in response to EPA's 
proposed limited approval and limited disapproval. The TCEQ recognizes 
that EPA has reviewed and proposed approval of most of the rules 
submitted in 2010, as well as in earlier submittals, stating that all 
outstanding issues were adequately addressed.
    Response 5: EPA appreciates the support of the TCEQ for our 
proposed rulemaking. We note that the TCEQ's cooperation and 
willingness to collaborate with the Region 6 office has enabled us to 
propose full approval of the revised public participation rules, as 
submitted July 2, 2010. No changes were made to the final rule as a 
result of this comment.

[[Page 553]]

    Comment 6: The TCEQ supports EPA's determination that TCEQ meets, 
and in some cases exceeds, the minimum federal requirements and 
therefore has proposed full approval of public participation rules 
submitted in 1998, 1999, 2010 and 2011. The TCEQ noted that the EPA 
correctly observes that the Notice of Receipt of Application and Intent 
to Obtain Permit (NORI) is a unique element to the Texas permit program 
that is not federally required. TCEQ also commented that it is 
important to acknowledge that TCEQ's comment period exceeds federal 
requirements. Comments are considered timely if filed any time after 
the NORI is published and through the end of the comment period. This 
timeline encompasses the administrative completeness determination, the 
NORI publication period, the technical review period, as well as the 
comment period associated with the Notice of Application and 
Preliminary Decision (NAPD), which may be more than 30 days if 
alternate language publication is required and that publication is 
after the English language publication. Therefore, the state comment 
period greatly exceeds the federal requirement in length of time, thus 
affording greater opportunity for public participation.
    Response 6: EPA appreciates the support for our proposed approval. 
As detailed in our proposal and accompanying TSD, EPA finds that the 
public participation provisions as submitted in four separate revisions 
to the SIP satisfy the minimum federal requirements for public 
participation consistent with the CAA and EPA regulations. We agree 
with the TCEQ that our analysis has identified some provisions of the 
Texas public participation process that go beyond the minimum 
requirements--such as the requirement to publish notice of the 
application (first notice, or NORI) or to require sign-posting. No 
changes were made to the final rule as a result of this comment.
    Comment 7: The TCEQ notes that EPA correctly observes that the 
comment period runs for 30 days after last publication of the NAPD, 
and, by proposing approval of these rules, acknowledges that the TCEQ's 
comment period for minor and major NSR permit applications that are 
subject to the requirements of Chapters 39, 55, and 116 meets the 
minimum federal requirements for a 30 day period after the draft permit 
is made available for review.
    Response 7: EPA appreciates the support for our proposed approval. 
We agree with the TCEQ that the comment requirement for the comment 
period to run 30 days after last publication of the NAPD meets the 
minimum federal requirements for a 30-day comment period after the 
draft permit is available for review. No changes were made to the final 
rule as a result of this comment.
    Comment 8: UT Law Clinic commented that the proposed rules do 
correct some clear legal shortcomings in Texas' public participation 
requirements for the Major permitting programs, the Nonattainment New 
Source Review (NNSR) and Prevention of Significant Deterioration (PSD) 
applications.
    Response 8: EPA appreciates the support. No revisions were made to 
the final rule as a result of this comment.

Comments Regarding Severability

    Comment 9: EPA received several comments on our approach of taking 
no action for the public participation provisions at 30 TAC 
116.111(a)(2)(K) and 30 TAC 116.116(b)(3), relating to HAPs permitting 
under CAA 112(g) and 40 CFR Part 63. The BCCAAG and TIP concur with 
EPA's analysis that 30 TAC 116.116(b)(3) should not be part of the 
Texas SIP. The TCEQ understands that EPA is taking no action on the 
October 25, 1999 submittal of 30 TAC 116.111(a)(2)(K) and 
116.116(b)(3). The TCEQ further notes that EPA returned 30 TAC 
116.111(a)(2)(K) and 116.116(b)(3) by letter on June 29, 2011.
    Response 9: EPA agrees with TCEQ's assessment of the scope of this 
approval action. No changes were made to the final rule as a result of 
this comment.
    Comment 10: EPA received several comments on our decision to take 
no action on the public participation provisions for new flexible 
permits and flexible permit amendments at 30 TAC 39.402(a)(4) and 
(a)(5). The TCEQ recognizes that the EPA is taking no action on the 
public participation rules for new flexible permits and flexible permit 
amendment applications (adopted June 2, 2010). The BCCAAG and TIP 
request that EPA approve 30 TAC 39.402(a)(4) and (5) rather than take 
no action, as proposed. The BCCAAG and TIP identified the following 
reasons EPA should act on the public participation provisions for 
Flexible Permits:
    1. EPA has a statutory obligation to act on these SIP submittals 
for public participation for flexible permits.
    2. EPA's prior disapproval of the Flexible Permit program does not 
provide a basis to delay action on the submitted sections.
    3. Analysis of the 402(a)(4) and (a)(5) provisions does not reveal 
any concerns since the provisions require Flexible Permit holders to 
follow procedures that EPA is otherwise proposing to approve.
    Response 10: EPA agrees that we have a statutory obligation to act 
on the SIP submittal for public participation for flexible permits; 
however we have chosen to sever the flexible permit public 
participation provisions per our SIP approval authority and discretion 
under the CAA and address those public participation provisions in the 
future with the flexible permit program as a whole in a separate SIP 
action. This approach will prevent any misunderstanding among the 
regulated community that would arise if a public participation pathway 
was approved for a permitting program that is not currently approved 
into the Texas SIP. Additionally, EPA has not finished its review of 
the flexible permitting program and how its public participation 
process is intertwined. Further, there is nothing in the Act that 
prohibits the bifurcation of our action. Finally, this approach was 
anticipated and supported by the TCEQ as explained in the final Texas 
Register. See 35 TexReg 5223, June 18, 2010. No revisions were made to 
this final rule as a result of this comment.
    Comment 11: EPA received several comments on our decision to take 
no action on the public participation provisions for portable 
facilities at 30 TAC 39.402(a)(12). The TCEQ recognizes that EPA is 
taking no action on the public participation rules for portable 
facilities (adopted February 10, 2010) because these provisions are 
associated with rules for permitting programs which have not yet been 
reviewed by EPA. The BCCAAG and TIP request that EPA approve 30 TAC 
39.402(a)(12) and 30 TAC 116.20 and 30 TAC 116.178 as submitted March 
19, 2010. The BCCAAG and TIP note that EPA has a statutory obligation 
to act on the portable facility rules and public participation 
requirements.
    Response 11: EPA has a statutory obligation to act on the SIP 
submittal for public participation for portable facilities; however we 
have chosen to sever the portable facility public participation 
provisions per our SIP approval authority and discretion under the CAA. 
As explained in our December 13, 2012, proposal, EPA has not evaluated 
the public participation provisions for portable facilities at 30 TAC 
39.402(a)(12) for inclusion in the Texas SIP because we have not yet 
acted on the underlying definitions and permitting rules for portable 
facilities at 30 TAC 116.20 and 116.178, respectively. EPA will address 
the definitions and permitting provisions for the Relocations and 
Changes of

[[Page 554]]

Location of Portable Facilities at a separate time and in a separate 
action. We will address the public participation requirements for 
portable facilities at that time. This approach will prevent any 
misunderstanding among the regulated community that would arise if a 
public participation pathway was approved for a permitting program that 
is not currently approved into the Texas SIP. Additionally, EPA has not 
finished its review of the portable facility rules and how the public 
participation process for portable facilities is intertwined. Further, 
there is nothing in the Act that prohibits the bifurcation of our 
action. No revisions were made to this final rule as a result of this 
comment.
    Comment 12: TCEQ recognizes that EPA is taking no action on the 
public participation rules for FutureGen (adopted February 22, 2006), 
which is associated with rulemakings for permitting programs which have 
not yet been reviewed by EPA.
    Response 12: EPA has a statutory obligation to act on the SIP 
submittal for public participation for FutureGen applications; however 
we have chosen to sever the FutureGen public participation provisions 
per our SIP approval authority and discretion under the CAA. As 
explained in our December 13, 2012, proposal, EPA had not evaluated the 
public participation provisions for applications for permits, 
registrations, licenses, or other type of authorization required to 
construct, operate, or authorize a component of the FutureGen project 
at 30 TAC 39.402(a)(10) for inclusion in the Texas SIP because we had 
not yet acted on the underlying definitions and permitting rules for 
the FutureGen project at 30 TAC Chapter 91. Since the time of our 
proposal on public participation, EPA has separately completed our 
review of the FutureGen program, including the public participation 
requirements. EPA signed a direct final approval of the FutureGen 
program rules on November 1, 2013. Information regarding this separate 
rulemaking can be found in the FutureGen docket, EPA-R06-OAR-2006-0593. 
No revisions were made to this final rule as a result of this comment.
    Comment 13: TCEQ agrees with EPA's decision to take no action on 30 
TAC 39.405(h)(1)(B). EPA inadvertently included this provision in the 
proposed SIP analysis because TCEQ did not include this rule as part of 
its submittal.
    Response 13: EPA appreciates the comment. We agree with the TCEQ 
that we erred in our proposal when we identified 30 TAC 39.405(h)(1)(B) 
as submitted as a SIP revision on July 2, 2010. Today's final action 
corrects this error.
    Comment 14: UT Law Clinic commented that to the extent EPA finds 
other provisions of the Texas submittal separable, EPA should require 
Texas to commit to correcting the additional deficiencies identified in 
order to obtain a conditional approval of those provisions.
    Response 14: Our proposed rulemaking identified the reasons for 
severing and taking no action on the portions of the submittal relevant 
to public participation for Flexible Permits, FutureGen permitting, and 
Portable Facilities. EPA has not yet evaluated these programs; 
therefore, there are no identified deficiencies in the programs to be 
corrected. However, in this action, we are finalizing our proposed 
approval of the Texas public participation program. As explained in 
this response to comments, for those portions of the July 2, 2010, SIP 
submittal for public participation we are taking action on, we do not 
find any deficiencies in Texas's public participation program as it is 
currently submitted to EPA for review. So, further severing of 
provisions from this action in order to resolve deficiencies is 
unnecessary. No revisions have been made to the final rule as a result 
of this comment.

Comments Regarding Environmental Justice

    Comment 15: UT Law clinic commented that EPA has a mandate to 
provide members of Environmental Justice communities with the 
``opportunity to participate in decisions about activities that may 
affect their environment and/or health''.
    Response 15: EPA aims to provide meaningful involvement in the 
decision-making process to all people, regardless of race, color, 
national origin, or income. Our December 13, 2012, proposal and today's 
final action have been closely analyzed to ensure federal requirements 
have been satisfied for public participation under the CAA and EPA's 
regulations. For more discussion on how our proposal and final action 
on the Texas public participation rules meet or satisfy minimum federal 
requirements please see comment and response 22. EPA believes it is 
important to recognize and work with Environmental Justice communities 
to assure their full participation in permitting activities; however, 
we note that there are no specific statutes or regulations giving EPA 
authority to require a state's SIP to address public participation 
opportunities for Environmental Justice communities. Rather, EPA is 
subject to Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations. (59 FR 7629, February 16, 1994). Through our compliance 
with EO 12898 we work to identify minority communities and low-income 
communities that may be disproportionately impacted by a specific 
rulemaking. EPA endeavors in every rulemaking to ensure each member of 
the public has an equal opportunity for public participation. The 
public participation provisions are designed to apply consistently 
statewide and provide every member of the public the opportunity to 
review and submit comments on a proposed permit application. These 
public participation provisions meet the federal requirements for 
public participation. The TCEQ also requires additional notice and 
opportunity through the NORI publication. Further, the sign postings 
and alternate language publication provisions of the Texas rules are 
specifically targeted to ensuring environmental justice communities 
receive fair notice and opportunity to comment. No changes were made to 
our final rule as a result of this comment.
    Comment 16: UT Law Clinic also commented that the approval of the 
proposed public participation rules would exacerbate public 
participation inadequacies that Texas communities have complained about 
for years.
    Response 16: The commenter did not provide specific examples of the 
``public participation inadequacies that Texas communities have 
complained about for years''; however, the comment letter discusses a 
variety of specific issues throughout and had attached several 
petitions that environmental groups have previously submitted to EPA 
under the Administrative Procedures Act.\1\ These petitions discuss 
various issues regarding Texas's air permitting program, including some 
of the specific issues that are also noted in the comment letter. Where 
the UT Law Clinic submitted specific issues, we have addressed those 
comments below with respect to our proposed approval of the July 2, 
2010 public participation submittal. We note that, insofar as where 
Texas's public participation program as submitted meets the public 
participation requirements in Title I of the CAA and the applicable 
federal

[[Page 555]]

requirements, EPA must approve the submittals. EPA's proposed limited 
approval limited disapproval noted several deficiencies in Texas's 
prior public participation program. For reasons explained throughout 
this document, we find that the State's revised July 2, 2010 submittal 
cures these deficiencies. No changes were made to our final rule as a 
result of this comment.
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    \1\ ``Petition for EPA Action Addressing Texas' Air Permitting 
Program Deficiencies, Environmental Integrity Project (August 28, 
2008); and First Supplement to Petition for EPA Action Addressing 
Texas' Air Permitting Program Deficiencies, Environmental Integrity 
Project (January 5, 2009).''
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Comments Regarding the Requirements of the Existing SIP-Approved Public 
Participation Rules

