Approval and Promulgation of Implementation Plans; Texas; Revisions to Chapters 39, 55, and 116 Which Relate to Public Participation on Permits for New and Modified Sources, 72001-72016 [E8-28162]
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules
rule would have an insignificant
economic impact on a few small
entities. The proposed rule would likely
affect fewer than 100 of the 2,800
community residential care facilities
approved for referral of veterans under
the regulations. Also, the additional
costs for compliance with the proposed
rule would constitute an
inconsequential amount of the
operational costs of such facilities.
Accordingly, pursuant to 5 U.S.C.
605(b), this rule is exempt from the
initial and final regulatory flexibility
analysis requirements of sections 603
and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs affected by this document are
64.005, Grants to States for Construction
of State Home Facilities; 64.007, Blind
Rehabilitation Centers; 64.008, Veterans
Domiciliary Care; 64.009, Veterans
Medical Care Benefits; 64.010, Veterans
Nursing Home Care; 64.011, Veterans
Dental Care; 64.012, Veterans
Prescription Service; 64.013, Veterans
Prosthetic Appliances; 64.014, Veterans
State Domiciliary Care; 64.015, Veterans
State Nursing Home Care; 64.016,
Veterans State Hospital Care; 64.018,
Sharing Specialized Medical Resources;
64.019, Veterans Rehabilitation Alcohol
and Drug Dependence; 64.022, Veterans
Home Based Primary Care.
List of Subjects in 38 CFR Part 17
Administrative practice and
procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug
abuse, Foreign relations, Government
contracts, Grant programs—health,
Grant programs—veterans, Health care,
Health facilities, Health professions,
Health records, Homeless, Incorporation
by reference, Medical and dental
schools, Medical devices, Medical
research, Mental health programs,
Nursing homes, Philippines, Reporting
and recordkeeping requirements,
Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Approved: September 19, 2008.
James B. Peake,
Secretary of Veterans Affairs.
jlentini on PROD1PC65 with PROPOSALS
For the reasons set out in the
preamble, VA proposes to amend 38
CFR part 17 as set forth below:
PART 17—MEDICAL
1. The authority citation for part 17
continues to read as follows:
Authority: 38 U.S.C. 501, 1721, and as
stated in specific sections.
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§ 17.62
[Amended]
2. Amend § 17.62 by removing
paragraph (b) and redesignating
paragraphs (c) through (g) as paragraphs
(b) through (f), respectively.
3. Amend § 17.63 by:
a. In paragraph (a)(2), removing
‘‘Office of Regulations Management
(02D). Room 1154,’’ and adding, in its
place, ‘‘Office of Regulation Policy and
Management (02REG), Room 1068,’’ and
by revising the first sentence.
b. Revising paragraph (a)(3).
c. Removing and reserving paragraph
(b).
d. In paragraph (g), removing
‘‘specified in the statement of needed
care’’.
e. In paragraph (i), removing
paragraph (i)(2)(i) and redesignating
paragraphs (i)(2)(ii) and (i)(2)(iii) as
paragraphs (i)(2)(i) and (i)(2)(ii),
respectively.
The revisions read as follows:
§ 17.63 Approval of community residential
care facilities.
*
*
*
*
(a) * * *
(2) Meet the requirements of chapters
1–11, 32–33, and 43 and Appendix A of
the NFPA 101, the National Fire
Protection Association’s Life Safety
Code (2006 edition), and NFPA 101A,
Guide on Alternative Approaches to Life
Safety (2007 edition). * * *
(3) Have safe and functioning systems
for heating and/or cooling, as needed (a
heating or cooling system is deemed to
be needed if VA determines that, in the
county, parish, or similar jurisdiction
where the facility is located, a majority
of community residential care facilities
or other extended care facilities have
one), hot and cold water, electricity,
plumbing, sewage, cooking, laundry,
artificial and natural light, and
ventilation.
*
*
*
*
*
72001
facility does not meet one or more of the
standards in 38 CFR 17.63, provided
that the deficiencies do not jeopardize
the health or safety of the residents, and
that the facility management and VA
agree to a plan of correcting the
deficiencies in a specified amount of
time. A provisional approval shall not
be for more than 12 months and shall
not be for more time than VA
determines is reasonable for correcting
the specific deficiencies.
(c) An approval may be changed to a
provisional approval or terminated
under the provisions of §§ 17.66 through
17.71 because of a subsequent failure to
meet the standards of § 17.63 and a
provisional approval may be terminated
under the provisions of §§ 17.66 through
17.71 based on failure to meet the plan
of correction or failure otherwise to
meet the standards of § 17.63.
(Authority: 38 U.S.C. 1730.)
[FR Doc. E8–28122 Filed 11–25–08; 8:45 am]
BILLING CODE 8320–01–P
*
§ 17.64
[Removed]
4. Remove and reserve § 17.64.
5. Revise § 17.65 to read as follows:
§ 17.65 Approvals and provisional
approvals of community residential care
facilities.
(a) An approval of a facility meeting
all of the standards in 38 CFR 17.63
based on the report of a VA inspection
and any findings of necessary interim
monitoring of the facility shall be for a
12-month period.
(b) The approving official, based on
the report of a VA inspection and on
any findings of necessary interim
monitoring of the facility, may provide
a community residential care facility
with a provisional approval if that
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2007–0209; FRL–8745–5]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to Chapters 39, 55, and 116
Which Relate to Public Participation on
Permits for New and Modified Sources
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing
simultaneous limited approval and
limited disapproval of revisions to the
applicable implementation plan for the
State of Texas which relate to public
participation on air permits for new and
modified sources. With noted
exceptions, this proposed limited
approval and limited disapproval affects
portions of SIP revisions submitted by
Texas on December 15, 1995; July 22,
1998; and the SIP revisions submitted
October 25, 1999. EPA is taking
comments on this proposal and plans to
follow with a final action.
DATES: Any comments must arrive by
January 26, 2009.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2007–0209, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6coment.htm. Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
• E-mail: Mr. Stanley M. Spruiell at
spruiell.stanley@epa.gov.
• Fax: Mr. Stanley M. Spruiell, Air
Permits Section (6PD–R), at fax number
214–665–7263.
• Mail: Stanley M. Spruiell, Air
Permits Section (6PD–R), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
• Hand or Courier Delivery: Stanley
M. Spruiell, Air Permits Section (6PD–
R), Environmental Protection Agency,
1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202–2733. Such deliveries are
accepted only between the hours of 8
a.m. and 4 p.m. weekdays except for
legal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2007–
0209. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
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18:24 Nov 25, 2008
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not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air Permits Section (6PD–R),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. There will
be a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittals are also available
for public inspection at the State Air
Agency listed below during official
business hours by appointment:
Texas Commission on Environmental
Quality, Office of Air Quality, 12124
Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr.
Stanley M. Spruiell, Air Permits Section
(6PD–R), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7212; fax number
214–665–7263; e-mail address
spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, the
following terms have the meanings
described below:
• ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA.
• ‘‘NSR’’ means new source review.
• ‘‘PSD’’ means prevention of
significant deterioration of air quality,
as established under 40 CFR 51.166.
• ‘‘NNSR’’ means nonattainment area
new source review.
• ‘‘Act’’ and ‘‘CAA’’ mean the Clean
Air Act.
• ‘‘SIP’’ means State Implementation
Plan.
• ‘‘TSD’’ means Technical Support
Document for this action.
• ‘‘PAL’’ means Plantwide
Applicability Limitation, as established
under 40 CFR 51.165(f) or 51.166(w).
• ‘‘NAAQS’’ means National Ambient
Air Quality Standards, as established
under 40 CFR part 50.
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Table of Contents
I. What regulations did Texas submit for
inclusion into the SIP?
II. What are we proposing?
III. How do the revised rules strengthen the
existing SIP?
IV. What are the rule deficiencies?
V. Do Texas’ public participation rules meet
federal requirements?
VI. Other Public Participation Concerns
VII. Why are we taking no action on some
provisions of the submittal?
VIII. Public Comment and Proposed Action
IX. Statutory and Executive Order Reviews
I. What regulations did Texas submit
for inclusion into the SIP?
On October 25, 1999, Texas submitted
revisions to Chapters 39, 55, and 116
which include rules that relate to public
participation on air permits for
authorization of new and modified
sources, including amendments and
renewals. In addition, portions of the
submittals dated December 15, 1995,
and July 22, 1998, contain provisions
relevant to this action. Hereafter, we
refer to these submittals as the ‘‘revised
rules.’’ These SIP packages include the
following rules:
A. The December 15, 1995, submittal
includes Texas’ submittal of section
116.312—Public Notification and
Comment Procedures. Section II.A of
this preamble contains additional
information on the December 15, 1995,
submittal.
B. The July 22, 1998, submittal
includes Texas’ submittal of repeal and
readoption (with nonsubstantive
revisions) of section 116.312—Public
Notification and Comment Procedures.
Section II.A of this preamble contains
additional information on the July 22,
1998, submittal.
C. The October 25, 1999, submittal
includes the following revisions related
to this action. Section II.A of this
preamble contains additional
information on the October 25, 1999,
submittal.
• New rules affecting Chapter 39—
Public Notice 1—are as follows: Section
39.201—Application for a
Preconstruction Permit; section
39.401—-Purpose; section 39.403—
Applicability; section 39.405—General
Notice Provisions; section 39.409—
Deadline for Public Comment, Requests
for Reconsideration, contested Case
Hearing, or Notice and Comment
Hearing; section 39.411—Text of Public
Notice; section 39.413—Mailed Notice;
section 39.418—Notice of Receipt of
Application and Intent to Obtain Permit;
1 Texas submitted subsequent revisions to
Chapter 39 on July 31, 2002; and March 9, 2006.
These changes are parts of separate SIP revisions
which are currently under review. EPA will address
these changes to Chapter 39 in separate actions.
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section 39.419—Notice of Application
and Preliminary Determination; section
39.420—Transmittal of the Executive
Director’s Response to Comments and
Decision; section 39.423—Notice of
Contested Case Hearing; section
39.601—Applicability; section 39.602—
Mailed Notice; section 39.603—
Newspaper Notice; section 39.604—
Sign-Posting; and section 39.605—
Notice to Affected Agencies.
• New rules affecting Chapter 55—
Requests for Reconsideration and
Contested Case Hearing—are as follows:
Section 55.1—Applicability; section
55.21—Requests for Contested Case
Hearing, Public Comment; section
55.101—Applicability; section 55.103—
Definitions; section 55.150—
Applicability; section 55.152—Public
Comment Period; section 55.154—
Public Meetings; section 55.156—Public
Comment Processing; section 55.200—
Applicability; section 55.201—Requests
for Reconsideration and Contested Case
Hearing; section 55.203—Determination
of Affected Person; section 55.205—
Request by Group or Association;
section 55.209—Processing Requests for
Reconsideration or Contested Case
Hearing; and section 55.211—
Commission Action or Requests for
Reconsideration and Contested Case
Hearing.
• Rules revisions affecting Chapter
116—Control of Air Pollution by
Permits for New Construction and
Modification are—as follows: Section
116.111—General Application; section
116.114—Application Review Schedule;
section 116.116—Changes to Facilities;
section 116.183—Public Notice
Requirements; section 116.312—Public
Notification and Comment Procedures;
and section 116.740—Public Notice.
• Texas submitted repeal of the
following regulation: section 116.124—
Public Notice of Compliance History.
The existing SIP-approved regulations
which relate to public participation for
air quality permits are as follows:
Sections 116.130—Applicability;
116.131—Public Notification
Requirements; 116.132—Public Notice
Format; 116.133—Sign Posting
Requirements; 116.134—Notification of
Affected Agencies; 116.136—Public
Comment Procedures; and 116.137—
Notification of Final Agency Action.
These regulations will now apply to air
quality permits declared
administratively complete before
September 1, 1999. EPA proposes to add
a notation, in addition to the
applicability statement at section 39.403
of the revised rule, to this effect to the
existing SIP. In addition, section
116.312—Public Notification and
Comment Procedures, which applies to
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permit renewals, was amended to
replace cross references to the public
notification procedures in sections
116.130 through 116.137 with a cross
reference to applicable procedure in
Chapter 39.
The revised rules will replace the
existing SIP rules for public
participation for air quality permits
declared administratively complete on
or after September 1, 1999. The Texas
public participation procedures were
previously located in the subchapter of
the SIP applicable to each type of
permitting action. Chapter 39 of the
Texas Administrative Code (TAC)
consolidates public participation
requirements for most air quality
permitting actions (as well as permits
issued under other environmental
statutes). Applicability of the rules in
Chapter 39 to different types of air
permits is determined by the general
applicability statement in subchapter H.
Additional requirements that are
specific to air quality permits are found
in subchapter K. Section 39.403(b) lists
the types of air quality permits subject
to the public participation requirements
in Chapter 39:
• Air quality permits under Texas
Health and Safety Code (THSC), Section
382.0518 (preconstruction permit) and
Section 382.055 (review and renewal of
preconstruction permit).2 See section
39.403(8).
• Applications for permit
amendments to air quality permits
under Section 116.116(b) (changes to
facilities) that involve construction of a
new facility; modification of an existing
facility (as defined in Section 116.10) 3
that results in an increase in allowable
emissions equal to or greater than 250
tons per year (tpy) of carbon monoxide
(CO) or nitrogen oxides (NOX); or 25 tpy
of volatile organic compounds (VOC) or
sulfur dioxide (SO2) or inhalable
particulate matter (PM10); or 25 tpy of
any other air contaminant except carbon
dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen; or other
changes within the discretion of the
Executive Director.4 See section
39.403(8).
2 Section
382.0518 and section 382.055 of the
THSC currently apply to permit applications,
modifications and renewals under Chapter 116 of
the Texas SIP for minor and major new source
review permits.
3 Note that EPA has not acted on the definition
of ‘‘modification of an existing facility’’ at section
116.10 and so it is not currently part of the
approved SIP.
4 Section 39.403(b)(8) refers to emission
quantities defined in section 106.4(a)(1) of this title
(relating to Requirements for Permitting by Rule) for
sources defined in sections 106.4(a)(2) and (3). The
defined emission quantities in Section 106.4 are
emissions equal to or greater than 250 tpy of CO or
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72003
• Initial issuance of flexible permits
under Chapter 116, Subchapter G, and
amendments to flexible permits under
Sections 116.710(a)(2) and (3) that
involve construction of a new facility,
modification of an existing facility that
results in an increase in allowable
emissions equal to or greater than 250
tpy of CO or NOX; or 25 tpy of VOC or
SO2 or PM10; or 25 tpy of any other air
contaminant except carbon dioxide,
water, nitrogen, methane, ethane,
hydrogen, and oxygen or other changes
within the discretion of the Executive
Director.5 See section 39.403(8).
• Applications for construction or
reconstruction subject to Chapter 116,
Subchapter C for hazardous air
pollutants.6 See section 39.403(9).
• Concrete batch plants under
Chapter 106 unless the facility is to be
temporarily located in or contiguous to
the right of way of a public works
project. See section 39.403(10).7
• The Chapter 39 requirements also
apply to PALs through a cross-reference
at section 116.194.