    Comment 17: UT Law Clinic commented that the EPA misrepresented the 
public participation requirements of the current Texas SIP. UT Law 
Clinic commented that EPA's proposed approval states that the current 
SIP only requires public notice of amendments at the discretion of the 
TCEQ Executive Director. But, contrary to EPA's assertions, the UT Law 
Clinic comments that the current Texas SIP requires public 
participation for all permit applications, including applications for 
any modifications.
    Response 17: EPA disagrees with the commenter's interpretation of 
the current public participation requirements in the existing Texas 
SIP. The current SIP-approved requirements for public participation are 
found at 30 TAC 116.130-116.137. The applicability of these 
requirements is found at 30 TAC 116.130(a) as follows: ``Any person who 
applies for a new permit or permit renewal shall be required to publish 
notice of the intent to construct a new facility or modify an existing 
facility or renew a permit. The notice shall be published in a 
newspaper in general circulation in the municipality where the facility 
is located or to be located. Any person who applies for a permit 
amendment shall provide public notification as required by the 
executive director'' (emphasis added).\2\
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    \2\ Public notice for permit amendments at the discretion of the 
TCEQ Executive Director is only applicable to minor permit 
amendments. 30 TAC 116.131(a) requires that ``for any permit subject 
to the FCAA, Title I, Part C or D, or to Title 40 Code of Federal 
Regulations (CFR), Part 51.165(b), the executive director shall 
state a preliminary determination to issue or deny the permit and 
require the applicant to conduct public notice of the proposed 
construction.'' Therefore, a permit application for a new major 
source or major modification subject to PSD/NNSR permitting 
requirements is required to go through public notice.
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    The applicability statement at 30 TAC 116.130(a) creates three 
categories of permit actions: (1) New permits, (2) permit renewals and 
(3) permit amendments. This subdivision of the types of permit actions 
is consistent with an analysis of the Texas SIP permitting provisions 
at 30 TAC Chapter 116, Subchapter B, Sections 116.110 and 116.111. The 
Applicability of the Permit Application Requirements at 30 TAC 
116.110(a) requires a construction permit for any new facility or 
modification of any existing facility. This construction permit will be 
issued under the General Application provisions at 30 TAC 116.111. Note 
that if the construction permit is for a new major stationary source or 
a major modification, then the General Applicability provisions at 30 
TAC 116.111 direct the applicant to the SIP-approved permitting 
provisions for PSD and NNSR. If the construction permit is for a minor 
NSR permit or a minor permit modification, the permit will be issued 
pursuant to the case-by-case minor permit provisions of 30 TAC 116.116 
or will satisfy the conditions of a Standard Permit or a Permit by 
Rule. The General Applicability provisions at 30 TAC 116.110(b) further 
state that minor modifications to existing permitted facilities may be 
handled through the amendment of an existing permit. Thus the SIP-
approved Texas permit program designates a permit amendment as one type 
of permitting action that can be used to authorize a modification to an 
existing facility. Other types of permitting actions that could be used 
for modifications at existing facilities would include standard 
permits, permits by rule, and permit alterations.
    EPA believes that the commenter misinterpreted the Texas permitting 
program such that a minor permit modification is a specific type of 
permit application that would have its own public notice requirements. 
As presented previously, minor modification of an existing source is 
accomplished through a permit amendment, standard permit, permit by 
rule, or permit alteration. Because the SIP approved permitting program 
recognizes new permits, permit renewal and permit amendments, EPA's 
proposed approval is correct in its characterization of the SIP-
approved public notice requirements for minor permit amendments. 
Pursuant to the SIP-approved language at 30 TAC 116.130(a), minor 
permit amendments only go through public notice to the extent required 
by the TCEQ Executive Director. The July 2, 2010 public notice SIP 
submittal improves upon the public notice requirements for minor permit 
amendments. The new rules retain and refine the TCEQ's Executive 
Director's discretion provisions to apply to only two specific types of 
minor permit amendments--only those minor permit amendments that are 
below the ``de minimis'' and ``insignificant'' thresholds. No changes 
were made to the final rule as a result of this comment.
    Comment 18: UT Law Clinic commented that under the revised rules, 
public participation would be required only for modifications that meet 
the definition of ``amendment'' and that meet one of the criteria in 30 
TAC 39.402(a)(3)(B) or (a)(3)(C). This narrowing of the universe of 
modifications subject to public participation weakens the existing SIP-
approved public participation requirements.
    Response 18: As discussed in Comment/Response 17, the commenter has 
misunderstood the current SIP-approved public notice and permitting 
provisions in the Texas Program for minor modifications. A minor 
modification of an existing facility is not a specific permit action 
that goes through public notice. Rather, when a facility will be 
modified (pursuant to the SIP-approved definition of modification at 30 
TAC 116.10) and the modification is below the major NSR thresholds, the 
source owner or operator must apply for a permit amendment or permit 
alteration or for other applicable permit actions such as a standard 
permit or permit by rule to address the minor modification.
    Under the current SIP, any minor modification that is permitted as 
a permit amendment will only go to public notice at the discretion of 
the Executive Director. In contrast, the revised public participation 
rules submitted July 2, 2010, require minor NSR permit amendments to go 
through public notice if the emission rates exceed the ``de minimis'' 
and ``insignificant'' thresholds. Further, the Executive Director has 
the discretion to require notice for any minor permit amendments that 
fall below the ``de minimis'' and ``insignificant'' thresholds if the 
Executive Director determines these permit amendments to have a 
reasonable likelihood for significant public interest in a proposed 
activity, emissions to impact a nearby sensitive receptor, a high 
nuisance potential from the operation of the facilities, or the 
application involves a facility in the lowest classification under 
Texas Water Code, Sec.  5.753 and Sec.  5.754 and 30 TAC Chapter 60. In 
contrast to the SIP-approved Executive Director discretion for minor 
permit amendments, which essentially provides the Executive Director 
with the authority to exempt all minor permit amendments from public 
notice, the revised rules submitted July

[[Page 556]]

2, 2010, that are being approved today only provide for the Executive 
Director to exercise discretion in requiring additional notice if the 
criteria presented above are satisfied. Therefore, the revised rules 
expand the public notice requirements to cover the majority of minor 
permit amendment applications. EPA views this expansion of public 
notice requirements for minor modifications to be an improvement of the 
SIP instead of the weakening purported by the commenter. No changes 
were made to the final rule as a result of this comment.
    Comment 19: UT Law Clinic commented that, although the current SIP 
does include provisions regarding alterations, it does not exempt 
modifications authorized by alterations from public participation 
requirements, including notice and the opportunity for public comment. 
The commenter also submitted several examples of alterations being used 
in permits.
    Response 19: Minor modifications to an existing facility are not a 
specific type of permit action under the SIP-approved Texas permit 
program. Rather, when a facility chooses to make a minor modification 
at an existing major or minor facility, the source owner or operator 
will choose to get authorizations for that minor modification through a 
permit amendment, permit alteration, standard permit or permit by rule. 
Therefore, the commenter is incorrect when stating that the current SIP 
requires public participation for minor modifications authorized by 
alterations. The existing SIP requirements for permit alterations, 
which are outside the scope of today's rulemaking, exempt permit 
alterations from public notice as explained at 67 FR 58697, September 
18, 2002.

Comments Regarding the Proposed Rules Weaken the Existing SIP-Approved 
Public Participation Requirements

    Comment 20: UT Law Clinic commented that EPA proposes to approve 
rules that weaken existing public participation requirements and that 
create new loopholes that eliminate all public participation for many 
minor new source review applications, including those at major sources 
in nonattainment areas.
    Response 20: EPA disagrees with the commenter. As our proposal 
explained, the revised public participation rules submitted on July 2, 
2010, either improve upon the existing SIP-approved public 
participation requirements or maintain the status quo for all types of 
permit applications subject to the Chapter 39 public participation 
requirements.
     For permit applications for major new sources and major 
modifications subject to PSD or NNSR permit requirements the revised 
rules represent no substantive change in the existing SIP-approved 
requirements. Permit applications for new major sources or major 
modifications subject to PSD and NNSR permit requirements must go 
through NORI and NAPD notice.
     Public notice requirements for PAL permit applications are 
not explicitly provided for in the current SIP-approved public notice 
requirements. However, as discussed in the proposal and TSD, the public 
notice requirements for PAL permit applications are consistent with 
federal requirements and require NAPD notice.
     Public notice requirements for renewal permit applications 
are consistent with the current SIP-approved requirements. As noted in 
the proposal, there is no federal requirement for a Title I permit 
renewal, therefore EPA views any renewal permit and the subsequent 
public notice to enhance Texas's SIP-approved permit renewals program.
     TCEQ's revised regulations for public participation 
increase opportunities for public involvement in Minor NSR permitting 
decisions compared to the current SIP-approved requirements. For permit 
applications for new minor sources the revised July 2, 2010, public 
notice rules maintain the status quo and require NORI and NAPD notice. 
However, as explained in Comment/Response 17 the current SIP-approved 
public notice requirements for minor permit amendment applications is 
at the discretion of the Executive Director. This means that under the 
current SIP, many minor permit amendment applications may receive no 
notice at all. In response to our proposed limited approval/limited 
disapproval, the July 2, 2010, public participation SIP submittal 
expanded the publication of the NAPD to cover Minor NSR permit 
applications and specified Minor NSR permit amendment applications. The 
new rules also require permit amendment applications to go through NORI 
and NAPD if the amendment is for a change in the character of emissions 
or the release of an air contaminant not previously authorized. 
Further, the revised rules require NORI and NAPD public notice for all 
new minor sources and all permit amendments above identified ``de 
minimis'' and ``insignificant'' thresholds. For permit amendment 
applications with emissions less than these thresholds, the TCEQ 
justified its approach using de minimis principles like those 
established in Ala. Power Co. v. Costle, 636 F.2d 323, at 360-361 (D.C. 
Cir. 1979) [hereinafter Alabama Power]. See the June 18, 2010 Texas 
Register, pages 5224-5230. 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.
    EPA's proposal and our analysis of the July 2, 2010, public notice 
submittal did not identify any public notice loop holes that violate 
the relevant requirements in the CAA or federal regulations. Rather, we 
have identified an expansion of public notice requirements for minor 
permit amendments above certain thresholds. For the minor permit 
amendment applications below the thresholds, there is either no public 
notice (which maintains the status quo of the current SIP requirements) 
or the Executive Director can exercise the provided discretion to 
require public notice if there is reasonable likelihood for significant 
public interest in a proposed activity, there is reasonable likelihood 
for emissions to impact a nearby sensitive receptor, there is 
reasonable likelihood for a high nuisance potential from the operation 
of the facilities, or the application involves a facility in the lowest 
classification under Texas Water Code, Sec.  5.753 and Sec.  5.754 and 
30 TAC Chapter 60. No changes were made to the final rule as a result 
of this comment.
    Comment 21: UT Law Clinic commented that the Texas rules at 30 TAC 
39.402 create new exemptions from public participation requirements. 
Specifically, the Texas rules at 30 TAC 39.402 limit public 
participation to only certain types of modifications, those that are 
defined as ``amendments'' and that meet the one or more of the 
conditions in 30 TAC sections 39.402(a)(3)(A), (B), (C), or (D), or 30 
TAC 39.402(a)(6). Unlike the existing SIP rules, the rules proposed for 
approval exempt large classes of modifications from all public 
participation. Their approval would, therefore, weaken the existing 
SIP.
    Response 21: EPA disagrees with the commenter that the existing SIP 
requires public participation for all minor modifications. The existing 
SIP only requires public participation for new minor permit 
applications or renewal applications. Applications for minor permit 
amendments are only required to go through notice to the extent 
determined by the Executive Director. Therefore, the commenter is 
inaccurate

[[Page 557]]

in the assertion that the existing SIP requires public participation 
for all minor modifications.
    EPA also disagrees that the new rules submitted July 2, 2010, at 30 
TAC 39.402 create new exemptions from public participation requirements 
and limit public participation to only certain types of minor 
modifications. The revised public participation rules maintain the 
existing stringency of the SIP requirements for major NSR and new minor 
stationary sources and provide more opportunities for public 
participation for minor modifications to existing facilities. In the 
following paragraphs we will address each portion of the applicability 
provisions of the July 2, 2010 rules as requested by the commenter.
     The public notice requirements at 30 TAC 39.402(a)(3)(A) 
do not limit public notice. Section 39.402(a)(3)(A) requires public 
notice for any minor permit amendment application where there is a 
change in character of emissions or release of an air contaminant not 
previously authorized under the permit, regardless of whether the 
emissions are below the ``de minimis'' and ``insignificant'' 
thresholds. The current SIP only requires minor permit amendments to go 
to notice at the discretion of the Executive Director, so even if a 
minor permit amendment was for an air contaminant not previously 
emitted there was no requirement for public notice unless the increase 
in emissions triggered NNSR or PSD.
     With respect to the requirements at 30 TAC 39.402(a)(3)(B) 
and 39.402(a)(3)(C) as submitted on July 2, 2010, for minor 
modifications public notice is expanded to cover minor permit 
amendments that exceed the specified ``de minimis'' and 
``insignificant'' thresholds. While 30 TAC Sections 39.402(a)(3)(B) and 
39.402(a)(3)(C) do establish two thresholds below which public 
participation is not required, the establishment of these two 
thresholds actually represent an expansion over the existing SIP-
approved public notice requirements for minor permit amendments. Under 
the current SIP, minor permit amendment applications regardless of 
permitted emission rate do not go to notice unless required by the 
Executive Director. EPA maintains that the establishment of the ``de 
minimis'' and ``insignificant'' thresholds provide opportunities for 
more minor permit amendments to go through public notice compared to 
the existing SIP requirements. As explained in previous Comment/
Response 20, these two categories of thresholds are narrower than the 
existing SIP requirements and cannot be considered a weakening. With 
the addition of these two thresholds, the TCEQ is now requiring public 
notice for all minor permit amendment applications above either of the 
thresholds, which is a significant expansion of the minor NSR SIP 
requirements for public participation. The TCEQ submitted an 
explanation of how the thresholds were established that demonstrated 
the thresholds do not impact air quality in Texas. Further, EPA finds 
that Texas's ``de minimis'' and ``insignificant'' thresholds do not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress (as defined in section 171), or any other 
applicable requirement of the CAA, as required by section 110(l).
     The requirements at 30 TAC 39.402(a)(3)(D) establish the 
criteria that the TCEQ Executive Director will use to require public 
notice for minor permit amendment applications that would not otherwise 
go through the public notice process because the minor permit 
amendments are below either of the two thresholds. This use of 
Executive Director Discretion is in direct contrast to the discretion 
currently provided for in the Texas SIP. In the SIP-approved public 
notice rules the Executive Director has the discretion to exempt every 
minor permit amendment application from public notice. The rules 
submitted on July 2, 2010, at 30 TAC 39.402(a)(3)(D) do not allow for 
the Executive Director to remove a requirement, rather these rules 
provide a set of criteria for the Executive Director to require 
additional public notice not already required by the rules. This type 
of director discretion does not limit public notice and does not 
violate the relevant requirements in the CAA and federal regulations. 
Further, EPA views the criteria under which the Executive Director can 
require additional notice for minor permit amendments as creating a 
consistent mechanism that will improve implementation of the Texas 
minor NSR permit program.
     The requirements at 30 TAC 39.402(a)(6) require public 
notice for permit renewals. There is no federal requirement for a title 
I permit renewal, so any requirement for public notice of such a 
renewal enhances the Texas air permitting program and provides 
opportunity for public notice beyond federal requirements.
    For the reasons stated above, EPA disagrees that the revised public 
participation rules submitted July 2, 2010 create new exemptions from 
public notice requirements. No changes have been made to the final rule 
as a result of this comment.