II. What are we proposing?
A. Our Proposal
We have evaluated the revised rules
for enforceability and consistency with
the CAA, 40 CFR Part 51, and EPA
policy and guidance. We have
determined that the revised rules
contain some provisions that meet or
exceed federal requirements. We have
also determined that some provisions
are not consistent with federal
requirements and therefore, are not fully
approvable. The deficient provisions of
the revised rule are not separable from
the remainder of the rule. As authorized
in sections 110(k)(3) and 301(a) of the
Act, we are proposing simultaneous
limited approval and limited
disapproval of the revised rules. We are
proposing limited approval because the
rules, as a whole, strengthen the existing
SIP and facilitate enforcement of the
State’s public participation
requirements. We are simultaneously
proposing limited disapproval because
the provisions identified in section IV of
NOX; or 25 tpy of VOC or SO2 or PM10; or 25 tpy
of any other air contaminant except carbon dioxide,
water, nitrogen, methane, ethane, hydrogen, and
oxygen.
5 Note that this provision also refers to the
emission quantities defined in Section 106.4 of the
SIP.
6 The provisions of Subchapter C were later
recodified into Subchapter E in a separate SIP
submittal. We will address this recodification in a
separate action. Also see section VII.A of this
document for further discussion on the provision
for hazardous air pollutants.
7 See discussion in section VI.G of this preamble
for further information on public notice for concrete
batch plants.
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this preamble are not consistent with
applicable federal requirements. Final
limited approval will incorporate the
revised rule in its entirety into the Texas
SIP. We are not acting on the provisions
of the submittal discussed in section VII
of this notice. Note that some of the
public participation rules we are
considering today apply to other rules
that have not yet been approved into the
SIP. For example, we have not proposed
State citation
action on Texas’ NSR PAL, flexible
permit, qualified facility or NSR reform
rules, however some of the rules we are
considering today are applicable to
them. These other rules will be
reviewed in separate actions. Our action
on any provision of this rule which
refers to or implements a provision that
EPA has not approved does not imply
EPA proposed action on the pending
rule. The Chapter 39 revised rules
Title
State submittal
dates
Current SIP status
consolidate public participation
requirements applicable to the pending
rules. Final action on the revised rule
will facilitate review of the pending
rules.8
Except where noted below, EPA
proposes limited approval and limited
disapproval (LALD) of the following
regulations:
Type of SIP revision
Proposed action
Chapter 39—Public Notice
Subchapter D—Public Notice of Air Quality Permits
Section 39.201 ..............
Application for a
Preconstruction
Permit.
Not in existing SIP ......
10/25/99
New rule ......................
LALD.
Subchapter H—Applicability and General Provisions
Section 39.401 ..............
Section 39.403 ..............
Purpose .......................
Applicability .................
Not in existing SIP ......
Not in existing SIP ......
10/25/99
10/25/99
Section 39.405 ..............
General Notice Provisions.
Not in existing SIP ......
10/25/99
Section 39.409 ..............
Not in existing SIP ......
10/25/99
Section 39.411 ..............
Deadline for Public
Comment, Requests
for Reconsideration,
Contested Case
Hearing, or Notice of
Comment Hearing.
Text of Public Notice ...
Not in existing SIP ......
10/25/99
Section 39.413 ..............
Mailed Notice ..............
Not in existing SIP ......
10/25/99
Section 39.418 ..............
Notice of Receipt of
Application and Intent to Obtain Permit.
Notice of Application
and Preliminary Determination.
Transmittal of Executive Director’s Response to Comments
and Decision.
Notice of Contested
Case Hearing.
Not in existing SIP ......
10/25/99
Not in existing SIP ......
10/25/99
Not in existing SIP ......
10/25/99
Not in existing SIP ......
10/25/99
Section 39.419 ..............
Section 39.420 ..............
Section 39.423 ..............
New rule ......................
New rule State did not
submit paragraphs
(b)(1) through (b)(7).
No action on paragraph (b)(9). See
section VII.
New rule. State did not
submit subsections
(a) through (e) and
paragraph (f)(2).
New rule ......................
LALD.
LALD. The SIP will not
include paragraphs
(b)(1) through (b)(7)
and (b)(9).
New rule. State did not
submit paragraph
(b)(7).
No action on paragraphs (b)(11),
(b)(13), (b)(14), and
(c)(7). See section
VII.
New rule. State did not
submit paragraphs
(1) through (8), (10),
and (13).
New rule. State did not
submit paragraphs
(b)(1) through (b)(2).
New rule. State did not
submit subsection (c).
LALD. The SIP will not
include paragraphs
(b)(7), (b)(11),
(b)(13), (b)(14), and
(c)(7).
New rule. State did not
submit paragraph
(c)(2) and subsection
(e).
New rule ......................
LALD. The SIP will not
include subsections
(a) through (e) and
paragraph (f)(2).
LALD.
LALD. The SIP will not
include paragraphs
(1) through (8), (10),
and (13).
LALD. The SIP will not
include paragraphs
(b)(1) through (b)(2).
LALD. The SIP will not
include subsection
(c).
LALD. The SIP will not
include paragraph
(c)(2) and subsection
(e).
LALD.
jlentini on PROD1PC65 with PROPOSALS
Subpart K—Public Notice for Air Quality Permits
Section 39.601 ..............
Section 39.602 ..............
Section 39.603 ..............
Applicability .................
Mailed Notice ..............
Newspaper Notice .......
8 See letter in the docket for this action from
Glenn Shankle, Executive Director of TCEQ, to
Larry Starfield, Deputy Regional Administrator for
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Not in existing SIP ......
Not in existing SIP ......
Not in existing SIP ......
10/25/99
10/25/99
10/25/99
EPA Region 6, dated June 13, 2008, noting that
action on TCEQ’s public participation rule was
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New rule ......................
New rule ......................
New rule ......................
LALD.
LALD.
LALD.
necessary to resolve issues in another pending SIP
submission.
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State submittal
dates
State citation
Title
Current SIP status
Section 39.604 ..............
Section 39.605 ..............
Sign-Posting ................
Notice to Affected
Agencies.
Not in existing SIP ......
Not in existing SIP ......
10/25/99
10/25/99
Type of SIP revision
New rule ......................
New rule ......................
72005
Proposed action
LALD.
LALD.
Chapter 55—Requests for Reconsideration and Contested Case Hearing
Subchapter A—Applicability
Section 55.1 ..................
Applicability .................
Not in existing SIP ......
10/25/99
New rule ......................
No action. See section
VII.
New rule ......................
No action. See section
VII.
Subchapter B—Requests, Public Comment
Section 55.21 ................
Requests for Contested Case Hearing,
Public Comment.
Not in existing SIP ......
10/25/99
Subchapter D—Applicability and Definitions
Section 55.101 ..............
Applicability .................
Not in existing SIP ......
10/25/99
New rule ......................
Section 55.103 ..............
Definitions ...................
Not in existing SIP ......
10/25/99
New rule ......................
No action. See section
VII.
No action. See section
VII.
Subchapter E—Public Comment and Public Meetings
Section 55.150 ..............
Section 55.152 ..............
Applicability .................
Public Comment Period.
Not in existing SIP ......
Not in existing SIP ......
10/25/99
10/25/99
Section 55.154 ..............
Section 55.156 ..............
Public Meetings ...........
Public Comment Processing.
Not in existing SIP ......
Not in existing SIP ......
10/25/99
10/25/99
New rule ......................
New rule. State did not
submit paragraphs
(a)(3) through (a)(5).
New rule ......................
New rule ......................
LALD.
LALD. The SIP will not
include paragraphs
(a)(3) through (a)(5).
LALD.
LALD.
Subchapter F—Requests for Reconsideration and Contested Case Hearing; Public Comment
Section 55.200 ..............
Applicability .................
Not in existing SIP ......
10/25/99
New rule ......................
Section 55.201 ..............
Requests for Reconsideration and Contested Case Hearing.
Determination of Affected Person.
Request by Group or
Association.
Processing Requests
for Reconsideration
or Contested Case
Hearing.
Commission Action on
Requests for Reconsideration and Contested Case Hearing.
Not in existing SIP ......
10/25/99
New rule ......................
Not in existing SIP ......
10/25/99
New rule ......................
Not in existing SIP ......
10/25/99
New rule ......................
Not in existing SIP ......
10/25/99
New rule ......................
Not in existing SIP ......
10/25/99
New rule ......................
Section 55.203 ..............
Section 55.205 ..............
Section 55.209 ..............
Section 55.211 ..............
No action. See section
VII.
No action. See section
VII.
No action. See section
VII.
No action. See section
VII.
No action. See section
VII.
No action. See section
VII.
Chapter 116—Control of Air Pollution by Permits for New Construction or Modification
Subchapter B—New Source Review Permits
Division 1—Permit Application
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Section 116.111 ............
General Application .....
In existing SIP as approved 8/28/07, 72
FR 41998.
The existing SIP does
not include paragraph (a)(2)(K) and
subsection (b).
10/25/99
Section 116.114 ............
Application Review
Schedule.
In existing SIP as approved 9/18/02, 67
FR 58709.
10/25/99
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Redesignated pre-existing text as subsection (a). This
change was approved 9/6/06, 71 FR
52664.
Added new subsection
(b).
Revision to paragraphs
(a)(2), (b)(1), and
(b)(2); and the addition of new subsection (c).
E:\FR\FM\26NOP1.SGM
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LALD to add new subsection (b). The SIP
will not include paragraph (a)(2)(K).
LALD for all submitted
SIP revisions.
72006
Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules
State submittal
dates
State citation
Title
Current SIP status
Section 116.116 ............
Changes to Facilities ..
In existing SIP as approved 11/14/03, 68
FR 64548.
The existing SIP does
not include sections
116.116(b)(3), (b)(4),
(e), and (f).
10/25/99
Type of SIP revision
Proposed action
Revised subsection (d)
and paragraphs
(d)(1) and (d)(2).
This change was approved 11/14/03, 68
FR 64548.
Added new paragraph
(b)(4).
LALD for addition of
paragraph (b)(4).
The SIP will not include paragraph
(b)(3) and subsections (e) through
(f).
Section repealed .........
Removal of section
116.124 from the
SIP.
Division 2—Compliance History
Section 116.124 ............
Public Notice of Compliance History Section.
In existing SIP as approved 9/18/02, 67
FR 58709.
10/25/99
Subchapter C—Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, § 112(g), 40 CFR
Part 63)
Section 116.183 ............
Public Notice Requirements.
Not in existing SIP ......
7/22/98
10/25/99
EPA took no action on
section 116.183 as
submitted 7/22/98.
See 67 FR 58699 (9/
18/02).
Revision to change
cross reference from
sections 116.130
through 116.137 to
applicable provisions
in Chapter 39.
No action on revision
to section 116.183
as submitted 10/25/
99. See section VII.
7/22/98 submittal repealed and revised
pre-existing section.
Changes were nonsubstantive housekeeping changes to
include cross references to current
rule.
Revised to change
cross reference from
Chapter 116 to
Chapter 39.
LALD for changes submitted 12/15/95, 7/
22/98, and 10/25/99.
Revised to change
cross reference from
Chapter 116 to
Chapter 39.
No action. See section
VII.
Subchapter D—Permit Renewals
Section 116.312 ............
Public Notification and
Comment Procedures.
In existing SIP as approved 3/10/06, 71
FR 12285.
12/15/95 and
7/22/98
10/25/99
Subchapter G—Flexible Permits
Section 116.740 ............
Public Notice ...............
jlentini on PROD1PC65 with PROPOSALS
B. What is limited approval and limited
disapproval?
Under section 110(k)(3) of the CAA,
EPA may fully approve or fully
disapprove a State submittal. Where
portions of the State submittal are
separable, EPA may approve the
portions of the submittal that meet the
requirements of the CAA, and
disapprove the portions of the submittal
that do not meet the requirements of the
CAA. When a submittal is not separable,
EPA can adopt a limited approval and
limited disapproval consistent with
section 301(a) and 110(k)(3) of the Act.
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Not in existing SIP ......
10/25/99
A limited approval action applies to
the entire rule because EPA finds that
approval of the entire rule will
strengthen the State’s SIP. In proposing
a limited approval, EPA simultaneously
proposes a limited disapproval of the
submittal because it contains
deficiencies and, as such, does not fully
meet all of the requirements of the Act.
Under a final limited approval, the
State’s entire submittal is incorporated
into the SIP and becomes fully federally
enforceable. Where the submittal
addresses a mandatory requirement of
the Act, final limited disapproval starts
a sanctions clock and a federal
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Sfmt 4702
implementation plan (FIP) clock. Under
section 179(a), if EPA disapproves a
submittal of a requirement under the
CAA, based on the submittal’s failure to
meet one or more of the elements
required by the Act, the sanctions set
forth in section 179(b) become
applicable, unless the deficiency has
been corrected within 18 months of
disapproval. Section 179(b) of the Act
and 40 CFR 52.31 of our regulations
provide two sanctions available to the
Agency: increasing the offset
requirements and withholding highway
funding. Moreover, the final limited
disapproval may trigger a 24-month
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jlentini on PROD1PC65 with PROPOSALS
clock to adopt a FIP requirement under
section 110(c). If the State submits an
approvable rule revision during the
sanction clock period, EPA may propose
approval of the rule and take interim
final action, effective upon publication,
to stay the sanctions. Final approval of
the rule revision correcting the
deficiency terminates the FIP clock.
III. How do the revised rules strengthen
the existing SIP?
The SIP revisions submitted on
December 15, 1995; July 22, 1998; and
October 25, 1999, as a whole, strengthen
the SIP compared to the corresponding
provisions in the existing SIP. Below is
a summary of some revisions that
strengthen the SIP. The TSD includes
detailed analyses of how the SIP is
strengthened.
• The general requirement for
publishing notice in section 116.130(a)
was changed by section 39.418 to
provide a uniform time for publication
of the notice of the application (within
30 days of determination of
administrative completeness).
• Previously, permit amendments
were subject to notice at the discretion
of the Executive Director of TCEQ,
without specific criteria included in the
rule (section 116.130(a)). This provision
was removed, thus requiring notice of
amendment applications (section
39.403(b)(8)).
• Previously, a copy of the
application was required to be available
for public inspection in Austin, TX, and
the appropriate regional offices of the
TCEQ (sections 116.131(b) and
116.132(7)). The revised rules also
require a copy of the notice to be placed
in a public place, available for
inspection and copying, in the
municipality in or nearest to the
location of the facility that is the subject
of the application. See section 39.405.
• The revised rules add the
opportunity to request a public meeting
and allow the Executive Director to
determine whether significant public
interest exists to hold a public meeting.
If held, a written response is provided
to oral comments made together with
any timely written comments. In
addition, this response to comments
(RTC) is considered by the Commission
if it considers any contested case
hearing requests in a Commission
Meeting. The RTC is provided to all
commenters and persons who request to
be on a mailing list related to the
application. See sections 39.420, 55.152,
55.154, and 55.156.
• Notice of preliminary decision and
draft permit was extended from
applying only to NNSR and PSD permits
(see section 116.132(a)(6)) to any minor
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permit or permit amendment for which
a contested case hearing is requested by
an affected person in response to the
Notice of Receipt of Application and
Intent to Obtain a Permit. See section
39.419.
• Note also that the Texas rule
contains some provisions that exceed
federal requirements, such as sign
posting (section 39.604), a ‘‘display
type’’ newspaper notice (section
39.603(c)(2)), and alternate language
notice in newspaper and sign posting
(sections 39.405(h) and 39.604(e)).
IV. What are the rule deficiencies?
Notwithstanding the fact that these
rules strengthen the existing SIP, they
do not meet all of the minimum
applicable federal requirements that
relate to public participation. Each
notation below is discussed in detail in
Section V.
A. New or Modified Minor NSR Sources
Generally, the minor NSR public
participation rules identified below do
not require any initial public
participation for some permitting
actions or do not require the TCEQ to
provide the agency’s air quality analysis
and proposal to approve or disapprove
the permit in other permitting actions.
• Under section 39.419(e), for new or
modified minor NSR sources or minor
modifications at major sources, the rules
do not require public notice and the
opportunity for comment on the State’s
analysis of the effect of construction or
modification on ambient air quality,
including the agency’s proposed
approval or disapproval, as required by
40 CFR 51.161(a) and (b), unless a
contested case hearing is requested and
not withdrawn after notice of
application and intent to obtain a permit
is published.
• Under section 39.403(b)(8), for a
minor NSR permit amendment or minor
modification under section 116.116(b),
(where there is a change in the method
of control of emissions; a change in the
character of the emissions; or an
increase in the emission rate of any air
contaminant) the existing SIP requires
the permit holder to apply for and
receive approval of a permit
amendment. However, the revised rules
do not require any public participation
as required by 40 CFR 51.161(a) and (b)
unless the change involves construction
of a new facility or modification of an
existing facility that results in an
increase in allowable emissions equal to
or greater than 250 tpy of CO or NOX;
or 25 tpy of VOC or SO2 or PM10; or 25
tpy of any other air contaminant except
carbon dioxide, water, nitrogen,
methane, ethane, hydrogen, and oxygen
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72007
or other changes within the discretion of
the Executive Director.
• Under section 39.419(e)(1)(C), for
any amendment, modification, or
renewal of a major or minor source
which requires a permit application, the
rules do not require public notice and
the opportunity for comment on the
State’s analysis of the effect of
construction or modification on ambient
air quality, including the agency’s
proposed approval or disapproval, as
required by 40 CFR 51.161(a) and (b), if
the amendment, modification, or
renewal would not result in an increase
in allowable emissions and would not
result in the emission of an air
contaminant not previously emitted
unless the application involves a facility
for which the applicant’s compliance
history contains violations that are
unresolved and that constitute a
recurring pattern of egregious conduct
which demonstrates a consistent
disregard for the regulatory process,
including the failure to make a timely
and substantial attempt to correct the
violations.
• Also, section 39.403(b)(8),
Applicability, of the revised rule refers
to two State statutory provisions, THSC
section 382.0518 (preconstruction
permit) and section 382.055 (review and
renewal of preconstruction permit). For
clarity and for approvability into the
SIP, section 39.403(b) should be revised
to refer to the corresponding sections of
the Texas SIP.
B. Projects Subject to PSD
The revised rules do not contain the
following requirements for projects
subject to the regulations for PSD:
• For a new or modified source
subject to PSD, the revised rules do not
require the TCEQ to provide an
opportunity for a public hearing for
interested persons to appear and submit
written or oral comment on the air
quality impact of the source,
alternatives to it, the control technology
required, and appropriate
considerations and to provide notice of
the opportunity for a public hearing, as
required by 40 CFR 51.166(q)(v) and
section 165(a)(2) of the Act.
• For a new or modified source
subject to PSD, the revised rules do not
require that the public notice of a PSD
permit contain the degree of increment
consumption that is expected from the
source or modification as required by 40
CFR 51.166(q)(iii) and CAA section
165(a)(2).
• For a new or modified source
subject to PSD, the revised rules do not
require a copy of the public notice of a
PSD permit to be sent to State and local
air pollution control agencies, the chief
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executives of the city and county where
the source would be located and any
State or Federal Land Manager or Indian
Governing Body whose lands may be
affected by emissions from the source or
modification, as required by 40 CFR
51.166(q)(iv).
• For a new or modified source
subject to PSD, the rules do not require
that response to comments be available
prior to final action on the PSD permit,
as required by 40 CFR 51.166(q)(vi) and
(viii).
• For a new or modified source
subject to PSD, the revised rules do not
contain a definition of a final appealable
decision for a PSD permit. We request
further information about how and
when commenters are informed of the
Agency’s final decision, access to
response to comments and timing for
judicial appeal, in order to provide an
opportunity for State court judicial
review.
jlentini on PROD1PC65 with PROPOSALS
C. Project for a PAL
The revised rules do not meet the
following provisions for PALs:
• For PALs for existing major
stationary sources, there is no provision
that PALs be established, renewed, or
increased through a procedure that is
consistent with 40 CFR 51.160 and
51.161, including the requirement that
the reviewing authority provide the
public with notice of the proposed
approval of a PAL permit and at least a
30-day period for submittal of public
comment, consistent with the Federal
PAL rules at 40 CFR 51.165(f)(5) and
(11) and 51.166(w)(5) and (11).
• For PALs for existing major
stationary sources, there is no
requirement that the State address all
material comments before taking final
action on the permit, consistent with 40
CFR 51.165(f)(5) and 51.166(w)(5).
• The applicability provision in
section 39.403 does not include PALs,
despite the cross-reference to Chapter 39
in Section 116.194.
D. Project for a Flexible Permit
The rules do not meet the following
provisions for Flexible Permits:
• For initial issuance of a flexible
permit to establish a minor NSR
applicability cap or an increase in a
flexible permit cap, the rules do not
require 30-day notice and comment on
information submitted by the owner or
operator and the agency’s analysis of the
effect of the permit on ambient air
quality, including the agency’s proposed
approval or disapproval as required by
40 CFR 51.161.
• Where PSD and NNSR terms and
conditions are modified or eliminated
when the permit is incorporated into a
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17:02 Nov 25, 2008
Jkt 217001
flexible permit, the rules do not require
public participation consistent with 40
CFR 51.161 and 51.166(q).
V. Do Texas’s public participation rules
meet federal requirements?
A. Minor NSR Regulatory Requirements
1. What public participation
requirements for minor NSR programs
are necessary for approval of the SIP
revision?
The CAA at section 110(a)(2)(C)
requires states to include a minor NSR
program in their SIP to regulate
modifications and new construction of
stationary sources within the area as
necessary to assure the national ambient
air quality standards (NAAQS) are
achieved. EPA’s implementing
regulations at 40 CFR 51.160–51.164 are
intended to ensure that new source
growth is consistent with maintenance
of the NAAQS. 40 CFR 51.160(e)
requires states to identify types and
sizes of facilities which will be subject
to review under their minor NSR
program. For sources identified under
§ 51.160(e), § 51.160(a) requires that the
SIP include legally enforceable
procedures that enable the State or local
agency to determine whether
construction or modification of a
facility, building, structure or
installation, or combination of these
will result in a violation of applicable
portions of the control strategy; or
interference with attainment or
maintenance of a national standard in
the State in which the proposed source
(or modification) is located or in a
neighboring State.
Sources subject to the legally
enforceable procedures under 40 CFR
51.160(a) are also subject to the
minimum public participation
requirements at 40 CFR 51.161, entitled
Public Availability of Information. In
particular, 40 CFR 51.161(a) requires a
State to provide the opportunity for
public comments on information
submitted by owners and operators. 40
CFR 51.161(a) also requires the public
information to include the agency’s
analysis of the effect of construction or
modification on ambient air quality,
including the agency’s proposed
approval or disapproval. 40 CFR
51.161(b) requires that the State ensure
availability of the information submitted
by the owner or operator and the State’s
analysis of the effect on air quality for
public inspection in at least one
location in the affected area, that the
State provide a 30-day public comment
period on that information and that
notice of the public comment period
should be by prominent advertisement
in the area affected.
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The minor NSR program is also
important as a tool to implement
changes related to major NSR, such as
to adopt enforceable limitations on
hours of operation and rates of
production or the installation of
pollution control equipment to limit
potential to emit (PTE) to avoid major
source applicability thresholds of NSR
or title V permitting requirements. The
minor NSR program also authorizes
minor modifications at major sources,
including netting demonstrations
required by the PSD and NNSR major
source program, or to establish a PAL to
determine PSD or NNSR applicability.
EPA recognizes that, under the
applicable Federal regulations, states
have broad discretion to determine the
scope of their minor NSR programs as
needed to attain and maintain the
NAAQS. The State has significant
discretion to tailor minor NSR
requirements that are consistent with
the requirements of Part 51. The State
may also provide a rationale for why the
rules are at least as stringent as the Part
51 requirements where the revisions are
different from Part 51. For further
information, see recent SIP actions in
other States concerning minor NSR
approvals and disapprovals, such as 68
FR 2891 (January 22, 2003), where EPA
approved Oregon’s minor NSR program
establishing categories of minor NSR
permit actions. However, EPA
disapproved or gave less than full
approval to minor NSR public
participation requirements that
provided a blanket exemption from one
or more public notice requirements of
Part 51 to all minor NSR permitting
actions. See 65 FR 2042 (January 13,
2000), disapproval of West Virginia
minor NSR provisions providing 15-day
public comment period for certain
minor NSR permitting actions or 65 FR
2048 (January 13, 2000), limited
approval of Delaware minor NSR public
participation requirements because it
strengthened the SIP, but limited
disapproval of the rule due to less than
30-day comment period. See also the
proposed approval of Review of New
Sources and Modifications in Indian
Country at 71 FR 48696 (August 21,
2006) and 72 FR 45378 (August 14,
2007), approval of Alaska minor NSR
public participation provisions.
2. What are the Texas minor NSR
program public participation
requirements?
In general, the revised rules provide
for two types of public notice and
comment processes. These two public
notices are Notice of Application and
Intent to Obtain a Permit under section
39.418 (first notice) and Notice of
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Proposed Rules
Application and Preliminary Decision
(second notice) under section 39.419
and subchapter K. The first notice
requires the permittee to publish notice
of the permit application and provide a
copy of the administratively complete
application in the public record
available for public comment. An
administratively complete application
may, but is not required to, contain the
applicant’s information on the air
quality impacts from the facility. Under
Section 39.419(e)(1)(B), no further
notice is required for minor NSR
permits unless a contested case hearing
is requested and not withdrawn before
the second notice is published. Under
section 55.21, a contested case hearing
may be requested by: (1) The
Commission; (2) the Executive Director;
(3) the applicant; (4) affected persons,
when authorized by law; and (5) for
applications for air quality permits, or
standard exemptions required to
provide public notice, a legislator from
the general area of the proposed facility.
The request must identify the person’s
personal justiciable interest affected by
the application, including the
requestor’s location and distance
relative to the activity that is the subject
of the application and how and why the
requestor believes he or she will be
affected by the activity in a manner not
common to members of the general
public. Requirements for a group or
association to request a contested case
hearing are found in section 55.23.9 A
contested case hearing is an evidentiary
hearing before an administrative law
judge at the State Office of
Administrative Hearings (SOAH). If a
contested case hearing is requested, the
permittee must publish notice of the
opportunity to comment on the
complete application and the State’s
analysis of air quality impacts and the
State’s proposal to approve or
disapprove the permit.
Section 39.418 of the revised rule
requires the applicant for a minor NSR
permit new source or modification,
amendments or renewal under Chapter
116 to publish Notice of Receipt of
Application and Intent to Obtain Permit
(first notice) within 30 days after the
Executive Director determines the
application to be administratively
complete. (The rule does not provide a
definition of administrative
completeness.) Under sections
55.152(a)(1) and (2), 39.405(f)(1), and
39.603, the notice of 30-day public
comment period (15 days for renewals)
must be published in a newspaper of
general circulation in the municipality
9 Section 55.23, Request by Group or Association,
was not submitted in this SIP revision.
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Jkt 217001
in which the facility is located or is
proposed to be located or in the
municipality nearest to the location or
proposed location of the facility and
State the end date of the public
comment period. Section 39.405(e)
requires the applicant to provide a copy
of the notice to the TCEQ within 10
business days from the last date of
publication. The applicant must also
post a sign at the site of the existing or
proposed facility declaring the filing of
an application for a permit under
section 39.604. The TCEQ is required to
mail a copy of the notice to the State
senator and representative who
represent the area in which the facility
is or will be located, the applicant,
persons on a relevant mailing list, and
any other person the Executive Director
or Chief Clerk may elect to include
under sections 39.413 and 39.602. The
applicant is required to mail a copy of
the notice to EPA, all local air pollution
control agencies with jurisdiction in the
county in which the construction is to
occur, and the air pollution control
agency of any nearby State in which air
quality may be adversely affected by the
emissions from the new or modified
facility under section 39.605. The
applicant is also required to make a
copy of the application available for
review and copying at a public place in
the county in which the facility is
located or proposed to be located. The
applicant must indicate when
confidential business information is
excluded from the public file. See
section 39.405(g). The public record
available during the comment period
includes the administratively complete
permit application and any other
documents submitted by the applicant,
as required by section 39.405(g).
If a contested case hearing is
requested by persons identified in
section 55.21 or 55.23 in response to the
Notice of Receipt of Application and
Intent to Obtain Permit, and the request
is not withdrawn before the date the
preliminary decision is issued, section
39.419 requires the applicant to publish
Notice of Application and Preliminary
Decision (second notice) of issuance or
modification of a minor NSR action and
provide a 30-day notice and comment
period on the public record, which
includes the draft permit and the State’s
analysis of its preliminary decision to
approve or disapprove the permit.
For minor and major sources
authorized under section 116.116(b) of
the approved SIP, a permittee must
apply for and receive a prior permit
amendment which authorizes a
permittee to vary from terms of a permit
if the change involves a change in the
method of control of emissions, a
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change in the character of the emissions,
or an increase in the emission rate of
any air contaminant. Section
39.403(b)(8) requires public notice and
the opportunity for comment only if the
permit amendment involves
construction of a new facility or
modification of an existing facility that
results in an increase in allowable
emissions equal to or greater than 250
tpy of CO or NOX; or 25 tpy of VOC or
SO2 or PM10; or 25 tpy of any other air
contaminant except carbon dioxide,
water, nitrogen, methane, ethane,
hydrogen, and oxygen or other changes
within the discretion of the Executive
Director. Therefore, permit amendments
authorized under section 116.116(b) are
not subject to any public participation
requirements unless the amendment
involved an emission increase of
allowable emission above the thresholds
in section 39.403(b)(8).
Under section 39.419(e)(1)(C), any
amendment, modification, or renewal
for a major or minor source that requires
a permit application and would not
result in an increase in allowable
emissions and would not result in the
emission of an air contaminant not
previously emitted, is not required to
provide second notice (which includes
public notice and the opportunity for
comment on the State’s second notice
which includes analysis of the effect of
construction or modification on ambient
air quality and includes the agency’s
proposed approval or disapproval)
unless the application involves a facility
for which the applicant’s compliance
history contains violations that are
unresolved and that constitute a
recurring pattern of egregious conduct
which demonstrates a consistent
disregard for the regulatory process,
including the failure to make a timely
and substantial attempt to correct the
violations. Therefore, amendments,
modifications or renewals for minor or
major sources are not required to
provide an air quality analysis or the
State’s proposal to approve or
disapprove the permit unless there was
an increase in allowable emissions or
the release of a new air contaminant.
3. Does the Texas minor NSR public
participation rule meet federal
requirements for approval?
The revised rules meet or exceed
federal requirements for minor NSR
public participation with four
exceptions as described below.