Comments Regarding the Minor NSR Public Notice Requirements Specific to 
Two Types of Minor NSR Permit Amendment Applications

    Comment 22: UT Law Clinic commented that ``public participation is 
necessary to maintain air quality under the CAA.'' See 77 FR 74129, 
74130 (Dec. 13, 2012); 60 FR 45530, 45548 (citing 38 FR 15834, 15836 
(1973) and NRDC v. EPA, No. 72-1522 (D.C. Cir.) See also 61 FR 38250, 
38276 and 38320.
    Response 22: We agree with the commenter. In fact, TCEQ's revised 
regulations for public participation that we are approving today 
increase opportunities for public involvement in Minor NSR permitting 
decisions. TCEQ's revised rules 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 and limit conditions for use of the Executive Director's 
discretion. All permit amendment applications now are subject to public 
notice if changes to the permits authorize a change in the character of 
emissions or a release of an air contaminant not previously authorized. 
Permit amendment applications that increase emissions above either of 
the two thresholds now are subject to public notice. 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 permit amendments 
go through full public notice with the NORI and NAPD. But, the new 
rules retain and refine the TCEQ's director's discretion provisions for 
minor permit amendments below the ``de minimis'' and ``insignificant'' 
thresholds. 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.
    As we explain in Comments/Responses 39-40, Texas tailored the scope 
of its Minor NSR permit program. Specifically, Texas 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. TCEQ has made an adequate

[[Page 558]]

justification that the Texas tiered public participation program 
satisfies the provisions of 40 CFR 51.160(e) and 51.161. No changes 
were made to the final rule as a result of this comment.
    Comment 23: UT Law Clinic commented that even if Alabama Power 
could be read to give agencies the authority to create de minimis 
exceptions to their regulations, the exceptions created by the Texas 
rules do not qualify as de minimis. The actual modifications that Texas 
has entirely exempted from public participation are not de minimis or 
environmentally insignificant.
    Response 23: EPA disagrees with the commenter. EPA recognizes a 
state's ability to tailor the scope of its Minor NSR program as 
necessary to achieve and maintain the NAAQS in accordance with CAA 
110(a)(2)(C). EPA has reviewed the TCEQ's analysis and determined that 
the state established ``de minimis'' and ``insignificant'' thresholds 
meet federal requirements. EPA's evaluation of the adequacy of the 
State's demonstration is in our proposal at 77 FR 74129, at 74136-74140 
and Comments/Responses 39-40 =. The commenter did not provide any 
specific evidence that disputes the demonstration provided by Texas, 
nor did the commenter provide any alternative metrics the EPA should 
consider when evaluating the scope of the applicability of the ``de 
minimis'' or ``insignificant'' thresholds submitted by TCEQ. The minor 
permit amendments are still processed pursuant to the SIP-approved 
Minor NSR permitting program and will only be issued by the TCEQ if 
demonstrated to be protective of the NAAQS and increment. We note that 
the ``de minimis'' and ``insignificant'' thresholds are only used to 
distinguish those minor permit amendment applications that require full 
review, including public notice, from those that may not. See 77 FR 
74138-74139. 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. No revisions were made as a result of 
this comment.
    Comment 24: The EPA has repeatedly refused to fully approve 
programs that provide a ``blanket exemption'' from one or more public 
notice requirements of Part 51. The commenter referenced EPA actions at 
73 FR 20536, at 20545-46 on April 16, 2008, and at 73 FR 72001, at 
72008 on November 26, 2008.
    Response 24: The commenter has not shown that the state established 
``de minimis'' and ``insignificant'' thresholds under the Texas program 
are not approvable. The commenter cites two Federal Register notices 
regarding ``blanket exemptions'' from public notice requirements, but 
does not explain how the disapproved exemptions worked or compare the 
disapproved exemptions to the Texas ``de minimis'' or ``insignificant'' 
thresholds. In sum, the commenter did not demonstrate that any previous 
EPA action provides a basis for disapproving the submitted revisions to 
the Texas public participation requirements.
    Despite the commenter's failure to describe or explain the 
relevance of the Federal Register citations, EPA has reviewed the April 
16, 2008, final partial approval and partial disapproval action for 
Nevada referenced by the commenter, and confirmed that it provides no 
basis for disapproving the Texas program because Nevada's SIP submittal 
is distinguished from the Texas public participation rules at issue 
here. In the April 16, 2008 final rule, EPA disapproved Nevada's 
blanket exemption from public notice for sources below 100 tons per 
year (tpy) because the State had not provided any demonstration to 
justify its limitation on the scope of its Minor NSR permitting 
requirements. Thus, EPA suggested that the State consider ``lowering 
the mandatory public notice thresholds from 100 tons per year.'' 73 FR 
20536, at 20546. Contrary to the situation in Nevada, the TCEQ has 
submitted a demonstration for both the ``de minimis'' and 
``insignificant'' thresholds. For the small subset of minor permit 
amendment applications that are below the ``de minimis'' and 
``insignificant'' thresholds and are not subject to full review, as 
discussed more fully in Comment/Response 39-40, the TCEQ has 
demonstrated this tailoring of the Minor NSR program is consistent with 
the CAA and EPA's regulations. Additionally, the Texas rules provide 
for public notice below these thresholds at the discretion of the TCEQ 
Executive Director--which is one of the suggested remedies provided by 
EPA for Nevada to consider in a subsequent rule change. See id.
    EPA also reviewed the other Federal Register notice cited by the 
commenter, the November 26, 2008, proposed limited approval and limited 
disapproval in Texas. The section of that proposal referenced by the 
commenter generally highlights the need for public participation 
programs to comply with 40 CFR Part 51, and describes previous EPA 
rulemakings concerning such programs. The cited proposed rule notes 
that EPA ``approved Oregon's Minor NSR program establishing categories 
of Minor NSR permit actions,'' with differing levels of public review. 
See 73 FR 72008. The cited proposed rule also indicates that EPA 
``disapproved or gave partial approval to Minor NSR public 
participation requirements'' that did not allow a 30-day comment 
period. See 73 FR 72008. The commenter does not specifically discuss 
the proposed approval of the Texas public notice provisions or any of 
the specific program approval decisions mentioned in that notice. And 
the commenter has not shown how or why any of the cited EPA actions 
provide any basis for questioning EPA's approval of the Texas ``de 
minimis'' and ``insignificant'' thresholds.
    EPA finds that the commenter failed to demonstrate relevancy of the 
cited EPA actions (73 FR 20536, at 20545-46 on April 16, 2008, and at 
73 FR 72001, at 72008 on November 26, 2008) to our proposed approval of 
the Texas public participation program. However to be clear and 
transparent in our rulemaking, we have reviewed the above cited 
actions, and the additional actions internally referenced within the 
April 16, 2008 and November 26, 2008 actions, and present the following 
discussion of each referenced rulemaking and how that rulemaking is 
either relevant or not relevant to the Texas rule at hand.
     68 FR 2891, January 22, 2003--EPA's direct final approval 
of the Oregon Minor NSR program. In that final rule, EPA approved 
Oregon's tailoring of public participation requirements, in which the 
State created four categories of permit actions and established public 
participation criteria for each category. Similar to EPA's evaluation 
of the Oregon public participation rules, our analysis of the Texas 
public participation rules has demonstrated that Texas has tailored its 
public participation process in a manner that is consistent with the 
requirements for public participation set forth in 40 CFR 51.161 for 
minor source permits. EPA finds that our basis for this referenced rule 
is relevant to support our final rulemaking. Furthermore, Texas has 
demonstrated that using the ``de minimis'' and ``insignificant'' 
thresholds will have no adverse impact upon the existing air quality in 
the State of Texas.
     65 FR 2042, January 13, 2000--EPA's final partial approval 
and partial disapproval of the West Virginia Minor NSR program. In that 
final action EPA disapproved a 15-day public comment

[[Page 559]]

period for some Minor NSR actions because the State did not submit a 
demonstration. This disapproval is not applicable to the Texas public 
participation rules. As discussed in our December 13, 2012 proposal and 
Comments/Responses 39-40, EPA has received and evaluated the Texas 
demonstration for the ``de minimis'' and ``insignificant'' thresholds 
and determined that the state's demonstration is consistent with the 
Minor NSR requirements and ability to tailor a Minor NSR program under 
the CAA and EPA's regulations. Texas has demonstrated that using the 
two thresholds will have no adverse impact upon the existing air 
quality in the State of Texas.
     65 FR 2048, January 13, 2000--EPA's limited approval of 
the Delaware Minor NSR program. In that action, EPA granted limited 
approval of the Delaware Minor NSR public notice provisions because 
these rules were a strengthening of the SIP-approved public notice 
requirements. However, EPA did not grant a full approval because 
Delaware's submittal provided a 15-day period to request a public 
hearing for all permitting actions, which conflicts with the 30-day 
requirement in 40 CFR 51.161(b)(2). See 63 FR 16751, at 16753. Such a 
blanket exemption applied to all permitting actions with no 
demonstration submitted by the state. But, as discussed in Comments/
Responses 39-40, the TCEQ has made a demonstration consistent with the 
requirements for public participation set forth in 40 CFR 51.161 for 
minor source permits that provides for Texas to tailor its public 
participation process for the subset of minor permit amendment 
applications below the ``de minimis'' and ``insignificant'' thresholds. 
Texas has demonstrated that using the two thresholds will have no 
adverse impact upon the existing air quality in the State of Texas. 
Moreover, these thresholds do not affect any part of the technical 
review of these minor permit amendment applications; or the 
requirements 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 below the 
``de minimis'' and ``insignificant'' thresholds does not override any 
notice or technical requirements for PSD, NNSR, or new Minor NSR permit 
applications.
     71 FR 48696, August 21, 2006. This is a proposal for EPA's 
Tribal NSR Rule, which was finalized several years later. See 76 FR 
38748 on July 1, 2011. The rule promulgated a Federal Implementation 
Plan (FIP) for tribes in Indian country. In part, the FIP exempted from 
Minor NSR review sources with emissions below certain permitting levels 
based on a demonstration that ``sources with emissions below the 
thresholds will be inconsequential to attainment or maintenance of the 
NAAQS.'' 76 FR 38758. Under the approved Texas permitting program, new 
Minor NSR sources and minor modifications will go through the SIP-
approved permit process and be evaluated by the TCEQ with respect to 
impact on the NAAQS and increment. For the subset of Minor NSR permit 
amendment applications that are below the ``de minimis'' and 
``insignificant'' thresholds as discussed more fully in Comments/
Responses 39-40, the TCEQ has demonstrated that using the ``de 
minimis'' and ``insignificant'' thresholds is still protective of NAAQS 
attainment and maintenance.
     72 FR 45378, August 14, 2007--EPA's final rule on 
revisions to the Alaska NSR program. In that notice, EPA approved 
revisions to the public notice provisions for minor permitting which, 
for certain types of permits that meet specific requirements, gives the 
public 15 days to request a full 30-day public comment period on the 
draft permit. Otherwise the state will issue the permit based on the 
application without any opportunity for review and comment. See 72 FR 
5232, at 5235. This Alaska program is not the same as the Texas 
program, and therefore not relevant to our rulemaking on Texas public 
participation. Under the approved Texas permitting program, new Minor 
NSR sources or minor modifications will go through the SIP-approved 
permit process and be evaluated by the TCEQ with respect to impact on 
the NAAQS and increment. Under the submitted public participation 
rules, all applications for new minor sources and the majority of minor 
permit amendment applications go through full notice and the public is 
given the opportunity to review the draft permit and the TCEQ's 
technical analysis. There is no separate requirement on the public to 
request this draft permit like there is in the approved Alaska program. 
For the subset of minor permit amendment applications that are below 
the ``de minimis'' and ``insignificant'' thresholds as discussed more 
fully in Comments/Responses 39-40, the TCEQ has demonstrated that it 
has tailored its public participation process in a manner that is 
consistent with the requirements for public participation set forth in 
40 CFR 51.161 for minor source permits. Texas has demonstrated that 
using the two thresholds will have no adverse impact upon the existing 
air quality in the State of Texas. No revisions were made to the final 
rule as a result of this comment.
    Comment 25: UT Law Clinic commented that Texas's justification for 
its de minimis levels in 30 TAC 39.402(a)(3)(B) is that they referenced 
the EPA SILs and/or a percentage of the NAAQS. This is not an adequate 
demonstration for purposes of showing that the exempted permitting 
changes will have a de minimis impact in terms of ambient air quality 
in their location. There is no specific analysis or modeling of how 
these emissions increases might impact maintenance of the NAAQS or the 
increments, particularly in areas that already exceed or are close to 
exceeding those limits.
    Response 25: EPA disagrees with the commenter. The TCEQ submitted a 
sufficient demonstration that using the ``de minimis'' threshold will 
be protective of the NAAQS, as required by CAA 110(a)(2)(C). The 
comment does not add any specific analysis or details to the record to 
establish a basis for disapproval, and the commenter provided no 
alternative metric EPA should consider when evaluating the ``de 
minimis'' threshold. No revisions were made to the final rule as a 
result of this comment.
    Comment 26: UT Law Clinic commented that Texas's proffered 
justification for the ``insignificant'' levels in 30 TAC 
39.402(a)(3)(C) is also lacking. It is based on unenforceable 
assumptions about where agricultural sources covered by the rule will 
locate in the future and fails to provide an adequate demonstration 
that such emissions will not contribute to exceedances of the PM NAAQS 
in El Paso.
    Response 26: EPA disagrees with the commenter. The TCEQ submitted a 
sufficient demonstration in support of the criteria established for 
applicability of the ``insignificant'' threshold, including an analysis 
of the effect on the PM NAAQS in El Paso. See 77 FR 74139. The comment 
does not add any specific analysis or details to the record to 
establish a basis for disapproval, and the commenter provided no 
alternative metric EPA should consider when evaluating the 
applicability of the ``insignificant'' threshold. TCEQ's submittal 
explains that the ``insignificant threshold'' is ``intended to focus 
the attention of the public and the commission on emission increases 
that could have a greater potential for