First, under section 39.419(e)(1)(B),
the requirement at 40 CFR 51.161(a) to
provide opportunity for public comment
on the State’s analysis of the effect of
construction or modification on ambient
air quality from new minor sources or
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minor modification identified under 40
CFR 51.160, including the State’s
proposed approval or disapproval, is not
met. Sources regulated under 40 CFR
51.160 are subject to the public
participation requirements of 40 CFR
51.161. Under the Texas rule, sources
subject to minor NSR requirements must
publish the first notice, Notice of
Receipt of Application and Intent to
Obtain Permit, and provide a 30-day
notice and comment period on the
administratively complete permit
application only. The publically
available information during the
comment period does not include and,
the public notice fails to inform the
public how to obtain, the State’s
analysis of air quality impacts and
proposal to approve or disapprove the
application. The public record for the
first notice is required to contain only
a copy of the administratively complete
permit application as required by
section 39.405(g). As a result, the public
does not have an opportunity to
adequately review and comment upon
the potential air quality effects from the
source and on the State’s proposed
action on the application. In order to
obtain the State’s air quality analysis, an
interested person must request a
contested case hearing. However,
sections 55.21(b) and 55.23 limit who
may request a contested case hearing
before SOAH and so some members of
the public may not be able to review
and comment on air quality impacts
from the facility. The request for a
contested case hearing must be filed
within the first notice public comment
period and must be based solely upon
information in the administratively
complete application. EPA has
concluded that the burden of requesting
an evidentiary administrative hearing
based solely on the information in the
permit application does not provide the
public with the minimum public
information required by 40 CFR
51.161(a) and (b).
Second, section 39.403(b)(8) excludes
permit amendments authorized by
section 116.116(b) from any public
participation requirements of Chapter
39, including the requirement to publish
the first notice, unless the change
involves construction of a new facility
or modification of an existing facility
that results in an increase in allowable
emissions equal to or greater than 250
tpy of CO or NOX; or 25 tpy of VOC or
SO2 or PM10; or 25 tpy of any other air
contaminant except carbon dioxide,
water, nitrogen, methane, ethane,
hydrogen, and oxygen or other changes
within the discretion of the Executive
Director. Changes that result in an
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increase in emissions are subject to a
permit amendment under sections
116.110 or 116.116(a) or (b) of the
approved SIP. As stated, section
39.403(b)(8) provides an exemption
from public participation for sources
otherwise required to obtain a permit
amendment. As discussed in more
detail above, sources regulated under 40
CFR 51.160(a) are subject to the minimal
public participation requirements in 40
CFR 51.160(a) and (b). We also have
concerns that this provision does not
exclude public participation
requirements for major modifications
subject to PSD or NNSR permitting
requirements, which are based on actual
rather than allowable emissions and
may be interpreted to apply to those
permitting actions.10 EPA has
concluded that 39.403(b)(8) fails to
provide the minimum public
participation requirements of 40 CFR
51.161.
Third, under section 39.419(e)(1)(c),
for any amendment, modification, or
renewal application for a minor or major
source, the revised rules do not require
second notice, which includes the
State’s air quality analysis, unless the
change would result in an increase in
allowable emissions and would not
result in the emission of an air
contaminant not previously emitted.
The requirement at 40 CFR 51.161(a) to
provide opportunity for public comment
on the State’s analysis of the effect of
modification on ambient air quality
from minor sources identified under 40
CFR 51.160, including State’s proposed
approval or disapproval, is not met. We
recognize that States may tailor minor
NSR programs to allow permit
amendments for certain minor sources
required to be based upon increases in
allowable emissions. However, section
39.419(e)(1)(C) applies to major and
minor sources required to obtain a
permit amendment under Chapter 116
of the approved SIP. As described in the
previous paragraph, sources required to
obtain a permit under 40 CFR 51.160(a)
are subject to the public participation
requirements of 40 CFR 51.161. Under
40 CFR 51.161, a modification
application for a major or minor source
regulated under the SIP is subject to
public notice and opportunity for public
comment on the State’s air quality
analysis and proposal to approve or
disapprove the permit. We also have
concerns that this provision does not
exclude public participation
10 See NSR Reform ruling, New York v. EPA, 413
F.3d 3 (D.C. Cir. June 24, 2005). The court held that
the major NSR modification requirement, which
incorporates by reference CAA § 111(a)(4),
‘‘unambiguously defines ‘increases’ in terms of
actual emissions.’’
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requirements for major modifications
subject to PSD or NNSR permitting
requirements, which are based on actual
rather than allowable emissions and
may be interpreted to apply to those
permitting actions. EPA has concluded
that section 39.419(e)(1)(c) fails to
provide the minimum public
participation requirements of 40 CFR
51.161.
Fourth, section 39.403(b)
(Applicability) of the revised rule refers
to two State statutory provisions, THSC
section 382.0518 (preconstruction
permit) and section 382.055 (review and
renewal of preconstruction permit). For
clarity and for approvability into the
SIP, we recommend that section
39.403(b) be revised to refer to the
corresponding sections of the Texas SIP.
In summary, EPA has determined that
the Texas minor NSR public
participation rules do not require that
the publicly available information
include the State’s analysis of air quality
impacts or the State’s decision to
approve or disapprove the permit. EPA’s
review of section 39.419(e)(1)(A) and (B)
indicates that public notice of the
State’s analysis of air quality impacts for
minor new sources or minor
modifications is not required unless a
contested case hearing is requested. We
are concerned that the rules at sections
55.21 and 55.23 limit who may request
a contested case hearing. In other words,
the first notice (Notice of Application
and Intent to Obtain a Permit) does not
contain the agency’s analysis of the
effect of construction or modification on
ambient air quality, including the
agency’s proposed approval or
disapproval as required by 40 CFR
51.161(b). The only way to obtain that
information is by requesting a contested
case hearing and the rules limit which
members of the public can do so.
Moreover, we believe that the State’s
requirement to submit a request for an
evidentiary administrative hearing in
order to obtain the air quality analysis
is too large a burden for potential
commenters, may exclude some
interested persons, and is not consistent
with the minimum requirements of 40
CFR 51.161(a) and (b). We note that
Texas did not provide a demonstration
of how the Chapter 39 and 55 rules for
public participation for minor NSR
sources regulated under the SIP meet
the public participation requirements of
40 CFR Part 51 with this SIP
submittal.11
11 See also correspondence between EPA Region
6 and TCEQ in the docket for this action.
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B. PSD Regulatory Requirements
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1. What public participation
requirements for PSD programs are
necessary for approval of the SIP
revision?
The PSD provisions of the CAA
emphasize the importance of public
participation in permitting decisions.
See section 160(5) of the CAA. The
criteria for approval of a PSD program
are set out in Section 165 of the CAA
and 40 CFR 51.166. The requirements
for public participation for an approved
PSD program are found at 40 CFR
51.166(q). States may incorporate these
requirements by reference or establish
equivalent provisions. Section 307(b) of
the CAA expressly provides an
opportunity for judicial review of PSD
permitting decisions when EPA is the
permitting authority. In a federal PSD
program, any member of the public who
has participated in the public comment
process and meets the threshold
standing requirements of Article III of
the U.S. Constitution may petition for
administrative review of the permit
within 30 days of issuance before the
Environmental Appeals Board (EAB)
and ultimately seek judicial review of
the administrative disposition of the
permit. We interpret the statute and
regulations to require, at a minimum, an
opportunity for State court judicial
review of PSD permits under an
approved PSD program. See 61 FR 1880,
1882 (Jan. 24, 1996) and 72 FR 72617,
72619 (December 21, 2007). The
legislative history of the 1977 CAA
amendments supports this
interpretation.12 Although permits
issued under SIP approved programs are
not subject to appeal to EPA’s EAB,
those actions are instead subject to the
opportunities for review and appeal
provided under State law.
40 CFR 51.166(q) requires, in part,
that the permitting authority make
available all the materials submitted by
the applicant, a copy of the preliminary
determination and a copy or summary
of other materials considered in making
the determination. The State must notify
the public, by advertisement in a
newspaper of general circulation, of the
application, the preliminary
determination, the degree of increment
consumed, and of the opportunity to
comment at a public hearing or in
writing. The State must also provide a
12 See Staff of the Subcommittee on
Environmental Pollution of the Senate Committee
on Environment and Public Works, 95th Congress,
1st Session, A Section-by-section Analysis of S. 252
and S. 253, Clean Air Act Amendments 36 (1977),
reprinted in 5 Legislative History of the Clean Air
Act Amendments of 1977 (1977 Legislative History)
3892 (1977).
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copy of the notice to any other State or
local air pollution control agencies, the
chief executive of the city and county
where the source would be located, any
regional land use planning agency, any
State or Federal Land Manager or Indian
Governing body whose lands may be
affected. The State must also provide an
opportunity for public hearing for
interested persons to appear and submit
written or oral comments on the air
quality impacts of the source,
alternatives to it, the control technology
required, and other appropriate
considerations. See CAA section
165(a)(2). The State must also consider
all written and oral comments in
making a final permitting decision and
make all comments available for public
inspection.
2. What are the Texas PSD program
public participation requirements?
Under section 39.419, for sources
subject to PSD or nonattainment NSR
review the applicant must publish
notice of two 30-day public comment
periods, Notice of Application and
Intent to Obtain a Permit (first notice)
and Notice of Application and
Preliminary Decision (second notice).
The applicant must also mail a copy of
the notices to the EPA Regional
Administrator in Dallas, all local air
pollution control agencies with
jurisdiction in the county in which the
construction is to occur, the air
pollution control agency of any nearby
State in which air quality may be
adversely affected by the emissions from
the new or modified facility, the
applicant, persons who filed comments
or hearing requests before the deadline,
persons on a mailing list under Section
39.407 and the State senator or
representative from the region where the
source will be located. Under section
55.154, TCEQ may provide a public
meeting if the Executive Director
determines that there is a substantial or
significant degree of public interest in
an application or if a member of the
legislature who represents the general
area in which the facility is located or
proposed to be located requests that a
public meeting be held.
Texas provides an opportunity for
judicial review of PSD permitting
decisions under THSC 382.032, which
states that a person affected by a ruling,
order, decision, or other act of the
Commission or of the Executive
Director, if an appeal to the Commission
is not provided, may appeal the action
by filing a petition in a district court of
Travis County. The petition must be
filed within 30 days after the date of the
Commission’s or the Executive
Director’s action or, in the case of a
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72011
ruling, order, or decision, within 30
days after the effective date of the
ruling, order or decision. Note that
Texas law requires exhaustion of
administrative remedies, including
requesting a contested case hearing, to
appeal to State court.
3. Do the Texas PSD public
participation requirements meet federal
requirements for approval?
The Texas PSD program, including
the public participation provisions, was
approved in 1992. See 54 FR 52823, 826
(December 22, 1989 and 57 FR 28093
(June 24, 1992). This SIP revision
replaces the public participation rules
adopted under the approved PSD
program and therefore, we review the
rules for consistency with federal PSD
requirements of 40 CFR 51.166(q). Our
review of Chapters 39 and 55 indicates
that the Texas rules meet or exceed
federal requirements with the following
exceptions. We have not identified
provisions to satisfy the following
federal requirements:
• A requirement that the State
provide an opportunity for a public
hearing for interested persons to appear
and submit written or oral comment on
the air quality impact of the source,
alternatives to it, the control technology
required, and appropriate
considerations, along with public notice
of the public hearing as required by 40
CFR 51.166(q)(v) and section 165(a)(2)
of the CAA. The provision in section
55.154 that provides the Executive
Director with discretion to hold a public
meeting if the Executive Director
determines that there is a substantial or
significant degree of public interest in
an application is not consistent with the
federal requirements. Under the Texas
rule, the decision to grant a public
hearing is within the Executive
Director’s discretion and must be based
upon substantial or significant public
interest. In contrast, the CAA provides
for the opportunity of interested persons
to request a public hearing and public
notice of that opportunity. Under
section 55.154, the public is not
guaranteed notice of such opportunity
or that such an opportunity will be
provided on request.
• A requirement that the public
notice of a PSD permit contain the
degree of increment consumption that is
expected from the source or
modification as required by 40 CFR
51.166(q)(iii).13
13 EPA’s final approval of the Texas PSD program
(57 FR 28093, June 24, 1992) included a
supplemental document that provided an
enforceable commitment from Texas to implement
the requirements of 40 CFR 51.166(q)(iii) (state the
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• A requirement to provide a copy of
the public notice of a PSD permit to be
sent to State and local air pollution
control agencies, the chief executives of
the city and county where the source
would be located and any State or
Federal Land Manager or Indian
Governing Body whose lands may be
affected by emissions from the source or
modification, as required by 40 CFR
51.166(q)(iv) and CAA 165(d).14
• A requirement that response to
comments be available prior to final
action on the PSD permit, as required by
40 CFR 51.166(q)(vi) and (viii) and to
facilitate the appeals process.
• For a new or modified source
subject to PSD, the revised rules do not
contain a definition of a final appealable
decision for a PSD permit. We request
further information about how and
when the commenters are informed of
the Agency’s final decision, access to
response to comments and timing for
judicial appeal, in order to provide an
opportunity for State court judicial
review.
We request comments on an
additional issue related to PSD permit
public notice requirements. Under the
approved SIP and under the revised
rule, Texas requires the permit
applicant to publish public notice for an
air permit and to mail a copy of the
notice to TCEQ and EPA. Although the
federal PSD rules at 40 CFR 51.166(q)(2)
State ‘‘* * * the reviewing authority
shall * * * provide notice,’’ we believe
Texas has authority to delegate
responsibility to publish notice to the
applicant. Under Section 39.405(e),
TCEQ allows 10 business days for the
applicant to notify TCEQ and EPA that
the public notice has been published. A
degree of increment consumption in the public
notice) and 51.166(q)(iv) (mail notice to affected
agencies). The supplement remains a part of the
Texas SIP. See 40 CFR 52.2270, EPA Approved
Nonregulatory Provisions and Quasi-Regulatory
Measures in the Texas SIP. We cite these
requirements as missing from the Texas submittal
because the adoption of Chapters 39 and 55
replaced all existing public participation
requirements for PSD permits under the Texas PSD
program as State law and seeks to repeal existing
SIP PSD public participation requirements
applicable to permit applications complete on or
after September 1, 1999. Texas did not address the
SIP supplement in its submittal. For several
reasons, we believe these PSD requirements should
be included as regulatory, rather than quasiregulatory, requirements of the SIP. Given that the
applicant rather than Texas publishes notice and
sends the notice to affected agencies, we believe
regulatory provisions in Chapter 39 would provide
more clarity to the applicant and the public to
ensure compliance with these requirements than a
document that does not explicitly appear in the SIP.
Also, we believe this approach will avoid confusion
since section 39.605 of the revised rules lists some,
but not all, agencies that must be notified under
§ 51.166(q)(iv).
14 Ibid. at 13.
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review of the TCEQ permitting database
indicates TCEQ generally receives a
copy of the public notice within two
weeks after the date of publication.15
EPA has experienced delays in receiving
the PSD public notice and we have
received complaints from citizens that it
is often not possible to identify the start
and end date of a public comment
period until much of the comment
period has passed. While we believe
that TCEQ does have authority to
delegate responsibility to publish notice
of a PSD permit to the applicant, we
request comments on how the public
information can be made available to
ensure that interested persons can fully
participate in the public comment
process in accordance with the intent of
the Act.
C. PAL Regulatory Requirements
1. What public participation
requirements for PALs are necessary for
approval?16
The Federal PAL rules at 40 CFR
51.165(f)(5) and (11) and 51.166(w)(5)
and (11) require PALs for existing major
stationary sources to be established,
renewed, or increased through a
procedure that is consistent with 40
CFR 51.160 and 51.161, including the
requirement that the reviewing
authority provide the public with notice
of the proposed approval of a PAL
permit and at least a 30-day period for
submittal of public comment. The State
must address all material comments
before taking final action on the permit.
2. What are the public participation
requirements under the Texas PAL rule?
Texas PAL rules address public
participation in section 116.194, which
states:
Applications for initial issuance of plantwide applicability limit permits under this
division are subject only to §§ 39.401, 39.405,
39.407 17, 39.409, 39.411, 39.419, 39.420, and
39.605 of this title (relating to Purpose;
General Notice Provisions; Mailing Lists;
Deadline for Public Comment, and for
Requests for Reconsideration, Contested Case
Hearing, or Notice of Contested case Hearing;
Text of Public Notice; Notice of Application
and Preliminary Decision; Transmittal of the
Executive Director’s Response to Comments
and Decision; Applicability; Mailed Notice;
Newspaper Notice; Sign-Posting; and Notice
to Affected Agencies, respectively), except
that any requests for reconsideration or
15 The TCEQ permitting database can be accessed
at https://www4.tceq.state.tx.us/cid/CCD/
index.cfm?fuseaction=main.SearchPublicNotice.
16 Texas’ regulations for PALs are not in the
existing Texas SIP. EPA will address approvability
of the entire PAL requirements in a separate action.
17 Section 39.407 was not submitted as a SIP
revision. See discussion of the cross references to
non-SIP rules in section VII.A of this preamble.
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contested case hearings in §§ 39.409 or
39.411 of this title shall not apply. Nothing
in this section exempts an applicant for a
new source review permit from the
requirements of Subchapter B of this chapter
(relating to New Source Review).
3. How does the Texas PAL rule meet
Federal requirements for approval?
We are addressing public
participation for PALs in this notice to
facilitate our review of the Texas PAL
rule SIP submittal that cross-references
Chapter 39, even though the PAL rule
was adopted after the revised rules.18
We note that Texas did not make any
revisions related to PALs to Chapter 39.
The applicability section in Chapter
39.403 does not include PALs, despite
the cross-reference to Chapter 39 in
Section 116.194. Therefore, the two
rules are not consistent. We believe
Texas must revise the applicability
section in Chapter 39.403 in order to
make the Chapter 39 public
participation requirements applicable to
new permitting rules, such as the PAL
rule.
Our review of the Chapter 39
requirements applicable to PALs
indicates that public participation for
initial issuance, renewal, or increase of
a PAL is not consistent with the Federal
requirements. Section 39.419(e)(3) does
not require PAL permit applications to
provide public notice and comment on
the Agency’s preliminary analysis and
the draft permit unless a contested case
hearing is requested. We have identified
no provisions which address renewal or
increase of a PAL. Furthermore, Texas
provided no demonstration of how
section 116.194, which cross references
Chapter 39 requirements, is consistent
with the Federal PAL rules at 40 CFR
51.165(f)(5) and (11) and 51.166(w)(5)
and (11). We have not identified
provisions in Chapter 39 to comply with
the following requirements of 40 CFR
51.165(f)(5) and (11) and 51.166(w)(5)
and (11):
• Public participation requirements
for PALs existing major stationary
sources to be established, renewed, or
increased through a procedure that is
consistent with 40 CFR 51.160 and
51.161.
• A requirement that the reviewing
authority provide the public with notice
of the proposed approval of a PAL
permit and at least a 30-day period for
submittal of public comment.
18 See letter from Glenn Shankle, Executive
Director of TCEQ, to Larry Starfield, Deputy
Regional Administrator for EPA Region 6, dated
June 13, 2008, noting that action on TCEQ’s public
participation rule was necessary to resolve issues in
another pending SIP submission.
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• A provision to require the State to
address all material comments before
taking final action on the PAL permit.
• An applicability provision in
section 39.403 that subjects PALs to the
requirements of Chapter 39.
D. Flexible Permits
1. What are the public participation
requirements for Flexible Permits
necessary for approval? 19
EPA has recognized that States may
provide a site-wide cap to determine
minor NSR applicability, similar to the
Federal PAL rule for major NSR
applicability. See our proposed rule for
Review of New Sources and
Modifications in Indian Country, 71 FR
48696. 48705 or Evaluation of
Implementation Experiences with
Innovative Air Permits, Summary
Report,20 which discuss minor NSR
applicability caps and public
participation requirements at 40 CFR
51.160–51.164. 40 CFR 51.161(b)
requires that the State ensure
availability of the information submitted
by the owner or operators and the
State’s analysis of the effect on air
quality and proposal for approval or
disapproval in at least one location in
the affected area, that the State provide
a 30-day public comment period on that
information and that notice of the
public comment period should be by
prominent advertisement in the area
affected.
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2. What are the public participation
requirements under the Texas Flexible
Permit rule?
Section 39.403(b)(8)(A) and (B) states
that initial issuance of a flexible permit
is not required to comply with the
public participation requirements of
Chapter 39 unless the action involves
new construction or an increase in
allowable emissions equal to or greater
than 250 tpy of CO or NOX; or 25 tpy
of VOC, SO2, PM10; or 25 tpy of any
other air contaminant except carbon
dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen.
When a flexible permit is established
under the Texas rules in Subchapter G
of Chapter 116, PSD or NNSR terms may
be revised or eliminated when they are
incorporated into the flexible permit.
The rule does not provide for public
participation for initial issuance of a
flexible permit unless the action
19 Texas’ rules for Flexible Permits are not in the
existing Texas SIP. EPA is reviewing the Texas’ SIP
submittal which relates to Flexible Permits and will
address its concerns in a separate action.
20 Report prepared by EPA Office of Air Quality
Planning and Standards and OPEI at https://
www.epa.gov/ttn/oarpg/t5/memoranda/
iap_eier.pdf.
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involves new construction or an
increase in allowable emissions equal to
or greater than 250 tpy of CO or NOX;
or 25 tpy of VOC, SO2, or PM10; or 25
tpy of any other air contaminant except
carbon dioxide, water, nitrogen,
methane, ethane, hydrogen, and oxygen.
3. Do the public participation
requirements for Texas flexible permits
meet the Federal requirements for
approvability?
Sections 39.403(b)(8)(A) and (B), as
they apply to the initial issuance of
flexible permits do not meet the
requirements in 40 CFR 51.161(a) and
(b). Section 39.403 (Public Notice
Applicability) fails to require 30-day
public notice and comment on the
State’s analysis of the effects on ambient
air quality and its proposed approval or
disapproval. PSD and NNSR permit
terms and conditions are not revised
with public process required by sections
51.161(a) and (b) and 51.166(q).
VI. Other Public Participation Concerns
A. Cross References to Non-SIP Rules
and Regulations
The following provisions cross
reference to rules that are not in the
federally approved SIP, nor submitted to
EPA for SIP approval:
• Section 39.201(a)(1). Cross
references to Chapter 30.
• Section 39.403(b)(8). Cross
reference to State statutory provisions in
THSC section 382.0518 and section
382.055 of the Texas Health and Safety
Code.
• Section 39.403(b)(8). Cross
references to Chapter 116, Subchapter
G, sections 116.710(a)(2) and (3).
• Section 39.403(b)(8)(B). Cross
reference to section 116.10(9).
• Section 39.409. Cross references to
Chapter 50.
• Section 39.411(b)(10)—1st
sentence. Cross references to
§ 39.403(b)(11).
• Section 39.413(11). Cross references
to section 39.407.
• Section 39.419(e)(4). Cross
references to § 90.30.
Approving a rule which cross
references to a non-SIP provision is
problematic because: (1) It could imply
tacit approval of the non-SIP provision,
without EPA’s review of the cross
referenced provision to verify whether it
meets the requirements of the Act and
of 40 CFR part 51; and (2) if the State
later revises the cross referenced nonSIP provision, the revised cross
referenced provision could be
interpreted to be enforceable under the
SIP even if such provision, as revised,
does not meet the requirements of the
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Act and of 40 CFR part 51. Furthermore,
there is no demonstration whether these
cross referenced provisions are
separable from the rules that are
submitted. Texas should either remove
the cross references to the non-SIP
provisions or submit the cross
referenced provisions to EPA for SIP
approval. Note that our action on any
provision which refers to or implements
a provision that EPA has not approved
does not imply EPA proposed approval
of such non-SIP requirement.
B. Use of Undefined Acronyms.
Several sections use the acronyms
‘‘APA’’ ‘‘SOAH’’ and ‘‘WQMP.’’
However, we do not see where these
terms are defined.
C. Cross References to Obsolete
Provision for Permits by Rule for
Concrete Batch Plants
The following provisions cross
reference to public notice provision for
permit by rule for concrete batch plants:
section 39.403(a)(3) and (b)(10); section
39.411(a)(10)(iv)(C); section 39.601; and
section 55.152(a)(2). TCEQ has repealed
all permits by rule for concrete batch
plants and replaced them with a
Standard Permit for concrete batch
plants. This change is discussed in
EPA’s approval of this action at 71 FR
13549 (March 16, 2006). Texas has not
revised these provisions in Chapters 39
and 55 to reflect the change that EPA
approved March 16, 2006.
D. Cross Reference to Section 116.10(9)
Section 39.303(b)(8)(B) cross
references section 116.10(9) which is
the definition of ‘‘modification of
existing facility’’ (later recodified as
section 116.10(11)). Texas submitted
this definition in separate SIP
submittals which are currently under
review. EPA will address this definition
in a separate action.
E. Alternative Publication Procedures
for Small Businesses
Section 39.603(e) provides an
alternative requirement to publish a
notice under section 39.603(a)(2)21 if the
applicant and source meet the definition
of a small business stationary source in
section 382.0365 of the Texas Health
and Safety Code including, but not
21 Section 39.603(e)(1) refers to § 39.601(a)(2),
which is not in the submitted rule. On July 31,
2002, Texas submitted a revision to Section 39.603
which revised subsection (e) to refer to paragraph
(c)(2) rather than paragraph (a)(2). EPA is reviewing
the July 31, 2002, SIP submittal and will address
this change in a separate action. Paragraph (c)(2)
refers to a different larger display notice that must
be published in the same issue of the newspaper as
the primary notice published under paragraph
(c)(1).
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limited to, those which: are not a major
stationary source for federal air quality
permitting; do not emit 50 or more tpy
of any regulated pollutant; do not emit
75 or more tpy of all regulated
pollutants; are owned or operated by a
person that employs 100 or fewer
individuals; and if the applicant’s site
meets emission limits in section
106.4(a), it will be considered to not
have an effect on air quality. If all of the
above conditions are met, the Executive
Director may post information pending
permit applications on its Web site,
such as the permit number, project type,
facility type, nearest city, county, date
public notice authorized, information
on comment periods, and information
on how to contact the agency for further
information.
The existing SIP has no provision for
alternative public notice for small
businesses. As a relaxation of the
existing SIP, we request that Texas
provide a demonstration of how this
provision is consistent with section
110(l) of the Act. Section 30.603(e)(1)(A)
refers to a definition of ‘‘small business
stationary source in section 382.0365 of
the Texas Health and Safety Code. For
clarity and approvability into the SIP,
§ 39.603(e) should be revised to refer to
corresponding provisions of the Texas
SIP.
F. Relaxation of Sign Posting
Requirements Under Section 39.604
We have identified two provisions
which relax the sign posting
requirements of the existing SIP.
• Section 39.604(c) includes a
provision that the section’s sign posting
requirements do not apply to properties
under the same ownership which are
noncontiguous and/or separated by
intervening public highway, street, or
road, unless directly involved by the
permit application. This exclusion from
the sign posting requirements is not in
the existing SIP. As a relaxation of the
existing SIP, we request that Texas
provide a demonstration how this
provision is consistent with section
110(l) of the Act.
• Section 116.133(f)(1) provides that
if the nearest elementary or middle
school has waived out of the
requirements of 19 TAC section
89.1205(a) under 19 TAC section
89.1205(g), the alternate language signs
shall be published in the alternate
languages in which the bilingual
education program would have been
taught had the school not waived out of
the bilingual education program. We do
not see where this provision is included
in the revised rules. Because omission
of this provision is a relaxation of the
existing SIP, we request that Texas
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provide a demonstration how omission
of this provision is consistent with
section 110(l) of the Act.
VII. Why are we taking no action on
some provisions of the submittal?
A. Provisions Which Implement Section
112(G) of the Act
There are cross references to Chapter
116, Subchapter C22 of this title relating
to Hazardous Air Pollutants:
Regulations Governing Constructed or
Reconstructed Major Sources (FCAA,
§ 112(g), 40 Code of Federal Regulations
Part 63)) in the following provisions:
sections 39.403(b)(9); 39.419(e)(3)(C);
and 116.183. In an EPA SIP approval
published September 18, 2002, we
addressed the § 112(g) provisions (then
located in Subchapter C of Chapter 116).
We stated:
We are taking no action on Subchapter C
of Chapter 116—Hazardous Air Pollutants:
Regulations Governing Constructed or
Reconstructed Major Sources (FCAA Section
112(g), 40 CFR part 63) as submitted in 1998.
The program for reviewing and permitting
constructed and reconstructed major sources
of HAP is regulated under section 112 of the
Act and under 40 CFR part 63, subpart B.
Under these provisions, States establish caseby-case determinations of maximum
achievable control technology for new and
reconstructed sources of HAP. The process
for these provisions is carried out separately
from the SIP activities. For the reasons
discussed above, we are not approving
Subchapter C of [Chapter] 116 as submitted
in 1998.
67 FR 58699 (September 18, 2002).
Section 112(g) of the Act applies to
the review and permitting of
constructed and reconstructed major
sources of hazardous air pollutants
(HAP) under § 112 of the Act and 40
CFR part 63, subpart B. The process for
implementing these provisions is
carried out separately from the SIP.
Because the requirements under section
112(g) are self-implementing under
section 112 of the Act and under 40 CFR
part 63, subpart B, EPA will take no
action on sections 39.403(b)(9),
39.419(e)(3)(C), and 116.183.
B. Provisions Which Do Not Relate to
Air Quality Permits
Texas submitted the following
provisions to EPA for SIP approval
which do not relate to air quality
permits or to provisions that are not in
the approved SIP:
• Section 39.411(b)(11)—Applies to
radioactive material licenses under
Chapter 336;
22 These provisions were recodified from
Subchapter C to Subchapter E of Chapter 116 in a
SIP revision submitted February 1, 2006. EPA is
currently reviewing the February 1, 2006, revisions
and will address this provision in a separate action.
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• Section 39.411(b)(13)—Applies to
municipal solid waste applications;
• Section 39.411(b)(14)—Applies to
class 3 modifications of hazardous
industrial solid waste permits;
• Section 39.411(c)(7)—Applies to
radioactive material licenses under
Chapter 336
• Section 39.419(d)—Subsection (d)
only relates to subsection (c), which was
not submitted;
Because these provisions do not relate
to air quality permitting or to any
applicable requirement of the Clean Air
Act, they are outside the scope of the
SIP. The TCEQ should withdraw these
provisions from this SIP submittal
package. Consequently, EPA will take
no action these provisions.