[[Page 560]]

public interest and questions regarding impacts to public health and 
welfare.'' The submittal also demonstrates that the ``insignificant'' 
threshold applies to a limited number of minor amendments at facilities 
(approximately 10% of total amendment applications) dispersed across 
the State in 88 counties, many of them in rural areas of west Texas. 
Due to the nature and location of the activities at the relevant 
agricultural facilities, we anticipate that using the ``insignificant'' 
threshold will not impact nonattainment anywhere in or out of the 
State. Nevertheless, the Texas rules do provide for public notice for 
these amendments at the discretion of the TCEQ Executive Director under 
specified criteria that are consistent with the goal and purposes of 
the Act to provide an adequate opportunity for informed public 
participation. Further, under the approved Texas permitting program, 
all Minor NSR sources and modifications will go through the SIP-
approved permit process and be evaluated by the TCEQ with respect to 
impact on the NAAQS and increment. Therefore the NAAQS and increment 
will continue to be protected. No revisions were made to the final rule 
as a result of this comment.
    Comment 27: UT Law Clinic commented that in the past EPA has 
disapproved amendments to states' SIPs that attempted to relax the 
public participation standards for the minor stationary sources to the 
significance level, as Texas does here for certain agricultural 
sources. See 75 FR 51188 on August 19, 2010.
    Response 27: EPA has reviewed the referenced August 19, 2010, 
proposed disapproval notice for Indiana. In the referenced Indiana 
rule, EPA proposed to disapprove a submittal from Indiana that would 
allow pollution prevention projects for sources that are not subject to 
title V and that do not result in a net increase in potential emissions 
above the PSD/NNSR significance levels to be processed as minor permit 
revisions under the Indiana minor operating permit provisions; meaning 
these revisions would be permitted without public notice. EPA proposed 
disapproval of the submitted rules because they weakened the SIP-
approved requirements without adequate support for the SIP relaxation 
and because the state did not provide a 110(l) demonstration for the 
additional modifications to be exempted from notice. The existing 
Indiana SIP-approved Minor NSR rules required public notice for 
modifications with emission increases of greater than 25 tpy; the 
proposed rule would have exempted modifications from public 
participation up to the PSD/NNSR thresholds.
    The August 19, 2010, proposed disapproval notice for Indiana is not 
analogous to the July 2, 2010, Texas public participation submittal. 
Contrary to the Indiana notice, the July 2, 2010, Texas submittal 
enhances the SIP by expanding the universe of minor permit amendments 
subject to public participation. See Comments/Response 20 and 21. 
Additionally, the TCEQ provided a demonstration for the establishment 
of the ``insignificant'' thresholds and EPA finds that the State's 
demonstration is adequate. Please see our proposal and Comment/Response 
39-40 for further discussion about this demonstration from Texas. 
Finally, the Executive Director has discretion to require public notice 
for any minor permit amendment at agricultural facilities that are 
below the ``insignificant'' threshold. EPA therefore finds that the 
Indiana rule is not relevant to our rulemaking on the Texas public 
participation program. No revisions were made to the final rule as a 
result of this comment.
    Comment 28: UT Law Clinic commented that the thresholds in 30 TAC 
39.402(a)(3)(B) exceed those previously rejected by EPA as too high. 
See 77 FR 7531, 7532 on February 13, 2012. ``EPA never before denoted 
emissions increases as high as 15 tons per year as ``de minimis''.''
    Response 28: EPA has reviewed the February 13, 2012, final notice 
to partially approve and partially disapprove revisions to the Montana 
permitting program. We disagree with the commenter that this notice is 
relevant to today's rulemaking on Texas Public Participation. In the 
Montana partial approval and partial disapproval, EPA disapproved the 
revisions to the de minimis permitting thresholds for asphalt concrete 
plants and mineral crushers where the de minimis permitting threshold 
for those sources was increased from five tpy to 15 tpy. EPA based our 
disapproval of the de minimis permitting threshold increase on lack of 
a 110(l) demonstration justifying the SIP relaxation. See 77 FR 7531, 
7532. Texas has not relaxed its requirements, and has made an adequate 
demonstration to justify the scope of its minor NSR provisions. No 
revisions were made to the final rule as a result of this comment.
    Comment 29: UT Law Clinic commented that the Texas rules fail to 
require public participation for amendments that exceed the 
significance level for fluorides and for emissions up to the 
significance level for lead.
    Response 29: The Texas rules require minor permit amendments for 
non-agricultural facilities that are not subject to THSC Sec.  382.020 
to provide public notice if the state-established ``de minimis'' 
thresholds are exceeded (0.6 tpy of lead or 5 tpy of fluorides) and for 
agricultural facilities subject to THSC Sec.  382.020, if the state-
established ``insignificant'' thresholds are exceeded (25 tpy of 
fluorides). As explained previously, the State adequately justified the 
scope of its Minor NSR requirements. Moreover, a Minor NSR permit 
amendment for a change in character of emissions or release of an air 
contaminant not previously authorized under these new rules must go 
through notice. So if the facility, either subject to THSC Sec.  
382.020 or not, submitted a minor permit amendment application to add 
emissions of lead or fluorides that were not already authorized, that 
amendment now would be required to go through notice. Additionally, the 
Executive Director has discretion to require notice for any permit 
amendment that falls below the ``de minimis'' or ``insignificant'' 
thresholds. Furthermore, no modification that is major under the PSD or 
NNSR requirements is exempt from public participation. UT Law Clinic, 
in referencing ``significance'' levels, is referring to the levels at 
which projected emission increases to an existing major stationary 
source exceed the level and therefore must undergo PSD/NNSR Major 
permitting requirements. The Texas public participation rules are clear 
that the ``de minimis'' and ``insignificant'' thresholds apply only to 
Minor NSR permit amendments. No revisions were made to our final rule 
as a result of this comment.
    Comment 30: UT Law Clinic commented that the proposed rules allow 
increases to occur with no public oversight even at major sources and 
synthetic minor sources that are already emitting high levels of 
emissions and adversely impacting surrounding communities. See 77 FR 
38557, 38563 (synthetic minor sources ``should be treated for public 
participation purposes as major sources.''). Further, the commenter 
states that EPA proposed to approve Texas' exemption from all public 
participation for modifications, including those at major and synthetic 
minor sources; at major sources of HAPs; at sources in nonattainment 
areas that proposed to increase emissions of nonattainment pollutants; 
that alter the terms and conditions of Major NSR and PSD permits, and 
that allow increases in emissions that are not actually de

[[Page 561]]

minimis. UT Law Clinic further states that the above identified 
modifications exempt from public participation are clearly not de 
minimis or insignificant modifications and Texas has not attempted to 
demonstrate, nor could it, that these modifications could be excluded 
entirely from its Minor NSR permitting program pursuant to 40 CFR 
51.160(b).
    Response 30: We disagree with the commenter's characterization of 
the submitted thresholds for certain minor permit amendments. The 
submitted ``de minimis'' and ``insignificant'' thresholds cannot be 
used for new major sources or major modifications subject to PSD or 
NNSR requirements. Additionally, section 112(g) of the CAA regulates 
HAPs and this program is not under the auspices of a CAA section 110 
SIP; therefore, regulation of HAPs is outside the scope of today's 
rulemaking. 77 FR 74133. We believe that the commenter is indirectly 
challenging the federal rules for determining whether minor or major 
NSR SIP requirements apply to a proposed change. Under the CAA and 
federal regulations, PSD and Nonattainment NSR (NNSR) SIP requirements 
do not apply to minor modifications at major stationary sources or to 
minor modifications at minor sources (including synthetic minor 
stationary sources \3\). As such, EPA's authority to evaluate Texas's 
submitted Minor NSR program requirements for approval into the SIP is 
limited to the applicable Minor NSR requirements. By definition, the 
Texas ``de minimis'' and ``insignificant'' thresholds can only apply to 
minor modifications at existing minor and major stationary sources, 
i.e., Minor NSR requirements.
---------------------------------------------------------------------------

    \3\ A synthetic minor source is an air pollution source that has 
the potential to emit air pollutants in quantities at or above the 
major source permitting threshold levels, but has accepted federally 
enforceable limitations (such as permit restrictions) to keep the 
emissions below such major source levels.
---------------------------------------------------------------------------

    EPA has reviewed the referenced June 28, 2012, proposed limited 
approval and limited disapproval to the Nevada SIP and disagrees that 
the cited statement regarding synthetic minor sources is relevant to 
the proposed Texas rule. The referenced comment about synthetic minor 
sources being treated as major sources for purposes of public 
participation was specifically regarding the method in which the public 
notice is made available for the public--newspaper notice versus 
electronic notice. In this proposed LA/LD for Nevada, EPA stated that 
``notice of permitting actions may be made by means other than 
traditional newspaper notice for most types of minor sources, EPA also 
believes that, with respect to synthetic minor sources, an exception 
should be made to the use of electronic means as the sole means to 
notify the general public of proposed permitting actions. For synthetic 
minor sources . . . we believe that the traditional means of 
notification (i.e., newspaper notice) should be included as one of the 
means for notifying the general public of proposed permit actions on 
the grounds that such sources should be treated for public 
participation purposes as major sources for which such notice is 
required.'' But EPA did not find the Nevada program's failure to 
provide newspaper ``notice with respect to synthetic minor sources to 
be significant,'' and did not propose disapproval on this basis. The 
July 2, 2010, Texas public notice submittal requires newspaper notice 
for all new major and minor stationary sources, major modifications, 
and minor permit amendments above the ``de minimis'' and 
``insignificant'' thresholds. So, from that respect, construction of 
synthetic minor sources and minor modifications above the ``de 
minimis'' and ``insignificant'' thresholds will be required to provide 
newspaper notice consistent with the statements provided in our Nevada 
proposed LA/LD.
    As discussed in Comment/Response 39-40, for the small subset of 
minor permit amendment applications that are below the ``de minimis'' 
and ``insignificant'' thresholds, the TCEQ has demonstrated that this 
tailoring of the scope of the Minor NSR requirements is consistent with 
the CAA and EPA's regulations and is protective of the NAAQS and 
maintenance. EPA notes that Texas has not proposed to exclude entirely 
from its SIP-approved Minor NSR permitting program those minor permit 
amendments that fall below the ``de minimis'' and ``insignificant'' 
thresholds. Moreover, although the commenter has asserted that the 
Texas thresholds ``exempt from public participation [modifications 
that] are clearly not de minimis or insignificant,'' it offers no 
evidence to support that assertion. In sum, the commenter has failed to 
show that EPA erred in determining that TCEQ adequately ``justified its 
approach for permit amendment applications with emissions less than'' 
the ``de minimis'' and ``insignificant'' thresholds. 77 FR 74137. No 
changes were made to our final rule in response to this comment.
    Comment 31: UT Law Clinic commented that the rules do not require 
public participation for increases of emissions, such as NOX 
or VOCs that are nonattainment pollutants in nonattainment areas and 
that may cause violations of the NAAQS, increments, or other control 
strategy requirements.
    Response 31: This characterization of the rules is incorrect. Any 
new major stationary source or major modification subject to the 
requirements of NNSR permitting must go through public notice using the 
NORI and NAPD. The new rules also require minor permit amendment 
applications to go through NORI and NAPD if the amendment is for a 
change in the character of emissions or the release of an air 
contaminant not previously authorized. Further, the revised rules 
require NORI and NAPD public notice for all new minor sources and all 
minor permit amendments above identified ``de minimis'' and 
``insignificant'' thresholds. Moreover, consistent with the provisions 
of 51.160(b), the Texas Minor NSR permitting provisions provide that 
the Executive Director may not issue a permit to any source that would 
cause or contribute to a NAAQS violation. (30 TAC 116.111(a)(2)(A).) 
The July 2, 2010, public participation rules do provide that 
applications for certain minor permit amendments that are below the 
``de minimis'' and ``insignificant'' thresholds do not go through 
notice, except at the discretion of the TCEQ Executive Director. 
However, under the approved Texas permitting program, new Minor NSR 
sources and minor modifications will go through the SIP-approved permit 
process and be evaluated by the TCEQ with respect to impact on the 
NAAQS and increment. Therefore, pursuant to the Texas SIP at 30 TAC 
116.111(a)(2)(A), the minor permit amendment will only be issued by the 
TCEQ if the applicant is able to demonstrate that the amendment will 
not cause violations of the NAAQS, increment or other provisions of the 
control strategy. The TCEQ will continue to use the permit review and 
approval process to protect the NAAQS, increment and applicable control 
strategy. No revisions were made to the final rule as a result of this 
comment.
    Comment 32: UT Law Clinic commented that EPA Region 6 informed 
Texas in 2006 that the agency [EPA Region 6] had identified categories 
of Minor NSR permitting actions that are not de minimis, including any 
change where prospective emission increases by themselves would be a 
significant increase of any pollutant and any emission increases that 
involve netting out of major NSR or synthetic minor certifications. See 
Attachment A (Attachment 3--EPA Letter to Steve Hagle Regarding 
Comments on SIP revisions for Public Participation,

[[Page 562]]