C. Portions of Chapter 55
The revised rules submitted to EPA
include selected provisions from
Chapter 55, Requests for
Reconsideration and Contested Case
Hearing. The existing SIP does not
contain provisions which implement
Texas’ air permitting administrative
appeal process. Note that PSD permits
issued by EPA or States with a delegated
PSD program provide appeal to the
Environmental Appeals Board under 40
CFR Part 124. EPA interprets the CAA
to require the opportunity for State
court review under a State approved
PSD program, as discussed in section
V.B. of this notice, but the Act does not
specifically require an administrative
appeal process for an approved SIP PSD
program. The requirements under 40
CFR part 124 are not applicable to State
approved PSD programs. Therefore, we
are taking no action today on the
portions of this SIP submittal that relate
to requests for reconsideration or
contested case hearings. Specifically, we
are taking no action today on section
55.1—Applicability; section 55.21—
Requests for Contested Case Hearing,
Public Comment; section 55.101—
Applicability; section 55.103—
Definitions; section 55.150—
Applicability; section 55.201—Requests
for Reconsideration and Contested Case
Hearing; section 55.203—Determination
of Affected Person; section 55.205—
Request by Group or Association;
section 55.209—Processing Requests for
Reconsideration or Contested Case
Hearing; and section 55.211—
Commission Action or Requests for
Reconsideration and Contested Case
Hearing.
We propose to grant limited approval
and limited disapproval to Subchapter E
of Chapter 55 related to Public
Comment and Public Meetings
including sections 55.150—
Applicability; section 55.152—Public
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Comment Period; section 55.154—
Public Meetings; section 55.156—Public
Comment Processing.
D. Revisions to Section 116.740—Public
Notice
The October 25, 1999, SIP submittal
includes revisions to section 116.740—
Public Notice in Chapter 116,
Subchapter G which relates to Flexible
Permits. This submittal revised earlier
SIP submittals of this section as
submitted November 29, 1994, and July
22, 1998. EPA is currently reviewing the
November 29, 1994, and July 22, 1998,
SIP submittals and will propose
appropriate action on section 116.740 in
a separate action. EPA will take no
action on section 116.740 at this time.
jlentini on PROD1PC65 with PROPOSALS
VIII. Public Comment and Proposed
Action
Under the CAA sections 110(k)(3) and
301(a) for the reasons stated above, EPA
is proposing simultaneous limited
approval and limited disapproval of
portions of the SIP revisions identified
in section II.A which Texas submitted
on December 15, 1995; July 22, 1998;
and October 25, 1999. EPA is taking no
action on certain sections as identified
in section VII because they are outside
the scope of the SIP or because they
revise a prior SIP submittal which is
currently under review for approval or
disapproval in a separate action. As
discussed in this proposal, we have
identified the following inconsistencies
between the Texas revised rules and
minimum Federal requirements for
public participation. In summary, the
provisions which preclude full approval
of the revised rules include, but may not
be limited to, the following:
A. Provisions Relating to Public
Participation for Projects Subject to
Minor NSR
• Section 39.419(e) fails to require the
State’s air quality analysis and proposed
approval or disapproval in the publicly
available information for new or
modified minor NSR sources or minor
modifications at major sources,
• Section 39.403(b)(8) fails to require
any public participation for a minor
NSR permit amendment or minor
modification under section 116.116(b),
unless the change involves construction
of a new facility or modification of an
existing facility that results in an
increase in allowable emissions equal to
or greater than 250 tpy of CO or NOX;
or 25 tpy of VOC or SO2 or PM10; or 25
tpy of any other air contaminant except
carbon dioxide, water, nitrogen,
methane, ethane, hydrogen, and oxygen
or other changes within the discretion of
the Executive Director.
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• Section 39.419(e)(1)(C) fails to
require the State’s air quality analysis
and proposed approval or disapproval
in the publicly available information,
for any permit amendment,
modification, or renewal application of
a major or minor source, unless the
action would result in an increase in
allowable emissions and would not
result in the emission of an air
contaminant not previously emitted.
• Section 39.403(b)(8) (Applicability)
references to two State statutory
provisions, THSC Section 382.0518
(preconstruction permit) and section
382.055 (review and renewal of
preconstruction permit) which are not
part of the SIP.
B. Provisions Relating to Public
Participation for Projects Subject to PSD
• The revised rules do not provide
opportunity for a public hearing for
interested persons to appear and submit
written or oral comment on the air
quality impact of the source,
alternatives to it, the control technology
required, and appropriate
considerations and to provide notice of
the opportunity for a public hearing for
a PSD permit.
• Public notice of a PSD permit is not
required by the revised rules to contain
the degree of increment consumption
that is expected from the source or
modification.
• There is no requirement in the
revised rules that a copy of the public
notice of a PSD permit to be sent to
State and local air pollution control
agencies, the chief executives of the city
and county where the source would be
located and any State or Federal Land
Manager or Indian Governing Body
whose lands may be affected by
emissions from the source or
modification.
• There is no requirement in the
revised rules that response to comments
be available prior to final action on the
PSD permit.
• There is no definition of a final
appealable decision for a PSD permit in
the revised rules. We request further
information about how and when the
commenters are informed of the
Agency’s final decision and how
commenters are informed of access to
response to comments and timing for
judicial appeal, in order to provide an
opportunity for State court judicial
review.
C. Provisions Relating to Public
Participation for Projects Subject to
PALs
• There is no requirement in the
revised rules that PALs be established,
renewed, or increased through a
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72015
procedure that is consistent with 40
CFR 51.160 and 51.161, including the
requirement that the reviewing
authority provide the public with notice
of the proposed approval of a PAL
permit and at least a 30-day period for
submittal of public comment, consistent
with the Federal PAL rules at 40 CFR
51.166(w)(5) and (11).
• There is no requirement in the
revised rules that the State address all
material comments before taking final
action on the PAL permit, consistent
with 40 CFR 51.166(w)(5).
• There is no reference to PALs in the
applicability section in Chapter 39.403.
D. Provisions Relating to Public
Participation for Projects Subject to
Flexible Permits
• For initial issuance of a flexible
permit to establish a minor NSR
applicability cap or an increase in a
flexible permit cap, there is no
requirement in the revised rules for 30day notice and comment on information
submitted by the owner or operator and
the agency’s analysis of the effect of the
permit on ambient air quality, including
the agency’s proposed approval or
disapproval.
• Where PSD and NNSR terms and
conditions are modified or eliminated
when the permit is incorporated into a
flexible permit, there is no requirement
in the revised rules for public
participation consistent with 40 CFR
51.161 and 51.166(q).
E. Other Concerns
• The issues identified in section VII
of this preamble.
We are proposing simultaneous
limited approval and limited
disapproval of the revised rules because
we have determined that the rules
strengthen the existing SIP, but do not
meet the minimum public participation
requirements of the Act and our
regulations. We request comments on
this proposal. After review and response
to public comment, EPA plans to take
final action on the revised rules. Final
limited approval would incorporate the
revised rules identified in section II into
the Texas SIP and the new public
participation rules would become fully
federally enforceable. Final limited
disapproval would make a finding of
how the revised rules fail to meet
minimum criteria established by the Act
and our regulations. If EPA determines
that, for rules required by the CAA, the
deficiencies forming the basis of final
limited disapproval have not been
corrected, the Agency may apply the
sanctions listed in section 179(b) of the
Act and 40 CFR 52.31 within 18 months
of the finding. If the State submits an
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approvable rule revision within 18
months of such a finding, EPA may take
interim final action, effective upon
publication, to stay the sanctions prior
to proposing approval and taking
comment on the submittal. Also, a FIP
may be promulgated under section
110(c)(1) of the Act, if EPA finds that a
SIP revision does not satisfy the
minimum criteria established under
section 110(k)(2) of the CAA. The FIP
may be adopted at any time within 2
years of such a finding, unless the State
corrects the deficiency and EPA
approves the revision before the FIP is
promulgated. Final approval of the
revision correcting the identified
deficiencies would terminate imposition
of the FIP.
We will accept comments on this
proposal for the next 60 days. After
review of public comments, we intend
to publish a rule to promulgate final
limited approval and final limited
disapproval of the provisions identified
above into the Texas SIP.
IX. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this proposed action
merely approves State law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by State law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
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safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental
relations, Lead, Nitrogen oxides, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 18, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E8–28162 Filed 11–25–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2008–0546; FRL–8745–9]
RIN 2050–AG49
Oil Pollution Prevention; NonTransportation Related Onshore
Facilities
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to amend the
dates by which facilities must prepare
or amend Spill Prevention, Control, and
Countermeasure (SPCC) Plans, and
implement those Plans. The Agency is
also proposing to establish dates for
farms to prepare or amend their Spill
Prevention, Control, and
Countermeasure Plans (SPCC Plans),
and implement those Plans. EPA had
delayed establishing compliance dates
for farms pending revisions to the SPCC
rule that would specifically address this
sector. Two different extension dates are
proposed for farms and production
facilities that meet the qualified
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facilities criteria. Elsewhere in this
Federal Register, the Agency is
finalizing certain tailored and
streamlined requirements for facilities
subject to the SPCC requirements.
DATES: Written comments must be
received by December 26, 2008.
ADDRESSES: Comments should be
directed to Docket ID No. EPA–HQ–
OPA–2008–0546. Comments may be
submitted by one of the following
methods:
(1) Federal Rulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments;
(2) E-mail: Comments may be sent by
electronic mail (e-mail) to: rcradocket@epa.gov, Attention Docket ID
No. EPA–HQ–OPA–2008–0546.
(3) Fax: Comments may be faxed to
202–566–9744, Attention Docket ID No.
EPA–HQ–OPA–2008–0546.
(4) Mail: The mailing address of the
docket for this rulemaking is EPA
Docket Center (EPA/DC), Docket ID No.
EPA–HQ–OPA–2008–0546, mail code
2822T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. Attention
Docket ID No. EPA–HQ–OPA–2008–
0546.
(5) Hand Delivery: EPA Docket Center
(EPA/DC), EPA West, Room 3334, 1301
Constitution Ave. NW., Washington DC
20460. Attention Docket ID No. EPA–
HQ–OPA–2008–0546. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Please note that EPA’s
policy is that all comments received
will be included in the public docket
without change, and may be made
available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through regulations.gov or email.
The Federal regulations.gov Web site
is an ‘‘anonymous access’’ system,
which means that EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you submit an
electronic comment, EPA recommends
that you include your name and other
contact information in the body of the
comment and along with any disk or
CD–ROM you submit. If EPA cannot
read your comment due to technical
difficulties and cannot contact you for
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]]>Agencies
[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Proposed Rules]
[Pages 72001-72016]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28162]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2007-0209; FRL-8745-5]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to Chapters 39, 55, and 116 Which Relate to Public
Participation on Permits for New and Modified Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing simultaneous limited approval and limited
disapproval of revisions to the applicable implementation plan for the
State of Texas which relate to public participation on air permits for
new and modified sources. With noted exceptions, this proposed limited
approval and limited disapproval affects portions of SIP revisions
submitted by Texas on December 15, 1995; July 22, 1998; and the SIP
revisions submitted October 25, 1999. EPA is taking comments on this
proposal and plans to follow with a final action.
DATES: Any comments must arrive by January 26, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2007-0209, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the on-line instructions for submitting comments.
[[Page 72002]]
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Stanley M. Spruiell at
spruiell.stanley@epa.gov.
Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R),
at fax number 214-665-7263.
Mail: Stanley M. Spruiell, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
Hand or Courier Delivery: Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only
between the hours of 8 a.m. and 4 p.m. weekdays except for legal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0209. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the https://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
The State submittals are also available for public inspection at
the State Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, the following
terms have the meanings described below:
``We,'' ``us,'' and ``our'' refer to EPA.
``NSR'' means new source review.
``PSD'' means prevention of significant deterioration of
air quality, as established under 40 CFR 51.166.
``NNSR'' means nonattainment area new source review.
``Act'' and ``CAA'' mean the Clean Air Act.
``SIP'' means State Implementation Plan.
``TSD'' means Technical Support Document for this action.
``PAL'' means Plantwide Applicability Limitation, as
established under 40 CFR 51.165(f) or 51.166(w).
``NAAQS'' means National Ambient Air Quality Standards, as
established under 40 CFR part 50.
Table of Contents
I. What regulations did Texas submit for inclusion into the SIP?
II. What are we proposing?
III. How do the revised rules strengthen the existing SIP?
IV. What are the rule deficiencies?
V. Do Texas' public participation rules meet federal requirements?
VI. Other Public Participation Concerns
VII. Why are we taking no action on some provisions of the
submittal?
VIII. Public Comment and Proposed Action
IX. Statutory and Executive Order Reviews
I. What regulations did Texas submit for inclusion into the SIP?
On October 25, 1999, Texas submitted revisions to Chapters 39, 55,
and 116 which include rules that relate to public participation on air
permits for authorization of new and modified sources, including
amendments and renewals. In addition, portions of the submittals dated
December 15, 1995, and July 22, 1998, contain provisions relevant to
this action. Hereafter, we refer to these submittals as the ``revised
rules.'' These SIP packages include the following rules:
A. The December 15, 1995, submittal includes Texas' submittal of
section 116.312--Public Notification and Comment Procedures. Section
II.A of this preamble contains additional information on the December
15, 1995, submittal.
B. The July 22, 1998, submittal includes Texas' submittal of repeal
and readoption (with nonsubstantive revisions) of section 116.312--
Public Notification and Comment Procedures. Section II.A of this
preamble contains additional information on the July 22, 1998,
submittal.
C. The October 25, 1999, submittal includes the following revisions
related to this action. Section II.A of this preamble contains
additional information on the October 25, 1999, submittal.
New rules affecting Chapter 39--Public Notice \1\--are as
follows: Section 39.201--Application for a Preconstruction Permit;
section 39.401---Purpose; section 39.403--Applicability; section
39.405--General Notice Provisions; section 39.409--Deadline for Public
Comment, Requests for Reconsideration, contested Case Hearing, or
Notice and Comment Hearing; section 39.411--Text of Public Notice;
section 39.413--Mailed Notice; section 39.418--Notice of Receipt of
Application and Intent to Obtain Permit;
[[Page 72003]]
section 39.419--Notice of Application and Preliminary Determination;
section 39.420--Transmittal of the Executive Director's Response to
Comments and Decision; section 39.423--Notice of Contested Case
Hearing; section 39.601--Applicability; section 39.602--Mailed Notice;
section 39.603--Newspaper Notice; section 39.604--Sign-Posting; and
section 39.605--Notice to Affected Agencies.
---------------------------------------------------------------------------
\1\ Texas submitted subsequent revisions to Chapter 39 on July
31, 2002; and March 9, 2006. These changes are parts of separate SIP
revisions which are currently under review. EPA will address these
changes to Chapter 39 in separate actions.
---------------------------------------------------------------------------
New rules affecting Chapter 55--Requests for
Reconsideration and Contested Case Hearing--are as follows: Section
55.1--Applicability; section 55.21--Requests for Contested Case
Hearing, Public Comment; section 55.101--Applicability; section
55.103--Definitions; section 55.150--Applicability; section 55.152--
Public Comment Period; section 55.154--Public Meetings; section
55.156--Public Comment Processing; section 55.200--Applicability;
section 55.201--Requests for Reconsideration and Contested Case
Hearing; section 55.203--Determination of Affected Person; section
55.205--Request by Group or Association; section 55.209--Processing
Requests for Reconsideration or Contested Case Hearing; and section
55.211--Commission Action or Requests for Reconsideration and Contested
Case Hearing.
Rules revisions affecting Chapter 116--Control of Air
Pollution by Permits for New Construction and Modification are--as
follows: Section 116.111--General Application; section 116.114--
Application Review Schedule; section 116.116--Changes to Facilities;
section 116.183--Public Notice Requirements; section 116.312--Public
Notification and Comment Procedures; and section 116.740--Public
Notice.
Texas submitted repeal of the following regulation:
section 116.124--Public Notice of Compliance History.