August 14, 2006). Texas proposed exemptions from public participation 
include modifications that fall within the categories EPA has expressly 
identified as not de minimis.
    Response 32: The commenter references the August 14, 2006, comment 
letter from Mr. David Neleigh, EPA Region 6 Air Permits Section Chief, 
to Mr. Steve Hagle of the TCEQ on the proposed public participation 
rules at that time [the rules upon which EPA initially proposed LA/LD 
in 2008 and withdrew after TCEQ adopted and submitted revised rules in 
July 2010]. This letter identifies previous rulemakings and interprets 
those rulemakings to portray the position noted by the commenter. 
However, that position is not actually articulated in the rulemakings 
that the letter cites. See Comment/Response 24. Consequently, the 
letter fails to accurately represent EPA's official position. EPA's 
official position is reflected in today's final action.
    Under the Texas program, all construction of major stationary 
sources must go through full major NSR review including public 
participation. All major modifications to existing major or minor 
stationary sources must go through full major NSR review including 
public participation. All construction of new minor stationary sources 
must go through full Minor NSR review including public participation. 
All minor modifications to existing major or minor stationary sources 
must go through full Minor NSR review, and include public participation 
unless they meet either the ``de minimis'' or ``insignificant'' 
thresholds. There is a slim chance under the ``insignificant'' 
threshold that a minor modification approaching the synthetic minor 
limit may not require public participation. Nevertheless, the state has 
demonstrated that using the ``insignificant'' threshold will not allow 
interference with the NAAQS. Besides demonstrating that using the two 
thresholds will not result in any violation of the NAAQS or any control 
strategy, the State has included a consistent mechanism that gives 
constrained authority to the Executive Director to require public 
participation for minor permit amendments that would otherwise be below 
one of the two thresholds.
    As explained in Comments/Responses 39-40, permitting authorities 
have the discretion to tailor the Minor NSR permit program. The TCEQ 
has developed the ``de minimis'' and ``insignificant'' thresholds, and 
for minor permit amendment applications with emissions less than these 
thresholds, the TCEQ justified its approach using the de minimis 
principles like those established in Alabama Power. See the June 18, 
2010 Texas Register, pages 5224-5230. Therefore, we are approving the 
Minor NSR ``de minimis'' and ``insignificant'' thresholds. The 
commenter has failed to dispute the demonstration provided by Texas. 
EPA believes that the NAAQS and increment will continue to be protected 
because the TCEQ still must follow the SIP-approved permitting process. 
If EPA discovers evidence to support the determination that the TCEQ 
were found to be misapplying the Minor NSR SIP permit rules or an 
applicant is found to be using the public notice ``de minimis'' and 
``insignificant'' thresholds in an attempt to circumvent any NSR 
requirements, then EPA or the public could address this implementation 
failure on a permit specific basis or other CAA remedy mechanism such 
as a failure to implement action. No revisions were made to the final 
rule as a result of this comment.
    Comment 33: UT Law Clinic commented that the Texas rules allow 
sources to use a netting process to determine their total emission 
increases without any public oversight and allow them to calculate 
those emissions increases taking into consideration voluntary, 
unenforceable control technologies.
    Response 33: EPA believes that the commenter may be misconstruing/
misunderstanding the EPA NSR SIP rules. The federal Major NSR SIP 
requirements allow a state to provide for a netting process to 
determine if a proposed modification to an existing major stationary 
source is major or minor. First, this netting process takes into 
consideration the control technologies that will be applied to the 
proposed change. (The control technology assumption must be made 
enforceable through the issuance of the permit for the netting process 
to meet the NSR SIP requirements.) Next, one looks to what are the 
emission increases of the proposed modification by itself. If the 
emission increases of the proposed modification by itself are above the 
significance level, then the contemporaneous window is evaluated to see 
if there is a net increase of emissions considering all other increases 
and decreases. If the calculation of the netting is above the 
significance levels, then the proposed modification to the existing 
major stationary source is major and is subject to full public 
participation. Therefore, the public can comment upon the netting 
calculations if they so choose. If the calculation of the netting is 
below the significance level/rate, then the proposed modification to 
the existing major stationary source is minor. Under the Texas NSR SIP, 
this minor modification can be authorized by a minor permit amendment 
or another SIP-approved minor NSR mechanism such as a PBR or SP. Under 
the rules approved today, full public participation for a minor permit 
amendment is required unless the change is below either the ``de 
minimis'' or ``insignificant'' thresholds. Therefore, the public now 
will have an opportunity to review the netting calculations and comment 
upon them in the Texas public participation process for all amendments 
resulting in emissions increases above the two thresholds and for 
amendments below the thresholds if the Executive Director so requires.
    Under the federal NSR SIP rules, the requirements for a 
modification to a minor existing stationary source are very different 
from those described above for a modification to a major existing 
stationary source. The proposed change can be above the major NSR 
significance levels but regardless still is defined under the federal 
SIP rules, as a minor modification. This proposed change would only be 
required to be permitted under the major NSR SIP requirements if the 
proposed increase in emissions is the same as the emission rate for a 
major stationary source.
    EPA recognizes the public's role in a viable major NSR SIP 
permitting program is to review and comment on the netting calculations 
to hold the permitting authority accountable. For instance, project 
netting--wherein a source calculates the projected increases for the 
project simultaneously with decreases from other projects--before 
determining if the project itself is significant, is a circumvention of 
NSR SIP requirements. Project netting is not provided for in the 
approved Texas NSR SIP permitting program, nor is it provided for in 
the Texas public notice rules acted upon today. If EPA discovers 
evidence to support the determination that the TCEQ were found to be 
misapplying the NSR SIP permit rules or an applicant to be using the 
``de minimis'' and ``insignificant'' thresholds in an attempt to 
circumvent major NSR applicability, then EPA or the public could 
address this implementation failure on a permit specific basis or other 
CAA remedy mechanism such as a failure to implement action. No 
revisions were made to the final rule as a result of this comment.
    Comment 34: UT Law Clinic commented that Texas facilities are 
already using the rules, as adopted in Texas, to avoid public 
participation for

[[Page 563]]

changes such as authorizing maintenance, startup, and shutdown 
emissions, which are clearly not de minimis.
    Response 34: Under the rules being approved today, where the 
inclusion of MSS emissions constitutes a major modification subject to 
PSD or NNSR permitting then the facility must go through full public 
notice with the NORI and NAPD. Under the rules being approved today, 
MSS emissions that constitute a minor modification can be included in a 
minor permit amendment that must go through full public notice unless 
the change is below either the ``de minimis'' or ``insignificant'' 
thresholds. There are other SIP-approved permit mechanisms available 
for including minor MSS emissions; these include permit alterations, 
permits by rule, and standard permits. Each of these three permitting 
mechanisms is outside the scope of this public participation rulemaking 
action. In the event the facility chooses to use a minor permit 
amendment, then the minor permit amendment will be subject to notice if 
the emission increases associated with the minor permit amendment 
exceed the ``de minimis'' or ``insignificant'' thresholds. The TCEQ 
Executive Director also has discretionary authority to require public 
notice for those minor permit amendment applications that are below the 
``de minimis'' and ``insignificant'' thresholds and would not otherwise 
receive full notice. Again, this process is an improvement over the 
existing SIP-approved process that requires no public notice for minor 
permit amendments. It also does not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of the Act. CAA 110(l). Also, the 
permit process itself ensures that the emissions are permitted and 
enforceable. No revisions were made to the final rule as a result of 
this comment.
    Comment 35: UT Law Clinic commented that the provisions submitted 
by Texas at 30 TAC 39.402 exempt large categories of modifications that 
have the potential to violate the SIP and interfere with attainment or 
maintenance.
    Response 35: EPA disagrees with the commenter. The TCEQ did not 
submit and EPA did not evaluate any provisions to exempt new sources or 
modifications (whether major or minor) from permit requirements. Our 
action is solely regarding the public notification process in the Texas 
air permitting program. As explained previously, the submitted rules do 
not require public participation for certain Minor NSR permit amendment 
applications with emissions below the ``de minimis'' or 
``insignificant'' thresholds. However, because these Minor NSR permit 
amendment applications must continue to be reviewed and processed 
through the SIP-approved permit process, the TCEQ will continue to 
issue permits protective of the NAAQS. If EPA discovers evidence to 
support the determination that the TCEQ were found to be misapplying 
the Minor NSR SIP permit rules or an applicant using the ``de minimis'' 
and ``insignificant'' thresholds in an attempt to circumvent any NSR 
requirements, then EPA or the public could address this implementation 
failure on a permit specific basis or other CAA remedy mechanism such 
as a failure to implement action. No revisions were made to the final 
rule as a result of this comment.
    Comment 36: UT Law Clinic commented that EPA proposes to approve 
rules that allow significant increases in emissions and changes to 
terms and conditions of NSR and PSD permits without any public 
participation.
    Response 36: EPA disagrees with the commenter. Construction of any 
new major stationary source must go through public notice. Any major 
modification must go through public notice. Construction of any new 
minor stationary source must go through public notice. Minor 
modifications to minor or major stationary sources must go through 
public notice except for those below the ``de minimis'' or 
``insignificant'' thresholds. And the state has demonstrated that minor 
permit amendment applications using the established ``de minimis'' or 
``insignificant'' thresholds will not affect NAAQS attainment or 
maintenance. The rules address public participation only and do not 
address increases in permitted emissions. Under the federal NSR SIP 
program, there can be what is defined as ``significant emission 
increases'' that fall under the Minor NSR SIP requirements, not the 
Major NSR SIP requirements. It is only when there is a ``significant 
emission increase'' to an existing major stationary source that this 
increase falls under the Major NSR SIP requirements. If the increase is 
to a minor stationary source and yet is above the ``significant 
emission increase,'' the federal rules allow this change to be 
authorized through the Minor NSR SIP program. Therefore, under the 
action taken today, under the Texas SIP, minor modifications to major 
or minor stationary sources must go through public notice unless the 
change is below either the ``de minimis'' or ``insignificant'' 
thresholds. The commenter appears to be indirectly challenging the 
federal SIP rules for how one determines applicability for major and 
Minor NSR; concerns regarding major and minor NSR applicability are 
outside the scope of this rulemaking. Our action taken today approving 
the ``de minimis'' and ``insignificant'' thresholds, does not prohibit 
all public participation for all modifications. We are approving an 
exemption from public participation only for certain minor permit 
amendments that meet either of the two thresholds; TCEQ has 
demonstrated that use of either of these two thresholds will not affect 
attainment or maintenance of the NAAQS. By definition, the Texas public 
notice exemptions for minor permit amendments below the public notice 
``de minimis'' and ``insignificant'' thresholds can only apply to minor 
modifications at existing minor and major stationary sources. Under the 
CAA and federal regulations, PSD and NNSR SIP requirements do not apply 
to minor modifications at major stationary sources or to minor 
modifications at minor sources. As such, EPA's authority to evaluate 
Texas's submitted Minor NSR exemptions for approval into the SIP is 
limited to the applicable Minor NSR requirements. No revisions were 
made to the final rule in response to this comment.
    Comment 37: UT Law Clinic commented that EPA's approval of the 
Texas rules in 30 TAC 39.402(a)(3), would exempt permits by rule (PBRs) 
from SIP public participation requirements. By utilizing a PBR to 
authorize increases in emissions, sources thereby avoid public 
participation for Minor NSR changes that should be subject to at least 
30-day notice and comment. If EPA finalizes its proposed approval, 
there would not appear to be any provisions in the SIP governing public 
participation for PBRs. Commenter also submitted information about how 
the PBR program works.
    Response 37: The Permit by Rule program at 30 TAC Chapter 106 is 
outside the scope of today's rulemaking. EPA approved the PBR program 
into the SIP such that the initial development and adoption of a PBR 
goes to public notice, but the individual issuance or authorization of 
a PBR to a facility is exempt from public notice. See 68 FR 64543. The 
July 2, 2010 submittal does not change our SIP-approval of the PBR 
program.

[[Page 564]]

    Comment 38: UT Law Clinic requested that EPA disapprove the 
provisions at 30 TAC 39.402.
    Response 38: As explained in previous Comments/Responses we do not 
agree that the provisions at 30 TAC 39.402 are inconsistent with 
federal requirements or represent a weakening of the existing SIP-
approved requirements. No changes have been made to the final rule as a 
result of this comment.

Comments Regarding the Minimum Federal Requirements for Public 
Participation and EPA's Use of Alabama Power de minimis Principles

    Comment 39: UT Law Clinic commented that the regulations at 40 CFR 
51.161(a) and (b) plainly set minimum public participation 
requirements. These regulations state that the SIP ``must'' require the 
opportunity for public comment and that ``as a minimum'' the comment 
period must last 30 days. The commenter also provided the regulatory 
language and history of 40 CFR 51.161 to support the statement that 
rules regarding notice and public participation apply to all permitting 
actions.
    1. In 1983, EPA proposed to restructure and revise the SIP 
preparation regulations. See Restructuring SIP Preparation Regulations, 
48 FR 46152 (Oct. 11, 1983).
    a. Among other things, the proposed rule moved the regulations for 
notice and public participation from 40 CFR 51.18 to Sec. Sec.  51.160 
and 51.161.
    b. Additionally, EPA proposed to narrow the scope of the 
requirement (then contained in 40 CFR 51.18(h)(4)) that forced ``States 
to notify EPA of all air permitting actions pertaining to new sources 
or modification to existing sources'' to only apply to ``major sources 
in nonattainment areas, . . . or for lead, those sources covered under 
Sec.  5l.l(k)(2).'' 48 FR at 46156.
    c. In the proposal, EPA explained that the change was due to the 
fact that it ``primarily needs permitting information from only major 
new sources or major modifications of existing sources in nonattainment 
areas.''
    2. In 1986, EPA finalized the restructuring and revision of the SIP 
preparation regulations. 51 FR 40656.
    a. In response to comments in opposition to the proposal to narrow 
the scope of the notice standard, EPA dropped the proposal and kept the 
original language largely in place when it moved 40 CFR 51.18(h)(4) to 
Sec.  51.16l(d).
    b. The final rule explained:
    i. A commenter opposed the proposal to drop requirements for States 
to notify EPA of permitting actions for all minor sources and for all 
sources outside nonattainment areas [Sec.  51.161(d)] on the grounds 
that new source review is a central part of the prevention of 
significant deterioration (PSD) and the air quality maintenance plan 
process and that notification is needed for EPA oversight. The 
provisions governing PSD procedures, Sec.  51.24, require States to 
notify EPA of permitting actions for major sources outside 
nonattainment areas. The deletion from Sec.  51.161(d) did not affect 
those requirements, only the notification requirements for minor 
sources.
    ii. However, EPA agrees that where State or local agency review of 
new or modified minor sources is required, it should be notified of 
permitting action for such sources.
    iii. The very fact that such sources are subject to review 
indicates that it would be appropriate to require that EPA be notified 
of permitting actions on such sources for oversight purposes.
    iv. Moreover, a large number of minor sources could have a 
significant cumulative effect on air quality.
    v. Thus, under the authority of sections 110 and 301 of the Act, 
the proposed Sec.  51.16l(d) has been modified so that it now is 
essentially identical to existing Sec.  51.18(h)(4). Hence, EPA will 
require reporting of all State permitting actions, as required in the 
existing SIP regulations.
    The commenter states that EPA's prior interpretation [the 1983-1986 
rulemaking history of 40 CFR 51.161 cited above] makes clear that the 
regulations apply to ``all State permitting actions.'' If the EPA wants 
to omit minor sources from the notice and public participation 
requirements, it must go through the notice and comment process. 
Finally, the commenter states that the narrowing of the universe of 
permit modifications that go through public notice is inconsistent with 
40 CFR 51.160-51.161.
    Response 39: EPA does not find this comment on the 1986 rulemaking 
relevant. In the quoted language in the 1986 final rulemaking, EPA 
focused on the requirement in 40 CFR 51.161(d) to notify EPA of minor 
permitting actions. As the commenter indicates, EPA ultimately decided 
to retain that notification to EPA requirement for Minor NSR state 
permitting actions requiring public notice. Secondly, EPA received no 
specific comments during our rulemaking on the Texas Public 
Participation program as to whether Texas's public participation 
program meets 40 CFR 51.161(d).
    For the second comment that the regulations at 40 CFR 51.161(a) and 
(b) plainly set minimum public participation requirements, EPA reviewed 
the submitted rules against all the requirements of 40 CFR 51.160 and 
51.161. They cannot be read in isolation but in conjunction with each 
other.
    The Federal requirements for Minor NSR permit applications and 
public notice requirements at 40 CFR 51.160 and 161 generally require 
30 days public review for all sources subject to 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.\4\ 
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.
---------------------------------------------------------------------------

    \4\ 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.
---------------------------------------------------------------------------

    EPA recognizes a state's ability to tailor the scope of its Minor 
NSR program as necessary to achieve and maintain the NAAQS. See 76 FR 
at 38756 (EPA regulation creating minor source program for Indian 
country, recognizing that CAA 110(a)(2)(c) provides discretion in 
developing a minor source program ``so long as the NAAQS are 
protected.''). As explained in our proposal at 77 FR 74129, at 74136-
74140 and Comment/Response 40, TCEQ's submittal appropriately tailored 
application of the Minor NSR permitting requirements. TCEQ explained 
its approach of setting the two thresholds using de minimis principles 
like those established in Alabama Power. Under TCEQ's tiered program, 
all new Minor NSR construction permits and the majority of Minor NSR 
permit amendments go through full public notice.
    Finally, there is no narrowing of the universe of permit 
modifications that go through public notice; rather there is an 
expansion for minor modifications. Please see Comments/Responses 20 and 
21. No changes were made to the final rule as a result of this comment.
    Comment 40: UT Law Clinic commented that EPA cannot use Alabama 
Power to justify creating exemptions from its own regulations.