The existing SIP-approved regulations which relate to public
participation for air quality permits are as follows: Sections
116.130--Applicability; 116.131--Public Notification Requirements;
116.132--Public Notice Format; 116.133--Sign Posting Requirements;
116.134--Notification of Affected Agencies; 116.136--Public Comment
Procedures; and 116.137--Notification of Final Agency Action. These
regulations will now apply to air quality permits declared
administratively complete before September 1, 1999. EPA proposes to add
a notation, in addition to the applicability statement at section
39.403 of the revised rule, to this effect to the existing SIP. In
addition, section 116.312--Public Notification and Comment Procedures,
which applies to permit renewals, was amended to replace cross
references to the public notification procedures in sections 116.130
through 116.137 with a cross reference to applicable procedure in
Chapter 39.
The revised rules will replace the existing SIP rules for public
participation for air quality permits declared administratively
complete on or after September 1, 1999. The Texas public participation
procedures were previously located in the subchapter of the SIP
applicable to each type of permitting action. Chapter 39 of the Texas
Administrative Code (TAC) consolidates public participation
requirements for most air quality permitting actions (as well as
permits issued under other environmental statutes). Applicability of
the rules in Chapter 39 to different types of air permits is determined
by the general applicability statement in subchapter H. Additional
requirements that are specific to air quality permits are found in
subchapter K. Section 39.403(b) lists the types of air quality permits
subject to the public participation requirements in Chapter 39:
Air quality permits under Texas Health and Safety Code
(THSC), Section 382.0518 (preconstruction permit) and Section 382.055
(review and renewal of preconstruction permit).\2\ See section
39.403(8).
---------------------------------------------------------------------------
\2\ Section 382.0518 and section 382.055 of the THSC currently
apply to permit applications, modifications and renewals under
Chapter 116 of the Texas SIP for minor and major new source review
permits.
---------------------------------------------------------------------------
Applications for permit amendments to air quality permits
under Section 116.116(b) (changes to facilities) that involve
construction of a new facility; modification of an existing facility
(as defined in Section 116.10) \3\ that results in an increase in
allowable emissions equal to or greater than 250 tons per year (tpy) of
carbon monoxide (CO) or nitrogen oxides (NOX); or 25 tpy of
volatile organic compounds (VOC) or sulfur dioxide (SO2) or
inhalable particulate matter (PM10); or 25 tpy of any other
air contaminant except carbon dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen; or other changes within the discretion of
the Executive Director.\4\ See section 39.403(8).
---------------------------------------------------------------------------
\3\ Note that EPA has not acted on the definition of
``modification of an existing facility'' at section 116.10 and so it
is not currently part of the approved SIP.
\4\ Section 39.403(b)(8) refers to emission quantities defined
in section 106.4(a)(1) of this title (relating to Requirements for
Permitting by Rule) for sources defined in sections 106.4(a)(2) and
(3). The defined emission quantities in Section 106.4 are emissions
equal to or greater than 250 tpy of CO or NOX; or 25 tpy
of VOC or SO2 or PM10; or 25 tpy of any other
air contaminant except carbon dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen.
---------------------------------------------------------------------------
Initial issuance of flexible permits under Chapter 116,
Subchapter G, and amendments to flexible permits under Sections
116.710(a)(2) and (3) that involve construction of a new facility,
modification of an existing facility that results in an increase in
allowable emissions equal to or greater than 250 tpy of CO or
NOX; or 25 tpy of VOC or SO2 or PM10;
or 25 tpy of any other air contaminant except carbon dioxide, water,
nitrogen, methane, ethane, hydrogen, and oxygen or other changes within
the discretion of the Executive Director.\5\ See section 39.403(8).
---------------------------------------------------------------------------
\5\ Note that this provision also refers to the emission
quantities defined in Section 106.4 of the SIP.
---------------------------------------------------------------------------
Applications for construction or reconstruction subject to
Chapter 116, Subchapter C for hazardous air pollutants.\6\ See section
39.403(9).
---------------------------------------------------------------------------
\6\ The provisions of Subchapter C were later recodified into
Subchapter E in a separate SIP submittal. We will address this
recodification in a separate action. Also see section VII.A of this
document for further discussion on the provision for hazardous air
pollutants.
---------------------------------------------------------------------------
Concrete batch plants under Chapter 106 unless the
facility is to be temporarily located in or contiguous to the right of
way of a public works project. See section 39.403(10).\7\
---------------------------------------------------------------------------
\7\ See discussion in section VI.G of this preamble for further
information on public notice for concrete batch plants.
---------------------------------------------------------------------------
The Chapter 39 requirements also apply to PALs through a
cross-reference at section 116.194.
II. What are we proposing?
A. Our Proposal
We have evaluated the revised rules for enforceability and
consistency with the CAA, 40 CFR Part 51, and EPA policy and guidance.
We have determined that the revised rules contain some provisions that
meet or exceed federal requirements. We have also determined that some
provisions are not consistent with federal requirements and therefore,
are not fully approvable. The deficient provisions of the revised rule
are not separable from the remainder of the rule. As authorized in
sections 110(k)(3) and 301(a) of the Act, we are proposing simultaneous
limited approval and limited disapproval of the revised rules. We are
proposing limited approval because the rules, as a whole, strengthen
the existing SIP and facilitate enforcement of the State's public
participation requirements. We are simultaneously proposing limited
disapproval because the provisions identified in section IV of
[[Page 72004]]
this preamble are not consistent with applicable federal requirements.
Final limited approval will incorporate the revised rule in its
entirety into the Texas SIP. We are not acting on the provisions of the
submittal discussed in section VII of this notice. Note that some of
the public participation rules we are considering today apply to other
rules that have not yet been approved into the SIP. For example, we
have not proposed action on Texas' NSR PAL, flexible permit, qualified
facility or NSR reform rules, however some of the rules we are
considering today are applicable to them. These other rules will be
reviewed in separate actions. Our action on any provision of this rule
which refers to or implements a provision that EPA has not approved
does not imply EPA proposed action on the pending rule. The Chapter 39
revised rules consolidate public participation requirements applicable
to the pending rules. Final action on the revised rule will facilitate
review of the pending rules.\8\
---------------------------------------------------------------------------
\8\ See letter in the docket for this action from Glenn Shankle,
Executive Director of TCEQ, to Larry Starfield, Deputy Regional
Administrator for EPA Region 6, dated June 13, 2008, noting that
action on TCEQ's public participation rule was necessary to resolve
issues in another pending SIP submission.
---------------------------------------------------------------------------
Except where noted below, EPA proposes limited approval and limited
disapproval (LALD) of the following regulations:
----------------------------------------------------------------------------------------------------------------
State
State citation Title Current SIP submittal Type of SIP Proposed action
status dates revision
----------------------------------------------------------------------------------------------------------------
Chapter 39--Public Notice
Subchapter D--Public Notice of Air Quality Permits
----------------------------------------------------------------------------------------------------------------
Section 39.201.............. Application for Not in existing 10/25/99 New rule....... LALD.
a SIP.
Preconstructio
n Permit.
----------------------------------------------------------------------------------------------------------------
Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
Section 39.401.............. Purpose........ Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.403.............. Applicability.. Not in existing 10/25/99 New rule State LALD. The SIP
SIP. did not submit will not
paragraphs include
(b)(1) through paragraphs
(b)(7). (b)(1) through
No action on (b)(7) and
paragraph (b)(9).
(b)(9). See
section VII..
Section 39.405.............. General Notice Not in existing 10/25/99 New rule. State LALD. The SIP
Provisions. SIP. did not submit will not
subsections include
(a) through subsections
(e) and (a) through
paragraph (e) and
(f)(2). paragraph
(f)(2).
Section 39.409.............. Deadline for Not in existing 10/25/99 New rule....... LALD.
Public SIP.
Comment,
Requests for
Reconsideratio
n, Contested
Case Hearing,
or Notice of
Comment
Hearing.
Section 39.411.............. Text of Public Not in existing 10/25/99 New rule. State LALD. The SIP
Notice. SIP. did not submit will not
paragraph include
(b)(7). paragraphs
No action on (b)(7),
paragraphs (b)(11),
(b)(11), (b)(13),
(b)(13), (b)(14), and
(b)(14), and (c)(7).
(c)(7). See
section VII..
Section 39.413.............. Mailed Notice.. Not in existing 10/25/99 New rule. State LALD. The SIP
SIP. did not submit will not
paragraphs (1) include
through (8), paragraphs (1)
(10), and (13). through (8),
(10), and
(13).
Section 39.418.............. Notice of Not in existing 10/25/99 New rule. State LALD. The SIP
Receipt of SIP. did not submit will not
Application paragraphs include
and Intent to (b)(1) through paragraphs
Obtain Permit. (b)(2). (b)(1) through
(b)(2).
Section 39.419.............. Notice of Not in existing 10/25/99 New rule. State LALD. The SIP
Application SIP. did not submit will not
and subsection (c). include
Preliminary subsection
Determination. (c).
Section 39.420.............. Transmittal of Not in existing 10/25/99 New rule. State LALD. The SIP
Executive SIP. did not submit will not
Director's paragraph include
Response to (c)(2) and paragraph
Comments and subsection (e). (c)(2) and
Decision. subsection
(e).
Section 39.423.............. Notice of Not in existing 10/25/99 New rule....... LALD.
Contested Case SIP.
Hearing.
----------------------------------------------------------------------------------------------------------------
Subpart K--Public Notice for Air Quality Permits
----------------------------------------------------------------------------------------------------------------
Section 39.601.............. Applicability.. Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.602.............. Mailed Notice.. Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.603.............. Newspaper Not in existing 10/25/99 New rule....... LALD.
Notice. SIP.
[[Page 72005]]
Section 39.604.............. Sign-Posting... Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 39.605.............. Notice to Not in existing 10/25/99 New rule....... LALD.
Affected SIP.
Agencies.
----------------------------------------------------------------------------------------------------------------
Chapter 55--Requests for Reconsideration and Contested Case Hearing
Subchapter A--Applicability
----------------------------------------------------------------------------------------------------------------
Section 55.1................ Applicability.. Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
----------------------------------------------------------------------------------------------------------------
Subchapter B--Requests, Public Comment
----------------------------------------------------------------------------------------------------------------
Section 55.21............... Requests for Not in existing 10/25/99 New rule....... No action. See
Contested Case SIP. section VII.
Hearing,
Public Comment.
----------------------------------------------------------------------------------------------------------------
Subchapter D--Applicability and Definitions
----------------------------------------------------------------------------------------------------------------
Section 55.101.............. Applicability.. Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
Section 55.103.............. Definitions.... Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
----------------------------------------------------------------------------------------------------------------
Subchapter E--Public Comment and Public Meetings
----------------------------------------------------------------------------------------------------------------
Section 55.150.............. Applicability.. Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 55.152.............. Public Comment Not in existing 10/25/99 New rule. State LALD. The SIP
Period. SIP. did not submit will not
paragraphs include
(a)(3) through paragraphs
(a)(5). (a)(3) through
(a)(5).
Section 55.154.............. Public Meetings Not in existing 10/25/99 New rule....... LALD.
SIP.
Section 55.156.............. Public Comment Not in existing 10/25/99 New rule....... LALD.
Processing. SIP.
----------------------------------------------------------------------------------------------------------------
Subchapter F--Requests for Reconsideration and Contested Case Hearing; Public Comment
----------------------------------------------------------------------------------------------------------------
Section 55.200.............. Applicability.. Not in existing 10/25/99 New rule....... No action. See
SIP. section VII.
Section 55.201.............. Requests for Not in existing 10/25/99 New rule....... No action. See
Reconsideratio SIP. section VII.
n and
Contested Case
Hearing.
Section 55.203.............. Determination Not in existing 10/25/99 New rule....... No action. See
of Affected SIP. section VII.
Person.
Section 55.205.............. Request by Not in existing 10/25/99 New rule....... No action. See
Group or SIP. section VII.
Association.
Section 55.209.............. Processing Not in existing 10/25/99 New rule....... No action. See
Requests for SIP. section VII.
Reconsideratio
n or Contested
Case Hearing.
Section 55.211.............. Commission Not in existing 10/25/99 New rule....... No action. See
Action on SIP. section VII.
Requests for
Reconsideratio
n and
Contested Case
Hearing.
----------------------------------------------------------------------------------------------------------------
Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter B--New Source Review Permits
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.111............. General In existing SIP 10/25/99 Redesignated LALD to add new
Application. as approved 8/ pre-existing subsection
28/07, 72 FR text as (b). The SIP
41998. subsection will not
The existing (a). This include
SIP does not change was paragraph
include approved 9/6/ (a)(2)(K).
paragraph 06, 71 FR
(a)(2)(K) and 52664.
subsection Added new
(b).. subsection
(b)..
Section 116.114............. Application In existing SIP 10/25/99 Revision to LALD for all
Review as approved 9/ paragraphs submitted SIP
Schedule. 18/02, 67 FR (a)(2), revisions.
58709. (b)(1), and
(b)(2); and
the addition
of new
subsection (c).
[[Page 72006]]
Section 116.116............. Changes to In existing SIP 10/25/99 Revised LALD for
Facilities. as approved 11/ subsection (d) addition of
14/03, 68 FR and paragraphs paragraph
64548. (d)(1) and (b)(4). The
The existing (d)(2). This SIP will not
SIP does not change was include
include approved 11/14/ paragraph
sections 03, 68 FR (b)(3) and
116.116(b)(3), 64548. subsections
(b)(4), (e), Added new (e) through
and (f).. paragraph (f).
(b)(4)..
----------------------------------------------------------------------------------------------------------------
Division 2--Compliance History
----------------------------------------------------------------------------------------------------------------
Section 116.124............. Public Notice In existing SIP 10/25/99 Section Removal of
of Compliance as approved 9/ repealed. section
History 18/02, 67 FR 116.124 from
Section. 58709. the SIP.
----------------------------------------------------------------------------------------------------------------
Subchapter C--Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, Sec.
112(g), 40 CFR Part 63)
----------------------------------------------------------------------------------------------------------------
Section 116.183............. Public Notice Not in existing 7/22/98 EPA took no No action on
Requirements. SIP. action on revision to
section section
116.183 as 116.183 as
submitted 7/22/ submitted 10/
98. See 67 FR 25/99. See
58699 (9/18/ section VII.
02).
10/25/99 Revision to
change cross
reference from
sections
116.130
through
116.137 to
applicable
provisions in
Chapter 39.
----------------------------------------------------------------------------------------------------------------
Subchapter D--Permit Renewals
----------------------------------------------------------------------------------------------------------------
Section 116.312............. Public In existing SIP 12/15/95 and 7/ 7/22/98 LALD for
Notification as approved 3/ 22/98 submittal changes
and Comment 10/06, 71 FR repealed and submitted 12/
Procedures. 12285. revised pre- 15/95, 7/22/
existing 98, and 10/25/
section. 99.
Changes were
non-
substantive
housekeeping
changes to
include cross
references to
current rule..
10/25/99 Revised to
change cross
reference from
Chapter 116 to
Chapter 39.
----------------------------------------------------------------------------------------------------------------
Subchapter G--Flexible Permits
----------------------------------------------------------------------------------------------------------------
Section 116.740............. Public Notice.. Not in existing 10/25/99 Revised to No action. See
SIP. change cross section VII.
reference from
Chapter 116 to
Chapter 39.