[[Page 565]]

    Response 40: Consistent with the requirement for ``determining 
which facilities will be subject to review'' under a minor source SIP 
at 40 CFR 51.160, EPA has recognized that states may tailor their Minor 
NSR permitting requirements. EPA is not relying on Alabama Power to 
``creat[e] exemptions from its own regulations.'' Instead, EPA is using 
an inquiry similar to that used in Alabama Power--whether there is a 
``de minimis'' impact--in applying its SIP regulations and regulating 
permit amendments to determine whether the submitted Texas rules meet 
the Act and EPA regulations. Texas established a ``de minimis'' 
threshold based on its ``insignificant emissions rates and 
insignificant emissions impact.'' See 77 FR at 74138. Similarly, Texas 
established an ``insignificant'' threshold for agricultural sources 
based on their limited effects. See 77 FR 74139.
    As explained in our proposal at 77 FR 74129, at 74136-74140, the 
submitted Texas public participation provisions create a tiered 
program, wherein two narrow types of Minor NSR amendment applications 
that have been defined by TCEQ as ``de minimis'' or ``insignificant'' 
will not automatically be required to go through the public notice 
process. As noted, the State justified the scope of its regulatory 
program using de minimis principles like those established in Alabama 
Power. Moreover, Texas limits the effects of applying the two 
thresholds by providing for public notice for minor permit amendments 
that would otherwise be exempt at the discretion of the TCEQ Executive 
Director based on the objective criteria established in 30 TAC 
39.402(a)(3)(D). For EPA's full analysis of Texas's demonstration for 
the ``de minimis'' and ``insignificant'' thresholds, please see our 
proposal at 77 FR 74129, at 74136-74140. There is a full discussion of 
the two thresholds in the proposal and how Texas analyzed their 
impacts; how the ``de minimis'' threshold is based on EPA's significant 
emission rates and significant impact levels that together are used to 
determine whether a proposed minor source or minor modification will 
have a significant permitting impact; and how the ``insignificant'' 
threshold applies to a limited subcategory of sources, is limited in 
scope, represents a small subset of the permit amendment universe, and 
is consistent with the requirement to ensure the NAAQS are achieved.
    Note that applicability of the ``de minimis'' and ``insignificant'' 
thresholds in no way relieve the applicant or the TCEQ of the technical 
burden to demonstrate that the proposed minor change will assure 
noninterference with attainment and maintenance of the NAAQS and that 
the proposed minor modification will comply with all CAA and Minor NSR 
requirements. Further, neither of Texas's thresholds affects any part 
of the technical review of these minor permit amendment applications, 
and they do not override any notice or technical requirements for PSD, 
NNSR or new Minor NSR permit applications.
    In this instance, we find that the Texas ``de minimis'' and 
``insignificant'' thresholds are approvable. However, we note that our 
approval is limited to the specific record before us and in the context 
of the Texas air permitting program as a whole. No changes were made to 
the final rule as a result of this comment.
    Comment 41: UT Law Clinic commented that the D.C. Circuit recently 
affirmed that implied authority is not available for a situation 
``where the regulatory function does provide benefits, in the sense of 
furthering the regulatory objectives, but the agency concludes that the 
acknowledged benefits are exceeded by the costs.''
    Response 41: We agree that Alabama Power does not confer the 
administrative authority to create exemptions to requirements based on 
a cost-benefit analysis. Alabama Power, 636 F.2d at 357 and 361. 
However, EPA's approval of Texas's ``de minimis'' and ``insignificant'' 
thresholds is not based on a cost-benefit analysis, but rather based on 
Texas's demonstration that using either of the thresholds will not have 
an adverse impact on the existing air quality in the State of Texas. 
See our proposal at 77 FR 74129, at 74136-74140 and Comments/Responses 
39 and 40 for additional information on the adequacy of Texas's 
demonstration. No changes were made to the final rule as a result of 
this comment.

Comments Regarding Confidential Information

    Comment 42: UT Law Clinic commented that EPA should require Texas 
to amend its rules as necessary to ensure that all emissions data that 
is included with permit applications is made available for the entire 
public comment period.
    Response 42: As explained in our proposal FRN, the accompanying TSD 
and in today's final rule, the Texas rules for public participation for 
air quality permit applications are consistent with the federal 
requirement at 40 CFR 51.161 that the information submitted by the 
applicant be made available for public review and inspection during the 
applicable public comment period. While the federal government has long 
recognized the right of businesses to make claims of confidentiality in 
submitting information to its agencies (see, e.g., FOIA, 5 U.S.C. 
552(b)(4) \5\; see also 18 U.S.C. 1805 \6\; see also 40 CFR 2.203 \7\), 
the Clean Air Act has made clear that ``emission data'' contained in 
records held by EPA are not entitled to confidential treatment and 
shall be publicly available (see CAA section 114(c) \8\; see also 40 
CFR 2.302 \9\). The Texas Open Records Act (adopted 1973, and as 
amended May 27, 1975) and Texas Attorney General Opinion No. H-539 were 
submitted by Texas and approved by EPA as part of the Texas SIP on 
December 15, 1981, at 46 FR 61124-61125 to show that the Texas 
environmental agency is required to make emissions data available to 
the public. This Act was repealed in 1993 and replaced by the Public 
Information Act now codified in the Texas Government Code at Chapter 
552. The codification of the Act was a non-substantive revision. If a 
state agency wishes to withhold information from the public, it must 
request an opinion from the Texas Attorney General that the requested 
information falls within one of the enumerated exceptions. This is 
necessary because the Texas Act presumes that governmental records are 
open to the public unless the records are within one of the 
exceptions.\10\ The Attorney General is required to construe the Act 
liberally in favor of open government.\11\ The governing Texas law, 
Texas Attorney General Opinion No. H-539 (dated February 26, 1975) and 
part of the Texas SIP, held that ``emission data supplied to the Texas 
Air Control Board may not be treated as confidential under any 
provision of the Texas Clean Air Act or the Open Records Act, and that 
the Board is required to release such information upon request.'' 
Although not believed to be part of the

[[Page 566]]

SIP, a Texas Attorney General Opinion No. H-836 (dated June 14, 1976) 
affirms, ``emissions data is clearly public information'' (even in 
acknowledging that information ``on amount, type and rate of emissions 
from a particular unit might enable a person to determine how the 
process itself functions''). There has been continual reaffirmation of 
the bright-line rule that emission data is non-confidential. See 
Attorney General Open Record Rulings from 2005 to 2010.
---------------------------------------------------------------------------

    \5\ FOIA's longstanding exemption for ``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential.''
    \6\ Making it a crime for federal employees to disclose 
confidential information ``in any manner or to any extent not 
authorized by law.''
    \7\ EPA regulation on the ``method of asserting business 
confidentiality claim.''
    \8\ Requiring records to be available to the public, unless they 
are confidential and not ``emission data.'' Disclosure to the public 
is similarly mandated for ``emission data'' in the context of 
automobile manufacturing under Title II. See CAA section 208(c).
    \9\ ``Special rules governing information obtained under the 
Clean Air Act'' and defining the term emission data.
    \10\ See Attorney General Opinion H-436 (1974); Open Records 
Decision Nos. 363 (1983), 150 (1977), 91 (1975).
    \11\ Open Records Decision No. 363 (1983) (information is public 
unless it falls within specific exception).
---------------------------------------------------------------------------

    The EPA has therefore determined through our review of the July 2, 
2010, submitted public participation rules and the relevant Texas 
legislative authorities and governing Attorney General Opinion No. H-
836, that the Texas rules already require that emissions data be made 
publicly available. If EPA discovers evidence to support the 
determination that the TCEQ or permit applicants are misapplying the 
SIP rules in an attempt to prevent the public from having a meaningful 
opportunity to comment on emissions data, then EPA could address this 
issue on a permit by permit basis using its oversight authority in 
implementation of the Texas air permit program or other CAA remedy 
mechanism such as a failure to implement action. No revisions were made 
to the final rule as a result of this comment.
    Comment 43: UT Law Clinic commented that current Texas law gives 
the applicant for an air permit the sole authority to initially 
determine the confidentiality of materials in its own application and 
requires TCEQ to seek an opinion from the Texas AG before disclosing 
any information labeled as confidential by an applicant. As a result, 
nonconfidential information that is necessary to provide full public 
participation on an application and that is required to be available in 
a public location during the full public comment period may be 
unavailable until after the close of a comment period. Further, Texas' 
rules do not ensure that emissions data labeled as confidential 
information will be made available for public comment before the 30-day 
comment period expires. The withholding of emissions data as 
confidential also creates a problem with respect to the enforceability 
of minor NSR limits created through permits by rule. This compounds the 
public participation issue because, even after the fact, affected 
communities will not be able to find out what changes were authorized 
by a minor permit.
    Response 43: The concerns raised by the commenter about the 
application of the Texas CBI laws are outside the scope of today's 
rulemaking. This concern raises issues regarding the implementation of 
the Texas SIP and is not relevant to the particular public 
participation rules being acted upon today. The public participation 
rules acted upon today maintain the SIP's public participation 
requirements for major NSR and expand the SIP's public participation 
requirements for minor NSR. The availability of emissions data is not 
the subject of these rules. As discussed previously in Comment/Response 
42, the Texas NSR public participation SIP rules already require that 
emissions data be made available for public review during the comment 
period. The Texas relevant legal authorities in the SIP and later 
continue to affirm that emissions data is not confidential and must be 
released to the public. If EPA discovers evidence to support the 
determination that the TCEQ or permit applicants are misapplying the 
existing Texas NSR public participation SIP rules in an attempt to 
prevent the public from having a meaningful opportunity to comment on 
emissions data, then EPA could address this issue on a permit by permit 
basis using its oversight authority in implementation of the Texas air 
permit program or other CAA remedy mechanism such as a failure to 
implement action. No changes were made to today's final rule as a 
result of this comment.
    Comment 44: The UT Law Clinic also submitted portions of a 
supplement to a petition filed in 2009 by the commenter and other 
groups that raises concerns with Texas CBI laws and public 
participation.
    Response 44: EPA disagrees that the submitted portions of the 
January 5, 2009 Supplement (Supplement to Citizen Petition for Action 
Pursuant to the Clean Air Act Regarding Inadequacies of the Texas Sip 
and Federal Operating Permit Program and Failure to Enforce the Plan 
and State Permitting Programs) relating to confidential document and 
CBI are relevant to the public participation rulemaking in front of us. 
EPA reviewed the resubmitted 2009 petition supplement and the 
associated attachments. We isolated the following discrete comments 
relating to confidential documents and CBI. We are responding to each 
of these comments below to demonstrate that the petition, petition 
supplement and relevant attachments are no longer applicable to the 
July 2, 2010 public participation SIP submittal that we are approving 
in today's final action. Further, our responses to the following 
comments satisfy EPA's obligations to respond on these specific issues 
from the 2009 petition supplement.
     Comment 44A: The Texas Health and Safety Code prohibits 
the TCEQ from disclosing to the public of any information ``relating to 
secret processes or methods of manufacture or production that is 
identified as confidential when submitted.'' TEX.HEALTH & SAFETY CODE 
Sec.  382.041. It also prohibits TCEQ from disclosing such information 
to EPA unless EPA has entered into an agreement to treat ``information 
identified as confidential as though it had been submitted by the 
originator of the information with an appropriate claim of 
confidentiality under federal law.'' Id. This section unlawfully 
requires TCEQ to defer to an applicant's or permittee's determination 
of what constitutes confidential information. It limits public and EPA 
access to information, such as emissions data, that is public 
information under the federal Clean Air Act. It also purports to 
require EPA to agree to limits on public disclosure of information 
beyond those limits authorized by federal law.
     Comment 44B: Further, in practice, this provision results 
in TCEQ referring any and all requests for information marked by the 
applicant as confidential to the Texas AG's office. Often a response 
from the AG's Office as to whether information truly qualifies as 
confidential cannot be obtained until it is too late to use the 
information for its intended purpose. It is routine for companies to 
mark as confidential information regarding their calculations of 
emission estimates, therefore, preventing the public from determining 
whether such emissions are realistic.
    [cir] Response 44A and 44B: EPA disagrees with the commenter that 
this issue is relevant to EPA's approval of the public participation 
rules as submitted July 2, 2010. As outlined in Comment/Response 42 and 
43, the EPA considers that ``emissions data'' as defined in 40 CFR 
2.302 must be publicly available information pursuant to the Texas SIP 
and relevant legal authorities. If EPA discovers evidence to support 
the determination that the TCEQ or permit applicants are misapplying 
the Texas SIP rules in an attempt to prevent the public from having a 
meaningful opportunity to comment on emissions data, then EPA could 
address this issue on a permit by permit basis using its oversight 
authority in implementation of the Texas air permit program or other 
CAA remedy mechanism such as a failure to implement action. No 
revisions were made to the final rule as a result of this comment.
    Comment 45: UT Law Clinic commented that the face of Texas'

[[Page 567]]

public notices do not identify the date that the public comment period 
closes. Instead, the notice normally states that the comment period 
ends a certain number of days after publication.
    Response 45: EPA agrees that having a specific date would assist 
the public in easily identifying the close of the comment period. 
However, there is no federal requirement for a date specific end date 
to be included in the public notice. The Texas public notice 
requirements specifying a 30-day comment period meets the minimum 
federal requirements at 40 CFR 51.161 and 51.166 as applicable. No 
revisions were made to the final rule as a result of this comment.

Comments Regarding Judicial Review

    Comment 46: The UT Law Clinic commented that the current 
requirements to participate in a contested case hearing in Texas are 
overly burdensome and therefore provide inadequate judicial review of 
air permitting decisions. Judicial review of the TCEQ's air permitting 
decisions appears to be limited to persons who participated in a 
contested case hearing. Friends of Canyon Lake, Inc. v. Guadalupe-
Blanco River Auth., 96 SW.3d 519, 526-27 (Tex. App.-Austin 2002, pet. 
denied); see also, Rawls v. TCEQ, 2007 WL 1849096 (Tex. App.-Eastland 
2007). In order to qualify for a contested case hearing, a member of 
the public must satisfy TCEQ's definition of ``an affected person.'' 
Since a person must request a contested case hearing before seeking 
judicial review of an air permitting decision, the availability of 
judicial review for a large percentage of air permitting actions at 
TCEQ is limited.
    Response 46: The Texas Contested Case Hearing (CCH) process is 
outside the scope of our proposed rulemaking for the July 2, 2010 
public participation submittal. The TCEQ did not submit the CCH process 
for SIP review and approval, therefore EPA is not taking action on the 
CCH process in this action. No revisions were made to the final rule as 
a result of this comment.

Comments Regarding Past Public Notice Inadequacies

    Comment 47: UT Law Clinic commented that approval of these rules 
[July 2, 2010 public participation rules] would exacerbate public 
participation inadequacies that Texas communities have complained about 
for years. To illustrate the past inadequacies, the UT Law Clinic also 
submitted portions of a petition filed in 2008 and a supplement to the 
petition filed in 2009 by the commenter and other groups that raises 
problems with the Texas public participation process, some of which 
will be exacerbated by EPA's approval.
    Response 47: EPA disagrees that the submitted portions of the 
August 28, 2008 petition (Citizen Petition for Action Pursuant to the 
CAA Regarding Inadequacies of the Texas SIP and Federal Operating 
Permit Program and Failure to Enforce the Plan and State Permitting 
Programs) and the January 5, 2009 Supplement (Supplement to Citizen 
Petition for Action Pursuant to the Clean Air Act Regarding 
Inadequacies of the Texas Sip and Federal Operating Permit Program and 
Failure to Enforce the Plan and State Permitting Programs) relating to 
public participation are relevant to the rulemaking in front of us. EPA 
reviewed the resubmitted 2008 petition, 2009 petition supplement, and 
the associated attachments. We isolated the following discrete comments 
relating to public participation. We are responding to each of these 
comments below to demonstrate that the petition, petition supplement 
and relevant attachments are no longer applicable to the July 2, 2010 
public participation SIP submittal that we are approving in today's 
final action. Further, our responses to the following comments 
satisfies EPA's obligations to respond on these specific issues from 
the 2008 petition and 2009 petition supplement.
     Comment 47A: EPA has informed Texas that its public 
participation rules are not consistent with Part 51. Deficiencies in 
the rules include that the notice of the draft permit is not required 
for many permitting actions involving minor sources or minor 
modifications at major sources. Texas' rules do not require public 
notice and comment on the State's preliminary analysis and draft 
permits for permitting actions involving construction or modification 
of minor sources, or for minor modifications at major sources if a 
public hearing is not requested in response to the ``first notice,'' or 
is withdrawn, or the application involves no increase in allowable 
(rather than actual) emissions or emissions of new contaminants.
    [cir] Response 47A: This comment is no longer relevant. The 
commenter is referencing EPA's proposed limited approval/limited 
disapproval of the Texas public participation program published on 
November 26, 2008. EPA withdrew our proposed LA/LD on November 5, 2010, 
after the TCEQ adopted and submitted revised public participation 
rules. The rules submitted as revisions to the Texas SIP on July 2, 
2010, require that all permit applications for new minor sources go 
through the NORI and NAPD, regardless of a public hearing request. This 
requirement will ensure that the draft minor permit is available for 
review and comment. The revised rules also require minor permit 
amendment applications to go through NORI and NAPD if the amendment is 
for a change in the character of emissions or the release of an air 
contaminant not previously authorized, or if the amendment exceeds the 
public notice ``de minimis'' or ``insignificant'' thresholds. No 
changes were made to the final rule as a result of this comment.
     Comment 47B: EPA has informed Texas that its public 
participation rules are not consistent with Part 51. Deficiencies in 
the rules include that public notice is not required for all permit 
amendments, and initial and amended flexible permits. Chapter 
116.116(b) amendments and flexible permit issuances and amendments, 
including those that may alter terms and conditions of existing major 
NSR authorizations, are not required to meet Part 51 notice 
requirements unless emissions exceed certain thresholds. These 
thresholds are not environmentally insignificant.
    [cir] Response 47B: The commenter is referencing EPA's proposed 
limited approval/limited disapproval of the Texas public participation 
program published on November 26, 2008. EPA withdrew our proposed LA/LD 
on November 5, 2010, after the TCEQ adopted and submitted revised 
public participation rules. The July 2, 2010 public participation 
submittal included revised public participation procedures specific to 
applications for initial and amended flexible permits. As explained in 
Comment/Response 6, EPA is taking no action at this time on the public 
participation rules submitted on July 2, 2010, applicable to Flexible 
Permit applications. Insofar as this comment concerns permit amendments 
not related to Flexible Permits, as explained in Comments/Responses 17-
19, the revised rules require full public notice for all permit 
amendments above identified public notice ``de minimis'' and 
``insignificant'' thresholds. No changes were made to the final rule as 
a result of this comment.
     Comment 47C: EPA has informed Texas that its public 
participation rules are not consistent with Part 51. Deficiencies in 
the rules include the notice of draft permit not required for all 
Plantwide Applicability Limit (PAL) Permits and agency preliminary 
determinations. In addition, Texas' rules do not require the agency to 
respond to comments before taking action on PAL applications.

[[Page 568]]

    [cir] Response 47C: This comment is no longer relevant. The 
commenter is referencing EPA's proposed limited approval/limited 
disapproval of the Texas public participation program published on 
November 26, 2008. EPA withdrew our proposed LA/LD on November 5, 2010, 
after the TCEQ adopted and submitted revised public participation 
rules. The rules submitted as revisions to the Texas SIP on July 2, 
2010, require that all permit applications for PAL permit applications 
go through NAPD notice. This requirement will ensure that the draft PAL 
permit is available for review and comment. The revised public 
participation rules also require that the TCEQ will respond to all 
comments received before a PAL permit is issued. No changes were made 
to the final rule as a result of this comment.
     Comment 47D: EPA has informed Texas that its public 
participation rules are not consistent with Part 51. Deficiencies in 
the rules include that Texas' rules and exhaustion of administrative 
remedies requirements limit state court judicial appeals.
    [cir] Response 47D: This comment is no longer relevant. The 
commenter is referencing EPA's proposed limited approval/limited 
disapproval of the Texas public participation program published on 
November 26, 2008. EPA withdrew our proposed LA/LD on November 5, 2010, 
after the TCEQ adopted and submitted revised public participation rules 
on July 2, 2010. See Comment/Response 46 above for a discussion of 
judicial review. No changes were made to the final rule as a result of 
this comment.
     Comment 47E: EPA has informed Texas that its public 
participation rules are not consistent with Part 51. Deficiencies in 
the rules include that the De Minimis Facilities rules at 30 TAC 
116.119 allow the agency to exempt categories of sources, as well as 
individual facilities, from permitting and public participation 
requirements without first requiring SIP approval of those exemptions.
    [cir] Response 47E: The TCEQ has not submitted the provisions for 
permitting of De Minimis Facilities at 30 TAC 116.119 for SIP review. 
Therefore, public participation requirements relevant to permitting 
under 30 TAC 116.119 are outside the scope of today's final action. No 
changes were made to the final rule as a result of this comment.
     Comment 47F: EPA has informed Texas that its public 
participation rules are not consistent with Part 51. Deficiencies in 
the rules include that the TCEQ can exempt relocation of a facility 
from public participation requirements if ``there is no indication that 
operation of the facility at the proposed new location will 
significantly affect ambient air quality and no indication that 
operation of the facility at the proposed new location will cause a 
condition of air pollution.''
    [cir] Response 47F: The commenter is referencing EPA's proposed 
limited approval/limited disapproval of the Texas public participation 
program published on November 26, 2008. EPA withdrew our proposed LA/LD 
on November 5, 2010, after the TCEQ adopted and submitted revised 
public participation rules. The July 2, 2010 public participation 
submittal included revised public participation procedures specific to 
portable facilities and relocation of portable facilities. As explained 
in Comment/Response 6, EPA is taking no action at this time on the 
public participation rules submitted on July 2, 2010, applicable to 
portable facilities. No changes were made to the final rule as a result 
of this comment.
     Comment 47G: Texans are not given notice of the TCEQ's 
actual decision and the documentation supporting that decision. Without 
adequate notice of an agency's proposed permitting action, subsequent 
participation opportunities are often meaningless. An example is Texas' 
notice for refinery Maintenance, Startup and Shutdown (MSS) permits. At 
the time of public notice, the TCEQ had not yet decided how to act on 
the applications, and had not yet even decided the process for 
determining which applications might trigger federal NSR. Yet despite 
this lack of information, the public notice period ran and the 
opportunity for public participation was closed. Clearly, this is not 
effective notice.
    [cir] Response 47G: This comment is no longer relevant. The 
commenter is referencing provisions of the previous Texas public 
participation rules that were the subject of EPA's proposed limited 
approval/limited disapproval on November 26, 2008. Under this previous 
version of the state public participation rules submitted to EPA for 
approval as part of the SIP, MSS emissions that were major 
modifications subject to PSD/NNSR permitting were required to follow 
the public participation requirements for PSD/NNSR. However, if the MSS 
emissions were minor, these emissions could be authorized through a 
minor permit amendment. Under these submitted rules, the applications 
for minor permit amendments were only required to go through the NORI 
publication so the public would not have had the opportunity to review 
a draft permit. The TCEQ adopted revised rules that were submitted on 
July 2, 2010. These rules, which are the subject of today's final 
action, require most minor permit amendment applications go through 
full public notice with both a NORI and NAPD publication. Under this 
current scenario, the public would have the opportunity to review a 
draft permit. No changes were made to the final rule as a result of 
this comment.
     Comment 47H: EPA should take the following action on the 
Texas SIP submittals for Public Participation: (1) Concurrently propose 
disapproval of Texas' current SIP submittal and disapproval, pursuant 
to Sec.  7410(k)(5), of Texas' SIP approved public participation rule. 
Both disapprovals are necessary to start the sanctions clock and ensure 
that Texas complies with 40 CFR Part 51; and (2) in the alternative, 
concurrently propose limited approval and disapproval of Texas SIP 
submittal. The limited approval should require Texas to use authority 
under Tex. Health and Safety Code Sec.  382.056(p) to provide 30 days 
notice and opportunity to comment on all draft permits; and should 
specify rule changes required to assure Part 51 notice for all 
permitting actions. Final action on the limited approval and limited 
disapproval should occur at the same time to ensure that the sanctions 
clock is started.
    [cir] Response 47H: This comment is no longer relevant. The 
commenter requested these actions in August 28, 2008, as remedies for 
perceived inadequacies in the Texas public participation provisions 
that were in effect at the time. Since the August 28, 2008, petition 
EPA has proposed limited approval/limited disapproval of the state 
rules in question. As a result of the proposed limited approval/limited 
disapproval, the TCEQ adopted revised public participation rules and 
submitted those for SIP review and approval on July 2, 2010. The 
previous version of the rules was withdrawn from our consideration and 
is no longer in effect. The analysis in our proposed approval of the 
July 2, 2010, public notice submittal and the accompanying TSD provides 
our rationale for full approval of the revised public participation 
rules as consistent with minimum federal requirements of the CAA and 40 
CFR 51.160--51.166. No changes were made as a result of this comment.
    Comment 48: UT Law Clinic also resubmitted comments it provided on 
January 26, 2009 regarding EPA's proposed limited approval/limited 
disapproval of the Texas Public Participation program.
    Response 48: EPA disagrees that the submitted portions of the 
January 5, 2009 Supplement (Supplement to

[[Page 569]]