----------------------------------------------------------------------------------------------------------------
B. What is limited approval and limited disapproval?
Under section 110(k)(3) of the CAA, EPA may fully approve or fully
disapprove a State submittal. Where portions of the State submittal are
separable, EPA may approve the portions of the submittal that meet the
requirements of the CAA, and disapprove the portions of the submittal
that do not meet the requirements of the CAA. When a submittal is not
separable, EPA can adopt a limited approval and limited disapproval
consistent with section 301(a) and 110(k)(3) of the Act.
A limited approval action applies to the entire rule because EPA
finds that approval of the entire rule will strengthen the State's SIP.
In proposing a limited approval, EPA simultaneously proposes a limited
disapproval of the submittal because it contains deficiencies and, as
such, does not fully meet all of the requirements of the Act. Under a
final limited approval, the State's entire submittal is incorporated
into the SIP and becomes fully federally enforceable. Where the
submittal addresses a mandatory requirement of the Act, final limited
disapproval starts a sanctions clock and a federal implementation plan
(FIP) clock. Under section 179(a), if EPA disapproves a submittal of a
requirement under the CAA, based on the submittal's failure to meet one
or more of the elements required by the Act, the sanctions set forth in
section 179(b) become applicable, unless the deficiency has been
corrected within 18 months of disapproval. Section 179(b) of the Act
and 40 CFR 52.31 of our regulations provide two sanctions available to
the Agency: increasing the offset requirements and withholding highway
funding. Moreover, the final limited disapproval may trigger a 24-month
[[Page 72007]]
clock to adopt a FIP requirement under section 110(c). If the State
submits an approvable rule revision during the sanction clock period,
EPA may propose approval of the rule and take interim final action,
effective upon publication, to stay the sanctions. Final approval of
the rule revision correcting the deficiency terminates the FIP clock.
III. How do the revised rules strengthen the existing SIP?
The SIP revisions submitted on December 15, 1995; July 22, 1998;
and October 25, 1999, as a whole, strengthen the SIP compared to the
corresponding provisions in the existing SIP. Below is a summary of
some revisions that strengthen the SIP. The TSD includes detailed
analyses of how the SIP is strengthened.
The general requirement for publishing notice in section
116.130(a) was changed by section 39.418 to provide a uniform time for
publication of the notice of the application (within 30 days of
determination of administrative completeness).
Previously, permit amendments were subject to notice at
the discretion of the Executive Director of TCEQ, without specific
criteria included in the rule (section 116.130(a)). This provision was
removed, thus requiring notice of amendment applications (section
39.403(b)(8)).
Previously, a copy of the application was required to be
available for public inspection in Austin, TX, and the appropriate
regional offices of the TCEQ (sections 116.131(b) and 116.132(7)). The
revised rules also require a copy of the notice to be placed in a
public place, available for inspection and copying, in the municipality
in or nearest to the location of the facility that is the subject of
the application. See section 39.405.
The revised rules add the opportunity to request a public
meeting and allow the Executive Director to determine whether
significant public interest exists to hold a public meeting. If held, a
written response is provided to oral comments made together with any
timely written comments. In addition, this response to comments (RTC)
is considered by the Commission if it considers any contested case
hearing requests in a Commission Meeting. The RTC is provided to all
commenters and persons who request to be on a mailing list related to
the application. See sections 39.420, 55.152, 55.154, and 55.156.
Notice of preliminary decision and draft permit was
extended from applying only to NNSR and PSD permits (see section
116.132(a)(6)) to any minor permit or permit amendment for which a
contested case hearing is requested by an affected person in response
to the Notice of Receipt of Application and Intent to Obtain a Permit.
See section 39.419.
Note also that the Texas rule contains some provisions
that exceed federal requirements, such as sign posting (section
39.604), a ``display type'' newspaper notice (section 39.603(c)(2)),
and alternate language notice in newspaper and sign posting (sections
39.405(h) and 39.604(e)).
IV. What are the rule deficiencies?
Notwithstanding the fact that these rules strengthen the existing
SIP, they do not meet all of the minimum applicable federal
requirements that relate to public participation. Each notation below
is discussed in detail in Section V.
A. New or Modified Minor NSR Sources
Generally, the minor NSR public participation rules identified
below do not require any initial public participation for some
permitting actions or do not require the TCEQ to provide the agency's
air quality analysis and proposal to approve or disapprove the permit
in other permitting actions.
Under section 39.419(e), for new or modified minor NSR
sources or minor modifications at major sources, the rules do not
require public notice and the opportunity for comment on the State's
analysis of the effect of construction or modification on ambient air
quality, including the agency's proposed approval or disapproval, as
required by 40 CFR 51.161(a) and (b), unless a contested case hearing
is requested and not withdrawn after notice of application and intent
to obtain a permit is published.
Under section 39.403(b)(8), for a minor NSR permit
amendment or minor modification under section 116.116(b), (where there
is a change in the method of control of emissions; a change in the
character of the emissions; or an increase in the emission rate of any
air contaminant) the existing SIP requires the permit holder to apply
for and receive approval of a permit amendment. However, the revised
rules do not require any public participation as required by 40 CFR
51.161(a) and (b) unless the change involves construction of a new
facility or modification of an existing facility that results in an
increase in allowable emissions equal to or greater than 250 tpy of CO
or NOX; or 25 tpy of VOC or SO2 or
PM10; or 25 tpy of any other air contaminant except carbon
dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or
other changes within the discretion of the Executive Director.
Under section 39.419(e)(1)(C), for any amendment,
modification, or renewal of a major or minor source which requires a
permit application, the rules do not require public notice and the
opportunity for comment on the State's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval, as required by 40 CFR
51.161(a) and (b), if the amendment, modification, or renewal would not
result in an increase in allowable emissions and would not result in
the emission of an air contaminant not previously emitted unless the
application involves a facility for which the applicant's compliance
history contains violations that are unresolved and that constitute a
recurring pattern of egregious conduct which demonstrates a consistent
disregard for the regulatory process, including the failure to make a
timely and substantial attempt to correct the violations.
Also, section 39.403(b)(8), Applicability, of the revised
rule refers to two State statutory provisions, THSC section 382.0518
(preconstruction permit) and section 382.055 (review and renewal of
preconstruction permit). For clarity and for approvability into the
SIP, section 39.403(b) should be revised to refer to the corresponding
sections of the Texas SIP.
B. Projects Subject to PSD
The revised rules do not contain the following requirements for
projects subject to the regulations for PSD:
For a new or modified source subject to PSD, the revised
rules do not require the TCEQ to provide an opportunity for a public
hearing for interested persons to appear and submit written or oral
comment on the air quality impact of the source, alternatives to it,
the control technology required, and appropriate considerations and to
provide notice of the opportunity for a public hearing, as required by
40 CFR 51.166(q)(v) and section 165(a)(2) of the Act.
For a new or modified source subject to PSD, the revised
rules do not require that the public notice of a PSD permit contain the
degree of increment consumption that is expected from the source or
modification as required by 40 CFR 51.166(q)(iii) and CAA section
165(a)(2).
For a new or modified source subject to PSD, the revised
rules do not require a copy of the public notice of a PSD permit to be
sent to State and local air pollution control agencies, the chief
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executives of the city and county where the source would be located and
any State or Federal Land Manager or Indian Governing Body whose lands
may be affected by emissions from the source or modification, as
required by 40 CFR 51.166(q)(iv).
For a new or modified source subject to PSD, the rules do
not require that response to comments be available prior to final
action on the PSD permit, as required by 40 CFR 51.166(q)(vi) and
(viii).
For a new or modified source subject to PSD, the revised
rules do not contain a definition of a final appealable decision for a
PSD permit. We request further information about how and when
commenters are informed of the Agency's final decision, access to
response to comments and timing for judicial appeal, in order to
provide an opportunity for State court judicial review.
C. Project for a PAL
The revised rules do not meet the following provisions for PALs:
For PALs for existing major stationary sources, there is
no provision that PALs be established, renewed, or increased through a
procedure that is consistent with 40 CFR 51.160 and 51.161, including
the requirement that the reviewing authority provide the public with
notice of the proposed approval of a PAL permit and at least a 30-day
period for submittal of public comment, consistent with the Federal PAL
rules at 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11).
For PALs for existing major stationary sources, there is
no requirement that the State address all material comments before
taking final action on the permit, consistent with 40 CFR 51.165(f)(5)
and 51.166(w)(5).
The applicability provision in section 39.403 does not
include PALs, despite the cross-reference to Chapter 39 in Section
116.194.
D. Project for a Flexible Permit
The rules do not meet the following provisions for Flexible
Permits:
For initial issuance of a flexible permit to establish a
minor NSR applicability cap or an increase in a flexible permit cap,
the rules do not require 30-day notice and comment on information
submitted by the owner or operator and the agency's analysis of the
effect of the permit on ambient air quality, including the agency's
proposed approval or disapproval as required by 40 CFR 51.161.
Where PSD and NNSR terms and conditions are modified or
eliminated when the permit is incorporated into a flexible permit, the
rules do not require public participation consistent with 40 CFR 51.161
and 51.166(q).
V. Do Texas's public participation rules meet federal requirements?
A. Minor NSR Regulatory Requirements
1. What public participation requirements for minor NSR programs are
necessary for approval of the SIP revision?
The CAA at section 110(a)(2)(C) requires states to include a minor
NSR program in their SIP to regulate modifications and new construction
of stationary sources within the area as necessary to assure the
national ambient air quality standards (NAAQS) are achieved. EPA's
implementing regulations at 40 CFR 51.160-51.164 are intended to ensure
that new source growth is consistent with maintenance of the NAAQS. 40
CFR 51.160(e) requires states to identify types and sizes of facilities
which will be subject to review under their minor NSR program. For
sources identified under Sec. 51.160(e), Sec. 51.160(a) requires that
the SIP include legally enforceable procedures that enable the State or
local agency to determine whether construction or modification of a
facility, building, structure or installation, or combination of these
will result in a violation of applicable portions of the control
strategy; or interference with attainment or maintenance of a national
standard in the State in which the proposed source (or modification) is
located or in a neighboring State.
Sources subject to the legally enforceable procedures under 40 CFR
51.160(a) are also subject to the minimum public participation
requirements at 40 CFR 51.161, entitled Public Availability of
Information. In particular, 40 CFR 51.161(a) requires a State to
provide the opportunity for public comments on information submitted by
owners and operators. 40 CFR 51.161(a) also requires the public
information to include the agency's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval. 40 CFR 51.161(b) requires
that the State ensure availability of the information submitted by the
owner or operator and the State's analysis of the effect on air quality
for public inspection in at least one location in the affected area,
that the State provide a 30-day public comment period on that
information and that notice of the public comment period should be by
prominent advertisement in the area affected.
The minor NSR program is also important as a tool to implement
changes related to major NSR, such as to adopt enforceable limitations
on hours of operation and rates of production or the installation of
pollution control equipment to limit potential to emit (PTE) to avoid
major source applicability thresholds of NSR or title V permitting
requirements. The minor NSR program also authorizes minor modifications
at major sources, including netting demonstrations required by the PSD
and NNSR major source program, or to establish a PAL to determine PSD
or NNSR applicability.
EPA recognizes that, under the applicable Federal regulations,
states have broad discretion to determine the scope of their minor NSR
programs as needed to attain and maintain the NAAQS. The State has
significant discretion to tailor minor NSR requirements that are
consistent with the requirements of Part 51. The State may also provide
a rationale for why the rules are at least as stringent as the Part 51
requirements where the revisions are different from Part 51. For
further information, see recent SIP actions in other States concerning
minor NSR approvals and disapprovals, such as 68 FR 2891 (January 22,
2003), where EPA approved Oregon's minor NSR program establishing
categories of minor NSR permit actions. However, EPA disapproved or
gave less than full approval to minor NSR public participation
requirements that provided a blanket exemption from one or more public
notice requirements of Part 51 to all minor NSR permitting actions. See
65 FR 2042 (January 13, 2000), disapproval of West Virginia minor NSR
provisions providing 15-day public comment period for certain minor NSR
permitting actions or 65 FR 2048 (January 13, 2000), limited approval
of Delaware minor NSR public participation requirements because it
strengthened the SIP, but limited disapproval of the rule due to less
than 30-day comment period. See also the proposed approval of Review of
New Sources and Modifications in Indian Country at 71 FR 48696 (August
21, 2006) and 72 FR 45378 (August 14, 2007), approval of Alaska minor
NSR public participation provisions.
2. What are the Texas minor NSR program public participation
requirements?
In general, the revised rules provide for two types of public
notice and comment processes. These two public notices are Notice of
Application and Intent to Obtain a Permit under section 39.418 (first
notice) and Notice of
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Application and Preliminary Decision (second notice) under section
39.419 and subchapter K. The first notice requires the permittee to
publish notice of the permit application and provide a copy of the
administratively complete application in the public record available
for public comment. An administratively complete application may, but
is not required to, contain the applicant's information on the air
quality impacts from the facility. Under Section 39.419(e)(1)(B), no
further notice is required for minor NSR permits unless a contested
case hearing is requested and not withdrawn before the second notice is
published. Under section 55.21, a contested case hearing may be
requested by: (1) The Commission; (2) the Executive Director; (3) the
applicant; (4) affected persons, when authorized by law; and (5) for
applications for air quality permits, or standard exemptions required
to provide public notice, a legislator from the general area of the
proposed facility. The request must identify the person's personal
justiciable interest affected by the application, including the
requestor's location and distance relative to the activity that is the
subject of the application and how and why the requestor believes he or
she will be affected by the activity in a manner not common to members
of the general public. Requirements for a group or association to
request a contested case hearing are found in section 55.23.\9\ A
contested case hearing is an evidentiary hearing before an
administrative law judge at the State Office of Administrative Hearings
(SOAH). If a contested case hearing is requested, the permittee must
publish notice of the opportunity to comment on the complete
application and the State's analysis of air quality impacts and the
State's proposal to approve or disapprove the permit.
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\9\ Section 55.23, Request by Group or Association, was not
submitted in this SIP revision.
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Section 39.418 of the revised rule requires the applicant for a
minor NSR permit new source or modification, amendments or renewal
under Chapter 116 to publish Notice of Receipt of Application and
Intent to Obtain Permit (first notice) within 30 days after the
Executive Director determines the application to be administratively
complete. (The rule does not provide a definition of administrative
completeness.) Under sections 55.152(a)(1) and (2), 39.405(f)(1), and
39.603, the notice of 30-day public comment period (15 days for
renewals) must be published in a newspaper of general circulation in
the municipality in which the facility is located or is proposed to be
located or in the municipality nearest to the location or proposed
location of the facility and State the end date of the public comment
period. Section 39.405(e) requires the applicant to provide a copy of
the notice to the TCEQ within 10 business days from the last date of
publication. The applicant must also post a sign at the site of the
existing or proposed facility declaring the filing of an application
for a permit under section 39.604. The TCEQ is required to mail a copy
of the notice to the State senator and representative who represent the
area in which the facility is or will be located, the applicant,
persons on a relevant mailing list, and any other person the Executive
Director or Chief Clerk may elect to include under sections 39.413 and
39.602. The applicant is required to mail a copy of the notice to EPA,
all local air pollution control agencies with jurisdiction in the
county in which the construction is to occur, and the air pollution
control agency of any nearby State in which air quality may be
adversely affected by the emissions from the new or modified facility
under section 39.605. The applicant is also required to make a copy of
the application available for review and copying at a public place in
the county in which the facility is located or proposed to be located.
The applicant must indicate when confidential business information is
excluded from the public file. See section 39.405(g). The public record
available during the comm