Citizen Petition for Action Pursuant to the Clean Air Act Regarding 
Inadequacies of the Texas Sip and Federal Operating Permit Program and 
Failure to Enforce the Plan and State Permitting Programs) relating to 
public participation are relevant to the rulemaking in front of us. EPA 
reviewed the resubmitted 2009 petition supplement and isolated the 
following discrete comments relating to public participation. We are 
responding to each of these comments below to demonstrate that the 
petition supplement is no longer applicable to the July 2, 2010 public 
participation SIP submittal that we are approving in today's final 
action. Further, our responses to the following comments satisfy EPA's 
obligations to respond on these specific issues from the 2009 petition 
supplement.
     Comment 48A: UT Law Clinic commented that EPA's recent 
public participation proposal [November 26, 2008 proposed LA/LD] 
provides an example of the difficulty in dealing with one piece of the 
Texas program without a comprehensive evaluation of the entire program. 
UT Law Clinic noted that, while they largely agree with EPA's 
assessment of the public participation rules it analyzed, the proposal 
fails to comprehensively evaluate whether Texas' whole program meets 
federal public participation requirements. There are a number of Texas 
rules that allow sources to authorize new emissions and emission 
increases without meeting minimum federal public participation 
requirements of Part 51. 40 CFR Part 51. These include: de minimis air 
contaminants, permits by rule, alterations, qualified facilities and 
standard permits. Some of these rules, such as those regarding 
alterations, have already been approved into the SIP despite their 
suffering from the same illegalities identified by EPA in the current 
SIP public participation proposal. These provisions should be removed 
from the SIP. Others, such as those regarding de minimis emissions, 
have never been submitted for SIP approval, yet are currently 
implemented by TCEQ. A true evaluation of whether Texas public 
participation requirements meet federal standards necessitates a review 
of the public participation requirements applicable to all minor and 
major permitting actions.
    [cir] Response 48A: This comment is not relevant to today's final 
rulemaking. The commenter provided these comments based on EPA's 
November 26, 2008, proposed limited approval/limited disapproval, which 
was subsequently withdrawn on November 5, 2010 after the TCEQ adopted 
and submitted revised public participation rules. However it is 
important to note that EPA can only evaluate for SIP approval those 
provisions that are submitted for review and approval by the state and 
our evaluation is limited to whether the state's submittal complies 
with the relevant requirements in the CAA and federal regulations. CAA 
110(k)(3). The commenter is correct that there are several avenues in 
the Texas NSR SIP through which a permit can be modified--for minor 
sources and minor modifications, they are minor permit amendments, 
standard permits, permits by rule and permit alterations. The commenter 
is also correct that only a minor permit amendment application goes 
through public notice and comment on an individual case-by-case permit 
basis, if the minor modification is above either of the ''de minimis'' 
or ``insignificant'' thresholds or is for a change in character of 
emissions or release of an air contaminant not previously authorized 
under the permit. EPA has previously evaluated and SIP-approved the 
Texas Standard Permit (SP) program at 30 TAC Chapter 116, Subchapter F 
and the Texas Permit by Rule (PBR) program at 30 TAC Chapter 106 as 
consistent with minimum federal requirements, including public 
participation at 40 CFR 51.160-51.161, for minor NSR. The minor NSR SP 
and PBR SIP programs require the TCEQ to develop the base SP or PBR 
through a public notice and comment procedure, but the individual uses 
of the SP or PBR do not go through notice. We note that even though the 
commenter has concerns about the application of the minor NSR SP or PBR 
SIP programs in Texas, these provisions have not been submitted as part 
of the July 2, 2010 public participation package and are not before EPA 
for review. Therefore, the public participation provisions for the 
minor NSR SP and PBR SIP programs are outside the scope of today's 
rulemaking, as is the implementation of these two 
programs.12 13 Permit alterations have been SIP-approved at 
30 TAC 116.116 as a method to streamline the permit revisions process 
for specified types of revisions. The permit alteration provisions at 
30 TAC 116.116 were not submitted as part of the July 2, 2010 SIP 
submittal and therefore are outside the scope of today's rulemaking. 
EPA disapproved the Texas Qualified Facility program on April 14, 2010 
(see 75 FR 19468). Texas revised the Qualified Facility program and 
resubmitted for SIP review and approval on October 5, 2010, and EPA 
will act on that submittal in a separate rulemaking. The Qualified 
Facility program was submitted separate from the public participation 
submittal of July 2, 2010, and is therefore outside the scope of 
today's rulemaking. The commenter is correct that the de minimis 
permitting provisions (as previously noted these are in the Texas state 
rules at 30 TAC 116.119) have never been submitted to EPA for review 
and approval into the SIP; and are therefore outside the scope of 
today's rulemaking. The current Texas NSR SIP requires that any 
increase in emissions requires a permit to construct or modify. No 
changes were made to the final rule as a result of this comment.
---------------------------------------------------------------------------

    \12\ EPA SIP-approved the Texas Standard Permit process and 
public participation process on November 14, 2003, as adopted by the 
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 the TCEQ on 
September 20, 2006 (see 73 FR 53716).
    \13\ EPA SIP-approved the Texas Permit by Rule process on 
November 14, 2003 (see 68 64543) as adopted by the TCEQ on August 9, 
2000 and March 7, 2001.
---------------------------------------------------------------------------

     Comment 48B: A thorough review of Texas' statutory and 
regulatory law affecting public participation is the only way to ensure 
that Texas actually implements a public participation program that is 
consistent with the Act. EPA cannot merely assume Texas will implement 
only those public participation provisions that are SIP approved.
    [cir] Response 48B: As discussed previously, EPA's authority to 
review and approve revisions to SIPs is limited to the provisions that 
are submitted. CAA 110(k)(3). EPA reviews the TCEQ's statutory 
authority to ensure TCEQ has the authority to adopt, implement, and 
enforce the submitted provisions, be they in the form of rules, orders, 
control measures, etc., and that its authority has been properly 
exercised. TCEQ also submits a particular statutory provision for 
inclusion in the SIP if there is no corresponding rule, measure, or 
order for implementation. In this action, we thoroughly reviewed the 
rules submitted to us for approval as part of the SIP and their 
associated statutory provisions. The submitted rules stand on their own 
and do not require us to include the statutory provisions as part of 
the Texas NSR SIP. No changes were made to the final rule as a result 
of this comment.
     Comment 48C: TCEQ's mailing lists are inadequate. Texas 
maintains mailing lists for those persons who wish to receive mailed 
notice of TCEQ permitting actions. Such lists, however, are inadequate 
for most purposes. The public can either be placed on a mailing list to 
receive notice of all permitting actions for all media in a county, or 
it

[[Page 570]]

can be placed on a mailing list for a particular permit number. TCEQ 
does not offer the option of being placed on a mailing list for a 
facility or source, which is what most members of the public would be 
interested in. Being placed on a list for all applications in a county 
results in receiving a flood of notices. Being on a list for a specific 
permit may deprive the public of notice of action on other permits and 
authorizations related to the facility or of new permits for the 
facility.
    [cir] Response 48C: There are no federal requirements for a 
permitting authority to maintain mailing lists or to provide targeted 
mailings with respect to either specific activities or facilities. 
Therefore, any mailing lists maintained by the TCEQ go beyond minimum 
federal requirements. However, we continue to encourage the TCEQ to 
listen to public feedback on the mailing list and revise the procedures 
and options accordingly to ensure that the mailing lists are serving 
the public as intended. No changes were made to the final rule as a 
result of this comment.

III. Final Action

    After careful consideration of the comments received and the 
responses to each comment provided above, and under section 110 and 
parts C and D of the Act, EPA is approving 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 approving 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 at Paragraphs 7(a) and 7(b) of Board 
Order 87-09. In this final action we are also revising the table at 40 
CFR 52.2270(e) to reflect these approvals.
    Consistent with the analysis presented in our December 13, 2012, 
proposed notice and the accompanying TSD, our final action does not 
include the following provisions submitted on July 2, 2010: 30 TAC 
Sections 39.402(a)(4), 39.402(a)(5), 39.402(a)(10), 39.402(a)(12), 
39.419(e)(3), 39.420(h). These provisions remain before EPA and will be 
addressed in a separate rulemaking.
    Additionally, our final action does not include 30 TAC Sections 
116.111(a)(2)(K) and 116.116(b)(3), as submitted on October 25, 1999. 
These provisions were returned to the TCEQ on June 29, 2011, because 
they are outside the scope of the Texas SIP.

IV. Statutory and Executive Order Reviews.

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 7, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposed of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

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

[[Page 571]]

matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: November 25, 2013.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
1. In Sec.  52.2270:
0
a. Amend the table in paragraph (c) by:
0
i. Adding a new centered heading ``Chapter 39--Public Notice'' followed 
by a new centered heading ``Subchapter H--Applicability and General 
Provisions'' followed by new entries for sections 39.402, 39.405, 
39.407, 39.409, 39.411, 39.418-39.420 in numerical order; and adding a 
new centered heading for ``Subchapter K--Public Notice of Air Quality 
Applications'' followed by entries for sections 39.601-39.605.
0
ii. Immediately following the newly added entry for Section 39.605 by 
adding a new centered heading ``Chapter 55--Requests for 
Reconsideration and Contested Case Hearings; Public Comment'' followed 
by a new centered heading for ``Subchapter E--Public Comment and Public 
Meetings'' followed by new entries for sections 55.150, 55.152, 55.154, 
and 55.156;
0
iii. Revising the entries for sections 116.111, 116.114, 116.116, and 
116.312; and removing the entry for section 116.124; and adding an 
entry for 116.194 in numerical order.
0
b. Amend the second table in paragraph (e) by revising the entry for 
``Revisions for Prevention of Significant Deterioration and Board 
Orders No. 85-07, 87-09, and 88-08''.
    The revisions and additions read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                             State
                                                           approval/
         State citation               Title/subject        submittal   EPA approval date        Explanation
                                                              date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                            Chapter 39--Public Notice
----------------------------------------------------------------------------------------------------------------
                               Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
Section 39.402.................  Applicability to Air        6/2/2010  1/6/2014 [Insert   SIP includes
                                  Quality Permits and                   FR page number     39.402(a)(1)-(3), and
                                  Permit Amendments.                    where document     (a)(6).
                                                                        begins].
Section 39.405.................  General Notice              6/2/2010  1/6/2014 [Insert   SIP includes
                                  Provisions.                           FR page number     39.405(f)(3) and (g),
                                                                        where document     (h)(1)(A), (h)(2)-
                                                                        begins].           (h)(4), (h)(6),
                                                                                           (h)(8)-(h)(11), (i)
                                                                                           and (j).
Section 39.407.................  Mailing Lists..........     9/2/1999  1/6/2014 [Insert   ......................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 39.409.................  Deadline for Public         6/2/2010  1/6/2014 [Insert   ......................
                                  Comment, and Requests                 FR page number
                                  for Reconsideration,                  where document
                                  Contested Case                        begins].
                                  Hearing, or Notice and
                                  Comment Hearing.
Section 39.411.................  Text of Public Notice..     6/2/2010  1/6/2014 [Insert   SIP includes
                                                                        FR page number     39.411(a),
                                                                        where document     39.411(e)(1)-(4)(A)(i
                                                                        begins].           ) and (iii), (4)(B),
                                                                                           (e)(5)(A), (e)(5)(B),
                                                                                           (e)(6)-(10),
                                                                                           (e)(11)(A)(i),
                                                                                           (e)(11)(A)(iii),
                                                                                           (e)(11)(A)(iv),
                                                                                           (e)(11)(B)-(F),
                                                                                           (e)(13), (e)(15),
                                                                                           (f)(1)-(8), (g), and
                                                                                           (h).
Section 39.418.................  Notice of Receipt of        6/2/2010  1/6/2014 [Insert   SIP includes
                                  Application and Intent                FR page number     39.418(a), (b)(2)(A),
                                  to Obtain Permit.                     where document     (b)(3) and (c).
                                                                        begins].
Section 39.419.................  Notice of Application       6/2/2010  1/6/2014 [Insert   SIP includes 39.419(e)
                                  and Preliminary                       FR page number     (e)(1) and (e)(2).
                                  Determination.                        where document
                                                                        begins].
Section 39.420.................  Transmittal of the          6/2/2010  1/6/2014 [Insert   SIP includes
                                  Executive Director's                  FR page number     39.420(c)(1)(A)-(D)(i
                                  Response to Comments                  where document     )(I) and (D)(i)(II),
                                  and Decision.                         begins].           (D)(ii), (c)(2), and
                                                                                           (d)-(e).

[[Page 572]]

 
                             Subchapter K- Public Notice of Air Quality Applications
----------------------------------------------------------------------------------------------------------------
Section 39.601.................  Applicability..........     6/2/2010  1/6/2014 [Insert   ......................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 39.602.................  Mailed Notice..........     6/2/2010  1/6/2014 [Insert   ......................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 39.603.................  Newspaper Notice.......     6/2/2010  1/6/2014 [Insert   ......................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 39.604.................  Sign-Posting...........     6/2/2010  1/6/2014 [Insert   ......................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 39.605.................  Notice to Affected          6/2/2010  1/6/2014 [Insert   ......................
                                  Agencies.                             FR page number
                                                                        where document
                                                                        begins].
----------------------------------------------------------------------------------------------------------------
              Chapter 55--Requests for Reconsideration and Contested Case Hearings; Public Comment
----------------------------------------------------------------------------------------------------------------
                                Subchapter E--Public Comment and Public Meetings
----------------------------------------------------------------------------------------------------------------
Section 55.150.................  Applicability..........    6/14/2006  1/6/2014 [Insert   ......................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 55.152.................  Public Comment Period..     6/2/2010  1/6/2014 [Insert   SIP includes
                                                                        FR page number     55.152(a)(1), (a)(2),
                                                                        where document     (a)(5), (a)(6), and
                                                                        begins].           (b).
Section 55.154.................  Public Meetings........     6/2/2010  1/6/2014 [Insert   SIP includes
                                                                        FR page number     55.154(a), (b),
                                                                        where document     (c)(1)-(3) and (5),
                                                                        begins].           and (d)-(g).
Section 55.156.................  Public Comment              6/2/2010  1/6/2014 [Insert   SIP includes
                                  Processing.                           FR page number     55.156(a), (b),
                                                                        where document     (c)(1), (e) and (g).
                                                                        begins].
 
                                                  * * * * * * *
Section 116.111................  General Application....    8/21/2002  1/6/2014 [Insert   The SIP does not
                                                                        FR page number     include paragraphs
                                                                        where document     (a)(2)(K).
                                                                        begins].
Section 116.114................  Application Review          6/2/2010  1/6/2014 [Insert   ......................
                                  Schedule.                             FR page number
                                                                        where document
                                                                        begins].
Section 116.116................  Changes to Facilities..    9/15/2010  1/6/2014 [Insert   The SIP does not
                                                                        FR page number     include 116.116(b)(3)
                                                                        where document     and 116.116(e).
                                                                        begins].
 
                                                  * * * * * * *
Section 116.194................  Public Notification and     6/2/2010  1/6/2014 [Insert   ......................
                                  Comment.                              FR page number
                                                                        where document
                                                                        begins].
 
                                                  * * * * * * *
Section 116.312................  Public Notification and     9/2/1999  1/6/2014 [Insert   ......................
                                  Comment Procedures.                   FR page number
                                                                        where document
                                                                        begins].
 

[[Page 573]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                  Applicable        State
                                 geographic or    submittal/
    Name of SIP provision        nonattainment    effective        EPA approval date              Comments
                                     area            date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Revisions for Prevention of    Statewide.......    12/11/85,  06/4/92, 57 FR 28098.......  Ref 52.2299(c)(73).
 Significant Deterioration                         10/26/87,                               For Board Order 87-
 and Board Orders No. 85-07,                         9/29/88                                09, the provisions
 87-09, and 88-08.                                                                          at paragraphs 7(a)
                                                                                            and 7(b) have been
                                                                                            replaced by EPA's
                                                                                            SIP-approval of 30
                                                                                            TAC 39.411(f)(8)(A)
                                                                                            and 39.605(1)(D).
                                                                                            See 1/6/14 [Insert
                                                                                            FR page number where
                                                                                            document begins]
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2013-30229 Filed 1-3-14; 8:45 am]
BILLING CODE 6560-50-P